Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 30, 2021
CASE NO(S).: PL200304
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Joanne Oliver
Subject: Application to amend Zoning By-law No. 43-2015 – Refusal of Application by the Municipality of Bluewater
Existing Zoning: Residential Low Density
Proposed Zoning: Residential Low Density- Special Zone
Purpose: To permit the use of a shipping container as a home
Property Address/Description: 32 Fry Street
Municipality: Municipality of Bluewater
Municipality File No.: Z05-20
OLT Case No.: PL200304
OLT File No.: PL200304
OLT Case Name: Oliver v. Bluewater (Municipality)
Heard: October 19 and 20, 2021 by video hearing
APPEARANCES:
Parties Counsel
Joanne Oliver Scott Gallagher
Municipality of Bluewater Ken Strong
David MacLaren Self-represented
DECISION DELIVERED BY T. F. NG AND ORDER OF THE TRIBUNAL
Introduction
1Joanne Oliver (the “Applicant/Appellant”) who owns 32 Fry Street (“subject property/subject site”) located in the Municipality of Bluewater (“Municipality”) is proposing to amend the zoning by-law in order to build a house out of shipping containers materials on the subject property.
2She applied for a Zoning By-law Amendment (“ZBA”) to Zoning By-law No. 43-2015 (“ZBL”) which was rejected by the Municipality. A revised ZBA was presented in these terms:
Notwithstanding the provisions of section 3.39 in the area zoned R1-23, shipping containers are permitted to be used as component building materials in the construction of a dwelling for human habitation.
3The Municipality Council (the “Council”) denied the application to amend the ZBL on July 6, 2020. The Applicant appealed the Council’s rejection by notice of appeal dated July 28, 2020.
Background
4The subject site is in the Bayfield Settlement Area of the Municipality. The Municipality has two other primary settlement areas, Hensall and Zurich. In Bayfield, there are no industrial areas while the other two settlement areas do have industrial zones.
5Bayfield is a lakeshore community with about 1,100 residents which double in resident numbers seasonally, when recreational homeowners return for the season at the same time of the tourist influx.
6Ms. Oliver has lived in the community for seven years, according to her testimony, and she owns businesses, including restaurants and recently a construction business with Brent Hillier (who testified on the construction of homes from shipping container materials). Mr. Hillier constructed 28 Cameron Street with shipping container materials in 2015.
7To provide context to the dispute, Cameron Street is one of the frontages of the subject property (a vacant corner lot), which also fronts on Fry Street. As one goes up Fry Street (directionally northwards) from the subject property, the third lot (counting two lots in between the subject site and the third lot) is the Heritage Resource property municipally known as 41 Main Street South (“No. 41”). No. 41 is privately owned by David MacLaren (who testified) and is a property designated under Part IV of the Ontario Heritage Act. This property No. 41 is a through lot with Main Street South as its other frontage road. The subject site is five property lots away from No. 41 when measured from Main Street South.
ISSUES
8Six issues were framed by the parties which essentially deal with whether the proposal is: consistent with the Provincial Policy Statement 2020 (“PPS”); in conformity with the County of Huron Official Plan (“COP”) community directions on heritage and culture; in conformity with the Municipality of Bluewater Official Plan (“MOP”); in keeping with the character of surrounding uses, form and scale; appropriate when considering s. 3.39 of the ZBL on shipping container use; good land use planning and compatible with the nature, character and heritage features of the surrounding neighbourhood.
9The Tribunal distilled from the evidence presented and parties’ submissions that the core issues are:
Is the proposed built form and building style in keeping with and compatible with the surrounding uses, form, scale and character of the neighbourhood?
Does s. 3.39 of the ZBL prevent the use of shipping containers for human habitation and if so, does s. 3.39 also prevent the use of shipping container materials for house construction?
Does the proposed development have a negative impact on the Heritage Resource at 41 Main Street South?
Policy Framework
10Pursuant to s. 2 of the Planning Act (“Act”), the Tribunal shall have regard to matters of provincial interest, and s. 3(5) of the Act requires the Tribunal to ensure its decisions are consistent with the PPS and conform with any applicable Provincial Plans in effect.
Hearing
11The appeal was heard over two days on October 19 and 20, 2021. Mr. Gallagher, counsel for the Applicant, called Ms. Oliver and Mr. Hillier as fact witnesses. He also called Hanna Holman, who was under summons and was the land use planner with the Huron County (“County”) at the material time and who authored the planning report dated June 25, 2020. Counsel for the Municipality, Mr. Strong, objected to her qualification as she is not a registered planner. She was qualified by the Tribunal to give expert opinion on land use planning since she was the author of the staff planning report, in the midst of qualifying for registered status, and was the planner at the County for over one year. Ric Knutson was the other land use planner called by the Applicant. Mr. Strong had no objections to Mr. Knutson being qualified to give evidence on land use matters but challenged the weight of his opinion as he is not a registered planner. The Tribunal qualified Mr. Knutson to give expert opinion on land use planning matters by virtue of his education and his decades (some 38 years) of land use planning experience.
12Counsel for the Municipality, Mr. Strong called William Pol, a registered land use planner who was qualified by the Tribunal to give expert opinion on land use planning matters on behalf of the Municipality.
13For the hearing, the parties filed a Joint Document Brief.
14The Application is addressed in the context of the Act; the PPS 2020; the COP; the MOP and the Municipality’s ZBL.
ANALYSIS AND FINDINGS
The [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)
15Sections 2(h) and (n) of the Act are applicable matters of provincial interest to which the Tribunal must have regard in this case. The Application has regard for the matters in s. 2 of the Act in particular s. 2(h) the orderly development of safe and healthy communities, s. 2(n) the resolution of planning conflicts involving public and private interests and s.2(r) the promotion of built form that (i) is well designed, and (ii) encourages a sense of place.
Site Context
16The area to be rezoned is designated Residential on Schedule C of the MOP and is zoned R1 (Residential - Low Density Zone) to a dwelling. The subject property is currently a vacant parcel with a size of approximately 0.1 hectares (“ha”) (0.3 acres). Section 3.39 of the ZBL prohibits the use of a shipping container for temporary or permanent human habitation within the Municipality. The Applicant is requesting to change the zoning of the property from R1 (Residential - Low Density Zone) to R1-23 (Residential Low Density - Special Zone) to permit the use of a shipping container as building materials in the construction of a structure for human habitation.
17The elevations of the proposed building concept and the site plan were provided as part of the ZBA Application. The proposed development is for a single detached dwelling with the use of shipping containers as building materials since s. 3.39 prohibits the use of a shipping container for temporary or permanent human habitation. Section 3.39, set out at page 312 of the Joint Document Brief, states as follows:
3.39. TRUCK OR COACH BODIES
No truck, bus, coach, or streetcar body, railway car, caboose, or shipping container shall be used for temporary or permanent human habitation within the Municipality, whether or not the same is mounted on wheels.
Truck bodies and similar structures may only be used for storage outside of a settlement area.
Truck bodies and similar structures accessory to a permitted use may be used for temporary storage in an industrial zone.
Within a settlement area, shipping containers may be used for storage in a commercial, community facility, or industrial zone if identified on an approved site plan.
18Building elevations (concept) of the proposed development is as shown.
The proposed Oliver Residence (as shown in Holman’s Planning Staff Report)
19Ms. Holman stated that the MOP includes policies that direct development activity towards the primary settlement areas including Bayfield. Section 7.3 of the MOP establishes the goals for settlement areas including “to protect and enhance the character and aesthetic qualities of the settlement areas”. Section 7.5.3 of the MOP clarifies further goals for residential development in villages such as Bayfield. New housing shall blend with the form, scale, character, and architectural design of existing development and should be compatible with existing or proposed surrounding uses.
20The proposed development use as a single-detached dwelling is a permitted use in the existing R1 (Residential - Low Density Zone) and Residential Designation on the subject property. The surrounding area of the subject property is predominantly residential, with the abutting properties being also within the R1 (Residential - Low Density Zone) with existing single-detached dwelling development. There is an existing Highway Commercial development within the surrounding area, which is deemed to be compatible with the proposed residential development and other existing adjacent residential developments. The property to the south of Cameron Street is largely undeveloped. The property to the west across Fry Street has a hedgerow on the side yard facing the subject property further providing a visual buffer. The subject property currently has an existing hedgerow along Cameron Street which may provide an additional visual buffer. The proposed residential development in the form of a single detached dwelling is deemed to be a compatible use with the neighbouring residential uses in the surrounding area.
21The proposed development seeks to use shipping containers to form a portion of building material used to construct the single-detached dwelling. It is not proposed that shipping containers without further modifications would be used solely as a building material for a structure for human habitation. While the proposed dwelling is of a more contemporary design than other dwellings in the immediate area, the proportions and massing are not out of scale with the existing dwellings in the surrounding area.
22The proposed dwelling is higher in height than some of the adjacent single-storey dwellings. However, the building has an articulated façade which generally reduced the visual impact of the second storey. The proposed height of the development at 7.54 metres as per the site plan concept is within the existing zone provisions of the subject property. Under the current zoning of the property in the R1 (Residential - Low Density Zone), a building height of 14 metres is permitted. The scale is deemed appropriate considering that the proposed development meets the other applicable provisions of the existing R1 (Residential - Low Density Zone) with respect to the size of the dwelling and lot coverage.
23Ms. Holman opined that the size and scale of the proposed development is in character with the existing surrounding residential uses. The development is considered appropriate and compatible with the existing setbacks and separation distances with the surrounding neighbourhoods.
24The Tribunal finds that the parties generally have contradictory views on the consistency with the policies of the PPS and conformity with the legislative framework. The experts for the Applicant expound differing opinions from the expert of the Municipality, as demonstrated in their respective opinions on the issues that are for adjudication in this matter.
25Having gone through the evidence and respective submissions, the Tribunal is persuaded by, and prefers, the opinion evidence of Mr. Knutson and Ms. Holman over the opinion evidence of Mr. Pol. Both Messrs. Pol and Knutson took the Tribunal through the relevant policies of the PPS, COP, MOP and the ZBL. They hold divergent views and opinions on consistency to the PPS and conformity to the COP and MOP. The opinion of Mr. Knutson is preferred, whose view is that the proposed development meets the requirements. As such, the Tribunal finds that the development is consistent with the PPS, conforms to the COP, MOP and disagrees with Mr. Pol in the analysis. The Tribunal holds in favour of the Applicant for the reasons that follow.
Issue No.1. Is the proposed built form and building style in keeping with and compatible with the surrounding uses, form, scale and character of the neighbourhood?
Character
26Mr. Pol is adamant that the proposed development has an industrial building form found on docks, warehouses and transport terminals. The shipping container scale is created for the safe movement of goods, ease of loading/unloading of goods and long distance transportation. Individual shipping containers are significantly smaller than the surrounding dwelling units. Although several shipping containers may be combined into one residence, in his view, the building form retains the aesthetic of individual shipping containers. The form and scale do not blend with that of the surrounding residential scale and form.
27The proposed development, he stated, has a character and architectural design, which is functional. Shipping containers are designed to withstand all weather conditions for transportation, movement by industrial cranes and many modes of transportation. This form does not blend in with the character and architectural design of single detached dwellings that are not moved and transported.
28Mr. Pol expressed that the surrounding streetscape and public realm has single detached dwellings with brick façades, facing the street with doors and windows spaced in a conventional manner. The proposed development with corrugated metal façade and door and window spacing is significantly different than existing façades, does not blend with the established streetscape.
29The proposed development does not blend with the heritage designated property at No. 41 that was built in 1868 in a Georgian architectural style. The material is yellow brick with an ornate restored porch. This contrasts with the industrial architecture of the proposed development. In Mr. Pol’s opinion, the proposed housing form does not blend with the form, scale, character and architectural design of existing development.
30Mr. Knutson’s opinion on this issue is that it concerns qualitative assessment of the development. The proposed home for 32 Fry Street, whether made from parts of shipping containers or built in traditional manner with steel panels and internal steel structural components does not negatively impact the character of the street or neighbourhood. Materials such as steel panels can be found throughout the neighbourhood for roofing (Tab 7 of the Joint Document Brief). Diversity through eclectic design is a feature of the neighbourhood. The form and scale are absolutely in keeping with the neighbourhood. The proposed home is different from its immediate neighbour. In planning terms, it does not create an adverse impact in his opinion. There is a diverse neighbourhood of single detached homes of different vintages including the heavily landscaped heritage asset at No. 41.
Compatibility with Neighbourhood
31Mr. Pol regarded the issue of compatibility of a shipping container dwelling for human habitation, is considered in relation to the surrounding single detached dwellings. Compatible means being able to co-exist in a congruous and harmonious manner. The neighbourhood character is seen and experienced by the neighbouring dwellings. The dwellings on Fry Street and Cameron Street surrounding the subject site are generally the single storey ground related forms, clad in brick materials with standard sloped shingle roofs shown on the photograph appendix. In contrast, the development proposal shows an elevated main floor, not ground related, a lower and upper entrance and exterior cladding in shipping container material shown on the proposed development perspective. The roof is a combination of flat and sloped shipping container materials. His opinion is that the use of shipping containers is incongruous because of the industrial aesthetic of the exterior cladding, the shipping container floor to ceiling height and a building frame shape in the form of “boxy” containers. This building form, he opined, is not compatible with the surrounding neighbourhood.
32His view is that when the proposed development is compared to the designated heritage property at No. 41, having a yellow brick cladding, front porch and Georgian architecture, it is more incongruous and less harmonious/compatible because of the heritage details of the dwelling.
33Mr. Pol’s opinion is that the proposed development is not appropriate for the development of the lot because the building character and aesthetic is a modern industrial building form. The view of the building represents industrial warehouse land uses, which are out of keeping with the character of the community. This form and material of structure is associated with industrial activities and the movement of goods on ships, not as a residential dwelling. There is no public interest in permitting the proposed development. The existing zoning provides sufficient flexibility to build many different dwelling forms. He stated that the proposed development is not appropriate and does not represent good planning.
34Section 2(r) of the Act sets out Provincial interest in the design of place in Ontario. Mr. Pol is of the view that the proposed development built-form is not well designed for the established character of Bayfield. The proposed development of an industrial building form and exterior detracts from the Bayfield sense of place established by housing development over more than 100 years. The proposed built form does not encourage a sense of place. Mr. Pol opined that the proposed development does not have appropriate regard for section 2(r) of the Act because it does not promote a well-designed built form and does not promote a built form that encourages a sense of place.
35Mr. Knutson emphatically stated that the proposed single detached home construction at 32 Fry Street, is zoned to permit its construction as such. There are no regulations as to what building materials may or may not be used for that. The use of steel beams or panels in some of those building materials is appropriate. The neighbourhood is defined by its diversity not its homogeneity. The proposal is similar to other modern buildings in the neighbourhood.
36The subject property is physically separated from the heritage asset at No. 41 by distance and structure. There is no adverse impact upon the Heritage Resource at No. 41. In fact, that large complex (i.e. No. 41) with its home as altered over time, the added swimming pool, the modern tennis court and gardens is separated from the surrounding neighbourhood through landscaping obviously intended to ensure privacy (see: pictorial evidence of the site, surrounding area and other areas of Bayfield and Google Earth images at Tab 7).
37Mr. Knutson explained that the character of the general neighbourhood is an eclectic mix of housing styles that was developed during previous development periods such as the low pitched rooflines of the 70s to the redevelopment of lots by removing earlier construction in favour of newer and more modern homes. Photographs of the eclectic nature of housing in this general area is at Tab 7. He included in Tab 7, Google Earth images of the lot at 32 Fry Street, 30 Fry Street and 28 Fry Street (the two intervening lots), and the front and rear of No. 41. The homes range from modest recreational dwellings to ultra modern large homes along the lakeshore area. Some of the notable features are the recently constructed modern homes (Tab 7), the various street ornaments including palm trees, gargoyles, large flamingos etc. One of the more interesting homes, albeit closer to the downtown area is shown at Tab 7 and known locally as the "Hobbit House". A home previously constructed from materials from shipping containers is found at 28 Cameron Street. This amalgam of differing styles and housing expressions has evolved over time and creates the character of the neighbourhood. Of note, Mr. Knutson said, the streets are all significantly vegetated with homes set back from the street line, again contributing to the character of the street. Notable vegetation is found on the south perimeter of No. 41, effectively walling it off from neighbouring lots.
38The Tribunal notes that Mr. Pol defines the neighbourhood in the context of Fry Street and Cameron Street. It is the Tribunal’s view that this is too narrow a definition in the instant case. This community is much larger than the 400 metres radius that Mr. Pol seeks to limit. Bayfield, as both planners acknowledge, is a lakeshore community where the common binding element is the lake and the recreational activities and economic interests that are derived with respect thereto. All streets ultimately lead to the shore and the lakefront.
39Residences built closer to the shore and dwellings constructed further from the lakefront such as Tuyll Street, Cameron Street and Fry Street are part of the existing neighbourhood and the variety of built forms and architectural styles form the very fabric of the neighbourhood character. The Tribunal finds and agrees with the Applicant that the neighbourhood of Bayfield is bounded on the south by Cameron Street, on the west by Tuyll Street and Lake Huron, on the north by the Bayfield River, and on the east by the Bluewater Highway which becomes Bayfield Main Street South. It is built around the lake and within easy walking distance of the lake (pages 460-461 of Joint Document Brief).
40The Tribunal finds that the proposed design of the subject property is a contemporary design that blends in, and is compatible with, the aesthetic diversity of Bayfield. Compatibility does not mean the same as or similar to. All that is necessary is that this development can coexist with the existing developments in the area without any adverse effect.
41The Tribunal finds that the neighbourhood built-form and architectural style is eclectic. It ranges from building styles of 1868 Georgian (No. 41) to the modern substantial built forms for single detached dwellings (along the lakeshore area). Furthermore, 28 Cameron Street is an example of a dwelling that was constructed with shipping container materials. Albeit, the argument being that this was the reason why the ZBL enacted s. 3.39 to prevent another house from being similarly constructed.
42The Tribunal finds that from the pictures and drawings/renderings of the design proposed for 32 Fry Street, it is clear that the proposed home has a pleasing residential aesthetic. Mr. Hillier’s uncontradicted evidence is that the design of another home built out of shipping container materials at Port Frank, as designed by a well-known architect, has the same pleasant residential feel. The subject property is designed with a larger 16 feet corridor as compared to the Port Frank’s 8 feet corridor.
43The Tribunal is satisfied that the proposed development is in keeping with and compatible with the residential uses, the built form, the style, the scale and residential character of the neighbourhood area.
Issue No. 2. Does s. 3.39 of the ZBL prevent the use of shipping containers for human habitation and if so, does s. 3.39 also prevent the use of shipping container materials for house construction?
Section 3.39 of the ZBL
44Mr. Pol stated that s. 3.39 Truck or Coach Bodies found in the zoning excerpt appendix, prohibits a class of structures built and used for transport of goods or people from being used for human habitation. Specifically, the purpose and effect of s. 3.39 prohibits the use of shipping containers for temporary or permanent human habitation. The Municipality is establishing the character and aesthetic that it does not want in the Bayfield Settlement Area. The by-law is setting a standard in which residents in Bayfield should, not reside.
45He added that the ZBA to prohibit the use of shipping containers was made in 2015 when the comprehensive zoning amendments were prepared for the Municipality. Council and staff received public comments in opposition to a shipping container dwelling built at 28 Cameron Street. Planning staff presented amendments to Council to prohibit the residential use and allow limited uses for storage purposes in industrial zones and in settlement areas where they are identified on an approved site plan. Through this amendment the community established the design characteristic of Bayfield Settlement Area.
46He stressed that shipping containers are included in a category of structures that had previous uses unrelated to human habitation. Truck bodies, bus bodies, coach or streetcar bodies, railway cars, caboose and shipping containers are all structures designed, built and used for non-residential uses. After their functional life, these structures may be repurposed for other uses. The Municipality has made a design decision to prohibit their use of human habitation in settlement areas.
47Mr. Pol stated that a second clause in the section, allows “truck bodies and similar structures” (including shipping containers) to be used for temporary storage purposes outside of a settlement area. The effect of this clause is to protect the residential character of Bayfield by prohibiting shipping containers.
48A third clause in the section allows accessory use of shipping containers in industrial zones. Effectively the by-law directs the functional and industrial character and aesthetic of shipping containers to an area zoned for industrial uses. The functional industrial and shipping container uses are compatible uses reinforcing the industrial character of these zones.
49Finally, a fourth clause permits the limited use of shipping containers for storage in commercial, community facility, or industrial zone in Bayfield if identified on an approved site plan. Mr. Pol opined that the effect of this clause is to limit the location of shipping container storage to non-residential areas of the Bayfield. The effect of the site plan requirement ensures the location of shipping containers has no impact on the character of the area or streetscape. The site plan agreement provides a legal mechanism to ensure the shipping container location and operation for storage is maintained, consistent with the site plan.
50Mr. Pol is of the view that the use of shipping containers or component parts for a residential dwelling will create a “building” as defined in the ZBL. The building definition includes the term “structure” meaning anything that is erected, built or constructed of parts joined together. Where all or parts of the shipping container are used for human habitation, it is contrary to the intent and purpose of the ZBL. Effectively where any structure is proposed, the zoning provisions of a building apply.
51Effectively, in Mr. Pol’s opinion, Council, Bayfield residents and staff have established zoning regulations prohibiting shipping containers and similar structures for human habitation. The regulations in s. 3.39 Truck or Coach Bodies, implement the policies of the COP and MOP to prohibit a residential form, which is not compatible with the character and aesthetic of the surrounding residential neighbourhoods. In Mr. Pol’s opinion, refusal of the proposed development appropriately regulates the use of shipping containers in Bayfield and the proposed development is not appropriate.
52Mr. Knutson’s opinion on s. 3.39 is that the context of the general provision is to ensure that vacant structures not be used for human habitation. He agrees that simply setting down a shipping container on a lot should not be used as a residential use. Similarly, truck bodies, streetcar bodies etc. are included in this provision to prevent their use as residential uses. In his opinion, that provision does not propose to regulate building material which can be steel, not unlike the various steel roofs existing in the neighbourhood, nor would it prevent the use of steel beams from their structural use in housing construction.
53The proposed building at 32 Fry Street is intended as a single detached residence made from steel parts derived from shipping containers among other traditional building materials including wood for internal wall studs, drywall for internal wall finishing, insulation etc.
54He noted that shipping containers as well as truck and streetcar bodies are not defined terms in the Municipality’s ZBL. He referred to Wikipedia’s definition of a shipping container as ‘A shipping container is a container with strength suitable to withstand shipment, storage, and handling. Shipping containers range from large reusable steel boxes used/or intermodal shipments to the ubiquitous corrugated boxes. In the context of international shipping trade, “container” or “shipping container” is virtually synonymous with “intermodal freight container”, a container designed to be moved from one mode of transport to another without unloading and reloading’.
55The Tribunal finds that both experts are in agreement that s. 3.39 prohibits the shipping containers bodies being used for human habitation; where they disagree is whether the materials obtained from the containers can be utilized in building a dwelling.
56The relevant portion of s. 3.39 of the ZBL states that:
3.39. TRUCK OR COACH BODIES
No truck, bus, coach, or streetcar body, railway car, caboose, or shipping container shall be used for temporary or permanent human habitation within the Municipality, whether or not the same is mounted on wheels.
57A cursory reading will reveal that most of those bodies itemised are commonly mounted on wheels (though a shipping container is not). The implication is that, these bodies whether plunked on to a subject site, with or without the wheels intact, shall not be allowed for human habitation. The subsequent clauses of the section then describe where the bodies could be used, as is, for other purposes, outside of the settlement area.
58In Puslinch v. Monaghan, 2015 (ON SC) 2748, at paragraph 23, the Court described the principles appropriate to statutory interpretation of a zoning by-law.
A proper contextual approach into the interpretation of zoning by-laws requires an interpretation in accordance with their plain meaning in the context of the zoning by- law, the policy reasons for its enactment and the basis within the Official Plan.
59The Tribunal finds that the plain meaning of the relevant clause of s. 3.39 is that it prohibits the use of a shipping container on an “as-is” basis, for human habitation. There is nothing in s. 3.39 that points to materials or parts of the container being excluded for utilization as construction materials.
60Further, the planners could not direct the Tribunal to any other provision of the ZBL that specifically excludes parts of recovered shipping container materials as construction materials.
61The Tribunal thus agrees with Mr. Knutson that the Applicant would be prevented from just placing the shipping containers on the subject property and move in to live in those containers. However, by extracting the steel and material from the containers to be used, with other traditional building materials, the dwelling could be constructed as per the proposal.
62Mr. Pol, in cross-examination, did confirm that the Applicant could just follow her development proposal and architectural design to build her desired dwelling with traditional building materials. What he objected to, was, in his opinion, the use of the shipping container as a construction material which, for him, will result in an industrial type building, instead of a residential style building.
63The Tribunal notes that the naked use of shipping containers, as-is, is plainly prohibited. Nevertheless, the language of s. 3.39 does not exclude the use of the extracted parts and materials from the shipping containers for construction. In this instance, and as shown in the elevation perspectives, the dwelling could be built as per the style and design contemplated with traditional building materials. The dwelling proposed is residential in style and in the Tribunal’s opinion not industrial looking. By incorporating the shipping container materials with traditional construction materials and claddings, the proposal will blend in with the surroundings. There is already an existing home nearby, 28 Cameron Street, built five years ago with shipping container materials. The Tribunal finds that shipping container materials are permissible as construction material for the proposed dwelling.
Issue No. 3. Does the proposed development have a negative impact on the Heritage Resource at 41 Main Street South?
Heritage
64Mr. Pol referred to MOP Policy 8.3 Cultural Heritage that recognizes cultural heritage in communities. The property at 41 Main Street South is designated under Part IV of the Ontario Heritage Act and is a protected heritage property in accordance with the definition in s. 8.3.1. The term “adjacent lands” is defined as meaning those lands in the immediate vicinity of a protected heritage property. The subject site is three lots south and 45 metres south of the protected heritage property and is within the immediate vicinity, he contends.
65Mr. Pol stated that Policy 8.3.3.1 Cultural Heritage Resources sets out policies to protect these resources. Policy _2 (of 8.3.3.1) requires Council to consider the potential impact of development on those resources. Policy _3 requires the developer of lands adjacent to a designated heritage property to demonstrate the cultural heritage value, heritage attributes and integrity of existing Heritage Resources are retained. He contends that no heritage impact assessment (“HIA”) of the development has been completed by a heritage professional or architect. He opined that Council’s refusal of the Application conforms to this policy.
66Policy 8.4 Community Design, sets out the goal “to create a community environment which is stable, pleasing, aesthetic, enjoyable and conducive to the economic betterment of the community, to enhance the unique aspects of the hamlets, villages and lakeshore areas and further to strengthen community identity”. In Mr. Pol’s opinion the goal is to create and enhance the character of Bayfield. Furthermore, Policy 8.4.6 Built Form identifies the importance of community design to form a sense of place and identity for the community. Specifically, “buildings” should be designed to create a sense of identity through massing, form, placement, orientation, scale, architectural features, landscaping and signage. The massing shown in the proposed development conceptual design shown on the perspective appendix, is out of keeping with the grade related forms of surrounding residential buildings. The elevated main floor built on a raised foundation is out of keeping with the surrounding placement. The shipping container massing is based on 12 x 8 x 40 foot and similar standard sizes, reflecting an industrial architectural form. The use of exterior cladding, roofing materials of shipping containers is not in keeping with the sense of identity created by existing brick clad dwellings. Therefore, in Mr. Pol’s opinion, the proposed development does not conform to these MOP policies, where built form contributes to a sense of place and community identity.
67Mr. Knutson stated that s. 8.3 is related to policies dealing with “cultural heritage”. It is defined as the identification, protection, and/or management of cultural heritage resources in such a way that their heritage values, attributes and integrity are maintained. The policy further states that adjacent lands are: those lands contiguous to, in the immediate vicinity of a protected heritage property or Heritage Conservation District. The policy identifies that an impact assessment may be required. No such assessment was a precondition to an accepted application nor was it suggested as being necessary through the County review of the rezoning application. Mr. Knutson opined that the Heritage Resource is protected with no adverse impact from current adjacent homes and further it is "walled off” from other properties to the south through a dense 6 metres high cedar hedge.
68Mr. MacLaren, the owner of No. 41 (a.k.a. Orlagh), testified that he owns the property jointly with his spouse Jane. They have enjoyed the Bayfield community as sailors since the early 1970s and have owned Orlagh since 1998. He had served on several community organizations including the Bluewater Heritage Advisory Committee and chaired the Committee for several years. Recognizing and preserving the heritage character of the village has been a priority for him since he purchased Orlagh.
69He stated that No. 41 is a designated heritage property under Part IV of the Ontario Heritage Act - reference to By-law No. 257 (1985) Village of Bayfield, and is included in Municipality’s Register of Heritage Properties.
70The property is in close proximity to the proposed development, and Mr. MacLaren’s estimate is approximately 200 metres (the distance has been referred to as 45 metres, and also 60 metres).
71Ninian Woods Park is also in close proximity to the proposed development. Ninian Woods Park is symbolic of the heritage character of the neighbourhood, Mr. MacLaren noted.
72The construction of the container house built by Mr. Hillier on 28 Cameron Street created strong negative reaction from the community, and when the municipal by-laws were consolidated by Senior Planner Metzger in 2015, he included s. 3.39 regarding the use of containers in residential construction. Mr. MacLaren believed that the addition of s. 3.39 by Senior Planner Metzger was consistent with the PPS, the COP and the MOP.
73Mr. MacLaren’s view is that the proposed development is not compatible with the nature, character, and heritage features of the surrounding neighbourhood. He believed that Senior Planner Metzger knew that when s. 3.39 was included in the ZBL.
74He concluded that, the PPS, the COP and the MOP provide strong protection for the preservation and recognition of heritage resources. He asks the Tribunal to support the Municipality's decision and deny the appeal.
75Mr. MacLaren said that he restored the demolished front porch of the dwelling at No. 41 after he purchased the property. During cross-examination, he confirmed that the house was built in portions and that the back portion garage was the original section built in 1968. The garage was replicated to include windows passageway to the barn. He confirmed he has a built swimming pool and a tennis court on his property. When questioned about the pair of metal coconut trees with metal coconuts at the Main Street South entrance, he explained that his wife, who is an interior designer, happened to be driving by a welder’s place, saw the pair of metal trees and decided to purchase and place those “excellent markers” at his property.
76The Tribunal was referred to s. 8 of the COP in respect of implementation. For the determination of a complete application for Urban Lands, a heritage impact study may be required, if the proposed development is ‘within or adjacent’ to a Heritage Conservation District or a Protected Heritage Property.
77In the MOP, s. 8.3.1, Definitions, defined “Adjacent lands are those lands contiguous to or in the immediate vicinity of a Protected Heritage Property or Heritage Conservation District”.
78The subject property is not in or within the Heritage Conservation District. Ms. Holman has opined that the subject property and the Application, did not require an HIA as for her, there is no adjacency as the subject property did not share a common boundary, or contiguous to the Heritage Resource. As such, she deemed the Applicant’s Application complete and did not require an HIA.
79The Tribunal agrees with Ms. Holman that a contiguous lot will share a common lot line, while in this case, the subject property is separated from the Heritage Resource by two property lots on Fry Street and five property lots on Main Street South. The qualifier ‘immediate’ to the word vicinity, implies a nearness or presence between the subject property and the Heritage Resource, for example, if the Heritage Resource is directly across the road from the subject property. In this particular case, the Tribunal finds that the Heritage Resource and the subject property are neither contiguous nor in the immediate vicinity of each other.
80The Tribunal prefers Mr. Knutson’s opinion that the policy identifies that an impact assessment may be required and there was no precondition for an HIA for this Application nor was it suggested that it was necessary through the County review. The Tribunal acknowledges that the Heritage Resource is protected with no adverse impact from current adjacent homes and further, there is sufficient vegetative screening from other properties to the south through a dense 6 metres high cedar hedge on the property.
81The Tribunal does not doubt the sincerity of Mr. MacLaren in his expressed intention to protect the Heritage Resource which is also his private property. Nevertheless, the County Mapping Aerial Photograph Excerpt (page 404 of Joint Document Brief) do show two significant elements on the Heritage Resource (No. 41): the swimming pool and the tennis court. Both of these are additional installations on the Heritage Resource property. Arising from the cross-examination, the Tribunal finds that Mr. MacLaren had minimised the pool as ‘a small pool’ and answered with a simple ‘yes’ to the question of the tennis court. On the matter of the metal coconut trees, it appeared to be happenstance and on a whim that Mrs. MacLaren bought those metal trees for the Heritage Resource.
82The above begs the question whether Mr. MacLaren had undertaken any impact assessment for these installations and landscaping before the improvements were undertaken. There was no evidence proffered that indicates one way or the other. In the instant case, the Tribunal finds that no HIA was required by the Municipality, and there is no adverse impact to the Heritage Resource that may arise from the proposed development at the subject site.
findings
83The Tribunal finds the proposed development is consistent with the PPS as the policies are supportive of the development of an existing residential lot and also encourage a diversity of types of housing in Policies 1.4.1 and 1.4.3. As to Policy 1.7.1 e), the subject property is part of the existing development fabric of the Municipality and as a result is part of that sense of place through the lot having existing frontage on a municipal street:
the proposed development is located within an existing settlement area with municipal services and meets all the other zoning standards;
the subject property will create an additional residential unit for the Bayfield community;
the proposed development is compatible with the character of the neighbourhood, in the public interest and represents good planning; and
there will be no negative impact on the surroundings as indicated. In particular the Heritage Resource is not negatively impacted as it does not share a common lot line with the subject property. The Heritage Resource is well buffered from properties in the south by the very high vegetative cedar hedge screen on the property.
SUMMARY CONCLUSION
84Based on the documentary evidence, testimony of the experts and for the reasons provided, the Tribunal finds that the Application has regard to matters of Provincial interest in accordance with s. 2 of the Act; is consistent with the PPS; conforms with the COP; conforms to the MOP and maintains the intent of the ZBL; is compatible with the residential character of the Bayfield Settlement Area; and constitutes good planning and is in the public interest.
85The Tribunal has extracted the draft ZBA from the Joint Document Brief and the amended ZBA incorporates the necessary changes to amend the ZBL for the use of shipping container component materials at the subject site. The Tribunal will exercise its discretionary power under s. 34(26)(b) of the Act to direct the Municipality to amend the By-law.
ORDER
86The Tribunal orders that the Appeal is allowed and the Municipality is directed to amend By-law No. 43-2015 as set out in Attachment 1 to this Order.
“T.F. Ng”
T.f. Ng
Member
Ontario Land Tribunal
Website: www.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.
PL200304 – Attachment 1
THE CORPORATION OF THE MUNICIPALITY OF BLUEWATER DRAFT BY-LAW -2021
WHEREAS the Municipal Council of the Corporation of the Municipality of Bluewater considers it advisable to amend ZONING BY-LAW 43-2015, as amended, of the Corporation of the Municipality of Bluewater.
NOW THEREFORE the Council of the Corporation of the Municipality of Bluewater ENACTS as follows:
This by-law shall apply to a Lot 1, Plan 160, Bayfield Ward, in the Municipality of Bluewater and is comprised of Schedules 1-3.
By-law 43-2015 is hereby amended by changing from R1 (Residential Low Density Zone) to R1-23 (Residential Low Density- Special Zone) the zone symbol of the lands identified as 'zone change from R1 to R1-23 on the attached Schedule 3.
Zone Map 1A, By-law 43-2015 is hereby amended as shown on the attached Schedule 3 of this by-law.
Section 25.6. of By-law 43-2015 is hereby amended by the addition of the following:
25.6.23 R1-23
Notwithstanding the provisions of Section 3.39, in the area zoned R1-23 shipping containers are permitted to be used as component building materials in the construction of a dwelling for human habitation.
All other provisions of By-law 43-2015 shall apply.
This by-law shall come into force pursuant to Section 34(21) of the Planning Act, R.S.O. 1990, as amended.
READ A FIRST TIME ON THE DAY OF , 2021.
READ A SECOND TIME ON THE DAY OF , 2021.
READ A THIRD TIME AND PASSED THIS DAY OF , 2021.
Mayor Clerk
SCHEDULE 1
THE CORPORATION OF THE MUNICIPALITY OF BLUEWATER DRAFT BY-LAW -2021
Draft By-law - 2021 has the following purpose and effect:
The purpose of this zoning by-law amendment (application#: Blu Z05-20) is to amend the zoning on Lot 1, Plan 160, Bayfield Ward, in the Municipality of Bluewater to permit the use of shipping containers as component building materials for the purpose of the construction of a dwelling for human habitation. The lands affected by this zoning by-law amendment are approximately 0.1 ha (0.3 acres) and are located at 32 Fry St.
This by-law amends Zoning By-law 43-2015. All other zone provisions apply.
A location map and zone map showing the location to which this by-law applies are found on the following pages and are entitled Schedule 2 and Schedule 3.
SCHEDULE 2
THE CORPORATION OF THE MUNICIPALITY OF BLUEWATER DRAFT BY-LAW -2021
SCHEDULE 3
THE CORPORATION OF THE MUNICIPALITY OF BLUEWATER DRAFT BY-LAW -2021