Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 18, 2023

CASE NO(S).: OLT-21-001444

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Ed Yohanna

Subject: Minor Variance

Property Address/Description: 11033 Lakeshore Road

Variance from By-law: 034-2014

Municipality: Township of Wainfleet

Municipal File No.: A11/2021W

OLT Lead Case No.: OLT-21-001444

OLT Case No.: OLT-21-001444

OLT Case Name: Yohanna v. Wainfleet (Township)

Heard: July 24, 2023, via Video Hearing

APPEARANCES:

Parties Ed Yohanna

Representative Self-Represented

DECISION DELIVERED BY GREGORY J. INGRAM AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This hearing was convened on July 24, 2023, to consider the appeal by Ed Yohanna (the “Appellant”) of 11033 Lakeshore Road (“Subject Property”) of the decision by the Township of Wainfleet (“Township”) Committee of Adjustment (“COA”) made on September 15, 2021, to refuse the Minor Variance seeking relief from Zoning By-law (“ZBL”) 034-2014, under s. 45 of the Planning Act, R.S.O. 1990 c. P.13 (“Act”) to permit the addition of a roofed balcony, add a roof over an existing balcony and build a small shed.

2This was the second hearing of this matter following a Section 23 Request For Review from the Appellant. The Tribunal granted a review, and a Letter of Disposition (Exhibit 5) was issued on May 4, 2023, which indicated that “there are factual errors in the Decision [issued January 9, 2022] which are sufficient to warrant a review” and a rehearing was granted. The letter also encouraged the two parties to pursue a possible settlement prior to another hearing being scheduled.

3On July 17, 2023, the Township informed the Tribunal that there had been some discussions related to a settlement, but they were not successful. In a subsequent email, dated July 19, 2023, the Township informed the Tribunal that it would not participate in the hearing scheduled for July 24, 2023.

4The Appellant was self-represented on July 24, 2023, and no other participants or parties were present.

NEIGHBOURHOOD CHARACTERISTICS

5The Tribunal heard that the subject property is known municipally as 11033 Lakeshore Road and is located along the Lake Erie shoreline within the Township of Wainfleet. The Appellant indicated that there are several lots in the area that are approximately the same shape and size.

6The Subject Property is designated as Rural Lands under the Provincial Policy Statement and Growth Plan for the Greater Golden Horseshoe (2019), Rural Area under the Region of Niagara Official Plan and Lakeshore Residential, Environmental Conservation Area and Hazard Lands under the Township of Wainfleet Official Plan. The Subject Property is zoned Residential Lakeshore - RLS.C10 with a Hazard Overlay under Township of Wainfleet Zoning By-law 034-2014.

BACKGROUND AND VARIANCES SOUGHT

7In 2014, a Minor Variance application was submitted to permit the replacement of the existing single detached dwelling and accessory building (Township File No. A 13/2014W). The application sought relief from the maximum lot coverage, minimum interior side yard setback as well as the minimum accessory building interior side yard setback and maximum accessory building height. The COA partially approved the application subject to several conditions. The adjacent property owner appealed the decision and the matter was dealt with by the Ontario Municipal Board (“OMB”) under Case No. PL 150292. A maximum lot coverage of 11.5% was approved.

8The Appellant subsequently received a Township building permit for the construction of the new dwelling and accessory building.

9On June 24, 2021, the Appellant submitted another Minor Variance application requesting 17% maximum lot coverage whereas the ZBL permits 10% (OMB approved 11.5% previously) and a request of 6.4% Accessory Maximum Building Lot Coverage whereas the ZBL permits 2.5%. Approval of these variances would allow the addition of a balcony, a deck for the accessory building and a shed.

10On July 21, 2021, the COA received a staff Report from the Township (“Staff”) that indicated support for lot coverages of 13.5% and 5.5% and opined that the relief sought met the four tests under Section 45 of the Planning Act.

11At the July 21, 2021 COA hearing, an adjacent property owner appeared to object to the Staff's interpretation of the ZBL and specifically, regarding what buildings and/or structures should be included in the lot coverage calculation.

12The COA deferred consideration of the application to allow Staff the opportunity to review what buildings/structures should be considered as contributing to lot coverage calculations and to confirm what lot coverages were needed to support the Appellant’s development plans.

13A review of the definitions within the ZBL was conducted and the Appellant was advised that a maximum lot coverage of 13.9% and maximum accessory building lot coverage of 5.8% would be required to permit his development plans which staff indicated they could support.

14In the period between the initial COA hearing on July 21 2021 and the final COA hearing on September 15, 2021, the Appellant approached the Staff with changes to his initial application which at first required a maximum lot coverage of 17% and maximum accessory building lot coverage of 5.8% and then submitted another plan that requested a maximum lot coverage of 14% and maximum accessory building lot coverage of 4.4%.

15Staff prepared an updated review outlining the changes the Appellant requested for consideration of the COA hearing of August 18, 2021.

16At the August 18, 2021, COA hearing, the Appellant proposed additional combinations for development options. The discussion concluded with the Appellant confirming that he would like enough lot coverage to allow for the balcony/porch on the north side of the accessory building, a shed and a covered porch on the north side of the dwelling. This would require a maximum lot coverage of 15.4% and maximum accessory building lot coverage of 5.8%.

17The COA deferred consideration of the application to the September 15, 2021, hearing and requested that the Secretary-Treasurer circulate a new Notice of Hearing containing the revised lot coverage requests, as agreed to by the Appellant.

18The Secretary-Treasurer issued a new Notice of Hearing on August 26, 2021, which included the revised lot coverages request of 15.4% and 5.8% to be heard by the Committee on September 15, 2021.

19The September 15, 2021, COA hearing was convened and the application was denied for the following reasons:

1. The proposed variance would result in over-development of the lot and, as a result, is not desirable development for the area.

2. The OMB already approved an increase in overall lot coverage from 10% to 11.5% under file A 13/2014W. A further increase to 15.4% and 5.8% is not minor in nature.

EVIDENCE AND SUBMISSIONS

20Mr. Yohanna was qualified by the Tribunal to give factual evidence on his own behalf.

21The Township did not attend the hearing.

EVIDENCE

22The Tribunal must consider whether the variances have sufficient regard to the Provincial interests listed in s. 2 of the Act, are consistent with the Provincial Policy Statement, 2020 (the “PPS”), conform with the Growth Plan for the Greater Golden Horseshoe, 2019 (the “Growth Plan”), and meet each of the four tests in s. 45(1) of the Act.

23The following material was before the Tribunal in addition to the evidence provided through witness testimony:

• Email Summary of Appeal by Ed. Yohanna

• Lot Coverages Comparison Summary

• Site Plan MV Application, August 19-2021

• Municipal Report, Oct. 7-2021

• OLT Disposition Letter, May 4, 2023

• Town Planner Response Letter, April 28, 2023

24In his testimony, Mr. Yohanna referred to an email message he submitted to the Tribunal on July 6, 2023, (Exhibit 1) which provided a summary of his application request and confirmed the following objectives of his appeal:

a. To put a roof over the existing north side entrance deck (2.4m x 6.70m) attached to the main dwelling;

b. Build a shed up to (3.0m x 4.87m);

c. Build a roofed balcony (3.0m x 4.57m) to the north side of the outbuilding.

25The Appellant informed the Tribunal that the process to make the requested changes on his property has taken a long time. He suggested that he received a different interpretation of the ZBL from the previous Township Planner who indicated that he could put a roof over the side entrance without requesting a Minor Variance. He suggested that the current Planner interpreted the ZBL differently which added six to eight months to the process before clarifying the ZBL requirements.

26The Appellant stated that “his property is elongated with an approximately 250 ft long driveway which provides a laneway type easy access to the main house as well as the proposed shed. At least four vehicles can be parked in front of the accessory building closer to the street yet there will still be unobstructed access for other vehicle(s) to access the driveway to the main house and shed at the back, no problem.”

27The Appellant also indicated that the requests to put a roof over the entrances will make them safer during the winter months.

28Mr. Yohanna indicated that the shed is required for the storage of a small tractor and is like other sheds in the area. He also indicated that the placement of the shed does not pose an issue for any of the adjacent properties.

29Mr. Yohanna indicated that there are no objections from adjacent property owners to his application and confirmed that the only concern expressed by another property owner was with the Township interpretation and application of the ZBL provisions related to lot coverage.

30The Appellant provided the Tribunal with lot coverage information for 23 lots within approximately half a kilometre of the Subject Property (Exhibit 2). He indicated that based on his analysis, the average lot coverage is 19.2% and ranges from 23% to 14%. He also indicated that the Township was provided with the comparison information.

31Mr. Yohanna referred to the Response Letter from Township Planner Sarah Ivins dated April 28, 2023, that indicated support for his amended proposal heard by the COA. Ms. Ivins indicated the following:

It is my opinion that variances of 15.4% for total lot coverage and 5.8% for accessory building lot coverage meet the four tests under Section 45 of the Planning Act as the variances maintain the general intent and purpose of the Official Plan and Zoning By-law, is desirable for the appropriate development of the lands and use of the property and is minor in nature. (Exhibit 6)

ANALYSIS

Provincial and Regional Policy Statements

32The Township Planner report provided to the COA (Exhibit 4) opined that the Minor Variance application is in compliance with the Provincial Policy Statement (“PPS”), the Growth Plan for the Greater Golden Horseshoe and the Regional Official Plan.

33The Township Planner also indicated that there are Niagara Peninsula Conservation Authority (NPCA) regulated lands on the subject property due to the hazards associated with the Lake Erie shoreline. However, the location of the existing accessory structure and proposed raised decks and shed are located outside of the NPCA regulated area. As such, the NPCA had no concerns and did not require circulation of the Minor Variance application.

LEGISLATIVE TESTS

34The Tribunal’s authority to authorize variances is given under s. 45(1) of the Act, which sets out the four tests that must be satisfied by an applicant when making an application for the authorization of variances. It must be noted that the hearing before the Tribunal is a hearing de novo. The tests require that the variances:

a. maintain the general intent and purpose of the Regional and Township Official Plans;

b. maintain the general intent and purpose of the ZBL;

c. be desirable for the appropriate development or use of the land, building or structure; and

d. be minor in nature

Maintain the general intent and purpose of the Township’s OP

35The Planning Report provided to the COA indicated that the proposed variance meets the intent and maintains the goals and objectives of the Official Plan (“OP”). Ms. Ivins indicated that the proposed additions are located above the NPCA's regulated lands (erosion hazard limit and flood hazard limit) and as such there are no concerns with respect to the Hazard Lands. It is the Staff's opinion that the proposed variance meets the intent and maintains the goals and objectives of the Official Plan.

Maintains the General Purpose and Intent of the Zoning By-law

36The Planning Report indicated that the proposed additions to the existing accessory building (balcony and raised deck) along with the proposed new accessory building (shed) are permitted as accessory uses to a single detached dwelling within the Residential Lakeshore - RLS zone.

37The COA was told that the intent of the maximum lot coverage provisions for both accessory buildings and all buildings on a property (total lot coverage), is to ensure that there is sufficient space for servicing (septic), amenity space and to ensure that the development footprint is proportionate to the lot size. The report also indicated that the Planning Staff could support a reduced accessory building lot coverage of 5.5% and total lot coverage of 13.5% which would permit, in their opinion, the raised deck and balcony for the existing accessory building.

38As noted in paragraph [33], Ms. Ivins indicated support for the proposed variances of 15.4% for total lot coverage and 5.8% for accessory coverage and indicated that this meets the intent of the ZBL.

Desirable for the Appropriate Development of the Lands or Use of the Property

39Mr. Yohanna opined that the proposed variances are desirable for the appropriate development of the lands and use of the property. He described adjacent lots and land uses to be similar in nature to his own and indicated that nearby property owners did not believe a Minor Variance application should have been required in the first place.

40Mr. Yohanna indicated that the only issue raised by another property owner during the public meeting was related to the Township interpretation of the ZBL and not his requested variances.

41The Planning Report indicated that there were no concerns expressed by other departments of the municipality with respect to the proposed variances.

Minor in Nature

42Mr. Yohanna indicated that the proposal is minor in nature. He opined that the changes do not impact his neighbours, they make his entrances safer and the placement of the accessory building maintains access to the main structure in the event that emergency vehicle access is required.

43Ms. Ivins opined in her April 28, 2023, response letter to the Tribunal that the proposal represents an appropriate development of the lands and use of the property and is minor in nature.

FINDINGS

44The Tribunal accepts the evidence provided by Mr. Yohanna and supports his appeal application.

45The Tribunal accepts the evidence provided by the Township Planner with respect to the requested variances and their compliance with the PPS, The Growth Plan, the Regional and Township Official Plans and other applicable regulations noted above.

46The Tribunal accepts the evidence provided related to the lot coverage requested and the analysis provided by Mr. Yohanna. This evidence indicated that the proposed variances result in lot coverage that is common in the immediate area.

47The Tribunal also finds that the Appellant considered neighbouring properties and safety in determining the requested placement of the accessory structure and believes that there will be no negative impact on neighbouring property owners.

48The Tribunal notes that there was no opposition to this proposal from neighbours or from other departments of the Township or County.

ORDER

49THE TRIBUNAL ORDERS that the appeal is allowed and the variances to By-law 034-2014 of 15.4% for total lot coverage and 5.8% for accessory building lot coverage are authorized.

“Gregory J. Ingram”

GREGORY J. INGRAM

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.