OMB rejects SF Official Plan amendment.

Wilma Kenny | Feb 09, 2018

 Waterfront property owners get more wiggle room to renovate existing buildings that are within 30 metres of shoreline

A two-year-old planning controversy that has been costly for South Frontenac taxpayers has finally been resolved through the Ontario Mujnicipal Board (OMB).

In February 2016, South Frontenac Planner Lindsay Mills proposed a number of ‘housekeeping’ changes to the Township’s Official Plan, which was last updated in 2005. Among these changes were three that raised a storm of protest from owners of older lakefront homes and cottages: 1) buildings within the 30-metre setback from high water would not be permitted to be taken down and reconstructed; 2) a property would be defined as vacant once more than 50% of the load-bearing walls have been removed from a building within the setback (and therefore the structure would not be replaceable); and 3) section 5.11, which permits replacement of waterfront structures which have been destroyed by natural disasters, would be removed.

Time passed, public meetings were held, sides were taken, attempts to find a middle ground based on mutual environmental concerns ended with the Township’s lawyer advising against further dialogue. Concerned waterfront residents organized, raised money, hired a formidable legal team, and appealed to the OMB. The OMB hearing, originally set for February ‘17, was set aside until late May because the township’s planning department had neglected to send out 30-day notice of the hearing to all who had given written notice of their concern with the issue.

The hearing ran for two and a half days: the judge concluded by saying, “This has turned out to be a lot more complicated issue than I anticipated.” He said a decision would not be handed down until fall.

Today, Thursday February 8, that 36-page decision arrived, and it is firmly in favour of the South Frontenac Waterfront Coalition’s position:

“It is the Board’s conclusion that as the case law has evolved, and as s34(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 non-complying building”

“Upon all of the evidence before it…the Board accordingly finds that the ZBLA (Zoning By-law Amendment) 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.”

The Coalition’s spokesman Jeff Peck summarized: “The OMB rejected SFTs claim that the amendment was merely “housekeeping”.  The OMB disagreed with SFTs distinction between non-complying structures and non-conforming uses. Most importantly, the OMB agreed that grandfathered property owners have rights to use and maintain their cottage/house/cabin including the right to reconstruct (the same size building) on the same footprint regardless of the reason. Our hope is that we can use this decision as a springboard into some meaningful discussions with SFT about waterfront planning moving forward.”

Mayor Vandewal’s reaction was calm: “The actual impact on the municipality and the environment will be minimal; they (lakefront property owners prior to 2005) can only replace what is already there.”