Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 20, 2023

CASE NO(S).: OLT-22-004631

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

Applicant/Appellant: Andrew Burgess

Subject: Minor Variance

Description: Obtain MV to permit reconstruction to the existing boathouse, expanding its size to 114 sq. m and increasing its height to 8.7m, as an accessory structure to the residential building

Reference Number: A-2022-059

Property Address: 9 Sunset Drive

Municipality/UT: Northern Bruce Peninsula/Bruce

OLT Case No: OLT-22-004631

OLT Lead Case No: OLT-22-004631

OLT Case Name: Burgess v. Northern Bruce Peninsula (Municipality)

Heard: February 27, 2023 by video hearing

APPEARANCES:

Parties	Counsel*/Representative
Andrew Burgess	Genevieve Scott
Northern Bruce Peninsula	Nicholas Lovell*

MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE AND ROBERT G. ACKERMAN ON FEBRUARY 22, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter comes before the Tribunal as a Settlement Hearing of an Appeal filed by Andrew Burgess (the “Applicant/Appellant”) from the Decision of Committee of Adjustment (“COA”) for the Municipality of Northern Bruce Peninsula (the “Municipality”) on October 11, 2022, in relation to the refusal of an Application for a minor variance from the zoning provisions established by Zoning By-law No. 2002-54, as amended (the “ZBL”) concerning 9 Sunset Drive (the “Subject Property”).

2The initial proposal sought to obtain a minor variance to permit the reconstruction of the existing boathouse, expanding its size to 114 square metres (“m²”) and increasing its height to 8.7 metres (“m”). The initial proposal requests relief from the provision that limits the height of accessory buildings to 5 m as set out in the ZBL.

3The revised original proposal to reconstruct and enlarge the existing boathouse required one (1) variance from By-law 2022-54 to accommodate an increase in height from the maximum of 5 m for accessory structures to 6.86 m.

4As part of the Minutes of Settlement, the proposed height has been reduced from 6.86 m to a maximum of 6.1 m. The proposed footprint of 114 m² remains unchanged from the original proposal.

BRIEF CHRONOLOGY OF THE APPLICATION

5In March of 2021, the Applicant/Appellant contacted the Municipality providing notice of their intent to reconstruct and enlarge the existing boathouse on the Subject Property. At that time, the boathouse was on a separate abutting lot from the Applicant/Appellant’s seasonal residence and thereby constituted a legal non-complying use.

6In September 2021, Municipal Staff provided initial comments indicating that title to the parcel improved with the boathouse would be required to merge with the parcel improved with the Applicant/Appellant’s seasonal residence as a condition of approval. No other specific condition of approval was noted at that time. Title to the parcels has since been merged.

7The subject minor variance Application was submitted on July 14, 2022. At the time of submission, the variance request was for an increase in maximum building height requirements from 5.0 m to 8.7 m. However, it was thereafter determined that the original variance request was the result of an incorrect calculation of the building height for purposes of By-law 2022-54, and that the correct formula under that By-law is the midspan height from grade, which is calculated as 6.86 m and not 8.7 m.

8At the October 11, 2022, public hearing, the County planning staff provided a recommendation to refuse the application based primarily on their previous request for a coastal report. The COA expressed no interest in the need for a coastal report. The main concern with the application voiced by the COA members was the proposed height of the boathouse and potential negative visual impact for travelers on the water looking toward the shoreline. The secondary concern voiced by the COA was the potential for the second storey to be used as habitable space, given the proposed height of the structure. Based on these concerns, the application was refused.

9Subsequently, an appeal of the refusal was submitted on October 25, 2022, by the Applicant/Appellant.

10Based on the COA concern related to the proposed height of the boathouse, the boathouse design was revised in plans dated November 29, 2022, (see Attachment 1) as per the Minutes of Settlement. These revised plans show a reduced height from 6.86 m to 6.1 m.

11The Parties signed the Minutes of Settlement on February 15, 2023.

HEARING

12Upon the commencement of the hearing, Nicholas Lovell, counsel for the Municipality, advised the Tribunal that the Parties have agreed to a comprehensive resolution of the Appeal pursuant to terms of Minutes of Settlement dated February 15, 2023 (filed and marked as Exhibit 1), subject to modifications/conditions (see Appendix 1 and Attachment 1, Exhibit 1) and that the Parties wished to place the proposed settlement before the Tribunal for an issuance of an approval.

TERMS OF THE SETTLEMENT

13The Parties agreed to a settlement proposal for variance to permit the reconstruction of the existing boathouse subject to the following conditions.

(1) That the maximum height of the boathouse shall not exceed 6.1 m from the established grade;

(2) That the development shall proceed as per Attachment 1 of these Minutes of Settlement;

(3) That the development shall be completed within three (3) years of the approval of these Minutes of Settlement.

EVIDENCE

14Evidence in support of the proposed minor variance application was provided by the Applicant/Appellant’s Professional Planner, Genevieve Scott, who was qualified by the Tribunal, on consent, to give opinion evidence in the area of Land Use Planning.

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

Exhibit 1: Minutes of Settlement dated February 15, 2023

Exhibit 2: Affidavit of Genevieve Scott dated February 15, 2023

Exhibit 3: Plans and Elevation Drawings (Attachment 1 of the Minutes)

Exhibit 4: Site Plan Aerial Photograph

Exhibit 5: Genevieve Scott CV

Exhibit 6: Genevieve Scott Acknowledgement of Expert’s Duty, signed

THE SUBJECT PROPERTY

16After merger of title, the Subject Property comprises a 0.7 hectare parcel, improved with the Applicant/Appellant’s seasonal residence, a garage, a shed, and the footprint of the original boathouse. Demolition of the boathouse commenced in August 2023 following issuance of a demolition permit by the Municipality on August 19, 2023. The Subject Property is located along Lake Huron and is approximately 2 kilometres west of the Pike Bay community.

17The subject parcel is an irregular rectangular shape that mimics the waterfront boundary along the western property lines. The parcel contains woodlands in the eastern and northern portions of the parcel.

18The surrounding land uses include primarily resort residential lot uses to the north and south of the Subject Property with some larger vacant parcels to the east. The Lake Huron shoreline abuts the Subject Property to the west.

LEGISLATIVE TESTS

19An 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 incumbent 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 of the Act 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.

20An application for a 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

The Provincial Policy Statement (“PPS” 2020)

21Ms. Scott testified that s. 2.1(5) of the PPS requires that any decision made by an approval authority shall be consistent with the PPS. The proposed expansion to the boathouse is permitted as a form of development related to a residential use on rural lands that will not negatively impact the rural character of the surrounding area or overwhelm rural service levels. Moreover, the proposal can be considered as promoting efficient development and land use patterns as the boathouse has been brought into compliance with the ZBL via the recent lot consolidation. The application can be considered as being consistent with the policies found in s. 1.1.5 of the PPS.

22In regard to s. 3.1 of the PPS, Ms. Scott stated this provision provides that development shall generally be directed in accordance with guidance developed by the province. To ensure natural hazard provisions were met by the proposal, the 100-year flood line elevation was surveyed by an Ontario Land Surveyor at the site. The surveying exercise confirmed that the boathouse would be above the 100-year flood elevation and therefore outside the Environmental Hazard (EH) zone as defined in the ZBL. Ms. Scott advised that boathouses are a permitted use in the EH zone.

23In Ms. Scott’s opinion, with which the Tribunal agrees, the proposed development is consistent with the PPS.

Bruce County Official Plan (“BCOP”)

24Ms. Scott advised that the Subject Property is designated as Rural Recreation in the BCOP. She advised the Tribunal that the Rural Recreational land use designation reflects lands along Lake Huron that have been developed for seasonal and permanent residential uses. A County objective for Rural Recreational lands is to be able to promote its existing function in providing for seasonal and permanent residential uses while ensuring that new development is compatible with existing land uses. New development is to be designed to consider the natural environment and minimize its visual impact, insofar that the waterfront view is not obstructed. Generally, built form is limited to three (3) storeys in height.

25Ms. Scott stated her opinion that the proposal is consistent with the County’s direction for Rural Recreational lands as the redevelopment of the boathouse reflects an existing use that is accessory to the residential use. The revised building plans for the proposed boathouse reflect a structure that is compatible with the surrounding area, does not impede views of nor from the Lake Huron waterfront. Furthermore, the boathouse will have regard for the lakefront environment, as it will be built completely on land that is above the high-water elevation.

26In Ms. Scott’s opinion, with which the Tribunal agrees, the proposed minor variance maintains the general intent and purpose of the BCOP.

Township’s Comprehensive Zoning By-law

27Ms. Scott advised that the Subject Property is zoned as Resort Residential with limited municipal service (R2-lms) in the ZBL. Relief from the maximum height provision for an accessory building is being sought to establish an accessory boathouse with a height of 6.1 m. All other provisions related to accessory buildings as set out in Section 6.3 of the ZBL are met by the proposal.

28Ms. Scott contends the proposal will comply with s. 6.3.2 Number of Accessory Buildings, as the reconstructed boathouse will be the third accessory building on the property. In addition, she stated that the proposal will comply with s. 6.3.4, Yards for Residential Uses, as the boathouse will be located within the permitted setback distances from the front, side and rear yard lot lines. Finally, she advised that the proposal will comply with s. 6.3.6, Separation from the Main Building, as it will be located more than 2 m away from the single detached dwelling.

29Ms. Scott stated that the total lot coverage will be approximately 6.7%, which is well below the maximum permitted lot coverage of 15% for this zone. The proposed boathouse will be designed and used only for the storage of boats and boating accessories and is therefore not subject to any rear yard setback requirement. The merger of title to the two previously existing abutting parcels, also brought the existing boathouse use into compliance with the ZBL.

30In Ms. Scott’s opinion, with which the Tribunal agrees, the proposed development meets the general intent and purpose of the ZBL.

Minor in Nature

31Ms. Scott stated her opinion that the proposed variance is minor in nature as the boathouse will remain well under 10 m, which is the maximum permitted height for a main building, resulting in an accessory structure that will be less significant from a visual and intensity perspective than a main building such as a single detached dwelling. The woodlands located around the boathouse will provide a natural buffer to the surrounding area and will screen the boathouse from public view on Sunset Drive, as well as adjoining properties, thereby mitigating the boathouse’s visual impact.

32In Ms. Scott’s opinion, with which the Tribunal agrees, this variance is minor in nature.

Desirable for the appropriate use or development of the Property

33Ms. Scott provided evidence that the proposed variance is desirable as it will enhance the existing residential development on the Subject Property by establishing a boathouse that will be able to store boating equipment without negatively affecting the rural recreational landscape or the natural heritage features on site. In addition, the consolidation of the Subject Property converted the boathouse from being a legal non-conforming use to a legally permitted use under the current ZBL.

34In Ms. Scott’s opinion, with which the Tribunal agrees, the development is desirable for the appropriate use of the land.

FINDINGS AND DISPOSITION

35In determining this Appeal, the Tribunal accepts and adopts the uncontroverted planning evidence and expert opinion provided by Ms. Scott. The Tribunal is persuaded by the evidence that the proposal constitutes good land use planning, is in the public interest, is consistent with the PPS, maintains the general intent and purpose of the BCOP and Comprehensive ZBL, is desirable for the appropriate development of the land and is minor in nature.

36The Tribunal notes there were no Participant statements to consider.

37The Tribunal also acknowledges the cooperation between the Parties to reach a Settlement in these proceedings.

ORDER

38The Tribunal Orders that the Appeal is allowed and the variances to Zoning By-law 2002-54, as amended, are authorized subject to the conditions set out in Appendix 1 of this Order and Decision.

“Eric S. Crowe”

ERIC S. CROWE MEMBER

“Robert G. Ackerman”

ROBERT G. ACKERMAN 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.

APPENDIX 1

CONDITIONS

The Application for Minor Variance from Comprehensive Zoning By-law 2022-54 is hereby approved subject to the following modification and conditions:

1. That the maximum height of the boathouse shall not exceed 6.1 m from the established grade;

2. That the development shall proceed as per Attachment "1" of these Minutes of Settlement;

3. That the development shall be completed within three (3) years of the approval of these Minutes of Settlement.

ATTACHMENT 1