Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 06, 2025 CASE NO(S).: OLT-24-000859
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Michael Balogh Subject: Minor Variance Description: To permit the development of an accessory unit on the rear end of the lot. Reference Number: PLA-2024-095 Property Address: 11 Featherstone Avenue Municipality/UT: County of Haldimand OLT Case No.: OLT-24-000859 OLT Lead Case No.: OLT-24-000859 OLT Case Name: Balogh v. Haldimand (County)
Heard: January 28, 2025 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Michael Balogh (Appellant / Applicant) | Mike McLachlin |
| Haldimand County | Patrick Maloney |
MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON January 28, 2025, AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is an unopposed minor variance application appeal. The Applicant/Appellant is seeking a minor variance to allow him to locate a “Cargo Container” (commonly known as a “shipping container”) on his property to use for storage purposes.
2According to the applicable Zoning By-Law HC 1-2020 (“ZBL”), the subject property is zoned residential, and a Cargo Container (which is a defined term within the ZBL) is not allowed to be located on a property in a residential zone. Consequently, the Applicant/Appellant is seeking a variance from the ZBL to provide him with an exception to this limitation.
3Additionally, the size of the subject Cargo Container is too large to comply with another ZBL provision which limits the size of “Accessory Uses, Buildings and Structures to Residential Uses” (which, there is no dispute, includes a Cargo Container) to 75 square metres (“m2”). The subject Cargo Container features a cumulative area of 117.0 m2.
4The Tribunal notes that the subject Cargo Container is currently located on the property behind two other accessory structures, which currently puts it in full view from Lakeshore Road that abuts the rear of the property. This location apparently prompted a complaint about the presence of the Cargo Container, claiming it to be unsightly. Additionally, this location violates another ZBL provision regarding setbacks from Lakeshore Road. As a result, the Applicant/Appellant has agreed to move the Cargo Container to the opposite side of the existing accessory structures, which puts it further away from Lakeshore Road and also screens it from view.
5Upon this agreement to move the Cargo Container, counsel for the municipality confirmed that they take no issue with the relief being sought, and otherwise did not participate in the hearing.
VARIANCES REQUESTED and decision of the COA
6The variances requested are as follows:
- To permit the development of a Cargo Container as a permitted use as the By-law does not currently permit it; and
- To permit a storage unit with a cumulative area of 117.0 m2, while the By-law permits an area of 75.0 m2.
7While the Applicant/Appellant initially sought no conditions to the requested variances, he later accepted that one condition would be appropriate to ensure that the Cargo Container will be located on the opposite side of the accessory structures. The Applicant/Appellant confirmed that this will be achieved through the following condition:
- The cargo container must be located a minimum distance of 58 metres from the rear lot line.
evidence and analysis
8The Applicant/Appellant testified on his own behalf to provide factual evidence regarding his property and the Cargo Container. He testified that his lot is 0.53 hectares (1.3 acres) in size and is part of a small subdivision featuring other similarly sized or slightly larger lots. This subdivision is located in a principally rural area and is surrounded by agricultural-zoned lands. He further noted that neighbouring properties, including an immediate neighbour to the southeast, similarly has a Cargo Container located on their properties.
9Chenxi (Chris) Tang, employed by the County of Haldimand and duly qualified as an expert in Land Use Planning, also testified (by way of a summons) in support of the requested variance. Mr. Tang confirmed the planning context of the property, the ZBL limitation applicable to it, and the necessary variances required to permit the subject Cargo Container to be located at the newly proposed location.
10Mr. Tang opined that the purpose of the ZBL provision which prohibits Cargo Containers on residential-zoned lands is to avoid potential conflicts between neighbours. Such conflicts, he explained, may arise from having such imposing and often unsightly steel Cargo Containers in plain sight from neighbouring homes and yards. He further stated that such potential issues are far more likely to occur when the lands in question are small lots and in densely populated residential areas, simply by virtue of neighbours being in closer quarters. He also opined that, when lots are larger (such as in the present case), it is possible to locate a Cargo Container on a lot without it being unreasonably impactful on neighbouring properties.
11Mr. Tang further noted that Cargo Containers are permitted throughout the municipality for residential purposes, as-of-right, in non-residential zones. This includes the agricultural-zoned areas surrounding the subject property. He went on to opine that this fact helps to demonstrate that a Cargo Container located on a larger lot is more tolerable compared to that which might occur in denser, smaller-parceled residential-zoned areas.
12Mr. Tang further opined that the size of the subject Cargo Container in the present case should not be problematic, despite the express limitation set out in the applicable ZBL, because the impact of such a larger accessory structure is mitigated by the relative size of the subject lot and available screening where it is to be located.
13To summarize the above points, Mr. Tang opined that the size of the Applicant/Appellant’s property mitigates both concerns about views of the Cargo Container from neighbouring properties, as well as its size, and such concerns are further mitigated by the fact that the Applicant/Appellant has agreed to locate the Cargo Container in a location that is largely screened from the public realm.
14Applying these facts, Mr. Tang then took the Tribunal through the four-part test set out in s. 45(1) of the Planning Act. Pursuant to this test, the Tribunal must be satisfied that the requested variances:
- Maintain the general intent and purpose of the official plan;
- Maintain the general intent and purpose of the zoning by-law;
- Are desirable for the appropriate development or use of the land; and
- Are minor in nature.
All four elements must be satisfied.
15Regarding the test, Mr. Tang confirmed his opinion that all four parts are satisfied in the present case. He noted that the use of a Cargo Container for storage purposes is not specifically referred to in the County Official Plan, so the first step is satisfied by default. Regarding the ZBL, he opined that the proposed location of the subject Cargo Container on the subject property, being adequately distanced and screened from outside viewpoints, maintains the general intent and purpose of the ZBL, because the relevant provisions are meant to protect such outside viewpoints and avoid associated conflict.
16From a desirability standpoint, Mr. Tang opined that it is desirable to allow the Applicant/Appellant to develop his land for the purpose of providing additional residential storage. Regarding the last step, Mr. Tang opined that the development is minor in nature, especially considering that the surrounding agricultural-zoned properties are permitted to locate a Cargo Container on their properties as-of-right. He further opined that the increase in size of the Cargo Container, compared to that which is already permitted, is insignificant and does not cause any obvious issues or additional impacts as a consequence.
17Having heard the above evidence and associated submissions of the Applicant/Appellant, the Tribunal comes to the same conclusions as Mr. Tang.
ORDER
18THE TRIBUNAL ORDERS THAT the appeal is allowed and the variances to By-Law HC 1-2020 are authorized subject to the following condition:
- The Cargo Container must be located a minimum distance of 58 metres from the rear lot line.
“K.R. Andrews”
K.R. ANDREWS 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.