Pogue v. Shuniah (Township), 2025 CanLII 46487

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 14, 2025

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: April 16, 2025 by Video Hearing

APPEARANCES:

Parties

Counsel/Representative*

Dan Pogue

Self-represented*

Municipality of Shuniah

Did not appear

Beverley Dolcetti

Anthony Russo

DECISION DELIVERED BY GREGORY J. INGRAM AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal concerns an appeal filed by Dan Pogue (“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 conversion of an existing boathouse used for storage to also incorporate a sauna (“the Proposal”) at the property known municipally as 1965 Crystal Beach Avenue (“Property”). The Applicant started the conversion of the existing boathouse without a building permit and then halted to seek rezoning approval. The requested amendment is site specific.

2The Property has approximately 52 metres (“m”) of frontage and a lot area of approximately 1035 square metres. It is designated as R1-Residential - High Density in the Official Plan and zoned Section 10, Shoreline Residential Zone under Zoning By-law 2038-00 (“ZBL”).

3The Application for the ZBA was received by the Municipality in June 2022, and a public meeting was held in November 2023. The Minutes of the Public Meeting reflect concerns expressed by six residents related to impact on sight lines, noise, safety, the environment, ongoing maintenance, and concerns pertaining to building permits.

4Administrative Reports were provided to the Council for the Municipality (“Council”) dated December 2023, February 2024, and March 2024, which in summary provided a description of the Property including photos, a summary of previous decisions of Council with respect to zoning amendment requests seeking similar relief, analysis of concerns and objections raised during the public meeting, and comments regarding the applicability of various pertinent sections from provincial and municipal planning policies.

5The Municipality’s Clerk, Kerry Bellamy, recommended the Council approve the ZBA:

Recommendation: That Council hereby directs the Clerk to bring forward a by-law for the Zoning By-law Amendment to allow a sauna in front of the main dwelling.

6Clerk Bellamy referred to section 4.6.2 of the ZBL which states:

locations 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 a main building

and then provided a rationale for recommending approval of the ZBA request.

7Clerk Bellamy’s recommendation is based on the following:

• the accessory building (boathouse) is an existing use, and the proposed conversion will be on the same building footprint and will have limited impact on neighbour views.

• the Council has allowed saunas to be built in front of main dwellings (11 instances approx.) at various locations on a site-by-site basis and has treated each situation on its own merits while considering the impact on the views of adjacent properties.

• Conforms with the Official Plan.

• Lakehead Region Conservation Authority (“LRCA”) has no objection to the proposal and their approval of a building permit is required.

• Concerns raised by neighbours related to noise and the repair and maintenance of the property are not planning matters.

8On April 19, 2024, the Municipality issued a Notice of Refusal of the ZBA application indicating that the Council had “concern for potential contaminants to Lake Superior” and due to the Applicant’s decision to “start construction without a permit”.

9The Applicant brought an appeal to the Tribunal on May 6, 2024. Two Case Management Conferences (“CMC”) were held in preparation for these proceedings where the Tribunal was informed that the Municipality would not be participating in the appeal and Beverley Dolcetti was granted Party Status.

LEGISLATIVE FRAMEWORK

10When considering appeals filed pursuant to s. 34(11) of the Act, the Tribunal must have regard to the matters of provincial interest as set out in s. 2 of the Act, and to the decision of the Municipality including the information considered in making the decision, as required by s. 2.1(1) of the Act.

11Further, s. 3(5) of the Act requires decisions of the Tribunal affecting planning matters to be consistent with the Provincial Planning Statement, 2024 (“PPS”).

12The Tribunal must also be satisfied that the ZBA conforms with the Municipality of Shuniah Official Plan (“OP”) and that it represents good land use planning and is in the public interest.

HEARING

13The Tribunal is satisfied that the Affidavit of Service submitted provides satisfactory evidence that proper notice of this Hearing was provided. The Affidavit was notarized on March 26, 2025, by Kerry Bellamy, Clerk of the Municipality and marked as Exhibit 1.

14The materials before the Tribunal were the Complete Appeal Record (“Appeal Record”) provided by the Municipality in addition to the evidence provided through witness testimony. The Appeal Record includes documents related to the appeal process, administrative reports, and a planning report commissioned by the Municipality from Registered Professional Planner, Shannon Dodd-Smith pertaining to the proposed relief sought.

15In support of this application, the Appellant referred the Tribunal to the Appeal Record and specifically the administrative reports provided to the Council, the uncontested planning report of Planner Dodd-Smith, and to a letter from the LRCA indicating that they have no objection to the proposed application.

16The Appellant contends that the request is minor in nature, that the administrative reports confirm that many other properties have received similar relief through site specific ZBA approvals, that the Proposal will have no impact on the natural environment as indicated by a letter from the LRCA and his request is supported by Planner Dodd-Smith.

17Anthony Russo, Counsel for Beverley Dolcetti, submitted that the ZBA should be refused given that it is not consistent with Section 2 of the Act and in particular Section 2(a) (the protection of ecological systems, including natural areas, features, and functions), Section 2(h) (orderly development of safe and healthy communities), Section 2(p) (the appropriate location of growth and development), and Section 2(q) (Resolution of planning conflicts involving public and private interests). Counsel also argued that the application is not consistent with the PPS with respect to sections related to compatibility and the protection of natural features as they were not specifically addressed in the reports provided to Council.

18Counsel contends that the proposed conversion does not conform with the OP and referred the Tribunal to Section 3.20 of the OP, which provides direction related to compatible development, accessory uses, and adverse effects. It is the Counsel’s submission that approving the ZBA would result in significant visual impact on neighbouring properties, the environmentally sensitive shoreline, and is not compatible with the general neighbourhood.

Municipal Clerk

19The Counsel subpoenaed the Clerk of the Municipality, Kerry Bellamy, to appear as a witness. The Tribunal, with the consent of the Applicant and given Clerk Bellamy’s previous involvement with this file, allowed the Clerk to provide sworn testimony related to the Clerk’s administrative management and report preparation pertaining to the planning and zoning processes of the Municipality.

20Clerk Bellamy provided an overview of the Clerk role in managing planning related applications and indicated that for this application, the Council was provided with relevant sections of provincial and local planning documents along with previous sauna related applications approved by the municipality. The Clerk said that “applications are not reviewed based on their likelihood of success”, but to confirm completion.

21Clerk Bellamy provided the Council with a memo in March 2024, after visiting the site, that included many pictures from various angles of the existing boathouse and its location on the Property.

22Counsel representing Beverley Dolcetti asked Clerk Bellamy to comment on the application of various provincial and regional planning policies in relation to the ZBA and was reminded by the Tribunal that Clerk Bellamy is not qualified to provide opinion evidence in land use planning.

23Clerk Bellamy confirmed that the Clerk role is to review the information, identify potential issues and suggest any mitigation measures that might assist the Council in making a decision about an application. The Clerk indicated that it is now common practice of the Municipality to hire a professional planner, as the Clerk role has undergone a redefinition.

Planning Report and Recommendation of Shannon Dodd-Smith

24Planner Dodd-Smith authored a comprehensive Planning Report and Recommendation (“Planning Report”) to the Council that evaluated the merits of the ZBA application against the applicable provincial legislation and local planning policies. The Planning Report indicates that given the age of the boathouse, raising it by 1m while still maintaining the same footprint “is not a significant change” from a land use planning perspective.

25The Planning Report addressed concerns expressed at the public meeting related to views and water quality. The Planning Report indicates that neighbours will still have a clear view to the waterfront and the LRCA has no concerns with the ZBA application. Planner Dodd-Smith opined that the other concerns are either not planning related matters or can be addressed through other municipal policies and/or procedures.

26Regarding the application of the PPS and s. 2 of the Act, Dodd-Smith indicates in the Planning Report that they are “too general to apply to this small scale, site-specific situation” and that the ZBA is consistent with the PPS and has regard for s. 2 of the Act. The Planning Report indicates that the ZBA if approved, upholds the general intent, and conforms with the OP.

27Regarding the matters of provincial interest referred to in paragraph [17] above, the Planning Report indicates that “clearance letters were received from the LRCA, Fire Department and Ministry of Mines” indicating they had no concerns with the ZBA, that the proposed renovation was evaluated based on its own merits and that it is compliant with the general intent of the ZBL which permits accessory buildings, saunas, and recognizes the existing legal, non-conforming use with respect to the location of the accessory building. Planner Dodd-Smith also noted that the proposed redevelopment will be subject to building permit requirements which may address other concerns expressed about the Proposal.

28The Planning Report included the following additional analysis regarding the ZBA application:

• There is no set definition or criteria for evaluating what ‘a view’ is and in considering this scenario, neighbours will still have a clear view directly to the waterfront and partial views in other directions. There are also other existing partial obstructions such as a fence and trees.

• The change in size is not significant enough to trigger a study or to be deemed incompatible with respect to OP s. 3.13.2 and s. 3.20. Limiting the height and using the existing footprint of the boathouse mitigates the impact of mass, scale, or visual impacts with respect to compatibility.

• The increase in height is well below the 6m allowance for accessory buildings in the Zoning By-law.

29Planner Dodd-Smith recommends that the Council approve the ZBA to permit an accessory building for use as a sauna and indoor storage using the existing footprint of the legal non-conforming boathouse. The Planner also recommends that the height not exceed that which is currently constructed (2.05m from grade at the back and 2.2m from grade at the front, minus 0.6m from the lower portion extending toward the water) and that the Council consider a standardized approach to locating saunas and gazebos along shorelines.

FINDINGS

30The Tribunal, having considered the submissions by the Parties, reviewed reports written by the Municipal Clerk and the comprehensive planning report of Planner Dodd-Smith, is satisfied that the relief sought is consistent with the PPS, has regard for matters of provincial interest set out in s. 2 of the Act, and conforms with the OP.

31The Tribunal is persuaded by the Planning Report authored by Planner Dodd-Smith, as summarized above and in particular concurs that the change requested is minor, the proposed used is a permitted use in the ZBL, there is a lack of measurable impact on neighbouring properties, and the LRCA as no concerns with the application which addresses the environmental concerns expressed by some citizens.

32While the Tribunal acknowledges the concerns related to overall Property maintenance expressed by neighbouring Property owners, these are not planning matters and can be addressed through other municipal policies and regulations.

ORDER

33THE TRIBUNAL ORDERS THAT the appeal is allowed in part and By-law 2038-00 of the Municipality of Shuniah is amended as set out in Attachment 1 to this Order.

34The Tribunal authorizes the Municipal Clerk of the Municipality of Shuniah to assign a number to this by-law for record keeping purposes.

“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.

ATTACHMENT 1

BY-LAW NO. ________ _

Being a By-law to amend By-law No. 2038-00 site specific as it applies to; Plan M1 00 Lot 20 Part Road Allowance; Reference Plan 55R13808 Part 1 to allow for a single sauna building with indoor storage to be located in front of the main dwelling .

1. That By-law No. 2038-00 is hereby amended as follows:

a) For the lands and premises described as Plan M1 00 Lot 20, Part Road Allowance; Reference Plan 55R13808 Part 1, Municipality of Shuniah, known as 1965 Crystal Beach Avenue, the following shall apply:

"Notwithstanding Section 4.6.2 a) of By-law No. 2038-00 that the height of

the one and only accessory sauna building with storage be limited to that

which existed on March 5, 2024 measuring 2.05m at the back and 2.2m at

the front of the rear section and 0.6m lower for the front section per Schedule 'A' attached hereto.

b) For the lands and premises described as Plan M100 Lot 20, Part Road Allowance; Reference Plan 55R13808 Part 1, Municipality of Shuniah, known as 1965 Crystal Beach Avenue, the following shall apply:

"Notwithstanding Section 4.6.2 b) of By-law No. 2038-00 that the location of

one only accessory sauna building with sauna is hereby permitted to be

located in front of the main building entirely within the footprint of the existing

legal non-conforming boathouse as it existed on March 5, 2024; as outlined

in Schedule 'A' attached hereto.

2. That Schedule 'A' be an integral part of this by-law.

3. Schedule "A" of By-law No. 2038-00 - List of Amendments is herein amended by

the addition of the following new text at the end of the current text;

"By-law Number amending By-law No. 2038-00 to allow a sauna

in front of main dwelling of Plan M1 00 Lot 20, Part Road Allowance; Reference

Plan 55R13808 Part 1, Township of McGregor, Municipality of Shuniah, in the

District of Thunder Bay".

4. Where there is a conflict between the provisions of the above-mentioned Sections

and other Sections or provisions of By-law No. 2038-00, the provisions of this new by-law shall prevail.

5. This by-law conforms to the Municipality of Shuniah's Official Plan.

6. This by-law shall come into force and take effect upon the final passing hereof, subject to the provisions of the Planning Act, or, where applicable, subject to the approval of the Ontario Land Tribunal pursuant to the provisions of the said Act.