Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
September 28, 2021
CASE NO(S).:
PL180564
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
The Beaumont Trust and Andrew Rivkin
Subject:
Application amend Zoning By-law No. 080-13 - Refusal of Application by Town of Innisfil
Existing Zoning:
Residential 1 Waterfront (R1-W) Zone
Proposed Zoning:
Residential 1 Waterfront Exception (R1-W-50) Zone
Purpose:
To permit an in-water boathouse
Property Address/Description:
3567 Crescent Harbour Road
Municipality:
Town of Innisfil
Municipality File No.:
D14-2017-007
OLT Case No.:
PL180564
OLT File No.:
PL180564
OLT Case Name:
The Beaumont Trust and Andrew Rivkin v. Innisfil (Town)
Heard:
March 22, 2021 by video hearing
APPEARANCES:
Parties
Counsel
The Beaumont Trust and Andrew Rivkin
David Neligan and Leo Longo
The Town of Innisfil
Chris Barnett
Lindsay Histrop and Richard Martin
Sarah Hahn
DECISION OF THE TRIBUNAL DELIVERED BY JATINDER BHULLAR
1This hearing was regarding an appeal by The Beaumont Trust and Andrew Rivkin (“Beaumont”) from the refusal of the Town of Innisfil (the “Town”) to approve an application to amend Zoning By-law No. 080-13 (the “ZBL”) as it pertains to the property located at 3567 Crescent Harbour Road (the “subject property”).
2The purpose and effect of the proposed Zoning By-law Amendment (“ZBA”) is to re-zone the subject property from Residential 1 Waterfront (R1-W) Zone to Residential 1 Waterfront Exception (R-1-50) Zone, to permit an in-water boathouse. Municipal planning staff recommended that the application be approved but the Town originally refused the ZBA but subsequently approved a modified proposal. At this hearing Beaumont and the Town appeared together having reached a settlement and having executed minutes of settlement. As a result, the only party at this hearing in opposition to the settlement was Lindsay Histrop and Richard Martin (“Histrop”).
3The hearing was conducted under a Procedural Order (“PO”) previously issued by the Tribunal on December 4, 2020. The Tribunal received written closing submissions from all parties over a period ending on April 9, 2021.
BACKGROUND
4Beaumont has an existing dock at the subject property. Beaumont sought the Town’s approval to build a boathouse over the existing dock while the boathouse will be away from the shoreline and over the water. Beaumont believes that the boathouse is as-of-right, uses an existing structure of a dock for efficient use and is appropriate in location and size given their land lot size
5Histrop objects to the proposed boathouse among other grounds on the basis that the boathouse is an overbuild that affects theirs and other neighbours’ ability to enjoy the lake, does not maintain the intent and purpose of the ZBL, obstructs vistas, causes safety impacts on near shore kayaks and like uses, and potential negative impact on fish and like water borne life habitat.
6All parties agreed that participants have a right to be heard as the original PO governing this hearing was issued prior to September 3, 2019 and it allowed for oral submissions by participants. The Tribunal allowed oral submissions by Tim Clark, David Colacutt, Deborah McGrath and Robert Younger for a duration of ten minutes each. A total of ten minutes of cross-examination was allowed for each of the participants divided equitably between the two parties and the Town.
EVIDENCE AND ANALYSIS
7Beaumont called Jamie Robinson to provide expert opinion evidence in the area of land use planning. Beaumont’s second witness was Bruce Pinchin who provided expert opinion evidence in the area of coastal engineering.
8Histrop provided evidence on their own behalf. Histrop also called two experts, Michael Wynia to provide expert opinion evidence in the area of land use planning and Dr. Bahar SM to provide expert opinion evidence in the area of coastal engineering.
9When considering a proposed ZBA, the Tribunal must consider each of the following tests set out in the Planning Act (“Act”), to determine whether the ZBA:
a. has regard for the Provincial interest;
b. conforms to the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”);
c. conforms to the Lake Simcoe Protection Plan;
d. is consistent with the Provincial Policy Statement, 2020 (“PPS 2020”);
e. conforms to the Simcoe County Official Plan;
f. conforms to the Town Official Plan;
g. maintains the general intent and purpose of the zoning by-law; and
h. is desirable for the appropriate development or use of the land.
TOWN OFFICIAL PLAN
10Mr. Robinson opined that the proposed boathouse is a permitted use. The participants raised concerns that the existing boathouse where jet-ski type equipment is stored is not an accessory building but a boathouse where simply the rails have been removed. Since only one boathouse is allowed in the ZBL, they submitted that the planned new boathouse cannot be allowed. Beaumont submitted that it is an accessory building and a boathouse plus an accessory building is allowed in the ZBL. Mr. Robinson further added that the PPS 2020 allows for residential development accessory uses and the Growth Plan supports resource-based recreation uses.
11Mr. Robinson reviewed the Lake Simcoe Protection Plan (“LSPP”) and opined that the most applicable Section of the LSPP is Section 6.8-DP. Mr. Robinson added that Section 6.8-DP permits in-water structures in Lake Simcoe provided that the development:
a. Does not impede natural flow of water along the shoreline;
b. Is not intended to be used as a dwelling; or,
c. Does not harmfully alter fish habitat.
Mr. Robinson concluded that based in part on the expert opinion of Mr. Pinchin, the proposal fully conforms with the LSPP direction consistent with Section 6.8-DP.
12Mr. Robinson opined that the Town Official Plan under policy 3.3.3 allows and treats boathouse as an accessory to single detached dwelling.
13Mr. Robinson opined that the boathouse is in character given the large lot size and being 13.2 metres (“m”) wide on a 90 m wide lot shoreline. The ZBL allows 12 m or 25% of lot frontage, whichever is less. Mr. Robinson added that the natural environment dominates the built area with additional 3 m vegetation greening strip now planned versus the original proposal. Mr. Robinson added that the boathouse height has also been reduced to 3.7 m above the dock plate which is about 2 feet (“ft”) above the highwater mark. This 3.7 m plus 2 ft compares with the 5m allowed in the ZBL. Histrop submitted that since the height appears to be linked to dock surface, the true height measurement above average high watermark may be increased during construction. Mr. Robinson stated that the height assignments are embedded in the agreement between Beaumont and the Town.
14In summary, Mr. Robinson opined that this all adds up to lesser impact both visual and massing on neighbouring docks and boathouses and the shoreline south of the proposed boathouse. He added that in consideration of land use planning, the proposed boathouse conforms with the PPS 2020, the Growth Plan, the Lake Simcoe Protection Plan, the County Official Plan and the Town Official Plan.
15Mr. Pinchin provided coastal engineering assessment on behalf of Beaumont. He opined that the boathouse being built on top of an existing dock creates no additional or incremental impacts. Mr. Pinchin further opined that he has not observed any significant change in sand, microphytes or other visible fish or organism impacts. In terms of ice impacts, Mr. Pinchin opined that these get worse closer to the shore, but he does not see major impact vis-a-vis safety of the proposed boathouse.
16Dr. SM for Histrop opined that the structure and the dock foundation will create local impacts in water circulation around the dock supports and specially if these were to be further fortified with steel plates in the water. He also added that the boathouse structure would impact wind waves causing reduction in oxygen supply to organisms and the associated fish habitat. Mr. Bahar also added that this would lead to increased algae and plant growth issues.
17Mr. Wynia addressed land use planning on behalf of Histrop. Mr. Wynia opined that the existence of a dock has no bearing on the merits of this application. Mr. Wynia opined that this is a haphazard approach versus a comprehensive development on a planned basis. Mr. Wynia opined that the ZBL never envisaged any boathouses not connected to the land. He further added that the ZBL relates directly to land and has no way of relating to relief or heights determined from a dock surface. Mr. Wynia added that the boathouse does not sufficiently minimize impacts on the community and immediate neighbours to the south. He compared the fixed planned boathouse to other structures in nearby water like the “dock in the box” deployed by Beaumont to keep shoreline minimally impacted.
18Mr. Wynia addressed the issues of proper support and maintenance of the proposed boathouse including the degeneration of the breakwater where stones have dispersed towards the Histrop’s property. Mr. Wynia stated that when you harden a shoreline it creates safety hazards and limits open spaces for enjoyment by the neighbours. This matter was also raised by Mr. Martin in his oral submission.
19Mr. Wynia opined that with respect to issues the proposal will create high level of activities impacting water quality, Mr. Wynia pointed to general deficiencies in Beaumont’s application supporting materials, studies, etc.
20Mr. Wynia concluded that the proposal does not represent good land use planning, is out of character and not in public interest.
21The participants expressed opposition through examples of how shoreline gets damaged by ice, creation of weeds by the existing large dock and how the boathouse will impact the visual impacts like observing sun sets and sharing of such visuals.
22The Tribunal finds that there are possible impacts on neighbours, particularly to the south side of the dock. The size and scope of the proposed boathouse while not typical of the general area, however, based on a review of all the evidence before it, the Tribunal finds is appropriate in the context of the property that it emanates from.
23The Tribunal has previously established that connection to land to vary a ZBL is not essential as the Town has the ZBL apply to the structures like the proposed boathouse whether connected to shore or not.
24The Town has authority to also, as appropriate, on application review and authorize amendments to a ZBL if it so suitably determines. In this case the Town staff originally recommended approval and continued to recommend approval of the revised boathouse proposal now agreed to between the Town and Beaumont.
25The Tribunal finds that Dr. SM’s assessment lacked specificity and were more representative of apprehensions or educated speculations. The Tribunal prefers the evidence of Mr. Pinchin which is specific and direct and concludes that there will be minimal impacts due to the boathouse from coastal engineering perspective.
26Based on a consideration of all evidence before it, the Tribunal finds that the Beaumont proposal conforms with the Town’s Official Plan and the upper level plans and policies and has regard for the provincial interest per the Act.
ZONING BY-LAW
27The ZBL allows an accessory structure and a boathouse in the area allowed under the ZBL. Beaumont submitted and Mr. Robinson opined that there were one of each at the subject property inclusive of the new boathouse.
28The participants and Histrop submitted and maintained that the original boathouse with rails removed is only an accessory structure only in name. They further added that it perhaps can be easily returned to be another boathouse on the property with little effort. Beaumont submitted that it was not so, and Beaumont will continue to use it as an accessory structure.
29The other differences between the opposing parties is the number of changes and their magnitude as embedded in the ZBA versus what is allowed in the ZBL. However, the Tribunal finds that these changes are have relatively little impact when the requested changes are considered in context as follows:
a. A maximum height of 3.7 m (+ 2 ft from high water mark) for the boathouse while 5 m is allowed;
b. A minimum setback of 13.6 m for a boathouse from the extension of the south lot line;
c. A maximum width of 13.3 m for a boathouse while 10 m is allowed;
d. A maximum length of 13.0 m for a boathouse while 10 m is allowed;
e. A maximum projection beyond the shoreline and into the water of 16.1 m for a boathouse while 10 m is allowed.
30Mr. Robinson opined that the changes agreed to between the Town and Beaumont are appropriate and reasonable given the extended very long shoreline and size of the property.
31In terms of the nearness of the boathouse from the south boundary demarcation between the properties of Histrop and Beaumont, Mr. Robinson opined that added restrictions on the south side having no openings for boat travel compensates for the minor separation discrepancy.
32Having considered all the evidence and submissions, the Tribunal finds that the requested ZBA maintains the intent and purpose of the ZBL.
CONCLUSION
33The Tribunal having reviewed the submissions of Histrop and the evidence of their experts the Tribunal prefers the expert evidence of Mr. Robinson versus that of Mr. Wynia. The Tribunal also similarly prefers the evidence of Mr. Pinchin as compared to the evidence of Dr. SM. In due consideration thereof, the Tribunal denies the request of Histrop to disallow or vary the settlement presented by Beaumont and the Town.
34The Tribunal has regard for the decision of the Town council and the material it had before it when it made its decision. Based on the testimony of experts and weighing all the evidence before it, the Tribunal finds that the proposal meets all the statutory tests and consequently represents good planning allowing for the fulfillment of recreational enjoyment and associated activities while mitigating and minimizing any negative effects proactively through enhancing and maintaining the shoreline as per the agreement between Beaumont and the Town.
ORDER
35The appeal is therefore allowed in part and Zoning By-law No. 080-13, is amended in accordance with Attachment 1 to this order. The appeal is otherwise dismissed.
36Should any difficulties arise implementing this order, the Tribunal may be approached
“Jatinder Bhullar”
JATINDER BHULLAR
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.