Wheeler v. Syrowik, 2015 ONSC 301
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Stanley Wheeler, Stella Wheeler and Sheila Diaz
Applicants
– and –
David Syrowik, Ursula Syrowik, Randy Lovie and The Corporation of the Municipality of Lambton Shores
Respondents
Philip B. Morrissey, for the Applicants
Annalee Ferreira, for the Respondents, David and Ursula Syrowik
Barry Card, for the Respondents, Randy Lovie and the Municipality of Lambton Shores
HEARD: January 9, 2015
1Stanley Wheeler and Sheila Diaz are father and daughter and own Lot 1 on Plan 34 and Stanley Wheeler with his wife, Stella Wheeler, own Lot 39, Registered Plan 34, and are all hereinafter called the Wheelers.
2David Syrowik and Ursula Syrowik, are the owners of Lot 2, Plan 34, which is immediately east of Lot 1 owned by Mr. Wheeler and his daughter and northerly from Lot 39 owned by Mr. Wheeler and his wife. Both Lots 1 and 2 abut the beach with Lake Huron being to the north.
3When Plan 34 was registered, in July 1951, street access to Lot 2, Plan 34 (Syrowik lot), was to be by a road allowance abutting the beach referred to as Hazelwood Drive. Hazelwood Drive was never used as a road and is part of the beach. It was never assumed as a municipal road and is owned by the Richmond Park Home Owners Association. Access to Lot 2, the Syrowik property, is by way of a right of way to a street to the south known as Leighton Drive. A cottage was built on Lot 2 by a previous owner to the Syrowiks prior to the official plan and zoning bylaw being enacted by Lambton Shores in 2003. As a result, the cottage was a legal non-confirming use on an undersized lot which had access by a right of way and which did not front on a street.
4The property is in residential zoning 5, as set out in the zoning bylaw, and there are some specific provisions in the official plan as it is beachfront property including waterfront views and aesthetics to reflect its use and location. In 2007, the Syrowiks bought the property and they have since been permitted to replace the old cottage with a new one on the same footings. This was permitted as being a continuing legal, non-conforming use. They also at that time applied for a permit to build a two storey garage south of the cottage.
5Residential zone 5, requires any new construction to be a minimum of 25 metres frontage and 160 metres depth and having 4,000 square feet with building coverage of not more than 25 per cent. There are specific setback requirements.
6Syrowiks’ lot is 30 metres by 45 metres or 1,400 square feet which are significantly less than the zone 5 requirements but as I have indicated the existing building was a legal, non-conforming use and the new cottage was permitted as it continued that legal, non-conforming use.
7The proposed garage was to be two stories. It had a ground floor garage and a second level living area connected by a breezeway to the second level of the cottage.
8As indicated, the lot is unusual as it does not front on any street, with access by a right of way and is undersized.
9The two storey garage building permit application was shown as having the front of the lot on the north side facing the beach and a non-existent street. The municipality and the Syrowiks agreed to this and therefore the land to the south of the cottage was the rear yard with the required setback being not less than 7.5 metres. The Syrowiks proposed the garage to be within .3 metres of the south lot line resulting in a significant variation being requested. The application for the two storey garage was turned down by the Ontario Municipal Board (“OMB”) as not being a minor variation and not in conformity with the official plan. As it was agreed the front lot line was to the north, the OMB accepted this agreement without determining that issue.
10Within a few months after being denied the permit to build the two storey garage, the Syrowiks applied to the Lambton Shore Building Official, Mr. Randy Lovie, for a building permit for a one story garage 5.84 metres by 12 metres and being 1 metre from the southerly lot line and with no residential component. It has a larger footprint than the minor variation that had been turned down by the OMB being 70.8 square metres as compared to 66.90 square metres. Its location was moved to 1 metre or 39 inches from the south lot line as compared to .3 metres or 13 inches that was requested in the variation application. In terms of height the new garage is 6 metres high as compared to the variation application which had a height of 7 metres.
11The difficulty for the Wheelers was that as soon as the two storey garage was turned down by the OMB, they were faced with a one storey garage that was not that much different from the one before the OMB.
12Mr. Lovie, as the building official, initially turned down the Syrowik’s application for the one storey garage but he received a contrary opinion from Mr. Harry Froussios, a planner with Selinke Priamo Limited who was retained by the Syrowiks. It was his opinion that the application for the single car garage was permitted by the bylaw and that a permit should issue. Mr. Lovie accepted Harry Froussios’ opinion and changed his mind and issued the building permit for the garage. In my opinion, the prior involvement by the Wheelers with this planning firm did not in actual fact result in a conflict although I acknowledge it caused concern for the Wheelers.
13Mr. Ric Knutson, a planner, had been retained by the Wheelers regarding the two storey garage application which was turned down by the OMB. Mr. Knutson was again retained to assist the applicants in their application before me that the building official should not have granted the building permit to build a single car garage.
14What is confusing for all concerned is that the lot is not only undersized but also does not abut a street. The term defining the front lot line in the zoning bylaw is that part of the lot which faces a street. Since there is no street it is not possible to determine where its front is and without a front, by definition in the bylaw you cannot determine the rear. It is therefore arguable that you cannot determine what the sides are if you cannot determine the front or rear.
15Faced with this problem all parties tried to determine what was logical. In the prior garage application before the OMB, the municipality and the Syrowiks assumed for the purpose of that application that the frontage was to the north on the non-existent Hazelwood. Therefore they used setback requirements for a rear yard at the southerly edge and requested a variation from the bylaw setback requirement of 7.5 metres to .3 metres which was turned down by the OMB.
16For the permit for the single car garage, the subject of this application, the municipality and the Syrowiks are now taking a different view. Since it is impossible to determine what the front is and therefore the rear, it is their position now that all four sides of the lot are side lot lines with a 1 metre setback.
17They point out that this is an arguable position from the wording of the zoning bylaw. The zoning bylaw regarding an ancillary building requires that the garage or ancillary building have a 1 metre setback from the side lot line. The argument therefore is that you can build within 1 metre of any side of the lot even if the front and side cannot be determined.
18It is the position of the Wheelers that since it is not possible to determine the front and therefore the rear, it does not make sense that all four sides of the lot are side lot lines with a 1 metre setback. Further, as this is an undersized lot with no frontage, it is not possible to determine the setback requirements and therefore no ancillary building or garage can be built on the lot. Further, it is also their position that since there is ambiguity as to the definition of front, rear and side lot lines that the official plan should be looked at for guidance. The official plan speaks of waterfront views and aesthetics this being beachfront property. The Wheelers therefore submit that as a result of the provisions of the official plan and its interpretation by the OMB that it is not appropriate that there be an ancillary building or garage built on the property.
19As previously indicated, it is the Syrowiks’ position that since it is not possible to determine the front and rear that a proper reading of the bylaw results in the conclusion that all sides of the lot are side lot lines. They submit there is no ambiguity and that as a result it is not appropriate to consider the provisions of the official plan.
20For the purpose of judicial review, if it is correct that the bylaw provisions are clear, the building inspector had no alternative but to issue the permit. If the respondents’ position is the correct interpretation of the bylaw and there is no ambiguity, then the standard of review is correctness and that I should not interfere with the building official’s role in making this decision. In the event that the zoning bylaw is ambiguous then the standard of review would be whether his interpretation of the bylaw was reasonable and that deference as to his decision would be based on the reasonable standard.
21In my opinion the bylaw is ambiguous. The lot in question is unique and is not only undersized but does not front on a street. In my opinion, it stretches the language of the bylaw to say that if you cannot determine the front and the rear everything should be a side with the resulting ability of a property owner to build within 1 metre of any lot line. That, to me, does not represent a logical interpretation of the bylaw and at best it is ambiguous. Further, since the bylaw is in my opinion ambiguous, the standard of review is reasonableness and that it is appropriate to look to the official plan for guidance.
22In my opinion Mr. Lavoie was right when he originally refused the building permit because, as he initially stated:
The lot does not front onto a public or private road, therefore the Municipality is unable to determine which lot line is considered the front lot line. As a result, the Municipality cannot determine the applicable setbacks and the legally permitted location for the proposed accessory building.
As a result he did not grant the building permit. He subsequently changed his mind but in my opinion he was right in his initial analysis.
23Mr. Blair S. Taylor, of the OMB, in denying the two story garage application, commented on s. 18.3.6 of the official plan which states: “Waterfront view and aesthetics shall be maintained. In no case shall a building or structure be erected in the Lakeshore Area, which will have a height greater than 11 metres.”
24Further, Mr. Taylor stated concerning the official plan:
The Board finds that the waterfront aesthetics relate to the character of the waterfront area and that the proposal to place a 10.8 metre long and 7 metre high addition 0.3 metre from the southerly lot line does not complement the existing character of the area. While it is the only location on the subject lands that an addition might go, it is not compatible with the existing waterfront aesthetics.
25I agree with Mr. Taylor’s comments concerning the official plan and in my opinion they equally apply to the proposed one storey garage that is 12 metres long, 5.84 metres wide and 6 metres high as not complementing the existing character of the area and not being compatible with the existing waterfront aesthetics.
26I note that its length in fact is 1.2 metres longer and the square footage of the footprint is increased from 66.96 square metres to 70.8 square metres. In effect this is a larger building but acknowledge is 1 metre shorter in height. That being said, that at 6 metres or 19 feet 8.22 inches in height this garage will have a significant visual impact to the property owners to the rear as its roof ridge runs parallel to the beach.
27I further comment as the OMB did about the general intent and purpose of the bylaw. I agree that this is a rural cottage setting. In the case at hand the proposed separation is increased by .66 metres (26 inches) to 1 metre (39 inches) from the lot line. This proposed separation therefore is only 26 inches further from the lot line from what was turned down at the OMB. I acknowledge that the matter before me is not a proposed variation but I believe that the general intent and purpose of the bylaw for the proposed garage having a 1 metre setback, is out of character with the established cottage setting which is characterised by open spaces and generous yards. The proposed 6 metre height as compared to the two story application at 7 metres, is only 39 inches shorter in height. This proposed building is not in compliance with the official plan requirements.
28I believe it is also appropriate when examining the zoning bylaw and the official plan to take an overview as to whether or not this application is desirable from a planning and public interest point of view. As stated, this is not a variance application but the official plan is quite clear there is a public interest that property in this location maintain the waterfront aesthetic and open spaces as required by the official plan. In my opinion the proposed building is not in compliance with the zoning bylaw and the official plan and that the building permit should not have been issued.
29Therefore an order is granted rescinding the decision of the respondent Randy Lavoie, chief building official of the respondent, Municipality of Lambton Shores, dated August 12, 2014, wherein a building permit was issued for an accessory building (garage) on Lot 2, Plan 34 (BQ).
30As this case arose because of an unusual undersized lot configuration, there will be no order as to costs.
Original signed “Patterson J.”
Terrence L.J. Patterson
Justice
Released: March 4, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Stanley Wheeler, Stella Wheeler and Sheila Diaz
Applicants
– and –
David Syrowik, Ursula Syrowik, Randy Lovie and The Corporation of the Municipality of Lambton Shores
Respondents
REASONS FOR JUDGMENT
Patterson J.
Released: March 4, 2015