Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 3, 2022
CASE NO(S).: OLT-21-001755
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: Michael McCain
Subject: Minor Variance
Property Address/Description: 2 Island 1860
Variance from By-law: 2014-75
Municipality: The Township of Georgian Bay
Municipal File No.: A21-24
OLT Lead Case No.: OLT-21-001755
OLT Case No.: OLT-21-001755
Heard: April 7, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Michael McCain (“the Applicant” or “the Appellant”) | Patrick Harrington |
| Township of Georgian Bay (the “Municipality” / “Township”) | Colin Leger |
DECISION DELIVERED BY A. CORNACCHIA AND P. TOMILIN AND ORDER OF THE TRIBUNAL
BACKGROUND
1The Applicant is appealing the decision of the Municipality’s Committee of Adjustment (“Committee”) denying a Minor Variance (“MV”) Application to increase the maximum gross floor area of the dwelling on the property municipally known as 2 Island 1860 (“Subject Property”) in order to facilitate the construction of a home office addition in an area currently occupied by a deck and a patio area (“Home Office / Proposed Addition”).
2The staff report (“Staff Report”) prepared for the Committee recommended against the authorization of the MV since in the planner’s view, the Application failed to meet all the requirements of section 45(1) of the Planning Act (“Act”). The Committee denied the MV Application and the Applicant filed an appeal with the Ontario Land Tribunal.
CURRENT STRUCTURE
3The Subject Property is an island with a lot area of 14,074 m2 and 11,104 m2 of this lot area is above the high water mark (“HWM”).
4For purposes of the Township Zoning By-law (“ZB”), lot coverage percentage is calculated using the lot area above the HWM. The existing cottage including the covered porch is 441.36 m2 in size. There is also a bunkie having an area of 56.25 m2. The total lot coverage of all structures on the island is 497.61 m2, amounting to a current lot coverage of 4.48%.
5The width of the existing cottage is 42.85 m. The cottage is setback more than 20 m to the HWM, except for the south end of the cottage, which is constructed at a setback of 17.11 m to the HWM.
PROPOSED STRUCTURE
6The MV is required to add a 32.74 m2 den/home office to the existing structure. The addition will be constructed at the southeast corner of the cottage, replacing an outdoor amenity space. The addition will not require any excavation and will only necessitate the removal of one immature tree.
7The addition will increase the size of the cottage to 474.10 m2. The total lot coverage (i.e. with the bunkie included) will increase to 530.35 m2, amounting to a proposed lot coverage of 4.78%.
8The addition will also increase the width of the cottage to 44.22 m. However, due to the curvature of the island, the addition will not bring the cottage closer to the HWM. The addition will be setback 18.76 m.
REQUESTED VARIANCES AND EXTENSIONS
9The island is zoned SR7-52. The ZB only permits a cottage of a maximum Gross Floor Area (“Gross Floor Area”) of 449.81 m2. The original MV application requested an increase of the maximum GFA to 474.10 m2, which represents an increase of 24.29 m2.
10The following items were missed from the original MV Application for the Home Office Addition and only came to light after a careful planning analysis of the application was completed:
a. A MV request for additional lot coverage to increase the lot coverage to 4.78% from the 4.51% permitted by the ZB,
b. Legal Non-Complying Structure Expansions under section 45(2) of the Act for:
i. The 1.37 m increased structure width from 42.85 m to the proposed 44.22 m; and
ii. The reduction of the HWM setback for the building to a maximum of 18.76 m from the 17.11 m maximum permitted by the ZB (collectively “Expansion Requests”).
MOTION TO AMEND THE MV APPLICATION WITHOUT NOTICE
11A motion was made at the beginning of the Hearing by the Applicant to correct the MV Application by adding the missing MV Request and the Expansion Requests without any additional notice. The Municipality had no objections to the motion since the Home Office Addition remained the same and it would be most expeditious to deal with all the variances and Expansion Requests required by the Home Office Addition in one Hearing. Counsel submitted that no one would be prejudiced by the failure to give notice of the additional MV Request and Expansion Requests. The amendments to the MV Application were allowed by the Tribunal under section 18.1.1 of the Act without the requirement of any additional notice.
PLANNING HISTORY OF THE PROPERTY
12The Subject Property is an island in Georgian Bay and is occupied by one residential dwelling built in 2005 prior to the adoption of the current Georgian Bay Official Plan (“GBOP”) and comprehensive ZB for the area. The island has extensive tree cover and from the water the home is relatively hidden from view. The residence was built prior to the current OP being introduced and has a greater Gross Floor Area (“GFA”) than would be permitted today for a new build cottage on an island of a comparable size.
13A porch addition was made to the dwelling in 2016. The Township did not believe that a minor variance application would be appropriate for the covered verandah addition and insisted that the property owner apply for an OP amendment and ZB amendment. These applications were filed and Township Council passed the OP and ZB amendments increasing the maximum GFA for the buildings on the Subject Property to 449.81 m2 and setting the maximum lot coverage for the Subject Property to 4.51% (“Site Specific OPA”).
14In May 2019, a minor variance application was granted by the Committee for a sauna on the Subject Property which increased the maximum lot coverage to 4.62% to accommodate a sauna that remains unbuilt.
HEARING AND PARTY STATUS REQUEST
15There were no status requests and no concerns were raised at the Hearing with respect to notice.
16The following witnesses appeared to testify before the Tribunal and were appropriately qualified in their respective fields:
| Witness Name | Expertise |
|---|---|
| Sarah Vereault | Land use planning |
| John S. Jackson | Land use planning |
| Patrick B. Coulter | Project Manager |
HOME OFFICE ADDITION
17An in-depth review of the Island and the project was presented by Mr. Coulter. He indicated that the Home Office Addition will be placed in the area already disturbed by an outdoor rear yard deck and patio.
18The project will result in the removal of one immature tree, which will be replaced. The foundation will be a steel structure grounded in the bedrock and will not disturb the tree root systems of any adjacent trees.
19The parties do not dispute the ecological studies that identify that there will be no negative impact on the environment and any endangered species by the proposed development.
THE COMMITTEE OF ADJUSTMENT DECISION
20This is a hearing de novo of the MV Application and the Extension Requests. The Tribunal is required to hear the evidence and submissions of the Parties regarding this application and decide the case by applying the applicable legislative requirements, while having regard to the Committee decision.
APPLICABLE TESTS
21The tests to be applied to the minor variances being requested are identified by section 45(1) of the Act. Essentially, do the requested variances maintain the intent and purpose of the OP and ZB, are they minor and do they represent an appropriate development of the Subject Property? The Extension Requests are assessed under section 45(2) of the Act based on whether they are desirable and compatible and whether there is any unacceptable adverse impact on the surrounding uses.
THE PLANNING EVIDENCE
22The planning evidence was consistent with respect to the following:
a. The Home Office Addition does not result in any issues with respect to matters of provincial interest, the Provincial Policy Statement, 2020 or conformance with provincial plans.
b. The Expansion Requests will not result in any unacceptable adverse impacts.
c. The two requested Minor Variances and the Expansion Requests will represent an appropriate and desirable development of the Subject Property.
23The Tribunal accepts this consistent planning evidence, leaving it with three issues for resolution. Do the MV Requests for increases to GFA and Lot Coverage Percentage:
a. Maintain the intent and purpose of the OP?
b. Maintain the intent and purpose of the ZB?
c. Are they minor in nature?
DO THE MINOR VARIANCES MAINTAIN THE INTENT AND PURPOSE OF THE OP?
24The planning evidence with respect to conformance with the District of Muskoka OP (“MOP") was consistent. Since technical evidence was provided by the Applicant that significant habitat for endangered and threatened species is not within the proposed development, both planners agreed that the proposed development conforms to the MOP.
25The planning evidence on whether the two minor variances maintain the intent and purpose of the GBOP was markedly different. The planners do not share a common approach to analyzing the minor variances.
26The Township’s planning evidence on whether the minor variances maintain the intent and purpose of the GBOP was essentially that:
a. The intent of the GBOP is to maintain an appropriate balance between the natural and built form in the Cognashene Waterfront Community.
b. The GBOP implements a formula based on lot size for determining the appropriate balance.
c. The Site Specific OPA for the Subject Property specifies the GFA to two decimal places in order to impose an absolute limit on GFA of 449.81 m2. This site specific GFA already exceeds the GFA standard that would otherwise apply under the unamended GBOP of 277.6 m2. The Home Office Addition will result in a GFA for the Subject Property that exceeds the base GFA under the GBOP by 70%.
d. Similarly in the planner’s view, the Site Specific OPA which reduces maximum lot coverage to 4.51% from the 5% permitted generally by the GBOP for other properties in the Cognashene Waterfront community demonstrates an intent to limit the building size on the Subject Property to the existing size.
e. The proposed addition to the Subject Property does not serve to enhance and protect the natural heritage features but rather results in an increase in the built form.
27The Applicant’s planner opined that:
a. An important goal of the BGOP is to ensure that the character of the various areas, including the Cognashene Waterfront Community where the Subject Property is located is to preserve the existing character of the community.
b. With respect to the Cognashene Waterfront Community the natural heritage of the area, with its water, rock and trees play a strong role in shaping the character.
c. The human presence and structures should complement and blend with the distinctive landscape, not dominate or alter it.
d. The size of the buildings should be proportionate to the size of the lot where they are located.
e. Many of the cottage properties in the Cognashene Waterfront Community were constructed prior to the adoption of the current base BGOP.
f. Character under the GBOP is defined as the collection of built, cultural and natural heritage that define a given area. Character is meant to change and evolve, adapting to new circumstances and planning policies.
g. The Proposed Addition is screened from view by the heavy tree cover on the Subject Property and would pose no visual, social or heritage impact.
h. The applicable test for planning applications relating to the Cognashene Waterfront Community is to ensure that the character of the Community is maintained. The applicable policy test is provided by Policy F.5.10.8.17(a)(i):
F.5.10.8.17-Implementation
a) Consideration of Planning Applications
i) In considering any planning application in the Waterfront Community, particular regard will be given to ensuring that the Character of the Waterfront Community is maintained, the sensitive natural heritage will not be adversely impacted, and the visual impact of the development will not be significant. In evaluating the visual impact, regard will be had for the impact on both neighbouring properties and the Bay community in general.
i. Using the applicable test, taking into account the character of the surrounding area of both natural heritage and built form, the proposed addition of 25 m2 and less than 0.3% of additional lot coverage does not make the scale of the existing structure out of scale with the surroundings especially since there will be no visual, social or heritage impact.
28The Tribunal finds the Township’s planning evidence convoluted and unsupportable. The case law presented by the Applicant identifies that a municipality may not exclude the jurisdiction of the Committee of Adjustment or the Tribunal, in the case of an appeal, to approve a minor variance by imposing an OP cap on the GFA. The Tribunal prefers the evidence presented by the Applicant’s planner since it is more coherent and reflective of the intent and purpose of the GBOP. The Proposed Addition will not be out of character with the surrounding area. There will be a negligible impact on the natural heritage features of the island and no visual impact due to the extensive tree cover of the island.
DO THE MINOR VARIANCES MAINTAIN THE INTENT AND PURPOSE OF THE ZB?
29The planning evidence on whether the two minor variances maintain the intent and purpose of the ZB is markedly different. Consistent with her position of the GBOP, the Township’s Planner opined that the standards imposed by the ZB amendment when the verandah was constructed are absolute maximums for both GFA and lot coverage. The Applicant’s planner on the other hand opined that the variances are in fact very minor and can be justified as conforming to the intent and purpose of the ZB. The evidence of the Applicant’s planner is preferred since the Township is unable to oust the jurisdiction of the Tribunal or the Committee of Adjustment to grant variances in accordance with the Act.
ARE THE PROPOSED VARIANCES MINOR IN NATURE?
30The evidence on whether the variances can be characterized as minor differed. The Township’s Planner was of the view that the two variances are not minor. The OP and ZB amendments from 2016 granting site specific GFA and lot coverage percentage were so specific that any change to it is not minor. It is noted that the Township’s Planner came to a different conclusion for the same Proposed Office Addition with respect to the Extension Requests. Counsel for the Township was specifically asked to explain in his written submissions why the Tribunal should be persuaded by this point of view, which appears on its face to be inconsistent with the planning opinion with respect to the Extension Requests. No explanation was provided.
31The Applicant’s Planner was of the view that the proposed variances should be analyzed based on the delta between what is permitted as-of-right and what is proposed. The proposed GFA increase is 24.49 m2 and the proposed lot coverage increase is an additional 0.27%. These are modest numerical increases. Furthermore, there is no demonstrable evidence of visual, social or natural heritage impact to be caused by the variances.
32Based on the evidence, the Tribunal prefers the view of the Applicant’s Planner since it is more coherent. The Tribunal finds that the requested variances are very modest and of greatest importance will not result in any demonstrable impact visually or on the natural environment. This finding is completely consistent with the evidence of both planners with respect to the Extension Requests. The Extension Requests being minor in nature will have no impact visually or on the environment.
SUMMARY
33In summary, the Tribunal finds that the Extension Requests for the proposed addition to the Subject Property should be authorized in accordance with section 45(2) of the Act since they are desirable for the development of the land and have no negative impact. Similarly, the Minor Variances for the Proposed Addition should be authorized since they conform with the intent and purpose of both the ZB and the GBOP, are desirable and are minor.
ORDER
34The Tribunal Orders that the appeal is allowed and the Minor Variance Application and the Expansion Requests for the Subject Property are hereby authorized.
“A. Cornacchia”
A. Cornacchia MEMBER
“P. Tomilin”
P. Tomilin 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.