Mr. Harding summarized Report COA2018-070. Permission sought to recognize the location of two additions to a dwelling within the Environmental Protection Zone and/or within 15 metres of the EP Zone category boundary whereas Sections 3.13 and 3.18 and Part 5 currently do not permit such expansion. Permission is also sought to construct two decks abutting a dwelling within the EP Zone category and/or within 15 metres of the EP Zone category boundary whereas Sections 3.13 and 3.18 and Part 5 currently do not permit such expansion. Mr. Harding continued to say that there were two affidavits submitted in support of the application. It was his opinion that the affidavits provided insufficient information to confirm that the use has legal non-conforming status. Mr. Harding also noted the letter of objection submitted by Mr. and Mrs. Dupuis of 1055 Ski Hill Road that noted the building had been completely demolished and replaced by a new building. Mr. Harding stated that if further affidavits had been submitted to assist in demonstrating the use was legal non-conforming, any legal non-conforming status would have been lost with the demolition of the building containing the use.
Mr. Harding cited additional comments received from Mr. and Mrs. Dupuis of 1055 Ski Hill Road after the report was written pertaining to the criteria used to evaluate significant wildlife habitat and concerns over some of the content provided in the more recent affidavit.
The applicant, Mr. Doug Carroll, DC Planning Services Inc. was present and spoke. He distributed copies of the following materials to the Committee:
- Photographs of the property taken by Mr. Tate when he purchased the property,
- More recent photographs of the property after the alterations to the building used for residential purposes took place,
- The two affidavits submitted in support of the application,
- The letter prepared by Mr. Tate addressed to the Director of Development Services dated August 25, 2016,
- The letter prepared by the Director of Development Services dated September 1, 2016,
- The aerial photograph and sketch submitted with the application; and
- Proposed conditions for Committee’s consideration should they decide to grant the application as applied for.
Mr. Carroll stated that the application to expand a legal non-conforming use as an application submitted under Section 45(2) of the Planning Act is not required to meet any tests when determining whether or not the proposal represents good planning as the required tests apply to applications submitted under Section 45(1) of the Planning Act. He cited various sections on the Planning Act, CKLOP and Township of Emily Zoning By-law which speak to the continuation and expansion of legal non-conforming uses. He continued to say there had been three owners from 1973 until today, and that the terms cabin and dwelling were used interchangeably in the affidavits because those providing the affidavit do not distinguish a difference between a cabin and dwelling. He further stated that the zone provisions which permit the restoration to a safe condition of a building were satisfied, but had been satisfied without the benefit of a building permit.
Mr. Carroll also confirmed that the kitchen, which existed in the early 1970s, disposed of its wastewater via pit privy and that a pit privy was used to deal with human waste. A porta potty was more recently brought in to handle toilet waste as the pit privy contained poison ivy. Mr. Tate had constructed additions to the building being used for residential purposes without a building permit, and that he was convicted and fined $3700 and paid it in 2017. Mr. Carroll stressed that it is within the Committee’s authority to approve the application and provided a set of conditions for Committee’s consideration if the application was granted.
The Committee had several questions for Mr. Carroll regarding if there were outstanding Ontario Building Code and Conservation Authorities Act violations, what the total size of the dwelling is, and how the building should be classified as it is too big for a cabin and too small for a dwelling.
Mr. Carroll replied to Committee’s questions.
Speaking in opposition to the application, Mr. Benoit Dupuis was present and spoke. He stated that the building was never a dwelling, and was used very infrequently as a cabin. He advised that Mr. Tate had been well aware that the building was in an environmentally protected area before any modifications took place because he had advised Mr. Tate of this. Mr. Dupuis further stated that he had observed that the original building was jacked up as the foundation had rotted. He went on to state that the original building had been removed and demolished, with some walls put off to the side. He further stated that a tile bed had been installed with a holding tank but this had been subsequently removed. He voiced his concern over the noise the generator made which supplies power to the building. He voiced additional concern over the volume of fill that had been brought in, which was disturbing the natural environment.
The Chair explained to Mr. Benoit that there are tests the application must meet, and the Committee will listen to all information presented in order to make an informed decision.
The Chair asked staff if they had anymore information to add. Staff replied that the points examined within the report remain valid, and that it was their opinion that the restoration to safe condition provisions could only be applied if permits had been obtained before the alteration took place. Staff further added that if the building had been demolished and reconstructed, than any legality the non-conforming use may have had ceased once the building that contained the use ceased to exist.
Councillor Martin was present and spoke in opposition to the application. Councillor Martin stated that permits had not been obtained for the existing development, that animals in coops have been brought in which are soiling the water, and that the generator is loud. She stated that a septic system had gone in which had required a lot of fill, that the building was a shed to begin with, and that the owner should move the building elsewhere on the property outside of the EP Zone.
The applicant, Mr. Carroll cited 45(2) Planning Act once more. The Committee asked Mr. Carroll if the owner had in fact demolished and constructed a new building. Mr. Carroll replied that he was unaware of whether a demolition had taken place. Mr. Carroll confirmed that a septic system that had been installed was removed by his client, and was of the opinion that the generator was not loud.
The Committee asked staff if there was a timeline on a non-conforming use. Staff replied, no timeline. The Committee asked staff for clarification as to whether a shed is permitted in an EP Zone. Staff replied that a shed is not permitted in an EP Zone. The Committee asked whether the owner would be permitted to construct a patio in place of a deck if the application was denied. Staff responded that an at-grade patio would not be subject to the zoning by-law as it would be considered landscaping, but that permits may be required from the conservation authority given the nature of the site.