Rhonda Mauer v. Larry and Ellie Lantz, 2023 CanLII 39099

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 1, 2023

CASE NO(S).: OLT-22-003322

PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant Rhonda Mauer

Applicant Larry and Ellie Lantz

Subject: Zoning By-law

Description: To increase lot coverage in order to construct a new single detached residential dwelling with attached garage.

Reference Number: BL 2022-031

Property Address: 162 Lake Rosalind Road

Municipality/UT: Brockton/Bruce

OLT Case No: OLT-22-003322

OLT Case Name: Mauer v. Bruce (County)

Heard: October 25-26, 2022 by video hearing and November 11, 2022 in writing

APPEARANCES:

Parties Counsel

Rhonda Mauer Alex Ciccone Neil McIsaac, Student-at-Law

Larry and Ellie Lantz Self-Represented

Municipality of Brockton Tammy W. Grove-McClement Monica Poremba

DECISION DELIVERED BY BITA M. RAJAEE AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Hearing concerned an appeal by Rhonda Mauer (“Appellant”) against the approval by the Municipality of Brockton’s (“Municipality”) Council, on March 8, 2022, of a Zoning By-law Amendment Application (“Application”) by Larry and Ellie Lantz (“Applicants”). The appeal was commenced under s. 34(19) of the Planning Act (“Act”) pertaining to a property known as 162 Lake Rosalind Road 1 in the Municipality (“Subject Property”), owned by the Applicants.

2Zoning By-law Amendment 2022-031 (“Original ZBLA”) passed by the Municipality amended the LR-Inland Lake Residential and EP-10 Environmental Protection – Special Zones to LR-11 Inland Lake Residential - Special Zones and EP-10 Environmental Protection – Special Zones. The Original ZBLA specifically amended Section 9.5 of the Municipality’s Comprehensive Zoning By-law No. 2013-26 (“ZBL”) to read that those lands delineated as LR-11 shall be used in accordance with “LR” Zoning provisions except the minimum lot coverage shall be 0.125 hectares (“ha”) and the maximum lot coverage for the lot shall be 31%. No amendments were made to setbacks or maximum height.

3At the outset of the Hearing, the Applicants requested that the Tribunal consider an amended ZBLA (“Revised ZBLA”), wherein 26.5% lot coverage was requested in its section 2, in place of 31%, along with site-specific setback and height regulations, as follows:

a. 2.iii The minimum side yard setback from the southerly lot line shall be no less than 3.6 metres and the minimum side yard setback from the northerly lot line shall be no less than 2.1 metres; and

b. 2.iv The maximum building height shall be 8.5 metres.

4The Applicants advised that these amendments were proposed in light of the Appeal, and to address some of the Appellant’s concerns, as well as those of some of the neighbours. The Municipality indicated that it did not oppose the amendments proposed by the Applicants in the Revised ZBLA.

5As this was the first and only hearing event scheduled, the Tribunal confirmed that proper Notice was given and marked the Affidavit of Service as Exhibit 1. In response to the Notice, the Tribunal received six requests for Participant Status from the following:

• Laurie Symonds

• Doug and Denise Caughy

• Kent Williams

• Mike Chambers

• Peter McEwen

• Kevin Williams

6The individuals requesting Participant Status collectively raised concerns with the Application, including but not limited to concerns with environmental impacts, over-intensification, lake sustainability, impacts on present and future residents of the neighbourhood, impacts on views, inconsistency with applicable policies, precedent being set for larger buildings, parking concerns, concern regarding short term rental use, and over-population. The Tribunal found that the individuals who had requested Participant Status had an interest in the matter and would assist the Tribunal in understanding the potential impacts of the Proposal on the local community. The Tribunal, without objection from the Parties, granted Participant Status to all those listed above.

DECISION

7For the reasons that follow, the Tribunal allows the appeal in part and approves Zoning By-law Amendment No. 2022-031, passed by the Municipality of Brockton, subject to the amendments noted above at paragraph [3] of this Decision.

SITE AND AREA CONTEXT

8The Subject Property comprises 1254.4 square metres (“m²”) (0.125 ha) of land and provides 30.584 metres (“m”) of frontage along Lake Rosalind Road No. 1. Situated on the Subject Property is a small building currently used for storage, which is to be removed. A one-and-a-half storey detached dwelling previously existed on the site but has been removed. The concrete slab upon which the previous house was located still remains. The front portion of the Subject Property and abutting road are at a higher elevation than the remainder of the site. Approximately 5.0 m back from the front lot line, the lands drop moderately in elevation by approximately 3.0 m before plateauing. From there, the property has a slight slope toward the rear lot line. There is very little natural vegetation, other than a hedgerow of approximately 1.3 m in height which is situated along a portion of the front lot line. The balance of the site is a manicured lawn. Lake Rosalind borders the Subject Property to the west. Access to the property is from Lake Rosalind Road 1, which is a public-travelled road maintained by the Municipality.

9The Subject Property is designated "lnland Lake" and "Special Policy Area "D" (Part A)" in the County of Bruce Official Plan ("County’s OP"), with the rear portion of the site being situated within the ‘Hazard’ land use designation. It is zoned Lake Residential (LR) and Environmental Protection Special Zone (EP-10) in the ZBL.

10The Subject Property is surrounded exclusively by properties also zoned LR and EP-10 surrounding Lake Rosalind, comprising modest cottages and residential dwellings, with a mix of seasonal and year-round occupancy. The dwellings appear to range from modest to higher-end homes.

THE PROPOSAL AND BACKGROUND TO THE APPEAL

11The purpose of the Application is to facilitate the construction of a new single detached dwelling on the Subject Property with an attached three car garage, a deck, a walk-out basement, and porches (“Proposed Development”). The dwelling would to be two storeys in height when viewed from the lake side of the lot and one storey in height when viewed from the east side of Lake Rosalind Road 1. It would be erected further back from the lake than the dwelling that previously occupied the site.

12As mentioned, on Schedule A (Land Use) of the County’s OP, the Subject Property is designated predominantly ‘Inland Lake Development’, with the rear portion of the site being situated within the ‘Hazard’ land use designation. The new house would be constructed on the portion of the property designated ‘Inland Lake Development’ and not within the ‘Hazard’ designated area.

13The Original Application was circulated to the following agencies for review and comment on February 1, 2022:

• Saugeen Valley Conservation Authority (“SVCA”)

• Municipality of Brockton

• Bruce Grey Catholic District School Board

• Bluewater District School Board

• Saugeen Ojibway Nation

• Historic Saugeen Metis

• Metis Nation of Ontario

• Hydro One

• Saugeen Municipal Airport

• Municipal Property Assessment Corporation

• Enbridge Union Gas

• Ontario Power Generation

14The agency comments received on the Application indicated no significant objections or issues with the proposed amendment or development concept. The SVCA is responsible for reviewing Planning Act applications processed by the County of Bruce (“County”) with respect to conformity with natural heritage and natural hazard policies of the County’s OP. The Subject Property falls within the area of jurisdiction of the SVCA. The SVCA provided comments on the Application dated February 8, 2022, and indicated that the Application is acceptable and that, “Consistency with local planning policies for natural hazards and natural heritage has been demonstrated.” Moreover, the SVCA, upon consideration of the Application and Proposed Development did not feel the need to recommend the preparation of an Environmental Impact Study (“EIS”), finding that the impact of the Proposed Development will be negligible. Moreover, the SVCA also approved the Applicants’ application To Alter A Regulated Area. The application was for: the removal of the existing dwelling and sewage disposal system, the construction of a new dwelling, and new sewage disposal system, and related excavation, filling, and grading, all within the adjacent lands to Lake Rosalind, as indicated on the permit.

15At the public meeting on March 8, 2022, numerous members of the public provided oral and written submissions in opposition to the Application. The County’s planning staff report recommended approval. The Municipality’s Council approved the Application on March 8, 2022.

16On April 6, 2022, the Appellant appealed the decision to the Tribunal.

LEGISLATIVE TESTS

17In making a decision on the Zoning By-law Amendment presently before it, the Tribunal must be satisfied that it is consistent with the Provincial Policy Statement 2020 (“PPS”), that it conforms to/does not conflict with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”), and that it conforms to the applicable official plans. Moreover, section 2.1(1) of the Act requires the Tribunal to have regard to the decision of the approval authority or Municipal Council and any information and material that it considered in making its decision. Section 2 of the Act requires the Tribunal to have regard to matters of provincial interest. In addition to the foregoing, the Tribunal must, in general, be satisfied that the proposed zoning by-law amendment represents good planning and is in the public interest.

18In this case, the Municipality of Brockton Official Plan applies only to the settlement area of Walkerton and therefore does not apply to the Subject Property. The County’s OP applies to the Subject Property.

THE HEARING

19The Appellant raised concerns with respect to the Proposed Development in terms of compatibility, negative impacts on views and the environmental, insufficient information accompanying the Application, and incorrect setback measurements to the water’s edge. These concerns were shared by the Participants as well, as described above.

20The Appellant relied on testimony from Melissa Markham, who was qualified by the Tribunal without objection as an expert witness to provide opinion evidence in the area of land use planning. She provided her professional opinion that the Application is not consistent with the PPS, does not conform to the County’s OP, does not meet the intent and purpose of the Zoning By-law, and does not represent good planning. She recommended that the appeal be allowed, and the Application be refused.

21The Applicants and the Municipality (collectively referred to as the “Respondents”) were aligned in the position that the appeal should be dismissed. In support of that position, they provided the following witnesses:

a. The Municipality presented Monica Walker-Bolton, who was qualified by the Tribunal without objection to provide opinion evidence as an expert witness in the area of land use planning. Ms. Walker-Bolton, a senior policy planner, who is currently working towards a new Official Plan for the County, prepared the Municipality’s staff planning report dated March 8, 2022, wherein she recommended that Council approve the Original ZBLA. It was her opinion that the Original ZBLA met the legislative tests. Moreover, she raised no objections with the Revised ZBLA, and indicated that it also met the legislative test.

b. The Municipality also presented Joe Bak, Project Manager, whom the Applicants retained to oversee the construction of the Proposed Development. Mr. Bak provided factual evidence regarding the Proposed Development.

c. The Applicants presented Ron Davidson, who was qualified by the Tribunal without objection to provide opinion evidence as an expert witness in the area of land use planning. Mr. Davidson also recommended approval of the Original ZBLA, and had also prepared a revised version which took into account some of the Appellant’s concerns. His evidence was that not only did the Original ZBLA meet the legislative tests, but that the Revised ZBLA also meets them.

22The Appellant’s main concerns can be categorized into four main issues,, which the experts addressed, as follows:

a. Character of the area and Compatibility;

b. Impact on View;

c. Environmental impacts and the need for additional studies; and

d. Setbacks.

CHARACTER OF THE AREA AND COMPABILITY

Appellant’s Position

23The Appellant’s position was that the Application drastically increases the lot coverage to an extent that is uncharacteristic of the rural nature of the area, and does not conform to its character, which is a requirement of the County’s OP.

24In support of this, Ms. Markham testified that the proposed Application was inconsistent with the PPS, which requires compatibility with the character of the area. In this case, the increase in lot coverage from 15% to 26.5%, on an already undersized lot, is almost double the permitted maximum, which is not in keeping with the rural character of the area. This would be akin to implementing a lot coverage that is permitted for fully serviced townhouse dwellings in urban zones.

25Moreover, Ms. Markham testified that the proposed Application did not conform with the County’s OP. Contrary to Section 4.4.4.1, which requires that regard for the site-specific characteristics for neighbourhood compatibility be given when considering zoning for redevelopment projects, this Proposed Development was not compatible with the characteristics of the existing neighbourhood. Namely, Ms. Markham stated, the physical character of the Proposed Development is typical of development in an urban context, built to the minimum side yard setbacks and maximizing the building envelope. This is in contrast to the physical character of this neighbourhood, which is low density cottage development comprised mainly of single storey cottages with accessory buildings.

26Ms. Markham also referred to Section 3.3 of the County’s OP, which sets the stage for sustainable development in the County. There are a range of community characteristics in the County and, to ensure the continued uniqueness and diversity, the OP attempts to achieve a balance between the demands for new development and the need to preserve the existing attributes of the area. In this case, no balance has been achieved between the demands for new development and the need to preserve the existing attributes of the area, as the diverse Community in this area was not considered in the review of the Application.

Respondents’ Position

27The Respondents disagreed with the Appellant. Both Ms. Walker-Bolton and Mr. Davidson testified that the proposed single-family dwelling with its increased lot coverage was in keeping with the character of the area.

28Ms. Walker-Bolton stated that the Application was consistent with the policies outlined in the PPS, namely policies pertaining to cultural heritage and archeology (2.6.1, 2.6.2, 2.6.3). Ms. Walker-Bolton also stated that the Application conformed with the County’s OP, including policies that: protect the quality of life in the County while ensuring sustainable community growth and development (Section 3.2.2 and 3.3.3); and achieve a balance between the demands for new development and the need to preserve the existing attributes of the area (Section 3.3.2). Lastly, Ms. Walker-Bolton explained that the proposed use is permitted under the current existing Inland Lake designation of the Subject Property.

29Mr. Davidson agreed with Ms. Walker-Bolton, and stated that the Application conforms with the County’s OP, is consistent with the PPS, and represents proper land use planning. Mr. Davidson testified that based on Section 5.3.3 (Permitted Uses) in the County’s OP, the Subject Property could be considered for residential use, a park, home occupation, home industry, bed and breakfast establishment, a place of worship, or commercial uses such as lodges, rental cottages and cabins, motels, hotels, marinas, retail establishments that cater to the day-to-day needs of the local residents, restaurant and space extensive commercial recreational uses. A campground may also be considered by way of an amendment to the County’s OP. The Proposed Development would be the least intensive of the permitted uses permitted on this site under the current “Inland Lakes Development” land use designation.

30Ms. Walker-Bolton and Mr. Davidson pointed to similar houses in the area, with similar lot coverages as the Proposal, and stated that therefore the Proposal is not “out of character with the area”, but rather in keeping with its character. Ms. Walker-Bolton testified that she had knowledge that some of the lots had lot coverages above 15%, though she stated that she had not performed a lot coverage analysis in the surrounding area. Mr. Davidson testified that he had performed this analysis and that approximately a third of the dwellings exceeded the 15% lot coverage, with one property at 35% and another at 24%.

31With respect to the Appellant’s concern, as detailed by Ms. Markham, that the Application was not in keeping with the rural character of the area, the Respondents disagreed. On this point, Ms. Markham testified that she defines “rural” with regard to the scale of the development. However, on cross-examination, Ms. Markham admitted that her definition of modest meant that the dwelling conformed with the required setbacks and height requirements in the ZBL. The Respondents stated that the Proposed Development does comply with the ZBL, which necessarily means that the Application is modest, not of large scale, and thus is in keeping with the rural character of the area.

32In addition, Mr. Davidson testified that the area is currently reflective of mixed seasonal and year-round dwellings that are both modest and higher end single-detached dwellings, with lot sizes that vary considerably. According to Mr. Davidson, “the area looks like a residential area.” Thus, despite the area being considered rural lands, it is not out of character to build a single-detached dwelling in a residential area surrounded by single-detached dwellings, especially in the case of a new development replacing an old development of the same land use (single-detached dwelling).

33With respect to the Municipality’s ZBL, Mr. Davidson explained that the ‘maximum lot coverage’ is always lower in areas where full municipal services are not available. This ensures that adequate open space is available to install a private septic system and a well. On the other hand, the ‘maximum lot coverage’ in the fully serviced areas of the Municipality is 30% for detached dwellings, and is higher for other forms of residential development. Thus, the concern regarding lot coverage in the Proposed Development is not whether or not the requested 26.5% lot coverage would result in a crowded development on the property but rather whether or not sufficient open space area is provided to accommodate private services. Servicing the site has not been identified by Municipal officials as an issue. The Municipality’s Chief Building Official is not opposed to the Proposed Development.

IMPACT ON VIEW

Appellant’s Position

34The Appellant raised the concern, shared by the Participants, that the Proposed Development would have an unacceptable impact on the view towards and from the lake.

35Ms. Markham provided her professional planning opinion that the Application fails to conform with policy 5.3.5.2.2 of the County’s OP, which requires that new development be designed to minimize the visual impact of buildings and shall be designed so that height, bulk, density and massing do not have an unacceptable impact upon the view towards or from the waterfront. According to Ms. Markham, this is an uncommon type of policy to be implemented in official plans, underscoring its significance in protecting visual impacts and the importance of achieving conformity with this policy.

36It was Ms. Markham’s opinion that this development will have a significant impact on the view towards the lake, such that the existing neighbours will lose most or all of their view of the waterfront. The Proposed Development would have a much greater width than the existing development. Moreover, it is to have a greater height than the existing development. The proposed dwelling is approximately double the height of the dwellings on either side of the property and is approximately 87.3% of the width of the property. The view from the waterfront will be of a dwelling that was not designed to minimize the built form of the structure. The view towards the waterfront will also be impacted. Moreover, the Proposed Development proposes an attached garage with a driveway to the road. In order to be able to accommodate such a dwelling on these lands, the main floor of the dwelling would be located at the road, which would dramatically increase the visual impact of the Proposed Development from that which is existing.

37The Appellant submitted that a Proposed Development that would entirely block the view towards the waterfront must be considered to have an “unacceptable impact.” The Appellant submitted that this contravenes Policy 5.3.5.2.2 of the County’s OP as there is no greater visual impact than the entire loss of one’s view to the waterfront. The Appellant conceded that there is no common-law right to a view, but submitted that this only further underscores the significance and importance of an intentionally created OP policy, such as is the case here, to protect the view towards the waterfront.

Respondents’ Position

38The Respondents agreed that Policy 5.3.5.2 of the County’s OP requires that new development shall be designed to minimize the visual impact of buildings and structures on Rural Recreational Area. However, they disagreed with the Appellant, stating that the material factor to be considered was whether the impact on view would be unacceptable, which in this case, it was not.

39Ms. Walker-Bolton testified that the Proposed Development would meet the height restriction requirements of Section 5.3.5.2.2, but its bulk and massing will have a visual impact. The water view of Lake Rosalind would be reduced for some residences on the east side of Lake Rosalind Road 1. When evaluating the Application to allow a 31% lot coverage, Council considered whether the increased lot coverage would result in an unacceptable impact on the view toward the waterfront, and whether a similar visual impact could be created by a building constructed with the same side yard setbacks but with a smaller footprint that met the 15% lot coverage requirement. Council’s determination was that the impact would be acceptable, and the Original ZBLA was approved.

40Ms. Walker-Bolton further clarified that Section 5.3.5.2 of the County’s OP references new development, which could include a range of permitted uses as discussed above at paragraph [29] of this Decision. The Proposed Development’s impact of the view toward the waterfront is less than what it might be for a commercial use. Moreover, the two-storey height of the Proposed Development is less than the three storeys referenced in the policy. Thus, Ms. Walker-Bolton opined that the visual impact of the Proposed Development, and the Application facilitating it, would be acceptable and in conformity with the policies of the County’s OP. Mr. Davidson agreed with Ms. Walker-Bolton.

41The evidence of Ms. Walker-Bolton and Mr. Davidson was that an as-of-right development on this property could also impede the view to the waterfront, and the Proposed Development would not cause any undue adverse impacts beyond what an as-of-right development would cause. The Inland Lake Development area has a maximum building height of three stories and 10 m, and the Proposed Development would be a two-storey dwelling. It also would comply with the minimum side yard requirements of 1.5 m. The topography of the site would give the house the appearance of a one-storey building from the road or neighbouring properties. There are many ways to develop the lot where the lot coverage could have been met but the visual impact would have been similar. The Applicants could build a dwelling from lot line to lot line that went up to 10 m in height, as this is allowed by the Municipality’s ZBL, and the Appellant could not appeal same even if there was an impact on her view. Currently, the dwelling that was there was demolished and there is little to no vegetation on the Subject Property. Therefore, any structure built anew will have an impact on view. Mr. Davidson added that a landowner could impede visual impact of the waterfront in other ways, such as planting mature trees, and neighbouring landowners would also have no right of appeal in that case.

42The Respondents submitted that the Tribunal has long since held that there is no right to a view in Ontario. In particular, the Respondents relied on DCR Phoenix Development Corporation Limited v. Ottawa (City), 2020 CarswellOnt 2079 at paragraph 36, wherein the Tribunal accepted the impact on view as the proposal at issue would not cause any undue adverse impacts to view beyond what an as-of-right development would cause. The Divisional Court affirmed that there is no common law right to a view in Ontario in First Ontario Realty Corp v. Appelrouth, 2012 ONSC 2545. The Court noted, at paragraphs 40-41, that the common law does not protect a right to a view.

ENVIRONMENTAL IMPACTS AND THE NEED FOR ADDITIONAL STUDIES

Appellant’s Position

43The Appellant submitted that the Application did not provide sufficient information nor undertake studies necessary to rule out any adverse environmental impacts, as required by both the PPS and the County’s OP. Moreover, the Appellant submitted that the Proposed Development would not improve the Subject Property as encouraged by the County’s OP (Sections 1.1 and 4.3).

44Ms. Markham provided her professional planning opinion that the Application is inconsistent with the PPS as follows:

a. The Application did not provide any analysis to address the suitability of individual on-site sewage and water services without causing negative impacts as required by Policy 1.6.6.4 of the PPS. Lake Rosalind is considered a fish habitat by the SVCA, making it a natural heritage feature for which Policies 2.1.6 and 2.1.8 together require an evaluation of the ecological function of adjacent lands to “demonstrate that there will be no negative impacts on the natural features or on their ecological functions.” No EIS was prepared to demonstrate there would be no negative impact.

b. The Application did not propose any stormwater management practices, contrary to Policy 1.6.6.7 of the PPS which requires in part that planning for stormwater management shall minimize erosion and changes in water balance while preparing for the stormwater impacts of climate change; mitigate risks to humans, property, and the environment; maximize the extent and function of vegetative and pervious surfaces; and promote best practices in stormwater management.

c. Policies 2.2.1 and 2.2.2 of the PPS both require necessary restrictions be implemented near sensitive surface water features to protect, improve, or restore their hydrological functions. No such restrictions were put in place.

45With respect to the County’s OP, Ms. Markham opined that the Application does not conform for the following reasons:

a. The purpose of the OP (Section 1.1), County Goals and Objectives (Section 3.4), and the General Objectives (Sections 4.2 and 4.3.1) of the County’s OP all reference protection of the natural environment through means including protecting ground and surface water quality, encouraging restoration to a natural state, and protecting aquatic habitats. The Application does not provide sufficient planning analysis of its impacts on these matters, nor does it propose measures to enhance the environment or restrict development to protect the environment.

b. The County’s OP also seeks to achieve sustainable development (Section 3.3), which the Application fails to address through lack of consideration given to the existing community attributes of the area and how they can be preserved.

c. Section 5.4 prohibits new development in an Inland Lake Development Area unless it can be proven that said inland lake will not suffer undue environmental degradation in the process. No planning justification was provided to address this, and no EIS was prepared to study this question.

46Ms. Markham opined that the Application does not comply with the ZBL, as Section 3.26.10 requires all entrances and parking areas to provide drainage which prevents surface water from flowing onto adjoining lots. Section 3.31 also requires such drainage for all lands, buildings and structures. Despite the Application seeking to significantly increase lot coverage and therefore impermeability, and the fact that significant grading would be required, the Application does not provide sufficient information to demonstrate compliance with these regulations of the ZBL.

47Thus, Ms. Markham testified that the lack of planning justification for the Application, the failure to conduct an EIS as required, the absence of a grading plan, and the insufficient analysis contained in the Staff Report indicated that the Application does not constitute good planning and is not in the public interest.

Respondents’ Position

48The Respondents submitted that adequate studies and information were provided with this Application to allow the Municipality to adequately assess it. Moreover, if studies were not completed, it was because they were not needed.

49In support of that position, Mr. Bak, the project manager for the Proposed Development, provided a general overview of the various studies that were completed and submitted during the planning process, including but not limited to obtaining a survey of the property to determine the boundaries of the property and the water’s edge, the completion of soil tests by Chung & Vander Doelen Engineering Ltd., a topographical survey by Hewett & Milne Limited, and a septic design by Hopkins Unlimited. These were submitted to the Municipality, SVCA, and the County. During pre-consultation with the Municipality and SVCA, discussions were held regarding the septic system and a Waterloo Biofilter System was suggested by Dieter Weltz, the Chief Building Official at the Municipality, and Michael Oberle, the Environmental Planning Coordinator at the SVCA. Based on these discussions, Chris Hopkins of Hopkins Unlimited was retained and tasked with designing a septic system to fit with the original proposed home design. In addition to the septic system permit, Mr. Bak assisted with obtaining a demolition permit from the SVCA. These permits will require compliance with all applicable Building Code legislation. Moreover, Mr. Bak testified that the Application has been revised, reducing lot coverage to 26.5%, in order to accommodate some of the concerns arising from the Proposed Development.

50The Respondents also submitted that the fact that this proposal is for a re-development, rather than a brand new development, is material to the issues, as many of the policies Ms. Markham referred to pertain to brand new developments. Additionally, since this is a re-development, previously there was a house and a septic system and accessory building on the site.

51The Respondents also pointed out that the Appellant did not call any expert witnesses regarding any assertions made about potential environmental impacts, and that the only evidence that the Tribunal has on this matter was proffered by the Municipality and the Applicants, namely that:

a. The Application was circulated to a number of commenting agencies, including the SVCA, the County, and the Municipality. No commenting agency raised issues with the application, nor requested additional studies.

b. The SVCA specifically noted that, as the body delegated responsibility for reviewing applications against the natural heritage and natural hazards policies of the PPS and local official plans, it found the proposal was consistent with same. It did not recommend the preparation of an EIS, as it was of the opinion that impacts to fish habitat would be negligible.

c. The SVCA had already issued a permit, dated January 14, 2022, for the removal of the existing dwelling and septic system on the site, and for the construction of a new dwelling and new septic system, subject to a number of conditions. The SVCA would not have done so if it had concerns.

d. The only other comments made by a commenting agency was from the Chief Building Official, who noted that the septic system would be required to comply with the Ontario Building Code when a Building Permit application is received.

e. No other reviewing agency requested any additional studies or reports be provided, including a stormwater management plan, suitability analysis, drainage and grading plan and 3D renderings.

52The Respondents further submitted that the Appellant offered no evidence to refute the SVCA’s position on impact to natural heritage and natural hazards, and relied on Fraser v Rideau Lakes (Township), 2020 CarswellOnt 17264 (“Fraser”), at paragraph 51, to submit that the Tribunal requires pertinent objective evidence to make a finding of adverse impact.

53The Respondents also disagreed with Ms. Markham’s testimony that the Application would not improve the Subject Property. Ms. Walker-Bolton and Mr. Davidson both opined that the Application represented an improvement on the Subject Property. It moves the septic system further away from the water, which the Tribunal has previously found would result in a positive impact (Fraser at paragraph 57). Moreover, it replaces old building stock with new building stock. As deposed by Mr. Bak, it will also resolve issues that currently exist due to the significant elevations on this property.

SETBACKS

Appellant’s Position

54The Appellant submitted that the setback to the water’s edge required by the ZBL was measured incorrectly, and that drawings demonstrate that the 15 m setback required by the ZBL was not met and the setback of the Proposed Development to the water would be less than 15 m by an unknown amount. Thus, the Appellant submitted that the Application cannot be approved without confirmation that this regulation can be met, which, according to the Appellant, was not demonstrated by any of the evidence.

55Specifically, as Ms. Markham testified, the setbacks on Mr. Bak’s site plan (either the original or revised version) are measured perpendicular to building walls, some of which are clearly not parallel to the building’s walls. The ZBL requires setbacks to be measured perpendicular to the lot line, and it is clear that at least the front and rear setbacks are measured incorrectly, given that the lot line is not remotely parallel with the building wall. Ms. Markham opined that the line shown on the site plan measures exactly 15 m, but that this line is longer than the actual setback, which by definition does not meet the ZBL’s 15 m setback requirement. Thus, it does not represent good planning.

56Moreover, Ms. Markham testified that Policy 3.1.7 of the PPS requires that development be located outside of the identified hazard lands. The proposed site plan does not identify that the development will be located outside of the Hazard Land Designation or 15 m offset distance from the floodplain of the lake. Ms. Markham also referred to Section 5.3.5.2 of the County’s OP, which states that habitable building and sewage disposal systems shall be appropriately setback from the water’s edge and all vegetation within the setback shall be left substantially undisturbed. The County’s OP indicates that Hazard Land Areas generally identify lands that pose a risk if developed. The comments from the SVCA indicate that “based on the site plan submitted with the application, the location of the new development will not be within the Hazard Land designation or the EP-10.” Ms. Markham disagreed, testifying that, based on the site plan provided, it appeared that, extending the development on the property to 87.3% of the frontage and setback 15 m to the middle of the Proposed Development, the Proposed Development will be located within the Hazard Land designation.

Respondents’ Position

57The Respondents disagreed that the line was measure incorrectly, and submitted that the 15 m setback requirement to the water’s edge would be met.

58In support of this position, the Respondents relied on the following:

a. Mr. Bak’s testimony, wherein he stated that the lines showing the setbacks were drawn correctly, and that it would be up to the Chief Building Official and the SVCA to determine whether the line is drawn correctly. Moreover, the water’s edge is not a straight line. However, despite this, in light of comments from Ms. Markham, Mr. Bak had revised the Site Plan.

b. Neither Ms. Walker-Bolton nor Mr. Davidson testified that the lines had been drawn incorrectly. Ms. Walker-Bolton explained that Schedule A of Section 5.1.1 of the County’s OP designates the Subject Property as Inland Lake, with the shoreline of the property being designated Hazard, and that the Proposed Development would be located entirely within the Inland Lake designation.

c. The Appellant did not provide evidence containing measurements to the contrary.

59Moreover, the Respondents submitted that the Tribunal is not being asked to approve the Site Plan. The Tribunal is only considering the ZBLA, which does not seek relief from the 15 m setback from the water’s edge. In order for a building permit to be issued, the Chief Building Official and the SVCA would have to be satisfied that all applicable law has been complied with, including all setbacks. Thus, the correctness of the setback measurement is to be determined at a later stage and not at this Hearing.

CONCLUSION

60In conclusion, the Appellant requested that the Tribunal allow the Appeal against Municipality of Brockton By-law 2022-31 and refuse to approve the Application. Relying on the evidence provided by Ms. Markham, the Appellant submitted that this Application is not consistent with the PPS; does not conform to the County’s OP; does not comply with the intent of the ZBL; and does not constitute good planning that is appropriate and desirable.

61The Respondents submitted that the evidence they had collectively presented supports a finding by the Tribunal that the Application meets the legislative tests and represents good land use planning. Namely, they submitted that the ZBLA, both the Original and Revised version, is consistent with the PPS 2020, conforms to the County’s OP, meets the intent and purpose of the ZBL, and represents good land use planning. As a result, the Respondents requested that the Appeal be dismissed or in the alternative, that the Appeal be granted in part and that the Revised ZBLA be approved.

FINDINGS AND DISPOSITION

62The Tribunal prefers the evidence of Ms. Walker-Bolton and Mr. Davidson.

63With respect to the Proposed Development being in keeping with the character of the area, the Tribunal accepts the evidence of Ms. Walker-Bolton and Mr. Davidson. The proposed use is permitted under the current existing Inland Lake designation of the Subject Property, and the Proposed Development would appear to be the least intensive of the permitted uses on this site under that designation. Moreover, the Tribunal accepts the evidence that the Proposed Development would be similar to some houses in the area, and the lot coverage would be similar to some of the lot coverages in the area, and therefore it is not out of character with the area.

64Of note, the Appellant indicated, by way of her Counsel’s Reply Submissions, that the Respondents had not provided visual, statistical, or graphical evidence to substantiate the numbers that they relied on, and that little weight should be given to any statistical claims made by the witnesses, as detailed at paragraph [30] of this Decision. Though the Tribunal did not have the benefit of exact statistical evidence, the Tribunal did have the benefit of two land use planning experts who testified that the proposal was in keeping with the character of the neighbourhood. Moreover, the Appellant did not provide statistical evidence regarding lot coverage either to support the claim that the lot coverage proposed was well outside of the norm in the neighbourhood. In fact, though Ms. Markham described the surrounding lots as reflective of lot coverages of 15% or less, she conceded on cross-examination that the lots were not similar or the same in size and that she had not performed any calculations on the surrounding lots at Lake Rosalind to confirm her statement that the lot coverages were “15% or less.” Moreover, based on the visual evidence before the Tribunal, the Tribunal is satisfied that the area is representative of both seasonal and residential dwellings and this Proposed Development’s land use and built form is in keeping and compatible with the area.

65With respect to the issue of the Proposed Development’s impact on view, the Tribunal first notes that is it considering a ZBLA Application only and not a Site Plan Application. The Original ZBLA sought only a recognition of the undersized lot and the increase of lot coverage. A number of factors that impact view arise from the Site Plan approval process. The Tribunal further notes that the Revised ZBLA does also include specifications regarding height and setback, which are more limiting than the approved ZBL allows as of right, as a way to accommodate the neighbours.

66The Tribunal accepts the evidence of Ms. Walker-Bolton and Mr. Davidson that any development would have an impact on view, and that this Proposed Development would not have an “unacceptable impact,” which is the limitation placed by the County’s OP. Rather, according to the evidence, thought has been given to minimizing impact if possible. At the time that Council considered this Application, it also considered whether a similar visual impact could be created by a building constructed with the same side yard setbacks but with a smaller footprint that met the 15% lot coverage requirement, and as a result, Council determined that the impact on view was acceptable. As indicated at paragraph [17] of this Decision, the Tribunal must have regard to the information considered by Council at the time that it made its decision.

67Moreover, as Mr. Davidson pointed out, a landowner could impede visual impact of the waterfront in other ways, such as planting mature trees or building a dwelling that complied with the maximum provisions of the ZBL, and neighbouring landowners would also have no right of appeal in that case. Of note, the Appellant pointed out, in the Reply Submissions, that whether trees or other vegetation may block the view towards the water in the future is not relevant to the test in the County’s OP, as Policy 5.3.5.2.2 assesses the visual impact of development, not vegetation. The Tribunal understands this point, but is nevertheless persuaded that view could be impeded in numerous ways that the Applicants are allowed as-of-right.

68With regards to the issue of the impact on environment, as well as the need for additional studies, the Tribunal is satisfied that, as detailed above, the Application was circulated to a number of commenting agencies and was assessed by them. The Tribunal is further satisfied that those agencies determined that no further studies were required with respect to this Proposed Development. Specifically, Section 5.3.5.1(1) of the County’s OP recognizes that not all development within these areas will result in the same potential for impact and therefore not all proposals require the same level of study or evaluation. In this case, during pre-consultation discussions, the County did not request any special studies and, upon receiving the Application package, deemed the Application complete in accordance with the Planning Act. Moreover, the SVCA, who serves as the expert on behalf of the County and all lower tier municipalities with regards to natural hazard and natural heritage matters, commented on the Application and stated:

Fish Habitat and its Adjacent Lands

Lake Rosalind is considered fish habitat by SVCA staff. Section 4.3 of the Bruce County OP generally prohibits development within fish habitat and its adjacent lands, except in accordance with applicable policies. However, as the property is already developed, and based on the plans submitted with the application, the new development will be no closer to the Lake than the existing development, it is the opinion of SVCA staff that impacts to fish habitat will be negligible, and so SVCA staff is not recommending the preparation of an Environmental Impact Study (EIS) to address fish habitat concerns at this time.

69The SVCA’s concluded their letter with the following:

The application is acceptable to SVCA staff. Given the above comments, it is the opinion of the SVCA staff that:

1. Consistency with Section 3.1, Natural Hazard policies of the PPS, 2020 has been demonstrated;

2. Consistency with Section 2.1, Natural Heritage policies of the PPS, 2020 has been demonstrated; and

3. Consistency with local planning policies for natural hazards and natural heritage has been demonstrated.

70Section 4.3.3 of the County’s OP allows the County to waive the requirement for the preparation of an EIS if the development is minor in nature or the site conditions for a development are such that the preparation of an EIS would serve no useful purpose for the protection of the significant environmental features. This section indicates that the County may seek outside independent advice as to whether the Proposed Development is minor or advice as to whether an EIS would serve any useful purpose. The County was advised by SVCA that an EIS is not required as environmental impacts of this redevelopment would be negligible. The Appellant did not adequately demonstrate why the SVCA’s assessment could not be relied upon. Moreover, as this is a redevelopment, the Appellant did not adequately demonstrate why this Proposed Development would have a more significant impact on the environment than the previous development of the same land-use (single detached dwelling).

71As such, the Tribunal is persuaded that the various commenting agencies adequately determined that the Proposed Development would have a negligible impact on the environment. The Tribunal is further persuaded by the caselaw provided by the Respondents, namely by the Fraser case discussed at paragraph [52] of this Decision, which indicated that pertinent objective evidence is required for the Tribunal to make a finding of adverse impact, which was not provided here. Moreover, a number of matters are to be addressed in the Site Plan stage and would ensure that the Proposed Development would comply with all requirements of the ZBL.

72The Tribunal agrees also with Ms. Walker-Bolton and Mr. Davidson that the Application represents an improvement on the Subject Property. It would move the septic system further away from the water, replace old building stock with new building stock, and remedy issues that currently exist due to the significant elevations on this property.

73With regards to the issue of setbacks, the Tribunal confirms that it is only considering the ZBLA before it, which does not seek relief from the 15 m setback from the water’s edge. During the Site Plan approval process, in order for a building permit to be issued, the Applicants must demonstrate that all applicable law has been complied with, which will include all setbacks. The Tribunal also notes that, as stated by Mr. Bak, the Applicants have taken Ms. Markham’s statements into consideration and have updated the site plan as a result of this Appeal.

74Lastly, with regards to the Applicants’ Revised ZBLA, done to address some of the neighbours’ concerns, the Appellant submitted that these revisions were neither requested nor supported by the neighbours. The Tribunal is satisfied that the proposed revisions do address some of the concerns raised by the Appellant and the Participants, especially with respect to setbacks. Moreover, the Tribunal did not hear compelling evidence or any evidence that the proposed revisions were problematic. In fact, the Revised ZBLA is more limiting on the Applicants than the Original ZBLA but was supported by Ms. Walker-Bolton and Mr. Davidson.

75In summary, the Tribunal finds that the Revised ZBLA and the Proposed Development will satisfy all legislative tests and warrant approval. The Tribunal is satisfied that the Revised ZBLA is consistent with the PPS, conforms to the County’s OP, and meets the intent and purpose of the ZBL. In addition, the Tribunal is satisfied that the Revised ZBLA represents good planning and is in the public interest. In making these findings, the Tribunal gave regard to the decision of the Municipality to approve the Original ZBLA, as well as the information considered by those approval authorities in the course of making their decisions.

ORDER

76THE TRIBUNAL ORDERS that the appeal against Zoning By-law Amendment No. 2022-031 to Zoning By-law No. 2013-26 of the Municipality of Brockton is allowed, in part, and the Tribunal directs the Municipality to amend Zoning By-law Amendment No. 2022-031, in accordance with the form attached as “Attachment A” to this Order. Namely Paragraph [2] of Zoning By-law Amendment No. 2022-031 shall be amended as follows:

a. “31%” in paragraph 2ii shall be replaced with “26.5%”;

b. The following two subsections shall be added:

i. 2.iii The minimum side yard setback from the southerly lot line shall be no less than 3.6 metres and the minimum side yard setback from the northerly lot line shall be no less than 2.1 metres; and

ii. 2.iv The maximum building height shall be 8.5 metres.

77In all other respects, the Tribunal Orders that the appeal is dismissed.

“Bita M. Rajaee”

BITA M. RAJAEE

MEMBER

Ontario Land Tribunal

Website: www.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.