Tony Fleming presented on lessons learned from waterfront planning cases before the Ontario Municipal Board (OMB). Official plans that described water setbacks as protecting both the environment and aesthetic character were more likely to be upheld than those focusing solely on the environment. Cumulative impacts and precedent were also considered. Municipalities have authority to zone land covered by water and regulate legal non-complying structures, though uncertainty remains after a court decision. Options for municipalities include interpreting that decision narrowly or broadly.

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