Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 19, 2024
CASE NO(S).: OLT-24-000524
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Dan Pogue
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit an amendment to the comprehensive zoning by-law to allow for an accessory building to be used as a sauna and indoor storage.
Reference Number: Z5-22
Property Address: 1965 Crystal Beach Avenue
Municipality/UT: Shuniah/Thunder Bay
OLT Case No.: OLT-24-000524
OLT Case Name: Pogue v. Shuniah (Township)
Heard: December 3, 2024 by video hearing
APPEARANCES:
| Parties | Representative |
|---|---|
| Dan Pogue | Self-represented |
MEMORANDUM OF ORAL DECISION DELIVERED BY GREGORY J. INGRAM ON DECEMBER 3, 2024 AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION AND BACKGROUND
1The matter before the Tribunal concerns an appeal filed by Dan Pogue (the “Applicant/Appellant”) against the Municipality of Shuniah’s (“Municipality”) refusal of a Zoning By-law Amendment (“ZBA”) application pursuant to s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended, (“Act”) to permit the construction of a sauna/storage area in front of the dwelling at 1965 Beach Avenue (“Property”).
2Prior to submitting a zoning amendment application, the Applicant/Appellant began renovating the existing boathouse to accommodate a sauna and a storage area on the existing foundation by increasing the height of the structure. The renovation process was stopped once the Municipality informed him that a ZBA application is required to change the use of the structure along with a building permit.
3The Property is designated as R1 Residential – High Density in the Official Plan (“OP”) and is zoned Section 10, Shoreline Residential under Zoning By-law No. 2038-00 (“ZBL”).
4An Administrative Report dated November 16, 2023 (“the Report”), indicates that “Section 4.6 of the Zoning By-law states that the location of an accessory building shall not be within any minimum required front yard or in any instance where the front lot line abuts a water body or shoreline reserve shall not be located in front of the main building.” The Report indicates that the Municipal Council of Shuniah (“Council”) has permitted saunas in front of dwellings in the past through site specific amendments where the impact on neighbour views is not impacted.
5A public meeting was held on Tuesday, November 28, 2023. Public concerns expressed at the meeting were generally related to the impact of views, the location of the sauna on the property, loss of employment due to additional noise and concerns related to the state of repair of the existing building.
6A Planning Report and Recommendation dated March 26, 2024, was prepared for Council by Planner, Shannon Dodd-Smith who recommended approval of the Application. Briefly summarized, the report indicated that the existing boathouse is a legal non-conforming use and the increase in height of less than one metre is not significant and does not impact the view of neighbours. It also indicated that other concerns are either not planning related and there are other mechanisms in place to address them.
7On April 9, 2024, Council issued a Notice of Refusal of Application to Amend the Zoning By-law which indicated that Council is concerned about “potential contaminants to Lake Superior and because construction started without a permit caused an effect on the decision of the subject lands.”
8An appeal to the Tribunal was launched by the Applicant/Appellant on May 6, 2024 and on August 14, 2024, the Municipality of Shuniah confirmed their withdrawal as a party to the appeal proceedings.
AFFIDAVIT OF SERVICE
9In his opening comments, the Applicant/Appellant provided a historical overview and current context of this case through oral submissions and reference to the Municipal Appeal Record previously submitted. The Municipal Appeal Record (including Planning Reports) was entered as evidence and labelled as Exhibit 1.
10The Applicant/Appellant informed the Tribunal that an Affidavit of Service confirming notice was not submitted to the Tribunal for these proceedings as he misunderstood the direction provided by the Tribunal regarding this requirement.
11Given that the Tribunal did not receive an Affidavit of Service confirming Notice as per Rule 6.2.,
The Tribunal may direct a party to give notice of a hearing event to any person or persons and may direct the method of providing the notice. The party that of service with the Tribunal within 14 days after providing notice to confirm that the Tribunal’s direction was properly carried out.
these proceedings were converted to a Case Management Conference as per Tribunal Rule 17.5 (g) which states that the Tribunal may “convert the scheduled date to a …case management conference“ and directed the Parties to re-schedule a hearing as per rule 17.5 (f):
the Tribunal, on its own initiative may direct that the hearing be rescheduled or resumed.
12The Clerk for the Municipality, Kerry Bellamy, attended as an observer and agreed to be a ‘friend to the Tribunal’ and to provide support to the Applicant/Appellant around the Appeal process.
13The Tribunal, with the consent of the Applicant/Appellant, qualified Kerry Bellamy as a witness to provide an overview of the application process and current context related to this case. Clerk Bellamy facilitates planning applications for the Municipality and has been involved with this case since its initiation by the Applicant/Appellant.
14Clerk Bellamy reviewed the Planning Reports contained in Exhibit 1 with the Tribunal and confirmed that while information regarding the appeal application was posted on the Municipality’s website, official notice did not occur as per Tribunal Rules.
15The Tribunal directed the Applicant/Appellant to access the support of the Clerk of the Municipality and with the assistance of the Tribunal Case Coordinator set a new date for these proceedings and follow Tribunal Rules related to providing notice.
16The Tribunal scheduled a one-day hearing to be held by Video on Wednesday, March 26, 2025 commencing at 10 a.m.
GoToMeeting: https://global.gotomeeting.com/join/927921077
Access Code: 927-921-077
17Individuals are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.
18Individuals who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9391 or (Toll-Free) 1-888-299-1889. The Access Code is as indicated above.
19Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
20The Member is seized.
ORDER
21THE TRIBUNAL ORDERS THAT:
- A hearing occur as per the details outlined beginning at paragraph [16] above;
- The Applicant/Appellant adhere to Tribunal Rules related to Notice.
“Gregory J. Ingram”
GREGORY J. INGRAM 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.