Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 30, 2023

CASE NO(S).: OLT-23-000708

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

Applicant/Appellant: Yannick and Shantelle Bisson

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

Description: To permit the existing legal non-confirming boathouse

Reference Number: ZA-23-22

Property Address: 88 Brock Road

Municipality/UT: North Kawartha/Peterborough

OLT Case No.: OLT-23-000708

OLT Lead Case No.: OLT-23-000708

OLT Case Name: Bisson v. North Kawartha (Township)

Heard: November 7, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

Yannick and Shantelle Bisson

Kathleen M. Kinch

Jenna Khoury-Hanna

Township of North Kawartha

John Ewart

DECISION DELIVERED BY S. L. Dionne and F. lavoie AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Decision arises from an appeal filed by Yannick and Shantelle Bisson (“Appellant”) pursuant to subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Planning Act”), concerning the refusal of a Zoning By-law Amendment (“ZBA”) Application file #ZA-23-22 in the Township of North Kawartha (“Township”) for lands municipally known as 88 Brock Road (“Subject Property”).

2The Subject Property is a seasonal recreational lot having an area of 0.57 acres and a shoreline frontage of 12.6 metres (“m”) on Chandos Lake. There is an existing structure which was located on the Subject Property between the dwelling and the shoreline, which is the subject of the ZBA Application. It is situated within the 30 m setback to the High Water Mark (“water-yard”) and within the 4.5 m (north) side yard setback.

3The hearing was originally scheduled for a Case Management Conference, however upon request, and consent, of the Statutory Parties to the Appeal it was converted to a one-day Settlement Hearing by the Tribunal.

4The Affidavit of Service dated October 10, 2023, confirming that Notice of the Hearing was properly given, was marked as Exhibit 1.

PARTICIPANT STATUS REQUEST

5Upon consideration of the submissions of Counsel, the Panel granted the Participant status request by Ambrose Moran. Mr. Moran does not reside on Chandos Lake, however he did participate in the public planning process and filed written submissions on the ZBA Application to the Township in advance of the Council of the Township of North Kawartha (“Township Council”) making its decision. His Participant Statement dated October 27, 2023, and a supplemental statement dated November 2, 2023, outline his opposition to the structure in its current location, and his position that it should be removed and/or relocated elsewhere. It is Mr. Moran’s position that a shed, of any kind and under any name, should not be permitted within 30m of the High Water Mark. He is in opposition to the ZBA Application being approved to bring it into zoning compliance.

6The Panel acknowledges the concerns of Counsel regarding the scale and accuracy of photos on pages 4 and 8 of the October 27, 2022 Participant Statement and regarding the annotations to the planning report(s) included in both Participant Statements, and takes this into account in its consideration of the statements. Further, at the request of Counsel, the Panel accepted clean copies of the same planning reports to be filed as Exhibits to the hearing.

SETTLEMENT

7Counsel for the Township, in his submissions, advised the Tribunal that following Council’s refusal of the ZBA on January 17, 2023, and receipt of the Appeal, discussions between the Planners for the Township and the Planner for the Appellant resulted in revisions to the ZBA (“Revised ZBA”) that represented good planning and were in the public interest. The Township did not call any experts and instead relied on the evidence of the Appellant’s Planner.

8In support of the settlement and the Revised ZBA, the Tribunal was in receipt of a Witness Statement from Kevin Duguay, a Registered Professional Planner (“RPP”) (retained by the Appellant), which was marked as Exhibit 4. Mr. Duguay is the founding principal of Kevin M. Duguay Community Planning and Consulting Inc. (“KMD”) and has been practicing land use planning for more than 35 years. He has been qualified by the Tribunal to provide expert opinion evidence on matters pertaining to land use planning on numerous occasions. He was duly qualified by the Panel, on consent, as an expert in land use planning.

9At the Hearing, Mr. Duguay provided oral evidence with reference to Exhibits 2 to 9, all inclusive, including an overview of the site and context, history of the ZBA Application, and his planning analysis and recommendations regarding the Revised ZBA. Mr. Duguay’s evidence also addressed the comments and issues set out in the statements filed by the Participant to these proceedings.

10The Revised ZBA proposes to amend the site-specific Shoreline Residential-273 (SR-273) Zone on the Subject Property, as follows:

a) To permit a Marine Storage Shed;

b) To add a definition of a “Marine Storage Shed: shall mean a non-habitable, single-storey structure, requiring no excavation for foundation or footings, designed to store marine related items (e.g. lifejackets, lawn chairs, paddles, kayaks) and located within the water body setback”; and

c) To set regulations for a Marine Storage Shed, as follows:

a. Maximum area (includes overhang) – 10 square metres (“m2”);

b. Maximum height – 4.1 m;

c. Minimum Water-Yard setback from the High Water Mark – 20.8 m;

d. Minimum side yard (north) – 0.84 m.

EXHIBITS

11The Panel marked the following additional documents as Exhibits in the Settlement Hearing:

• Exhibit 2 - Revised Planning Justification Report dated August 29, 2022, prepared by KMD (“PJR”);

• Exhibit 3 - KMD Memo dated November 10, 2022;

• Exhibit 4 - Expert Witness Statement of Kevin Duguay, MCIP, RPP dated October 23, 2023;

• Exhibit 5 - Map of Subject Lands (Tab 8 of Municipal Record);

• Exhibit 6 - Township of North Kawartha Planning Reports dated October 18, 2022 and January 17, 2023 (Tab 13 of the Municipal Record);

• Exhibit 7 - Township of North Kawartha Notice of Refusal of the Zoning By-law Amendment dated January 17, 2023 (Tab 3 of the Municipal Record);

• Exhibit 8 - Document Book filed by the Appellant; and,

• Exhibit 9 - Original ZBA refused by Township of North Kawartha at the January 17, 2023 meeting Tab 7 of Municipal Record.

SITE AND CONTEXT

12The Subject Property is a seasonal recreational property that has been developed with a modest size dwelling, accessory dwelling, a small-scale shed, a pathway to the Lake, and on the waterfront portion there is a retractable dock and outdoor sitting area. The small-scale shed was constructed in 2018, has a ground floor area of 93 m2, and did not require footings or a foundation.

13The surrounding lands are also seasonal recreational, with mature trees along the property lines, and the small-scale shed is located next to a wooded area on the neighbouring lands.

14Pursuant to the Township’s Zoning By-law No. 26-2013, as amended, (“ZBL”), the Subject Property is zoned Shoreline Residential – Exception 273 (SR-273) and the buildings and structures, except for the small-scale shed, are all permitted uses.

15It was Mr. Duguay’s evidence that there are site configuration and physical constraints which impact the options available for placement of the small-scale shed. The site configuration itself poses challenges as the lot lines are angled inwards on the Lake side, reducing the options for placement of the structure, as shown on the Survey (page 21 of Exhibit 4). The topography is sloping downwards towards the Lake and there is a natural embankment at the rear of where the shed was constructed. To relocate the shed further from the shoreline would interfere with the septic system facility situated in front the dwelling.

16On January 17, 2023, the Township Council considered a proposed ZBA to amend the Shoreline Residential – Exception 273 (SR-273) Zone on the Subject Property to recognize an existing structure referred to as a dryland boathouse, and to set regulations regarding maximum height, width, gross floor area and a reduced water yard setback (Exhibit 9). The proposed ZBA was lacking in that it did not include the proposed reduction in the (north) side yard setback to permit the shed.

17At the time, the Township Council had Planning Reports prepared by the Township’s Planners (Exhibit 6) before it, which provided a planning analysis of the ZBA Application with respect to consistency with the Provincial Policy Statement, 2020 (“PPS”), conformity with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019, as amended (“Growth Plan”), and conformity with the upper tier and lower tier Official Plan policies in the County of Peterborough Official Plan (“COP”). The January 2023 Planning Report discussed the comments received at the public meeting held in October 2022 and contained in the written submissions received from members of the public in opposition to the ZBA Application, including that of Mr. Moran. In response to the comments regarding the nature of the structure, the Township Planners wrote that the appearance of the structure resembles that of what would commonly be referred to as a shed. The nature of the use of the structure was described as “to shelter life jackets, paddles, paddleboards, water toys and similar marine-related items.” It was recommended that the ZBA Application be approved.

18The Tribunal was directed to the Notice of Refusal of a Zoning By-law Amendment (Exhibit 7). Mr. Duguay attended the January 2023 meeting, addressed Township Council in support of the ZBA Application, and in his opinion the decision of Township Council was a non-approval, in that they decided not to approve the original ZBA Application.

PLANNING ANALYSIS

19In Mr. Duguay’s opinion, the Revised ZBA has regard for the matters of Provincial interest set out in s. 2 of the Planning Act, is consistent with the PPS, conforms, does not conflict with the Growth Plan, conforms with the policies of the upper and lower tier municipalities under the COP, represents good planning, and is in the public interest. Further, he provided evidence as to how his opinion and that of the Township Planners aligned.

20In support of his opinion, Mr. Duguay gave evidence that he had read the PPS and Growth Plan in their entirety, and that the analysis in his PJR provides more detail than the Township Planning Reports but arrives at the same conclusion. He proffered that, in considering the policies in their totality, the Revised ZBA was:

a) In keeping with the healthy, livable and safe communities policies of the PPS which support the continued use and enjoyment of the seasonal recreational property that is compatible with the surrounding area, and the marine storage shed will not cause environmental or public health and safety concerns; and

b) In conformity with the guiding principles and the Rural policies of the Growth Plan that the seasonal recreational use, including the marine storage shed, on the Subject Property is compatible with the rural landscape, the surrounding local land uses, and can be sustained by rural service levels.

21The COP has two functions. It serves as the upper tier OP and establishes a vision in which planning and stewardship protect and enhance a diverse landscape, lifestyle and sense of community for the County of Peterborough, and also functions as the lower tier OP for four local municipalities, including the Township. The Subject Property falls within the Shoreline Area and is designated Seasonal Residential (“SR”) pursuant to the COP. Section 6.2.5.2 of the COP sets out that the predominant use of lands within the SR designation shall be for seasonal cottages and that uses permitted in SR areas and regulations for such uses shall be defined in the implementing Zoning By-laws.

22It was Mr. Duguay’s evidence that the County Planning Staff confirmed that an amendment to the COP was not required and that the policies of the COP allow for exceptions for minor accessory structures within the 30 m setback to the shoreline, and he concurred in this regard. Mr. Duguay proffered that the marine storage shed is a type of structure contemplated by the notwithstanding policy of section 4.4.3 of the COP, and that in his opinion the Revised ZBA conforms to the COP from both the lens of the upper and lower tier municipal perspectives.

23Mr. Duguay spoke to the history and evolution of zoning and regulations in respect of boat houses within the Township over time and noted that it is a complex subject. He provided evidence to the Panel as to how he sees the marine storage shed fitting into the context of the ZBL.

24Mr. Duguay proffered that the structure is small in scale, in that its size is less than that which would require a Building Permit under the Ontario Building Code (“OBC”). Indeed, the size is akin to shed kits offered at hardware stores. In essence, it was Mr. Duguay’s evidence that, as such, the subject structure cannot provide the planned function of a boathouse, and in his opinion that there was merit in creating a definition of a “marine storage shed” to reflect its purpose and function for this Application.

25In considering that there can be exceptions to minor structures within the 30 m water yard setback, and acknowledging the existing location of the marine storage shed and its relationship with the adjacent property, next to the wooded area, it was Mr. Duguay’s opinion that the siting of the shed with a reduced (north) side yard setback would not interfere with, but rather, would form part of the recreational elements of the property, and that the Revised ZBA should be approved.

FINDINGS

26Based on the uncontroverted expert opinion evidence of Mr. Duguay, the Tribunal finds that the Revised ZBA has regard to matters of Provincial interest as set out in s. 2 of the Planning Act, is consistent with the PPS, conforms with the Growth Plan and the Official Plan, represents good planning, and is in the public interest.

27The Tribunal has had regard to the decision of Township Council and the proposed revisions to the ZBA that resulted in the settlement presented to the Tribunal on consent of the Parties.

28Further, the Participant Statements filed by Mr. Moran to these proceedings have been considered. Based on the evidence in this Hearing, the Panel finds that an amendment to the Official Plan is not required.

ORDER

29THE TRIBUNAL ORDERS that the appeal is allowed in part and By-law No. 26-2013, as amended, of the Township of North Kawartha is hereby amended as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk for the Township of North Kawartha to assign a number to this by-law for record keeping purposes.

“S. L. Dionne”

s. L. dionNE

membeR

“F. Lavoie”

F. LAVOIE

membeR

Ontario Land Tribunal

Website: www.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.

ATTACHMENT 1

The Corporation of the Township of North Kawartha By-law 2023-_______

Being a by-law of the Corporation of the Township of North Kawartha under the provisions of Section 34 of the Planning Act R.S.O. 1990, Chap. P. 13, as amended, to amend Zoning By-law #26-2013, with respect to certain lands described as PT LT 23 CON 6 CHANDOS PT 1 45R10900 and PT RDAL IN FRONT OF LT 23 CON 6 CHANDOS PT 2 PL 45R10900 (CLOSED BY BY-LAW NO. 2017-084 REGISTERED AS PE280219); TOWNSHIP OF NORTH KAWARTHA; NORTH KAWARTHA, Roll # 153601000302600

Whereas Zoning By-law #26-2013 as otherwise amended, was passed under the authority of a predecessor of Section 34 of the Planning Act, R.S.O. 1990, Chap. P. 13, as amended;

And Whereas the matters herein are in conformity with the provisions of the Official Plan of the County of Peterborough as approved by the Ministry of Municipal Affairs and Housing;

And Whereas the Council of the Corporation of the Township of North Kawartha conducted a public hearing in regard to this application, as required by Section 34(12) of the Planning Act, R.S.O. 1990, Chap. P. 13, as amended;

And Whereas the Council of the Corporation of the Township of North Kawartha deems it advisable to amend Zoning By-law #26-2013 as otherwise amended, with respect to the above - described lands, and under the provisions of the Planning Act has the authority to do so;

Now Therefore the Council of the Corporation of the Township of North Kawartha do hereby enact as follows:

1. That the proposed amendment will upon coming into force and effect, serve to amend By-law 26-2013, as amended, for certain lands located in PT LT 23 CON 6 CHANDOS PT 1 45R10900 and PT RDAL IN FRONT OF LT 23 CON 6 CHANDOS PT 2 PL 45R10900 (CLOSED BY BY-LAW NO. 2017-084 REGISTERED AS PE280219); TOWNSHIP OF NORTH KAWARTHA; NORTH KAWARTHA, Roll # 153601000302600 to amend the SR-273 zone provisions to include the following thereto:

All the provisions of Section 6.1 and 6.2 shall apply to the Shoreline Residential 273 Zone (SR - 273) and the following special provisions shall also apply:

a) Uses permitted in the SR - 273 Zone:

i. A dwelling, seasonal or permanent;

ii. A marine storage shed.

b) For purposes of a marine storage shed, the following regulations shall apply:

i. Maximum area (includes overhang) – 10 square metres;

ii. Maximum height – 4.1 metres

iii. Minimum Water-yard setback from the high-water mark – 20.8 metres

iv. Minimum side yard (north) – 0.84 metres.

c) For purposes of this district, A Marine Storage Shed shall mean a non-habitable, single storey structure, requiring no excavation for foundation or footings, designed to store marine related items (e.g. lifejackets, lawn chairs, paddles, kayaks) and located within the water body setback.

This by-law shall come into effect on the _________ day of _________ 2023.

Read and Adopted in open Council on the _________ day of _________ 2023.

Signed

______________________ Mayor

______________________ Clerk