Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 18, 2024
CASE NO(S).: OLT-22-004716
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Nicholas Leblovic
Subject: Zoning By-law No. 22-075
Description: New Township of Tiny comprehensive zoning by-law
Reference Number: 22-075
Property Address: Township-wide
Municipality/UT: Township of Tiny/County of Simcoe
OLT Case No.: OLT-22-004716
OLT Lead Case No.: OLT-22-004716
OLT Case Name: Leblovic v. Tiny (Township)
Heard: February 23, 2024, by Video Hearing and March 1, 2024, by written submissions
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Nicholas Leblovic | Self-Represented |
| Township of Tiny | M. Hodgson* |
DECISION DELIVERED BY P. TOMILIN AND ORDER OF THE TRIBUNAL
1This was the hearing of the Appeal by Nicholas Leblovic (“Appellant”), arising from the Township of Tiny (“Township”) passing of comprehensive Zoning By-law No. 22-075 (“ZBL”) to implement a new Official Plan (“OP”), pursuant to s.34(19) of the Planning Act (“Act”).
2Prior to the hearing, the Tribunal received a letter from the Appellant advising that he revised the Appeal by eliminating all items on the Issues List, other than item 1:
- Does s. 2.5 of the Township ZBL conform to the Township’s OP as required by s. 24.1 of the Act?
3The Tribunal did not receive any status requests for this hearing.
LEGISLATIVE FRAMEWORK
4The relevant policies to the Appeal are the Township Official Plan (“TOP”) and County Official Plan policies that relate to natural and flooding hazards. These policies state, as follows:
“C.4.2. Flood Hazards adjacent to Georgian Bay
C. 4.2.1 The Regulatory Flood Elevation (Flood Hazard Limit) for Georgian Bay is defined as 178.0 m Canadian Geodetic Datum (“CGD”).
C.4.2.2 With the exception of structures essential for boating purposes or structural works required for flood and/or erosion or sedimentation control, no building or structure shall be located adjacent to the shore of Georgian Bay, unless sited inland from the Regulatory Flood Elevation.
C.4.4 Implementation
The implementing Zoning By-law shall establish a setback for development from the Regulatory Flood Elevation.” [emphasis added]
5Boathouses are defined in the ZBL as: “a detached accessory building or structure which is designed or used for the sheltering of watercraft and watercraft-related equipment but does not include open walkways or uncovered docking facilities.”
6The question in front of the Tribunal is whether a boathouse is essential for boating purposes?
HEARING
7It appears that the Appellant’s issue relates to the additional 15 metres (“m”) setback from the Regulatory Flood Line (“RFL”) of Georgian Bay, as implemented by the ZBL, whereas the prior version of the Zoning By-law No. 06-001 had no such requirement.
8The Appellant called two witnesses: Wesley Crown and Franco Romano. Mr. Crown is a former employee of MHBC Planning and was appearing under summons. Mr. Romano was retained by the Appellant and was qualified by the Tribunal to provide expert opinion evidence in the area of land use planning.
9Jamie Robinson appeared on behalf of the Township and was qualified to provide expert testimony in the field of land use planning.
10During his testimony, Mr. Crown provided that he has 27 years of experience in shoreline regulations in Georgian Bay; however, he retired in January of 2023, and no longer has any accreditations as a Land Use Planner. Thus, Mr. Crown’s evidence was limited to fact evidence.
11Mr. Crown proffered that he, along with Mr. Robinson, was one of the team members involved with the ZBL project of the Township. Mr. Crown advised that once the ZBL was passed, he was not involved in any further processes related to the ZBL.
12Mr. Crown stated that in response to the various stages of public consultation, revisions related to all shoreline structures were prepared. The reasoning behind the additional setback was not just the safety of structures and its users, but its impact on/to Nottawasaga Bay, which is a part of Georgian Bay, and its beaches.
13The Appellant asked Mr. Crown if he was aware of any other jurisdictions on Georgian Bay that require additional setback to the RFL. Mr. Crown testified that there are a broad range of approaches dealing with boathouses ranging from complete prohibition to permissions in certain circumstances. He confirmed that some Municipalities permit boathouses, subject to very tight regulatory zoning regulations. However, there are many Municipalities in Ontario prohibiting boathouses outright due to concerns about shoreline aesthetics, environmental issues, etc.
14Mr. Crown opined that it is not a common practice to conduct a full conformity analysis at multiple points prior to the passing of the ZBL. Rather, a full conformity analysis is undertaken at the beginning, with further refinements along the way to ensure that it stays within the applicable planning framework and remains in conformity with the OP.
15Mr. Crown provided that in his view, the ZBL, as revised, was in conformity with the OP. Further, the information obtained from the completion of studies undertaken by the Municipality, would lead to amendments to the OP policies and zoning regulations of shoreline structures.
16It is Mr. Crown’s opinion that the boathouses are not essential for boating purposes, unlike boat ramps, docks and lifts.
17In the opinion of Mr. Romano, boathouses are essential for boating purposes. In the evidence outline he provided:
“The term essential is not defined in the official plan. A common definition is something that is necessary, very important or indispensable. For boating purposes, I do not believe that a boathouse or dock are readily necessary or indispensable, but they are certainly very important. I believe that this is the interpretation intended by the official plan. A dock provides the ability to access and secure a boat. A boathouse provides the ability to safely store, secure and protect a boat and/or equipment for boating purposes. I am not aware of any other building that would be essential for boating purposes. In my opinion, the official plan permits boating houses to be located below the 178 metres GSC elevation.
In my opinion, Section 2.5.1.e) should not form part of zoning by-law 22-075.”
18Mr. Romano stated that he was able to find only a single reference that reflected a conformity review, prior to the passage of the ZBL. He further stated that there has been no review or analysis to establish that s. 2.5.1.e) of the ZBL conforms to the OP, including s. 4.2 and 4.4. Thus, in his view, s. 2.5.1.e) of the ZBL does not conform to the OP.
19It is Mr. Romano’s opinion that safeguarding and protection of a boat and related equipment is a reasonable expectation that is associated with a boathouse. Thus, it makes a boathouse essential to ensure the functional necessity of the boat.
20Mr. Romano summarized that in his opinion, s. 2.5.1.e) of the ZBL should be removed, in order for the ZBL to conform to the TOP.
21Mr. Robinson explained that, as a Partner of MHBC Planning, he was involved in the preparation of the TOP as well as the ZBL and has provided his planning services to the Township since 2015.
22Mr. Robinson stated that the reasoning behind an additional 15 m setback to the new boathouses was to ensure protection of buildings from flooding hazards as well as to protect the character and natural shoreline of the lake.
23With regard to the applicable planning instruments, Mr. Robinson proffered that s. C.4.2.1 of the OP recognizes the importance of the flood protection and establishes the RFL at 178 m CGD. S. C.4.2.2 prohibits buildings and structures to be located adjacent to Georgian Bay, except for those that are essential for boating purposes, or structural works required for flood and/or erosion or sedimentation control.
24In Mr. Robinson’s view, the boathouses’ function is to shelter the boat and is not essential for boating purposes in the context of Georgian Bay in the Township. Rather, depending on the circumstances, a dock, a boat lift, or a marine railway are essential.
25Mr. Robinson provided that s. C.4.4.1 of the OP states that the ZBL shall establish a setback for development from the Regulatory Flood Elevation.
26In his viva voce evidence, Mr. Robinson explained that due to the geographical location of the Township's shoreline, it experiences a notable water level fluctuation. Thus, in his opinion, the additional 15 m setback is justified by protecting the public health and safety.
27Both, Messrs. Crown and Robinson, stated that further refinement of the Township’s regulation of shoreline development was expected following the recently enacted Interim Control By-law, which currently prohibits the development of any new shoreline structures, including boathouses, until the Township has completed its study of appropriate siting of shoreline structures.
28It is Mr. Robinson’s opinion, that the Township’s review would result in the implementation of new OP policies and zoning regulation of shoreline structures. However, Mr. Robinson explained to the Tribunal that a site-specific amendment to the 15 m setback could be obtained where the circumstances warranted, by a Minor Variance application.
ANALYSIS AND FINDINGS
29Mr. Romano stated in his evidence, quoted in para [17], that boathouses are not “necessary or indispensable”, but rather “very important”. “Very important” does not equal “essential”. There are many people who park their vehicles or store their boats without any shelter. Just like a garage, a boathouse is nice to have, but it is not a must have.
30Given Mr. Robinson’s extensive experience in Municipalities with shoreline on Georgian Bay, the Tribunal prefers his evidence. The Tribunal finds Mr. Robinson’s evidence to be persuasive in demonstrating that s. 2.5 of the ZBL conforms to the TOP and represents good planning. Further, the Tribunal finds that a boathouse is not essential for boating purposes.
ORDER
31THE TRIBUNAL ORDERS that the Appeal against Zoning By-law No. 22-075 of the Township of Tiny is dismissed.
“P. Tomilin”
P. tomilin
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.