Catherine and Bradley Killaly v. Nipissing (Township), 2023 CanLII 78876

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 21, 2023

CASE NO(S).: OLT-22-003922

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

Appellant: Catherine and Bradley Killaly

Subject: Zoning By-law

Description: To permit travel trailers on Rural, SR and LSR properties of a reduced lot area and setback

Reference Number: BL 2022-23

Property Address: 122 Pine Drive

Municipality/UT: Nipissing/

OLT Case No: OLT-22-003922

OLT Lead Case No: OLT-22-003922

OLT Case Name: Killaly v. Nipissing (Township)

Heard: July 6 – 7, by Video Hearing and July 21 in writing

APPEARANCES:

Parties	Counsel
Catherine and Bradley Killaly	J. Ewart
Township of Nipissing	E. Veldboom

DECISION DELIVERED BY P. TOMILIN AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1The matter before the Tribunal is the Appeal by Catherine and Bradley Killaly (“Appellants”) under s.34(19) of the Planning Act (“Act”) of the passing of Zoning By-law BL 2022-23 by the Council of the Township of Nipissing (“Township”).

2The Township-initiated Zoning By-law Amendment (“ZBA”) was approved on April 26, 2022, and permits travel trailers on Rural (“RU”), Shoreline Residential (“SR”) and Limited Surface Residential (“LSR”) zoned properties and requires minimum setbacks for tent and travel trailers to a minimum of 30 metres (“m”) from shoreline residential zoned properties, as well as rural properties.

BACKGROUND AND CHRONOLOGY

3In December of 2020, the Township passed a comprehensive Zoning By-law 2020-20. Under section 3.44, travel and tent trailers (“trailers”) used for recreational purposes, are permitted in the RU Zone, subject to the following provisions:

a) Minimum lot area of 2 hectares (“ha”);

b) Minimum distance of 500 m from the shoreline of a lake; and,

c) Applicable licences have been obtained from the Township.

4In July of 2021, the Township held a public meeting to regulate the licencing of trailers. In response to the comments received at the meeting, a memorandum (“Memo”) dated August 9, 2021, was prepared by MHBC Planning for the Township to provide alternate options to regulate trailers under Section 3.44 of the Zoning By-law. The Memo recommended that the Township maintain the existing provisions of the Zoning By-law for trailers.

5In October of 2021, the Township directed MHBC Planning to proceed with an amendment to the provisions of Section 3.44 of the Zoning By-law 2020-20 to permit trailers on shoreline lots within the SR Zone with a minimum lot area of 1 ha and to require that trailers be setback a minimum of 30 m from the shoreline.

6The Township held a Public Open House in February of 2022 to provide an overview of the proposed amendment and current provisions included in the Zoning By-law and to seek the public’s comments and opinions on the proposed amendment.

7A second Public Open House was held on April 26, 2022, in order to amend a Zoning By-law that would permit trailers used for recreational purposes on vacant lots within the SR, LSR and RU Zones, subject to:

a) Minimum lot area of 1 ha;

b) Minimum distance of 30 m from the shoreline of a waterbody or watercourse;

c) Not permitted on an island; and,

d) Applicable licenses have been obtained from the Township.

8On the same date Township Council passed By-law 2022-23 to permit trailers used for recreational purposes on vacant lots within the SR, LSR and RU Zones, subject to:

1. Minimum lot area of 1 acre (“ac”);

2. Minimum distance of 30 m from the shoreline of a waterbody or watercourse;

3. Not permitted on an island; and,

4. Applicable licenses have been obtained from the Township.

9Notice of the passing of By-law 2022-23 was given on May 6, 2022.

10On May 24, 2022, Township Council passed Trailer License By-law 2022-30 (“Trailer By-law”). The Trailer By-law implements the provision of subsection d) of the Zoning By-law, which requires that applicable licences be obtained by the Township in order to permit the trailer use.

11On May 16, 2023, the Trailer By-law was amended as an enforcement and cost recovery tool, and it is consistent with the direction of the Zoning By-law. The Trailer By-law includes provisions to establish fees for the licencing and enforcement of trailer use; regulate the period of time in which a trailer can be occupied; limit the use to one trailer per property and prohibit accessory structures in association with a trailer. The Trailer By-law requires trailer owners to obtain a septic permit, prior to the siting of a trailer, in order to ensure that there is no adverse impact to the natural environment.

12The Appellants filed an appeal of the By-law 2022-23 on May 25, 2022.

HEARING

13There were two planning witnesses at the Hearing. Diana Keay appeared on behalf of the Appellants and Savas Varadas represented the Township. After reviewing applicable qualifications and Acknowledgment of Expert’s Duties, the Tribunal qualified Ms. Keay and Mr. Varadas to provide expert opinion evidence in the area of land use planning.

Evidence of Ms. Keay

14In her oral testimony, Ms. Keay suggested that no planning justification report had been prepared or presented on April 26, 2022, in support of a Zoning By-law which allowed for a tent or travel trailers on a minimum lot area of 1 ac. She further stated that a Zoning By-law was passed without the benefit of any comments from applicable public bodies including the Ministry of Natural Resources and Forestry and the Ministry of the Environment with respect to possible potential impacts on surrounding natural heritage features.

15She proffered that there has not been any evidence provided by the Township to evaluate any potential impacts due to the increase of septic systems for trailers being installed along the shoreline as a result of the reduction of the minimum lot area to 1 ac.

16In the opinion of Ms. Keay, the Zoning By-law is contrary to the governing policy documents, does not represent good planning and is not in the public interest.

17It is Ms. Keay’s opinion that the proposed amendment does not conform to the applicable policies of the Provincial Policy Statement, 2020 (“PPS”), due to the absence of the review of the applicable public bodies with respect to impacts on the surrounding natural heritage features.

18Ms. Keay brought to the Tribunal’s attention sections 2.4.3.2 and 2.4.3.3 of the Township’s Official Plan, 2017 (“TOP”) and suggested that the Township did not commission a lake capacity study to determine the impacts of the additional development on the lakes. She mentioned that according to s. 5.4.4, a proponent is required to prepare a report, in consultation with a qualified biologist to ensure there will be no negative impacts to the large area of the shoreline, identified as "Known Fish Habitat". Thus, in her opinion, the ZBA does not conform to the TOP.

19Ms. Keay stated that due to the Township’s passing of Zoning By-law 2020-20, it has a potential to impact the character of the shoreline, to increase the density of development on the municipal lakes and to increase the number of septic systems in proximity to the municipal lakes.

20In summary, Ms. Keay concluded that in her professional opinion the Zoning By-law does not represent good planning.

Evidence of Mr. Varadas

21Mr. Varadas proffered that the 30 m setback required for trailers is the same as the setback requirement for permanent development. All of the three zones (RU, SR, LSR) currently permit residential uses, and impose a minimum lot area standard of 0.8 ha (2.0 ac) and require 60 m of lot frontage. All zones, including RU, SR and LSR, are subject to section 3.23(b) of the Comprehensive Zoning By-law 2020-20. Section 3.23(b) permits lots that do not meet the minimum lot area and/or minimum lot frontage requirements of the applicable zone to be used for any permitted use, provided other zoning by-law provisions are met and provided a septic system is capable of being constructed on the lot.

22In his testimony, Mr. Varadas explained that the trailer amendment provides for one additional built form as a place of human habitation, and it does not extend any use rights beyond the residential uses that are already permitted in those zones. He further suggested that the standards applicable to the trailers are the same as for permanent dwellings:

1. Septic system setback from the water 30 m;

2. Vegetative buffer within the 30 m setback;

3. Side yard setback of 6 m; and,

4. Rear yard setback of 15 m.

23As of right, the lot owners are able to replace an old dwelling with a new one, even if their lot does not meet the requirement for lot area or is less than 0.4 ha in size. However, the same owners are precluded from replacing their dwelling with a trailer, due to the requirement of a minimum lot area of 1.0 ac (0.4 ha) for a trailer.

24Additionally, the lot occupied by a dwelling is allowed to have as many accessory structures of any size as the owner wishes, as long as it is within 10% of the lot coverage. The same provision is not applicable to the trailers. The same lot occupied by a trailer, is permitted to have a single uncovered deck no greater than 15 square metres (“m²”) in size and the trailer itself.

25Mr. Varadas opined that the objective of a Lake Capacity Assessment is to determine whether new lot creation can be accommodated or whether intensification of existing development rights should be permitted. In his opinion, the trailer amendment does not provide for new lot creation rights, nor does it provide for any intensification of the permitted uses. Additionally, he believes that the placement of the trailer on the lot creates less intensive impact than a permanent dwelling.

26Mr. Varadas reviewed applicable planning instruments and concluded that the trailer amendment has due regard, is consistent and conforms with those instruments. In his review, Mr. Varadas stated that in s. 2 of the Act subsections a), e), h), l), o), p) and r) are applicable.

27He proffered that the Growth Plan for Northern Ontario (2011) (“GP”) is applicable to these lands. He believes that sections 1.4, 2.2.2, 2.3.10.1, 4.2.1 and 4.2.2 are relevant. Mr. Varadas suggested that the proposed recreational use of the trailers is sustainable, inclusive to its users, and is supportive of the sustainable tourism.

28He believes that sections 1.1.1, 1.1.4.1, 1.1.5.2 b), 1.1.5.3 – 1.1.5.5, 1.6.6.4, 1.7.1 h), 2.1.1, 2.1.2, 2.1.6, 2.1.8, 2.2.1 and 2.2.2 of the PPS should be considered.

29In his testimony Mr. Varadas addressed sections 1.3.3, 1.4.1, 1.4.2, 1.4.9, 1.4.13, 1.4.17, 1.4.18, 2.4.1, 2.4.2, 2.4.3.3 – 2.4.3.6, 2.4.5.1, 3.4.1, 5.2.1, 5.4.1, 5.4.3 and 5.4.4 of the TOP and concluded that By-law 2022-23 maintains the intent of, and is in conformity with, the TOP.

30In Mr. Varadas professional opinion, By-law 2022-23 maintains the intent of the Zoning By-law of the Township. He stated:

”There is a requirement in the Trailer Licence By-law for the owner to demonstrate appropriate measures of sewage disposal, sewage treatment and disposal in conjunction with trailers will be the same as that of a dwelling and must be located beyond 30 m from a waterbody. With the minimum lot size being 1 ac to license a trailer, it is expected that there is ample lot area to establish a new septic system along with the siting the trailer thus being compliant with zoning regulations. 1 ac, in my

experience, has historically been seen as an appropriate minimum lot area for waterfront development on private individual services in Ontario.”

31He further provided that the Lake Capacity Assessment requirements were not necessary, as no new lot creation was proposed nor was there any opportunity for land use intensification.

ANALYSIS AND FINDINGS

32In rendering its decision, the Tribunal must consider the evidence that was presented before it. Additionally, the Tribunal shall have regard for the approval authority. After hearing the evidence of Ms. Keay and Mr. Varadas, the Tribunal prefers the evidence tendered by Mr. Varadas.

33The Tribunal is of the opinion that permitting travel and tent trailers on the lands zoned as RU, SR and LSR will contribute to tourism and the economic prosperity of the Township and will provide a more affordable way to enjoy the natural beauty of the region. It will not lead to overdevelopment of the lots, as there are appropriate restrictions in place for trailer occupied lots. The Tribunal finds that with the appropriate licensing, the same setbacks as permanent dwellings and limited seasonal use, the trailer use on the lots will not have unacceptable negative impacts on the water quality of the lake.

34The Tribunal concurs with Mr. Varadas that the ZBA has regard to Provincial Interest, is consistent with the PPS and conforms to the GP, TOP and to the Townships Zoning By-law.

ORDER

35THE TRIBUNAL ORDERS that the Appeal is dismissed.

“P. Tomilin”

P. TOMILIN

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.