Ontario Land Tribunals

Tribunaux de l’aménagement du territoire Ontario

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October 8, 2021

TO: All recipients of the Ontario Land Tribunal’s Decision issued on September 28, 2021

RE: OLT CASE NO.: PL200606, DECISION ISSUED SEPTEMBER 28, 2021

On September 28, 2021 the Ontario Land Tribunals issued its Decision (“Decision”) on the above noted case.

Rule 24.04 of the Local Planning Appeal Tribunal’s Rules of Practice and Procedure states that the Tribunal may at any time correct a technical or typographical error made in a decision or order.

After a thorough review of notes taken during the hearing and the Appeal on file, I have realized that I have made an error in the Decision’s Order which was published.

The Tribunal stands firm in its evaluation of the planning evidence leading up to the incorrectly cited Order. The evidence received in chief and on cross examination from Stephan Szczerbak was preferred, as was Adam Kozlowski’s testimony over that of Marie Poirier, planner for the Appellant. The Tribunal also considered the Participant statements in coming to the conclusion that the Appeal should be dismissed.

On further review, this Appeal was based on the passing of Zoning By-law Amendment 2020-111 by the Township of Sequin. No reference to amend the comprehensive by-law was discussed at the hearing. The reference made to the comprehensive By-law was in error.

The Tribunal Orders that the appeal is dismissed.

There will be no other changes to the content of the Decision.

Thank you to those who brought this matter to my attention.

A corrected version of the Decision issued on September 28, 2021 is enclosed with this communication. This enclosed Decision replaces the Decision issued on September 28, 2021.

Thank you.

“D. Chipman”

D. CHIPMAN

MEMBER

Encl.

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

September 28, 2021

CASE NO(S).:

PL200606

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

Appellant:

Cathy Nullmeyer

Subject:

By-law No. BL 2020-111

Municipality:

Township of Seguin

OLT Case No.:

PL200606

OLT File No.:

PL200606

OLT Case Name:

Nullmeyer v. Seguin (Township)

Heard:

August 30, 2021 by video hearing

APPEARANCES:

Parties

Counsel

Catherine Nullmeyer (“Appellant”)

Tim Duncan

Jodi Chapnik (“Applicant”)

Leo Longo

DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL

1This Decision arises from an appeal filed by Catherine Nullmeyer (“Appellant”) regarding the passage of Zoning By-law Amendment No. BL 2020-111 (“ZBLA”) by the Township of Seguin (“Township”) pursuant to s. 34(19) of the Planning Act (“Act”).

2The purpose and effect of the ZBLA is to rezone the subject lands from the Limited Service Residential Zone (LSR) to the Limited Service Residential Zone – Exception One Hundred and Thirty One (LSR-131) to permit the construction of a 782 square metres (“sq m”) “Sports Barn” accessory structure, specifically to:

• Permit a “Sports Barn” recreational accessory structure containing sport courts and gaming areas; bar area with sink; washrooms and mechanical and storage areas as a permitted accessory building on the property.

• Permit a maximum height increase from the required 4.5 metres (“m”) to proposed 9.4 m to accommodate a Clerestory upper roof design feature.

• Establish a minimum front yard setback of 178 m, and a minimum shoreline setback of 123 m.

• Establish a minimum side yard setback of 12.5 m to the north-east corner of the proposed Sports Barn and establish a minimum side yard setback of 9.6 m to the south-east corner of the proposed Sports Barn.

3The property is legally described as Part of Lots 24 and 25, Concession 9, Part Shore Rd Allow and RP 42R-21269, Part 3, in the former Township of Humphrey, now in the Township of Seguin, Parry Sound Area Planning Board. The subject property is municipally known as 12 Port Cockburn Drive, Township of Sequin and lies on the north tip of the shores of Lake Joseph as a waterfront property.

4The Appellant owns several lands and water lots on Lake Joseph located close to the subject property, and more specifically, owns the lot adjacent to the subject lands.

5At a Case Management Conference (“CMC”), held on April 19, 2021, the Tribunal granted Participant status to the following persons: 1) David and Suzanne Mckerroll, 2) Bruce and Leah Smith, 3) Brian Smith, 4) Paul Bronfman, 5) Judy and Ron Gage, and 6) Brent Layton and Christina Lisinska.

6The Participant Statements on file will be weighed accordingly in the decision of the Tribunal.

SITE CONTEXT

7The subject property is comprised of 3.225 hectares, and 115.6 m of frontage on Lake Joseph and is designated "Shoreline Area" in the Township of Seguin Official Plan and is zoned "Limited Service Residential (LSR)" in the Township of Seguin Comprehensive Zoning By-law (“CZBL”). The topography of the lot ranges from some steep slopes at the front of the property as it faces the Lake and gentle slopes and flat areas to the centre and rear of the lot. The vegetation consists of a mix of deciduous and coniferous tree species.

8The surrounding residential properties are all within the “Shoreline Area” designation as described in the Official Plan. These properties exhibit similar natural characteristics to the subject property.

9Currently there is a dwelling and accessory structure (barn) located where the Sports Barn is proposed. A detached garage with a sleeping cabin above is proposed to be developed along with a dwelling, pool house, boat port, and grill pavilion.

10Except for the proposed "Sports Barn", the proposed development as detailed complies with the current Zoning By-law and has been approved.

11Jodi Chapnik made an application to the Township of Seguin on April 8, 2020 for a Zoning Exception to permit a "Sports Barn" as an accessory use on the property. The application was submitted on April 9, 2020 and it was deemed to be complete on June 10, 2020.

12A statutory meeting was held on July 20, 2020, after which the Applicant revised the original application to further increase the required minimum setback from 150 m to 178 m and increase the minimum side yard setback to 12.5 m to the north-east corner of the proposed Sports Barn, and establish a minimum side yard setback of 9.6 m to the south-east corner of the proposed Sports Barn. On November 2, 2020 Council passed the site-specific by-law.

13On November 25, 2020, Ms. Nullmeyer appealed the application having concerns with the size of the Sports Barn suggesting the need to balance the accessory structure with those of neighbouring property owners. She raised environmental concerns over the removal of vegetation and concerns that the proposed development would reduce the area’s charm, cause noise and would not be compatible with existing development in the area.

14The Tribunal heard from five witnesses on behalf of the Parties and received six (6) Participant statements. All witnesses were qualified to provide expert evidence in their respective fields.

15Applicant’s Witnesses:

a. Stefan Szczerbak - Land Use Planning –informed the Tribunal that he had assumed carriage of the file when his partner Greg Corbett took ill.

b. Adam Kozlowski - the former Township Senior Planner – summonsed

16Appellant’s Witness:

a. Marie Poirier – Land Use Planning

17The Tribunal also heard from Jason Chapnik, the Applicant’s spouse and Bradley Nullmeyer, spouse of the Appellant who were affirmed to provide fact-based evidence.

18There were no objections to the any of the witnesses called.

ISSUES

19The procedural requirements state that the issues to be adjudicated are to be set out in the Procedural Order. In the present case, the Issues List is identified as Schedule 2 attached to the Procedural Order of May 3, 2021.

PLANNING EVIDENCE

20In making a decision on a ZBLA appeal under s. 34(19) of the Planning Act, the Tribunal must determine whether the proposed ZBLA:

a. is consistent with the Provincial Policy Statement, 2020 (“PPS”);

b. conforms with applicable provincial plans;

c. conforms with applicable official plans; and

d. represents good planning.

21In considering these issues, and determining this Appeal, the Tribunal must also have regard to any decision of the Council for the Township as it relates to the ZBLA, and also to the supporting information and material that was before Council in making such decision in relation to the Appeal now before the Tribunal.

22In the present case, the sole applicable provincial plan is the Growth Plan for Northern Ontario (“GPN”). The District of Parry Sound does not have a municipal government or official plan. The sole applicable official plan, therefore, is the Township of Seguin Official Plan (“TSOP”).

23The Tribunal also must have regard to the matters of provincial interest set out in s. 2 of the Act.

Provincial Policy Statement 2020 (“PPS”)

24Mr. Szczerbak informed the Tribunal that he had assumed carriage of the file when his partner Greg Corbett took ill. After a site visit, he reviewed his partners work to ensure that he was in agreement with the findings, the application process and the analysis undertaken/ witness statements that had been concluded by Mr. Corbett. He concluded that he concurred with the findings of Mr. Corbett.

25Mr. Szczerbak opined that the applications were consistent with both the 2014 and 2020 PPS and had no concerns with any lack of conformity to the GNP.

26Mr. Kozlowski directed the Tribunal to s. 1.1.6.4 of the PPS which states that, in areas adjacent to and surrounding municipalities, only development that is related to the sustainable management or use of resources and resource-based recreational uses (including recreational dwellings) shall be permitted. It was his opinion the application met this threshold.

27No evidence on the PPS was advanced by Ms. Poirier.

ISSUE 1. Does the ZBL 2020-111 and the proposed "Sports Barn" conform to the Township of Seguin Official Plan including policies A.2.2.1 Goal, A.2.2.2.Objectives, B.16 Community Facilities, C.3.1 Shoreline Areas, C.3.1.3.10 Waterfront Design, C.3.1.3.11 Waterfront Building Design, C.3.1.3.12 Protecting the Character of Shoreline Areas, C.3.1.3.13 Waterfront Site Design, F.1 Plan Implementation and Interpretation, F.1.1 Zoning By-laws and F.1.4?

28Mr. Kozlowski provided contextual evidence and an overview of his planning policy analysis leading to his conclusions and recommendation to the Township Council that the applications be approved. In his opinion the ZBLA is consistent with the Provincial Policy Statements both 2014 and 2020, conform to the Official Plan and has proper regard for the matters set out in the parent Zoning By-law No. 2006-125. Mr. Kozlowski stated he had not changed his opinion from those authored in his original report and subsequent report to Council.

29Mr. Szczerbak opined that the proposed structure conforms to the Goal (A.2.2.1) and specific Objectives (A.2.2.2) for the Waterfront Area designation. These regulations he explained ensure the character of the waterfront designation is maintained, in accordance with the policy direction contained in the Official Plan.

30He noted that accessory structures are appropriately permitted and regulated within the Comprehensive Zoning By-law (“CZBL”). He explained that only variance required for this application is maximum height. Based on the direction from staff, it was agreed that the intended “use” be defined to ensure it could not be used for any other purpose.

31Ms. Poirier stated the proposed Sports Barn does not protect the character of the area nor does it protect the recreational, social, and environmental experiences nor does it reflect the unique character of Lake Joseph.

32Objectives A.2.2.2 c), d) and e) Mr. Szczerbak stated, are not applicable as there is no known or identified natural features or flooding and erosion hazards on the subject property. He identified that the redevelopment of private property, including the demolition and reconstruction of existing accessory buildings will not increase municipal servicing costs. As a result, he concurred with Mr. Kozlowski’s staff report that the proposed development will maintain the Goals of the OP.

33Ms. Poirier opined that under the Objectives of A.2.2.2 a) and b) the structure will result in an unnatural scar on the natural landscape and skyline of the waterfront character. The intensity of use as described in the application and the density which is more intense than the primary use offends the objectives of the Official Plan to protect the visual quality of the lake.

34In addressing Policy B.16, Mr. Szczerbak emphasized that the Sports Barn is not meant to be a community facility because it is located on private property and solely meant for private use.

35He went on to say that the proposed structure conforms to the Shoreline Area policies contained in s. C.3.1. In particular, to s. C.3.1.3.10 (Waterfront Design), C.3.1.3.11 (Waterfront Building Design), C.3.1.3.12 (Protecting the Character of Shoreline Areas and C.3.1.3.12 (Waterfront Site Design). Policy C.3.1.3.10 provides a general policy direction to address the relationships between the built form on the natural environment and the lake environment. This proposal, in his opinion including the revised and relocated structure has considered every aspect of the policy direction.

36Section C.3.1.3.12 provides the policy direction, including a description of the shoreline areas throughout Seguin Township. Mr. Szczerbak pointed out the revised proposal places the proposed structure where an existing accessory barn is located. Both the existing barn and the proposed structure will not be seen from the shoreline area and the existing tree buffer between the neighbouring property. Additional plantings during the site plan application, he assured, will be applied.

37Ms. Poirier advised the proposed Sports Barn is not functionally, physically or socially focused on the water; it is focused on large scale dry land recreational use more in keeping with an urbanized community believing it will offend the visual qualities of the waterfront, namely the natural vegetation and tree lined skyline, and will not maintain the character of the Shoreline Area.

38She spoke to C.3.1.2 Permitted Uses the Official Plan which contemplates low density use in the Shoreline Area with respect to the permitted Residential use. She opined that it is fair to apply the “low density” nature of development to accessory uses. She stated that given its size, the related vegetation removal, and all of its proposed uses, transforms the use of the lands from “low density” the Sports Barn is more akin to Institutional Zone uses.

39Mr. Szczerbak stated that the proposal conforms to s. F.1.1 when considering the proposed exemptions required for this application and that s. F.1.4 will be appropriately addressed when the required site plan application has been received and appropriately reviewed by staff. He further pointed out that the appealed By-law No. 2020-111 (Schedule B, Column 6) includes wording to require a future site plan control application.

40Ms. Poirier stated based on her forgoing analysis of applicable Official Plan policies, the proposed Sports Barn and Zoning By-law No. 2020-111 do not conform to the OP and therefore should not be allowed.

41The Applicant provided the Tribunal with an overview on the intended use of the Sports Barn as contributing to the year round use and enjoyment of his property by family and friends.

42The Tribunal prefers the testimony of Mr. Szczerbak. The revised application and relocated structure has considered the necessary setbacks from the water and neighbouring properties; will not increase municipal servicing costs and through the site plan process will identify species and number of plantings to be included to a level acceptable to the Township.

43The Tribunal having been taken through the visual evidence which identified accessary structures of many sizes and elevations on neighbouring properties, is satisfied that the proposal will be incorporated into the existing landscape and buffered from the waterbody.

44The Tribunal is further satisfied, after hearing the testimony of the Applicant, that the use of the Sports Barn is a year-round place of enjoyment for the sole and private use of the Applicant, his family and friends. The Tribunal disagrees with Ms. Poirier that its proposed use, transforms the use of the lands from low density to Institutional Zone.

ISSUE 2. Does ZBL 2020-111 and the proposed "Sports Barn", under the direction of the Township of Seguin Official Plan, comply with the overall spirit and intent of the Township of Seguin Zoning By-law, including sections 4.1, 4.1.1.b), 4.1.3, 4.1.4, 4.1.6, 4.1.11, 4.15, 5.2, 6.1, 6.2, and 6.3, and Tables 6.1 and 6.2.?

45Mr. Szczerbak opined that the Sports Barn fully complies with the CZBL, specifically the listed provisions found in Section 4.1 – Accessory Structures. Section 4 of the Comprehensive Zoning By-law provides specific provisions for Accessory Building, structures and uses.

HUMAN HABITATION

46Sections 4.1.1 b) and 4.1.11 prohibit the use of any accessory structure for human habitation by including a “habitable room”. This term is defined in the CZBL by:

Habitable Room means a room designed for living, dining, sleeping, kitchen, or washroom facilities, for persons. This definition may include a den, library, vestibule, entry, hallways or enclosed sunroom but shall not include any private garage, carport, porch, verandah, unfinished attic, unfinished basement or unfinished cellar.

47Mr. Szczerbak stated By-law No. 2020-111 included a specific definition to ensure the proposed use is clearly defined and to ensure the building does not contain a habitable room. In addition, the interior layout of this building was submitted to assist with Council’s consideration.

48Ms. Poirier stated the facilities proposed for the Sports Barn includes a washroom and a bar area and sink and as such fits the definition of habitable room in the ZBL. The proposed “Sports Barn” as described includes a habitable room and By-law No. 2020-111 does not include any provision to prohibit such use and therefore does not comply with the parent zoning by-law.

HEIGHT AND MASSING

49Section 4.1.4 (Building Height, Accessory Structures) requires accessory buildings to be 4.5 m except as otherwise permitted. Mr. Szczerbak explained that an existing non-complying (for height) barn currently exists in the same general footprint as the proposed accessory structure. The current, non-complying height of the barn is 5.6 m (18.4 feet), in accordance with the by-law definition of height. The actual height of the structure is 7.3 m (24 feet).

50He informed the Tribunal that the application was submitted to request an increase in height of the sports barn to 6.7 m to the midpoint of the main roof as the design of the structure included a “clerestory” (architectural) roof feature. According to the zoning by-law, the actual height of the structure is 9.4 m (30.8 feet).

51He further advised, the zoning by-law regulates massing and the size of permitted accessory structures, by lot coverage, height and setbacks to property lines. No variances have been requested to these provisions, with the exception of height. Impacts have been appropriately addressed by significantly increasing the minimum setback requirements to the shoreline and neighbouring property. The side yard setback to specifically address the concerns from the neighbour to the east which he noted is currently vacant. Setbacks to the water were significantly increased, thereby eliminating impacts from the “view from the canoe” or when viewing the property from the water. Staff agree with this opinion.

52He stated the proposal exceeds this minimum amount of parking as per s. 5.2 and that the proposal would comply with the intent of s. 6.1, 6.2, 6.3 and Tables 6.1 and 6.2 of the Township Zoning By-law.

53Ms. Poirier opined that the Sports Barn will be almost twice the permitted height, located on an elevated portion of the property, and will present with significant size and massing, will change the skyline and forever.

54Similarly, she stated, the removal of vegetation for constructing, locating and accessing the Sports Barn will result in a detrimental mark on the skyline and viewed from the Lake and all surrounding perspectives.

55In her professional opinion, the proposed Sports Barn is not “accessory” to the principle residential use of the LSR zone or the existing principle residential use but rather is a stand-alone community type facility that will be used by persons other than those residing on the property.

56She stated that site plan control and increased setbacks are not sufficient enough to mitigate the impacts of the intensity of use of the Sports Barn which she believes will result in increased traffic, noise, lighting, and removal of vegetation that will not provide adequate buffering from these impacts nor views from the lake or side yards. The recreational aspect of the Sports Barn is in no way related to the waterfront and includes facilities having the potential and capacity for use by more persons than a typical group of family and friends.

57The provisions of the proposed ZBLA, in her professional opinion, does not maintain the overall spirit and intent of the provisions of the parent zoning by-law that stated was designed to implement the policies of the Township of Seguin Official Plan.

58The Tribunal is satisfied that the Township has included in By-law No. 2020-111 a specific definition to ensure the proposed use is clearly defined which will comply with the overall spirit and intent of the Township of Seguin Zoning By-law.

59Along with specific definition within the by-law, the Tribunal considered the sworn testimony of the Applicant, who described the need for a washroom and a bar area with sink as a convenience when using the sporting facilities, no foundation has been provided that the washroom or bar sink will be associated with habitable use.

60The Tribunal is further satisfied that there is sufficient parking for the accessory structure on site and the structure will be sufficiently set back from the Appellant’s property as to mitigate any traffic associated noise should there be any.

61The Tribunal accepts the testimony of Mr. Szczerbak and the planning report of Mr. Kozlowski in determining height, mass and setbacks. The Tribunal believes that the application was vetted through an appropriate public process and as a result, the Applicant has made changes to the initial submission based on comments received. Further, the Tribunal through the visual evidence provided is satisfied that the impact on the “view from the canoe” will be maintained as it would be with any accessory structure associated on similar lots around the lake. As this is a site-specific request, the Tribunal is of the opinion there will be no precedent setting standard.

ISSUE 3. Does ZBL 2020-111 represent good planning and is it in the public interest?

62Mr. Szczerbak maintains that recreational residential uses are the main permitted use in the waterfront designation. The accessory use will provide a space for the immediate and extended family and friends to recreate on the same property over four seasons. The proposal enhances the economic viability of the Town, by hiring local builders and other trades to redevelop the property and increase the value of the property that equates to an increase in taxes collected by the Township. The proposal is in the public interest as it is not creating a new use that is uncommon to waterfront recreational properties throughout Seguin and Muskoka.

63Ms. Poirier, she does not agree with Mr. Szczerbak. She opined the size of the structure is more massive than the maximum permitted size for the principle permitted use and therefore is not accessory to the principle use and is contrary to the intent of the policies to control density of the Shoreline Area. It was her opinion that the described use and facilities are more in keeping with a community recreation centre and not a use related to the water or a residence. The structure and use are not in character with structures and uses in the waterfront which will have impacts on the character, views, and the uses of neighbouring properties.

64The Tribunal prefers the opinion of Mr. Szczerbak. Having brought the Tribunal through the justification for the variance in height, setbacks and planned use of the structure the Tribunal agrees with Mr. Szczerbak and the former Township Planner that a new use is not being created and that the proposed recreational use is not uncommon to waterfront properties throughout Seguin and Muskoka.

65The Tribunal having heard the Applicant’s testimony on the reason for the height increase which is due to the addition of an architectural Clerestory upper roof design feature, and having heard evidence of the already existing 7.4m existing barn, sees the request for an ornamental feature that forms part of the building design and purpose as being reasonable. The Tribunal also prefers Mr. Szczerbak testimony that the setbacks from the Nullmeyer property line are sufficient and have been suggested and vetted by Planning staff and deemed appropriate.

ISSUE 4. Will the size and massing of the proposed "Sports Barn" have an impact on neighbouring properties and the "view from the canoe"?

66Both Mr. Szczerbak and Mr. Kozlowski, opined that the massing and size of the proposed structure will not have an impact on the neighbouring properties, especially the “view from the canoe”. The ZBL regulates massing and the size of permitted accessory structures, by lot coverage, height and setbacks to property lines (yards). Both agreed that no variances have been requested to these provisions, with the exception of height. The original location of the proposed structure was moved further back from the shoreline and the side yard setback to specifically address the concerns from the neighbour to the east. It was noted that that property is currently vacant. Setbacks to the water were significantly increased, thereby eliminating impacts when viewing the property from the water. Staff agreed with this opinion through the planning justification report.

67Ms. Poirier opined that the Sports Barn will be almost twice the permitted height, located on an elevated portion of the property, and will present with significant size and massing, will change the skyline and forever be a landmark on the north shore of Lake Joseph. This will impact on the neighbours, and views from the water offshore. Similarly, the removal of a significant swath of vegetation for constructing, locating and accessing the Sports Barn will result in a detrimental mark on the skyline and viewed from the Lake and all surrounding perspectives.

68The Tribunal prefers the testimony of Messrs. Kozlowski and Szczerbak who illustrated the “view from the canoe” through drone videos and photos presented in evidence. The same videos were presented to Council to assist in placing context on the site. Ms. Poirier placed a significant amount of emphasis on the structure being seen from the water. Having viewed the videos and photographs and with the Tribunal’s understanding of the site vegetation, the Tribunal is satisfied that size and massing will not have a negative impact on neighbours’ enjoyment of their property or the view from the canoe.

ISSUE 5. Are the proposed setbacks for the "Sports Barn" sufficient?

69Mr. Szczerbak stated the proposed setbacks exceed the minimum requirements and are sufficient. Staff agree with his opinion in the planning reports.

70Ms. Poirier opined; the proposed side yard setbacks are not sufficient to mitigate the impacts on to mitigate noise and impacts on views and do not take into account the additional area of vegetation removal that will occur that will be over and above the area of the structure itself. The proposed side yard setbacks compromise the future development of the Nullmeyer property directly to the east and are not proportionate to the height.

71The Tribunal disagrees with Ms. Poirier and Mr. Nullmeyer that the future development of the Nullmeyer property rests solely on the setbacks requested by the Applicant. The Tribunal notes that the Applicant revised the setbacks based on the public planning process undertaken. The Tribunal supports the planning justification and staff reports as per Mr. Kozlowski evidence and testimony.

72As addressed in Issue 2, the Tribunal finds that the washroom and bar sink will be utilized as an accessory to the sports and gatherings in the Sports Barn and will not for use for habitation.

ISSUE 7. Is the proposed "Sports Barn" a properly "accessory" use in a residential zone?

73Mr. Szczerbak stated the proposed building and defined use is a proper “accessory” use in the current residential zone.

74Ms. Poirier opined that the Sports Barn is not a proper “accessory” use in a residential zone, especially not in a Shoreline residential zone as it is excessive for a single residential development and that use combined with the mass of the structure are more properly: (a) a primary use; (b) in a community designation and a commercial or institutional zone. With respect to the “Sports Barn” being properly “accessory” she noted that the site plan provides for parking areas and direct vehicular access to the “Sports Barn” from Port Cockburn Road. It was her position that the Sports Barn is to be used and accessed by persons other than those residing or staying at the residential property and in her opinion is then a stand alone use and NOT “accessory” to the residential use or the waterfront and is more akin to an institutional use.

75The Tribunal having a heard the planning evidence agrees with Mr. Szczerbak that the proposed Sports Barn will have a supplementary use to the residential component of the property. The Tribunal disagrees with Ms. Poirier that this structure will be utilized as a community designation and would be better suited to an industrial or commercial zone.

ISSUE 8. Does the ZBLA and the proposed development have regard for the Township of Seguin Guidelines for Waterfront Design, including section 3.6?

76The Tribunal was taken to s. 3.6 of the Township of Seguin Guidelines for Waterfront Design. Although this document does not have any legal or statutory obligations to be considered in a Planning Act application, it was acknowledged by both Planners that it can assist with the assessment of a proposal to ensure conformity to several general policy directions. It provides a series of “best practices” within waterfront and site design considerations to ensure a proposal maintains and preserves the waterfront character.

77Section 3.6 provides guidance to protect and maintain the understory vegetation for a healthy forest. Mr. Szczerbak informed the Tribunal the application does not propose to remove the understory on any portion of this large property, outside of the developed areas and those areas regulated under site plan control. Site plan control is the appropriate planning tool to addresses these guiding principles. This section mainly focuses on the shoreline yards and maintenance of shoreline buffers. He reminded the Tribunal that this proposal is 178 m away from the lake on the subject property and approximately 123 m from the closest point of the shoreline on the neighbouring property.

78Ms. Poirier stated s. 3.6, the proposed structure will result in the removal of almost 800 sq m of vegetation for the structure alone and an unknown amount of vegetation, including mature trees, for construction access and ongoing access, perhaps even parking given the proximity of the structure to both Port Cockburn Road and Grays Road. Design Guidelines developed within the context of Official Plan policies are for the waterfront as a character area and not just intended to protect that area right at the shoreline. The Shoreline Area designation is identified, and policies are in place to protect the character, integrity, views, the natural environment and the enjoyment by those who live there beyond the shoreline or riparian zone itself. The Shoreline Area is a distinct community and the proposed size, use and necessary vegetation removals required by the “Sports Barn” are not appropriate or conducive to the policies to protect and enhance that community.

79The Tribunal recognizes the importance of the protection that s. 3.6 in the Waterfront Design Guidelines places on the understory vegetation on lands within Seguin Township. The Tribunal encourages the Applicant to work cooperatively with the Township to support the continued health of forest ecosystems and buffers along lot lines through the Site Plan Control process.

Planning Analysis

80It is Ms. Poirier's opinion that the size and height of the proposed Sports Barn is out of character with the area and imposes a visual distraction to views from the canoe. 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. Szczerbak show a typical mix of these types of developments within the area of the subject property that include boat storage and two-story buildings and accessories. In this instance the existing barn on the subject property is protected by trees giving it a large screen allowing it to blend in the environment.

81Ms. Poirier also opined that the size of the proposed Sports Barn, given the general size of the cottages in the area, should not be accepted.

82Exhibit 4 Visual Evidence Volume 1, pg. 5 illustrates a topical view of the shoreline and identifies the proposed location of the Sports Barn setback from the waters edge and side yard lot line. It provides a topographical view of the vegetation and identifies the break in the vertical rock face with a reasonable section of natural sloped property to access the lakefront. The existing dwelling is identifiably elevated from the lakefront and the water.

83The photos and drone video provided a painted picture with respect to the visibility of the location (currently the barn location) on which the proposed Sports Barn will be located. In Exhibit 7 – the Drone Video - the existing barn is barely visible, and it was hard to judge any sense of size and scale from the waterfront due to a combination of the tree line and general tree cover. 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 Sports Barn to be acceptable.

84The Tribunal finds that the proposed Sports Barn is well set back from both the side yard lot line in a location that has minimal affect on the existing vegetation, while preserving the natural vegetative buffer along Lake Joseph’s natural shoreline.

85The Tribunal agrees with the opinion evidence of Mr. Szczerbak, in all respects and finds that the proposed Sports Barn will not dominate the natural environment, nor will it a physical distract from the view from the canoe.

86The Tribunal has carefully considered the issues raised by the Appellants and the whole of the planning evidence, as provided by the Applicants and supported by the Town’s planning recommendations. Further the Tribunal has had regard for the statements submitted by the Participants and has weighed them accordingly in this decision. Upon the whole of the evidence, and the above-mentioned findings of consistency and conformity, the Tribunal finds that the proposed Sports Barn, as it will be permitted by the ZBLA as enacted by the Township Council, is consistent with the PPS, conforms to the Northern Growth Plan, conforms to the Township OP, represents good planning in the public interest and should accordingly be approved.

ORDER

87The Tribunal orders that the appeal is dismissed.

“D. Chipman”

D. CHIPMAN

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.