Committee of the Whole - 13 Feb 2018 - Agenda

Published February 13, 2018

Word Count 17254 words

Reading Time 82 min read

Body: Committee of the Whole Type: Agenda Meeting: Committee of the Whole Date: February 13, 2018 Collection: Council Agendas Municipality: South Frontenac

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TOWNSHIP OF SOUTH FRONTENAC COMMITTEE OF THE WHOLE MEETING AGENDA

TIME: DATE: PLACE:

7:00 PM, Tuesday, February 13, 2018 Council Chambers.

Call to Order

Declaration of pecuniary interest and the general nature thereof

Approval of Agenda

Scheduled Closed Session - n/a

Recess - n/a

Delegations - n/a

Reports Requiring Direction

(a)

Lindsay Mills, Planner, re: Proposed Road Closure & Transfer: Peck

3-7

(b)

Wayne Orr, Chief Administrative Officer, re: Noise Exemption Request form Desert Lake Resort

8-9

Reports for Information - n/a

Rise & Report from Committees of Council

(a)

Cataraqui Region Conservation Authority

(b)

Quinte Region Conservation Authority

(c)

Rideau Valley Conservation Authority

Information Items

(a)

OMB Decision - By-law 2016-36 (Section 5.10.2 and 5.11)

(b)

Gary Neff, re: Private Shooting Range

(c)

Wayne Selle, re: Private Shooting Range

(d)

Arno & Kitty van Alst, re: Private Shooting Range

(e)

Tony Gargaro, re: Private Shooting Range

(f)

Cherilyn Jardine, re: Private Shooting Range

10 - 45

Page 2 of 56

(g)

Paul & Kim Durant, re: Private Shooting Range

(h)

Martin Thomas, re: Private Shooting Range (presented on Feb 6)

52 - 54

(i)

Around the Rideau Newsletter - January /February 2018

55 - 56

Notice of Motions

Announcements/Statements by Councillors

Question of Clarity (from the public on outcome of agenda items)

Closed Session (if requested)

Adjournment

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REPORT TO COMMITTEE OF THE WHOLE PLANNING DEPARTMENT AGENDA DATE: February 13, 2018 REPORT DATE: February 7, 2018 SUBJECT: Proposed Road Closure and Transfer: Peck

RECOMMENDATION: The recommendation is that the Committee receive the Planning Report dated February 7, 2018 and consider the closing and transferring ownership of a portion of unopened road allowance in the District of Loughborough.

BACKGROUND: A property-owner in the District of Loughborough is requesting to know whether Council would agree to the closure and sale of a portion of unopened road allowance that runs east and west on the north side of his property near Frontenac Park. His letter dated December 18, 2017, is attached hereto as Attachment #1 including a location map and Attachment #2 is a map showing the location of the owner’s property. Attachment #3 shows the portion of unopened road allowance requested to be closed. As indicated on the attachments, the road allowance is aligned east to west on a peninsula of land which lies between Big Clear Lake and Milk Lake. From shore to shore the road allowance measures 251 metres and is 5,020 metres2 (1.2 ac.) in total area. The land is mostly scrub brush land with some mature forest cover and it is extremely steep near both shorelines. The applicant’s property and another private parcel form the south boundary of the road allowance and Frontenac Provincial Park forms the north boundary. A private lane (Lele Lane) crosses the road allowance. Given that the road allowance leads from shore to shore and is only accessed by a private lane and private land, it appears that it would not be used as a public road at any time in the future. However, Committee members may recall that this portion of the road allowance was the subject of a proposal under the new Frontenac Provincial Park Management Plan to regulate all Township-owned road allowances that abut the Park. Negotiations regarding this are ongoing but the Township’s Public Works Manager is of the opinion that these Townshipowned portions of land should not be sold off or regulated by the Park at this time but should be retained by the municipality to act as a buffer between public and private uses. Staff is seeking direction as to whether the Committee would agree to this closure and sale. Council policy related to the sale of closed Township roads would result in a total price of approximately $42, 737.00.

FINANCIAL and STAFFING CONSIDERATIONS The township would receive approximately $42, 737.00 from the transfer and sale.

ATTACHMENTS Attachment #1 – is a letter requesting the road closure and transfer. Attachment #2 - is a map showing the owner’s property location. Attachment #3 - is a map showing the road allowance. Submitted/Approved by: Lindsay Mills PeckRoadClosureReport

Prepared by: Lindsay Mills

Page 4 of 56

ATTACHMENT #1

Lindsa Mms From:

Jeff Peck peck.ja@kos.net December~18-17 1:09 PM

Sent: To: Cc:

jeff peck

Subject:

Peck Close Road Allowance Big ClearLake

LindsayMills —

—

Good Morning Lindsay, As discussed I would like to make a preliminary request to purchase the subject road allowance. You indicated to send you an email to determinewhether SFT Council would entertain the idea. I have attached a picture

from Frontenac Mapping for clarity.

If you recall, the subject Road Allowance is one of the ones attempting to be included in Frontenac Park under the Provincial Parks and ConservationAct. Despite conversations with Ontario Parks, I am a bit unclear as to their authority as the PPCRS allows for boundary amendments concerning road allowances WITHIN a park, and not ADJACENT to a park. Regardless, this may provide SFT an opportunity for some revenue prior to this amendment being executed (if possible). I would be happy to purchase the ROAD ALLOWANCE in whole or in part to allow you planning ?exibility (Straight lot lines etc)

Sincerely Jeff Peck

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Page 6 of 56

ATTACHMENT#2

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ATTACHMENT#3

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REPORT TO COUNCIL CLERK’S DEPARTMENT

AGENDA DATE:

February 13, 2018

SUBJECT:

Noise Exemption request from Desert Lake Resort

RECOMMENDATION: That Council grant an exemption to the Noise Bylaw to the Desert Lake Resort for: 4 events, to occur one evening on each of 2 Holiday weekends and 2 other non-holiday weekends in 2018 between the hours of 8:00pm and 11:00pm, for the purpose of amplified musical events subject to the dates being confirmed with the Township 3 weeks in advance. BACKGROUND: The owners of Desert Lake Resort have requested an exemption from the noise bylaw for the 2018 camping season for 4 events tentatively scheduled for July 1st, July 14th, August 4th and August 25th between the hours of 8:00pm and 11:00pm. The owners have noted their preference for an 8:00 pm start. On April 18, 2017 Council passed the following resolution: That Council grant an exemption to Noise Bylaw to the Desert Lake Resort for: 4 events, on the following dates; 2 Holiday weekends and 2 other nonholiday weekends in 2017 between the hours of 7:00pm and 10:00pm, for the purpose of amplified musical events subject to the following conditions; dates to be forwarded 3 weeks in advance to the Township and an assessment of the events by Bylaw Services The initial event schedule for 2017 included July 2, July 8, Aug 5, Aug 19. This schedule was communicated to the Lake Association on June 15, 2017, along with our plans to assess the first event and afterhours contact information reaching Bylaw Services. Bylaw Services were on site for July 2 event and drove around the area to assess the noise. They noted no concerns that would warrant enforcement action. During the four 2017 events Bylaw Services received no complaints. After the August 5th event there was a suggestion that the noise continued past 10:00pm; out as late as possibly 11:00pm. When contacted, the Resort owners apologized for any overage. In reviewing the records back for the last 5 years the only complaint on file is from August 15, 2016, which was the trigger for the 2017 request for a noise bylaw exemption. Subsequently the resort owner and the lake association appeared as delegations before Council on the matter. At that time Council was provided with the written submissions from both parties, a copy of the Noise bylaw for reference, as well as the various emails and letters from concerned citizens. With no recommended solution between the parties, Council was left to consider the request from the resort owners.

Our strength is our community.

Page 9 of 56

REPORT TO COUNCIL CLERK’S DEPARTMENT

FINANCIAL/STAFFING IMPLICATIONS: No significant costs are anticipated. ATTACHMENTS: None

Submitted/approved by:

Prepared by:

Wayne Orr

Our strength is our community.

Page 10 of 56

Ontario Municipal Board Commission des affaires municipales de l’Ontario

ISSUE DATE:

February 08, 2018

CASE NO.(S):

PL160674

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: Appellant: Appellant: Appellant: Subject: Municipality: OMB Case No.: OMB File No.: OMB Case Name:

Colleen Flood and John Brougham Chris Freeman Warren and Judith Jones Kevin McDermott; and others By-law No. 2016-36 Township of South Frontenac PL160674 PL160674 Brougham v. South Frontenac (Township)

Heard:

May 25 and 26, 2017 in Sydenham, Ontario

APPEARANCES: Parties

Counsel

Township of South Frontenac (the “Township”)

Anthony Fleming

John and Betty Simpson Colleen Flood and John Brougham Claire Moore Kevin McDermott Warren and Judith Jones Edwin Wilson Jr. and Edwin Wilson Sr. Tim Ross Chris Freeman (collectively the “Appellants”)

Michael S. Polowin Jacob Polowin

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DECISION DELIVERED BY DAVID L. LANTHIER AND ORDER OF THE BOARD [1]

The Appellants in these various Appeals object to Zoning By-law No. 2016-36

which was passed by the Township on June 1, 2016 and amended comprehensive Zoning By-Law No. 2003-75. The amendment implemented by the Zoning By-law Amendment was fairly limited, but as the Appeals are before the Board, the impact of the amendment has rather significant implications and has the effect of restricting the circumstances under which any owner of waterfront property may reconstruct a legal non-complying building or structure if it is within the 30 metres waterfront setback (“30 m Setback”) and prohibits the reconstruction of a legal non-complying building or structure within that 30 m Setback. [2]

Over the course of two days of testimony, the Board heard from the following

witnesses: Appellants: (a) Brian Gass, a former Chief Building Officer for the Township, who appeared under summons requested by the Appellant; (b) Murray Chown, a planner qualified by the Board to providing planning evidence; and (c) Reginald Earl Genge, who was qualified to provide expert planning evidence in matters relating to water quality, and other environmental matters relating to shoreline development assessments. Township: (a) Mary Alice Snetsinger, who was qualified to provide expert opinion testimony in the area of biology and environmental development assessments; and

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(b) Lindsay Mills, who holds the position of Planner/Deputy Clerk for the Township and was qualified as an expert for the purposes of providing testimony in the area of land use planning. THE ZONING BY-LAW AMENDMENT [3]

The form of the Zoning By-Law Amendment, No. 2016-36 (“ZBLA”) which is the

subject of the appeals, reads as follows, (highlighted for illustration): Now therefore, the Corporation of the Township of South Frontenac, by its Council hereby enacts as follows:

THAT Zoning By-law Number 2003-75 as amended is hereby further amended by inserting a new sentence into 5.10.2 immediately following the first sentence that ends with the word “height” to read “Reconstruction of the building is prohibited”, so that the section now reads as follows: Where a building has been erected prior to the date of passing of this By-law on an existing lot and said building has less than the minimum 30 metre (98.4 ft.) setback from the highwater mark of a waterbody or watercourse, then said building may be repaired, renovated or strengthened to a safe condition provided that there is no enlargement of the gross floor area or increase in height. Reconstruction of the building is prohibited. In addition, no living space shall be added below grade to any existing building or structure. A new sentence is added to read as follows: For the purposes of interpreting section 5.10.2, once more than 50 percent of the exterior load bearing walls of a structure located within the minimum 30 metre setback have been removed, the land is deemed to be vacant and the structure may not be reconstructed within the 30 metre setback.
THAT Zoning By-law Number 2003-75 as amended, is hereby further amended by deleting the words in the first sentence of 5.11 that read “or demolition permit required by the Corporation of the Township of South Frontenac or other authority for safety, health or sanitation requirements, providing such building or structure is serviced by potable water supply or sewage disposal system approved by the appropriate authority” so that the whole section now reads as follows:

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5.11 REPLACEMENT OF BUILDINGS OR STRUCTURES A building or structure, including a legal non-conforming and/or legal non-complying building or structure, may be replaced with a new building or structure in the case of partial or complete destruction caused by fire, lighting, explosion, tempest, flood or act of God. A building permit will only be issued, in the absence of zoning relief, provided that no enlargement of the footprint or increase in gross floor area is proposed and provided that the building permit is applied for within 12 months of the partial or complete demolition/destruction. The replacement building shall be located on and not increase the footprint or gross floor area of the non-conforming/non-complying building. The applicant shall provide proof to the satisfaction of the Chief Building Official that there will be no increase in the size of the building footprint or gross floor area and that the replacement building will be located within the same footprint as the non-conforming/non-complying building. Where applicable flood proofing and avoidance of erosion hazards should be considered.

[4]

It is the addition of the sentence, “Reconstruction of the building is prohibited”

and the additional definitive statement that stipulates that the removal of more than 50% of the exterior load-bearing walls causes the property to be considered vacant (and that “reconstruction” will therefore be occurring) that are the disputed focus of the amendment in the ZBLA. The distinction between voluntary and involuntary reasons for reconstruction is also at issue, as is the requirement that reconstruction occur within one year. [5]

There is consensus amongst the parties that if a structure is destroyed, in whole

or in part, by causes beyond the control of the property owner (fire lighting, explosion, tempest, flood or act of God) the disputed aspects of the ZBLA do not apply to prevent reconstruction, and that the ZBLA prohibition of reconstruction only applies to voluntary work on the building or structure that meets the threshold. ISSUES [6]

The issues, as they have been identified in argument, and as the evidence has

unfolded, are as follows: (a) Does the ZBLA result in any impact upon, or alter the rights of, shoreline property owners as they relate to the use of non-complying buildings and

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structures and specifically the rights of owners of legal complying buildings located within the 30 m Setback to retain such buildings in the same location and to modify or reconstruct the buildings. This includes the question of whether the ZBLA “downzones” or sterilizes an owner’s property and property rights. (b) Does s. 34(9)(a) of the Planning Act (“Act”) apply to protect the rights of owners of legal non-complying structures. More specifically does the exclusion contained within that section, which protects pre-existing lawful non-conforming uses also protect pre-existing lawfully non-compliant buildings and structures that previously complied with zoning by-law performance standards. Put another way, are non-complying rights treated in the same manner as non-conforming rights under s. 34(9)(a). (c) Does the ZBLA comply with s. 34(9)(a) of the Act as that section is then interpreted? (d) Is the ZBLA consistent with the Provincial Policy Statements 2014 (“PPS”) does the ZBLA otherwise conform to the Township’s Official Plan (“OP”) and represent good planning in the public interest. (e) If the ZBLA is valid and appropriate, does the threshold that stipulates a structure is “substantially reconstructed” and is deemed to be prohibited “reconstruction” when more than 50 percent of the exterior load bearing walls of a structure … have been removed” (thus requiring that all current performance standards apply) represent criteria that is valid and appropriate. (f) Related to items (c),(d) and (e), does the Township have the power to decide when a building or structure loses its status as a legal non-complying building or structure?

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APPELLANTS’ POSITION [7]

The position of the Appellants is that the Act, and the various decisions of the

Court and the Board, collectively confirm that existing legal non-complying structures are protected and in this case the Township has no authority to strip property owners of their rights to continue to use, and where necessary, demolish and reconstruct, structures which pre-date new zoning performance standards and are thus legal noncomplying structures. The Appellants assert that this includes shoreline set-back restrictions and that as long as the reconstruction of a building or structure will be restricted to its existing footprint and gross floor area, even if it is a complete reconstruction, the Township has no authority to insist that the owner relocate the building or structure beyond the 30 m Setback. For property owners whose lot depth from the shoreline is less than 30 metres, or where lot characteristics prohibit relocation of a structure, the ZBLA effectively sterilizes and downzones their lots such that they cannot comply with the ZBLA and use their property as it is zoned, and the Appellants submit that this is something that should not be countenanced by the Board. [8]

The Appellants refer to a number of authorities which, they assert, confirm that

the Courts have recognized and endorsed the doctrine of acquired rights as protecting a property owner’s entitlement to preserve and keep legal non-conforming structures, in their existing location, provided that there is the continuity of use. The Appellants take the position that in the case of TDL Group Corp., Re (2009) 63 O.M.B.R. 199 (“TDL”), and others, the Board has treated rights relating to the use of non-complying buildings or structures in the same manner as rights relating to non-conforming use. The right to continued use of a non-complying structure or building is the same as the right to continue a non-conforming use and both rights are to be accorded the same protection [9]

The Appellants submit that the Divisional Court decision of TDL Group Corp, Re

[2009] O.J. No. 4816, (“TDL Div. Crt.”), as it then considered the Board’s decision and applied other decisions of the Court, including the Supreme Court of Canada, should apply to protect the use of a legal non-complying structure as an inherent component of legal non-conforming use. In TDL, the Court states that s. 34(9)(a) of the Act prevents

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an owner from losing the right to continue a legal non-conforming use. The Appellants assert that this includes the right to continued use of a legal non-complying structure. [10]

Furthermore, the Appellants assert that the Courts, and the Board, have

recognized that the normal evolution of a non-conforming use or a use of a noncomplying building, includes the right to make repairs, renovations or demolish and replace that building within its footprint, as it existed prior to the new zoning by-law that imposed new standards, whether the repairs, renovations or reconstruction are undertaken voluntarily or involuntarily, no matter what the reason. The owner’s acquired rights also encompass the further right to request changes, enlargement, or extensions of the building beyond the existing footprint or lot coverage provided that such changes are carefully balanced with the community and public interests and dealt with through regular planning approval processes. [11]

The Appellants further assert that the ZBLA does not conform with the OP

policies that expressly recognize that existing buildings and structures located within the 30 m Setback may be enlarged or renovated rather than prohibited (as the ZBLA now directs). As well, the Appellants submit that there is no persuasive evidentiary basis to support the Township’s assertions that there are environmental benefits to be achieved through the ZBLA. No environmental studies were completed before the ZBLA was passed to justify the ZBLA on that basis. [12]

As well, the Appellants position is that the Township has no ability to impose a

one-year deadline for reconstruction where there is involuntary destruction of a nonconforming structure. TOWNSHIP’S POSITION [13]

The position of the Township is that as the subsections of s. 34 of the Act are

worded, a legal non-complying structure is not expressly protected by s. 34(9)(a) of the Act and it therefore possesses the authority to regulate legal non-complying structures without restriction. The Township asserts that s. 34(9)(a) of the Act applies only to nonconforming uses and not to non-complying structures. The treatment of non-complying

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structures is entirely different from the treatment of non-conforming uses under both the legislation and the authorities that have addressed these issues of non-compliance and non-conformity. [14]

Accordingly, despite the protection afforded to “grandfathered” non-complying

structures that were built before the enactment of new zoning standards, the Township asserts that the existing performance standards passed by the Township continue to be in full force and effect when any subsequent alteration or new construction occurs. Such new construction must comply with those new performance standards. This means that the Township will require a reconstructed building or structure to be relocated outside of the 30 m Setback and subject to the new performance standards. The Township’s position is that it has the complete discretion to then decide if and when the non-compliant building might be permitted to remain in the 30 m Setback. [15]

Applying this analysis, the Township submits that it has the ability to pass the

ZBLA as part of its powers to regulate buildings and that it conforms with the OP policies that restrict waterfront development within the 30 m Setback in order to protect public interest in water quality, environmental protection and the aesthetic character of waterfront areas. It represents good land use planning for the Township to gradually bring properties into compliance when the opportunity arises and when substantial improvements are undertaken that cause the non-complying nature of the structure to cease. The Township accordingly submits that the ZBLA, and the 50% threshold, as it is worded in the ZBLA, is valid and is not affected by, and is distinguishable from, the collection of Decisions cited by the Appellants. The Township submits that it is also able to impose the one-year requirement for reconstruction of an involuntary destruction of a building. [16]

The Township emphasizes that if proposed work on a structure meets the

threshold and constitutes prohibited reconstruction within the 30 m setback, it is still possible for owners to apply to the Township for the Act’s approvals to permit the building to be within the 30 m Setback.

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EVIDENCE AND ANALYSIS OF THE ISSUES Impact of the Amendments [17]

On the evidence presented, and with the form of the ZBLA as drafted, there is

little doubt, in the Board’s view, that the amendments result in a substantial change in the ability of any owner of shoreline property to undertake voluntary substantial renovation or reconstruction of their dwelling or other structure if it is located in the 30 m Setback. As the new wording would apply, whatever existing right an owner might have had to continue the use of a legal non-compliant building, where it exists in the 30 m Setback, terminates immediately at the point in time that the owner desires to replace more than 50% of the load-bearing walls. [18]

It is not overstating the result of this amendment to say that such a change has

far-reaching impacts upon many owners in the Township’s jurisdiction. As a longestablished recreational property area, the Township’s residential property base contains a large number of shoreline residential and recreational properties, situated along the extensive shorelines of the many lakes and water courses located within the Township’s boundaries. Many of the buildings on these properties long pre-date the implementation of planning controls and are thus legally non-compliant structures because they are located within the 30 m Setback. A brief glance at the maps at Tab 30 of Exhibit 1B confirms the considerable number of affected buildings on the shoreline of just Sydenham Lake and Little Long Lake alone. Mr. Chown testified that the number of structures affects was “in the hundreds”, and might be “in the thousands”. While the Board was not provided with exact figures, it is able to conclude that insofar as the number of properties is concerned, the number is significant. [19]

The evidence in these appeals also indicates that a fair percentage of the stock

of dwellings, both permanent and seasonal, will require substantial reconstruction in the years ahead, and in many cases, the market demand for shoreline properties will give rise to an ongoing requirement for upgrading or replacement of older structures. As a result the incidence of requests for building permits for the reconstruction of existing dwellings within the 30 m Setback will not be insignificant.

[20]

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Mr. Gass, has testified as to his concerns as to the effect of the ZBLA. Prior to

his departure as the Township’s Chief Building Officer, Mr. Gass expressed his pointed concerns regarding the proposed wording of the ZBLA and set these concerns out in a Memo to Council and Mr. Mills (Exhibit 1A, Tab 14, p. 73-74). Mr. Gass indicated that if the 50% loadbearing threshold was applied, this meant that the Township would be requiring owners to forgo thousands of dollars in value in footings, foundations and floor systems, and result in the forced relocation of many structures in the Township. This would also cause the destruction of additional vegetation and tree cover to create a new relocated building footprint, while abandoning the existing building footprint. This would result in the blasting, digging, and disruption of topography in two areas on each property, instead of renovations limited to the existing building footprint and the possible preservation of existing footings and foundation. [21]

Mr. Gass also felt that owners would be motivated to illegally attend to

renovations and in his Memo, described other negative impacts and adverse effects arising from the fact that the ZBLA causes lots to be classified as “vacant” when owners elect to reconstruct their home. In Mr. Gass’s experience, homeowners with limited lot frontage or depth, had significant limitations in being able to relocate a dwelling outside the 30 m Setback, and would find their properties incapable of redevelopment as a result of the absolute prohibition imposed against any reconstruction of a legally noncompliant dwelling. [22]

Mr. Genge also provided his testimony as to the environmental effects of the

ZBLA, which is dealt with further below. Mr. Genge was concerned that the potential disruption or destruction of vegetation, mature trees and soils in additional parts of an owner’s property, that would be necessitated by the relocation of the dwelling beyond the 30 m Setback, would result in unwanted clearcutting of additional portions of land, and leave behind the cleared area where the legal non-complying structure is currently located. From an environmental perspective, this could result in additional erosion, and possible destruction of water habitat at the shoreline. This too would result in increased costs that could be avoided if the existing dwelling remained in the existing footprint.

[23]

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Mr. Chown provided planning evidence that echoed Mr. Gass’s practical

concerns and warnings. Mr. Chown’s planning opinion was that the ZBLA would effectively eliminate the existing protected right of property owners to reconstruct legal non-complying buildings within the 30 m Setback. The result, in Mr. Chown’s view, is that all owners of older structures located within the Setback will eventually be forced to apply for planning permissions to replace legally non-complying structures, which they currently are able to do as a matter of right. On cross-examination, Mr. Chown conceded that the option indeed existed for owners to make application under the ZBLA to the Committee of Adjustment for approvals that would allow reconstruction. However, in his view, Mr. Chown stated that this was not a reasonable alternative to the preservation of the right to continue the use of legal non-complying buildings already enjoyed by these owners. [24]

Mr. Chown reflected on the past track record of the Township and felt that this

would effectively mean that each property owner would now be subject to the discretionary powers of the planning staff and the Committee of Adjustment and the uncertainties of such a process. Mr. Chown opined that owners should not be required to be subjected to the onerous requirement of having to submit to an unpredictable decision making process to reconstruct their legal non-compliant dwellings. [25]

On cross-examination of Mr. Mills, the Board heard that Mr. Chown’s assessment

of the Township’s “track record” on such applications was not misplaced, as Mr. Mills admitted that of the 10 applications brought to the Committee of Adjustment to rebuild in the same footprint in the past five years, he had recommended the denial of all of them. Mr. Mills confirmed that the Committee of Adjustment for the Township usually followed his recommendations. [26]

Leaving aside his comments and opinion regarding the motivation, planning

justification, or authority for the ZBLA, or the property of the ZBLA, Mr. Mills, in his testimony essentially maintained the stance taken in his planning reports and the review processes leading to the passage of the ZBLA. That stance was that there was “really no change occurring here” since the amendment was only “continuing the approach that

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has always been taken” and was “really just a housekeeping by-law” Mr. Chown was of the contrary opinion that the ZBLA was not a “housekeeping” zoning by-law amendment and neither was it simply to “clarify” the existing approach of the Township. [27]

The Board prefers Mr. Chown’s assessment of the nature, form and effect of the

ZBLA and cannot agree with Mr. Mill’s assessment of the ZBLA, or his dismissal of the amendment, as having no real effect or impact. Such a view is, in the Board’s view, neither correct, nor reasonable, based on all of the evidence presented. [28]

As to the issue of impact, and the effect of the amendments, the Board wholly

prefers the Appellant’s evidence as expressed by Mr. Chown (and by Mr. Gass) which more accurately views the impact of the amendment as a substantial alteration of the rights of shoreline property owners, with the practical impact of sterilizing and downzoning properties with frontages of less than 30 m or with constraints that prevent the relocation of dwellings outside the 30 m Setback. [29]

The Board is inclined to agree with Mr. Chown’s expressed planning concerns

and finds that the ZBLA has the substantial effect of unilaterally stripping owners of dwellings and structures within the 30 m buffer of their continuing right of use of these legal non-complying dwellings and structures. This conclusion as to the abrogation of property owner’s acquired rights relating to the use of non-complying buildings and structures is supported by decisions of both the Court and the Board, and this is discussed more fully in the analysis below. [30]

The circumstances faced by property owners as a result of the ZBLA is to be

distinguished from those faced by owners or buyers of vacant lots who plan and develop the properties on a go-forward basis. From the outset, these owners and buyers of vacant property accept their obligations to comply with requirements for use and performance standards established by the Township. [31]

In contrast, owners of existing structures in the 30 m Setback, under the ZBLA,

will face the daunting uncertainties of what restrictions and issues may arise for them when they must determine: where the replacement structure will be situate; what septic

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and well systems must be altered or replaced; what other driveways, entrances, culverts, fences, electrical services, or other accessory structures must be relocated or replaced; what site preparation will be required; which mature trees may have to be removed to accommodate the relocation of the building. With all of these potential requirements imposed upon owners, if the relocation of their dwelling or structure is directed, there comes the additional cost, and potential hardships that may arise in accommodating the prohibition against reconstruction in the 30 m Setback. These real and practical concerns relating to impact are fleshed out in some detail in the numerous submissions that were made by residents, to the Township, in the consultation process (Exhibit 1A, Tab 12). [32]

It is self-evident, from this, that if the Board concludes that a property owner in

the Township who currently makes use of a legal non-complying building or structure within the 30 m Setback has an acquired legal right to voluntarily reconstruct that building or structure within the same footprint, and of the same size and dimension, the form of the ZBLA has the effect of altering or terminating that acquired legal right. [33]

The Board accordingly finds that the Township’s ZBLA would cause significant

impacts upon owners of legal non-complying building or structure within the 30 m Setback, as described by Mr. Gass, Mr. Chown and Mr. Genge. On the evidence, the Board finds that in many cases, the onerous requirements relating to the relocation of a dwelling would be adverse, and represent a hardship for property owners of legal noncomplying buildings. In some cases, where an owner’s property has a depth of less than 30 m or is of a size, configuration and topography, the Board finds that the ZBLA’s absolute prohibition against voluntary reconstruction in the 30 m Setback would indeed effectively sterilize the owner’s property and downzone the property as Mr. Chown has explained. [34]

The Board would therefore conclude that the ZBLA’s prohibition against

reconstruction significantly alters the rights of shoreline property owners who currently make use of legal non-complying buildings or structures in the 30 m Setback.

[35]

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For these reasons, such potential adverse effects and the alteration of those

rights cannot, and should not, be permitted unless the Township can satisfy the Board that: (a) the derogation of such rights of continued use of legal non-complying structures and buildings, as asserted by these property owners, is permitted by the Act and the common law; and (b) the amendment is otherwise consistent with the PPS, conforms to the OP and represents good planning, in the public interest. If the Township is able to satisfy those requirements, it remains to be determined whether the form of the amendments, including the criteria and the imposed requirements for reconstruction, are appropriate. Non-Conforming Uses vs. Non-Complying Structures – Is the Amendment Permitted under s. 34(9)(a) of the Planning Act or Planning Law The Opposing Views [36]

At the heart of this issue before the Board, is whether the protection of the rights

afforded to legal non-conforming uses under s. 34(9)(a) of the Act includes legal noncomplying building and structures or instead applies only to safeguard rights relating to legal non-conforming uses of property. Are they the same, or different? This issue determines whether the Township has the jurisdiction to alter or terminate the rights of owners to continue the use of a legal non-complying buildings or structures in the 30 m Setback. [37]

The evidence and submission of the Appellants is that s. 34(9)(a) is inclusive of

both rights and that “non-complying” and “non-conforming” are one-in-the-same and indistinguishable from a planning perspective. The Appellants assert that this is supported by a number of decisions of the Court and the Board.

[38]

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The position of the Township is that non-conforming uses are entirely different

from non-complying buildings and structures and that the statutory and legal protection granted under s. 34(9)(a) governing non-conforming uses does not apply to nonconforming buildings and structures. The Township submits that as s. 34(9)(a) is drafted, it applies only to non-conforming uses and only to by-laws drafted pursuant to s. 34(1) 1 and 34(1) 2 relating to “use”. It does not apply to performance standards in by-laws drafted pursuant to s. 34(1) 4. [39]

On this premise, the Township maintains that the protected grandfathering right

granted to a property owner is the right use of the property and the buildings, and not the building itself. The Township may accordingly require owners of legal non-complying buildings to move them off the 30 m Setback at any point that they wish to reconstruct them and dictate a threshold as to when reconstruction is occurring such that the legal non-compliance of the building ends. The Township also points to s. 34(10) as confirming that an owner of a legal non-complying building is not automatically entitled to expand or enlarge the structure unless permission is obtained. [40]

The Township distinguishes these appeals before the Board, from the authorities

cited by the Appellants, and has referred the Board to other decisions. The Planning Act – Sections 34(1) 1, 2 and 4, and s. 34(9) and 34(10) [41]

For the purposes of the analysis of this issue it is helpful to refer to the applicable

provisions of s. 34 of the Act which provides a municipality with the authority to pass zoning by-laws and s. 34(9) and s. 34(10) which sets out the exceptions. They are as follows: Zoning by-laws 34(1) Zoning by-laws may be passed by the councils of local municipalities: Restricting use of land

For prohibiting the use of land, for or except for such purposes as may be set out in the by-law within the municipality or within any

16 defined area or areas or abutting on any defined highway or part of a highway. Restricting erecting, locating or using of buildings 2. For prohibiting the erecting, locating or using of buildings or structures for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or upon land abutting on any defined highway or part of a highway. … Construction of buildings or structures 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 or upon land abutting on any defined highway or part of a highway, and the minimum frontage and depth of the parcel of land and the proportion of the area thereof that any building or structure may occupy. … Excepted lands and buildings (9) No by-law passed under this section applies, (a) to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose; or (b) to prevent the erection or use for a purpose prohibited by the bylaw of any building or structure for which a permit has been issued under subsection 8 (1) of the Building Code Act, 1992, prior to the day of the passing of the by-law, so long as the building or structure when erected is used and continues to be used for the purpose for which it was erected and provided the permit has not been revoked under subsection 8 (10) of that Act. By-law may be amended (10) Despite any other provision of this section, any by-law passed under this section or a predecessor of this section may be amended so as to permit the extension or enlargement of any land, building or structure used for any purpose prohibited by the by-law if such land, building or structure continues to be used in the same manner and

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for the same purpose as it was used on the day such by-law was passed.

OVERVIEW [42]

The Board must agree that on a first reading of s. 34(9)(a), specific wording is not

apparent that would directly link the application of the exception to the wording in s. 34(1)4, in the same manner that s. 34(9)(a) is linked to by-laws passed pursuant to s. 34(1)1 and 34(1)2. However the matter does not end there and it is necessary to consider the wording of s. 34(9)(a) as it refers to “use”, and as it may thus create the “grandfathering” rights for non-complying buildings. [43]

The Board is of the view that s. 34(9)(a), as it is drafted, and as it has been

interpreted by the Board and the Courts, already encompasses the use of noncomplying buildings and thus grants property owners “non-complying rights” similar to “non-conforming rights”. It is the Board’s view that the Township’s restrictive interpretation is not the correct approach and that the Appellant’s interpretation of the legislation and the law, and the Appellant’s approach, should govern for the reasons that follow. The Appellant’s Planning Evidence [44]

Mr. Chown has provided planning evidence on this issue and states that through

the course of his career as a planner for over forty-odd years, he and other planners have been unable to fathom any difference between “non-conformance” and “noncompliance” as the terms were applied when dealing with “grandfathering” and when considering s. 39(4)(a) of the Act, or its predecessor. Insofar as he and many other planners have been concerned, despite the distinction drawn in recent years between the two concepts by some municipalities, the assumption has always been that the concept of legal non-conformity in 39(4)(a) of the Act includes both the legal nonconforming use of land or building under a Zoning By-law (“ZBL”) and the use of the legal non-complying building or structure on the land.

[45]

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In support of this assumptive view, Mr. Chown points to the fact that nowhere in

s. 34(9)(a) does the section refer to either “non-conformance” or “non-compliance”, and nowhere in the Act are either of those terms used in relation to the concept of “grandfathering” rights as they are granted to owners under the Act. Mr. Chown was of the opinion that within planning and development practice in Ontario, the use and application of the terms “legal non-conformance” and “legal non-conformity” are sometimes interchangeable but both are considered to be connected to the concept of “use”. [46]

Accordingly, in Mr. Chown’s view, references to “permitted uses” or “lawful uses”

in s. 34(9)(a) include the use of lands, buildings and structures for a permitted purpose or prohibited purpose. Mr. Chown thus concludes that, from a planning perspective, the continued use that is “grandfathered” by s. 34(9)(a) includes the continued use of legal non-complying buildings and structures. At the same time, references to “permitted uses” or “prohibited uses” also deals with the use of buildings or structures that do not meet performance standards and the grandfathered “continued use” of such buildings and structures is what is considered a legal non-complying use. [47]

In cross-examination by the Township, Mr. Chown was pressed to agree that

there was a clear distinction between ZBL restrictions on the use of land or building where “use” relates to the purpose for which the land was used, and ZBL restrictions as to performance standards that relate to the condition of the buildings or lands, and not the “use” of them. Mr. Chown firmly disagrees, and opines that “use” can relate both to the use of land, or the use of buildings, and if the Act speaks to the use of land, then the presence on the land of a building, and the condition of that building as dictated by the ZBL, most-certainly relates to the “use” of the land. As Mr. Chown indicates in his testimony, “the building is simply the vehicle for the use of the land”. [48]

Mr. Chown also indicates that from a planning perspective, in this case, whether

the presence of a building within the 30 m Setback is termed as non-conforming or noncomplying matters little, since the prohibition relates to the location of the structure within the 30 m Setback. Practically if the “location” of the building within the 30 m

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Setback is what is prohibited, it is the use of that building within the 30 m Setback that is prohibited and therefore s. 34(9)(a) which is intended to grandfather uses that preceded the passing of the by-law, applies. The Board finds this assertion to be both logical and persuasive and agrees that the presence and location of a dwelling within a prohibited area cannot be disassociated from the use of that dwelling in the prohibited area. Mr. Mills’ Planning Evidence [49]

Mr. Mills is of the opinion that there is a clear distinction between legal non-

conforming uses and non-complying buildings and structures. Mr. Mills indicates that many municipal zoning by-laws now distinguish between the two and that how noncomplying buildings and structures are dealt with is very different from legal nonconforming uses. Mr. Mills has reviewed the wording of s. 34(9)(a) of the Act and indicates that, in his view, this section gives special status to legal non-conforming uses but “leaves the matter of legal non-complying buildings and structures alone”. [50]

In Mr. Mill’s view, there is no doubt that the reference to the word “use” and

“used” three times in this subsection establishes that the section grants protection only to uses and not to non-complying buildings. The fact that s. 45(2) of the Act mirrors the references to “use”, for Mr. Mills, emphasizes the exclusion of non-complying buildings or structures from being considered for variances under that section. [51]

As to the distinction between non-conforming uses and non-complying buildings,

Mr. Mills opined that “there is a lot of confusion on these two terms” and are two different things. Mr. Mills was not prepared to agree that a building or structure on a property was a form of “use” of a property. Mr. Mills testifies that this “confusion” and “misunderstanding” is one of the reasons the ZBLA is needed as a housekeeping bylaw to clarify things. [52]

The Board would note that Mr. Mill’s opinion, in this regard, is only correct if his

interpretation of s. 34(9)(a) as excluding the use of non-complying buildings and structures is the correct one. It is the Board’s finding that it is not the correct interpretation.

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The Terminology In, and Organization of, the Township’s Existing Zoning By-Law [53]

The Board would note that the tendency towards a homogeneous planning

approach to the concept of “use” described by Mr. Chown, as it is considered to apply to both non-conforming uses and non-complying uses, appears to be supported by the manner in which in the terms are used in the Township’s own Comprehensive Zoning By-law. [54]

The Township’s comprehensive Zoning By-law (Exhibit 1B, Tab 22) refers to

“Legal non-conforming uses” in s. 5.9 and then refers to “Legal non-complying uses” (emphasis added) in s. 5.10, which is the section in which the disputed amendments have been made. As s. 5.10 is drafted by the Township, “Buildings on Existing Lots”, (s. 5.10.1) and “Existing Buildings with 30 Meters of a Waterbody or Watercourse” (s. 5.10.2) which are legally erected prior to the date of the passing of the ZBLA, are considered to be Legal Non-Complying Uses. The Township’s By-law does not categorize the buildings as legal non-complying buildings or structures but instead uses terminology that refers to the “use” of legal non-complying buildings or structures. [55]

The Board recognizes that general references in the headings of the ZBL are not

necessarily determinative of the issue but the fact that the Township’s ZBL refers to “Legal Non-Complying Uses” supports Mr. Chown’s opinion that generally, in planning, legal non-conforming and legal non-complying have both been considered part of the broad concept of grandfathered “uses” and often referred to as such. Analysis and Discussion of the Case Law and s. 34(9)(a) of the Act [56]

The Board has considered the decisions to which the Board was referred to by

the parties. It is the Board’s conclusion that as the case law has evolved, and as s. 34(9)(a) is drafted, all owners who use legal non-complying buildings and structures on their lands have an acquired right that cannot be modified or taken away. Such rights include the right to demolish and reconstruct a building or structures. Such rights also include the right to seek planning approval to expand or enlarge the legal noncomplying building.

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The TDL Case [57]

The Board in these appeals has been directed by the Appellants to the decisions

of the Board and the Divisional Court, TDL and TDL Div. Crt.) (Collectively “TDL Group”). The Board agrees that these two decisions in the TDL Group are of particular relevance to the Board in these Appeals. As the appeal in that case was first before the Board, the Appellants objected to zoning by-law amendments which were very similar in form and effect to the ZBLA before the Board in this case. The amendment under review by the Board in that case had the effect of extinguishing the non-conforming use rights that related to the use of a building, structure, etc. if the building was damaged, demolished or removed voluntarily by the owner (and not through loss beyond the control of the owner) or abandoned, or not repaired after a two year period. Very specifically the municipality’s amendment, in that case also stated that the amendments also applied “with all necessary modification to a non-complying building.” [58]

The Board found that the proposed zoning by-law amendment had the effect of

causing the landowners to lose their right to replace the building in which the nonconforming use was occurring, as well as their right to continue the use even if they rebuilt the structure on the same foot-print of the existing building. [59]

The Board concluded that this effect upon the rights of property owners was not

permitted under s. 34(9)(a) of the Act and the law relating to legal non-conforming use rights. After a thorough review of the case law authorities the Board found that the municipality’s intended goal of encouraging the gradual cessation of all legal nonconforming uses through the imposition of the amendment, was contrary to the principles set out by the Courts relating to acquired rights and s. 34(9)(a) of the Act. The Board found that there was nothing in s. 34(9)(a) of the Act that provided the municipality with the ability to pass a by-law that had the effect of dictating that a right of an owner to a legal non-conforming use would be automatically lost if the renovations or reconstruction of the building were voluntary or within the control of the owner.

[60]

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The Board in that case did not directly address the specific question raised in

these appeals of whether s. 34(9)(a) protects non-complying buildings or structures in the same manner as non-conforming uses. In TDL Group, the zoning by-law amendment expressly added the statement that it applied to non-complying buildings. Nevertheless, the Board’s Decision did not suggest that 34(9)(a) did not apply to legal non-complying buildings. As the Decision is considered the Board, in fact, appears to have accepted the submission of counsel that legal non-complying rights are to be treated in the same manner as legal non-conforming rights. [61]

The Divisional Court then denied an application for leave to appeal the Board’s

decision in the TDL case and concluded that it could not find any error in the reasoning of the Board. That included the finding of the Board that nothing in s. 34(9)(a) of the Act allows acquired rights to continue legal non-conforming uses to be extinguished in the manner that occurred under the by-law passed by the municipality. As the decision of the Court is written, there is nothing to indicate that the portion of the by-law relating to legal non-conforming buildings is to be treated any differently than legal non-conforming uses. [62]

In the Board’s view, the TDL Group decisions firmly support the approach that all

owners who use legal non-complying buildings and structures on their property have the same protected acquired right to continue such use in the same manner that owners of properties that have legal non-conforming uses are protected. Both the Board and the Divisional Court provided a thorough analysis of the underlying principles identified by the courts, inclusive of the Supreme Court of Canada, leading to this approach. Section 34 of the Act – Performance Standards and Uses [63]

Subsections 34(1) 4, 5, and 6 of the Act authorize the passage of zoning by-laws

to regulate development and performances standards. As the provisions in such zoning by-laws regulate, control, restrict, limit or prohibit certain aspects of the form of a building they also logically affect the inherent and intrinsic manner in which the building is used. To conceptually separate the manner in which a building may be constructed

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from the manner in which a building may be used, ignores the true nature of performance standards, why they are passed, why they represent such a fundamental aspect of planning and development and why they are so vehemently pursued, and steadfastly objected to, when they become the subject of a minor variance application— something easily understood when reading most any minor variance application before the Board. [64]

The connection between performance standards and the use of a building is

easily illustrated. An owner’s request for a minor variance to vary a performance standard of a zoning by-law which prohibits the ability of the owner to install a desired integral garage in a dwelling, or add extra square footage to accommodate an additional bedroom, or rear balcony in the dwelling is “all about the use”. The performance standard as imposed, or varied, directly affects the way in which an owner will, or will not, use the dwelling. The passage of a zoning by-law that regulates how a garage may be integrated into a dwelling, the height, depth, and lot coverage of a dwelling, or the size of a second storey balcony rising above the neighbour’s backyard, is, in every sense, regulating the use that may be made of both the land and the building. [65]

For the reasons indicated above, the Board finds that s. 34(9)(a) of the Act

protects the acquired right of continued use of the legal non-complying building on a property just as it protects the acquired right of legal non-conforming uses of a property. Accordingly the Township’s argument that seeks to strictly differentiate between nonconforming uses and non-complying buildings and structures, in order to exclude it from the statutory protection afforded by s. 34(9)(a) is, in the Board’s view, not persuasive. [66]

The Board finds that the manner in which the Board and the Court have

addressed the ability of a municipality to pass a zoning by-law amendment which identifies a “threshold” event that causes an owner’s acquired right to continue a legal non-conforming use to be restricted or terminated (such as occurred in TDL Group) applies in every respect to a ZBLA such as the one passed by the Township in these appeals. Those principles relating to the acquired rights of owners to continue legal non-conforming uses, and the protection of those rights, as provided for by the Supreme

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Court of Canada, and considered and applied in the decisions of the Board and the Divisional Court in TDL Group, and in other decisions, equally apply to the appeals before the Board. [67]

The decisions of the Supreme Court of Canada in Central Jewish Institute v.

Toronto (City), [1948] S.C.R. 101 (“Central Jewish Institute”) and Saint-Romuald (Ville) c. Oliver, [2001] 2 S.C.R. 898 (“Saint-Romuald”) as they have been canvassed in the various decisions of the Board and the Ontario appeal courts cited by the Appellants are equally applicable, in all respects, to the inclusive rights of owners to continue the use of legal non-compliant buildings and structures. Central Jewish Institute [68]

In Central Jewish Institute the Court upheld the right of an owner to expand a

lawful non-conforming use within the confines of its existing building. The Board, in TDL Group decided that Central Jewish Institute affirmed the right of a landowner to continue with a legal non-conforming use and stood for the proposition that such a use can be expanded within the confines of the buildings and is not to be lightly overridden when a change occurs in the use, but it is nevertheless continued in the same building. The Board agrees that this rationale that protects the core acquired right to continue the use of a legal non-complying building applies in equal measure to circumstances such as these where there will be a change in the form of the building but not to the location, footprint and gross floor area of the building. [69]

Applying that rationale to these appeals, notwithstanding the change that may

occur to the form of the building when it is demolished and reconstructed, the use of the building where it is used and located has not changed and should continue. The Board finds that the Township’s attempt to use the change event as a reason to terminate the continuing use of the legal non-conforming building is inconsistent with this rationale.

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Saint-Romuald [70]

In Saint-Romuald the Supreme Court of Canada was again dealing with the

ability of an owner to intensify and change the legal non-conforming use of a building. The Supreme Court laid out the manner in which statutory rights of “grandfathering” implement the doctrine of acquired rights which is premised upon the real and reasonable expectation of the landowner that he or she will continue the legal nonconforming use. Under that doctrine of “acquired rights” the owner is not only entitled to continue the use that existed when the new by-law was passed, but is also entitled to some flexibility in the operation of that use. There is recognition that “normal evolution” may occur in some uses, with the passage of time, and that a use protected by acquired rights may be exercised more intensively and adapt to the demands of the market or the technology that are relevant to the use but will still continue. [71]

The Court considered the fact that such changes through the intensification of

pre-existing uses of a building will however be subject to limitations, and stated that continuation of use at a more intensified level through renewal and change, is clearly protected so long as the character of the use is not so different in terms of impact on the community, as to result in an altogether different use. The Court spoke to this balancing of the right of the owner with the public interest stating (paragraphs 34 and 35): The Court’s objective is to maintain a fair balance between the individual landowner’s interest and the community’s interest. The landowner overreaches itself if (i) the scale or intensity of the activity can be said to bring about a change in the type of use, as mentioned above, or if (ii) the addition of new activities or the modification of old activities, (albeit within the same general land use purpose), is seen by the Court as too remote from the earlier activities to be entitled to protection, or if (iii) the new or modified activities can be shown to create undue additional or aggravated problems for the municipality, the local authorities, or the neighbours, as compared with what went before. The factors are balanced against one another. … It stands to reason that in attempting to accommodate the landowner’s real and natural expectation of the continuation of the status quo, and to properly maintain the balance between the interests of the landowner and the community, the Court should also have these “neighbourhood effects” in mind in considering the situation of a landowner who has somewhat modified or extended pre-existing activities within the same

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general use category… In those jurisdictions, as in Canada, planning is concerned not only with the physical use of land but also with any adverse effects of such uses on the surrounding area. It is appropriate to carry that concern forward into the Court’s consideration of added, altered or modified activities which are claimed to be protected by the prior existing use.

[72]

Having determined that the right under s. 34(9)(a) to maintain the status quo of

an owner’s legal non-conforming use of land and the right to maintain the status quo of the use of a legal non-complying building or structure on the land, are to be dealt with in the same manner, it is not an overly difficult exercise to apply the rationale and principles outlined by the Supreme Court of Canada in Saint-Romuald to the use of a legal non-complying building. [73]

An owner making use of a legal non-complying building or structure, based upon

the doctrine of acquired rights, should also have the reasonable expectation that he or she can maintain the status quo of that use. Such acquired right also recognizes that with the passage of time, flexibility is required, normal evolution may occur, and the updating of a building or structure may be required to adapt, modernize and maintain the integrity of the building or structure. It is the Board’s view that the kind of flexibility, evolution and adaptation discussed by the Supreme Court in Saint-Romuald in relation to non-conforming use equally applies, upon the same reasoning and doctrine of acquired rights, to permit an owner to undertake renovations or reconstruction of a noncomplying building or structure in order to maintain the right of continued use without loss of value. [74]

Equally so, in permitting renewal and changes to the legal non-complying

building or structure, there is the objective of maintaining a fair balance between the interest of the owner of the building or structure and the community’s interest. The owner cannot “overreach” and the scale and size of the building or structure, and any expansions or additions to the building, cannot be too remote from the scale, intensity or size of the building that existed before the renovation or reconstruction. The permitted change cannot create undue additional or aggravated problems for the municipality, local authorities or the neighbours as compared with what went before. Such concerns,

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including adverse neighbourhood effects, must be balanced against one another where the owner is proposing a modification or extension of the building or structure. [75]

The additional and related right to proceed with renewal and change, as provided

for in Saint-Romuald is an extension of the acquired right to continue the use of the legal non-complying building or structure, which cannot be altered or terminated. Following the approach in Saint-Romuald, the Board concludes that the Appellants are entitled to retain their acquired right to use their legal non-complying building or structures, inclusive of the right to reconstruct the building and effect the type of “renewal and change” without seeking permission if there is no enlargement of the footprint or increase in gross floor area. They are also entitled to request further change, expansion or enlargement of the building, provided that they have secured planning approvals from the Township. In that respect the Township’s submissions are reasonable. OTHER DECISIONS [76]

In Deike, Re. 2008 CarswellOnt 1542 (“Deike”), Valastro, Re, 2013 CarswellOnt

11532 (“Valastro”) and Asgharzadeh, Re, 2010 CarswellOnt 4047 (“Asgharzadeh”), the Board also applied this approach in responding to the owner’s request to make changes to an existing structure. In Re Deike, the Board found that a proposed addition to the existing structure would lead to additional adverse impacts to an abutting neighbour and in the context of a minor variance application the request was denied. In Valastro, the Board instead found that the application to expand the legal non-complying use of the property by adding a second storey to the building represented good planning, without any adverse effect on neighbours. In Asgharzadeh, the Board confirmed that the owners were asking for an extension or enlargement of their legal non-conforming use to rebuild existing dilapidated garages structures, which enjoyed legal non-conforming status, by replacing them with garages that would be larger than the original structure, and which would have slightly different roof design and agreed that such changes were minor and that the “litmus test” for assessing the extension or enlargement of an existing legal non-conforming use was the balancing of interests as described by the Supreme Court in Saint-Romuald.

[77]

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The Board finds that the decisions of Deike, Valastro and Asgharzadeh are all

instructive in recognizing that the protection of acquired rights to continue use of a legal non-conforming building, as confirmed by the Supreme Court of Canada, can be practically implemented by municipal planning authorities, or the Board, by using the applicable planning tools necessary. Such processes ensure that requests to change or alter a legal-complying building will result in no adverse impacts upon neighbours or the public at large while still preserving the owner’s acquired rights. The Township’s Authorities [78]

The Board has considered the authorities relevant to this issue that have been

provided by the Township. Some of the Township’s authorities cited relate to the issue of whether legal non-complying buildings and structures are to be distinguished from legal non-conforming uses. The Board has already made findings in this regard, and specifically as to the application of s. 34(9)(a) and is not persuaded by any of the decisions provided by the Township on this point alter the findings of the Board on this issue. [79]

The Board has also considered the excerpt from “Sullivan on the Construction of

Statutes” as submitted by the Township. It is the Board’s view that the statutory interpretation principles including the doctrine of implied exclusion are not applicable so as to alter the Board’s analysis and findings with respect to the operation of s. 34(9)(a). Having determined that a reasonable analysis of the term “use”, from a planning perspective recognizes that “use” is inclusive of the use of a building or structure and having determined that the form and function of a building determines its use (and conversely that the use that may be made of a building is dictated by a building’s form, as governed by performance standards) the Board is of the view that its findings on this point are sound. [80]

The Board notes that a number of the authorities relied upon by the Township

pre-date the Supreme Court of Canada decisions and the decisions in TDL Group.

[81]

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In the Board’s view, the decision of Ottawa (City) v. Capital Parking Inc., 2002

CarswellOnt 1197, rendered by the Ontario Court of Appeal supports the premise that performance standards affect the manner in which a building is used. Although, in that case, the fact circumstances are different, and the issue was that of legal nonconforming use (as opposed to legal non-compliance of a performance standard) the Court of Appeal nevertheless addressed the continuity of performance standards. The Court decided that because the performance standards had not changed between the old by-law and the new by-law, the “actual use of the property” was thus maintained. In the Board’s view, the Court of Appeal has noted that performance standards affecting a property are directly connected to the use that may be made of a property and it cannot therefore be said that the legal non-compliance of performance standards for the building on the property is unrelated to “use”. Summary of Findings - Use of Non-Complying Building or Structure [82]

To summarize, upon the planning evidence provided, and following the analysis

indicated, the Board finds that the acquired right of continued use of the legal nonconforming building on a property is no different from the acquired right of legal nonconforming uses on a property. The Board cannot agree that non-conforming uses and non-complying buildings and structures can be distinguished in a manner that would then permit the Township to pass the ZBLA without regard for s. 34(9)(a) or the cases reviewed herein. [83]

Upon the planning evidence provided, and following the analysis indicated,

including the application of the principles set out in the cases submitted to the Board, it is also the Board’s finding that the Township’s ZBLA as it would absolutely prohibit any reconstruction, as defined, from occurring within the 30 m Setback, and the imposition of the 50% threshold, also restricts and removes the acquired right of an owner to reconstruct the building or structure upon the same footprint, in the same size. This is inconsistent with s. 34(9)(a) of the Act and exceeds the jurisdiction of the Township. [84]

Finally, the Board also finds that the ZBLA’s prohibition against reconstruction

will also hinder the owner’s right to apply for modifications of the type described by the

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Supreme Court which recognize the evolution of the owner’s right to request renewal and changes to the building or structure. The decisions of the Board and Courts are clear that this right is inherently part of the acquired rights of the owner and the Township is not able to withhold consideration of such requests. [85]

Having made its findings, and having concluded that the ZBLA is not compliant

with the provisions of the Act, it remains to determine whether the ZBLA is consistent with the PPS, conforms to the OP and represents good planning. This includes a consideration of the environmental evidence received during the hearing. Environmental and Planning Evidence and Planning Rationale for ZBLA [86]

The Board has considered the evidence provided by both Mr. Genge and Ms.

Snetsinger as it relates to the environmental matters, including their testimony as it relates to the Hutchinson Environmental Sciences Ltd. Assessment of Municipal Site Evaluation Guidelines for Waterfront Development in Eastern Ontario’s Lake Country (Exhibit 1B, Tab 27) and the historical background that has led to the imposition of the shoreline setbacks in Ontario. The Township relies on Ms. Snetsinger’s evidence as it relates to the motivation for imposing the 30 m Setback on shorelines and the benefits to be achieved for water quality, natural lakeshore vegetation, and wildlife and fish habitat. The Appellants do not dispute the value to be achieved from such setbacks and the Board generally accepts this evidence. [87]

The Board is however unable to conclude that Ms. Snetsinger’s evidence is

somehow sufficient to conclude that the general concerns giving rise to the 30 m Setback, or its benefits would permit the Township to ignore the protection afforded owners of non-complying buildings and structures on shoreline property under s. 34(9)(a) of the Act and the acquired right of residents to renovate or construct those buildings and structures as confirmed by the Courts and the Board. [88]

Mr. Genge’s evidence suggested that there were uncertainties in the science,

and many other factors are at play when conducting assessments of shoreline properties. In Mr. Genge’s view, these factors and uncertainties did not support a

Page 40 of 56 PL160674

conclusion that is supportive of a complete prohibition against rebuilding an existing legal non-complying structure in its existing location and the forced relocation of legal non-complying dwellings and structures from their current location under the ZBLA. Mr. Genge was adamant that in cases where structures are within the 30 m Setback, whatever damage might occur has already been done, and further disturbing areas of vegetation and tree cover on a property will only create more impact in the short-run and the long-run. Mr. Genge stated that it is not always the case that benefits will necessarily be achieved in moving an existing building farther from the shoreline, particularly on smaller lots. [89]

The Board finds that both Mr. Genge’s, and Ms. Snetsinger’s, evidence would, in

fact, serve as a contraindication of the Township’s absolute prohibition as contained within the ZBLA which would prevent any reconstruction (in the circumstances defined in the ZBLA) within the 30 m Setback and would require the relocation of that dwelling outside of the ZBLA. Ms. Snetsinger conceded that whether or not the prohibition of rebuilding a dwelling in the same location, and thus requiring the relocation of the dwelling elsewhere in the property, would be more environmentally harmful than leaving it where it is, is something that must be decided on a case-by-case basis. [90]

Both Mr. Genge and Ms. Snetsinger, in their evidence, did confirm that no

environmental assessment report had been prepared specifically for the purposes of studying the need for the ZBLA enacted by the Township and that there was no scientific evidence acquired to support benefits that would be achieved by the ZBLA’s automatic prohibition on reconstruction if more than 50% of load bearing walls of a dwelling were removed. [91]

The Board finds that Ms. Snetsinger’s evidence supports the importance of

reviewing environmental issues relating to reconstruction within the 30 m Setback on a case-by-case basis when applications are made for variances when the demolition and reconstruction may result in additions, enlargements or changes to the building or structure as it will be replaced in its existing location within the 30 m Setback on the subject shoreline property. Ms. Snetsinger testified that this process allows for an

Page 41 of 56 PL160674

assessment to be done to examine options and determine the best means possible to improve the existing circumstances where a non-complying dwelling is (and will continue to be) used within the 30 m Setback. Ms. Snetsinger agrees that site plan agreements, as provided for in the Township’s planning legislation, also represent an effective mechanism to address environmental issues. [92]

Upon all of the evidence before it in these appeals, the Board finds that there is

nothing in the environmental evidence that would alter its finding that the owners of noncomplying structures and buildings are entitled to protection of their continued right to use such non-complying buildings and to renovate and reconstruct them in their existing form and upon their existing footprint and its finding that the ZBLA improperly restricts or eliminates these rights. Planning Opinions – Consistency and Conformity [93]

Mr. Gass and Mr. Chown reviewed the chronology of the planning reports and

review processes with Council and the public, expressing concern that the Council had not been properly apprised of the impact of what was being proposed by Mr. Mills without adequate consideration of Mr. Gass’s practical concerns or adequate public consultation, and an absence of any planning rationale or environmental assessment to support such a major amendment. [94]

Mr. Chown did not believe that there was any planning basis for placing the

restrictions contained within the ZBLA and felt that the effect of limiting the ability of a property owner to replace a legal non-conforming structure to situations of only partial or complete involuntary destruction, and prohibiting any voluntary reconstruction of the dwellings, was unreasonable from a planning perspective. Mr. Chown was also of the opinion that there was nothing in the Township’s OP that supported this kind of major overhaul of the ZBL or the effects upon property owners. [95]

To the contrary, Mr. Chown directed the Board to Policy 5.2.7(b)(ii)(3) of the OP

which expressly provides the process to be followed for proposals to construct additions to existing dwellings already within the 30 m Setback, to be evaluated on the merits of

Page 42 of 56 PL160674

the proposal. The Board would agree with Mr. Chown’s comments in this regard, and would find that the ZBLA, in prohibiting reconstruction outright, does not conform to this policy within the Township’s OP. The Board would also find that the required evaluation of the merits of any such proposal to make additions to existing dwellings in the 30 m Setback, as set out in the Township’s OP, would be consistent with the Supreme Court of Canada’s confirmation of the inclusive acquired rights of owners of non-conforming buildings to make reasonable requests for renewal and changes to their buildings. This would reflect the kind of “balancing” required by the Court in Saint-Romuald. [96]

Mr. Mills directed the Board’s attention to the preceding policy in s. 5.2.7(b)(i) of

the OP to support the ZBLA. While the preservation of the 30 m setbacks would conform to these general policies promoting environmental protection, the Board cannot conclude such policies are sufficient to warrant the imposition of provisions in the ZBLA that abrogate the acquired rights of owners of lands and buildings with non-conforming uses or non-complying buildings. More importantly, the Board prefers the evidence of Mr. Chown which noted that from a planning perspective, the Township has not secured any environmental assessment which would expressly validate the manner in which the ZBLA would actually promote the environmental policies in the OP. [97]

Mr. Chown opined that he could not read the Township’s OP as supporting a

planning initiative by the Town to remove legal non-complying buildings and structures if they are demolished and reconstructed voluntarily, particularly when the Township’s OP contains more than adequate planning mechanisms to protect the public interests and ensure orderly redevelopment of private lands when non-conforming and non-complying structures are located in the setback. These mechanisms include: septic approval processes; building permit protocols; Ministry of Natural Resources and Forestry’s involvement in lakeshore assessments; Committee of Adjustment review of any extensions or enlargements of the reconstruction; and most significantly, the required Site Plan Control processes. [98]

Mr. Chown was again firm in his opposition to Mr. Mills’ planning

recommendation at Tab 18 (p. 22) of Exhibit 1A that the amendment was “simply for the

Page 43 of 56 PL160674

purposes of clarification” of the Township’s planning instruments. Mr. Chown disagreed with Mr. Mills’ assertion that it has always remained the Township’s discretionary right and practice to refuse owners the opportunity to reconstruct a legal non-complying structure within the 30 m setback if it was removed. Mr. Chown opined that there is no planning rationale to support the conclusion by Mr. Mills, and that owners should instead be entitled to retain their rights relating to legal non-complying buildings and only required to bring applications if they intend to expand or enlarge the structure that was located within the 30 m Setback. His opinion was that any owner of a legal noncomplying structure in the setback area was always entitled to reconstruct the same dwelling as a matter of right without any need for planning approval. [99]

The Board had carefully considered Mr. Chown’s analysis of the Township’s OP,

and the Comprehensive ZBL and his planning opinions regarding the propriety of the ZBLA. Mr. Chown has opined that the OP contains nothing that would allow the Township the power to deny landowners their inherent right to retain non-conforming and non-complying uses and structures and that there is no planning basis grounded in any persuasive environmental reasoning or larger public interest relating to the environment within these planning policies to justify the wholesale removal of a private owners right to reconstruct their dwelling within the same footprint. The Board accepts this planning evidence. [100] Mr. Chown, as indicated above, opines that the proposed ZBLA does not comply with s. 34(9) of the Act in regards to the protection of non-complying and nonconforming structures and uses. For the reasons already provided, in regards to the Township’s ability to enact the prohibition against reconstruction vis-à-vis s. 34(9)(a) and the body of case law, the Board prefers the planning evidence provided by the Appellants over that of Mr. Mills. While the ZBLA conforms to the general environmental policies of the OP it unfortunately also conflicts with the OP policies recognizing legal non-conforming buildings and structures within the 30 m Setback set out in s. 5.2.7(b)(ii)(3) of the OP.

Page 44 of 56 PL160674

[101] Accordingly, upon the whole of the evidence, the Board finds that the ZBLA does not conform to the OP as it interferes with an owner’s protected right to retain a legal non-complying building or structure within the 30 m Setback. SUMMARY [102] Upon the analysis provided, and the reasons given, the Board finds that the Township has no authority to pass the ZBLA as it has been drafted. There is no reasonable planning analysis that has been provided that would in any way justify the imposition of the prohibition against voluntary reconstruction of legal non-conforming buildings and the resultant objectionable interference with the acquired rights of shoreline owners and users of legal non-conforming buildings. [103] Under the circumstances, with the findings that have been made relating to the validity of the ZBLA, it is unnecessary for the Board to necessarily address the last two issues, (e) and (f). The Board can nevertheless conclude that neither the threshold requirement relating to removal of 50% of the load bearing walls, or the imposition of the one year reconstruction requirement, are appropriate or valid criteria, and the Township may not, in this manner, determine that a building or structure is no longer a legal noncomplying building or structure, and that the land is therefore deemed “vacant”. An owner’s lands, in such circumstances, are not vacant and contain a legal non-complying building or structure which remains, and may continue to remain, because of the acquired rights of the owner and the protection afforded by s. 34(9)(a) of the Act. [104] Upon all of the evidence before it, and upon the analysis and findings contained in this Decision, the Board accordingly finds that the ZBLA does not represent good planning in the public interest. The ZBLA improperly narrows, amends and restricts the acquired rights of property owners owning lands and buildings and structures located within the 30 m Setback and used by such property owners as legal non-conforming buildings and structures. As such, the ZBLA is contrary to s. 34(9)(a) of the Act and is beyond the jurisdiction of the Township.

Page 45 of 56 PL160674

ORDER [105] The Board orders that the appeals are allowed and By-law No. 2016-36 is struck in its entirety.

“David L. Lanthier”

DAVID L. LANTHIER MEMBER

If there is an attachment referred to in this document, please visit www.elto.gov.on.ca to view the attachment in PDF format. Ontario Municipal Board A constituent tribunal of Environment and Land Tribunals Ontario Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

Page 46 of 56

FEB 0 2 2018 February, 1 2018

TOWNSHiP OF SOUTH FRONTENAC

Mayor Vandewal; Township Council Re: Shooting Range as posted in News & Public Notices

I meet with Corporation of South Frontenac staff (Planning & Clerks Departments) I was disappointed with the lack of knowledge that was available on the subject of shooting ranges. That aside I would like to voice by opposition to the proposed shootingrange at Part Lot of 2,Concession 111 Districtof Portland (3350Scanlan Road). I believe a shooting range would have a negative impact on our community.

As a community we nowenjoy a very safe quiet life experiencein a desirable area. The proposed shooting range would upset the tranquility of the area. In discussions with local real estate professionals the marketability and current market value of the properties in the area would suffer.

I would urgethe members of council to NOTprovidethe letter of no objection in this matter. Gary Neff 1005 Scanlan Crt 613 376 3969

Page 47 of 56

From: Wayne Selle sellewayne@gmail.com Sent: Monday, February 5, 2018 12:33 PM To: Wayne Orr Subject: proposed Shooting Range

South Frontenac Township - Mayor and Councilors Subject-Proposed Private Shooting Range on 3350 Scanlan Road I am opposed to this for several reasons. We own approximately 1500 ft of line fence between our properties and rent the property to the west of Steve. I am not comfortable with the shooting that will be going on at this proposed shooting range. We are often in our woods with our children and grandchildren. Neighbours ride their horses using the trail through our woods Guns fire can be noisy. There are many homes in these immediate areas of Scanlan Rd, Murvale-Boundry, Amey Rd and Quinn Rd East. These homes will be subjected to the gunfire on a regular basis. The weapons he wants to use are non-restricted, restricted and prohibited firearms as stated by other neighbours on Scanlan Rd. Steve has never talked to me re this subject—shooting range Noise If there are competitions –which could go on for a day or several days—will be very noisy. People in this area do work shifts (days, evenings, and night). Our friends from Owen Sound live about ¾ mile from a gun club and they stated that this was very nosey on weekends. Many unanswered questions

What is a Private Shooting Range vs a Shooting Club?
What kind of guns and caliber will be used?
At these shooting station what direction will the guns be shooting into?
What happens to the spent lead ammunition when fired into the berms and backstops? Does this accumulation of lead eventually become a source of ground water contamination? All water drains into the Purdy Water System. I wish Steve would tell everyone what his real plans are. He stated he wanted a Private Shooting Range which would allow only residence from 3350 Scanlan Rd to shoot nonrestricted firearms. I understand that he would like to have guests and shooting of non-restricted, restricted and prohibited firearms. I do not understand what his intentions really are. He is retiring from the Kingston Police Dept. and this shooting range could become part of his retirement (completions and target practice) If this letter is granted stating the Twp has no objection can he go from a Private Shooting Range to a Shooting Club without notifying the Twp? I have not ever complained about Steve’s recreational shooting of firearms over the years as neighbours have to get along but I do not want a gun club/range in my back yard. I do not believe anyone in this room would like a gun range or gun club in their back yard. Please say NO Thank you Wayne Selle

Page 48 of 56 Lindsay Mills From: Sent:

Arno van Alst <vanalst@kingston. net>

To: Subject:

Lindsay Mills Shooting range

February-05-18 7:48 PM

We would like to inform you that we strongly oppose a private shooting range in our area.

We are living in the country to enjoy a quite and safe neighbourhood and to enjoy the beauty of nature at our doorstep.

The proposed private shooting range will be a dangerto the health and wellbeing of our neighbourhood residents, wildlife and all users of the K&P trail.

Stray bullets and noise are major concerns as well for people and their pets on the trail and in our residential neighbourhood. Horseback riders in particular will be at great risk as horses will be spooked. There is an official rifle and gun club not too far away on McAdoo’s Lane in Kingston.

Again we are strongly against this proposed gun range in our community and hope you will agree with us.

Regards, Arno & Kitty van Alst. Murvale Road.

Sent from my iPad

Page 49 of 56 Lindsay Mills From: Sent:

Tony Gargaro <tony@bgckingston. ca>

To: Subject:

Lindsay Mills RE: Private Shooting Range

February-02-18 4:52 PM

Hi Lindsay,

Pleaseacceptthis email as official concern andoppositionto the applicationfor a private shootingrangeon Scanlan Road.

Weresideat 3339Amey Roadwhichis in closeproximityto theproposed site andoftenuseasa familythe field directly attachedto the proposedproperty (withthepermissionofthe owner) for cross country skiingand hiking. Wehavesafetyconcerns for our young family of3 childrenas well asa familypet aswell as a concern over increased noise.

Thank you.

Tony Gargaro Director of Operations Boys and Girls Clubs of Kingston | Repaires jeunesse du Kingston 1300 Bath Road, Kingston, ON K7M 4X4 T6135073306ext. 106 tonviSbackinaston. ca www. bnckinnston. ca

Page 50 of 56

From: Cherilyn Jardine [mailto:cherilyn6872@gmail.com]

Sent: February-06-18 12:46 PM To: Lindsay Mills lmills@southfrontenac.net Subject: shooting range Hello Mr Mills, I am sending this letter to respond to the proposal for a shooting range on property that directly abuts our farm. We have many concerns about this proposal and do hope that it does not come to be. As a farm we have livestock, poultry, horses as well as dogs and cats. We feel that listening to guns continuously will be stressful for the animals that are on our property and potentially interfere with their breeding, growth and productivity which we rely upon as part of our livelihood. We are also therapeutic foster parents for traumatized children, these are not everyday kids that we foster. These kids are truly struggling and the farm and acreage are great areas of healing for them We had to do a lot of work and education to be able to offer a home for these kids and I cannot see how the sounds from guns will be helpful for these children. I know Debbie from ERS has sent a letter to this regard. This can only be a detriment to their healing process. My daughter and our neighbours use the property to ride horses and again the noise will not be helpful in keeping family and friends safe as they enjoy these activities. We also are concerned about the effect on the area wildlife and then on the hunters who rely on having deer and fowl available in the freezer to eat throughout the year. Constant gun fire is going to drive all the wildlife and birds away. I know my family enjoys going for a walk in our woods and seeing a deer and lots of birds but I am sure this will no longer happen if there are guns going off all the time. There is a gun range in Kingston as well as a club in Napanee, let the people who wish o shoot guns travel there to do so in areas already approved for this. As a property owner, especially one who knows that I can hear kids laughing on Scanlan Road I do not wish to listen o guns going off all day. We bought this property to get out of town and into the quiet of the country. I have no interest in the sound of guns being a new daily occurrence. What is this going to do to our property value should we ever decide to move? There is also the concern on the township for up keeping these roads that are already in need of so much work! What is going to happen when you add a business that is going to increase travel on the area roads? I can only imagine it will cause then to need more and more repairs. We rent a portion of our property as well to livestock that do not belong to us, these people tend to their own animals several times throughout the day and they should not be exposed to the noise while they are tending to their livestock. Thy are breeding animals as well so I am concerned or their productivity and their safety in the fields with gun fire. The animals are unsettled during the hunting season and our daughter does not ride during those weeks which we are happy to do so others can gather food but this should not happen on a daily basis. We do not want to give up our quiet way of life to listen to guns on a daily basis. Thank you for your time, Cherilyn Jardine Jardine Farms 3321 Amey Road

Page 51 of 56

January 31, 2018

RE: Private Gun Range Proposal – Scanlan Rd

To whom it may concern: As a resident of Amey Rd the proposed gun range on Scanlan rd has raised some concerns for our family and neighborhood. Approving this request will not only change the peace and quiet that my family and neighbors have been accustomed too it will increase the traffic on the already strained roads along Murton and Murvale which sees township maintenance workers constantly repairing throughout spring to fall which could see potential increase in tax dollars. Walking in the fields or four wheeling along the property that backs onto the proposed range raises safety concerns for my family, friends and animals on these outings. There is also the concern for resale value of all the homes in the area should this range be allowed. Please accept this letter opposing the proposed gun range on Scanlan rd.

Paul & Kim Durant 3279 Amey Rd 613-453-7030

Page 52 of 56

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Page 53 of 56

In addition the peace and tranquility of visitors to the nearby K&PTrail would be adversely affected as well as the safety ofriders whose horses may bolt at sudden gun fire. Dowe really want magazines that annually describe the K&PTrail as one of Ontario’s gems for hikers, cyclists and riders to now have their reviews carry a

warning about possible gun fire and shooting near the Trail south of Harrowsmith. Not only worried about increased noise, many ofthe signers ofthe petition expressed fear and concern for the safety of their children. On a personal note, our granddaughters could stand within 50 meters of the proposed range and still be on our property.

Finally, as property values near private shooting ranges are known to be depressed by 10-20 %, nearby residents who signed the petition have financial concerns, particularly those who are depending upon the value oftheir homes to help fund their retirement.

In conclusion, we and the signers of the petition worry about an increase in

shooting activity, a decrease in our safety and those on the K&P Trail and nearby Murvale Creek and the decrease in property values that would occur if a private

shooting range is established. These effects seem like a very high price for neighbors and visitors to pay for a private shooting range.

Page 54 of 56

Please do not issue a letter of NO objection to the private shooting range and

let our neighbourhood continue to be known as a place of tranquility and safety for its residents and its visitors.

Thank you.

Page 55 of 56

ENVIRONMENTAL INFORMATION FOR MUNICIPALITIES IN THE RIDEAU VALLEY January/February 2018

2018 Flood Preparation Looking Back On a Wet 2017 — With Environment Canada calling 2017 “the big wet,” last year was a record-breaking year of water for eastern Ontario. Totals measured at the Ottawa Airport put precipitation at 144 percent of normal. In May, multiple days of significant rainfall led to flooding across parts of eastern Ontario and Quebec causing significant property damage. And, with climate change, we can expect more severe weather and increased chances of flooding. What Property Owners Need To Do — Assess their personal emergency plan for minimizing flood-related property damages. Should flooding occur, the first response is up to the individual homeowners. If the flood is beyond the capability of the homeowner, the municipal Emergency Response Plan kicks in. To get up-to-date information on watershed conditions, property owners should sign up for RVCA flood forecasting and warning emails —subscribe at www.rvca.ca — look for “Get RVCA News.” What Municipalities Do — They are responsible for emergency response services during serious flood events. Please contact your local municipality should you have local flooding issues where assistance is needed. Property owners, especially in vulnerable areas need to have these emergency phone numbers handy. What RVCA Does — Maintains a flood forecasting and warning system that aims to reduce danger to people and property by providing local agencies and the public with advance notice and information. How RVCA Does It — RVCA uses stream gauges, weather stations, surveys of snow conditions, meterological forecasts and computer models to determine the potential for flooding. When spring melt or severe storms are anticipated, RVCA estimates the severity, location,

and timing of possible flooding and warns accordingly based on the Flood Warning Index (below). PATRICK can tell you more at patrick.larson@rvca.ca or ext. 1210.

RVCA Flood Forecasting and Warning and Low Water Response System operates 12 months a year The RVCA provides member municipalities and local residents advance notice and information about potential flooding Flood Warning Index

Our flood warning index has four stages:

Normal — no flood conditions exist
Awareness — be informed and aware • Water Safety Statements —high flows, unsafe banks, melting ice or other factors that could be dangerous for recreational users such as anglers, canoeists, hikers, children, pets, etc. Flooding is not expected • Flood Outlook Statements — Early notice of the potential for flooding based on weather forecasts calling for heavy rain, snow melt, high wind or other conditions that could lead to high runoff, cause ice jams, lake shore flooding or erosion
Flood Watch — be prepared to activate your flood response plans, if it becomes necessary. Flooding is possible in specific watercourses or municipalities. Municipalities, emergency services and individual landowners in flood-prone areas should prepare
Flood Warning — Activate your flood response procedures now! Flooding is imminent or already occurring in specific watercourses or municipalities

Do You Live in a Vulnerable Community? There are developed areas that are prone to flooding — it’s important to know if you live in a flood-vulnerable area. Rideau River — in the area between Rideau Falls and Cummings Bridge, in the vicinity of Brantwood, Windsor and Brewer Parks in the City of Ottawa; parts of the rural area of the City of Ottawa including; in the vicinity of the Carleton Golf & Yacht Club, parts of the Village of Kars; Lorne Bridge Road; in the vicinity of James

Perkins Road, North Gower July 25, 2017

Stevens Creek— parts of the Village of North Island; Reevecraig; Fairmile Subdivision; Gower and areas downstream Mapleshores, Little Chesterville and Kemptville Creek — parts of the Township of Arcand developments, Hilly Lane, Cedar North Grenville between Kemptville and Beach, Rideau Glen and Becketts Landing the Rideau River in North Grenville Township Jock River — parts of the Village of Richmond Tay River— within the Town of Perth and areas upstream to Glen Tay including areas on the tributaries (Van Gaal Drain, Flowing Creek, Bypass Drain)

Page 56 of 56 January/February 2018 ENVIRONMENTAL INFORMATION FOR MUNICIPALITIES IN THE RIDEAU VALLEY

Fish and In Water Work Restrictions

The Ontario Ministry of Natural Resources and Forestry has updated its guideline for work in water. These timing restrictions are to protect fish during spawning and other critical life stages. Additional timing guidelines may apply to endangered and threatened species. If you are planning to work in or around water contact OMNR to ensure you aren’t working in a restricted time. Contact Joffre Côté, Management Biologist 613-258-8214, joff.cote@ontario.ca or Monique Charette, Management Biologist 613-531-571, monique.charette@ontario.ca.

2018 Budget & Work Plan

The 2018 Rideau Valley Conservation Authority Budget & Work Plan is now available. Since RVCA’s formation in 1966, we have worked with our municipal partners to provide programs and services that move towards our shared vision for a thriving watershed — one with clean abundant water, natural shorelines, rich forests and wetlands, diverse habitat and sustainable land use that is valued and protected by all. In 2018, we continue on this course of action as we work to conserve our watershed and ensure our future. The workplan can be viewed at www.rvca.ca, under “Publications.”

Before: Haggart Island Dam

RVCA Board of Directors

Congratulations to Lyle Pederson who has been re-elected as Chair at RVCA. The new Vice Chair is Pieter Leenhouts, who represents the City of Ottawa and is President of the Lower Ottawa Valley Chapter of the Ontario Woodlot Association. He is also a former member of the Mississippi-Rideau Source Protection Committee. Thank you to Ed Hand who served as Vice Chair for the last six years — we look forward to his continued support on the Board. For more Information call SOMMER at ext. 1214 or sommer.casgrain-robertson@rvca.ca.

Volunteers Wanted for Headwater Sampling

RVCA is looking for volunteers to help with headwater drainage feature sampling early this spring. Sampling takes place Monday to Friday, typically between 8 a.m. to 4 p.m.; however, some days may go longer. Volunteers need to be comfortable around water, wearing chest waders, wading through streams and dealing with cold temperatures and inclement weather. Volunteers will also need to arrange their own transportation to the Rideau Valley Conservation Authority office located at 3889 Rideau Valley Drive in Manotick. Tentative dates are March 1 through to April 20. Contact ROSARIO at ext. 1155, rosario.castanon.escobar@rvca.ca.

After: Rocky Ramp

Tay River Rocky Ramps Completed

Congratulations to the Town of Perth for the successful construction of the second rocky ramp on the Tay River. Both rocky ramps replace the weirs known as the Haggart Island Dams. The benefits of rocky ramps are that they maintain historic water levels that the community wants while still allowing for the river’s natural processes. They are ecologically friendly and cost less than the building traditional weirs and dams. Congratulations to all the partners who worked with the Town of Perth including, RVCA, Friends of the Tay, Department of Fisheries and Oceans through the Recreational Fisheries Conservation Partnerships Program (RFCPP) along with the on-site construction and engineering undertaken by Matrix Solutions Inc/Parish Aquatic Services and G. Tackaberry & Sons Construction Company Limited. The partners worked cooperatively to build the second rocky ramp. Input and support from residents of Harvey Street and Mill Street were also critical to the success of the project and are greatly appreciated. MIKE can tell you more at ext. 1176 or michael.yee@rvca.ca.

City Stream Watch 2018

This year the City Stream Watch program will focus on Nepean Creek, Taylor Creek, Mud Creek (Greens Creek), Black Creek, Ottawa East tributary (near Cardinal Creek). Volunteers are a main staple of the program and will have the opportunity to inventory stream habitats, identify aquatic benthic invertebrates; participate in fish sampling sessions; monitor stream temperatures; remove invasive species; assist in stream rehabilitation and shoreline restoration projects; and clean up streams to remove garbage. To volunteer for the City Stream Watch visit www.rvca.ca and choose “volunteer.” For more information or to volunteer contact CHELSEY at ext. 1179 or citystreamwatch@rvca.ca.

Around the Rideau Rideau Valley Conservation Authority Box 599, 3889 Rideau Valley Drive Manotick, ON K4M 1A5 613-692-3571 or 1-800-267-3504 www.rvca.ca Follow us @ twitter.com/RideauValleyCA Like us @ facebook.com Around the Rideau is made possible thanks to our generous sponsors

2018

THANK YOU TO OUR GENEROUS SPONSORS!

Bell Baker, Barristers and Solicitors — 613-237-3444 Effectively providing quality legal services in Eastern Ontario for over 50 years Bird Richard, Lawyers for Employers — 613-238-3772 www.lawyersforemployers.ca, Representing management in labour and employment law across Ontario Ramada Ottawa on the Rideau — 613-288-3500 www.ramadaottawa.com, Offers 87 fully renovated rooms with balconies overlooking the Rideau River, banquet facilities, full service restaurant and outdoor pool. Pet friendly.

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