Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 28, 2026 CASE NO(S).: OLT-25-000559
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Michael Shook Subject: Minor Variance Description: MV to permit the establishment of an oversized viewing deck Reference Number: APPN-2024-0040 Property Address: 1380 Mountain View Estates Lane Municipality/UT: Central Frontenac/Frontenac OLT Case No.: OLT-25-000559 OLT Lead Case No.: OLT-25-000559 OLT Case Name: Shook v. Central Frontenac (Township)
Heard: March 23 and 24, 2026 by Video Hearing
APPEARANCES:
Parties Michael Shook (“Applicant/Appellant”) Township of Central Frontenac (“Township”)
Counsel Joe Habr Spencer Putnam
DECISION DELIVERED BY N. RODGERS AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION AND BACKGROUND
1The matter before the Ontario Land Tribunal (“Tribunal”) is an appeal pursuant to Section (“s.”) 45 (12) of the Planning Act, R.S.O. 1990, c. P.13, as amended, (“Act”) arising from the refusal by the Township of Central Frontenac (“Township”) Committee of Adjustment (“COA”) of a Minor Variance application (“MVA”) for a property known municipally as 1380 Mountain View Estates Lane (“Subject Lands”).
2The relief sought under the Township’s Zoning By-law 2011-52 (“ZBL”) is to:
a. vary Section 4.1.1.22 of the Township ZBL which permits a maximum footprint of 16.7 square metres. (“sq. m.”) for a viewing deck whereas the Applicant is proposing a viewing deck with a maximum footprint of 44.6 sq. m.;
b. vary Section 4.26.5(c) of the Township ZBL which requires a minimum setback from the high-water mark of a waterbody and the exterior boundary of a wetland for a viewing deck or gazebo of 15 metres (“m.”) whereas the Applicant is proposing a minimum waterbody setback of 0 m. to the high-water mark of Long Lake for a viewing deck;
c. vary Section 4.26.5(a) of the Township ZBL requires a minimum setback from the high-water mark of a waterbody and the exterior boundary of a wetland for an accessory building or structure of 30 m. whereas the Applicant is proposing a minimum waterbody setback of 7.4 m. to the high-water mark of Long Lake for a storage shed; and,
d. vary Section 5.6.2 of the Township ZBL which requires a minimum setback from the high-water mark of a waterbody and the exterior boundary of a wetland for an accessory structure of 30 m. whereas the Applicant is proposing a minimum waterbody setback of 7.4 m. to the high-water mark of Long Lake for a storage shed.
3The proposed viewing deck and gazebo (“Structures”) and storage shed are within proximity to the high-water mark of Long Lake. The Subject Lands are within the Rideau Valley Conservation Authority (“RVCA”) watershed and subject to their legislative mandate. This is relevant, as the Tribunal heard evidence from an expert witness employed with the RVCA concerning the Structures’ ecological impacts on the Long Lake shoreline.
SITE AND AREA CONTEXT
4The Subject Lands are approximately 0.82 hectares with approximately 49.5 m. frontage on Long Lake and are characterized by a steep slope from the private access road (Mountain View Estates Lane) to the shoreline. The Subject Lands have been improved with a single residential cottage dwelling, a sleep cabin, a well and an on-site sewage disposal system.
5Long Lake is an inland freshwater lake characterized by steep slopes and natural vegetation along its shoreline. There are approximately 151 properties with shoreline frontage.
THE HEARING
6For the reasons that follow and based on the compelling opinion evidence of the Township’s witnesses, a review of the County and Township planning instruments, the Township staff reports related to the MVA, the Applicant’s evidence, and the Parties’ closing written submissions, the Tribunal concludes that the Applicant has not met the four-part test under s. 45 (1) of the Act, and therefore dismisses the appeal.
7Extensive viva voce evidence was presented over the course of the proceeding. The Tribunal qualified five expert witnesses to give opinion evidence and heard from the Applicant, who provided documentary evidence to assist the Tribunal on matters of background, context and the reasons of need for the Structures.
8The following were qualified by the Tribunal in their respective fields of expertise:
a. On behalf of the Applicant: i. Dale Kristensen, MSc Ecology – Ecology ii. Anthony Hommik, MCIP, RPP – Land Use Planner;
b. On behalf of the Township: i. Eric Lalande, MCIP, RPP – Land Use Planner, (under Summons) ii. Mark Cece - Ecologist iii. Jennie Kapusta, MCIP, RPP – Land Use Planner
9While nine exhibits (“Exhibits”) were tendered, the following are of consequence to the deliberations of the Hearing: Exhibit 3 – Applicant Document Book; Exhibit 4 –Township Document Book; Exhibit 5 – Photographs of Adjacent Shoreline Properties (September 2025); Exhibit 6 – Aerial Photograph of Adjacent Properties on Long Lake (Source: County of Frontenac GIS Data Base); Exhibit 7 – Letter of Opinion, Dale Kristensen, MSc Ecology (May 28, 2025); and, Exhibit 8 – Opinion Letter, Anthony Hommik, MCIP, RPP (June 20, 2025).
CHRONOLOGY OF EVENTS
10The construction of the Structures was undertaken during the fall of 2024 and into the winter of 2025 without the Applicant having obtained any planning and regulatory approvals. A by-law enforcement complaint led to an Order to Comply issued by the Township on November 19, 2024.
11The Applicant submitted an MVA to the Township on November 21, 2024. The MVA was revised multiple times (February 25, 2025, March 17, 2025, and April 17, 2025), with a final revision dated June 20, 2025. The effect of these revisions was to confirm the actual size of the of Structures during and post-construction.
12On January 28, 2025, the Township issued a Stop Work Order after Township Planning staff conducted a site visit and observed that construction continued on the Structures notwithstanding the Order to Comply being issued.
13During a February 18, 20251, meeting, the RVCA offered the Applicant to consider several options to secure RVCA support for the Structures including:
a. remove the viewing deck entirely; or, b. move the viewing deck in its entirety back beyond the 15 m. setback mark from the shoreline or; c. reduce the size of the viewing deck; or; d. apply to the RVCA Executive Committee for a permit under the Conservation Authorities Act (“CAA”) for the viewing deck as built.
14On February 25, 2025, during a virtual meeting with the County and Township, the Applicant stated that he was unwilling to reduce the area of the viewing deck to a size that would be supported by the RVCA, citing in part there would be more shoreline disturbance and environmental impact by removing the footings that had already been installed2. The RVCA stated that it would delay proceeding with any actions under its legislative mandate until the resolution of the MVA process had been completed.
15The MVA was initially heard by the Township COA on March 25, 2025. Township Planning Staff recommended denying the MVA. The MVA was deferred to allow the Applicant additional time to work with the RVCA towards a potential resolution.
16On July 8, 2025, the COA, held a public meeting to decide the modified MVA to reflect the “as built” dimensions of the Structures. Township Staff recommend refusal of the MVA, and the COA adopted the staff recommendation. No members of the public attended or opposed the MVA. The Applicant and Mr. Hommik spoke in support of the MVA.
17The Applicant has not yet submitted either a building permit application to the Township nor a development permit application to the RVCA for the as-built Structures per the Witness Statement of Ms. Kapusta.34
LAND USE PLANNING FRAMEWORK APPLICABLE TO SUBJECT LANDS
18The Subject Lands are governed by the County of Frontenac OP (“County OP”) and the Township’s OP. The County OP is a policy document to manage and protect the natural environment by providing direction and influence on growth and development patterns.
19Principally, under the County OP, the polices in Section 3.3.3.4 (Special Policies – Waterfront Areas) apply to the Subject Lands. The Waterfront Areas policies are “intended to improve and protect waterfront areas as a significant cultural, recreational, economic, and natural environmental resource and to maintain or enhance the quality of land areas adjacent to the shore. Further, the Township OP includes criteria for determining an appropriate setback where an existing lot of record cannot achieve the minimum setback of 30 m”.5
20The Township OP recognizes the unique social and environmental conditions that require varied approaches to land development and accordingly establishes objectives to guide development. Sections 2.3.8 and 2.3.9, are worthy of note concerning impacts of the proposed Structures on the ecology of the Long Lake shoreline.
21The property is designated Rural Area and located within the identified Waterfront Area in the Township’s OP. The Waterfront Area policies stress the importance of maintaining the well-being of water-bodies (“waterbodies”) to ensure the protection of the unique character of the Township’s natural and environmental resources. Section 4.8 offers additional guidance when development is contemplated provided that any proposal is consistent with policies that, amongst other objectives, maintain water quality.
22The Subject Lands are zoned Residential Waterfront (“RW”) in the ZBL. The RW Zone permits single detached dwellings, and a variety of low-impact accessory uses, subject to specific zoning standards.
LEGISLATIVE FRAMEWORK
23When making its Decision, the Tribunal must have regard to matters of provincial interest per s. 2 of the Act and, as well, be satisfied that the MV is consistent with the PPS, as required under s. 3(5)(a) of the Act.
Section 45 - Minor Variance
24An appeal under s. 45 (12) of the Act is a hearing de novo. The Tribunal must have regard for the decision of the COA but is not bound by its decision. The onus of the Applicant is to demonstrate that the four-part test set out in s. 45(1) have been met, namely:
i. Does it maintain the general intent and purpose of the OP? ii. Does it maintain the general intent and purpose of the ZBL? iii. Is minor in nature? iv. Is it desirable for the appropriate development or use of the land, building or structure?
SUMMARY EVIDENCE OF THE PARTIES
25Mr. Shook, the Applicant, was a witness in the Hearing. He was not qualified as an expert as he did not meet the duty of an expert. His testimony was provided to the Tribunal to offer factual information about the history and background of the MVA, the context of the Subject Lands relative to adjacent properties and the Long Lake shoreline, the need for the viewing deck and other structures on the Subject Lands and his interactions with County, Township and RVCA staff and his retained Witnesses.
26The Applicant arranged an on-site meeting with RVCA staff member Eric Kohlsmith in June 2023 to discuss a proposal to erect a retaining wall to provide a levelled portion of the lot near the shoreline to ensure access for a family member who requires a wheelchair and has “accessibility needs”. Eric Kohlsmith is a septic inspector with the RVCA. He was not a witness in this hearing.
27The Applicant’s hearsay evidence was that Mr. Kohlsmith suggested a viewing deck rather than a retaining wall. There was no evidence filed or stated by the Applicant as to whether Mr. Kohlsmith also provided information as to why a viewing deck rather than a retaining wall was optimal, nor any consideration of potential options for the siting of such works nor what planning and permitting approvals would be required.
28The Applicant stated that no alteration to the slope below the viewing platform was undertaken, although he retained a professional engineer (Morey Associates Ltd.) to assess slope condition after the Structures were substantially complete.
29The Applicant admitted to the removal of approximately seven trees that were near the shoreline on the Subject Lands. A series of photographs (Exhibit 2, Tabs 40-45) were reviewed at some length to demonstrate the extent and the location of tree/vegetation removal.
30The Applicant, responding to the fact that some trees had been removed, referred the Tribunal to Exhibit 2, Tab 4, citing that he purchased and planted several 1-to 2-year-old trees and shrubs, although, the location of these plantings on the Subject Lands was not tendered in an Exhibit.
31On the matter of shoreline vegetation, the Township entered as evidence Exhibit 5, a series of photographs prepared by Township staff. This Exhibit illustrates comparable lots adjacent to the Applicant’s and the developed portions and coverage of shoreline vegetation. In all cases, the Applicant agreed that these lots are comparable for the purposes of examining the built and natural state of a portion of the Long Lake shoreline.
Issue One: Accessibility
32The Applicant’s reasons for this appeal are stated in the Notice of Appeal (“NOA”)6. The NOA cites both section 2 (h.1) of the PPS and the Accessibility for Ontarians with Disabilities Act (“AODA”), thus, the Tribunal is compelled to address it.
33References to the AODA and the Applicant’s accessibility interests are cited on a few occasions within Ms. Kapusta’s Witness Statement7, in which she states (July 2025 staff report): “It was unclear through the application why the extra area for the viewing platform is required for accessibility purposes.”
34Ms. Kapusta took into consideration the Applicant’s family members’ accessibility needs and Mr. Lalande talked about concessions the RVCA was willing to make8 with respect to its permitting requirements, but the Applicant declined the RVCA’s offers as noted in paragraph [13 and 14] herein.
35The Applicant and his Witnesses did not proffer any compelling evidence as to why the viewing deck needed to be over twice the size of the as-of-right ZBL permissions to accommodate the accessibility and mobility issues of the family member. Mr. Hommik furthermore opined in his evaluation of s. 2 of the Act that accessibility (s. 2 (h.1) was not relevant to the planning analysis.
36There appears to be no nexus between the MVA and the accessibility needs of the Applicant’s family member. The Applicant confirmed under cross-examination that neither the size nor location of the viewing deck are connected to providing access to the shoreline nor necessary for the turning radii of mobility devices.
37The Township adopts this assertion and in their written Closing Submissions filed case law helpful to the Tribunal. In Pischkitl v Severn (Township), 2018 CanLII 255, the Ontario Municipal Board found that denying requested minor variances for an oversized dock that was partially constructed and subject to a municipal Stop Work Order would not create an access barrier for disabled individuals. Paragraph 16 is informative:
From all of this, the Board finds that […] if the variances were denied, the impact would be that less people would be able to congregate on the dock -- which is not an accessibility issue at all.
Issue Two: Ecological Impact and Shoreline Protection
38The Tribunal heard from two expert witnesses in the field of ecology. The testimony of Mr. Kristensen and Mr. Cece afforded the Tribunal with perspectives on whether or not the Structures as built pose a risk to the environmental and ecological health to the Subject Lands and at a larger scale, the Long Lake ecosystem.
39Mr. Kristensen’s evidence and his Exhibit 7 Letter of Opinion (“LO”) acknowledged the limited scope of opinion at the request of the Applicant post-construction, while Mr. Cece (Exhibit 4, Tab 2) was retained by the Township to undertake a peer review of Mr. Kristensen’s LO and related review of materials associated with the MV in an as-built capacity.
40Mr. Kristensen’s LO was an assessment of the Subject Lands (post construction May 2025) and the areas thereto that have been impacted by the Structures and identified concerns predominately with respect to erosion and sediment affecting the shoreline and potentially offshore aquatic habitat.
41Mr. Kristensen’s LO offered recommended remediation measures to mitigate erosion arising from rainfall and the flow of water from the Structures to ensure slope stability and reduce sediments entering the shoreline including: install geotextile runner under the entire dripline; install riprap stone along the edge of the shoreline; incorporate vegetative plantings into the riprap barrier; and installation of an eavestrough system for the boathouse.
42Both Mr. Cece and Mr. Kristensen’s evidence stated that some degree of erosion was witnessed around the Structures. However, their interpretation of the intensity of the erosion is debated, with Mr. Kristensen stating “…but there is no evidence of significant erosion”9 whereas Mr. Cece’s assessment is, “Given that erosive forces occur over time, and that the construction is relatively recent, it may be premature to suggest that evidence of significant erosion is not present.”10
43Under cross-examination, Mr. Cece was challenged with whether or not varying sizes of a viewing deck create ecological impacts. He opined that, regardless of the size of the viewing deck, ultimately its setback from the shoreline would be a preferred mitigation strategy in addition to avoidance of sensitive features.
44Mr. Cece’s opinion was formed based on documenting erosion patterns arising from the constructed Structures, a literature review of employing buffers as the primary mitigation strategy to maintain ecological integrity, a review of the MVA and a policy review of the County and Township OP and ZBL.
45Mr. Cece opined that ecology looks at a site within a landscape and thus his evidentiary methodology considered that. While the shoreline has already been compromised in his opinion, he purports a more defensive strategy is required. His expert opinion emphasizes the importance of preserving buffers and setbacks to ensure the ecological integrity of the Long Lake ecosystem.
46Buffers, as Mr. Cece opined, have a variety of functions, including diffusing the impacts of shoreline development such as nitrogen and phosphorus pollution on water quality that may endanger aquatic habitats and species (vegetation and fish), the interrupted movement of wildlife (small insects, mammals, and amphibians) or the introduction of evasive plant species.
47Mr. Cece’s Witness Statement (Exhibit 4, Tab 2) states that the County OP Section 3.3.3.4.3 stated objectives are to retain tree cover and vegetation along the shoreline to maintain environmental integrity, while the principles in Section 4.8.3 of the Township OP include the integrity of the natural environment, shorelines and water quality will be protected and that natural heritage and habitat will be preserved.
48The ZBL policies in Section 4.2.7 promote a 30 m. setback of the high-water mark of Long Lake shall be preserved as a natural vegetation shoreline buffer and Section 4.26.5 (c) speaks to a minimum 15 m. setback from the high-water mark for a viewing deck or gazebo.
49Both experts’ approach to managing ecological risk differ and hence their opinions, yet neither through their evidence could rule out that erosion can cause degrees of deleterious ecological impacts to natural and aquatic habitats over time.
50The Tribunal is persuaded based on the evidence of Mr. Cece that a precautionary and proactive approach to ecological risk management (buffers and setbacks) is the foundation of the Township’s land use planning framework. Such methodology balances the needs of protecting the Township’s lakes and shoreline with allowing property owners use and enjoyment in a responsible and sustainable manner.
Issue Three: RVCA Interest in Protecting Public Health and Safety
51The Township called Mr. Eric Lalande under summons. Mr. Lalande is a registered professional planner and Senior Planner with the RVCA. The RVCA serves as a commenting agency for reviewing planning applications under the Act and provides recommendations to the Township in reviewing development applications.
52The RVCA was first made aware of Applicant’s MVA in November 2024 because the proposal for the Structures was unable to meet the required waterbody setback. Since the Structures were already constructed, the matter was also potentially a violation under the legislative mandate of the RVCA.
53The RVCA scope of review in municipal planning applications is limited to Chapter 5 of the PPS (Protecting Public Health and Safety and in particular Section 5.2, Natural Hazards). Section 5.2.2 directs development generally outside of hazardous lands adjacent to river, stream and small inland lake systems which are impacted by flooding hazards and/or erosion hazards (emphasis herein added), which applies to the Subject Lands.
54Application of the policy direction in Section 5.2.2 in the Township’s OP and ZBL is through the inclusion of setbacks to address risks. The RVCA review of the MVA concentrated on the potential for erosion and this focus is consistent with the evidence of Mr. Kristensen and Mr. Cece.
55Section 5.2.2 also directs development to areas outside of potential flooding and related hazards. Mr. Lalande indicated that the RVCA has not undertaken any floodplain mapping on Long Lake and that Section 5.2.7 is not applicable as the RVCA does not employ a two-zone concept approach. Mr. Lalande opined that, since Section 5.2.7 and 5.2.8 of the PPS are not applicable, maintaining public health and safety must be amplified through the application of 5.2.2 to the MV policy test.
56To emphasize the RVCA and Township’s position on several levels, Mr. Kristensen LO states “[…] it is also my responsibility as environmental consultant to stress that the authority to grant a work permit approval for this shoreline installation ultimately resides with the RVCA and the municipality. In effect, it is up to them to determine whether the mitigation measures and recommendations provided in this letter are appropriate and acceptable, or whether other actions are necessary to meet the terms of the permit (including redesign and/or removal of features).”11 (Emphasis added herein.)
Issue Four: The Character of Shoreline Development
57Both Parties had differing opinions and evidence regarding the character of shoreline development on Long Lake. To demonstrate their respective positions extensive photographic evidence was tabled, namely:
a. Exhibit 4 Tab 3 (pages 106-123 – Properties included in Mr. Hommik’s Planning Justification Letter (June 20, 2025), prepared by Township staff). b. Exhibit 5 (Developed properties with screening in proximity to 1380 Mountain View Estates Lane prepared by Township staff).
58The opinion of Mr. Hommik is that the character of Long Lake comprises of waterfront properties that have developed similar to what exists (as built) on the Subject Lands, whereby natural vegetation is sparse and has been removed to allow for the construction of viewing decks and other waterfront structures. Mr. Hommik under cross-examination stated that the pictures in his June 20, 2025, Opinion Letter were supplied by the Applicant.
59Alternatively, Ms. Kapusta’s evidence stated that the 13 photographs (Exhibit 4, Tab 3 D) were taken during a September 2025 boat tour by several staff from both the County and Township, including her. The purpose of this exercise was to evaluate the Applicant’s perspective of the waterfront characteristics of Long Lake and the Township’s assertion that historical development patterns and approvals (where applicable and validated) should not be solely judged based on past practice or precedent.
60Mr. Hommik opined that it would be impossible to suggest the Applicant’s Structures would look out of character relative to those catalogued in Exhibits 4 and 5. During his evidence-in-chief, he intimated these comparable waterfront properties, though in some instances possibly pre-dating the in-force ZBL, do form the character of Long Lake and must be evaluated accordingly.
61Ms. Kapusta Witness Statement counters Mr. Hommik’s evidence in Exhibit 4, Tab 3, paragraphs 16-22. The thoroughness of the research is demonstrable to the Township’s case. The objective and long-term planning vision with current OP and ZBL policies were enacted by Council to limit further overdevelopment of the shoreline vis-a-vis historical development patterns. Her Witness Statement asserts that if not regulated through municipal planning instruments being consistent with the PPS, future development may negatively impact Long Lake on both a cumulative and site-specific basis.
THE PROVINCIAL INTEREST
62Tribunal decisions must have regard to s. 2 and be consistent with the PPS.
63Mr. Hommik’s Exhibit 8 Opinion Letter does not reference s. 2 of the Act or the PPS. He did testify during the hearing that the MVA has regard to the provincial interest citing s. 2 (a), (h) and (o). He opined that s. 2 (a) could be met if the mitigation measures in Mr. Kristensen LO were implemented; s. 2 (h) is satisfied; and, s. 2 (o) is dealt with in the slope condition assessment report12.
64During his examination-in-chief, Mr. Hommik opined that there was no dispute to the intent and application of the PPS in Section 2.5 and that the MVA meets the tests of the PPS. He however noted that with specific reference to Sections 4 and 5 they could be addressed through the recommendations in Mr. Kristensen’s LO and the slope condition assessment report.
65The Tribunal was afforded generous testimony by Mr. Lalande and Ms. Kapusta that the MV fails to meet the following PPS Sections (4.1, 4.2, 5.1, 5.2.2, 5.2.8). The underlying principle of these PPS policies when applied through municipal planning instruments is not to necessarily prohibit development or site alteration, but to protect (4.1.1; 4.2.1; 4.2.1 (b)), restrict (4.2.2), and direct (5.1.1 and 5.2) it away from areas near sensitive surface water features or erosion hazards.
66The Tribunal adopts the evidence of Mr. Lalande and Ms. Kapusta that the MV fails to meet the s. 2 and s. 3(5) (a) tests under the Act.
MINOR VARIANCE REVIEW – FOUR TESTS
Maintain the General Intent and Purpose of the OP
67The Subject Lands must meet the intent of both the County and Township OP for the MV to meet the four tests under s. 45 (1) of the Act.
68Ms. Kapusta opined that, based on the historical patterns of shoreline properties in the Township, the Township OP has made greater effort to correct overbuilding and maintain a naturalized shoreline with modern planning instruments. While past planning approvals or construction cannot necessarily be corrected, new development applications must not be granted license (or retroactive consent) in view of the Township’s OP and ZBL to facilitate Council’s vision of protecting unique landscapes and water resources.
69The property is designated as Rural Area and identified within the Waterfront Area in the Township’s OP. Policy 4.8.3 defines the principles to be applied to growth and development. The principle of 4.8.3 D is to limit the density of buildings and structures in the Waterfront Area to protect the character of the lakes, whereas the basis of 4.8.3 E is to protect the integrity of the natural environment, landscape, shorelines and water quality.
70Mr. Hommik adopts that Section 4.8.3, 4.8.5 and 4.8.6 of the Township OP polices are aimed at preserving the character and integrity of waterfront areas while promoting the use of these areas for recreational purposes. His defense of 4.8.3 E is predicated on the evidence of Mr. Kristensen. Mr. Kristensen’s evidence via his LO is that if consulted prior to construction of the Structures he would have recommended compliance with the setback provisions in municipal planning documents.
71Mr. Hommik relied exclusively on photographs provided by the Applicant to form his assessment of the character of development on the lake, although he conducted his only site visit to the Subject Lands and adjacent properties in March 2026, just days before the Hearing. Under cross-examination, Mr. Hommik also acknowledged that he did not prepare any studies or plans to consider siting alternatives for the Structures for the Applicant to consider which would address the Township OP polices or the RVCA permitting requirements.
72The Tribunal finds the expert opinion evidence of Ms. Kapusta more persuasive than that of Mr. Hommik. Ms. Kapusta visited the Subject Lands on three occasions from January 2025 to April 2025 and toured Long Lake extensively by boat on September 3, 2025, in anticipation of a Tribunal Hearing (the Applicant filed his NOA on July 25, 2025). The degree of familiarity with the Subject Lands, County and Township planning instruments and hearing preparation contrasts with Mr. Hommik. Notwithstanding the passage of time since writing his Letter of Opinion in June 2025, Mr. Hommik only visited the site and adjacent lands one time – just several days before the Hearing. For this reason, those stated in the preceding paragraphs and the depth of Ms. Kapusta’s expert planning analysis and opinion, the Tribunal finds that the MV fails to meet the test of maintaining the general intent and purpose of the OP.
Maintain the General Intent and Purpose of the Zoning By-law
73The MV seeks relief for issues related to the size of the Structures and permission to locate same within a defined setback from the high-water mark.
74Mr. Hommik contends that it is possible to locate structures closer to a waterbody, on a case-by-case basis, without an adverse impact on water quality or the integrity of the shoreline, including the potential impacts of erosion.
75Mr. Cece and Mr. Kristensen acknowledged that buffers and related policies have evolved with science and can promote an ecological systems approach to healthier shorelines when impacted by human activity. The notion of setbacks is foundational to Mr. Lalande’s testimony, and that the adherence setback provisions are vital to the RVCA’s administration of regulating development and site alterations pursuant to its legislative mandates and the recommendations they offer to the Township.
76Mr. Cece’s Witness Statement makes multiple references to the purpose of the setbacks in the ZBL. Specifically, Section 4.26.5 (c) stipulates that the minimum setback for a viewing deck or gazebo from the high-water mark shall be 15 m.; Section 4.27 requires shoreline activity to be preserved within 30 m. of the high-water mark; and Section 4.27.2 allows for interruption of the shoreline buffer zone to provide access or a view scape provided that a clearing of the shoreline buffer zone shall not exceed 25% of the shoreline frontage of the lot, up to a maximum of 10 m.
77In determining this test, Ms. Kapusta’s opined as follows: “Even if the proposed variances posed no ecological or natural hazard concerns, in my opinion they would still not meet the intent of the ZBL as they would permit too much built form, too close to the water, which is plainly inconsistent with the intent of the current Zoning By-Law.”13
78Based on the evidence proffered by the Township, the Tribunal is persuaded that the requested MVs do not maintain the general purpose and intent of the ZBL.
Desirable for the Appropriate Development or Use of the Land
79The test of desirability is generally contextual in nature, being whether the MV is suitable for a specific property and fits within its existing environs when evaluated and assessed against policy.
80Ms. Kapusta opined that the Township has a responsibility to address the presence of potential ecological impacts of shoreline site alteration and ensures that desirable development activity is consistent with municipal planning instruments.
81Mr. Hommik’s opinion is that the Structures when compared to other properties on the lake are not more dominant, do not significantly alter the natural environment, and that, when the mitigation measures proffered by Mr. Kristensen are implemented, there would be no adverse impacts.
82The Applicant chose not to act on the options the RVCA offered during their February 18, 2025, discussion, and opted to continue building the Structures despite receiving Orders to Comply and Stop Work from the Township.
83The MV is not desirable because there were other potential locations on the Subject Lands where the Structures might be situated to adhere to the shoreline setbacks in the OP, ZBL or in compliance with RVCA policy. The Applicant did not seek advice from any experts before or during the construction of the Structures and Mr. Hommik admitted under cross-examination that he did not look at alternatives when preparing his Planning Opinion.
84The Tribunal adopts the Township’s evidence that the MV is not desirable and is not appropriate.
Minor Variance
85The test of whether or not a variance is minor generally assess the impact of the MV on adjacent properties. The test is generally qualitative rather than strictly numerical.
86Mr. Hommik’s evidence stated that the MV is minor and that, while numerically higher than permitted under the ZBL, the appearance on the ground and views from lake will not be obvious. He further intimated that there were no objections from neighbours and there would be no undue loss of privacy and enjoyment of neighbors on adjacent properties.
87Ms. Kapusta opined that the MV is not minor because the constructed viewing deck is larger than that initially proposed when the MV was before the COA in March 2025, is more than two and a half times than permitted under the Township ZBL and perhaps more importantly, given the evidence of Mr. Cece and Mr. Lalande, is located with a setback of zero metres from the shoreline of Long Lake.
88The combined effect of a much larger than permitted footprint of the viewing deck and decreased setbacks amplify the question of being minor in nature and present potential cumulative impacts the planning instruments seek to prevent.
89The Tribunal concurs with the Township’s position that the MV is not minor in nature.
FINDINGS
90The origin of this Appeal is to authorize a retroactive approval for construction of the Structures and the evidence of the experts suggest that it will contribute to potential harmful erosion to enter the Long Lake ecosystem. In this case, private interests cannot offset the public interest.
91Planning authorities have a responsibility to consider accessibility as part of the public interest. However, accessibility is not a carte blanche nor the sole reasonable justification to circumvent municipal planning approvals, policies, and other legislated mandates, especially when other options are available.
92The Tribunal is respectful to the Applicant’s family member accessibility needs. However, the Applicant has not demonstrated need for the scale of the Structures well beyond the ZBL standards. The Applicant’s Witnesses did not address the claim in the NOA that the COA failed to consider Section 2 (h.1) of Act during their evidence.
93The Applicant was offered options by the RVCA to revise the development proposal knowing that he had been advised that he would still require a permit from the RVCA for the as-built viewing deck subject to the MV application process. He declined their advice and completed construction of the Structures.
94The Tribunal is not satisfied that the s. 2 and s. 3 (5) (a) tests of the Act have been met.
95The Tribunal adopts the expert land use planning evidence of Ms. Kapusta that the proposed MV has not met the four-part test under s. 45(1) of the Act and concludes that the matter in this proceeding does not represent good planning and is not in public interest.
ORDER
96THE TRIBUNAL ORDERS THAT the appeal is dismissed and the variances to the Township of Central Frontenac Zoning By-law 2011-52, are not authorized.
“N. Rodgers”
N. RODGERS 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.
Footnotes
- Exhibit 4, Tab 1, pg. 6
- Exhibit 4, Tab 3, pg. 67 and 92
- Exhibit 4, Tab 1, pg. 8
- Exhibit 4, Tab 3 [29]
- Exhibit 2, Tab 3 [52].
- Exhibit 4, Tab 12, pg. 166
- Exhibit 4, Tab 3, paragraphs [71,72] and pg. 96
- Exhibit 4, Tab 1, pg. 10
- Exhibit 7, pg. 2
- Exhibit 4, pg. 21
- Exhibit 7, page 1
- Exhibit 3, Tab 10
- Exhibit 4, Tab 3, paragraph 64