Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 29, 2021
CASE NO(S).: PL190404
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Caroline & Owen Heise
Subject: Application amend Zoning By-law No.2002-28- Refusal of Application by Town of Kearney
Existing Zoning: Rural (RU)
Proposed Zoning: Residential Waterfront Exception Fifty-one (RWF-51)
Purpose: To permit camper trailer for seasonal recreation purposes
Property Address/Description: Part Lot 18, Concession 3
Municipality: Town of Kearney
Municipality File No.: RZ-07-18
OLT Case No.: PL190404
OLT File No.: PL190404
OLT Case Name: Heise V. Kearney (Town)
Heard: September 10, 2021 by video hearing
APPEARANCES:
| Parties | Counsel*/Representative |
|---|---|
| Caroline & Owen Heise (Applicant/Appellant) | Self-Represented |
| Town of Kearney (“Town”) | Edward B. Veldboom* |
| Sand Lake Area Property Owners Association (“SLAPOA”) | Sharon McKenzie |
DECISION DELIVERED BY JATINDER BHULLAR AND ORDER OF THE TRIBUNAL
1This hearing was conducted regarding an appeal under s. 34(11) of the Planning Act R.S.O 1990 P.13 (the “ Act”) by Caroline & Owen Heise (“Applicants/Appellants”) for the refusal of the Town of Kearney (“Town”) to adopt their request for a Zoning By-law Amendment (“ZBA”). The subject lands are an island located in north-east area of Sand Lake in the Town of Kearney, known as Blueberry Island (“Site”).
BACKGROUND
2The Site is a small island. There are no immediate neighbours but there are many properties at the nearby shoreline with direct line of sight to the Site.
3The Applicants/Appellants plan to deploy a trailer based wooden logs structure (“Trailer”) for staying at the island for recreational use purposes. In order to accommodate this, the Applicants/Appellants requested an exception to setbacks from required 20 metres (“m”) to 12 m from the high water mark area.
4The Trailer is planned to have a solar composting toilet. The Applicants/Appellants plan to use solar energy for some of the power needs. Additionally, they propose removal of gray water from the site during their trips when they depart the Site.
EVIDENCE AND ANALYSIS
5One of the Applicants/Appellants, Owen Heise, provided evidence on his own behalf as a lay witness. Mr. Heise provided details how they have designed the Trailer with best ecological aspects as well to blend in with the Site landscape.
6Mr. Heise gave examples regarding their good stewardship in managing other natural properties including participating in the Managed Forest Tax Incentive Program. He stated that they have used the latest composting toilets technology and has gray water containment, management and disposal plans. He also emphasized how they don’t arrive at the island till after July 1st to mitigate against the disturbance of any possible bird breeding habitat.
7During cross examination the Town questioned if the Applicants/Appellants setup has the necessary Class II grey water holding permit. It was stated that that they do not have a grey water system per se and thus do not require such a permit.
8Mr. Heise summarized that they could use camping gear to enjoy their property, but the trailer provided a better solution. He also submitted that given the height where the trailer is planned to be located, the probability of flooding was minimal.
9The Town called Chris Jones to provide expert opinion evidence in the area of land use planning. Mr. Jones reviewed the Provincial Policy Statement 2020 (the “PPS”). Mr. Jones referring to set of policies in s. 1.1.5 and opined that whereas this policy encourages recreational uses it equally links these to the availability of rural service levels, and appropriateness with respect to infrastructure which is planned or available. Mr. Jones opined that the Site is surrounded by fish habitat and the Applicants/Appellants have not demonstrated how the planned use will be suitable to locate dock and other accesses to ensure natural habitat as set in policy 2.1 of the PPS.
10Mr. Jones in review of the Applicants’/Appellants’ material in support of their application notes that it is missing a proper survey to establish high water mark as well as details of placement of the Trailer on the Site. Mr. Jones opined that as a result the Applicants/Appellants does not demonstrate consistency with policy 3.1 with respect to beach and erosion hazards.
11Mr. Jones in summary opined that as a result of the identified deficiencies, the proposal is not consistent with the PPS.
12Mr. Jones reviewed applicable sections in the Town of Kearney Official Plan (the “OP”). He highlighted policies 3.1 which sets the goal to protect the integrity of the natural environment with highlighted attributes of maintaining enjoyment of shoreline areas, preserving the aesthetic qualities and scenic features of shoreline areas. He referred to the large number of objections provided by the shoreline residential community against the proposal as one measure of the violation of these policies and principles. Mr. Jones, referring to policy 3.3.1, opined that the lot simply was too small and was further unsuitable due to terrain of the Site to provide for the necessary qualities required of a lot requirement under this policy.
13Mr. Jones emphasized that the OP follows from the PPS policies as in policy 3.3.6 for shoreline buffer, policy 3.3.7 dealing with landings and accesses which he re-iterated are not met by the proposal as not having been established through appropriate studies or surveys.
14Mr. Jones reviewed fish habitat policies in the OP and opined that the appropriate and necessary rigour or consideration has not been given to establish required conformity with these aspects of the OP. He referenced policy 6.4.4.1 to show that necessary environ impact studies have not been carried out as stipulated to establish conformity with this policy. He further opined that whereas the Applicants/Appellants propose to use composting toilets, the proper consideration to establish possible setbacks for sewage systems is not established, particularly should the application be allowed, it will allow any and all future users to modify temporary arrangements.
15Mr. Jones opined that s. 7.2.3.3 has specific requirements to address “Sand Lake – Flood Proofing” and that the Applicants/Appellants has failed to establish conformity with this policy in the OP.
16Mr. Jones in summary opined that policy 11.4.1 of the OP requires conformity of any rezoning applications to conform with the OP. He added that the application does not conform with the OP.
17SLAPOA concurred with Mr. Jones analysis and further submitted that a Trailer is a dwelling and hence the force and effect of the policies is of utmost consideration. SLOPOA agreed that whereas camping will be acceptable use a Trailer or dwelling is not.
18The Tribunal has considered oral testimony, Affidavit on file, participant statements and the material that was before the Town Council when they made their decision. The Tribunal has no difficulty in recognizing the good stewardship, sensitivity to natural preservation and like mindset that the Applicants/Appellants possesses and maintains. However, the Tribunal is guided by overwhelming expert opinion evidence of Mr. Jones that remained untarnished. The Tribunal finds that the proposal is not consistent with the PPS and does not conform with the OP.
ORDER
19The Appeal is dismissed.
“Jatinder Bhullar”
Jatinder bhullar
member
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.