Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 18, 2022

CASE NO(S).: OLT-21-001683

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

Applicant and Appellant: Terence Forth and Sandra Della Maestra Subject: Minor Variance Variance from By-law No.: A2000-07 Property Address/Description: 136 Kapikog South Road Municipality: Township of The Archipelago Municipal File No.: A17-21 OLT Case No.: OLT-21-001683 OLT Lead Case No.: OLT-21-001683 OLT Case Name: Forth v. The Archipelago (Township)

Heard: March 11, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Terence Forth and Sandra Della Maestra	Self-represented
Township of The Archipelago	Sylvain Rouleau

DECISION DELIVERED BY S. Braun AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Terrence Forth and Sandra Della Maestra (“Appellants”) own the property at 136 Kapikog South Road (“subject property”) and wish to construct a 71 square metre boathouse thereon. The subject property, located on the south side of Kapikog Lake, currently contains a cottage, a garage, a utility shed and a dock. The Appellants intend to use the proposed boathouse to store and protect their boat from the elements, but also to store various other watercraft such as canoes, kayaks and paddleboards.

2Kapikog Lake is a small to medium sized lake, which is densely populated with one large commercial lot used for a recreational resort and 116 residential lots. The residential lots have an average size of 0.49 hectares (1.22 acres) and 59.3 metres (“m”) (195 feet) of frontage. The subject property is larger than the average, with an area of approximately 0.83 hectares and 81 m of frontage. Like most of the properties in the area, the subject property slopes toward the lake and the shoreline is predominantly granite with the majority of the vegetation being located further up the slope toward the main dwelling.

3In order to give effect to their proposal, the Appellants require relief from s. 5.3 i) of the Township’s Comprehensive Zoning By-law No. A2000-07 (“ZBL”), which requires a minimum frontage of 100 m for a boathouse to be permitted. The subject property is 19 m short of the above noted requirement and, as such, the Appellants applied to the Committee of Adjustment (“Committee”) for the Township of The Archipelago (“Township”) seeking a minor variance to give effect to their proposal.

4The Committee denied the application on the recommendation of Township planning staff and that decision is now the subject of the appeal before the Tribunal, pursuant to s. 45(12) of the Planning Act¹ (“Act”).

LEGISLATIVE FRAMEWORK

5An appeal pursuant to s. 45 of the Act is a hearing de novo and the Applicants bear the onus of demonstrating that the four tests as set out in s. 45(1) have been met, namely that the requested variance:

(a) maintains the general intent and purpose of the official plan (“OP”);

(b) maintains the general intent and purpose of the ZBL;

(c) is minor in nature; and

(d) is desirable for the appropriate development or use of the land building or structure

6In addition, s. 3(5) of the Act requires that a decision of the Tribunal affecting a planning matter be consistent with the Provincial Policy Statement, 2020 (“PPS”) and have regard for matters of Provincial interest. Regard must also be had for the decision of the municipal council and the information considered by it in the course of making that decision.

EVIDENCE

7The Tribunal heard evidence from the Appellant, Mr. Forth and Anna Welch, a lay witness and long-time Lake Kapikog property owner, who is in favour of the minor variance. The Tribunal also heard evidence from Cale Henderson, a Registered Professional Planner, duly qualified to provide opinion evidence in land use planning on behalf of the Township. Mr. Henderson’s was the only professional planning evidence offered on this appeal, standing uncontradicted. As the requested variance before the Tribunal is local in nature and is not inconsistent with PPS, Mr. Henderson’s evidence focused upon the four tests in s. 45(1) of the Act.

8The Appellants submit the requested variance meets the four tests in s. 45(1). With respect to maintaining the intent of the ZBL and the minor nature of the variance, Mr. Forth noted the subject property meets or exceeds all required development standards in the ZBL, save and except for lot frontage, which is only 19 m shy of the minimum. It was argued that the visual impact of the proposed boathouse would also be minor, screened from the view of adjacent neighbours owing to deliberate siting within the contours of the meandering shoreline. Moreover, the small scale of the proposed boathouse in comparison to the dwelling on the property and the relatively large size of the lot, combined with a shallow-pitched roof design and muted grey colouring would result in minor visual impact, in general.

9Mr. Forth took the Tribunal through a thorough and well-organized compendium of photographs and statistics in relation to other lots and a number of existing boathouses on Lake Kapikog, as well as previous minor variance applications approved by the Township. Both he and Ms. Welch spoke at length about the general area and described the proposed boathouse as far less visually intrusive than other existing boathouses, some of which are larger in size and/or highly visible owing to colour and design choices.

10In the view of the Appellants, the requested variance is desirable for the appropriate development of the land and meets the general intent of OP policies which speak to the importance of waterfront aesthetics, because it will allow for watercraft to be stored out of view, in effect, tidying up their portion of the shoreline. Mr. Forth drew the Tribunal’s attention to the stated goal of the OP:

To preserve the unique and high quality of the natural environment which leads to a recreational experience that is both relaxing and aesthetically appealing to property owners and visitors who use the area, and is designed to make both property owners and visitors realize that they share equally in the responsibility of maintaining the ecological integrity within a UNESCO Biosphere Reserve.

and submitted the foregoing is inconsistent with the ZBL, because the recreational experience includes boats, canoes, kayaks, etc., yet the ZBL sets out what in Mr. Forth’s view, amount to overly restrictive requirements with respect to built form near the shoreline. With reference again to photographs of his and other properties, he testified that these restrictions mean that such items are widely strewn about the shoreline throughout the lake, a situation which neither he nor Ms. Welch consider aesthetically appealing. In Mr. Forth’s view, for this reason, the lake is reminiscent of a “trailer-park” and the proposed boathouse would allow him to store such items out of view, in line with the OP’s stated goal of achieving an appealing aesthetic.

11In contrast, Mr. Henderson opined that the requested variance does not meet the four tests. He emphasized the critical importance of adherence to OP policies which speak to the preservation of the shoreline aesthetic and, by extension, adherence to the specific development standards in the ZBL designed to give effect to those policies.

12He explained that the general intent and purpose of the OP is to preserve the visual aesthetic of the landscape along the waterfront through the minimization of built form. As such, OP policies specific to boathouses and corresponding requirements in the ZBL were deliberately drafted to be restrictive in order to ensure built form remains secondary to the natural landscape.

13Section. 5.3 i) of the ZBL requires a minimum lot frontage of 100 m and a lot area of 8,000 square metres. Mr. Henderson testified that the intent of the foregoing is to ensure lots are large enough and have sufficient frontage to maintain a balance between the natural landscape and built form along the shoreline. He opined that the frontage requirement plays a key role, especially given that the lake is densely developed with lots, the majority which do not meet this frontage requirement. In his view, the requested variance does not maintain the general intent and purpose of the ZBL.

14Like Mr. Forth, Mr. Henderson also referenced the stated goal of the OP, but drew attention to specific objectives in support thereof, including Objective 2, which discusses the maintenance of a “status quo philosophy in regard to the character of the present land use base” and Objective 9, which speaks to the “preservation of natural landscapes for the Township by minimizing obtrusive building forms, particularly in areas where exposure is high because of topographic conditions and/or the absence of tree cover”. He also called attention to s. 5.3.1 of the OP, which states that minimizing building activity maximizes the “presence” of natural landscapes and speaks to even more restrictions on built form in high impact areas.

15In addition, Mr. Henderson noted that the Township has long viewed boathouses as prominent visual structures along the shoreline² and drew the Tribunal’s attention to OP policy 5.9:

One major way an impression of The Archipelago is formed is by boating excursions along the various waterways. A measure of density is obtained by the frequency with which one encounters human activity (cottages) or visual impact along the way. In this sense, waterways present an important element in the consideration of density control.

In light of the foregoing, he emphasized that visual impact must be considered not only with reference to neighbouring properties, but also from the point of view of those out on the lake gazing toward the shoreline.

16With reference to s. 14.32 and s. 14. 33 of the OP, which set out criteria in relation to buildings or structures located at the shoreline, Mr. Henderson explained that aesthetics and visibility play an important role. In his view, allowing boathouses on lots with less than the required frontage negatively impacts upon the aesthetic of the shoreline.

17He opined that the subject property is relatively central and the proposed boathouse would be prominent on the shoreline, with a high degree of visibility from various points on the lake, which is a main channel well-traveled by both residents and visitors. In his view, the visual impact of a boathouse at this location would not be minor in nature and even with the design elements referenced by Mr. Forth (low roofline, muted grey colour, etc.), would still result in a negative impact to the general aesthetic of the shoreline. Overall, he opined that the Township’s emphasis on maintaining the status quo in relation to the character of the present land use and the minimization of built form, especially in areas where exposure is high, militates against approval of the requested variance.

18Mr. Henderson explained the majority of the existing boathouses on the lake referenced in the evidence presented by Mr. Forth pre-date either the formation of the Township or the development of the regulations in the current ZBL and are considered legally non-complying. He further explained that examples of previous minor variances relied upon by Mr. Forth were materially different, noting for instance, that two of the applications did not relate to boathouses and were therefore evaluated against very different criteria and the other related to the approval of a boathouse located in a relatively remote location in a rarely traveled channel, thereby having very little visual impact.

19Finally, Mr. Henderson noted that the OP makes specific mention of this Township being differentiated from other municipalities, specifically calling for a more restrictive approach guarding against excessive development along the shoreline. He noted that although development applications are to be evaluated on their own merits, there are nevertheless 12 residential lots with a frontage of 75-99 m on Lake Kapikog and the majority of residential lots on five similar and densely populated lakes do not have sufficient frontage to allow for a boathouse. With reference to the foregoing, he opined that approval of the requested variance could result in an undesirable precedent, paving the way for future approvals of similar applications allowing boathouses throughout the Township on lots which, while not meeting the requirements of the ZBL are nevertheless “close”, thereby eroding the stated goal of the OP.

ANALYSIS AND FINDINGS

20The Tribunal notes the case presented by the Appellants demonstrated extensive research and effort, including a detailed review and comparative analysis of other boathouses in the area, as well as previous variances granted by the Committee and recommended by Mr. Henderson. Notwithstanding the foregoing, the Tribunal did not find such evidence to be of assistance, given that the majority of the existing boathouses on the lake are legal non-conforming and given distinguishing factors in relation to the previous variances, as described by Mr. Henderson.

21The Tribunal also acknowledges what it would characterize as positive features of the Appellants’ proposal, for example: the ability to store canoes, paddleboards and kayaks within the boathouse, as well as the proposed design elements (low roofline, muted colouring, etc.). Notwithstanding the foregoing, it was not persuaded that such features outweigh the visual impact of the proposed built form upon the shoreline and accepts the opinion of Mr. Henderson that, in this instance, the Appellants cannot appropriately mitigate such impact through design, given the location on the lake and the prominence of the would-be boathouse on the shoreline.

22In considering the totality of the evidence before it, including the uncontroverted land use planning opinion evidence of Mr. Henderson, the Tribunal is not persuaded that the requested variance meets the four tests in s. 45(1). In so finding, regard has been given to the decision of the Committee to deny the variances, as well as the information considered by it, including numerous letters of support for the application.

23Despite the letters of support and the Appellants’ argument that hiding canoes and kayaks from view make for a tidier shoreline, the OP and ZBL clearly indicate an intention on the part of the Township to specifically restrict built form in an effort to preserve a natural shoreline offering views unimpeded by buildings at the edge of the lake, through restrictive policies and an emphasis on maintaining the status quo in such areas.

24While much was made of the potentially precedent-setting nature of an approval of the variance, the Tribunal was more persuaded to deny the variance on the basis of the specific facts of this application, being that the overall visual impact of the proposed boathouse in light of the relatively centralized location on the lake would not be minor in nature, would not be desirable for the appropriate development of the land would not be in keeping with the general intent and purpose of the OP and ZBL.

ORDER

25The Tribunal orders that the appeal is dismissed.

“S. Braun”

s. braun

MEMBER

Ontario Land Tribunal

Website: www.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.

Footnotes

1. 1R.S.O. 1990, c. P.13, as amended.
2. 2As referenced in the following precursors to the current ZBL: Township Zoning By-Law Audit, 2005 and Township Zoning By-Law Option Paper, 2016.