Cockburn v. Georgian Bay (Township), 2021 CanLII 63286

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 15, 2021

CASE NO(S).: PL200615

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Peter & Bruce Cockburn

Subject: By-law No. BL 2020-090

Municipality: Township of Georgian Bay

LPAT Case No.: PL200615

LPAT File No.: PL200615

LPAT Case Name: Cockburn v. Georgian Bay (Township)

Heard: July 6, 2021 by Video Hearing

APPEARANCES:

Parties

Counsel

Peter Cockburn and the Estate of Bruce Cockburn

Stephen Watt

Township of Georgian Bay

Alex Ciccone

MEMORANDUM OF ORAL DECISION DELIVERED BY G.C.P. BISHOP ON JULY 6, 2021 AND ORDER OF THE TRIBUNAL

1The matter before the Tribunal is an Appeal by Peter Cockburn and the Estate of Bruce Cockburn (the “Appellants”), from the passing of a house keeping by-law by Council for the Township of Georgian Bay (the “Township”) pursuant to s. 34(19) of the Planning Act with respect to a property located on King’s Farm Road, in the Township. The Tribunal was informed of the change to the status of one of the Appellants at the commencement of this event and has recognized this in the list of parties above.

2The subject property is legally known as Part of Lot 21, Concession 7, formerly in the Geographic Township of Baxter, now in the Township of Georgian Bay. The subject lands are approximately 27.4 hectares (“ha”) in size and has 61 metres (“m”) of water frontage at the entrance to Little Go Home Bay on the body of water known as Gloucester Pool, which connects with Georgian Bay through Port Severn.

3The subject and adjacent lands were part of a single parcel of land whereby applications to sever the whole of the lands were submitted in 2011, for the creation of three new lakefront lots and one retained lot. The accompanying Zoning By-law Amendment No. 2013-80 (“ZBA 2013-80”), was also passed as part of the process. This ZBA was to amend the previous comprehensive Zoning By-law No. 91-19 (“ZBL 91-19”).

4ZBA 2013-80 placed the severed properties into a combination of the Shoreline Residential Type One Exception One (“SR-1-1”) Zone and the Environmental Protection (“EP”) Zone and placed the retained land into a combination of the Open Space (“OS”) Zone and the Environmental Protection (“EP”) Zone.

5During a comprehensive update of ZBL 91-19 to the current comprehensive Zoning By-law No. 14-75, site specific ZBA 2013-80 was not included in the mapping and currently, incorrectly identifies the subject lands, being the original retained lands, as being zoned Shoreline Residential Type One (“SR1”) Zone. The Appeal in front of the Tribunal is the passing of By-law No. BL 2020-090 (the “By-law”) to correct and properly reflect the previous passing of ZBA 2013-80, to which the owners object.

6The settlement, and the evidence in support of the approval of the proposed revisions to the By-law, was presented with the concurrence of both Parties.

7The Tribunal received planning evidence from Wayne Simpson, on behalf of the Appellants, in support of the settlement.

8Mr. Simpson provided his witness statement, curriculum vitae and an executed Acknowledgement of Expert’s Duty. Mr. Simpson has been qualified by the Tribunal to provide expert evidence in the area of land use planning on many occasions, therefore the Tribunal relied on his sworn affidavit at this hearing event.

9The Affidavit of service, giving notice for the first Case Management Conference, was tendered, at that event, as Exhibit 1, with no further notice required. The following documents were marked as Exhibits for the purposes of this Settlement Hearing:

Exhibit 2: Affidavit of Wayne Simpson sworn June 26, 2021, with attached exhibits to the Affidavit, A to F

Exhibit 3: Executed Minutes of Settlement between all Parties dated June 28, 2021

10The Affidavit of Mr. Simpson provided a comprehensive overview of the background to the Appeal, the physical context and policy context of the subject property, as well as the terms of the settlement, including the proposed draft schedule to the By-law, now presented for consideration by the Tribunal. The Tribunal reviewed Mr. Simpson’s affidavit evidence in advance of this event and is satisfied with its contents. Since no questions of clarification are required of Mr. Simpson, the Tribunal finds that the decision in this matter can be dealt with exclusively through his sworn affidavit.

11Mr. Simpson reviewed the file information on the original consent applications that split the whole of the land into four parcels and concluded the only reason to downzone the property was to 'correct the error' referenced in the preamble in the Minutes of Settlement. It is Mr. Simpson’s opinion that there was no other planning rationale to do so, when the environmental studies, and all relevant policy documents support the reasonable economic use of the shoreline area for a single-family cottage.

12Mr. Simpson pointed out that the original Environmental Study (“EIS”), completed in 2012, for the creation of the three new lots, also assessed the retained lands as well, which are the subject lands to this appeal. The Appellants hired Azimuth Environmental Consulting Inc. (“Azimuth”) to complete a 2020 addendum to this original EIS and Azimuth concluded that:

... the results of the 2012 EIS that the development of the four shoreline parcels [i.e., the subject property and the three lots to the west] can be achieved with no negative impacts to significant natural heritage features and functions or water quality of Little Go Home Bay...Changes to environmental policy and regulation at the federal (Fisheries Act), provincial (PPS, ESA), district (DMOP) and local (GBOP) levels do not alter the conclusion that development of the subject lands can be achieved with no negative direct, indirect or cumulative impacts to significant natural features and functions (including habitat of endangered or threatened species) of the subject and adjacent lands.

Provincial Policy Statement (“PPS”)

13Mr. Simpson confirmed that the updated EIS, along with a planning justification report and an application to amend the Zoning By-law, was submitted to the Township on January 26, 2021. This file is on hold, pending the outcome of this current matter and, in this case, the parties anticipated a settlement could, and was, reached.

14Mr. Simpson referred to s. 1.1.1 of the PPS which supports the:

"Building Strong Healthy Communities" by "Promoting efficient development and land use patterns which sustain the financial welI-being of the Province and municipalities over the long term...avoiding development and land use patterns which may cause environmental or public health and safety concerns... promoting development and land use patterns that conserve biodiversity."

Mr. Simpson opined that the proposed revisions to the By-law is consistent with these measures, with the use of the nearshore for a cottage, represents efficient use of the land and, further, through site plan control the findings of Azimuth can be applied to further protect the natural environment.

15Section 1.1.5 of the PPS permits “resource-based recreational uses” envisioned for the subject lands and s. 2.1.2 of the PPS deals with “natural features” and, in this instance, there will be natural vegetative buffers in the nearshore area and development restrictions applied to the backlands.

16It is Mr. Simpson’s opinion that the revised By-law is consistent with the PPS.

District of Muskoka Official Plan (“DMOP”)

17The subject lands lie within the ‘Waterfront Area’ designation, within 150 m of Little Go Home Bay with the remaining backlands being located in a combination of the ‘Waterfront’ or ‘Rural’ designation. The present appeal is limited to the nearshore, therefore the Appellants are satisfied with the restrictive Environmental Protection or Open Space zoning proposed for the balance of lands beyond the developable lands within the Waterfront Area.

18The principle objectives guiding development in the waterfront area are set out in s. J 4.2 of the DMOP including:

a) Protecting the ecological features and functions of lakes, rivers and shoreline.

b) Ensure the protection of the exceptional visual aesthetics of the lakes, rivers and shoreline areas and preserve the overall natural appearance of the Waterfront Area.

e) Protect fish and wildlife resources in and around waterbodies.

g) Support the development and redevelopment of recreational dwellings as appropriate.

h) Ensure that the character of new development is reflective of, or compatible with, existing development in the Waterfront Area.

19Mr. Simpson opined that there is conformity to these objectives through the Recommendations of the EIS and the addendum: the shoreline was identified as Type 2 Fish Habitat and according to Azimuth it is suitable for the placement of the dock; and a cottage on the Appellants’ property will be in character and compatible with the development in the area that include the maintenance of a 10 m buffer adjacent to the closest cottage.

20Mr. Simpson also reviewed sections of the DMOP that included linear shore development and, if a newly created lot, minimum frontage of 60 m and an area of 0.4 ha is required. Any development should generally have a physical character similar to existing developments in terms of density, lot sizes, maximum building heights and minimum setbacks, all controlled by the proposed Shoreline Residential One Exception (SR1 – XX) zoning.

21It is Mr. Simpson’s opinion that approval of the proposed revised By-law will be in conformity with all relevant provisions in the DMOP.

Georgian Bay Official Plan (“GBOP”)

22The GBOP recognizes the unique recreational resource and land water asset and acknowledges that the majority of the seasonal population is accommodated in the Waterfront and Rural Designations. The GBOP promotes wise stewardship of the Township’s significant natural and cultural heritage and character and provides for orderly and economically sustainable growth while protecting the resources of the Township.

23Mr. Simpson opined that the natural heritage areas have been identified and protected through the Open Space and Environmental Protection zoning as reflected in the findings of the Azimuth EIS. It is Mr. Simpson’s opinion that the proposal is in conformity with the GBOP.

24Given the proposed, increased separation and vegetative buffering between any new cottage on the subject lands and the closest neighbouring cottage, the zoning on that portion located in the nearshore area will be zoned an SR1-Exception to allow for the increased restrictions imposed. The backlands will remain Environmental Protection and Open Space, as was approved by Council.

Findings

25The Tribunal agrees with the expert planning opinion evidence of Mr. Simpson, as outlined in his sworn affidavit. The implementation of the recommendations from the 2012 EIS, and the addendum, plus a compromise with the neighbour to the east, place further restrictions and setbacks on any future construction and recognizes the Natural Heritage Areas, as reflected in the zoning for the backlands, and the revised amendment to the By-law in the nearshore area.

26The Tribunal finds that the proposed By-law, as amended, is consistent with the PPS, conforms to both the DMOP and GBOP, is reasonable and represents good planning.

27Upon the uncontested evidence provided by Mr. Simpson, the Tribunal will accordingly allow the appeal in part and will direct the Township to amend By-law No. BL 2020-090 by zoning part of the shoreline portion of the subject property to SR1-Exception while maintaining the Environmental Protection – Provincial Significant Wetlands and the Open Space zoning changes in the By-law, and by adding site specific setback and buffering regulations in Column 5 of the settlement By-law as follows:

a. Minimum interior side yard setback from the east interior side lot line -

15 m;

b. Minimum setback for all accessory buildings and structures from the east interior side lot line and the projection of the east interior side lot line 15 m; and

c. A 10 m vegetation buffer of existing natural vegetation shall be maintained adjacent to the east interior side lot line.

ORDER

28The Tribunal orders that the appeal against By-law No. 2020-090 of the Township of Georgian Bay is allowed in part and the Tribunal directs the Township to amend By-law No. 2020-090 as set out in Attachment 1 to this Order. In all other respects, the Tribunal orders that the appeal is dismissed.

29This Member may be spoken to through the Case Coordinator if any issues arise.

“G.C.P. Bishop”

G.C.P. BISHOP

VICE-CHAIR

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.

ATTACHMENT 1

Schedule 1 to the Minutes of Settlement

THE CORPORATION OF

THE TOWNSHIP OF GEORGIAN BAY BY-LAW NO. 2020-090 - OLT

Being a By-law to amend Zoning By-law 2014-75, as amended, with respect to lands legally described as Part of Lot 21, Concession 7 in the geographic Township of Baxter, Township of Georgian Bay. Roll Number 446503002307100.

WHEREAS the Ontario Land Tribunal issued an order XXXX dated XXXX to amend the Zoning By- law 2014-75 pursuant to section 34(1) of the Planning Act, RSO 1990, c P13;

NOW THEREFORE THAT THE FOLLOWING BE ENACTED:

1.0 THAT ZONING BY-LAW NO. 2014-75 IS AMENDED AS FOLLOWS:

1.1 ZONE:

1.1.1 Schedule ‘A’ (Map No. 140) to Zoning By-law No. 2014-75, is hereby further amended, by rezoning lands legally described as Part Lot 21, Concession 7, geographic Township of Baxter, (Roll Number 446503002307100) to the Shoreline Residential One Exception XX (SR1- XX) Zone, Open Space (OS) Zone and Environmental Protection (EP) Zone in Zoning By-law No. 2014-75 as shown on Schedule ‘A’, attached hereto.

2.0 PERMITTED USES AND SPECIAL PROVISIONS:

2.1 Special provisions of By-law No. 2014-75, as amended is hereby further amended by adding the following provisions to SECTION 6.5 TABLE 6.3 SR1 EXCEPTIONS:

TABLE 6.3 – SR1 EXCEPTIONS

Column 1

Column 2

Column 3

Column 4

Column 5

Column 6

Exception Number

Additional Permitted

Only Uses Permitted

Uses Prohibited

Special Zone Requirements

Other Special Provisions

SR1-XX

Minimum interior side yard setback from the east interior side lot line - 15m

Minimum setback for all accessory buildings and structures from the east interior side lot line and the projection of the east interior side lot line - 15m

A 10m vegetation buffer of existing natural vegetation shall be maintained adjacent to the east interior side lot line.

The interior encroachment provisions of By- law 2014-75 shall not apply to the east interior side yard.

In force and effect by the Ontario Land Tribunal Order XXXX dated XXXX and issued XXXX.

Schedule ‘A’ to By-law 2020-090