Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 28, 2024

CASE NO(S).: OLT-24-000255

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

Applicant/Appellant: Neil Boddington

Subject: Minor Variance

Description: To Permit New Dwelling Construction

Reference Number: A23-61

Property Address: 25940 Georgian Bay Shore

Municipality/UT: Georgian Bay/Muskoka

OLT Case No: OLT-24-000255

OLT Lead Case No: OLT-24-000255

OLT Case Name: Boddington v. Georgian Bay (Township)

Heard: July 2 to July 3, 2024 by Video Hearing

APPEARANCES:

Parties Neil Boddington (“Appellant”)

Counsel Carly Emmett Matthew Fox (Articling Student)

Parties Township of Georgian Bay (“Town”)

Counsel Alex Ciccone

Parties Cognashene Cottagers Association (“CCA”)

Counsel Marc Kemmerer

DECISION DELIVERED BY a. sauve AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1The Appellant owns the property municipally known as 25940 Georgian Bay, Township of Georgian Bay, District Municipality of Muskoka (“Subject Property”). A Minor Variance Application was sought to permit the construction of a new detached dwelling with a deck. The existing dwelling is to be demolished.

2The Subject Property has an area of approximately 26,500 square metres (“sq m”) (6.56 acres) with 60 metres (“m”) of frontage on Georgian Bay, abutting the Cognashene Point Conservation Reserve. The majority of the Subject Property is heavily forested and contains a small wetland. The front of the Subject Property is relatively flat and characterized by granite rock with shallow pockets of grass. A few mature pine trees frame the front of the Subject Property. A detached dwelling with a deck was constructed on the property in 1964, and a boathouse (labelled as a shed on the Site Plan) was constructed in 1973. The Subject Property is legally described as Lots 3 and 4 on Plan M-183, Part 1 on Plan 35R-20952, Part of Original Shore Road Allowance, Lot 49, Concession 5, formerly in the Township of Gibson, now in the Township of Georgian Bay, District Municipality of Muskoka.

3The CCA is an incorporated entity that represents the residents of the area. The CCA does not believe the Minor Variance application should be granted.

4The Appellant is seeking three minor variances:

1. A Gross Floor Area (“GFA”) of 330.20 sq m, whereas a maximum GFA of 140 sq m is currently allowed;
2. A maximum dwelling width of 18.94 m, whereas a maximum dwelling width of 15 m is currently allowed; and
3. A maximum building height of 6.34 m, whereas a maximum building height of 6 m is currently allowed.

5The Staff Planning Report recommended approval of the variances, with conditions, but the Committee of Adjustment (“COA”) denied the application on February 26, 2024.

6The conditions the Planning Report recommended are as follows:

1. That the Owner provides a property tax certificate or correspondence from Township Financial Services, indicating that all property taxes have been paid up to date with respect to the property that is subject to this Decision;
2. That this Decision applies only to the detached dwelling as indicated on Schedule A attached to and forming part of this Decision. Any other variances that may appear on the Schedules that are not listed in the written decision are NOT authorized;
3. That in accordance with the Shoreline Hazard Assessment prepared by Tatham Engineering, dated September 15, 2023 (Schedule B), the foundations and crawl space be designed by an engineer experienced in floodproofing measures to withstand the expected hydrostatic and hydrodynamic pressures and a minimum finished floor elevation and minimum opening elevation of 178.6 m; and
4. That this Decision expires three years from the date of the decision if building permits have not been issued for the development.

7For a Minor Variance to be granted, it must have regard for matters of provincial interest and satisfy each criteria listed below:

1. Do the minor variances maintain the general intent and purpose of the Official Plan (“OP”)?;
2. Do the minor variances maintain the general intent and purpose of the Zoning By-Law (“ZBL”)?;
3. Are the variances minor?; and
4. Are the variances desirable for the appropriate development and use of the land?

EXHIBITS AND WITNESSES

8The following were made exhibits at the Hearing:

1. Joint Document Book;
2. Supplementary Document Book;
3. Witness Statement of Amanda Hoffmann;
4. Witness Statement of Michael Barton;
5. Amendment No. 15 to the Official Plan of Georgian Bay; and
6. Muskoka Geo Hub Screenshots

9The Tribunal heard from two witnesses:

1. Amanda Hoffmann – Retained by Appellant – After a review of Hoffman’s credentials, the Tribunal found that she was qualified to provide expert opinion evidence in the field of land use planning.
2. Michael Barton – Retained by Town – After a review of Barton’s credentials, the Tribunal found that he was qualified to provide expert opinion evidence in the field of land use planning.

EVIDENCE AND ANALYSIS

District of Muskoka Official Plan, 2023 (“Muskoka OP”)

10The Subject Property is designated on Schedule A, Land Use Designations, of the Muskoka OP as a Waterfront Area and Rural Area. The proposed dwelling is only located within the Waterfront Area designation.

11The Subject Property is identified on Schedule C2, Natural Heritage Features and Areas, of the Muskoka OP, to contain a Wetland.

12Section B2 provides guiding principles for implementing the vision of the plan. Key objectives of the Muskoka OP generally include the protection of the natural environment, especially water, sustainable growth by efficiently utilizing land, energy, and infrastructure, and maintaining the small-town, waterfront, and rural character of the area.

13Barton testified that the application does not maintain the general intent and purpose of the Muskoka OP. Barton opined that the proposed reconstruction would not maintain the waterfront character because it would be larger and the lot, in relation to the surrounding area, is narrow. Barton also opined that the structure would not be appropriately set back from the water and may impact flooding issues.

14Hoffmann testified that the application does maintain the general intent and purpose of the Muskoka OP. Hoffman opined that the proposal would be compatible with the character of the area as the development consists of a one-storey dwelling with a storage basement matching the character of the area. Hoffmann also testified that the shoreline buffer would be maintained as the new dwelling would be located in the same general area as the prior dwelling had been. She further testified that the lot is heavily treed, which acts as a buffer from neighbouring properties and as a buffer from the view from the water.

15Hoffmann also testified that the Shoreline Assessment prepared by Tatham Engineering, dated September 25, 2023, indicated that the existing dwelling is located within the shoreline flood hazard and that any reconstruction of the dwelling in this location may be subject to shoreline flood hazards. Hoffmann further testified that the report recommends that any reconstruction have a minimum finished floor and minimum opening elevation of 178.6 m and have foundations and crawl space that are designed to accommodate the expected hydrostatic and hydrodynamic loads.

16The Tribunal prefers the evidence of Hofmann and finds that the application conforms to the Muskoka OP. Hoffmann’s evidence demonstrated that the Subject Property is heavily treed and that the position of the proposed development is consistent with what was there before. The Muskoka OP states that shoreline development shall consist of single-unit dwellings, accessory buildings, and structures located on individual lots that are located in a linear fashion along the shoreline. The proposed dwelling will be the sole dwelling on the lot and appears to be in similar proximity to Georgian Bay as those on neighbouring properties. The Tribunal also finds that the potential flooding issue can be addressed by the recommendations found in the Shoreline Assessment.

Township of Georgian Bay Official Plan, 2014 (“Town OP”)

17The Subject Property is designated on Schedule A, Settlement Patterns, as Waterfront and within the Cognashene Coastal Waterfront Community. Section F.3.1 notes that the permitted uses in the Waterfront designation include single detached dwelling units. The proposed application will redevelop an existing shoreline residential use with a low-density single detached dwelling unit. The Subject Property is identified in Appendix 6, Other Wetlands, of the Town OP, to contain an Other Wetland. No development or site alteration is proposed on or adjacent to the Wetland.

18Section F.5.10 contains policies on the Cognashene Waterfront Community, including protection of the natural environment, and that human presence and structures should complement and blend with the distinctive landscape, not dominate and alter it. Further, Cognashene Lake is an area within the Waterfront Community Area of significant development and where development should be designed to not adversely impact the access function of navigation channels and to protect the character of the waterway.

19Barton testified that the application does not maintain the general intent and purpose of the Town OP. Barton testified that the general intent and purpose of the Town OP is to protect and enhance the natural and built-form character of the Waterfront and Waterfront Community Area by limiting the size, scale, density, and massing of structures relative to the frontage of the property. Barton opined that the proposal is an intensification of development on the lot and that the proposed size of the proposal contradicts the purpose and intent of the Town OP.

20Hoffmann testified that the application does maintain the general intent and purpose of the Town OP. Hoffmann testified that the increased GFA, dwelling width, and building width will not negatively impact the character of the area, as the dwelling will be redeveloped on generally previously developed lands, and significant vegetation and trees will be maintained. The dwelling will not further encroach towards the high-water mark from what previously existed. Hoffmann also testified that the lot has an average width of over 90 m, but due to the unique shape of the lot, it is measured at the narrowest point of 60 m.

21Hoffmann opined that the proposed variances will not negatively impact the visual character of the waterfront community as the development will be a one-storey dwelling with a storage basement that will allow over 95% of the lot to remain in a natural state.

22The Tribunal prefers the evidence of Hoffmann as her evidence demonstrated that the proposal does maintain the general intent and purpose of the Town OP as it would exist upon previously developed lands, would align with existing development, would protect surrounding vegetation, would be set back further from the high-water mark than the previous dwelling, would be proportionate to the lot, and the development would remain under the lot coverage maximum of 5%.

Township of Georgina Bay Zoning By-law No. 2014-75 (“ZBL No. 2014-75”)

23The Subject Property is zoned on Schedule A, Map 79, of the Town of the ZBL as Cognashene Residential (SR7) and Environmental Protection – Wetland (EP-W). The proposed development is only located within the Cognashene Residential (SR7) zone.

24Section 6.2 contains the permitted uses for shoreline residential zones. Table 6.1 notes that the only permitted use in the SR7 zone is a detached dwelling.

25Section 19, Definitions, of the ZBL No. 2014-75, provides the following definitions:

a) Floor Area, Gross [for lands within the Cognashene Coastal Waterfront Community] means the total aggregate of the area of all floors measured between the exterior of the exterior walls, and includes without limitation, the entire area of the main floor or first floor, the entire area of the second floor or any higher floor and in the case of a basement or cellar, the area where the floor to ceiling height is greater than 1.8 metres. Included in Gross Floor Area are porches, screened porches, sunrooms, and any attached structure or any area under a roof overhang where the eave projection is greater than 1.2 metres from the exterior wall. Breezeways are included in Gross Floor Area to the point at which the breezeway connects to an accessory building. In an area of a basement or cellar with exposed joists or rafters, floor to ceiling height shall be measured from the top of the floor to the bottom of the joists or rafters.

b) Human Habitation means a place occupied by humans designed for living and including but not limited to, sleeping, eating or food preparation, including a den, library, sewing-room, exercise room, hobby room, enclosed sunroom, or washroom.

26Section 6.4.1(d), Maximum Gross Floor Area for a Dwelling, states that for lots zoned Shoreline Residential (SR) in the Cognashene Coastal Waterfront Community and less than 5,600 sq m of total lot area or less than 70 m lot frontage, the maximum GFA is 140 sq m. The ZBL further states that in no case shall a dwelling exceed a GFA of 325 sq m.

27Barton testified that the application would not maintain the general intent and purpose of the ZBL as the size and scale of the reconstructed dwelling are inappropriately relative to the size of the existing legal non-complying dwelling and do not appropriately consider the relatively narrow waterfront frontage and deficient front setback. Barton opined that the proposal effectively represents the construction of a new dwelling as opposed to a reasonable expansion of an existing legal non-complying structure for restoration/reconstruction to address damage or wear and tear.

28Hoffmann testified that the application does maintain the general intent and purpose of the Town OP as the Subject Property contains a legal non-complying dwelling, which is a permitted use in the SR7 zone. Hoffmann further testified that a portion of the dwelling meets the definition of a basement, which is 80.34 sq m in size and that this area has been included in the calculation of GFA. Hoffmann further testified that the basement is separate from the dwelling as it will only be used for storage, accessed from the outside, and will not be heated. Therefore, she continued, the area of the dwelling that meets the definition of space to be utilized for human habitation is approximately 249.85 sq m, which includes the ground floor of the dwelling (205.05 sq m in size) and the sunroom (44.8 sq m in size).

29Hoffmann opined that the proposal would allow minor intensification as the proposed lot coverage is less than 5% when measured within 90 m of the shoreline. The total lot coverage, when measured across the entire lot area, is less than 1.5%.

30The Tribunal prefers the evidence of Hoffmann. The application is not for the construction of a new dwelling but for the construction of a legal non-complying dwelling that will be placed on the property in a similar location as the original dwelling. This application represents a reasonable expansion of an existing legal non-complying structure for restoration/reconstruction to address damage or wear and tear.

Are the Variances Minor?

31To determine whether a variance is minor is not a mathematical calculation; instead, it considers the impact of the proposal on adjacent properties and the compatibility of the proposal with the surrounding land uses. The use of the word ‘minor’ must be reviewed on a site-specific basis relative to the immediate impact the approval of the variances would impose on the surrounding properties.

32Barton testified that the requested variances are not minor because the requested zoning relief represents an expansion of a legal non-complying use to a degree that does not conform to the intent and purpose of the Town OP or ZBL and that the existing legal non-complying use will be enhanced and expanded in direct conflict with the intent that such uses cease over time.

33Hoffman provided testimony that the requested variances are minor in nature for the following reasons as the proposal will allow minor intensification on the Lands, as the proposed lot coverage is less than 5% when measured within 90 m of the shoreline, as well as a total lot coverage of less than 1.5% when measured across the entire lot area. Hoffmann further testified that the proposal would be located on generally previously developed lands to cause the least amount of site disturbance and no tree removal.

34Hoffmann opined that there would be no negative impacts of the variances on the adjacent property owners or surrounding waterfront community as the application will result in a low-density built form that is compatible with the surrounding uses and will continue to provide a shoreline residential use that has existed on the Subject Property for over approximately 60 years.

35The Tribunal prefers the evidence of Hoffmann and finds that the requested minor variances are minor in nature. The new dwelling will have the same impact as the dwelling that had been on the Subject Property. The requested variances do not create any additional impacts on adjacent properties and are as compatible with the surrounding land uses as the previous dwelling.

Are the variances desirable for the appropriate development and use of the land?

36In assessing this test, an application should be measured against whether it will introduce an element that is undesirable for the appropriate development or use of the land and whether there would be cumulative impacts if subsequent applicants followed this direction. It should be noted that this is the one test that the COA concluded the proposed variances did not meet.

37Barton testified that the proposed variances are not desirable for the appropriate development and use of the land as the legal non-complying use provisions and performance standards are being used to facilitate the construction of a de facto new dwelling with a significantly reduced setback to the waterfront with the gross floor, width, and height characteristics that do not represent an appropriate and reasonable expansion of a legal non-complying use.

38Barton testified that it is the intent of the Town OP that legal non-complying uses will ultimately cease to exist, which is why only limited expansions and extensions are permitted. It is also the intent of the Town OP and ZBL that GFA and building width be regulated based on the frontage along the waterfront to control the proportionality of the dwelling to the size of the lot in order to maintain and enhance the waterfront character. However, Barton opined that the proposed reconstructed dwelling would allow the indefinite continuation and expansion of the legal non-complying use with inappropriate consideration for the applicable Town OP policies and ZBL performance standards that regulate built form.

39Hoffmann testified that the proposed variances are desirable for the appropriate development and use of the land as the proposed dwelling is located on a lot with unique features. The variances are appropriate for the Subject Property as the effect of the application will allow for the development of a one-storey dwelling with a storage basement, which will be compatible with the surrounding low-density built-form in the area.

40Hoffmann opined that while it is generally good planning practice to restrict built form on waterfront properties to ensure the natural environment is protected, there is planning justification for the proposed variances on this property due to its unique characteristics, such as the larger lot size and average width, surrounding built form, existing septic system, wetland, extensive mature vegetation, and the fact that this is a previously developed property.

41The Tribunal prefers the evidence of Hoffmann. The Appellant was able to show that the proposed variances are appropriate development for the land. The proposed dwelling will be substantially identical to the dwelling that had been on the land, only slightly larger. The increased height, width, and GFA are not undesirable as they are relatively minor and will not create cumulative impacts.

DECISION

42The Tribunal finds that the requested variances pass the legislative test. The Tribunal is satisfied that the variance is also consistent with the Provincial Planning Statement, 2024 (“PPS”) and has regard to matters of provincial interest, as well as for the decision of the approval authority and the information that was before it.

43This Hearing occurred prior to the implementation of the current PPS. The Tribunal confirmed with the Parties that the differences between the two documents do not impact this Decision, and the Tribunal agrees.

ORDER

44THE TRIBUNAL ORDERS THAT the appeal is allowed and the variances to Zoning By-Law No. 2014-75 are authorized subject to the following conditions:

1. That the Owner provides a property tax certificate or correspondence from Township Financial Services indicating that all property taxes have been paid up to date with respect to the property that is subject to this Decision;
2. That this Decision applies only to the detached dwelling as indicated on Schedule A attached to and forming part of this Decision. Any other variances that may appear on the Schedules that are not listed in the written decision are NOT authorized; and
3. That in accordance with the Shoreline Hazard Assessment prepared by Tatham Engineering, dated September 15, 2023 (Schedule B), the foundations and crawl space be designed by an engineer experienced in floodproofing measures to withstand the expected hydrostatic and hydrodynamic pressures and a minimum finished floor elevation and minimum opening elevation of 178.6 metres.

“A. SAUVE”

A. SAUVE 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.