Ontario Land Tribunal
655 Bay Street, Suite 1500 Toronto ON M5G 1E5 Telephone: (416) 212-6349 Toll Free: 1-866-448-2248 Website: olt.gov.on.ca
Tribunal ontarien de l’aménagement du territoire 655 rue Bay, suite 1500 Toronto ON M5G 1E5 Téléphone: (416) 212-6349 Sans Frais: 1-866-448-2248 Site Web: olt.gov.on.ca
Date: August 21, 2024
Hon. Graydon Smith, Minister of Natural Resources c/o Bonnie Henson, Senior Policy Advisor Policy Division, Ministry of Natural Resources 300 Water Street, South Tower, 2nd Floor Peterborough, ON K9J 3C7 bonnie.henson@ontario.ca
NOTICE OF DECISION
made under the provision of the Niagara Escarpment Planning and Development Act, R.S.O. 1990 c. N.2 NEHO Case No.: OLT-23-000863 (NEC File No.: N/R/2022-2023/262)
Dear Minister Smith:
Re: Mary E. Horvath and Teddy T. Vritsios, Joseph Beltrano, Paul and Maya McCarty and Brad and Melanie McKellar, appellants against the Niagara Escarpment Commission’s approval of an application for a development permit made by Jordan Heckman, Jordan Station Design Co. Inc. (Applicant/Agent) for Chad Whittington (Owner) (N/R/2022-2023/262) proposes to under take the following on an existing 0.07 ha (0.18 ac) lot that supports a single dwelling with municipal servicing: to demolish an existing 7.5 sq m (80.7 sq ft) accessory structure (storage shed) with a height to peak of 2.81 m (9.2 ft); to construct a two-storey ± 133.8 sq m (1.440.20 sq ft) accessory structure (garage and storage) with a height to peak of ± 6 m (19.7 ft); to construct a ± 4 sq m (43.1 sq ft) dwelling addition with a maximum height to peak of ± 6.53 m (21.4 ft), to construct a ±24.6 sq m (264.8 sq ft) rear deck; to extend the existing asphalt driveway by ±60.7 sq m (653.4 sq ft); to remove one (1) tree and the proposed development will result in a ± 183.08 sq m single dwelling with a maximum height to peak of ± 6.53 m (note: The proposed accessory structure (garage) will be serviced by electricity and water), at 15 Woodcrest Drive (“Subject Lands”), located in the Town of Grimsby, Region of Niagara.
Page 1 of 3
Pursuant to s. 25 of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, (“NEPDA”), the Hearing Office has determined the merits of the decision of the Niagara Escarpment Commission (“NEC”) and has taken into consideration the evidence presented at the Merit Hearing held on April 30, 2024 in order to render its Report and opinion.
A copy of the Report, with reasons, is attached. Accordingly, pursuant to s. 25(12.1) of the NEPDA, the Hearing Office finds that the Niagara Escarpment Commission decision to conditionally issue Development Permit N/R/2022-2023/262 is correct and should not be changed.
The decision of the Niagara Escarpment Commission is, therefore, confirmed. Yours truly,
“Jennifer Gold”
JENNIFER GOLD HEARING OFFICER
Attachment
cc:
Hon. Graydon Smith, Minister of Natural Resources c/o Bonnie Henson Senior Policy Advisor, Policy Division Ministry of Natural Resources 300 Water Street, South Tower, 2nd Floor Peterborough, ON K9J 3C7 bonnie.henson@ontario.ca
Brandon Henderson, Senior Planner Brandon.Henderson@ontario.ca
Andrej Obradovic, Planner andrej.obradovic@ontario.ca
Niagara Escarpment Commission: nec@ontario.ca
Janet Sperling, Senior Strategic Advisor janet.sperling@ontario.ca
Sandy Dobbyn, Senior Strategic Advisor sandy.dobbyn@ontario.ca
NEHO Case No.: OLT-23-000863 2 of 3
Cheryl Tansony, Senior Planner cheryl.tansony@ontario.ca
Kendra Adair, Senior Planner (Acting) kendra.adair@ontario.ca
Jenna Skinner, Representative jenna.skinner@ontario.ca
cc, cont.:
Region of Niagara, Planning: devtplanningapplications@niagararegion.ca
Niagara Peninsula Conservation Authority:
Sarah Mastroianni, Manager, Planning and Permits smastroianni@npca.ca
Paul Leithwood, Watershed Planner pleithwood@npca.ca
Niagara Parks:
Steve Barnhart, Senior Director, Planning, Environment and Culture sbarnhart@niagaraparks.com
Clerk, Grimsby vsteele@grimsby.ca
Joseph Beltrano, Applicant Joey.b@hotmail.ca
Mary Horvath and Teddy Vritsios, Applicant Maryliz0729@gmail.com Theo0324@gmail.com
Paul and Maya McCarty, Applicant mckellar384@hotmail.com
Brad and Melanie McKellar, Applicant paul.mccarty@sympatico.ca
Jordan Heckman, Applicant jordan@jordanstationdesignco.ca
Colin Léger, Applicant cleger@garrodpickfield.ca
Chad Whittington, Applicant theteach@gmail.com
NEHO Case No.: OLT-23-000863 3 of 3
ISSUE DATE: August 21, 2024
CASE NO(S).: OLT-23-000863
PROCEEDING COMMENCED UNDER subsection 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2.
Appellant: Joseph Beltrano Appellant: Mary Horvath & Teddy Vritsios Appellant: Paul & Maya McCarty Appellant: Brad & Melanie McKellar Applicant: Jordan Heckman Owner: Chad Whittington Subject: Approval of a Development Permit Application Description: Proposed to construct a two storey accessory structure Reference Number: N/R/2022-2023/262 Property Address: 15 Woodcrest Drive Municipality/UT: Grimsby/Niagara OLT Case No: OLT-23-000863 OLT Lead Case No: OLT-23-000863 OLT Case Name: Beltrano v. Ontario (NEC)
Heard: March 9, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Joseph Beltrano (“Appellant”) | Self-represented* |
| Mary Horvath & Teddy Vritsios (“Appellant”) | Self-represented* |
| Paul & Maya McCarty (“Appellant”) | Self-represented* |
| Brad & Melanie McKellar (“Appellant”) | Self-represented* |
| Jordan Heckman (“Appellant”) | Self-represented* |
| Chad Whittington (“Applicant”) | Colin Léger |
REPORT DELIVERED BY JENNIFER GOLD AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Tribunal Members constitute Hearing Officers and the Tribunal functions as the Niagara Escarpment Hearing Office (“Hearing Office”) for appeals under the Niagara Escarpment Planning and Development Act (“NEPDA”).
2The Hearing Office convened a hearing of appeals brought by Joseph Beltrano, Mary Horvath; Teddy Vritsios; Paul and Maya McCarty; Brad and Melanie McKellar; and Jordan Heckman (“Appellants”) regarding the conditional approval by the Niagara Escarpment Commission (“NEC”) of development permit application N/R/2022-2023/262 (“Development Permit”) issued to Chad Whittington and pertaining to the property municipally known as 15 Woodcrest Drive (“Subject Lands”), located in the Town of Grimsby, Region of Niagara. The Niagara Escarpment Commission did not appear.
3The Subject Property contains a single detached residence and shed. A driveway is located on the east side of the Subject Property, connecting it to Woodcrest Drive. The single detached residence on the Subject Property is a side split, with an attached garage at the east end. The Subject Property is located within the Escarpment Protection Area of the Niagara Escarpment Plan area. It is also within the Niagara Escarpment Development Control Area, subject to R.R.O. 1990, Reg. 828, made under the Niagara Escarpment Planning and Development Act (“NEPDA”).
4The Development Permit allows the following development:
To undertake the following on an existing 0.07 hectare (0.18 acre) lot that supports a single dwelling with municipal servicing:
(a) To demolish an existing 7.5 sq metre/m (80.7 square feet/sq ft) accessory structure (storage shed) with a height to peak of 2.81 m (9.2 ft);
(b) to construct a two storey ± 133.8 sq m (1,440.2 sq ft) accessory structure (garage and storage) with a height peak of ±6 m (19.7 ft);
(c) to construct a ± 4 sq m (43.1 sq ft) dwelling addition with a maximum height to peak of ± 6.53 m (21.4 ft);
(d) to construct a ± 24.6 sq m (264.8 sq ft) rear deck;
(e) to extend the existing asphalt driveway by ± 60.7 sq m (653.4 sq ft);
(f) to remove one (1) tree. (“Proposed Development").
The Proposed Development will result in a ± 183.08 sq m single dwelling with a maximum height to peak of ± 6.53 m. The proposed accessory structure (garage) will be serviced by electricity and water.
The Development
5The NEC conditionally approved the Development Permit pursuant to a notice of decision dated August 3, 2023.
ISSUES
6Pursuant to s. 25(12) of the NEPDA, the issue to be determined in this appeal is whether the NEC decision to conditionally approve the application for this Development Permit is correct and should not be changed.
7Determining the correctness of the NEC decision necessitates an analysis as to whether the Development Permit is consistent with the Provincial Policy Statement, 2020 (“PPS”), conforms with the Niagara Escarpment Plan, 2017 (“NEP, 2017”), the Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan), the Region of Niagara Official Plan (“Regional OP”) and the Town of Grimsby Official Plan (“OP”) and complies with the applicable statutory and regulatory requirements under NEPDA.
EVIDENCE AND SUBMISSIONS
8The Hearing Office received the expert planning evidence of Michael Sullivan retained by the Applicant, as well as the testimony of the Appellants, Paul McCarty and Joseph Beltrano, who were self-represented. The Appellants did not present any expert evidence. The following Exhibits were entered into evidence on consent and without prejudice to any Party disputing their validity, relevance and reliability:
Exhibit 1 – Document Book (Applicant)
Exhibit 2 – Witness Statement of Michael Sullivan Exhibit 3 – Photographs – Paul McCarty
Exhibit 4 – Property drawing – Paul McCarty Exhibit 5 – Shadow Analysis – Joseph Beltrano
Exhibit 6 – Town of Grimsby Review Letter – Paul McCarty
Evidence of Michael Sullivan
9Mr. Sullivan was qualified by the Tribunal as an expert in land use planning. No objections nor issues were raised by the Appellants regarding Mr. Sullivan’s qualifications as an expert.
10It is Mr. Sullivan’s expert planning opinion that the Development Permit is consistent with the PPS, and conforms with the NEP 2017, the Growth Plan, 2020, the Regional OP and the OP.
11Section 2.1 of the PPS states that natural features and areas shall be protected for the long term. Mr. Sullivan reviewed the features of the Subject Property and neighbourhood and advised that there are no natural heritage features on or adjacent to the Subject Property. Also, the Subject Property did not contain and is not proximate to cultural heritage resources and therefore did not engage nor conflict with the relevant policies of the PPS.
12The Subject Property falls under the Escarpment Protection Area designation in the NEP, 2017. The objectives of this designation relate to the preservation of the scenic resources and open landscape character of the Escarpment and of its cultural heritage resources, as well as to the encouragement of agriculture. The specific objectives of the Escarpment Protection Area are stated in section 1.4.1 and are as follows:
To maintain and enhance the scenic resources and open landscape character of the Escarpment.
To provide a buffer to prominent Escarpment features.
To recognize, protect and where possible enhance the natural heritage system associated with the NEP 2017 area and protect natural areas of regional significance.
To conserve cultural heritage resources, including features and areas of interest to First Nations and Métis communities.
To encourage forest management, compatible recreation, conservation and educational activities.
To encourage agricultural and protect agricultural lands and prime agricultural areas.
13Section 1.4.3 of the NEP, 2017 lists permitted uses in the Escarpment Protection Area and includes accessory use, which is defined as follows in Appendix 2:
Accessory use: The use of any land, building, structure or facility that is naturally and normally incidental, subordinate, and exclusively devoted to the principal use located on the same lot.
14Mr. Sullivan said that the proposed garage is a permitted use under the Escarpment Protection Area. It is an accessory use that is normally incidental, subordinate, and exclusively devoted to the principle dwelling on the Subject Property. He also said that the Proposed Development is a permitted use under this designation, subject to satisfaction of the applicable development criteria of Part 2 of the NEP, 2017. The development criteria under Part 2 of the NEP, 2017 are to be applied to all development within the area of the NEP 2017 in conjunction with other policies of the NEP, 2017. Section 2.1 directs that the Part 2 development criteria shall be used in the consideration of development permit applications.
15Specifically, the applicable criteria are those set out in sections 2.2 (general development), 2.6 (water resources), 2.7 (natural heritage), 2.10 (cultural heritage), 2.12 (infrastructure) and 2.13 (scenic resources and landform conservation) of the NEP, 2017.
16Mr. Sullivan reviewed the aforementioned the NEP, 2017 criteria in his testimony and opined that the Development Permit conforms to NEP, 2017 policies.
17The Growth Plan applies to the Subject Property. The Subject Property is not located in an Urban Growth Centre as defined by the Growth Plan. During the hearing, Mr. Sullivan informed the Hearing Office that the Proposed Development is of a small scale and conforms with the Growth Plan, including the policies regarding the natural heritage system and cultural heritage resources.
18For reasons similar to those discussed with respect to the PPS and the NEP, 2017, Mr. Sullivan opined that the Proposed Development conforms with the Regional OP. The Regional OP generally defers to the policies in the NEP, 2017.
19Regarding conformity with the OP, the Subject Property is outside of the designated Grimsby Urban Settlement Area as designated on Schedule A and B-1 of the OP. The Subject Property is designated Countryside in Schedule A of the OP, the intent of which is “to preserve and protect prime agricultural areas and specialty crop areas, maintain the viability of farming and preserve the rural character within the Countryside area.” The Subject Property is designated Escarpment Protection Area in Schedule B of the OP.
20Policy 1.4.5 of the OP states that structures and buildings accessory to a permitted use are permitted uses in all land use designations. Mr. Sullivan opined that the proposed garage is permitted as accessory to the existing dwelling on the Subject Property.
21The policies in section 2.3.5 describe the Countryside designation and deal with the preservation of rural farm character within the countryside and prime agricultural areas for a wide variety of agricultural uses. Mr. Sullivan testified that the Subject Property is within an established residential area and the proposed development does not conflict with these policies.
22Section 4.7 of the OP contains criteria for development within the Niagara Escarpment Plan Area. Key policies are 4.7.1 (a) and (d), which address conditions regarding permitted uses and provide that development should be designed and located in such a manner as to preserve the natural, visual, and cultural characteristics of the area. These criteria must be considered with the public interest in mind.
23For the same reasons regarding the Proposed Development’s conformity with the NEP, 2017, Mr. Sullivan informed the Hearing Office that the Development Permit conforms to policies 4.7.1 (a) and (d) of the Town of Grimsby Official Plan.
24The Subject Property is within the Niagara Escarpment Development Control Area (“NEDCA”) under the Town of Grimsby Zoning By-law 14-45 (“Zoning by-law”), as amended. Pursuant to section 3 of R.R.O. 1990, Reg 828, and section 2.5.10 of the Zoning-by-law, lands with within the NEDCA are exempt from the Zoning By-law and subject to the Niagara Escarpment Commission’s Development Control. In a report to the Niagara Escarpment Commission dated January 27, 2023, Town planning staff provided the opinion that “the proposed development is generally consistent with the intent of the non-urban regulations within Zoning By-law 14-45, as amended.”
Evidence and Submissions of the Appellants
25Mr. McCarty resides at 6 Queen’s Court, which is adjacent to the Subject Property. In support of his appeal, Mr. McCarty testified and relied on the photographs that were submitted as Exhibit 3 during the hearing. Mr. McCarty testified that he has extensive experience in drafting, design and project management in the building envelope field. Mr. McCarty expressed concern about ponding of existing water on his property and that the proposed development will exacerbate ponding, and expressed worry that a consequence of such ponding would be increased risk of exposure to West Nile Virus. He expressed concern as well about the removal of the tree, and about the development not conforming with the neighbourhood, among other concerns set out in his appeal.
26Mr. McCarty was also concerned about misstatements contained in the letter from the Town of Grimsby to the Niagara Escarpment Commission dated January 27, 2023 (“Letter”), entered as Exhibit 6. He testified that planning staff thought the garage was one storey as opposed to two stories. Mr. McCarty sought strict application by the Hearing Office of the zoning regulations in rural zones for accessory buildings (Section 4.18 of Zoning By-law 14-45, as amended). However, the Town’s planner opined in that Letter that the proposed detached garage generally meets the intent of the Town’s Zoning By-law provisions for accessory buildings, and that planning staff had no concerns regarding the extension of the driveway. Town planning staff were of the opinion that the Proposed Development met the intention of the Official Plan and that the Town’s zoning is not in effect in the area, but that the proposed development is generally consistent with the intent of the non-urban regulations within Zoning By-law 14-45, as amended.
27Mr. Beltrano resides at 13 Woodcrest Drive, which is adjacent to the Subject Property. Mr. Beltrano testified and relied on photographs that were submitted as Exhibit 3, and diagrams intended to provide analysis of the shadow that will be imposed by the garage and entered as Exhibit 5. Mr. Beltrano’s testimony focused on his concerns regarding the Proposed Development’s negative impact on his view of the Niagara Escarpment and on his privacy. He also expressed concerns about vehicle exhaust and noise pollution, the Proposed Development’s incongruence with the neighbourhood, and the shadows cast by the proposed two-storey garage. He disagreed with the opinion of Town of Grimsby planning staff that the Proposed Development would have minimal visual impact on the surrounding areas (as set out in the Letter).
28All of the other Appellants were present and given an opportunity to testify but they declined to do so.
29In summary, the Appellants submitted that the Proposed Development should not be permitted as it is not good planning and is inconsistent with applicable zoning by-laws. Their concerns centre around water runoff/ponding on their properties, vehicle exhaust and noise pollution, incongruence with the existing neighbourhood, loss of privacy, shadowing/loss of sunlight, loss of the escarpment view and the potential decrease in the value of their properties.
DISCUSSIONS, ANALYSIS AND FINDINGS
30The Appellants did not provide the Hearing Office with any expert evidence to support their concerns. Based on the expert planning evidence of Mr. Sullivan, the Hearing Office finds that the conditional Development Permit conforms with the NEP, 2017, and that it is correct and should not be changed. The Proposed Development is a permitted use and satisfies the applicable development criteria under the NEP, 2017, is consistent with the PPS, and conforms with the Growth Plan, the Regional OP and the Town OP. The Town’s Zoning By-law is not relevant to the assessment by the Hearing Office, because lands within the NEDCA are exempt from the Zoning By-law and subject to the Niagara Escarpment Commission’s Development Control.
31Regarding the Appellants’ concern regarding drainage/ponding, the NEP, the NEC and the Town did not require a drainage plan to be submitted for the application. The Applicant would be required to obtain a building permit for the proposed garage. Drainage is dealt with during the building permit process and would be reviewed by the Town at that time. The Hearing Officer finds that the Development Permit conforms with Part 2.6 of the NEP, 2017 in that the sewage system for the Proposed Development will be located at least 30 m from nearby watercourses and spring headwaters, and that a grading, drainage, and site plan is required as a condition of the proposed permit.
32Regarding the Appellants’ concerns regarding a lack of congruency with the surrounding area, Mr. Sullivan opined that the proposed garage is compatible with the residential character of the surrounding area. He referred to an existing detached garage of similar massing which fronts onto the nearby intersection of Leawood Drive and Queens Court. Regarding the visual impact of the proposed garage, Mr. Sullivan stated that it represents a well-designed built form and would have minimal visual impacts on the surrounding properties. The NEC, Region, and Town did not indicate that there were concerns regarding the visual impact of the proposed garage.
33Regarding privacy, Mr. Sullivan advised that the garage has been designed to address privacy, having no windows on the east nor the south sides of the garage that face the most proximate property boundaries.
34Regarding the issue of the view that Mr. Beltrano currently enjoys and claims that the Proposed Development would compromise, there is no right to a view, as stated in Hanlon Glen Homes Inc. v. Mississauga (City), 2023 CanLii 66831 (ON LT) and in other Tribunal decisions. Mr. Sullivan advised that the NEP, 2017 protects public views to the Niagara Escarpment but does not protect the views from private properties.
35Regarding the testimony of Mr. Beltrano and the shadow analysis information provided, it would have been helpful to the Hearing Office to have received expert opinion evidence regarding shadow impacts. The Hearing Office had concerns regarding the reliability of such evidence as provided by Mr. Beltrano, who is not qualified to analyze and provide opinions on shadow impacts.
36The Hearing Office is of the opinion that the decision of the NEC in issuing the Development Permit is correct and should not be changed, and the decision of the NEC to conditionally approve the Development Permit is confirmed.
ORDER
37THE HEARING OFFICER CONCLUDES that the Niagara Escarpment Commission decision to conditionally issue Development Permit N/R/2022-2023/262 is correct and should not be changed. The decision of the Niagara Escarpment Commission is deemed to be confirmed, pursuant to s. 25(12) of the Niagara Escarpment Planning and Development Act. The appeal is dismissed.
“Jennifer Gold”
JENNIFER GOLD HEARING OFFICER
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.