Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 26, 2024
CASE NO(S).: OLT-23-001309
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Michael Mazza
Subject: Minor Variance
Description: To permit the development of an additional dwelling unit
Reference Number: A23/23
Property Address: 2 Martyn Drive
Municipality/UT: Wasaga Beach/Simcoe
OLT Case No: OLT-23-001309
OLT Lead Case No: OLT-23-001309
OLT Case Name: Mazza v. Wasaga Beach (Town)
Heard: March 5, 2024 Video Hearing
APPEARANCES:
Parties
Counsel/Representative*
Michael Mazza (“Mazza”)
Self-represented*
Town of Wasaga Beach (“Town”)
C. Emmett
DECISION DELIVERED BY A. SAUVE AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1The purpose of this Minor Variance application is to permit the development of a detached accessory building with a second-story dwelling unit. The first floor is proposed to be a three-car garage. The subject land is located at 2 Martyn Drive, Town of Wasaga Beach, County of Simcoe. The subject land currently contains a single-storey detached dwelling and two detached accessory buildings. The property is situated within the “Residential Estate Exception 1” (RE-1) Zone, within Comprehensive Zoning By-law 2003-60 (“ZBL”). The subject land is serviced by a municipally operated piped water system for water supply and a privately owned/operated individual septic system for sewage disposal.
2The subject land is generally rectangular in shape and is situated on the south-west corner at the intersection of Morgan Road and Martyn Drive. The subject land has a frontage of approximately 31.35 metres along Martyn Drive, a depth of approximately 78.97 metres along Morgan Road, and an area of approximately 2,418 square metres.
3The application requests relief from Section 3.1 “Accessory Uses, Buildings and Structures” of the ZBL. Specifically, the applicant requests relief from: Section 3.1.4 – to permit a detached accessory building with a maximum height of 7.13 metres (23.39 ft.) and two (2) storeys, whereas the maximum height of any detached building accessory to a residential use shall be 5 metres (16.4 ft.) and shall not exceed one (1) storey. (“Variance 1”).
4Further to the above, the applicant is seeking additional relief from Section 3.28, “Accessory Dwelling Units in Residential Dwellings” of the ZBL, and more specifically: Section 3.28.1.2 – to permit one (1) detached accessory dwelling unit in a detached accessory building located in the “Residential Estate Exception 1” (RE-1) Zone, whereas one (1) attached accessory dwelling unit is permitted in the R1 Zone, subject to compliance with the provisions of Subsection 3.28. (“Variance 2”)
5Section 3.28.1.7 – to permit a detached accessory dwelling unit in a detached accessory structure that is not connected to full municipal water and sanitary sewer service, whereas an attached accessory dwelling unit is permitted in a residential dwelling only when connected to full municipal water and sanitary sewer services. (“Variance 3”).
6In addition to the above, the applicant is seeking relief from Section 9, “Residential Estate” Zone of the ZBL, specifically from: Section 9.3.6 – to permit a detached accessory residential building with a rear yard setback of 2.1 metres (6.88 ft.), whereas a detached accessory building is required to have a minimum rear yard setback of 15 metres (49.21 ft.). (“Variance 4”).
7A Planning Report by the Town Planning Department was prepared that supported the Application, subject to three conditions:
The development will be substantially consistent with the site plan provided with the application.
The revised floor plans indicating the proposed use of the second floor as storage space should be submitted to the Building Department for review and approval prior to the issuance of building permits.
That the variance(s) to Section 3.28.1.2 and Section 3.28.1.7 are not granted.
8The Committee of Adjustment (“COA”) denied the application on November 22, 2023, based on the proposed height, the application being premature, and not compatible with the surrounding neighbourhood. Mazza then filed this appeal.
9The Town appeared at this Hearing however they did not participate. The Tribunal had been informed previously that the Town would appear as a ‘friend’ of the Tribunal if needed. Mazza represented himself.
BILL 23
10While not discussed at great length during the Hearing, it is important to first address whether the “as of right” permissions regarding the 3-units allowed on a lot found in Bill 23 apply to this application. The Tribunal did not ask for submissions on this subject at the Hearing however, it was addressed by Mazza during his evidence. Other information was found in the Planning Report found in Exhibit 4 and a reading of Bill 23.
11On November 28, 2022, Bill 23, “More Homes Built Faster Act, 2022” received Royal Assent. Through Bill 23, the Planning Act was amended, and the term “parcel of urban residential land” was added and defined. A “parcel of urban residential land” is defined within the Planning Act as:
“a parcel of land that is within an area of settlement which residential use, other than ancillary residential use, is permitted by by-law”
12To be considered a “parcel of urban residential land”, the parcel of land must be serviced by sewage works that are owned by a municipality and a municipal drinking water system. The subject lands are not serviced by sewage works that are owned by a municipality, and as such, this property is not a “parcel or urban residential land” and therefore does not qualify with the 3-unit on a lot “as of right” permissions of Bill 23.
13Unless a property can meet the criteria implemented at the Provincial level per Bill 23 (which this property does not), the superseding and current Official Plan and Zoning By-law regarding accessory residential unit policies apply.
EVIDENCE
14As discussed above, the Town did not present any evidence at this Hearing. The only witness at the Hearing was Mazza. The following documents were made exhibits at the Hearing:
Road Occupation Permit
Utility Locate Request Notification
Site Plan
OLT Submission Package
Aerial Photograph
15Concerning Variance 1, Mazza informed the Tribunal that the height variance being sought is minor in nature because there are two-story homes within the same subdivision, the lot sizes are very large in the surrounding area, and there are many large trees on the subject land. Mazza opined that the lot sizes and large trees would ‘hide’ the proposed dwelling.
16Mazza used Exhibit 5 to show how the proposed dwelling would be away from the neighbours. The aerial photograph shows a drawn footprint of the proposed dwelling on the aerial photograph. It shows that the subject land is a corner lot with the proposed dwelling at the back of the lot. The aerial photograph is Attachment 1 to this decision.
17Mazza then brought the Tribunal’s attention to Exhibit 2, the site plan, to demonstrate that the driveway to the new dwelling, which has already been approved as evidenced by Exhibit 1, is not large and is well hidden by the natural features of the property.
18Concerning Variance 2, allowing for more than one detached dwelling on the property, Mazza informed the Tribunal that the private driveway to the new dwelling would be off the side street and at the far rear of the subject land. Because of this, Mazza opined, it will look like any other detached dwelling in the neighbourhood due to the existing dwelling being far enough away on the large lot. Also, Mazza added, the size of the new dwelling will be in line with the other dwellings in the subdivision.
19Mazza opined that the Official Plan (“OP”) encourages more homes and more affordable homes, which this application is trying to achieve.
20Mazza informed the Tribunal that his application would be for the first ‘garden/laneway home’ in the neighbourhood.
21Concerning Variance 3, the dwelling must have a sanitary sewer hook up, Mazza stated that Bill 23 was written to eliminate red tape and that this area only has septic services. Mazza opined that the general intent of the ZBL is to ensure the home has both water and waste disposal services.
22Concerning the OP, Mazza opined that its intent is to grow communities within existing lands, which this application does. Mazza further opined that the variance was minor because it would be like any other home in the neighbourhood.
23The rear yard set back being asked for in Variance 4, Mazza informed the Tribunal, is minor in nature as the proposed dwelling would still be approximately 60 yards from the closest rear neighbour. Also, the setback would still allow for someone to walk or pass a small piece of equipment between the proposed dwelling and the property line.
24Mazza opined that this proposed variance is in keeping with the general intent of the ZBL as it allows for an adequate distance between residential buildings.
25Overall, Mazza informed the Tribunal that change should be embraced and that more people should be trying to help with the housing situation.
26Mazza also informed the Tribunal that the Participant Statements are not helpful as they are, generally, just against change.
PARTICIPANT STATEMENTS
27Two parties were granted Participant Status for this Hearing, Loris and Shawna Licharson and Stewart Hamilton. Both are neighbours and oppose this development. The Tribunal found their statement helpful and insightful. Neither statement opposes development in general, but they do not believe that this proposal is appropriate.
ANALYSIS AND FINDINGS
28The Planning Report contained in Exhibit 4 does not raise any concerns about the application as it relates to Section 2 of the Planning Act and states that staff have “no concerns with respect to compliance with the provisions of Section 2 of the Ontario Planning Act.” The Tribunal agrees with the Planning Report in this regard. The Planning staff also opined in the Planning Report that they believe the application will be consistent with the Provincial Policy Statement (“PPS”) as required by Section 3(5). The Tribunal agrees with this assessment.
29The Tribunal finds that the proposed variances also conform to the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”), as the Guiding principles within the Growth Plan prioritize intensification and higher densities to make efficient use of land and infrastructure, as well as supporting a range and mix of housing options.
30The subject land is designated as “Settlement” in the Official Plan for the County of Simcoe (“County OP”). The County OP contains policies relating to the orderly development of those areas that are designated as Settlement. In addition, the County of Simcoe Official Plan contains policies that promote a balance of jobs and housing to reduce the need for long-distance commuting. The Tribunal finds that the proposed variances conform to the County OP.
31The subject lands are designated “Country Club Community” within the Town of Wasaga Beach Official Plan (“Town OP”). Permitted uses within the Country Club Community land-use designation include single detached dwellings and detached accessory buildings/structures related to a residential use. The proposed development associated with the minor variance application is a mixed-use two-storey detached accessory building. The proposed use of the first floor is a three-car garage; the proposed use of the second storey is an accessory dwelling unit.
32The Town OP contains the following:
(S. 5.1.7) “To support housing affordability and create rental housing opportunities bypermitting accessory dwelling units within residential dwellings, where appropriate”
(S. 5.2.1.3) “In order to support housing affordability and provide for a wider range of housing options for residents of Wasaga Beach, an accessory dwelling unit is permitted in residential areas within a single-detached, a link, a semi-detached, and a townhouse dwelling unit. In order to maintain the character of the main residential use, any exterior alterations or additions shall not significantly change the appearance of the main residential dwelling and shall have regard for any applicable urban design guidelines.
The Zoning By-law will set out the limitations for permitted locations, servicing requirements, and development standards for accessory dwelling units. The Town may establish a registration or licensing program to regulate and/or administrate attached accessory dwelling units.
33The Tribunal finds that the proposed variances conform to the Town OP.
34The subject lands are situated within the “Residential Estate Exception 1” (RE-1) Zone within the ZBL. Mazza has requested relief to increase the maximum building height and maximum number of storeys for a detached accessory building. Specifically, the applicant has requested relief to permit a detached accessory building with a maximum height of 7.13 metres (23.39 ft.) and two (2) storeys, whereas the maximum height of any detached building accessory to a residential building is 5 metres (16.4 ft.) and shall not exceed one (1) storey.
35The requested relief is associated with the proposed use of the second storey; the proposed use of the second storey is an accessory dwelling unit. A detached accessory dwelling unit within an accessory building is not a permitted use within the ZBL.
36The variances are seeking relief to permit one detached accessory dwelling unit in a detached accessory building, whereas one additional residential dwelling unit is permitted in the R1 Zone, subject to compliance with the provisions of Subsection 3.28. Additionally, Mazza is seeking relief to permit a detached accessory dwelling unit in a detached accessory structure that is not connected to full municipal water and sanitary sewer service, whereas a detached accessory dwelling unit is permitted in a detached accessory building only when connected to full municipal water and sanitary sewer services.
(S. 3.28.1.5) “A detached accessory dwelling unit shall not be permitted in a detached building or structure that is accessory to a permitted residential use unless a site-specific Zoning By-Law Amendment for a temporary use has been approved by Council.”
37The Tribunal finds that Variances 1 and 4 conform to the ZBL, but Variances 2 and 3 do not.
38The Tribunal finds that to permit a detached accessory dwelling unit in a detached accessory building in the “Residential Estate” (RE) Zone, and to permit a detached accessory dwelling unit in a detached accessory building that is not connected to full municipal water and sanitary sewer services, would not enable the development of the lot in a manner that is considered desirable and appropriate for the development of the land.
39The Tribunal finds that the construction of a two-story detached building is minor in nature, as the impact on the adjacent lands and surrounding neighbourhood would be minimal. However, to permit a detached accessory dwelling unit in a detached accessory building that is not connected to full municipal water and sanitary sewer services is not considered minor in nature.
40The Planning Report suggested a number of conditions regarding Variances 2 and 3. The Tribunal finds that if those conditions are in force, then the appeal could be allowed as they would then conform with the ZBL, which would enable the development to be desirable for the appropriate development of the land, and the development would be minor in nature.
ORDER
41THE TRIBUNAL ORDERS THAT the appeal is allowed and the variances to Zoning By-law 2003-60 are authorized subject to the following conditions:
The development will be substantially consistent with the site plan provided with the application.
The revised floor plans indicating the proposed use of the second floor as storage space is to be submitted to the Building Department for review and approval prior to the issuance of building permits.
That the variance(s) to Section 3.28.1.2 and Section 3.28.1.7 are not granted.
“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.