Moreau v. Georgian Bay (Twp.), 2022 CanLII 58202

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 29, 2022

CASE NO(S).: OLT-22-002211 (Formerly PL200478)

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

Appellant: Michael Moreau

Subject: Application to amend the Zoning By-law – Refusal of application

Description: To permit a floating dock and remove the holding provision to confirm the high-water mark

Reference Number: ZBL 18/32

Property Address: 818 Island 820

Municipality/UT: Georgian Bay/Muskoka

OLT Case No: OLT-22-002211

Legacy Case No: PL200478

OLT Lead Case No: OLT-22-002211

Legacy Lead Case No: PL200478

OLT Case Name: Moreau v. Georgian Bay (Twp.)

Heard: March 28 to April 1, 2022

APPEARANCES:

Parties

Counsel

Michael Moreau

S. Hahn

Township of Georgian Bay

P. Pickfield

Eastern Georgian Bay Protective Society Inc.

D. Donnelly

DECISION DELIVERED BY G. BURTON AND D.S. COLBOURNE AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was an Appeal of the refusal by the Council of the Township of Georgian Bay of an application by the owner of an existing lot of record known municipally as 818 Island 820 Georgian Bay, to amend the applicable zoning to permit cottage construction. The lot is located on Mermaid Island (Part of Lot “B”, Island 136) north of Honey Harbour.

2Location maps may be seen at pages 348 and 199 of Exhibit 1, the Joint Document Book. An annotated survey showing the proposed construction on this vacant parcel is found in Mr. Ramsay’s Witness Statement at p. 356 of Exhibit 1. Surrounding land uses on the island are all residential, cottages with access docks and some boathouses.

3The application sought amendments to the Township Zoning By-law Amendment No. 2014-75 (“ZBLA”). No Official Plan (“OP”) amendments are required. The lot is now designated Waterfront, within the Honey Harbour Coastal Waterfront Community in the Township OP. It is zoned Shoreline Residential Island Type One (SRI1), with an H2 holding provision, as are most vacant islands on Georgian Bay. This ensures that there is sufficient lot area and frontage for development before the hold is lifted. Access here is by water only. The shoreline along the small embayment in front of this parcel is zoned Fish Habitat Type One (“FH1”).

4The amendments would remove the Holding symbol to enable the lot to be developed for cottage recreational purposes. There is no specific development proposal or design at present. There was also a request for a special exemption to the FH1 zoning of the embayment in front of the lot, to permit construction of an access dock. Docks are not otherwise permitted in this zone.

5As explained in the Township OP, section D.1.6.2 (a), this zoning category deals with:

Critical Habitats (Type 1) are those which have a high productive capacity, are rare, highly sensitive to Development, or have a critical role in sustaining fisheries (e.g. spawning and nursery areas for some species, and ground water discharge areas);

6An Impact Assessment (usually called an Environmental Impact Study, or EIS) is required by s. D.1.6.6. of the Township OP, demonstrating that “..there will be no Negative Impact on the natural features or ecological function of the habitat except in accordance with Provincial and Federal policies and regulations. (underlining added).

7Specifically, the ZBLAs applied for would:

1. remove the H2 zoning, to permit cottage development with a septic system, and
2. establish a site-specific FH1-5 exception, to permit an access dock in a Type One Fish Habitat. As mentioned, a dock is not presently permitted in an Environmental Protection Zone, and the FH1 zone is included in this category (Exhibit 3, s.17.2 and 17.3).

8Prerequisites for removal of the H2 symbol include a plan of survey to confirm the lot area above a specified contour, and the location of the high water mark. The contour is the 177.4 contour elevation for Georgian Bay (Exhibit 1, p 188, and the Agreed Statement of Facts, No. 1 – Exhibit 4).

9The small “embayment” (“a recess in a coastline or an indentation off a shoreline that forms a bay”) on which the lot is located is off a channel of Georgian Bay north of Honey Harbour. There are 48 cottages now constructed on Mermaid Island, all with water access only. An Ontario Hydro corridor is located immediately to the northeast of the subject property.

10The site is also designated “Waterfront” in the District of Muskoka OP. Mr. Pickfield for the Township pointed out that the planning framework here is unique, as this archipelago of islands has protection as part of the Georgian Bay Biosphere Reserve. Its 35,000 H, including all islands from Port Severn to the French River, are considered critical habitat for Species at Risk and others.

11This lot was described as wide and shallow, with an area of 4,995 square metres etres (“sq m”) and 80.6 metres (“m”) frontage. The proposed cottage development would meet the minimum lot requirements in the By-law. Setbacks required in the ZBL are 20 m from the high water mark (the 177.4 contour elevation), and 10 m from the rear lot line. In this case these setbacks would create an “atypical” building envelope, according to the Township. Access to the lot is proposed to be by means of a 26 m dock, a portion of which would fixed on a piled ramp, with a floating extension available when water levels are lower.

12The application for ZBLAs was opposed by both the Township and the Eastern Georgian Bay Protective Society Inc. Council denied the application on Sept. 14, 2020, and this was appealed to the Tribunal on October 9, 2020.

13The expert witnesses for both sides who testified in the Hearing came to an Agreed Statement of Facts. These included Andrea Smith, Sarah Aitken, Gord Nielsen, Dr. Patricia Chow­ Fraser, Sarah Mainguy and David Fancher. The Tribunal includes these facts here for information purposes:

Water Levels

The high water mark for properties on Georgian Bay is 177.4 m, based on the elevation used by the Township of Georgian Bay for planning purposes. The approximate low water mark for properties on Georgian Bay is 175.6 m, based on the historic lowest water level on record. Winds on Georgian Bay can affect water levels at any given location at any given time.

Fish Habitat

Type 1 Fish Habitat has been identified and mapped in the entire embayment fronting the property, because of the presence of aquatic macrophytes providing spawning, feeding, and nursery habitat.

The lakeward and landward extent of fish habitat varies in Georgian Bay generally depending on water levels.

Species at Risk and Significant Wildlife Habitat

Potential significant wildlife habitat and potential habitat for threatened and endangered species exist on the property.

Evidence of the Applicant

14Gordon Neilsen, an Environmental Consultant and Aquatic Biologist, had provided an analysis of the proposal during the application, and testified as an expert at the Tribunal on the Appeal (Exhibit 4). He had been requested by the owner Mr. Moreau in 2018 to complete a Fish Habitat Impact Assessment, a prerequisite to lifting the H zoning provision on this lot. The Ministry of Natural Resources and Forestry (“MNRF”) had identified the embayment here as Type 1 Fish Habitat, he testified. Thus, he prepared a formal Fish Habitat Assessment (Exhibit 4, Attachment 3). This Report by his firm Michalski Neilsen dated October 22, 2018 addressed the Township’s policy directions, water levels, existing site conditions, and biophysical conditions of the site.

15He had inspected the property on October 17, 2018, when the aquatic vegetation was in the early stages of the fall die-back. He testified that this is an appropriate time for viewing it. Presence of such vegetation is important, as it led to its identification as a Type 1 Fish Habitat (although, he pointed out, the Ministry maps were now 22 years old and not updated). Productive spawning, juvenile development and feeding opportunities are provided along the protective embayments in this Honey Harbour area, including in this one. However, there are many docks in shallower areas nearby. Barges are used now for construction, and also by Ontario Hydro. These do not have a “negative impact” on the Fish Habitat. Nor does the slow operation of boats near the shore. The mere presence of boats in his opinion would reduce other harmful activities here.

16Mr. Neilsen addressed the issues of possible structures on the lot, and the appropriate access to the property for construction purposes. He concluded that a cottage structure meeting the By-law requirements could be built on the site, on either side of the hydro cut (see Photo 12, p. 33). A 20 m setback from shore is proposed. The structure would be on well-drained land, accessible via a 4 m construction trail (later 2 m), from a shoreline dock. As well, a construction barge landing could be located where the dock would be placed.

17He took photos during his 2018 inspection, in which he divided the nearshore area of the embayment into transects. He determined that his northerly shore transects A to D were preferable for the access structure, having sparce aquatic vegetation and a more rapid transition there to deeper water. He selected parts of B and C as an acceptable location for a “shoreline structure” or dock (Exhibit 4, p. 22). He testified that in this area the lakeward extent of Type 1 Fish Habitat is quite limited, leaving the possibility of a dock over this area with a boat slip in the deeper water here. Details of substrates and aquatic vegetation are found at pp. 22 and 23 of his Report. The hydro cut is in the vicinity of his transect B.

18He clarified in cross-examination that there are all types of vegetation in the embayment – emergent close to shore, submergent and floating further out. A narrow walkway would not in his view damage this vegetation. Many shallower areas nearby contain access docks. Boat and jet ski access to this Fish Habitat is not controlled, he testified. It would not cause the “negative impacts” on fish habitat proscribed in the Provincial Policy Statement (“PPS”) or the applicable OPs. He had examined Dr. Chow-Fraser’s report, and disagreed with her opinion on the degree of protection required for the aquatic vegetation here.

19The total area of a dock should be kept small to reduce potential shading of the vegetation, he concluded. The structure should be partially floating to accommodate shifting water levels. A suggested configuration by SoftPlan (not prepared by Mr. Neilsen) is found in Exhibit 4, Attachment 5 to his witness statement. This also illustrates water depths. However, Mr. Neilsen objected to the other parties reacting as if this sketch was part of the application, as it was conceptual only, created later, and would have to be adjusted.

20Mr. Nielsen found that boats can access/egress a dock in deeper water with no concerns of cropping aquatic vegetation. He recommended that the boat slip portion of the dock should be a minimum of 12 m offshore, the surface area limited to 45 sq m to minimize shading on Fish Habitat, and the width to a maximum of 1.8 m. The maximum total footprint of the ramp should be 22 sq m . The dock can be limited in size to meet the recommendations of the Fish Habitat assessment and the Township ZBL. Risk of negative impact on FH1 habitat has been mitigated, in his view, by the dock size and location.

21Later, at the request of the Township, he filed an Addendum to his Report respecting Species at Risk under the Endangered Species Act (January 8, 2019, p. 56). This was in response to a biologist at MNRF who had stated that areas of this property may have the potential to harbour Blanding’s Turtles and Eastern Foxsnake. Both are protected species and habitat under the Endangered Species Act . He testified that the details of future development and mitigation measures could be safely set at the later Site Plan Control stage. Once the ZBLA is approved, and prior to construction, the required reports establishing safeguards for both fish and terrestrial species at risk would be provided, as outlined. Mr. Neilsen also explained that “potential” habitat for endangered species could be found on virtually every other island or shoreline property in the broader area here. This property had no ideal pond or wetland, nor exposed rock preferred by the Turtle or Foxsnake. He reiterated that the H zoning had been imposed to safeguard only the fish habitat.

22In a letter refuting the arguments of David Flower (Jan. 31, 2019), Mr. Nielsen reasserted that the proposed development in fact would meet the former federal Fisheries and Oceans 2007 guidance document for docks and boathouses (p. 65 – Exhibit 1, p. 717). It required no further fisheries approvals. Thus, it met s. 2.1.6 of the PPS, as being “in accordance with provincial and federal requirements”.

23He next provided a letter to the Township (March 18, 2020, Exhibit 4, Attachment 10) critical of a so-called “peer review” of the fish and species at risk habitats authored by North-South Environmental Inc. (found at Exhibit 4, Attachment 9). This report, he stated, was prepared on the request of Thomas Bain, a nearby cottager, and was therefore not objective. It was premature, he said, to impose requirements beyond the nearshore and riparian zones at the time of lifting the H zoning. He reiterated that the lifting of a holding provision merely establishes that there is potential to develop the property (p. 86). A second stage of environmental review is required, and is appropriate at the time that detailed development is proposed. He stressed that there was no provincial policy or direction covering development pressures in the biosphere area.

Township Planning Department Report following Application

24On September 14, 2020, Jamie Robinson, Planning Consultant for the Township, provided his opinion to Council on the application for zoning amendments. He affirmed that supportive Fish Habitat Impact and Species at Risk (“SAR”) Assessments had been received, as well as the required survey confirming the high water mark. He reviewed the objections received, confirming that the lot size, septic system proposals, and water depth of 6 feet are adequate. There was no need for additional limitations on the residential development beyond those recommended by Mr. Neilsen.

25At the Hearing, Mr. Robinson provided testimony to the Tribunal under summons from the owner. He confirmed his earlier opinion that the site is suitable under the applicable planning documents. There was no need to produce SAR or Fish Habitat reports prior to the Site Plan stage, since the principle of the desired use had already been established in the existing zoning under s. 34 of the Planning Act (“Act”). He had nonetheless received and studied the SAR report from the Applicant, required for removal of the H symbol. In cross he opined that there had been no need for the “peer review” of Mr. Neilsen’s Report by North/South Environmental Inc., who did not conduct a site visit. The Township had relied on Mr. Neilsen’s work in the past.

26In Mr. Robinson’s earlier Report to Council, he had considered theProvincial Policy Statement 2020 (“PPS”) and the District and Township OPs. It is a Rural Area under the PPS and a cottage use is permitted, along with management of resources. Of note is section 2.1.5, whereby it must be demonstrated that there are “no negative impacts” on the natural features or their ecological functions, when changes are proposed to natural heritage features within significant wildlife habitats. (The local OPs repeat this PPS requirement). Section 2.1.6 limits development in Fish Habitat to that permitted by provincial and federal regulations. It does not proscribe development in this habitat, as docks and shoreline structures are permitted, with conditions.

27The District of Muskoka OP that was in effect at the time of the application permits the proposed cottage use, and similar polices are found in the Township OP for the Waterfront designation. Limited development that enhances the natural heritage features of the designation is allowed. Under policy F.2.5 of the Township OP docks are limited, to protect the natural shoreline quality and character. The protection of Fish Habitat, especially in Type 1, Critical Habitat (as identified by MNRF), is addressed in s. D.1.6. The Shoreline Residential Island Type 1 zoning here (SRI1) permits a detached dwelling and accessory structures, and the FH1 zone states that any structures be set back 5 m from zone limits. The presence of SAR here was never definitively confirmed, as Mr. Neilsen had set out in his letter at Exhibit 1, p. 234.

28Mr. Robinson supported the limitations suggested in the Impact Assessment by Michalski Neilsen: a narrow raised access walkway to a single dock 6 feet. wide, with an area of 22 sq m maximum, over the aquatic vegetation close to shore. It is notable, he said, that there are no water depths required for dock access to these properties. The boat slip portion should begin 12 m offshore. A floating dock is best, given water level fluctuations. This would also meet the SAR goals for protection of any potential habitat of the Blanding’s Turtle and the Eastern Foxsnake.

29He had no knowledge of potential damage by boat propellers on the substrate macrophage, nor of potential impact on SAR from the development.

Evidence of the Township

30The Township Council rejected the application, and the Applicant appealed to the Tribunal.

31In its submissions the Township acknowledged that the removal of the H2 provision is a technical and generic requirement. The Appellant had submitted the required survey, and there is no legal basis for refusing its removal on this ground.

32Sarah Aitken of Hutchinson Environmental Sciences Ltd., Senior Aquatic Scientist, was qualified to give expert evidence on behalf of the Township in opposition to the Applicant. Her witness statement is at Exhibit 1, p. 263. She did not visit the site in person, relying on a colleague’s observations for this high-quality fish habitat, as well as those of Dr. Chow-Fraser (see below). The colleague saw abundant vegetation during the peak macrophyte growing season, some rooted and emergent above the water and some floating. Ms. Aitken testified that these provide spawning and nursery opportunities given the solar radiation, and also food and shading. Photos showed high quality, abundant cover in the whole embayment. In her opinion a floating dock would shade macrophytes on either side and below, and permit algae bloom. Boating nearby might create physiological impacts on the fish zone, as well as resuspend the sediments, which can impair fish gills. Lengthening the dock in low water conditions would not constitute mitigation, as suggested. It would impair the habitat, as above.

33Thus, in her opinion the proposed dock would not meet the applicable planning documents respecting the high level of protection of this critical Fish Habitat. The Township OP also prevents development in fish habitat unless it conforms to provincial and federal regulations (s. D.1.6.6). Here the proposed dock, and boating and barge operations, would negatively impair this Type 1 Fish Habitat. It would therefore not be acceptable, despite Mr. Neilsen’s opinion.

34Andrea Smith of the same firm addressed the terrestrial impacts of the application, such as species at risk and significant wildlife habitat. She reviewed all documents referred to as well as the Biotic Survey Report of Dr. Chow-Fraser (Exhibit 1, p. 359). She searched the (former) MNRF’s database for nearby species at risk. She called the hydro line “early successional scrub habitat”, having open rocks with moderate slopes. There may be 14 types of turtles here, from Dr. Chow-Fraser’s biotic survey. She found the single autumn site visit by Mr. Neilsen insufficient for identification of possible species at risk, and thus for formulation of mitigation measures. Ministry mapping reveals the potential for many other species at risk (para. 14, p. 294.) Her conclusion was that the lack of detailed information on significant wildlife habitat and/or threatened or endangered species in Mr. Neilsen’s reports meant that the proposal cannot be accepted. An Environmental Impact Study (“EIS”) is required to illustrate “no negative impact”, as the PPS and other applicable documents require.

35The Township also engaged the services of Allan Ramsay, an experienced Land Use Planner, to provide his ‘ independent’ expert opinion on the proposal. His witness statement is found at p. 318 of Exhibit 1. He reviewed the PPS, County and Township OPs, citing provisions that in his opinion have not been satisfied in this proposal. Section 2.1.5 of the PPS proscribes development and site alteration in significant wildlife habitat, unless “no negative impacts on natural features or their ecological functions” has been demonstrated. Such habitat includes fish as well as other threatened and endangered species. These should not be affected “except in accordance with provincial and federal requirements”. The ecological function of the existing and adjacent lands must be evaluated to demonstrate no negative impacts, in accordance with the relevant OP.

36Here the Township of Georgian Bay OP refers to a “Coastal Waterfront Community”, wherein the Honey Harbour Coastal Waterfront Community must “protect the natural heritage, preserve the recreational amenities and maintain the Character and the scenic beauty” of the Community [s. F.5.8.2.(a)]. As noted, policies addressing Natural Heritage (including Significant Wildlife Habitat and Fish Habitat) require that an Impact Assessment to be submitted prior to development.

37Mr. Ramsay pointed out that this lot, though an existing lot of record, is already smaller than the present minimum lot size now permitted, 1 hectare with 120 m frontage. The proposal would not meet the policy of maintaining 25% shoreline frontage, or 23 m, free of development (F.5.8.4 a). Setbacks and distances for development are 20 m from the High Water Mark (with some exceptions), and any development and alteration permitted in the OP must be above the Regulatory Flood Elevation, 178.3 above CGD (s. D.2.2.4.3). There are no reduced setbacks proposed in this application.

38Exceptions to the Township Zoning By-law No. 2014-75 are sought for this development, Mr. Ramsay reiterated. The SRI1 zone permits detached dwellings, but the lot here has a H2 holding provision. The “shoreline” zone is “FH1”, identified by the province as the highest quality Fish Habitat. This does not allow accessory docks, structures or boathouses. Standards where docks are permitted allow a projection of 20 m, or 26 m with a ramp. By s. 4.5, any development on land must be set back 5 m from an FH1 zone.

39Based on the ecological assessments of Ms. Aitken and Ms. Smith, Mr. Ramsay concluded that the application does not have sufficient regard for the provincial interest, as required by s. 2 of the Act. There would be insufficient regard for the long-term ecological function and biodiversity of natural heritage systems, as section 2.1.2 of the PPS requires. It is worth repeating that very similar policies are found in both the District and Township’s OPs. In his opinion, the test of no negative impacts on high quality Fish Habitat has not been met. Potential impacts have not been evaluated, and no specific mitigation methods have been recommended.

40Mr. Ramsay highlighted the references to Fish Habitat in the District OP. Section C1.4.5 c) as well as s. D.1.6.2 (a) of the Township OP describes Type 1 (as this embayment is zoned) in similar terms (see above).

Evidence of the Eastern Georgian Bay Protective Society Inc.

41The Society’s evidence was provided first by Sarah Mainguy of North-South Environmental Inc. (“N-S”). She is an Aquatic Biologist, who conducted the peer review of the Michalski Neilsen proposal for the lot at the behest of Thomas Bain of the Society. She had relied on the site visit of a colleague. The Review first confirmed that despite suggestions to the contrary, no Fisheries and Ocean Canada (“DFO”) review was needed for the development (Exhibit 1, p. 389), since no serious harm to fish “or prohibited effects on listed aquatic species at risk” (ibid.) was found. Nevertheless, the N-S study found an ideal habitat for fish here, both high quality and productive, with high species diversity (11, netted over a 24-hr period). She disputed Mr. Neilsen’s observations:

• his B-C transept did in fact contain abundant vegetation;

• areas below floating leaves preserve solar radiation for spawning; and

• even stemmed vegetation in water can cover fish habitat, and provide food and spawning opportunities.

42She concluded that the entire embayment zoned as Type 1 is indeed high-quality Fish Habitat. A dock in any one location would shade it. Boat travel along one corridor would damage fish hearing, and resuspend sediments, harming fish gills. Merely moving a dock in low water conditions would not constitute required mitigation.

43The S-N report also included more detailed studies of potential habitats of terrestrial SAR identified by the Ministry, both Blanding’s Turtles and Eastern Foxsnake. S-N concluded that these could be present here, but that studies verifying their presence or absence should be conducted at different times than in the fall, as the applicant had done. They should last at least five (5) days for Blanding’s and ten (10) days for the Foxsnake. Other SAR, and any potential wetlands, also require study. Cottage construction often leads to removal of vegetation under which SAR can shelter.

44Ms. Mainguy’s recommendations were that EIS be provided prior to any approvals for development here, in what could be Significant Wildlife Habitat (“SWH”) under the PPS and local plans. Later, in response to Michalski Neilsen’s comments on the N-S Report, Ms. Mainguy reiterated concerns about the aquatic vegetation and effects on it from the proposal. A multi-year study was required to assess these.

45Dr. Patricia Chow-Fraser, Department of Biology at McMaster University also testified for the Society. She and her students conduct research on ecology, management and restoration of Great Lakes coastal marshes, many within Georgian Bay. Her Report here is at p. 359. They studied ecological indicators in this embayment location in July 2021, using their established protocols. They evaluated the Wetland Fish and Macrophyte Indices here, from the fish and plant community data. This was done by obtaining hi-res aerial images to characterize visible surface vegetation, as well as camera arrays for the subsurface vegetation.

46Subsurface species were captured in paired fyke nets 1 m by 1.5 m, small enough even for minnows, and left for 24 hours. Their locations may be seen at p. 360. Counts and identifications were done upon release. The findings are seen in the chart at p. 363. In her opinion, such variations would support top predators. The presence of largemouth bass led her to conclude that this coastal wetland is used for both spawning and nursery purposes. They found plants out to a 2 m depth, and evaluated all emergent, submersed and floating aquatic vegetation by quadrats of .75 x .75 m, 11 in all. They took over 150 pictures by drone, then stitched them together to show a mosaic “base map”, accepted as accurate. Depths were measured by rope at 10 centimetres intervals. They also found 14 musk turtles, a species at risk requiring further study here.

47Her overall conclusions based on their developed indices are that the wetland here is “very good” condition, reflecting no human disturbance. A dock in 2 m of water is not desirable for the aquatic macrophages here, which provide the top quality of Fish Habitat, as zoned. A dock where proposed would divide this fragile wetland. Boating and equipment transfer would disturb the habitat. Further study earlier in the year than the fall is required. She concluded that it should not be disturbed, in order to meet the planning principle of necessary protections. Loss of habitat is accelerating.

48Further evidence on the Peer Review conducted by North-South Environmental inc. for the Society was provided by its author Sarah Mainguy, a consulting Ecologist. She had reviewed Mr. Neilsen’s reports in detail, and in her Report (p. 385) had the following issues with them:

• the transect photos showed only the surface vegetation, while the subsurface is critical to evaluating the fish habitat;

• his timing in the fall was not adequate to show the vegetation constituting the fish habitat, and thus she disputed that the north transepts B and C have less vegetation and are thus a good site for a dock;

• even a dock of the relatively small size proposed would shade the fish habitat, and in previous wording of the DFO Guidelines, would have required a DFO review;

• it is undesirable to have access to a dock through a muddy foreshore;

• a permanent access path on hydro property as proposed has not been confirmed;

• the SAR assessment is inadequate, as emphasis on the possible presence or absence of SAR does not constitute an EIS. Five to ten days of study is required; and

• cottagers remove foreshore vegetation for swimming or boat traffic, and this could damage the habitat here. There are many more species than mentioned.

49The last witness for the opponents to this application was David Fancher, a very experienced Civil Engineer from Texas, who owns the next cottage to the east of the subject parcel, 704 Mermaid Island 820 (see Exhibit 1, p. 199). His specialty is proprietary software for jet engines, but his testimony here was directed to water depth measurements. Mr. Donnelly tendered him as an expert in depth measurement and water levels in this area of Georgian Bay, which he has conducted for many years. This was challenged following discovery of a submission from the then-president of the Society, Thomas Bain, to Council on January 14, 2014. This stated (p. 27, para. 14) that the two neighbours of the subject parcel, Messrs Fancher and Damm, were discussing acquisition of the subject parcel, to be severed, and a segment given to each as a lot addition. Delay of the application was urged.

50Ms. Hahn objected to Mr. Fancher being qualified as an expert, since he was clearly an interested party. The Tribunal agreed, ruling that while he could testify as to his opinions and findings, they would not be given the weight of expert testimony. It could appear that they are tainted with some perception of bias.

51The Tribunal finds additional evidence of self-interest in the statement at p. 422:

As well, the 42.4 m (128.5) dockage proposed at low water level would impair the sight lines from adjacent properties and make access to existing dockages on adjacent properties more difficult.

52This comment is acceptable as a neighbour, but not as an expert and objective witness.

53Mr. Fancher stated that he had conducted depth measurements from a boat, accompanied by Mr. Bain. They planted two white floating buoys where the dock was proposed to be placed. Due to significant alterations in water levels in the Bay (not principally caused by wave action in this location), Mr. Fancher disputed that the dock location could be as proposed. He found slopes of 6 or 7% in the location chosen. If a 26 m dock is constructed, it would end up in .23 m or nine inches of water when levels are lowest. If it were to be built to preserve a 2 m depth for boat access, it would measure 51 m, or 170 feet. Their joint conclusions are found at p. 421.

54Submissions of the Applicant: Ms. Hahn argued in summation that the Township and the EGBPS are improperly holding the applicant to tests outside of the legislative requirements. Mr. Nielsen, the Ecologist for Mr. Moreau, had identified and recommended mitigation measures that will prevent adverse impacts.

55H2 holds apply to all vacant developable lots on islands that are not zoned Natural State Island or Natural State Conservation, she stated. Prior to the present Zoning By-law in 2014, the property could have been developed as of right. Further studies of the upland area and future development of a cottage and septic system at present are premature and inappropriate. There is no application for development, and the upland area is already zoned SRI1.

56The proposed ZBLA meets all other planning tests. The criteria in s. 2 of the Act do not prevent this application from being approved, as it is consistent with the PPS. Mitigation measures will prevent any negative impacts in the FH1 zone (s. 2.1.5). Development is permitted in Type 1 Fish Habitat in accordance with provincial and federal regulations (s. 2.1.6). These would allow for a dock. She reiterated that there will be no negative impacts on the natural features or on their ecological functions (s. 2.1.8). Mr. Neilsen’s Fish Habitat Impact Assessment satisfies section 2.1.8.

57The District OP permits the use of waterfront landings in the ‘Waterfront’ designation. By s. D.17, Waterfront landings are a permitted land use. The owner’s expert had determined the most appropriate location for a dock. The application conforms with both the District OP and that of the Township. It is in character with the designated “Honey Harbour Coastal Waterfront Community” (s. F.1.2.3). Development such as waterfront landings are not prohibited on islands here. The application is compatible with existing land uses in the immediate area (F.1.2.5), as the embayment already has three docks and two over-water structures.

58Although the MNRF had identified the shoreline of the property as FH1, this is defined as critical habitats with high productive capacity. These are rare, and highly sensitive to development, or are critical in sustaining fisheries. There is no proof of these facts here.

59A “preliminary” SAR screening is needed in potential SAR habitat (D.1.3.4), with the Township determining whether a “detailed” screening is required (D.1.3.4). There was no such request followed the owner’s preliminary assessment.

60Ms. Hahn further submitted that the application is to be assessed on the planning merits. The necessity for further work and study is not a reason to delay planning approval here. Mr. Nielsen’s work demonstrates there will be no negative impact from this dock. Future permits and permissions will be sought when required.

61The ZBLA meets the general intent and direction of the Township ZBL. The SRI1 zoning, with FH1 along the shoreline, permits a detached dwelling and accessory structures. No development is proposed within the SRI1 zone. When exact development is proposed further studies may be required. The property will be subject to site plan control.

62The EGBPS takes issue with the fact that the public are not involved in the site plan process, and cannot therefore appeal a plan they do not like. Ms. Hahn argued that the EGBPS and private individuals can trust the Township to carry out their obligations in a diligent manner.

63FH1 zoning restricts structures within it, and requires a 5 m setback from zone boundaries. Ms. Hahn submitted that Mr. Nielsen’s recommendations successfully restrict the design and features of the dock. As well, there was no disagreement that the property does exceed the minimum lot area requirements of the SRI1 zone (ss. 4.11 f and g).

64The necessary studies have been completed, she stated. The Township and EGBPS are attempting to impose tests on the applicant that are not part of the policy direction nor the applications before the Ontario Land Tribunal. The Township ZBL requires the completion only of a survey to confirm the lot area, and location of high-water mark, in order to remove the hold. A SAR assessment is not mandated at this time by the applicable planning legislation. The necessity for future approvals under different legislation does not make this application premature.

65The zoning by-law still applies. Mr. Ramsay stated that the proposed FH1-5 zone exception would not be subject to the other provision of the Township’s ZBL. This is incorrect, she submitted. The exception would only permit a dock, an accessory structure, in Type 1 Fish Habitat. It is not an exception from all applicable zoning by-law provisions. A permit for a dock cannot be applied for until a permit has been issued for a principal dwelling. A dock cannot be constructed until after site plan approval, other permissions are granted and necessary studies completed.

66The SRI1 zoning of the property is not being changed, nor is it an issue before the Tribunal. The application for a dock would amend only the FH1 zone, not the SRI1 zone.

67The Township and EGBPS seek to restrict future development of the upland area by objecting to the approval of these applications.

FINDINGS AND DECISION

68The Tribunal agrees with Mr. Neilsen that it appears from the evidence here that here are very few undeveloped properties in this area and on Mermaid Island. This would be “only” one more, and on an existing vacant lot meeting the zoning size requirements. The issue it must determine is whether another cottage and dock build would constitute the proverbial “straw that broke the camel’s back”, disturbing the natural surroundings in a manner proscribed by all the planning documents. Even though the owner cannot meet the test of “no adverse effect” (this seemingly being a test without practical utility), the Tribunal finds that this application should be buttressed with clearer evidence of little or no such effect. It is in fact premature.

69Mr. Robinson stated that removal of the H symbol did not constitute “development” under the PPS. Nonetheless, a clearer proof of virtually “no impact” on the natural environment and its surroundings is needed, to meet the policy and statutory tests. As the Society stated in summation, section F.2.5.1. of the ZBL regulates the number, width, and length of docks, to protect the natural shoreline quality and character. The ZBL does not permit docks in the FH1 Zone. The Application proposes a 26 m dock and ramp within an FH1 Zone. An exception to permit the development of a dock and ramp within the embayment area would not conform to the GBOP. The Tribunal is mindful of the policies in both Regional and Township OPs, as mentioned:

i) Type 1 (Critical) Habitats are those which have high productive capacity, are rare, highly sensitive to development, or have a critical role in sustaining fisheries (e.g. spawning and nursery areas for some species, and ground water discharge areas).

70The Township’s witnesses Smith, Mainguy and Ramsay all confirmed that a property- specific assessment of SAR and SWH is commonly done at the zoning stage, not at the site plan stage, to establish the feasibility of development. Mr. Ramsay added that it would not be consistent with sound planning in the public interest to approve a zoning amendment for a cottage development before determining whether or not it is feasible in the context of protection of habitat of SAR and SWH.

71There is an additional problem with the Appellant’s position on timing, raised by the Society in argument. It is not apparent that s. 41(7) of the Act permits ecological studies as a condition of site plan approval. This safeguard that Mr. Nielsen had recommended would not therefore be available.

72The Tribunal agrees with the Township that approval of the Appeal would permit an otherwise prohibited structure and use within the embayment area, by the construction and operation of a dock. Because it would establish property access, it would enable the portion of the property above the high-water mark to develop. While the rough survey provided does not appear to contravene the development standards for the upper portion of the parcel, clearer proof of “no adverse impact” on the Fish Habitat and SAR is required before approval can be given. The time of Site Plan approval is too late for this essential proof, in the Tribunal’s view.

73Exceptions such as the one requested have been granted, but only where a Fish Habitat Assessment and a more inclusive Species at Risk and Significant Wildlife Habitat Assessment have already been produced. Mr. Neilsen testified that no such assessment was required for removal of the H symbol. This did not conform with the municipality’s opinion, nor with the applicable OP policies.

74It bears repeating that based on the ecological assessments of Ms. Aitken and Ms. Smith, Mr. Ramsay concluded that the application does not sufficiently consider provincial interest, as required by s. 2 of the Act. Very similar policies are found in the PPS, the District and Township OPs. There would be insufficient regard for the long-term ecological function and biodiversity of natural heritage systems, as section 2.1.2 of the PPS requires. Section C1.1 a) of the District OP states: “It is an objective of the Plan that the diversity and connectivity of natural features in Muskoka, and the long-term ecological function and biodiversity of natural heritage systems be maintained, restored or, where possible, improved.”

75This development has not been shown to meet this policy goal with the investigations done to date. The test of no negative impacts on high quality Fish Habitat has not been met. Potential impacts have not been fully evaluated, and no specific mitigation methods have been recommended. The evidence of the Township and the Society is preferred on the issue of studies required. The Tribunal accepts the Township’s “floodgates” argument that, should an exception be granted here where uncontested evidence has verified that the entire area proposed to be excepted comprises (Critical) Type 1 Habitat, there is little basis to refuse future exceptions. Such a decision has the potential to undermine the purpose and intent of the FH1 Zone and the policy direction of the OPs.

76Ms. Hahn stated that no development was sought in the FH zone. The Tribunal finds that this is not strictly true, as a dock (even limited in size) could possibly have the feared effects on vegetation and thus Fish Habitat. Neither Mr. Neilsen nor Mr. Robinson saw any quantitative negative effect. There is an adequate depth of 6 feet for boat access, and a well vegetated shore and lot, in their view. They testified that even with the lowest water levels, a boat landing could be accommodated without plant and fish damage, especially in the B and C transepts as proposed by Mr. Neilsen.

77However, the opposition witnesses explored these issues in more depth, and concluded otherwise. Dr. Chow-Fraser’s detailed examination of existing vegetation was sufficient to raise at least a suspicion that there could be adverse effects on the existing ecosystem, even if only to the subsurface portion of this Type 1 habitat. The definition of Type 1 habitat in the District OP, section C1.4.5 c) gives further reason for caution (see wording above).

78There was virtually no evidence of possible effects on any land-based SAR. It is not known if any such use this habitat. This issue should be addressed prior to development approvals.

79The Tribunal therefore accepts the opposition’s findings, leaving little scope on the evidence for a finding of “no negative effects” from the cottage and dock proposal.

80The Tribunal agrees with Mr. Neilsen that it is unlikely that the parcel here, lacking in flat rock or shallow ponds, would support either the Blanding’s Turtle of Foxsnake habitats. However, there appears to be insufficient evidence of “no” negative impact, as the planning documents require. This is indeed a difficult standard on which to assess a development proposal. But without impact assessments based on detailed investigations, the Tribunal is not satisfied that it can approve the proposed ZBLAs. They do not meet the explicit terms of the OP section D.1.6.6 and the PPS, section 2.1.8.

81From the evidence of Dr. Chow-Fraser and Ms. Mainguy, aquatic vegetation in this coastal wetland area could be affected by both lack of light and boat traffic. Propellers cause wake and turbulence, especially in areas usually wave-sheltered, and have easily-stirred fine sediment bottoms (Exhibit 1, p. 416).

82Barge movements and a dock will not necessarily have “no” negative impacts. It is very difficult to prove a negative. However, the Tribunal agrees that there could be even minimal impact on fish habitat, given the expert testimony here. Thus, on the evidence here, the explicit terms of the OP and the PPS have not been met.

83It is insufficient to rely on the site plan stage to rectify any problem of even potential harm to protected wildlife or Fish Habitat. Uses are established by the zoning by-law. Should the Tribunal approve the ZBLA, the proposal could proceed in the general form put forward in the Hearing.

DECISION AND ORDER

84The Tribunal orders that the appeal is dismissed and the requested amendments to Zoning By-law No. 2014-75 of the Township of Georgian Bay are refused.

“G. Burton”

G. BURTON

Vice-Chair

“D. Colbourne”

D. Colbourne

Vice-Chair

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.