ISSUE DATE: Feb. 9/04 DECISION/ORDER NO. 0256 PL030506 Umberto and Sylvia Basso appealed to the Ontario Municipal Board under subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended, from Council s refusal or neglect to enact a proposed amendment to Zoning By-law 74-53 of the Township of King to rezone lands composed of 300 Strawberry Hill Trail to rezone from Rural General (RUI) to Rural General (RUI) and Open Space & Conservation (O) the property to allow a proposed bed and breakfast establishment OMB File No. Z030076 Umberto and Sylvia Basso brought a motion before the Ontario Municipal Board under Rule 34 the Board s Rules of Practice and Procedure, for directions respecting the conduct of the pending hearing APPEARANCES: Parties Umberto & Sylvia Basso Helmet & Irmgard Rosinowski Counsel Michael Melling Charles M. Loopstra David & Wilma Olthof Larry & Dorothy Cropley Peter & Susan Biasutto Township of King (Township) Josephine A. Matera DECISION OF A PREHEARING CONFERENCE DELIVERED BY D. J. CULHAM AND ORDER OF THE BOARD The purpose of this Prehearing Conference is to hear testimony and argument and to make a ruling pertaining to a motion brought by Umberto and Sylvia Basso. The Parties request a ruling on the interpretation of the defined term bed and breakfast establishment in Section 3(1) of the Oak Ridges Moraine Conservation Plan. Mr. and Mrs. Basso concede that if the definition is interpreted in the manner as suggested by the Township that there is no point in proceeding with a Hearing of the planning merits. The applicants maintain that a bed and breakfast establishment is a principal use of land under the Oak Ridges Moraine Conservation Plan. The Township and the
- 2 - PL030506 neighbours hold that a bed and breakfast establishment can only be created in conjunction with a single-family dwelling on a lot of record that permits a single-family residential use. It should be clear that no residential building exists on the lot. The municipality maintains that no residential dwelling is permitted because the lot does not have frontage on a public road. Initially, the applicants came before the Board because of the refusal by the Township to approve their amendment to the Zoning By-law to allow a bed and breakfast establishment. The 17 hectares (42 acres) site at 300 Strawberry Hill Trail is located on a private road that extends eastward from Weston Road, north of 16 th Side Road and west of Highway 400 within King Township. At a previous Prehearing Conference on November 14, 2003, the Board agreed with the Parties to schedule a new Prehearing Conference to hear Mr. Melling s motion. The Board did so despite its reluctance to focus upon an interpretation of law, separate from and prior to hearing the planning and environmental merits of the application. If however, Mr. Melling s motion fails, and the issue is decided on this factor alone, then his client is spared the wasted cost of a full hearing. At the beginning of this Prehearing Conference, Mr. Melling, the solicitor for Mr. and Mrs. Basso, objected to the Board hearing testimony from Mr. David Sit, a qualified planner employed by the Ministry of Municipal Affairs and Housing, on the basis that the question was one of law, and that Mr. Sit is not a lawyer. Mr. Melling requested the Board rule that Mr. Sit s November 5 th 2003 letter and his testimony are inadmissible. Originally, Mr. Melling had requested Mr. Sit be summoned to testify. In a September 30, 2003 letter, Mr. Dan Stone, Deputy Director of Planning for the Township, had detailed the Township s interpretation of Section 3(1) and had requested Mr. Sit to respond. Mr. Sit provided an interpretation in the November 5 th 2003 letter. After hearing considerable argument, the Board ruled that the letter and Mr. Sit s testimony are admissible because they are potentially cogent. Firstly, the Board has already read the letters as part of the document briefs provided by the Parties. It is best then to acknowledge their existence and hear argument from the Parties as to the weight to assign them, rather than ignore their existence or that they have been read. As to hearing Mr. Sit s testimony, the Board prefers to here the testimony and assign
- 3 - PL030506 weight rather than ignore the testimony of a witness whose letters are already a part of the documentation. The Board acknowledges that the letters and the testimony are extrinsic aids to the potential interpretation. Exhibit 8 details 14 agreed statements of fact. The Basso property is designated Rural in the Township of King Official Plan (1970). In this Official Plan, there are no references to Bed and Breakfast establishments or Home Occupations. The Basso property is designated Rural Policy Area on Map 6 of the Region of York Official Plan (1994). The lands are further designated as Significant Forested Area and as part of the Greenlands Systems in the same Plan within Chapter 2 Sustainable Natural Environment. Similarly, bed and breakfast establishment and home occupation are not mentioned in the Regional Plan. It is agreed that the lands are within the Oak Ridges Moraine Planning Area designated within the Regional Plan. It is agreed that the lands are found within the designated Natural Core Area in the Oak Ridges Moraine Conservation Plan. Within this Natural Core Area, single-family dwellings are permitted on lots of record possessing zoning rights for single-family residential use as of November 15, 2001. However, all Parties agree that because the Bassos lot does not possess any frontage on a public road as of that date, no such residential use is permitted. The Bassos motion is primarily for: 1. An Order determining that a bed and breakfast establishment, as that term is defined in the Oak Ridges Moraine Conservation Plan, O.Reg 140/02 ( the Plan ), is a principal use, and is not an accessory use to a permitted principal use. Section 2 and 3 are made less relevant by time and events and are not stated here. In carefully assessing the presented arguments and the pertinent texts of the Oak Ridges Conservation Plan, the Board finds agreement with all Parties that no ambiguity exists in relation to the permitted uses. The Board, in making findings and arriving at a decision, accepts the parameters as set out by the Parties. These parameters relate to the general principles of interpretation as established by Maxwell and Driedger and reiterated in Bell ExpressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559 (S.C.C.). That where no ambiguity exists, the words of any statute are to be read in their entire context and in their grammatically and ordinary sense harmoniously with
- 4 - PL030506 the scheme of the Act, the object of the Act, and the intention of Parliament. In this case, Parliament is taken as the Provincial Legislature. The Board makes several findings pertaining to Mr. Sit s testimony. Firstly, based upon Mr. Sit s qualified testimony, the Board finds that the objectives of the Oak Ridges Moraine Conservation Act, 2001 in relation to permitted uses are clearly delineated in the Oak Ridges Moraine Conservation Plan. Specifically in reference to the permitted uses, the objectives are to protect the ecological and hydrological integrity of the Oak Ridges Moraine Area ; to ensure that only land and resource uses that maintain, improve or restore the ecological and hydrological functions of the Oak Ridges Moraine Area are permitted ; and further, to provide for land and resource uses and development that are compatible with the other objectives of the Plan. The Board finds that the intention of the Conservation Plan, within the defined Natural Core Areas, representing some 38% of the Moraine, is, critically, to allow only existing uses and very restricted new resources management, agricultural, low intensity recreational, home businesses, transportation and utility uses. Secondly, the Board finds concurrence with Mr. Sit s testimony that Part 1 Sections 6, 7 and 8 specify limits on existing legal uses. Specifically, Section 6 deals with existing uses, buildings or structures in existence, or having a valid permit under the Building Code Act, 1992 on or before November 15, 2001. Importantly, Section 7 ties the use, erection or location of a single dwelling together and permits them only where they have legally been in place on or prior to November 15, 2001. Section 8 combines the use, erection or location of a building or structure and again only permits such things where an application commenced prior to November 17, 2001. The general objectives of the Conservation Plan are reconfirmed in Part 2, Section 11 in which purposes and uses are further detailed. The Board places considerable weight upon Mr. Sit s testimony as to the objectives, purposes and permitted uses of the pertinent legislation and in particular that of the Oak Ridges Moraine Conservation Plan. It places little weight or relevance upon his opinion of any potential catastrophes that may result from this Board decision. In Part 1, Section 3(1) bed and breakfast establishment is defined as follows:
- 5 - PL030506 Means an establishment that provides sleeping accommodation (including breakfast and other meals, services, facilities and amenities for the exclusive use of guests) for the traveling or vacationing public in up to three guests rooms within a single dwelling that is the principle residence of the proprietor of the establishment. The Board finds that the plain meaning of this definition is that the permitted use is irrevocably tied to a single dwelling ; that importantly, is located within that dwelling and limited to three guest rooms ; and further that such a single dwelling must be an existing principle residence of the proprietor. The bed and breakfast establishment changes an existing residential use by adding a guest residence to the principal residence or use. The Board does not find the determination in the motion that the bed and breakfast establishment is not an accessory use to be helpful. The Township and the residents did not maintain that it is. They maintained that it is a permitted use that occurs by changing what is first a dwelling and primary residence. Further, the Board did not find helpful the determination of the bed and breakfast establishment as principal use. The only place the term principal use is found is in the accessory use definition. What is noted in Section 11(3) is the following uses are permitted. An accessory use must be incidental or subordinate to the principal use building or structure on the same lot. Such a term clearly limits the home business and home industry but not the bed and breakfast establishment. The Board agrees that in contrast, the bed and breakfast establishment and the farm vacation home in their definitions relate to a different but residential use, a guest lodging function or use. Such a residential use is limited in size by the number of guest rooms, the location within a single dwelling as opposed to outside it, and by the single dwelling being a principal residence. It is not instructive to label this as principal use or accessory use. While the Board accepts as an argument that as defined in the Plan a single dwelling means a building and thus conceivably not a use, principal residence is clearly not limited by any definition in the Conservation Plan, though it is not infrequently used. While it is argued that Mr. Sit and the municipality may be attempting to add words such as accessory use that are not there, or are attempting to assign a use to
- 6 - PL030506 a dwelling that is otherwise defined as a building, the Board finds that the applicant s interpretation is dependent upon ignoring the clear common meaning of principal residence as different from a dwelling or just a residence. The bed and breakfast establishment is inseparable in this definition and in common usage from an existing principle residence or domicile or a residential use. The Oxford Encyclopedic English Dictionary refers to residence as (1) the act or an instance of residing and (2) the place where a person resides. Black s Law Dictionary similarly states that residence is the act or fact of living in a given place for some time. However, when the adjective principal is added to the term residence, it takes on the interchangeable meaning with the term domicile in which bodily presence and the intension to make the place one s home are required. These are characteristics that are difficult to predict as potentially present in the future. Yet, they are attributes that are required by the Conservation Plan and can be determined in the present existing residential use. Importantly, the definition in Section 3(1) of the Conservation Plan, as interpreted by this decision, is consistent with the stated objectives of the land use designations for the Natural Core Areas in that it does not use the future tenses of will be or may be but states the present tense of is. The bed and breakfast function is limited to three guest rooms within a single dwelling that is a principal residence. It is also different from the home business in its potentially larger proportionate use of the single dwelling. The home business allows a smaller, more limited use of the internal space within the single dwelling by the use of the common term accessory. Similarly, the home industry with uses such as carpentry, which are located outside the single dwelling, are limited in the extent of the use of the residential lot by the term accessory. The Board in testing this common sense or grammatically and ordinary sense of Section 3(1) finds that such an interpretation is consistent with the objectives of the Oak Ridges Moraine Conservation Act, 2001 and the Oak Ridges Moraine Conservation Plan as stated above. The clear intent of the Conservation Plan is to limit uses and the intensity of uses within the whole of the Conservation Plan area, but particularly to do so within the Natural Core Area. Residential uses are prohibited unless presently existing or unless they meet the tests required and detailed clearly in Section 6, 7, and 8.
- 7 - PL030506 A bed and breakfast establishment in an existing dwelling that is a principal residence would meet the objective of adding a very restricted new resource management, agricultural, low intensity recreational, or home businesses. In contrast, the applicant s interpretation would allow for the creation of new single dwellings, and then provide the means for their intensification, where no such right exists today. This interpretation would clearly defeat the purpose of the legislation and the Conservation Plan. While the Board accepts the requirement to liberally interpret the Plan and thus possibly depart from a literal or plain meaning of the text where there may be a potential loss of existing property rights, the Board finds that Exhibit 8 establishes that no such property right presently exists, nor existed before the required date of November 15, 2001, for a principle residence use on this property. In conclusion, the Board finds that no ambiguity exists. The permitted use of a Bed and Breakfast Establishment, afforded by Section 11(3) 7 of the Conservation Plan, is qualified by its definition in Section 3(1) and framed within the context of the legislation and the objectives of the Oak Ridges Moraine Conservation Plan. The Board finds that the definition of Bed and Breakfast Establishment limits such a use to a single dwelling that is the principle residence that is in existence or that is otherwise permitted by Section 6, 7, or 8 of the Conservation Act. The Board does not find the terms principal use and accessory use helpful in conjunction with the bed and breakfast establishment. As a result, the Board dismisses the motion brought by Umberto and Sylvia Basso before the Ontario Municipal Board under Rule 34 the Board s Rules of Practice and Procedure, for directions respecting the conduct of the pending hearing. The Board so orders. D.J. Culham D. J. CULHAM MEMBER
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