Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 4, 2023
CASE NO(S).: OLT-22-002365
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: 2725539 Ontario Inc.
Subject: Application to amend the Zoning By-law – Refusal of application
Description: Purpose is to amend the site-specific zoning on the subject lands to permit a maximum of 6 dwelling units contained within an existing detached dwelling.
Reference Number: PLZBA2020075
Property Address: 1613A Hunter Creek Road
Municipality/UT: Minden Hills/Haliburton
OLT Case No: OLT-22-002365
OLT Lead Case No: OLT-22-002365
OLT Case Name: 2725539 Ontario Inc. v. Minden Hills (Township)
Heard: February 15–16, 2023, by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 2725539 Ontario Inc. | Jeffrey Streisfield |
| Township of Minden Hills | John Ewart |
MEMORANDUM OF DECISION BY DAVID BROWN AND C.I. MOLINARI AND ORDER OF THE TRIBUNAL
INTRODUCTION AND BACKGROUND
1The matter before the Tribunal is an appeal filed by 2725539 Ontario Inc. (the “Appellant”) pursuant to s. 34(11) of the Planning Act, R.S.O.1990, c. P. 13, as amended (the “Act”), against a decision of the Township of Minden Hills (the “Township”) which refused an application to Amend the Zoning By-law (the “ZBA”) affecting the lands known municipally as 1613A Hunter Creek Road (the “Subject Property”).
2The ZBA proposed to rezone the Subject Property to permit six residential dwelling units within the existing structure. The Subject Property has an area of 2,610 square metres (“m2”) with a shoreline frontage of 31.0 metres (“m”) on Gull River and is accessed by a private road connecting to Hunter Creek Road to the west.
3The ZBA was considered and refused by Township Council at their meeting on December 9, 2021. The Notice of the Council Decision was issued on December 21, 2021, and the Appellant filed their appeal on December 22, 2021.
CONTEXT
4The Subject Property was originally part of a larger landholding that was operated as a commercial tourist resort fronting on Gull River. In 2015, the larger landholding was severed into three lots, one of which is the Subject Property. Requirements of the Provisional Consents that created the Subject Property were that the commercial use of each of the resultant lots cease and that the lands be rezoned to a Shoreline Residential zone.
5The Subject Property is occupied by a structure that was formerly a six-unit motel building that operated as a part of the larger resort operation. The Subject Lands are serviced by a private septic system and private well.
6The private road extending easterly from the end of Hunter Creek Road provides access to ten properties along the southerly side of Gull River, including the Subject Property. The properties along the private road are similar in lot size to the Subject Property and are used for residential purposes. The Shoreline Residential zoning extends along the southerly side of Gull River and includes all the properties along the private road.
7The Subject Lands were rezoned to Shoreline Residential Exception 57 (SR-57) by By-law 16-84 passed on July 28, 2016, which amended the Township Zoning By-law 06-10 (the “ZB”).
8The Shoreline Residential Exception 57 zoning permits a minimum lot frontage of 30 m and a minimum lot area of 0.26 hectares, otherwise, all other provisions of the Shoreline Residential zone apply. The Shoreline Residential zone uses permitted are a single detached dwelling and a public use. The permitted accessory uses are a bed and breakfast establishment, a home occupation, and a private home daycare.
9The Subject Property is designated ‘Rural Lands’ in the County of Haliburton (the “County”) Official Plan (the “COP”) and ‘Waterfront’ in the Township Official Plan (the “TOP”).
10The ZBA was filed with the Township on December 1, 2020. A notice was issued by the Township dated November 17, 2021, confirming that the application was deemed complete and scheduling a public meeting for consideration of the application on December 9, 2021.
11A Staff Report dated December 9, 2021, was prepared by the Township’s Planning Consultants for consideration by Township Council recommending that the ZBA be refused.
LEGISLATIVE FRAMEWORK
12When considering an appeal under s. 34(11) of the Act, where an application was refused, the Tribunal shall have regard to matters of provincial interest as set out in s. 2 of the Act. Further, as set out in s. 2.1(1) of the Act, the Tribunal shall have regard to the decision of the Township and the information it considered in making its decision.
13The Tribunal must be satisfied that the ZBA is consistent with the Provincial Policy Statement, 2020 (the “PPS”) and, in this instance, the Tribunal must be satisfied that the ZBA conforms to the COP and the TOP.
14In consideration of the above statutory requirements, the Tribunal must be satisfied that the ZBA represents good planning and is in the public interest.
SUBMISSIONS
15The Tribunal qualified Michael Manett, a Registered Professional Planner (“RPP”), to provide expert opinion evidence in the area of Land Use Planning for the Appellant.
16The Tribunal qualified Darryl Tighe, a RPP, to provide expert opinion evidence in the area of Land Use Planning for the Township. Mr. Tighe is a senior planner with D.M. Wills Associates Limited, the Planning Consultants for the Township.
17The Tribunal received a Joint Document Book marked as Exhibit 1, a Supplemental Document Book marked as Exhibit 2, the Appellant’s Visual Evidence marked as Exhibit 3, and the Township’s Visual Evidence marked as Exhibit 4.
18Mr. Manett submitted that the matter before the Tribunal is a land use planning matter. He reviewed the history of the Subject Property explaining that the lands were formerly part of a resort operation (tourist establishment) that had a total of 14 units of which the existing building on the Subject Lands contained six units within a motel-style structure. The existing building has an area of 382 m2 and the six units are comprised of four studio-style units and two two-bedroom units. The Subject Property was created by way of a Provisional Consent granted in 2015 and the Provisional Consent was conditional on the ceasing of the commercial use and rezoning of the Subject Property.
19Prior to the creation of the Subject Property, the lands were zoned Recreational Commercial Exception 12 (C3-12) which is a commercial zoning that permits, amongst other uses, a tourist establishment. Mr. Manett proffered that the Subject Property is now zoned Shoreline Residential Exception 57 and the uses permitted include: a single detached dwelling, a public use, a bed and breakfast establishment, a home occupation, and a private home daycare. The Subject Property is designated Waterfront in the TOP with a Hazard Lands overlay.
20Mr. Manett noted that no changes to the existing building have occurred since the creation of the Subject Property or the change in the Zoning affecting the Subject Property. Mr. Manett proffered that the existing building is serviced by a private septic system that was certified in 1995 when it was installed to service the existing six-unit building. Mr. Manett advised the Tribunal that the building has been inspected by the Fire Prevention Inspector of the Township Fire Department, who characterized the building as a multiple family building, and did not identify any issues with the building design.
21Mr. Manett proffered that there are approximately 20 properties along Gull River accessed off the private road that extends east and west from Hunter Creek Road, all of which are zoned Shoreline Residential, and a bed and breakfast establishment is permitted on each property. Mr. Manett postulated that if each property were to establish a bed and breakfast, it could have a greater impact than the use requested on the Subject Property. He opined that the existing building, containing six units, has existed on the Subject Property for many years and the requested ZBA will not change the intensity of the use and will not create any additional impacts.
22Mr. Manett proffered that compatibility is a test that is used to evaluate the impact of a use. He explained that “compatible with” does not mean “the same as”, but instead it means that the use must be able to coexist with its surroundings. Mr. Manett opined that the use of the Subject Property as a six-unit residential building is compatible, as it is an existing use, and no change is being proposed as a result of the ZBA.
Provincial Policy Statement, 2020
23In consideration of the PPS, Mr. Manett opined that the continued use of the Subject Property for "long-term rental uses" will promote the efficient development and use of the existing building, will maintain the existing land use pattern "supporting the accommodation and contribution to an affordable mix of residential types" as directed by section 1.1.1 of the PPS.
24Mr. Manett proffered that the Subject Property is situated in a Rural Area as defined by the PPS. He opined that the proposed residential use is a continuation of a use that is an existing part of the landscape and therefore locally appropriate and compatible with the rural landscape. He submitted that the existing infrastructure is sufficient and that the rural service level is appropriate for the Subject Property as it has an existing septic system and water supply. The proposed development should, therefore, be promoted as per policy 1.1.5.4 of the PPS.
25Mr. Manett concluded that the ZBA is consistent with the PPS.
26The Tribunal, in response to a question raised in respect of the Issues List and specifically policies 1.4 and 1.7 of the PPS, noted that it is the Tribunal's position that issues not identified on the Issues List are not in dispute amongst the Parties. The Tribunal, therefore, in the context of policies 1.4 and 1.7 of the PPS, understands that the Parties have acknowledged that the ZBA is either consistent with these policies or that the policies do not apply and, therefore, no evidence is anticipated in respect of these policies. The purpose of the Issues List is to narrow the scope of the questions in issue before the Tribunal and to ensure that the real questions in issue are determined in a fair, just, expeditious, and cost-effective manner.
27Mr. Tighe proffered that the objectives set out in section 1.1.1 of the PPS for achieving sustainable, healthy, livable, and safe communities include avoiding development and land use patterns which may cause environmental or public health and safety concerns. Mr. Tighe opined that the ZBA proposes a land use density for the Subject Property which he considers to be overdevelopment and therefore inappropriate for this location and thus resulting in land use conflicts.
28Mr. Tighe opined that the creation of six residential units within the existing building is an over intensification. He advised that no servicing report or environmental impact study has been submitted in support of the ZBA. Concerning the private septic system, Mr. Tighe proffered that the documents submitted in respect to the private septic system are dated 1995, and no current or updated documents have been provided to the Township.
29Mr. Tighe directed the Tribunal to section 1.1.3.1 of the PPS which states, “Settlement Areas shall be the focus of growth and development.” Mr. Tighe stated that the Subject Property is not located within an identified Settlement Area, where a multi-unit residential development would be appropriate. The Subject Property is identified as being located within a Rural Area as set out in section 1.1.4 of the PPS.
30Mr. Tighe reviewed section 1.1.5.2 of the PPS which describes the permitted uses on rural lands to include resource-based recreational uses (including recreational dwellings) and residential development that is locally appropriate. Mr. Tighe opined that the use being requested through these ZBA is neither a resource-based recreational use nor a residential development that is locally appropriate. Mr. Tighe proffered that the creation of a six-unit residential building is not compatible with the rural landscape, being small waterfront properties, which have been developed in the form of single detached dwellings.
31Mr. Tighe concluded that the ZBA is not consistent with the PPS.
County of Haliburton Official Plan
32In consideration of the COP, Mr. Manett submitted that the County provided no comments to the Township in response to the circulation of the application for the ZBA and, on that basis, he concludes that the County has no concerns with the requested amendment and further that the request conforms to the COP. Mr. Manett proffered that the Subject Lands are designated ‘Rural Lands’ on Schedule A to the COP. The Rural Lands designation permits limited residential development.
33Mr. Manett opined that the proposed use is compatible with the existing rural landscape as it is “already part of it.” Mr. Manett proffered that the existing building is sustained by rural service levels as it is serviced by a private septic system that supports the existing six units and will not impact the environment. He submitted that compatibility was confirmed by the County at the time of the creation of the lot as compatibility would have been a consideration of the Provisional Consents.
34Mr. Manett opined that the proposed development is ‘limited residential development’ as referred to in section 3.2 of the COP, as the development will be limited to the six units already existing in the building and no alterations are required. He concluded that the proposed development, therefore, complies with the COP as a permitted use under the ‘Rural Lands’ designation and no amendment to the COP is required. He reiterated that no amendment to the COP was requested by the County and stated his opinion that the ZBA conforms to the COP.
35In respect to policy 7.3.2 b) of the COP requiring a hydrogeological report for “development applications proposing more than 5 lots or dwelling units”, Mr. Manett advised that neither the Township nor the County requested a hydrogeological report be submitted, despite the development proposing more than five units. It was his opinion that the proposal is not a new development as the building and units are existing and therefore, no studies should be required.
36In respect to policy 7.9.5.3 of the COP, prohibiting new development along private roads, Mr. Manett opined that the proposal does not represent new development on a private road as contemplated within the policy.
37Mr. Tighe referred the Tribunal to section 2.3.2 of the COP citing,
Efficient development patterns and compact form will be encouraged in Settlement Areas to optimize the use of land, resources, infrastructure and public service facilities. New development, located within in designated growth areas, is to occur adjacent to the existing built-up areas, where sufficient infrastructure is in place… These land use patterns ultimately provide for the long-term financial well-being of the County, the local municipalities and minimize the undesirable effects of development...(sic)
Mr. Tighe proffered that the proposed development is not located in a Settlement Area, is not adjacent to a built-up area, and will not minimize undesirable effects of development.
38Mr. Tighe concurred with Mr. Manett in stating that the Subject Property is designated Rural Lands and that the permitted uses include resource-based recreation uses and limited residential development. Mr. Tighe stated that the proposed use is not a resource-based recreation use, such as a cottage use, and opined that a six-unit residential building is not limited residential development.
39Mr. Tighe identified policies within the COP that address the development, redevelopment, or conversion of lakefront properties that ensure environmentally responsible development with regard for public health and safety. He reviewed policy 7.3.2 regarding private water systems and the requirement to provide a hydrogeological report for a development proposing more than five dwelling units and policy 7.4.3 regarding private on-site sewage systems. It was his opinion that the ZBA requires the submission of a hydrological study based on these policies.
40Mr. Tighe reviewed the policies in section 7.9.5 which speak to private roads and opined that the relevant policies do not specifically acknowledge the use of private roads for multiple unit residential buildings.
41Mr. Tighe concluded that the COP reflects the policy direction of the PPS and directs growth and development to Settlement Areas. The ZBA is requesting a change in use to a more intensive use and, in consideration of the policies contained in the COP, Mr. Tighe opined that is ZBA does not conform with the COP.
Township Official Plan
42Mr. Manett reviewed the TOP starting at section 1.3.1. titled Growth Management. Policy 1.3.1.1 states “Evaluation of environmental impact will be the biggest factor in determining the suitability of a property for development.” Mr. Manett opined that the proposal will create no adverse environmental impact as no changes are proposed to the existing building and any environmental considerations were appropriately addressed at the time of the creation of the Subject Property through the Consent process. Policy 1.3.1.4 of the TOP states that "The Township will encourage the development of residential housing to accommodate residential, year-round use as well as recreation-based, non-permanent use.” Mr. Manett proffered that the proposal will result in year-round residential use as encouraged in this section of the TOP and that the proposal will respect the historic pattern of rural area growth as provided for in policy 1.3.1.5. of the TOP. Policy 1.3.1.9 limits land use on the shores of rivers, lakes and streams to low-density residential development and low-intensity recreation-based uses. Mr. Manett contends that the continuation of the use of the residential building, formerly considered a low-intensity recreation-based use, is a low-density residential use.
43Mr. Tighe reviewed the policies of section 1.3.1 of the TOP and proffered that policy 1.3.1.2 encourages residential development to locate within the Settlement Area of the Village of Minden and that tourism uses should be directed to the rural areas of the Township. Policy 1.3.1.6 states that "The Settlement Area of Minden shall continue as the centre of diversity in residential development.” Mr. Tighe opined that a multiple-residential development should be appropriately located within the Settlement Area of Minden. Policy 1.3.1.9 of the TOP states “Land use on the shores of rivers, lakes and streams shall be limited to low-density residential and low-intensity recreation-based uses.” Mr. Tighe proffered that contrary to policy 1.3.1.6, which anticipates the type of development proposed in Settlement Areas, policy 1.3.1.9 limits waterfront development to low-density residential and low-intensity recreation-based uses. Mr. Tighe proffered that policy 1.3.1.10 directs development in rural areas to year-round municipally maintained roads, whereas the proposed development is accessed by a private road.
44Mr. Tighe proffered that the Subject Property is not located in a Settlement Area, the proposed development is not low density, and is not recreation based. Mr. Tighe opined that the ZBA does not conform with the policies of section 1.3.1 of the TOP.
45Section 3.2 of the TOP addresses Waterfront policies. Policy 3.2.2.1. sets out the permitted uses within the waterfront designation. Mr. Manett proffered that the policy states “The following uses may be permitted...” which does not suggest that this is a closed or restricted list of permitted uses. Mr. Manett further proffered that the existing building on the Subject Property, contains six motel-style self-contained units and the proposal will provide for six residential units. The building was originally constructed as part of a resource-based recreational use and was intended for commercial accommodation occupancy. The building meets all fire code requirements for the proposed residential use as supported by the documentation provided in Exhibit 3.
46Mr. Manett proffered that “recreation-based residential uses” is not a defined term in the TOP and opined that policy 3.2.2.1 does not restrict residential uses to recreation-based residential uses.
47Mr. Manett reviewed policy 3.2.3.5.2 and proffered that this policy does not limit recreation-based development to single detached dwellings, due to the wording that recreation-based development “shall consist primarily of single detached dwellings”. Mr. Manett contends that the language in this policy includes terms that do not exclude nor prohibit and, therefore, there is no limitation to only single detached dwellings. It was his opinion that the proposed use could also be permitted.
48Mr. Tighe, in consideration of section 3.2 of the TOP, directed the Tribunal to policy 3.2.2.1 which sets out the uses that may be permitted within the Waterfront designation to include, “recreation-based residential uses which are limited to single detached dwellings in the form of shoreline/linear development or backlot development.” Mr. Tighe proffered that the term “may” is prescriptive in this case and that the term “limited to” is restrictive. Mr. Tighe opined that the proposed development does not conform with the intent of this policy to restrict uses.
49Mr. Tighe opined that the reference to “new recreation-based development shall consist primarily of single detached dwellings” contained in policy 3.2.3.5.2 of the TOP provides for other uses such as marinas and similar tourism-oriented uses. He proffered that it does not contemplate multiple residential uses and therefore, the requested ZBA does not conform with the policies of section 3.2 of the TOP.
50Mr. Manett concluded that the proposed rezoning from a commercial type use to a long-term rental residential use does not require an amendment to the TOP and that the ZBA conforms to the TOP.
51Mr. Manett opined that the ZBA represents a compatible land use with the adjacent properties and surrounding area. He proffered that the use is residential and the Act does not provide for the authority to the municipality to restrict tenure. He further proffered that the building has been part of the physical character and fabric of the community for many years, there are no external changes being proposed to the building, the proposal offers much-needed rental housing, and there will be no adverse impacts. Mr. Manett concluded that the ZBA conforms with the TOP.
Township Zoning By-law
52Mr. Manett and Mr. Tighe concurred that the lands are zoned Shoreline Residential Exception 57 under the ZB and the Shoreline Residential zone permits a single detached dwelling. The Shoreline Residential zone does not permit a multiple dwelling.
53Mr. Manett proffered that the ZB is outdated. Mr. Manett submitted that the intent of the Shoreline Residential zone is to permit residential uses and accessory uses. The accessory uses permitted include a bed and breakfast establishment and a private daycare, among other uses. Mr. Manett contends that the proposed use is appropriate given the permitted accessory uses.
54Mr. Manett opined that a single detached dwelling is not a use, but a built form and that "residential accommodation” is the actual use that occurs within the dwelling. In this case, Mr. Manett proffered that there is one dwelling proposed, being the existing building, and that the proposal is to continue the residential accommodation use within the six existing units.
55Mr. Manett acknowledged and agreed that the proposed use could be characterized as a multiple unit residential building.
56Mr. Tighe concurred and reviewed the definitions contained within the ZB, concluding that the proposed use of the existing building as a six-unit residential building is defined as a “dwelling, multiple” as set out in section 3.42 of the ZB, as it contains more than three dwelling units.
57Mr. Tighe advised the Tribunal that a six-unit residential building requires 12 parking spaces according to the ZB. The site plan sketch provided by the Appellant delineates only six parking spaces accessed off the private road.
58Mr. Tighe directed the Tribunal to section 4.5 of the ZB which states that "unless otherwise permitted in this By-law, no more than one dwelling unit is permitted on a lot” and that multiple units are only permitted in the R2 zone in the Minden urban area where municipal services are available.
59Mr. Manett opined that the ZBA represents a compatible land use with the adjacent properties and surrounding area. He proffered that the use is residential and is consistent with the intent of the ZB.
60Mr. Manett further opined that the ZBA represents good planning, is in the public interest and should be approved.
61Mr. Tighe opined that the ZBA is not consistent with the PPS, does not conform with the COP nor the TOP and does not maintain the intent of the ZB. He proffered that, should the Appellant wish to proceed with the ZBA, an amendment to the TOP and COP would be required.
ANALYSIS AND FINDINGS
62In its deliberations, the Tribunal considered the submissions of the Parties, the testimony and witness statements of Messrs. Manett and Tighe, the Participant Statements, and Exhibits filed with the Tribunal.
63The Tribunal acknowledges that the Subject Property was created through the approval of a Provisional Consent granted by the County. A condition of the Provisional Consent was that the commercial use of the Subject Property was to cease and that the Subject Property be rezoned to residential use. The Subject Property was rezoned and the site-specific by-law permits a single detached dwelling or a public use and limited accessory uses thereto.
64Further, the Tribunal acknowledges that the existing building on the Subject Property contains six units and that each of the units is a dwelling unit as defined by the ZB. The Tribunal concludes that the use of this building as a six-unit residential dwelling after the passing of the zoning amendment required by the Provisional Consent contravenes the ZB.
65No evidence was presented before the Tribunal that suggested the intent of the Township was anything other than that the Subject Property was to be used for the purposes permitted in a Shoreline Residential zone, specifically to be used as a single detached dwelling. The Tribunal notes that a single detached dwelling as defined by the ZB contains one dwelling unit.
66Notwithstanding the existing use of the Subject Property and the history of the existing building, which the Appellant described in detail, the Tribunal must consider the appeal in the context of the statutory framework as set out in paragraphs 12 and 13 of this decision. While the historic use of the existing building provides context for how the matter found its way to the Tribunal, it is not a justification for the continued use of the Subject Property nor the amendment to the ZB being sought.
67The Appellant’s Planner proffered that the ZB was ‘out of date’ and not consistent with the PPS. The Tribunal acknowledged that the current ZB may predate the PPS, however, it is the zoning by-law in effect and the amendment being sought to the ZB must be consistent with the PPS and conform to the COP and TOP. The Tribunal considered the ZBA in this statutory context.
68The Tribunal considered the submissions from the two planning witnesses in respect to the PPS. Both Planners confirmed that the Subject Property is located in a Rural Area as identified in Section 1.1.4 of the PPS and not located within a Settlement Area as identified in Section 1.1.3 of the PPS. The planners also concurred that the policies of Section 1.1.5 of the PPS apply to the Subject Lands.
69The PPS describes Rural Areas as a system of lands that may include rural settlement areas, rural lands, prime agricultural areas, natural heritage features and areas, and other resource areas. Policy 1.1.4.1 d) of the PPS states, “Healthy, integrated, and viable rural areas should be supported by encouraging the conservation and redevelopment of existing rural housing stock on rural lands.” The Tribunal finds that the existing building, containing six residential units, does not represent the existing rural housing stock as this use is not permitted on the Subject Property and it is not a redevelopment of existing housing stock. The policy is not applicable in the Tribunal’s opinion and can not be relied upon to support the ZBA.
70The Tribunal, in consideration of the permitted uses on Rural Lands in section 1.1.5.2 b) of the PPS, prefers the opinion proffered by the Township’s Planner which concludes that the proposed use of a multiple-unit residential building is not a resource-based recreational use. The Tribunal is not satisfied that a multiple-residential development on a private road outside of a Settlement Area is locally appropriate as contemplated in section 1.1.5.2 c) of the PPS.
71The Tribunal finds that the proposed development can be defined as an affordable mix of residential types which includes multi-unit housing however, the Tribunal also finds that the level of intensification and development being proposed outside of a Settlement Area is not consistent with the PPS. The PPS is clear in section 1.1.3.1 that Settlement Areas shall be the focus of growth and development and the Tribunal concludes that, in this context, a multiple-unit dwelling is considered growth as contemplated by the PPS.
72The Tribunal notes that the PPS is more than a set of individual policies. They are to be read in their entirety and the relevant policies are to be applied to each situation. The PPS states that “Ontario's long-term prosperity, environmental health and social well-being depend on wisely managing change and promoting efficient land use and development patterns.” This overarching direction leads the Tribunal to conclude that the proposed development on Rural Lands is not appropriate and thus, the ZBA is not consistent with the PPS.
73The Rural Lands policies in the COP state that “recreational, tourism, and other economic opportunities are to be promoted on rural lands in a sustainable manner.” The COP continues that “the predominant land uses within the Rural Lands designation are resource-based recreational, the management and use of resources…, and limited residential development.” Section 3.2 f) of the COP sets out that the “Rural Land use designation is intended to allow for limited residential uses on lands that are not constrained or protected for their resource value where appropriate…”
74The Tribunal considered the conflicting opinions of the planners in respect of the interpretation of limited residential. The COP does not define the term “limited residential” and the Appellant’s Planner proffered that the term would allow the continued use of the existing building as there is no change proposed to the land use from that which has existed for many years on the Subject Property. The Township's Planner contended that ‘limited’ infers restricted in size and does not contemplate a multiple-unit residential building. The Tribunal prefers the interpretation of the Township’s Planner and finds that the proposed multiple-unit residential use does not conform with the policies nor the intent of the Rural Lands policies of the COP concerning limited residential use.
75The Tribunal recognizes that the ZBA is requesting a multiple-unit residential use on lands designated Waterfront in the TOP. The Tribunal notes that both Planners agreed that the lands are designated Waterfront in the TOP.
76The Appellant’s Planner proffered that the TOP uses non-prescriptive or non-restrictive language and the Tribunal could find that the proposal does not offend the goals and directions provided in the TOP.
77The Tribunal prefers the interpretation proffered by the Township’s Planner and, in reviewing the uses contained in policy 3.2.2.1 of the TOP, the Tribunal finds that the TOP provides a clear intent as to the nature and type of uses that are appropriate for lands that front on lakes and rivers designated Waterfront within the Township. The Tribunal concludes that these uses do not include a multiple-unit residential use.
78Section 3.2.3.5 of the TOP applies to recreation-based residential uses. The Tribunal concurs with the Township’s Planner that the proposed use is not a recreation-based use. The Tribunal concludes that the policies of section 3.2.3.5 are not applicable in this instance.
79The Growth Management Principles set out in section 1.3 of the TOP identifies environmental impact as the biggest factor in determining the suitability of any property for development. The principles also set out that residential development and intensification are encouraged in the Village of Minden, and that land uses along lakes and rivers shall be limited to low-density residential and low-intensity recreation-based uses. The Tribunal finds that the proposal represents a level of intensification that should be directed towards the Settlement Area and is not contemplated nor appropriate on the Subject Property. The Tribunal concludes that the proposal is not in conformity with the principles of the TOP.
80The Appellant’s Planner proffered that should each single detached dwelling along the private road operate a bed and breakfast establishment, which is permitted as an accessory use, that the cumulative impact would be greater than the impact resulting form the approval of the ZBA. The Tribunal does not find that this comparison is relevant in terms of impact. The Tribunal finds that while it is possible that each property could operate a bed and breakfast, the likelihood is very different. The impact created by six year-round residential units, in contrast to guest rooms within a single detached dwelling available for temporary accommodation of the travelling or vacationing public, as per section 3.13 of the ZB, will result in a different impact, that is not comparable.
81The question of compatibility was raised as an issue concerning the proposal. The Appellant’s Planner proffered that no changes to the existing building are proposed as a result of the ZBA, the building is low density in scale, and the continued use as a six-unit building will not impact the existing rural character as it has been part of the rural character for many years. Therefore, he concluded that the proposal is compatible.
82The Township’s Planner countered that the use of the Subject Property for a multiple-unit residential building is not compatible with the rural character of the area.
83The Tribunal considered the question of compatibility in the context of the ZBA introducing a new use to the Subject Property. Compatibility is not to be interpreted as the “same as” or “being similar to” but as to whether the proposed use and built form are capable of existing together in harmony within an area. The Tribunal finds that the proposed multiple-unit residential use on the Subject Property does not fit within the character of the rural lands and recreation-based uses surrounding the Subject Property.
84The Tribunal concludes that the ZBA is not consistent with the PPS, does not conform with the COP, and does not conform with the TOP.
85In response to s. 2 of the Act, the Tribunal had regard for the matters set out and finds that the ZBA will not result in the orderly development of safe and healthy communities and that the Subject Property is not the appropriate location for growth and development.
ORDER
86THE TRIBUNAL ORDERS that the appeal is dismissed and the application to amend the Township of Minden Hills Zoning By-law 06-10 is refused.
“David Brown”
DAVID BROWN
MEMBER
“C.I. Molinari”
C.I. MOLINARI
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.