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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

• Cumulative impacts and precedent
• 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

• Cumulative impacts and precedent
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
Cottages on the Edge

• Legal non-conforming uses
   – 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
Cottages on the Edge
• 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
Cottages on the Edge
• Legal non-conforming uses
   – 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
Cottages on the Edge
• 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
Cottages on the Edge
• 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
Cottages on the Edge
• 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
Cottages on the Edge
• 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
Cottages on the Edge
• 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 tfleming@cswan.com, or call 613.546.8096

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Lake front planning

  • 1. LAKE FRONT PLANNING Ontario East Municipal Conference Presented by Tony Fleming September 12, 2012
  • 2. 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?
  • 3. 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
  • 4. 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
  • 5. 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
  • 6. Water Setbacks • Cumulative impacts and precedent • 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
  • 7. Water Setbacks • Cumulative impacts and precedent 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)
  • 8. 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.
  • 9. 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.
  • 10. 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
  • 11. Zoning Over Water • Definition of “land” • Authority to zone “land” that just happens to be under water • Floating houses
  • 12. 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
  • 13. 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)
  • 14. 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?
  • 15. 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
  • 16. 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
  • 17. Cottages on the Edge • Legal non-conforming uses • Legal non-complying structures – What does TDL mean? – Can municipalities regulate non-complying structures? – options
  • 18. Cottages on the Edge • Legal non-conforming uses – 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
  • 19. Cottages on the Edge • 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
  • 20. Cottages on the Edge • Legal non-conforming uses – 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
  • 21. Cottages on the Edge • 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
  • 22. Cottages on the Edge • 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
  • 23. Cottages on the Edge • 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
  • 24. Cottages on the Edge • 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
  • 25. Cottages on the Edge • 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
  • 26. 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 tfleming@cswan.com, or call 613.546.8096