Transcript presentation slides

LAKE FRONT
PLANNING
South East Ontario Municipal Law Seminar
Presented by Tony Fleming
October, 2016
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
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
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
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
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
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
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
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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 – 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
Enforcing Development
Agreements and Zoning
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Implementing conditions
Make them pay
Prosecutions
Civil actions
Enforcing Development
Agreements and Zoning
• Implementing conditions
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Development agreements
Site plan control
Subdivision agreements
Condominium agreements
Enforcing Development
Agreements and Zoning
• Make them pay
– Is security appropriate
– s. 446 of the Municipal Act
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
Enforcing Development
Agreements and Zoning
• Make them pay
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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.
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
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.
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 a Certified Specialist, Tony has demonstrated expertise in the fields of municipal law and land
use planning and 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 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.
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 [email protected], or call 613.546.8096