LAKE FRONT PLANNING

1. LAKE FRONT PLANNING South East Ontario Municipal Law Seminar Presented by Tony Fleming October, 2016

2. Overview • Water setbacks • Lessons from the OMB • Why is intent important? • Better protecting the water setback • Ensuring your policies are enforceable • Enforcing development agreements and zoning

3. Water Setbacks • Reviewed every case dealing with a water setback before the OMB from 2008 – 2012 24 cases • From 2012 – 2016 – 25 cases • Based on our experience, we theorized in 2012 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 up to 2012 • 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 • From 2012 – 2016, 5 of 25 deny the reduction in setback • All 5 refusals were based on policy and planning considerations and not environmental considerations • 12 were appeals based on a municipal denial – of those 3 were upheld by the Board and the basis for denial was policy – aesthetics protection or character of the area policies

6. Water Setbacks • 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

7. Water Setbacks • Cumulative impacts and precedent • Impacts on water quality • Fact specific analysis • Acceptance by the Board is not consistent • And may 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

8. 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)

9. 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.

10. 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.

11. Water Setbacks • Lessons from the OMB • Official Plan intent is critical – more or equally critical than environmental protection • 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

12. Enforcing Development Agreements and Zoning • Implementing conditions • Make them pay • Prosecutions • Civil actions

13. Enforcing Development Agreements and Zoning • Implementing conditions • Development agreements • Site plan control • Subdivision agreements • Condominium agreements

14. Enforcing Development Agreements and Zoning • Make them pay • Is security appropriate • s. 446 of the Municipal Act

15. Enforcing Development Agreements and Zoning • Is security appropriate • Site plan, condo and subdivision typical • No reason a development agreement cannot include security • Where a condition is important, make sure if the owner fails to comply that you can get the work done • Maintenance is less likely to be a reasonable condition for security

16. Enforcing Development Agreements and Zoning • Make them pay • 446. (1) If a municipality has the authority under this or any other Act or under a by-law under this or any other Act to direct or require a person to do a matter or thing, the municipality may also provide that, in default of it being done by the person directed or required to do it, the matter or thing shall be done at the person’s expense.  • (2) For the purposes of subsection (1), the municipality may enter upon land at any reasonable time.  • (3) The municipality may recover the costs of doing a matter or thing under subsection (1) from the person directed or required to do it by action or by adding the costs to the tax roll and collecting them in the same manner as property taxes.  • …  • (6) The amount of the costs, including interest, constitutes a lien on the land upon the registration in the proper land registry office of a notice of lien.

17. Enforcing Development Agreements and Zoning • Prosecutions • Build no permit – OBC • Breach zoning – setbacks, use (bunkie) • NOT for breach of an agreement • Limitations • Fine only • Order to discontinue must be enforced separately

18. Enforcing Development Agreements and Zoning • Civil Actions 442.Where a duty or liability is imposed by statute or agreement upon any person in favour of a municipality or in favour of some or all of the residents of a municipality, the municipality may enforce it and obtain such relief and remedy as could be obtained, (a) in a proceeding by the Attorney General; (b) in a relator proceeding by any person in the name of the Attorney General; or (c) in a proceeding by the residents on their own behalf or on behalf of themselves and other residents. 

19. Profile Tony Fleming is a Partner in the Municipal Group, Land Use Planning and Development Group as well as the Environmental Group. 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 aCertified Specialist, Tony has demonstrated expertise in the fields of municipal law and land use planningand development law. Tony has 20 years experience as a municipal and environmental lawyer, providing advice to our nearly 20 municipal clients as well as private sector companies on all aspects of land use planningand 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 MunicipalBoard 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 inall levels of Ontario Courts on administrative law matters, including defending challenges to municipal by-laws. We pride ourselves on being experts in our field and delivering outstanding client service. Because we focus on municipal law we can deliver unparalleled response times on matters that require complicated assessment and specialized advice. There is a dramatic difference between hiring local and hiring a specialist. To contact Tony, please email tfleming@cswan.com, or call 613.546.8096