Mapleton council is hoping to have a solution soon for several local landowners whose plans for their property are on hold due to confusion over Minimum Distance Separation (MDS) provisions in the township’s new comprehensive zoning bylaw.
In July of 2010 Mapleton council passed a new comprehensive zoning bylaw that waives MDS1 requirements for existing lots that are less than 9.9 acres. However, the bylaw did not come into effect until June 2012 due to an OMB appeal of the bylaw on an unrelated matter.
Alwyn and Lori Woodham attended the Sept. 25 council meeting to express concerns over the exemption, due to the potential impact on their farming operation on County Road 10 near Moorefield. Several small lots, created in the 1970s, exist near the couple’s farm. Because the lots are within MDS1 radius, building could not be permitted without a specific waiver. However, the Woodhams were concerned the change to the comprehensive zoning bylaw would allow the lots to be built on, effectively restricting future expansion on their farm, as the farm would then be bound by MDS2 regulations.
All of the current members of Mapleton council who were in office at the time of the bylaw change have stated they were not aware of the MDS waiver provision when passing the bylaw.
Tracy Cronin, of Woods, Clemens and Fletcher, an Elmira law firm, appeared before council on Oct. 23 to outline the position of the owners of the lots near the Woodhams’ farm.
Cronin told council that in July 2010, Tony and Mary Ann Giesen contacted the township to inquire about the impact of the new comprehensive zoning bylaw on the lots they owned along County Road 10. Cronin said the couple was advised by both township staff and county planning staff that the new bylaw contained a provision exempting these lots from MDS1 requirements. The Giesens attended the township council meeting at which the zoning bylaw was passed, at which time, Cronin says, no objections were raised to the exemption.
Cronin stated the Giesens “were specifically assured after the passing of the bylaw the exemption from MDS1 would enable them to sell the lands as building lots, provided the buyer was aware that the parcels would need to be consolidated into a one-acre parcel.” The new zoning bylaw requires a minimum lot size of one acre for a building permit to be issued. Between the spring of 2011 and August of 2012, three couples, Barb and Gary Huber, Chris and Brittany Huber and Dennis and Tiffany Gleeson, purchased several of the Giesens’ lots. Cronin said all of the couples were advised by township staff that building permits could be issued for the lots as long as they were consolidated into single parcels of at least an acre.
On Sept. 24, the Gleeson’s applied for a building permit on their consolidated lot. On Oct. 16, Cronin said, her office received notice from the township’s solicitor, Scott Galadja, indicating the permit could not be issued.
‘Strict reading’
Cronin states that Gladja used a “strict reading” of the bylaw to conclude the consolidated lots were not “existing lots” as of the passage of the bylaw and therefore not covered by the MDS1 exemption.
Cronin said such a strict interpretation of the bylaw “would nullify the entire intention of the bylaw and result in this exemption having no purpose and no point in law.”
Cronin said the purpose of creating the MDS1 exemption in the bylaw was to permit such lots to be used as building lots.
“This was the understanding of the township staff and planners and the information that was consistently communicated to the public,” she stated.
“The exemption contemplated building lots, but no building lots could exist until the lots are joined,” said Cronin, adding the “only reasonable interpretation is that the zoning attributes attached to these existing lots must be retained in the one acre lots which they now comprise.”
Cronin asked the town to reconsider its position and issue the Gleesons, who are currently renting a place to live while the issue is sorted out, a building permit, or to take steps to amend the wording of its bylaw “so as to fit its strict interpretation with the intended purpose.”
Mayor Bruce Whale replied that “we will certainly take all the information that you have provided into consideration and hopefully we can reach a solution fairly quickly.”
Council then moved in-camera to meet with the township’s solicitor for close to an hour. After the in-camera session, Whale advised the delegation “our solicitor has requested a week to take into consideration all the information that has been provided by you and hopefully try to pen some options and a solution to this situation as quickly as possible.” Whale said he was hopeful there would be further information in “a week to 10 days.” Council held an additional in-camera session at the end of the Oct. 23 regular meeting.
