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Ontario cases.


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  1. City of Cambridge v. Flag Raiders Inc.

    Location:

    Greater Golden Horseshoe


    Subject:

    Recreational Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    A request to amend Zoning By-law 150-85 in the form of a Temporary Use By-law to permit the continued use of the site for the purpose of operating commercial/recreational establishment (outdoor paintball) for a period of three years. The application was denied by the Council of the City of Cambridge and the applicant/appellant appealed Council’s decision.


    Held:

    Appeal allowed


    Reasons:

    The Board accepts that the use for the site is not in accordance with either the Official Plan or the Regional Planning Policies. However, the Board concludes that the extension of the current Temporary Use By-law is only for three months and the Board has no desire to close down Flag Raiders Inc. immediately when there is a possibility of it relocating in the near future.


    Document(s):



  2. Menkes Lakeshore Ltd. v. Kraft Canada Inc.

    Location:

    City of Toronto


    Subject:

    Commercial Development, Costs, Residential Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    A motion for costs arising from a hearing of the merits that lasted for some 50 hearing days. The central issue in the hearing was whether a mixed use designation, permitting commercial and residential uses, should be placed on any or all of the lands bounded by Park Lawn Road, Lakeshore Road West, Mimico Creek, and CNR lands. The Board held in favour of permitting mixed commercial and residential uses. Kraft’s application for leave to appeal was denied, with costs. Menkes has pursued its motion for costs, but only against Kraft, not the City.


    Held:

    Motion for costs is denied


    Reasons:

    The Board finds insufficient support in the affidavit evidence for the Board to make a finding of bad faith on the part of Kraft; they disagree that Kraft had ignored the Board’s directions and orders; they do not agree that noise and odour were not proper issues; and finds that it has insufficient evidence to make an award of costs against Kraft for failure to retain experts, submit reports, call evidence to challenge Menkes experts or advance an argument in support of issues of design, density and height.


    Document(s):



  3. SkyPower Corp. v. Norfolk County

    Location:

    Southwestern Ontario


    Subject:

    Agricultural, Official Plan Amendments, Renewable Energy, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    SkyPower Corp. proposes to construct 150,000 solar panels on an 86 acre farm located at 336 Port Ryerse Road, Simcoe, Ontario in the County of Norfolk to produce 10 MWe of solar power. SkyPower has entered into an agreement of purchase and sale to purchase this farm from David Ryerse. SkyPower has received all other regulatory approvals required from federal and provincial governments and has entered into contracts to sell the solar power from this location. SkyPower requires Official Plan Amendments and a Zoning Amendment to construct the nearly 11 foot high angular solar panels here in this agricultural area. The proposal calls for three quarters of the land to remain in agriculture and be used for nursery and other horticultural purposes. Kelly Harris and Weselan Farms Limited, the owners of abutting properties, appealed these approvals. The main motion was to dismiss the Appeals of Harris and Weselan Farms.


    Held:

    Appeals dismissed


    Reasons:

    The Board finds, upon reading the Provincial Policy Statement that the relevant locational criteria relating to alternative and renewable energy systems are found within the Policy Statement. The Board does not find that the reasons for appeal could affect the outcome of an ultimate hearing of this matter, nor do they take an issue worthy of adjudication. In summary, the Board finds that the reasons for the Appeals set out by Mr. Harris fail to meet the statutory tests set out in the Planning Act and hereby dismisses the appeals.


    Document(s):



  4. Ruscica v. Town of Markham

    Location:

    Greater Golden Horseshoe


    Subject:

    Minor Variances, Residential Development


    Court:

    Ontario Municipal Board


    Application/issue:

    The applicant/Appellant is seeking relief from the provisions of Zoning By-law No. 2237, as amended, to permit the construction of a two-storey dwelling. The following variances are sought: a side yard setback of 1.2 metres whereas the minimum is 1.8; a building depth of 22.93 metres whereas the maximum is 16.8; and a floor area ratio of 58.6% whereas the maximum is 50%.


    Held:

    Appeal allowed


    Reasons:

    The Board finds that the variances meet the general intent and purpose of the Official Plan and the Zoning By-law; they are desirable for the appropriate development of the subject lands; they are minor in nature; and they meet the four tests for a minor variance as set out in Section 45(1) of the Planning Act.


    Document(s):



  5. Township of Muskoka Lakes v. Purkis

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Costs, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    This motion by the Township is for costs following from an appeal by William John Purkis of Zoning By-law 2006-126, a housekeeping by-law arising from Comprehensive By-law 87-87. The motion was not responded to by Mr. Purkis within 15 days of the service of the documentation as required by Rule 101 of the Board’s Rules of Practice and Procedure. The Township is seeking $1,000 from Mr. Purkis, which represents partial payment for costs incurred for the services of legal counsel.


    Held:

    Motion granted


    Reasons:

    The Board finds that, according to Rule 106 of the Board’s Rules, failure to attend a hearing without contacting the Board is cause for costs to be awarded. Further, the Board concurs with the Township’s submission that the appeal was frivolous from the outset and that no land use planning grounds were advanced by Mr. Purkis by which the appeal could possibly have been allowed.


    Document(s):



  6. Robertson v. City of Toronto

    Location:

    City of Toronto


    Subject:

    Minor Variances, Residential Development


    Court:

    Ontario Municipal Board


    Application/issue:

    The Applicant/Appellant wishes to demolish the existing residence to erect a new residence and requires a number of variances for this purpose. The City’s Committee of Adjustment granted four of the five variances requested to North York Zoning By-law 7635, but refused the fifth. The Applicant/ Appellant is appealing the refusal.


    Held:

    Appeal allowed in part (variance subject to conditions set out by Board)


    Reasons:

    The Board finds that the application meets all four tests of Section 45(1) of the Planning Act; meets the general intent and purpose of the Official Plan as well as the Zoning By-law; the application represented appropriate development of the land and was minor in nature; and no adverse impacts will follow from the granting of it.


    Document(s):



  7. Maile v. Township of Muskoka Lakes

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Residential Development, Severances


    Court:

    Ontario Municipal Board


    Application/issue:

    The applicant applied for three severances in order to sever and add to the abutting lot to create two additional lots. The application involved two parcels of land. The other property is a 34-acre rural lot, which is vacant and the Applicant has an existing cottage and sleeping cabin. The Township’s Committee of Adjustment allowed the severances subject to eight conditions. The applicant is appealing condition 7 which reads: “That either a minimum setback of 300 feet be imposed from the proposed southerly lot lines of Maile retained lot #1, Strivens retained lot #1, and Maile severed lot #2, or an area of this depth be rezoned Open Space (OS2), or lot lines be reconfigured to these points.”


    Held:

    Appeal allowed


    Reasons:

    The Board accepts that the lots which are the subject of Condition 7 are rural lots, as they are currently zoned, that they are neither physically nor functionally related to the water and are not, therefore waterfront lots. The Board finds that there is no conflict with the Provincial Policy Statement with the deletion of Condition 7, and that the subject lots comply with the Rural policy for both the District and Township Official Plan.


    Document(s):



  8. Township of Muskoka Lakes v. Dilillo

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Minor Variances, Residential Development, Shoreline Development


    Court:

    Ontario Municipal Board


    Application/issue:

    The Applicant/Appellant is seeking relief from Zoning By-law 87-87, as amended, to construct a dwelling, which is 39.5 ft. in height, whereas 35 ft. is the maximum allowed in a Waterfront Residential (WR1) Zone. The Committee of Adjustment for the Township of Muskoka Lakes denied the Applicant/Appellant’s application for a Minor Variance and it is being appealed.


    Held:

    Appeal allowed


    Reasons:

    The application meets the four tests of Section 45(1) of the Planning Act in that it maintains the general intent and purpose of the Official Plans of both the District of Muskoka and the Township as well as the general intent of the Township’s zoning by-law. The Board finds that the subject property in no way diminishes the quality of its natural environment and has no negative impacts on the landscape.


    Document(s):



  9. Township of Muskoka Lakes v. Littler

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Boathouses, Minor Variances, Shoreline Development


    Court:

    Ontario Municipal Board


    Application/issue:

    An appeal from a decision of the Corporation of Muskoka Lakes’ Committee of Adjustment not to support a requested variance from By-law 87-87 for a proposed gazebo with the following variances: to permit a two storey no-complying boathouse to be increased in volume through a restoration to a roofline and the addition of a dormer; to permit a gazebo over water. The Committee of Adjustment recommended that the first variance application be approved but denied to permit a gazebo over water.


    Held:

    Appeal allowed in part


    Reasons:

    The Board finds the requested variance for the gazebo does not meet the four tests of Section 45(1) of the Planning Act. The variance does not maintain the general purpose and intent of the operative Official Plan and that of the applicable Zoning By-law; it must be minor and be desirable for the appropriate development of the land. Therefore, the appeal is allowed in part and authorizes variance 1 to Zoning By-law 87-87.


    Document(s):



  10. Township of Muskoka Lakes v. Water and Ice Limited

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Boathouses, Shoreline Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    An amendment to revise the Zoning By-law 87-87, which would alter the maximum permitted width of the boathouse, the maximum permitted extension, the maximum permitted height, and permitting the number of storey’s in the boathouse to two.


    Held:

    Appeal dismissed


    Reasons:

    The Board agrees that the proposal was not in general conformance with the Township and District policy framework and more specifically, contravenes the spirit and intent of Township of Muskoka Lakes By-law 87-87. The number, significance and requested scope of the required exemptions were, in his opinion, not supportable. The Board finds that the Municipality of Muskoka Lakes dictates that a principal building must come first and accessory buildings such as a boathouse must be subordinate to an established principal use.


    Document(s):



  11. Municipality of Temagami v. Lake Temagami Residents Group Inc. and Temagami Barge Limited

    Location:

    Northern Ontario


    Subject:

    Shoreline Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    The appellants have appealed to the Board under subsection 34(19) of the Planning Act against Zoning By-law 06-650 of the Municipality of Temagami.


    Held:

    Appeal allowed in part


    Reasons:

    At the outset of the hearing, the Board was advised by Counsel for the Municipality of Temagami, that the appeal by Lake Temagami Residents Group Inc. has been settled. The Board had been advised of the amendments that had been made to the by-law that has been approved by Council to address the concerns raised in the appeal. The Board accepts the evidence and finds that the by-law does represent good planning and that it does conform to the municipal Official Plan.


    Document(s):



  12. Waltman v. City of Toronto

    Location:

    City of Toronto


    Subject:

    Minor Variances, Residential Development


    Court:

    Ontario Municipal Board


    Application/issue:

    Elise Waltman is requesting a variance from the provisions of the north York Zoning By-law 7625, as amended, to permit the construction of a two storey dwelling at 132 Dunblaine Avenue in the City of Toronto. The existing dwelling will be demolished. The Committee of Adjustment denied the Applicant’s minor variance application. The Applicant appealed the Committee’s decision to the Ontario Municipal Board. An amendment was made at a later date to these variances (see attachment).


    Held:

    Appeal allowed


    Reasons:

    The Board finds that all of the four tests of subsection 45(1) of the Planning Act have been satisfied regarding the amended variances. The Board finds that the amended variances are minor and that they comply with the general purpose and intent of the Official Plan and Zoning By-law and is desirable for the development proposed.


    Document(s):



  13. Komeilinejad v. City of Toronto

    Location:

    City of Toronto


    Subject:

    Commercial Development, Minor Variances


    Court:

    Ontario Municipal Board


    Application/issue:

    An appeal to the Committee of Adjustment of the City of Toronto for a minor variance to create six parking spaces at the rear of her property, however, Zoning By-law 7625 requires eight parking spaces of a specified size and with specified turning circles and aisles for the uses proposed. The appeal is under subsection 41(12) of the Planning Act.


    Held:

    Appeal allowed


    Reasons:

    The Board concludes that the proposal will comply with and conform to the land use documents and represents appropriate planning. The Board allows the appeal and the site plan approval requested be authorized subject to the conditions set out at the hearing.


    Document(s):



  14. Town of Gravenhurst v. 670409 Ontario Limited

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Residential Development, Severances, Shoreline Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    The subject property is approximately 11.1 acres in size and fronts onto Morrison Lake and Morrison Creek. The proposal is for a new road to be constructed by the applicant. These large lots provide flexibility in the location of dwellings and septic tile beds and that the number of docks is limited to one for each lot to be located off existing rock faces. The subject lands are to be rezoned to permit the intended residential use subject to a 30.0 metre Environmental Protection Zone being retained along the shoreline and measured from the high water mark.


    Held:

    Appeal allowed


    Reasons:

    The Board finds that the proposed zoning by-law amendment is consistent with the Provincial Policy Statement and conforms to the District of Muskoka Official Plan and the Town of Gravenhurst Official Plan. By-law 94-54 is hereby amended and satisfies that criteria set out in subsection 51(24) of the Planning Act.


    Document(s):



  15. Township of Seguin v. Gagnon

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Boathouses, Minor Variances, Shoreline Development


    Court:

    Ontario Municipal Board


    Application/issue:

    An appeal from a decision of the Township’s Committee of Adjustment, which denied the application for variances from the provisions of the Township’s Interim Control By-law Z200-97 to replace a recently demolished boathouse. The variances were for maximum width and maximum length extensions.


    Held:

    Appeal allowed in part


    Reasons:

    The Board finds that variances cannot be authorized unless they meet all four requirements of Section 45(1) of the Planning Act; maintain the general purpose and intent of the operative Official Plan and that of the applicable zoning by-law; and they must be minor and desirable for the appropriate development of the land. For these reasons, the Board allows the appeal, but with the conditions that the boat port width be reduced from 1.83 metres to 1.52 to satisfy the maximum requirement and the railing be installed along the upper perimeter of the port.


    Document(s):



  16. D’Urzo v. City of Toronto

    Location:

    City of Toronto


    Subject:

    Minor Variances, Residential Development, Severances


    Court:

    Ontario Municipal Board


    Application/issue:

    An appeal from decisions of the Committee of Adjustment for the City of Toronto, which dismissed two applications for consent and three minor variances for the purpose of the application is to create three single-family building lots where two currently exist. In order for construction to occur, the applicant applied for the following variances from By-law 7625: proposed frontage and width of 12.89 metres whereas minimum is 15 metres; side yard setback of 1.21 metres whereas minimum is 1.54 metres; and proposed dwelling length of 18.9 metres whereas maximum is 18.8 metres.


    Held:

    Appeal dismissed


    Reasons:

    It is clear to the Board that this is a very stable single-family area with large lots and is undergoing revitalization with existing lots being purchased and new home being constructed, and is therefore not in a state of decline or transition to a different or more intensive use. It is also clear that the Official Plan policies state that preservation of stable residential area is an important policy direction and that intensification as being proposed should be undertaken with circumspection. The Board finds that this residential area is not in decline or that reduced lot sizes are required as a planning tool to reinvigorate the area.


    Document(s):



  17. Town of Huntsville Zoning By-law 2005-18P (Re)

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Shoreline Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    The appeals involve two separate planning instruments. The first relates to a Zoning Amendment By-law 2005-18P. The second relates to five consent applications, which create four new lots connecting another parcel of land to an existing lot. The appeals focus upon the rear lot access to the Robinson Lake Shoreline, which is part of a large Provincially Significant Wetland called Big East River Delta Wetland. The Appellant asserts that four boat docks and the pedestrian paths to them would damage the many botanical species in this shoreline area. Further, since Robinson Lake is very small, permitting boat docks would encourage excessive boating on the Lake, and would encourage dredging of the very small channel connecting this Lake to the larger Lake Vernon. The Appellant asserts that dredging would eliminate the remnant beaver dam, which may vary water levels in Robinson Lake. The issue remained that of access to Robinson Lake and the potential dredging of the channel. The aspect of a potential motorboat ban on Lake Robinson and the question of drenching of the channel are beyond the jurisdiction of the Board. However, these issues are part of the overall assessment of the Applications.


    Held:

    Board allows in part the appeals by Edward Williams under section 34(10) and 53(19) of the Planning Act; Board orders approval of proposed By-law 2005-18P; Board orders provisional consent be given.


    Reasons:

    The Board is satisfied that the proposed Zoning By-law and the proposed Consents subject to the conditions imposed by the Committee of Adjustment meet all the provincial, District, and Town policies and represent good planning. (See attachment for amended decision).


    Document(s):



  18. Mitchell v. Township of Seguin

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Recreational Development, Shoreline Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    This hearing concerned a rezoning to permit the demolition of most of Rocky Crest Resort at the North end of Lake Joseph in the Township of Seguin. The appellants have appealed to the Board under subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended, against Zoning By-law Z272-2005 of the Township of Seguin.


    Held:

    Appeal allowed in part


    Reasons:

    The Board does not find any undue adverse impact and will therefore amend the by-law as set out by the Board.


    Document(s):



  19. Bamberger v. Morgan, Hamilton and Natale

    Location:

    City of Toronto


    Subject:

    Residential Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    The applicants are seeking to replace their existing one storey rear addition with a new two-storey addition. Zoning By-law 438-86 prescribes a maximum gross floor area of 163.82 square metres or 0.35 times the area of the lot and a west side yard setback of a minimum of 0.9 metres. The owners are seeking relief from these provisions so as to have a gross floor area of the building of 232.06 square metres and a west side yard of 0.76 metres.


    Held:

    Appeal allowed in part


    Reasons:

    The Board finds that the four tests required under subsection 45(1) of the Planning Act have been met. The objectors were in agreement with the applicants and it has been confirmed that the settlement has been successfully reached. Further, the Board finds that the proposal satisfies that Official Plan policies individually and collectively; it will create reinvestment and regeneration to the neighbourhood; and there are no adverse planning impacts.


    Document(s):



  20. Kay Family Trust v. City of Toronto

    Location:

    City of Toronto


    Subject:

    Residential Development, Severances


    Court:

    Ontario Municipal Board


    Application/issue:

    An appeal from a decision of the Committee of Adjustment of the City of Toronto that dismissed an application for consent to convey approximately 215.3 square metres of land from the rear yard area of the Kay Family Trust Property to be added to the rear yard area of the Brodie property.


    Held:

    Appeal allowed


    Reasons:

    The Board agrees that there is no adverse impact on the public interest and that the rear yard amenity area function would remain unchanged. Its intended use for soft landscaping and the lot addition, results in a lot depth and area more in keeping with the existing physical character of the vicinity and no resulting adverse impact. The Board finds that consent meets the applicable criteria as set out in subsection 51(24) of the Planning Act.


    Document(s):