Eleanor Ltd. v. Township of Georgian Bay, 2021 CanLII 66060

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 23, 2021

CASE NO(S).: PL200479

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Eleanor Ltd.

Subject: Minor Variance

Variance from By-law No.: 2014-75

Property Address/Description: 273 South Bay Road

Municipality: Township of Georgian Bay

Municipal File No.: A18-33

LPAT Case No.: PL200479

LPAT File No.: PL200479

LPAT Case Name: Eleanor Ltd. v. Georgian Bay (Township)

Heard: March 15, 2021 by video hearing

APPEARANCES:

Parties

Counsel

Eleanor Ltd.

Sarah Hahn Charles Lund (Student-at-law)

Township of Georgian Bay

Alex Ciccone Hannah Ruby (Student-at-law)

DECISION DELIVERED BY G.C.P BISHOP AND ORDER OF THE TRIBUNAL

1This is an appeal under s. 45(12) of the Planning Act on a decision that was denied by the Committee of Adjustment (the “COA”) for the Township of Georgian Bay (the “Township”) with respect to a property located at 273 South Bay Road (“subject property”).

2The application for Minor Variance (the “Application”) was brought before the COA on December 14, 2018 and was deferred at that time to then return to the COA on September 18, 2020 at which time the application was denied.

3The subject property is designated waterfront area in the District of Muskoka Official Plan and Is located in the Honey Harbour coastal waterfront community and South Bay special policy area in the Township of Georgian Bay Official Plan. The current zoning on the property is Residential Type Five Exception -1 (SR5-1) in Zoning By-law No. 2014-75 (the “By-law”), as amended. There was a hold symbol on the subject property, but this was removed by housekeeping Zoning By-law No. 2019-40. The exception to the residential zone requires a minimum of 30 metres front yard setback.

THE APPLICATION

4The Application was submitted by Eleanor Ltd., (the “Applicant”) to the Township in late 2018 to legalize a structure, under construction for aerodrome (helicopter) purposes, and recognize the structure as a detached garage. At the time, according to the Applicant, the structure did not require any municipal approvals as it was subject to federal approval.

5The original Township staff report, dated December the 14th, 2018, and the Township staff report, dated September 18, 2020, authored by two different planners, are both in favor of the proposed variances to the By-law and are as follows:

• to permit an increase in maximum ground floor area of a detached garage where 112 square metres is permitted to 232.3 square metres;

• to permit an increase in maximum lot coverage where 5% is permitted to 6.2%, to facilitate the development of a detached garage; and

• to permit the height of a detached garage where 4.5 metres is permitted to 6.5 metres.

The two staff reports also state that proposed variances to the By-law will be subject to the following conditions:

a) THAT approval of this variance is granted and fixed to the subject site plan, extent, location, scale and use contemplated in the application;

b) THAT a Site Plan Control Approval application be submitted, and approved, and that a Site Plan Agreement be executed, detailing the proposed development and vegetation protection areas, in the matter prescribed by the applicable policies of the Township of Georgian Bay Official Plan as they relate to the administration of Site Plan Control; and

c) THAT approval of this variance expires three years from the date of decision if building permits have not been issued for the approved structure.

6Although the aerodrome exists today, the structure is not recognized for the use as a garage without the permissions, as applied, therefore must be considered on the basis that it does not exist. The only advantage to the Tribunal is the photos, that have been acquired by the two parties, does assist in determining the visual impact to the immediate neighbourhood and surrounding area.

SUBJECT PROPERTY AND SURROUNDING AREA

7The subject property is located on South Bay of Georgian Bay and is approximately 0.765 hectares in size with roughly 31 metres of straight-line frontage on Georgian Bay. Due to the narrow bay, the subject property appears rectangular in shape with the 31 metres of water frontage clipping the northwest corner of the rectangle. There are shoreline residential dwellings along the northern and western boundaries of the subject property with the east and south sides fronting on South Bay Road and Linton Road to the east and south respectively. A number of years ago South Bay Road was realigned and moved easterly and Linton Road was extended easterly to form a perpendicular intersection in the new location. This created remnant lands, owned by the public authority, that was transferred to the subject property thus creating more of a rectangular shape as opposed to the original rectangular shaped lot that existed previously.

8A row of mature coniferous trees lines the westerly limit of South Bay Road as it existed prior to the movement of South Bay Road to the east. Due to the additional property that was added to the subject lands after the realignment of the roads, the location of the existing aerodrome is positioned at the south end of this row of mature coniferous trees and roughly straddles its alignment. This is best illustrated in photo 7 of Exhibit 3 (page 78). This photo also illustrates the reclaiming of the old roadbed, that now forms part of the subject lands, and is mostly now covered in grass. There is a grouping of various sized trees and shrubs that survived the relocation of the road in the southeast corner of the subject lands that forms a triangle between the old and new road alignment.

9The aerodrome is Located roughly 77 metres from the water, 7 metres from the westerly sideline, 5 metres from the northerly limit of Linton Road and 39 metres from the westerly limit of South Bay Road.

10The subject property consists of a single detached dwelling with attached deck totaling approximately 220 square metres, two small sheds and a long finger dock protruding out from the lakefront.

11The subject property is located in an area that is typical of shoreline residential and rural development. There are also several nearby commercial uses that include a marina, a storage facility, and a tourist resort.

12The Applicant wishes to recognize the aerodrome as a garage structure through the minor variance process to allow the building to be used as such. If ownership were to change and the use as an aerodrome ceases, the approval of the Application would allow the structure to legally remain.

Planning Evidence

13The Tribunal heard from two planners, both qualified to give expert opinion planning evidence at this hearing. Rian Allen tendered evidence in favour of the proposed variances and Marie Poirier spoke in opposition.

14Mr. Allen reviewed the sequence of events, which includes the timing around the initial submission of the Application as they relate to the comprehensive zoning by-law for the Township of Georgian Bay. The original submission occurred when Zoning By-law No. 2014-75 was in effect and subsequent to the submission of the Application, Zoning By-law No. 2014-75 was amended by housekeeping Zoning By-law No. 2019-40. Zoning By-law No.2019-40, in part, removed the holding symbol from the subject property and the neighboring property. This provision required an approval of a site plan agreement to lift the Hold but there was no explanation from Township staff as to why there was a Hold to begin with, given that these were existing developed lots.

Provincial Policy Statement 2020 (“PPS”)

15Mr. Allen directed the Tribunal to s. 1.1 of the PPS which recognizes two distinct areas within local municipalities and the subject property is located within the Rural Area, outside the Settlement Area. Mr. Allen reviewed the following sections of the PPS:

1. Section 1.1.5.2.b) Permitted issues on Rural Lands include resource-based recreational uses (including recreational dwellings).

2. Section 1.1.5.4 Development that is compatible with the rural landscape and can be sustained by rural service levels should be promoted.

3. Section 2.1 addresses Natural Heritage.

Mr. Allen opined that the property is developed with a recreational dwelling and the proposed garage represents a structure associated with the recreational use of the property. The property is serviced with on-site sewage and water services and no changes are proposed and that the proposed garage is compatible with the rural landscape. With respect to natural heritage, no significant natural heritage features have been identified that will be impacted by its proposal. The shoreline of the property has been identified as Type 1 Fish Habitat but the proposed garage will be set back from the shoreline 77 metres.

16It is Mr. Allen's opinion that the Application to permit the proposed detached garage is consistent with the PPS.

17Ms. Poirier focused on section 2 of the PPS regarding Natural Heritage Resources stating that the subject property contains several natural heritage features including mature trees and shrubs, located on the shoreline of Georgian Bay and includes Type 1 Fish Habitat. It is Ms. Poirier’s opinion that the amount of vegetation removal required for the construction of the garage, in light of the cumulative sensitivity of the on-site natural resources, the application and the variances are not consistent with the PPS.

The four tests under s. 45(1) of the Planning Act

18When dealing with minor variance applications the planning act sets out four tests that must be satisfied as follows:

1. The general intent and purpose of the Official Plan are maintained.

2. The general intent and purpose of the Zoning By-law are maintained.

3. It is desirable for the appropriate development or use of the land, building or structure.

4. It is minor in nature.

19In this case there are two official plans that must be considered; the District of Muskoka Official Plan and the Township of Georgian Bay Official Plan.

District of Muskoka Official Plan (“DMOP”)

20Mr. Allen stated that the Application was submitted prior to the updated DMOP that was approved in 2019. He stated that although he reviewed it, the sections of the DMOP are from the 2014 version of the Plan and in his opinion, the relevant version of the DMOP in this case.

21Mr. Allen stated that the subject property is in the Highway 400/69 special character area and the lake is in a moderate classification for phosphorus sensitivity. The property is on a Class B District Road and is on an over threshold lake for recreational water quality. The subject property is also within the Waterfront designation which is generally 150 metres from the lake.

22Mr. Allen reviewed section B.1.a which states that: “The natural environment, specially water, is Muskoka’s key asset and it will be protected for values it provides including support for diverse ecosystems and a vibrant economy.” He also reviewed section C.5 which states that: “The height of buildings will respect the character and height of the natural environment and the characteristics of the adjacent structural development.”

23Mr. Allen reviewed many other sections of the DMOP which included items such as: lot sizes; maintaining shoreline vegetation; residential development form; special character area; environment; lake system health - recreational water quality; general development policies; moderate and high sensitivity and over threshold waterbodies; and site plan control and development permits.

24Mr. Allen concludes that the proposed location of the one storey garage: Protects the environment and water quality due to the large 77 metre set back from the shoreline and the level terrain in its location; The proposed 6.5 metre garage height respects the character and height of the natural environment by not exceeding the height of the existing trees and the existing two storey dwelling; The shoreline of the property is well treed and most parts are naturally vegetated; The shoreline of the property is identified as being Type 1 significant Fish Habitat but the existing vegetative shoreline buffer will protect this habitat from negative impacts; The existing vegetative shoreline buffer will also help protect water quality from phosphorus impacts; and the future site plan agreement will address matters such as retention or restoration of a natural vegetative buffer, maintenance or establishment of native tree cover and vegetation and implementation of stormwater management and construction mitigation techniques. Mr. Allen opined that based on these comments the proposed garage and the requested variances meet the intent of the policies of the DMOP.

25Ms. Poirier stated that the 2019 version of the DMOP is similar to the 2014 version and her evidence for this hearing was based on the 2019 version. The Tribunal agrees with Mr. Allen, that the version of the DMOP, at the time the application was submitted, is the relevant document. Although the Tribunal may have regard to the 2019 version of the DMOP, it did make it difficult for the Tribunal two reconcile between the two documents. For this reason, the Tribunal will not be referencing any sections of the 2019 DMOP in this decision.

26In Ms. Poirier’s opinion, a structure (garage) which is accessory to the primary use of the property (waterfront residential) that is twice the permitted size, greater in height than the dwelling, and results in an increase in permitted lot coverage does not maintain the purpose and intent of these policies. The structure does not result in appropriate physical change and results in significant social and visual impacts and has resulted in the removal of vegetation and replaced by physical structure, over double of which is permitted by the zoning by-law.

27Ms. Poirier opines that the general intent and purpose of these policies is to protect the integrity of the waterfront designation and its character and protect the integrity of the natural environment. The structure given its size, mass and bulk does not maintain the intent of these policies.

Township of Georgian Bay Official Plan (“GBOP”)

28Mr. Allen stated that the subject property is within the Waterfront Community Boundary, the South Bay Special Policy Area, along an existing Active Transportation Route, located within an area of Type 1 Fish Habitat and in the Waterfront Designation.

29The GBOP mirrors many of the policies in the DMOP.

30Mr. Allen reviewed Section C – “Strategy for Sustainable Growth – Framework for Growth” that focuses on matters such as: Growth and development should build upon the existing Character and pattern of land use; Character is established over time and is rooted in things such as landscape characteristics, built form, cultural heritage, extent and form of development, density, intensity of use and height, architectural design and levels of service and infrastructure; recognizes that Waterfront or Rural designations are not static but rather evolve over time adapting to new circumstances; and under the Principles of Growth, limited growth and development permitted in the Waterfront designation will be planned in a matter that maintains or enhances the natural heritage qualities and natural Character of the Waterfront designation.

31Mr. Allen reviewed a number of policies in section D of the GBOP. He referred to section D.1.2.4 which states that:

It is a policy of the Township that the conservation of the overall natural landscape, tree cover, and vegetation shall, where appropriate, be encouraged and in some cases required in an effort to preserve the natural appearance, Character, and aesthetics of the area and to provide a natural buffer, particularly in the area along the shoreline. Enhancement of the natural landscape, tree cover and vegetation shall be incorporated within any development or redevelopment proposal through applicable implementation mechanisms.

32He also took the Tribunal through the Waterfront designation section of the GBOP pointing out that there is no guidance in the GBOP with respect to accessory uses other than they are permitted and the implementing by-law will deal with location, size, and bulk of such facilities.

33It is Mr. Allen's opinion that one must focus on what he calls “the view from the canoe” and it is more important to view the potential impact from the water and not the road. Mr. Allen opined that although the appearance of the waterfront is not expected to remain unchanged, development within this area should be compatible and complement the existing character. Given the location of the proposed garage, which is not visible from lakeside views, combined with existing vegetative shoreline buffer, the proposed garage is compatible with the waterfront area and complements existing character. With respect to section H.1.1.7, dealing with the preservation of the character and scenic amenity of the roadway, it is Mr. Allen's opinion that site plan control will adequately deal with the view from the road through the design of stormwater management and planting buffers.

34His opinion remains the same for the GBOP as it did for the DMOP that the proposed garage and requested variances meet the intent of the policies of the GBOP.

35Ms. Poirier directed the Tribunal to section B.2.1.1 of the GBOP where the objective is “To protect the natural rich landscape of lakes, forests and wetlands, and safeguard the health and integrity of the water, air, sky, forest, shorelines, and natural habitats.”

36In her opinion, the size, mass, bulk, form and location of the detached garage or structure does not maintain the intent or purpose of these Official Plan policies. It offends the character, creates obstructed views, and generally does not protect the integrity of overall natural character of the property or community as it includes shorelines, Type 1 Fish Habitat, vegetation cover and wetlands.

37Ms. Poirier reviewed many of the same polices as Mr. Allen, in Section F (Waterfront), of the GBOP. These sub-sections included: Basis and Principles; Character; Land Use Policy; and General Requirements.

38Ms. Poirier expressed the importance of the character of the waterfront from a low density and built form perspective and that the proposed garage dominates the landscape and it is her opinion that the policies are intended to ensure that any expansion of residential development is limited in size to protect the character of the area. It is Ms. Poirier’s view that the intent of the South Bay Special Policy area is to restrict development due to the capacity issues in the area. Also, the location of the structure is immediately adjacent to South Bay Road with no vegetation to buffer visual impacts thus causing a distraction to views which also results in the structure dominating the landscape. Ms. Poirier opines that the proposed structure does not maintain the intent or purpose of the GBOP in this regard.

The Zoning By-law

39The subject property is currently zoned Residential Type Five Exception 1 (“SR5-1”) which requires a 30 metre front yard (lake) setback and accessory uses are permitted, including a garage. The maximum height of a detached garage shall be 4.5 metres and the maximum ground floor area of a detached garage shall be 112 square metres. The proposed height exceeds the maximum height by 2 metres and the proposed garage exceeds the maximum ground floor area by 121.8 square metres. These proposed variances recognize the existing building.

40It is Mr. Allen's opinion that the intent of the maximum height and maximum ground floor area provisions is to ensure that the buildings are secondary to a primary use in size and scale and to ensure that garages do not dominate the use or appearance of the property. Mr. Allen opined that the proposed garage is less than the maximum dwelling height allowed in the By-law, being 8 metres, is one story in height and does not exceed the height of the existing two story dwelling. The proposed garage is approximately the same size as the dwelling and meets or exceeds the minimum required yard setbacks. Mr. Allen stated that two garages could be constructed on the property and it is his opinion that combining the space into one garage is preferred which concentrates the development and the visual impact two garages may impose.

41The proposed lot coverage is 6.2% where is the By-law states a maximum of 5%. It is Mr. Allen's opinion that the intent of lot coverage is to limit the amount of land that is covered by buildings to provide a large percentage of land area to be undeveloped and naturally vegetated and to ensure that built form does not dominate over the natural environment which will maintain the low density character of the property. It is his opinion that the location of this additional coverage, well set back from the lake and not visible from the lakeside due to shoreline buffer and mature vegetation, represents a minimal coverage increase.

42Mr. Allen opined that the proposed Application complies with the general intended purpose of the By-law and he also noted that he is in agreement with both planning staff reports, as staff was of the same opinion.

43Ms. Poirier reviewed the various Shoreline Residential zones established in the By-law and more specifically the Shoreline Residential Type Five (SR5) zone. She notes that the subject property has, most likely, been placed in this zone to recognize the lot as it existed at the time of the passing of the By-law. It is noted that this zone recognizes the existing frontage and area of the lot. Ms. Poirier stated that these situations occur likely because there are development constraints or a lot is overdeveloped by typical standards, and often, when the lot that is already is developed was created by consent, this freezes the development provisions that exist.

44Ms. Poirier opined that the By-law restricts the gross floor area and height of an attached garage and the regulations for accessory structures are crafted in order to ensure that they maintain the intent of the definition of accessory structures which is that they are “incidental” and “subordinate” to the principle use or structure on a lot. For these reasons, it is Ms. Poirier’s opinion that the proposed variances do not meet the general purpose and intent of the By-law.

Desirable for the Appropriate Use of the Lands

45Mr. Allen stated that without the garage there is no site plan control in an already cleared area therefore there will be no increase in tree cover. He again stated the proposed garage is not visible from the lake therefore there is no impact and also meets all the setbacks at the intersection of South Bay Road and Linton Road. Permitting the garage in this location makes use of the existing disturbed area, there is no impact on the character, given the general character of the area, such as the storage building down the road and additional tree plantings through site plan control will give a net increase in tree cover. It is his opinion that the proposed garage is desirable.

46Ms. Poirier opined the proposed garage is not, by definition or by view, “accessory” to the principle use and structure. It is not in character with the existing recreational waterfront development and its mass and bulk dominate over the natural environment and the physical environment as well.

Minor in Nature

47Mr. Allen stated that there is no precise definition for minor and cannot be assessed on a numerical value. He iterated again that the location, screened from the water, does not make the structure appear to be overbuilt and it does not affect the character of the area. He stated that this is an individually subjective opinion, but his view is that the two proposed variances are minor in nature.

48It is Ms. Poirier’s opinion that the variances are not minor on a quantitative or qualitative basis. They result in a massive structure that does not maintain the character of the community and result in a major visual intrusion to the landscape and impact on the aesthetics of the waterfront of South Bay.

Planning Analysis

49The Tribunal finds that this is a unique property that has transitioned over time. Although the frontage on South Bay remained stagnant, the area of the lot was increased around 2013 with the addition of surplus lands by virtue of the re-alignment of South Bay Road easterly, and the extension of Linton Road.

50It is Ms. Poirier's opinion that the size and height of the proposed garage is out of character with the area and imposes a visual distraction to passersby. On this point the Tribunal disagrees. The Waterfront designation allows uses including residential dwellings, tourist commercial and other commercial uses that relate to the waterfront area such as resorts, camps, restaurants and attractions. Industrial development is also allowed with contractor yards boat repair and accessories. The photos supplied by Mr. Allen show a typical mix of these types of developments within the area of the subject property that include boat storage, a trailer park and very visible two story buildings and accessories. In this instance the existing dwelling on the subject property is protected by a row of tall coniferous trees giving it a large screen allowing it to blend in the environment. The only visible building on the subject lands is the front of the proposed garage that pierces this tree line.

51Ms. Poirier also opined that the size of the proposed garage, being two times the size allowed, and given the general size of the cottage, the proposed garage should not be accepted. The Tribunal does not agree with this comparison either given that , similar to above in paragraph 50, the dwelling is not noticeable from the road and there is no sense of scale or relationship between the dwelling and the proposed garage by a passerby.

52There is no doubt that the subject property is within the 150 metre Waterfront designation with the proposed garage is located approximately 77 metres from the water. The majority of the lot is very flat with the exception of the front portion located between the existing cottage and the waters edge. Photos 5 and 6 of Exhibit 2 illustrate a typical Muskoka and Georgian Bay shoreline. Photo 6 is taken on the ice in front of the dwelling showing the vertical rock face in the southern section of the waterfront that extends in a southwest and then west direction in front of the neighbouring lot. Photo 5 is taken standing at the shore looking directly at the dwelling where there is break in the vertical rock face with a reasonable section of natural sloped property to access the lakefront. The existing two story dwelling is elevated from the lakefront and situated approximately 40 metres from the water, at the top of the slope. The existing aerodrome is barely visible in these winter photos and hard to judge any sense of size and scale from the waterfront.

53When driving along South Bay Road, along the frontage of the existing lot, due to a combination of the tree line and general tree cover, one cannot see the water from the road. Along this section of South Bay Road there is nothing to distinguish whether one was in the waterfront area or in the rural area, therefore this 150 metre set back separating the waterfront from the rural lands is indiscernible.

54The photos taken by both planners in this case were during the winter months. The Tribunal also had the advantage of the photos taken by Victoria Lemieux, the Township planner that authored the December 14, 2018 planning report in favour of the proposal. There were photos taken in the summer months that painted a different picture with respect to the visibility of the proposed garage. With a combination of the existing vegetation on the subject property and the implementation of site plan control requiring further plantings for screening purposes the Tribunal finds the size, scale and height of the proposed garage to be acceptable.

55The Tribunal agrees with Mr. Allen's assessment with respect to natural heritage features and functions. The proposed garage straddles the end of the long row of tall coniferous trees that were once the boundary along the original position of South Bay Road. All of the property in front of the proposed garage is reclaimed land consisting of the bed of the old South Bay Road, including ditching, all of which now has been filled in, regraded and converted to a flat area of lawn. There are no natural heritage features in this reclaimed area nor did planning staff suggest that an Environmental Impact Study was required, in support of the proposed garage. The proposed location of the garage protects all of the existing shrubs and trees on the original property prior to the additional lands being added and is located properly to assist in this manner.

56The subject property will only benefit from the suggested conditions to be imposed, especially the Site Plan Control Approval and Site Plan Agreement. This will involve plantings in the area of the reclaimed roadbed and ditching and may also require mitigation through a Storm Water Management Report. The location of the proposed garage, 39 metres from the westerly limit of South Bay Road, allows the Township and the owner to be creative in the design of the plantings given the generous amount of space with which to work.

57The setback from the northerly limit of Linton Road is roughly 5 metres but due to the actual physical location of Linton Road, the appearance of the location of the proposed garage paints a much different picture along the south boundary of the subject property. This is best illustrated from the aerial photo included in Tab 4 of Exhibit 3, included in the Township’s document book. There is a section of the pavement remaining from the original alignment of South Bay Road. This remaining pavement, leading north from Linton Road, contains a Canada Post box (see photo 1 of Exhibit 2) where a pull off area, from Linton Road, is dedicated for local mail pick up and drop off. The photo illustrates a substantial distance of many metres between the parking area for mail pick up and delivery, and the location of the proposed garage. From Linton Road there is a physical sense of substantial separation between Linton Road and the proposed garage.

58The Tribunal finds that the proposed garage takes full advantage of the reclaimed property, is well set back from both Linton Road and South Bay Road and in a location that has minimal affect on the existing vegetation, while preserving the natural vegetative buffer along South Bay.

59The Tribunal agrees with the opinion evidence of Mr. Allen, in all respects and finds that the proposed garage does not dominate the natural environment, nor is it a physical distraction from the roads, in the proposed location.

60The location, size and height of the proposed garage, maintains the general intent and purpose of the DMOP and GBOP, is desirable for the appropriate development or use of the land, building or structure and is minor in nature.

61The Application does not offend the PPS.

62The Tribunal Orders that the appeal is allowed and the variances to Zoning By-law No. 2014-75, as amended, are authorized subject to the conditions as set out in Paragraph 5 of this Order.

“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.