Re: Z/29/2010/HTE, B/38/2010/HTE (Reynolds)
This property has been the subject of several applications over the past 5 years and has passed through the hands of a series of staff members. The result has been that each successive town planner handling the file has not had the advantage of knowing the history. So that we are all on the same page, let’s have a brief review of that history.
In 2005, Mr. Reynolds applied to subdivide the subject lands into 3 separate lots. At that time, there were only a few years of water quality test results available, but the early signs were disturbing. Palette lake had (and still has) the highest development density of any lake in Huntsville. In addition, a previously undisclosed wetland area was discovered by Town staff during a tour of the site. The LWRA and neighbours, dealing with Nancy LeBlanc, opposed the application. A compromise was eventually reached, permitting subdivision into two lots, with the building envelope stipulated to be “as generally shown on the severance sketch prepared by Wayne Simpson and Associates dated January 4, 2006 and last revised on February 8, 2006”. That location is on the lands Mr. Reynolds proposes to sever today, northwest of the wetlands.
Mr. Reynolds apparently failed to have that envelope investigated, instead commissioning Michalski-Nielsen to prepare another report about the original proposed location. We base this on the words of James Nairn, who writes in his report of October 12, 2006: “I understand that you would like to relocate the building envelope on Proposed Lot 2 toward the south, and closer to the lake”.
By this time, Chris Madej was now looking after the file, and when Mr. Reynolds presented his report, it was apparently considered to be a minor change, based on the wording of the original approval “generally shown on the sketch”. For whatever reason, the LWRA and others were not notified of the proposed change and it slipped past without notice in February 2007.
Of course, in the spring of 2008, Council passed the new Comprehensive Zoning By-law. This was a well-advertised process with many public meetings and various drafts published. By this time, further water quality data had confirmed earlier fears that Palette Lake is in serious trouble. The consensus of staff, the Town’s consultant, Richard Hunter, and the LWRA was that the lands surrounding Palette lake must be protected through zoning restrictions and requirements. This was clear on all drafts of the zoning maps published and advertised by the Town as part of the process and it was advertised to all area landowners by the LWRA through our meetings, newsletters, e-mail announcements and website articles. Neither Mr. Reynolds nor his representatives chose to object to this zoning at the time or during the allotted appeal window following the passage of the by-law.
Nothing further happened for the following 2 years, but this summer, Mr. Reynolds and his representatives, Wayne Simpson and Associates, approached the LWRA and Jacquie Tschekalin respectively with a “new” proposal that mimicked the original subdivision of 3 lots. Following discussions with the LWRA, Jacquie informed them that she would not support the creation of a third lot.
And this brings us to the present application, made as yet another new planner takes the reins, which would re-draw the lot line of the retained lot to resemble the 2005 application and re-zone the other lot to SR-2.
In a memo circulated by Wayne Simpson and Associates since this application was made public, Patrick Mason makes a number of misleading claims. He states that “this application does not involve the creation of a new developable lot.” While it is true that this application does not, in and of itself, create a new lot, it does attempt to rezone the lands to SR2, which facilitates the creation of a third lot in a possible future application.
Next he implies that the lot must be rezoned to change what “exists on the date of the passing of this By-law.” This is not true – the zoning can in fact remain SR5, with an exception to recognize the new lot dimensions created by the amendment.
Finally, and perhaps most significantly, he claims that Mr. Reynolds has some sort of legal right in perpetuity to build within the envelopes as amended in 2007. This is untrue for several reasons.
First of all, the Planning Act grants the Town the right to revoke such an agreement where development has not proceeded in a timely fashion (3 years) following the approval. Precedent in Huntsville has established that the issuance of a building permit is evidence of proceeding with a development and of course, the building permit itself comes with a 1 year deadline. That 3 year window has now expired.
The zoning by-law also provides that an existing non-conforming use may only be rebuilt on the same footprint if reconstruction has commenced within 2 years of the destruction of the building. Mr. Reynolds has no more of an irrevocable right than if he had constructed the buildings at the time they were approved and then they had been destroyed the day after the Comprehensive Zoning By-law was passed.
Mr. Mason makes reference to the Site Plan agreement registered on title under section 51(26) of the planning act as if such registration conveys irrevocable rights to Mr. Reynolds. In fact, the opposite is true. Section 51(26) provides that “the municipality or the approval authority, as the case may be, is entitled to enforce the provisions of [the agreement] against the owner and, subject to the Registry Act and the Land Titles Act, any and all subsequent owners of the land.” In other words, it conveys rights to the municipality, not to the owner.
In point of fact, Mr. Reynolds has abandoned any right to build within the currently proposed envelope. He chose not to proceed with the proposed development and he acceded to the new setbacks and conditions when he chose not to contest them either during the public consultation process or during the window of appeal after the passing of the by-law.
The LWRA opposes this application. To understand the full implication of the application one has to know the background to planning on this lake.
- As described earlier, Palette Lake is the most developed lake in Huntsville. Development density on Palette is only 0.31ha per property, including Mr. Reynolds and one other undeveloped lot and the cluster development of 6 back-lots with deeded access.
- The most recent data from the lake partner’s program indicate that Palette Lake is Over Threshold. The threshold for Palette was determined to be 5.22 µg/L by the District of Muskoka’s Lake System Health Program. The practice established by the District to quantify the phosphorous level of the lake is to discard the higher of the two samples taken in any given year, and to average the lower of 5 samples. Of course, as the District does not have the resources to test every lake every year, they test bi-annually so it takes them 10 years to acquire the 5 samples.
According to the Ontario Ministry of the Environment Lake Partner program results, phosphorous readings in
2003 were 8.5 and 8.7, in
2004 were 7.8 and 8.8; in
2005 were 8.3 and 9.7; in
2006 were 10.0 and 11.1; in
2007 were 7.2 and 9.5; in
2008 were 14.4 and 14.8; and in
2009 were 19.7 and 20.1.
That’s 7 years of monitoring. If we discard the highest reading each year and consider only the lower of the two readings, we can see the average phosphorous reading is 10.8 µg/L – more than twice the threshold. This is not a questionable result skewed by an anomalous reading – the readings are well above the threshold in each and every single sample.
- Existing zoning laws are meant to provide a level of certainty and stability to the development process while still providing opportunity for orderly development. This piece of land is zoned as SR-5. The process was not an inadvertent oversight by staff but a deliberate endeavor to protect a lake that is clearly at risk. The Town was very open to receiving suggestions from landowners about special concerns and this landowner had ample opportunity to object to or appeal the SR-5 designation.
- These lots, as presently constituted, can be developed in line with SR-5 zoning. There are permissible locations at present that have adequate set backs from the lake and the wetlands. Hence there is no need to rezone in order to develop the land.
- The original investigation of this lot by Michalski-Nielson in the spring of 2005 was based the assumption that Palette Lake was not Over Threshold, due to the limited data available at that time.
- The report detailing the subsequent site visit by Michalski-Nielson dated January 2006, contains a serious error wherein it states that “water leaves Palette Lake from the northeastern shoreline through an intermittent channel to Jessop Creek”. This appears to stem from an error in interpreting the Ontario Base Map system. In fact, that “channel” flows into Palette – from the wetlands (at 334 meters above sea level) and passing directly through the proposed building envelope on the way to the lake (at 333 meters above sea level). We don’t know why or how the author could note the presence of the creek and fail to note that it passes through the proposed building envelope he was supposed to be investigating, but one can quickly see the problem by comparing the shorelines shown on the proposal sketches to maps from both the Ontario Base Map system and the Town of Huntsville mapping system.
- Palette has an extremely low flushing rate – there is no way for contaminants to escape. The sole actual outlet is a small culvert running underneath the road between Palette and Ripple. This may explain why the water quality seems to be declining at an accelerated rate.
- The same report notes that their investigation was strictly based on “surficial evidence” --surface and shallow sub-surface investigations. They recommended further investigation by a hydrogeologist to examine depths below 1-1/4 meters. To our knowledge, no such report was ever completed, or at least, never released. It is unfortunate, because such an investigation may have revealed whether or not the “intermittent channel” is actually an underground stream that breaks through to the surface intermittently.
- The final report of Mikalski-Nielsen was based entirely on the original, outdated, report and did not involve any new research whatsoever.
- The District of Muskoka Official Plan, the Town of Huntsville Official Plan and the new Huntsville Unity Plan all require proactive measures to protect lakes that are found to be Over Threshold. Those measures include, but are not limited to, adequate set-backs, protection of private wetlands, run-off management, phosphorous retention systems, and Holding provisions in zoning.
The LWRA makes the following recommendations.
- This is a new application for a transfer of a slice of land from one existing lot to another. There is no cogent argument made for the ‘necessity’ of any exception to existing zoning rules.
- Existing zoning designation of the land does not need to be disturbed. Whether or not the Applicant decides to transfer some land to the adjoining lot, development can be placed in a manner that is completely consistent with the existing zoning setbacks from the wetlands and the lake. The fact that the landowner would prefer to have the house closer to the lake than is provided for by SR-5 zoning should not determine the outcome of your deliberations.
- This application should be dealt with as such under the laws that exist at the moment, and only a proposal that leaves suitable building envelopes that conform to SR5 zoning should be allowed. The point is simple: there is plenty of suitable land to build on. It is zoned SR-5 for very good reasons. This is not a situation in which there is no way to build a house on a lot without violating existing zoning rules.
- The building envelope should not include the bed of any stream, however intermittently it may flow, leading into Palette Lake. This is as much for the protection of the eventual home owner as it is for the protection of Palette Lake.
- As the Official Plan provides that the OT designation can be applied without amendment at any time if warranted. Palette lake should be so designated and any development application, including this one, should be subject to all the restrictions and requirements that entails until such time as there is evidence that the water quality has been restored.
