KITCHENER – The definition of a “storey” as contained in a Town of Minto zoning bylaw was central to arguments at an Ontario Superior Court of Justice hearing from a virtual courtroom here on March 12.
Justice Catrina D. Braid presided over the hearing in the dispute between Rolf and Kerri Schuettel and the Town of Minto and its chief building official Terry Kuipers. Kenilworth-based Quality Developments is also a party to the case with intervenor status.
In 2016 the town amended zoning, from open space to residential exception zone, on a portion of the former Harriston Senior School property to facilitate the development of townhouses.
The town had bought the property for $60,000 from the Upper Grand District School Board in 2012, and later sold the lands for development.
The amendment included relief from required rear yard and interior side yard setbacks, and also from minimum distance between buildings.
The Schuettels appealed the move to the Ontario Municipal Board over a variety of concerns ranging from public notice issues and parking, to storm water management impacts on neighbouring properties. However, the parties came to an agreement before the matter reached the hearing stage.
OMB minutes of settlement approved on Feb. 3, 2017 indicate the town agreed to an amended version of the original zoning bylaw amendment that allowed for the side and rear yard setback reductions, but required all development to be constructed within provisions of the town’s bylaw regarding “parking, amenity space, garbage facilities and other matters” in a suitable manner.
The settlement also mandates a one-storey height limitation for all developments on the subject lands.
However, as development proceeded on the site, which had changed hands from local developers Jeremy and Jeff Metzger to Kenilworth-based Quality Homes, the Schuettels questioned whether the agreement was being adhered to.
During the hearing last week, lawyer Steven O’Melia, representing the Schuettels, explained the one-story height limitation was actually inserted in an effort to limit the number of residents the units would hold.
If the buildings were allowed to be two storeys there could be “more people, more density” O’Melia stated.
However, he said his clients were advised not to worry about density because “this is going to be a seniors’ community.”
Since it’s “not possible to put in a bylaw that this shall be seniors only,” O’Melia said the parties agreed the one storey limitation would be included in the settlement.
“If what you’re telling us is it’s only going to be seniors, they don’t like stairs so it’s going to be one storey only,” was the idea, he explained.
“If height or shadowing or shading were the issue, we could put a height limitation there,” he added.
However O’Melia said design of 11 of the 23 units planned for the Harriston Heights development, some of which are already built and occupied, include an upstairs area containing two bedrooms, a bathroom and a hallway.
O’Melia said Minto chief building official Terry Kuipers’ description of that area as a “mezzanine” does not fit with the definition contained in the town’s zoning bylaw.
The bylaw describes a storey as “a horizontal division of a building from floor to the ceiling directly above such floor, but does not include any mezzanine, gallery, balcony or other overhang, the floor areas of which does not exceed 40 per cent of the least dimension of the room in which the said overhang is located and does not include a basement or cellar.”
O’Melia said town officials are relying too heavily on the 40 per cent criterion to claim the contested upper floors are not a “storey.”
“At one point they said it was the attic and now they’re saying it was a mezzanine … That is not a context that makes sense,” he stated.
“The town is asking you to believe that two bedrooms and a bathroom, all of which have doors … is a mezzanine.”
O’Melia also questioned the town’s reliance on an affidavit by Kuipers as expert witness testimony.
“Not everybody gets to be an expert,” he said. “First off all you have to be an expert. You have to have real expertise.”
O’Melia contended that Kuipers does not have formal training in land use planning or zoning bylaws
“When it comes to zoning bylaw interpretation, generally speaking, it would be planners looking at that and not a chief building official,” he argued.
O’Melia also stated Kuipers “is a party to this matter so he’s not unbiased.”
“He is the only evidence for the town. There is no other evidence. It’s Mr. Kuipers trying to explain what he did and that, I would suggest to you, at the end of the day should be given very little weight,” said O’Melia.
He argued the court should give no weight to descriptions on some documents of the questioned upper floor space as a “bungaloft.”
“If it’s that easy to get around that type of obligation, to call the thing a bungaloft; if that’s what it takes, without being overly dramatic, the entire planning system of Ontario is undermined,” O’Melia stated.
He explained the Shuettels are not seeking changes to the first block of buildings on the site, which was completed and occupied prior to the initiation of their legal action, but are seeking a declaration that it is not in compliance with the bylaw and agreements in the minutes of settlement. They are seeking that other structures built or permitted since, be brought into compliance.
The Schuettels are not seeking monetary damages but are asking the court to order their legal costs be covered.
Acting for the Town of Minto, Lawyer Michael van Bodegom said the case was “Fundamentally about NIMBY – not in my backyard.
“The applicants don’t like what’s happening in their backyard and they’re doing what they can do obstruct it,” said van Bodegom.
However, he added, “It’s not the role of the CBO, when he decides to issue a permit, to look into what kind of demographic neighbouring property owners might want behind them.”
Van Bodegom said the position of the respondents is that “this application, is in substance a building code appeal,” and should have been dealt with as such.
He said “by proceeding in the way that they did” the Schuettels’ legal action fails to account for the interests of “the owners and residents of at least eight of the units that have been built and sold.
“Parties who are directly affected have a right to participate in our system,” he noted.
Van Bodegom said the town maintains the disputed units “are one storey with lofts.”
He argued the town’s CBO is in fact the only one qualified to apply the definitions on the bylaw as a matter of consistency.
“The CBO exercised his independent judgement and made the determination of upper level lofts,” said van Bodegom.
“He made the determination in the way he has done across the municipality,.”
Van Bodegom noted Kuipers has been Minto’s CBO for the past 15 years and worked as a building inspector prior to that.
“He has significant experience doing exactly what he did in this case. In Minto he’s been doing it day in and day out for 15 years and he’s used his judgement to decide what is and what isn’t a mezzanine. He makes practical on-the-ground decisions of this sort every day,” van Bodegom stated.
“Whether something is a mezzanine falls squarely within the expertise of a chief building official. What is, or is not, a mezzanine falls squarely in the area of construction, not a land use planning issue.”
Van Bodegom pointed out an amending bylaw created after the OMB settlement stated “there shall be a one-storey height limitation on all development” on the lands in question.
“I would say the word height is relevant. It’s intending to address the issue of height,” he explained, adding the description in the original bylaw is “a terrible definition of storey.”
Van Bodegom argued the wording means that since the loft area does not exceed the 40 per cent limit, “In this definition it’s a mezzanine, full stop. It’s not a storey.
“There’s ambiguity built into this definition right from start to finish,” van Bodegom continued. “We have to accept that it’s inherently ambiguous and we have to look at certain practical realities.”
Van Bodegom pointed out the “building is no taller because of these mezzanines.
“That’s because these are lofts, they not traditional storeys that would add one storey of height to the building.”
He added, “These buildings had to be designed carefully because you are limited as to how much taller you can make them. I would expect a second storey to have an impact on the outside, I would not expect a mezzanine to have an impact.”
Representing Quality Developments, lawyer Kevin Thompson argued the entire matter should have been dealt with as a building permit appeal under the Ontario Building Code, rather than an application under Rule 14 of the Rules of Civil Procedure.
“It’s only in a situation where there’s a statutory building code act appeal filed that a judge can step into the shoes of the chief building official and make decisions,” he explained.
Thompson said O’Melia “was very clear at the outset of his submission that this was not a building code appeal.”
He also stated that the applicants did not file a building code appeal within the mandatory 20-day period after permits were filed.
Thompson said the Shuettels’ legal counsel definitely had notice of pending building permits by June 20, 2020, a date he described as “a ticking time bomb.
“The construction was actually occurring, literally outside the applicants’ back window during the fall,” he pointed out.
“No appeal was taken – July passed, August passed – finally on November 17 my friend filed and served his motion to try to convert his year-and-a-half old application into a building permit appeal,” said Thompson, adding the approach is “not tenable.”
“There is a preponderance of case law that says you cannot convert a Rule 14 application to a building code appeal.”
Thompson argued “there are a whole host of parties,” who could be impacted by the outcome of the case, including purchasers of the units and holders of any mortgages involved.
“And that’s why we have a 20-day limit for building code appeals, so we can have quick resolution,” he stated.
The hearing, which ran from 10am to 4:30pm was adjourned until April 1. Lawyers for all three parties estimated about another hour of court time would be needed for submissions.