Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 24, 2023 CASE NO(S).: OLT-22-004360

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

Applicant/Appellant: Rob & Sue Salway Subject: Application to amend the Zoning By-law – Appeal of Decision Description: To facilitate the creation of 3 new residential lots on subject property Reference Number: By-law 2022-25 Property Address: Concession 9 Part Lots 24 & 25 Municipality: Township of McKellar OLT Case No.: OLT-22-004360 OLT Lead Case No.: OLT-22-004360 OLT Case Name: Salway v. McKellar (Township)

Heard: February 16, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Rob and Sue Salway	Kevin Pirak
Township of McKellar (“Township”)	Jennifer Biggar

MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE ON FEBRUARY 14, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened a Settlement Hearing on an Appeal filed by Rob and Sue Salway (“Applicants/Appellants “) against the Township of McKellar (“Township”) Council’s refusal of a Zoning By-law Amendment (“ZBLA”) application concerning Concession 9 Part Lots 24 and 25 (“Subject Lands”).

2The purpose of the revised ZBLA application is to facilitate the creation of 3 new lots on the Subject Lands.

3The ZBLA is to rezone the Subject Lands to a site specific (Special Zone) Waterfront Residential Two (WF2) Zone to permit the proposed shoreline residential lots and to implement a minimum front yard of 30 metres (“m”) for each proposed lot.

BRIEF CHRONOLOGY OF THE APPLICATION

4On January 27, 2022, the Applicants/Appellants submitted a Consent application to the Parry Sound Area Planning Board to create three new shoreline residential lots on the Subject Lands, for a total of four lots, as well as easements for access.

5On January 27, 2022, the Applicants/Appellants submitted a Rezoning application to the Township to rezone the Subject Lands to site specific WF2 Special Zone to permit the proposed shoreline residential lots and to implement a minimum front yard of 30 m for each proposed lot.

6On April 12, 2022, the Township passed a resolution to not support the Consent Application.

7On April 12, 2022, the Township made a decision to refuse the Rezoning Application on the basis that the proposed lots should have a minimum lot frontage of 120 m (opposed to the 90 m that is proposed).

8The Applicants/Appellants filed an appeal to the Ontario Land Tribunal (“OLT”) associated with the refusal of the Rezoning Application on May 11, 2022 on the basis that the Rezoning Application conforms to the Township OP.

9On May 30, 2022, the Parry Sound Area Planning Board made a decision to approve the Consent Application. The Township did not appeal the Consent Application and no other appeals were received on the Consent Application. As such, the Consent is provisionally approved, subject to satisfaction of the conditions imposed by the Planning Board.

10Following the appeal of the Rezoning Application, the Township and the Applicant/Appellant reached a settlement.

HEARING

11Upon commencement of the Hearing, Kevin Pirak, Counsel for the Applicant/Appellant advised a settlement was reached between the Applicant/Appellant and Township pursuant to a Settlement Agreement dated February 8, 2023.

12Jennifer Biggar, Counsel for the Township confirmed and supported the Settlement Agreement.

13Rob and Sue Salway and the Township (collectively, the “Parties”) have agreed to a comprehensive resolution of the Appeal and wish to reflect their agreement in Minutes of Settlement and agree to place the proposed settlement herein before the Tribunal jointly requesting that the Tribunal allow the appeal in part and approve the ZBLA appended as Schedule 1.

WITNESS

14Evidence for the settlement and the proposed ZBLA application was provided by witness Jamie Robinson who was qualified on consent by the Tribunal to give expert opinion evidence in the area of Land Use Planning.

15The Tribunal received and marked the following new documents as Exhibits to the Hearing:

a. Exhibit 1: Affidavit of Notice dated December 28, 2022 and Affidavit of Notice dated January 16, 2023

b. Exhibit 2: Affidavit of Jamie Robinson

SUBJECT LANDS/SITE AND SURRONDING AREA

16The Subject Lands are located in the Township and is accessed from Fox Farm Road which was recently extended beyond the boundary of the Subject Lands to the south.

17The Subject Lands have a lot area of 20.6 hectares (“ha”) and 390 m of lot frontage along the west bank of Middle River (Lake Manitouwabing).

18Surrounding land uses primarily include other waterfront residential lots and development. The east side of Middle River contains a number of water residential lots.

19The Subject Lands are designated Waterfront on Schedule A, Sheet 1 of the Township Official Plan (“OP”). Schedule A, Sheet 1 of the OP also identifies the Subject Lands as containing Deer Wintering (Stratum 2) and Endangered and Threatened Species.

20The Subject Lands are zoned Rural (RU) in the Township’s ZBL No. 95-12. The Township recently passed ZBL No. 2019-23 which is currently under appeal. Therefore, ZBL No. 95-12 is in force and effect.

LEGISLATIVE TEST

21In making a decision with respect to a Zoning By-law Amendment, the Tribunal must consider s. 2 and s. 3 (5) of the Planning Act (“Act”) which requires that the Tribunal have regard to matters of Provincial interest, and consistency with the Provincial Policy Statement (“PPS”) and conformity with Provincial Plans. In addition, with s. 24(1) of the “Act. Despite any other general or special Act, where an Official Plan is in effect, no public work shall be undertaken and, except as provided in subsections (2) and (4), no by-law shall be passed for any purpose that does not conform therewith.

PLANNING EVIDENCE

Provincial Interests

22Jamie Robinson, Land use Planner, states the ZBLA has regard to the matters of provincial interests outlined in Section 2 of the Planning Act. Mr. Robinson highlighted subsection a), protection of ecological systems, including natural features and functions and f), the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems.

23In Mr. Robinson’s opinion, with which the Tribunal agrees, the ZBLA ensures orderly development of the lands, has regard to provincial interests and represents good planning.

Provincial Policy Statement (“PPS”)

24Mr. Robinson highlighted Section 1.1.5.2 of the PPS, resource-based recreational uses (including recreational dwellings) and residential development, including lot creation which is permitted on Rural Lands. Mr. Robinson opines that the proposed shoreline lots will accommodate resource-based recreational uses (recreational dwellings) and are a permitted use in accordance with the PPS.

25In accordance with s. 1.6.6.4 of the PPS, Mr. Robinson contends that the lot sizes are sufficient to accommodate individual on-site sewage services and individual on-site water services.

26According to Mr. Robinson s. 2.1 of the PPS provides policies that apply to Natural Heritage. Section 2.1.5 d) provides policies that apply to significant wildlife habitat. Mr. Robinson advised that the Subject Lands are identified as Deer Wintering (Stratum 2) of the OP. Section 2.1.5 d) does not permit development or site alteration in significant wildlife habitat, unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions.

27Mr. Robinson advised that the Site Evaluation Report (“SER”) and addendum to the SER conclude that the lot frontage and lot area of the WF2 zone are sufficient to protect the Stratum 2 Deer Winter Habitat.

28In Mr. Robinson’s opinion, with which the Tribunal agrees, the application is consistent with the PPS.

Growth Plan for Northern Ontario (Growth Plan)

29Mr. Robinson submits the Growth Plan is primarily an economic development tool that encourages the establishment of service hubs throughout the north. In Mr. Robinson’s opinion the proposal has been reviewed against the Growth Plan and the proposed ZBLA conforms to and does not conflict with the Growth Plan.

Township’s Official Plan (“OP”)

30Mr. Robinson advised that the Subject Lands are designated Waterfront on Schedule A, Sheet 1 of the Township OP. Schedule A, Sheet 1 of the OP also identifies the subject property as containing Deer Wintering (Stratum 2) and Endangered and Threatened Species.

31Mr. Robinson highlighted s. 5.8.2.2 of the OP which permits a limited number of lots used for seasonal residential dwellings within the Waterfront designation that are accessed by a registered right-of-way. According to Mr. Robinson, in conformity with this policy, the proposed three new lots are a limited number of lots that are to be used for seasonal residential purposes and accessed via a registered right-of-way.

32Section 5.10 of the OP contains Land Division policies. Section 5.10.2 outlines Consent policies applicable to all land use designations. It is Mr. Robinson’s opinion that the ZBLA implements these policies and the planned function for the new lots created by the Consent in accordance with the Waterfront designation of the OP.

33Mr. Robinson advised the Waterfront designation policies are outlined in Section 7.0 of the OP. According to Mr. Robinson the use of the lands within the Waterfront designation is predominantly seasonal residences, year-round homes with some commercial and tourist commercial uses and pasture land interspersed with the shoreline residential uses. In Mr. Robinson’s opinion the proposed ZBLA implements the planned function for this area and would facilitate the development of dwellings which are a permitted use in the Waterfront designation and which are anticipated as a result of the provisionally approved consent application.

34Section 7.08.1 of the OP states: New lots in the Waterfront designation will be subject to a minimum lot frontage and a minimum lot area that responds to the particular needs for the various lakes and parts of lakes throughout the municipality. According to Mr. Robinson the previous standards for new lakefront properties ranged between 60 m of frontage to 150 m of frontage. Lake Manitouwabing generally has 60 m lot frontages on the west side of the Lake and a minimum 90 m lot frontage on the east side of the Lake in response to the presence of deer wintering habitat.

35Section 7.12.3.4 of the OP states:

• Development of fewer than three new residential lots, excluding the retained, may be permitted in or adjacent to significant deer habitat without a site evaluation report addressing deer wintering habitat if the proposed severed and retained lots have a minimum of 90 metre frontage and 90 metre depth, and any coniferous shelter and browse habitat along the shoreline is protected. Alternate lot sizes may be appropriate if an evaluation prepared by a qualified specialist has indicated that deer wintering habitat does not exist.

36According to Mr. Robinson in order to demonstrate conformity to the OP, the Applicant/Appellant retained Riverstone Environmental to prepare a SER that concluded that the proposed lots with a minimum lot frontage of 90 m are appropriate within the Stratum 2 Deer Wintering Habitat.

37The SER recommended mitigation measures to ensure that natural heritage features and watercourses are protected from development. Mr. Robinson informed these are reflected in the ZBLA which has requirements for a 15 m setback from a watercourse, a 30 m setback from the shoreline, a 30 m setback from the wetland and that a path to the shoreline shall be permitted and made of permeable materials.

38It is Mr. Robinson’s opinion, which the Tribunal agrees the ZBLA conforms to the OP.

Township’s Zoning By-law

39The Subject Lands are zoned Rural (RU) in the Township’s ZBL No. 95-12. The Township recently passed ZBL No. 2019-23 which is currently under appeal. Therefore, Zoning By-law No. 95-12 is in force and effect.

40The ZBLA is to rezone the Subject Lands to a site specific (Special Zone) Waterfront Residential Two (WF2) Zone to permit the proposed shoreline residential lots and to implement a minimum front yard of 30 m for all proposed lots.

41Mr. Robinson testified the recommendations from the SER propose a minimum front yard of 30 m which is a larger setback from the shoreline for the proposed single detached dwellings than the current minimum front yard setback of 10 m in both ZBLs.

42Due to the slope and the increased setback from the shoreline, additional stair structures will be required to provide access to the shoreline. As a result, the recommendation that stairs with a maximum width of 1.6 m be permitted to provide access to the shoreline.

SUMMARY

43Mr. Robinson opines, the proposal to rezone the Subject Lands accords with matters of provincial interest and policies outlined in the PPS, Growth Plan, the OP.

FINDINGS AND DISPOSITION

44In determining this matter, the Tribunal accepts and adopts the uncontroverted planning evidence and expert opinion provided by Mr. Robinson. The Tribunal is persuaded by the evidence that the proposal promotes good land use planning and is in the public interest and is satisfied that the application conforms to the OP, and Growth Plan and is consistent with the PPS.

45The Tribunal notes the SER and its recommendations and is satisfied that the proposal has mitigation measures which will protect the ecological systems, including natural features such as wetlands and Deer Habitat.

46The Tribunal acknowledges the cooperation between the Parties to reach a Settlement in these proceedings.

ORDER

48THE TRIBUNAL ORDERS that the appeal against By-law of the Township of Mckellar is allowed in part, and By-law is amended as set out in Schedule 1 to this Order and Decision. In all other respects, the Tribunal orders that the appeal is dismissed.

“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

CORPORATION OF THE TOWNSHIP OF McKELLAR BY-LAW NO. 2022-25

A By-law to amend By-law No. 95-12, the Zoning By-law for Part of Lots 24 and 25, Concession 9 (Salway)

WHEREAS Section 34 of the Planning Act authorizes municipalities to amend Zoning By-laws;

AND WHEREAS By-law 95-12 was enacted by the Corporation of the Township of McKellar to regulate land use within the Municipality;

NOW THEREFORE the Ontario Land Tribunal enacts as follows;

HEREBY ENACTS AS A BY-LAW OF THE CORPORATION AS FOLLOWS

1. Schedule “A” Sheet “1” of By-law No. 95-12 as amended is hereby further amended by rezoning Part of Lots 24 and 25, Concession 9, from the Rural (RU) Zone to the Special Provision 16.73 (SP-16.73) Zone in accordance with Schedule “1” to this By-law.

2. Section 16 (Special Provisions) of By-law 95-12 as amended is hereby further amended by adding the following paragraph at the end of the section (16.72):

“Notwithstanding the requirements of this By-law, a single detached dwelling and associated accessory buildings and structures are permitted on Part of Lots 24 and 25, Concession 9, within the SP-16.73 Zone, on the Middle River identified on Schedule ‘A’ Sheet “1” subject to the following provisions:

a. No buildings or structures shall be permitted within 30m of any wetland;

b. No buildings or structures shall be permitted within 15m of any watercourse other than the shoreline;

c. A minimum setback of 30 metres from the front lot line (high watermark) for primary dwellings and permitted accessory structures is required and the following is permitted within the required front yard:

i. Accessory structures in accordance with the Zoning By-law, provided the 30 metre setback is met;

ii. A path to the shoreline which should be constructed out of permeable materials and meander;

iii. A detached, open-air deck is permitted within the front yard provided that the deck is less than 30 square metres and that the height of the floor of the deck is less than 2 metres above the average grade for the purposes of the open-air deck;

iv. Stairs and landings not exceeding a width of 1.6 metres are permitted within the front yard;

v. A dock shall be permitted subject to the following regulations:

1. The maximum length of a dock should not exceed 15 metres or 25% of the width of the channel whichever is more restrictive;

2. The cumulative width of a dock, including fingers, cannot exceed 10 metres;

3. The maximum area of a dock ramps shall not exceed 60 square metres (decking area of dock only) excluding any docks adjacent to boathouses); and,

4. Permission is obtained from any government organization having approval authority.

d. Storage of debris and materials used during construction shall not occur within 30 metres of the high water mark.

e. Sediment and erosion control works, in the form of heavy-duty sediment fencing shall be positioned along the downgradient edge of any construction envelopes adjacent to wetlands, shorelines or watercourses.

f. The development is subject to all other applicable general provisions and zone requirements for the Waterfront Residential 2 (WF2) Zone.”

APPROVED this ______ day of _________ , 2023

Member, Ontario Land Tribunal

CORPORATION OF THE TOWNSHIP OF McKELLAR SCHEDULE “1” TO BY-LAW NO. 2022-25 LANDS TO BE REZONED FROM RURAL (RU) TO SPECIAL PROVISION 16.73 (SP-16.73)

THIS IS SCHEDULE “1” TO BY-LAW NO. 2022-25 TOWNSHIP OF MCKELLAR APPROVED THIS ____ DAY OF _____________ 2023

Member, Ontario Land Tribunal