Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 16, 2025

CASE NO(S).: OLT-24-000892

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

Applicant/Appellant: James and Lori Cannon

Subject: Application to amend the Zoning By-law – Refusal of application

Description: To permit two existing shoreline gazebos

Reference Number: RZ-08-2024

Property Address: 1150 Sapphire Drive

Municipality/UT: Highlands East/Haliburton

OLT Case No: OLT-24-000892

OLT Case Name: Cannon v. Highlands East (Municipality)

Heard: March 21, 2025, by Video Hearing

APPEARANCES:

Parties

James and Lori Cannon

Counsel

S. Hahn C. Emmet

Parties

Municipality of Highlands East

Counsel

J. Ewart

DECISION DELIVERED BY P. TOMILIN AND ORDER OF THE TRIBUNAL

1This was the Hearing of the Appeal by James and Lori Cannon (“Appellants”) arising from the refusal of the Application by the Municipality of Highlands East (“Municipality”) to amend Zoning By-law No. 2005-29 (“ZBA”) to create a Limited Service Residential (“LSR”) Zone exception, and to recognize the location, height, and floor areas of two existing shoreline gazebos (non-compliant with sections 3.1 h) i), ii) and iv) of the ZBA, pursuant to ss. 34(19) of the Planning Act (“Act”), for the property located at 1150 Sapphire Drive (“subject property / site”).

2The subject property is located on the south-eastern shoreline of Koshlong Lake (“lake”) and is legally described as Pt. Lots 16 and 17, Con. 13, part of the Original Shore Road Allowance in front of Lot 17, Con. 13, and part of the Road Allowance by Inst. H23095 (Glamorgan), in the Municipality, in the County of Haliburton.

3The site is designated ‘Rural Land’ in the County Official Plan (“OP”), ‘Shoreline’ in the Municipal Official Plan (“MOP”), and is zoned LSR in the ZBL. The site has approximately 59.2 metres (“m”) of frontage along Sapphire Drive, 87.9 m of frontage along the lake, with an average lot depth of 125.5 m and is approximately 0.63 hectares (“ha”) (1.56 acres) in size.

4The subject property is currently occupied by a two-storey dwelling, a bunkie (sleeping cabin), two sheds, a small shipping container, a small shed containing a pump for firefighting at the water, and two as-built gazebos on top of two existing elevated decks which are the subject of the Application.

5The Tribunal did not receive any status requests in advance of this Hearing.

REQUIRED RELIEF

6The first gazebo, located near the shoreline, requires relief from the minimum setback from the shoreline, where its nearest point is located 0.2 m from the high-water mark. The second gazebo is in compliance.

7Both gazebos require relief from the maximum floor area. The first gazebo has an area of 88.8 square metres (“m²”), 91.2 m² including steps. The second gazebo has an area of 34.8 m², 40 m² including steps.

8The two gazebos require permissions to increase the maximum height to 6.35 m for the shoreline gazebo, and 6.25 m for the second gazebo.

HEARING

9Three expert witnesses appeared at the Hearing.

10Andrew Trevers and Stefan Szczerbak appeared on the behalf of the Appellants and Chris Jones was representing the Municipality.

11Mr. Trevers, a Professional Engineer, was qualified by the Tribunal to tender evidence in the area of storm water management. Messrs. Szczerbak and Jones, who are both Members of the Canadian Institute of Planners, and Registered Professional Planners, were qualified by the Tribunal to provide expert opinion evidence in the area of Land Use Planning.

STORMWATER IMPACT ANALYSIS

12Mr. Trevers provided that he was retained to review whether the construction of two gazebos would result in negative stormwater impacts to the lake.

13Mr. Trevers proffered that a stormwater review was required in relation to s. 2.3.7.1 and s. 2.3.7.2 of the MOP because the lake has been identified as an "at capacity cold water lake trout lake" in order to mitigate adverse impacts of any development on the lake. He explained that s. 2.3.7.2 of the MOP, deals with, and prohibits increased nitrate and phosphorus loading from in-ground sewage (septic) systems and impacted stormwater.

14Mr. Trevers explained that due to a gazebo being an accessory structure, it will not result in any alterations to the occupancy load of the site, or have any impact on the in-ground septic system. Thus, there will be no increased nutrient loading to the lake from the existing septic system as a result of the development. It is Mr. Trevers’ opinion that the construction of two gazebos does not contravene s. 2.3.7.1 and 2.3.7.2 of the MOP.

15Further, Mr. Trevers stated that he assessed the stormwater quality and quantity impact and concluded that there will be no adverse impact to the lake from a stormwater quantity perspective. He testified that the stormwater runoff from the rooves of two gazebos will be clean and pollutant free. Through the implementation of roof leaders, the water from the gazebo roofs could be directed to the area inland where it could infiltrate or evaporate. In the alternative, the same water could be directed to the lake itself.

16In summary, in Mr. Trevers professional opinion, no adverse impact to water quality is expected to occur, and from a stormwater management perspective, there will be no adverse impact to the lake resulting from the construction of two gazebos.

17The Municipality did not tender any evidence to contradict the findings of Mr. Trevers.

PLANNING EVIDENCE

Issue 1 – Does the Application Meet the Provincial Policy Statement (2024) (“PPS”) and Comply with the Act?

18Both, Messrs. Szczerbak and Jones, agreed that the Application is consistent with s. 2 of the Act and conforms with the PPS.

Issue 2 – Does the Application Conform to the COP?

19Mr. Jones provided that the ZBA for construction of two gazebos, does not conform to s. 5.6.3.1 and 5.6.3.2 of the COP. In his view, the structures are located in the shoreline setback and are not compatible with the rural landscape and do not strike a balance between a natural shoreline and the built form.

20In his evidence, Mr. Szczerbak proffered that the first gazebo was built over a former shoreline deck and is located within an open area of the shoreline that is comprised of exposed bedrock. The smaller gazebo is located behind the first, and is also within the area void of any vegetation. He pointed out that rather than build gazebos further inland, the current location was chosen to avoid any tree removal and to minimize its impact on vegetation.

Issue 3 – Does the Application Conform to the MOP?

21Mr. Jones pointed out that boathouses are prohibited in the Municipality. While he acknowledged that gazebos are not a boathouse, he opined that the location of those buildings and its impact on the shoreline is very similar to that of a boathouse.

22Mr. Jones added that s. 3.3.1.4 of the MOP requires the natural state of the shoreline to be maintained to the greatest extent possible. In his opinion, the location, size and height of the development does not maintain the natural state of the shoreline. He further stated that the gazebos greatly exceed the maximum standard of the ZBL and create an imposing-built form on the natural quality and character of the shoreline. Thus, in his opinion, the proposed ZBA does not conform with the MOP.

23Mr. Szczerbak testified that s. 3.3.13 c) viii) of the MOP requires that the visual impact of accessory structures on adjacent lands natural quality of the shoreline is to be limited. He pointed out that gazebos are of open design that allow blending into the natural environment by providing a view “through” them and cause no adverse visual impacts.

24Under cross-examination, Messrs. Szczerbak and Jones confirmed that no visual analysis was necessary, as the structures already exist.

25In summary, Mr. Szczerbak opined that gazebos are permitted in the shoreline; with key Official Plan policies being met, variations to zoning standards are permitted. The location of the gazebos was chosen to avoid tree removal and any disturbance to the natural features. He relies on the evidence of Mr. Trevers when dealing with stormwater management. In his viva voce evidence, Mr. Szczerbak testified that the ZBL has no provisions for structures on slopes and that visual impacts could be greater by moving structures further inland, which would lead to the removal of vegetation. In addition, Mr. Szczerbak brought to the Tribunal’s attention that the existing gazebo locations are keeping the structures below the tree line, thus complying with height regulations.

26Further, Mr. Szczerbak stated that relief from s. 3.1 of the ZBL, will maintain its intent, as gazebos are permitted accessory structures within the LSR Zone on waterfront properties, and the gazebos do not exceed the five percent lot coverage.

27In conclusion, Mr. Jones opined that, in his view, the constructed gazebos are too large, imposing and are not compatible with the natural shoreline. Further, in his opinion, there are no structures along the lake that are comparable in size and height to the gazebos.

28Mr. Szczerbak’s opinion contradicts Mr. Jones’ opinion. Mr. Szczerbak’s evidence was that the gazebos are compatible with the character of the area and surrounding properties along the lake, and do not adversely impact the existing development as they are within lot coverage restrictions and shoreline development restrictions.

ANALYSIS AND FINDINGS

29The Municipality did not tender any evidence to contradict the stormwater management evidence provided by Mr. Trevers. The Municipality did not provide any evidence to the Tribunal to indicate unacceptable adverse impacts arising from the construction of two gazebos.

30The Tribunal preferers Mr. Szczerbak’s evidence. Throughout his analysis, he clearly demonstrated that the gazebos could co-exist in harmony with the surrounding settings. The gazebos are of an open design that allows for a view thru to what is behind, and their location was chosen to minimize the impact on natural vegetation and to avoid any tree removal.

ORDER

31THE TRIBUNAL ORDERS THAT the appeal against By-law No. 2005-29 of the Municipality of Highlands East is allowed in part and the Tribunal directs the municipality to amend By-law No. 2005-29 as set out in Attachment 1 to this Order.

“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.