Ontario Municipal Board Commission des affaires municipales de l Ontario ISSUE DATE: February 27, 2015 CASE NO(S).: PL140972 PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: Dwight & Ruth Gallinger Applicants: Lynnie Maggio and Pierluigi DeBiasio Subject: By-law No. 14-29 Municipality: Township of Adjala-Tosorontio OMB Case No.: PL140972 OMB File No.: PL140972 Heard : February 11, 2015 in Adjala-Tosorontio, Ontario APPEARANCES: Parties Dwight and Ruth Gallinger Pierluigi DeBiasio Township of Adjala-Tosorontio Counsel Self-represented Self-represented J. Feehely DECISION DELIVERED BY KAREN KRAFT SLOAN AND ORDER OF THE BOARD INTRODUCTION [1] Dwight and Ruth Gallinger ( Appellants ) at 1482 County Road 50, Adjala- Tosorontio, have appealed a Zoning By-Law Amendment, By-law No. 14-29 ( ZBA ) pursuant to s. 34(19) of the Planning Act ( Act ). [2] On July 24, 2014, the Township of Adjala-Tosorontio ( Township ) council
2 PL140972 passed the ZBA to amend the Comprehensive By-Law No. 03-56 intended to rezone 1500 County Road 50 ( subject property ) from an Oak Ridges Moraine Linkage Zone to Site Specific Zone Exception 14.4 Zone. The ZBA will allow the construction of an accessory structure with a maximum of 225 square metres ( sq m ) on the subject property by Lynnie Maggio and Pierluigi DeBiasio ( Applicants ). The accessory structure is a garage for personal use and it is intended to replace five existing storage sheds on the subject property. The development is subject to site plan control. [3] Staff planning report had no objections to the ZBA. [4] The Board qualified Jacquie Tschekalin, the Township s Director of Planning, to provide opinion evidence in the area of land use planning. The Appellants and the Applicants were self-represented, and Mr. Gallinger and Mr. DeBiasio provided lay testimony. THE SUBJECT PROPERTY AND PROPOSAL [5] The subject property fronts the west side of County Road 50, which is an arterial road. The subject property is a deep, fairly narrow rural residential lot, and it is one of nine lots created by a severance of an agricultural field several decades ago. The width of the subject property is 62 metres ( m ) with a depth of 654 metres ( m ) and an area of 10.1 acres. To the west of the subject property is a large woodlot with a smaller woodlot to the north. In recent years, a number of trees have been planted on the western half of the subject property as well as plantings of spruce to provide a buffer between County Road 50 and the residence. The residence is a single-detached raised bungalow. Other buildings include five storage sheds scattered around the subject property. [6] The subject property is designated Oak Ridges Moraine Natural Linkage Area under the Township s Official Plan ( OP ). It is zoned Oak Ridges Moraine Linkage
3 PL140972 Zone on the front or eastern portion, while the rear or western portion of the subject property is zoned Oak Ridges Moraine Conservation Zone. [7] The garage will replace five existing sheds and it will store personal items such as riding lawn mowers, tractors, recreational vehicles (bicycles, ATVs, dirt bikes, and snowmobiles), a personal snow plough truck, utility trailers, a boat and trailer, a classic car and other automobiles, outdoor lawn furniture, a trampoline, children s toys, and sports equipment. In addition, the Applicants are planning to purchase a motorhome, which requires a fourteen-foot door opening. PLANNING CONTEXT [8] The ZBA must conform with the OP in accordance with s. 24 of the Act, and all other applicable provisions of relevant planning documents, such as the Provincial Policy Statement 2014 ( PPS ), the Growth Plan of the Greater Golden Horseshoe 2006 ( Growth Plan ) and the Comprehensive By-Law No. 03-57. Of particular relevance, here is the Oak Ridges Moraine Conservation Plan ( ORMCP ). The Township has different planning requirements for lands covered by the ORMCP. Proponents must undertake a Natural Heritage Evaluation by a qualified professional before beginning the process to obtain approvals for development activities. ISSUES, EVIDENCE AND FINDINGS [9] Mr. Gallinger, speaking on behalf of both the Appellants, told the Board that the proposed garage is too large and it is not compatible with adjacent and surrounding properties. Mr. Gallinger said that the proposed garage will be located 100 m from his residence, and he is concerned that it will be visible from his front yard. It is his view that the open and rural appearance of this section of County Road 50 will change if by-law amendments are used to allow oversized sheds on surrounding lots (Exhibit 2).
4 PL140972 [10] Mr. Gallinger provided aerial maps and photographs to demonstrate his concerns. He noted a photo of a 200.66 sq m shed three properties south of his home that he considers visually intrusive (Exhibit 2). He told the Board that as this shed is similar in proportion to the proposed garage, it is an example of the visual impact that the proposed structure would create. Other photographs that Mr. Gallinger provided showed images of the views of the subject property from his home (Exhibit 8). He was also concerned that the proposed garage would be used for purposes other than personal use. [11] Mr. Gallinger contended that despite the emphasis on protecting the Oak Ridges Moraine through the implementation of the Oak Ridges Moraine By-Law No. 2003-56 of the Township, these provisions can be circumvented through zoning by-law amendments. [12] Mr. DeBiasio spoke on behalf of the Applicants and emphasized the reason for building the garage, which is to consolidate the other five sheds on the subject property and to store personal items in one place. Mr. DeBiasio asserted that there are many other sheds the same size or larger in Adjala-Tosorontio thus, what the Applicants are proposing is similar to what already exists in the area. He maintained that the Appellants foremost concern is that the garage will be visible from their property, however there is another property between the Appellants lot and the subject property. Mr. DeBiasio added that there is a double line of fully-grown pine trees between the proposed garage and the Appellants home as well as a three storey 4,000 square foot home. Mr. DeBiasio provided photographs to support his statements (Exhibit 12(a) and Exhibit 12(b)). [13] Ms. Tschekalin provided general background on development applications for lands in the Township that are covered under the ORMCP as well as specific information on the Applicants application. Ms. Tschekalin turned to Amendment No. 03 to the Township OP ( OPA 3 ) to demonstrate how the Township brought its OP into
5 PL140972 conformity with the ORMCP in order to protect Oak Ridges Moraine features (Exhibit 11). Before the application process for building permits and other development applications proceed proponents are required to provide the Township with a Natural Heritage Evaluation conducted by a qualified expert that concludes the development will not create a negative impact on Oak Ridges Moraine natural features. In addition, any lands under the ORMCP are subject to site plan control. Ms. Tschekalin informed the Board that the size of the proposed garage requires a zoning by-law amendment as it is for personal use ancillary to a residence, however the same sized structure related to agriculture would not. [14] Ms. Tschekalin outlined permitted uses for the ORMCP Linkage Zone as found in s. 11.1 of By-Law No. 2003-56, which are subject to a Natural Heritage Evaluation demonstrating that there is no negative impact. These include single detached dwellings, as well as ancillary uses to the dwelling such as home businesses, bed and breakfasts, home industries, and farm vacation homes, and accessory uses to these (Exhibit 7, Tab 2). The Applicants had a scoped Natural Heritage Evaluation undertaken, which determined if any ORMCP key natural heritage features or hydrological sensitive features exist on the subject property and what potential impacts the proposed development would have on these features (Exhibit 7, Tab 10). [15] Ms. Tschekalin provided an overview of the Natural Heritage Evaluation. The purpose of the Natural Linkage area is described in s.12. (1) of ORMCP (Exhibit 7, Tab 10). It is: To maintain, and where possible improve or restore, the ecological integrity of the Plan Area, and to maintain, and where possible improve or restore, regionalscale open space linkages between Natural Core Areas and along river valleys and stream corridors. [16] The Natural Heritage Evaluation identified significant woodlands as Key Natural Heritage Features and a permanent/intermittent stream as a Hydrological Sensitive Feature on the subject property and adjacent lands (Exhibit 7, Tab 10). A large forested
6 PL140972 area on the western boundary of the subject property is at least 200 m from areas of proposed works...while a smaller tableland woodlot... is at least 50 m from the proposed garage/shed, and will not be impacted by its proposed construction (Exhibit 7, Tab 10). The Natural Heritage Evaluation concludes that neither the woodlands nor the two identified intermittent streams will be impacted by the proposed development (Exhibit 7, Tab 10). [17] Based on the recommendations of the Natural Heritage Evaluation, specifically the need to maintain an appropriate distance from any of the identified Natural Heritage Features and the slope of the land, it is Ms. Tschekalin s opinion that the best and only place to build the shed is where it is proposed to be located. [18] Ms. Tschekalin explained that the subject property is subject to site plan control and as a result the Applicants will be required to remove the five sheds that the one large structure is intended to replace. Screenings will also be required, including new plantings and existing vegetation or trees that are identified in the site plan. She emphasized that the Township is not able to proceed with either a building permit or site plan until the Natural Heritage Evaluation confirms that the proposed development will not result in any negative impact. As the evidence submitted by Ms. Tschekalin shows this requirement has been met (Exhibit 7, Tab 10). [19] It is Ms. Tschekalin s opinion that the proposal represents good planning as it conforms to the ORMCP policies, the Township OP and the Comprehensive By-Law No. 03-56. [20] The Board has carefully reviewed the submissions and evidence made by the Parties and the witness. The Board appreciates the time and effort the Appellants have invested in preparing for the hearing, however the evidence presented does not substantively support their appeal. The Board prefers and is persuaded by Ms. Tschekalin s planning evidence and expert opinion. The site plan control would require
7 PL140972 new plantings if needed as well as ensuring that existing vegetation included in the site plan remains. The Appellants residence is 100 m from the proposed garage, and in between is another dwelling, and trees and vegetation. The proposed structure is not uncommon in this rural area and so it is compatible with what already exists. ORDER [21] The Board orders that the appeal against By-law No. 14-29 of the Township of Adjala-Tosorontio is dismissed. Karen Kraft Sloan KAREN KRAFT SLOAN MEMBER Ontario Municipal Board A constituent tribunal of Environment and Land Tribunals Ontario Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248