Walter v. Minden Hills (Township), 2024 CanLII 101447

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 07, 2024

CASE NO(S).: OLT-24-000130

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

Appellant: Township of Minden Hills

Applicant: Erika Walter

Subject: Minor Variance

Description: MV to facilitate the construction of a new two-storey 131 square meter dwelling with 24 square meters of attached decks.

Reference Number: PLMV2022072

Property Address: Part Lot 10, Concession A, Scotch Line Road East

Municipality: Township of Minden Hills

OLT Case No.: OLT-24-000130

OLT Case Name: Walter v. Minden Hills (Township)

Heard: April 10 and 18, 2024 by Video, Written Submissions by April 27, 2024

APPEARANCES:

Parties	Counsel
Erika Walter (“Applicant”)	J. Streisfeld
Township of Minden Hills (“Town”)	J. Ewart

DECISION DELIVERED BY A. SAUVE AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1This appeal was filed pursuant to s.45(12) of the Planning Act (“Act”), regarding a minor variance application (“MVA”). The Property is located in Part Lot 10, Concession A, Scotch Line Road East, known municipally as Roll Number 4646-033-000-52000 in the Township of Minden Hills (“Subject Property”). The Subject Property is approximately 0.18 hectares (0.44 acres) with a frontage of 33.5 meters (“m”) (110 feet) along Scotch Line Road East. The Subject Property is currently vacant, with the exception of an entrance and a septic system which were applied for and approved by the Town.

2As per the Towns Official Plan (“OP”), the Subject Property is within the Minden Settlement Area, is designated as Residential, and is within the Hazard Lands Overlay.

3As per the Towns Zoning By-law No. 06-10 (“ZBL”), the Subject Property is designated as ‘Rural (RU)’ and ‘Hazard Land (HZ)’. The Subject Property is bisected by the two designations. Historically, there had been a single-family home on the Subject Property, but it has since been demolished.

4The application is to permit the construction of a new one-storey 131 square meter (“m2”) dwelling with 24 m2 of attached decks. The proposed Minor Variance would provide relief from the Towns ZBL to permit:

1. A residential use within lands zoned Hazard Land (HZ), where residential use is otherwise not permitted.
2. A reduced eastern interior side lot line setback of 12.2 m for the dwelling and a reduced western interior side lot line setback of 11.6 m for the dwelling and 8.5 m for the attached deck, where interior side lot line setbacks of 15 m are otherwise required.
3. Development on an existing undersized lot, where additional relief from the ZBL is required.

5A planning report was created by Town staff and dated September 25, 2023, which recommended the Application be denied as it did not appear to meet the four tests.

6However, the Committee of Adjustment (“COA”) approved the application with conditions on September 25, 2023. The conditions are as follows:

1. That approval of the minor variances shall only relate to the construction of the proposed dwelling, together with the proposed attached decks, the construction of which shall comply with all other applicable law;
2. That construction shall proceed substantially in accordance with the plans received by the Township on July 15, 2022, revised via email June 20, 2023, put before the Committee on September 25, 2023, and forming part of this Decision;
3. That a complete application for a building permit be applied for within 24 months of this Application following submission to the building department of the appropriate application, fees and any supporting information as deemed to be required by the Chief Building Official;
4. That prior to the issuance of a building permit, the Applicant submits a detailed topographic survey and engineered lot grading plan, to the satisfaction of the Township. The plan shall be prepared as outlined in the peer review letter prepared by Tatham Engineering dated July 21, 2023;
5. That prior to the issuance of a building permit, the Applicant enters into a development agreement with the Township to implement the development recommendations as outlined in the site suitability report completed by Duke Engineering dated June 6, 2023; and
6. That failing any part of the foregoing conditions, this application shall be deemed to be refused.

7The Town is appealing the approval of the application by the COA. The Town argues that, first, the Application fails several parts of the test by failing to maintain the intent and purpose of the ZBL, the Application does not represent appropriate development of the land and that the Application is not minor. The second argument of the Town is that the variances would allow for a residential use in the Hazard Lands, which is not a permitted use, and a Zoning By-law Amendment (“ZBLA”) is needed not just an MVA.

8The Applicants believe that the Application does meet the legislative test and, with respect to whether a ZBLA is necessary, rely on s. 1.14 of the ZBL which states:

TECHNICAL REVISIONS TO THE ZONING BY-LAW: Provided that the purpose and effect of this By-law is unaffected, the following technical revisions to this By-law shall be permitted without a Zoning By-law Amendment:

1.14.1 Correction to grammatical, mathematical, boundary or other such errors including minor technical revisions to the mapping consistent with the intent of this By-law and the Town's Official Plan; [emphasis added]

1.14.2 Changes to the numbering of sections, the numbering contained in the cross referencing of sections, and the format and arrangement of the text, tables, schedules and maps, and the numbering of pages;

1.14.3 Corrections or revisions to the technical information contained on maps, such as the title blocks and legend;

1.14.4 Changes to headings, indices, table of contents, illustrations, page numbering, footers and headers, or preamble which do not form a part of this By-law and are editorially inserted for convenience or reference only. [emphasis added]

9The Applicant’s position regarding this argument is that the HZ designation was done in error, as no hazard exists on this land and a boundary adjustment to remove the section of the Subject Property out of the HZ zone and place the entire property within the RU zone is specifically what s. 1.14 of the ZBL was intended to achieve.

10The Town asserts that s. 1.14 of the ZBL is an administrative tool which allows for corrections to the ZBL by delegated staff. Also, the COA has no authority to amend a ZBL to allow for the introduction of a new use in a zone category otherwise prohibited.

EVIDENCE AND ANLAYSIS

11The Tribunal heard from four witnesses over the course of the Hearing:

1. Erika Walter – Witness for Applicant – Submitted to the Tribunal several photographs of the Subject Property that were made exhibits at the Hearing.
2. Alex Cook – Witness for Applicant – Provided expert opinion evidence in the field of Civil Engineering - Site Suitability for Residential Property.
3. Melissa Markham – Witness for Applicant – Provided expert opinion evidence in the field of Land Use Planning.
4. Darryl Tighe – Witness for Town – Provided expert opinion evidence in the field of Land Use Planning.

12The following were made exhibits at the Hearing:

1. Document Book
2. Visual Evidence Book
3. Municipal Record
4. Photograph 1000016524 4 b. Photograph 1000016527 4 c. Photograph 1000016529 4 d. Photograph 1000016533 4 e. Photograph 1000016536 5 a. CV of Alex Cook 5 b. Acknowledgement of Expert Duty – Alex Cook 6 a. CV of Melissa Markham 6 b. Acknowledgement of Expert Duty – Melissa Markham
5. Certified Copy of ZBL

13The Tribunal, in carrying out their responsibilities, shall have regard to, among other matters, matters of provincial interest as set out in s.2 of the Planning Act. When making a decision relating to a planning matter, the Tribunal shall have regard to any decision made by a municipal council or approval authority and any information and material considered by a council or approval authority in making the decision as set out in s. 2.1 (1) of the Act. A Decision of the Tribunal in respect of any authority that affects a planning matter, shall be consistent with the Provincial Policy Statement, 2020 (“PPS”).

14An appeal to the Tribunal pursuant to s. 45 of the Planning Act is a hearing de novo. The Tribunal may authorize such minor variances from the provisions of the by-law as in its opinion meets each of the tests set out in s. 45(1) of the Act. The four tests under s. 45(1) of the Act require the applicant to satisfy the Tribunal that each variance:

1. maintains the general intent and purpose of the official plan,
2. maintains the general intent and purpose of the zoning by-law,
3. is desirable for the appropriate development or use of the land building or structure; and,
4. is minor.

15The preliminary issue for the Tribunal is whether the boundary adjustment can be made so that the Subject Property is wholly in the RU zone. The witnesses agree that the proposed development cannot occur solely on the part of the Subject Property that is currently in the RU zone. If the Tribunal finds that the requested boundary adjustment is not allowed, than the appeal must be successful as the Minor Variance approved by the COA would allow development in an HZ zone which is prohibited.

16The Applicant is asking the Tribunal to, first, find that s. 1.14 of the ZBL allows for the requested boundary adjustment and, second, that the requested boundary adjustment should be granted as there is no hazard on the land and the HZ zone is incorrect.

17The case law provided by the Parties confirm that the Tribunal does not have the authority on a MVA Appeal to amend a ZBL to allow for the introduction of a new use in a zone category which is otherwise not permitted. A ZBLA is needed for the introduction of a new use in a zone category. However, none of the case law provided included a ZBL with the same language regarding Technical Revisions as seen in s. 1.14 of the ZBL.

18In regard to statutory interpretation, the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 SCR 27 highlights an important aspect regarding interpretation. In Rizzo, the Judge found that the interpreter’s task in statutory interpretation is to discern the legislature’s intention in order to give effect to it, and therefore the interpreter must attend to text, context and purpose.

19The ZBL allows for technical revisions to boundaries without the need for a ZBLA. However, this raises two questions; One, is what is being asked for a technical revision? Two, is the technical revision to the boundary that is being sought consistent with the intent of the ZBA and the Town’s OP as is required by s. 1.14.1?

20Section 1.14.4, when discussing the allowed changes to headings, illustrations, page numbering, etc.…, uses the language “…which do not form a part of this By-law and are editorially inserted for convenience of reference only.” This language leads the Tribunal to conclude that the changes contemplated by the Municipality in s. 1.14 are to correct typos and other human type errors that will not affect the overall intent of the ZBL.

21The Tribunal finds that the boundary adjustment that the Applicant is requesting is not ‘technical revision’ as contemplated in s. 1.14. The wording used in that section refers to grammar, numbering, title blocks and legends on maps, etc.… Inconsequential changes. The scope of the boundary adjustment being requested is greater than a ‘technical revision’. It would change the types of uses allowed on the whole of the Subject Property.

22The Tribunal accepts the uncontroverted evidence of Mr. Cook that the Subject Property is developable. The Tribunal accepts the uncontroverted evidence of Mr. Cook that there is no hazard on the Subject Property. The Tribunal accepts the evidence of all of the witnesses, including Mr. Tighes, that there is a mapping error in the ZBL regarding the Subject Property. However, the Tribunal finds that the wording in s. 1.14 of the ZBL prohibits a boundary adjustment that is more than something inconsequential. The Tribunal finds that the boundary adjustment needed for the application to be granted is not inconsequential.

DISPOSITION

23Based on the findings above, the application cannot be granted without a ZBLA. Therefore, the application fails the legislative test as it does not maintain the general intent and purpose of the ZBL.

24THE TRIBUNAL ORDERS THAT the appeal is allowed and the variances to Zoning By-law No. 06-10 are not authorized.

“A. Sauve”

A. Sauve

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.