Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
June 03, 2022
CASE NO(S).:
OLT-22-002216
(Formerly PL210083)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
David & Theresa Vincent
Subject:
Application amend Zoning By-law No. 14 – 75 - Refusal of Application by Township of Georgian Bay
Existing Zoning:
Six Mile Lake Residential ('SR6')
Proposed Zoning:
Six Mile Lake Residential Exception Fifty-Eight ('SR6-58')
Purpose:
To permit he replacement of the existing dwelling, with a larger dwelling
Property Address/Description:
34 Beverly Street
Municipality:
Township of Georgian Bay
Municipality File No.:
Z20-17, L21-01
OLT Case No.:
OLT-22-002216
Legacy Case No.:
PL210083
OLT Lead Case No.:
OLT-22-002216
Legacy Lead Case No.:
PL210083
OLT Case Name:
Vincent v. Georgian Bay (Township)
Heard:
April 12, 2022 by video hearing (“VH”)
APPEARANCES:
Parties
Counsel
David and Teri Vincent
(Appellant/Applicants)
Scott R. Fairley
Township of Georgian Bay
(Township)
Colin Léger
DECISION DELIVERED BY K.R. ANDREWS AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is an appeal by the Applicants following the Township of Georgian Bay’s refusal to grant their application for a Zoning By-law Amendment (“ZBA”). The purpose of the requested ZBA is to permit the replacement of an existing cottage and separate bunkhouse with a larger dwelling on the property at 34 Beverly Street (the “Property”).
2Five aspects of the existing by-law require amending to permit the construction as planned, including as it relates to total maximum lot coverage, maximum lot coverage within 60 meters (“m”) of the shoreline, maximum gross floor area, maximum width, and minimum front yard setback. The municipal record shows that the Township refused to pass the proposed ZBA despite it being supported by planning staff.
3From the Applicants’ standpoint, they acknowledge that the requested ZBA is a departure from the existing Zoning By-law (“ZBL”) standards imposed on the property, but they contend that it represents a net improvement from what currently exists and it is not feasible to construct in accordance with the applicable standards due to physical restraints which exist on the property.
4From the Township’s standpoint, the Application seeks to fit an oversized cottage on an undersized lot.
5For the reasons that follow, the Tribunal allows the appeal in part, approving the requested ZBA as proposed but with a front yard setback of 15 m, being the maximum setback feasible given restraints on the property, instead of the requested 10 m.
BACKGROUND
6The background facts of the matter are generally unopposed.
7The Property is located on a bay of Six Mile Lake and has a lot area of 2,682 square metres (“m2”) with a road frontage of 53.2 m and a water frontage of 31.2 m. The existing development on the Property consists of a single detached dwelling, bunkhouse, dryland boathouse, garage, privy and docks. An overhead hydro line bisects the Property, restricting development further away from the water.
8The Property is within the Waterfront designation of the District of Muskoka Official Plan (“District OP”). Under the Township of Georgian Bay Official Plan (“Township OP”), the Property is in the Waterfront Area and is designated as part of the Six Mile Waterfront Community. The Property is zoned Shoreline Residential Six (SR6) under the Township of Georgian Bay Zoning By-law No. 2014-75 (“ZBL 2014-75”).
9The Application requests the following zoning modifications:
a maximum lot coverage (of total property) of 10.5% instead of the ZBL requirement of 8%;
a maximum lot coverage (within 60 m of the shoreline) of 11.4% instead of the ZBL requirement of 8%;
a maximum gross floor area of the dwelling of 275 m2 instead of the ZBL requirement of 190 m2;
a maximum width of dwelling of 17.4 m instead of the ZBL requirement of 7.8 m; and
a minimum front yard setback of 10 m instead of the ZBL requirement of 20 m
Analysis
10The parties agree that this case is primarily concerned with local planning issues. They further confirm that the Application has adequate regard for matters of provincial interest in accordance with s. 2 of the Planning Act (“Act”) and is consistent with the Provincial Policy Statement 2022 (“PPS”). Based on the evidence presented, the Tribunal accepts these positions and finds same.
11With these broader policy issues resolved, the Tribunal is being asked to determine:
whether the Application conforms to the District OP;
whether the Application conforms to the Township OP;
whether the Application sufficiently regulates matters of built form; and
whether the Application constitutes good planning.
12The Tribunal heard from two witnesses qualified to provide expert opinion evidence in the area of land use planning: Rick Hunter on behalf of the Applicants and Allan Ramsay on behalf of the Township.
Conformity with the District OP
13The Township submitted that section J4.2 of the District OP states the objectives of the District OP for the Waterfront Area as follows:
a) Protect the ecological features and functions of lakes, rivers, and shorelines;
b) Ensure the protection of the exceptional visual aesthetics of the lakes, rivers and shoreline areas and preserve the overall natural appearance of the Waterfront Area;
c) Encourage the conservation of the overall landscape, including but not limited to tree cover and vegetation in order to protect the resilience and integrity of ecosystems;
d) Protect the integrity of the landscape and natural environment, particularly wetland areas, shorelines and other water resources;
e) Protect fish and wildlife resources in and around waterbodies;
f) Support the development and redevelopment of recreational dwellings as appropriate;
h) Ensure that the character of new development is reflective of or compatible with existing development in the Waterfront Area.
14Mr. Ramsay testified that the recurring theme of these policies, and other policies in the Waterfront designation, is the requirement to protect natural features and recreational water quality, permit appropriate redevelopment, and maintain visual predominance of the natural shoreline. The Tribunal accepts his opinion in this regard.
15The Township drew the Tribunal’s attention to section C2.6.4.2 a) of the District OP, which states:
Through the review of the Muskoka recreational water quality program, it has been determined that the overall health of lakes and rivers in Muskoka is very good to excellent and that the cautious approach to development taken in Muskoka has been beneficial. Consistent with the Guiding Principles of this Plan, the precautionary approach will be continued. In this regard, new lot creation, development or redevelopment will only be permitted where it is determined that impacts on water quality can be managed, mitigated or effectively eliminated and where resiliency of a waterbody to other environmental stressors is promoted in accordance with the policies of this Section.
16The Township submitted that this policy requires a “precautionary approach” to protecting water quality, requiring some sort of technical demonstration on the Applicants’ behalf to show that impacts to water quality from the proposed larger built form can be managed, mitigated, or effectively eliminated. It was on this basis that Mr. Ramsay testified that the Applicants have not demonstrated that there will be no impacts to water quality, so the Application does not conform to section C2.6.4.2 a) in his opinion.
17The Applicants take the position that a complex study and technical report is not necessary to assess conformity with the applicable policies because the effects of the proposed development are an obvious improvement over what currently exists. Mr. Hunter noted the following improvements proposed as part of the Applicants’ plan (noting that this represents the proposed 10 m setback from the water, and a 15 m setback would provide an even greater net improvement):
a reduction in the overall width of built space from 22.5 metres (73.8 feet) to 17.4 metres (57 feet), and consequently, a significant increase in the natural area;
an increase in the setback from 6.6 metres (21.6 feet) to a minimum of 10.0 metres (32.8 feet);
the removal of 39.4 square metres (424 square feet) of built space that is less than 10 metres (32.8 feet) from the shoreline;
an increase in the shoreline buffer area that will be subject to a revegetation and shoreline naturalization plan as part of the site plan approval;
a net reduction of 21.5 square metres (231 square feet) in the amount of built space that is located between 10 metres and 15 metres (32.8 feet and 49.2 feet) of the shoreline from 69.8 square metres (751 square feet) to 43 square metres (463 square feet);
A reduction in the overall built space within 20 metres (65.6 feet) of the shoreline, from 144.7 square metres (1,557 square feet) to 122.3 square metres (1,316 square feet);
41% of the new dwelling will be over 20 metres (65.6 feet) from the shoreline; with 79% being over 15 metres from the shoreline, where almost all of the existing development was located within the 20 metres (65.6 feet) setback;
A reduction in the number of buildings on the property from 4 buildings to 3 buildings,
A reduction in the total number of bedrooms on the property from 5 bedrooms to 4 bedrooms and no increase in the number of bathrooms in the dwelling.
18The Tribunal accepts the opinion of Mr. Hunter and similarly finds that the proposed development is an obvious net improvement to what currently exists, and it complies with the aforementioned policy of the District OP.
19The Township also drew the Tribunal’s attention to section C2.6.4.2 c) of the District OP, which states:
At a minimum, 75% of the linear shoreline frontage of a lot shall be maintained in a natural state to a depth of 15 metres from the shoreline where new lots are being created and where vacant lots are being developed. The linear buffer should be consecutive where terrain and soil conditions permit. Where redevelopment is proposed, or where the lot is located within an Urban Centre or Community designation, the buffer should be achieved to the extent feasible. Where the length and depth cannot be met, a net improvement over the existing situation is required. [emphasis added]
20Mr. Hunter acknowledged that the proposed development could feasibly be moved back to accommodate a 15 m buffer. Given this fact, the Tribunal finds that the proposed 10 m setback does not conform to the policy. However, as confirmed by Mr. Hunter, a 15 m setback is acceptable to the Applicants and the proposed development could proceed on that basis. The Tribunal therefore finds that the proposal conforms with this policy if the ZBA includes a 15 m front yard setback.
21The Township further drew the Tribunal’s attention to section C2.6.4.2(f), which imposes a 20 m setback from the shoreline, and took the position that the proposed 10 m (or 15 m) setback does not comply. However, the Applicants correctly point out that this section includes a caveat, whereby, if the 20 m setback cannot be achieved, a lesser setback may be considered if sufficient lot depth is not available or redevelopment results in a net improvement over the existing situation.
22Mr. Hunter opined that this is the situation in the present case, with the overhead hydro lines behind the cottage constraining any further setback from the water, and there will be a net improvement from the current 6.6 m setback to either 10 or 15 m. The Tribunal accepts this opinion and finds that the proposal complies with the policy on either basis.
23The Township further drew the Tribunal’s attention to various parts of section J4.3 of the District OP, which state:
(f) Natural form and function shall be the predominant characteristic of the landscape.
(g) The maintenance of the shoreline of lakes and rivers is key to preserving the quality of the natural and cultural heritage of Muskoka within the Waterfront Area. Tree cover, vegetation and other natural features are encouraged to be retained to uphold the visual and environmental integrity of the Waterfront Area.
(i) In order to ensure compatibility with existing development, new development should generally have a physical character similar to or compatible with existing development in terms of density, lot sizes, maximum building heights, and minimum setbacks.
(m) In preparation of policies relating to narrow waterbodies and slopes, the Area Municipalities shall consider protection of water quality, natural heritage features and areas, aesthetics, and navigation as applicable through a variety of tools which may include increased lot size, frontage and/or setbacks, identification of specific building envelopes, and implementation of site evaluation reports.
24The Township takes the position that the proposal fails to show conformity with this section of the policy because there is no evidence before the Tribunal that natural form and function will be the predominant characteristic if the proposal is approved, nor is there sufficient evidence before the Tribunal that the proposed massing will uphold the visual and environmental integrity of the Waterfront Area.
25Mr. Ramsey’s opinion supports this position, as he testified that the proposed cottage is 44.7% larger than the Gross Floor Area (“GFA”) Zoning standard applicable to undersized lots and 123.1% larger than the zoning standard width. He further opined that the proposed massing would be accentuated by the steep slope of the Property.
26Mr. Ramsey further opined that the proposal is not compatible with existing development in the surrounding bay, taking the position that the proposed building would be far larger than any other cottage on the bay.
27On this last point, the Tribunal finds that the visual evidence directly contradicts Mr. Ramsey’s opinion. For example, the cottage at 60 Beverley Street is just three lots over from the Property, it features a very similarly sized lot, and, the Tribunal finds, a very similarly sized cottage (albeit smaller) compared to the Applicants’ proposal. 60 Beverly Street is also much closer to the water than what the Applicants propose, and it features no vegetative buffer or screening whatsoever. As a result of its proximity to the water in particular, the Tribunal finds that 60 Beverly Street exudes a much greater impact and predominance compared to what the Applicants are proposing. At the same time, in terms of size, it represents the most recent development on the bay and demonstrates the evolving nature of the area’s character.
28When questioned about a comparison with 60 Beverly Street, Mr. Ramsey admitted that he had excluded this cottage from his analysis because he found it to be an anomaly and not representative (in his opinion) of the overall character of the area.
29The Tribunal finds this exclusion to improperly skew Mr. Ramsey’s results in favour of the Township’s position. The Tribunal accepts the Applicants’ submission that this is “indicative of a result-oriented analysis”. Consequently, the Tribunal assigns less weight to Mr. Ramsey’s evidence and prefers the evidence of Mr. Hunter, who did not exclude any properties when coming to his conclusions.
30Also absent from Mr. Ramsey’s evidence is the fact that most of the lots on the subject bay are undersized, making the size of the subject lot typical of the area (not “one of the smallest”), and many if not most of the cottages located thereon are not in compliance with the applicable ZBL, including with respect to width and setbacks. As a result, despite the Applicants’ proposal not being in strict compliance with the ZBL, it remains in conformity with the District OP because it fits in within the existing eclectic nature of the surrounding area, including with respect to width and setbacks of surrounding cottages.
31As stated previously, the Tribunal also finds that the proposal constitutes a net improvement in almost every technical respect compared to what exists there now. The Tribunal finds the fact that the proposal reduces the number of dwellings on the property to be particularly significant as it relates to conformity with the District OP, given that multiple dwellings on a single lot is not typical of the area and it leads to a perception of greater density.
32In conclusion on this issue, the Tribunal accepts Mr. Hunter’s opinion insofar as the proposal conforms with the District OP, provided that the front yard setback is 15 m, for the reasons set out above.
Conformity with the Township OP
General Waterfront Policies
33The Township drew the Tribunals attention policies F.1.2.3, F.1.2.4, and F.1.2.5 of the Township OP, which provide policies for the Waterfront designation. Mr. Ramsay opined that these policies continue the recurring theme of the importance of recognizing and having regard for character, the aesthetic quality of the Waterfront area and the need for development to be compatible with existing land uses. The Tribunal agrees with this general assessment.
34Mr. Ramsay further opined that the proposed ZBA does not conform with the principles of these policies. He testified that the proposed cottage would be the largest cottage on the bay on one of the smallest lots. He acknowledged that, while some cottages on the bay are prominent when seen from the water, he opined that the cottages are generally small, single storey buildings. Mr. Ramsay further testified that the proposed building would far exceed the massing of all other buildings in the bay and would therefore have a greater visual impact when seen from the water. Mr. Ramsay also opined that the steep slope of the property would accentuate the proposed building’s massing. On this basis, Mr. Ramsay concluded that the proposed ZBA does not conform to the general principles in policies F.1.2.3, F.1.2.4, and F.1.2.5.
35The Applicants disagree with such an assessment, as supported by the evidence of Mr. Hunter. The Applicants submit that it is an overstatement to characterize the subject lot as “one of the smallest”, given that the evidence shows it is similar in size compared to many surrounding lots. While it may be that the proposed cottage is larger than any other cottage on the bay, it is not substantially larger, especially in comparison to 60 Beverly Street. Furthermore, the Applicants point out that Mr. Ramsey neglected to consider the fact that the proposed cottage will be set back further from the lake than many existing cottages, with the existing cottage being the most obvious example of a cottage being located extremely close to the water. The Applicants also submit that Mr. Ramsey failed to recognize the relative width of other cottages compared to the proposed cottage, including the present combined width of the two dwelling-structures on the subject property.
36The Tribunal considered Mr. Ramsey’s contention that the steep slope of the subject property contributes to a perception of massing, but finds that the evidence does not support this. The visual evidence shows that the bunkhouse is located at the top of this slope, at approximately the 15 m setback, and it does not contribute to an appearance of predominance.
37The Tribunal accepts the submissions of the Applicants and evidence of Mr. Hunter, and similarly finds that Mr. Ramsey’s evidence overstated a number of factors in favour of the Township’s position while failing to acknowledge other factors which are clearly in favour of the Applicants’ position. All considered, this again contributes to a finding of the Tribunal that Mr. Ramsey’s evidence should be given less weight. Accordingly, the Tribunal prefers Mr. Hunter’s evidence and finds that the proposed ZBA conforms to the general principles in policies F.1.2.3, F.1.2.4, and F.1.2.5.
Character
38The Township drew the Tribunal’s attention to policy F.1.3 of the Township’s OP related to the character of the Waterfront Area. The policy states:
The Character of the Waterfront Designation will be maintained by retaining the overall low density of built form and development while generally preserving the shoreline in a natural and undeveloped appearance.
39Mr. Ramsey opined that the proposed cottage would not be compatible with this character. In support of this assertion, the Township and Mr. Ramsay again both emphasized a shared contention that the subject lot is “one of the smallest” on the bay, with Mr. Ramsey noting that the subject lot is approximately one-third the size of the minimum lot area required for a new lot pursuant to policy F.5.9.5.2.
40However, in retort, the Applicants pointed out that Mr. Ramsay’s initial and corrected lot size calculations demonstrated that all of the lots in the area are smaller than what would be permitted for a new development lot, and many of them are less than half that size. The Tribunal again finds that the subject lot is, albeit relatively small, within the range of the average lot sizes on the bay and it is an overstatement to characterize it as “one of the smallest”.
41As far as the size of the proposed cottage is concerned, there is little debate that it will be one of the largest or largest cottage on the bay. However, the Tribunal finds that this does not automatically make it out of character. As stated above, the Tribunal finds it similar to 60 Beverley Street, which was omitted from Mr. Ramsey’s analysis. As pointed out by Mr. Hunter, 60 Beverley Street not only represents a similarly sized cottage on a similarly sized lot, it is also one of the most recent developments, signalling the evolving character of the bay. The Tribunal accepts this opinion and similarly finds that character is not expected to be static or judged solely on the basis of a majority.
42The Tribunal further does not accept Mr. Ramsey’s overly mathematical approach to assessing character. When it comes to character, the Tribunal finds that size is not everything. For example, 60 Beverley Street is situated much closer to the water with no buffering whatsoever, while the proposed cottage will be set back considerably further. Comparing the character of the two cottages from a “[preservation of] shoreline [and] natural and undeveloped appearance” perspective, 60 Beverley Street is far more out of character than what the Applicants are proposing.
43On a final note regarding the assessment of character, the evidence shows that the front of the proposed cottage (if it is setback 15 m) will be close to the front of the existing bunkhouse, which, as it exists, is located behind the existing principal cottage on the Property. The photographs shown to the Tribunal demonstrate that such a setback will provide a much deeper shoreline compared to other cottages on the bay. As opined by Mr. Hunter, such a deeper shoreline will provide considerably greater opportunities for natural vegetation, screening, and restoration of the natural appearance of the shoreline. Accordingly, the Tribunal finds that the proposed cottage will be substantially more in conformity with the Township OP’s policies than what currently exists, as well as in comparison with most of its neighbours.
Six Mile Lake – Size of Dwelling Units
44Regarding dwelling size, the Township drew the Tribunal’s attention to the following Township OP policies specific to the Six Mile Lake Waterfront Community:
F.5.9.1.1: To provide land use planning policies that protect the natural heritage and aesthetic integrity of Six Mile Lake while accommodating a limited amount of new development.
F.5.9.3.4: The visual impact of development from the water is an important parameter in maintaining the Character of the lake.
F.5.9.7.1 The size of a dwelling, combined with its location on a site, will have a direct effect on the visual impact of the development. As such, the ZBL shall provide standards to regulate dwelling size, to avoid overly large cottages on the lake. Cottage size may be regulated through a combination of restrictions on the total footprint, floor area, width, or height, combined with setback and landscaping considerations.
F.5.9.7.2 The standards on maximum size of a dwelling may vary depending on the size of the lot on which it is located.
F.5.9.7.3 In general, the size of a dwelling shall not exceed the following standards:
a) A maximum Gross Floor Area of 275 square metres, maximum height of 2½ storeys; and
b) A maximum width of 25% of the Frontage of the lot as defined by the Zoning By-law.
F.5.9.7.4 Variances to the established maximum size and/or width of a dwelling may be considered where the Applicant provides evidence satisfactory to the Township that the visual impact of the dwelling will not be significant.
45The Township acknowledges that the GFA of the proposed cottage is within the prescribed limits of policy F.5.9.7.3. However, the Township submits that the reduced GFA of 190 m2 prescribed in the current ZBL was implemented by the Township in accordance with policy F.5.9.7.3. The Township therefore submits that this indicates a specific intention to limit building size in the Six Mile Lake Community to less than 190 m2 and, as a result, the proposed ZBA does not conform to the Township OP.
46The Township proposes that the key test for a ZBA application, to increase a dwelling size beyond the prescribed GFA limit of the ZBL (being 190 m2 in the present case), is contained in policy F.5.9.7.4, copied above.
47The Tribunal does not agree with this interpretation, and instead finds that policy F.5.9.7.4 speaks to variances in the context of a minor variance application. The question currently before the Tribunal is whether or not the ZBA application conforms with the Township OP. The Tribunal finds that it does conform given that the proposed GFA of the cottage is within the maximum set out in the policy. In addition, the Tribunal notes that Policy F.5.9.7.3 uses the word “generally”, which infers some flexibility beyond the maximum prescribed GFA of that policy.
48If the Tribunal is wrong with its interpretation, then it nevertheless finds that the proposal conforms to the Township OP because the Applicants have provided satisfactory evidence to demonstrate that the visual impact of the dwelling will not be significant. Such evidence includes several photographs of the subject property from the water, showing both the principal cottage and the bunkhouse set further back, together with the proposed design plans for the cottage and site plan showing where it is to be located relative to a 15 m setback and existing structures. The site plan shows that the front of the proposed cottage will be situated at approximately the same location as the front of the existing bunkhouse. With the Tribunal finding that the visual impact of the existing bunkhouse is not significant due to its setback, the Tribunal is satisfied that the visual impact of the proposed cottage will also not be significant despite its size.
49The Tribunal notes that Mr. Ramsay opined that that the Applicants have not met the policy F.5.9.7.4 test because, in his opinion, they had to prove that the visual impact of the proposed dwelling will not be significant through a visual impact study. The Township takes the position that, in the absence of such a study, it is not possible to make a determination as to the visual impact of the proposed building.
50As stated above, the Tribunal does accept this assertion. While the visual evidence provided is not perfect and could be better, it is also unreasonable to insist that the Applicants must provide a complex and costly visual impact study report in the present case. To repeat, the Tribunal finds the visual evidence submitted is satisfactory to conform with policy F.5.9.7.4 if it applies.
Setbacks
51Regarding setbacks, the Township drew the Tribunal’s attention to policies F.5.9.10.1 and F.5.9.10.2 which state that the purpose of setbacks is to maintain the natural integrity of shorelines, reduce or soften the visual impact of development, and vegetation should be disturbed as little as possible.
52The Township also drew the Tribunal’s attention to Policy D.2.2.4.2, which requires a 15 m vegetated setback from the water (effectively identical to policy C2.6.4.2 (f) of the District OP), and Policy D.2.2.4.3 which requires a 20 m setback from the high-water mark. The Tribunal notes that a key portion of Policy D.2.2.4.3 includes “[w]here the 20 metre setback cannot be met, then a lesser setback may be considered through a variance to the Zoning By-law and subject to Site Plan Control”.
53The Tribunal has already found that the subject application conforms with the District OP provided that a 15 m front yard setback is established, and the same is true with respect to policy D.2.2.4.2. Regarding policy D.2.2.4.3, the Tribunal finds that the application is also in conformity with this section given the restraints on the property caused by the overhead hydro lines. The Tribunal rejects the Township’s and Mr. Ramsey’s assertion that the hydro lines can be either moved or buried. Such a proposal would almost certainly be cost prohibitive and also impact neighbouring properties who are serviced by the same lines.
54The Township and Mr. Ramsey also suggest that a greater setback could be achieved if the proposed cottage was made smaller or redesigned. The Tribunal also rejects these suggestions because, to do so, it would likely defeat the purpose of the proposed cottage, being to replace two existing dwelling-strucures with one capable of housing approximately the same number of occupants under one roof.
55The Tribunal finds that the proposed use of the new cottage is relevant to the analysis and should not be readily dismissed when considering the feasibility of reducing its size. In addition, there was no evidence provided to suggest that the proposed cottage could be simply redesigned to comply with setbacks. On its face, the proposed design of the cottage does not feature obvious impairments regarding its ability to comply with setbacks (i.e. it is not a particularly deep design that unnecessarily projects the front into the setback area).
56The Tribunal finds that the proposal conforms with the relevant sections of the Township OP as it relates to setbacks because it is not feasible to push it back further than 15 m from the water. The Tribunal is also generally satisfied that the proposal adequately considers the maintenance of the natural integrity of shorelines, reduction and softening of the visual impact of development, and that vegetation will be disturbed as little as possible. The Tribunal finds that the proposed development will actually, more likely than not, lead to an enhancement of the stated shoreline concerns.
57In conclusion on this issue, the Tribunal accepts Mr. Hunter’s opinion insofar as the proposal conforms with the Township OP, provided that the front yard setback is 15 m, for the reasons set out above.
Regulation of matters of built form
58As it relates to the question of whether or not the proposed ZBA sufficiently regulates matters of built form, the Township’s submissions were principally focused on the same mathematical approaches as is covered above respecting conformity with the District and Township OPs (i.e. the relative size of the proposed cottage, lot, etc.).
59During his testimony, Mr. Ramsey principally addressed this issue from the standpoint that the proposed ZBA should include more details restricting built form and prescribing vegetative buffers, etc., in order to mitigate any potential negative impacts the development might have on the surrounding area (i.e. visual impact, storm water flow, etc.).
60The Applicants take the position that such matters are more appropriately addressed through the site plan control process, which is mandated in the present case, and it would be peculiar to include such fine details related to design and landscaping in a ZBA. The Applicants contend that a ZBA is painted with broad strokes, and the finer details are more appropriately dealt with at the site plan control stage.
61When Mr. Ramsey was pressed on this issue through cross-examination, and asked to particularize what, if any, design/landscaping details could appropriately be added to the terms of the ZBA, his only suggestion was to include a requirement for a specified width of a vegetative strip along the shoreline.
62The Tribunal accepts the position of the Applicants and similarly finds that it is inappropriate to include finer details respecting building design and landscaping in the proposed ZBA. The Tribunal notes that the design and landscape plans tendered as part of the subject application are only meant to illustrate the proposed plan and are not otherwise binding. While the Tribunal accepts Mr. Ramsey’s assertion that it may be appropriate in some cases to prescribe a vegetation strip of a specified width in a ZBA, the Tribunal does not find it appropriate in the present case, especially given that the proposal is still subject to site plan control that will deal with such details.
63In summary on this issue, the Tribunal finds that the proposed ZBA does sufficiently regulate the built form.
Does the Proposed ZBA constitute good planning?
64Mr. Ramsay opined that the proposed ZBA does not constitute good planning, opining that the proposed ZBA represents an overdevelopment of the site and would result in negative visual impacts to the Lake. Mr. Ramsay also indicated that the proposed ZBA would permit the continuation of a legal non-complying setback in perpetuity.
65Through its submissions, the Township contends that the thrust of the Applicants’ stated purpose for the cottage, to facilitate occasional gatherings of a multigenerational family, suggest that they are seeking a ZBA concerned with ‘users’ rather than ‘uses’ of the subject lands. The Township further submits that this is at odds with basic principles of land use planning and the jurisprudence of the Tribunal and, as a result, the proposal does not constitute good planning in the public interest.
66The Applicants generally take the position that their proposal constitutes a net improvement over what currently exists on the property, replacing two aging structures with one modern more attractive cottage further away from the water. While the new cottage is larger from a GFA standpoint, its impact on the views from the water are reduced due to an overall reduction on width (when combining both existing structures) and increased setback compared to the existing principal cottage. The net result also provides potential for greater naturalized areas along the shoreline and such details can addressed during the site plan approval process. The Applicants further confirm that they accept a 15 m setback, which is the furthest they can move the cottage back due to constraints caused by an existing hydro.
67The Tribunal accepts the Applicant’s position and finds that the proposal constitutes good planning in the public interest for the same reasons. The Tribunal rejects the Township’s submission that the proposal is concerned with users rather than land uses, given the fact that the plan involves the replacement of two aging dwellings with one modern unit designed to house approximately the same number of people under one roof.
Summary and Conclusion
68The Tribunal allows the appeal as requested, but the requested front yard setback of 10 m shall be 15 m. For the reasons set out above, the Tribunal finds that the proposed ZBA with 15 m setback conforms with both the District and Township OPs, it sufficiently regulates built form in the given context, and it otherwise constitutes good planning in the public interest.
69The Tribunal confirms that it has had due regard for the decision of Township Council in accordance with s. 2.1(1) of the Act.
ORDER
70The Tribunal Orders that the appeal is allowed, in part, and Zoning By-law No. 14-75 of the Township of Georgian Bay is hereby amended as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the Township of Georgian Bay to assign a number to this by-law for record keeping purposes.
“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.