In discussions with our members, we’ve had a few more questions come up regarding Bylaw 2022-004
Q&A: At Capacity Cold Water Lake Trout Lake – A change is proposed to modify the “at capacity” allocation from below Ski Island, Kamaniskeg Lake, to above Ski Island
- Will there be a map inserted to accompany this bylaw change to clearly delineate the area that is allocated as “at capacity”?
John Jardine: People can go to the maps from the County of Hastings Official Plan on their website or contact the County of Hastings. - It has always been our understanding that the northern basin of Kamaniskeg Lake is less healthy than the southern basin, due in large part to the sewage treatment outflow into the north basin at Barrys Bay, agricultural properties bordering the lake near Barrys Bay, and the high rate of water turnover in the south basin from the Madawaska River. To that end, why does the “at capacity” allocation not include all of the north basin starting from Parcher Point/Squaw Point and proceeding north?
John Jardine: The Ontario Ministry of Northern Development, Mines, Natural Resources and Forestry (MNDMNRF) identifies and the Ontario Ministry of Environment, Conservation and Parks (MECP) classify lake trout lakes as being “at-capacity.” People can contact these Ministries to learn more about identifying and classifying lake trout lakes as being “at-capacity.” - On what basis has the allocation been altered, has there been water quality studies conducted to identify the areas that are and are not any longer at risk for high and concerning concentrations of phosphorus?
John Jardine: The Ontario Ministry of Northern Development, Mines, Natural Resources and Forestry (MNDMNRF) identifies and the Ontario Ministry of Environment, Conservation and Parks (MECP) classify lake trout lakes as being “at-capacity.” People can contact these Ministries to learn more about identifying and classifying lake trout lakes as being “at-capacity.” - Does this bylaw simply require that a water quality study be submitted with any request for subdivision or severance of land, or any zoning or county plan amendment, and it does not preclude any property from being severed or subdivided, if the study supports a healthy level of phosphorus?
John Jardine: The County of Hastings is the approval authority for Subdivisions, Severances and Official Plan Amendments. It depends on whether the proposed Zoning Bylaw Amendment is adjacent to an “at-capacity” cold water lake trout lake. The Council of the Municipality of Hastings Highlands is tasked to decide whether to amend the zoning for the property pursuant to the regulations of the Planning Act. Council must ensure the Application meets four tests. A Notice of the Zoning Bylaw Amendment Application will be circulated to neighbours within 120 metres of the property. The cost of the Zoning Bylaw Amendment Application is $800.00 and the Application must be heard within 90 days.The criteria for evaluating Zoning Bylaw Amendments are as follows:
- Consistent with the Provincial Policy Statement, 2020.
- Maintain the general intent and purpose of the County of Hastings Official Plan;
- Maintain the general intent and purpose of the Comprehensive Zoning Bylaw; and
- Desirable for the appropriate development or use of the land, building or structure.
Depending on the proposal, it may or may not meet the tests above and it may not be recommended for approval by Council.
Increase in Waterfront Residential Lot Area Minimum (to 2 acres) for Principal Building
- With regard to grandfathering, will waterfront lots that are currently under the 2 acre minimum run into difficulty when submitting a building permit for renovations to an existing principal building? Or does this bylaw only apply to new severance/subdivision requests?
John Jardine: Yes, existing lots of record under the minimum lot area will be permitted to continue as is. The minimum lot area is in regards to new severance or subdivided lots
Bylaw 2022-005 (Vegetative Buffer)
- For comments that have been shared through the Have Your Say portal to date, are these available to be viewed by the public? May we obtain a copy?
John Jardine: Yes, these responses will be included in the next Reading of the proposed Bylaws on May 4, 2022 as part of the Council Agenda. - How frequently are the portal comments shared with Councillors, and what is the process for sharing these comments?
John Jardine: The comments are included in the Readings of the proposed Bylaws with the next Reading on May 4, 2022 as part of the Council Agenda. - Has a report been requested from the Hastings Highlands Fire Department to comment on the 30 metre vegetative buffer requirements and any potential conflicts with the same department’s recommendations to the public (for non-combustible and priority zones 1-3)? This has been requested by at least one of our members, and I don’t believe that it has been addressed.
John Jardine: The Planning Act is the legislation in Ontario that governs land use planning and provides the legal foundation for the tools that planners use.The Planning Act states that all decisions of Council shall be consistent with the Provincial Policy Statement.
The Ontario Ministry of Environment, Conservation and Parks (MECP) “recommends a minimum 30 metre setback from the highwater mark of water bodies as a standard in local Official Plans and related Comprehensive Zoning Bylaw and is consistent with Section 2.2.1 of the Provincial Policy Statement Part h) ‘ensuring consideration of environmental lake capacity.’ This is also in addition to Section 2.2.2 of the Provincial Policy Statement which states that ‘Development and site alteration shall be restricted in or near sensitive surface water features and sensitive ground water features such that these features and their related hydrologic function will be protected, improved or restored’.”
The Ontario Ministry of Environment, Conservation and Parks (MECP) supports a minimum setback of 30 metres “to provide protection to lakes, rivers and streams from inputs of nutrients and suspended sediment consistent with Section 2.2. Water – of the Provincial Policy Statement. These contaminants originate primarily from the disturbance of soils, removal of natural vegetation, hardening of the landscape which results in increased surface runoff in addition from the migration of septic effluent from tile fields. The minimum setback of 30 metres from a water body is also recommended for water quality protection purposes. Generally, the greater the setback from the water; the greater the level of water quality protection. The 30 m buffer strip has become a standard and has been supported before the Local Planning Appeal Tribunal (LPAT).”
Section 5.4.5.7 of the County of Hastings Official Plan states:
“In Waterfront areas, residential dwellings shall be set back as far from the shoreline as is practical, taking into consideration the size, shape and topography of the lot in question. Wherever feasible, the setback should be at least 30 metres from the high water mark and should remain undisturbed and naturally vegetated. Where the placement of an existing road will not allow this setback, the distance may be reduced to half the distance between the road and the water body, subject to approval of a variance to the implementing Zoning By-law and to site plan approval and provided the setback is not less than 20 metres. Residential infill structures may be set back from the high water mark in accordance with the established building line.”Section 5.4.5.8 of the County of Hastings Official Plan states:
“In Waterfront areas and adjacent to watercourses, a natural vegetative buffer strip a minimum of 30 metres in width should be maintained wherever possible from the seasonal high water mark to filter pollutants from run-off. Within this buffer area, the clear cutting of trees shall be discouraged. On existing lots of record where a 30 metre setback from the high water mark is not possible, the setback may be reduced to the maximum setback possible, subject to the approval of a minor variance to the implementing Zoning By-law and to site plan approval. In order to determine the most appropriate building location of an existing lot of record, consideration should be given to reductions in other yard setbacks before considering reductions to the setback to the high water mark. A lesser buffer area may be required as determined by an approved environmental impact statement or site evaluation report pursuant to Part A – Sections 7.8.6 and 7.8.8 of this Plan that demonstrates that there will be no negative impact on the fish habitat and its ecological function.”Section 5.4.5.8 states “a natural vegetative buffer strip a minimum of 30 metres in width should be maintained wherever possible,” and does not say “shall be maintained.” Sections 5.4.5.7 and 5.4.5.8 are written with leniency and flexibility to permit “exceptions” to these Sections to provide enough flexibility for property owners to apply for minor variances from the zoning bylaw.
The Committee of Adjustment consists of five members and is tasked to decide whether a Minor Variance Application is considered “minor in nature” together with three other “tests” that the Application must meet.
The tests are as follows:
1. Minor in nature;
2. Desirable for the appropriate development or use of the land, building or structure;
3. Maintain the general intent and purpose of the zoning by-law; and
4. Maintain the general intent and purpose of the Official Plan.If Section 5.4.5.8 states “a natural vegetative buffer… shall be maintained,” then a property owner proposing any development within 30 metres of the high water mark will fail the fourth test of a Minor Variance Application because the general intent and purpose of the Official Plan does not permit exceptions for development within 30 metres of the high water mark. The use of “shall” is very restrictive and prohibitive.
Instead, Section 5.4.5.8 of Official Plan states “a natural vegetative buffer strip… should be maintained” which grants exceptions to this Section of the Official Plan and makes it possible to meet the fourth test of a minor variance, depending upon the Minor Variance Application. The use of “should” in the Official Plan is less restrictive than “shall” and allows for the possibility for relief from the Official Plan. If “shall” was used in the Official Plan, there would be no possibility for relief from the Official Plan without first obtaining approval for an Official Plan Amendment (OPA) before getting relief in a Minor Variance Application.
Subsection 26(9) of the Planning Act requires the Comprehensive Zoning Bylaw to be updated and amended to conform with the County of Hastings Official Plan when the Official Plan is updated. The Official Plan was updated in 2018. The proposed Bylaw 2022-005 will conform with the policies in the Official Plan as Ontario’s planning legislation requires.
Currently, no development is permitted within 30 metres of the high water mark and a 15 metre natural vegetative buffer is required to be maintained along the shoreline. Currently, there are no exceptions within the 15 metre natural vegetative buffer.
The proposed Bylaw will increase the natural vegetative buffer from 15 metres to 30 metres while amending the zoning to permit exceptions in the natural vegetative buffer. The exception will allow the clearing of 25% of the shoreline frontage or up to 23 metres (75 feet), whichever is the lesser, of the 30 metre natural vegetative buffer.
The document that the Hastings Highlands Fire Department (HHFD) created is a synopsis of the MNRF “Fire Smart” initiative. MNRF’s “Fire Smart” Initiative contains variations and different recommendations to mitigate fires, including home maintenance, building materials, and choosing plants, shrubs and trees that are fire-resistant. For example, the “FireSmart” Initiative recommends planting certain trees, such as poplar and birch trees, within 10 metres of a home as they are resistant to wildfire while avoiding highly flammable trees, such as spruce and fir. The full “FireSmart Begins at Home Manual” is available online.
The MNRF “Fire Smart” Initiative is a recommendation from the Ontario Ministry. It is not a legislative requirement.
In most cases property owners are able to meet the criteria contained within the Municipality’s Comprehensive Zoning Bylaw and the wildfire management strategies provided in the MNRF’s “FireSmart” Initiative.
However, in unique circumstances where property owners have a legal non-conforming residence that falls within the vegetative buffer and they have concerns with wildfire protection strategies, the Property Owner should consult with the Planning and Bylaw department prior to commencing any work. Providing a detailed work plan with site drawings and measurements will allow the applicable municipal department to provide any recommendations that may be required.
- Has there been any further consideration to moving the in-person open house and the final reading of the bylaw to a date when seasonal owners of waterfront property would be able to attend the meeting in person?
John Jardine: The Municipality has provided many opportunities to comment on the proposed Bylaws and has notified the public in numerous ways. The public has been notified by a tax bill insert in every taxpayers tax bill, advertisement in local newspapers, publication in local newspapers, publishing on the website, included in Council Agendas, and a Facebook campaign.
The Municipality has also given ample notice to members of the public of the dates for the public meetings and open house sessions. Members of the public are able to attend the public meetings (virtually) and the virtual open house from anywhere in the world. The in-person open house session is scheduled Thursday before the Easter long weekend with more than enough notice for people to schedule the time and make arrangements to attend the in-person open house session if they wish to. - Many of our members are in favour of a vegetative buffer (whether 15 or 30 metres), but there is concern for the increased level of bureaucracy that this bylaw introduces, when a waterfront owner needs to submit a CSR to remove any concerning vegetation within the buffer zone (excluding the lessor of 75 feet or 25% of linear frontage allowance). It penalizes the majority of residents who are responsible stewards of their waterfront, in an effort to minimize large disturbances created by a minimum of residents. Aside from the apparent requirement to “conform” to the County Plan, has there been any consideration to initiating bylaw wording that directs the penalties to the small few who clear cut their shorelines indiscriminately?
John Jardine: The Municipality is required by Ontario’s Planning Act to amend the Comprehensive Zoning Bylaw to conform with the County of Hastings Official Plan.
Currently, no development is permitted within 30 metres of the high water mark and a 15 metre natural vegetative buffer is required to be maintained along the shoreline. Currently, there are no exceptions within the 15 metre natural vegetative buffer.
The proposed Bylaw will increase the natural vegetative buffer from 15 metres to 30 metres while amending the zoning to permit exceptions in the natural vegetative buffer. The exception will allow the clearing of 25% of the shoreline frontage or up to 23 metres (75 feet), whichever is the lesser, of the 30 metre natural vegetative buffer.
The Municipality will have to consider each proposal on a case to case basis.
The Comprehensive Zoning Bylaw is a regulation that needs to be adhered to for all property owners and cannot specifically target individuals. This would not be a fair bylaw.
If property owners are adhering to the zoning and other regulations, then there should be no concern or issue.
