Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 24, 2023 CASE NO(S).: OLT-22-004668

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Kyle Scott Subject: Minor Variance Description: to allow for the ground floor area expansion of existing cottage Property Address: 89 Sunrise Trail Municipality: Township of Georgian Bay Municipal File Number: A21-25 OLT Case No.: OLT-22-004668 OLT Lead Case No.: OLT-22-004668 OLT Case Name: Scott v. Georgian Bay (Township)

Heard: February 17, 2023 by video hearing

APPEARANCES:

Parties Kyle Scott

Counsel Marc Kemerer

Parties Township of Georgian Bay

Counsel Colin Leger and Neil MacIsaac (Articling Student)

MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE ON FEBRUARY 17, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an appeal filed by Kyle Scott (the “Applicant/Appellant”) against the decision of the Township of Georgian Bay (the “Township”) Committee of Adjustment’s (the “CoA”) decision on August 8, 2022, in relation to the refusal of an application for minor variances to the zoning provisions established by Zoning By-law No. 2014-75, as amended (the “ZBL”) concerning 89 Sunrise Trail (the “Subject Property”).

2The proposal seeks to renovate the existing cottage which will add a symmetrical wing to the cottage, resulting in a total floor area 312.53 square metres (“m²”) with a height of 9 metres (“m”). The existing cottage has an existing non-complying height of 9 m.

3The COA denied the application on October 14, 2022 for the reasons they consider these not to be minor variances from the provisions of the ZBL, the variances are not desirable for the appropriate use of lands, the general intent and purpose of the By-law is not maintained, and the general intent and purpose of the Township OP and the District OP is not maintained.

THE REQUESTED VARIANCES

4The renovation of the existing cottage requires variances with respect to Gross Floor Area (“GFA”) 312.53 m² from 232.68 m² as required in the ZBL and a height of 9 m from 8 m as required in the ZBL.

HEARING

5Upon the commencement of the hearing, Marc Kemerer, Counsel for the Applicant/Appellant advised of a settlement reached between the Applicant/Appellant and the Township.

6The Applicant/Appellant and the Township (collectively, the “Parties”) have agreed to a comprehensive resolution of the Appeal reflected in their agreement in Minutes of Settlement dated February 13, 2023 (Exhibit 4) and agree to place the proposed settlement subject to one condition of landscaping restoration plan (see Schedule 1) herein before the Tribunal for an issuance of approval.

WITNESS

7Evidence in support of the proposed minor variance application was provided by witness John Jackson who was qualified on consent by the Tribunal to give opinion evidence in the area of Land Use Planning.

8The Tribunal received and marked the following documents as Exhibits to the Hearing:

a. Exhibit 1: Affidavit of John Jackson b. Exhibit 2: Acknowledgement of Experts Duty - John Jackson c. Exhibit 3: Joint Document Book d. Exhibit 4: Minutes of Settlement

THE SUBJECT PROPERTY

9The Subject Property is located at 89 Sunrise Trail. The access is by Joe King Road off Highway No. 400 and then south along King Farm Road.

10The Subject Property is described as Part of Lot 21, Concession 8 in the geographic Township of Baxter.

11The lot has 54 m of frontage on Gloucester Pool and is 0.547 hectares in size.

12There is a two-storey dwelling, a boathouse, a garage and two small sheds on the Subject Property.

13The lot rises steeply at the rear where the garage is located. The garage is approximately 10 m higher than the waterfront.

14The existing dwelling is 10.01 m from the shoreline at its closest point.

LEGISLATIVE TESTS

15It must be noted that an appeal to this Tribunal pursuant to s. 45 of the Planning Act (“Act”) is a hearing de novo and the onus of establishing that the four tests under s. 45(1) of the Act are met is on the Applicant. In addition, in making a decision under the Act with respect to a minor variance, the Tribunal must have regard to matters of provincial interest as set out in s. 2 and to the decision of the approval authority under s. 2.1. The decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”) under s. 3(5) and conform with any provincial plans that are in effect.

16Applications for minor variance must satisfy all four tests set out under s. 45(1) of the Act, namely that the requested variances:

i. maintain the general intent and purpose of the Official Plan (the “OP”), ii. maintain the general intent and purpose of the ZBL, iii. are desirable for the appropriate development or use of the land, building or structure, and, iv. are minor in nature.

PLANNING EVIDENCE

Township Zoning By-law

17Mr. Jackson highlighted section 4.11 a) of the Township Comprehensive ZBL which allows for the expansion of dwellings on legal, non-complying lots.

18Mr. Jackson submits the existing cottage can expand its GFA by 40% up to 232.68 m² as a matter of entitlement. According to Mr. Jackson if the renovation by the Applicant/Appellant was for only 232.68m², no application for a minor variance would be required in this regard.

19Mr. Jackson advised that the application is for a GFA expansion of approximately 53% to permit 312.53m² for the cottage.

20Mr. Jackson submits the general purpose and intent of the ZBL is to implement the policies of the OP and to ensure that the expansion of existing non-complying dwellings is appropriate and will preserve the character of the neighbourhood. The general policies of the OP are to protect the environment and to preserve the character of the Waterfront areas.

21According to Mr. Jackson the existing space on the existing cottage, there is an existing covered deck that gives the combined inside/outside space as 216.7 m². In this regard, a 53% increase for allowable space is not that significant.

22The baseline with respect to good planning and character is measured from the allowable GFA space (232.68 m²). This is the legal permission for the lot and the determination is to be made whether the allowable GFA will cause this addition to fall outside the general intent of the ZBL.

23Mr. Jackson advised the variance of height is a technical variance as the existing height of the cottage is 9 m.

24According to Mr. Jackson given the nature, location and details together with the protective measures proposed in the way of the landscape restoration plan agreed to between the Township and the Applicant/Appellant, it is his opinion that the intent of the ZBL will not be compromised and that there will be no adverse impacts on any of the policy principles including visual concerns on the neighbourhood or the natural landscape.

25Mr. Jackson submits because of the hidden location, the siting on the existing footprint and additional screenings agreed to, it is his opinion which the Tribunal agrees, that the general intent and purpose of the ZBL is maintained through the variances.

The Provincial Policy Statement

26The Subject Property is designated as Rural lands under section 1.1.5 of the PPS. Recreational and residential development are considered permitted uses within Rural areas.

27According to Mr. Jackson the PPS provides for the protection of natural heritage features under section 2.0 of the policy. The owner retained a qualified consultant, to undertake an environmental assessment. That original assessment along with the Michalski Nielsen 8 February 2023 landscaping restoration report concludes that there would be no adverse impacts as a result of the renovation on the property.

28Mr. Jackson advised that it has been recommended that the Applicant/Appellant undertake some additional plantings of juvenile trees that were disturbed. In Mr. Jackson’s view this is appropriate, and an appropriate condition to attach to the approval of the variances.

29Mr. Jackson also noted the Township planning staff concluded that the variances are consistent with the PPS.

30In Mr. Jackson’s opinion, with which the Tribunal agrees, the proposed development is consistent with the PPS.

District of Muskoka Official Plan (“MOP”)

31Mr. Jackson advised that the District of Muskoka provided no indication of any objection to the proposed minor variance application.

32Mr. Jackson opined that the variances maintain the general intent and purpose of the MOP. The MOP permits recreational and residential development within Rural areas.

33Therefore, it is Mr. Jackson’s opinion, with which the Tribunal agrees, that the proposed development meets the general intent and purpose of the MOP.

Township’s Official Plan

34The Subject Property is designated Waterfront in the Township OP. This designation permits low density, detached dwellings along a single tier on the shoreline.

35According to Mr. Jackson within the basis and principles of the Waterfront policies, a number of general policies apply.

36Mr. Jackson highlighted several sections of the OP in regard to the character and aesthetic quality of the waterfront and compatibility with existing land uses. Mr. Jackson contends that the proposal is on the same footprint of the existing building and is compatible with the character of the surrounding area.

37According to Mr. Jackson, in regard to servicing, the proposal is not creating any new development as it is, for the most part, occurring on the existing footprint with minimal disturbances.

38In regard to Plan Servicing policies in the OP, Mr. Jackson advised that these policies have been addressed by the environmental consultant including the policies relating to preserving natural vegetation.

39Mr. Jackson advised that the present dwelling is serviced with a private septic system and water supply and he advised that the proposal is a permitted use as per the OP.

40In regard to preserving natural vegetation policies, Mr. Jackson stated that the Applicant/Appellant has submitted the environmental impact study that has been peer reviewed by the Township's environmental consultant. This study and review led to the Nielsen 8 February 2023 landscape restoration plan which has been accepted by the Township.

41According to Mr. Jackson, given the proposal, the nature of the work and its location on the existing cottage platform, there will be few additional impacts from the existing situation. Those impacts will be mitigated through the landscape restoration plan.

42Mr. Jackson confirmed that he agrees with the settlement as well as the restoration plan. Mr. Jackson states that the settlement and restoration plan represents good planning in his opinion, which the Tribunal agrees will allow the variances to maintain the general intent and purposes of the Township's OP.

Are the variances desirable for the appropriate use or development of the Property

43Mr. Jackson submits this Planning Act test is generally to determine appropriateness based upon general neighbourhood conditions, impacts on adjacent properties and the natural environment.

44In Mr. Jackson’s opinion no such adverse impacts shall occur, to adjacent properties or the community as a whole, particularly given the restoration plan agreed to by the Applicant.

45In Mr. Jackson’s opinion, which the Tribunal agrees the variances are appropriate for the desirable development of the Subject Property.

Minor

46Mr. Jackson submits that minor is a relative term. The question of "minor" has evolved more into what impacts are likely in contrast to a mathematical criterion. The impacts one must consider are on the physical nature of the property, the neighbours and any environmental impacts.

47Mr. Jackson advised in this application the area proposed is 79.85 m². However much of this space is currently part of the cottage "space" when considering the extent of the existing structure. All of the proposed addition is within the existing footprint.

48According to Mr. Jackson the proposed height is existing and will have no impacts.

49In Mr. Jackson’s opinion, with which the Tribunal agrees, the variances can be considered to be minor in nature.

Summary

50In summary, Mr. Jackson contends that the proposed renovation is able to be supported for a minor variance from a number of perspectives.

51Mr. Jackson submits the additions being placed on the old cottage are inclusive of existing decks and overhangs. There is less added space in contrast to GFA which only accounts for indoor space.

52Screening from the waterfront will be enhanced through the landscape restoration plan. There are no further impacts in the front yard. There is an existing septic system on the property. The existing cottage is quite dated and is in need of a major upgrade. This type of upgrade is occurring quite often in cottage country.

53Mr. Jackson advised subject to the implementation of the terms around the landscape restoration plan, it is his opinion that that variances:

i. meet the four tests of the Planning Act; ii. are consistent with the PPS; and, iii. represent good planning

FINDINGS AND DISPOSITION

54In determining this matter, the Tribunal accepts and adopts the uncontroverted planning evidence provided by Mr. Jackson. The Tribunal is persuaded by the evidence that the proposal promotes good land use planning and is in the public interest.

55The Tribunal is satisfied that the variances are consistent with the PPS, maintain the general intent and purpose of the MOP, Township OP and Comprehensive ZBL, are desirable for the appropriate development of the land and are minor in nature.

56The Tribunal also acknowledges the cooperation between the Parties to reach a Settlement in these proceedings.

ORDER

57THE TRIBUNAL ORDERS that the Appeal is allowed in part, and the variances to Zoning By-law 2014-75, as amended, are authorized subject to the condition set out in Schedule 1 to this Order.

“Eric S. Crowe”

ERIC S. CROWE 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.

SCHEDULE 1

CONDITION OF APPROVAL

The Applicant will undertake landscaping restoration in accordance with the 8 February 2023 Michalski Nielsen Response to Peer Review Comments contained at Tab 18 of the Document Book (the “Response to Peer Review”), specifically:

i. each of the three Landscape Restoration Areas identified on the Landscape Restoration Plan in the Response to Peer Review will have a 30 cm diameter coir log installed along its downgradient edge to serve as an anchor for topsoil placement and to stop any such soil from migrating towards the lake; an average of 20 cm of a sandy loam topsoil will be spread over the restoration zone behind those coir logs;

ii. the Landscape Restoration Areas are to be planted as indicated in Table 1 to the Response to Peer Review, with a total of 14 conifer trees and 12 shrubs; the shrubs are to be planted along the edges of the coir logs; the trees are to be distributed on approximately 2.5 m centres throughout the remainder of the Landscape Restoration Areas;

iii. planting is to occur in the period of April to May 2023, by a qualified landscaper and following proper horticultural practices;

iv. the Applicant shall retain an ecologist to monitor the plantings and provide any required advice; by June 15, 2023 a brief report with photos is to be provided by the ecologist to the Township to certify that the work has been completed properly;

v. the ecologist shall provide to the Township, one year and three years following the above-noted planting, a brief inspection report, containing (a) photos of the plantings, (b) details on the health of the trees and shrubs, and (c) replacement dates for any mortalities; any planting mortalities identified in those inspection reports will be replaced in a like-for-like fashion within one year of the completion of the reports.