Smycorp Investments Inc. v. Lake of Bays (Township), 2022 CanLII 21242

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 15, 2022

CASE NO(S).: PL180604

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Smycorp Investments Inc.

Subject: Application amend Zoning By-law No. 2004-180 Refusal of Application by Township of Lake of Bays

Existing Zoning: Waterfront Residential “(WR)” Development Permit Area

Proposed Zoning: Waterfront Residential with an Exception “(WR-E)” Development Permit Area

Purpose: To permit the development of a dock

Property Address/Description: Part Lots 3, 4 And 5 Concession 13

Municipality: Township of Lake of Bays

Municipality File No.: Z 07/18 LOB

OLT Case No.: PL180604

OLT File No.: PL180604

OLT Case Name: Smycorp Investments Inc. v. Lake of Bays (Township)

Heard: March 17 to 19, 2021 by Video Hearing

APPEARANCES:

Parties

Counsel

Symcorp Investments Inc. (“Appellant”)

Jennifer Biggar

Township of Lake of Bays

John Ewart

DECISION DELIVERED G.C.P. BISHOP AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Appellant submitted an application for a zoning by-law amendment to the Township of Lake of Bays (“Township”) to rezone a vacant parcel of land located along Narrows Road, with frontage also on Lake of Bays. The site was created in 1951 as part of subdivision known as Plan M-146. The site is described as Block A on said Plan (“subject site”).

2The subject site has a lot area of 906 square metres (“sq m”) with 15.6 meters (“m”) of lot frontage on Narrows Road and 15.9 m of water frontage on Lake of Bays (the “Lake”) and is located on the eastern portion of Lake. It is also surrounded by shoreline residential development to the east and west, Narrows Road and rural lands to the south and the Lake to the north and is situated between two developed lots with civic addresses of 1101 and 1111 Narrows Road.

THE ORIGINAL APPLICATION AND APPEAL

3The purpose of the application was to rezone the subject site from Waterfront Residential (WR) Development Permit Area to a Waterfront Residential with an Exception (WR-E) Development Permit Area. The effect of the proposed by-law was to permit a vacant shoreline lot that does not meet the minimum water area or water frontage requirements for a new lot, or the minimum of 1350 sq m (14531.8 sq. ft.) of lot area and 30 m (98.5 ft.) of water frontage to be developed with a dock, with no removal of vegetation on the subject property. The application was also proposing to identify two separate parcels of land, the subject site and other lands in the same ownership, to be considered as one lot for planning purposes. The other lands consist of a remnant parcel of land with a civic address of 1080 Narrow Road, that has been subject to a number of severances. This parcel has approximately 380 m of frontage on the south side of Narrows Road and an approximate area of 89.8 hectares (“ha”). The subject site is located to the east of this remnant parcel. The subject site is directly across the road from three (3) Lots that were severed out of the original holdings.

4This application together with planning justification report, prepared by Marie Poirier of Marie Poirier Planning and Associates Inc. was submitted to the Township and deemed complete. On May 22, 2018, Melissa Markham, the Director of Planning for the Township, completed the staff planning report recommending the denial of the proposed amendment to the by-law. The application was subsequently denied at the Council (Planning) Meeting on May 29, 2018. This prompted the appeal from the denial by Council for the Township, under s. 34(11) of the Planning Act to the Tribunal.

THE REVISED APPLICATION

5In June of 2020 Jamie Robinson, a Planner with the firm of MHBC Planning, was hired as the planning consultant on this file, on behalf of the Appellant. Mr. Robinson reviewed the all the available documentation to date and consulted with his client which has resulted in an amended application in front of the Tribunal.

6Mr. Robinson stated that the original application was made “in accordance with the provision of an individual access point.” An individual access point is defined in the Township’s Development Permit By-law No. 2004-180 (“LOBDBL”) as:

Individual Access Point: Means the use of land as a docking and parking facility, which serves as a mainland access point for 3 or fewer residential properties that are only accessible by water.

7Mr. Robinson stated that he had conversations with the Appellant, who indicated that the purpose of the application was not to establish an individual access point. The sole purpose of the application is for the Appellant to have the ability to boat from his existing cottage to a dock on the subject site. From the dock he would to be able to walk across Narrows Road and enjoy his backland parcel on the south side of the road. The distance by boat from the existing cottage to the proposed dock on the subject site is approximately 2.4 Kilometres.

8It is Mr. Robinson's opinion that the original proposal did not limit the permitted structures or the intensity of use on the site and therefore had the opposite effect of what is now proposed. He also stated the neighbours had concerns with the intensity of use of the site that would occur. These concerns consisted of parking areas, dock size, environment, character of the area and boat traffic.

9The other concern related to the tying of the subject site with a lot on the south side of Narrows Road that is also owned by the Appellant. This back lot is the remnant parcel outlined in Paragraph 3 and the concern was over future development of these lands thus creating the potential of increased intensity of use on the subject site from a number of owners.

10The new proposal would change the zoning, on the subject site, from Waterfront Residential (WR) to Waterfront Open Space (“WOS”). It is Mr. Robinson's opinion that the principal use should be open space, permitting only a dock and a walkway, therefore removing the subject site from a potential residential use. To achieve this, an exception needs to be applied to the WOS zone in order to:

1. Only permit a dock and a walkway.
2. Identify the location of the dock, by establishing setbacks from the extension of the lot lines and a set back from the outlet of the drainage course.
3. Recognize that the dock is the principal structure on the lot.
4. Limit the projection and width of the dock.
5. Identify the maximum width of the walkway to facilitate travel across the site, from the shoreline to Narrows Road.
6. Identify vegetation protection areas.
7. Restrict the site from having a driveway or parking area.
8. Require a development permit that includes the following conditions:

i. No vegetation removal is permitted without further approval under By-law 04-180, except for: 1 ) the removal of any dead, diseased or dying vegetation; 2) the removal of any trees proving to be a hazard to people or property; and/or 3) the removal of vegetation to permit the establishment of the permitted dock and walkway, all of which is permitted at anytime and without further approval being required.

ii. Subject to the above noted exceptions in condition (i), all vegetation on the remainder of the lot, shall be retained in and unmanicured and, if necessary, allowed to re-establish.

iii. That the rubber matting that exists over the water course be removed.

FINDINGS

11The Tribunal finds that the revised application to amend By-law No. 04-180, as proposed, does not represent good planning. Contrary to Mr. Robinson’s opinion that the property does not act as an individual access point, the Tribunal finds that the current proposal is exactly what is being proposed but is simply being applied in a reverse scenario. Instead of acting as a traditional access point with parking facilities and docking, the argument put forward is that parking is not required because the intended use is only for access from the water to another parcel of land in the Appellant’s control which is situated on the opposite side of Narrows Road.

12Although it may be the Appellant’s wish to access the back lands by boating from his current cottage to the subject site, there is nothing denying the Appellant from placing a driveway on the acreage lot on the south side of Narrows Road and enjoying the amenities of this property by driving to the site. At any time, the Appellant’s existing cottage, the acreage on the south side of Narrows Road or the subject site could be sold, causing the subject site to be redundant for the proposed use. If the back lands are sold the proposed amendment is no longer required and leaves the Township in the position of how to deal with the subject site under a different set of circumstances.

13The Tribunal finds that on-site parking is a necessity in order to consider the Zoning By-law Amendment (“ZBA”) as proposed. With the necessity of parking, the Tribunal is also concerned about the amount of disruption and tree removal required to gain on-site parking, especially given the immediate steep slopes off Narrows Road.

14The Tribunal also finds that any intended use of the subject site must remain as accessory to a principal residential use. This clearly will not be the case.

15Under the current proposal the Tribunal must dismiss the appeal for the reasons that follow.

Description of Subject Site

16The size, frontage and location of the subject site is described in Paragraph 2 of this decision. There is significant elevation change between the travelled portion of Narrows Road and the Lake. There is also an existing water course that originates from the south side of Narrows Road, then crossing the road onto the lands west of the subject site, then angles in a north easterly direction onto the subject site, heading towards the easterly sideline of the subject site. This water course then generally swings parallel to this easterly sideline and ultimately connects to the lake. Gordon Nielsen, an Environmental Consultant, supplied ecological opinion evidence and in his testimony, described the changes in grade and approximate distances from the Lake. Mr. Nielsen took the Tribunal through a series of photos, starting from the south side of Narrows Road, with photos of this water course, both up and down stream and then continuing down stream, to its outlet, at the Lake.

17In general terms the subject site is approximately 60 m deep from the road to the lake. There is an immediate drop from the shoulder of the road to its base. From this point to a point approximately 25 m from the water, Mr. Nielsen approximates the slope at approximately 25% to 30%. He then describes the area from approximately 12 to 25 m from the lake as a small plateau and from this point the slope becomes steep again, to the water’s edge.

18These photos clearly indicate an existing privy, constructed by the neighbour to the west, sitting completely on the subject site. These photos also illustrate the existing encroachment by the neighbour to the west, which substantially protrudes onto the subject site including the maintenance of a portion of the subject site up to the existing water course as it runs in a north easterly direction and then parallel to the easterly sideline generally to the top of the plateau. In this area the underlying vegetation has been removed and an existing lawn is being maintained right up to the edge of the watercourse.

19The photos clearly illustrate the rubber matting that is placed in the bed of the watercourse and also illustrates an existing wooden bridge that allows one to cross, in an east/west direction, to and from the existing cottages that abut both sides of the subject site.

Existing Easement Over the Whole of the Lot

20As previously stated, Plan M-146 was deposited on title on April 3, 1951. The Tribunal did not have an original copy of the subdivision. This copy would have illustrated, by heavy outline, the full extent of the subdivision lands. Suffice to say that there is no argument that the plan illustrates at minimum, 12 Lots and Block A, with all of the Lots and the Block having frontage on Lake of Bays. Through title documentation supplied, eight of these lakefront lots also enjoy “an easement to use the common area, Block A, for the benefit and enjoyment of said Lots … as shown on Plan M-146….”. The intent may have been to have all Lots, within the Plan of Subdivision, to have this common easement but not all of the Lots include the easement in their individual transfer documents.

21The transfer documents with the right to the “common area, Block A” are Lots 1, 2, 3, 4, 5, 6, 8 and 9 of Plan M-146 and, as mentioned, all of these lots front on the Lake. Therefore, no lots, within this subdivision are barred access, to and from Lake of Bays and Narrows Road from their individual ownerships. Except for Lots 5 and 6, all of the other lots, with access in common over the subject site, have the ability to access the subject site by both water and land. Arguably, Lots 5 and 6 have the ability to traverse between each other’s properties, in an east/west direction and thus a possible reason for the existence of the wooden bridge that is currently in place.

22All parties agree that the easement is common to the owners of several of the properties created upon the deposit of Plan M-146 and the easement covers the whole of the subject property. Any intended/proposed change in use by the current owner should attempt to respect this existing right. The Tribunal also understands that the current owner may have an as-of-right ability to undertake vegetation removal, within the Waterfront zone that currently exists.

Ecological Functions of the Subject Site

23The Tribunal evaluated the opinion evidence from Al Shaw and Gordon Nielsen. Both were qualified to give expert evidence in the area of ecology. Mr. Shaw spoke in favour of the proposed development of the subject site, for a dock and pathway, while Mr. Nielsen’s evidence was contrary.

24Mr. Shaw and Mr. Neilson provided the Tribunal with the statement of agreed facts. The watercourse originates a distance upstream of Block A on the opposite side of Narrows Road, then crosses the road onto the property to the west then through the subject property. The watercourse is too steep to provide direct fish habitat but there are still a variety of other ecological benefits and functions. The watercourse is currently impaired by the presence of the rubber matting on its bed which should be removed. Some amount of buffering is appropriate for the dock and pathway, that would lead from the dock to Narrows Road. A proper site plan is required to further assess potential impacts and this site plan should also address matters such as potential parking and amenity space or their absence.

25Mr. Nielsen completed an assessment of the lands on the south side of Narrows Road in 2008. In those conclusions, the catchment area of the watercourse was calculated at approximately 0.12 square kilometres. Contained within this area is a conifer swamp which increases the period of flow potentially for several days after a snow or rain event. There are step pools that retain water which allow invertebrates to survive and adds to the ecological function of the watercourse. Given the steep slopes there is a rapid response to the runoff and there is clear evidence of erosion but due to this rapid run off both witnesses classified this watercourse as intermittent and not ephemeral. Although too steep to provide direct fish habitat, the water course represents a clean flow and supply of water with filtration, sendiment and biological uptake and therefore some buffer is critical to maintain the water quality benefits. In cross examination it was determined that the report on the south side of Narrows Road was for Species at Risk, but the Tribunal accepts the factual evidence provided by Mr. Nielsen with respect to his visual analysis of the upstream conditions. The evidence from Mr. Shaw aligned with these factual statements from Mr. Nielsen.

26The Tribunal also notes that the 15 m non-disturbance buffer proposed in the species at risk report, for the property south of Narrows Road, related to the breeding habitat of two dragonfly species and maintenance of water quality. The waterflow appeared permanent at that time and would have contributed to the recommendation of a buffer to minimize impact.

27The Tribunal was supplied with a series of photos that illustrate the conditions of the subject site in two seasons, one with the foliage on the trees, and the other, at the time where the deciduous leaves have fallen and visibility is enhanced. Mr. Nielsen’s Photo 9 and Mr. Robinson’s Photos 5 through 10, inclusive, illustrate the extent to which the removal of trees has taken place on the subject site from the general encroachments of the neighbour to the west. This area has been replaced with a manicured lawn up to the top of the embankment along the westerly edge of the existing watercourse. This is further illustrated in Appendix “A” of Mr. Nielsen’s report in Exhibit 1, Tab 17, on page 154. This illustrates an enlargement of a portion of a plan of survey, with a specific focus on the subject site. It is not an up to date survey and was produced sometime prior to July of 2006, given the date on the faxed copy, but does illustrate the privy encroachment, the pathway that crosses through the subject site, including the location of the existing bridge, and the location of the existing “stream”. Only the centerline of the pathway and stream are illustrated and therefore the actual physical location of the edge of the two features is not reflected on this plan. The plan only comments on the general width of the path and not the stream. Mr. Nielsen expressed concern when reviewing the proposed site plan, at Tab 4 of Exhibit 1, because there is no defined width of the stream on the proposed site plan.

28S. D.122 of the Township of Lake of Bays Official Plan (“LOBOP”), when dealing with setbacks from warm water and cold water streams states:

Development will be set back from a cold water stream or creek a minimum of 30 metres (98 feet) in the waterfront and rural designations and 20 metres (66 feet) in a community designation and a setback of 15 metres from any warmwater stream is required, unless a fish habitat impact assessment recommends a greater setback or demonstrates that a lesser setback would not have a negative impact on the habitat. A minimum 15 metre (49 foot), natural vegetative buffer located directly adjacent to the banks of the watercourse will be maintained within this setback.

29Mr. Shaw visited the site on two occasions and on one of those occasions the intermittent water course was dry. The Tribunal accepts the evidence of Mr. Shaw that the watercourse is intermittent which therefore affects the Tribunal’s view on intensity, location, and setbacks from this intermittent watercourse. The Tribunal also recognizes the benefit in the removal of the rubber matting lining the bottom of the intermittent water course and these conclusions will be dealt with further in this decision.

Planning Evidence

30The Tribunal does not find that the proposed ZBA offends either the Provincial Policy Statement, 2020, nor the District of Muskoka Official Plan and will focus on the LOBOP and the LOBDBL. For clarity, the Township has developed two separate By-laws. The LOBDBL is used when dealing with areas within the Waterfront Designation of the LOBOP and the Township’s Comprehensive Zoning By-law No. 2004-181 concentrates on the areas covered by other Official Plan designations within its borders.

31Section H.41 of the LOBOP focuses on the requirements for the creation of new lots. This is not a new lot and therefore not relevant to the decision in this matter.

32Ms. Markham, Director of Planning for the Township, focused on four (4) key areas which included: the proposed use; environmental impacts to the water course; parking; and easement rights of other owners.

33Most of Ms. Markham’s focus was on policies in the LOBOP as they related to Waterfront Landings and Access Points. The Tribunal was lead through the various policies of “Section H: Waterfront” in the LOBOP dealing with lands within the Waterfront Designation. Ms. Markham also reviewed sections of the LOBOP when considering the alternative and assessing the proposed dock and walkway as a principal use.

34Ms. Markham referred to s. H.39 of the LOBOP which states that all lots will be of sufficient size and dimension and possess terrain suitable to appropriately accommodate the use proposed. Given the small size of the subject site and the further restrictions due to the watercourse and the steep slopes, this property cannot be developed with a principal use. The principal use would require parking and septic services to support this type of development.

35Ms. Markham opined that whether the subject site is considered, through the policies of the LOBOP, as a Waterfront Landing or an Access Point, a dock is accessory to the principal use. In the general provisions of the LOBDBL, in s. 4.3, “….no accessory use, building or structure shall be erected on any lot until the principal use has been established or the principal building or structure has been erected…..”

36Ms. Markham stated that there is nothing in the LOBOP policies that recognize a dock as a principal use and all references in the LOBDBL consider a dock as an accessory use. This includes both the Waterfront Residential Development Permit Area and the Waterfront Open Space Development Permit Area. It is her opinion that a dock as a principal use is not contemplated in any of the planning instruments.

37Ms. Markham views this proposal as more akin to a right-of-way, with the subject site acting as a through lot to connect the ownership of the existing cottage and the vacant land on the opposite side of the Township road. Ms. Markham reminded the Tribunal that the definition of Accessory states: “Means a use of land, building or structure that a subordinate, incidental and exclusively devoted to the principal use, building or structure and is usually located on the same lot.” The sole purpose of the dock is to access lands on the other side of the road and not the same lot. The proposal is accessory to the other property which are the lands on the opposite side of the road, which is not to be designated, included, or tied in any fashion to the subject site.

38Ms. Markham stated that to view the subject site, with the principal use being the dock, creates a new standalone property that has never been contemplated in the development permit area of the Township, has no association with any other property and is not tied to one legally, therefore it could be sold at anytime thus creating the property as a focal point of activity with no regard to s. H.39 of the LOBOP.

39It is Ms. Markham’s opinion that the creation of a stand alone property, with the principal use being a dock and pathway, represents a proposition that does not conform to s. H.43 of the LOBOP which states that, as to the form of development, “Within the waterfront designation, residential uses will be limited to single detached dwellings in the form of shoreline development and back lot development.” It is also Ms. Markham's opinion that there are no references, in any of the policies in the LOBOP, that consider a dock as a principal use, nor is a stand alone dock contemplated in the LOBDBL.

40Ms. Markham reviewed the proposed amendment to the LOBDBL. She did agree that the change from Waterfront Residential Development Permit Area to Waterfront Open Space Exception Permit Area is appropriate, given that, in her opinion, the subject site has no development potential. There is also concern with Section 4 of the proposed amendment which states that “All other provisions of By-law 04-180, as amended, shall apply”. She stated that the development permit by-law is a unique system whereby shoreline activity areas are allowed therefore, in this case, clearing of an area 3.9 m in width to a depth of 15 m from the shoreline will be acceptable and the proposal does not restrict this beyond the maximum 2 m width of the proposed pathway.

41Ms. Markham is concerned about not only the proposed use but the long-term use of the subject property. The acceptance of the proposed dock and walkway will lead to other potential impacts that will promote an increased recreational use of the subject site, especially when it is sold. The proposal for development does not consider this long-term development of the subject site. The dock will become the focal point of recreational activity, without the availability of sanitary services, parking, and an expanded amenity area, if not tied to a property within walking distance from the subject site.

42It is Ms. Markham’s opinion that the proposed amendment to the LOPDBL, having a dock and walkway as a stand-alone principal use, does not conform to a number of the policies in both the LOBOP and LOBDBL and does not represent good planning. The concept of a principal use as opposed to an accessory use is not acceptable.

43Mr. Robinson’s approach to this proposed amendment to the LOBDBL was straight forward and relatively simple. However, this approach was, in the Tribunal’s view, narrowly limited to a focus upon how the subject site would function, based on the current desires of his client. It is only if the Tribunal accepts Mr. Robinson’s premise as to how the subject site will function, with respect to interrelationship between all three properties, that it is able to accept his opinion evidence that all policies of the LOBOP will be satisfied. Mr. Robinson floated the proposition that the proposed amendment will control the use of this property for any other owner that may purchase this in the future. Upon the analysis that follows, the Tribunal has difficulty with Mr. Robinson’s narrowed focus and premise, and his conclusions as to adherence to the LOBOP.

44Mr. Robinson described the subject site as neither a waterfront landing nor an individual access point. It is his opinion that the principal use will be as a dock and a walkway, with no amenity space and that the prohibition on parking therefore ensures compatibility in the future. Setting this stage, Mr. Robinson then reviewed what he considered to be the three main issues: (1) Is the use appropriate for the site and more specifically is the proposed open space use compatible; (2) Is the dock and walkway location properly sited to serve the intended use; and (3) Are the environmental features appropriately considered through the Provincial Policy Statement, the District of Muskoka Official Plan and the LOBOP?

45Mr. Robinson engaged the Tribunal in a number of key points to support his opinion that the proposed amendment should be allowed. These points related to both the use and the location of the proposed dock and walkway. The Open Space use is permitted in the waterfront area and more specifically the proposed private open space use is specific to the subject site and will limit intensity and it is compatible with the surrounding neighborhood. The lot size in frontage supports the proposed use as evidenced by the minimum lot frontage and area required for an access point, which is 15 m frontage and 700 sq m in area. The location of the proposed dock has appropriate setbacks given the minimum is 4.5 m from the production of the sidelines. Given the slopes on the subject site it has been confirmed that there are no critical fish habitat and the existing water course drains surface water only, is intermittent, and has limited function. The open space use proposed will eliminate amenity space and prohibit parking, therefore also limiting the intensity on the subject site.

46Mr. Robinson also reviewed many sections of the LOBOP, both in the implementation section and the general policies. Many of these policies relate to the character of the area, physical setting and interface with the water and traditional uses that occupy and line the shoreline around the lake. These policies also included a review of the mix of land uses and the appropriateness of maintenance of vegetation within the buffer area.

47It was Mr. Robinson's opinion that the intensity of uses is better controlled through this proposed amendment than what was initially anticipated in the original application by Ms. Poirier. His argument is that the original application did not have control over the intensity of use because future development could take place on the lot at 1080 Narrows Road (the remnant parcel) therefore putting more pressure on the subject site from various owners. The Tribunal sees this differently. Although the Tribunal commends Mr. Robinson for limiting the location of the use, in no way does this proposal control the intensity of that use. There is been no suggestion from the Appellant to tie together all three properties to limit the intensity of the use, or at the very least, a means to tie the subject site to the existing cottage property or the vacant acreage on the opposite side of Narrows Road. Without tying this property to a specific property within walking distance across the road, this leaves the subject site wide open to be sold and shared by as many owners that are willing to participate.

48In the Tribunal’s view, this would result in a situation where the original property at 1080 Narrows Road would not be the only property enjoying access to the subject site and instead access would be additionally open to all owners within walking distance of the subject site. All of this can occur without recourse because the subject site would have a stand-alone principal use. There would also be no control over any future sale to an individual or corporation that lives further away and simply wishes to use the property for access to the water, thus creating the very parking issue the Township is wishing to avoid. This scenario would further exacerbate potential conflicts between the owners that already enjoy an easement over the subject site.

49It is Ms. Markham’s position that the principal use of a dock not is not contemplated in any of the policy framework. The Tribunal agrees with this assessment. In the LOBOP, under the section dealing with Open Space Strategy, s. C.27 states:

Open Space includes public and private land for passive parkland or natural open space and environmentally sensitive areas, as well as for active outdoor recreation and may include:

a. active parks, or cemeteries

b. recreational, educational or interpretive facilities

c. historic and cultural sites and features

d. access points to water

e. recreational trails

f. water corridors or routes and portages, and

g. environmentally sensitive or significant natural areas.

50In the LOBDBL, s. 5.4.1 states, “In the Waterfront Open space Development Permit Area, no person shall use any land or erect, alter or use any building or structure, or alter existing grades or remove vegetation except in accordance with the provisions of this section.” This section then lists the “Permitted Uses, Buildings and Structures” and are as follows: An existing detached dwelling; Structures accessory to an abutting ‘Residential’ development permit area in the same ownership; individual access point; public park; conservation.

51The Tribunal finds that the dock and walkway are simply structures and the true use of the subject site is clearly stated in the LOBOP as an “access points to water’ and in the LOBDBL as an “individual access point”. The dock and walkway structures are required to carry out the true use or function of the subject site as an access point to water, or in the case of this proposal, from water.

52The Tribunal finds that accepting the dock and walkway as the principal use is not contemplated in the LOBOP and does not conform to specific policies contained therein. The proposed use, as a principal use, does set a dangerous precedent. It is a precedent that is completely avoidable in this circumstance.

53The Tribunal recognizes that the subject site is unique with competing interests. Not only is the subject site hampered by intermittent flow of water, it is also subject to many rights of access from various neighbours. There are indeed environmental concerns and certain controls that could be addressed through a ZBLA to resolve these competing concerns and interests and balance them to avoid future conflict. However, such conflicts and matters of access rights by adjoining are civil in nature and not a reason to approve a zoning by-law amendment that is not in conformity with planning policy or good planning.

54For these reasons the Tribunal is not persuaded by Mr. Robinson’s planning approach and instead prefers the planning evidence of Ms. Markham and the Township’s submission which conforms to the purpose and intent of both the LOBOP and the LOBDBL and represents good planning.

OBSERVATIONS OF THE TRIBUNAL

55As indicated, the Tribunal has considered that notwithstanding its inability to accept that the Appellant’s proposed stand-alone use of the subject property as an optional landing site for access to nearby lots represents acceptable or good planning, upon all of the evidence, it has observed that current circumstances merit some type of solution that would address the current status quo.

56The Tribunal is able to provide the following observations upon the evidence that might assist the Appellant and the Township, were an alternative planning proposal considered:

(a) The Tribunal accepts Mr. Shaw’s evidence that the stream is intermittent and therefore allows more flexibility with respect to s. D.122 of the LOBOP. This section of the LOBOP focuses on the required setbacks of both cold water and warm water streams. The recommendation of removing the rubber matting would help restore the ecological function of the watercourse north of Narrows Road and balance the net result between the removal of vegetation for the pathway and the increased function of watercourse;

(b) The Tribunal agrees that the use of the Waterfront Open Space Exception Development Permit Area would give more control to the location of development and better preserve and enhance the remainder of the site in its natural state;

(c) Section 2. g) iii) of the proposed amendment presented to the Tribunal states “That the rubber matting on that exists over the water course be removed.” Any workable proposal for the property should ideally provide for such a means to have the rubber matting removed to satisfy the recommendations of Mr. Shaw’s report so that the whole of the intermittent stream is free to flow in a natural state. The Tribunal has no means to monitor or enforce the conduct of neighbouring landowners that may be adversely impacting this watercourse, but given the evidence presented some means of addressing the recommendations provided by Mr. Shaw in this respect should ideally be incorporated into any proposed zoning by-law amendment for the subject property.

(d) The existing bridge, if it remains, should likely be maintained for the potential flow of east/west access between the owners of Lots 5 and 6, being the two adjacent owners to the subject site, perpendicular to the intermittent stream and any proposed pathway leading from the Township Road to the lakefront.

(e) The percentage of cleared amenity space, through the shoreline activity area, should likely be reduced from the standard of 25% to the percentage that will match the proposed width of the 2 m pathway (the Tribunal estimates this as approximately 12.5%).

(f) Although a site plan was not in front of the Tribunal, both the ecologists requested that this be a requirement, and the Tribunal agrees that any alternative development should ideally provide for a site plan in order to properly assess and mitigate the overall impact of the proposal.

(g) Based on the evidence, the option of moving the proposed pathway to the east side of the property, east of the existing intermittent watercourse should also be considered to avoid two crossings. If the proposed location of the pathway was to remain, it should nevertheless be located further way from the west side of the intermittent watercourse as it currently exists on the portion of the plan of survey. Upon the recommendations presented this would allow for the creation of a buffer and re-planting along the bank of the intermittent watercourse. All other disturbed areas should be allowed to regenerate to a natural state.

(h) Within the evidence Mr. Robinson’s focus was to control the use of the property for one purpose and that was for access, by his client, to be able to boat to a dock and walk to the lands his client owns on the opposite side of the road. The concern of the Township and neighbours is to control the intensity of that use and not impede rights of access. If any future amendment is to be considered, it is the Tribunal’s observation that the proposed use of the dock and walkway should be considered an accessory use, building or structure and the subject site must somehow be legally tied only to the property across the road, in a manner contemplated in the original application presented by Ms. Poirier. Under any alternative proposal, to ensure appropriate limitations were in place, further development of the lot at 1080 Narrows Road should ensure that the subject site was tied only to the retained lands and thus limit the access and ownership to any future principal buildings and structures on the retained lands.

57To be clear, these observations regarding the evidence are not intended to be binding determinations or findings, and instead, are merely observations regarding the evidence presented in relation to those matters of concern and issues raised in the course of the evidence, which relate to existing pedestrian access across the subject site and the intermittent watercourse, such that they might provide guidance for any future proposal for the subject site.

ORDER

58The Tribunal Orders that the appeal is dismissed and the requested amendment to By-law No. 04-180 is refused.

“G.C.P. Bishop”

G.C.P. Bishop

Alternate Chair

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.