Official Plan Review Submissions

Memorandum

to:                Sabine Robarts, Planner, Bruce County

from:          John Bainbridge, Tobermory

subject:     Review  of Official plan for Tobermory, Lions Head and Ferndale

date:           23/08/2011

 Introduction

The year 2010/11 has seen a significant increase in commercial development in Tobermory, including a three fold increase in the tour boat traffic, the development of three new parking lots within the boundaries of the community, approval of a motel, the development of two tour boat ticket outlets, and the rebuilding and significant expansion of the Crowsnest Pub in Little Tub Harbour. The tourist lobby has supported these activities by advertising Tobermory as a destination in China and elsewhere overseas with striking results.

In a 2007/08 survey, the National Park counted 224,184 visitors to the Park alone. The same survey found  that a total of 14,358 visitors went to Flower Pot Island. This year, on two successive days on Canada Day weekend, the Park counted 1200 and 1400 visitors to Flower Pot Island and this, before all of the tour boats to Flower Pot were in operation. On Civic Holiday Day weekend more than 10,000 people checked into the Visitor Information building in Tobermory.  These are extraordinary numbers for a community with a permanent population of approximately one thousand people.

While various agencies monitor the tourist traffic on the Peninsula, in the nine months that I have sat on Council, a period when all the above commercial developments were approved, no briefing papers, statistics, or analyses of tourism and its related economic activities were presented to Council to guide us in our decisions. While I often heard various clichés about the importance of jobs, I never saw an analysis of the labour force in Tobermory or on the Peninsula to inform us about the kind of jobs being created, the number of people employed, whether they were resident or non-resident, and precisely what benefits accrued to the Municipality in order to determine the value and impact of any of the developments Council was being asked to approve.

Accordingly, it is to be hoped and expected, that after hearing from the general public, the Municipality and the County Planning Department will conduct a thorough, evidence based study of all the available data, in order to fully brief Council on the economic and cumulative impacts on the three communities and their natural environment of the changes proposed to the Official Plan, including:

• economic impacts of commercial development to date in those areas zoned commercial,
• a labour force analysis to ascertain the employment effects and value of various economic activities and trends in employment,
• the impact on municipal revenues and expenditures of the various commercial activities approved to date,
• the impacts on the residents of the three communities of the commercial development to date, particularly of the tour boat industry, and
• the potential economic and cumulative impacts on the three communities and their natural environment of any proposed changes to the Official Plan.

Without this information Council cannot make an informed and sound appraisal of the changes to the Official Plan which may be presented for their approval.

Vision

The over-riding objective of the Official Plan is set out in the Vision. However, the developments approved by the Municipality and the County Planning Department in the past 12 months have been at variance with at least two of the statements in the Vision:

1.         The people recognize that the future is based to a great extent on the cultural and natural environment of the area and as such, shall strive to protect it.  The rapid expansion in the number of powerful tour boats, the proliferation of parking lots to support this expansion, the virtual elimination of The Gap as a public access to the water despite the cultural significance of this associative landscape, (see D below) and the failure to recognize the importance of any cumulative effects (see C below) of the developments on the natural environment is at variance with this vision statement and  undermines the whole vision.

2.         The people of the Municipality of Northern Bruce Peninsula recognize that development must be planned in an effective, fair, efficient and flexible manner. The manner in which developments in Tobermory in 2010/2011 have been approved have lacked transparency and they have been at variance with this vision statement. (see below – holding provisions)

Major Community Goals

The developments in Tobermory have similarly been at variance with the following Major Community Goals:

1.         Major Community Goal (a) To create a positive economic climate to create a wide range of employment opportunities. Given the lax conditions for lifting holding zones and the public outrage expressed by residents of Tobermory it is safe to assume that a positive economic climate appears to mean giving preference to developers at the expense of the interests of residents.

This goal should be rewritten to remove the ‘repetition’ – the word create is used twice in the same sentence.

2.         Major Community Goal (c) To provide that any development proceeds in a logical, progressive and economically sound manner. This goal appears to be a platitude as no where in the current Official Plan is there an explanation of what this means, how we will know if it has been achieved, or what measures should be taken to ensure the goal is achieved. However, the evidence suggests that it has not been achieved.

The fact that Little Tub Harbour (identified by the County Planning Department in its Spruce the Bruce initiative as Tobermory’s “Downtown”) is, with the exception of three businesses, a dead zone for eight months of every year, strongly suggests that this Major Community Goal is a failure. More work should go into defining what this goal means and how it can be achieved.

3.         Major Community Goal (h) – Re-designation of the Hamlet of Ferndale to a Secondary Urban Settlement Area. There is no obvious rationale in the Official Plan for this goal. Have there been any studies and is there any supporting data that suggest that this is a sensible long term goal for the Municipality?  

A)      Commercial Development ( 3.2.1)

First, it is important to note that I am not opposed to commercial development. Indeed, I am acutely aware of the importance of economic activity to the life of all communities. Second, most of the developments referred to in this submission have all complied with every condition set by the Municipality and other approval agencies. The problems I refer to all arise from the Official Plan and how it has been implemented and, particularly, the inadequacy of the conditions applied to commercial development approvals. Third, it is important to note that the residential population of the Northern Bruce Peninsula is the source of 96 per cent of all of the municipality’s revenue from taxation and approximately three per cent is received directly from commercial taxation. In spite of this disparity the existing official plan exhibits a bias towards commercial developers. No provision illustrates this bias more than s. 5.4 and the manner in which it has been implemented. (see B below)

Economic Impacts of Various Commercial Developments

The economic consequences of commercial developments are not all the same. They come with a variety of impacts on a community and bring a range of benefits and consequences.

At one end of the spectrum of the impacts of commercial development in Tobermory, Lions Head and Ferndale is the grocery store, the hardware store, the LCBO, etc. which remain open all year and offer a range of important services to the communities and provide full and meaningful part-time employment. The municipality earns direct and indirect tax revenues from the enterprise itself and from the predominantly resident jobs they provide. Their impact on the environment is primarily limited to the site the business occupies, the limited and short-term parking they offer, and the waste they generate.

The construction industry, not only provides a service to the residential community they also create many full time and part-time year round jobs and generally build a product that will eventually generate additional significant municipal revenues.

The there is the tour boat enterprise which has a large impact on the residents and the environment through associated buildings and the large area, long term parking lots they occupy. They rely on large numbers of tourists flooding into the area, all by motor vehicle, cause a significant increase in boat traffic and deposit thousands of people primarily onto the ecosystem of Flower Pot Island. Most of the jobs created are necessarily limited by the short tour boat season and many of them are held by students who do not pay taxes to the municipality. Many of these jobs are subsidized by government.

Given the disparity in the types of commercial enterprises and their varied impacts and benefits to the community the Official Plan and the Municipality  and Council should devote more effort and thought to distinguishing the type of commercial development the Official Plan should encourage and the evaluation criteria applied to the approval process.

B)      Holding Provisions (S. 5.4)

1.         Rationale

Properties in the centre of Tobermory were pre-zoned decades ago and prior to the amalgamation of the three townships into the Municipality of Northern Bruce Peninsula. The demography and commercial conditions have significantly changed in the interim.

However, the criteria set out in s. 5.4, makes no provision for changing circumstances that may have made the original zoning no longer appropriate or which have the potential to cause friction in the community if a development were to proceed.

The lifting of several “H zones” in Tobermory in 2011, based on the number of calls, letters, and emails to the Municipality and Councillors, and the formation of a Big Tub Harbour Citizens Committee dedicated to responding to the disturbance caused by the tour boat developments, created much unhappiness among a large number of residents. According to one letter received by the Municipality there was an altercation between the developer and a 70 year old resident which became physical.

These effects have arisen because the holding provisions do not require the County Planning Department, the Municipality or its Council to consider the impacts of lifting the “H zones” on the community. In fact the requirements for approval of the lifting of the “H zones” are minimal. S. 5.4(d) makes clear that the intent of the holding provisions are to facilitate development and avoid any public notice and input and, indeed, to circumvent all public expressions of concern.

2.         Criteria Used to lift “H zone”

Nothing illustrates the shortcomings of the holding provisions and the way they are used better than the tour boat development at Lot 61 on the north side of Front Street in Tobermory that was approved by Council in January of this year. The development included a hydraulically operated dock attached to the rock face adjacent to one of only two public accesses to the water in the centre of Tobermory. (There is a third public access at  Dunks Bay beach but this is almost two kilometres from the centre of Tobermory) There were 11 conditions to be met by the developer prior to the “H zone” being lifted. These were:

1)           Negotiation and registration of a Site Plan Control Agreement;

2)           Provision of a legal survey;

3)           Approval from Grey Bruce Health Unit;

4)            Approval from Department of Fisheries and Oceans and Grey Sauble Conservation Authority as it relates to the proposed commercial dock;

5)           Provision of MTO permits or authorization for sanitary sewer crossing;

6)           Provision of a contingency plan in the case of sewage pump failure;

7)           TSSA approval if on site fuel storage planned;

8)           Confirmation of compliance of the proposed sun hut structures with Zoning By-law 2002-54, as amended, and the Building Code Act;

9)           Food services shall be contained within the proposed information/ticket sales centre on the subject property;

10)       Existing access from the unopened road allowance is permitted at this time;

11)       Comprehensive review of the site plan as it relates to Zoning By-law compliance;

Not one of the conditions considered the impact of the development on the neighbours or other residents living in the vicinity of the dock. Nor, despite the three fold increase in the number of powerful tour boats operating from docks in Little Tub Harbour and the dock at Front Street, did any agency, much less the Municipality and the County Planning Department, give any consideration to the cumulative impacts (see C below) of the development on the community or its natural environment.

In the same year as Council lifted the H zone from the Front Street dock property, Council and the County Planning Department also approved the lifting of “H zones” from four other commercial properties:

78 Hay Bay Road (61 acres) Parking Lot with the following conditions:

1)           Negotiation and registration of a Site Plan Control Agreement;

2)           Provision of a drainage/stormwater management plan prepared by a certified professional;

3)           Maintain tree coverage around entranceway to parking lot.

47 Legion Street Motel with the following condition

           Negotiation and provision of a Site Plan Control Agreement and comprehensive review of the site plan as it relates to Zoning By-law compliance.

35 Big Tub Road Parking Lot and guest cabin with the following conditions:

           Negotiation and provision of a Site Plan Control Agreement and comprehensive review of the site plan as it relates to Zoning By-law compliance.

5 Bay Street Crowsnest redevelopment with the following conditions:

           Negotiation and provision of a Site Plan Control Agreement and comprehensive review of the site plan as it relates to Zoning By-law compliance.

In addition to these developments a third parking lot was being constructed off Highway 6 near Hay Bay Road to support a competing tour boat operation.

It would be no exaggeration to say that Council was not expected to get involved in any of the details of the approval process. Typical of that expectation was the passing of the by-law to approve the new Crowsnest Pub. Three parking lots in one year and three additional tour boats have had a profound impact on many residents sense of their community. Most of these developments were approved without any public notice or opportunity to comment. In the case of every one of the developments the discussion in Council was minimal and the impacts of the developments on the residents were never considered.

It is quite clear that the new Crowsnest building at 5 Bay Street is substantially different from its predecessor. A significant amount of rock was excavated from the site to make way for the larger foundation.  Presumably, the old building was either a legal non-conforming use and the new building fell under s.5.6(b) or a legal non-complying use and it came under s.5.7 of the Official Plan. Whatever the circumstances there was no Committee of Adjustment meeting to approve the new development and Council was never briefed on the discussions which led to the Site Plan Agreement. There was no briefing of Council about the parking implications of the new building or whether any cash-in-lieu of parking was agreed. After the building was finished Council was expected to approve a fait accompli.

Non-transparent arrangements such as these, at best, fuel discontent among the taxpaying public and, at worst, lead to perceptions of favouritism and unfairness.

C)      Cumulative impacts of developments

Neither the County nor the Municipality consider the cumulative impacts of development such as, for example, the threefold increase of tour boats in the harbour and the rapid increase of large parking lots. While the Canadian Environmental Assessment Act (CEAA) applies only to the Federal jurisdiction it sets a national, minimum standard for environmental assessment that should be noted and emulated by the County planners and the Municipality.

Section 16(1) of the CEAA requires the consideration of cumulative environmental effects, as well as direct environmental effects, of a proposed project. Cumulative environmental effects are defined as effects “that are likely to result from the project in combination with other projects or activities that have been or will be carried out”.

A measurable change in the environment is defined as a change that is real, observable and detectable compared with existing (baseline) conditions.

The Canadian Environmental Assessment Agency (CEA) has issued a number of policy and procedural documents that provide guidance for conducting an assessment of cumulative effects, including the Agency’s Operational Policy Statement (CEA Agency 2007), the Cumulative Effects Assessment Practitioners Guide (CEA Agency 1999) and the Reference Guide: Addressing Cumulative Environmental Effects (CEA Agency 1994).

According to the CEA Agency’s Operational Policy Statement, the scope of a cumulative effects assessment may extend beyond biophysical effects to include the effects of biophysical changes on health and socio-economic conditions, physical and cultural heritage, and other aspects described in the definition of “environmental effects” in the CEAA legislation.

The plethora of private parking lots to support the three fold increase in tour boat developments which have sprung up within Tobermory this year have caused many residents to be concerned about the cumulative impacts on their community and its environment Nevertheless, no consideration has been given to the cumulative effects on the population of the town, its cultural associative landscape, or its natural environment by these parking lots and the increased marine activity. This important omission in the planning process needs to be addressed in the current review of the Official Plan.

D)      Provincial Policy Statement

The tour boat development at Lot 61 on the north side of Front Street has caused great offence to many residents because of the indifference shown by the planners to the impacts on the residents in the immediate neighbourhood and the effects of vastly increased tour boat traffic on the quiet enjoyment of the property of the residents who live in the vicinity. This is at variance with the vision and the policy set out in Part IV and Part V of the Provincial Policy Statement:

Part IV: Vision for Ontario’s Land Use Planning System

The long-term prosperity and social well-being of Ontarians depend on maintaining strong communities, a clean and healthy environment and a strong economy.

 Strong communities, a clean and healthy environment and a strong economy are inextricably linked. Long-term prosperity, environmental health and social well-being should take precedence over short-term considerations. (My emphasis)

Part V: Policies 1.0 Building Strong Communities

Ontario’s long-term prosperity, environmental health and social well-being depend on wisely managing change and promoting efficient land use and development patterns.

Efficient land use and development patterns support strong, liveable and healthy communities, protect the environment and public health and safety, and facilitate economic growth.

The Provincial Policy Statement, Part V, emphasises the need to protect the environment and public health and safety. Many residents have expressed concern about the potential risks to public health and safety of placing this tour boat dock immediately adjacent to a small public beach used by swimmers and divers (see letter to Municipality of Northern Bruce Peninsula dated August 12, 2011, from Big Tub Harbour Citizens Committee. They have also expressed concern about the effect on the public’s enjoyment of this small beach. It is a serious short-coming of the planning process that no consideration, at least that the public is aware of, was ever given to the issue of public safety.

Provincial Policy Statement (PPS, 2005) and Cultural and Heritage Resources

Cultural and Heritage Resources include buildings, designed landscapes such as parks, gardens, etc, evolved landscapes such as a settlement area, and associative landscapes which are landscapes with powerful religious, artistic, or cultural associations of the natural element. In Tobermory, one such associative landscape might be The Gap because of its century old association as a local swimming area and its unique vista in the approach to Tobermory.

This Provincial Policy Statement was issued under Section 3 of the Planning Act and came into effect on March 1, 2005. Section 3 of the Planning Act states that land use planning decisions by municipalities and approval authorities “shall be consistent with” the PPS, 2005.

Section 2.6.1 of the PPS states that:    Significant built heritage resources and significant cultural heritage landscapes shall be conserved. The PPS defines “significant” as valued for the important contribution they make to our understanding of the history of a place, an event, or a people. There are an unknown number of buildings and other cultural and heritage resources in the Municipality of Northern Bruce Peninsula which may be significant. It is essential that the Official Plan comply with PPS, 2005 and an evaluation of cultural resources be carried out in order that the land use planning process can protect the cultural and heritage resources in the Municipality.

Once cultural and heritage resources have been identified, under the Ontario Heritage Act s. 27. (1)  The clerk of a municipality shall keep a register of property situated in the municipality that is of cultural heritage value or interest.

The determination of what is significant cultural and heritage property and resources is made by the community. In order to facilitate that process the Council of the municipality may establish a Municipal Heritage Committee pursuant to section 28. (1) of the Ontario Heritage Act. It states that: The council of a municipality may by by-law establish a municipal heritage committee to advise and assist the council on matters relating to this Part, matters relating to Part V and such other heritage matters as the council may specify by by-law.

More than one hundred municipalities in Ontario, large and small, have established Municipal Heritage Committees but the Northern Bruce Peninsula has not.

The policy requires that where there is a significant cultural resource consideration must be given to this resource at every step in the planning and decision-making process. In addition, the cultural values of the community for whom the resource has significance must be respected.

Evaluation of significance of the resource should reflect consensus among community members with an interest in the preservation, use and development of cultural heritage. Evaluation of the resource must be based on proper research. Evaluation clarifies where significance or value lies in cultural heritage and how that significance is expressed. In a community, a heritage resource is part of a whole system which includes the natural environment and human activities.

According to the Cultural Heritage Principles, the surroundings or setting of a cultural heritage resource often contribute to its significance and vice versa. Where significance is linked to the contextual value of the resource, try to preserve the context. Try to maintain the same use for a heritage resource, or if this is not possible, find a compatible new use that does not demand too much change to the resource’s physical fabric.

The Associative Landscape

The Gap has been a public swimming site since the early 1900s. It is one of only two areas in the centre of  Tobermory where the public have access to the water. The placement of the tour boat development at Lot 61 on the north side of Front Street with its accompanying signs, road access, stairs down to the dock, and building immediately adjacent to The Gap has left the impression that there is no longer any public access. The municipality has refused to place any signage indicating that The Gap is public land. Accordingly, the long term effect of the development will be to deter public use of this access to the water.

The disregard for the cultural significance to the community of The Gap and the failure to evaluate and respect its significance is at variance with the Provincial Policy Statement, 2005, vis. Heritage Conservation Principles for Land use Planning. Municipal land use planning decisions are to be consistent with this policy.

E)      Little Tub Harbour

As a direct result of the zoning choices made by the County Planning Department, the Municipality and its predecessor, the Township of St. Edmunds Little Tub Harbour, the heart of Tobermory, has evolved over 40 years from a vibrant community with many year round residents into a virtual “dead zone” for two thirds of each year. This area, which the County, in its Spruce the Bruce Toolkit, optimistically calls the downtown, would, without the presence of the grocery store, the LCBO, and the Princess Hotel, be empty for most of the year. Such a transformation from a vibrant community to a dead zone for two thirds of a year represents a failure to implement Action 3.2.2(a) of the Official Plan and a general failure of the County and Municipality`s land use planning efforts over the past few decades.

It is also a failure of the Spruce the Bruce initiative to ignore this unfortunate  development and focus its efforts narrowly towards tourist business only.

It should be the focus of the Major Goals of the Official Plan to revitalize Little Tub Harbour by encouraging more residential usage and year round businesses.

Parking in Little Tub Harbour (3.2.3.4(g) and 3.2.2)

The Municipality has failed to make any progress in the implementation of this policy as it applies to the centre of Tobermory. The parking congestion during the months of July and August represents a failure of s.3.2.2 Action(c) of the Official Plan.

The County’s Spruce the Bruce Toolkit for Tobermory, which has been adopted by the Municipality, states in Goal 2: To strategically address the traffic flow, parking areas and signage for downtown; and Goal 3: To improve the physical design of the main harbour area and increase the quality of public places in the core.

The Municipality and the County Planning Department should weigh the value of the 16 parking spaces beside Craigie’s restaurant and 16 parking spaces along the front of the harbour against the potential for reducing congestion and improving the physical design and utility of Little Tub Harbour.

At a minimum the Municipality and the County Planning Department should explore the benefits of turning Little Tub Harbour into a pedestrian area with exceptions for delivery vehicles, boat launching, dive equipment delivery, and parking at Peacocks Grocery.

Boat ramp in LTH (3.5.2(c))

Pursuant to s.3.5.2(c) of the Official Plan the Municipality is required to improve existing … boat launch facilities.

The only boat launching ramp within, what the County euphemistically calls the “downtown” of Tobermory, is located in the immediate vicinity of the busiest grocery store and its parking area, adjacent to a busy pedestrian crossing point and a popular local restaurant, across the access to the only laundromat, and in the area where semi-trailers frequently manoeuvre and unload. More than 50 to 60 ducks add to the chaotic scene by occupying the area, waiting to be fed by passers-by, particularly children. The fact that there has not yet been a traffic fatality in this area in no way reduces the potential for one.

The boat ramp should be re-located to a less congested area, not only to alleviate congestion, but to eliminate the high risk to public safety.

In the short run the potential dangers to the public could be reduced if Little Tub Harbour were to be converted to a pedestrian area (see Parking above) and the ducks were shot and eaten.

F)      Public access to water and The Gap (s.3.5)

There are three areas in Tobermory where the public have access to the water. One is a municipal road allowance at Dunks Bay two kilometres from Little Tub Harbour. The other two are at the Big Tub Light and the road allowance at the terminus of Highway 6, locally called The Gap.

While the Municipality recognizes that efforts need to be made to improve public waterfront access and recreational opportunities (at page 35 of the Official Plan) the effect of its policies in 2010/2011 has been to reduce public access to the waterfront from two locations to one in the centre of Tobermory by the virtual elimination of The Gap as an access to the waterfront.

The Gap also possesses important natural qualities as a deepwater swimming and diving area in the centre of Tobermory and it is within easy walking distance from the “downtown.” It has been used as a local swimming area for more than 100 years and, as such, The Gap has important cultural significance to the community. (see below – Culture and Heritage)

The Municipality must take steps to restore public access to the waterfront at The Gap by signposting the access and taking steps to reduce the public safety risk posed by the tour boats to swimmers and divers at The Gap.

Further, pursuant to S. 3.5.2(b) of the Official Plan, the Municipality and the County Planning Department should Promote the protection of lands that provide scenic vistas or have important natural qualities. The Gap, by any definition is a scenic vista as it provides the only view of Georgian Bay on the approach to Tobermory from two kilometres south on Hwy 6. It would be a tragedy if through neglect or disinterest the Municipality and the County planners were to allow a commercial sign from the adjacent commercial development to intrude on that vista.

G)      Front Street

The area from Lot 61 on the north side of Front Street to the Ferry terminal, known as Special Policy Area #4, is zoned commercial but residential uses are permitted. In fact, all of the lots in this block have residential buildings.

When this block was zoned commercial the properties were owned by commercial fishermen. Some buildings were commercial outlets for fishing and cottage rentals such as O.C. Vail which was a fishing/retail outlet plus rental cottages, LaVoie rental cottages, Martins (rental cottages) and Ransbury’s? (rental cottages). Recently, all of these properties have been redeveloped as seasonal and permanent residential. Several represent significant personal investments. None are used for commercial purposes.

Given the public outcry at the development of one of these properties at Lot 61 on the north side of Front Street as a tour boat enterprise it is in the public interest to recognize the settled residential nature of the north side of Front Street and prevent further public outcry by re-zoning all the properties in the block with the exception of Lot 61, as residential.

H)      Recommendations

The Municipality of Northern Bruce Peninsula and the County Planning Department should take immediate steps to:

1. Protect what remains of the accessibility to the public beach known locally as The Gap

2. That the Official Plan comply with PPS, 2005 and an evaluation of cultural resources be carried out in order that the Land use planning process can protect cultural and heritage resources

3. Immediately establish a Municipal Heritage Committee to ensure that the remaining cultural heritage of the municipality is evaluated and respected.

4. Consider, as part of the land use planning process, the cumulative impacts of commercial developments on the environment, the people and the cultural heritage of the communities of the Northern Bruce Peninsula

5. Provide opportunities for residents to receive adequate notice of proposed commercial developments and the proposed lifting of H zones from properties zoned commercial

6. Provide opportunities for residents to provide input into the land use planning process when there is a proposal to lift an H zones from properties zoned commercial

7. Require the Municipality and the County Planning Department to bring more discrimination to the evaluation of commercial developments and their relative benefits to the community. In particular to consider the best interests of the residential population

8. Re-evaluate the zoning of Little Tub Harbour to restore its year round vitality

9. Re-zone the north side of Front Street from the Ferry Terminal to Lot 61 on the north side of Front Street to residential

10. To set as a priority the resolution of the parking congestion in Little Tub Harbour

11. To set as a priority the provision of more and safer boat launching facilities

12. To provide more public access to the waterfront in Tobermory