Brad and Kelly Smith v. Municipality of Hastings Highlands, 2024 CanLII 94863

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 24, 2024

CASE NO(S).: OLT-24-000496

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant: Brad and Kelly Smith

Subject: Minor Variance

Description: to permit 2-storey garage

Reference Number: A-27-2023

Property Address: 180 Sheldon Lane

Municipality/UT: Hastings Highlands/Hastings

OLT Case No: OLT-24-000496

OLT Lead Case No: OLT-24-000496

OLT Case Name: Smith v Hastings Highlands (Municipality)

Heard: July 15, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

Brad and Kelly Smith

Matthew Helfand

Municipality of Hastings Highlands

Spencer Putnam

DECISION DELIVERED BY G.A CROSER AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is an appeal pursuant to subsection 45(12) of the Planning Act (“Act”). It arises out of an application for four minor variances by Brad and Kelly Smith (“Appellants”) in relation to the property known as 180 Sheldon Lane, Salmon Trout Lake (“Subject Property”) in the Municipality of Hastings Highlands (“Municipality”).

2The Appellants required the minor variances in order to construct a two-storey detached garage on the Subject Property. Specifically, the Appellants sought relief from Zoning By-law No. 2004-035 (“ZBL”) for the following:

1. A slope setback of 27 metres (“m”), whereas s.5.9.2 (ii) of the ZBL requires a minimum distance of 30 m;

2. A lot coverage for accessory buildings of 6%, whereas s.5.25.1(a) limits lot coverage to 5%;

3. A front lot line setback of 6.1 m, whereas s.5.25.4 requires that an accessory building be no closer than 10 m to any lot line; and

4. An accessory building height of 6.3 m at the midpoint of the roof, whereas s.8.3(b)(iv) sets a maximum building height for an accessory building of 4.5 m.

3The Municipality’s Planning staff supported three of the four variances - the height variance was not recommended. The Committee of Adjustment (“COA”) refused all four variances citing, amongst other reasons, concerns with respect to drainage, location, and the size and height of the garage.

4The Municipality stated at the hearing that it did not oppose the variances for lot coverage and setbacks and that it could support a single storey garage. However, as an appeal pursuant to s.45 is a hearing de novo, the onus of establishing that each variance meets the four tests listed under s.45(1) of the Act is incumbent upon the Appellants.

PRELIMINARY MATTERS

5The Tribunal received one request for Participant status in advance of the Hearing. Dale Robinson is the owner of the property immediately adjacent to the Subject Property, and as neither Party objected, the Tribunal granted him Participant status. Robinson was opposed to the Appellants’ application referring to it in his Participant Statement as “an oversize, and overheight building.” Mr. Robinson’s Statement also included page references from the Municipality’s Document Book which has other material written by Mr. Robinson in opposition to the application.

6On the eve of the Hearing, the Tribunal received two video clips from Mr. Robinson of the area around Sheldon Lane and Salmon Trout Lake. This information was also sent to the Municipality and was viewed by their planner, John Jardine. The Appellants’ planner, Miles Weekes, was unable to access the content before the Hearing. Rule 7.7 of the Tribunal’s Rules of Practice and Procedure states that a “Participant may only make submissions to the Tribunal in writing.” However, as neither Party objected to the visual evidence and the Tribunal found its inclusion useful in providing context, the video clips were included as an Exhibit.

7As a matter of procedural fairness, the Tribunal provided the Appellants’ planner with the opportunity to prepare a summary of their opinion evidence as it related to the video clips. The planner was provided the direct video links, viewed the evidence, and declined to make submissions on those clips.

8The following Exhibits were marked as exhibits at the Hearing:

1. Document Book of the Appellants

2. Witness Statement of the Appellants

3. Document Book of Hastings Highlands

4. Video Clips provided by Dale Robinson

5. Participant Statement of Dale Robinson

SITE CONTEXT

9The Subject Property is located on Sheldon Lane, a privately owned road with a maintenance agreement shared between local property owners. The Municipality is part of the County of Hastings and as such, the County of Hastings Official Plan (“OP”) establishes the general land use policy framework for the Subject Property. The site is designated “Rural and Waterfront”, as per Schedule OP-A of the OP. There is no applicable lower-tier Official Plan. The lands are zoned Limited Service Residential (“LSR”) Zone in the ZBL.

10The Subject Property includes a residence that is adjacent to Salmon Trout Lake, several small accessory buildings, and access to the water’s edge. The surrounding community of mostly low-density waterfront residential uses is anchored by the shared feature of Salmon Trout Lake (“Lake”) with most properties functionally orientated towards the water. On the opposite (east) side of Sheldon Lane, there are largely undeveloped woodlands and some protected environmental features. As properties in this rural area have developed over time, there is no cohesive development pattern. The result is a range of dwelling types and lot sizes. Several properties in the surrounding area also feature various accessory structures, such as detached garages of one and two storeys. The Tribunal was informed that it was not uncommon for garages in this area to be built in proximity to the road.

11The natural topography of the site slopes downwards from Sheldon Lane to the Lake, with a drainage ditch along the property line between the Subject Property and neighbouring 168B Sheldon Lane. The Appellants’ planner, Miles Weekes, described the Subject Property’s irregular lot size as shaped like a “hockey stick”. This lot configuration was created as a result of a lot addition application which was approved in 2019. A gravel pad, supported by a rock retaining wall, was constructed by the Appellants (“Gravel Pad”) and due to the sloping nature of the site, the elevation of the pad is higher than the waterfront residences of 180 and 168B Sheldon Lane and below the grade of Sheldon Lane. As a result of the unusual lot layout, this pad is situated in front of the residence located at 168B Sheldon Lane rather than the Subject Property.

PROPOSED DEVELOPMENT

12The variances are required to permit the development of a two-storey detached garage on the Gravel Pad. The proposed garage is 9.14 m wide and 12.19 m deep, with a total footprint of 111.48 sq m (“m²”) (the “Garage”). The mean height of the garage is approximately 6.3 m, measured to the midpoint between the eaves and ridge of the roof, as per the ZBL. The total building height of the Garage is approximately 7.2 m to the ridge of the roof.

13The purpose of the Garage is storage. The first-floor height of the structure is proposed to have a floor to ceiling height of approximately 3.2 m, to accommodate the height of the boats. The second storey of the Garage is proposed for storage of smaller miscellaneous items, the floor to ceiling height of the second floor will be approximately 1.8 m (6ft) at the lowest point. The proposed Garage will not include any living, sleeping, dining, or washroom spaces/facilities. No new access points along Sheldon Lane are required, and the Subject Property will continue to utilize the existing entrance along Sheldon Lane.

14The layout and details of the proposed Garage are located in the Site Plan, included herein this Decision as Attachment ‘1’.

LEGISLATIVE FRAMEWORK

15In considering aminor variance application, s.45(1) of the Act outlines the four tests that the Appellant must demonstrate are met, namely that the requested variances:

• maintain the general intent and purpose of the OP

• maintain the general intent and purpose of the ZBL

• Are desirable for the appropriate development or use of the land, building or structure; and

• Are minor in nature

16Additionally, the variances must be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform to any other applicable Provincial Plan. The Tribunal must also have regard to matters of Provincial Interest and to the decision made by the COA, as well as the information and material considered by it in the course of making its decision.

HEARING

17The Tribunal heard testimony from Miles Weekes appearing on behalf of the Appellants. Mr. Weekes was qualified by the Tribunal to provide expert opinion evidence in the area of land using planning. John Jardine, who at all relevant times was employed as the Municipal Planner for the Municipality, was also present and similarly qualified. Mr. Jardine did not provide an Affidavit in support of the Municipality’s decision, but rather relied upon the staff planning report dated February 1, 2024 (“Staff Report”) produced by his department in advance of the COA meeting.

18Counsel for the Municipality noted at the onset of the Hearing that the Municipality only opposed the proposed variance for height. As such, Mr. Weekes’ testimony on the other three variances was uncontested.

Variance 1: Request for a slope setback of 27 metres

19Mr. Weekes explained to the Tribunal that the Gravel Pad on which the proposed Garage is to be built has a slope greater than 3:1, or 18 degrees. As such, a variance to permit development within 30 m of a steep slope is required. Mr. Weekes emphasized that the Gravel Pad was stable and that the retaining wall was not a high point for fall risks, and that no potential erosion hazards were anticipated. The Tribunal notes that at no point during the Hearing was any evidence presented to the Tribunal to suggest that the location or construction of the Gravel Pad rendered it an unsuitable base on which to construct the Garage.

20The Staff Report states that the intent and purpose of s. 4.4.2.2 of the OP and Section 5.9.2 (ii) of the ZBL is to require setbacks from natural or hazardous steep and/or unstable slopes. Mr. Weekes’ Affidavit also listed s. 4.2.2 of the OP, which provides policy direction for erosion hazards in the Municipality. It was the Planner’s opinion that the intent and purpose of this policy was to ensure that erosion hazards related to steep and/or unstable slopes are mitigated with appropriate setbacks. This interpretation was not challenged by the Municipality.

21The Tribunal was informed that due to the physical constraints of the Subject Property, the Gravel Pad was the only feasible location which can accommodate a garage structure. Mr. Weekes’ evidence was that as no erosion or other safety hazards were anticipated as a result of developing within 30 m of the steep slope, the proposed variance was desirable to facilitate the development of an accessory garage on a safe and stable surface. Lastly, with respect to ‘minor impacts’ associated with the proposed variance, Mr. Weekes’ evidence was that the Gravel Pad was constructed in a manner to ensure the stability of the proposed garage structure, and that there were no erosion or hazard risks anticipated.

Variance 2: A lot coverage for accessory buildings of 6 percent

22The proposed Garage would have a footprint of approximately 111.5 m², representing a lot coverage of approximately 4.2%. As there are accessory buildings already on the Subject Property, the accumulated total of all the accessory structures would be approximately 5.6%, hence the need for a variance.

23Mr. Weekes explained to the Tribunal that the construction of the Garage would not require the removal of any existing vegetation. Furthermore, the Appellants planned to plant native species between the Garage and Sheldon Lane to better screen and blend the proposed Garage from the roadway. Mr. Weekes’ opinion was that the Garage was “appropriately sized within the context of the rural waterfront area” and more broadly “consistent with the character of the community” around the Lake. To Mr. Weekes, the increase in lot coverage of 0.6% was minor and maintained the general intent of the OP and ZBL as it would not result in a perceptible change in the visual characteristics of the area. Lastly, as alluded to earlier, the proposed site for the Garage was the most appropriate location on the Subject Property given the layout and topography of the Subject Property.

Variance 3: A front lot line setback of 6.1 m

24The third variance pertains to s.5.25.4 of the ZBL, which states:

An accessory building shall not be built closer to any lot line than the minimum distance required by this By-law except that common semidetached garages may be erected on a mutual side lot line.

25Mr. Weekes’ Affidavit noted that s. 8.3(b) of the ZBL identifies the zone regulations for accessory buildings not attached to a principal building in the LSR Zone. It sets the specific setback and height requirements for such accessory structures but does not identify the required minimum front yard setback. As such, the Planner determined that the proposed Garage was subject to the standard setback front yard requirement of LSR Zone, which applies to principal buildings. As s.8.3(a) of the ZBL requires a minimum 10 m front yard setback and the proposed garage is setback 6.1 m at the nearest point from the front lot line, a minor variance is required. Mr. Weekes pointed out that this proposed variance was recommended for approval by the Staff Report, suggesting that Mr. Weekes’ approach to the required front yard setback was acceptable to the Municipality.

26With respect to the general intent and purpose of the OP, Mr. Weekes quoted s. 3.6.2.15 of the OP which requires that ZBLs “shall provide adequate setbacks from roadways and the establishment of right-of-ways for future road improvements”. Mr. Weekes’ opinion was that a 6.1 m setback would be sufficient to accommodate future road maintenance and improvements. It is noteworthy that a right-of-way agreement was entered into between the property owners along Sheldon Lane and the Municipality, confirming that the Municipality will not assume or maintain the road. As such, Mr. Weekes informed the Tribunal that the proposed variance could not and would not impact any future road improvements undertaken by the Municipality.

27It was Mr. Weekes’ evidence that the variance met the general intent and purpose of the ZBL as the purpose of a minimum setback from the front lot line was generally to ensure that development was setback in a consistent manner which maintains neigbourhood character and appropriately transitions from public to private realms. In Mr. Weekes’ opinion, this variance would not adversely impact the character of the local streetscape and, as sight lines would not be obstructed by the proposed Garage, was not anticipated to result in any safety issues.

28With respect to whether the relief sought was desirable or appropriate, Mr. Weekes again pointed out that the proposed position and orientation of the Garage on the Gravel Pad was the only feasible location that could accommodate the structure on the Subject Property. Mr. Weekes also pointed out that the reduced front yard setback allowed for a greater setback to be maintained from the mutual property line shared with 168B Sheldon Lane – a fact that was not disputed by the Municipality. The Planner concluded his evidence on this variance by opining that the variance would result in minimal visual impact on the neighbourhood.

29The Affidavit evidence prepared by Mr. Weekes included a table of other variances approved by the COA for structures in the Lake area (the “Table”). During cross-examination, Mr. Weekes acknowledged that, of the properties in the Table, none had a Garage as close to the front lot line as the one proposed by the Appellants. However, Mr. Weekes pointed out that front lot line is angled in proximity to the proposed Garage creating an irregular setback from the road that ranges from 11.7 m to 6.1 m at the smallest distance.

Variance 4: An accessory building height of 6.3 metres

30Section 5.4 of the OP provides policy direction for lands designated Rural and Waterfront on Schedule OP-A. Permitted uses in this designation includes rural development that respects traditional features of the landscape and generally maintains the character of the area, limited low density residential uses, agricultural uses, and various other small scale commercial and industrial uses. Mr. Weekes’ evidence at the Hearing was that the proposed Garage and its size and location all met the general intent and purposes of the OP. He pointed out that the Municipality had agreed that the location and lot coverage of the Garage was appropriate. In the Planner’s opinion, the building massing was appropriate given the lot size and coverage.

31Mr. Weekes testified that the additional 1.8 m of building height, created by the second storey of the proposed Garage, would not have any significant impact on the character of the neighbourhood as viewed along Sheldon Lane or viewed from the Lake. The Planner explained that the Garage would be setback approximately 70 m from the shoreline and that the height of the Garage would be below the tree canopy. Mr. Weekes’ visual evidence demonstrated that the views to and from the Lake would not be affected by the construction of the accessory structure and that there were no clear sightlines from Sheldon Lane to the Lake and from the vantage point of the Lake, no clear sightlines to the road. Mr. Weekes also relied upon his Table to demonstrate that development in the community was characterized by a variety of one and two storey structures.

32Mr. Jardine took a differing view of the Table. The Municipality’s planner pointed out that prior approvals do not set a precedent for future applications and stressed the site-specific nature of those proposals. He stated that while prior approvals may assist with understanding the character of the neighbourhood, the Appellants’ application must be reviewed on a site-specific basis.

33To Mr. Jardine, the height variance did not meet the general intent and purpose of the OP and the planner cited several policies of the OP in support of this opinion. For instance, he referred to s.5.1.1 of the OP which sets out the goals for the economy of the County of Hastings which includes the following statement:

(c) To maintain the natural and scenic qualities of the various rural landscapes in the County, its rural character and lifestyle and substantial amount of open lands

34Mr. Jardine also directed the Tribunal to s.5.4.5.3 (b),(d) and (g) of the OP which provide the planning principles on guiding development in the Rural and Waterfront designation. In particular, the Planner emphasized that structural development should maintain a low structural profile. As the Garage is to be situated on an elevated Gravel Pad and with reduced space for vegetative screening, Mr. Jardine opined that the Garage would not blend in and would “loom over the neighbour’s building”.

35On cross-examination, Mr. Jardine acknowledged that a two storey building could be built next to a single storey structure and that even a three storey structure was “possible” if it met the necessary tests. Mr. Jardine also confirmed that some variation in height was permitted under the policy framework and that variations in height between properties was to be expected – although the Planner added the caveat that they must maintain the character of the neighbourhood.

36The mean height of the proposed Garage would be approximately 6.3 m. The variance is required to permit an additional 1.8 m (5.9 ft) of building height beyond the maximum permitted in the ZBL. Section 8.3(b)(iv) of the ZBL states that for detached accessory buildings in the LSR zone, the maximum building height shall be 4.5 m. For a gabled roof, building height is measured as the vertical distance between the established grade and the “mean” height between the eaves and ridges of the roof.

37For the second test, regarding whether or not the variance meets the general intent and purpose of the ZBL, Mr. Weekes testified that the intent of the maximum building height provision in the ZBL was to ensure that new development is compatible with the character of the surrounding area, and that there are no adverse impacts to adjacent lands as a result of taller building heights. The Planner testified that the location of the Garage would ensure minimal impacts to adjacent properties, including shadowing, intrusive overlook, and loss of privacy for neighbouring properties.

38Mr. Jardine testified that building height, as defined in the ZBL, did not include the elevated Gravel Pad in its calculation of mean height. In his view, the Gravel Pad should be included in the Tribunal’s consideration as its elevated position in relation to 168B Sheldon Lane would impact on the perception of built form in the neighbourhood. On cross-examination, Mr. Jardine did acknowledge that the Appellants owned the land on which the Gravel Pad was located and that this portion of the Subject Property was a developable area. Further, Mr. Jardine acknowledged variations in height between properties was to be expected. Mr. Jardine also agreed with Counsel for the Appellants that the building height for principle buildings in the ZBL was 11 m and that if approved, the Garage would be approximately 4 m shorter than the height permission granted for principle buildings.

39On the third prong of the test, regarding the appropriateness or desirability of the structure, Mr. Weekes’ evidence centred on the function of the proposed Garage. He began by noting that a detached garage as an accessory structure was permitted by the ZBL. Mr. Weekes testified that the first floor of the Garage would have a higher ceiling to accommodate boats and other items “typically associated with a lakefront property”, whereas the second level would have a lower height and be used for the storage of smaller items. As no living spaces or habitable rooms were proposed within the Garage, there would be no loss of privacy for adjacent properties resulting from the additional 1.8 metres of building height. Mr. Weekes also noted that lakefront properties are generally orientated towards the water and pointed out that the neighbouring property had only two windows that faced towards the Gravel Pad and Sheldon Lane.

40Mr. Weekes also reminded the Tribunal that, given the physical constraints of the site, the proposed position and orientation of the Garage was the only feasible location which can accommodate the structure. To Mr. Weekes, the proposed Garage was a logical solution for storage needs and was in keeping with the character and scale of garages on nearby properties. He explained that there was insufficient area to expand the footprint of the Garage to eliminate the need for a second storey. In the Planner’s opinion, the Garage was a desirable and appropriate structure and use of the land.

41Mr. Jardine’s position was that the height of the proposed Garage was neither desirable nor appropriate. In his view, the structure would not maintain the character of the neighbourhood, and there was a lack of space for vegetative screening. On cross-examination Mr. Jardine conceded that the “standard is not absolute screening, it is relative screening.” He also agreed that there is no Municipal requirement that all new buildings should be hidden by vegetation. Although, Mr. Jardine pointed out that the natural landscape and vegetation is a dominant feature in the area.

42The final test is whether or not the variance is ‘minor’. Mr. Weekes stated that the determination of whether a variance is minor is not mathematical, rather the test is intended to assess the degree of any impacts resulting from the variance. In this case, the Gravel Pad had a lower elevation than Sheldon Lane, meaning that the perceived height of the structure from the road would be lessened. Although, in turn, the Gravel Pad is in an elevated position compared to the residences at 180 and 168B Sheldon Lane. Mr. Weekes stressed, as he had done at several points during the Hearing, that the Appellants would be planting a vegetative buffer which would help blend the Garage into its surrounding context.

43Mr. Jardine took a different view of the proposed planting around the Garage. In his view, there was minimal space for vegetation and that the Gravel Pad was fully visible from the road. He also pointed out that the Garage would be located on the elevated Gravel Pad in the view of 168B Sheldon Lane. While the Municipality provided no evidence in opposition to Variance 3, with respect to the front yard lot line, on cross-examination, Mr. Jardine agreed with the following points made by the Appellants’ counsel: that the Garage would not be the tallest structure in the area, that it would not be the tallest Garage in the area, and that it would not be the closest structure to the road.

44The Municipality’s planner opined that the impacts to the neighbouring property caused by the height of the Garage were not minor. Mr. Jardine pointed out that the Garage is being proposed between a neighbour’s dwelling and the road which has a visual impact on the neighbour when considering the proposed height of the proposed Garage and the elevated Gravel Pad. Mr. Jardine commented that the other buildings and approvals by the COA in the Table were located further back from the road, did not visually impact adjacent dwellings, and were generally in line with the established building line of nearby properties. Mr. Jardine opined that typically two-storey garages, in the area, were built further from the road and noted that the two-storey garages included in the Table were 13 m or more from the road.

45Counsel for the Appellant questioned Mr. Jardine on why an extra 1.8 m in height of the Garage (created by the second storey) would create such a negative impact on the neighbouring property. Mr. Jardine’s response was that he had considered the totality of the application and that the elevated location of the Gravel Pad and its location in front of 168B Sheldon Lane would create a visual impact on that property that could not be defined as ‘minor’. Counsel for the Appellant queried if this visual impact was similar to saying “I don’t want to look at it”? Mr. Jardine agreed that someone could say that.

46The Tribunal was informed that a shadow impact study had not been completed and that the proposed height of the Garage did not warrant a full study. Mr. Weekes explained that existing trees in the area generally shadow the neighbouring dwellings already, and the height of the proposed Garage would not result in significant new shadowing. This point was not tested on cross examination nor was any opposing position on shadow impacts taken by the Municipality’s planner.

47With respect to privacy concerns of the neighbouring property, 168B Sheldon Lane, Mr. Weekes opinion was that there would be “no unacceptable overlook concerns” and that windows on the west side of the Garage (facing 168B Sheldon Lane) could be limited. The comment was made by counsel for the Municipality that there was nothing in the ZBL to control the placement or limit the number of windows in a garage. Mr. Weekes acknowledged this but stated that this was merely an observation about his experiences with other projects.

Provincial Policy Statement, 2020 (“PPS”)

48Applications under this section of the Act must be consistent with the PPS, as per s.3(5) of the Act. Mr. Weekes’ Affidavit provided an overview of the appliable policies which was not contested by Mr. Jardine. The Subject Property is adjacent to the Lake with no other identified natural heritage features on or near the Subject Property. The proposed development is more than 30 m from the high-water mark and is therefore consistent with Policies 2.1 and 2.2.1 of the PPS, which addresses the protection of fish habitat, water quality and quantity.

49The proposed Garage is being erected on a Gravel Pad that has been developed to ensure stability for the structure (Policy 3.1.7 a) and c)). As such, there will be no or minimal adverse environmental impacts from this development (Policy 3.1.7 a) and c)).

50Mr. Weekes noted that the 2024 version of the PPS was not yet in force and effect. However, he opined that there were no significant deviations with respect to rural development and the protection of natural heritage features in the updated policy and that the application was consistent with this document.

51Mr. Jardine provided no evidence at the Hearing with respect to the application’s conformity with the PPS. As such, the Tribunal accepts the uncontroverted evidence of Mr. Weekes with respect to the four minor variances conformity with the PPS.

TRIBUNAL ANALYSIS AND CONCLUSION

Variance 1

52The Tribunal accepts the uncontroverted and uncontested evidence of Mr. Weekes that the general intent of the OP and ZBL is to require setbacks from natural or hazardous steep and/or unstable slopes. There was no evidence led or suggested that the Gravel Pad was not properly constructed, and the Tribunal is satisfied that it is an appropriate surface that can accommodate an accessory structure. The Tribunal is satisfied that the reduction in setback from 30 m to 27 m would not create any erosion or safety hazards. The Tribunal finds that this minor variance is consistent with the PPS and meets the four tests as set out in s.45(1) of the Act.

Variance 2

53The Tribunal accepts the uncontroverted and uncontested evidence of Mr. Weekes that the increase in maximum lot coverage for all accessory structures on the lot of less than one percent, is consistent with the PPS and meets the four tests as set out in s.45(1) of the Act. The Tribunal finds that this slight increase from the required lot coverage will have minimal difference and minimal impact.

Variance 3: A front lot line setback of 6.1 m

54The Tribunal accepts the uncontroverted evidence of Mr. Weekes with respect to the front lot line setback. The intent and purpose of the 10 m setback as set out in s.3.6.2.15 of the OP is to ensure development is sufficiently setback to provide for the establishment of rights-of-way for future road improvements, and have regard for safety, noise, dust and odour. As the Municipality will not be assuming or maintaining Sheldon Lane, and as the use of the Garage is for storage, there were no concerns raised with respect for safety, noise, dust and odour. The Tribunal notes the testimony of Mr. Weekes that the reduced front yard setback would result in a greater setback from the property line between the Subject Property and neighbouring 168B Sheldon Lane. The Tribunal accepts Mr. Weekes’ evidence that the proposed Garage would not impact sightlines to and from the roadway or impede access to neighbouring properties. The Tribunal finds that this minor variance is consistent with the PPS and meets the four tests as set out in s.45(1) of the Act.

Variance 4

55According to the testimony provided by Mr. Weekes, the proposed development will have no negative impacts on natural environmental features or the shoreline, and the Municipality raised no concerns with respect to erosion hazards. As Mr. Jardine provided no contrary evidence at the Hearing, the Tribunal accepts Mr. Weekes’ evidence that this variance is consistent with the PPS.

56The Tribunal has reviewed the relevant sections of the OP provided by both planners. In particular, the Tribunal has considered s.5.4.5.3 of the OP which outlines the planning principles intended to guide future development within lands designated Rural and Waterfront on Schedule OP-A. The following subpoints are relevant to this Appeal:

• (b) The natural landscape should prevail with built form blending into the landscape;

• (e) Native species should be used for buffers and where vegetation is being restored; and

• (g) Structural development will maintain a low structural profile and will not create a new skyline or ridgeline above the existing tree canopy.

57Mr. Weekes indicated that the Appellants’ construction will not remove any existing vegetation and that they would be planting native species along side the Garage to assist in blending the Garage into the landscape and obscuring views of the structure. Counsel for the Appellant noted in closing submissions that absolute conformity was not the standard when considering neighbourhood character and when an area has been developed and then redeveloped over time, it is expected that differences emerge. Counsel for the Municipality submitted that the “natural environment” should prevail and that development should blend in with the landscape.

58180 and 168B Sheldon Lane are both waterfront properties, and the focal point of these residences, as with others in the vicinity, is the Lake. The Tribunal heard that the proposed Garage would not be visible from the Lake and would not rise above the existing tree canopy. The Tribunal accepts that the skyline, as viewed from the vantage point of the Lake, would not be negatively impacted by the height of the Garage.

59From the driveway access to 180 and 168B Sheldon Lane as viewed from Sheldon Lane, there is no view of the Lake. The Tribunal accepts the evidence of Mr. Weekes that the Appellants intend to plant native species to cultivate a vegetative buffer around the Garage, Mr. Jardine’s claim that there would be insufficient space for planting vegetation alongside the Garage for screening purposes lacked substance. The Tribunal concurs with Mr. Jardine’s concession that there is no requirement in the OP that a new structure be completely blended with the natural landscape. Given the planned vegetative screening and the unchallenged evidence that the Garage height will be below the existing tree canopy, the Tribunal finds that the natural landscape, as viewed from the Lane and from residential windows facing Sheldon Lane, will not be permanently impaired by the construction of the Garage. The Tribunal finds that the proposed height of the Garage is consistent with the general intent and purpose of the OP.

60The Subject Property is zoned LSR under the ZBL, which permits a detached garage as an accessory structure. Both planners agreed that the intent of the maximum building height provision in the ZBL is to ensure that new development is compatible with the character of the surrounding area, and that there are no adverse impacts to adjacent lands as a result of building heights. While the Table provided examples of other two storey structures in the surrounding area, the Tribunal is mindful that these are not uniform lots, and each has its own set of natural features, topography and possible limitations. The Tribunal is not convinced that the height of the Garage should be allowed solely on the evidence of other approvals in the surrounding area.

61While the proposed building height is higher than that permitted in the ZBL, the height variance maintains the character of the neighbourhood as a Garage is accessory to the existing waterfront residential use. The evidence provided by the Appellants was that the proposed height of the Garage fit within the sloping topography of the land from Sheldon Lane to the waters edge. Mr. Weekes testified that that there would be no adverse shadow impacts or safety risks or hazards to the neighbouring property based solely on the height of the Garage. This was not challenged by the Municipality and the Tribunal accepts Mr. Weekes’ evidence on these points.

62The Garage will not be visible from the Lake, which is the focal point of the neighbourhood. The accessory structure will be at a lower grade than Sheldon Lane, which will be below the tree canopy and the planned planting of native species and will, over time, provide screening from Sheldon Lane and the neighbouring property. From a zoning perspective the Tribunal finds that the height transitions from the elevation of Sheldon Lane to the Garage, and from the Garage to the residential dwellings at the waterfront are not unreasonable. The Tribunal finds that the height variance meets the general intent and purpose of the ZBL.

63The third test requires the Tribunal to consider if the variance is desirable for the appropriate development or use of land. The OP permits detached garages on waterfront properties, and the use and function of such an accessory structure is in keeping with the rural character of the area. The Tribunal has already found that the Garage’s structural profile from the viewpoint of the Lake and the private access road will not impede the character of the neighbourhood.

64It was not disputed that the proposed Garage height was taller than existing development on neighbouring properties, that the elevated Gravel Pad adds to the overall height of the proposed Garage, and that the platform is situated in front of neighbouring residential dwelling (168B Sheldon Lane) and not the Appellants’ residence. However, the Tribunal heard no evidence that there were other suitable locations on the Subject Property on which to construct a garage. In fact, Mr. Weekes confirmed that there were none. The Gravel Pad’s elevation in relation to the residences of 180 and 168B Sheldon Lane is the result of the need to ensure construction of the accessory building occurs on a stable surface. While the Gravel Pad’s location in front of the neighbouring property is slightly unusual, there was no dispute that the Gravel Pad is a developable area of the Appellant’s lot. The Tribunal finds that the variance is desirable and appropriate use of the land.

65The final test requires the Tribunal to consider if the proposed variance is minor. This is not a mathematical calculation, rather when considering whether a variance is minor in nature, adverse impacts should direct the decision. In this matter, the question to be considered is whether the height of the proposed structure would create an adverse impact on the neighbouring property located at 168B Sheldon Lane.

66It was not disputed that a detached garage is a common feature for storage in rural waterfront areas, and that the Gravel Pad is a developable part of the Subject Property. Mr. Jardine’s opinion was that the height of the Garage would create an excessive impact for the owners of 168B Sheldon Lane, although he was unable to articulate a planning reason for how that would manifest. The Municipality’s comment was that the proposed structure would “loom” over the neighbouring waterfront residence.

67Mr. Weekes testified that the height of the Garage would not create any undue or adverse impacts on the neighbouring property. The Planner pointed out that there would be no impact to neighbouring properties’ ability to access the waterfront or their properties, there was no anticipated shadowing impacts, or privacy impacts or light pollution since the Garage would not include any living space. The Appellants’ counsel submitted that, in this case, the Appellants have a right to develop and that views from neighbouring properties were not inherently protected under Ontario’s planning framework.

68Overall, the Tribunal preferred the testimony of the Appellants’ planner. The Tribunal has already found that the natural and scenic landscape will be maintained and that over time the proposed vegetative screening will further assist in blending this structure with its surroundings. The character of the neighbourhood will be maintained. There will be no privacy impacts, light pollution or shadowing impacts to neighbouring properties created by the height of the Garage. Further, there is no zoning standard deficiency with respect to the distance between the angled wall of the Garage and the residence at 168B Sheldon Lane. In this case, the Tribunal finds that the impacts created to neighbouring properties by the height of the Garage are minor in nature.

69In reaching this decision on all four variances, the Tribunal also considered the reasons provided by the COA when it rejected the variances. While drainage concerns were raised by the COA, this was a non-issue at the Hearing event and no professional evidence was provided on this point for any of the four variances. As such, the Tribunal accepts that the Municipality had no drainage concerns with respect to the construction of the Garage on the Gravel Pad. The COA’s other concerns have been addressed above in the Tribunal’s analysis.

70The Tribunal also reviewed Mr. Robinson’s Participant Statement and the concern that the footprint of the proposed Garage was oversized. This view was not shared by the Municipality. There was no evidence that the Gravel Pad was an unsuitable platform on which to construct an accessory structure, nor any concerns relating to erosion or safety hazards as either a consequence of construction or with the resultant structure. Lastly, the Tribunal heard no evidence that the distance between 168B Sheldon Lane and the Gravel Pad was insufficient with respect to the performance standards as set out in the ZBL. With respect to Mr. Robinson’s commentary that the Garage would be too tall, the Tribunal has found that the structure will not impact the natural and scenic character of the community and that any impacts to neighbouring properties will be minor in nature.

CONCLUSION

71The Tribunal finds that the four requested variances, both collectively and individually, meet the criteria of s.45(1) of the Act, are representative of good land use planning and in the public interest. In reaching this finding, the Tribunal has had regard for matters of Provincial Interest as set out in s.2 of the Act, and the decision of the approval authority.

72With respect to potential conditions to be imposed, the Tribunal had requested and received submissions from counsel at the close of the Hearing. Accordingly, the Tribunal will impose conditions on the approval of the four minor variances as listed in paragraph [2] of this Decision.

ORDER

73THE TRIBUNAL ORDERS that the Appeal is allowed and the variances to Zoning By-law No. 2004-65, as listed in paragraph [2], are authorized subject to the following conditions:

1. That there shall be no living, sleeping, dining or washroom space or facilities or plumbing permitted in the detached garage; and

2. The proposed construction shall be built substantially in accordance with the site plan dated March 2024, attached as ‘Attachment 1’.

“G.A.Croser”

G.A. CROSER

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.

ATTACHMENT 1