Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 06, 2021

CASE NO(S).: PL200483

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

Applicant and Appellant: Todd Jobin

Subject: Minor Variance

Variance from By-law No.: 14-75

Property Address/Description: 125 Ravine Way

Municipality: Township of Georgian Bay

Municipal File No.: A19-48

OLT Case No.: PL200483

OLT File No.: PL200483

OLT Case Name: Jobin v. Georgian Bay (Township)

Heard: June 9, 2021 by Video Hearing

APPEARANCES:

Parties

Counsel

Todd Jobin (the “Appellant”)

Harold G. Elston Carly Emmett (Student-at-law)

Township of Georgian Bay

Alex Ciccone

(the “Township”)

DECISION DELIVERED BY M. RUSSO AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Appellant had applied under s. 45(12) of the Planning Act (“Act”) to the Township and its Committee of Adjustment (“COA”) for the authorization of Minor Variances (“MVs”) from the Township’s Zoning By-law (“ZBL”) No. 14-75, for special permission to allow:

1. A reduction of the minimum required front yard setback from 20 metres (“m”) to 12 m (to the west of the lot) and 15 m (to the north of the lot);

2. An increase to the maximum permitted gross floor area (“GFA”) for a dwelling from 190 square metres (“sq m”) to 400.9 sq m;

3. An increase to the maximum permitted dwelling width from 16.25 m to 23.9 m;

4. A reduction of the minimum shoreline distance of the septic bed from 30 m to 20 m.

The property is municipally known as 125 Ravine Way (the “Subject Property”), in the Township of Georgian Bay, District of Muskoka (“District”).

2Planning consultants, working on behalf of the Township, had reviewed the original application, as it had been submitted, and had recommended approval to the Township COA.

3The COA chose to defer the application on its original scheduled November 15, 2019 date. The Appellant provided revisions to the proposal based on input from committee members and delegations from the public.

4Planning consultants, working on behalf of the Township, reviewed the revised application, and had again recommended approval to the Township COA.

5The revised proposal was heard by the COA on September 18, 2020, where the committee chose to deny the application. The COA cited that the “committee was not satisfied that all measures have been taken to lower the building height and reduce the GFA”. The Appellant disagreeing with the decision of the COA, subsequently chose to exercise their statutory right and appeal under s. 45(12) of the Act. On October 7, 2020, the Appellant filed a notice of appeal with the Tribunal.

SITE CONTEXT

6The Subject Property is located in the south of Six Mile Lake, north of White’s Falls Road and accessed by Ravine Way off of Huron Trail.

7The Subject Property is comprised of a lot area of 3,855 sq m, with a frontage of approximately 65.5 m. The Subject Property is located on a peninsula, with an irregular shoreline. The site is relatively flat throughout but slopes down towards the water’s edge near the shoreline. The site is densely vegetated throughout, buffering the proposal from view on the water.

8Existing structures on the site include a dwelling, a shed, a privy and two docks. The existing dwelling is located on the point of the peninsula and is proposed to be removed.

THE HEARING

9The Tribunal had been provided two Participant Status Request Forms by Bruce Hanson and Jane Thompson. No objections were provided by counsel and the Tribunal being satisfied that both Mr. Hanson and Ms. Thompson met the criteria to be provided participant status and citing Rule 7.7 of the Tribunal’s Rules of Practice and Procedure (“Rules”), provided both participant status at these proceedings.

10Brian Ingham had provided both a Participant Status Request Form and Party Status Request Form to the Tribunal. After a brief discussion, the Tribunal was more satisfied that Mr. Ingham met the criteria of Rule 7.7 than Rule 8.1, which sets out the roles and obligations of a party. Hearing no objections from counsel, Mr. Ingham was provided participant status for these proceedings.

11Following the status requests being dealt with, counsel for the Appellant asked that the Joint Book of Documents, which had been provided to the Tribunal be marked as Exhibit 1 and the Appellant’s Witness Statement for Stephen Fahner be marked as Exhibit 2. Counsel for the Township provided no objection and asked if, at this time, the Witness Statement for the Township’s witness, Allan Ramsay, be marked as Exhibit 3. Hearing no objection by the Appellant’s counsel, the Tribunal marked all evidence as noted.

PLANNING EVIDENCE

12Mr. Fahner provided to the Tribunal his curriculum vitae and his acknowledgment of expert’s duty form within Exhibit 2. Mr. Ramsay provided the same in Exhibit 3. Counsel for both parties provided no objections and upon review, the Tribunal duly qualified and swore in Mr. Fahner and affirmed Mr. Ramsay to provide expert testimony in the field of land-use planning.

13Mr. Fahner provided the Tribunal a brief overview of the Subject Property. He opined that the proposal meets the four tests of approval under s. 45 of the Act and conditions on the site will be significantly improved from their current state, which will be presented to the Tribunal. He noted that the Appellant will be preserving 100 percent of the shoreline trees and vegetation within the proposal, which speaks to important Official Plan (the “OP”) policies, both at the Township and District level, which the Subject Property is obligated to conform to. Mr. Fahner opined that the COA missed crucial land-use planning principles in deriving their denial of the application and variances sought. Citing that the District provided no objections to the application and that the planning consultants for the Township provided recommendations to approve the variances both in its original form and in its revised form, that made concessions from both COA and public input. Lastly, Mr. Fahner noted that the COA referenced building height as a reason for denying the application, which was not a variance being sought and the proposal meets the ZBL restrictions for building height.

14Mr. Ramsay’s overview in contrast, opined that the four tests are not met with the proposal. In his opinion, the MVs sought, and the proposal overall fail to meet the character of the area and is an overdevelopment of the Subject Property. In his evidence, he will present that the Appellant has failed to demonstrate, on numerous occasions, how the proposal conforms to policies of the OP at both the Township and District level.

The Planning Act

15Mr. Fahner opined that the proposal has regard to matters of provincial interest as is obligated by s. 2 of the Act.

i. The retention of 100 percent of the vegetation and buffering at waters edge, from what is proposed, has regard to s. 2 (a) of the Act and the protection of ecological systems, including natural areas, features, and functions.

ii. Mr. Fahner opined that the proposal has regard to s. 2 (f) of the Act, the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems. In his opinion, the Appellant has the legal right to replace the sewage system that is in place currently and in the same location without requiring a variance. However, the Appellant has chosen to upgrade the septic system and in an abundance of caution is seeking a variance in order to do so. There are variables that restrict the placement of the leaching bed, namely, the geographic makeup of the peninsula of the Subject property and further, the location of the neighbour’s well. It is the opinion of Mr. Fahner that although as mentioned he believes a variance is not required, the Appellant hopes to bring the septic system into conformity to today’s standards for both the Appellant’s benefit and benefiting the community and Six-Mile Lake at large.

iii. Section 2 (h) of the Act, the orderly development of safe and healthy communities is provided by the proposal in the opinion of Mr. Fahner. The Appellant is proposing a development in keeping with the evolving character of the area, well screened from the lake and neighbours and all subject to Township Site Plan controls, ensuring the orderly development of the Subject Property.

16Mr. Ramsay in contrast to Mr. Fahner, opined that s. 2 (f) and (h) of the Act are not properly assessed by the proposal. He opined that the impacts of the reduced building setbacks and the septic setback on the water quality of Six Mile Lake has not been demonstrated. Therefore, the proposed development does not have regard for the above-noted matters of provincial interest.

17The Tribunal preferred the evidence of Mr. Fahner pertaining to s. 2 of the Act. The overall improvement to what is existing on the Subject Property and the Site Plan controls required to proceed to the next steps have regard to provincial interests and particularly, to the sections cited.

The Provincial Policy Statement (2020)

18Section 3(5) of the Act requires all decisions affecting planning matters be consistent with the Provincial Policy Statement 2020 (the “PPS”). The PPS provides policy direction on matters of provincial interest related to land use planning and development. It aims to achieve appropriate development while ensuring that resources of provincial interest, public health and safety, and the quality of the natural environment are protected. All planning decisions in Ontario must be consistent with the PPS. Mr. Ramsay opined that pertaining to the proposal and the Subject Property and with his review of the PPS in formulating his opinion, he found s. 1.1.1, 1.1.5 and 4.6 to be relevant.

19Mr. Fahner did not disagree, however, provided the opinion to the Tribunal that the PPS is a higher order document and is more of a macro approach in terms of policies. It is his opinion that the proposal and variances sought are consistent to the PPS, however, as directed by s. 4.6 of the PPS;

The official plan is the most important vehicle for implementation of this Provincial Policy Statement. Comprehensive, integrated and long-term planning is best achieved through official plans.

20Mr. Ramsay brought the Tribunal to s. 1.0 of the PPS, which promotes building strong healthy communities and the achievement of efficient development and land use patterns. He opined that s. 1.1.1, Healthy, livable and safe communities are sustained by s. 1.1.1 c) avoiding development and land use patterns which may cause environmental or public health and safety concerns. Similarly, to his evidence on s. 2 of the Act, Mr. Ramsay opined the impacts of the reduced building setbacks and the septic setback on the water quality of Six Mile Lake have not been demonstrated. Thus, it was his opinion that the proposed development is therefore not consistent with the above policy.

21Mr. Ramsay opined that the Subject Property is considered as Rural Lands under s. 1.1.5 of the PPS. Under Section 1.1.5.2 (b) resource–based recreational uses (including recreational dwellings) are permitted on Rural Lands. Thus, Mr. Ramsay opined the proposed development is consistent with the above policy.

22Mr. Ramsay concurred with Mr. Fahner that s. 4.6 relies on the OP to be the vehicle of implementation and greater specificity, and further discussion was reserved until reviewing the OP. Therefore, in conclusion, Mr. Ramsay opined that s. 1.1.1 (c) was the focus and his basis in determining the proposal was inconsistent with the PPS.

23The Tribunal was not convinced by the evidence provided by Mr. Ramsay and, in contrast, preferred the evidence of Mr. Fahner, pertaining to the consistency to the PPS. Similarly, to the evidence provided in s. 2 of the Act, the overall improvement to what is existing on the Subject Property and the Site Plan controls, are required to proceed to the next steps that provide consistency to the PPS. Particularly, s. 1.1.1(c) requires environmental, public health and safety concerns be considered. The Tribunal is satisfied that consideration was and is provided, and having several safe guards that ensure compliance before development, is mainly as mentioned in the Site Plan controls but further, the Ontario Building Code (the “OBC”) that septic installers and manufacturers are obligated to meet, again is an improvement to what exists and highlights consistency to the PPS policy debate.

District OP

24The Subject Property falls within a Waterfront Designation under the District OP. Which generally includes those lands inland up to 150 m from any lake greater than 8 hectares in area (which Six Mile Lake meets that criteria). Policy J4.3 establishes in its general policies that the Subject Property and the proposal are permitted uses.

25Mr. Fahner opined that the proposal meets the objectives set out in the District OP, s. J4.2. His emphasis focused on subsections b, c, d, g and h:

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;

c) Encourage the conservation of the overall landscape, including but not limited to tree cover and vegetation in order to protect the resilience and integrity of ecosystems;

d) Protect the integrity of the landscape and natural environment, particularly wetland areas, shorelines and other water resources;

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

It was the opinion of Mr. Fahner that the shifting of the dwelling away from the point and away from water’s edge, combined with the retention of existing vegetation and landscape buffer supports the policies above. Further, the improved septic system ensuring conformity to today’s environmental standards rather than an aging, outdated system again conforms to the OP policies. In Mr. Fahner’s opinion, the proposed dwelling is compatible with the area and the evolving dwellings being erected while maintaining the character and respect to existing and historical features. Mr. Fahner opined that compatibility and character does not mean the same, but rather respecting and reinforcing both built form and natural features prevalent.

26Mr. Ramsay disagreed with the opinions provided by Mr. Fahner and again, took the position that maintenance of water quality and natural features (i.e. tree preservation) were not demonstrated.

27Mr. Fahner brought the Tribunal to the District general policies and opined the proposal meets and often exceeds the policy direction. Policy C2.6.4.2 (c) reads:

The role of natural vegetated shorelines in buffering waterbodies from erosion, siltation and nutrient migration adjacent to the sensitive littoral zone is critical to the protection of water quality. Preservation and restoration, where appropriate, of shoreline buffers is therefore required. At a minimum, 75% of the linear shoreline frontage of a lot shall be maintained in a natural state to a depth of 15 metres from the shoreline where new lots are being created and where vacant lots are being developed. The linear buffer should be consecutive where terrain and soil conditions permit. Where redevelopment is proposed, or where the lot is located within an Urban Centre or Community designation, the buffer should be achieved to the extent feasible. Where the length and depth cannot be met, a net improvement over the existing situation is required.

And C2.6.4.2 (d):

Area Municipalities may set higher targets for vegetative buffering as appropriate in the local context.

Mr. Fahner opined that the proposal exceeds this policy by providing nearly 100 percent of vegetated shoreline buffering. Further, the proposal relocates the dwelling from its current location and increases the distance away from the water and proposes to re-naturalize the area of the current dwelling creating a significant net improvement of existing conditions.

28Speaking to a variance sought specifically, Mr. Fahner brought the Tribunal to s. C2.6.4.2 (e):

A minimum 30 metre setback from any shoreline shall be required for leaching beds. Where this is not feasible, the following will be required:

i. Where a new or upgraded septic system is necessary to service the proposal, the system shall incorporate soils that have a demonstrated ability to effectively retain phosphorus or equivalent septic abatement technologies, which may include the use of soils with appropriate elemental composition to bind phosphorus or pre-/post-treatment phosphorus controls; and

ii. In all cases, on-site phosphorus management and impact mitigation measures in accordance with the standard protection policies of this Plan.

Mr. Fahner expanded on these policies and how they are achieved but before doing so, spoke of another section of the OP.

29Speaking to another variance sought, Mr. Fahner brought the Tribunal to s. C2.6.4.2 (f):

A minimum 20 metre setback from any shoreline shall be required for all development, excluding shoreline structures, open decks and minor accessory structures, unless a greater setback is specified by this Plan. Where these setbacks cannot be achieved, a lesser setback may be considered in the following circumstances, provided on-site phosphorus management and impact mitigation measures are implemented in accordance with the standard protection policies of this Plan:

i) Sufficient lot depth is not available;

ii) Terrain or soil conditions exist which make other locations on the lot more suitable;

iii) Redevelopment on an existing lot or replacement of a leaching bed is proposed where the setback is not further reduced;

iv) Redevelopment on an existing lot or replacement of a leaching bed is proposed where a setback is further reduced and a net improvement over the existing situation is achieved through the implementation of on-site phosphorus management and impact mitigation measures; or

v) The lot is located within an Urban Centre or Community Area and a net improvement over the existing situation is achieved.

Mr. Fahner opined the above clearly indicates the OP contemplates situations where variances are warranted and criteria necessitating such a variance. It was the opinion of Mr. Fahner that the proposal clearly meets those criteria, with the Subject Property being an irregular peninsula and providing an overall net improvement for both dwelling location and septic system than what currently exists.

30Returning to phosphorus management, Mr. Fahner directed the Tribunal to policies in C2.6.5. Policy C2.6.5.1, Substantial Development on All Waterbodies reads:

In order to ensure no negative impact on recreational water quality, all substantial development, including lot creation, development of a vacant lot, and redevelopment of a lot within the Waterfront Area (including backlots), and on shoreline lots in the Urban Centres and Community Areas shall be subject to site plan control or community planning permits.

And;

Policy C2.6.5.2, Site Plan Control and Community Planning Permits reads:

(a) Where site plan control or a community planning permit is required for on-site phosphorus management, impact mitigation, and to contribute to building resilience of the waterbody to other environmental stressors, the following matters shall be addressed to the satisfaction of the Area Municipality:

i) Appropriate location of buildings, structures and sewage disposal systems;

ii) Retention or restoration of a natural vegetative buffer in accordance with Section C2.6.4.2 c) to prevent erosion, siltation and nutrient migration;

iii) Maintenance or establishment of native tree cover and vegetation on the lot as terrain and soil conditions permit;

iv) Appropriate location and construction of roads, driveways and pathways, including the use of permeable materials;

v) Implementation of stormwater management and construction mitigation techniques with an emphasis on lot level controls, low impact development practices and a treatment train approach to promote filtration, infiltration and detention, which may include proper recontouring, discharging of roof leaders, use of soak away pits, other measures to promote infiltration, and silt fencing for temporary sediment control; and

vi) Securities and processes to ensure implementation and long-term monitoring and compliance with site plan agreements or community planning permits, if required.

Mr. Fahner opined that the OP clearly provides direction, and is relevant to this proposal, in methods of dealing with phosphorus management. He further opined that all concerns put forward by Mr. Ramsay are dealt with or are to be dealt with before development occurs. It was the opinion of Mr. Fahner that the Site Plan stage is the appropriate time, as indicated in the above policies of the OP, for this to be assessed, which provides the municipality the ability to verify and the Appellant, if obligated to demonstrate, the proposal’s ability to manage all directives of relevant policies.

31Mr. Ramsay opined that the District OP policy J4.3 and s. B, F, G, I and M support denial of the proposal. Section B shifts greater emphasis and greater detail to the Township OP in determining appropriateness of any development. Section F highlights the importance of natural form and it being the predominant characteristic to be maintained. While s. G, focuses on shoreline and maintaining its natural state. Section I indicates that compatibility is ensured by a new development generally, a similar physical character, lot size, height and setbacks to the general area and s. M speaks to protecting water quality, natural heritage features through a variety of tools. Mr. Ramsay indicated that these were factors that aided in formulating his opinion that the proposal does not conform to the District OP. He reiterated his opinion that the focus of the District OP is the protection of the environment and that the proposal has failed to demonstrate how this is achieved.

32In analyzing the evidence in its totality, pertaining to the District OP, the Tribunal prefers the opinions provided and evidence put forward by Mr. Fahner and the Appellant. The Tribunal is satisfied that the proposal conforms to the relevant policies within the OP and the OP have safeguards that ensure conformity before development shall occur.

The Township OP

33Mr. Fahner provided the opinion that the water and its quality within Six Mile Lake are identified as being of upmost importance as indicated in policies within the Township OP, D.2.2 and subsections within. Also, in his discussions with both the District and Township, the water quality is monitored regularly to ensure acceptable water quality levels are maintained. Six Mile Lake is not a lake identified to be over any threshold and the Appellant was not required to provide any additional tests or studies during their application process.

34Mr. Fahner brought the Tribunal to policies affecting the lakes within the OP, D.2.2.4. Policy D.2.2.4.2 repeats as indicated, in the District OP, the minimum target of maintaining 75 percent of shoreline vegetation and buffering. He opined this repetition highlights the importance of this policy and the proposal is providing nearly 100 percent shoreline buffering.

35Policy D.2.2.4.3 also repeats the minimum setback requirement of 20 m from any structure erection as provided in the District OP. However, of great importance, in the opinion of Mr. Fahner, is the provision and explicit contemplation of variances being attainable with criteria being considered, similarly to the District OP, being lot depth restrictions, terrain, soil and onsite conditions, current building locations and conditions not being further reduced and a net improvement of current conditions. Mr. Fahner opined that the wording should be strongly considered by the Tribunal in this policy. The policy reads:

Where the 20-metre setback cannot be met, then a lesser setback may be considered through a variance to the Zoning By-law and subject to Site Plan Control and where on-site phosphorus management is implemented subject to the following:

The criteria being as mentioned above, but of greatest importance, in the opinion of Mr. Fahner, is the explicit mention of phosphorus management being at the Site Plan stage.

36Mr. Fahner highlights that again the Township and District OPs repeat and provide clarity that when setbacks in certain situations cannot be obtained consideration for reduced setbacks may be provided. Policy D.2.2.4.4, in his opinion, clearly demonstrates this and then provides explicit direction on how and when phosphorus management is to occur in subsequent policies. D.2.2.4.4 reads:

A minimum 30 metre setback from the High-Water Mark as identified in Section D.3.4.6 (High-Water Mark), for any Individual On-Site Sewage Service bed is required. Notwithstanding this, where the required setback is not feasible and where an on-site phosphorus management plan as identified in Section D.2.2.5 (Site Plan Control and/or On-Site Phosphorus Management) is implemented, a reduced setback will be considered.

37Mr. Fahner opined that policy D.2.2.5.1 clearly provides direction of Site Plan control and development criteria in conjunction with on-site phosphorus management. Further, Mr. Fahner opined that Site Plan control is further linked to D.2.2.7.1 and development within a Waterfront Designation and on shoreline lots with moderate waterbody sensitivity again, highlights how the OP policies consistently provide safeguards and intend for demonstration, as put forward by Mr. Ramsay, to be necessary before development, but at the Site Plan stage.

38Mr. Ramsay brought the Tribunal to the definitions section of the OP. The definitions read as follows:

Character – Means the collection of built, cultural and natural heritage attributes that define a given area. Such attributes can be historical in nature, can have evolved over time, or can be based on modern built form and land use patterns. Character is not static, but rather evolves over time, adapting to new circumstances and/or new planning policies.

Frontage – Means as defined by the Township’s Zoning By-law unless otherwise defined in this Official Plan.

Gross Floor Area – Means as defined by the Township’s Zoning By-law unless otherwise defined in this Official Plan.

In his opinion, the proposal fails to maintain the character of the area and fails to achieve the required Frontage and GFA for development to be approved.

39Mr. Ramsay did acknowledge that the proposed use is a permitted use in the OP, F.1.1.1. However, he opined that as is required in F.1.3.2, the proposal does not “respect the character of the waterfront area and protect the recreational, social, and ecological and natural characteristics of the Township’s shoreline”.

40Mr. Ramsay opined that expanding on the above policies noted, F.3.2.1.1, requires an appropriate building setback is required as set out in D.2.2.4.3. Further, it was his opinion that natural buffering and screening that may be required as conditions of planning applications in order to ensure that a proposed use is compatible with surrounding uses as set out in F.3.2.1.2, again should be demonstrated prior to the approval of such applications.

41Mr. Fahner opined that the proposal follows policy as previously indicated in seeking relief of ZBL setbacks and again, highlights that the OP is explicit in contemplating and setting out criteria where such variances may be sought. In the opinion of Mr. Fahner, this proposal meets those criteria.

42Mr. Fahner, in speaking to F.3.2.1.2 and the natural buffering requirements for the proposal, is of the opinion that the proposal not only meets the policy requirements but exceeds them. He brought the Tribunal to Exhibit 2, his witness statement and photographs that clearly depict the Subject Property being heavily vegetated and buffered by the lake’s view. Further, Mr. Fahner highlighted in Exhibit 1 the Planning Reports of the Township’s consultants that made reference to numerous site visits and the site having “heavy vegetative buffering from all points of the shoreline”. Mr. Fahner also brought attention to the report that quotes “The proposed structure does not exceed the maximum height requirements of the By-law, and given the relatively flat topography of the site, it is not anticipated that any aspect of the structure would be visible above the existing vegetation”. Lastly, Mr. Fahner provided the opinion that even with all that support the proposal would still be subject to Site Plan approval providing additional safeguards and ample opportunity to address and if required, demonstrate any remaining concerns, which in his opinion were none.

43Mr. Ramsay directed the Tribunal to Township OP s. F.5.9.3.1, that reads:

The Character of the Six Mile Lake Waterfront Community is of a Residential community composed of distinct neighborhoods focused on the various basins of the lake. It consists of many island and mainland uses, with a variety of access needs. This Character shall be maintained and enhanced through careful land use planning.

He further directed the Tribunal to s. F.5.9.3.2, where the water quality of the lake shall be maintained and enhanced. Section F.5.9.3.3 spoke to landscape naturalization and s. F.5.9.3.4 citing visual impact from the water being an important parameter in maintaining the character of the lake. Finally, s. F.5.9.3.6, regarding redevelopments and their requirement to conform to Township OP policies overall. Mr. Ramsay opined that the proposal fails to conform to these policies. It was his opinion as provided previously that the lack of clear empirical data, without clear demonstration that these policies are achieved, by default led to his opinion that the policies do not conform with the OP.

Size of Dwelling Units

44A key point of contention and an issue that had evolved over the hearing was the variance of allowable GFA and size of dwelling sought. This had been a point of contention when heard by the COA and with members of the public and in this hearing participant concerns. The witnesses were on opposite sides in providing opinions on the matter.

45In the OP, s. F.5.9.7.1 reads:

…the Zoning By-law shall provide standards to regulate dwelling size, to avoid overly large cottages on the lake. Cottage size may be regulated through a combination of restrictions on the total footprint, floor area, width, or height, combined with setback and landscaping considerations.

46Mr. Ramsay opined that as indicated in s. F.5.9.7.1, the size of the dwelling plus its location on the site, will have a direct effect on the visual impact of a development. Mr. Fahner concurred, but opined this proposal has no negative visual impacts and in fact, is bettering the dwelling location from where the structure currently sits.

47Mr. Fahner further concluded that the intent of s. F.5.9.7.1 is pivotal to ascertain. He opined the intent of the policy and any directive being tied to GFA, is an attempt to mitigate the visual impact of the dwelling and how it is perceived from the perspective of the lake, looking into the interior inland. Thus, in this case and in his opinion, the GFA is a poor indicator of how large the dwelling visually may appear and may be misinterpreted as appearing potentially larger than it will in fact be perceived. For that reason, Mr. Fahner opined that greater relevance and weight should be provided to height, massing and built form of dwelling.

48Mr. Fahner provided the opinion that the Shoreline Residential zone (the “SR6” zone) subject to these lands and the 190 sq m allowable GFA limitation, is very broad. This encompasses the living space below grade, the porches and main floor living space. The proposed GFA of 400.9 sq m, has almost half of that space below grade or is derived by porch space, with no visual impact felt by a cottager on the lake, even if no vegetative buffering was present at all. This would be different, in his opinion, on another site and as is common in the area, with cottages built on a stone base and are unable to go below grade. Therefore, one must build up and likely have a significantly larger massing and exceed height restrictions. Mr. Fahner opined that is not the case on the Subject Site and with the proposal, where the visual impact is not altered nor perceived by the GFA below grade.

49Mr. Ramsay directed the Tribunal to s. F.5.9.7.2 with explicit policy maximums pertaining to GFA and widths of dwellings. However, Mr. Fahner, while acknowledging this policy, directed the Tribunal to s. F.5.9.7.4, which contemplates variances to these provisions, upon evidence satisfactory to the Township that visual impact of the dwelling will not be significant.

50Mr. Ramsay also acknowledging s. F.5.9.7.4, opined that similarly to his opinions already put forward, this is not enough. The OP can contemplate variances, but the obligation is on the Appellant to provide studies, renderings, empirical evidence in advance to indicate proposal conformity to the OP.

51The Tribunal again, in analyzing the evidence in its totality, pertaining to the OP, prefers the opinions provided and evidence put forward by Mr. Fahner and the Appellant. The Tribunal in its review of the visual evidence and providing ample weight to the Township consultant’s recommendations and site visits, is satisfied that the proposal conforms to the relevant policies within the OP and the OP have safeguards that ensure limited visual impact and conformity before development shall occur.

The Four Tests under s. 45(1) of the Act

52Mr. Ramsay opined that the proposal fails to meet aspects of the four tests and therefore, cannot be approved.

53It was his opinion that reducing the dwelling setback would create a negative visual impact from the lake and dominate the character of the shoreline. Further, the significant GFA variance and dwelling width will dominate the lake front and represents an overdevelopment in the opinion of Mr. Ramsay. Lastly, Mr. Ramsay opined, the septic setback is not met and the Appellant has not demonstrated or provided technical information that this will not negatively impact the water quality of the lake. This was a constant in Mr. Ramsay’s opposition to the proposal, the empirical evidence was lacking and the Appellant has not demonstrated their claims will not result in negative impacts.

54Mr. Fahner, opined that the four tests are satisfied and met with the overall policy consistency and conformity of the proposal as previously provided and as set out below and with his rationale:

i. The proposed variances conform to the general intent and purpose of the Township's OP because the proposed dwelling provides a buffer that mitigates visual impact beyond the policy requirements. Further, the OP as previously provided specifically contemplates variances to provisions related to development on Six Mile Lake and the Appellant has satisfied those requirements or is obligated to do so at the Site Plan stage as required and set out in policy.

ii. The proposed variances conform to the general intent and purpose of the Township's ZBL because the proposal is bettering and enhancing the current dwelling conditions bringing them more inline with the current ZBL, and improving conformity. The visual impact will not be felt on the lake with the significant natural buffering provided and the GFA variance will have little or no visual impact as the majority of the increase sought will be below grade or attributed to porch space. The height of the dwelling conforms to requirements, and the ZBL intent is met with visual impact mitigated and the character of built form and massing remaining inline and harmoniously blending with the existing dwellings on the lake.

iii. The variances are desirable for the appropriate development of the Subject Property. The proposed dwelling will be replacing an old, smaller dwelling in need of repair. The location of the current dwelling is inferior but allowed, as is the septic system in place. The proposal seeks to improve the general location of the dwelling and upgrade the septic system to today’s environmental standards. No negative visual impact is felt on the lake and the Subject Site provides and exceeds the buffering required by policy.

iv. The variances are minor because the proposed dwelling will have an insignificant impact on the surrounding properties and is well screened from the lake.

55Pertaining to the four tests, the Tribunal prefers the opinions provided and evidence put forward by Mr. Fahner and the Appellant that the four tests are achieved and met by the proposal. The Tribunal is satisfied that no negative visual impacts are created, which weighs heavily in its findings and is satisfied that through visual evidence this has been demonstrated. Further, policy defers to Site Plan to ensure any additional demonstration or tests can be sought by the Township before development shall occur.

Participants

56The Tribunal values the input from local residents and considers their statements in deriving in its decision. However, the basis of formulating the decision is based on facts and evidence. General concerns of the participants were dealt with in the hearing through both witnesses and their testimony provided.

57Some concerns brought forward were not based on land-use planning issues and not considered relevant by the Tribunal for this hearing. Relevant concerns focused on GFA and location of the dwelling. These were dealt with in great length by both parties throughout the hearing. Similarly, concerns of water quality and septic leaching are valid and were addressed.

58The Tribunal is satisfied that the concerns of the participants were raised and dealt with by the parties throughout the hearing. Further, as for environmental concerns, the Tribunal is satisfied that policy directs and provides safeguards ensuring compliance ranging from site plan control to OBC guidelines and the Township’s ability to enforce or have it demonstrated, if required.

ANALYSIS AND FINDINGS

59The Tribunal finds and has been convinced that the proposal will not have a negative visual impact from the lake and from the surrounding area. This position is supported by the fact that the dwelling proposed meets the height restrictions of the Township and the visual evidence provided, as well as additional submissions, which reinforce these findings for the Tribunal.

60Pertaining to GFA, Mr. Elston submitted “that the Tribunal has consistently rejected a mechanical approach, which is entirely mathematical in nature because such an approach does not properly reflect the provisions of section 45(1) of the Act”. This statement is a broad overlying perspective that may and may not apply, depending on particulars that are specific to every appeal and every application and in determinative policies that apply. In this case, the Tribunal is persuaded that the intent of the by-law is to mitigate negative visual impact. Thus, factors mitigating this impact on the Subject Property, being vegetative buffering, significant GFA below grade, generally not altering the massing and built form “perceived by one’s eye” on the lake or from pedestrian perspective are weighed heavily in adjudicating this proposal. Therefore, the Tribunal finds in favour of the Appellant and concurs with Mr. Elston as submitted that “additional considerations as proportion, the rationale for the requested relief, the effect of the deviation and whether mitigation conditions can be imposed to alleviate concerns” are relevant in adjudicating the issue of size (GFA) as put in a proper context.

61The Tribunal having considered the as-of-right conditions and the current dwelling on the Subject Lands, finds that the proposal is an improvement to what currently exists. Both provincial and municipal policy directives are better served, and the relevant policy intent is better served with the proposed dwelling than what currently exists or can be renovated or altered to exist, without any additional land use permissions. The existing vegetative shoreline buffer combined with the diverse and evolving building typology already present around the lake, lends itself to the compatibly of the proposal with its surroundings. The Tribunal is persuaded as provided by the Appellant’s witness, that the proposal can co-exist harmoniously with no negative impacts in this community.

62The Tribunal concurs with the opinions provided by both witnesses that environmental protection and particularly, lake protection is paramount in provincial policy and of upmost importance in the Township OP. The Tribunal finds that proposal is consistent and conforms to such policies. Weighed, in this analysis, is the County OP policy 2.6.3, and stabilization evidence, that Six Mile Lake is “not over threshold” of phosphorous levels at this time, thus not requiring immediate testing for this proposal from the Appellant when its initial application was submitted to the Township. Further, numerous policy directives of phosphorus management to be provided at the site plan stage, further recognize protective mechanisms in place.

63The Tribunal finds that the variance pertaining to septic setback being reduced from 30 m to 20 m is appropriate with evidence substantiating the reduction and phosphorus levels being demonstrated to the Township as per OP policy D.2.2.4.3 and District OP policies C2.6.5.1 and C2.6.5.2 at site plan stage, if and when required. Further, as previously indicated, the Tribunal weighs within this analysis that the current septic system is allowed and is being utilized as is. Thus, no controls are in place to ensure environmental protections. The implantation of a new, current and up to date system provides a better situation that currently exists. Further, although no expert opinion was heard pertaining to OBC adherence, no objections were raised to the submissions of Mr. Elston by Mr. Ciccone that the OBC requirement is a 20 m setback. This to, although now determinative, weighs within the Tribunal’s Decision.

64Therefore, the Tribunal is persuaded by the expert opinion of Mr. Fahner and finds that the variances sought have regard to s. 2 of the Act as required. The Tribunal further, as directed in s.2.1a of the Act, has had regard to the approval authority, in this case the COA’s previous decision on this same planning matter. However, the Tribunal also has had regard to s. 2.1b of the Act, where all previous documentation and material provided to the COA has also been considered. The Tribunal considered many factors but weighing more heavily in its consideration, the Tribunal noted one of two COA reasons given for refusal was height. This was not a variance being sought, so it contributing to refusal of the application was considered not relevant by the Tribunal. Also considered were the two previous recommendations for approval by the Township’s planning consultants. These factors not being exhaustive, nor determinative, however as directed, the Tribunal has had regard for these matters.

65The Tribunal further finds the variances sought are consistent with the PPS and conforms to both the District and Township OPs. Most relevant for this hearing and in conclusion, the Tribunal is satisfied and finds that the variances sought for this proposal satisfy and maintain the four tests set out in s. 45(1) of the Act, and in doing so represent good land-use planning in the public interest.

ORDER

66THE TRIBUNAL ORDERS that the appeal is allowed and the variances to By-law No. 14-75 are authorized subject to the conditions set out in Attachment 1 and generally as depicted in the sketch attached as Attachment 2 to this Order.

67This is the Order of the Tribunal.

“M. Russo”

M. RUSSO

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

PL200483 – 125 Ravine Way

Minor Variance Conditions

Prior to the issuance of any Building Permits for the residential dwelling as approved, the Tribunal shall be advised:

a) THAT approval of this variance is granted and fixed to the subject site plan, generally to the extent, location, scale and use contemplated in this appeal and as depicted in Attachment 2;

b) THAT the maximum permitted living area (total area minus garage) within the proposed structure is limited to 401 square metres;

c) 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 manner prescribed by the applicable policies of the Township of Georgian Bay Official Plan as they relate to the administration of Site Plan Control;

d) THAT a tree preservation/planting plan be prepared by a Landscape Architect and submitted, to the satisfaction of Township of Georgian Bay Planning Department staff, illustrating the location, species/type and number of trees to be removed, relocated and/or planted, to ensure that the proposed buffering identified in the application submission materials (i.e. Character photos) is consistent with post-development conditions with respect to visual impact;

e) THAT the septic system for the proposed development be a tertiary treatment system with enhanced phosphorous removal.

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

ATTACHMENT 2