Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 22, 2024 CASE NO(S).: OLT-23-001165

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

Applicant and Appellant: Erin Byrne Subject: Minor Variance Description: To permit an addition to an attached deck. Reference Number: A-33-22 Property Address: 1669 Peninsula Point Road Municipality/UT: Township of Severn OLT Case No.: OLT-23-001165 OLT Case Name: Byrne v. Severn (Township)

Heard: March 8, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Erin Byrne (“Appellant”)	Self-Represented*
Township of Severn (“Township”)	Jennifer Biggar

DECISION DELIVERED BY A. SAUVE AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Hearing concerned a request for a minor variance seeking a reduced front yard (shoreline) setback to accommodate the construction of an attached deck (“Minor Variance”). The deck has already been constructed.

2The property is legally described as Lot 32 on Plan 1015, geographic Township of North Orillia, now in the Township of Severn, municipally recognized as 1669 Peninsula Point Road (“Subject Property”). The Subject Property has an approximate lot area of 1,600 square metres (“sq m”) (0.160 hectares (“ha”)) with an approximate frontage of 16 metres (“m”) (52 feet (“ft”)) along the western shoreline of the Severn River. The Subject Property is located approximately 184 m south of the intersection of Peninsula Point Road and Lauderdale Point Crescent, in the northeast area of the Township directly across from the District of Muskoka.

3The Subject Property is currently developed with a single detached dwelling and a private detached garage. In early 2022, the Appellant constructed an addition to an existing attached deck at the front of the dwelling without the benefit of a building permit. Subsequently, the Appellant applied and received a building permit for the deck addition. It was later determined by the Township that the front yard (shoreline) setback of the as-constructed deck addition did not appear to reflect the approved plans as submitted with the building permit application.

4Section 6.4 of By-law 2010-65 (“By-law”) states that the minimum front yard (shoreline) setback for the Subject Property is 20 m. However, there is a deck encroachment allowance of 3.5 m in the By-law. Therefore, the front yard (shoreline) setback, as allowed by the By-law for a deck, is 16.5 m. The Appellant is requesting a setback of 12.5 m (to the deck) and 10.6 m (to the steps).

5The Township Planning Report recommended refusing the Application. The Committee of Adjustment subsequently denied the Application.

LEGISLATIVE TEST

6A minor variance must be consistent with the Provincial Policy Statement, 2020 (“PPS”), conform with the A Place to Grow: Growth plan for the Greater Golden Horseshoe (“Growth Plan”), and meet the four tests, as set out in s. 45(1) of the Planning Act, being:

1. Is the variance minor?
2. Is the general intent and purpose of the Zoning By-law maintained?
3. Is the general intent and purpose of the Official Plan maintained?
4. Is the variance desirable for the appropriate use of land, building, or structure?

EVIDENCE AND ANALYSIS

7The Appellant presented one witness; Michelle Dada of MNT Consulting Group Inc. (“MNT Consulting”). Ms. Dada is not a professional planner and was not offered as an expert. Ms. Dada had been assisting the Appellant with the Appeal.

8The Township presented one witness as well; Andrea Woodrow. Ms. Woodrow is a registered professional planner and was found to be able to provide expert opinion evidence to the Tribunal in the field of Land Use Planning.

9The following documents were made exhibits at the Hearing:

1. Appeal Summary (created by Ms. Dada);
2. Document Book;
3. Ms. Woodrow’s witness statement;
4. Appendix A to Ms. Woodrow’s witness statement; and
5. Appendix B of Ms. Woodrow’s witness statement.

10Ms. Dada provided the Tribunal with a good overview of the history of the Application. Ms. Dada informed the Tribunal that the Appellant obtained Building Permit No. 220126 on May 5, 2022 for the proposed deck addition. The permit paperwork drafted by the Appellant includes a simple plan prepared by the Appellant showing the existing features and a proposed 20 ft deep by 30 ft wide deck addition, plus steps. The deck expansion works were subsequently constructed by the Appellant in the summer of 2022.

11MNT Consulting was retained by the Appellant in August 2023 to assist with this process.

12It is the position of the Appellant, as Ms. Dada explained, that the Town did not satisfactorily review the original building permit application and issued a permit for a proposal that they should not have based on the front yard setback that was necessary. Ms. Dada opined that the Minor Variance should be allowed because the Appellant acted in good faith and constructed a deck that the Town later found to be contrary to the By-law.

13Ms. Dada provided no planning evidence as it relates to the four tests for a Minor Variance.

Consistent with the PPS

14Ms. Woodrow provided detailed planning evidence to the Tribunal in support of dismissing the Appeal. Woodrow informed the Tribunal that, in the context of the PPS and Growth Plan, the Subject Property is considered as lands adjacent to a Key Hydrologic Feature due to the immediate proximity of the Severn River. Ms. Woodrow added that both the PPS and the Growth Plan include provisions which speak to the wise use and management of resources, including the long-term protection of Natural Heritage and Hydrologic Features and their functions.

15Ms. Woodrow explained to the Tribunal that the Subject Property is considered Rural Lands in the PPS, which include lands outside of Settlement Areas and outside of Prime Agricultural Areas, but includes permitted uses such as resource based recreational uses, including seasonal dwellings.

16Ms. Woodrow opined that the requested Minor Variance is not consistent with the PPS for several reasons. One reason Ms. Woodrow provided is that, although the dwelling and deck appear to be located just outside of the Flood Plain, the mapping still impacts the balance of the Subject Property, including the shoreline area, and the deck extension could potentially be damaged by flood events, posing associated risk to the Appellant.

17Ms. Woodrow opined that Section 3.1.1 of the PPS directs development to areas outside of those that are Hazardous Lands adjacent to rivers, streams, and small inland lake systems which are impacted by Flooding Hazards and/or Erosion Hazards. Ms. Woodrow provided evidence that development is typically restricted in these areas to minimize the threat of injury or loss or life and prohibit land uses where flooding may compromise the delivery of essential services or cause unacceptable risk of property damage.

18Ms. Woodrow also believes that there is still a question of whether the placement of the deck would be the optimal location or design to maximize the protection and restoration of the shoreline area. Ms. Woodrow explained that the Application did not explore an alternative deck addition or other options that would achieve a greater setback to the shoreline.

19The Tribunal does not agree with Ms. Woodrow and believes that the Application is consistent with the PPS. The deck is outside of the Flood Plain and any potential risk from flooding is speculative.

20The PPS requires efficient land use and development patterns that support sustainability by promoting strong, liveable, healthy and resilient communities, protecting the environment, agricultural areas, and archaeological resources, while also ensuring public health and safety, and facilitating economic growth. The Tribunal finds that this Minor Variance Application is consistent with the PPS.

Conforms with Growth Plan

21Ms. Woodrow informed the Tribunal that the Subject Property is considered Rural Lands in the Growth Plan as they are located outside of Settlement Areas and Prime Agricultural Areas. Ms. Woodrow continued to inform the Tribunal that the Growth Plan policies are intended to guide growth and development in a way that supports economic prosperity, protects the environment, and helps create Complete Communities to improve quality of life.

22Ms. Woodrow provided evidence that under Section 4.2.4.1 of the Growth Plan that the Subject Property is considered as lands adjacent to a Key Natural Heritage or Hydrologic Feature as it is within 120 m, together with the requirements for a Vegetation Protection Zone (“VPZ”).

23Ms. Woodrow also stated that Section 4.2.4 of the Growth Plan more specifically establishes the requirement for a minimum 30 m VPZ measured from the outside boundary of the Key Natural Heritage or Hydrologic Feature. Ms. Woodrow continued that, in the context of this Application, this is measured 30 m inland from the shoreline of the Severn River. Ms. Woodrow then stated that through the provisions of the Growth Plan, development and site alteration are generally not permitted within the VPZ.

24Ms. Woodrow went on to state that there are certain exceptions for shoreline areas of inland lakes that have been designated or zoned for development as of July 01, 2017 (such as the Subject Property) provided that the proposal would act to restore the ecological features and functions of the shoreline area to the “maximum extent possible”. Ms. Woodrow opined that the requested Minor Variance would seek to reduce the setbacks to the shoreline of the Severn River to accommodate new development, encroaching further into the VPZ.

25Ms. Woodrow further opined that the Appellant has not provided enough information and planning justification to demonstrate how the restoration of the shoreline area to the “maximum extent possible” could be achieved through this development application. Ms. Woodrow went on to state that shoreline restoration can typically be achieved through a detailed shoreline restoration plan, including the planting of new native species of vegetation with varying heights and densities.

26The Appellant did not present evidence regarding this issue. The Tribunal agrees with the Township and finds that the Appeal does not conform with the Growth Plan.

The Four Tests

Is the variance minor?

27Whether a variance is minor is not something that is evaluated on a mathematical basis. It requires consideration of site-specific characteristics and whether the variance could have any adverse impacts. Ms. Woodrow provided evidence that there are a number of outstanding concerns due to the nature of the potential impacts to the ecological features and functions of the shoreline area. Ms. Woodrow also stated that it is unclear if the restoration or re-naturalization of the immediate shoreline area can be appropriately achieved, given the extent of the proposed development in such close proximity.

28The Tribunal agrees that there is not enough information provided by the Appellant to determine if the variance is minor in nature. A shoreline restoration plan would have been helpful to make this determination. As such, the Tribunal finds that the variance being requested is not minor in nature as there is not enough evidence to support that finding.

Is the general intent and purpose of the Zoning By-law maintained?

29Ms. Woodrow testified that the general intent of front yard, or watercourse setback provisions, as contained within the By-law and applied to shoreline residential lands are to ensure that any new development on lands abutting a navigable waterway is sufficiently setback to maintain the integrity of the shoreline, as well as to mitigate the effects of natural hazards such as flooding.

30Ms. Woodrow also informed the Tribunal that Section 3.2.15 of the By-law does acknowledge the construction of unenclosed decks attached to dwellings on shoreline residential properties, and Section 3.2.15 provides some relief for these identified attached accessory structures to encroach up to 3.5 m into the required front yard setback providing that in the case of decks, porches, or steps, such uses are not more than 2 m above finished grade. Ms. Woodrow opined that these provisions acknowledge the typical residential recreational use of the front yard area of shoreline residential properties, while still protecting the shoreline area from overdevelopment.

31Ms. Woodrow provided evidence to the Tribunal that there is concern that the proposed setback to each of the deck extension and stairs would not result in the optimal restoration or protection of the immediate shoreline area, based upon the nature of the relief requested.

32Ms. Woodrow brought the Tribunal’s attention that the Setback Plan prepared by MNT Consulting, dated January 4, 2023, on behalf of the Appellant, referencing the November 30, 2023, Rudy Mak Survey (“survey”), created on behalf of the Appellant, which is unsigned and appears to be a draft copy. The Tribunal finds that it cannot rely on the survey as presented by the Appellant because it is unsigned and may not be correct. As the Setback Plan relies on the information contained in the survey, it also cannot be relied upon.

33The Tribunal finds that the proposed Minor Variance does not maintain the general intent of the By-law as there is a lack of evidence regarding whether the proposed development sufficiently prevents the over development of the immediate shoreline if it encourages shoreline naturalization, and in relation to the protection of Key Natural Heritage or Hydrologic features as is contemplated in the By-law.

Is the general intent and purpose of the Official Plan maintained?

34Ms. Woodrow provided evidence that the County of Simcoe Official Plan (“Simcoe OP”) captures the Subject Property within the ‘Rural’ land use designation, as depicted on Schedule 5.1 to the Simcoe OP. Ms. Woodrow also stated that Section 3.7 of the Simcoe OP speaks to the objectives and intent of the ‘Rural’ land use designation. As set out in the Simcoe OP, the objectives of the ‘Rural’ land use designation are as follows:

3.7.1 To recognize, preserve and protect the rural character and promote long-term diversity and viability of rural economic activities.

3.7.2 To encourage maintenance, protection, and restoration of significant natural heritage features and functions and to conserve the built heritage resources and cultural heritage landscapes associated with rural and agricultural areas.

35Ms. Woodrow also provided evidence that the Simcoe OP identifies that new development should be sufficiently set back from rivers, streams, and lakes within the County of Simcoe in order to develop vegetative corridors along shorelines and watercourses, expanding on the provisions of the Growth Plan:

4.5.25 New development and redevelopment should be sufficiently set back from rivers, streams, and lakes within the County in order to develop vegetative corridors along shorelines and watercourses. The development setback distance shall be determined on-site in consultation with a qualified professional at the applicant’s expense. The following factors shall be considered when establishing the setback distance, established through an EIS and slope stability report, if necessary, with the intent of protecting significant natural heritage features and ecological functions, providing riparian habitat, and minimizing risk to public safety and property:

i. soil type;

ii. vegetation type and cover;

iii. slope of the land including existing drainage patterns;

iv. natural heritage features and ecological functions including fish habitat;

v. the nature of the development;

vi. defined portions of dynamic beaches; and

vii. flooding and erosion hazards.

4.5.28 Development in shoreline areas must address, among other matters: the protection of water quality and quantity; the prevention of erosion resulting from surface water runoff and structural development or fill; the conservation of, and where appropriate the enhancement of linkages between the water bodies and upland areas; opportunities to naturalize the shoreline; and opportunities to conserve, and where appropriate to improve, public access to the shorelines.

For the purposes of this policy, shoreline areas include the land that is physically and functionally connected to rivers, streams, and lakes, and may be defined by prominent topographic and man-made features, the depth of the existing development oriented to the shoreline, and/or the presence of natural heritage features and areas and functions directly linked to the shoreline.

36Ms. Woodrow stated that as the Subject Property has direct frontage along the Severn River, the above noted provisions of the Simcoe OP must be contemplated. Ms. Woodrow continued by stating that the subject deck appears to encroach into the immediate shoreline area, with no demonstration as to how the proposal would provide for sufficient opportunity and space to naturalize the shoreline area or prevent adverse impacts to the natural heritage features or functions. Ms. Woodrow concluded by stating that there is no evidence to confirm if the location of the subject deck is appropriately situated so as to minimize potential impacts to the shoreline’s features and functions, or to allow for optimal naturalization of the shoreline area.

37The Tribunal finds that the proposed minor variance does not maintain the intent and purpose of the Simcoe OP.

38Concerning the Township’s Official Plan (“Severn OP”), Ms. Woodrow provided evidence that the Subject Property is within the ‘Shoreline Residential’ land use designation and that the objective of the ‘Shoreline Residential’ land use designation, as outlined in Section C.7, are as follows:

a) To maintain the existing character of this predominantly low-density residential area.

b) To protect the natural features and ecological functions of the shoreline area and the immediate shoreline.

c) To ensure that existing development is appropriately serviced with water and sanitary services.

39Ms. Woodrow also testified that the Severn OP specifically identifies the importance of maintaining appropriate setbacks from the high-water mark of all lakes and rivers, to promote the retention of tree cover and emphasizes the importance of the maintenance of the integrity of the shoreline:

C7.3.8 Setbacks From All Lakes and Rivers

The retention of tree cover on the shoreline is important to the maintenance of the integrity of the shoreline. The implementing Zoning By-law shall include a setback from the highwater mark for all new development, including additions, renovations, and new construction along the shorelines of all lakes and rivers. In addition, the implementing Zoning By-law shall contain provisions that regulate the size and location of boathouses on a lot.

40Ms. Woodrow opined that the proposed Minor Variance would result in the further encroachment of development in the immediate shoreline area as the reduced setback of the proposed deck in such close proximity to the Severn River appears to conflict with the intent to protect the natural features and ecological functions of the shoreline area and the immediate shoreline. Ms. Woodrow also opined that the Appellant has not established whether an alternate proposal or design may accommodate a greater setback from the shoreline than as is currently proposed, which would present a greater opportunity to re-establish vegetation along the shoreline and protect the integrity of its functions and features, including limiting erosion potential.

41The Tribunal finds that the proposed Minor Variance does not maintain the general intent and purpose of the Severn OP.

Is the variance desirable for the appropriate use of land, building, or structure?

42Ms. Woodrow provided evidence that the Subject Property is located along the shoreline of the Severn River and that the Severn River has been historically characterized with single detached dwellings and/or seasonal recreational uses. Ms. Woodrow continued that it is recognized that the enjoyment of the shoreline area is often a main attraction associated with the residential use of the properties located along the shoreline area and that attached decks are common along the shoreline of the Severn River.

43The Appellant has not provided enough evidence to the Tribunal regarding this question as there is no official survey or shoreline plan. As the Appellant has not provided sufficient evidence, the Tribunal finds that it is unknown whether this variance is desirable for the appropriate use of land, building, or structure.

ORDER

44THE TRIBUNAL ORDERS THAT the Appeal is dismissed and the variance to By-law 2010-65 is not authorized.

“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.