Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 02, 2021
CASE NO(S).: PL210250
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Julia and Mike Gorun
Subject: By-law No. ZBA-2021·12
Municipality: Township of Hamilton Township
OLT Case No.: PL210250
OLT File No.: PL210250
OLT Case Name: Gorun vs. Hamilton (Township)
Heard: October 7, 2021 by video hearing
APPEARANCES:
Parties
Representative
Julia and Mike Gorun ("Appellant")
Julia Gorun
Peter and Kathryn Staples ("Applicants")
Robert Clark, Planner
Corporation of the Township of Hamilton ("Township")
(did not appear)
MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON OCTOBER 7, 202 AND ORDER OF THE TRIBUNAL
Introduction and Background
1This matter is related to an appeal before the Ontario Land Tribunal (“Tribunal”) submitted by the Appellants who are the owner of the adjacent lands to the property owned by the Applicants which is municipally known as 5988 Rice Lake Scenic Drive, Unit 175 (“Subject Lands”).
2The appeal concerns the Township’s approval of By-law No. 2021-12, an amendment sought by the Applicants of the land use Zoning By-law No. 2001-58 (“ZBA”) to change the zoning of the Subject Lands from Waterfront Residential to Special Waterfront/Resort Commercial Zone to permit the use of their existing dwelling as a tourism establishment for seasonal short term rentals. In fact, the Applicants have already been using this residence for that purpose for many years, a fact uncontested by the Appellants.
3The Council of the Township passed the ZBA by decision dated March 16, 2021 (“Decision”). The Decision appeared to rely on a planning report dated December 15, 2020 prepared by Sandra Stothart, the Township’s Planning Coordinator. Ms. Stothart was of the view then that the proposed ZBA was consistent with the Provincial Policy Statement, 2020 (“PPS”), conformed with the Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”) and also with both the Official Plan of Northumberland County and the Township’s Official Plan (“OP”).
4Although the Township did not have a representative appear to provide testimony or make submissions to the Tribunal, it did prepare a Municipal Record which contained an Affidavit of Ms. Stothart sworn April 27, 2021. In her Affidavit, Ms. Stothart opined that the decision of the Council of the Township:
i) is consistent with the policy statements issued under subsection 3(1) of the Act, being the Provincial Policy Statement 2020;
ii) conforms with the Northumberland County Official Plan and the Growth Plan for the Greater Golden Horseshoe, and
iii) conforms to the Township of Hamilton Official Plan;
Evidence and Analysis
5The Appellants were self-represented and did not tender expert opinion evidence. However, Michael Gorun is a Registered Professional Engineer in Ontario and has been working as a Civil Engineer for the last 23 years. Mr. Gorun operates a custom home construction company that provides residential design and construction management services including but not limited to septic and geothermal systems installation. The Appellants filed an Appellant’s Statement comprising 13 pages; a Book of Documents comprising 18 tabs and 109 pages; a Book of Pictures comprising 12 photographs and 13 pages; and a Closing Statement comprising 3 pages (collectively, “Appellants’ Materials”);
6In summary, the main issues raised and arguments made by the Appellants in oral testimony to the Tribunal and as set out in the Appellants’ Materials was:
(a) they bought the adjacent property to the Subject Lands (WRC-2 & WRC-3) as one property in 2012 with a plan to use the land as our retirement residence. At the time of purchase, the property was zoned Waterfront Residential (WR) and historically used as a family compound which was aligned with their intended use including the severance of their property with the vision of passing the ownership to their two daughters without any problems or difficulties;
(b) they believe that the decision made by the Council (By-law 2020-13) does not conform to the Township of Hamilton Official Plan and Zoning By-law;
(c) the Lot Area of the Subject Property is significantly undersized, representing only 16% of the minimum By-law requirement;
(d) There have been numerous occasions of visitors trespassing on their property, throwing parties, allowing unleashed dogs to roam freely, and generally disturbing the peace of those around them. It is unreasonable to expect that all business activities will be contained within the lot property lines. The ZBA does not address the issues;
(e) The Subject Lands are located on a flood plain and shoreline erosion is currently present and the land is subject to “Natural Heritage System” protected zone;
(f) The Township should not have approved the new uses for the subject land without doing their due diligence on the existing sewage system. It is not good enough to state there is an existing system in place. The new analysis needs to be done to determine that the sewage system will be able to support the new permitted uses and the available evidence suggests that the existing septic system on the Subject Lands may be inadequate;
(g) Due to the undersized lot, there are on-going parking issues created by the tenants of the Applicants. In the past, numerous vehicles such as big trucks and boat trailers have congested the lane, preventing access to other properties as well as parking illegally over 24 hours on the adjacent Sully Road which is the only access road and is a summer-maintained gravel road owned by the Township;
(h) The ZBA passed by the Council does not restrict the Applicants to only a specialized use of as short-term rental and grants all permitted uses within Waterfront/Resort Commercial Zone Section 18.2 of the By-Law. It is very reasonable to expect an adverse effect on the neighboring residences, environment and the community at large;
(i) Despite the owner attestation in the application that there will be no changes to the land and structures they have witnessed several site alterations following the approval of the ZBA;
(j) The approval of the ZBA is not the right solution to address the short-term rental practice which are commonplace in the neighbouring area and ought to be regulated by the Township through licensing to control the turn-over, not through re-zoning. It will have a major detrimental effect on the similar waterfront residential properties;
(k) They believe that the Decision was strongly ‘bias-based’. Mr. Staples has been employed by the Township for 47 years serving as Fire Chief for Hardwood Fire Station. They allege that this constitutes unconscious or implicit friendship-bias; and
(l) It is their belief that the best present, and future use for the subject land remains within Waterfront Residential zone permitted uses and that the current Zoning By-law does not prohibit the Applicant in pursuing short or long-term cottage rentals for seasonal vacations and/or recreational purposes and allows residential use for his own occupancy.
7Unfortunately, the Tribunal had to consider the Appellants’ evidence and arguments in the absence of a supporting opinion from a land use planning professional to offer an opinion on the ZBA. It should be noted that the alleged environmental issues raised are beyond the purview of the Tribunal to consider in this proceeding.
8Although the Tribunal recognizes the Appellants’ sincere passion and commitment to the maintenance of their own property, their submissions were focussed largely on anecdotal observations, allegations, opinions and conclusions which were unsupported by objective evidence.
9As noted above in paragraph [4] there was contrary planning evidence from the Township available to the Tribunal. In addition, the Applicants retained a Professional Planner Mr. Robert Clarke to provide evidence and submissions on their behalf.
10Mr. Clarke is the Principal Planner for Clark Consulting Services and is a Member of the Ontario Professional Planning Institute, a Member of the Ontario Institute of Agrologists (P. Ag), a Registered Professional Engineer (P. Eng) and a Member of the Association of Ontario Land Economists, holding degrees in Engineering and Applied Economics. He has appeared before the Ontario Municipal Board and the Local Planning Appeal Tribunal extensively and have been qualified to provide expert testimony on matters concerning land use planning. Mr. Clarke was qualified solely to provide land use planning evidence to the Tribunal, without objection as to his experience and credentials.
11The Applicants filed the following materials before the Tribunal: Witness Statement, October 2021, comprising 36 pages including photos and site diagrams; and Closing Argument, containing two pages (collectively “Applicants’ Materials”).
12In summary, the following facts and opinions were provided in the oral testimony of Mr. Clark and in the Applicants’ Materials:
(a) The Subject Lands are 923 sq m. in size (0.22 ac) and has 17.37 m (57 ft) of frontage on Sully Road and 40 m (134 ft) of frontage on Rice Lake. According to the Registry Office records, the lands were surveyed in February 1988 and the survey refers to an earlier survey from 1965. The lot is interpreted as a lot of record with legal non-conforming status;
(b) A single detached dwelling is located on the Subject Lands. Based on its appearance, the dwelling has been in existence for some time and is not a recent construction. The site slopes down to the Lake. There are several accessory structures including a fish cleaning hut and a garden shed also located on the lot. The lot is accessed from Sully Road which is a single lane seasonal road. It ends at the Subject Lands and provides access to the lands to the west owned by the Appellants;
(c) The lands to the south are an extensive tourist commercial establishment with short term rental establishments and boat slips. The owner of those lands has advised the applicant that should the occupants of the rental unit on the subject lands need additional parking space he would be willing to provide those spaces, and avoid parking on Sully Road;
(d) The Appellants’ lands to the west are also zoned Waterfront Resort Commercial (WRC) and have been used for tourist commercial uses. The lands have been the subject of a recent severance application which divided the property. The small cabins and detached accessory buildings were identified in a site specific Zoning By-law that was a condition of the Consent to Sever. Regardless of whether the Appellants are using the property for commercial use, it is zoned for that use and has been used as such in the past;
(e) The ZBA seeks to change the original zoning which was Waterfront Residential (WR) to allow the existing structure to be used for short term rental as part of the areas emphasis on attracting and providing recreational experiences for visitors. The By-law also recognizes the existing lot and structures. No proposed changes that would see an expansion of these structures is permitted or proposed. The zone change to a Special Waterfront Resort Commercial was sought specifically to allow short term rentals and recognize the existing lot characteristics including Lot Area, lot frontage as well as the principle building and accessory building setbacks. The dwelling has been used for weekly rentals since 1999 when the Applicants purchased the property. Three (3) parking spaces are available on the Subject Lands to support this use;
(f) According to the Township Official Plan, the Subject Lands are located in the Settlement Area of Harwood. The relevant planning policy as it relates to the subject lands and the proposed ZBA include the PPS, the Growth Plan and the OPs in addition to the Zoning By-law itself;
(g) Recognizing the continued use of the existing dwelling is consistent with the PPS and that the use complies with the policy in Section 1.1.5 as required by Section 3 of the Planning Act R.S.O. 1990, c. P.13, as amended (“Act”);
(h) The ZBA conforms to relevant policy contained within the Growth Plan;
(i) The recognition of the existing use complies with the provisions of the County of Northumberland Official Plan as its objectives and criteria support the continued use of this dwelling as a tourist commercial use in order that it can support local residents and provide jobs while encouraging tourism by providing access to Rice Lake, both visually and physically;
(j) The proposed continued use of the dwelling unit on the Subject Lands as a tourist commercial use is consistent with the policies and directions contained in the Township Official Plan;
(k) The subject lands are currently zoned Waterfront Residential (WR). The surrounding lands are zoned Waterfront/Resort Commercial (WRC). The lands are also located in an Environmentally Sensitive Area. Since there are no additions to the structures, the Conservation Authority had no objection to the approval of the ZBA. Section 18 of the Zoning By-law sets out the zone provisions for the WRC - Waterfront/Resort Commercial Zone. Among the permitted uses is a Tourist Establishment. Section 3.205 defines Tourist Establishment as "any premises operating to provide sleeping accommodation for the travelling public or sleeping accommodation for the use of the public engaged in recreational activities and includes services and facilities in connection with which sleeping accommodation is provided, and without limiting the generality of the term, also includes a cabin establishment and a housekeeping cottage." The continued use of the existing structure on the Subject Lands to provide sleeping accommodation meets this definition;
(l) Based on this review, the existing lot and the structures on the lot require exceptions for the lot area, lot frontage, front yard and lot coverage of accessory structures. The Zoning By-law as approved by Council, addresses these areas of non-compliance through Special Zone Provisions. The By-law as approved by the Township Council is attached as Attachment 1; and
(m) The proposed continued use of the existing structure and the ZBA that recognizes this continued use is both appropriate and represents good planning.
Conclusions and Order
13The Tribunal accepts the findings and conclusions expressed by Mr. Clark in his testimony and in the Applicants’ Materials, which were not challenged successfully in cross-examination by the Appellants.
14Based on the expert evidence of Mr. Clark and the additional supporting factual testimony from the Applicant Peter Staples, the Tribunal agrees that the ZBA approved by the Council of the Township is consistent with the PPS, conforms with the Growth Plan and with the applicable provisions of the upper tier County’s Official Plan and the Township’s Official Plan. The Tribunal has had regard to the Decision and concludes that the requirements of section 1, 2 and 3 of the Act have been satisfied and that the ZBA approved and issued by the Council of the Township represents good planning.
15The Tribunal therefore dismisses the appeal of the Appellants.
16THE TRIBUNAL ORDERS that the appeal against By-law 2021-12 of the Corporation of the Township of Hamilton is dismissed.
“William R Middleton”
WILLIAM R. MIDDLETON
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.