Ontario Land Tribunal / Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 02, 2023
CASE NO(S).: OLT-22-004182
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: John and Katharina Hamilton
Subject: Application to amend the Zoning By-law
Description: To permit to park commercial motor vehicles and to receive relief from the parking provisions
Reference Number: ZBA 2022-05
Property Address: 10195 Sunset Road
Municipality: Township of Southwold
OLT Case: OLT-22-004182
OLT Lead Case No.: OLT-22-004182
OLT Case Name: Hamilton v. Southwold (Township)
Heard: January 10, 2023 by Video Hearing
APPEARANCES:
Parties Counsel
John and Katharina Hamilton (“Applicants/Appellants”) Analee Baroudi
Township of Southwold (“Township”) Nicholas Loeb
MEMORANDUM OF DECISION DELIVERED BY ERIC S. CROWE AND ORDER OF THE TRIBUNAL
INTRODUCTION
1John and Katharina Hamilton (“Applicants/Appellants”) have appealed the Council of the Township of Southwold (“Township”) decision to refuse Zoning By-law Amendment (“ZBLA”) No. 2022-05, on the June 13, 2022, which would permit parking of two commercial motor vehicles and to receive relief from the parking provisions at 10195 Sunset Road (“Subject Property”).
2In March 2022, the Township of Southwold received a complaint from a neighbouring property owner regarding noise and parking of commercial motor vehicles from the Subject Property. On April 8, 2022, the Township Planner provided the property owners with a letter advising them of the zoning violations. On May 13, 2022, the property owners applied for a ZBLA to receive permission to park commercial motor vehicles on their lands and to receive relief from the parking provisions of the Zoning By-law (“ZBL”).
ZONING BY-LAW AMENDEMENT
3The purpose and effect of the ZBLA application is to amend the zoning from Residential 1 (R1) Zone to Residential 1 Special Provision 32 (R1-32) to permit relief of the following:
Section 3.13(d), (f), (g) and (h) Home Occupation to permit the use of an existing attached garage (shop) to be used for maintenance and repairs of a commercial motor vehicle that will be parked on the Subject Lands and will generate occasional noise and odour;
Section 3.38(g) Parking and Loading Space Regulations to permit a reduction in planting strip width between parking area and lot line from 1.0 m to 0.0 m and permit an increase in the parking area from 15% to 25.3% of the total lot area;
Section 3.38(l) Parking and Loading Space Regulations to permit the parking of a recreational motor vehicle in an interior side yard and the parking of two commercial motor vehicles on the Subject Lands.
PARTICIPANTS AND WITNESSES
4At the outset of the hearing, the following people were granted Participant status:
Alex Wiebe
Jack Van Erp
Lisa and Ron Young and Dollie Milos
Ken and Jody Mclaughlin
5The Tribunal was in receipt of and considered the contents of their Statements. Counsel for the Township did note that Mr. Wiebe appeared to be no longer living in the neighborhood and only lived at 10207 Sunset Road beside the Applicants/Appellants from 2012 to 2019. The Tribunal agreed with the Applicants/Appellants counsel and allowed the Participant request noting Mr. Weibe was a neighbor during the time of these events. All of the Participants’ Statements were in support of the proposed application.
6Evidence in support of the application was provided by the Applicants/Appellants expert, William Pol, while evidence against the Application was provided by the Township’s expert, Heather James. All experts were duly qualified on consent to provide opinion evidence in land use planning.
SUBJECT PROPERTY AND SURRONDING AREA
7The Subject Property is located is located within the Talbotville Settlement Area within the Township of Southwold, County of Elgin. The Subject Property is located on the south side of Sunset Road which is a County of Elgin Road. It is approximately 1.1 km south of the intersection with Talbot Road and 0.5 km north of the municipal boundary of St. Thomas. The Subject Property has lot frontage of 38.1 m, lot depth of 60.96 m and a lot area of 2.322 hectares.
8The surrounding uses are predominately residential with single detached dwellings and agricultural uses.
9The Subject Property contains a single detached dwelling with an attached garage (workshop) and above ground pool and small garden shed. The workshop has a width of 12.1 m, depth of 17.0 m for an area of 205.7 m² and height of approximately 7.6 m. The workshop functions for the repair and maintenance of both recreational activities related to drag racing sport and the commercial truck and trailer. The attached workshop was built and located in compliance with the Residential 1 (R-1) ZBL provisions in 2019.
LEGISLATIVE TEST
10In making a decision with respect to a ZBLA, the Tribunal must consider s. 24(1) of the Planning Act (“Act”). Despite any other general or special Act, where an official plan is in effect, no public work shall be undertaken and, except as provided in subsections (2) and (4), no by-law shall be passed for any purpose that does not conform therewith.
PLANNING EVIDENCE
Provincial Policy Statement (“PPS”)
11Ms. James advised the Subject Lands are within the settlement area of Talbotville which is an urban settlement area. Ms. James notes Section 1.1.3.1 and Section 1.1.1 c) of the PPS which states healthy, livable and safe communities are sustained by avoiding development and land use patterns which may cause environmental or public health and safety concerns.
12Ms. James submits, the use of an existing attached garage (workshop) to be used for maintenance and repairs of commercial motor vehicles driven by the owners is acceptable in the settlement area. However, the associated increase in parking area, the lack of a planting strip between the parking area and lot line and the parking of two commercial motor vehicles on the Subject Lands is of great concern as it has the potential to negatively impact stormwater management on the property and has the potential to cause disruption with adjacent properties due to the noise, odour and emissions from the vehicles.
13In Ms. James opinion, the proposed ZBLA is not consistent with the PPS.
14Mr. Pol highlights s 1.1.1 c of the PPS, avoiding development and land use patterns which may cause environmental or public health and safety concerns, s 1.1.3.1 growth and development, s 1.1.3.4 appropriate development standards and s 1.3.1 d) encouraging mixed use development.
15Mr. Pol contends the location of the attached workshop without windows and one-man door along the southerly side will not allow noise or odour to impact the dwelling to the south or the public. Any noise or odour generated from the Site will likely be assimilated with the traffic noise and odour from Sunset Road.
16Mr. Pol advised the addition of a Home Occupation use in an attached building is considered redevelopment of the Subject Property requiring amendments to the existing ZBL. The standards for development to include parking of a recreational motor home, a school bus and truck trailer commercial vehicle; increasing the parking area to 23% of the lot; and permitting the parking of the vehicles in the side yard or driveway in the front yard. Amendments to these provisions allow the safe use of the Subject Property for ingress, egress and parking using a hard surface that minimizes dust and allows drainage. According to Mr. Pol no amendments are necessary for the safe repair and maintenance of the commercial vehicles in the attached workshop. The redevelopment avoids any risks to public health and safety.
17Mr. Pol contends the Home Occupation by definition supports a livable community. The Home Occupation is a compatible use with the on-site and surrounding residential uses. It adds a minor amount of noise or odour when considering the volume and speed of truck and vehicle traffic on Sunset Road. Parking of the commercial vehicles off-site, travelling to the Site and travelling back is an inefficient use of time and fuel where there is sufficient lot area on the Site.
18Mr. Pol opines the proposed development of a Home Occupation for the commercial vehicles parking and repair and maintenance is consistent with the PPS.
County of Elgin Official Plan (“CEOP”)
19Ms. James advised the Subject Lands are Tier 2 Settlement Area (Talbotville) on Schedule ‘A’ Land Use in the CEOP. One objective in the Plan for Residential Areas is to maintain and enhance the character and identity of existing residential areas and ensure that residential areas permit a variety of complementary and compatible land uses.
20Ms. James submits the use of the attached garage for commercial motor vehicle maintenance can be considered as a Home Occupation. The vehicle maintenance in the attached garage will generate occasional noise and odour. What is concerning is the parking of commercial motor vehicles has the potential to be incompatible with neighbouring land uses as it can create negative impacts due to excessive noise, odour and emissions. As well, the increase in parking area (resulting in reduction of permeable area), the lack of a planting strip between the parking area and lot line is also of great concern as it has the potential to negatively impact stormwater management on the property and on adjacent properties.
21In Ms. James opinion, the proposed ZBLA does not conform to the CEOP.
22Mr. Pol contends the Subject Property has had the storage and maintenance of commercial vehicles on the site for almost ten (10) years. There is no significant change in the intensity or visual impact of the Home Occupation use to change the character of the residential area. The Subject Property is located on a busy road where vehicle traffic noise and activity are part of the residential community. The existing Home Occupation use is an established part of the residential character and considered a complementary and compatible land use in conformity with Policy for Residential Areas as per s C1.1.1. of the COEP.
23Mr. Pol submits the Home Occupation is compatible with the surrounding residential land uses due to the 20 m separation distance from the workshop to the nearest outdoor amenity space in addition to the repair and maintenance conducted inside the workshop to avoid noise or odour impacts. There is also an opportunity for a boundary fence between the Home Occupation and residential use to the south. According to Mr. Pol any noise or odour from truck movement or repair/maintenance is not excessive and will assimilate with the noise and odour from Sunset Road.
24Mr. Pol opines, the proposed Home Occupation and associated zoning provisions conform to the COEP because they maintain the character of the residential area and permits a form of small-scale commercial use which is both complementary to the residential use and compatible with surrounding residential uses.
Township of Southwold Official Plan (“OP”)
25Ms. James testified the Subject Lands are designated Residential on Schedule ‘4A’ Talbotville Land Use in the OP. Section 5.2.2.3.3 Home Occupations states within a Residential Area, a home occupation will be clearly secondary to the residential use and must be contained entirely within the residential unit. Home Occupations are occupations or businesses conducted for gain or profit generally within a dwelling unit.
26Ms. James highlighted the additional policies which shall apply:
a) Home occupations will be clearly subordinate to the residential use and will not require alterations which interfere with the residential character of the lot and structure;
b) Home occupations will not be permitted if they generate uncharacteristic traffic for a residential neighbourhood, or require outdoor storage of goods or materials, or will otherwise disrupt the peaceful and quiet enjoyment of other residential properties in the neighbourhood;
c) Home occupations will be regulated through the Township Zoning By-law.
27Ms. James contends the Subject Lands are intended to predominately be used for residential use. Home occupations are permitted provided they meet the criteria listed in Section 5.2.2.3.3 of the OP. The use of an existing attached garage (workshop) to be used for maintenance and repairs of commercial motor vehicles driven by the owners is acceptable in the settlement area and can be considered as a home occupation. The commercial motor vehicle however must be in the shop and not within the driveway in order for it to be acceptable. The vehicle maintenance in the attached garage will generate occasional noise and odour; however, the parking of two commercial motor vehicles on the Subject Property will disrupt the peaceful and quiet enjoyment of other residential properties in the neighbourhood as the noise, odour and emissions generated are not occasional but occurring on a daily basis.
28In Ms. James’ opinion, the proposed ZBLA does not conform to the OP.
29Mr. Pol advised the specific criteria in the policy limit the secondary use scale as secondary to the residential use and does not disrupt the peaceful enjoyment of the residential area. The Home Occupation consists of the temporary parking of the commercial vehicles on site to provide convenient access and improved efficiency of time and security of the trailer loads on the premises and to permit occasional maintenance of the truck trailer. According to Mr. Pol, it is not physically possible to park the commercial vehicles in the dwelling or attached workshop. Therefore, it is necessary to locate the parking activity of the Home Occupation use outside. The use is secondary to the primary residential use of the property. According to Mr. Pol the peaceful enjoyment of the area has been demonstrated by nearly ten (10) years of operation without complaint.
30Mr. Pol testified the traffic is not uncharacteristic of the neighbourhood. Traffic volumes ranging from 7291 – 9819 Average Annual Daily Traffic (AADT 2020 – 2022) and truck volumes of 214 – 306 AADT establish a character of high vehicle volumes and truck traffic as characteristic of the neighbourhood. According to Mr. Pol the peaceful and quiet enjoyment of the neighbourhood is not disrupted by the proposed Home Occupation. The movement of commercial vehicles from the Site is consistent with the existing and potential disruption created by traffic along Sunset Road. Furthermore, across the street on Sunest road the existing zoning for industrial/commercial uses in the CM1 zone allow as of right intensive industrial uses including transport terminals.
31In regard to policy (b) Mr. Pol advised there is no outside storage of goods or materials. The goods are temporarily located on a trailer for haulage to an automobile sales lot. They are not stored for an extended period of time as intended by the policy.
32In Mr. Pol’s opinion, the proposed zoning regulations are in conformity with the OP.
Comprehensive Zoning By-law (“ZBL”)
33Ms. James testified the Subject Property is zoned Residential 1 (R1) in the Township’s ZBL 2011-14. The intent of Home Occupations is that they are secondary to the primary use of the property, that being residential. They are intended to not conflict with neighbouring properties. The use of an existing attached garage (shop) to be used for maintenance and repairs of two commercial motor vehicles is acceptable. Section 3.38 (l) (i) states the parking of a recreational motor vehicle within any Residential Zone shall not be permitted in a front yard, exterior side yard or required interior side yard other than in a driveway. A driveway in an interior side yard is permitted provided the parking area is separated by a planting strip no less than 1.0 m in width and does not exceed 15 % of the total lot area.
34Further, Section 3.38(l) (ii) states the parking of commercial motor vehicles including buses and tractor trailers shall not be permitted within any Residential Zone where such motor vehicles exceed a gross weight of two (2) tonnes. According to Ms. James, residential zones are intended to have strictly residential uses and have minimum noise and disruptions to property owners. The Subject Property is located on Sunset Road, which does have commercial motor vehicle traffic; however, the noise, odour and emissions from the traffic is intermittent.
35Ms. James continued, the increase in parking area (resulting in reduction of permeable area), the lack of a planting strip between the parking area and lot line to accommodate such vehicles is of great concern as it has the potential to negatively impact stormwater management on the property and on adjacent properties.
36In Ms. James opinion, the proposal would not be in compliance with the ZBL.
37Mr. Pol highlighted section 3.38 Parking and Loading Space (g) Yard Where Permitted, requires a 1.0 m Planting Strip where parking is proposed in the Required Interior Side Yard.
38Mr. Pol advised the Required Interior Side Yard for the main building in the Residential R-1 Zone in Section 8.2 Regulations (d) Minimum Interior Side Yard is 1.2 m minimum where the garage or carport is attached. According to Mr. Pol this setback is measured from the property line to the nearest part of the main building. The existing side yard between the workshop and the property line is 5.94 m. The proposed parking area is 4.0 m wide from the workshop towards the property line, with 1.94 m of grassed area remaining.
39Mr. Pol opines, and the Tribunal agrees, since the grassed area is greater than the minimum side yard setback, no parking area is proposed in the Required Interior Side Yard and no amendment is necessary to reduce the Planting Strip.
40Mr. Po highlighted section 3.38 (l) Parking Restrictions (i), prohibits parking of boats, recreational motor vehicles or motor vehicles in a front yard or required interior side yard other than a driveway.
41Mr. Pol advised the Appellant’s recreational motor home and trailer for the drag racing car/equipment are permitted to park in the driveway and Interior Side Yards. As described above, parking is not proposed in the Required Interior Side Yard of 1.2 m in the Residential 1 (R1) Zone. In Mr. Pol’s opinion which the Tribunal agrees with, there is sufficient 5.94 m setback distance from the workshop to the property line to park a recreational vehicle outside of the Required Interior Side Yard, therefore no amendment to this provision is required.
42Mr. Pol advised the requested changes recognize where the vehicle parking exist and allow for improvements to the property. Parking in the driveway in the front and side yards are appropriate considering the significant distance from the front lot line. The removal of the landscape strip can be replaced with other mitigation measures such as an opaque boundary fence to reduce the potential impact of the commercial vehicles. Parking of commercial vehicles on the property is complementary to the Home Occupation use. The increase in paved area is appropriate to allow the safe parking and maneuvering of the vehicles on the property. The unusually deep setback from the front lot line requires a greater proportion of paved area than a short setback, supporting the increase in paved area coverage.
43According to Mr. Pol the two commercial vehicles exceed the gross weight of two tonnes and need to be recognized by Special Provision. The parking on the Subject Property is compatible with the high traffic volumes and truck traffic along Sunset Road. The oversized lot and location abutting the operators’ residence is a convenient and safe way to operate the commercial vehicles and is appropriate for the lot.
FINDINGS AND ANALYSIS
44In determining this matter, the Tribunal has carefully considered all of the evidence including documents filed as well as the submissions of the parties, articulated by both sides. The Tribunal is satisfied based on the evidence accepts and adopts the land use planning evidence and expert opinion provided by Mr. Pol. The Tribunal is persuaded by the evidence that the proposal promotes good land use planning and is in the public interest and is satisfied that the application conforms to the COEP, OP and ZBL and is consistent with the PPS.
45Although the Tribunal heard from Ms. James who was forthright in her testimony, the Tribunal was not persuaded by and does not accept all of the land use opinion evidence. The Tribunal was not persuaded by her evidence that there were undue adverse impacts specifically related to safety and noise that could not be mitigated.
46The Tribunal finds there may be a minimal impact such as noise however, this impact can also be mitigated by buffering and screening through the building of a boundary fence between the properties.
47The Tribunal also notes no Township or County departments had comments recommending refusal of the application.
STORM WATER MANAGEMENT
48Ms. James acknowledges that Home Occupation is compatible with the use of an existing attached garage (workshop) to be used for maintenance and repairs of commercial motor vehicles driven by the owners is acceptable in the settlement area.
49One comment received from Staff was that they had no concerns with the application as long as lot grade changes do not alter the flow of water and direct more water to neighbouring properties or the road.
50In regard to parking of two commercial motor vehicles on the Subject Property the Tribunal noted the evidence of pooling of water on the side yard driveway. Photos of the Subject Property shows water pooling on the driveway and side driveway (Exhibit #1-tab 2b figure 4, tab 14 photo 5) on the Subject Property.
51However, as noted by Mr. Pol in which the Tribunal agrees, there will be no changes in drainage as the existing landscape strip can be modified to contain surface water and melt water from flowing onto the abutting property. There is sufficient landscape buffer strip between the neighbourhood dwelling to the south to create a swale to control and direct surface water to the rear of the property.
52Mr. Pol contends this potential adverse impact could also be mitigated through a storm water management plan subject to the Township’s approval.
SAFETY
53The evidence showed two primary concerns for safety. One concern was the ingress and egress of the commercial vehicles from the Subject Property. The neighbour made submissions to Council that this was a safety issue for residents, family and guests, from their own laneway, due to obstructed view of highway because of positioning of a commercial car carrier and commercial school bus regularly parked in the Applicants/Appellants laneway.
54Recreational use of the laneway for the family is also a concern, as in their view, visibility is compromised when the Applicant/Appellant’s are backing in quickly from a busy Sunset Road and may not see children playing between the laneways.
55Mr. Pol advised the traffic is not uncharacteristic of the neighbourhood. The movement of school buses and truck trailers along Sunset Road is a characteristic of the neighbourhood. The distance from the road right of way and the travelled portion of the road provides visibility along a flat straight section of Sunset Road.
56Mr. Pol advised approval of the ZBA will not change safety impacts because vehicles are travelling at low speeds when they are going to ingress or egress into the Subject Property.
57Mr. Pol advised the Applicant/Appellant is prepared to construct a boundary fence along the property line between the two dwellings which will reduce potential risks to people or children using the abutting driveway for recreation.
58Mr. Pol contends the parking of commercial vehicles, repair and maintenance began in 2012 and continued for 9.5 years without issue or complaint from any of the neighbours. In March 2022 the abutting property neighbour at 10191 Sunset Road complained to the Township about the truck and trailer which initiated a ZBLA.
59The Tribunal has noted that the Applicants/Appellants have been living and driving commercial vehicles on the Subject Property since 2012. Although the Tribunal somewhat agrees with Counsel for the Township that the length of time should not always be considered if a person is in violation of a ZBLA or any other provision, since neighbors’ find it difficult to complain especially if the complaint process is not anonymous. In addition, complaints can sometimes be made after several years due to some residents not knowing there is a specific ZBLA or even a violation of a ZBLA.
60In any event, Mr. Pol’s evidence advised that normally, the truck is located to the front of the workshop, while the trailer portion is located abutting the building. Photo evidence has shown that sometimes the truck is located closer to Sunset Road. However, the Tribunal finds the truck in this case is not sited to the extent the vehicle is obstructing the view of the Road from the neighboring driveway (Exhibit 1 Tab 14 Photo’s 2-3). The Tribunal understands in some cases obstruction of a view of a highway may occur, however, the driver exiting out of their driveway is equally responsible to exit safely.
61In this case, the Applicants/Appellants have been entering and exiting their commercial vehicles since 2012 onto and off Sunset Road. Evidence has shown Sunset Road is a flat surface and straight and the posted speed limit is 80 km/hr. Since it is a straight road, the Tribunal is persuaded by the evidence of Mr. Pol that the rate of movement of each vehicle is normally less than one trip per day and travelling at a slower pace to exit or stop and turn into the Subject Property.
62The Tribunal finds this may be considered normal flow of traffic whereby any vehicle that backs into a driveway. Although the size of the commercial vehicles are larger than regular personal vehicles and may have more difficulty backing into the driveway due to the length, the safety concern of visibility can be equally argued is with any vehicle and driver irregardless of the length of a vehicle.
63Mr. Pol’s evidence stated there have been no reports of unsafe operation of either the truck and trailer or school bus ingress or egress movements to the Site. Sunset Road at this location is flat with no visibility obstructions and safe sight lines in both directions.
64The Tribunal also notes there were no safety concerns raised by any of the commenting agencies or Participants. The Tribunal finds that the Appellant has produced minimal substantive evidence in regard to safety.
65The Tribunal agrees with Mr. Pol the oversized lot and location abutting the operators’ residence is a convenient and safe way to operate the commercial vehicles and is appropriate for the lot.
NOISE, ODOUR AND EMISSIONS
66In regard to noise, odour and emissions, Mr. Pol acknowledges normally with the workshop doors closed minimal noise and odour associated with repair and maintenance will be heard or smelled outside. During hot weather if the doors are open some noise and odour may escape out towards the road and abutting uses.
67Mr. Pol contends, which the Tribunal agrees with,, that any noise and odour impacts are assimilated by the noise, odour and traffic located 27.4 m north of the workshop on Sunset Road. The commercial vehicles do not operate daily for the entire year. Even while idling or the movement of commercial vehicles from the Subject Property, it is consistent with the existing and potential disruption created by traffic along Sunset Road which is designated a major arterial Road with a significant volume of vehicular and truck traffic and has an 80km/hr speed limit.
68The Tribunal notes that Mr. Pol did not take into consideration the daily vehicle inspections required for commercial vehicles from the Ministry of Transportation. However, Mr. Pol testified he did take into consideration the “warm up” period of starting these vehicles.
69Evidence has been submitted that noise, odour and dust also originate from farm equipment on the agricultural lands north of Sunset Road and from farm equipment using Sunset Road. In Mr. Pol’s opinion, the timing of these activities is based on optimal weather conditions and may create emissions any time of day or night, adding to the noise and odour impacts along Sunset Road. Any change in the noise and odour from the proposed commercial vehicles will be minor in nature and assimilated into the existing daily noise, odour and emissions created by traffic on Sunset Road and agricultural operations to the north.
70Although Mr. Pol advised the outdoor amenity area for 10191 Sunset Road (neighbor) is protected by the dwelling and the enjoyment of the rear yard amenity area is protected by the workshop since the existing landscaping in the side yard is separated by a 20 m distance to the proposed parking. The Tribunal notes taking the view that the quiet enjoyment of the neighboring property is protected by the workshop is somewhat debatable.
71The workshop was built in 2019 and Mr. Pol concedes in cross examination that the noise generated from the commercial truck parked beside it “reverberates” noise off the workshop to the neighbour’s dwelling at 10191 Sunset Road.
72However, the neighbour at 10191 Sunset Road also has an accessory structure with a parked recreational vehicle. Therefore, the Tribunal finds the outdoor amenity area for 10191 Sunset Road is protected by the dwelling; it is separated by a 20 m distance to the proposed parking area and the rear yard amenity spaces are buffered from noise and odour by the main and accessory buildings. The suggested construction of a boundary fence by the Applicant/Appellant along the property line between the two dwellings may also mitigate some noise.
73The Tribunal notes there was very little if any evidence of either a general nature or technical nature with completed studies for noise, odour or emissions.
74The Tribunal finds that the two commercial vehicles on the Subject Property will only represent a small percentage of noise in comparison with the traffic on Sunset Road.
MAINTAIN AND ENHANCE THE RESIDENTIAL CHARACTER
75Mr. Pol contends the proposed Home Occupation development conforms to the objective to maintain the character and identity of exiting residential areas. Evidence showed in the residential area, there are Special Provisions which permit commercial/ industrial uses in the Residential 1 (R1) Zone. Non-residential uses along Sunset Road included a motel, convenience store/ gas bar/ takeout restaurant and automobile repair establishment. Mr. Pol contends the land use character is residential and agricultural, with at least seven (7) commercial/ industrial uses in the area.
76The property on the North side of Sunset Road, across the street from the Subject Property is currently being used for agricultural purposes and is zoned Commercial/Industrial 1 (CM1).
77Ms. James notes that of the commercial uses identified by Mr. Pol, only one commercial use located at 10075 Sunset Road is legally zoned for commercial use. Two other properties have commercial uses that are not legally zoned for their uses and are over 300 m in distance from 10175 Sunset Road and were not part of the public meeting circulation which was for 120 m from the Subject Property and should not be considered.
78The Tribunal agrees with Counsel for the Township that the Tribunal can only consider uses compatible with an existing neighbourhood. Although on the North side of Sunset Road it is zoned CM1 and has the potential for future development. Evidence showed there were no current or future planning development applications. However, as Mr. Pol indicated, a transport terminal could be developed as of right.
79The Tribunal finds that parking two commercial vehicles on the Subject Property which the Applicants/Appellants have been doing since 2012, maintains the residential character. The Tribunal notes the significant residential setbacks from Sunset Road and other commercial uses on Sunset Road.
80Even though there are non-residential uses outside the 120 m zone for public notice circulation, taking into consideration the overall surrounding area of the North side of Sunset Road zoned for CM1, including the current agricultural use, the Tribunal is satisfied the proposed Home Occupation development conforms to the objective to maintain the character and identity of exiting residential areas.
81Section 5.2.2.3.3 of the OP states in particular ii, Home Occupations will not be permitted if they generate uncharacteristic traffic for a residential neighbourhood, or require outdoor storage of goods or materials, or will otherwise disrupt the peaceful and quiet enjoyment of other residential properties in the neighbourhood.
82Ms. James on cross examination testified she no longer took the position that provision 5.2.2.3.3. ii of the OP applies and did not contemplate it at that time of writing her witness statement and now has no opinion on this provision.
83Although Ms. James retracted this statement on provision ii of the OP, the Tribunal trusts Ms. James was truthful throughout her testimony and did not intend to mislead the Tribunal in any way.
84In regard to section 3.38(I)(ii) where vehicles including tractor trailers shall not be permitted in a residential zone where such motor vehicles exceed a gross weight of two tonnes, evidence presented was that the two commercial vehicles are 10 times what is permitted. The gross weight of the transport truck is 11.3 tonnes and the trailer is 8.6 tonnes.
85Mr. Pol acknowledges, and the Tribunal agrees, the two commercial vehicles exceed the gross weight of two tonnes and need to be recognized by Special Provision and is appropriate. The parking on the Subject Property is compatible with the oversized lot and location abutting the operators’ residence as a convenient and safe way to operate the commercial vehicles and is appropriate for the lot. In addition, the Tribunal finds it is compatible with the traffic volumes and truck traffic along Sunset Road.
86Although the Tribunal is not obligated to follow any previous precedents of Tribunal decisions, the Tribunal has considered the authorities submitted by the Township in an Ontario Municipal Board (OMB) decision in Kaile v. Caledon (Town) 2018. Even though it was for a minor variance, the facts of the case can be distinguished on the differing issues.
87In that case, the Applicant sought a minor variance to a ZBL to permit the parking of a commercial motor vehicle over 3,000 kilograms (“kg”) on property and sought permission to have a driveway widened. The Tribunal dismissed the appeal and refused the variance in respect of the commercial weight variance.
88Evidence in that case stated: “The Town is receiving complaints and inquiries about this form of parking, with complaints that some seem to be allowed to do this and not others.”
89In the present case, there has been no evidence of complaints and inquiries except one from the complainant and four Participants who supported the application. Regarding commercial weight variance which the ZBL allows for 3,000 kg or less, the evidence in that case noted the small-scale lots and Transportation & Infrastructure staff advised that the Road is restricted to commercial trucks unless for local delivery and did not support the application. Evidence in that case noted “that since it is not a trucking route, the road is not constructed to accommodate trucks of this nature. If this is permitted and there is an increase in these trucks in these locations it will impact the roads.”
90In the present case evidence has shown that Sunset Road is a major arterial road in the OP. The primary function is to transport large volumes of traffic between different areas of the Township. The Township encourages truck traffic along Arterial Roads through the OP. The Subject Property has good access to the 401 and 402 expressways and St. Thomas industrial areas. The 401 is approximately 7 km north of the Subject Property providing access for truck transport destinations in Ontario and the United States for vehicle shipping. Sunset Road has a significant volume of vehicular and truck traffic.
91Departmental Staff raised no objections to the present application based on weight, parking or undue adverse impacts on the road. In addition, the Subject Property is considered a large lot in this case, unlike the small-scale lot in the Kaile v. Caledon (Town) 2018 case.
92The Township counsel also highlighted Grignon v. Pickering (City) a 2021; a Ontario Land Tribunal (OLT) case in regard to a minor variance which was subsequently dismissed. The case can be distinguished from the present case in that height and length variance was sought.
93In that case Member Ng noted, “For the Appellant, specifically, no planning evidence was presented in respect of the Pine Grove Avenue neighbourhood area.” The present case is distinguishable in that there was ample planning evidence from a qualified expert in land use planning on the neighbourhood area.
94Another distinguishing fact is that in that case the Tribunal noted “The Appellant’s larger commercial vehicle was purchased for the ostensible purpose of expanding the home based “moving business”. In the present case the Applicant/Appellants have been parking their two commercial vehicles since 2012 and there was no evidence to suggest there were plans to expand the Home Occupation business.
95Finally, the cases can be distinguished on the fact regarding the possibility that the vegetative screens on both adjacent properties could subsequently be removed. The Tribunal noted in that case, “In that situation, the large commercial vehicle will have increased adverse impact on the adjacent properties and the streetscape.” In the present case it has been considered that a boundary fence could be constructed to mitigate some of the noise and safety concerns of residents and children.
96The Tribunal will not address the Town’s other authorities in detail, other than to note that they have not changed the Tribunal’s findings in this matter.
97The Tribunal notes the similar facts and issues in another OMB decision provided by the Applicant/Appellant in Neville v. Central Elgin (Municipality) 2017 CanLII 36189 involving a ZBLA application and a tow truck company. In this case the Board recognized two tow trucks that slightly exceeded the weight limit of the ZBA and the Board found it necessary for the ZBA weight limit to be increased.
98Although in that case the weight limit was slightly increased to 200 kg, in the present case there is a more substantial increase over the 2 tonne weight limit.
99As noted above, due to the oversized lot on the Subject Property and the compatibility with the traffic volumes and truck traffic along Sunset Road, the Tribunal is satisfied that a special provision for vehicle weight is similarly appropriate in this case and there will be no adverse impacts concerning weight of the commercial vehicles parking on the Subject Property.
CONCLUSION
100In making the above findings, pursuant to subsection 2.1 of the Planning Act, regard has been given to the decision of Council and the information considered by it in the course of making its decision. Upon the evidence, the Tribunal is satisfied that the concerns raised were given appropriate consideration.
101Regard has also been given to Participant Statements in the course of making its decision. All Statements were in support of the Applicants/ Appellants application. The Participant Statements can be summarized as they have never noticed or been disturbed with any noise or odour from either vehicle or rarely take notice of these vehicles coming or going as they were of very little disturbance. Both she and her husband back their vehicles into their driveways quickly with expert skills.
102Upon the evidence, the Tribunal is satisfied the ZBLA will not result in undue adverse impacts at the Subject Property or to the area in general.
ORDER
103THE TRIBUNAL ORDERS that the Appeal is allowed in part, and By-law No. 2011-14 is hereby amended in the manner set in Schedule 1 to this Order.
104The Tribunal may be spoken to concerning issues arising from the implementation of this Order.
“Eric S. Crowe”
ERIC S. CROWE 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.
SCHEDULE 1
By-Law No.2011-14, as amended, is further amended by amending Schedule ‘A’, Map 12, to change the zone symbol applying to lands legally described as Part of Lot C, Concession ENBTR, 10195 Sunset Road Talbotville, as shown on Schedule “A-1”, attached hereto and forming part of this By-law, from Residential 1 (R1) Zone to Residential 1 Special Provision 27 (R1-27):
Subsection 8.4 Special Provisions of the By-law is amended by adding the following new Clause as 8.4(aa):
(i) Additional Permitted Uses:
i. A Home Occupation permitting the maintenance and repair of a commercial motor vehicle in an existing attached garage (shop).
ii. The Home Occupation may occasionally emit noise and odour, and that repairs of a commercial motor vehicle shall be confined to an existing attached garage (shop).
iii. The parking of one (1) commercial tractor trailer not exceeding twenty (20) tonnes when unloaded and empty and one (1) commercial school bus shall be permitted on the driveway or in the existing garage (shop).
(ii) That Parking and Loading Space Regulations permit the following:
i. Parking Area shall not exceed 23% of the total lot area.
ii. Driveway width shall not exceed 16.1 m.