Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 22, 2022

CASE NO(S).: OLT-22-003509

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Long’s Lake Cottagers Association Appellant: Peter and Linda McBirnie Applicants: Keith Bird and Susan Barrett Subject: Zoning By-law Amendment Description: To change zoning to Shoreline Residential Four with increased lot coverage in order to construct a single detached dwelling Reference Number: BL 2022-17 Property Address: 234 Longs Lake Road Municipality/UT: Huntsville/Muskoka OLT Case No.: OLT-22-003509 OLT Lead Case No.: OLT-22-003509 OLT Case Name: Longs Lake Cottagers Association v. Huntsville (Town)

Heard: 18 October, 2022 by Video Hearing

APPEARANCES:

Parties	Representative
Keith Bird and Susan Barrett (“Applicants”)	Self-represented
Peter and Linda McBirnie (Appellants”)	Self-represented
Longs Lake Cottagers Association	Susan Stella

DECISION DELIVERED BY ERIC S. CROWE AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal for consideration is an appeal filed by the Appellants against the approval of Zoning By-law Amendment (Rezoning) No. 2008-66P as amended (the “ZBLA”) by the Town of Huntsville (the “Town”) Council regarding 234 Longs Lake Road (the “Subject Lands”).

2In the application, the Applicant is proposing to rezone the Subject Lands from a Rural Two (“RU2”) Zone to a Shoreline Residential Four with Exception “0504” (“SR4-0504”) Zone to permit a single detached dwelling on a lot fronting a seasonally maintained road.

BRIEF CHRONOLOGY OF THE APPLICATION

3The Applicant was unaware that development was not permitted within the Rural Residential (RR) Zone on a seasonally maintained road until applying for a building permit. The Applicant did attend a pre-consultation with Town staff outlining their options and was told staff would not support an application for a ZBLA. In the Planning Report, staff recommended denying the application

4On 28 February 2022, the Town Council passed Zoning By-law (“ZBL”) 2022-17. The purpose and effect of the zoning amendment changed the zoning from a RU2 Zone to SR4-0504 Zone. Exception No. “504” is to permit a single detached dwelling on the lot with a maximum primary lot coverage of 2.5% and require that a Site Plan Agreement is entered into and registered on title to acknowledge that access will be on a non-year-round maintained road, that no municipal services will be available, and further, that the dwelling must be fully sprinklered.

5The Appellants subsequently appealed the Council’s decision on the basis that the ZBLA does not conform to either the District of Muskoka Official Plan (MOP) and the Town of Huntsville Official Plan (HOP) and is not consistent with the Provincial Policy Statement (PPS).

HEARING

6The Appellants’ Document Book was marked as Exhibit 1 and the Applicants’ Document Book was marked as Exhibit 2. The Municipal Record was adopted by the Appellant and was marked as Exhibit 3.

7Susan Barrett (the “Applicant”) called Wayne Simpson, who was affirmed on consent and qualified by the Tribunal to give expert opinion evidence on land use planning.

8Peter McBirnie (“Appellant”) was Self represented as was Susan Stella for the Longs Lake Cottagers Association.

ZONING BY-LAW AMENDMENT

SUBJECT LANDS

9The Subject Lands are legally known as Part of Lot 10, Concession 6, Designated as Part 1 on Plan BR-679. The property has approximately 130 metres (m) of frontage on Long Lake Road and a lot area of approximately 4,200 square metres (m²). The land is generally flat with a subtle ridge creating some sloping and rocky outcrops. The lands are currently vacant and forested. The surrounding uses are low density shoreline; residential in nature.

10The Subject Lands are accessed via Charlie’s Lane, a private road running north from Long’s Lake Road. Long’s lake Road runs along the road allowance and then circles to the south around the Subject Lands to avoid a high ridge of bedrock on the west side of the lot.

LEGISLATIVE TEST

11In making a decision with respect to a ZBLA, the Tribunal must consider s. 24 (1) of the Act. Despite any other general or special Act, where an official plan is in effect, no public work shall be undertaken and, except as provided in subsections (2) and (4), no by-law shall be passed for any purpose that does not conform therewith.

PLANNING EVIDENCE

12Mr. McBirnie explained to the Tribunal his main reasons for the appeal was that this small one acre piece of land is not located on a municipal road maintained year round, nor does it have 200 feet of frontage on a lake. The proposed driveway for this lot is approximately 600 feet west of the shore of Long’s Lake and should not be considered part of a Shoreline Residential Zone. The Huntsville Official Plan (“HOP”) designates the Subject Lands as waterfront.

13Mr. McBirnie explained, there is a row of thirteen (13) cottages running north from Long’s Lake Road between Charlie‘s Lane and the shore. This proposed lot is completely isolated and has nothing in common with those cottages which are located along the shoreline. There is a wide ridge of bedrock that runs from the north edge to the south edge on the west side of this one-acre parcel of land. This high ridge of bedrock reduces the ability of this small parcel of land to accommodate a house, a well and a septic system.

14Mr. McBirnie and Ms. Stella both submit that to grant this application would create a dangerous precedent which would allow rural lots serviced by a well and septic systems to be created on a lot smaller than one hectare.

15Mr. Simpson testified the Applicants purchased the Subject Lands in the summer of 2021. Unbeknownst to them, until they were preceding to secure a building permit, the property was not zoned to permit a dwelling because it is zoned RU2 and is accessed via a private road.

16Mr. Simpson advised the owners propose construction of a modest 2 storey “A-frame” dwelling with a footprint of about 1,625 square feet (sq ft) and about 450 sq ft. on the second storey.

Provincial Policy Statement (PPS)

17Mr. McBirnie referenced the Planning Report which noted the 2020 PPS applies to this proposal. The Report noted the Subject Lands are considered “Rural Lands” under the PPS. Section 1.1.5.4 states:

“Development that is compatible with the rural landscape and can be sustained by rural service levels should be promoted.”

18The Planning Report noted section 1.1.5.4 encourages a broad mix of housing that is compatible with the rural landscape and appropriate to the infrastructure which is planned or available. The Report concludes, the appropriate road infrastructure is not available for the Subject Lands. Therefore, according to the Planning Report which Mr. McBirnie highlighted, the proposal is not consistent with the PPS.

19Mr. McBirnie testified that the Operations Department also objected to the application. He referenced the Planning Report which stated the Operations Department had concerns and do not support approval. The Report noted, the department recommends the road be upgraded to municipal standard for year-round residency. They also provided comment that there is no winter maintenance on Long’s Lake Road and minimal summer maintenance.

20Mr. Simpson also highlighted several sections of the PPS. In reference to Section 1.1.5.4, Mr. Simpson contends there are lands already zoned SR4 in the immediate area. This zoning permits the use of land for a recreational dwelling. The SR4 zone is proposed to reflect the existing zoning and permit the same development that presently exists in the area accessed via a private road.

21In Mr. Simpson’s opinion, because the Subject Lands are located on a private road, public authorities will not be responsible for providing public services, such as any road maintenance, garbage or school bus pick-up but have the benefit of an increased tax base. Therefore, the proposal to permit a dwelling at this location is consistent with the PPS.

Town of Huntsville Official Plan (HOP)

22Mr. McBirnie referenced the Planning Report in his testimony in which the Subject Lands are included in the “Waterfront” designation of the HOP. Section C7.2.1 of the HOP states;

The Waterfront includes those lands outside the Huntsville Urban Settlement Area, the Community Settlement Areas and the Hidden Valley Recreational Lifestyle and Resort Area, which generally extend inland 150 m from any waterbody greater than 8 hectares in area, including the Big East and Muskoka Rivers, and the canal between Fairy and Peninsula Lakes.

23Mr. McBirnie contends the Subject Lands are a back lot and should not be considered shoreline residential as per the Planning Report. The Planning Report states waterfront development is generally linear in nature following the shoreline and development of lots not directly on the waterfront within the designation are considered backlot development. The Shoreline Residential zoning is intended for shoreline lots which are described per C7.3.2 as shoreline development consisting of single detached dwellings and accessory buildings and structures located on individual lots, which are located in linear fashion along the shoreline. The Report concludes, therefore, as a backlot, the Subject Lands are not consistent with other properties classified as shoreline residential.

24Mr. McBirnie contends that in reference to Section C 7.3.2 of the HOP in which structures are located in linear fashion along the shoreline, the Subject Lands are not located in line with the other cottage lots in the SR4 zone along the shore of Long’s Lake. Mr. McBirnie highlighted the Staff Report which states “the Subject Property is not consistent with other properties classified as shoreline residential.” In addition, the Report concludes, the property is not on a year-round maintained public road and has an area of less than 0.8 hectares. As such, the proposed ZBLA is not consistent with the Town’s OP.

25Mr. Simpson advised the Subject Lands fronts on the existing private Long’s Lake Road. Mr. Simpson concedes the Subject Lands do not front on a waterbody but are within 150 m of a waterbody. Mr. Simpson pointed out that the policy continues to state:

More specifically, a) all lands that physically and functionally relate to the shoreline, even though they may extend more than 150 metres from the waterbody;

26Mr. Simpson acknowledges the proposed dwelling will not physically or functionally relate to the shoreline. The dwelling is located on flat low-profile area of the lot. It will not be visible from the lake and is quite some distance from abutting neighboring cottages, to not interfere with the quiet enjoyment of their property. It will reflect the existing residential flavor of the neighborhood. While there is municipal road allowance leading to Long’s Lake, the orientation of the cottage is not in that direction and the Public has access, so it is not exclusive to this lot. There is no exclusive direct access to the shoreline.

27In relation to section 7.2.2 in determining waterfront designation, Mr. Simpson contends the single most important factor in determining the extent inland from the shoreline is the physical relationship. The existing lot fronts on Long’s Lake Road which generally runs parallel to the shoreline. However, the distance between the dwelling and the shoreline of Long Lake and the fact that it will not be seen from the lake, indicates that this lot should not be considered waterfront but a rural designation.

28Mr. McBirnie testified the Subject Lands are an undersized lot. Backlot development anticipates linear, low density residential development that is generally parallel to the shoreline. The MOP states backlot development is generally located on larger lots which front on year-round maintained public roads. The Subject Lands has a lot area of approximately 4,200 m² and 130 m of frontage on a seasonal road. Development of existing undersized backlot lots for residential use may be permitted where the lot is suitable for development, the lot satisfies the applicable requirements for access, and the lot is greater than 0.8 hectares in area.

29The Planning report highlights the intent of these policies is to avoid tiered development, with rows of seasonal cottages developed on small lots, and mitigate any impacts to water quality and lake environments. The Report concludes the Subject Lands do not fulfill these requirements and would contribute to further development surrounding Long’s Lake.

30Mr. McBirnie referenced Section C 7.3.18 of the HOP which requires that any new lot created with septic and a well must have an area of at least 0.8 hectares. Mr. McBirnie notes the Subject Lands has less than half that area.

31Mr. Simpson contends the location of the Subject lands are a hybrid of the rural and waterfront designations that it is either one or the other. In considering rural designation, the policy states a built form should not dominate the natural landscape and visual impact should be minimized. Mr. Simpson advised the proposed dwelling is about 1,625 sq. ft., constructed as an “A- Frame” with a modest second floor. Based on the maximum lot coverage of 5%, under the proposed SR4, zone coverage of 2,287 sq.ft. would be permitted. Based on a dwelling footprint of 1,625 sq. ft. the lot coverage would be 3.5%; well under the maximum permitted. In Mr. Simpson’s opinion, the Property is not overbuilt.

32Mr. Simpson testified the intended dwelling is proposed to be serviced with a private individual water and septic. In his opinion, this is an exiting lot and there is ample developable area to construct a dwelling, septic and individual well.

District of Muskoka Official Plan

33Mr. McBirnie highlighted the Planning Report in relation to the lands designated waterfront and Rural in the MOP. The Planning Report noted no objections from the District Staff. However, District Staff noted the MOP does not include policies regarding development on seasonally maintained roads but does recognize that appropriate road access is needed to address public and municipal interests, including emergency access and long-term road maintenance.

34Mr. Simpson advised District Staff had no objections to the application and that the seasonal road was maintained by the local resident association which the Appellants will become part of. Mr. Simpson advised the Appellants will include a sprinkler system as required under the Building Code to alleviate any concerns from municipal interests.

Town of Huntsville Comprehensive Zoning By-law

35Mr. Simpson testified the existing zoning is RU2. In his opinion, the Subject Lands are not designated waterfront. However, to comply with the Town’s zoning by-law for access, the SR4 is proposed to address access as noted in section 3.19.3 in the Town’s comprehensive zoning by-law and to reflect the existing zoning pattern in the immediate area.

36Mr. Simpson contends the lot has existed for many years, municipal taxes have been collected as building lot, contributing to the tax base of the Town. In Mr. Simpson’s opinion, the existing lot more than complies with the existing lot of record requirements as a building lot.

FINDINGS

37The Applicant must satisfy the Tribunal that the proposed ZBLA (rezoning) conforms to the MOP and HOP and is consistent with the PPS.

38In the event that the application does not conform with the MOP and HOP and is not consistent with the PPS, the application will be dismissed by this Tribunal.

Consistent With The PPS

39Although several policies of the PPS (Sections 1.1.5.1, 1.1.5.2, 1.1.5.3) were presented by Mr. Simpson to the Tribunal to consider whether the application was consistent with the PPS, Section 1.1.5.4 and section 1.1.5.5 are not reflective of this.

40The Tribunal finds there was not sufficient evidence to suggest that the application is consistent with the PPS. As noted in the Planning Report interpretation of section 1.1.5.4, Development that is compatible with the rural landscape and can be sustained by rural service levels should be promoted and section 1.1.5.5 appropriate to the infrastructure which is planned or available. The Report concludes, which the Tribunal agrees with, that the appropriate road infrastructure is not available for the Subject Lands.

41The Tribunal focuses on the wording of section 1.1.5.4:

“…compatible with the rural landscape and can be sustained by rural service levels and 1.1.5.5 appropriate to the infrastructure which is planned and available.”

42The Town’s Operations Department had concerns with the application and did not support approval. The Department recommended the road be upgraded to municipal standard for year-round residency. The Dept. also provided comment that there is no winter maintenance on Long’s Lake Road and minimal summer maintenance. There was no evidence that there were plans for the road to be upgraded as recommended by the Operations Department and the only road infrastructure is a private road which Mr. Simpson admits authorities will not be responsible for providing public services including road maintenance.

43The Tribunal also notes the comments of the District Staff whereby, the MOP does not include policies regarding development on seasonally maintained roads but does recognize that appropriate road access is needed to address public and municipal interests, including emergency access and long-term road maintenance.

44There has been evidence to show the application cannot be sustained by rural service levels and is not appropriate to the infrastructure which is planned or available. Therefore, the Tribunal finds the application is not consistent with the PPS.

Conforms to the OP’s

45The Tribunal finds that there was no compelling evidence to suggest the ZBLA application for a dwelling is consistent with either the MOP or HOP. As noted in the Planning Report, and acknowledgement from Mr. Lanny Dennis to Ms. Kirstin Maxwell Director of Planning for the Town dated 22 November 2021, “unbeknownst to them until they were proceeding to secure a building permit the property was not zoned to permit a dwelling because it is zoned Rural two (RU2) and is accessed via a private road.”

46The Tribunal cannot agree with Mr. Simpson’s opinion that the location of the Subject Lands are a hybrid of the rural and waterfront designations. It is either one or the other. It is clear that the HOP waterfront designation includes “lands within 150 m from the shoreline of any lake”. The evidence showed from both Parties that the Subject Lands are approximately 182 m (600 ft); well outside of the 150 m (490ft) required for waterfront designation.

47The Tribunal finds the Subject Lands are not consistent with the other properties on Charlie’s Lane. The Tribunal agrees with the Appellant in that waterfront development is generally linear in nature following the shoreline and development of lots not directly on the waterfront within the designation, are considered backlot development.

48The Subject Lands are not on a year-round maintained public road and to conform with the HOP must be greater than 0.8 hectares. The Subject Lands do not fall within that minimum size required by section C 7.3.18 of the HOP since the lot is .42 hectares.

49Although the Tribunal finds this is an existing lot of record and it appears that a dwelling and septic can fit within the footprint of the lot, with a sprinkler system as an alternative requirement for the Ontario Building Code, the fact remains the ZBLA does not conform to either the MOP, HOP and is not consistent with the PPS.

50Contrary to the evidence of Mr. Simpson, the Tribunal finds the existing zoning is RU2 which the Town defines as waterfront lands. The Subject Lands do not comply with existing RU2 zoning.

CONCLUSION

51The Tribunal finds that although there was only one expert providing opinion evidence on land use planning, this evidence was not persuasive. The Tribunal was not persuaded by and does not accept all of the land use opinion evidence of Mr. Simpson. Although Mr. Simpson was forthright, in the Tribunal’s opinion, he did not provide in his testimony conclusive evidence for the Tribunal to dismiss the appeal individually or cumulatively, particularly in the area of conformity to the MOP and HOP and consistency with the PPS.

52Regard has been given to the decision of Council and the information considered by it in the course of making its decision. Upon the evidence, the Tribunal is satisfied that the concerns raised were given appropriate consideration. The Tribunal is not persuaded by the Appellant’s arguments on “precedent setting” to enable other owners to build a dwelling on a lot which is less than half the minimum size required by the HOP however, the Tribunal is persuaded and agrees with the Appellants, that overall, the application does not represent good planning in the public interest.

53The Tribunal finds the application does not conform to the MOP or HOP and is not consistent with the PPS.

ORDER

54THE TRIBUNAL ORDERS that the appeal against By-law No. 2022-17 of the Town of Huntsville is allowed and By-law No. 2022-17 is hereby repealed.

“Eric S. Crowe”

eric s. crowe 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.