ISSUE DATE: Dec. 13, 2007 PL070645 Ontario Municipal Board Commission des affaires municipales de l Ontario IN THE MATTER OF subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended Applicant and Appellant: Milan Josef Kalis Subject: Minor Variance Property Address/Description: 2 Island 4370 Georgian Bay Island No. 350 Variance from By-law: 91-19 Municipality: Township of Georgian Bay (Muskoka) OMB Case No.: PL070645 OMB File No.: V070329 Municipal File No.: A-41/06 APPEARANCES: Parties Milan Josef Kalis Township of Georgian Bay Counsel N. Jane Pepino Ted Symons DECISION DELIVERED BY S. J. SUTHERLAND AND ORDER OF THE BOARD Georgian Bay Island No. 350 (2 Island 4370 Georgian Bay Island No. 350) (Subject Property) is located on Georgian Bay in the northern portion of the Township of Georgian Bay (Township), District of Muskoka (District). The subject property is owned by Milan Josef Kalis (Applicant/Appellant), who wishes to construct on it a 124 square metre, single storey cottage with an attached deck for his son. The cottage is to be located approximately in the middle of the property, where there is little vegetation. The remainder of the property is generally well-vegetated, unlike many Georgian Bay islands. The site is located at the mouth of Moose Bay (also known as Freeman Bay), just south of Twelve Mile Bay, within the Wah Wah Taysee cottage community, north of the
- 2 - PL070645 Go Home Bay and Cognashene cottage communities. A number of residents from each of these communities and their related associations have indicated their opposition to the application primarily because the subject property is undersized, approval would set a dangerous precedent, deviations from the by-law should not be permitted, the application could change the character of the area, and there could be negative environmental and visual impacts. John MacFarlane, the nearest neighbour to the subject property, addressed the hearing on these issues as a participant on behalf of himself and the Wah Wah Taysee Association. In order for the planned cottage to be built, two variances to Zoning By-law 91-19 (ZBL) are required: The required minimum lot area above the 177 m contour is 1.0 ha. The subject property has 0.655 ha. The minimum lot area above the 177.4 m contour is 0.8 ha. The subject property has 0.606 ha. As to the third requirement, that the minimum lot area above the 178.3 m contour be 0.4 ha, the subject property meets this requirement at 0.486 ha. The Township s Committee of Adjustment (C0A) denied the application. Gregory Corbett, a professional planner and senior planner with the consulting firm of PLANSCAPE, gave expert land use planning opinion on behalf of the Applicant/Appellant. Mr. Corbett, a specialist in rural and recreational planning, has 16 years experience in planning for shoreline development in waterfront areas, including Georgian Bay, and was a planner with the District of Muskoka (District) from 1991 to 2002, during which time he was responsible for planning matters in the Township from a District perspective. James Dyment, a partner with Meridian Planning Consultants Inc., gave expert opinion on behalf of the Township. Mr. Dyment has 28 years of professional planning experience as a land use planner and has acted for the Township on various applications since 1990. Meridian has been serving as the Township s planner since the
- 3 - PL070645 departure of its Director of Planning in July. Mr. Dyment is the principal author of Bylaw 91-19. The two planners had opposing views as to whether or not the requested variances met the four tests of Section 45(1) of the Planning Act. It was Mr. Corbett s position that they met them all, and Mr. Dyment s that they met none of them. The Board finds that Mr. Corbett made the stronger case based on his close analysis of the issues related to this particular application. There are two Official Plans at play here: the District s (DOP) and the Township s (TOP). To quote from Mr. Dyment s Outline of Evidence (Exhibit 4), policies in the DOP promote the protection the cultural and natural environment including strengthening existing communities, to which Mr. Corbett added in his Outline of Evidence (Exhibit 2), as set out in the Vision, the intent of these principles is to strike a balance between growth and development and the preservation of the natural Muskoka environment. Mr. Corbett went on to say, and reiterated in his spoken evidence, that the application is for a relatively small, single-storey dwelling that can be located on the island without any adverse impacts. For more than a century now, there has been development on the Georgian Bay Islands and, historically, it has only been in fairly recent times that there has been recognition of the environmental importance of Georgian Bay and its landscape. That landscape is both built and natural, and both OPs recognize the importance of maintaining a balance between the two. Both afford room for and encourage appropriate development. The Board agrees with Mr. Corbett that the proposed development is in keeping with development found on the Georgian Bay shoreline of Muskoka and is generally characteristic of this south-eastern section of the Bay. Section C of the DOP sets out general development policies which encourage growth that has regard for the natural and cultural environment, while taking forward the economy of Muskoka. Mr. Corbett maintained that this application does that. The DOP calls for the quality of the landscape and the natural environment to be protected. The proposed cottage is set well back on the island; indeed, it will sit almost
- 4 - PL070645 in the centre of the island. The island itself has significant tree cover and vegetation (Exhibit 1, Tab 4), which a site plan could do much to maintain. The proposed structure is to be single-story and will in no way dominate the landscape. There will be only one dock and no sleeping cabin. Photographic evidence (Exhibit 1, Tabs 4 and 6) suggests that its impact, if any, will be considerably less than some structures, cottages and others, already in place. Section C.6 of the DOP addresses the issue of detrimental impact on the environment; specifically, that no such impact will be permitted. Cottage Country Environmental Services has confirmed that an Ecoflow class 4 sewage system can be accommodated on the island to safely service the subject property. This evidence was uncontradicted. Mr. Corbett also gave uncontradicted evidence that no fish habitat will be disturbed. There is some question as to the depth of the soil on the island. Existing vegetation suggests that it is adequate, but there is no evidence as to its actual depth. Counsel for the Applicant suggested this could be addressed with an appropriate landscaping plan, and Mr. Dyment did not disagree. Island 350 is set within the Waterfront designation of both OPs. Residential uses are permitted within this designation. The OPs recognize the desirability of making use of the area as a recreational resource. Section D.27 of the DOP establishes a minimum lot size of 0.4 ha with 60 metres of frontage as the minimum size for lots within the Waterfront designation. The subject property exceeds this. Section K.29 of the DOP recognizes lots of record and permits development if certain conditions are met, specifically a site evaluation report may be required prior to any lot being recognized to address environmental issues and ensure that the lot is a viable building lot. The subject property is a lot of record, having existed prior to June, 1991. Mr. Corbett told the Board that this policy would support the development of the subject property. Mr. Dyment referred to Section 21.2 (c) of the TOP which states, for existing island lots of record the minimum lot size shall generally be one hectare, but in all circumstances be not less than 0.8 hectares provided they generally conform to all other
- 5 - PL070645 policies contained herein. Mr. Dyment told the Board that the subject property has a minimum lot size of 0.606. Mr. Corbett stated in his evidence that an island survey confirmed that in September 2006, just before the application was made, the island size was 0.89 hectares. The survey sketch at Tab 3 of Exhibit 1 confirms Mr. Corbett s position that the area to the present water level is 0.891 hectares, the area by patent being 0.698 hectares. Further, on page 3 of his Outline of Evidence (Exhibit 4), Mr. Dyment states that the island has a total lot area of 0.606 hectares measured to the original watermark. When pressed by counsel for the Applicant, Mr. Dyment conceded that this was an error, that, according to the survey at Tab 3 of Exhibit 1, the area to the original watermark is 0.809 hectares. Mr. Corbett stated that, since this is an existing lot of record, the requirements of Section B.21.2 (d) that the island size be no less than 1 hectare above the 177.0 C.G.D. of which 0.8 hectares of area must be above the 177.46 C.G.D. and 0.4 hectares must be above the 178.3 C.G.D. do not have to be met. The island does meet the 178.3 elevation and, in fact, surpasses it. This, according to Mr. Corbett, is the most important elevation as it represents the area available for development. The former Director of Planning for the Township, Mr. Park, agreed. In a recent decision (Decision/Order No: 0512) regarding another undersized island (Delf Island), Board Member D. J. Culham wrote, the Board finds concurrence with Ms. Walton and Mr. Park that by far the most significant standard is the requirement to have at least 0.4 hectares above the 178.3 G. S. C. contour established as the flood hazard. In the Delf Island application the Township and the applicant came to a settlement. The subject property is zoned SR2. Mr. Dyment explained that SR2 and OS (Open Space) zoning were applied to the Township islands when zoning maps were developed by tracing off air photos. This meant that the estimation of the size of the islands was less than precise. Mr. Corbett maintained that the SR2 zoning gave at least an expectation that development of the island would be possible as of right, with further review to confirm that the island is suitable for development if it is deficient in size, as has happened in this case. Mr. Corbett stated that, as a result of the review, he concurred with the restrictions recommended by the Township planner in his Report to the Committee of Adjustment (Exhibit 1, Tab 12).
- 6 - PL070645 The question as to what constitutes minor in nature has no precise answer, although potential impact is almost always a component of that answer. Mr. Corbett addressed this issue by telling the Board that the lot sizes at the two deficient elevations will not create significant adverse impacts and that the proposal will not adversely impact adjacent property owners or the area in general either environmentally or aesthetically. The Board believes that the evidence presented during the course of the hearing supports this view. Mr. Dyment made several references to the number of letters and e-mails that had been received from owners of other islands in the area, although not all in the immediate area, opposing the application. Their opposition may be understandable on a number of levels, but as counsel for the Applicant told the Board, we do not, in this province, plan by plebiscite, but on solid land use planning grounds. Mr. Corbett maintained there are no matters of Provincial interest associated with the application. Mr. Dyment disagreed. He pointed to Section 2.6 of the Provincial Policy Statement (PPS), which deals with Cultural and Heritage Archaeology. It states, significant built heritage and cultural heritage landscapes shall be conserved. It is the Board s observation that the application does, in fact, do that. The landscape in question has, in the words of the PPS, been modified by human activities and is valued by a community. The PPS continues: it involves a grouping(s) of individual heritage features such as structures, spaces, archaeological sites and natural elements, which together form a significant type of heritage form, distinctive from that of its constituent elements or parts. The proposal before the Board is in keeping with the Georgian Bay landscape as it has developed over the last century. It is desirable and appropriate. Mr. Dyment drew the Board s attention to the fact that the Georgian Bay Archipelago, stretching from Port Severn to the Key River, is designated as a UNESCO Biosphere Reserve. He also made reference to the Ontario Government s Great Lakes Heritage Coast project which recognizes the internationally significant natural, cultural, scenic and recreational values of the Lake Superior and Lake Huron/Georgian Bay shoreline within the planning area. While both these recognitions speak to the distinctiveness and importance of Georgian Bay, the Board finds that neither has direct bearing on the application before it.
- 7 - PL070645 In his closing remarks, counsel for the Township suggested the focus should not be on a particular island and whether or not it can accommodate development, but rather on the broader issues of the landscape and heritage of the community. He told the Board that the application before it doesn t meet the sensibilities of the community. Counsel for the Applicant suggested it was the island, not the area, that was the subject of the appeal. With this, the Board agrees. The cultural and physical landscape of Georgian Bay is important to all of us resident and non-resident alike. The Board agrees with the position that this application will in no way detract from or diminish that landscape. There is no precedent being set here; each application to construct a building or buildings on an undersized island will have to meet the tests of the Planning Act and be judged in every respect on its own merit. It is the scalpel, not the axe, that will apply, The Board agrees with Mr. Corbett that this application meets the four tests of the Planning Act: It maintains the general intent and purpose of the Zoning By-law. It maintains the general intent and purpose of the Official Plans. It is a desirable and appropriate use of the lands. It is minor in nature. The Board Orders that the appeal is allowed and the variances to By-law 91-19 are authorized subject to the following conditions: The maximum gross floor area for the main dwelling be no larger than 124 square metres (1,350 square feet). The maximum height of the main unit shall not exceed 5 metres (16.4 feet). The roof pitch shall be no greater than 5/12. The maximum height of all accessory structures shall not exceed 3 metres (9.8 feet).
- 8 - PL070645 That an Ecoflow ST-650 sewage system be located in the area identified on the proposed site plan. That the Applicant enters into a Site Plan Agreement with the Township of Georgian Bay implementing the site plan contained within the Planning Report dated December, 2006 That approval of this variance is granted and fixed to the subject site plan, extent, location, scale and use contemplated in the application. The Board s Order will be withheld pending evidence that the Applicant has entered into a Site Plan Agreement with the Township of Georgian Bay. The Board so Orders. S. J. Sutherland S. J. SUTHERLAND MEMBER