1678920 Ontario Ltd. v. Huntsville (Town), 2023 CanLII 13943

Ontario Land Tribunal

ISSUE DATE: February 24, 2023

CASE NO(S).: OLT-22-003881

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

Applicant/Appellant: 1678920 Ontario Ltd.

Subject: Application to amend the Zoning By-law 2008-66P – Refusal of application

Description: ZBA to permit a Short-Term Rental Accommodation within an existing detached dwelling

Reference Number: Z/08/2022/HTE

Property Address: 432 Springfield Road

Municipality/UT: Town of Huntsville

OLT Case No: OLT-22-003881

OLT Case Name: 1678920 Ontario Ltd. v. Huntsville (Town)

Heard: In writing

APPEARANCES:

Parties	Counsel
1678920 Ontario Ltd.	Self-represented

DECISION DELIVERED BY C.I. MOLINARI AND M.A. SILLS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an appeal under s. 34(11) of the Planning Act, R.S.O. 1990 c.P.13 ("Act") from the decision of the Council ("Council") of the Town of Huntsville ("Town") to deny an Application filed by 1678920 Ontario Ltd. ("Applicant") related to 432 Springfield Road ("Subject Property").

2The Subject Property has an approximate area of 0.5 hectares with 58 metres of frontage on Fairy Lake. The property is accessed by Springfield Road which is a private road providing access to several properties fronting on Fairy Lake. The property is generally flat and developed with a single detached dwelling, a utility shed, and a dock located on the shoreline within the Town owned original shore road allowance. Much of the property is maintained in a natural vegetated state with the exception of the grassed area between the dwelling and the shoreline. The property is serviced with a private septic system and well. Surrounding land uses include similar shoreline residential uses of similar lot size. The lands directly to the south of the Subject Property appear to be vacant and well treed.

3The Subject Property is designated 'Waterfront' in the Town's Official Plan ("TOP") and, under Zoning By-law 2008-66P, as amended ("ZBL"), is subject to dual zoning with 'Natural Resource (NR)' ("NR") zoning along the waterfront and 'Rural Two (RU2)' zoning at the rear of the property. The dwelling is located within the NR zone as a legal non-conforming use.

APPLICATION

4The Applicant proposes to rezone the portion of the property zoned NR to an NR Exception Zone to permit a Short Term Rental Accommodation ("STRA") as an additional permitted accessory use within the existing dwelling in order to allow for the rental of the dwelling when not in use by the owners.

5According to the Town of Huntsville Staff Report dated April 13, 2022 ("Staff Report"), the need for a rezoning for a STRA use arises from the passing of a by-law by Council in 2020 to license, regulate and govern STRA uses ("STRA By-law"). Council passed a related ZBL amendment to include a definition for STRA use, to detail parking requirements relating to such uses, and to permit STRA uses as accessory uses in certain zone categories, provided they are licensed in accordance with the STRA By-law. The STRA By-law and the amended ZBL work together to license and regulate STRAs.

6The Staff Report also indicates that when the STRA By-law was developed, STRA uses were not permitted as-of-right as accessory uses within dwellings located within the NR Zone due, in part, to concerns that STRA uses within flood prone areas could increase the intensity of residential uses, leading to increased risks to life and property. It was preferred by the Town that potential STRA uses in the NR Zone proceed by way of site-specific zoning by-law amendments to ensure such uses would only be permitted on properties where it is deemed justified to do so based on an assessment of flooding risks and mitigation measures.

7The Staff Report recommended refusal of the Application on the grounds that "the application would not appear to conform to the Official Plan nor be consistent with the Provincial Policy Statement". Although the Town Planning Committee ("TPC") recommended approval of the Application to Council, Council ultimately refused the Application with the Notice of Refusal citing it:

did not conform with applicable Official Plan policies relating to development within hazardous lands prone to flooding. Council's decision was consistent with the written and oral submissions received from the public.

8Subsequent to the refusal of the Application, the Applicant retained Marie Poirier, owner and principal of Marie Poirier Planning and Associates Inc., to provide a professional planning analysis and opinion related to the Application and to file the appeal.

SUBMISSIONS

9The Tribunal, in considering the Application, reviewed the Municipal Record contained in the Tribunal's file (which includes the Staff Report, the District of Muskoka comment letter, the minutes of the TPC meeting and the Notice of Refusal) as well as Ms. Poirier's Curriculum Vitae ("CV"), Acknowledgement of Expert's Duty ("AED") and Witness Statement in support of the Application.

Planning Submissions – Municipality

10The Staff Report provides an analysis of the Application with respect to the relevant policy documents including the Provincial Policy Statement 2020 ("PPS"), the District of Muskoka Official Plan ("MOP"), the TOP, the ZBL and the STRA By-law.

11With respect to the PPS, the Staff Report finds that:

[t]he 2020 Provincial Policy Statement (PPS) applies and contains policies relating to wise use of resources and natural hazard avoidance. With respect to Natural Hazard policies contained in Section 3.1 of the PPS, it is noted that policies 3.1.4 prohibit development that would add additional uses within lands located below the Floodplain. There are exceptions in these policies to allow for minor additions to existing non-conforming, or to permit uses which by their nature must existing [sic] within the floodplain; however, the new proposed use would not appear to meet this [sic] criteria.

12The Staff Report concludes that the Application therefore does not appear to be consistent with the PPS.

13The Staff Report indicates that the Subject Property is designated 'Waterfront' in the MOP and that the District of Muskoka Planning Staff provided comments indicating that they are:

not in support of the proposed development given that the proposed development is located within a floodway where development and site alteration is not permitted in accordance with applicable MOP policies. It is noted by District staff that minor additions and development of uses that by their nature must locate with the floodway such as docks or boathouses may be permitted in certain areas; however the proposed development would not meet these criteria. District staff further note that the proposal to add a short term rental use, could pose a risk to the travelling public who are unaware of the hazards.

14The Staff Report further finds that the Application does not appear to conform to the TOP. The Subject Property is designated 'Waterfront' in the TOP which permits "linear, low density shoreline residential development that respects the character and natural setting of the waterfront area". The Staff Report states that the TOP does not permit new development and site alteration below the regulatory flood elevation, except:

for minor expansions to existing legal non-conforming uses, flood and/or erosion control structures, or marine-related structures such as docks, decks, and non-habitable boathouses (B4.1.3). Adding uses to existing non-conforming uses is not permitted.

15The Staff Report further states that:

[b]ased on flood depths likely to be experienced on site under Regulatory Flood conditions, the lack of floodproofing for the dwelling itself, and the lack of safe access to the lands under Regulatory Flood conditions, it would appear inappropriate to permit a Short Term Rental Accommodation use on site.

16With respect to the ZBL, the Staff Report indicates that the portion of the Subject Property where the dwelling is located is zoned NR, which is among the most restrictive zoning categories in the ZBL and includes land which is flood prone. It has been determined that the NR zoned portion of the Subject Property, which includes the dwelling, appears to be located below the updated Regulatory Flood Elevation based on a topographic survey submitted for a previous building permit application for the Subject Property. According to the Staff Report, only dwellings that existed prior to the date of the passing of the ZBL are permitted in the NR zone, with a restriction against new dwellings or additions, and permitted accessory uses are restricted to boathouses and docks.

17The Staff Report recommends denial of the Application but provides an option that if the TPC should choose to support the Application:

a Holding "H" provision is recommended to address adequate Shoreline Buffer revegetation in front of the property and the removal of structures from the ORSA [original shore road allowance] or closure and purchase of this lands from the Town. Further, should Committee view the application favourably, it is recommended that a site specific definition for the STRA use be applied in the zoning by-law that includes a timing window to restrict the use so that it would only be permitted to occur outside high flood risk seasons.

Planning Submissions – Applicant's Planning Consultant

18Having reviewed the CV and AED of Ms. Poirier, the panel qualified her to provide opinion evidence as an expert in land use planning and accepted her signed and dated AED as her oath to have told the truth in her submissions to the Tribunal.

19In her Witness Statement, Ms. Poirier provided an analysis of the Application with respect to the relevant policy documents including the Act, the PPS, the MOP, the TOP and the ZBL.

20With respect to the Act, Ms. Poirier reviewed sections 2 and 3(5) for the purpose of formulating her opinion. Ms. Poirier found that the Application has regard for subsection 2(a) related to the protection of ecological systems, including natural areas, features and functions, and subsection 2(o) related to the protection of public health and safety. She opined that permitting an STRA in an existing dwelling "will not have any negative impact on the ecological system of the site, or any natural areas, features or functions". Section 3(5) requires that any decision of the Tribunal in respect of a planning matter shall be consistent with the PPS.

21With respect to the PPS, Ms. Poirier stated that she reviewed the document in its entirety and found sections 1.1.1, 1.1.4, 1.1.5, 1.6.6, 3.1.1, 3.1.2, 3.1.5, 3.1.6, 3.1.7 and 4.6 to be relevant (related to environmental and safety concerns, rural character, compatibility with the rural landscape, provision of suitable services, natural hazards, and implementation of the PPS). Addressing these sections of the PPS, she submitted that:

• "[n]o new development is proposed as part of the Application, rather the use of the existing year round dwelling as a short-term rental, which [sic] is in keeping with the rural character of the area"
• "[the] Application does not propose any changes to the existing development on the property"
• "a short term rental is still a dwelling and differs only in use in terms of the duration of that use by individuals"
• "[t]he property is currently serviced by private on-site services"
• "the use of the existing year-round dwelling as a short term rental does not constitute "new" development as the use of the existing dwelling for residential purposes remains unchanged, and only differs in use of terms of the duration of it being used by individuals. No new development is being proposed as part of the Application" and
• "the use of the existing dwelling for a short-term rental is consistent with the criteria outlined in the PPS for use of the lands prone to flooding".

22Based on this review, Ms. Poirier opined that the Application is consistent with the PPS. She proffered that section 4.6 of the PPS states that the official plan is the most important vehicle for implementation of the PPS.

23With respect to the MOP, Ms. Poirier stated that she reviewed the document in its entirety for general conformity of the Application. She opined that the use of the existing year round dwelling on the property as a STRA fulfils the guiding principles of the MOP including protecting the natural environment, providing for a diverse economy, making efficient use of land, energy and infrastructure, maintaining the small-town, waterfront and rural character of the area, and promoting healthy communities by ensuring that development patterns contribute positively to public health and safety.

24As the Subject Property is designated 'Waterfront' in the MOP, Ms. Poirier opined that the MOP policies related to the protection of fish habitat, water resources and stormwater management are met. To justify this she submitted that the proposed development is not major, there is no new development or alterations proposed to the existing development, no vegetation removal or alteration of the shoreline is proposed, and the revegetation plan (to be required through a Site Plan Agreement as part of the proposed holding provision, if approved), all contribute to ensure conformity with the MOP in this respect.

25As the dwelling existed in the NR zone prior to the date of passing of the ZBL, Ms. Poirier advised that the non-conforming uses section of the MOP applies which states that:

[a]s a general rule, existing uses that do not conform with the policies of this Plan should gradually be phased out so that the affected land use may change to a use that is in conformity with the goals of the Plan and the intent of the Area Municipal zoning

26Ms. Poirier opined that the Application is not a major land use change and a STRA use does not change the use of the dwelling, rather it only "differs in use in terms of duration of that use by individuals".

27Finally, Ms. Poirier proffered that the Natural Hazards section of the MOP applies to the proposed development as the dwelling is within the flood plain, and that an STRA use (of a related residential use) is not listed as a prohibited use in "hazardous lands". The section prohibits development in "areas that would be rendered inaccessible to people and vehicles during times of flooding hazards and/or erosion hazards, unless it has been demonstrated that the site has safe access". Ms. Poirier relied on the submissions of the owners of the Subject Property as well as neighbouring property owners that the road and Subject Property has been accessible during significant flooding events. In addition, the topographic survey shows the driveway access off of Springfield Road to be above the regulatory flood elevation. She opined that, in addition to this, the mitigative measures outlined in the resolution for approval of the Application by the TPC would help to ensure that the use of the dwelling for a STRA use would not be impacted by a flooding event. She opined that the Application conforms to the intent, spirit and specific policies of the MOP as the STRA use does not change the use of the dwelling.

28With respect to the TOP, as the Subject Property is designated 'Waterfront', Ms. Poirier reviewed the Fish Habitat policies and the Waterfront development policies. She opined that the continued use of the dwelling for a STRA use is compatible with the surrounding area, will be serviced with the existing well and septic system and would maintain the residential use on the property while supporting the surrounding area and community with accommodation.

29Ms. Poirier further reviewed the Natural Hazard/Development Constraints policies of the TOP related to flood hazards and notes that Schedule C to the TOP does not identify the property as part of the 'Floodway' and 'Flood Fringe'. Section 4.1.3 of the TOP provides that new development and site alteration, except minor expansions to existing legal non-conforming uses, is not permitted below the regulatory flood elevation. Ms. Poirier opined that this provides for minor expansions to legal non-conforming uses and that the refusal of the Application does not acknowledge section 4.1.3 respecting development below the regulatory flood level for legal non-conforming uses.

30Ms. Poirier further submitted that the Application does not propose any new development, rather the use of the existing dwelling for a STRA use while not changing the existing residential use. She likened the STRA use to a continuation of the residential use of the property and opined that the Application conforms to the intent, spirit, and specific policies of the TOP.

31With respect to the ZBL, Ms. Poirier proffered that a single detached dwelling that existed on the date of passing of the ZBL is a permitted use within the NR zone. Accessory uses in the NR zone are limited to boathouses and docks, and section 3.14, related to non-conforming uses, states that "[p]rovided that there is no change in use, existing legal non-conforming uses and existing accessory uses thereto may continue." Ms. Poirier opined that the STRA use is still a residential use and that it "differs only in terms of the duration of that use by individuals." Ms. Poirier further noted the distinction that the Subject Property is not zoned Natural Resource Floodway (NR1) or Natural Resource Flood Fringe (NR2).

32Ms. Poirier submitted that the TPC's recommendation to Council to approve the Application for the Subject Property stipulated that the STRA use be limited from May 1 and March 1 of any calendar year, in order to avoid rentals during times of the year when flooding is a concern. The recommendation also included a holding zone on the rezoned portion of the property to require a revegetation plan implemented through a Site Plan Agreement and to require the original shore road allowance to be purchased by the Applicant or, alternatively, all shoreline structures to be removed.

33Ms. Poirier further opined that the Application maintains the intent of the ZBL and, being consistent with the PPS and conforming to the MOP and the TOP, is in the public interest and represents good planning.

ANALYSIS AND FINDINGS

34The Tribunal notes that neither the Town of Huntsville nor the District of Muskoka provided written submissions and no other parties or participants were involved.

35The Tribunal, having considered the submissions of the Applicant's planning consultant in her Witness Statement and the Staff Report, the District of Muskoka comment letter, the TPC recommendation to Council and the Notice of Refusal, finds that the rezoning Application has merit and warrants approval.

36The Subject Property is currently developed with a year-round detached dwelling with access from Springfield Road. The property is further improved with a driveway, septic system, well, shed and dock. No physical development is proposed through the rezoning Application. The only change contemplated is the short term rental of the property when not in use by the owners. The Tribunal finds that this does not amount to an intensification of use or a material change in land use of the property but merely allows for occupants, other than the owners, to enjoy the use of the property, albeit through a rental arrangement.

37The Tribunal prefers the submissions of Ms. Poirier in her analysis of the planning policy framework governing the use of the Subject Property. The recognition in the TOP and the ZBL of legal non-conforming uses is critical in the determination of the appeal. The legal non-conforming status of the property affords the continuation of the residential use of the property. It therefore follows that the permission of a variation of the arrangement of the residential use, such as that of a STRA use, is apposite. The Tribunal finds that the governing policies and existing zoning of the property provides for the STRA use.

38The Tribunal also finds that, as detailed in paragraph [6] above, the Town has provided for the consideration of permitting STRA uses in the NR Zone by way of site-specific zoning by-law amendments to ensure such use would only be permitted on properties where it is deemed justified to do so based on an assessment of flooding risks and mitigation measures. It is the Tribunal's determination that such an assessment has been undertaken and that the flooding risks are the same for the legal non-conforming residential use of the property as they would be for a STRA use and that appropriate mitigation measures were proposed in the Staff Report and in the recommendation of approval by the TPC to Council.

39The Tribunal is satisfied that the application is consistent with the PPS, conforms to both the MOP and the TOP, is in keeping with the general intent and purpose of the ZBL, is in the public interest and represents good planning.

ORDER

40THE TRIBUNAL ORDERS that the appeal is allowed and the Town of Huntsville is directed to amend By-law 2008-66P, as amended, to allow for a Short Term Rental Accommodation use within the existing dwelling in the NR zone on the property known municipally as 432 Springfield Road.

41The Tribunal authorizes the municipal clerk of the Town of Huntsville to assign a number to this by-law for record keeping purposes.

"C.I. Molinari"

C.I. MOLINARI

MEMBER

"M.A. Sills"

M.A. SILLS

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.