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Council upholds legal advice in approval of amending zoning for boathouse

The Yacht Club parking lot was under water earlier this year and has been slow to recede.

Council alluded to potential legal problems if it denied William and Beverley Harney’s bid to amend zoning at 28 Fairfield Street (next to the Yacht Club).

And wanting to make their 9-4 recorded vote decision of approval transparent to the public, voted to have a public version of the closed meeting legal position made public.

Councillor Jamie Forrester had requested the legal opinion when the issue first came to council in May (see below), stating he did not want to have a denial of the zoning challenged and costing the municipality a lot of money and time in a legal challenge.

Councillor Phil St.-Jean, presented the amendment to share the legal information.

“I believe the general public should be appraised of what the result of the legal opinion that we asked for was,” said St.-Jean, presenting a deferral motion until that opinion could be brought forward. “I feel this is a matter of transparency and is very important.”

“We’ve heard our legal,” said Forrester. “This is a hard decision to make. Doesn’t really matter whether I like it, or don’t like it,” said Forrester. “I wanted legal opinion because that means something,” he said noting there was no point putting it off for another few weeks waiting for information they already know.

“It will be evident, depending on which way the vote goes, on what the legal opinion was. I will be supporting this motion tonight because I’ve already been told.”

Mayor Ferguson and several other councillors agreed with deputations, and some comments made from the audience earlier in the meeting regarding building on a flood plain, parking, water main issues, fire safety, noise and the chances that further boat house owners would follow suit to operate a short-term accommodation in their buildings.

The area is already zoned properly to host a short-term accommodation. Council approved the zoning bylaw amendment which allows for a second-storey tourist accommodation unit above an existing boathouse with off-site parking and to recognize the existing setbacks of the boathouse.

Brian Armstrong, who owns a neighbouring boathouse, was one of several Hill Street area residents who addressed council.

“I still have six inches of water on the floor of my boathouse and don’t know how much erosion I’m going to have,” he said. “My boat house has been there since 1879 and I’m worried I’m going to lose it this year. There’s no question it’s a flood zone. All you have to do is drive down and see it. It’s been that way all year… Right now I’m dealing with a beaver that’s decided to live outside my door. You’re talking about building an apartment for people to rent? And the docks, they’re infested with rats.”

Dr. Sally Sarles, who practised in the County for 46 years, also told council she opposes the rezoning.

“Docks and boathouse balconies, plus water are an attractive hazard, worse with high water, as there is more floating debris and there are more floating submerged logs. A jump could cause injury. A dive could be fatal. The polluted water can cause eye or ear infections. I got an ear infection when I fell into the harbour. The moral of the story is don’t put your head in the water of Picton harbor,” she said, noting the docks are also slippery when wet. “While docking, line in hand, I jumped onto the dock, only to slide into the water off the other side. Knowledge doesn’t mean you can’t make stupid mistakes.”

“This year’s flooding is unprecedented,” said Ferguson. “It is beyond our expectations and given data we have received about what may occur in 2020, it could be worse. We have the legal opinion, but I think another deferral would be prolonging the matter.”

The motion to defer fell, but a motion to bring the legal information forward was approved.

Mayor Ferguson and councillors Stewart Bailey, Brad Nieman and Bill Roberts opposed the approval of the zoning.

UPDATE: At the direction of council, the municipality has released the legal opinion.

Click here to view 

Council will seek legal advice over boathouse minor rezoning

MAY 29: An application for minor rezoning to allow parking for a loft above a boathouse to be used partially as tourist accommodation has been deferred by council for a legal decision.

The application was presented to council as it did not reach two-thirds majority at a planning meeting last week.

A half dozen neighbours spoke to council against approval for 28 Fairfield Street in Picton (next to the Yacht Club), citing parking problems, setbacks, noise, building code and other concerns.

Several councillors agreed, also speaking to the dark neighbourhood on Hill Street due to a high amount of short term accommodations; flood plain area, water main issues and the chance further boat house owners would follow suit.

Some were comfortable with approval as this would not take away a full-time living space; and it was specifically for a minor zoning change – the site plan, building and safety issues would come up later in the process.

Councillor Jamie Forrester requested a legal opinion on what happens if council denies the application, and the applicant challenges the decision.

“One thing I don’t want to do is not approve this, have this challenged and cost this County a whole bunch of money. A legal opinion would save us a lot of time, and effort. I would like to hear more information.”

Property owner William Harney had spoken to council in a deputation speaking to the desire to work with the Yacht Club and neighbours. He and his wife plan to stay in the loft and friends and family would also be welcome. On occasion, he said, the loft would be let out to tourists.

Neighbours at 26 Fairfield wrote in support of the project. The Yacht Club was in support of improvements and renovations, but not use as a rental.

The rezoning application is to allow for two alternative parking spots at the Yacht Club. The Harney’s wish to install water and sanitary services via main extensions. A tourist establishment is a permitted use of the property on an existing lot of record.

The existing boathouse structure is located within the 1:100 year flood plain but passes the Quinte Conservation five-test (flooding, erosion, dynamic beaches, pollution and conservation of land) it so would be difficult to deny the application, said councillor Janice Maynard. The risk is minimal as the tourist unit would be on the second floor of the long-standing building, free from direct flooding.

Councillor Mike Harper said it’s important what the public sees.

“I’m not that concerned about the personal use residence. It will meet code and be safe; potential of flooding is their business, but my business is how does this look to the public? Given that we’ve just gone through a lot of discussion and work to establish some short-term accommodation regulations to deal with community problems, I know technically STA regulations don’t apply, but if it looks like a duck, quacks like a duck and swims like a duck, it is a duck – it is a rental and the public won’t care about the zoning.”

Harper said the public will care that council just established rules around set backs and privacy fences and parking “and before the ink is even dry, allow an exception to that. It opens us up to serious criticism. It weakens the program and also hurts the integrity of the program and opens us up to more challenges.”

The issue is to come back at a future meeting.

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  1. Mark says:

    It was a minor variance with a tourist establishment as a permitted use. Pretty straight forward application.

  2. Dennis Fox says:

    This application did not meet zoning requirements – this is the reason for the public meeting. The dept. certainly could have said no, with an explanation – as we know this wasn’t the case.

  3. Mark says:

    No, the planning dep’t could not have easily said “no”. They are required to follow zoning bylaws and permitted uses. By thouroghly doing their job they arrived at the conlusion that this was a permitted use. Thats what they are trained and paid for.

  4. Dennis Fox says:

    What needs to be remembered is that the planning department only makes recommendations on an application – they could have just as easily said no to this one – a lot depends on what council’s expectations are – and I suspect this is why the application was approved – council wants more building to occur. The question that needs to be answered is – does council represent the neighbourhood or the neighbour? The application does not meet building nor zoning requirements and a rezoning is required. The legal opinion is just that an opinion. As this article pointed out – this is only one of many boathouses in the area and now the precedent has been set – and based on what planning principle? Expediency is not a planning principle – this application required a lot more thought before a decision was made. Has anyone thought about the long term impact on the area if all boathouse zeek rezoning? It doesn’t appear so – and no legal opinion addresses this – but the residents will have to live with it.

  5. Gary Mooney says:

    Property owners have rights. Council cannot deny a project just because they don’t like it, or because neighbours don’t like it. There are planning and zoning rules, and if a project complies with those rules, the owner has the right to proceed. The County’s planners approved the project, and legal counsel provided an opinion that it meets all the rules. If Council ignores the planners’ and laywers’ advice and denies the project, the property owner can appeal to the Local Planning Appeals Tribunal. Then it gets really costly for County government and taxpayers and, in the end, the property owner likely wins.

  6. Angela says:

    What’s wrong with an STA in the neighbourhood, Susan? Hill Street is no longer a neighbourhood. It is Tourist Town. A neighbourhood is comprised of families not overnight guests.

  7. Elaine Inrig says:

    As one of the many taxpayers who were present at the Tuesday night meeting of council, I am very disappointed at the decision that was made regarding approval of the boathouse at 28 Fairfield as living accommodation. I can accept that our council has the responsibility to weigh the pros and cons of such approval and I had trusted that they would make a decision based on the facts of the case.

    However, it is pretty evident that the council was informed well before the meeting that if they turned down the application, they would end up in litigation which would cost the municipality money. Evidently that this is the reason that the majority of council voted to approve this thing.

    I guess we could argue the idea about what would be best for the municipality; to consider the environmental and logical possible outcomes of approval or to protect the municipality from ending up in court (remembering that it was a legal ‘opinion’). That’s for each of us to decide.

    What I am disappointed about is that we (the large group of people who attended that meeting) thought that our input or arguments against approval would have been weighed by council. There were two excellent depositions that night as well as a petition. However, I am given to believe that the decision was made when the council received their guidance from a lawyer. How must they have felt sitting there listening to us spout off about what a bad idea it was when they knew full well how they were going to vote. It seems to me that we were made fools of and it was a complete waste of time. The lawyer had the last word. Why did we go through that charade for 2 hours?

    It would appear that if someone wants to get around the rules in this municipality, they just have to be persistent and eventually council will be scared by the legal profession and eventually people can do whatever they want. It doesn’t matter that we had solid concerns. I suspect that if we had had the manpower to go door to door in the County we could have had many more signatures on that petition but as it turns out, it was for naught.

    Would there not have been a better way to deal with this than to put on such a charade on Tuesday night?

  8. Susan says:

    Glad we saved the appeal dollars to fix potholes. What’s wrong with another STA on Hill St ? Fits the neighborhood.

  9. Chris Keen says:

    I look forward to hearing details of the mayor’s meeting with AirBnB officials in Ottawa at the AMO Conference.

  10. Doris Lane says:

    Terrible idea
    A good way to ruin the yacht club property
    No suitable to live in

    Come on council waken up

  11. Dennis Fox says:

    No one said anything about governing by “misinformed public opinion” – funny how things can get conveniently twisted. What needs to be remembered is that the public have a right to their opinion – it is Council’s job to inform them if they are misinformed – but that hasn’t happened here. Instead there is a legal opinion claiming that it would be wrong to oppose the applicant. But who is to say that the legal opinion isn’t misinformed? Remember 50% of lawyers ended up in the bottom half of the class – not all are brilliant minds.

    However, I digress, the reason for having elected people is to represent the public’s interests – sometimes, regardless of the legal opinion, Council has to fight the fight to establish their position and to test the legalities – for they too can change. Most municipal lawyers lean on past precedence, which is based on past OMB decisions – a very flawed and legally shakey institution. It is worth the challenge, in my opinion.

  12. L.A. Austin says:

    The boathouse owners admitted they want to be able to use the upper portion as an STA, with possibly a kayak rental in the lower. The bldg, in a flood zone, meets none of the setbacks required for such a new use, there is no existing water/sewer in place, no parking on-site. Should never have gotten this far via Planning. Why did this get through but not other applications around the County that were rejected yet would have had no adverse effect whatsoever on their respective surroundings? Decision came out of the threat of legal costs… I don’t think its going too far to say the future of our harbour is in jeopardy if this is the type of decision that will continue to be handed down by Council. Other communities may well point to us as a good example of what not to do.

  13. Brody says:

    Governing by misinformed public opinion would be a dangerous thing to do.
    What people like or want is not necessarily desirable or legal.
    The proposal is not an STA as many claimed and is not new development in a floodplain.
    The opinion which was released by the County on Wednesday makes it clear the County would lose in an appeal to LPAT.
    Why would Council want to undertake the expense of defending against an appeal which would clearly be successful?

  14. Dennis Fox says:

    If we are going to allow this community to be run by lawyers, what is the point of having an elected council? Lawyers will always tell you what the “legal” or “less costly” position is to take – hopefully elected representatives will try to reflect the will of the people – and sometimes that means taking on the legal system – it is called “political” representation. Taking the safe route isn’t always the right one – particularly when planning a community.

  15. Susan says:

    The application met legal zoning requirements. That’s what this is all about.

  16. L.A. Austin says:

    One legal opinion and almost all Council caved!!! Ask anyone working in the law field: even if you seek multiple opinions that’s all and what you’ll get, pure and simple, multiple opinions! Its NOT a ruling, people! So why use this one opinion to fly in the face of such strongly demonstrated public opposition. As well as record attendance of opposers at each council mtg (in addition to those actually addressing Council and speaking against) each time this matter was on the schedule, strong opposition to this rezoning proposal was also indicated by a petition submitted to Council which demonstrated that opposition is widespread in the County, not just confined to the area in which the boathouse is located. The petition was not reported in the media coverage; it read, “We, the citizens of Prince Edward County, petition the Prince Edward County Municipal Council to reject the rezoning request for 28 Fairfield St. as found in File No. Z7-19, which would allow tourist rental accommodations in this boathouse.

    We are opposed to the rezoning application due to a number of issues being discussed by Council including parking, safety, and allowing development in a floodplain.

    This petition has been signed by 221 (adult) County residents who think this is a bad idea.

    52 of those signees live in the immediate area, mainly Hill St. The remaining 169 signees are residents of Picton, Bloomfield, Wellington, Sophiasburgh, Hallowell, and North and South Marysburgh. ”

    There are 7 boathouses in that row – not just the one belonging to the Harneys, and countless others around the County. This decision has set a dangerous precedent.

    The County is changing, that’s inevitable; the change effected by the Harney boathouse decision is not for the better. One of our local environmentalists commented to me when I updated them on this matter, “there is too much disregard for the environment now where it is viewed as an obstacle rather than a vital component of biodiversity”. Sad truth, esp in this case.

    I am disgusted by Council’s decision. You were elected to be OUR representatives. Its painfully clear you don’t care one iota what the larger public opinion is. You could have stepped up to the plate, been courageous, done the right thing but you didn’t.

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