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Ontario cases.


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  1. Muchnik v. Garfield

    Location:

    City of Toronto


    Subject:

    Minor Variances, Residential Development


    Court:

    Ontario Municipal Board


    Application/issue:

    The applicants are proposing to demolish a small bungalow in order to construct a new two-storey home. To do this, they require four variances from the zoning by-law. They applied to the Committee of Adjustment for the City of Toronto for approval of those variances and were granted approval. The appellants were not satisfied with the decision as the second storey home will exceed the by-law maximum and affect the appellants; therefore they have appealed the decision before the Board.


    Held:

    Appeal allowed in part


    Reasons:

    At the commencement of the hearing, the Board was advised that the parties had achieved a settlement of the issues between them that would result in a reduction in length of the second storey. The Board also finds that the amendment to the variance application is minor, and that no further notice of the variance is required. Further, the Board concludes that the variances meet the four tests under the Planning Act, there will, be no adverse impact on adjacent properties or on the neighbourhood and it meets the general intent of the Official Plan and zoning by-law.


    Document(s):



  2. Signum Corporation v. City of Peterborough and Wal-Mart Canada Corp.

    Location:

    Greater Golden Horseshoe


    Subject:

    Commercial Development, Motion to Dismiss, Official Plan Amendments, Shopping Centre Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    Signum Corporation has appealed to the Ontario Municipal Board under subsection 17(24) of the Planning Act in regard to Official Plan Amendment No. 126 of the City of Peterborough and further, has appealed to the Board under subsection 34(19) of the Act in regard to Zoning By-law Nos. 04-037 and 04-038 of the City of Peterborough. Wal-Mart Canada Corp. has brought a motion under subsections 17(45) and 34(25) of the Act to dismiss the appeals. Wal-Mart seeks its costs incurred in bringing this motion on a substantial indemnity basis.


    Held:

    Motion granted


    Reasons:

    Based on the affidavit evidence submitted by Wal-Mart the Board finds that OPA 126 and By-laws 04-37 and 04-38 are consistent with the City’s policies. The Official Plan sets out a multi-nodal retail commercial structure, which reflects the Wal-Mart site, adjacent to the designated Portage Node and the proposed Signum site in the southwest part sector of the City, which is independent of a Shopping Node designation. The Board finds that the proposal before it represents an incremental expansion of the designated Portage Node and that it reinforces the City’s planned commercial structure.


    Document(s):




  3. Pope v. Toronto (City)

    Location:

    City of Toronto


    Subject:

    Heritage Conservation


    Court:

    Ontario Municipal Board


    Application/issue:

    The matters before the Board consist of appeals under the provisions of the Ontario Heritage Act in connection with By-law 115-2003 enacted by Council for the City of Toronto designating a specific area of the City as a heritage conservation district pursuant to Part V of the Act.


    Held:

    Appeals dismissed


    Reasons:

    The Board accepts the submissions of Counsel and the evidence of the expert witnesses that the designation of the south Rosedale Area as a Heritage Conservation District represents good planning. The restrictions to individual property owners are minimal as the permitting system is in no way directed at interior renovations or exterior renovations that cannot be seen from the street. The Board further states that ratepayers and volunteers have been desirous of a heritage designation for the area for many years and the action of Council in enacting the By-law has widespread support.


    Document(s):



  4. Mattamy (Rouge) Ltd. v. City of Toronto

    Location:

    City of Toronto


    Subject:

    Plan of Subdivision, Residential Development


    Court:

    Ontario Superior Court of Justice – Divisional Court


    Application/issue:

    Application by the Ontario Municipal Board for determination of a stated case as to whether the board had jurisdiction to order a municipality to assume ownership of, and service, a laneway in a subdivision against its wishes. The applicant Mattamy owned 150 acres of land in Toronto; it wished to build a subdivision and submitted plans to the city for approval. The plans included laneways for access, depicted as public streets, which Mattamy intended to be city streets with attendant city services. The city refused to approve the plans on the grounds that the proposed lanes were too narrow, at 10.5 metres, for city streets, whereas the City’s standard width was 18.5 metres. Mattamy argued that, within the subdivision, the proposed width met all needs for access by the city and its services, and that the plan should be approved. It also argued that the city had assumed ownership of other laneways of the same width in the area. Mattamy appealed to the Board, seeking approval of the plan and an order requiring the city to assume the ownership and service of the laneways at the proposed width. The city argued that the Board had no jurisdiction to make such an order.


    Held:

    The OMB did not have jurisdiction to order the city to assume the ownership of the proposed laneways or to service those laneways, even if the OMB approved Mattamy’s subdivision plan.


    Reasons:

    The Board does not have any jurisdiction to order the City to assume roads or services under section 41 or section 51 or the Planning Act, and the Board does not have the jurisdiction to order the City, against its will, to enter into subdivision agreements or site plan agreements that include clauses requiring the municipality to assume roads and services in order to give effect to the Board’s decision approving the plan. It is therefore the Board’s view that they are without jurisdiction to order the City, contrary to its wishes, to do any of the things set out in the stated case submitted to the court.


    Document(s):



  5. York Rose Investments Ltd. v. City of Toronto

    Location:

    City of Toronto


    Subject:

    No categories


    Court:

    Ontario Municipal Board


    Application/issue:


    Held:


    Reasons:


    Document(s):



  6. Petrucci and Rutigliano v. Niagara Escarpment Commission

    Location:

    Greater Golden Horseshoe


    Subject:

    Niagara Escarpment Commission, Residential Development


    Court:

    No categories


    Application/issue:

    This is an appeal against the Niagara Escarpment Commission’s refusal of an application for a development permit, pursuant to section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, made by Petrucci and Rutigliano to construct a single dwelling unit (with attached garage) and septic system and to recognize installation of a driveway access on property in the Town of Caledon.


    Held:

    Appeal dismissed


    Reasons:

    The proposed development is located within the Escarpment Rural Area designation in the NEP. A single dwelling is a permitted use, subject to the relevant NEP Development Criteria. A thorough examination of the proposal by NEC staff determined that it does not comply with the policies of the NEP. Consulted agencies have also provided evidence and rationale to conclude that the relevant Development Criterion has not been satisfied. The Commission finds that allowing development to occur under these circumstances may set a dangerous precedent in that any owner of a lot with environmentally sensitive attributes or that by other constraints could alter the lands in such a way that could potentially circumvent policies that are in place to prevent incompatible site development.


    Document(s):



  7. Grivogiannis v. Toronto (City) Committee of Adjustment

    Location:

    City of Toronto


    Subject:

    Minor Variances, Residential Development, Severances


    Court:

    Ontario Municipal Board


    Application/issue:

    The appellant seeks permission to create a new lot of 1150 metres squared, primarily by the removal of the three-car garage attached to the southeast side of his bungalow. To address conflictions with two standards of Zoning By-law 6752, the appellant also seeks a variance to the lot frontage and permission to install a front parking pad to the front of the bungalow. His application to the panel of the Toronto Committee of Adjustment having been denied, they have been appealed to the Board.


    Held:

    Appeal dismissed


    Reasons:

    The Board finds that the proposed lot will adversely affect the physical character of the neighbourhood by introducing an inappropriate lot shape and house form that fails to adequately address item 51(24) of the Planning Act. Also, having found that the application is in conflict with the East York Official Plan policy 2.5.8, it fails to address item 51(24) of the Act.


    Document(s):




  8. Springhill Development Corp. and Dahmer and DeGraff v. City of Orillia

    Location:

    Greater Golden Horseshoe


    Subject:

    Condominium Development, Official Plan Amendments, Residential Development, Shoreline Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    The applicant wishes to build an 8-storey condominium building on the site containing 74 residential units. This is an appeal to the Board under subsection 34(19) and 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended, against Zoning By-law 2001-173 of the City of Orillia and from a decision of the City of Orillia to refuse approval of Proposed Amendment No. 3 to the Official Plan.


    Held:

    Appeal allowed in part


    Reasons:

    The Board is satisfied there are sufficient controls relating to the Site Plan and the Holding Zone in the By-law to provide for a good development. In this case, the Board finds that the proposed development will have a minimal acceptable impact on the neighbours. While there will be impact to properties surrounding the condominiums development and some sunlight and privacy will be lost, overall the Board finds the impact acceptable, recognizing that the proposed development may set a precedent for what can be developed along the waterfront.


    Document(s):



  9. Holland and Wong v. City of Toronto

    Location:

    City of Toronto


    Subject:

    Minor Variances, Residential Development


    Court:

    Ontario Municipal Board


    Application/issue:

    An appeal from the decision of the Committee of Adjustment of the City of Toronto which refused an application for relief from the provisions of the R1B Zone of East York Zoning By-law No. 1916, to permit construction of a second storey portion of the existing dwelling. There are a number of abutting and adjacent property owners who oppose the application.


    Held:

    Appeal allowed


    Reasons:

    The Board finds that the four tests from the authorization of minor variances contained in subsection 45(1) of the Planning Act are met. Further, the proposed development represents good planning without significant adverse impacts on abutting and adjacent properties, and the character and stability of the area are maintained.


    Document(s):



  10. 1462478 Ontario Inc. and George H. Fleming and Associates Limited v. Town of the Blue Mountains

    Location:

    Grey/Bruce


    Subject:

    Plan of Subdivision, Residential Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    Fleming appealed the conditions of draft plan approval regarding plan of subdivision and the Board allowed the appeal. In that decision the Board also allowed the two appeals filed by Fleming and 1462478 Ontario Inc., respectively, regarding the Town’s failure to amend Zoning By-law 83-40. The parties were directed to work together to finalize the remaining planning documents, however have been unable to reach an agreement. The proceeding dealt with: finalization of the Zoning By-law amendment; objections to the revisions made by the Proponents to the site plan drawings; the conditions of site plan approval; and the appropriateness of wording of certain provisions.


    Held:

    Appeals allowed in part and appropriate amendments made


    Reasons:

    The Board allows appeal by 1462478 Ontario Inc. under subsection 34(11) of the Planning Act, from Council’s refusal or neglect to enact a proposed amendment to Zoning By-law 83-40. The Town Clerk is authorized to assign a by-law number to the amendments made by the Board. The Board also finds that the appeals by 1462478 Ontario Inc. under subsection 41(12) of the Planning Act, regarding the determination and settlement of the details of a site plan for the development of the Block 10 lands and for the determination and settlement of the details of a site plan for a proposed temporary on-site sales centre for the lands are allowed in part. The Board further orders, pursuant to section 51(56.1) of the Planning Act, that the County of Grey shall have the authority to clear the conditions of draft plan approval and to administer final approval of the plan of subdivision for the purposes of subsection 51(58) of the Act.


    Document(s):



  11. 1462478 Ontario Inc. and George H. Fleming and Associates Limited v. Town of the Blue Mountains

    Location:

    Grey/Bruce


    Subject:

    No categories


    Court:

    Ontario Municipal Board


    Application/issue:


    Held:


    Reasons:


    Document(s):



  12. 1358872 Ontario Ltd. v. Neebing (Municipality)

    Location:

    Northern Ontario


    Subject:

    Commercial Development, Official Plan Amendments, Recreational Development, Shoreline Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    The appeals related to a proposal to construct a Seasonal Trailer Park adjacent to the river-bank of the Cloud River at Cloud Bay, in the Municipality of Neebing. The proposed trailer park is located on a narrow band of land owned by Eagle Mountain Resort. Amendments to the Municipality’s Official Plan and Zoning By-law are required to implement the proposal. Official Plan Amendment No. 10 would redesignate one-third of the subject lands as “Recreational” with the balance redesignated as “Environmental Protection.” The Zoning By-law amendment would rezone the lands to Tourist Park Commercial Exception One Zone and various Use Limitation Exception One Zones.


    Held:

    Appeals dismissed


    Reasons:

    While the Board took into consideration that fact that the Official Plan Amendment and Zoning By-law Amendment and the Development Agreement could be edited and corrected to be more in line with the Municipality’s documents, they did not find this argument persuasive enough. They did, however, find more persuasive the fact that the proposal was not compatible with what was acknowledged as a pristine environment. An environment that is unique on the north shores of Lake Superior, which must be protected from harm rather than be put at risk.


    Document(s):



  13. 300 John Street v. Markham (Town)

    Location:

    Greater Golden Horseshoe


    Subject:

    Commercial Development, Official Plan Amendments, Shopping Centre Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    This proceeding deals with the proposal for the partial demolition of the existing commercial mall in order to make room for a large format store for home improvement merchandise. The Town rejected the application for the Official Plan and zoning by-law amendments that would enable the proposal to come into being. The owner launched the requisite appeals to the Board relating to the three planning instruments that are set out in the title of proceedings.


    Held:

    Appeals dismissed


    Reasons:

    The Boards decision lies on the overall poor planning and design of the proposed building. The pedestrian conductivity, the lack of an elevator, the two tier parking formats, the outdoor display of goods and wares and a large amount of outdoor space devoted to a garden centre all contribute to our sense of unease even though the Board is aware that some tinkering may be of some help. The Board is of the view that a different planning exercise dealing with the implication of such a shift must be done prior to an approval.


    Document(s):



  14. MacDonald v. Hawkes

    Location:

    Greater Golden Horseshoe


    Subject:

    Minor Variances, Residential Development


    Court:

    Ontario Municipal Board


    Application/issue:

    The Town of Richmond Hill By-law 2325 requires that accessory buildings are located in the rear yard. The appellant made an application for a minor variance that would permit a pool house in the side yard and was denied by the Committee of Adjustment for the Town of Richmond Hill. He has appealed this decision to the Board. However, the Hawkes, whose property is adjacent to that of the appellant support the Committee of Adjustment decision and appeared in opposition to the application at this hearing.


    Held:

    Appeal allowed


    Reasons:

    The Board finds that all the evidence is in compliance with the Zoning By-law and is therefore granted. In the case at hand, an accessory building is a permitted use; the pool house is setback 1.8 metres from the side lot line; the Hawkes patio is located some 18.8 metres from the pool house; the area between Mr. Hawkes’ patio and the pool house is well treed; the pool house is well camouflaged by evergreen trees from the roadway; and the language of the Zoning By-law does not specifically prohibit the location of the pool house in the side yard.


    Document(s):



  15. 1462478 Ontario Inc. and George H. Fleming and Associates Limited v. Town of the Blue Mountains

    Location:

    Grey/Bruce


    Subject:

    Commercial Development, Development Charges, Plan of Subdivision, Residential Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    This case is regarding future developments for a subdivision in the Town of the Blue Mountains. The Board is dealing with the following matters: an appeal of conditions No. 5 and 6 of the conditions of draft plan approval, imposed by the County of Grey; an appeal of the Town’s refusal or neglect to make a decision within 90 days of the application to rezone the eight lots and the hazard area abutting the eight lots; an appeal of the site plan for a temporary on-site sales centre; and appeal of the Town’s refusal or neglect to rezone Block 10; and an appeal of the Town’s failure to approve the site plan for the Block 10 lands.


    Held:

    Appeals allowed in part


    Reasons:

    The Board finds that the subject lands do not constitute development that benefits from the reconstructed road and it is unreasonable for the Town to impose the local service component charge on the subject lands. The Board orders that the owner shall satisfy all the requirements, financial and otherwise, of the Town of the Blue Mountains concerning the provisions of services and drainage for the site. The Board shall allow the two appeals filed by 1462478 Ontario Inc. to determine and settle the details of the site plan for the development of Block 10 and the sales pavilion. However, the Board will withhold its order amending Zoning By-law 83-40 and approving the site plans pending the receipt of revised documentation.


    Document(s):



  16. The Walkerton Inquiry

    Location:

    Grey/Bruce


    Subject:

    Agricultural


    Court:

    No categories


    Application/issue:

    On June 12, 2000, the Government of Ontario, by Order in Council No. 1170/2000, established a Commission to conduct an inquiry into the following matters: (a) the circumstances which cause hundreds of people in the Walkerton area to become ill, and several of them to die, in May and June of 2000, at or around the same time as Escherichia coli bacteria were found to be present in the Town’s water supply; (b) the cause of these events, including the effect, if any, of government policies, procedures and practices; and (c) any other relevant matters that the Commission considers necessary to ensure the safety of Ontario’s drinking water. The Commission received eight application for standing from groups concerned with issues related to farming and agriculture. The Commission concluded that these groups represent a clearly ascertainable interest and perspective in relation to farming and agricultural issues, and that that interest was important to the Commission’s mandate in Part I. The groups agreed to be represented by OFEC, which was granted standing by the Commission for Part I in relation to farming and agricultural issues.
    The Commission has heard that the establishment of a safe a secure municipal water supply is dependent upon a series of elements: a good source, proper treatment, a secure distribution system, diligent monitoring and an effective response to adverse conditions. It is respectfully submitted that the tragic events of the Spring of 2000 in Walkerton resulted from failures or breakdowns in many, if not all, of these elements. While the evidence is overwhelming that the source of E. coli contamination was cattle manure on the fields adjacent to Walkerton’s Well no. 5, the resulting deaths and illness can be attributed to a tragic coincidence of errors, complacency and, perhaps, negligence, extending back some 20 years, in all aspects of the water supply regime in Walkerton. It is the Ontario Farm Environmental Coalition’s basic argument that, while impractical, if not impossible, to identify and eliminate all potential contaminant sources, or impose super-human monitoring, testing and response requirements, its is practical, possible and prudent to require those charged with the delivery of domestic water to adopt a multi-barrier approach to the sourcing and delivery of municipal water. Indeed, it is respectfully submitted that there was agreement amongst all experts that as to the benefit and necessity of such an approach.


    Held:


    Reasons:

    For full report, go to: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/walkerton/part1/ AND http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/walkerton/part2/


    Document(s):



  17. Gray v. Minden (Township) Committee of Adjustment

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Minor Variances, Residential Development, Shoreline Development


    Court:

    Ontario Municipal Board


    Application/issue:

    Bacik is the applicant for minor variances to permit the construction of a cottage in the Township of Minden. The applicant seeks a minor variance to permit a reduced setback from the lake – 98.43 feet is required. The applicant sought a reduction of 38.43 feet and the Committee granted a 32.43 foot reduction. The applicant sought relief to permit a deck to be 12 feet high – permitted is 5.91 feet for an uncovered deck. The Committee granted this second variance. Brian Gray who owns a cottage on abutting lands appeals before the Board.


    Held:

    Appeal dismissed (but Order withheld)


    Reasons:

    The Board finds that the setback, as amended at the Committee of Adjustment, to reduce by 32.43 feet to a 66 foot setback is a minor modification as authorized under section 45(18.1.1) of the Planning Act. The applications for the setback reduction and deck height are found by the board to meet the four tests under section 45 of the Planning Act. The applications meet the general intent of the Official Plan, which imposes the 30 metre setback only for new lots and recognizes the need for variances.


    Document(s):



  18. Greenwood v. Township of Elizabethtown

    Location:

    Eastern Ontario


    Subject:

    Minor Variances, Residential Development, Shoreline Development


    Court:

    Ontario Municipal Board


    Application/issue:

    Mrs. Greenwood owns a vacant parcel of land measuring 61.4 feet by 179 feet consisting of approximately 11,000 to 12,000 square feet and wishes to transfer this lot to her daughter, Barbara Greenwood, if she can obtain a building permit for the construction of a 1,500 square foot two-storey, two-bedroom cottage on the land. Barbara Greenwood has applied for approval of minor variances from the minimum lot area, frontage and side yard requirements in order to proceed with the construction. The Committee of Adjustment refused the application and she has appealed before the Board.


    Held:

    Appeal allowed


    Reasons:

    The board is satisfied that the intent and purpose of the Zoning By-law and Official Plan, as approved by the Board, is maintained. The plans show that the proposal is compatible with the surrounding area and is proportionate to the lot size and will be below 15% of the lot area. Further, the variances requested are desirable for the appropriate development of the property and can be considered minor.


    Document(s):