Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 03, 2023
CASE NO(S).: OLT-23-000400
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Patric Wolff
Subject: Minor Variance
Description: To allow the construction of a main dwelling
Reference Number: A04-23
Property Address: 133 Rattlebear Drive
Municipality/Upper Tier: The Archipelago/Parry Sound
OLT Case No.: OLT-23-000400
OLT Lead Case No.: OLT-23-000400
OLT Case Name: Wolff v. The Archipelago (Township)
Heard: September 8, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Patric Wolff | M. Kemerer |
MEMORANDUM OF ORAL DECISION DELIVERED BY P. tomilin ON September 8, 2023 AND ORDER OF THE TRIBUNAL
Link to the Order
INTRODUCTION
1The matter before the Tribunal is an appeal filed by Patric Wolff (“Appellant”) against the decision of the Township of The Archipelago (“Township”) Committee of Adjustment (“COA”) to deny a Minor Variance (“MV”) Application from provisions of Zoning By-law No. A2000-07 (“ZBL”), as amended, concerning 133 Rattlebear Drive (“subject property” / “Site”).
2The Planning Report recommended the approval of the Application.
3The subject property is located in Sturgeon Bay, in the north part of the Township. It has 67 metres (“m”) of frontage and is 0.782 hectares (“ha”) (1.93 acres (“ac”)) in size. The Site legally described as Part Lot 36, Part 3 of Plan 42R-7677 and Part 3 of Plan 42R-9348 (shore road allowance).
4The Site is designated as Rural lands and is zoned Coastal Residential (CR).
STATUS REQUEST
5Prior to the hearing, the Tribunal received a Party status request from Rhonda Campbell Moon. The Tribunal questioned whether Ms. Campbell Moon is intending to call any expert witnesses to testify at the hearing. Ms. Campbell Moon stated that she would not have any expert witnesses at the hearing.
6The role of a Party, at the appeal, is to fully engage in the hearing process– more specifically, to support the issues raised by them with expert planning or technical evidence. Given that Ms. Campbell Moon was not calling any witnesses or proffering expert evidence, the request for the Party Status was denied. Instead, the Tribunal granted Ms. Campbell Moon Participant Status and will consider the issues and concerns raised by her when making a decision.
PRELIMINARY MATTER
7On August 16, 2023, the Tribunal received communication from the Township informing the Tribunal that the Township does not oppose the Appeal and would not be attending the hearing.
LEGISLATIVE FRAMEWORK
8An appeal pursuant to s. 45 of the Planning Act (“Act”) is a hearing de novo and the Applicant bears the onus of demonstrating that the four tests as set out in s. 45(1) have been met, namely that the requested variance:
a) maintains the general intent and purpose of the Official Plan (“OP”);
b) maintains the general intent and purpose of the ZBL;
c) is desirable for the appropriate development or use of the land, building or structure; and,
d) is minor in nature.
THE REQUESTED VARIANCE
9The Appellant is seeking relief from s. 6.1.3 (h) maximum height of the Township's ZBL to permit a variance of 1.5 m for a total of 7.5 m, whereas 6 m is the allowed maximum height.
HEARING
10John Jackson, a Registered Professional Planner, appeared on behalf of the Appellant. After a review of Mr. Jackson’s professional qualifications, his Curriculum Vitae and confirmation of his Acknowledgment of Expert Duty, the Tribunal qualified Mr. Jackson to provide expert opinion testimony in the area of land use planning. Mr. Jackson has 45 years of experience in land use planning and has been a Township’s consultant for land use purposes for 25 years. He has also been a resident of The Archipelago for 40 years.
11Mr. Jackson proffered that the Appellant is seeking to build a one-storey detached dwelling on a vacant lot that already contains a dock and has a septic system in place. A trailer has been placed on the subject property until construction is complete. The Site has a number of constraints relating to geotechnical conditions of soils and low relief. He proffered that the subject property was carefully examined to determine the most appropriate development approach. It was determined that the most suitable site on the parcel for building is on exposed bedrock near the shoreline.
12Mr. Jackson stated that the single-storey dwelling will include a crawl space for utilities, have a footprint of 2,460 square feet (“ft2”) and will be 7.5 m in height. The detached garage is 1,200 ft2 for a total lot coverage of 3,660 ft2.
13Mr. Jackson confirmed that the subject property is identified as Rural lands and the application is consistent with the Provincial Policy Statement 2020. In his view, the requested variance maintains the provincial interest as set out in s. 2 of the Act.
14Mr. Jackson explained that, at the development plan preparation phase and during the discussions with the Township building department, it was determined that the maximum allowable height of 6 m is not sufficient for the design of a one-storey cottage and preserving its ability to achieve gravity flow to the septic system.
15Mr. Jackson communicated to the Tribunal that the goal of the Township Official Plan (“TOP”) is to preserve the high quality of the environment and to minimize the obtrusiveness of buildings and structures. He brought to the attention of the Tribunal that there are a number of policies in the TOP intended to preserve the aesthetics of the Township’s neighbourhoods, such as Policy s. 14.6, 14.15, 14.23, 14.24 and 14.25. Section 14.28 allows increases in the allowable height limits.
16Section 14.28 states:
“Proposals to change the allowable height set out in the Zoning By-law on lands affected by the greater height restriction, will be primarily assessed from the water, in the case of mainland properties, and from all exposed directions from the water, in the case of islands and peninsulas; this will include an assessment of:
a) the anticipated impacts on neighbours as a result of the proposed increase in size or height;
b) the degree by which areas of natural vegetation help to buffer the building in the proposed location;
c) the nature of the relief being requested; e.g., is other relief being sought or is the proposed height within or does it exceed the former 9 metre height restriction;
d) the need for the increase in terms of whether there is any reasonable alternative construction;
e) the degree of hardship created by the greater height restrictions; and
f) detailed drawings showing plan, elevation and cross-sectional views depicting:
I. how the building will relate to the exterior areas of the lot or island;
II. the areas of natural vegetation that are to be protected; and;
III. any proposed changes in grading or alteration in elevation or contour of the land, including the predevelopment grade, if the final grade is to be altered.”
17Mr. Jackson provided an explanation that prior to 2000 the height limit for all residential zones was 9 m.
18The Appellant is seeking to build a one-storey detached dwelling on a vacant lot that already has a dock and a septic system in place. The Site has a number of constraints relating to geotechnical conditions of soils and low relief. The Township decided to preserve a uniform regulation so that all residential lands and islands would be restricted to the 6 m height restriction unless individual applications were made for specific properties. As a result, the policies for height exceptions were provided in s. 14.28.
19Mr. Jackson assessed the criteria in s. 14.28 and determined that a modest 1.5 m MV request would have no impact on neighbouring properties, as adequate vegetation will buffer the development.
20The Tribunal agrees with Mr. Jackson that the MV conforms to the policies of the TOP.
21The Site is zoned Coastal Residential (CR). It allows a maximum lot coverage of 4,036 ft2 and a height of 6 m.
22It is Mr. Jackson’s opinion that the proposed modest increase in height would not create any adverse impacts on the surrounding properties. He concluded that the requested variance maintains the general intent and purpose of the ZBL.
23In Mr. Jackson’s view, the proposed development is desirable, as it would provide the Appellant with a place to retire.
24Mr. Jackson proffered that the additional 1.5 m increase in height will be almost imperceptible to neighbours and is both reasonable and necessary for the construction of a single-storey dwelling.
25In conclusion, Mr. Jackson stated:
“The submissions by neighbours to the proposed variance did not express any meaningful planning concerns. The concerns seemed to be directed at construction impacts where the owners have indicated their willingness to ensure to take care to avoid conflicts or be responsible for repairing any damage. The applicant worked closely with the Township, contractors, and neighbours to achieve a program that is reasonable and acceptable to everyone’s benefit.”
ANALYSIS AND FINDINGS
26The Tribunal is satisfied that the application meets the criteria of the tests set out at s. 45(1) of the Act. The MV can be implemented without any adverse impact on the neighbouring properties.
CONCLUSION
27In making its Decision, the Tribunal has taken into consideration the Municipal Records, the Town staff Planning Report, considered the concerns of Ms. Campbell Moon and has accepted the uncontested land use planning opinion evidence of Mr. Jackson. Based on the planning evidence presented by Mr. Jackson, the Tribunal finds that the requested variance is desirable for the appropriate development of the subject property, is minor in nature, will not have undue impacts on the surrounding properties and meets all four of the tests under s. 45(1) of the Act.
ORDER
28THE TRIBUNAL ORDERS that the appeal is allowed and the variance to Zoning By-law No. A2000-07 is authorized.
“P. Tomilin”
P. tomilin
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.