ISSUE DATE :

JAN . 9, 2007
DECISIONJOROER NO : PL051311
0043
Ontario
Ontario Municipal Board
Commission des affaires municipales de I'Onta rio

Sybille Pieper has appealed to the Ontario Municipal Board under subsection 22(7) of the
Planning Act, R.S.O. 1990, c. P.13, as amended. from Council's refusal or neglect to enact a
proposed amendment to the Official Plan for the Town of Huntsville to permit the development
of a total of tour (4) seasonal residen tial lots on Part of Lot 12, Concession 10, Geograp hic
Town ship of Chaffey, on Lake Waseosa
OMS File No. 0050208

Sybille Pieper has appealed to the Ontario Municipal Board under subsection 34(11) of the
Planning Act , R.S.O . 1990, c. P.13, as amended, from Council's refusa l or neg lect to enact a
propose d amendment to Zoning By-law 74-08 of the Town of Huntsville to rezone lands
respecting Part of Lot 12, Concessi on 10, Geographic Township of Chaffey, on Lake Waseosa
from Rural One (RU 1) to a Seasonal Residen tial (SR) Zone to permit the development of a total
of four (4) seasona l residential lots
OMS File No. Z060002

Richard Smith has appealed to the Ontario Municipal Board under subsection 53(19) of the
Planning Act. R.S.O. 1990. c. P.13. as amended, from two decisions of the Town of Huntsville
Committee of Adjustment which dismissed two applications by numbered B-103/2002lHTE and
B-104/2002lHTE for consent to convey part of the lands composed of Part of Lot 12,
Concession 10. Geog raphic Township of Chaffey, on Lake Waseosa
OMS File No. C060002 and C060003

APPEARANCES :

Parties Counse l*/Age nt

Syb ille Pieper A. Barton"

Tow n of Hun tsville M. E. Fitton"

Lak e Waseosa Ratepayers Assoc iation and J. Sewell

A nthony Doob and Bema rd Dales

DEC ISION DE LI VERE D BY J . E. SNI EZEK AND ORDER OF THE BOARD

The Propo sa l

Ms Piepe r ow ns property on Lake Waseosa with a frontage of 340 m and an area

of 4.75 ha. There is an existing cottage on the property. The proposal invo lves the
crea tion of fou r parcels. The parcels are described in t he following cha rt:
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PARCE L FRONTAGE AREA

Lot 1 120 m 2.0 ha
Lot 2 48 m 1.2 ha
Lot 3 45 m 0.7 ha
Lot 4 30m 0.8 ha

The min imum standards contained in the zoning by-law are 60 m frontage and .4
ha in area.

Lake Waseosa is located north of the urba n area of Huntsville 6 to 8 kms from
the downtown and 1Y, to 2 kms west of Highway # 11.

The follow ing app lications are befo re the Board:

1. A consent to sever and convey the four parcels.

2. An Official Plan Amend ment (OPA) to the Hunt sville Official Plan (HOP).

3 Zo ning By-law Amendme nt (ZBA) that implements the restrictions relatin g to

the development of the land .

The Hearing

At the outset of the hearing the solicitor for the Town of Huntsville (the town)
indicated that the re had been a settlement between th e applican t and the town and the
town wished to withdraw as a party to the proceedings. The Board conse nted to the
w ithd rawa l of the town.

Ms Jud i Brouse appeared at the Prehearing Co nfere nce and now w ished to
appear alo ng w ith two other witnesses (Derrick Ham mond and Neil Hutchinson) as
"friends of the Boa rd". The ter m "friend of the Board" misapplies the status that perso ns
have before thi s tribun al. There are only two classifications, parties and participants . In
othe r words the Board ca n be said to have "no friends " only parties and part icipants . Ms
Brouse acce pted the status as a participant along with her two other witnesses and they
agreed wit h th e consent of the parties to appear as a pane l.
 "3 " PL 051 311

T he Boa rd held three days of hearing includi ng a "public nigh t" for the ordi nary
citizens to express their views on the appeal. T he Boa rd heard evidence from citize ns
and a nu mber of indi vidual letters of concem we re read . The Board hea rd fro m th ree
planners and three scientists .

B ac k g ro u nd

The subject property is designated "W aterfront" in both the District of Muskoka
Official Plan (DMOP) and the Huntsville Official Plan (HO P).

Se ction B. 10.2.61.2 of the HOP prohibits new lot creation on Lake Waseosa . In
the pla n, Lake Waseosa is classified as "restrictive".

"RESTRICT IV E - Means that this lake has reached ca pac ity and development is
severely restricted . In ge nera l no new lot creation will be permitted . Exceptions
w ill be made whe re it ca n be de mo nstrated that the re will be no add itional
nutrient loading to the lake as a result of de velopment. In addition, redevelopme nt
that wo uld increase the predicted nutrient load to the lake will not be permitted ."
EX 10 , Pg . 97

Policy 15 states:

"New lot creation shall only be permitted where it can be determined that wa ter
qu ality of the lake will be furt her impaired. Spec ifically, the following
circum stances amongst others wi ll be considered:

F 15.2 whe re impro ved septic syste m techn ology or lot layout and desig n can
effectively elimi nate nutrient Impacts on wa ter quality;" ( EX 10 pg 98 & 99)

Th e subject property is zoned Rural One (RU 1) that pe rmits detac hed dwellings ,
with private services having a minimum frontage of 80m a nd a minimum a rea of 0 .4 ha .

OPA # 37 pe rmits the developm ent of fou r lots subject to a series of con ditio ns :

a) Lot 1 has a minimum setback of 120m and restricts the tile fie ld location to
an area beyond the break in the topography that drains away fro m the lake
and towards the road .

b) Lot 2 has a minimum setback of 48m and a similar restriction concerning the
 - 4- PL0513 11

tile field location.

c) Lot 3 has a minimum setback of 45m and a similar restriction with respect to
the tile field location.

d) Lot 4 has a minimum setback of 30m and the tile field and cottage already
exist.

e) With respect to the front yard setback area - this area shall be maintained as
a natural buffer area with only m inimal vegetation being removed .

f) Similar controls on the amount of vegetation to be remo ved in the a rea of the
tile bed and driveway.

g) Lots will be subject to storm water manage ment control mechanisms to

collect a nd treat runoff.

h) The lands are subject to site plan review thro ugh developme nt control.

i) T he septic fields require specific material that preve nts phosphorus

migration.

j) A monitoring program for the first three years is proposed . (This was
amended in argument to be in perpetuity.)

Th e propose d Zoning By-law 2005-152P (ex 18) rezoned the property from RU1
to SR "S ea sonal Res idential" with a series of specia l exceptions:

# 1683 setting out the setbacks for lots 1 - 4 as follows:

Lot 1 120 m

Lot 2 48 m

Lot 3 45 m

Lot 4 30 m

and sets the maximum dwelling size of 465 m2 (5000 sq. ft.).

# 1684 Prohibits the tile beds between the drainage break and the front yards
(the front yard is defined as the lake frontage).
 -5- PL051311

# 1685 Provides where the tile beds are loca ted on eac h lot between the
topograp hic drainage break and East Waseosa Lake Road and zones this
area ope n space.

# 1686 Allows for a pedes trian walkway two metres in widt h and limits docking
related struct ures to 15 m' and docking faci lities to 62 m' with in wh ich a
boat house of 42 m' can be constructed and these limitations extend from the
front yard setback to the shore of Lake Waseosa.

The Planni ng Evidence

The proposed plann ing instruments were supported by uncontested planni ng

evidence provided by Mr. Richard Hunter.

Mr. Hunter opined on the Provincial Policy Statement (PPS) concerning water
quality issues, efficient and cost effective development patterns, resource based
recreational development and health, safety and environmental concerns. In addition,
he felt that the site in questio n is suitable for individual servicing and that natural
heritage and wate r quality issues had been addresse d.

Mr. Hunter felt that the proposed Official Plan Amendment (OPA #37) was
adequate and addressed all of the potential deve lopment conce rns. He also pos ited that
the development satisfied most current parameters for lakefront development on
se nsitive lakes.

Mr. Hunter provided the follow ing comments with respect to Sectio n 51(24) of the
Planning Act:

a) Th ere are no items of provincial interest in the development and the

development is consistent with provincial directions with respect to
development standa rds along lake s and shore lines with capacity issues .

b) The proposal is not premature and considering the environmental evaluation,

the proposed lots can be developed with no negative impacts. No service
exte nsions are required. The development will set a standa rd for the review
of shoreline development.

c) The proposal conforms to the DMOP and with the approva l of OPA #37 it will
 -6- PL051311

conform to the HOP. The proposal exceeds the standards of development

on Lake Waseosa .

d) Based upon Michalski's site suitability report (EX 12) the lands are suitable
or seasonal residential development.

e) The development fronts on a regularly maintained municipal roadway (East

Lake Waseosa Lake Road ) with adequate capacity.

f) The dimensions and shape of the lots are adequate based upon Michalski's
analysis of the landscape suitabili ty of the site.

g) With respect to any restrictions on the property, there are no easements and
the proposed restrictions in the Michalski will bind existing and future owners
of the lots.

h) There are no issues with respect to flooding on the property. The local Fish
Habitat I will be conserved and protected. The water quality will be protected
by the design of the septic systems. storm water management facilities and
buffer areas.

i) The local services (hydro and garbage collection) are adequate .

j) There are no school capacity issues .

k} Parkland is provided via a 5% cash-in-Iieu contribution.

I) The size of the lots and their orientation make energy saving buildings
possible .

Mr. Hunter concludes that all of the provisions of Section 51(24) of the Planning
Act a re satisfied.

The Pan els Evidence

The Board heard evidence from a panel of experts - two planners Ms. Judi
Brouse Director of Watershed Programs - Muskoka Watershed Council, and Mr. Derrick
Hammond, Director of Planning Services, District of Muskoka and a scientist, Dr. Neil
Hutchinson, Gartner Lee Limited.
 -7- PL051311

The panel provided a history of and the evolution of water quality, lakeshore
capacity and shoreline development planning approaches and methodologies. The
overall model relates to the control of phosphorus in recreational water bodies in the
district. It comp rehensively addresses the issue of phosphorus loading from a number of
angles not just sewage sources .

The policy permits a municipality to approve new lots if there is no net increase in
the phosphorus levels in the lake.

The policy requires site-specific Section 52(26) agreements, OPA's, and site
plan s along with commitments to mon itor buffe rs.

The panel focussed on phosphorus levels in lakes and in the case of Lake
Waseosa it was above the model calculation 12.52 vs 10.77 (16.2% higher) and it was
above the threshold level plus 50% 11 .5 vs 12.52.

The Proponent's Scientific Evidence

The Board heard evidence from Mr. Michael Michalski, a consulting

environmental scientist. He prepared a report entitled "Environmental Evaluation Pieper
Property" dated January 2003 (Revised August 2004)

Mr. Michalski made an analysis of the topographical conditions of the site

specifically the areas with greater than 25% slope.

He ana lysed the soil conditions on the lots and noted that the native soils we re
thin, generally less than a metre in thickness and possessed high levels of naturally
occurring iron and aluminium. These elements combine with phosphorus to precipitate it
out and or bind it in such a way as to prevent it from migrating off the site and into the
lake via the road side ditch. The soils were acidic in character. Mr. Michalski noted that
Lake Waseo sa was located in a deciduous forest with a ring of conifers surrounding the
lake. There were no threatened or endangered species of plants or animals. and no
Areas of Natural or Scientific Interest (ANSI's). Mr. Michalski noted 27 species of birds,
3 animals and one amphibian on the site. Mr. Michalski inventoried two weedy areas
along Lake Waseosa that he considered to be Type I fish habitat and we re worthy of
protection.
 -8- PL05131 1

The three new lots (1, 2, and 3) were designed in suc h a way as to avoid the
areas of stee p slopes . The buffe rs were located in such a way as to protect the steep
slopes and the lake from the impacts of development. The only uses allowed in th e
buffer zones abutting the lake are a path two metres in width and the dock and
boathouse on the lake. The Jots were designed re sponding to the local environment.
Th ey were desig ned using standa rds app ropriate to the landscape and not the zoning
by-law minimu ms.

Op position 's Scientific Evidence

Th e Board heard evidence from Dr. William Robertson a hydrogeologist

specia lizing in septic system plumes and the author of twe nty scien tific pape rs on the
subject. It was his opinion that P could be remobilized and that iron phosphate was
particularly vulnerable to remobiJization. He stated that remobilization could occur during
times when the septic field is saturated with water. T his situation could occur during the
spring ru noff, duri ng high rainfall events and during periods of heavy use.

Dr. Robertson indicated that he had no intimate knowledge of the site and he did
not know if the bedrock in the area was fractured. He stated th at little or no research
had been done on P attenuation in fractured bedrock. He stated that core drilling would
have to be done in the area to determine the nature of the bedrock and whether a
fracturin g condition existed.

Dr. Robertson noted that a site in Sturgeon Bay had bee n studied and that P had
been remobilized during high water events.

In terms of the Branson case on Lake Kushog the number of parameters should
have been expanded to include chloride, sodium and nitrates. The risks to Lake
Waseosa were "not trivial" in his opinion.

Dr. Rob ertson concludes in his witness statement (EX 26 pgs 5 & 6) "Aithough
the tile bed s proposed for the Lake Waseosa site , because of their considerable
setback dista nce and because of the use of imported fill with co nside rable P sorption
capacity, will likely provide better P attenuation than many of the existing septic systems
on the lake, there is still a finite risk of additional lakeshore P load ing from the proposed
 -9- PL051311

septic systems. In my opinion the greatest risks are associated with gro undwater flow
via bedrock fractures, and from periodic short circuiting of normal soil P attenuation
processes during hig h water table eve nts."

Residents Evidence

The Board heard evidence from Mr. Bill Somers, Mr. Camero n Wh ite , Mr. Terry
Sebastian and Mrs. Sandy Sebastian, Mr. Dwayne Verhey and Mr. Bruce Howlett.

The residents expressed concerns about the impact the proposed lots would
have on Lake Waseosa. The residents noted that there are 12 vacant lots on the la ke
that ca n be developed. In addition, the Ca nadian Diabetes Association's Camp Huronda
located across the lake from the proposed lots has plans to expa nd its program from 92
childre n per week to 125 children per week (EX 25 pg 3). The residents note that Lake
Waseosa ha s bee n closed to new develop ment for "almost 30 yea rs" . Mr. Ver hey noted
in his testi mony that the boating survey do ne by Mr. Michalski was done on a day
following the regatta on the lake and this was the main reason for the low amount of
boat traffic on the lake. Th e residents concerns relate to the existi ng cond ition of the
lake and the risks posed by the proposed new lots as well as the vacant lots. The
residents also question the ability of the town to enforce the cond itions of deve lop ment.
The reside nts urge the Board to apply "Precautionary Principle" to this proposed
developme nt and not allow the appeal because of the potential risks .

Findi ngs and Concl usions

The focus of the hearing has been about P (phosphorus) and the pote ntial
increa se in P in Lake Waseosa that is now at a level that exceeds the predictive model
for the lake. T he reasons for this could be malfunctioning septic systems, naturally
occurring P leve ls or higher levels due to surface runoff or naturally occurring sources
such as we tland areas. None of the planning or scientific witnesses were able to predict
whe re or when algae blooms could occur.

Th e precautionary principle proposed by the reside nts is that the Board should
not approve any new development when there is a potential of doing ha rm.
 - 10 - PL051311

The evidence presented indicates that there are risks to Lake Waseosa from the
existing conditions on the lake. There are risks from the developmen t of the vacant lots
and the expansion of Camp Huronda. There are risks that the boating capacity study
unders tated the conditions on the lake because of the frequency of and the timing of the
survey . There are risks that the proposed systems to protect Lake Waseosa may fail in
high water table conditions that may result from seasonal factors, high rainfall events or
heavy use of the septic systems.

The Board heard evidence that the proposed size of the dwellings and the
proposed boathouse development was not in keeping with the character of the
developme nt on the lake . The re are increased potential risks of overloadi ng the septic
syste ms with large r dwe llings than with sma ller ones beca use potentially more peop le
may use the facilities.

Given the balance of probabilities the risks to Lake Waseosa from the approval of
this application cannot and should not be ignored .

The circumstances here are significantly different from the Branson case that
involved one lot on a 38 acre property on Kushog Lake. T his case involves four lots on
a much smaller property.

It appears that the planners in this case have only focussed on the Phosphorus
tree to the exclusion of all the other trees or risks in the lakeshore planning forest. The
issues of lake capacity and risk from other sources have not been addressed.

T he residents and Dr. Robertson have raised sufficient issue s of risk to place into
question the ass umptions used to eval ua te this proposal.

The appeals are dismissed.

"J. E. Sniezek"

J . E. SNI EZEK
MEMBER