Grandfathered Property Rights Threatened in South Frontenac

Wilma Kenny | Nov 30, 2016

Last May, proposed housekeeping changes to the South Frontenac Official Plan were passed by a 5-4 vote of Council in the face of a storm of protest from long-time waterfront residents.

Now, South Frontenac Township is facing 8 OMB appeals on behalf of over 300 long-time lakefront residents from Buck, Desert, Bobs, Crow, Hambly, Loughborough, Big Clear, Howes and Knowlton Lakes. The residents fear they will lose their current rights to do any major improvements on their existing cottages, because those cottages were built years ago within the 30 metre setback from the shoreline now required for all new construction.

This spring’s  Official Plan changes to section 5.10.2): A) do not permit buildings within the 30-metre setback to be taken down and reconstructed, even on the same footprint and in the same dimensions, and B) define a property as vacant once more than 50% of load-bearing walls have been removed from a building within the setback (and therefore the structure would not be replaceable.) Council did retain that part of section 5.11 which permits replacement of a structure partially or completely destroyed by fire, flood or other ‘act of God’, but removed the right to replace a structure lost through a Township ordered demolition permit.

As spokesperson for the residents’ steering committee, Jeff Peck pointed out at a Committee of the Whole meeting on November 23 that the Official Plan changes do not address the majority of non-conforming lakeshore structures that are neither abandoned nor destroyed by natural causes. Many 60 to 100-year old family cottages which are still in use require more than just patchwork plumbing and wiring upgrades to continue to be safe and functional. He said that sometimes, in cases of mould, rot or decay, old summer cottages may need to be reconstructed in order to continue to be safe and healthy for habitation. This degree of reconstruction will now require an application to the Committee of Adjustment before being granted a building permit.

The residents Peck speaks for are not asking to increase the size of their grandfathered structures; only to have the right to maintain and update the current structures on their current footprints. Recent decisions by the Committee of Adjustment, supported by recommendations from the Health Unit and the CRCA , have consistently resulted in the requirement that wherever possible, all reconstructions must be relocated 30 metres back from the shoreline, thus reinforcing the complainants’ concerns.

This spring, Council accepted planner Mills’ interpretation of the intent of the Township’s Official Plan as: “eventually all buildings will be well set back from waterbodies to ensure protection of our lakes,” even though this interpretation, if followed to conclusion, could force relocation of the historic Township hall itself.        

“We would welcome the opportunity to work with Council to resolve this in a respectful manner, and could withdraw our OMB appeal,” Peck told Council last week; “We feel our individual property rights and the environment can both be protected. The Township could permit reconstruction on the footprint, but also stipulate environmental protection measures such as updated septic systems, water conservation strategies, etc.”

However, the twenty individuals who comprise the steering committee are determined to continue with the OMB appeal if Council shows no wish to work with them toward a mutually acceptable resolution. They are well funded and will be represented by Murray Chown, (Planning Consultant and Expert Witness) and Michael Polowin, (Lawyer). In a 2009 appeal involving the City of Ottawa, Polowing  convinced the OMB that “municipalities may not limit or coercively bring to an end non-conforming or non-complying rights beyond the narrow constraints permitted by the Planning Act, R.S.O.1990, c.P.13 and at common law.” (this ruling was discussed fully in The Digest of Municipal & Planning Law, Jan 2010, Issue 13.)

“An OMB appeal will be unnecessarily costly for all of us,” Peck told the Committee last week.

At the end of the meeting, Councillor Sleeth asked “Are we going to talk with them,” and offered to bring a motion to reconsider Council’s earlier decision. Deputy Mayor Sutherland said they had already come to a decision as a Council. Mayor Vandewal suggested that it was inappropriate to publicly discuss a matter currently before the OMB, and suggested they bring it to the closed session before the Dec 6 Council meeting. To be successful, a Council vote to reconsider a recent decision requires a 2/3 majority.