Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 10, 2022
CASE NO(S).: OLT-21-001056
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Pleasant Cove Resort Inc (Bishop)
Subject: Minor Variance
Variance from By-law No.: A2000-07
Property Address/Description: 97 North Shore Road - Condominium Unit #8
Municipality: Township of The Archipelago
Municipal File No.: A08-21
OLT Case No.: OLT-21-001056
OLT File No.: OLT-21-001056
OLT Case Name: Pleasant Cove Resort Inc (Bishop) v Township of The Archipelago (Township)
Heard: April 22, 2022 by video hearing
APPEARANCES:
Parties
Counsel
Pleasant Cove Resort Inc.
Marc Kemerer
Township of Archipelago
Sylvain Rouleau
DECISION DELIVERED ERIC S. CROWE AND K.R. ANDREWS AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is an appeal filed by Pleasant Cove Resort Inc. (the “Appellant”) on June 2, 2021, against the decision of the Township of Archipelago, Committee of Adjustment’s (the “CoA”) dated May 21, 2021, in relation to a minor variance from Zoning By-law No. A2000-07 as amended (the “ZBL”) concerning Condominium Unit No. 8 at 97 North Shore Road in Pointe au Baril (the “Subject Property”).
2The Subject Property is part of a condominium complex referred to as Pleasant Cove Resort Inc. The owners Bruce and Jennifer Bishop have operated a longstanding cottage rental resort at the site which consisted of 17 cottage rental units in 13 buildings.
3The Application seeks relief by way of the authorization of a minor variance that would allow the complete removal of a single storey unit (the existing Condominium Unit No. 8) and the construction of a proposed 1 ½ storey dwelling unit on essentially the same footprint as a replacement.
4The existing Condominium Unit No. 8 is 72.7 square metres (“m2”) measured on a single main floor. The Appellant requests the removal of this aging structure and replace it with a new 1 ½ storey dwelling measuring 81 m² on the first floor, and 33 m² on the second floor, totaling 114 m².
5The maximum total floor area permitted by a site-specific ZBL provision for this unit limits the total floor area to 80 m². The variance being requested is therefore for 34.2 m², which is principally to permit the additional living area on the second floor.
6The Staff Planning Report dated May 20, 2021, initially supported the Application insofar as it maintained the intent and general purpose of the Township Official Plan (“OP”), but not the other parts of the legislative test for a minor variance. Subsequently, on May 21, 2021, the CoA denied the Application, finding that the requested variance did not meet any of the four parts of the legislative test for a minor variance.
7It is noteworthy, that Mr. Henderson’s witness statement (Exhibit 4) dated November 15, 2021, submitted for this Hearing, noted the change of his original opinion from his Planning Report, which initially indicated that the proposal maintained the general intent and purpose of the OP. He explained that after a more thorough review and closer inspection of the OP and policy basis for the original site specific by-law, the proposal now does not appear to him to maintain the general intent and purpose of the OP.
REQUESTED MINOR VARIANCE
8The requested variance is summarized below:
SUBJECT PROPERTY AND SURROUNDING AREA
9The Subject Property is a waterfront property on Sturgeon Bay, which is part of Georgian Bay. It is located within the community of Pointe au Baril in the Township of The Archipelago. The Township of Archipelago is part of the UNESCO Biosphere Reserve.
10North Shore Road is a local municipally maintained road, approximately 2.1 kilometres in length and is accessed from Highway 69. North Shore Road bisects the Subject Property into two parts, an eastern part and a western part. The western portion contains the majority of the improvements and the water frontage.
11The Subject Property is located within the Settlement Area of Pointe au Baril Station and is site-specifically Zoned Coastal/Island Residential Exception-71. This site specific zoning by-law permits 16 dwelling units within 13 buildings for residential use and restricts accessory uses, structures and buildings to that which existed at the time of the site specific zoning by-law approval.
12In 2012, The Archipelago Area Planning Board conditionally approved an application for the conversion of the commercial property to a condominium, subject to the lands being rezoned to reflect the proposed residential uses. The property was originally rezoned from the ‘Resort Commercial (RC)’ Zone to the ‘Coastal/Residential Exception 71/Holding (CR-71/H)’ Zone. The intent of the site-specific zoning was to restrict the built form and maintain an appropriate residential character of the Subject Property and surrounding area.
13It is noteworthy that at the time in 2010, during public consultations, the Sturgeon Bay Pointe au Baril Ratepayers Association supported this Application for rezoning to allow Pleasant Cove Resort Inc. to convert to condominium ownership.
14In 2017, the site-specific by-law was subsequently further amended to remove the Holding provision and trigger the temporary use by-law to facilitate the transition from the past commercial uses to the proposed residential uses. In addition, the zoning was amended to permit an increase in maximum permitted total floor area of Condominium Unit No. 11 from 100 m2 (1076 feet2) to 151 m2 (1625 feet2).
15Any redevelopment of the existing 16 dwelling units on the former resort property are restricted to the existing locations and floor area illustrated on Schedule 2 of the current site-specific zoning by-law below.
16For the reasons that follow, the Tribunal allows the Appeal and authorizes the minor variance in accordance with s. 45 of the Planning Act (“Act”).
LEGISLATIVE TESTS
17An appeal pursuant to s. 45 of the Act is a hearing de novo. The Appellant bears the onus of demonstrating that the four parts of the test set out in s. 45(1) have been met, namely that the requested variance:
(a) maintains the general intent and purpose of the 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.
18In addition, s. 3(5) of the Act requires the Tribunal’s decision be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform to the applicable Growth Plan which, in this instance, is the Growth Plan for Northern Ontario (“Growth Plan”).
19The Tribunal must also have regard to the matters of Provincial interest set out in s. 2 of the Act, as well as for the decision of the CoA and the information considered in the course of making its decision, as set out in s. 2.1(1) of the Act.
EVIDENCE
20Evidence in support of the Application was provided by the Appellant’s expert, John Jackson, while evidence against the Application was provided by the Township’s expert, Cale Henderson. All experts were duly qualified on consent to provide opinion evidence in land use planning.
21Mr. Jackson testified that after various email exchanges between Mr. Henderson and himself, Mr. Henderson advised that after completing his initial review of the Application, he did not anticipate being able to support the proposal.
22Mr. Henderson opined that the proposed increase in size is significantly larger than the existing building and does not appear to maintain the intent of the original approval and current zoning restrictions. In his opinion, the proposal would result in a two storey building larger than any other of the existing units. Mr. Henderson explained the original approvals did not cap the buildings at the existing size, but rather it allowed each unit to moderately increase in size by approximately 10% to 20% to accommodate new residential uses. He therefore took the position that the existing site-specific zoning by-law contemplated minor increases in size of the existing structures, but the proposal simply goes too far.
23Mr. Jackson testified that the business model for historic “ma and pa” rental cabins is no longer viable in terms of today’s vacationing public. Unit No. 8 is outdated, not winterized and has challenges in terms of marketing because of its size and design. Furthermore, due to the age and condition of the building, it is impractical to renovate rather than replace the existing building. The Application is to replace this unit with a new cottage, reducing the number of rooms from three to two and having a similar footprint but with a second half storey.
24Mr. Jackson advised that, almost ten years following the passing of the original site-specific zoning by-law, the 17 rental units have been converted to individual ownership and, while not all units have been sold, demand remains high. Unit No. 8 is one of the last cottages yet to be sold.
25Mr. Jackson noted that, in 2017, a ZBA was approved for Unit No. 11. That Application, which Mr. Jackson contends is similar to the current Unit No. 8 Application was approved with the Township concurring that the intent and purpose of OP and ZBL was maintained.
26Mr. Jackson referred to the 2017 Staff Report which Mr. Henderson drafted, in which he concluded that the proposed increase in the size of Unit No. 11 will not increase density or the visual impacts of existing development in regard to the OP. Similar to the current Application, that building generally maintained the existing setbacks, including from the water.
27Mr. Henderson testified that Unit No. 11 was originally two separate rental cottages that was replaced by a single dwelling unit, with a maximum total floor area of 100 m2. The proposal at the time was to increase the total floor area to 151.6 m2. Mr. Henderson confirmed on cross examination that Unit No. 11 is on the shoreline with minimal screening. Mr. Henderson also confirmed that Unit No.11 maintained the existing number of bedrooms and the increase in size did not result in any significant impact on the overall built form.
PROVINCIAL POLICY STATEMENT, 2020 (PPS)
28The PPS provides policy direction on matters of provincial interest related to land use planning.
29With reference to all of the foregoing, Mr. Jackson opined the variances have regard to matters of Provincial interest in s. 2 of the Act, including protection of ecological systems and natural areas, features and functions, orderly development of safe and healthy communities, protection of public health and safety, and the appropriate location for growth and development.
30Mr. Jackson testified that Pointe au Baril is identified as a special policy area and a settlement area. Settlement areas are to be the focus of growth. The increase in size of Unit No. 8 would not pose any significant impacts the natural heritage features since it will have a similar footprint. Mr. Jackson contends that the proposed increase in size of Unit No. 8 is consistent with the relevant policies of the PPS.
31Mr. Jackson’s evidence was uncontested insofar as it relates to the PPS. The Tribunal accepts Mr. Jackson’s evidence and finds that the proposal is consistent with the PPS.
GROWTH PLAN FOR NORTHERN ONTARIO (Growth Plan)
32The Growth Plan is a long-term plan that works with other provincial plans to provide a framework for growth management in the Growth Plan for Northern Ontario.
33Both Parties referenced s. 8.5 environmental management of the OP in relation to the water quality and high concentration of nutrients in the Sturgeon Bay area. Mr. Henderson noted algae blooms and a need for protection from more development. Mr. Jackson contends that the conversion of an old cottage will involve less nutrient loading for the area.
34Mr. Jackson testified that the OP supports growth revitalization in a settlement area. There are no additional demands on infrastructure services. As such, with reference to development of settlement areas such as in this instance, he opined the variances conform/do not conflict with the Growth Plan.
35Mr. Jackson’s evidence was uncontested insofar as it relates to the Growth Plan. The Tribunal accepts Mr. Jackson’s evidence and finds that the proposal conforms with the Growth Plan.
FOUR PART TEST
Maintains the Intent of the OP
36Mr. Henderson testified that the proposal will increase the area and height of the existing building, resulting in a type of development that is not appropriate in density, form or overall aesthetics and, upon further review, would not conform to policies of the OP, which were the basis for the original site-specific zoning by-law amendment passed in 2013.
37Mr. Jackson testified that the previous conversion of the former Pleasant Cove Resort Inc. commercial rental units to individual residential units was approved by the Township. The units are deemed to be in accordance with the settlement policies of Pointe au Baril Station. Furthermore, according to Mr. Jackson, the replacement dwelling Unit No. 8 is supported by a number of policies as they relate to housing and community improvement. Finally, he drew the Tribunal’s attention to the fact that the Township planner had previously concurred that the proposed minor variance maintained the intent and general purpose of the OP.
38Mr. Jackson testified that Pointe au Baril Station has separate OP policies to recognize its status as a settlement area with different principles and needs from the rest of the Archipelago. Mr. Jackson referred to s. 8.2 of the OP in relation to having year-round residents which has essential services in Pointe au Baril that encourages not only new development but development at higher densities. In this context, the normal resistance to new development is separate and apart from the balance of Archipelago.
39In the Planning Report dated 20 May 2021, Mr. Henderson advised that the proposed increase in total floor area did not appear to offend the Stable Area policies and the Application appears to maintain the intent and general purpose of the OP. However, as noted already, Mr. Henderson confirmed to the Tribunal that his opinion had changed following his initial findings and he is now of the opinion that the proposal does not conform with the general intent and purpose of the OP. By way of explanation, Mr. Henderson advised that, once the Appeal was filed by the Applicant, it was natural for him to do more due diligence and conduct more preparation including document searches which dated back to ten years ago.
40Mr. Henderson also noted that one resident and the Pointe au Baril Islanders’ Association had concerns about the impact on other buildings and surrounding lands and the possibility of this Application setting a precedent for increased density on the Subject Property.
41In the Planning Report, Mr. Henderson specifically highlighted sections 8.2, 8.3 and 8.4 of the OP, which referenced Pointe au Baril Station as having its own goals and objectives within the OP, having a special policy area and finally the Subject Property falling under the land use designation of “Stable Area”. The goal for Pointe au Baril Station is to be a beautiful community with a healthy natural environment and a sustainable local economy. S. 8.4, which identifies the objectives states:
“The following objectives are intended to be met in support of this goal:
To protect the natural environment.
To provide certainty to residents and investors regarding the planned land use structure of the Station.
To provide opportunities for new businesses and employment in the Station.
To provide additional mainland housing opportunities.
To provide a detailed framework for land use in the areas identified for progressive change in Pointe au Baril Station.
42Mr. Henderson testified that the above goals, objectives and policies were used to develop the current site-specific zoning by-law on the Subject Property and to preserve and protect the overall residential character of the area and control the impacts of the built form on the surrounding area, while enabling and the evolution of the property.
43Mr. Jackson referenced s. 8.4 of the OP in which he highlighted policies which the Application supports, such as to provide certainty to investors, housing types, and opportunities for intensification and infilling.
44Mr. Jackson also referenced s. 8.47 of the OP, denoting a “Stable Area” for land use planning, in which the Subject Property is located. In cross examination, Mr. Jackson explained that significant changes are discouraged within the “Stable Area” and means the Community does not want different uses or changes and is more about maintaining residential use. Accordingly, Mr. Jackson opined that replacing an old unit on a similar footprint is not a significant change and the OP allows for additional mainland housing opportunities with a range of housing types. Furthermore, the subject settlement area is treated differently than other areas and encourages new growth.
45In summary, Mr. Jackson opined that the proposed variance poses no conflict and maintains the general purpose and intent of the OP. The Tribunal accepts Mr. Jackson’s evidence and opinion and finds the same.
Maintains the Intent of the ZBL
46Mr. Henderson informed the Tribunal that, in 2012, the Township permitted the conversion of Pleasant Cove Resort Inc. to condominium units subject to rezoning the lands from commercial to residential. The implementing ZBL also imposed specific size limits to the variety of units that existed on the property.
47The Subject Property was rezoned from Resort Commercial (RC) to Coastal/ Residential Exception 71/Holding (CR-71) in 2013 and was subsequently rezoned in 2017 to remove the related Holding provision, triggering the temporary use ZBL and transition period between the previous commercial uses to the future residential uses. It also allowed the expansion of Unit No. 11.
48As of September 22, 2020, the transitional temporary use ZBL permitting the units to be used for commercial purposes as rental cottages expired. As a result, the property currently contains 16 condominium units within 13 buildings that are permitted to be used as dwelling units for residential purposes.
49Mr. Henderson testified that current Applicants were also the Applicants for the condominium conversion. Mr. Jackson confirmed the Bishops have so far sold seven of the units (1,2,3,4,5,6,12) and still own 6 units (7,8,9,10,11,13).
50Mr. Henderson provided a list as shown below depicting the permitted size of each condominium unit, per the current site-specific ZBL.
51Mr. Henderson testified that Units Nos. 7, 10, 11 and 12 are the three largest units (unit No. 10 was confirmed to be 107 m2). The remaining units are permitted a maximum total floor area as shown above.
52Mr. Henderson informed the Tribunal, in order to restrict the built form and overall density, the site specific ZBL was designed to restrict the total floor area of each condominium unit, while providing for a modest expansion of each unit (approximately 10% to 20%) to meet the additional needs associated with the new residential uses. He testified that this appropriate balance was established based on considerable public input.
53Mr. Henderson advised that condominium Unit No. 8 is currently one storey in height and, per the submitted application, has a total floor area of 72.7 m2 (782.6 square feet ). However, upon review of the survey submitted in 2013, as part of the condominium approval, the existing size of Unit No. 8 appears to be approximately 66 m2 (715 square feet). The maximum permitted total floor area for Unit #8 is nevertheless 80 m2 (861 square feet).
54Mr. Henderson testified that Unit No. 8 is visible from the surrounding area, as it is located along the shoreline area, with minimal setback and screening. The existing building is visible from the water and the properties across the channel. He opined that the proposal would result in the Subject Property being a dominant feature within the shoreline area and contradict the original intent and purpose of the site specific by-law. In Mr. Henderson’s opinion the requested variance therefore does not maintain the intent of the ZBL.
55Mr. Jackson advised the Application is for a greater amount of total floor area with only a few m greater on the lower level and additional 34 m2 on the upper half storey, for a total of 114 m2 where only 80 m² are permitted. In Mr. Jackson’s opinion there would not appear to be any conflict with use, location or height and there is no perceptible change in quality or character as shown in the Appellant’s overlay sketch below.
56Mr. Jackson advised the Application will have a similar impact as four other units (7, 10,11 and 12) that are over 100 m2
57In cross examination, Mr. Henderson confirmed that, as-of-right, an increase in the total floor area to 80 m2 would have the same impact as the proposed 1 ½ storey dwelling in the form that the Application is proposing, or even a two storey building with a smaller footprint. In theory, the Applicants could also build, as-of-right, the same building as proposed without an internal second floor, being perceptively the same from the outside. The natural conclusion, he proposed, is that there is no material difference in terms of impact on surrounding lands or view from the water between what is being proposed and what is permitted as-of-right according to the current ZBL.
58In summary, Mr. Jackson opined that the proposed variance poses no conflict and maintains the general purpose and intent of the ZBL. The Tribunal accepts Mr. Jacksons evidence and opinion and finds the same.
Considered Minor in Nature
59Mr. Henderson advised that the proposal is to replace the existing one storey building with a two storey building, having a total floor area of 114.2 m2. This represents an increase to total floor area of 34.2 m2 or 43% from what is permitted.
60Mr. Henderson advised that the existing condominium unit is unique and is not a typically developed residential property due to the existence and conversion of historic commercial uses. Mr. Henderson testified that Unit No. 8 has a minimal front yard setback (7.5 metres) without any screening or buffering from the water and lacks vegetation or screening to buffer the visual impacts of the existing or proposed development from the adjacent properties. Any increased redevelopment will, therefore, result in additional visual impacts from the water.
61It is Mr. Henderson’s opinion that the proposal is not minor in nature as it increases maximum total floor area by 43% from what is permitted.
62Mr. Jackson confirmed to the Tribunal that there is one tree on the Subject Property (on the side) for screening, which is similar to that of Unit No. 11 when its redevelopment was approved. In cross examination, Mr. Jackson confirmed the front yard of Unit No. 8 will remain the same.
63Mr. Jackson advised the proposed size of the new dwelling will represent a negligible difference in terms of impact because the proposed redevelopment will remain withing the same basic footprint and be only slightly taller than what currently exists, and it will remain below the maximum height allowed as-of-right. The proposal further maintains the character of the area and is particularly modest when compared to the cottages of 200-300 m2 being built in the general areas of the Archipelago. He further noted that density, when measured according to bedrooms of the proposed cottage, will actually decrease (from 3 to 2 bedrooms) in accordance with proposed plan.
64In Mr. Jackson’s opinion, the Application is minor in nature, there will be low impact with high quality improvements in this proposal which supports the land use planning of Pointe au Baril Station. The Tribunal accepts Mr. Jacksons evidence and opinion and finds the same.
Desirable for the Appropriate use of the Land
65Mr. Henderson acknowledged that Unit No. 8 is relatively basic and an updated unit may improve the aesthetics; however, he nevertheless opined that the proposal, with its increase in floor area and height, existing minimal front yard setback (7.5 metres) and absence of any vegetation or screening to buffer visual impacts of the development from the adjacent properties, it is not desirable for the appropriate development or use of the land.
66Mr. Jackson explained that a key element of the “desirability” test is whether the proposal is desirable in relation to adjoining properties. He opined that a new modestly larger cottage would have a positive impact on neighboring properties.
67Mr. Jackson contended that the Application will maintain the character of the community and reflect the existing community density with bedrooms actually being reduced from three to two. Mr. Jackson advised that there is no housing available in Pointe au Baril and there is a need for additional units.
68Both Parties presented photographs of the Subject Property and surrounding area including a view from a canoe perspective which showed a variety of dwellings behind and beside the Subject Property. In Mr. Jackson’s opinion, the proposed development will not detract from the community character due to the almost imperceptible change.
69In relation to height of the proposed dwelling, Mr. Henderson on cross examination confirmed that the ZBL prescribed maximum height of a dwelling is 9 metres (“m”). The existing height of the dwelling is 4.57 m and proposed height would be 5.33 m, being a change of .76 m, but which still conforms to the ZBL.
70Mr. Jackson advised the slight increase in height of the existing roof line will be practically imperceptible from an impact standpoint. No variances are being sought for height or setbacks which remain basically the same.
71It is Mr. Jackson’s opinion that the Application will improve the integrity of the dwelling, maintain the residential waterfront character of the area and will remain consistent with the existing Unit sizes and built form of the property. It is therefore a desirable and appropriate use of the subject lands. The Tribunal accepts Mr. Jackson’s evidence and opinion and finds the same.
Summary and Conclusions
72In determining this matter, the Tribunal accepts the land use planning evidence and expert opinion provided by Mr. Jackson. The Tribunal is persuaded by his evidence and is satisfied that the requested variance is minor in nature, desirable for the appropriate development of the land and maintains the general intent and purpose of the OP and ZBL. The Tribunal is further satisfied that the variances have appropriate regard for matters of -Provincial interest, are consistent with the PPS, conform to the Growth Plan, and overall, represent good planning in the public interest.
73Regard has been given to the decision of the CoA and the information considered by it in the course of making its decision. Upon the evidence of Mr. Henderson, the Tribunal is satisfied that the concerns raised by the Pointe au Baril Islanders’ Association and a property owner across the Bay from the Subject Property were given appropriate consideration and that the variance will not result in undue adverse impacts or set any type of precedent regarding density at the subject site or to the area in general.
ORDER
74The Tribunal Orders that the appeal is allowed and the variance to Zoning By law No. A2000-07 is authorized subject to the following Conditions;
(a) a building permit for the proposed work be secured within 2 years from the date of the Tribunal’s Decision; and,
(b) that the proposed building be built substantially in accordance with the plans submitted to the Tribunal (See Schedule 1).
“Eric S. Crowe”
ERIC S. CROWE
MEMBER
“K.R. Andrews”
K.R. ANDREWS
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.