Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 21, 2023
CASE NO(S).: OLT-22-004251
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Alan Gertner
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the replacement of an existing legal non-complying residential dwelling
Reference Number: Z/2021/08
Property Address: 1 Island 360C (Morlock Island)
Municipality/UT: Carling/Parry Sound
OLT Case No.: OLT-22-004251
OLT Lead Case No.: OLT-22-004251
OLT Case Name: Gertner v. Carling (Township)
Heard: November 8, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Alan Gertner | M. Cook |
| Township of Carling | S. Rouleau |
MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN COOKE ON NOVEMBER 8, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal was a first Case Management Conference (“CMC”) for the appeals pursuant to s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended, for the refusal of an application to amend the Township of Carling (the “Township”) Comprehensive Zoning By-law No. C500-2011 (“ZBL”).
2Alan Gertner (the “Applicant”) has made application to rezone 1 Island 360C, being PIN No. 52095-0367 (“Morlock Island”) from Waterfront Residential 2 Zone (“WF2”) to Waterfront Residential 2 Exception 34 Zone (“WF2-34”).
3The Affidavit of Service signed by Michael Cook, attesting to proper notice having been given on October 3, 2022, was filed as Exhibit 1.
4At the outset of the CMC, the parties informed the Tribunal that they have reached a settlement. Pursuant to Rule 19.6 of the Tribunal’s Rules of Practice and Procedure the CMC was converted into a settlement hearing.
STATUS REQUESTS
5Having been informed that the statutory parties had come to a settlement agreement the Tribunal enquired if any other individuals or entities would be seeking party status. There was no other indication of a request to be a party.
6Four individuals and a joint application from two community associations made request for participant status. Hearing no concerns of objections from the statutory parties that Tribunal granted participant status to:
a. Don Clement
b. Glenn Daurio
c. Ian McDonald
d. John Mowat
e. West Carling Association & Pengelly Bay Ratepayers Association
7The Participants stated that they supported the decision of the Township Council to deny the original ZBL application. They raised various concerns that included, construction of the new building before approvals, the location of the new building, size of the new building, shoreline setbacks, and consideration of the environmental impacts.
PLANNING EVIDENCE
8Jamie Robinson was qualified by the Tribunal to give expert opinion evidence in land use planning.
9As the matter before the Tribunal was a conversion from a CMC to a settlement hearing, the Tribunal enquired whether Mr. Robinson was aware of the concerns presented in the various participant status requests. Mr. Robinson ensured the Tribunal that he had reviewed the participant statements and was able to address the land use planning concerns.
Provincial Matters of Interest
10Mr. Robinson gave a high-level site review of Morlock Island illustrating the established paths, the existing three small “A” frame building structures, and the location of the dwelling that requires the Zoning By-law Amendment.
11The Tribunal was informed that the location dwelling was selected to limit the impact Morlock Islands environmental features. While the dwelling is only located 4.6 metres from the high water mark, this part of Morlock Island has no trees and limited vegetation.
12Mr. Robinson testified that an Environmental Site Evaluation (“ESE”) had been conducted by Jim Broadfoot, a Terrestrial Ecologist for Azimuth Environmental Consulting, Inc. Mr. Broadfoot concluded that:
The development can be achieved with: 1) no negative impact to significant natural heritage features and functions consistent with Section 2.1 of the Provincial Policy Statement; 2) no impact to fish habitat consistent with the requirements of the Fisheries Act; and 3) no impacts to individuals or habitat of endangered and threatened species consistent with the requirements of Ontario’s Endangered Species Act, 2007 (ESA) and Section 14.03 of the Township of Carling Official Plan. Therefore, no permitting issued under the Fisheries Act or ESA is required.
13It is the expert opinion of Mr. Robinson that, based on the conclusions of the ESE, the proposed settlement gives regard to s. 2 (a) “the protection of ecological systems, including natural areas, features and functions” of the Act. He further stated that it is consistent with s. 2.1.6 of the Provincial Policy Statement (“PPS”) “Development and site alteration shall not be permitted in fish habitat except in accordance with provincial and federal requirements.”
14Mr. Robinson also highlighted other relevant sections of the PPS to the proposed settlement. As the Applicant has already constructed a septic system on Morlock Island. This existing septic system will service the new dwelling consistent to the policies found in s. 1.6.6.4 of the PPS.
15As a rural community, the PPS directs the Township in the way rural lands may be developed. Mr. Robinson testified that the new dwelling meets the criteria of a “recreational dwelling” as indicated as a permitted use under s. 1.1.5.2 b) of the PPS
16It was the expert planning opinion of Mr. Robinson that the proposed settlement gives regard to the Planning Act and is consistent with the policies of the PPS.
Township of Carling Official Plan (“OP”)
17The Tribunal was informed by Mr. Robinson that the Township OP has specific policies that direct the “Principles of Waterfront Development”. Section 21.03.1 of the Township OP states:
The principles to preserve the existing character of open space, low residential land uses along the waterfront with a sprinkling of tourist commercial uses include the following:
(a) assessing any potential environmental impacts and protecting against any negative impacts on any ecological functions;
(b) ensuring that development is within any relevant carrying capacity parameters including water quality and recreational carrying capacity;
(c) minimizing the impact of development on water quality;
(d) minimizing the obtrusiveness of built form by controlling building location, height, coverage and natural vegetation protection measures;
(e) ensuring that there are no hazards to navigation;
(f) assessing the impact of development on the character of a shoreline in a particular area or neighbourhood in the Township;
(g) and evaluating the risk of any development on persons and property from natural (flooding, erosion) or man-made causes.
18Based on factors that include the conclusions of the ESE, such as dwelling site location picked to minimize natural vegetation, and a newly constructed septic system, it is the opinion of Mr. Robinson that the proposed settlement meets the objectives of the principles found in s 21.03.1 of the Township OP.
19The Township OP s. 21.03.2 states:
It is the policy of the Township of Carling that the natural landscape should dominate the character of the waterfront. Regulations on built form shall be devised to ensure this dominance and restrictions will be put in place to protect tree cover and other natural vegetation along the shoreline. In particular, the removal of excessive numbers of trees and the planting of lawns within 20 metres of the shoreline will be discouraged.
20Mr. Robinson reiterated, that the selection of the dwelling location gives regard to this section as the site, primarily being rock, has little vegetation and required no trees to be removed.
DISPOSITION
21In determining this matter, the Tribunal accepts and adopts the uncontested land use planning evidence and expert opinions provided by Mr. Robinson.
22The Tribunal has considered the concerns raised by the participants but was not persuaded that the concerns are sustainable given the land-use planning evidence offered in support of the settlement. Concerns raised regarding building permits and construction timing are a jurisdictional matter for the Township to properly address and the Tribunal holds no opinion.
23The Tribunal finds that the proposed settlement is consistent with the policy direction established by the PPS, and conforms to the relevant directives established by the Township OP. The Tribunal is further satisfied that the proposed settlement has due regard for matters of Provincial interest, specifically the protection of ecological systems, including natural areas, features and functions, and is consistent with the principles of good land use planning.
ORDER
24THE TRIBUNAL ORDERS that the appeal against By-law No. C500-2011 of the Township of Carling, as amended, is allowed. This further amendment is hereby approved, as set out in Attachment 1 attached to and forming part of this Order. The Tribunal authorizes the municipal clerk to assign a number to this by-law for record purposes.
"Steven Cooke"
STEVEN COOKE
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.