Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 20, 2024
CASE NO(S).: OLT-23-001283
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant and Appellant: Chris Mindorff
Subject: Minor Variance
Description: To permit the construction of a building addition to an existing accessory structure
Reference Number: A-32-2023
Property Address: 1610 County Road 22
Municipality/UT: Lakeshore/Essex
OLT Case No.: OLT-23-001283
OLT Lead Case No.: OLT-23-001283
OLT Case Name: Mindorff v. Lakeshore (Municipality)
Heard: March 5, 2024 by Video Hearing
APPEARANCES:
Parties Counsel
Chris Mindorff Unrepresented
Municipality of Lakeshore Zachary Knox
MEMORANDUM OF ORAL DECISION DELIVERED BY JACKIE DENYES ON march 5, 2024 AND FINAL ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1The matter before the Tribunal concerns a Merit Hearing of the Appeal filed by Chris and Sylvia Mindorff (“Applicant”) against the Municipality of Lakeshore’s Committee of Adjustment’s (the “CoA”) Decision to refuse a Minor Variance Application pursuant to s. 45(12) of the Planning Act, R.S.O. 1990, c.P.13, (the “Act”) as amended.
2Prior to the commencement of the Merit Hearing, Minutes of Settlement were executed and ultimately filed with the Tribunal as Exhibit 3 during the Hearing.
3There were no issues raised regarding the Notice of this Hearing sent administratively by the Tribunal dated March 5, 2024, and filed as Exhibit 1.
SUBJECT PROPERTY, ZONING AND SURROUNDINGS
4The Subject Property is municipally known as 1610 County Road 22 in the Municipality of Lakeshore (“Subject Property”) in the County of Essex. The Property currently contains a single detached dwelling, and the Applicant is proposing the construction of a building addition to an existing accessory structure in the rear yard.
5The Subject Property is approximately 1.83 acres in gross area, with 30.48 metres (“m”) of frontage on an urban arterial road and is designated “Residential” under the Municipality’s Official Plan (“OP”).
6The Subject Property is zoned “Residential-Low Density” (“R1”) under the Municipality’s By-law 2-1012 (“By-law”) as amended. It is surrounded by similar residentially zoned lands on deep lots containing single detached dwellings and large accessory buildings.
FOCUS OF THE APPEAL
Requested Relief
7The Applicant seeks relief from the By-law to permit an accessory structure to have a maximum gross floor area of 223 square metres (“m2”), whereas the By-law permits a maximum gross floor area of 55 m2 in an R1 zone. Further, to permit an accessory structure to have a maximum height of 6.55 m, whereas the By-law states that an accessory structure shall not exceed 5 m in height.
8On April 12, 2023, the CoA granted the Applicant relief from the By-law to permit the construction of a building addition to the existing accessory structure. During construction, the Applicant made changes to their submitted design of the building addition not knowing that it would require the need for additional relief from the By-law.
9In a Planning Report dated November 29, 2023, Planning staff recommended refusal of the Minor Variance Application (“MVA”) as it does not meet the general intent and purpose of the By-Law and is not minor in nature.
10At the December 6, 2023, meeting of the CoA, a decision was made to refuse the MVA as it does not pass the tests of a minor variance under the Act as the variances are not minor in nature.
11On December 18, 2023, the Applicant submitted their Appeal to the Tribunal.
12Subsequently, the Applicant and the Municipality engaged in settlement discussions.
HEARING
Planning Evidence
13The Applicant did not give evidence or call any witnesses at the Hearing; rather, they relied on the executed Minutes of Settlement filed with the Tribunal by the Municipality.
14The Tribunal heard uncontroverted viva voce evidence from Matthew Alexander, MCIP, RPP, who was retained by the Municipality, and who was duly qualified as an expert in Land Use Planning. His Curriculum Vitae and Acknowledgement of Expert Duty were marked as Exhibit 2.
15To be successful, the Applicant must satisfy the Tribunal that the Applications meet the four-part legislative tests set out in s. 45(1) of the Act:
i. Mr. Alexander further opined that with respect to whether the requested Variance maintains the general intent and purpose of the OP, s. 4.2.1 of the OP contains Community Design provisions to ensure new development is designed in keeping with the traditional character of residential settlement areas in a manner that preserves their traditional community image and enhances their sense of place within the Municipality. The Subject Property is located on a deep residential lot abutting an urban arterial road and other large accessory buildings have developed over time on several residential lots surrounding the Subject Property. The requested Variances and the construction of an addition will have little, if any, impact to the traditional character of the residential settlement area surrounding the Subject Property. Further, with respect to the Corporation of the County of Essex OP, the Plan does not specifically address increases to maximum gross floor area or the maximum height. However, it is Mr. Alexander’s professional opinion that the requested Variances will maintain the intent and purpose for the same reasons as stipulated in the local OP.
ii. It is Mr. Alexander’s professional opinion that the requested Variances will maintain the intent and purpose of the By-law. He indicated the provisions in the By-law regarding maximum permissible gross floor area and height are blanket provisions that apply across every residential zone. However, the Subject Property is located on an urban arterial road, not a typical residential neighborhood, and the lot area of the Subject Property exceeds the minimum lot area provision in the R1 zone by almost 15 times. Accordingly, the Subject Property is conducive to supporting larger accessory buildings with a gross floor area and height that are beyond the permissible thresholds provided under the By-law.
iii. It is his professional opinion that the requested Variances are minor in nature. The provisions of the By-law regarding maximum gross floor area and height are blanket provisions which apply across the residential zone and, the Subject Property is within a unique residential area. The requested increase to maximum permissible height from 5 m to 6.55 m is minor as the addition does not exceed the height of any other buildings located on or adjacent to the Subject Property. The requested gross floor area of 223 m2 is approximately four times greater than what is permitted under the By-law. However, he indicated, this represents an increase of approximately 122 m2 over the existing garage. The addition does not conflict with any required setbacks or lot coverage limits. The increased floor area is a result of the inclusion of a second floor within the addition, although the overall height is no greater than the existing structure to which it is attached.
iv. It is Mr. Alexander’s professional opinion that the requested Variance is desirable for the appropriate development or use of land, building or structure in this low density, almost rural in context, area. The addition would provide amenity space in the garage while retaining a substantial rear yard and without encroaching into the side yards of the property. There are similar buildings in the surrounding residential settlement area:
i. 1556 County Road 22 – 204 m2; and
ii. 1566 County Road 22 – 187.3 m2.
16It was also the opinion of Mr. Alexander that the requested Variances have regard to matters or provincial interest in accordance with the Act. Upon his review of the file, there were no outstanding concerns related to natural environment or orderly development of the settlement areas, no land use compatibility issues or other matters of provincial interest that would be impacted by the requested Variances.
FINDINGS
17Through the evidence of Mr. Alexander and upon the executed Minutes of Settlement between the Parties, the Tribunal finds that the request for Variances meets the legislative framework set out in s. 45(1) of the Act as follows:
i. Maintains the general intent and purpose of the City’s OP, as amended;
ii. Maintains the general intent and purpose of the ZBL;
iii. Is desirable for the appropriate development or use of the land building or structure; and,
iv. Is minor.
18Further, the Tribunal finds through the evidence of Mr. Alexander that the request for the Variances has regard to matters of provincial interest set out in s. 2 of the Act.
ORDER
19THE TRIBUNAL ORDERS that the Appeal is allowed, and the Variances to permit the construction of a building addition to an existing accessory structure with a maximum gross floor plan area of 223 m2 and a maximum height of 6.55 m are authorized.
“Jackie Denyes”
JACKIE DENYES
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.
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