Ciancone v. Seguin (Township), 2022 CanLII 45387

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 26, 2022 CASE NO(S).: OLT-22-002233

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

Applicant/Appellant: Mary Louise Ciancone Subject: Minor Variance Description: To permit increasing the maximum permitted Gross Floor Area from 700 sq m to 802.74 sq m to allow building a new cottage and use an existing boathouse. Reference Number: A-2021-0027-H Property Address: 200 Seely Bay Road Municipality/UT: Seguin/Parry Sound OLT Case No: OLT-22-002233 OLT Lead Case No: OLT-22-002233 OLT Case Name: Ciancone v. Seguin (Township)

Heard: May 3, 2022 by video hearing

APPEARANCES:

Parties Mary Louise Ciancone (Applicant/Appellant)

Counsel Ira Kagan Kristie Stitt Sarah Kagan

DECISION DELIVERED BY BITA M. RAJAEE AND S. deBOER AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This hearing was convened on May 3, 2022, to consider the appeal by Mary Louise Ciancone (“Appellant”) from the refusal of the Township of Seguin’s (“Township”) Committee of Adjustment (“COA”) to grant a minor variance requested to Zoning By-law No. 2006-125 (“ZBL”) pursuant to s. 45(12) of the Planning Act (“Act”).

2The Appellant applied to the Township for a minor variance to facilitate the construction of a new cottage and use of an existing boathouse on a property municipally known as 200 Seely Bay Road in the Township of Seguin.

3Prior to the hearing, the parties confirmed that a settlement had been reached and the agreement would be presented to the Tribunal for approval. Representatives from the Township did not participate in the hearing.

Requested Variances

4The Appellant is seeking variances:

a) To permit an increase in the maximum permitted Gross Floor Area (“GFA”) to 803 square metres (“m²”), whereas the By-law permits a maximum of 700 m² (an increase of 103 m²) to allow construction of a new cottage and use of an existing boathouse (the “GFA Variance”).

b) To permit an increase of the maximum lot coverage within the first 60 metres of shoreline to be increased to 5.78%, whereas the By-law permits a maximum of 5% (the “Lot Coverage Variance”).

Request for Participant Status

5The Tribunal received a Request for Participant Status from Nancy Cohen on behalf of the Lake Joseph North Association in advance of the hearing, and in granting that request, acknowledges the collective concerns of the Association provided to the Tribunal.

Site and Context

6The site is a 49.8 hectare parcel of land, with approximately 217 metres (“m”) of water frontage on Lake Joseph to the south and Seely Bay to the east (the “Property”). The rectangular property is treed and contains undulating topography that slopes to the lake.

7The Property contains an existing boathouse, docks, and pathways/stairs. It is accessed by Seely Bay Road, a private road.

8Lands to the Property’s east and west contain private cottages. To the south, across the lake, there are private cottages as well. Only one (1) cottage, located approximately 600 m to the south, has a direct view of the property. Forested lands and small inland lakes are located to the north.

9The proposed development is for a new cottage to be constructed on this site. The variances requested play the following roles in the new cottage:

a. The GFA Variance results entirely from approximately 24.7 m of linear basement area having fully exposed “floor to ceiling” 2.74 m windows. It allows the basement to function as a walk-out basement. If the grading of this portion of the proposed dwelling was altered such that those windows were reduced in height to 1.83 m (with the balance being below grade), and that corresponding space remained unfinished, the GFA variance would not be required.

b. The Lot Coverage variance results entirely from an architectural roof overhang design that intends to create variation in the roof projections for aesthetic and comfort reasons (i.e. protection from the elements).

LEGISLATIVE TESTS

10The Tribunal’s authority to grant variances is given under s.45(1) of the Act, which sets out the four tests that must be satisfied by an Applicant, when making an application for the authorization of variances. It must be noted that the hearing before the Tribunal is a hearing de novo and the onus of satisfying the Tribunal that the application meets these tests remains on the Applicant. The tests require that the variances:

a. Maintain the general intent and purpose of the OP;

b. Maintain the general intent and purpose of the Zoning By-law;

c. Be desirable for the appropriate development or use of the land, building or structure; and

d. Be minor in nature.

THE HEARING

11As evidence in the Hearing, the Tribunal received the following Exhibits which were identified sequentially during the hearing:

• Exhibit 1: The Appellant’s Document Book

• Exhibit 2: The Appellant’s Photo Book

• Exhibit 3: The Witness Statement of Raymond Duhamel dated May 2, 2022

• Exhibit 4: Email from Sarah Hanh dated May 2, 2022

12In support of the settlement agreement reached between the Parties, the Appellant advised the Tribunal that she intended on calling one witness and provided the Curriculum Vitae and Acknowledgement of Expert Duty forms for Mr. Duhamel, Land Use Planner, which were found in Exhibit 1. Mr. Duhamel was qualified to provide expert opinion evidence in the field of Land Use Planning.

13The Appellant noted that the Township’s Planner, in a Staff report dated January 12, 2022 (Exhibit 1), had found that the application was minor in nature, was desirable for the appropriate development of the lands, and conformed to the general intent of the Zoning By-law and Official Plan. The approval of the application was recommended, subject to certain conditions, outlined in Exhibit 4.

PLANNING EVIDENCE

Provincial Policy Statement, 2020 (“PPS”) and Growth Plan for Northern Ontario

14Section 3(5) of the Act directs that a decision of a planning authority shall be consistent with the PPS and conform to the Growth Plan for Northern Ontario.

15It was Mr. Duhamel’s opinion that the application is consistent with the PPS s. 1.1.5.2b, 1.1.4.1, 2.1.5, 2.2.2, and 3.1.1/3.1.2, as follows:

a. The proposal is permitted use (resource based recreational use – which includes recreational dwellings (s. 1.1.5.2b) and builds upon the existing rural character (s. 1.1.4.1).

b. The proposed development will not result in negative impacts on natural heritage features or their ecological function (s. 2.1.5).

c. The proposed development will not impact on the hydrologic function of any sensitive surface water features or sensitive ground water features (s. 2.2.2).

d. The proposed development is not located within any natural hazard (s. 3.1.1/3.1.2).

16The Growth Plan for Northern Ontario focuses on economic development, infrastructure investment, the labour market and land-use. Mr. Duhamel opined that no policies in the Growth Plan related to the matters before the Tribunal.

17Mr. Duhamel concluded that the proposal as provided demonstrates consistency with the PPS and was not spoken to in, and thus does not conflict with, the Growth Plan for Northern Ontario.

THE FOUR TESTS

Do the Variances maintain the Intent and Purpose of the Township of Seguin’s Official Plan (the “Town’s OP”)?

18The official plan designation for the area where the proposed development is located is “Shoreline Area.” This designation permits low density residential uses, among other uses (s. C.3.1.2 of the Town’s OP).

19Moreover, according to Mr. Duhamel, the variances requested are supported in the Township’s OP policy. Specifically, the Waterfront Building Design policies (s. C.3.1.3.11) support a diversity of architectural styles, architectural articulation, the importance of roofscapes, and the requirement for site plan approval. For example:

1. Section C.3.1.3.11(c) was highlighted, as it indicates, “…Buildings located at major vista terminations on a lake, or on view corridors on a lake, shall be given special treatment through the use of amassing and building articulation strategies, such as added height, special roof treatments, and use of special cladding materials and lighting fixtures.”

2. Section C.3.1.3.11(e) was highlighted, as it indicates, “…Roofscapes shall be an integral part of the design of a building and harmonize with the design of the rest of the building.”

20The Tribunal heard that the waterfront character is maintained and enhanced by various factors; the visual qualities from the lake will not be impacted by the minor variances requested; the proposed development is complementary and compatible with the existing development in the area; the proposed height of the building falls below what is permitted by the ZBL and below the natural tree line when viewed from the water; and the proposed development is subject to Site Plan Control approval (s. C.3.1.3.11.f).

21It was Mr. Duhamel’s overall opinion that the proposed variances meet the general intent of and purpose of the Township’s OP.

Do the Variances meet the Intent and Purpose of the Township of Seguin’s Zoning By-law No. 2006-125?

22The subject land is zoned for “Limited Service Residential (LSR),” which allows for a “cottage” and a “detached dwelling,” as is the case with this proposed development.

23With respect to lot coverage, Mr. Duhamel testified that the general intent and purpose of the by-law is to protect against overdevelopment and corresponding reduction in buffers, as well as tree preservation. It is also to consider the visual impacts from the lake, ensure that appropriate shoreline vegetation is maintained, and ensure that no loophole in the by-law allows uncontrolled roof overhangs greater than 1 m from the building.

24The proposed variance would result in overhangs ranging from less than 1 m up to a maximum of 4.15 m from the building. However, Mr. Duhamel testified that the perceived potential impact of the deeper roof projections in some parts of the building are mitigated or entirely eliminated due to various reasons, such as:

a. The building is substantially setback (20-39 metres) from the shoreline;

b. The grading from the shoreline rises considerably and drops off in some places where the building is proposed;

c. Views from the water are screened by existing mature and dense vegetation;

d. The proposed dwelling is based on a low-profile linear design that includes a flat roof and less than 25% of the structure is 2 storeys’ in height;

e. The proposed dwelling will occupy less than 30% of the shoreline frontage. The lot coverage variance would not result in the building dominating the view from the water over and above what is already permitted as-of-right; and

f. The shoreline is articulated resulting in different viewing angles from the lake.

25With respect to the GFA Variance, the general intent and purpose of the by-law is to control the massing of the building and by extension, the number of persons that would use the building. Of note, the definition of GFA in By-law No. 2006-125 does not include unfinished non-walkout basements. The proposed plan for the cottage would keep the same gross floor area for the basement, whether it is finished or unfinished and whether it is created to be a walk-out basement or not.

26Mr. Duhamel testified that the proposed GFA Variance will have no impact whatsoever on the general massing of the building or the number of persons who use the building, because a grading alteration to eliminate the walkout to a lookout and maintaining that space as unfinished would render the GFA Variance request moot. To clarify further, 17.49 m of the total 63 m building length facing the water is in a walkout condition. If the grading design was adjusted by 1.07 m, which changes the walkout to a lookout condition, parts of the basement remained unfinished, then the basement area would no longer be counted in the GFA calculation in accordance with the by-law definition.

27In summary, Mr. Duhamel confirmed that the proposed variances for lot coverage and GFA maintain the general intent and purpose of By-law No. 2006-125.

Are the Variances considered Minor and Desirable for the appropriate development or use of the land, building or structure?

28Mr. Duhamel testified that the variances requested were minor in nature, when considering the impact of the proposal on adjacent properties, the lake/shoreline, and the compatibility of the proposal with the surrounding land uses in the area. Moreover, he opined that no adverse land use impact resulted from the variances requested on the neighbouring properties, the lake, or the broader shoreline area. Lastly, no broader public interest was impacted by the minor variance applications.

29Mr. Duhamel explained that the portions of the proposed dwelling subject to the applications (notably roof overhangs and a walkout basement on the eastern portion of the dwelling) will not be discernable from the balance of the dwelling from the lake. Moreover, regarding each variance specifically, he stated:

a. The proposed development is well set back from the lake (20-39 metres from the shoreline).

b. The massing of the dwellings from the lake will be substantially buffered by existing grades and vegetations. There is no reason why a walkout versus lookout basement in the location and the size proposed would have any impact on views from the lake.

c. The enlarged roof overhangs on the inland (north) side of the dwelling (ranging from 0.08 metres to 0.41 metres beyond what is permitted as-of-right) will not be visible from the lake or lands to the north or east.

30As such, Mr. Duhamel concluded that the requests were minor in nature.

31Mr. Duhamel also informed the Tribunal of his opinion that the application was desirable for the appropriate development or use of the land. With respect to each variance, he stated:

a. Regarding the Lot Coverage Variance, the proposed enlarged roof overhangs provide architectural design variation, particularly in light of the proposed flat roof, and they appropriately provide additional protection from the elements for the residents and their guests.

b. Regarding the GFA Variance (walk-out basement), it is appropriate to provide enhanced views on a shoreline lot to the lake, particularly when the enhancement comes via a walkout basement and some interior finished basement space that will not be readily discernable form the balance of the dwelling when viewed from the lake.

32As such, Mr. Duhamel concluded that the requests are desirable for the appropriate development or use of the land, as the design features summed up in the minor variance requests are appropriate for the intended shoreline residential use of the land. Moreover, the proposal would not create any undue or adverse impact.

FINDINGS

33The Tribunal is satisfied by the evidence provided by Mr. Duhamel, through his uncontroverted testimony, that the four tests have been satisfied and have resulted in evidence that adverse impacts will not occur with the granting of the variances.

34Based on the totality of the evidence, the Tribunal was persuaded that the variances:

• Maintain the general intent and purpose of the ZBL;

• Maintain the general intent and purpose of the OP;

• Are minor in nature; and

• Are desirable for the appropriate development or use of the land.

35The Tribunal finds the proposal has proper regard for matters of provincial interest found in s. 2 of the Act, is consistent with the PPS 2020, and conforms to, or does not conflict with, the Growth Plan for Northern Ontario 2011.

CONDITIONS

36The Tribunal is advised that the settlement of the variances was based upon certain conditions as agreed upon between the parties, and Mr. Duhamel indicated that the conditions were, in his view, reasonable for the approval of the variances and orderly development of the property.

37The Tribunal confirms that the following are the conditions agreed upon by the parties, as between them, as contingent requirements to the presentation of the settlement to the Tribunal (in addition to the Condition determined to be appropriate by the Tribunal as necessary to the authorization of the variances):

1. The Appellant acknowledges that notwithstanding the issuance of the decision by the Tribunal to authorize the variances, any alteration of the shoreline including the conduct of any work in furtherance of the development shall be conducted in accordance with any federal and provincial laws or municipal by-law affecting or regulating the shoreline area, including without limitation By-laws Nos. 2008-103, 2008-104 and 2008-105 and any amendments thereto.

2. The Appellant agrees that the topography and vegetation between the proposed dwelling and the shoreline area shall be retained in its existing state save and except for maintenance of any pathways to the waterfront area and the removal of dead and dying trees that may present a hazard.

3. The Appellant will apply for and obtain a demolition permit for the existing illegal living quarters as identified on the current site plan dated July 8, 2021, prior to a building permit being issued for the main dwelling.

4. The Appellant will apply for, and obtain, a building permit within two (2) years of the date of the decision and Order of the Tribunal.

5. The Appellant shall enter into a site plan agreement with the Township which implements the following:

a. the shoreline vegetation preservation area in the front yard of the lot.

b. the recommendations for shoreline restoration works as outlined in the letter dated September 23, 2021 prepared by Michalski Nielson Associates Limited;

c. the landscape restoration plans prepare by CN Landscaping dated 08/26/2021; and

d. positing of securities for the shoreline restoration works.

ORDER

38THE TRIBUNAL ORDERS that the appeal is allowed in part and the variances to By-law No. 2006-125 are authorized subject to the following Condition: The property will be developed in substantial accordance with the Plans prepared by Hicks Design Studio dated December 2020.

“Bita M. Rajaee”

BITA M. RAJAEE MEMBER

“S. deBoer”

S. deBOER 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.