Cawston v. Muskoka Lakes (Twp.), 2021 CanLII 86262

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 09, 2021

CASE NO(S).: PL200583

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Robert Cawston

Subject: Application amend Zoning By-law No. Zoning By-Law 2020-88 - Refusal of Application by Township of Muskoka Lakes

Existing Zoning: Waterfront Residential

Proposed Zoning: Site Specific (To be Determined)

Purpose: To recognize an existing dock

Property Address/Description: 1091 Chown Road, Unit 3

Municipality: Township of Muskoka Lakes

Municipality File No.: 2020-88

OLT Lead Case No.: PL200583

OLT Case No.: PL200583

OLT Case Name: Cawston v. Muskoka Lakes (Twp.)

Heard: July 19, 2021 by Video Hearing

APPEARANCES:

Parties

Counsel

Robert Cawston

Harold Elston Carly Emmett

Township of Muskoka Lakes

Edward Veldboom

Doug and Janet Teakle

Jay Hitchon

MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON JULY 19, 2021 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an appeal filed by Robert Cawston (the “Appellant”) against the Township of Muskoka Lakes (the “Township”) appealing the Township Council’s refusal on October 14, 2020 of a zoning by-law amendment application to Zoning By-law No. 2014-14 to recognize the existing cumulative dock and boathouse width, and the side yard setback of the existing dock and boatlift.

2On November 10, 2020, the Appellant appealed the refusal to the previous Local Planning Appeal Tribunal (now known as the Ontario Land Tribunal).

3The Appellant and the Township have settled the matter through Minutes of Settlement dated July 9, 2021 (Settlement Proposal). Following the Settlement Proposal, a revised Zoning By-law Amendment (“draft ZBA”) that implements the settlement was presented as Schedule A to the Tribunal. In view of the settlement, the Teakles have withdrawn their participation.

4The Appellant’s Planner, Stephen Fahner, testified in support of the settlement and the Tribunal qualified him to provide opinion evidence in the area of land use planning matters. His Affidavit dated July 16, 2021 was marked as Exhibit 6. Other documents were marked as follows: Joint Document Book – Exhibit 1; Witness Statement of S. Fahner – Exhibit 2; Council Resolution Muskoka Lakes – Exhibit 3; Minutes of Settlement – Exhibit 4; draft ZBA – Exhibit 5.

5The Tribunal, having considered the uncontroverted testimony of Mr. Fahner, the Settlement Proposal, the ZBA and having reviewed the materials filed with the Tribunal, allows the appeal in part for the reasons set out below.

PLANNING EVIDENCE

6Mr. Fahner testified with respect to the application, took the Tribunal through the relevant policy framework, the Provincial Policy Statement 2020, the District of Muskoka Official Plan (the “District OP”), the Township of Muskoka Lakes Official Plan (the “Township OP”) and the Zoning By-law. He concluded that the zoning by-law amendment should be allowed as it represents good land use planning.

SITE CONTEXT

7The property municipally known as 1091 Chown Road, Unit 3, (“subject property”) fronts onto Lake Joseph and is accessed via Chown Road. The subject property is designated Waterfront in the Township OP, 2013 and is zoned Waterfront Residential (WR4) in the Township of Muskoka Lakes Comprehensive Zoning By-law No. 2014-14 (the “ZBL”) (See page 112, in Tab 7 of Exhibit 1 – the Key Map of the subject property).

THE APPLICATION

8The nature of the application is to permit a Boat Lift to be 3.1 feet (“ft”) from the projected side lot line and to permit a total dock width of 49 ft for a 33% frontage coverage. The application also requested that the Township recognize the existing dock at 13.8 ft from the projected side lot line with a width of 38 ft, for a 25.7% frontage coverage, and a single storey boathouse to be 24.2 ft in width with a 16.4% frontage coverage (the “Proposed Zoning By-law Amendment”).

1. Currently, the ZBL permits a cumulative dock width of 25%, a boathouse width of 16% and a side yard setback of 15 ft for docks and boathouses that existed before January 3, 2005.

ANALYSIS AND FINDINGS

9The Tribunal agrees with Mr. Fahner that s. 2 of the Planning Act sets out matters of provincial interest for which planning authorities shall have regard to. The Tribunal finds that the Settlement Proposal and ZBA have regard for the applicable matters of provincial interest set out in s. 2 of the Planning Act, including subsections (h) the orderly development of safe and healthy communities; (n) the resolution of planning conflicts involving public and private interests; and (p) the appropriate location of growth and development.

Provincial Policy Statement, 2020 (the “PPS”)

10Under the PPS, the subject property is considered “rural lands”. Recreational dwellings are permitted uses (Policy 1.1.5.2) while development that is compatible with the rural landscape and can be sustained by rural service levels should be promoted (Policy 1.1.5.4). Mr. Fahner notes that the PPS “policies refer to planning objectives that need to be considered in the context of the municipality or planning area as a whole, and are not necessarily applicable to a specific site or development proposal”. Under the “Implementation” section of the PPS, municipal Official Plans remain the most important vehicle for implementing the PPS, and municipalities may tailor the policies to the municipality’s situation.

11The Tribunal finds that the proposed zoning by-law amendment application to permit a boatlift and total dock width is within the municipality’s implementation policies and is consistent with the PPS.

District OP

12Mr. Fahner explained that the District OP is an upper tier Official Plan and acts as a strategic plan for the overall development of the Muskoka District. The lower tier Official Plan (Township OP) must conform to the District OP. Under the District OP, the Property is subject to the provisions of the Waterfront designation. The Waterfront designation is permitted to have residential development, that is compatible to existing development, and the natural shoreline is to dominate the built form.

13The most applicable District OP policies to the application are found in s. J4: Waterfront Area. However, the District OP does not provide specific policies related to shoreline structures and defers to the local Official Plans (i.e. the Township OP) for such policies. Section J4.3 (l) states that:

The Area Municipal Official Plans shall contain more detailed policies addressing development in the Waterfront Area to implement the policy framework established in this Section and deal with local matters such as but not limited to the following:

i) The character of various waterfront area and how each should be planned;

ii) Boathouses and docks;

14Section J4.4.2 “Forms of Residential Development” states:

a) The forms of residential development, which are permitted within the Waterfront Area designation, include linear shoreline development, back lot development and cluster development. Multiple-unit residential development is not permitted.

b) Shoreline development shall consist of single unit dwellings and accessory buildings and structures located on individual lots (i.e. one dwelling per lot) that are located in a linear fashion along the shoreline.

Township OP

15Mr. Fahner stated that the Township OP provides more detailed policies related to the Waterfront and recognizes at s. B 5.5 that different lakes have different character. The subject property is located on a Category 1 Lake, which is permitted to have a greater density than other lakes and permits a two-storey boathouse with habitable space in the upper storey. Section B 1.3 states that: “the precise limits of the Waterfront designation shall be defined and illustrated in an implementing comprehensive zoning by-law and confirmed by a site visit where necessary”.

16Section 9 of the Township OP speaks to “Lake Character”. Section B 9.2 applies to Category 1 Lakes:

a) two storey boathouses are permitted subject to all other provisions relating to them in this Plan (Section B 13.7);

b) the maximum lot coverage shall be 10% based on that portion of the area of the lot within 60 metres (200 feet) of the normal water’s edge; and,

c) the maximum width of docks shall be 25% of the lot frontage up to a maximum of 23 metres (75 feet). Boathouses are subject to further restrictions.

17Section B 13 of the Township OP is specific to shoreline structures. Section B 13.2 states that standards shall be detailed in the implemented comprehensive zoning by-law. Section B 13.3 states that shoreline structures are to be located and designated in such a way to have a regard for privacy, and B 13.5 states that shoreline structures shall not impede the immediate view of surrounding properties, as defined by the extension of property lines onto the water.

18The Tribunal accepts Mr. Fahner’s opinion that, in this specific case, a boat is already permitted to be moored on the northwest side of the boathouse. The impact on privacy by adding a boat lift will not change and does not increase the overall mass of the dock and boathouse. It also does not impede the view from the neighbour’s property as defined by the extension of property lines out into the water. During his testimony, Mr. Fahner explained that the neighbour is only entitled to the direct sightline for the frontage of his waterfront lot line. As the Appellant’s boat is moored on the Appellant’s northwest side within his own water frontage, the boat will not impede the neighbour’s view. Furthermore, vegetation on that side provides screening of the boat from the neighbour’s dwelling. The boat is not a large boat and the lift only allows the boat to sit off the surface of the water.

19Section B 13.4 states that “to maintain a balance of natural and built form, the maximum cumulative width of shoreline structures, including all docks, shall be the lesser of 25% or 23 metres (“m”) (75 feet) of the lot’s water frontage”. As a Boat Lift is included in the cumulative width of a dock, relief is requested to allow for 33% frontage, which results in a width of 11.6 m (24.2 ft). It is Mr. Fahner’s opinion that the essence of this policy did not consider boat lifts, which does not add to the built form in any significant way.

20Section B 13.6 states that “the primary use of docks is for the docking and berthing of boats as well as access to the lake for swimming. Large docks, used as decks over the water, shall be discouraged”. Mr. Fahner said that the boat lift abides by this policy as it enhances the use of the dock for docking and berthing of boats.

21Section F is the “Implementation” section of the Township OP. Section F 1.6 speaks to by-law administration, which allows for exemptions for setbacks and width of shoreline structures (F 1.6.3), and in considering applications, potential and cumulative impacts on other lands, environment, visual/aesthetics, future development, buffering, location and lake character will be considered (F 1.6.4 – 1.6.5).

22The Tribunal agrees with Mr. Fahner’s opinion, that the impact of the boat lift will be minimal. The photographic evidence reveals a motorboat that is lifted just atop the water surface. The boat is not a large sailboat or a big ship. The application relates essentially to the authorization of a boat lift for an existing lot of record. The lift is a linear structure along the shoreline; located in a way that does not impede the view of adjacent property owners and sited in order to avoid privacy issues. The Tribunal finds that the application conforms to both the District and Township OPs.

ZBL

23The subject property is zoned Waterfront Residential (WR4), which recognizes Lake Joseph as highly sensitive to phosphorous. The provisions in the ZBL related to structures, and development density on individual lots, are the same in all Waterfront Residential zones.

24Mr. Fahner emphasized that under s. 11 of the ZBL, a boat lift is a “Structure” by definition, and the definition of “Cumulative Width” also includes free standing boat lifts. The definition of “Dock” includes “any structure situated in or over lands covered by water, which is within 3 m (10 ft) of a dock, and shall be deemed to be part of the dock unless it is a boathouse or a boatport”.

25He stated that s. 4.1.7 of the ZBL deals with “Accessory Structures Over Water”. In this section, docks on a Category 1 Lake are to be a maximum length of 20.1 m (66 ft), with a 9.1 m (30 ft) minimum side yard setback, for a maximum cumulative width of 25%. Section 4.1.7.1 states that “no part of any dock or boathouse shall be erected within the side yard distance indicated in the table from the side lot line and rear lot line and any 30.5 m (100 feet) straight line projection thereof from the high water mark”.

26However, s. 4.1.7.11 allows for a 4.6 m (15 ft) side yard setback for a dock or boathouse, which existed prior to January 3, 2005, which are considered legal non-complying due to an encroachment into the minimum side yard setbacks.

27The side yard setback of the existing dock is 4.2 m (13.8 ft) at the closest point. At the shore, the side yard setback is 5.2 m (17 ft). The difference is a result of a slightly angled side lot line and its projection. The proposed boat lift reduces the side yard setback to 0.9 m (3.1 ft) at the closest point. Mr. Fahner noted that the reduced side yard setback is only at the boat lift and does not include all of the dock structure on the northwest side of the boathouse.

28In addition, the proposed Zoning By-law exemption will recognize the current non-complying setback for the existing dock, which was constructed by the previous property owner. There are no “issues” with the exemptions related to the existing dock and boathouse (see photographs of the existing structures and boat lift in Exhibit 2).

29Mr. Fahner stated it is important to note that a boat can currently be moored in the location of the boat lift. It is his opinion that the application maintains the general intent of the ZBL. He opined that the application represents good planning and should be approved.

30The Tribunal recognizes that the ZBL implements the policies of the OPs. The Applicant/Appellant has applied for the exemptions relating to the existing dock and boathouse, which were built by the previous owner and which are legally non- complying under the ZBL.

1. The reasons given for the proposed exemptions to the ZBL were:

The boat lift is either under water when not in use or under a boat when in use. It does not contribute to the mass of the dock or the boathouse. There is very little impact. The existing dock and boathouse was constructed by the previous owner. The non-compliance is very small.

2. From the key map and sketch (pages 112 and 113 of Exhibit 1), it is discernible that the subject property side lot line is slightly angled as it projects toward the waterfront shoreline, hence resulting in the slight difference in the side yard setbacks of the existing dock at the closest point of 4.2 m while at the shore, it is 5.2 m. The boat lift reduces the setback to 0.9 m at the closest point (only with respect to the boat lift but not as regards to the whole dock).

31The Tribunal notes that the proposal fulfills s. 4.1.7 and s. 4.1.7.11 of the ZBL and finds that the application maintains the general intent of the ZBL.

32In summary, the Tribunal is satisfied that the Settlement Proposal and ZBA have regard for relevant matters of Provincial interest, as set out in the Planning Act, are consistent with the PPS, conform to the District and Township Official Plans, maintain the general intent and purpose of the ZBL and represent good planning.

33Pursuant to s. 34(26)(b) of the Planning Act, the Tribunal may, on an appeal, under s. 34(11), amend the by-law in such manner as the Tribunal may determine. The zoning by-law amendment as presented, amended and consented to by the parties will be attached to the Decision.

ORDER

34The Tribunal Orders that the Appeal is allowed in part and Zoning By-law No. 2014-14 is hereby amended in the manner set in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk to assign a number to this by-law for record keeping purposes.

“T.F. Ng”

T.F. NG

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

THE CORPORATION OF THE TOWNSHIP OF MUSKOKA LAKES

BY-LAW 2020-88

Being a By-law to amend Comprehensive Zoning Bylaw 2014-14, as amended, in the Township of Muskoka Lakes

WHEREAS the authority to pass this By-law is provided in Section 34 of the Planning Act R.S.O. 1990, Chapter P.13 with amendments thereto;

AND WHEREAS By-law 2014-14 was enacted by the Corporation of the Township of Muskoka Lakes to regulate land use within the Municipality;

AND WHEREAS the Council of the Corporation of the Township of Muskoka Lakes deems it advisable to further amend By-law 2014-14;

NOW THEREFORE the Council of the Corporation of the Township of Muskoka Lakes enacts as follows:

1. Section 12 of By-law 2014-14 is hereby further amended by the addition of the following subsection:

87-1916 i) The land affected is described as Part of Lot 5, Concession 14 (in the former Township of Medora) now in the Township of Muskoka Lakes, more specifically described as Parts 3, 5, and 8, Plan 35R-2810 as shown hatched on Schedule I to By-law 2020-88.

ii) Despite the provisions of Sections 4.1.7 and 4.1.7.12 of By-law 2014-14, as amended, for those lands described above, the maximum cumulative width of docks is permitted to be 49 ft. and includes a boatlift, as shown in the location and extent on Schedule II to By-law 2020-88.

iii) Despite the provisions of Sections 4.1.7 and 4.1.7.12 of By-law 2014-14, as amended, for those lands described above, the maximum cumulative first storey boathouse width shall be 24.2 ft., as shown in the location and extent on Schedule II to By-law 2020-88.

iv) Despite the provisions of Sections 4.1.7 of By-law 2014-14, as amended, for those lands described above, the minimum northerly

sideyard setback for a dock shall be 13.8 ft., as shown on the location and extent on Schedule II to By-law 2020-88.

v) Despite the provisions of Sections 4.1.7 of By-law 2014-14, as amended, for those lands described above, the minimum northerly sideyard setback for a boatlift shall be 3.1 ft., as shown on the location and extent on Schedule II to By-law 2020-88.

vi) A boatlift permitted under subsections ii) and v) of this By-law shall not:

a. Have a weight capacity that exceeds 8,000 pounds (3630 kilograms); and

b. Have a bunk length that exceeds 12 feet (3.7 metres).

All other provisions of By-law 2014-14 apply. To the extent of any conflict between By-law 2020-88 and By-law 2014-14, as amended, the provisions of By-law 2020-88 shall apply.

2. Schedules I and II attached hereto are hereby made part of this By-law.

READ A FIRST AND SECOND TIME this 15th day of October, 2020.

READ A THIRD TIME AND FINALLY PASSED this 15th day of October, 2020.

Phil Harding, Mayor Cheryl Mortimer, Clerk

AS APPROVED BY THE ONTARIO LAND TRIBUNAL this 19th day of July 2021.

SCHEDULE II TO BY-LAW 2020-88