Superior Court of Justice
(Name of court / Nom du tribunal)
at / au 102 East Main Street, Welland, Ontario, L3B 3W6 (Municipality / Municipalité)
Endorsement Sheet / Page d’inscription
Plaintiff(s) / Requérant(e)(s): Carlo Montemurro and Michael Bettiol Counsel / Avocat(e):
□ Present / Comparaît □ Present / Comparaît □ Duty Counsel / Avocat de service
Defendant(s) / Intimé(e)(s): Belinda Menard in her capacity as the Chief Building Official of the Town of Pelham and the Corporation of the Town of Pelham Counsel / Avocat(e):
□ Present / Comparaît □ Present / Comparaît □ Duty Counsel / Avocat de service
☐Order to go in accordance with minutes of settlement or consent filed. / Ordonnance conformément au procès-verbal de l’audience de transaction ou le consentement déposé.
Montemurro et. al v. Menard et. al, 2021 ONSC 8631
Date: February 28, 2021
Present: Charles Neuwald, for Mr Bettiol Chris Young, for Mr. Montemurro Terrence Hill and Karen Shedden, for the Respondents
Overview
[1]. By Order dated January 14, 2021 I ordered that the two matters be combined. Each involves the appellant appealing the decision of the Chief Building Officer of the Corporation of the Town of Pelham (“Pelham”) to refuse to grant a building permit for two specific building lots.
[2]. Mr. Montemurro had in fact not formally applied for a building permit. However, he received a letter from Pelham advising him that he would not be issued a building permit. He advises that he accepted this as an anticipatory refusal to issue a building permit.
[3]. As the two appeals have been combined, for the purposes of my decision I have treated both appellants as having been refused a building permit.
[4]. The lots were created by a testamentary devise.
[5]. The appellants submit that there are four issues to be determined in this appeal, namely:
a. Are the lots validly created by the testamentary devise?
b. Do the lots satisfy the applicable zoning requirements?
c. Do the lots have the required street access?
d. Should a building permit be issued?
[6]. The respondent concedes that the lots were validly created by the testamentary devise but submits that the remaining questions should be answered in the negative.
[7]. As there is no dispute that the lots were validly created by the testamentary devise, I need not revisit those background facts, other than to describe the overall configuration of the lots.
[8]. The testamentary devise created a number of separate parcels of land which lie between two publicly improved streets, namely, Farr Street and River Road. The appellants have proposed to Pelham that three internal roadways be created, and that each separate property would front on one of these internal roadways, which internal roadways would connect to Farr Street or River Road.
[9]. Pelham refused to issue buildings permits for failure to comply with its zoning by-law.
Position of the Parties
[10]. Mr. Neuwald, on behalf of Mr. Bettiol, submits that by virtue of the lot owners holding shares of a corporation that in turns owns the internal roadways which front onto either River Road or Farr Road, then those lot owners would satisfy the requirement of s. 6.4 of the by-law that require that the lot front upon an improved street.
[11]. Mr. Young, on behalf of Mr. Montemurro, proposes a slightly different approach. He submits that each owner of the lot would own directly a percentage interest in the internal roadways. This, he asserts, will satisfy the said requirement.
[12]. Mr. Hill submits that the lots do not comply with the relevant provisions of the zoning by-law and, therefore, buildings permits cannot be issued to them. He notes that several lots within this development, which were created by testamentary devise and which front onto Farr Street or River Road, have already been granted building permits because they complied with the by-Law.
The Law
[13]. The Town of Pelham Zoning By-law No. 1136 (1987) (“By-law”) is the governing zoning by-law.
[14]. Section 5 of the By-law contains a number of relevant definitions.
[15]. Section 5.99 of the By-law has three definitions of a “Lot”. The relevant definition is: “a separate parcel of land without any adjoining lands being owned by the same owner or owners”.
[16]. “Front Lot Line” is defined as “the lot line that divides the lot from the street”. S.5.104(b) By-law
[17]. “Street” is defined in the said By-law as:
5.1.64
(a) “Street” means a public highway or public road under the jurisdiction of either the Corporation, the Region, or the Province of Ontario, and includes any highway as defined by The Municipal Act, as amended from time to time, but does not include a lane or private right-of-way.
[18]. Also “Improved Street” is defined in the By-law as
5.164
(c) ”Improved Street” means any street that is:
a) Owned and maintained all year round by the Corporation hereafter:
b) Has been constructed in such a manner so as to permit its use by normal vehicular traffic: and
c) not a lane or private right-of-way.
[19]. Section 6.4 of the same By-law provides as follows:
6.4 Frontage on an Improved Street
(a) No person shall erect any building or structure in any zone unless the lot upon which such building or structure is to be erected fronts upon an improved street.
(b) For the purpose of this subsection a “street” shall not include a lane or private right-of way.
(c)For the purpose of this subsection an “improved street” means a street which has been constructed in such a manner so as to permit its use by normal vehicular traffic.
[20]. Permitted uses for lands lying within Agricultural A Zone lands include “one single detached dwelling on one lot”. S.7.1(c)
[21]. The “Minimum Lot Frontage” in Agricultural A Zone is 180m (590.55ft.). S.7.2(a).
[22]. Zoning by-laws are the applicable laws when evaluating a building permit application. Ontario Regulation 332/12, s1.4.1.3, (1)(f)
[23]. The failure to comply with the applicable law is ground for the Chief Building Official to deny a building permit: Building Code Act s.8(1), (2),(a) and (e).
[24]. The Court of Appeal has stated:
The Town's power to pass zoning by-laws to regulate the use of lands was not tied to the ownership of lands. It does not follow that because a person avoids the enforcement provisions for the subdivision control regime of the Planning Act 1983… that the person is entitled to demand a building permit without complying with the land use provisions of the Act. Niagara-on-the-Lake (Town) v. Gross Estate [1993], ONCA
Analysis
[25]. The appellants raise four questions in this appeal:
a. Are the lots validly created by the testamentary devise?
b. Do the lots satisfy the applicable zoning requirements?
c. Do the lots have the required street access?
d. Should a building permit be issued?
[26]. The respondent concedes that the lots were validly created by the testamentary devise.
[27]. There is no dispute that the lots satisfy the definition of “lot” contained in the By-law.
[28]. That leaves the remaining three questions to address.
[29]. Whether the lots have the required street access is really but one aspect of considering whether the lots satisfy the applicable zoning requirements.
[30]. The appellants concede that, as the Court of Appeal’s decision in Gross Estate states, the devised lots must comply with the applicable zoning by-law.
[31]. The applicants further concede that the By-Law is the relevant zoning by-law with respect to the lots and is in full force and effect.
[32]. The By-law describes many attributes that the lots must possess in order for the said lots to comply with the By-law.
[33]. For example, section 6.4 of the By-law states that “no person shall erect any building or structure in any zone unless the lot upon which such building or structure is to be erected fronts upon an improved street.”
[34]. Section 6.4(c) defines “improved street” for the purpose of the section 6.4 to be “an ‘improved street’ means a street which has been constructed in such a manner so as to permit its use by normal vehicular traffic”.
[35]. This definition of “improved street” is different than the general definition of “improved street” in s. 5.164:
(c) ”Improved Street” means any street that is:
a) Owned and maintained all year round by the Corporation hereafter:
b) Has been constructed in such a manner so as to permit its use by normal vehicular traffic: and
c) not a lane or private right-of-way.
[36]. Both section 6.4(c) and 5.164 define “improved street”. As s. 6.4(c) states that the definition contained therein is specifically for the purposes of s. 6.4, it must override the definition of “improved street” contained in s. 5.164(c).
[37]. That is not the case, however, with respect to s. 5.164(a) which contains the general definition of “street”.
[38]. Section 5.1.64(a) states that a street “means a public highway or public road under the jurisdiction of either the Corporation, the Region, or the Province of Ontario, and includes any highway as defined by The Municipal Act, as amended from time to time, but does not include a lane or private right-of-way.”
[39]. The definition of “improved street” in s.6.4(c) modifies but does not contradict the general definition of “street” contained in section 5.164(a). In fact, s. 6.4(c) includes the general meaning of “street” as it states that an improved street “means a street…” In other words, it describes a particular type of street. It defines the physical state of the street, not its legal status.
[40]. What can be derived from those two sections of the By-law is that for the purposes of s. 6.4, unless
a. a lot fronts onto a public highway or public road under the jurisdiction of a municipal entity or the province,
b. the road is not a lane or private right-of-way, and
c. the road has been constructed in such a manner so as to permit its use by normal vehicular traffic,
no building or structure may be erected on the said lot.
[41]. If a lot does not front upon such improved street, then s. 6.4(a) prohibits the erection of a building or structure on such lot.
[42]. The proposal of the applicants is that the lots gain physical access to Farr Street and River Road via internal roadways which will be owned directly by the lot owners or by an Ontario Corporation. If a corporation is utilized, the lot owners would be shareholders of that corporation.
[43]. Assuming these internal roadways are constructed to permit vehicular traffic, this would give the owners of the lots physical access to Farr Street and/or River Road. It would satisfy part of the definition of “improved street” regarding its physical state.
[44]. This proposal, however, is not a complete answer to compliance with the By-law. These internal roadways will not be “improved streets” as defined by the By-law. These internal roads may comply with the By-law as to their physical state but not their legal status.
[45]. Both Mr. Young and Mr. Neuwald assert that if a lot owner has a direct or indirect ownership in the internal roadways, then this means that his or her lot fronts upon an improved street because of that interest.
[46]. That simply is impossible mental gymnastics. The By-law clearly states that it is the lot that must front upon the improved street; not other land in which the lot owner has an interest.
[47]. Such an interpretation would play havoc with other aspects of the By-law. For example, the By-law specifies that the “Front Lot Line” of a lot is “the lot line that divides the lot from the street”. The front lot line cannot be the point where the lot meets the internal roadway because clearly the internal roadway is not a “street” as defined by the By-law.
[48]. The only land that abuts River Road or Farr Street is the width of the internal roadways.
[49]. Is the front lot line of each lot the width of the internal roadway which abuts Farr Street and River Road? Under the appellants proposal, does a lot then have two front lot lines---one at each of Farr Street and River Road? How does one calculate the front yard setback?
[50]. Such an interpretation does real violence to the plain meaning of the By-law.
[51]. Both counsel assert that because Pelham has suggested that an acceptable solution might be a common elements condominium, this should mean that their proposal should be acceptable.
[52]. However, this does not in any way alter the plain meaning of the By-law. There may be other solutions to this issue, but that is not the question that is before me.
[53]. I find that the lots do not comply with s. 6.4(a) and therefore no one is permitted to erect a building or structure upon the said lots.
[54]. The By-law is applicable law which the Chief Building Official must consider when determining whether to issue a building permit.
[55]. As the lots do not comply with the By-law, that is grounds for the Chief Building Official to deny a building permit: Building Code Act s.8(1), (2),(a) and (e).
[56]. Further, s. 6.4(a) of the By-law requiring lots to front onto an improved street is but one aspect of complying with applicable zoning requirements.
[57]. I have no information as to whether the lots comply with other aspects of the By-law and therefore make no findings in that regard.
[58]. Counsel for Mr. Bettiol submitted that there has been bad faith on the part of Pelham in its dealings with the appellants.
[59]. I disagree. The By-law is clear. The lots do not comply with it. Therefore, it was within the jurisdiction of the Chief Building Official to refuse to issue building permits.
[60]. I have found that the lots do not satisfy the requirement of s. 6.4 of the By-law and that the applicants’ proposal of internal roadways would not resolve the noncompliance.
[61]. As the lots do not comply with the By-law, a building permit should not be issued. Building Code Act 1992 c23 s8 (1), (2) (a) and (e) and Ontario Regulations 332/12, s.1.4.1.3 (1)(f).
[62]. I, therefore, dismiss the appellants’ appeals.
[63]. If the parties cannot agree upon costs, the respondent shall serve and file its cost submissions without 14 days. Both appellants shall serve and file their costs submissions within 7 days thereafter. A reply, if any, shall be served and filed within 4 days thereafter. Cost submissions shall be limited to 3 pages, not including the cost outline.
D. L. Edwards J.