Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 26, 2024

CASE NO(S).: OLT-23-000766

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Alan and Tamara Hutchinson Subject: Request to amend the Official Plan – Refusal of request Description: To permit the creation of two new lots to develop a wellness retreat centre. Reference Number: OP23-1 Property Address: 2230 Amethyst Avenue Municipality/UT: Shuniah/Thunder Bay OLT Case No.: OLT-23-000766 OLT Lead Case No.: OLT-23-000766 OLT Case Name: Hutchinson v. Shuniah (Municipality)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Alan and Tamara Hutchinson Subject: Application to amend the Zoning By-law – Refusal of application Reference Number: Z23-1 Property Address: 2230 Amethyst Avenue Municipality/UT: Shuniah/Thunder Bay OLT Case No.: OLT-23-000767 OLT Lead Case No.: OLT-23-000766

PROCEEDING COMMENCED UNDER subsection 53(14) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Alan and Tamara Hutchinson Subject: Application for Consent – Failure of Approval Authority to make a decision Reference Number: B4-22 Property Address: 2230 Amethyst Avenue Municipality/UT: Shuniah/Thunder Bay OLT Case No.: OLT-23-000768 OLT Lead Case No.: OLT-23-000766

PROCEEDING COMMENCED UNDER subsection 53(14) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Alan and Tamara Hutchinson Subject: Application for Consent – Failure of Approval Authority to make a decision Reference Number: B5-22 Property Address: 2230 Amethyst Avenue Municipality/UT: Shuniah/Thunder Bay OLT Case No.: OLT-23-000769 OLT Lead Case No.: OLT-23-000766

Heard: July 8, 2024, by video hearing

APPEARANCES:

Parties	Counsel
Alan and Tamara Hutchinson ("Appellant")	Steven O’Melia
Municipality of Shuniah	Allan D. McKitrick Candace Hilchuk
Gary McWhirter and Margie McWhirter	Sylvain Rouleau
Walter Kuch and Janice Kuch	Sylvain Rouleau
Porter Bailey	Sylvain Rouleau
Shelley Crawford	Sylvain Rouleau
Gavin and Lindsay Nelson	Sylvain Rouleau
Margot and Joe Meehan	Sylvain Rouleau
Jason and Melissa Jones	Sylvain Rouleau
Moe and Jackie Jones	Sylvain Rouleau
Rod and Nadene Johansen	Sylvain Rouleau
Scott and Richelle Dougall	Sylvain Rouleau
Joanne Kembel	Sylvain Rouleau

DECISION DELIVERED BY D. CHIPMAN, AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1This Decision and Order arises from the appeals filed by Alan and Tamara Hutchinson (the “Appellants/Applicant”) pursuant to subsections 22(7), 34(11), and 53(14) of the Planning Act, R.S.O. 1990, c. P.13, as amended. As further described in paragraphs [7] through [9] below, the Applications for Official Plan Amendment (“OPA”), Zoning By-law Amendment (“ZBA”), and Consents seek to permit the creation of two new lots and to develop a wellness Retreat Centre on the lands, municipally known as 2230 Amethyst Avenue, (“subject property”) in the Municipality of Shuniah (“Municipality”).

2On March 6, 2023, a Notice of Public Hearing was circulated for the proposed Consent applications. On April 13, 2023, a Notice of Public Meeting was circulated for the proposed OPA and ZBA which was held on May 15, 2023.

3The Committee of Adjustment Meeting on May 3, 2023, did not provide a recommendation but provided a list of recommended conditions should Council approve the OPA and ZBA applications.

4Pursuant to the recommendation in the Staff Report prepared for the Council Meeting on June 20, 2023, Council refused the OPA and ZBA.

5The Appellants appealed the refusal of the OPA and the ZBA, and the failure of the Municipality to make a decision on the Consent applications on July 21, 2023.

THE DEVELOPMENT PROPOSAL

6The Applicant submitted the following Planning Act applications to the Municipality of Shuniah, collectively referred to as the “Applications”:

Official Plan Amendment

7To permit the creation of two new lots with a reduced lot area of 2.35 hectares and 2.55 hectares, where section 4.2 requires a minimum of 4 hectares.

Zoning By-law Amendment

8To permit the use of a Retreat Centre on the subject property:

• to permit occupancy
• to allow an accessory building to have a second story.
• to define Retreat Centre as:
  • Retreat Centre – means a use that is accessory to a main dwelling; provides for the operation of spiritual, cultural or educational indoor and outdoor programs for single-day or in-residence multi-day guest use, including sleeping accommodations for a maximum of 12 in-residence guests and two staff which includes: one shared kitchen and eating area, meeting space, shared washroom facilities and accessory buildings.

Consent Applications (“Consents”)

9To permit the creation of two new lots:

1. Reduced lot width from 120 metres to 107 metres for retained lot
2. Reduced lot width from 120 metres to 61 metres for two severed lots

SUBJECT PROPERTY AND SURROUNDING AREA

10The subject property has a lot area of 24.3 hectares (60.1 acres) with a single detached dwelling and accessory buildings (garage and shed). It is located on the north side of Amethyst Avenue and backs onto the decommissioned CN rail line. The 24.3 hectares property has a frontage of 228 metres and is predominantly wooded.

11The proposed new lots are 2.35 hectares and 2.55 hectares respectively, each with a frontage of 61 metres. The retained lot would be approx. 19 or 20 hectares with a frontage of 107 metres. A watercourse traverses the southwest corner of the subject property, and wetlands are present in several locations on the lands.

12The subject property is separated from the intersection of Amethyst Harbour Road by residential use and forest. Land on the south side of Amethyst Avenue abuts Lake Superior, is designated as R1 (minimum lot size is 1 hectare unless safe servicing can be demonstrated) and zoned as Shoreline Residential (min. lot size is 0.18 hectares).

13Land use to the north is residential beyond the rail corridor and Lakeshore Drive.

14To the east, the rural character is mostly defined by large lots (4 hectares +) along the former TransCanada Highway with small shoreline lots (0.18 hectares ). In general, lot sizes gradually increase in size to the east away from the City of Thunder Bay. The land use is primarily residential with some commercial and industrial.

15To the west is more densely populated along the original section of Lakeshore with lots or sites up to 1800 square metres on the Lake Superior shoreline and a variety of sizes from 0.8 hectares – 4 hectares+ on the back lots. The land use is primarily residential with some recreational and local commercial or home occupations.

LEGISLATIVE TEST

16In making a decision with respect to an OPA, ZBA, and Consent appeals, the Tribunal must have regard to matters of provincial interest as set out in section 2 of the Planning Act, in addition, section 3(5) of the Planning Act requires the Tribunal’s decision be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform/not conflict with the Growth Plan for Northern Ontario (“GPNO”).

17In consideration of the statutory requirements set out above, the Tribunal is directed to render a decision that it must be satisfied that the OPA and the ZBA conform with the Official Plan (“OP”) and the Consent applications must meet the tests set out in s. 53 of the Planning Act. Overall, the OPA, ZBA and Consents must represent good planning and be in the public interest.

ORDER OF EVIDENCE AND WITNESSES

18It was agreed that the following Order of Evidence and Witnesses would govern the Hearing:

1. Tami Hutchinson, (Applicant)
2. Shannon Dodd-Smith, Planner (Applicant)
3. Jamie Robinson, Planner (Municipality)
4. Victoria Lemieux, (Resident’s Planner)
5. Syl Menic, Planner, Municipality of Shuniah (under summons)

19Evidence in support of the Applications were provided by the above noted Applicant’s experts. Evidence opposing the Applications were from the Municipality and, Resident’s experts. All experts were duly qualified without objection.

[Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

20The Parties have relied on subsections 2 (a), (h) and (p) of the Planning Act; (a) the protection of ecological systems, including natural areas, features and functions; (h) the orderly development of safe and healthy communities; (p) the appropriate location of growth and development.

21As per the Agreed Statement of Fact (“ASF”) the Tribunal heard there are no provincially significant wetlands identified on the property.

22According to Ms. Dodd-Smith, the goal of the proposed development is to support economic development with compatible uses in the area. She opined that the proposal itself is very small scale in terms of built structures and intensity of use, and provides a service to protect the environment, promotes health and wellbeing and builds economic development along with a means for infill housing. There is an opportunity to work from home to reduce trips to town (climate change impact reduction), in a location that is accessible by nearby intersections; and fronting on a road in an area which anticipates growth and development.

23She testified that the OP designation on the property indicates land use constraints related to wetlands, streams, and Lakehead Region Conservation Authority (“LRCA”) regulated areas which triggered the Applicant initiated environmental impact study (“EIS”). The Applicant hired a qualified consultant to complete the EIS which identified to the satisfaction of the LRCA that development was possible by developing outside of a 30m buffer to any wetlands or stream. The Applicant intends to obtain an LRCA permit which will be sought simultaneously with the building permit process.

24Mr. Robinson noted that the Applications do not have regard to the protection of ecological systems, including natural area, features and functions. He opined that while there are no provincially significant wetlands identified on the property, the OP and the EIS prepared in support of the Application have identified wetlands along the frontages of the proposed lots. The Tribunal heard that in order to access the building envelopes on each of the proposed new lots, driveways will be required to traverse the wetland. Mr. Robinson stated that the proposed ZBA does not implement the recommendations of the EIS as it does not provide development setbacks from the wetland.

25He added that the subject property is located within the rural area of the Municipality, immediately adjacent to shoreline residential development. Residential uses and open space uses predominate in the immediate area of the subject property. He testified that the proposed Retreat Centre would introduce a tourist commercial use within an established rural residential area and shoreline residential area.

26Ms. Lemieux, counsel for the Residents, opined the Applications do not have regard for Provincial interest as the Applications seek to create two new undersized lots from the subject property which are to be located within identified wetland areas. The ZBA application further seeks to permit an additional permitted use on the retained lands, being a Retreat Centre, which would include an additional building and increase overall occupancy on the subject property.

27She identified the retained lands as having an identified stream feature with fish habitat present, as per the findings of the EIS. She raised concerns that no site-specific zoning provisions were included in the ZBA application in order to implement the proposed mitigation measures, specifically the 30 metres buffer area. She noted that no setbacks to the identified stream feature or buffer areas from the proposed Yoga Building, Sauna Building or new septic system were provided in the submitted Applications. She stated the ZBA application does not appear to appropriately protect the identified features on the property (stream, buffer area).

28Counsel for the Appellant, suggested that the following wording be inserted into the draft Zoning By-law that would include buffering the development from the wetlands or highwater mark of the stream to ensure compatibility to the Planning Act and adhere to the PPS :

Notwithstanding any other provision of the Zoning By-law 2038-00, no new buildings shall be constructed within a 30m buffer from the edge of the wetlands or highwater mark of the stream on the subject property.

Findings on the interests of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) and Provincial interests

29The Tribunal prefers and accepts the testimony and evidence of Ms. Dodd-Smith, notably the proposed development and severance of the lands appropriately protect the identified features on the property (stream, buffer area) through the EIS, with the guidance of the LRCA and the implementation of the 30 metres buffer area into the draft Zoning By-law will mitigate any negative impacts on the stream and wetlands.

30The Tribunal finds the Applications have regard for provincial interests related to (h) the orderly development of safe and healthy communities as the intended use is low impact on the community as a whole and the use will be focused on health and wellbeing.

31The Tribunal is of the opinion there will be no negative impacts on the land and the neighbouring properties. Through the site plan process onsite parking will be identified and septic and well function must be demonstrated. The two additional lots created will provide for housing opportunities in an area where the lot pattern is varied and will front onto a municipal roadway.

32As per subsection (p) the appropriate location of growth and development, the Tribunal finds that the Retreat Centre will provide an economic benefit to the municipality on 61 acres of forested land with trails by offering onsite and offsite recreational opportunities.

33The Tribunal finds the proposed development has regard to matters of provincial interest as set out in section 2 of the Planning Act.

Provincial Policy Statement

34Ms. Dodd-Smith took the Tribunal through the applicable sections of the PPS and stated that the Applications have regard to matters of Provincial interest, in particular:

35Section 1.1.1 (c) Healthy, integrated and viable rural areas should be supported by avoiding development and land use patterns which may cause environmental or public health and safety concerns. The Applicant has undertaken an EIS which resulted in showing no negative impacts to the stream and wetlands by initiating a 30 m buffering zone. The Applicant will be required to obtain a LRCA permit.

36Section 1.1.5.3 Recreational, tourism and other economic opportunities should be promoted. The Applicant is requesting a Retreat Centre on the subject property which will utilize the forested trails for outdoor recreation and indoor space for yoga which will add to tourism, recreation and economic opportunities by bringing individuals into the community.

37Section 1.7.1 b) encouraging residential uses to respond to dynamic market-based needs and provide necessary housing supply and range of housing options for a diverse workforce. The Applicant plans to employ local staff to assist with the Retreat Centre and the two severed lots will add to housing supply in a desirable location on a municipal roadway.

38And finally, (h) the orderly development of safe and healthy communities, the goal of the designation is to support economic development with compatible uses. Ms. Dodd-Smith directed the Tribunal to the compatibility criteria included in the General Development Policies, which was used as a trigger by the Applicant to complete environmental studies to ensure protection of ecological systems including natural areas, features and functions on the subject property. Ms. Dodd-Smith further distinguished that the Retreat Centre will add to the recreational facilities identified in the area with the focus on healthy activities in an area rich in nature.

39She opined, the severance policies are based on research which supports limited lot creation with implementation criteria that is consistent with the PPS and includes Planning Act requirements such as s. 51(24). The new lots will satisfy the requirements of the PPS for lot creation for housing options while creating sustainable, compatible local and tourist economic development linked to natural and recreational resources.

40Mr. Robinson advised that the municipality currently has a supply of 376 vacant rural lots that have access to a municipal road. There is no need for additional rural lot creation in this location, particularly on these lands where wetlands are present. The OP and the EIS prepared in support of the application have identified wetlands in the area along the frontages of the proposed lots. In order to access the building envelopes on each of the proposed new undersized lots, driveways will be required to traverse the wetland.

41In his opinion the proposed Retreat Centre would introduce a tourist commercial use within an established rural residential area and shoreline residential area which is not in keeping with an appropriate location of growth and development.

42Section 1.7.1(h) of the PPS states that: “Long-term economic prosperity should be supported by: Providing opportunities for sustainable tourism development”. In his opinion the OP supports opportunities for sustainable tourism development, but the proposed use does not meet the requirements for the establishment of the tourist commercial use as outlined in the OP.

Findings on the Provincial Policy Statement

43The Tribunal prefers the expert evidence of Ms. Dodd-Smith. The Applications have been reviewed by the LRCA from the perspective of delegated responsibility to represent provincial interests regarding natural hazards. They concluded that the application is consistent with section 3.1 of the PPS.

44In addition, the Tribunal finds that the Applications adhere to the Part IV Vision of balancing economic development with environmental protection and social well-being, by promoting efficient development and land use patterns which sustain the financial well-being of the province and municipalities over the long term.

Growth Plan for Northern Ontario

45The Planners through the ASF all agree that the Applications conform to the GPNO.

46After hearing a brief outline from the Parties on the GPNO the Tribunal agrees with the Planners.

Municipality of Shuniah Official Plan 2021

47The OP designates the subject property as “PA – Protected Area” and “RU – Rural”. A watercourse is also identified in the southwest corner of the subject property.

2.3.3 Permitted Uses: Permitted uses include: limited residential, which may include accessory uses and home occupations, additional residential units, garden suites, and private individual energy facilities; highway, tourist, and local commercial; agricultural, agricultural-related, on-farm diversified; and normal farm practices; forestry; aggregate exploration and/or aggregate extraction operation; mineral exploration and/or mining operation; industrial; institutional; recreational; resource-based recreational (including recreational dwellings), portable asphalt plant; alternative energy; cemetery; kennel; and existing remote cottage use.

48The Tribunal heard that the effect of the proposed ZBA and OPA would allow for a home based business and an additional accessory building to provide temporary lodging for short periods of time. It also allows for the creation of two new lots.

49Ms. Dodd-Smith opined, the proposed lot sizes, although smaller than the 4 hectare requirement, meets the purpose and intent of the OP. The lots are still of a size that are in character with surrounding development and maintain the low density, multi purpose area in which a variety of land uses can be accommodated as set out in section 2.3.1. She emphasized this policy also supports the proposed Retreat Centre as it adds to the variety of land uses.

50In her opinion the Applications conform to the OP because the proposed Retreat Centre is recreational and natural resourced based; and the severances provide limited residential development.

51She acknowledged s. 3.17.3 of the OP as Tourist Commercial Development Tourism that has the potential to contribute significantly to the local economy; and as a result, the intended use meets the Municipal Tourism Strategy.

52Ms. Dodd-Smith stated that the key areas of focus identified and supported by OP policies include: 1. Community Pride and Promotion 2. Lake Accessibility 3. Outdoor Recreation Trails 4. Business Connections 5. Regional Collaboration Tourist. Commercial uses including activities that focus on attracting and retaining visitors on a year-round basis for economic gain.

53She provided the Tribunal with a list of OP examples of activities: campgrounds, lodges, resort hotels, marinas, ski centres, off-road biking and hiking trails, and recreational facilities. In her opinion the Retreat Centre will offer a comparative attraction to those included in the OP policies adding that the Retreat Centre programming will be available to local residents and visitors year round.

54Section 3.20 – Compatible Development. This section requires that all planning applications “shall be compatible with existing uses in the vicinity by avoiding adverse effects or minimizing adverse effects to acceptable or negligible levels”.

55The subject property is located on a municipally opened and maintained road with natural screening, the variety of lot sizes in the area, the scale and intensity of use (including location, number, and size of proposed buildings) do not cause adverse effects. The use of the Retreat Centre and surrounding forested area will provide an environment for yoga, hiking and meditation that is passive recreation which is not anticipated to cause a negative effect on the surrounding area. The subject property is near a number of intersections ranging in scale to accommodate traffic flow and ease of access.

56The Retreat Centre adds to the variety of land uses and maintains the low density, multi purpose area in which a variety of land uses can be accommodated as set out in section 2.3.1. The proposed use would provide a local commercial amenity as well as a tourist commercial use. By drawing people to the service and experience, they are drawing people to Shuniah to spend time and money; and creating a positive economic atmosphere for more businesses and camp rentals, etc.

57Section 3.2.6 Short-Term Accommodation & Home Sharing is supported by the Municipality to promote economic development, and an opportunity for diversity in local accommodations while limiting potential impacts to neighbourhoods. The Tribunal heard that the use of the Retreat Centre and accommodations will be subject to a booking system and not open for transient travellers. Accommodations will be in conjunction with specific programming (yoga and meditation).

58Section 2.3.4 – Rural Designation, it states that

all proposed development, including new lot creation (see section 4.2) must be serviced by private, on-site servicing in accordance with the Ministry of Environment, Conservation and Parks (MECP) or Thunder Bay District Health Unit (TBDHU).

59Ms. Dodd-Smith acknowledged that the Applicant is aware that this policy is clear on the requirements of a building permit application for single proposed structure (yoga studio) that requires a stormwater management/drainage plan. She noted that the Applicant agrees that the Municipality may require further studies. In this case, she added that the proposal in her opinion is the scale of a home occupation which is currently permitted without an OPA or ZBA.

60Ms. Dodd-Smith turned to section 4.2 - Subdivision of Land which states:

the current size and character of the Municipality and the current level of economic activity supports lot creation or subdivision of land primarily through the consent process as provided for under section 53 of the Planning Act.

61She testified that the subdivision of land need not be 4 hectares lots as long as they are compatible to the character of the Municipality. Mr. Menic added that the Master Wastewater and Water Servicing Plan (“MWWSP”) does not require or recommend 4 hectares lots in Rural area. MWWSP refers to shoreline development only. He had requested that the MMAH remove the 4 hectares size from the entire OP (hold-over from 1996 OP) because strict sizes are not usually included in OPs with the exception of the 1 hectare minimum lot size mandated by the MECP.

62Mr. Robinson stated that the proposed Retreat Centre would introduce a tourist commercial use within an established rural residential area and shoreline residential area. The intent of the Rural designation is to recognize the low density, multi-purpose area in which a variety of land uses can be accommodated. A portion of the property is also designated Protected Area in the OP. In order to access the developable portion at the rear of the proposed lots, driveways on both lots are required to cross a wetland. The intent of this designation is to identify areas which need protection from development and/or lands that may contain potential hazards to development.

63He opined that the OP establishes a land use concept which identifies that tourist commercial uses are to be directed to areas where they are compatible with surrounding land uses and in association with an attraction or resource. It was his opinion that the subject property does not have a defining attraction or resource. On this basis, the subject property is not an appropriate location for the development proposed. He emphasized that the subject property is not located on the shoreline; it is north of Amethyst Avenue within a rural area of the Municipality.

Increased traffic and safety issues

64The Planners all agreed through the ASF that a Traffic Impact Study was not triggered during the municipal application review process as the road is public and up to standard and traffic laws are in effect (and there are no “beach road” or “back lot” policies in effect).

65Ms. Dodd-Smith noted that the residential uses to the south, especially where there are “bunkies” which was explained as associated buildings providing accommodations to main dwelling units, are likely to generate just as much traffic as anticipated with the Retreat Centre. Traffic generated from 12 guests that stay for more than one day may be similar to that of a single dwelling given the plan for group transport to local attractions for daytrips. Specifically, 12 vehicles would not be coming and going daily, rather it would be every 2-4 days.

66The Tribunal heard that traffic along the full length of Amethyst Avenue would be minimal because the location is close to the intersection, which accesses Lakeshore Drive and the TransCanada Highway. Also, the speed limit is very low (40 kilometres/hour). Traffic count/information for the intersection has been requested from the Ministry of Transportation (“MTO”); and it is likely that traffic generation would be less than other currently permitted uses, e.g., wayside pit/quarry, kennel, riding academy/stable, home occupation.

Findings on Traffic and Safety

67The Tribunal is satisfied that the proposed development and use will not create adverse traffic effects on the neighbouring properties. The use of the home base occupation and the introduction of the retreat centre will provide for a very specific use on the property. The utilization of primary home and additional space above the existing garage for accommodations presented in the Applications, can be akin to the “bunkies” already established on area properties.

68The Tribunal agrees with the Applicant that as of right uses on the property would create greater impacts on traffic and groundwater supply.

Groundwater

69Already addressed in Planning Justification Report (“PJR”), Mr. Menic stated that OP section 3.17 on hydrogeological or groundwater study policies addresses the possibility of wells going dry. In his opinion this is not the case in this location. No further request for a hydrogeological study or groundwater study are required at this point.

Findings on Groundwater

As indicated in the PJR, the Tribunal is satisfied that the issue of the sufficiency of water and the concern for wells in the area has been taken into consideration and has been addressed.

Compatibility/Character

70Ms. Dodd-Smith and Mr. Menic both agreed, the extent of differences pertaining to the consent lots setback and dimensions between what is proposed and existing is consistent with the general character of the community. Examples of similar or greater differences in lot adjacencies can be found in the area. Furthermore, perceived differences in the proposed development are further mitigated by the placement of the lots on the table land located further back on the property and well camouflaged by vegetation as identified in the LCRCA report. The Municipality prioritizes economic development and mixed use in Shuniah and PPS prioritizes tourist and recreational uses to balance high taxes associated with single detached residential dwellings.

71Mr. Robinson emphasized that the development application fails to consider the character of the established community without identifying any benefits to the Municipality and community or sufficiently justifying the need for the change. The size of surrounding lots is part of evaluation of neighbourhood character and could be precedent setting.

72In his opinion the proposed Retreat Centre is not an accessory use and there are not appropriate provisions within the proposed ZBA to ensure that the scale of the Retreat Centre is incidental to, and secondary in nature to the principal residential use. Without provisions which ensure that the scale of the Retreat Centre is limited and accessory in nature, the principal land use of the property will no longer be residential, it will be commercial. Introducing a commercial use into a residential area has the potential to alter the existing character of the surrounding area. Based on the scale of the development proposed, the proposed tourist commercial use has the potential to alter the existing character of the surrounding area. The proposed undersized lots are not characteristic of rural lots in the area and have the potential to change the character of the rural lot fabric of the area.

Findings on Compatibility/Character

73The Tribunal prefers the evidence of Ms. Dodd-Smith and Mr. Menic.

74Compatibility does not mean being the same as, or even being similar to, but instead “implies nothing more than being capable of existing together in harmony”. The Tribunal is satisfied that the proposed development is compatible with the adjacent residential properties and lotting pattern in the wider area.

75In addition, the extent of differences pertaining to the consent lots setback and dimensions between what is proposed and existing is consistent with the general character of the community. Examples of similar or greater differences in lot adjacencies can be found in the area. Furthermore, perceived differences in the proposed lot creations are further mitigated by the placement of any development on the table land as identified by the LRCA.

76Finally, the proposed creation of two lots will not destabilize the existing area’ s physical character; the area to the north side of Amethyst Avenue has a variety of lot sizes and frontages which serves to make the area interesting as it provides for varied relationships and any dwellings to be placed on the two lots will be well set back from the road.

77There is no evidence of adverse impacts on the area character by virtue of the compatibility.

Zoning By-law

78The existing zone designation is Rural Zone. A Retreat Centre is not a permitted use in the “Rural” Zone. Additionally, a second story and occupancy within an accessory building are not permitted within the Municipal Zoning By-law.

79The suggested wording by the Applicant would include:

Retreat Centre

80“RETREAT CENTRE” means a use that is accessory to a main dwelling; and provides for the operation of spiritual, cultural or educational indoor and outdoor programs for single-day or in-residence multi-day guest use, including sleeping accommodation for a maximum of 12 in-residence guests and two staff which includes: one shared kitchen and eating area, meeting space, shared washroom facilities, and accessory buildings.

81Ms. Dodd-Smith added that the new accessory buildings that have not been constructed yet are to include a programming space (e.g., yoga studio) with a washroom but no kitchen facilities; and a sauna (permitted as of right).

82She identified that currently, there is no definition in the Comprehensive Zoning By-law or OP to fit the proposed use while “Hotel/Motels” are defined in the By-law as “a structure where guest rooms are provided for transient lodgers…”. Ms. Dodd-Smith emphasized that the proposed use as a Retreat Centre is not intended for transient lodgers. The use of the property will be for a very specific group of people that are attending for a specific purpose – that being a yoga retreat. It is not intended to be used to house travellers as is the case for hotels/motels.

83Furthermore, guests are registered in conjunction with a retreat program. Guests are to register and stay in conjunction with the meals and land-based programming. These services are inextricably connected to each other. It also does not meet the Home Occupation definition due to the use of a studio/meeting space and the meals that are included in the programming.

84The Tribunal heard that a portion of the Applicants’ main dwelling would provide accommodation similar to that of a bed and breakfast including being accessory to their use as a home; but meals would be served throughout the day as part of the retreat programming in the main residence. The existing, legal non-conforming garage would be renovated to provide accommodation similar to an additional dwelling, but there will be no kitchen facilities.

85Mr. Robinson raised the concern that the proposed Retreat Centre does not appear to be incidental to, and secondary in nature to principal uses on the property, and there are no provisions within the ZBA which will ensure that the principal use of the property continues to be dominant.

86Mr. Robinson stated the proposed ZBA does not propose to rezone the wetlands to an appropriate zone through the application and provides no required development setbacks from the confirmed wetland boundaries. On this basis, the proposed development introduces development and land use patterns which may cause environmental concerns.

Consents section 51(24)

87Ms. Dodd-Smith stated that section 3 of the OP contains General Land Use policies which apply to proposed development in all designations unless specified. Policies pertinent to Lot Creation are outlined in section 3.1. As it relates to residential lot creation section 3.1 states that:

a) The term “development” throughout the OP includes lot creation. In all land use designations, land meeting minimum area and policies of this plan may be eligible for division. To achieve efficient land use, lot creation to accommodate residential development shall be directed to the vicinity of existing concentrations of residential development and be separated from uses that may have an adverse effect. Due to the over-supply of residential lots in the Municipality residential lots shall generally be created by consent subject to implementation criteria in section 4.2. Land division by consent is governed by section 53 of the Planning Act.

88She opined that the residential use 2.35 hectares and 2.55 hectares proposed lots will have no impact to the surrounding neighbourhood. The lot size compared to the shoreline lots to the south at 0.18 hectares remain extremely large, significantly exceeding the minimum lot size for the new zone (which is 0.8 hectares, currently). The proposed lots are consistent with all OP policies and meet all implementation criteria other than size. Furthermore, final approval will be subject to the standard conditions of access and safe servicing.

89To the east is a major intersection, supporting hub type development of a higher density, including ensuring traffic flow. She testified that due to the large size and required setbacks, two new driveways will not have an impact on traffic flow.

90The zoning is the same as that which is further to the west where the landscape and land use is very similar. The proposed lots and zoning conform to the OP and are consistent with the PPS.

91Ms. Dodd-Smith stated numerous concerns were raised with respect to whether or not the proposed new lots could be properly developed given the presence of Protected Areas over portions of the lands. The EIS that was prepared in support of a complete application, concluded and confirmed there is table land outside of the wetland areas to support the creation of the proposed lots. Mitigation measures require a 30 metres setback which will be incorporated into the Zoning By-law. No development can occur unless the TBDHU provides preliminary approval of the septic systems. The approval cannot be given if the septic systems are in a wetland as it is contrary to the PPS.

92She stated that additionally, no development can happen unless the LRCA issues a permit for any proposed construction within the Regulated Area.

93The proposed use is providing a local commercial amenity as well as a tourist use. By drawing people to the service and experience, they are drawing people to Shuniah to spend time and money; and creating a positive economic atmosphere for more businesses and camp rentals, etc.

94She confirmed that the proposed lots have been designed in a way to preserve the recreational resource (trails) on the retained lands for the proposed Retreat Centre. They could be changed to meet the OP size requirements of 4 hectares if needed; but they would also be a shape that is not considered to be good planning.

95Mr. Robinson and Ms. Lemieux stated the proposed lots are located within the rural area of the Municipality where open space and large lots predominate. As it relates to the proposed development, and specifically the proposed Consent applications, they emphasized the following planning objective within section 1.5:

to avoid incompatible development and land use patterns which may cause environmental or public health and safety impacts or adverse effects, particularly impacts to vulnerable surface and ground water features and their hydrologic function.

96Additionally, the proposed ZBA does not rezone the wetlands to be an appropriate zone through the application and provides no required development setbacks from the confirmed wetland boundaries. On this basis, the proposed development is not compatible with the natural environment. The proposed Consent applications do not conform to section 1.5 of the OP.

97Mr. Robinson further stated that the two lots are undersized and will result in development within the Protected Area and it has not been demonstrated that the proposed new lots would conserve biodiversity or that ecological benefits provided by nature would support a healthy, integrated and viable rural areas.

98The subject property is not located on the shoreline; it is north of Amethyst Avenue within a rural area of the Municipality. The proposed lots do not meet the lot area and frontage requirements in the OP and Zoning By-law and would introduce smaller lots within an area where larger lot areas are planned. In order to access the developable portion at the rear of the proposed lots, driveways on both lots are required to cross a wetland. On this basis, the lot creation would not be considered locally appropriate given the site conditions and surrounding rural context. The introduction of two undersized lots on the subject property will facilitate a density of built form which is not in keeping with the existing area and sense of place. There is nothing unique about the subject property which would warrant a reduction in the minimum lot size required.

Findings on the Consent Application

99The Tribunal finds the Consents are not premature and seek to respond to various matters of public interest including the protection of natural hazard features while adding to the provision of housing opportunities through intensification. The land is suitable for the purposes for which it is to be subdivided and the dimension and shape of the proposed lots are appropriate and consistent with the existing pattern of development that surrounds the subject property.

100With respect to the OPA to permit site-specific permission for the residential use 2.35 hectares and 2.55 hectares proposed lots will have no adverse effects on the surrounding neighbourhood.

101The EIS has identified adequate table land outside of the wetlands and has been supported by the LRCA.

102Due to the large size and required setbacks, two new driveways will not have an impact on traffic flow.

103The creation of the proposed lots and zoning conform to the other relevant policies of the OP and are consistent with the PPS.

SUMMARY OF CONCLUSIONS AND FINDINGS

104The Applications have regard for matters of Provincial Interest, are consistent with the PPS, conform to or do not conflict with the GPNO, conform to the OP (which includes Planning Act section 51(24)) and conforms to the general intent of the Comprehensive Zoning By-law.

105The subject property is located on a municipally opened and maintained road, with natural screening, in an area of a varying lot sizes.

106The Tribunal is satisfied that the scale and intensity of the proposed use (including location, number and size of proposed buildings) will not cause adverse effects on the neighbouring properties.

107The Tribunal notes that the Applicant was seeking a larger development which fit Tourist Commercial zoning as permitted in the OP, promoted in the Tourism Strategy and included in the OP Objectives. Having conducted voluntary, early consultation with neighbours who expressed concern over the intensity and range of permitted uses, the Applicants significantly scaled-back their proposal prior to submitting a complete application.

108In addition to undertaking an EIS to ensure the proposed use is compatible, they further addressed the concerns by creating a clear definition, a detailed site plan, and a site-specific amendment to maintain the current range of uses and to ensure development is permanently limited.

ORDER

109THE TRIBUNAL ORDERS that the appeal is allowed and:

a) the Official Plan Amendment for the Municipality of Shuniah is amended as shown on Attachment A to this Order;

b) the Zoning By-law No. 2038-00 is hereby amended as shown in Attachment B to this Order. The Tribunal authorizes the Municipal clerk of the Municipality of Shuniah to assign a number to this by-law for record keeping purposes;

c) the provisional Consent is to be given subject to the following conditions:

1. That five percent cash-in-lieu of the value of the land be paid to the Municipality with respect to the severed lots.
2. That a registered legal description of the subject lands is received by the Municipality.
3. A letter shall be received from the governing authority being the Municipality of Shuniah’s Manager of Operations indicating that satisfactory arrangements have been made with respect to access/driveway location for both the severed lots.
4. That approval for a Class IV Septic System is received from the Thunder Bay District Health Unit for both the severed lots.
5. That the Municipality shall receive a written report from a recognized testing laboratory that the water source on the severed lots is potable.
6. That written evidence from a licensed well driller or master plumber, confirming the establishment on the property of a source of water having a flow of at least four gallons of water per minute after one hour of pumping from the subject water source at the rated flow be received by the Municipality for both the severed and retained lots.

"D. Chipman"

D. CHIPMAN 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.

Attachment A

Attachment B