Moffat v. Caledon (Town), 2024 CanLII 48178

Ontario Land Tribunal

Issue Date: May 22, 2024

Case No(s).: OLT-24-000190

Proceeding Commenced Under: subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: Darlene Moffat

Subject: Minor Variance

Description: Minor Variance to permit the construction of a new single-detached dwelling

Reference Number: A 024-23

Property Address: 0 Hemlock Street

Municipality: Town of Caledon

OLT Case No.: OLT-24-000190

OLT Lead Case No.: OLT-24-000190

OLT Case Name: Moffat v. Caledon (Town)

Heard: April 23, 2024 by Video Hearing

Parties and Counsel/Representative

Parties	Counsel/Representative*
Darlene Moffat	Clarence (“Clare”) Riepma*
Town of Caledon	Paula Boutis

MEMORANDUM OF ORAL DECISION DELIVERED BY GREGORY J. INGRAM ON April 23, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal concerns a minor variance application by Darlene Moffat (“Applicant/Appellant”) requesting relief from the Town of Caledon’s (“Town”) Zoning By-law No. 2006-50 for the property adjacent to 135 Hemlock Street and known as 0 Hemlock Street (“Subject Property”). The application seeks to permit the construction of a single-detached dwelling, whereas zoning for the Subject Property only permits an accessory dwelling. The Town’s Committee of Adjustment (“COA”) denied the application and an appeal, under section 45(12) of the Planning Act (“Act”) was launched.

2The Planning Staff Report (“Report”) received by the COA indicates that the Subject Property is approximately 0.27 hectares in size and is vacant, and that the surrounding lands are primarily residential and environmental policy areas. The Report indicates support for a residential dwelling on the Subject Property in principle, however, the zoning does not permit it. The COA denied the application on the basis that a zoning by-law amendment was more appropriate.

3The Applicant/Appellant also requested a permanent easement over part of the adjacent property at 135 Hemlock Street to provide access to the proposed dwelling which was approved by the COA.

4Discussions between the Town and the Applicant/Appellant continued following the COA decision which resulted in a negotiated resolution. The Parties entered into a Minutes of Settlement agreement and requested that it be presented to the Tribunal.

SETTLEMENT PROPOSAL

5Through the negotiation process, the Parties agreed that the minor variance request can be supported by the Town subject to twelve conditions being met by the Applicant/Appellant to provide greater clarity on the building envelope and ensure the environmental protection of adjacent lands.

LEGISLATION

6An appeal pursuant to s. 45 of the Act is a hearing de novo and the Appellant bears the onus to demonstrate to the Tribunal that the four tests set out under s. 45(1) have been met. The four tests are:

1. maintains the general intent and purpose of the Official Plan;
2. maintains the general intent and purpose of the Zoning By-law;
3. be desirable for the appropriate development or use of the land, building or structure; and,
4. be minor in nature.

7In addition to the four tests, the Tribunal must have regard to the matters of provincial interests as set out in s. 2 of the Act, and to the decision of the approval authority under s. 2.1 of the Act.

EVIDENCE

8As evidence in the Hearing, two documents were marked as exhibits:

a. Exhibit 1: Notice of Hearing b. Exhibit 2: Affidavit of Clarence P. Riepma

9Clare Riepma was qualified by the Tribunal to provide expert opinion evidence in land use planning in support of the appeal and his written affidavit was marked as Exhibit 2. Mr. Riepma is a Registered Professional Planner and is a full member of the Ontario Professional Planners Institute and the Canadian Institute of Planners.

10In summary, Mr. Riepma provided uncontested planning evidence in support of the application. He indicated that the proposed application/settlement represents good planning and has appropriate regard to matters of provincial interest, is consistent with the Provincial Policy Statement and conforms with the Growth Plan for the Greater Golden Horseshoe. He also opined that the application conforms with the applicable Official Plans and meets the four tests for a minor variance as set out in the Act.

11Specifically, Mr. Riepma opined that the following factors are key to supporting the application:

a. The Subject Property is in an area designated as Low-Density Residential in the Town’s Official Plan. b. A dwelling unit is already permitted on the property and the zoning only defines the type of dwelling. c. The Subject Property is an existing lot with full municipal services and in a residential area. d. The proposed development is in an area of single dwelling units and can be built without impacting the adjacent environmentally protected areas.

12Mr. Riepma is supportive of the conditions required by the Municipality and indicated that a number of them are already being addressed.

13Paula Boutis, as Counsel for the Municipality, submitted that the Town supports the use of the Subject Property for a principal residence and asked that the Tribunal fully accept the evidence of Mr. Riepma in support of the application. Ms. Boutis anticipates that the Town will deem the Subject Property as R1 during their next zoning review process.

FINDINGS

14Having reviewed and considered the uncontested oral and written affidavit evidence of Clare Riepma, the Tribunal is satisfied that the proposal represents good planning and is consistent with and conforms to applicable provincial, regional, and local planning legislation. In addition, the Tribunal is satisfied that the proposed settlement meets the four tests for a minor variance.

ORDER

15THE TRIBUNAL ORDERS THAT the appeal is allowed and the minor variance to Zoning By-law No. 2006-50, as amended, is authorized for 0 Hemlock Street (adjacent to 135 Hemlock Street) to permit Residential One (R1) zone uses and standards, and all other regulations related to the R1 zone or a residential use in the Zoning By-law No. 2006-50, as amended, on a property zoned Open Space (OS) subject to the following conditions:

1. That the Secretary-Treasurer to the Committee of Adjustment receive written confirmation from the Town of Caledon's (“Town”) Manager of Development Engineering, or designate, that the owner has submitted a satisfactory Grading, Servicing and Erosion and Sediment Control Plan.

2. That the Secretary-Treasurer to the Committee of Adjustment receive written confirmation from the Town's Manager of Development Engineering, or designate, that the owner has submitted a satisfactory Stormwater Management Brief ("SMB") or that the owner is not required to provide a SMB.

3. That the Secretary-Treasurer to the Committee of Adjustment receive written confirmation from the Town's Manager of Development Engineering, or designate, that the owner has entered into a Development Grading Agreement ("DGA") and provide a lot grading security deposit of $7,500.00 ("Deposit") or that the owner is not required to provide a DGA or Deposit.

4. That the Secretary-Treasurer to the Committee of Adjustment receive written confirmation from the Town's Landscape Architect, or designate, that the owner has submitted a satisfactory Arborist Report and Tree Preservation Plan.

5. That the Secretary-Treasurer receive confirmation from Town's Environmental Planner, or designate, that an Environmental Impact Study, satisfactory to the Town and Toronto Region Conservation Authority, has been submitted to identify:

a. The extent of developable area, which shall establish the structural envelope; and, b. The lands to be protected through an environmental easement in favour of the Town, more particularly described in condition 8.

6. That the Secretary-Treasurer receive draft reference plan(s) delineating the structural envelope, for approval by the Planning Department and Legal Services Section.

7. That the Secretary-Treasurer and the Legal Services Section receive an electronic copy of the deposited reference plan(s).

8. That the owner and Town have entered into an environmental easement agreement in favour of the Town, to the satisfaction of the Legal Services Section, with the required reference plan, and has paid any associated fees, in accordance with the Town's Fees and Charges By-law.

“Gregory J. Ingram”

GREGORY J. INGRAM 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.