Municipality of Northern Bruce Peninsula Planning Report Application: Minor Variance File No.: A-05-2010.62 Date: June 14, 2010 ------------------------------------------------------------------------------------------------------------------------------------------------------- FROM: Jakob Van Dorp, Planner for the Municipality of Northern Bruce Peninsula County of Bruce Planning & Economic Development Department SUBJECT: Application to permit a minor variance to Section 5 Definitions and Section 12.2 of the Municipality of Northern Bruce Peninsula Comprehensive Zoning By-Law No. 2002-54. REASONS FOR AND NATURE OF THE APPLICATION: The Municipality of Northern Bruce Peninsula has received an application from Sam James for a minor variance to the R2 -Resort Residential zone of the Northern Bruce Peninsula Zoning Bylaw 2002.54. The applicant is requesting recognition of a two storey Private Guest Cabin that was constructed without a building permit. The minor variance is required to provide relief from Section 5 Definitions of Guest Cabin and Private Guest Cabin to permit an oversized guest cabin with a second storey and plumbing services as follows: Section 5 Guest Cabin Required Existing Increased minimum floor area Guest Cabin 23.2 m 2 (249.7ft 2 ) 37.2 m 2 (400.5 ft 2 ) Permit plumbing services to a guest cabin None Permitted Plumbing And to recognize existing deficiencies on the property and provide relief as follows: Provisions 12.2 R2 Zone Required Existing Reduced minimum lot area unserviced waterfront lot 3000 m 2 1858 m 2 ------------------------------------------------------------------------------------------------------------------------------------------------------ SUMMARY OF APPLICATION: - Section 45(1) of the Planning Act gives the authority of granting minor relief from the provisions of the Zoning Bylaw to the Committee of Adjustment. Such relief can only be granted if the Minor Variance passes the four tests. If the Committee is not satisfied on all four tests, then the Minor Variance cannot be approved. PRELIMINARY RECOMMENDATION: Subject to review of objections and submissions arising from the public hearing the following recommendation is made: The application DOES NOT satisfy the four tests of a minor variance. The Department recommends that the Committee of Adjustment consider REFUSAL of the application.
I. CONTEXT The property is a waterfront lot located on the Lake Huron shoreline South of Stokes Bay. The lot contains a cottage dwelling, 2-storey garage, carport, shed, and bunkie. A site plan of the proposal is included in Appendix A and an air photo of the property is included in Appendix B. II. PROPERTY INFORMATION SUMMARY Related File(s): Legal Description: Lot Description: Access: Services: Frontage Depth Uses / Buildings & Structures: County OP Designation: Local OP Designation: Local Zoning By-law: Surrounding Land Uses: NA 161 Spry Shore Rd; Con 5WBR Pt Lot 24 (Eastnor) Municipality of Northern Bruce Peninsula Roll: 410962000215000 30.5m (100 ft) approximately 60.9m (200 ft) Area approximately 1,858 m 2 (20,000 ft 2 ) Spry Shore Road, year round municipal road Individual on-site water and sewer services (holding tank) Cottage dwelling, 2-storey garage, carport, shed, and bunkie Shoreline Development Area N/A R2 Resort Residential Cottage residential Page 2
III. MATTERS ARISING FROM AGENCY CIRCULATION The standard agencies reviewed the application and provided the following comments: Grey Sauble Conservation Authority The subject property is a developed shoreline property sloping toward Lake Huron. The new bunkie is located approx 15 ft from a shoreline and includes decking extending closer to the lake. The subject guest cabin is located within an area of potential hazard due to wave uprush and other water related hazards. Typically the hazard area is measured 15 metres from the 100-year flood elevation of 177.6 metres. Elevations have not been provided to ensure that this setback for habitable buildings is met in the Municipality of Northern Bruce Peninsula Comprehensive Zoning By-Law. According to Ontario Base Mapping the guest cabin appears to be located below an elevation of 180.0 metres GSC; GSCA mapped an approximate hazard zone in the absence of detailed contour mapping and recommended that the flood line be established and a setback distance of 15m be established. Existing vegetation along the shoreline should be maintained to aid in the protection of fish habitat and other wildlife. Municipal Staff Staff circulation resulted in the following comments regarding the minor variance request: Public Works Manager - no comments Fire Chief - "If more than 4 sleeping areas are being considered for rental, then they will have to conform to the motel/hotel legislation requiring many fire safety upgrades under the Ontario Fire Code". Public Works Assistant Manager - no comments Chief Building Official - Concern expressed that building is occurring without permits/approvals and when this takes place, a minor variance application will rectify the contravention. Grey Bruce Health Unit A class-5 system (holding tank) is the method of sewage disposal for this property. The 9000-litre tank was installed for a single family dwelling in 1999 to rectify an unsafe sewage issue due to lot constraints and poor site conditions. The holding tank is not designed to accept sanitary sewage discharge from the guest cabin. The application indicates the guest cabin is equipped with plumbing. This construction appears to have reduced the performance level of the existing class-5 holding tank sewage system under Article 11.4.2.5 of the Ontario building Code (OBC). OBC Articles 8.8.2.2 identifies that all holding tanks used in residential dwellings have a minimum 7 day holding capacity on the total daily design sewage flow. The Health Unit is responsible for Part 10 and Part 11 OBC evaluation of building alteration / change of use proposals. Health Unit staff were unable to locate a Building Alteration / Change of Use Application for the property. Health Unit Staff recommended deferral until concerns with OBC compliance have been resolved. IV. MATTERS ARISING FROM PUBLIC CIRCULATION The application was circulated to the public within 60 m (200 ft) of the property on September 22, 2008. As of writing of this report there have been several written objections to the requested minor variance, citing concerns for public health due to the increased construction on the property that is being serviced by a holding tank system, concern about construction without a permit and in contravention of the by-law provisions that then requests permission after the fact, and concern about the operation of the guest cabin as a rental unit for paying guests (including an advertisement). V. MATTERS ARISING FROM PROVINCIAL INTERESTS, POLICY STATEMENTS OR PLANS See Appendix D. The PPS requires that development be directed outside of hazardous lands adjacent to the shorelines of the Great Lakes - St. Lawrence River System that are impacted by flooding hazards, erosion hazards and/or dynamic beach hazards. Hazardous lands are defined as lands that could be unsafe for development due to naturally occurring processes. As noted by the Conservation Authority the guest cabin may have been built within the 15 m setback from the 177.6 GSC (100 year flood line) and can be subject to potential hazard due to wave uprush and other water related hazards; it does not appear that the building has been flood proofed. Page 3
VI. THE FOUR TESTS OF A MINOR VARIANCE The Planning Department presents the following analysis of the four tests in regard to the proposal. As is standard for applications after the fact, in this analysis the planning department is evaluating the application as if were being proposed and had not been constructed at the time of application. A. Does the proposed variance conform to the general intent of the Official Plan? The County of Bruce Official Plan designates the subject land as Shoreline Development Area (Section 5.3). Permitted uses in the Shoreline Development Area include seasonal and permanent residential dwellings. The County OP requires that the following be considered when reviewing a proposal for the development of existing lots: a. The lot size and physical conditions can support private services; b. The lot is located in an existing built up residential area; and c. The municipality is satisfied that all issues regarding municipal services have been met. The Health Unit noted that the Class-5 holding tank system, which was installed because the site could not accommodate a Class-4 system, was not designed to accept sanitary sewage discharge from the guest cabin. The guest cabin appears to have reduced the performance level of the existing Class V holding tank sewage system under Article 11.4.2.5 of the Ontario Building Code, and Article 8.8.2.2, which identifies the need for holding tanks to have minimum 7-day storage capacity. A followup letter from the Health Unit reported that the property should be evaluated by way of a change of use assessment. The application does not conform to the goals and objectives of the Bruce County Official Plan. B. Does the proposed variance conform to the general intent of the Zoning By-law? The subject property is located in the R2 Resort Residential zone covered by Section 13.2 of the Municipality of Northern Bruce Peninsula Comprehensive Zoning By-Law No. 2002-54. The applicant is requesting recognition of a two storey Private Guest Cabin that was constructed without a building permit. The minor variance is required to provide relief from the following provisions. Zone Provisions Required Requested Guest Cabin definition Recognized Means an accessory detached building or structure to a maximum of one storey in height without kitchen and/or washroom facilities and maintained for the accommodation of non paying guests having a maximum ground floor area of 23.2 m 2 (249.7 ft 2 ) -Two stories in height -Washroom facilities provided -floor area 37.2 m 2 (400.5 ft 2 ) Minimum lot area (waterfront lot) 3000 m 2 (32,292.7 ft 2 ) 2 099 m 2 (22 594 ft 2 ) The zoning bylaw does permit bunkies or private guest cabins in the R2 zone provided that the guest cabin complies with the yard and setback requirements of the zone and that guest cabins are a maximum of one storey in height. The guest cabin provisions are intended to ensure that guest cabins remain an accessory use on the property and that only a limited amount additional living space is provided. Further, the provisions are intended to reduce the feasibility of separately renting the guest cabin. The two-storey guest cabin as constructed does not conform to the intent of those provisions, and documentation submitted with a letter of opposition to the application indicates that the guest cabin has been advertised as an unlicensed B&B in the past in contravention of the by-law. The structure does maintain the zone setback provisions however it may not maintain the flood constraint regulations nor does the building appear to have been flood proofed (see further discussion below). The minimum lot area deficiency existed before the applicant undertook this process and were not created or altered by this application; the application is simply recognizing the deficiencies. The application does not maintain the general intent of the Northern Bruce Peninsula Comprehensive Zoning Bylaw 2002-54. Page 4
C. Is the proposed variance desirable for the appropriate development or use of the land, building or structure? The Conservation Authority has noted that the guest cabin may be located within the 15 m setback from the high water mark in an area of potential hazard due to wave uprush and other water related hazards. The guest cabin does not appear to have been flood proofed. The original boathouse structure may have been constructed as a non-habitable structure and received permission to be located within the potential hazard area. The use of the structure as a guest cottage, however, requires different safety measures than its use as a boathouse. The application is not desirable and does not represent appropriate development or use of the land. D. Is the proposed variance minor? Whether a variance is minor is evaluated in terms of the impact the proposed development is expected to have. The location of the two-storey bunkie (i.e, close to the shoreline) has significant potential to impact both adjacent property owners and the shoreline. Increased foot traffic due to the use of the structure as a habitable structure as opposed to as a boathouse can have a further deleterious impact on shoreline habitat and water quality; in addition to locating the guest cabin in a place where it may be subject to wave uprush and other water related hazards. As noted in (B) size provisions for guest houses are intended to ensure that they be an accessory use on the property; the increased size of this guest house, combined with provision of sanitary services, effectively creates a separate, private, and self-contained accommodation space and increases the livable area on the lot without a corresponding increase in the capacity of the sanitary service for the lot. In addition, the increased coverage of the lot resulting from this construction, together with the building mass of other structures on the property, adjacent property users have expressed concerns that their private /amenity space is reduced as a result of this application. Therefore, the Department feels the application is not minor. Page 5
VII. ADDITIONAL ISSUES As noted in the agency comments, municipal staff has expressed concerns that building is occurring without the appropriate permits/approvals. In this case the owner reconstructed the front wall and constructed the second floor onto an existing building without a building permit. The owners received noticed from the bylaw enforcement officer and have subsequently needed to apply for a minor variance to fix variances/deficiencies from the bylaw, (i.e., its easier to ask for forgiveness rather than ask for permission). This is resulting in development that not only does not meet the intent of the bylaw but in cases such as this can also prove to be dangerous as buildings may be constructed in hazardous locations, are not inspected throughout the construction process, and likely do not meet building code standards. Had the applicant applied to construct the structure the recommendation would be for refusal; as it is the recommendation remains for refusal. The issues identified above lead to the recommendation that this application does not satisfy the four tests of a minor variance., there may be further outstanding issues related to the use of this and other structures on the property and the total livable area that would need to be addressed before the planning department could consider approval of an application on this property. VIII. RECOMMENDATION. In summary, the Planning Department recommends that the application DOES NOT satisfy the four tests of a minor variance. The Department recommends that the Committee of Adjustment consider REFUSAL OF THE APPLICATION. Respectfully submitted, Signature Name: Jakob Van Dorp, B.Sc., M.Pl. Position: Municipal Planner Municipality of Northern Bruce Peninsula County of Bruce, Planning & Economic Development Page 6
APPENDIX A SITE PLAN Page 7
APPENDIX B AIR PHOTO Page 8
APPENDIX C GSCA HAZARD MAPPING Page 9
APPENDIX D DUE DILIGENCE CHECKLIST I. PROVINCIAL POLICY STATEMENT (PPS) Applicable Policy Section Policy Comment 1.0 Building Strong Communities 1.1 Managing and Directing Land Use to Achieve Efficient Structure built without Development and Land Use Patterns permits 1.1.3 Settlement Areas 1.1.4 Rural Areas in Municipalities 1.1.5 Rural Areas in Territory Without Municipal Organization 1.2 Coordination 1.3 Employment Areas 1.4 Housing 1.5 Public Spaces, Parks and Open Space 1.6 Infrastructure and Public Service Facilities 1.6.4 Sewage and Water Health Unit concerns 1.6.5 Transportation Systems re: system capacity 1.6.6 Transportation and Infrastructure Corridors 1.6.7 Airports 1.6.8 Waste Management 1.7 Long-Term Economic Prosperity 1.8 Energy and Air Quality 2.0 Wise Use and Management of Resources CA has no objection 2.1 Natural Heritage 2.2 Water 2.3 Agriculture 2.3.3 Permitted Uses 2.3.4 Lot Creation and Lot Adjustments 2.3.5 Removal of Land from Prime Agricultural Areas 2.4 Minerals and Petroleum 2.4.2 Protection of Long-Term Resource Supply 2.4.3 Rehabilitation 2.4.4 Extraction in Prime Agricultural Areas 2.5 Mineral Aggregate Resources 2.5.2 Protection of Long-Term Resource Supply 2.5.3 Rehabilitation 2.5.4 Extraction in Prime Agricultural Areas 2.5.5 Wayside Pits and Quarries, Portable Asphalt Plants and Portable Concrete Plants 2.6 Cultural Heritage and Archaeology 3.0 Protecting Public Health and Safety 3.1 Natural Hazards CA has concerns re: hazard boundary 3.2 Human-made Hazards Page 10