Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 27, 2023
CASE NO(S).: OLT-22-004835
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Jeff Reia and Crystal Reia
Subject: Zoning By-law Amendment Application – refusal
Description: To permit construction of an addition to the existing single detached dwelling, a private garage and an additional residential unit, and to permit mooring of boats along Kettle Creek and operate a Sea-Doo rental business on the property
Reference Number: PS2-06-21
Property Address: 250 Colborne Street, Port Stanley
Municipality/Upper Tier: Central Elgin/County of Elgin
OLT Case No.: OLT-22-004835
OLT Lead Case No.: OLT-22-004835
OLT Case Name: Reia v. Central Elgin (Municipality)
Heard: August 3, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Jeff and Crystal Reia | Kim Mullin Bogdan Artus |
| Municipality of Central Elgin | Analee Baroudi |
DECISION DELIVERED BY S. DIXON AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1This Decision and Order arises from an appeal filed by Jeff and Crystal Reia (“Appellant”) pursuant to section 34(11) of the Planning Act, R.S.O. 1990, c. P.13 (“Act”), concerning Zoning By-law Amendment application PS2-06-21 (“ZBA”) in the Municipality of Central Elgin (“Municipality”) for lands known municipally as 250 Colborne Street (“Subject Lands”).
2The ZBA seeks to amend the Village of Port Stanley Zoning By-law 1507 to permit the construction of an addition to an existing single detached dwelling for the purposes of accommodating additional living space, a private garage, and an additional residential unit on the Subject Lands, which are owned by the Appellant. The ZBA also seeks to permit the mooring of boats along Kettle Creek at the rear of the Subject Lands.
3The ZBA was refused by the Municipality on the basis that it did not conform with the Municipal Official Plan (“MOP”).
PROCEDURAL MATTERS
4The Tribunal was in receipt of an Affidavit of Service sworn by Ievgeniia Bashura on June 12, 2023 (marked as Exhibit 1) for the service of notice by ordinary mail, and an Affidavit of Service sworn by Daniela La Gamba on June 12, 2023 (marked as Exhibit 2) for the service of notice by e-mail. The Parties had no concerns with the service of notice for the Hearing.
5No additional persons attended the Hearing to request Party or Participant Status.
SETTLEMENT
6The Parties reached a settlement prior to the Hearing and Minutes of Settlement were executed by the Parties on June 23, 2023. The settlement revises the ZBA (“Revised ZBA”) so that it meets the intent of the MOP.
7Ms. Baroudi, counsel for the Municipality, submitted that as part of the settlement, the Parties agree that development on the Subject Lands will proceed substantially in accordance with the Concept Plan attached as Schedule B to the Minutes of Settlement. For reference purposes, the Concept Plan is attached to this Order as Schedule 2.
8In support of the settlement, the Tribunal was in receipt of a sworn Affidavit from Ted Halwa (retained by the Appellant), which was marked as Exhibit 3. Mr. Halwa is a Registered Professional Planner and has been practising land use planning since 1972. He has been qualified by the Tribunal to provide expert opinion evidence on matters pertaining to land use planning on numerous occasions.
9At the Hearing, Mr. Halwa provided oral evidence with reference to Exhibit 3, including an overview of the site and area context, the proposed development facilitated by the Revised ZBA, his planning analysis, and his summary recommendations.
SITE AND AREA CONTEXT
10The Subject Lands are in the Village of Port Stanley (“Village”) within the Municipality. They front onto the west side of Colborne Street, just north of the Village core on the east side of Kettle Creek, which meanders through the Village.
11The Subject Lands have an area of 3,237 square metres (“m2”) and a frontage of 40.2 metres. A significant portion of the Subject Lands (1,857 m2) are under the waters of Kettle Creek and are separated from the land portion (1,320 m2) by a metal retaining wall.
12To the south and abutting the Subject Lands is a commercial marina, the owners of which also own and operate four boat docks to the north of the Subject Lands. To the east, a number of single detached dwellings and a boat storage yard front the opposite side of Colborne Street. To the west, a marina occupies the opposite side of Kettle Creek.
PLANNING ANALYSIS
13In Mr. Halwa’s opinion, the Revised ZBA has due regard for the matters of provincial interest set out in s. 2 of the Act, and in particular matter 2(c) on the conservation and management of natural resources; 2(o) on the protection of public health and safety; and 2(p) on the appropriate location of growth and development.
14Mr. Halwa proffered that the presence of Kettle Creek requires consideration of the Natural Hazard policies of the Provincial Policy Statement, 2020 (“PPS”). Specifically, Policy 3.1.1 states that development shall generally be directed to areas outside of hazardous lands adjacent to river systems which are impacted by flooding hazards and/or erosion hazards.
15In consideration of the above, Mr. Halwa proffered that development in the Municipality is governed by the “two zone concept”, as set out in the MOP. He directed the Tribunal to Policy 3.1.6 of the PPS, which states the following:
Where the two zone concept for flood plains is applied, development and site alteration may be permitted in the flood fringe, subject to appropriate floodproofing to the flooding hazard elevation or another flooding hazard standard approved by the Minister of Natural Resources and Forestry.
16Policy 3.1.7 of the PPS further provides that development and site alteration may be permitted in those portions of hazardous lands and hazardous sites where the effects and risk to public safety are minor, could be mitigated in accordance with provincial standards, and where certain conditions are satisfied.
17Mr. Halwa proffered that the Kettle Creek Conservation Authority has reviewed the Concept Plan and proposed flood proofing measures, and has acknowledged it is satisfied with same for the purpose of the Revised ZBA. It is therefore Mr. Halwa’s opinion that the Revised ZBA is consistent with the PPS.
18In consideration of the County of Elgin Official Plan (“COP”) and the MOP, Mr. Halwa proffered that residential uses, including a range of dwelling types, are permitted on the Subject Lands. He further proffered that, under the MOP, the use of any property that abuts Kettle Creek may provide docking facilities for boats and other watercraft for personal gain, subject to certain conditions being met. It is accordingly Mr. Halwa’s opinion that the Revised ZBA conforms with the COP and MOP.
19Finally, Mr. Halwa provided the Tribunal with a detailed account of the proposed Zoning By-law revisions which, he proffered, have the effect of permitting the proposed addition, the proposed additional dwelling unit, and a marina facility having a maximum of two docks for commercial purposes, by:
a) Rezoning the Subject Lands from Business Zone 1 (B1) to Residential Zone 1 (R1) to achieve conformity with the MOP;
b) Increasing the maximum lot coverage from 25 per cent to 30 per cent, which in his opinion is both reasonable and routinely granted by the Municipality; and
c) Reducing the front and side yard setbacks for new and existing buildings on the Subject Lands to both recognise existing permissions granted through a previous minor variance and to ensure the dwelling is above the Kettle Creek flood line.
20In Mr. Halwa’s opinion, the Revised ZBA represents good land use planning.
FINDINGS
21Based on the foregoing uncontroverted expert opinion evidence of Mr. Halwa, the Tribunal finds that the Revised ZBA has appropriate regard for matters of provincial interest, is consistent with the PPS, conforms with the COP and MOP, and represents good planning.
22In accordance with the above, the Tribunal approved the Revised ZBA in principle at the Hearing and issued an Interim Oral Decision, noting that the final approval would be withheld pending delivery of the final Revised ZBA to the Tribunal by no later than August 18, 2023. As directed, the Parties subsequently provided the Tribunal with the Revised ZBA in its final form, which the Tribunal hereby approves as follows.
ORDER
23THE TRIBUNAL ORDERS that the appeal is allowed in part and the Village of Port Stanley Zoning By-law 1507 of the Municipality of Central Elgin is hereby amended as set out in Schedule 1 to this Order.
“S. Dixon”
S. DIXON
MEMBER
Ontario Land Tribunal
Website: www.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
2d