Lake front planning

LAKE FRONT

PLANNING

Ontario East Municipal Conference

Presented by Tony Fleming

September 12, 2012

Overview

• Water setbacks

– Lessons from the OMB

• Why is intent important?

• Cumulative impacts and precedent

• Better protecting the water setback

• Zoning land covered by water

• Legal non-complying cottages – can they be re-built?

Water Setbacks

• Reviewed every case dealing with a water setback

before the OMB since 2008 – 24 cases

• We were counsel to the municipalities in over 35% of the

cases

• Based on our experience, we theorized that official plans

that focus solely on environmental factors as the

rationale for water setbacks would be more likely to be

varied by the Board

• It is often difficult to establish a negative impact to water quality

given the state of current science

Water Setbacks

• 14 of 24 deny the reduction in setback

• Where environmental impact was the principal planning

issue, the decisions were roughly split 50/50 (5 allowed,

4 denied)

• Where environmental and aesthetic/character factors

were the primary considerations, the majority of

decisions denied the request for variance 6 allowed, 8

denied)

• Where the primary issue was aesthetic/character, three

of the four decisions denied the requested variance

Water Setbacks

• The balance of the decisions considered floodplain

issues or other official plan policies

• Interestingly, a number of decisions appeared to turn on

whether there was an alternative building location that

would respect (or better respect) the water setback

• This was not the introduction of the concept of “need” for

a minor variance, but rather a consideration of what was

in the public interest in the context of official plan policy

and what was appropriate and desirable for the

development of the lot

Water Setbacks


• Impacts on water quality

• Fact specific analysis

• Acceptance by the Board is not consistent

• And does not factor into the written decision

• Cumulative impacts on planning objectives

• Some acceptance by the Board

• Where a lot has sufficient size to permit a compliant dwelling

• Permitting a variance may create a precedent and make it more

difficult to enforce the setback on smaller lots

Water Setbacks


The argument of precedent can, on occasion, be used as a

smokescreen. The Board does not accept that this is such an occasion.

There is, in the Board’s opinion, a very real danger that allowing the

requested reduction in the setback from the high water mark in this

instance would make it virtually impossible to insist on the setback

being met in other instances…

Rideau Lakes v. Holmes (PL070447)

The Board finds that it would create a negative precedent making it

difficult in the future to enforce the 30 m setback when you have a lot

here that could readily meet the required setback but was not required

to do so.

Rideau Lakes v. Fraser (PL101136)

Water Setbacks

• Can water setbacks be better protected?

• Define the intent of the setback – what is being protected?

• Be precise about what the setback protects

– As undeveloped waterfront property becomes increasingly scarce, as

existing properties become more intensively used, and as pressures mount

to permit higher density development, there is a need to ensure that

appropriate Official Plan policies are in place to ensure the protection of the

Township’s waterfront area’s unique physical, aesthetic and environmental

character.

– These measures are intended to minimize lake impacts by reducing

phosphorus inputs, preventing erosion and by maintaining a natural

appearance of the shoreline.

– The lakes are the single greatest asset of the Township and must be

protected from development that is incompatible with the stated goal of

preserving the shoreline in its natural state.

Water Setbacks

• If the setback can be reduced, be specific about when

and why

• Consideration may be given to very slight reductions to the

minimum 30 metre (98.4 ft.) setback requirement only if it is not

physically possible to meet the setback anywhere on the parcel.

Where it is not physically possible to meet the setback, for

example where the parcel is of a small size or where the lot has

other physical constraints that make it impossible to meet the

setback, then the structure shall be constructed as far back as

possible from the high water mark.

Water Setbacks

• Lessons from the OMB

– Official Plan intent is critical

– Official plan policies that focus solely on the environment as the

reason for imposing a water setback are more likely to be varied

– Official plan policies that describe the intent for water setbacks in

relation to environmental protection as well as protection of the

aesthetic character of the shoreline are more likely to be upheld

– If a reduction is possible, specify when it will considered – if the

intent is that a reduction is only appropriate if physical

constraints prevent compliance with performance standards, say

so

Zoning Over Water

• Definition of “land”

• Authority to zone “land” that just happens to be under

water

• Floating houses

Zoning Over Water

• Public Lands Act defines:

“lands” means public lands and includes public lands

covered with water.

• Unless specifically provided for the beds of all navigable

water bodies are owned by the Crown (Beds of

Navigable Waters Act) and therefore are “lands” as

defined in the Public Lands Act

Zoning Over Water

• Section 34 of the Planning Act

(1) 4. For regulating the type of construction and the

height, bulk, location, size, floor area, spacing,

character and use of buildings or structures to be

erected or located within the municipality or within

any defined area or areas…

• It is established law in Ontario that “land” includes land

covered by water for purposes of zoning (even navigable

water)

– Hamilton Harbour Commissioners (Court of Appeal)

– Township of Moore (Court of Appeal)

Zoning Over Water

• Does your zoning by-law apply to land covered by

water?

– Expressly or by implication

– Where a zone abuts a waterbody is that zone deemed to extend

into the waterbody?

– How do your zone maps treat waterbodies?

– Are waterbodies zoned separately?

Zoning Over Water

• Humphrey Township

• Occupation of a boathouse as a residence

• Zoning applies to land covered by water

• Public Lands Act applies

• Galway and Cavendish Townships

• Floating boathouse

• Zoning applies even where the structure is only tethered to the

land or bed of the waterbody

• Ramara Township v. Guettler

• Where municipality owns the water (and land under the water) it

has jurisdiction notwithstanding federal jurisdiction

Zoning Over Water

• If not tethered to land, the question is vessel versus

residence

• Structure definition typically requires attachment to the ground

• Question of intent, mobility and permanence (Assessment Act

context)

• The court will consider the intent of the owner and the actual use

to determine if it is a vessel or a structure

• Provided that the zoning by-law does not intrude into the federal

jurisdiction of navigation and shipping, the municipality will have

the ability to regulate the use of land under water

Cottages on the Edge

• Legal non-conforming uses

• Legal non-complying structures

– What does TDL mean?

– Can municipalities regulate non-complying structures?

– options



– The use pre-dates zoning that makes that use illegal

– Independent of any structure

– Dependent on intent – can continue until it is voluntarily

abandoned

– No zoning by-law can eliminate the use

• Legal non-complying structures

– The structure pre-dates zoning that makes the structure non-

compliant with performance standards

– Independent of use

– Not dependent on intent – the structure is non-compliant

regardless of intent


• TDL v. Ottawa

– Comprehensive zoning by-law

– Any voluntary damage eliminated non-conforming use rights

(replace window = loss of non-conforming use)

– Non-complying rights treated the same

– Struck down as too broad

– Leave to appeal denied by the Divisional Court

• The Divisional Court decision is the final word, upholding the OMB decision

• The decision has not been relied upon by any level of court since – not

overturned, but not referred to either



– Correct decision

– Intention is the only relevant factor

– Rights are eliminated only through the intent of the owner –

voluntarily “give up” the right to the protected use

– No zoning by-law can eliminate the non-conforming use - s.

34(9) of the Planning Act

– Some intensification (evolution) is permitted

– At some point the impact of evolution in use may cross a

threshold and become a difference in kind and eliminate the right

to “evolve” the use


• TDL v. Ottawa – does it eliminate the jurisdiction of a

municipality to regulate non-complying structures?

– OMB and Divisional Court did not address non-complying

structures at all

– Is it a fact-specific decision that only applies to the zoning by-law

before the court?

– Or, is it a broad statement that municipalities have no authority to

impose performance standards for non-complying structures

– Can a cottage be torn down and rebuilt on the same (non-

complying) footprint?

– Uncertainty at a minimum


• TDL v. Ottawa – what do I think?

– It is a fact-specific decision that only applies to the zoning by-law

before the court – no analysis of non-complying structures

– Municipalities have authority to impose performance standards

for non-complying structures

– However, there is still an open question and there are others of a

different opinion – uncertainty and potential litigation exist


• What authority exists to eliminate non-complying rights

where a structure is demolished?

– Section 34 of the Planning Act permits municipalities to impose

performance standards

– Nothing in section 34(9) of the Planning Act speaks to non-

complying structures – it speaks only to “use”

– Section 34(10) of the Planning Act authorizes the extension or

enlargement of a structure used for a nonconforming use

– Section 45(2) of the Planning Act authorizes the Committee of

Adjustment to permit enlargement or extension of a structure

used for a nonconforming use

– The Planning Act clearly requires permission to enlarge or

expand a structure associated with the nonconforming use; it is

not a freestanding right


• What authority exists to eliminate non-complying rights

where a structure is demolished?

– A noncomplying structure is protected because the structure

predated the performance standards

– Zoning standards do not apply to the structure, but do apply to

the land on which it is erected

– When the structure is demolished the legal noncomplying right is

lost; the zoning standards applicable to the land must be

complied with

– A non-compliant trailer cannot be replaced with a larger trailer

– This does not mean a minor variance or rezoning are not

appropriate; but a public process and planning analysis is

necessary

– The intent of the owner is irrelevant; it is the physical structure

that enjoys the protection


• What options exist?

– Interpret TDL as eliminating the authority to regulate

noncomplying structures

• Amend the zoning accordingly

• Create prohibitions for structures that are non-compliant to encourage

relocating structures

– no enlargement or expansion once re-built

– No decks

– No accessory structures

– Interpret TDL as not changing the law relating to noncomplying

structures

• Status quo

• Accept the risk of potential litigation

Profile Tony Fleming is a Partner in the Land Use Planning, Development and Environmental Group and

the

Municipal Group at Cunningham Swan. Tony is recognized by the Law Society of Upper Canada

as a

Certified Specialist in Municipal Law (Local Government/ Land Use Planning and Development).

As a

Certified Specialist, Tony has demonstrated expertise in the fields of municipal law and land use

planning and development law.

Tony provides advice to municipalities and private sector companies on all aspects of land use

planning and development as well as environmental law. Our municipal clients consult Tony on all

aspects of municipal governance and complex land use planning matters. Tony appears

frequently before the Ontario Municipal Board to defend decisions of municipal Councils and

Committees of Adjustment. Tony also appears regularly before the Assessment Review Board

and the Environmental Review Tribunal. In addition, Tony appears in all levels of Ontario Courts

on administrative law matters, including defending challenges to municipal by-laws.

Prior to joining Cunningham Swan, Tony was Senior Legal Counsel with the City of Kingston.

Tony focused on providing advice on land use planning and development and environmental law

with the City of Kingston, building on his experience in private law firms in Toronto where Tony

practised as a land use planning and environmental lawyer.

To contact Tony, please email [email protected], or call 613.546.8096

mailto:[email protected]

Lake front planning

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Transcript of Lake front planning