Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 28, 2024
CASE NO(S).: OLT-24-000291
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Town of Gravenhurst
Applicant: Jason Fabbian
Subject: Minor Variance
Description: To permit the construction of a single detached dwelling
Reference Number: A/39/2023/GR
Property Address: 1011 Old Portage Road
Municipality/UT: Gravenhurst/Muskoka D
OLT Case No.: OLT-24-000291
Heard: July 24, 2024 by Video Hearing
APPERANCES:
Parties
Counsel
Town of Gravenhurst District of Muskoka
Edward Veldboom
Jason Fabbian
Mark de Jong
MEMORANDUM OF ORAL DECISION BY G. POLITIS ON JULY 24, 2024, AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal was originally scheduled as a Merit Hearing, and at the request of the Parties just prior to the event, the matter was converted to a Settlement Hearing. The (“Settlement”) is for an appeal relating to a Minor Variance Application (“MVA”) pursuant to s. 45 (12) of the Planning Act (“Act”), to permit the construction of a single detached dwelling resulting from the denial of the MVA at the Committee of Adjustment (“COA”), in the Town of Gravenhurst (“City”). The Appeal has been filed by Jason Fabbian (“Appellant”/“Applicant”) regarding the property located at 1011 Old Portage Road, Gravenhurst/Muskoka (“Subject Property”).
2There were no further Party status requests.
3The parties agreed that the MVA is to be assessed under s. 45 (1) of the Act. The parties have agreed to resolve the appeal as set out in the Settlement.
4The Applicant is proposing to be granted relief from the maximum height restriction concerning a dwelling in the Residential Waterfront (RW-6D) Zone set out in section 14.2 of the ZBL.
5Following the City,s appeal of the decision of the COA the Applicant’s representatives opened discussions with City with a view to addressing the underlying concern which is to limit the visibility and appearance of the built form.
PROPOSED VARIANCE
6The proposed Variance is seeking relief from the current CZBL proposed by the Applicant to the City By-law (“ZBA”). The proposed variance is as follows:
- For a relief of 2.8 meters (“m”) for a building height of 10.3 m when the zoning only allows a height of 7.5 m.
LEGISLATIVE TEST
7This Settlement proposes to authorize the variance, and the Tribunal must be satisfied that the Variance:
Maintains the general intent and purpose of the Official Plan;
Maintains the general intent and purpose of the Zoning By-Law;
Is desirable for the appropriate development or use of the land, building, or structure; and,
Is minor in nature.
8Further, the Tribunal must be satisfied that the variance is also consistent with the Provincial Policy Statement (“PPS”) and have regard to matters of Provincial
interest, as well as the decision of the Approval Authority and the information that was before it.
HEARING EVIDENCE AND SUBMISSIONS
9The following are marked as Exhibits for the Hearing:
(Exhibit 1 a) Witness Affidavit from Mr. Adam Agar dated July 23, 2024;
(Exhibit 1 b) Minutes of Settlement dated July 18, 2024;
(Exhibit 2) CV of Mr. Adam Agar; and
(Exhibit 3) Acknowledgment Of Expert’s Duty dated July 23, 2024.
10The Tribunal qualified and affirmed Mr. Agar to provide opinion evidence in Land Use Planning following a careful review of his Curriculum Vitae and Acknowledgement of Expert’s Duty.
11Mr. Agar provided the Tribunal with a high-level overview of the Appeal and shared the overall description of the property and its current Zoning.
12Mr. Agar’s evidence included the conditions that were supported by both the Town and the COA. They are as follows:
a. The owner shall construct a natural stone wall, rising approximately six feet from the existing grade, at the front of the dwelling, in the approximate location of the previous bedrock, with eight large native woody shrubs
planted along the back of the wall (i.e., between the wall and the dwelling) as depicted and described in (Exhibit 1 b, MOS, paragraph 3).
b. The forgoing shall be incorporated into a revised site plan amending agreement.
13As it related to the primary issues of concern, Mr. Agar shared the following:
a) The view from the water
The Town’s primary concern with the requested variance and the built form that would be permitted, was that the policies concerning waterfront development seeks to limit the visibility and appearance of built form as viewed from an abutting waterbody.
In the absence of the proposed natural stone retaining wall and associated vegetation, the proposed variance would not maintain the general intention. Mr. Agar stated that it was in his professional opinion that the variance conforms to the intent of the OP, see below, (Exhibit 1 a, paragraph 11).
EXHIBIT 1 b, MOS, Schedule A
14Mr. Agar continued with his testimony ensuring the Tribunal that he had reviewed the requested variance and the proposed conditions.
15Mr. Agar considered the proposed variance utilizing the four tests as set out in s. 45(12) of the Act. In his professional opinion, Mr. Agar opined that the proposed variance satisfied the four tests.
ANALYSIS AND CONCLUSION
16Mr. Agar testified that the PPS s. 1.1 and its subsections, speak to efficient and resilient development and land use patterns. According to Mr. Agar, under the PPS mix of land uses is permitted, and the waterfront settlement areas would contribute to the range of houses to be built. With regards to the built form, Mr. Agar testified that the proposed variance has due regard for the matters of Provincial interest as set out in s. 2 of the Act and is consistent with the PPS representing good planning.
Test 1. Does the variance maintain the general intent and purpose of the Official Plan?
17The Tribunal is satisfied with the evidence supporting the Town’s primary Issues of the OP. The Town’s OP seeks to limit the visibility of dwellings as applied to waterfront development. The core issue is the view of the built form from the water. The addition of the proposed natural stone retaining wall and the associated vegetation, maintain the general intent for the primary concerns for the OP.
Test 2. Does the variance maintain the general intent and purpose of the Zoning By-Law?
18The Tribunal is satisfied with the evidence provided by Mr. Agar with regards to the proposed MOS. Mr. Agar testified that the Subject Property is zoned Residential Waterfront (RW-6D) as set out in section 14.2 of the ZBL. Mr. Agar testified that the maximum height restriction concerning the Subject Property conforms with and maintains the general intent and purpose of ZBL.
Test 3. Is the variance desirable for the appropriate development or use of the land, building, or structure?
19The Tribunal is satisfied with the evidence establishing the built form and the policies concerning its core issue regarding the view of the built form from the water. Mr. Agar testified that the requested variance is desirable for the appropriate use of the lands as it represents appropriate infill and adds a new development in the waterfront.
Test 4. Is it minor in nature?
20The Tribunal is satisfied that the variance is minor in nature and will not cause undue adverse impacts. As a condition of the Settlement, the addition of the stone wall and the vegetation (shrubs) will further mitigate the core issue of the view of the built form.
FINDINGS
21Based on the uncontroverted evidence of Mr. Agar through his witness
statement and oral testimony, the Tribunal is satisfied with the evidence presented with regard to the four tests identified under s. 45 of the Act. The Tribunal is satisfied that the Settlement has proper regard for matters of Provincial interest and is consistent with the PPS, the Growth Plan as well as its representation for good planning. After considering all the evidence provided by Mr. Agar, the Tribunal authorizes the minor variance.
ORDER
22THE TRIBUNAL ORDERS THAT the appeal is allowed and the variance to Zoning By-Law (10-04) in the Town of Gravenhurst is authorized subject to the following conditions:
a. The Owner shall construct a natural stone wall, rising approximately six feet from the existing grade, at the front of the dwelling, in the approximate location of the previous bedrock, with eight large native woody shrubs planted along the back of the wall (i.e., between the wall and the dwelling) as depicted and described in (Exhibit 1 b, MOS, Schedule A); and
b. The foregoing shall be incorporated into a revised site plan and site plan amending agreement.
“G. Politis”
G. POLITIS
MEMBER
Ontario Land Tribunal
Website: 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.