Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
December 21, 2021
CASE NO(S).:
PL200409
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Eric Allen and Aliya Visram
Subject:
Application amend Zoning By-law No. 2014-75 - Refusal of Application by Township of Georgian Bay
Existing Zoning:
Shoreline Residential Island Type Two Exception Fifty-One
Proposed Zoning:
Shoreline Residential Island Type Two Exception Fifty-Two
Purpose:
To permit an expansion to an existing cabin and the construction of a new boat house and dock
Property Address/Description:
2 Island 3850
Municipality:
Township of Georgian Bay
Municipality File No.:
ZBL 18-28
OLT Case No.:
PL200409
OLT File No.:
PL200409
OLT Case Name:
Allen v. Georgian Bay (Township)
Heard:
December 16, 2021 by video hearing
APPEARANCES:
Parties
Counsel
Township of Georgian Bay (“Township”)
Peter Pickfield
Eric Allen and Aliya Visram (“Applicant/Appellant”)
Matthew Helfand
Tim Bowman (“Party”)
Kevin Thompson
Michael Wenban (“Party”)
Kevin Thompson
MEMORANDUM OF ORAL DECISION BY WILLIAM R. MIDDLETON ON DECEMBER 16, 2021 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Applicant/Appellant owns a property located at 2 Island 3850 in the Township of Georgian Bay (“Subject Property”). The Applicant/Appellant is the only resident of this island which currently includes a cottage with a sleeping cabin, washroom, boathouse, a dock, a shed and a storage area.
2The Applicant/Appellant appeals under s. 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the “Act”) a decision by the Township to deny a proposed Zoning By-law Amendment (“ZBA”) which if approved will permit an expansion to the cottage, a new boathouse and new dock located at the Subject Property that does not meet the minimum island size requirements of the Zoning By-law.
3Pursuant to the second Case Management Conference (“CMC”) conducted on June 11, 2021, and the Procedural Order duly issued, a five-day hearing was set to commence on Monday, December 13, 2021 at 10 a.m. However, prior to that date the Parties advised that they had reached a settlement of the appeals and requested the Ontario Land Tribunal (“OLT or Tribunal”) to instead hold a settlement hearing, which was held by the Tribunal on Thursday, December 16, 2021 by video hearing (“VH”).
4Prior to the VH, the Parties filed Minutes of Settlement executed December 13, 2021 comprising 28 pages; an Affidavit of Anthony Usher sworn December 14, 2021, comprising 98 pages; and a draft Order for the consideration of the OLT.
5Mr. Usher, a Registered Professional Planner in Ontario since 1972 acting for the Applicant/Appellant, also testified at the VH in support of the Parties’ settlement and the Parties’ requested planning instrument, the ZBA now appended as Attachment 1 hereto. Mr. Usher was qualified by the Tribunal to provide opinion evidence on Land Use planning matters.
6Mr. Usher testified that:
(a) The area surrounding the Subject Property island consists of Georgian Bay and its islands and mainland shoreline at the northwest corner of the Township. Reserve lands of the Moose Deer Point Band are at the north end. With that exception, all of this area is considered part of the Wah Wah Taysee Waterfront Community. Near the north edge of the area, is King Bay Marina, the nearest point of access to the Subject Property;
(b) The Subject Property is part of the Allen/Visram property, which is legally described as Island 232. Island 232 consists of what at current water levels are three separate islands. These islands were named and described as a single island on the original survey of the Georgian Bay islands;
(c) Two of the islands are undeveloped rock outcrops. These outcrops are zoned NSI (Natural State Island). This application pertains only to the much larger island, the Subject Property located at civic address 2 Island 3850 Georgian Bay, which is zoned SRI2-51 (Shoreline Residential Island). This island is 4,280 square metres for planning purposes, that being its area above the recognized high-water mark of Georgian Bay, 177.4 metres above sea level;
(d) The Subject Property is surrounded by low-density residential development, located on islands or on non-road-accessible mainland shoreline, and by undeveloped lands. The area within sight of the subject island is remarkably undeveloped, even by the standards of the Georgian Bay portion of the Township, and is likely to remain so;
(e) The proposed new development on the Subject Property, with gross floor areas is as follows: cottage expansion - 33 square metres (expanded, the cottage will total 166 square metres); dryland boathouse - 20 square metres; and second floating dock with ramp - 18 square metres. Site alteration and vegetation removal would be confined to the absolute minimum necessary;
(f) Within the Township, the Georgian Bay shoreline and islands outside the settlement areas are divided into several waterfront communities, each of which has its own special policies in the Official Plan and special regulations in the comprehensive zoning bylaw. The Subject Property is zoned SRI2-51. SRI2 zoning permits a detached dwelling. The SRI2-51 exception zone is commonly applied to islands that are developed but considered undersized on the basis of Official Plan polices. In this exception zone, only legally existing buildings and structures are permitted. As well, because of the subject island's small size and the age of the development, some of the existing development is legally noncomplying with respect to shoreline setbacks and gross floor area;
(g) The proposed ZBA has been reviewed against the pertinent matters of provincial interest in section 2 of the Act, and it has regard to those matters. The ZBA is also consistent with the pertinent policies of the 2020 Provincial Policy Statement (“PPS”). Of particular importance in that regard: The proposed redevelopment is appropriate in rural areas, as per Policy 1.1.4.1. The use is specifically permitted on rural lands, in Policy 1.1.5.2. On the basis of RiverStone's evaluation in Exhibit C, and with implementation through the proposed approval of RiverStone's recommendations as well as additional measures agreed to by the Parties and specified in the Minutes of Settlement (“Minutes”), the proposed development would be consistent with the natural heritage and water policies, in Sections 2.1 and 2.2;
(h) The ZBA has appropriate regard to and conforms with the current District Municipality of Muskoka ("Muskoka") Official Plan and the Township Official Plan (collectively, the “OPs”)
(i) The required environmental and site evaluation studies were done; the natural heritage tests were met; the development is a permitted use; the tests for allowing development on undersized islands were met; and the policy tests specific to Wah Wah Taysee were met;
(k) The proposed development would allow for updating and minor expansion of an approximately 90 year-old dwelling. It would also allow for updating of the accessory buildings and structures while keeping the number and type of such within those generally permitted; and
(l) The development of the Subject Property would remain modest. The buildings would remain unobtrusive, well-screened by vegetation, and complementary to the island's natural form. The tree protection measures agreed to the Minutes would also further enhance visual screening. The overall development of the island would continue to be fully compatible with the remote, very low-density character of the immediate neighbourhood and Wah Wah Taysee as a whole.
7Dr. Beverley Wicks also testified before the Tribunal at the VH. Dr. Wicks was the co-author of a report by Riverstone Environmental Solutions Inc. concerning the environment impact of the proposed development on the Subject Property and relied upon by Mr. Usher. Dr. Wicks has a specialization in ecology and environmental science and particular expertise in assessing fisheries and endangered species in the Georgian Bay region garnered in over 20 years’ experience. Dr. Wicks has science degrees from the University of Guelph at the Bachelors and Masters level along with a PhD from the University of British Columbia. The Tribunal qualified her to provide expert opinion evidence on ecology matters and environment impact analysis.
8Dr. Wicks conducted field studies on the Subject Property in 2014 and again in 2018 and concluded that all concerns regarding the environmental impact of the proposed development on the Subject Property could be appropriately managed through mitigation measures concerning the timing of construction; the care and handling of materials and the conditions set out in Attachments 1, 2 and 3 to this Decision (“Conditions”). Dr. Wicks also concluded that the satisfaction of the Conditions under the ZBA would result in conformance with the natural heritage policies in the PPS; and adherence to all applicable provisions of the OPs and with those in the Township Zoning Bylaw.
9The Tribunal accepts the unchallenged evidence and conclusions reached by Mr. Usher and Dr. Wicks as described in paragraphs [6], [7] and [8] above that the proposed development and the ZBA will comply with the provisions of sections 1, 2 and 3 of the Act; conform with the PPS; adhere to all applicable provisions of the Muskoka and Township OPs; and respect principles of good planning.
ORDERS
10This appeal is allowed in part and the ZBA appended hereto as Attachment 1 is approved in principle, subject to written confirmation to be provided to the Tribunal by either the Applicant/Appellant or the Township that the Township has approved a site plan application that is in substantial accordance with the draft site plan appended hereto as Attachment 2 and the building elevations appended hereto as Attachment 3 .
11The Tribunal may be spoken to concerning any issues that may arise from the implementation of this Order and the matters described in paragraph [10] above.
“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.
ATTACHMENT 1
THE CORPORATION OF
THE TOWNSHIP OF GEORGIAN BAY
BY-LAW NO. 2021-XXX
Being a By-law to amend Zoning By-law 2014-75, as amended, with respect to lands legally described as 2 Island 3850 (Part of Island 232), former Township of Freeman, now in the Township of Georgian Bay.
WHEREAS the Council of the Township of Georgian Bay enacted By-law No. 2014-75, to regulate the use of land within the Township of Georgian Bay;
AND WHEREAS the Council of the Township of Georgian Bay deems it expedient in the public interest to amend By-law No. 2014-75;
AND WHEREAS authority to pass such a by-law is provided by Section 34 of the Planning Act, R.S.O. 1990, Chapter P. 13 and amendments thereto;
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE TOWNSHIP OF GEORGIAN BAY ENACTS AS FOLLOWS:
1.0 THAT ZONING BY-LAW NO. 2014-75 IS AMENDED AS FOLLOWS:
1.1 ZONE:
1.1.1 Schedule 'A' (Map No. 27) to Zoning By-law No. 2014-75 is hereby further amended, by rezoning lands legally described as 2 Island 3850 (Part of Island 232), former Township of Freeman, now in the Township of Georgian Bay, to the Shoreline Residential Island Type Two Exception XX (SRI2-XX) Zone.
1.1.2 Schedule 'A' (Map No. 27) to Zoning By-law No. 2014-75 is hereby further amended, by implementing the FH1 Zones as proposed on Plan of Survey and Site Plan C, December 9, 2021, submitted by the applicants to reflect the findings of RiverStone Environmental Solutions Inc.
2.0 PERMITTED USES AND SPECIAL PROVISIONS:
2.1 The exception provisions of By-law No. 2014-75 as amended are hereby further amended by adding the following provisions to SECTION 7.5 TABLE 7.4 SRI2 EXCEPTIONS:
TABLE 7.4 - SRI2 EXCEPTIONS
Column 1
Column 2
Column 3
Column 4
Column 5
Column 6
Exception Number
Additional Permitted Uses
Only Uses Permitted
Uses Prohibited
Special Zone Requirements
Other Special Provisions
SRI2-XX
Legally Existing and Legally Constructed Buildings and Structures
Privy (to be removed)
Maximum Gross Floor Area of Dwelling Unit – 166 sq. m. Maximum Building Height of Dwelling Unit – 6 m. Maximum Lot Coverage – 5.5%. Minimum setback for existing septic holding tanks – 8.5 m. Minimum setback for structures from FH1 zone - 1 m. Permitted Buildings and Structures on the subject property include: Dwelling – 166 sq. m. Washrooms – 6 sq. m. Sheds – 6 sq. m. Sleeping Cabin (existing) – 20 sq. m. Dryland Boathouse – 36 sq. m. Two docks – 65 sq. m. and 18 sq. m. (maximum sizes of each dock include ramp).
Maximum size of existing buildings and structures shall be as legally existing and legally constructed.
2.2 Schedule 'A', attached hereto, is hereby made part of this By-law.
2.3 This By-law shall come into force upon the approval of the Ontario Land Tribunal.
THE CORPORATION OF
THE TOWNSHIP OF GEORGIAN BAY
1.0 This is Schedule 'A' to By-law 2021-XXX, being a portion of Schedule 'A' (Map No. 27) to Zoning By-law No. 2014-75.
Lands to be rezoned to Shoreline Residential Island Type Two Exception XX (SRI2-XX) Zone.
Lands to be rezoned to the Fish Habitat - Type 1 (FH1) Zone.