Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 07, 2022

CASE NO(S).: OLT-22-003187

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

Applicant/Appellant: Will Helen Kroeker

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

Description: To construct a detached garage for storage and excess parking

Reference Number: Z/2021/10

Property Address: 66 Shebeshekong Road

Municipality/UT: Carling/Parry Sound

OLT Case No: OLT-22-003187

OLT Lead Case No: OLT-22-003187

OLT Case Name: Kroeker v. Carling (Township)

Heard: August 25, 2022 by video hearing

APPEARANCES:

Parties: Counsel

Will and Helen Kroeker (“Applicants/Appellants”): Patrick Maloney

Township of Carling (“Township”): Sylvain Rouleau

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON AUGUST 25, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is a Settlement Hearing concerning an appeal by the Applicant. The appeal follows a refusal by the Township to grant a Zoning By-law Amendment (“ZBA”) to amend the Township's Comprehensive Zoning By-law to permit the construction of a garage as follows:

• With a floor area of 194.17 square metres (“sq m”), where 83.17 sq m is otherwise permitted; and

• Resulting in a cumulative floor area of all accessory structures on the property to be 194.17 sq m, where 186.08 sq m is otherwise permitted.

2The parties have agreed to settle the matter in accordance with the proposed ZBA attached to this decision as Attachment 1. As part of the settlement, the proposed ZBA provides the Applicants with the desired floor area but with the following restrictions in relation to the location of the building:

• The minimum interior side yard setback of the existing by-law will be increased from to 3 metres (“m”) to 15 m;

• The minimum front yard setback (measured from the high-water mark of Shebeshekong Lake) of the existing by-law will be increased from 20 m to 70 m; and

• The garage must be erected behind the principal dwelling.

evidence and analysis

3The uncontested opinion and factual evidence of this hearing was provided by the Township’s Planner, Ryan Snowball, who was duly qualified as an Expert in Land Use Planning. The following is an account of his evidence.

Property Description

466 Shebeshekong Road (the “subject lands”) is a lot fronting on Shebeshekong Lake. The property is approximately 0.93 hectares (“ha”) (2.3 acres) in size and includes approximately 65 m (215 feet) of straight-line shoreline frontage.

5The subject lands are currently vacant aside from a small storage shed which is proposed to be demolished to accommodate the proposed garage. A septic system located at the rear of the property is approved for the subject lands.

6The subject lands are bordered to the east and west by existing waterfront residential development. The property is accessed from Shebeshekong Road via a legal right-of-way.

7The subject lands slope significantly towards Shebeshekong Lake. It is heavily forested along its perimeter and in the shoreline area; however, the owners have cleared portions of the interior of the lot for future construction of a residential dwelling as well as the proposed garage.

Impact Mitigation Measures

8Mr. Snowball testified that the Township’s Comprehensive Zoning By-law typically requires accessory structures (such as the proposed garage) located in a WF1- WF5 Zone (such as the subject lands) to maintain rear and side yard setbacks of no less than 3 m. Additionally, the required front yard setback for an accessory structure in the WF1-WF5 Zones is 20 m (or behind the front line of the main dwelling, whichever is lesser).

9Given the scale of the proposed development, Mr. Snowball opined that increased setbacks should be implemented as a way to mitigate any potential negative impacts on adjacent properties and/or established rural character of the area. He opined that an increased side yard setbacks of 15 m and front yard setback of 70 m (measured from the water), as well as ensuring it is located behind the main dwelling, is sufficient to provide such mitigation measures. It is his opinion, therefore, that such measures should be included in the proposed ZBA (as agreed to by the parties and included in the proposed ZBA attached as Schedule 1).

Provincial Policy Statement (“PPS”)

10Mr. Snowball testified that s. 1.1.1 c) of the PPS provides that healthy, liveable and safe communities are sustained by “avoiding development and land use patterns which may cause environmental or public health and safety concerns”. He further testified that that this policy should be read in coordination with Section 3.1.8 of the PPS which sets out that “development shall generally be directed to areas outside of lands that are unsafe for development due to the presence of hazardous forest types for wildland fire”. He explained that hazardous forest types for wildland fires are those lands that are identified as having high to extreme risk of wildland fire. He further noted that wildland fire mapping for the subject lands identifies it as a “moderate” risk, meaning it falls below the threshold for wildland fire risk.

11Mr. Snowball also considered s. 1.1.1 c) of the PPS, as it relates to potential flooding hazards as described in s. 3.1. However, given that the garage is to be located at the rear of the lot, above (due to significant slope up from the water) and away from the waterfront, he opined that flooding hazards are not a factor.

12Mr. Snowball further testified that s. 1.1.3.1 of the PPS directs development to Settlement Areas as they are defined in the PPS, but noted that the Township does not contain any Settlement Areas as they are defined in the PPS (though they do have several historic “communities”). He further testified that s. 1.1.4.4 of the PPS maintains that “Growth and development may be directed to rural lands in accordance with policy 1.1.5, including where a municipality does not have a settlement area”, noting that the proposed development is located in a rural area typical of the Township.

13Mr. Snowball went on to testify that s. 1.1.4.1 a) of the PPS sets out that “healthy, integrated and viable rural areas should be supported by building upon rural character, and leveraging rural amenities and assets”. While recognizing that the proposed development exceeds the maximum size of a garage permitted in a Waterfront Residential zone and exceeds the maximum allowable cumulative floor area for accessory structures, he opined that the development is nevertheless aligned with the general form of development making up the Township’s Waterfront and Rural areas. This is because single detached residential development, along with associated accessory structures, are commonplace in both the Waterfront and Rural areas.

14Mr. Snowball further testified that s. 1.1.5.2 b) indicates that “on rural lands located in municipalities, permitted uses include resource-based recreational uses (including recreational dwellings)”. Given that this policy prescribes that recreational dwellings, like the one to be constructed on the subject lands, are a permitted use, he opined that it is appropriate that such structures ancillary to the principal residential use are also permitted.

15As it relates to s. 1.1.5.4 of the PPS, which provides that “development that is compatible with the rural landscape and can be sustained by rural service levels should be promoted”, he opined that the proposed garage will not significantly impact the overall rural character of the surrounding area. This is because of the proposed garage’s strategic location away from the shoreline and setback from neighbouring properties.

16Mr. Snowball testified that s. 2.1 of the PPS broadly speaks to the preservation of natural heritage features, and that the subject lands are free of significant natural heritage features aside from the presence of Type 1 Fish Habitat along its shoreline. Given the location of the proposed garage at the rear of the subject lands, setback significantly from Shebeshekong Lake, he further testified that there is no foreseeable potential impacts on the aforementioned shoreline fish habitat.

17Mr. Snowball further testified that s. 2.2 of the PPS sets out general policy directives on protecting, improving and restoring water quality and quantity, noting that ss. 2.2.1 g) and h) specifically make reference to planning for efficient and sustainable use of water to protect water quality. With respect to the above policy directives, Mr. Snowball noted that it is important to consider the location of both the proposed garage as well as individual on-site sewage services. He opined that since both of these features are to be located at the rear of the lot, setback significantly from Shebeshekong Lake, any potential nutrient-loading from these systems is minimized. He further noted that the implementation of Site Plan Control at the building permit stage, in order to maintain natural vegetation along the shoreline and the side yards of the subject lands, the overall water quality of Shebeshekong Lake should not be measurably impacted.

18In summary, Mr. Snowball opined that the proposed development, with the increased setbacks outlined in the settlement, is consistent with the applicable sections of the PPS as outlined above. The Tribunal accepts Mr. Snowballs evidence and opinion and finds same.

Official Plan

19Mr. Snowball testified that, while the subject lands include direct frontage on Shebeshekong Lake, it is designated ‘Rural’ in the Township’s Official Plan (“OP”) and s. 27.02.2 of the OP sets out the permitted uses in the ‘Rural’ designation. He further testified that permitted uses include “residential uses” and the subject lands are proposed to be developed for residential purposes with a single detached residential dwelling to be the principal use on the property and the proposed garage to be an accessory structure to the residential dwelling. Mr. Snowball opined that the proposed garage (notwithstanding the fact that it is oversized) therefore conforms to the general list of permitted uses within the ‘Rural’ designation.

20Despite the fact that the subject lands are designated ‘Rural’ in the OP, Mr. Snowball testified that there is still planning merit to considering conformity with the waterfront development policies of the OP when considering the subject application because the property fronts on a recreational waterbody.

21Mr. Snowball noted that, as was the case in the ‘Rural’ designation, s. 27.04.2 of the OP sets out the permitted uses in the ‘Waterfront’ designation and includes “residential” uses, which includes a detached garage as a structure accessory to a single detached residential dwelling. Similarly, s. 21.02.1 of the OP sets out the general form of development in the Township’s Waterfront areas, which includes low density, single-detached residential development.

22Mr. Snowball further testified that s. 21.03.1 of the OP provides detailed principles established to preserve the existing character of the Township’s Waterfront areas. He addressed these principles (listed below in bold), providing comments and opinions regarding the application’s conformity with these principles (his comments and opinions are set out below in bullet points following each listed principle).

a) assessing any potential environmental impacts and protecting against any negative impacts on ecological functions;

• As per Schedule ‘B-2’ to the OP, the subject lands are free of significant natural heritage features aside from the shoreline area being designated as Type 1 (Critical) Fish Habitat. As is set out in Section 14.06 of the OP, the PPS directs new development not to be located within those areas. Additionally, development is not to be permitted on those lands adjacent to the Fish Habitat, unless those lands have been evaluated and it has been determined that there will be no negative impact on the feature or its ecological functioning. In Section 14.06.5 of the OP, it is indicated that the Ministry of Natural Resources and Forestry has recommended adjacent lands to be those lands within 30 metres of the Fish Habitat.

• Given the proposed garage is proposed to be located towards the rear of the subject lands, well in excess of 30 metres from the boundaries of the Fish Habitat, the owners were not requested to obtain an Environmental Site Evaluation as part of their application. No negative impacts on the Type 1 Fish Habitat or its ecological functioning are anticipated as a result of this proposal.

b) ensuring that development is within any relevant carrying capacity parameters including water quality and recreational carrying capacity;

• 66 Shebeshekong Road (the subject lands) is an existing lot of record that meets minimum standards for development as set out in the Township’s Comprehensive Zoning By-law. No new lot creation is being proposed as part of this application where consideration would need to be given as to whether the proposal would exceed relevant carrying capacity parameters (i.e. biological capacity or recreational capacity limits). The construction of the proposed detached garage will have no impacts on the biological or recreational carrying capacity of Lake Shebeshekong.

c) minimizing the impact of development on water quality;

• Section 21.04.1 of the OP sets out that protection of water quality is the single highest priority when considering Waterfront development. The OP also makes note of the fact that phosphorus loading into the water from shoreline development has a significant impact on water quality.

• Section 21.04.6 of the OP sets out a number of practices that can be used by landowners to mitigate against the loading of phosphorus into adjacent waterbodies. The first item in the list of “best practices” is the implementation of increased setbacks of septic systems from shorelines.

• Generally, the Township’s Zoning By-law requires septic systems be located a minimum of 20 metres from the highwater mark of the adjacent body of water. In this particular scenario, the septic system installed on the subject lands is located at the very rear of the subject lands, approximately 13.4 metres from the rear lot line and upwards of 100+ metres from the highwater mark of Shebeshekong Lake.

• Another practice for mitigating against the loading of phosphorus into adjacent waterbodies, as outlined in Section 21.04.6 c) of the OP, is to preserve natural vegetation buffers between development and the shoreline. In order to ensure natural vegetation buffers remain in place on the subject lands, it is recommended that the lands be subject to Site Plan Control for the purposes of establishing vegetative buffers within the front yard of the subject lands as well as within required side yards. Not only will this help to mitigate against any phosphorus loading into the water, it will also help to ensure adequate vegetative screening remains in place between the proposed development and adjacent properties.

d) minimizing the obtrusiveness of built form by controlling building location, height, coverage and natural vegetation protection measures;

• In order to facilitate the construction of the proposed garage, the owners were required to remove significant tree cover on the subject lands. Despite the tree removal, the proposed garage, being located near the rear of the subject lands, will remain largely screened from the adjacent waterbody by existing shoreline vegetation as well as from its strategic location behind the proposed residential dwelling.

• The proposed garage will be required to satisfy the standard height allowance for accessory structures in the WF1 Zone (6 metres).

• As detailed in the section above, it is recommended that Site Plan Control be applied to the subject lands to ensure an adequate vegetative buffer remains in place within the front yard and all side yards, so as to minimize the overall obtrusiveness of the built form.

e) ensuring there are no hazards to navigation;

• The proposed amendment to the Township’s Zoning By-law will not result in any hazards to navigation.

f) assessing the impact of development on the character of a shoreline in a particular area or neighbourhood; and

• When assessing the impact of the proposed garage and its impact on the character of the shoreline, specifically with respect to the eastern shoreline of Shebeshekong Lake, it is important to consider the proposed location of the garage in question. Being located at the rear of the property, away from the shoreline and largely invisible from the waters, there is likely to be very little impact on the shoreline character as a whole.

• The fact that the residential dwelling to be constructed on the property will be strategically located between the proposed garage and the shoreline, the development will be largely screened from the waters and therefore have little impact on the overall shoreline character of Shebeshekong Lake.

• No shoreline tree removal is necessary to facilitate the construction of the proposed garage.

g) evaluating the risk of any development on persons and property from natural (flooding, erosion) or man-made causes.

• There is no anticipated risk on persons or property from “natural or man-made causes” as a result of this proposal. The subject lands have been designated ‘moderate’ risk in terms of wildland fire risk. As such, no assessment is necessary as part of this application.

23As it relates to concerns about ‘over-development’, Mr. Snowball testified that the OP addresses it in policy s. 7.04.7. In this section, the OP states “In Carling Township, the predominant principle in its vision or philosophy will be to avoid or eliminate over development in all areas”. He further stated that over development is interpreted to be “the introduction of artificial structures or activities to an extent that is significant enough to alter the character of an area or neighbourhood in the municipality or would cause significant damage to the environment, particularly the shoreline”.

24On this point, Mr. Snowball opined that the strategic location of the proposed garage at the rear of the subject lands away from the shoreline will avoid impact on the established character of Shebeshekong Lake. He further noted that, despite the significant increase in floor area over the allowable size for a garage, the cumulative accessory floor area permitted on the subject lands is only proposed to be exceeded by 8.09 sq m. In Mr. Snowball’s opinion, this difference is likely to be imperceptible from a character standpoint. He opined, for example, that the proposed single structure built at the back of the property would be significantly less impactful compared to several smaller accessory structures, built as-of-right, located nearer to the shoreline area.

25Mr. Snowball further testified that s. 9 of the OP sets out several general objectives of the Plan. Throughout these objectives, he testified, the protection of water quality is a paramount concern. He opined, again, that the location of the proposed garage at the rear of the subject lands, as well as the location of the septic system at the rear of the property, falls in line with these objectives of preserving overall water quality. Furthermore, he opined, the protection of existing vegetation within the front and side yards through the implementation of Site Plan Control will further benefit the preservation of the overall water quality of Shebeshekong Lake.

26Additionally, Mr. Snowball notes that s. 9.09 of the OP sets out an important objectives of preserving the elements of ‘rural character’ of the Township by…”discouraging development that has an adverse impact on natural and open features of the rural area and restricting those land uses and densities that are not compatible with the rural character.” As it relates to this point, Mr. Snowball testified that the proposed development will not impact natural heritage features given its location at the rear of the subject lands and setback from adjacent lands.

27In summary, Mr. Snowball opined that the proposed development, with the increased setbacks outlined in the settlement, conforms with the applicable sections of the OP as outlined above. The Tribunal accepts Mr. Snowballs evidence and opinion and finds same.

Summary and Conclusion

28For the reasons set out above, the Tribunal finds that the proposal is consistent with the PPS, conforms with the OP, and it generally represents good planning.

ORDER

29THE TRIBUNAL ORDERS that that the appeal is allowed, in part, and By-law No. C500-2011 of the Township of Carling is hereby amended as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of Township of Carling 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.