Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 25, 2023 CASE NO(S).: OLT-22-004694

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

Applicant and Appellant: Bradley Canivet Subject: Minor Variance Description: To permit reconstruction of an existing guest sleeping cabin with a front yard (waterfront) setback on a Type 1 Fish Habitat Area Reference Number: A4-2022 Property Address: 67 Horizon Road Municipality/UT: Armour/Parry Sound OLT Case No.: OLT-22-004694 OLT Lead Case No.: OLT-22-004694 OLT Case Name: Canivet v. Armour (Township)

Heard: May 8, 2023 by video hearing

APPEARANCES:

Parties Bradley Canivet

Counsel A. Ciccone

Parties Township of Armour

Counsel E. Veldbloom

MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN T. MASTORAS ON MAY 8, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal originally commenced as an appeal pursuant to s. 45(12) of the Planning Act (the “Act”) resulting from a Committee of Adjustment (“CoA”) denial of an application (“Application”) for two minor variances at 67 Horizon Road (“Subject Property”) in the Township of Armour (“Township”) to permit reconstruction of an existing guest sleeping cabin with a front yard (waterfront) setback on a type 1 fish habitat area.

2Prior to this hearing, the Parties jointly submitted a Settlement proposal (“Settlement”) to the Tribunal in support of the variance requests with conditions.

3The current existing accessory structure is proposed to be demolished to accommodate the new guest sleeping cabin. A total of two variances are requested to the existing Lakeshore Residential (“LR”) zone including:

1. To permit a maximum floor area of 26 square metres (“m²“) (280 square feet [“ft²”]) for a guest sleeping cabin, whereas the Zoning By-law has a maximum floor area of 23 m² (250 ft²);
2. To permit a 23.68 metre (“m”) (77.7 feet [“ft”]) front yard setback for a guest sleeping cabin, whereas the current setback is 25.7 m (84.3 ft), and the Zoning By-law permits a minimum front yard setback of 30 m (98.4 ft).

4The Notice of Hearing was properly circulated by the Tribunal on March 22, 2023.

5There were no other Party or Participant requests submitted to the Tribunal.

6The Tribunal is in receipt of a signed Affidavit of planning evidence from Melissa Markham from April 28, 2023, along with a signed Acknowledgement of Experts’ Duty (April 25, 2023), which are marked as Exhibit 1.

LEGISLATIVE FRAMEWORK

7As this is a de novo hearing, Section 45(1) establishes the ‘four tests’. In other words, to authorize the variances, the Tribunal, in an appeal, must be satisfied that the variances:

a. maintain the general intent and purpose of the official plan; b. maintain the general intent and purpose of the Zoning By-law ; c. are minor in nature; and d. are desirable for the appropriate development or use of the land, building or structure

8In addition, section 3(5) of the Planning Act requires the Tribunal's decision to be consistent with policy statements and provincial plans, including the PPS. The Tribunal must also have regard to the matters of provincial interest set out in section 2 of the Act, as well as for the decision of the COA and the information considered in the course of making its decision, as set out in section 2.1(1) of the Act.

9Where conditions are applicable in the Settlement, the appeal must also be consistent with s. 45(18) of the Act, which allows the Tribunal to make any decision the CoA could have made with conditions in its decision pursuant to s. 45(9) of the Act:

(9) Any authority or permission granted by the committee under subsections (1), (2) and (3) may be for such time and subject to such terms and conditions as the committee considers advisable and as are set out in the decision.

(9.1) If the committee imposes terms and conditions under subsection (9), it may also require the owner of the land to enter into one or more agreements with the municipality dealing with some or all of the terms and conditions, and in that case the requirement shall be set out in the decision.

PLANNING EVIDENCE

10Ms. Markham, a Registered Professional Planner, was properly qualified to provide land use planning opinion evidence and delivered her comprehensive contextual and planning rationale in support of the variances and Settlement. Ms. Markham originally produced the Planning Justification Report (“PJR”) as a planner in the firm Marie Poirier Planning & Associates Inc., and has since pursued a private Planning Consulting practice, but has retained responsibility/representation for this matter through her private practice.

11Ms. Markham opined that the Settlement satisfies all requisite legislative tests relating to s.45(1) and was consistent with the Provincial Policy Statement 2020 (“PPS”), the Township Official Plan (“TOP”) and is representative of good planning in the public interest.

PPS AND TOP

12Ms. Markham provided some history relating to the Subject Property, in that it is approximately 5,942 m² in area and has approximately 70 m of straight-line frontage on Three Mile Lake. The subject property is developed with an existing 69 m² dwelling, 23.4 m² guest sleeping cabin with an attached porch, an 8.6 m² shed and 50 m² dock and is zoned Lakeshore Residential (“LR”) in the Township Zoning By-law (“ZBL”) No. 23-2010.

13Ms. Markham opined that the PJR paid particular attention to sections 2.1 Natural Heritage, and 2.2 Water, relating to the Subject Property with its designation as being part of a “Waterfront Community” in the TOP Schedule “A” Land Use Plan. She further opined that the natural features were identified on the Subject Property in the Ministry of Natural Resources and Forestry (“MNRF”) and that a portion of the property contained some wetlands (not identified as provincially significant), but with no natural constraints.

14Ms. Markham also opined that there was consistency with the PPS relating to sections 2.1.1 to 2.2.1, including the long-term protection of natural features and opined that because the location of the new guest sleeping cabin is located in the existing location of the current guest sleeping cabin, no additional adverse environmental effects would be encountered. Furthermore, Ms. Markham opined that the need to remove any existing vegetation would be mitigated and the construction impact on the “Woodland” portion of the Subject Property would be negligible.

15In relation to this, Ms. Markham further opined that section 2.2 pertaining to water is particularly relevant, because the water frontage portion of the Subject Property would be protected, improved, or restored by minimizing potential negative impacts, evaluating, and preparing for climate change, and ensuring lake capacity is considered. Ms. Markham also asserted the reconstruction of the guest sleeping cabin constituted minimal additional habitable space for the Subject Property and its occupancy would not contribute to increased phosphorus loading in Three Mile Lake.

16Ms. Markham asserted that the Township considerations were carefully considered, in that the proposal met the Objectives, as set out in Subsection 2.2.2 of the TOP. This included controlling public access, controlling the development of recreational/commercial uses in lakeshore areas, evaluating shoreline development based on their impact on water quality and the natural and human environment, correcting existing and preventable potential sources of pollution and ensuring compatibility with appropriately separated surrounding uses avoiding any neighbouring land use conflicts.

17Ms. Markham also opined that the Subject Property met additional requirements in the TOP within Subsections 2.2.3, 2.2.4, 2.2.17, 2.4, 2.4.2, and 2.4.3, as referenced in the Affidavit.

TESTS FOR MINOR VARIANCES

Maintain the General Intent of the Official Plan

18Ms. Markham opined the application recognizes the importance of shoreline residential development for stimulating economic growth with the Township, and at the same time acknowledges the need to protect and preserve the natural environment and character of the Waterfront Community areas through appropriate controls. Emphasis was given to:

• the minimal impact on the existing vegetated buffer, which would remain largely intact and allow for minimal removal of vegetation;
• Lot coverage and floor area for the guest sleeping cabin was not excessive, including building massing and built form;
• Setback for the proposed sleeping cabin is beyond the vegetated buffer, ensuring minimal impact on visual shoreline-built form; and
• the added value to surrounding properties with greater appeal and improved functionality.

Maintain the general intent and purpose of the ZBL

19Ms. Markham opined that the Township ZBL is maintained and reflects the LR Zone, respecting all other provisions of the By-law including:

• Maintained use of the existing 25-year-long use of the guest sleeping cabin in a new form below the lot coverage requirements and habitable space that is permitted;
• Location of the new sleeping cabin would be within the interior side yard of the Subject Property; and
• compliance with all other ZBL provisions.

Are desirable for the appropriate development or use of the land, building or structure

20Ms. Markham opined that the proposed reconstruction of the guest sleeping cabin would comply with respect to lot coverage, massing along the shoreline, the maintenance of the existing vegetation buffer between the shoreline and the cabin and represents a desirable and appropriate use of the land. Furthermore, the slightly increased floor area is intended to allow for more comfortable use of the guest sleeping cabin and will not necessitate a substantially greater area of habitation.

21In addition to this, Ms. Markham opined that:

• The changes will maintain a greater setback than the existing cottage on the Subject Property;
• The changes will properly reflect the character of the area, in relation to neighbouring properties, with more restrictive conditions than some properties;
• There will be an improved compatibility with neighbouring properties, with better aesthetics and functionality; and
• Neighbours were supportive of the application, as evidenced in correspondence in the CoA hearing in October 2022, with three letters submitted, including one neighbour immediately adjacent to the Subject Property.

Minor in Nature

22Ms. Markham opined that with a modest enlargement of floor area and a reduction to front yard setback, coupled with the visual and environmental mitigation efforts in the design, and the significance of a maintained existing vegetative buffer along the shoreline forming part of the Settlement, the variances were “minor in nature in every way”.

23Finally, Ms. Markham opined that with the requisite LR Zone permitting an existing guest sleeping cabin, allowing reconstruction and enlargement to a maximum of 26 sq m and minimum front yard setback of 23.68 m., the proposed variances:

• Would not result in excessive lot coverage;
• Would not change any other structures on the Subject Property;
• Would not have any significant impact to the shoreline, environment, aesthetic characteristics or otherwise, ensuring protection of water quality and designated wetlands;
• Would not negatively impact neighbouring properties, as the sleeping cabin is effectively in the same location;
• There would be economic benefit to a new sleeping cabin on the surrounding area, enhancing property values and enjoyment; and
• Existing vegetation would remain, and ongoing maintenance would be required.

24Ms. Markham concluded that based on her above analysis pursuant to the Act, the PPS, the TOP, and the ZBL, it was her opinion that the proposed minor variances to permit the reconstruction of an enlargement of the existing sleeping cabin conforms with all of the above, and the variances requested meet the four tests for a minor variance pursuant to s. 45(1) of the Act.

ANALYSIS AND DISPOSITION

25The Tribunal acknowledges that the Settlement proposal fully addresses the relevant sections of the Act pertaining to this minor variance application, focusses on the importance of the PPS and the TOP, and shows detailed regard to the four tests pursuant to s. 45(1) of the Act.

26The expert witness testimony and evidence also shows the Settlement has regard for the significance of vegetation buffers inclusive of maintenance and enforcement, environmental impact, wetland and woodland preservation, waterfront and shoreline considerations and shows regard to neighbouring impact and good land use planning.

27The current use is one that has existed for approximately 25 years. The application essentially maintains the existing use, effectively in the same location, with improved conditions impacting property value, aesthetics, overall economic benefit, and enhanced conditions on the Subject Property, with minimal impact to the surrounding area and its environment.

28Therefore, the Tribunal concurs with the testimony of Ms. Markham, and shall allow the appeal having regard to the conditions as set out to this Order.

ORDER

29THE TRIBUNAL ORDERS that the appeal is allowed and the variances to By-law No. 23-2010 are authorized subject to the following condition:

• That the applicant shall be required to enter into an agreement pursuant to section 45(9.1) of the Act, the purpose of which is to establish the Vegetation Protection Areas (“VPAs”) on portions of the subject lands withing the front yard setback areas.

“Steven T. Mastoras”

STEVEN T. MASTORAS 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.