Frank and Fatime Sherifi v. Municipality of Central Elgin, 2024 CanLII 102764

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 16, 2024

CASE NO(S).: OLT-24-000466

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

Applicant/Appellant: Frank and Fatime Sherifi

Subject: Minor Variance - Refusal

Description: To permit the construction of a two-storey detached residential dwelling

Reference Number: COA 03/24

Property Address: 205 McClary Avenue

Municipality/UT: Central Elgin/Elgin Co

OLT Case No.: OLT-24-000466

OLT Case Name: Frank and Fatime Sherifi v. Municipality of Central Elgin

Heard: October 2, 2024, by Video Hearing

APPEARANCES:

Parties

Counsel

Frank and Fatime Sherifi

A. Ciccone

Municipality of Central Elgin

A. Baroudi

MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN T. MASTORAS ON October 2, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is a de novo Hearing relating to an Appeal under s. 45(12) of the Planning Act (“Act”) from a decision by the Committee of Adjustment (“COA”), in the Municipality of Central Elgin (“Municipality”), and in the Village of Port Stanley (“Village”), for refusing to permit a Minor Variance Application (“MVA”) seeking several variances. The property in question is municipally known as 205 McClary Avenue (“Subject Site”).

2The Appeal was filed by Frank and Fatime Sherifi (“Applicants” / “Appellants”). Proper Notice of Hearing was issued by the Tribunal on September 26, 2024, with a typographical error corrected and circulated on September 26, 2024.

3For reasons that follow in this Decision, the Tribunal allowed the MVA, subject to the recommended conditions from Municipal Planning Staff, which are contained in the Order below.

PRELIMINARY ISSUES

4There were no written Status requests, and Counsel for the Municipality advised the Tribunal that they were not given any specific instructions by the Municipal Council, other than to be present for the Hearing, with the likelihood that there may be some need to cross examine witness testimony, and to assist the Tribunal in its consideration of the matter.

THE APPEAL

5The Appellants are seeking permission to construct a new, two-storey, detached residential dwelling, with accessory buildings, and are pursuing relief from the Municipality’s By-law No. 1507 (“ZBL”) with the following five (5) Variances:

a) To permit a minimum lot depth of 90ft (27.432m), whereas a minimum lot depth of 100ft (30.38m) is permitted (existing condition);

b) To permit a maximum total lot coverage of 40%, whereas a maximum total lot coverage of 33% is permitted;

c) To permit a minimum front yard setback of 19.68ft (6.0m), whereas a minimum front yard setback of 25ft (7.62m) is permitted;

d) To permit a northerly interior side yard setback of 3.96ft (1.2m), whereas a minimum interior side yard setback of 6ft (1.8m) is permitted; and,

e) To permit a minimum rear yard setback of 19.68ft (6.0m), whereas a minimum rear yard setback equal to the height of the main building is permitted (together referred to as “Variances”).

LEGISLATIVE FRAMEWORK

6An appeal pursuant to s. 45(12) of the Act is a hearing de novo. The Appellants bear the onus of demonstrating that the four tests as set out in s. 45(1) have been met, namely that the requested Variances:

1. Maintain the general intent and purpose of the Official Plan (“OP”);

2. Maintain the general intent and purpose of the Zoning By-law (“ZBL");

3. Are desirable for the appropriate development or use of the land, building or structure; and,

4. Are minor in nature.

7In addition, s. 3(5) of the Act requires the Tribunal’s Decision to be consistent with the Provincial Policy Statement 2020 (“PPS”) and must also have regard to the matters of Provincial interest as set out in s. 2 of the Act, as well as, for the decision of the COA (comprised entirely of Municipal Council) and the information considered while making its decision, as set out in s. 2.1(1) of the Act.

EXHIBITS

8The following Exhibits were confirmed at the beginning of the Hearing:

1. Document Book (Appellants);

2. Witness Statement from Taylor Whitney, dated September 20, 2024 (Appellants);

3. Evidence Outline from James McCoomb, (under Summons), dated September 24, 2025;

4. Visual Evidence (Appellants); and,

5. Aerial Photo with Addresses (Appellants).

SUBJECT SITE AND SURROUNDING AREA

9The Subject Site is presently vacant, in close proximity to the shoreline along Lake Erie, and is generally rectangular in shape, with an existing concrete shoreline retaining wall at the southerly end of the property. It has an area of 1,337.80 square metres (“m²”) maintaining a lot frontage of 48.77 metres (“m”) along McClary Avenue, and a lot depth of 27.43 m. It is located in a low-density residential area as designated in the OP, consisting of a neighbourhood with a variety of older architectural designs, some newly constructed dwellings, and will require some related roadway alterations/modifications providing parking access.

10The Subject Site is also within the jurisdiction of the Kettle Creek Conservation Area (“KCCA”), which governs the Designated Erosion Hazard Limits, among other natural heritage elements.

11The Tribunal noted that there were no written requests for Status and a number of observers were present for the Hearing. The Appellant Document Book contained correspondence and public submissions from area residents, expressing concerns with the Application (Exhibit 1 - TAB 8). These concerns were presented to the COA in March 2024, and reviewed for the purposes of this Hearing.

PLANNING EVIDENCE

12Taylor Whitney appeared before the Tribunal and was duly qualified to provided expert opinion evidence in the area of land use planning on behalf of the Appellants. Ms. Whitney has maintained carriage of the matter since August 2024, and noted that she did not appear at the COA in March 2024.

13James McCoomb also appeared under Summons and was duly qualified to provide expert opinion evidence in the area of land use planning, is the Manager of Planning Services in the City of St. Thomas.

14Mr. McCoomb advised the Tribunal that in his role with St. Thomas, he maintains oversight of planning applications that are submitted in the Municipality and clarified that the Planning Staff Report (“PSR”) presented to the COA, was prepared by Steven Craig, and subsequently reviewed and authorized by Mr. McCoomb. The PSR was dated and presented to the COA at its meeting on March 25, 2024. The PSR recommended approval of the MVA with the following conditions:

1. The Applicants must provide a minimum of two (2) off-street parking spaces located in the front yard, and the completion of any improvements to the McClary Avenue right-of-way (“ROW”), to the satisfaction of the Municipality of Central Elgin; and,

2. The Applicants must obtain the necessary permit from the Kettle Creek Conservation Area (“KCCA”).

15In her Witness Statement, Ms. Whitney outlined characteristics of the Subject Site in greater detail as follows:

a) It is within the “Urban Settlement Area” land use designation according to ‘Schedule “A” – Land Use Plan’ of the Municipality of Central Elgin Official Plan (the “OP”), and is further within the “Residential” land use designation according to ‘Schedule “G” – Community of Port Stanley’’ within the OP. The Residential land use designation permits a range of residential dwelling types and densities, including single detached dwellings (Section 4.3.1(a)) of the OP.

b) It is also within the “Shoreline Erosion Hazard Limit” and partly within the “Natural Hazard” overlay, according to Section 3.2.4 and 3.2.1 of the OP. The Kettle Creek Conservation Authority (“KCCA”) has been delegated responsibility by the Province for the Shoreline Erosion Hazard Limit and Natural Hazard policies of the OP.

c) It maintains a split-zoned “Residential Zone 1 (R1)” and “Open Space Zone 3 (OS3)” according to ‘Map 4’ of the Village of Port Stanley Zoning By-law, with the majority of the Subject Site being within the R1 zoned area, and only the southerly portion of the subject lands proximate to the Lake Erie shoreline being within the OS3 zoned area. The R1 zone permits single detached dwellings and accessory buildings. The proposed building envelope area, subject of the MVA, is fully within the R1.

16Mr. McCoomb provided testimony that the Subject Site was an existing lot of record, dating back to 1911, and that the Application was seeking relief from standard ZBL provisions, that include all of the buildable components of the dwelling through the Variances, which were clearly supported in the PSR.

THE PPS AND SECTION 2 OF THE ACT

17Both Ms. Whitney and Mr. McCoomb testified that the Variances are consistent with the PPS, with particular regard for the promotion of: efficient use of land resources; existing infrastructure (both servicing and transportation); land use compatibility; and new housing.

18Furthermore, both witnesses asserted that the Variances maintain, protect, and preserve natural features, all within an established, built-up area of the Village, also maintaining respect for an appropriate erosion hazard shoreline setback.

19Ms. Whitney noted the KCCA’s comments regarding the PPS (Exhibit 1, pg.19), whereby it references the need for the following conditions of approval:

1. KCCA’s recent Permit for shoreline protection works established an erosion hazard limit of 21 m from the toe of the shoreline slope based on the review and acceptance of the following technical assessments:

i. Coastal Analysis and Seawall Design for 205 McClary Avenue, Port Stanley, Ontario (AHYDTECH Geomorphic Ltd., October 2023)

ii. Geotechnical Slope Assessment, 205 McClary Avenue, Port Stanley, Ontario (MTE Consultants, November 7, 2023)

2. KCCA staff have no objection to the [MVA] as long as the established 21 m erosion hazard limit as defined by the above noted technical assessment is maintained;

3. A subsequent permit will be required from KCCA un O.Reg.41/24 prior to any additional development or alteration activities upon the property.

20Both witnesses also shared the opinion that the Variances have regard for s. 2 of the Act, with emphasis on the following areas of provincial interest:

(f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems;

(h) the orderly development of safe and healthy communities;

(j) the adequate provision of a full range of housing, including affordable housing;

(o) the protection of public health and safety; [and],

(p) the appropriate location of growth and development;

THE FOUR TESTS

Do the Variances Maintain the General Intent and Purpose of the Official Plan?

21Ms. Whitney generally outlined that the OP allows for a range of residential dwelling types and densities and noted the following interpretation of this first test:

a) The use is permitted, and represents a density of 13 units per net hectare (“UPH”), whereas 22 UPH is the permitted density;

b) The KCCA confirmed a minimum shoreline setback of 21 m was acceptable, based on analysis completed in October 2023 through Coastal and Geotechnical studies provided; and,

c) The design is contextually acceptable and “in-keeping with the existing neighbourhood character.”

22Furthermore, regarding this first test, the Tribunal noted that the PSR contained the recommendation that:

• “Subject to the applicant obtaining the necessary permit from KCCA, the proposed variances may be considered to be in conformity with the general intent of the OP”

Do the Variances Maintain the General Intent and Purpose of the Zoning By-Law?

23Both witnesses confirmed that the Variances achieve the Municipality’s ZBL objectives which is within the R1 zone, permitting single detached dwellings, despite the fact that the ZBL dates back to 1968.

24Ms. Whitney opined that the requested Variances were necessary as a result of the applicable sections of the ZBL including: 9.1.2.5 (minimum lot depth); 9.2.1.6(a) (maximum lot coverage); 9.2.1.7.1(b) (minimum front yard setback); 9.2.1.7.3 (minimum rear yard setback); and 9.2.1.7.2(a) (minimum northerly interior side yard setback).

25Her analysis and opinions were further strengthened by the testimony of Mr. McCoomb, and it was agreed that the relief requested maintained the general intent and purpose of the ZBL and would maintain the neighbourhood character of the area.

Are the Variances Desirable for the Appropriate Development or Use of the Land?

26Ms. Whitney opined that the Applicants were seeking permission for a building envelope that achieves a single-detached residential dwelling, which maintains consistency with the neighbouring community and is a permitted use. She asserted that the design is appropriate for the Subject Site and in a similar fashion to neighbouring properties, seeks to benefit from its location facing the shoreline. She also reiterated that there were “no unacceptable adverse impacts anticipated on the neighbouring lands or surrounding area.”

27Mr. McCoomb also opined that the positioning of the home was an important and understandable objective of the anticipated design of the dwelling unit, which he agreed was desirable for the appropriate development or use of the land.

Are the Variances Minor in Nature?

28Ms. Whitney concluded that the Variances met this fourth test, as they:

• were physically and numerically minor, and do not represent a significant change from the regulatory standard; and,

• facilitate development that provides off-street parking, areas for maintenance and access without encroachment onto neighbouring lands, spatial separation and privacy, outdoor amenity space, and natural hazard protections.

29Mr. McCoomb concurred with this opinion, and further agreed that the Variances were minor in nature.

ANALYSIS AND DISPOSITION

30The Tribunal noted that Counsel for the Municipality was primarily present to support the decision of the COA, and that the Municipality did not call any evidence or retain any outside experts to appear in support of its COA decision.

31Counsel’s cross examination of the Appellant’s witness was certainly helpful in the course of the hearing, providing greater clarity specific to the Subject Site and overall planning analysis. Important to note through this cross examination, as asserted by Ms. Whitney, was that the Act does not require a conceptual plan, and that if there was an Application that adhered to the existing ZBL requirements, any new residential dwelling would not be compatible or consistent with the surrounding area.

32The witness testimony from both Ms. Whitney and Mr. McCoomb, were complementary and clearly reinforced the planning recommendations in the PSR, without any proposed revisions to their conditions associated with the original report, even following public input at the COA. Their shared land use planning opinions were unequivocal and consistent with one another throughout the testimony, respectively.

33Based on the uncontroverted evidence from both witnesses, the Tribunal finds that the Variances are consistent with the PPS and have appropriate regard for s. 2 of the Act. The Variances meet the statutory ‘four tests’ including that they: maintain the general intent and purpose of the OP; maintain the general intent and purpose of the ZBL; are desirable for the appropriate development or use of the land, building or structure; and are minor in nature.

34Appropriate regard has also been given to the decision of the COA, as required under the Act, and the Tribunal noted that the Municipality may wish to revisit its future decision framework structure, in an effort to provide greater clarity with its decisions and for the benefit of future applications.

35Finally, as a matter of record, Counsel for each of the Parties were invited to provide submissions relating to the pending new Provincial Planning Statement 2024 (“New PPS”) framework. There were no concerns or issues relating to the MVA maintaining consistency with the New PPS, should the Decision issue after the New PPS effective date of October 20, 2024.

ORDER

36THE TRIBUNAL ORDERS that the Appeal filed by Frank and Fatime Sherifi is allowed, and the variances to Zoning By-law No. 1507, in the Municipality of Central Elgin (Village of Port Stanley), are authorized, subject to the following conditions:

1. A minimum of two (2) off-street parking spaces located in the front yard and the Applicants must complete any improvements to the McClary Avenue municipal right-of way, to the satisfaction of the Municipality of Central Elgin; and,

2. The Applicants must obtain the necessary permit from the Kettle Creek Conservation Authority.

“Steven T. Mastoras”

STEVEN T. MASTORAS

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.