Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 9, 2024

CASE NO(S).: OLT-24-000860

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

Applicant and Appellant: Linda Salas Barrantes

Subject: Minor Variance

Description: To change in the minimum setback from a front lot line

Reference Number: A23-24

Property Address: 256 Mountain Road

Municipality/UT: Grimsby/Niagara

OLT Case No.: OLT-24-000860

OLT Lead Case No.: OLT-24-000860

OLT Case Name: Barrantes v. Grimsby (Town)

Heard: November 12, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Linda Salas Barrantes	Shameer Khan*
Town of Grimsby	Laura Dean

DECISION DELIVERED BY A. SNOWDON AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal concerns an appeal filed pursuant to s. 45(12) of the Planning Act, R.S.O. 1990, c.P.13 (“Act”) by Linda Salas Barrantes (“Appellant”) regarding the decision of the Town of Grimsby (“Town”) Committee of Adjustment (“CoA”) to deny the minor variance (“MV”) application for the change in the minimum setback from a front lot line of an accessory building that is located beyond the front wall of the primary dwelling at the property known as 256 Mountain Road, Grimsby (“Subject Property”).

2The Subject Property is located on the west side of Mountain Road, between Elm Tree Road West and Kemp Road West. The Subject Property is surrounded by a mix of residential, agricultural, commercial, and open space properties.

3An existing single detached dwelling is on the Subject Property and the construction of a new single detached dwelling has been applied for.

4The Appellant requested a MV from Zoning By-Law No. 14-45 (“ZBL”) to change the minimum setback from a front lot line for an accessory building that is located beyond the front wall of the dwelling.

5On July 16, 2024, the CoA refused the application, citing as its rationale:

a. that the variance does not meet the intent of the Town Official Plan;

b. that the variance does not meet the intent of the ZBL;

c. the proposal is not minor in nature; and

d. that the proposal is not desirable for the Subject Property.

STATUS REQUESTS

6The Tribunal received one Participant status request from Amy and Cotie Drinkwater (“Drinkwaters”). The Drinkwaters are adjacent neighbours to the Subject Property. On consent of both Parties, the Drinkwaters were granted Participant status.

7Issues outlined in the Participant statement include the classification of an accessory structure, that the variance is not minor, and concerns regarding grading, drainage, and occupancy of the accessory structure. They have indicated that these issues could adversely impact their property and quality of life.

SUBMISSIONS

8The Town provided the Affidavit of Walter Basic, which was marked as Exhibit 1, and visual evidence (maps and pictures), which was marked as Exhibit 2.

9Walter Basic, the Assistant Director of Planning for the Town, testified with respect to the evidence set out in his Affidavit, dated November 4, 2024. Mr. Basic was qualified by the Tribunal to provide expert evidence in land use planning matters.

10The Appellant attended the Hearing but did not present any evidence or witnesses.

APPLICATIONS/ VARIANCES REQUESTED

11The Appellants have appealed the CoA decision and requested relief, for an accessory building, from the minimum front lot setback of 6 metres but in no case closer to the street than the front wall of the dwelling.

[Section 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec45subsec1_smooth) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

12The Tribunal must have regard to matters of Provincial interest as set out in s. 2 of the Act when making a decision regarding an MV application. Under s. 3(5) of the Act, the Tribunal’s decision on the MV must be consistent with the Provincial Planning Statement, 2024 (“PPS”).

13Mr. Basic testified that the MV application has regard for s.2 of the Act, as it relates to matters of Provincial interest.

14The witness stated that the MV application is consistent with the PPS.

15When considering a proposed variance, the Tribunal must consider each of the four elements set out in s. 45(1) of the Act, to determine if the requested 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; and

4. is minor in nature.

16The Appellant bears the onus of demonstrating that the four tests, as set out in s. 45(1) of the Act, have been met.

General Intent and Purpose of the Town of Grimsby Official Plan

17Mr. Basic stated that the MV application meets the intent of the Town’s Official Plan (“OP”). The Subject Property is designated as Hamlet Residential (“HR”). Section 10.4 of the OP applies to HR lands and has the objective “to guide infill residential development and rounding out of the existing Hamlet in a manner which enhances the existing community, is environmentally sustainable, and does not unduly affect traffic operations on Mountain Road”. There is no direct reference in the OP for accessory buildings being beyond the front wall of a dwelling.

General Intent and Purpose of the Zoning By-law

18Section 7 of the ZBL indicates the permitted uses of HR lands are single detached dwellings and bed & breakfast operations.

19The Appellant’s MV application seeks relief from the provisions in Table 2, s.4.18 h) of the ZBL which states the minimum front lot setback.

20The minimum front lot setback is intended to minimize the visual impact of accessory buildings and maintain the streetscape. The current dwelling meets the minimum setback but will not once a change of use permit is obtained to convert the current dwelling into an accessory building. Accessory buildings are not permitted to be closer to the street than the front of the primary dwelling.

21Mr. Basic testified that converting the current dwelling to an accessory building maintains the general streetscape of Mountain Road. It is consistent with the adjacent lot at 252 Mountain Road.

22Mr. Basic maintained that habitation of the proposed accessory building is prohibited by s.4.18 g) of the ZBL. Further to this, all services must be removed to convert the dwelling to an accessory building.

Desirable for the Appropriate Development or the Use of Land

23Mr. Basic testified that the MV application is appropriate provided the conditions from the July 15, 2024 staff report (and located in Appendix 1) are met.

Is Minor in Nature

24Mr. Basic testified that the MV application is minor in nature provided the conditions from the July 15, 2024 staff report (and located in Appendix 1) are met.

25It is Mr. Basic’s expert opinion that the MVs:

a. represent good planning,

b. meet all policy requirements,

c. meet all requirements of s. 45(1) of the Act,

d. meet the four tests, and

e. are in the public interest.

26With respect to the concerns of the Participants that are not directly addressed in the above tests, Mr. Basic stated that the ZBL allows accessory buildings to be up to 10% of a property’s size and the proposed accessory building is 2% of the property size. The grading, drainage, and occupancy are addressed by the conditions in Appendix 1, which the Appellant has consented to. By-Law enforcement will deal with any issues that arise from illegal occupancy.

FINDINGS

27The Tribunal accepts the evidence of the Town, which was relied upon by the Appellant, and finds that the requested variances have regard for the Provincial interests expressed in s. 2 of the Planning Act, are consistent with the Provincial Policy Statement, 2024, and satisfies all four elements of s. 45(1) of the Planning Act.

ORDER

28THE TRIBUNAL ORDERS that the appeal is allowed and the variance, to permit an accessory building closer to the street beyond the front wall of the dwelling, while maintaining the minimum six metre front year setback to the Town of Grimsby’s Zoning By-Law No. 14-45 is authorized, subject to the conditions set out in Appendix 1.

“A. Snowdon”

A. SNOWDON 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.

APPENDIX 1

The conditions set out in the July 15, 2024 Staff Report, are as follows:

1. The Existing Dwelling is converted into an accessory building which requires the following:

a. Removal of the water supply system; and,

b. Removal of the septic tank;

2. The Owner obtains approval from the Building Department for a Change of Use permit for the Existing Dwelling;

3. All work related to the conditions for the Existing Dwelling is complete 10 days prior to the Building Department inspection for the request for occupancy of the new dwelling; and,

4. The approved Grading Plan is revised to incorporate the retention of the Existing Dwelling.