Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 28, 2022
CASE NO(S).: OLT-22-001912
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Norm Seeney
Subject: Application to amend Zoning By-law No. RU-280(H)-Refusal of Municipality to amend the appeal
Existing Zoning: Environment Constraint
Proposed Zoning: Site-specific
Purpose: To permit shoreline residential zoning in wetland zone.
Property Address/Description: Concession 10, Lot 12, Chandos Ward
Municipality: Township of North Kawartha
Municipality File No.: ZA-06-21
OLT Case No.: OLT-22-001912
OLT File No.: OLT-22-001912
OLT Case Name: Seeney v. North Kawartha (Township)
Heard: October 25, 2022 by video hearing
APPEARANCES:
Parties Norm Seeney ("Applicant/Appellant") Township of North Kawartha ("Township")
Counsel Jennifer Savini Nima Chooback John Ewart
MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE ON OCTOBER 25, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal for consideration is an appeal filed by the Appellant against the decision of the Corporation of the Township of North Kawartha (the "Township") Council, in relation to a Zoning By-law Amendment (the "ZBLA") from Zoning By-law No. 26-2013, as amended (the "ZBL") concerning Concession 10, Part Lot 12 in the Chandos Ward (the "Subject Property").
2The purpose and effect of the ZBLA application is to permit the rezoning of a portion of the Subject Property from the Environmental Constraint ("EC") Zone and Rural (RU) Zone to the Shoreline Residential (SR) Zone. The affected lands are measured to be approximately 3.29 hectares ("ha") (8.15 acres). Part of the intent of this amendment application is to adjust the boundaries of the EC area to more closely fit with the extents of the identified wetlands and increase space for future residential development of a seasonal dwelling and dock.
HEARING
3The John Ewart, counsel for the Township advised the Tribunal that following the Case Management Conference held on August 25, 2022, the Parties continued negotiations which resulted in a settlement.
4The Applicant Document Book was marked as Exhibit 1. The Affidavit of Planner Greg McGovern was marked as Exhibit 2 and the final ZBLA was marked as Exhibit 3 (see Attachment 1).
5On consent of the Parties, Mr. McGovern was qualified by the Tribunal to give to give expert opinion evidence on land use planning.
SUBJECT PROPERTY
6The Subject Property is a forested and undeveloped 6.86 ha (16.95-acre) parcel currently being used for recreational purposes. Approximately 0.69 ha (1.7 acres) of the Subject Property is designated EC. Site topography presents downward sloping terrain towards a large wetland and an unnamed inlet of Chandos Lake, which are both situated in the south half of the property.
ZONING BY-LAW AMENDEMENT
7The majority of the Subject Property is zoned RU, with a portion closest to Chandos Lake being zoned EC Zone. However, the property maintains no frontage on a public road, rather fronting on Knox Point Road and Bay View Lane, both of which are private roads. Therefore, the only permitted use under the Township's ZBL at present is a recreation camp. The Applicant is seeking a ZBLA to rezone a portion of the Subject Property to the SR Zone, which permits a seasonal dwelling without requiring frontage on a public road, as well as a dock. The ZBLA also seeks to refine the EC Zone to reflect the natural heritage conditions as documented in the ElS prepared by Sumac Environmental Consulting Ltd. dated January 4, 2021 and submitted with the application for rezoning.
LEGISLATIVE TEST
8In making a decision with respect to a ZBLA, the Tribunal must consider s. 24 (1) of the Planning Act ("Act"). Despite any other general or special Act, where an official plan is in effect, no public work shall be undertaken and, except as provided in subsections (2) and (4), no by-law shall be passed for any purpose that does not conform therewith.
PLANNING EVIDENCE
Provincial Policy Statement ("PPS")
9Mr. McGovern highlighted Section 1.1.5 Rural Lands in Municipalities and Section 1.1.5.2.) in the Planning Report. On rural lands located in municipalities, permitted uses are: b) resource-based recreational uses (including recreational dwellings).
10In Mr. McGovern's opinion the application is consistent with the PPS.
A Place to Grow: Growth Plan for the Greater Golden Horseshoe (Growth Plan)
11Mr. McGovern highlighted Section 2.2.9 Rural Areas of the Growth Plan in the Planning Report. Section 2.2.9.4 - Where permitted on rural land, resource-based recreational uses should be limited to tourism-related and recreational uses that are compatible with the scale, character, and capacity of the resource and the surrounding rural landscape, and may include: b) where appropriate, resource base recreational dwellings for seasonal accommodation.
12In Mr. McGovern's opinion, the application is consistent with the Growth Plan.
Peterborough County Official Plan ("OP")
13Counsel for the Township Mr. Ewart, explained the Township of North Kawartha does not have its own OP and therefore, relies on the Peterborough County OP.
14Mr. McGovern highlighted section 6.2.15.1 of the OP in his Affidavit. The section states, "the Environmental Constraint Area designation includes those lands having inherent environmental hazards such as flood or erosion susceptibility, poor drainage, organic soils, instability or any other similar physical characteristic or limitation and includes other non-provincially significant wetlands which, if developed upon, could result in the deterioration or degradation of the environment and cause property damage or loss of life".
15In Accordance with Section 6.2.15.3(c) of the OP "It is not the intention of this Plan that Environmental Constraint areas will necessarily remain undeveloped indefinitely, are free and open to the general public or will be purchased by the Township. An application to redesignate Environmental Constraint areas for other purposes shall require an Environmental Impact Assessment, prepared by a qualified professional for consideration by the Township in accordance with Section 4.1.3.1."
16In Mr. McGovern's opinion, the application conforms to the OP.
Comprehensive Zoning By-law
17In Mr. McGovern's Affidavit he advised the Subject Property is currently split zoned between the RU Zone and the EC Zone, and these zoning designations are depicted in Schedule A-11 of ZBL No. 26-2013.
18In accordance with Section 17- Rural Zone of ZBL No. 26-2013, a dwelling house is listed as a permitted use. However, Section 3.2 - Frontage Regulations, directs that no person shall erect any building or structure unless the subject lot abuts a street, which is defined as a public thoroughfare assumed by-law for ownership, maintenance and liability and under the jurisdiction of the Township of North Kawartha, the County of Peterborough or the Province of Ontario.
19The Subject Property does not abut a municipally maintained street and therefore no building or structure may be erected on the lot unless that structure is a Recreation Camp; exempted under Section 3.2 (b) . However, Section 17.2a of the ZBL directs a minimum lot are of 20 ha (50 acres) for a recreation camp, and furthermore, a recreation camp is not considered a dwelling and is defined as a building having a net floor area of less than 139.4 square meters and intended to provide temporary accommodation.
20In accordance with Section 16 of the ZBL No. 26-2013 the EC Zone allows for a conservation use and a flood control use and does not allow any form of residential use.
21In accordance with Section 6 - Shoreline Residential Zone of ZBL No. 26-2013, a Recreation Dwelling House is listed as a permitted use in the SR Zone and is defined as "a dwelling house, containing only-one-dwelling-unit, which is constructed and used as a secondary place of residence for vacation and recreational purposes".
Environmental Impact Study
22In Mr. McGovern's Affidavit he advised, in January of 2021, Sumac Environmental Consulting was retained by the landowner to prepare an Environmental Impact Study ("EIS") in support of the rezoning application. The corresponding report was prepared to gain a better understanding of the form and function of natural heritage on the property in an effort to identify and define the 'Environmental Protection' area(s) in accordance with the Crowe Valley Conservation Authority.
23The report is based on a review of applicable policy and regulation (Provincial Policy Statement, 2020; County of Peterborough Official Plan; Township of North Kawartha Zoning By-law No.26-2013; and the Crowe Valley Conservation Authority), a background review for documented occurrences of natural heritage and species at risk, and a site inspection.
24The site investigation confirmed the presence of wetlands and the report concludes that the EC land use designation likely applies to the inland wetlands area.
25Two of the wetlands identified through the EIS are located within the current EC zone and occupy approximately 16.5 percent of the area. The report concludes that the EC designation likely applies to the wetland areas, and staff is therefore supportive of adjusting the boundaries of the EC zone in a manner that restricts it to these two wetlands, as well as the inlet situated between both.
26Based on the findings of the EIS, staff is also supportive of the construction of a dock on the shore of the inlet provided it is sufficiently setback from boundaries of the reduced EC area, as well as from any other zone boundaries. The scope of the proposed redistricting from RU to SR will avoid all lands within the identified wetlands and these areas will remain under the RU designation
27The report recommends that future development of a seasonal dwelling on the Subject Property outside of the EC areas may be permitted should zoning regulations and policies allow and subject to the approval of applicable regulatory agencies (CVCA, for example).
28The report adds that future development, with the possible exception of a dock, on the Subject Property is not recommended to occur within 30 meters of the identified wetlands.
29Mr. McGovern in his Affidavit opined, that the Applicant has satisfied the requirement for an EIS under section 6.2.15.3 (c) of the OP and that the EIS supports the future development of a seasonal dwelling on the property provided that it is situated away from wetlands and EC areas, and subject to the approval of regulatory agencies.
SUMMARY
30Mr. McGovern opines, the proposal to rezone the Subject Property with the intent on development a future dwelling accords with policies outlined in the PPS, Growth Plan, the OP including the local component for the Township of North Kawartha, and the Township of North Kawartha ZBL No. 26-2013.
31In addition, Mr. McGovern opined, that the ZBLA represents good planning and is in the public interest.
FINDINGS and DISPOSITION
32In determining this matter, the Tribunal accepts and adopts the uncontroverted planning evidence and expert opinion provided by Mr. McGovern. The Tribunal is persuaded by the evidence that the proposal promotes good land use planning and is in the public interest and is satisfied that the application conforms to the OP is consistent with the PPS and conforms to the Growth Plan.
ORDER
33THE TRIBUNAL ORDERS that the appeal is allowed, and By-law No. 26-2013 is hereby amended in the manner set in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk to assign a number to this by-law for record keeping purposes.
"Eric S. Crowe"
eric s. crowe
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.