McNamee v. Rideau Lakes (Township), 2023 CanLII 43649

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

May 17, 2023

CASE NO(S).:

OLT-22-003767

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

Applicant/Appellant

Clay McNamee & Darlene Folkard-McNamee

Subject:

Minor Variance

Description:

Permit an increase of the maximum combined horizontal surface area within the 30m water setback.

Reference Number:

A-48-2021

Property Address:

19 Rideau Ferry Road

Municipality/UT:

Rideau Lakes/Leeds and Grenville

OLT Case No:

OLT-22-003767

OLT Lead Case No:

OLT-22-003767

OLT Case Name:

McNamee v. Rideau Lakes (Township)

Heard:

April 28, 2023, by Video Hearing

APPEARANCES:

Parties

Counsel

Clay M^cNamee and Darleen Folkard-M^cNamee

Andrew Donaldson

Township of Rideau Lakes

Spencer Putnam

MEMORANDUM OF ORAL DECISION BY ASTRID J. CLOS DELIVERED ON APRIL 28, 2023 AND ORDER OF THE TRIBUNAL

1The Tribunal convened a Settlement Hearing (“Hearing”) with respect to an appeal brought pursuant to s. 45(12) of the Planning Act (“Act”) by Clay M^cNamee and Darleen Folkard-M^cnamee (“Appellant”) for a property municipally addressed as 19 Rideau Ferry Road (“Subject Property”) located in the Township of Rideau Lakes (“Township”) due to the refusal of Minor Variance application A-48-2021 (“MV”) by the Committee of Adjustment (“COA”).

2Prior to this Hearing event, the Tribunal was advised by the Parties, that a Settlement had been reached between the Township and Appellant and on that basis the Merit Hearing was requested to be converted to a Settlement Hearing. The Tribunal convened these proceedings as a Settlement Hearing in accordance with Rule 12.1 of the Ontario Land Tribunal Rules of Policy and Procedure.

3The original MV application requested relief from Subsection 3.26.2 of the Township of Rideau Lakes Zoning By-law No. 2005-6 (“ZBL”) to permit a maximum 82.8 square metres (“m²”) of a combined horizontal surface area for decks, gazebos and other similar structures that are unattached to a main building within the 30 metre (“m”) water setback where the ZBL permits a maximum of 14 m².

4A staff Report dated January 6, 2022, to the COA recommended that the MV be denied for the following reasons.

1. The development encroaches closer toward the sensitive waterfront area through worsening the extent of existing non-conformity;

2. The proposal increases the intensity of development on the lot within the 30 m area which does not represent low density development at the waterfront, and;

3. The development increases runoff towards the water within the 30 m area.

5On January 12, 2022, the COA denied the original MV application.

6The owners subsequently appealed the decision of the COA.

7On January 17, 2023 the Township and the Appellants entered into a proposed Settlement Agreement for a revised MV (“RMV”).

PARTY/PARTICIPANT STATUS REQUESTS

8In response to the notice, no requests for Party or Participant status were received.

LEGISLATIVE TESTS

9The Tribunal in carrying out their responsibilities shall have regard to matters of provincial interest, as set out in s. 2 of the Act.

10When making a decision related to a planning matter, the Tribunal shall have regard to any decision made by a municipal council or approval authority and any information and material considered by a council or approval authority in making the decision, as set out in s. 2.1 (1) of the Act.

11A decision of the Tribunal in respect of any authority that affects a planning matter, shall be consistent with the Provincial Policy Statement, 2020 (“PPS”), as set out in s. 3(5) of the Act.

12An appeal to the Tribunal pursuant to s. 45 of the Act is a hearing de novo. The Tribunal may authorize such minor variance from the provisions of the by-law as in its opinion meets each of the tests set out in s. 45(1) of the Act. The four tests under s. 45(1) of the Act require the applicant to satisfy the Tribunal that each variance:

1. Maintains the general intent and purpose of the official plan;

2. Maintains the general intent and purpose of the Zoning By-law;

3. Is desirable for the appropriate development or use of the land building or Structure; and

4. Is minor.

SUBJECT PROPERTY

13The Subject Property is located on the northeast side of Rideau Ferry Road (County Road 1) within the Settlement Area of Rideau Ferry.

14The parcel subject to the MV is a waterfront property with approximately 60 m of frontage on Rideau Ferry Road with a depth of approximately 68 m and a lot area of approximately 0.4 hectares.

15The Subject Property contains an existing single detached dwelling on private services. Additional buildings and structures are located on the lot including a shed, hydro service building, gazebo, docks, and waterfront deck. The grassed yard area slopes down toward an existing retaining wall and patio along the shoreline of Rideau Lake.

EVIDENCE

16The Tribunal qualified Tracy Zander to provide expert opinion evidence in the discipline of land use planning. During her evidence Ms. Zander referred to both written and visual materials included in Exhibit 1 – Document Book, Exhibit 2 – Supplementary Document Book and Exhibit 3 – Second Supplementary Document Book.

REVISED MINOR VARIANCE

17Ms. Zander outlined the revised MV request, as included in the proposed Settlement Agreement. The RMV requests relief from Subsection 3.26.2 of the ZBL to permit a maximum 37.1 m² of a combined horizontal surface area for decks, gazebos and other similar structures that are unattached to a main building within the 30 m water setback in accordance with the revised Site Plan dated January 4, 2023 (“SP”), where the ZBL permits a maximum of 14 m².

18Ms. Zander outlined the changes from the original MV application to the RMV.

• The existing gazebo located within the 30 m waterfront area will be converted to a Marine Facility. In accordance with the ZBL, a Marine Facility is not included in the lot coverage calculation.

• The existing waterfront deck will be reduced in area to 37.1 m². In accordance with the ZBL, the stairs and accessibility platforms are not included in the lot coverage calculation. The portions of the deck to be removed are indicated on the SP.

• The originally proposed addition to the existing dwelling and the new detached garage are no longer included in the request and are not proposed.

• An existing shed and separate area of decking abutting the driveway will be removed as indicated on the SP.

• The owners have agreed to enhance the shoreline vegetation on the site as shown on the SP.

• The owners have agreed to respect a “no mow” area along the waterfront as shown on the SP.

• The MV request has been revised from a horizontal surface area of 82.8 m² to 37.1 m² or a reduction of 45.7 m².

19Ms. Zander reviewed the Site Plan dated January 4, 2023. She noted that her planning opinion is based on the RMV, the SP and the following conditions being imposed.

1. That this approval is based on the following specifications and that any deviation from these specifications will require subsequent review and approval by the Township:

(a) The dimensions and location of the proposed structure(s) shall be consistent with the information noted in the application and the Site Plan drawing;

(b) All setbacks and development parameters shall be consistent with the details noted in the Site Plan dated January 4, 2023 and compliant with Zoning By-law 2005-6 where no approval has been granted.

2. That the applicants shall adhere to the planting and vegetation plan shown on the Site Plan. The applicant shall encourage the development of a shoreline naturalization buffer (no disturbance area) extending 15 m back from the high water mark. A modest shoreline access path through this area is permitted.

3. That all outdoor lighting be downward cast, and as minimal as required to minimize light pollution and spill-over;

4. That the applicant maintains all on-site drainage patterns with the exception of ensuring that storm water runoff be captured and directed away from the lake to an area of infiltration;

5. That sediment and erosion control measures be implemented during all stages of construction. This must include some form of silt fencing between the areas of development and the lake. This fencing must remain in place until all areas that were disrupted are fully stabilized (i.e. no bare soils remain);

6. All excavated material is to be disposed of away from the lake, and all construction material shall be stored in a location well away from the lake; and

7. Future development not included in this application will be subject to review and approval by the Township, Conservation Authority and/or Parks Canada and any other governing agency or regulations where applicable.

Planning Act - Matters of Provincial Interest

20The Tribunal heard evidence from Ms. Zander that her planning analysis related to the RMV has had appropriate regard for the applicable matters of provincial interest under s. 2 of the Act, in particular items a, d, h, hi, m, n, o and p.

Provincial Policy Statement

21Ms. Zander provided evidence with respect to the Provincial Policy Statement 2022, (“PPS”) related to the RMV.

22Ms. Zander stated that the Subject Property is located within a settlement area, and in her opinion there are no servicing, transportation, employment, housing, or land use compatibility impacts resulting from the RMV application.

23Ms. Zander outlined that Subject Property is a waterfront lot with no significant natural heritage features identified on or in proximity to the site. A Shoreline Buffer Planting Plan was submitted with the original MV application, and further enhancements including a shoreline “no mow” area were added to the Site Plan dated January 4, 2023. The reduced waterfront deck area retains the current shoreline in a natural state.

24Ms. Zander acknowledged in her evidence that there is a steep slope area in the vicinity of the waterfront decking. The waterfront deck proposed with railings over top of the steep slope and retaining wall improves the overall safety of the water access for the Subject Property.

25Ms. Zander provided her professional opinion that the RMV is consistent with the PPS.

Meets the General Intent and Purpose of the Township of Rideau Lakes Official Plan

26Ms. Zander provided her analysis of the four required tests in relation to the RMV. In evaluating the first test, she confirmed that the Subject Property is designated ‘Village and Hamlet’ in the Township of Rideau Lakes Official Plan (“OP”). This designation permits a variety of land uses including single detached dwellings and associated accessory buildings, structures and uses. s. 2.2 of the OP addresses the protection of waterbodies and shoreline areas which she advised must be considered since the property fronts onto Rideau Lake. The Site Plan addresses this policy through the inclusion of native shoreline plantings, and a “no mow” area along the waterfront.

27Ms. Zander provided her professional opinion that the RMV meets the general intent and purpose of the OP.

Meets the General Intent and Purpose of the Township of Rideau Lakes Zoning By-law

Ms. Zander indicated that the Subject Property is within the General Residential (RG) Zone in the Township of Rideau Lakes Zoning By-law No. 2005-6 (“ZBL”). Single detached dwellings and associated accessory buildings and structures, are permitted in this zone.

28Ms. Zander provided a calculation that the RMV would result in a total lot coverage of 4.3% which she indicated is well below the maximum 10% lot coverage permitted in the General Residential Zone for a waterfront lot.

29Ms. Zander confirmed that, with the exception of the RMV, the Subject Property would be in compliance with all of the other provisions of the ZBL.

30Ms. Zander provided her professional opinion that the MV meets the general intent of the ZBL.

DESIRABLE FOR APPROPRIATE DEVELOPMENT

31Ms. Zander stated that the Subject Property is a waterfront residential lot within a settlement area. She opined that waterfront structures and decking are common and are anticipated based on the provisions of the ZBL. She stated that while the proposed waterfront deck is larger than what is permitted, it will cover an existing impervious patio and retaining wall area and will include appropriate safety barriers and an accessibility ramp. Ms. Zander stated that it is her opinion that the proposed shoreline decking area is appropriate in this situation. The alternative of removing the concrete surface and retaining wall in close proximity to the water would have required significant site and slope alteration. The deck that is the subject of this application is appropriate in this location to minimize lake impacts from surface run-off and improve safety.

32Ms. Zander confirmed that it is her professional opinion that the RMV is appropriate for the development of the Subject Property.

MINOR

33Ms. Zander considered whether the proposed development could be considered “minor”. In applying this test, she considered the potential impact of the RMV. Ms. Zander further indicated that an existing shed and other structures located within the 30 m waterbody setback will be removed. The resulting proposed waterfront deck surface will affect approximately 15% of the shoreline area. The balance of the shoreline area will remain in a natural state. The proposed deck area is setback from the neighbouring lot side lines and is within a bay area of Rideau Lake. No impact on abutting properties is anticipated.

34Ms. Zander provided her professional opinion that the RMV is considered minor.

35Ms. Zander reviewed the proposed conditions, and it was her opinion that they are related to the RMV and are appropriate.

36Ms. Zander confirmed that in her opinion the RMV is a reduction from the original MV application and is considered minor in the context of s. 45 (18.1.1) of the Act.

37Ms. Zander provided her concluding land use planning opinion that the RMV:

• Has had appropriate regard for the applicable matters of provincial interest under s. 2 of the Act;

• Is consistent with the PPS; and

• Meets the four tests of s. 45 (1) to be considered for the RMV.

TRIBUNAL FINDINGS

38The Tribunal accepts the uncontested planning opinion evidence of Ms. Zander and finds that the RMV, meets all the relevant policy tests of s. 2 of the Act, the PPS, the four tests for a MV, represents good planning and is in the public interest.

39The Tribunal considered the information available to the CAO and the decision of the CAO when deliberating its decision.

40The RMV is a reduction from the original MV request and is considered a minor amendment pursuant to s. 45 (18.1.1) of the Act. Accordingly, the Tribunal finds that no further notice is required for the RMV.

41The Tribunal finds that the RMV satisfies the required legislative tests with reasons that include the following:

a. The RMV request has been reduced from the original MV horizontal surface area of 82.8 m² to 37.1 m² or a reduction of 45.7 m².

b. The proposed waterfront deck will affect approximately 15% of the shoreline area with the balance of the shoreline remaining in a natural state.

c. The proposed deck is located centrally between either side lot line with no impact on abutting properties being anticipated.

d. The proposed deck will be constructed over an existing impervious patio and retaining wall.

42The Tribunal is satisfied that the Site Plan dated January 4, 2023 and the conditions are related to the RMV and considered advisable pursuant to s. 45(9) of the Act.

ORDER

43THE TRIBUNAL ORDERS that the appeal is allowed and the revised variance to By-Law No. 2005-6 is authorized subject to the conditions set out in paragraph 19 in this decision and the Site Plan included as Attachment 1 to this Order.

44AND THE TRIBUNAL ORDERS that pursuant to subsection 45(9) of the Planning Act, the Township of Rideau Lakes shall have the authority to clear the conditions of the minor variance. In the event that there are any difficulties implementing any of the conditions of the minor variance, the Tribunal may be spoken to.

45AND THE TRIBUNAL ORDERS that no further notice is required in accordance with s. 45 (18.1.1) of the Act.

“Astrid J. Clos”

ASTRID J. CLOS

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.

Attachment 1