Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 28, 2024
CASE NO(S).: OLT-24-000585
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: PHSS Foundation
Subject: Minor Variance
Description: To permit the conversion of a cottage property to seasonal recreational camp
Reference Number: MV-2023-02
Property Address: 579 Peneshula Road
Municipality/UT: Lanark Highlands/Lanark
OLT Case No.: OLT-24-000585
OLT Lead Case No.: OLT-24-000585
OLT Case Name: PHSS Foundation v. Lanark Highlands (Township)
Heard: August 14, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| PHSS Foundation | Jacob Damstra |
| Township of Lanark Highlands | Spencer Putman |
MEMORANDUM OF ORAL DECISION DELIVERED BY YASNA FAGHANI AUGUST 14, 2024 AND FINAL ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION AND BACKGROUND
1The matter before the Tribunal concerns an Appeal filed by PHSS Foundation, (“Applicant/Appellant”) against the decision by the Township of Lanark Highlands (“Township”) Committee of Adjustment (“CoA”) refusal of an Application (“Application”) for a minor variance pursuant to s. 45(12) of the Planning Act, R.S.O. 1990, c.P.13 (“Act”), as amended.
2The Applicant is a non-profit organization providing unique and flexible support services to people with complex medical, physical, and/or developmental needs throughout Ontario. The subject property, municipally known as 579 Peneshula Road, Concession 11, Part Lot 20, in the former town of Darling (“Subject Property”), is a cottage property containing a single detached dwelling, a sleeping cabin and two accessory buildings. The Subject Property is located within the Commercial Recreational (“CR”) Zone. The Applicant seeks to convert the cottage property into a seasonal recreational camp. The Tribunal was advised that this Application is for the expansion of a legal non-conforming structure. As such, the variance request involves 1) conversion of the existing single detached dwelling into a “Recreational Camp Building”; 2) increasing the size of the single dwelling from the current 55.5 squared meters to 194 squared meters; and 3) constructing an additional sleeping cabin, 94 squared meters.
3The Tribunal was advised that the Applicant intended first to obtain an order for the minor variance application (“Application”) and then would proceed with the site plan approval process. A copy of the site plan was submitted to the Tribunal and is part of the conditions of settlement which will be discussed below in this decision.
4The Application was filed with the Town, and according to the Staff Planning Report dated March 12, 2024, the Town was in support of the Application subject to conditions. The CoA denied the Application..
5On April 5, 2024, the Applicant filed an Appeal before this Tribunal. There were no issues raised regarding the Administrative Notice of this Hearing dated June 24th, 2024, and marked as Exhibit 1.
6The Tribunal did not receive any Party or Participant Status Requests, and no one appeared at the Hearing requesting Party of Participant Status.
7For the reasons that follow, the Tribunal finds that the Appeal should be allowed, and the minor variances authorized with the conditions as discussed below.
HEARING
8The Tribunal acknowledged minutes of settlement filed by the Town prior to the Hearing. The Applicant confirmed the settlement documents and it agreed to the settlement of the minor variances, with conditions, discussed later in this Decision.
9The Tribunal heard uncontroverted viva voce evidence from Mr. Forbes Symon of Jp2g Consultants Inc., who was qualified as an expert in land use planning. His curriculum vitae and acknowledgement of expert duty, along with his affidavit are marked as Exhibit 2.
LEGISLATIVE TEST
10With respect to minor variances, s. 45 (1) of the Act, the Tribunal must be satisfied that the requested variances:
a. maintain the general intent and purpose of the regional Official Plan (“OP”) and the Town OP;
b. maintain the general intent and purpose of the zoning by-law;
c. are minor in nature; and
d. are desirable for the appropriate development or use of the land, building or structure.
11Further, the Tribunal must be satisfied that the variance is also consistent with the Provincial Policy Statement, 2020 (“PPS”) and have regard to matters of provincial interest, as well as for the decision of the approval authority and the information that was before it.
ANALYSIS AND FINDINGS
General Intent and Purpose of the Official Plan
12Mr. Symon testified that the Subject Property is comprised of three parcels of land by the same owner with an approximate area of 0.5 hectares. According to Mr. Symon, the Lanark Highlands OP designates the subject lands as “Rural” and supports the expansion of legal-nonconforming structures under section 3 and its various subsections.
13The OP also recognizes that there is a Provincially Significant Wetland (“PSW”), Lowney Lake (“Lake”), located to the west of the Subject Property. According to Mr. Symon, the policies of the OP regarding Waterfront Community Developments include the need to protect the quality of the Lake, enhance/protect the shoreline, protect wetlands, and cause no adverse effects.
14According to Mr. Symon, the Waterfront Communities designation permits recreational commercial uses, such as the one proposed in this Application, subject to site plan control. Furthermore, the OP Wetlands policy under section 5.3.2 requires that all new development proposed within 120 metres (“m”) of a wetland be supported by an Environmental Impacts Statement (“EIS”) and requires that all development be outside of a 30 m setback from the highwater mark of the wetland. Mr. Symon advised that the Applicant commissioned an EIS to support the development and will commit to the recommended mitigation measures through the Site Plan control. In addition, the new development being proposed will be outside the 30 m setback. In sum, Mr. Symon opined that the proposed development meets the general intent and purpose of the OP.
General Intent and Purpose of the Zoning By-law
15Mr. Symon testified that the Subject Property is zoned Commercial Recreational (“CR”) and that the zoning permits recreational camps defied as “a facility operated by a private or public organization where children and/or adults are temporarily accommodated in tents, cabins, cottages and/or lodge houses and may include such uses as a church camp, a day camp or a scout camp.” He submitted the existing cottage use is not permitted under the CR zone and that the proposed use of a recreational camp is permitted.
16In addition, the CR zone requires a minimum lot size of at least 1 acre of land. The Subject Property is 0.5 hectares which is more that the required minimum size under the Zoning By-law (“ZB”). Mr. Symon advised that the ZB requires a 10 m side yard setback, while accessory uses require 5 m setback for non-residential uses. According to Mr. Symon, the proposed Site Plan appears to satisfy the provisions of the CR zone. As such, he confirmed that each of the variances requested meet the intent of the ZB.
Desirable for the Appropriate Development use Lands
17Mr. Symon testified that the requested variances are desirable for the appropriate use of the lands as it represents the conversion of the Subject Property into a permitted use under the ZB. Further, a new septic system, subject to Site Plan controls, will be added to property to support the proposed developments with the addition of 5 new parking spaces to sufficiently accommodate the expansion.
Variances are Minor
18Mr. Symon opined that the proposed developments are minor in nature since the expansions would be to the rear of the property and the lot coverage will be approximately 5.74%. In his Affidavit in support of the Application, he confirmed that the proposed development, subject to the implementation of the prosed conditions, will not result in adverse impacts on surrounding uses.
PROPOSED CONDITIONS TO THE MINOR VARIANCE APPLICATION
19In the minutes of settlement, several conditions to the minor variances were proposed by Mr. Symon. Counsel for the Applicant confirmed that his client agreed agreed with all of said conditions.
FINDINGS
20The Tribunal is satisfied by the evidence provided by Mr. Symon, through his uncontroverted testimony, that all of the minor variances individually and collectively have satisfied the four tests outlined in s. 45 of the Act, and that the proposal has proper regard for matters of provincial interest and is consistent with the PPS and applicable policies. The Tribunal finds that the totality of evidence before the Tribunal supports the authorization of the minor variances.
ORDER
21THE TRIBUNAL ORDERS that the Appeal is allowed and the minor variance to Zoning By-law No. 2003-451, to permit the conversion of the cottage property into a recreational camp, increasing the size of the single detached dwelling from the current 55.5 meters squared to 194 meters squared, and constructing an additional sleeping cabin 94 meters squared, are authorized, subject to all of conditions listed below:
Any development on the Subject Property, including without limitation the expansion and enlargement of the legal non-conforming structure and its conversion to a permitted use, shall be done in accordance with the Site Plan attached to Schedule A of this decision, the recommendations of the November 14, 2023, Gemtec ESI and for the exclusive purpose of establishing a recreational camp as defined in the Zoning By-law No. 2003-451 on the Property.
No Building Permit shall be issued until Site Plan approval is provided for the development by the Town pursuant section 41 of the Planning Act.
The Applicant shall enter into agreement with the Town pursuant to section 45 (9.1) of the Planning Act imposing the above conditions and the Agreement shall be registered on tile to the property pursuant to section 45(9.2) of the Planning Act.
“Yasna Faghani”
YASNA FAGHANI 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.
Schedule A