Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 24, 2022
CASE NO(S).: OLT-21-001902 (Formerly PL200146)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Gloria Yusishen
Subject: Application to amend Zoning By-law No. 2019-120 – Refusal of application by Township of Muskoka Lakes
Existing Zoning: Waterfront Residential
Proposed Zoning: Waterfront Residential
Purpose: To permit dock not built in compliance with existing by-law
Property Address/Description: 22-1059 Big Joe Road
Municipality: Township of Muskoka Lakes
Municipality File No.: ZBA-31/19
OLT Case No.: OLT-21-001902
Legacy Case No.: PL200146
OLT File No.: OLT-21-001902
Legacy File No.: PL200146
OLT Case Name: Yusishen v. Muskoka (Twp.)
Heard: January 24, 2022 by video hearing
APPEARANCES:
| Parties | Counsel*/Representative |
|---|---|
| Township of Muskoka Lakes | E. Veldboom* |
| Gloria Yusishen | M. Yusishen |
DECISION DELIVERED G. BURTON AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was an Appeal by the owner of 22-1059 Big Joe Road on the north shore of Avon Bay, on Lake Joseph in Muskoka, from the refusal of the Township of Muskoka Lakes to amend Zoning By-law No. 2019-120. The owner wishes to retain two floating docks and a boat lift, all constructed without a building permit. The removable docks plus the boat lift are located to the east of the existing two-storey boathouse. They do not comply with provisions in the Township Official Plan (“OP”) nor the Zoning By-law (“ZBL”) requirements respecting their size and location. Following the Township’s notice to comply, the owner Gloria Yusishen applied for zoning amendments to authorize these three elements of the existing construction. The Township Council denied the amendments, for the reasons discussed below.
2The Tribunal held a Case Management Conference (‘CMC”) on August 4, 2021 to ensure that the Hearing of the Yusishen’s Appeal was organized. In its Decision of August 12, 2021 several neighbours were granted Participant status, including Kevin Dale. The Tribunal recently received an updated Participant Statement from Mr. Dale, who followed the Hearing online. The other interested persons, Janet Greenwood and James Flynn and Susan Haley, did not participate in the Hearing or submit Statements, but had submitted comments to the Planning Committee prior to the Hearing (as outlined in the Staff Report, Tab 3 of the Joint Document Book, Exhibit 1.) The Tribunal has carefully considered all of their concerns despite this irregularity (Rule 1.5).
3The Tribunal will set out the Township’s evidence first, since it includes the factual background as well as the applicable planning requirements.
THE TOWNSHIP OF MUSKOKA LAKES
4The Township’s planning evidence was presented by Sam Soja, qualified by the Tribunal to provide expert planning evidence, having spent over 10 years with the Township. He provided the factual background for the Appeal and then his planning opinion.
5The subject property is located on the north shore of a small bay on Lake Joseph, designated by the District of Muskoka as a Category 1 (large) Lake. This requires consideration of fisheries habitat for threatened species. However, there is no Type 1 fish habitat or species at risk to be harmed by the existing docks.
6A site plan has been submitted, seen in the Joint Document Book, Tab 3. The lot totals 1.47 acres, with frontage of 200 feet at the shore. It is designated Waterfront in the Township Official Plan, and is zoned Waterfront Residential (WR4) in the Zoning By-law No. 2014 – 14. Neighbouring uses are also zoned Waterfront Residential.
7The Appellant seeks two exceptions to the zoning requirements, permitting an increase in the width of the dock as built, and a decrease in the required side yard setback on the east side. Specifically, approval of an increase of 28 feet up to a 78-foot total width for the dock structures, whereas for a 200-foot frontage on a Category 1 lake only a 50-foot width is permitted. Here, docks totalling 78 feet in width have already been constructed. This is an increase of 39% over the permitted width, Mr. Soja testified [see s. 4.1.7 and 4.1.7(12) of the ZBL]. Also sought is a decrease in the side yard setback to the east to 17 feet, whereas 30 feet is required (s. 4.1.7 of the ZBL).
8As well as the other structures on the lot, the Planning Report to the Township described a two-storey boathouse with sleeping cabin above, a boatlift with frame cover, and two floating docks to the east of it. The lot is relatively level, sloping gradually towards the Lake Joseph shoreline, with an increasing slope of 40 degrees down to the water. A patio/fire pit area is located next to the shoreline. Other than the developed areas above and the patio, the vegetative shoreline buffer is relatively intact. Photos at pages. 2 to 7 of the Report illustrate the existing lot and structures, as well as many views of the neighbouring boathouses and docks.
9A previous approval of a minor variance application in 2006 had authorized the existing two-storey boathouse, with sleeping cabin above. More specifically, it granted permission for :- a two- storey boathouse on a lot with less than 300 feet of lot frontage;
a maximum first storey boathouse width of 33 feet (see below);
habitable space to be located within a boathouse on a lot with less than 300 feet of frontage; and
a boathouse 23 feet in height.
10Mr. Soja found that the present application is consistent with the Provincial Policy Statement (“PPS”) as is required by s. 3(5) of the Planning Act. He then addressed compliance with the District of Muskoka Official Plan (“DOP”). The District had found that the proposals conformed to its OP. However, Mr. Soja testified that the Application does not conform to the detailed policies of the Township OP, nor to some of its ZBL standards. The Application was considered as if already built.
The Township OP
11The Township’s Plan designates the subject lands as Waterfront. The proposed structures do not conform to several key policies of the Township Plan, Mr. Soja testified.
12By sections B.2.4, B.4.2, B.5.2, B.5.4, B.5.51 and B.6.5 of the OP, the Waterfront character must be protected by limiting the density of buildings and structures there. Built form must not become concentrated nor dominate the Waterfront to the detriment of its natural form. Viewed from the water, natural shorelines help by visually screen development. Lot frontages should thus be maintained in a natural state to a target depth of 50 feet.
Side yard setbacks
13The OP also provides that side yard setbacks shall be established in a zoning by-law. In the case of shoreline structures, this allows the ingress and egress of boats to dock spaces and boathouse slips. Also, reasonable views and separation for privacy between neighbouring properties must be maintained (section B.5.14). Mr. Soja stated that while views to the east here are not in fact impacted by the decreased side yard setback, privacy could be affected.
Width of Docks
By section B.9.2 of the OP, special policies apply to Category 1 (Large) lakes (including Lake Joseph):
b) 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.
Similarly, section B.13.4 requires that the maximum cumulative width of docks shall be the lesser of 25 percent or 23 metres (75 feet) of the lot’s water frontage, with the exception of the following:
e) large residential properties with severance potential, as determined by the Township, which shall generally be limited to 25 percent per minimum water frontage of potential lots.
14Mr. Soja testified that severances would be permitted only for lots of 2 acres, and 300 feet in width. Here, however, the lot to the east is vacant and is not a building lot, so the property cannot be severed. This exception would not apply.
15Section B.10.1 of the OP requires that the character of the Waterfront be maintained, by consideration of the built size and form, and also the number of habitable buildings, setbacks, shoreline vegetative cover, height, shoreline structures, and historical lake development. In section B.13.3, structures or works extending beyond the normal high water mark or at the shoreline shall have regard for critical fish and wildlife habitat, privacy, and other shoreline policies.
16Section F.1.6.8 states that since certain provisions of the zoning by-law were carefully planned, exemptions may not be granted for reduced side yard setbacks for two-storey boathouses and shoreline structure widths. The By-law’s origins and purpose must be considered in any such application. (Emphasis added by Tribunal.)
17Mr. Soja testified that although the By-law provides that the maximum cumulative dock width is 25% of the lot frontage up to a maximum width of 75 feet, in this case a maximum of only 50 feet of cumulative dock width is permitted, given the only 200 feet of frontage. Despite this, the owners have constructed a 28-foot wide addition to the existing dock without a building permit, resulting in a cumulative dock width of 78 feet or 39% of the 200-foot frontage, not 25%.
18The Township refused their application for these amendments. Mr. Soja testified that previous exemptions from these rules on dock widths were granted only for:
- island lots with varied shorelines;
- a dock extending only a few extra feet; or
- where a severance resulted in only a slight increase in frontage and the resulting lot complied.
19Another amendment to the ZBL was requested for the dock’s side yard setback. The minimum required is 30 feet from the projection of the side lot line. The owners’ dock addition is only 17 feet, while the side yard setback of the existing dock was 41 feet.
20When visiting following the application, staff saw a boatlift with a frame cover located on the east side of the boathouse, and the two floating dock segments that the owners wish to retain. The Applicant had provided photos showing a fabric awning over the frame. The ZBL includes cantilevered structures and free-standing boatlifts within the definition of “cumulative width”, and boatlifts must therefore comply with the requirements regulating docks (i.e. cumulative width, side yard setbacks, and length). “Cumulative width” in the ZBL, he explained, means cumulative dock width. If a boatlift were located within the existing boathouse slips, there would be no additional dock width caused by it. Here, due to the surrounding dock, the boatlift does not further increase the cumulative dock width as applied for.
21However, Mr. Soja said that if the Tribunal refuses this Appeal, the existing boatlift (approximately 8 to 10 feet wide) outside the boathouse must also be removed. It would exceed the maximum cumulative dock width permitted, and a variance for it would be needed. Adding complication, if it were kept, it would mean an additional variance is necessary for the extra “first storey” boathouse width (see below).
22As mentioned, in 2006 a minor variance was approved, increasing the” first storey boathouse” width to 33 feet to permit alterations to the existing two-storey boathouse. The frame cover here increases the cumulative maximum first storey boathouse width under the By-law by approximately 10 feet. This would mean approvals are now needed for increases in cumulative dock width, first storey boathouse width, and possibly a reduced side yard setback. The 2006 decision had permitted a two- storey boathouse with habitable space on a lot with less than 300 feet of lot frontage; a maximum first-storey boathouse width of 33 feet; and a boathouse height of 23 feet.
A boatport?
There is an even further complication. The ZBL only permits docks, boatports, boathouses, and sun shelters in the Waterbody Open Space (WOS) zone on Category 1 lakes. Here, there is a frame with cover, installed on the lake bottom above the boatlift. The ZBL defines a “boatport” to mean “an accessory structure built or anchored near the shore for the purposes on berthing and sheltering of boats or other marine related equipment and is not enclosed by more than one wall” (s. 11.17). The ZBL includes a boatport within the definition of a boathouse. Mr. Soja concluded that the frame cover has the appearance of and functions as a boatport, and therefore must comply with a boatport’s cumulative width, setbacks, length, lot coverage, etc. provisions.
23No site plan control was foreseen as necessary for this Application, since docks and boathouses in this zone are exempt. Nor was a fish habitat assessment completed for this Type 2 habitat, as consensus was that it was not needed.
24Mr. Soja pointed out that some neighbours expressed opposition, saying that the docks were too close to their property. A reduced setback was undesirable in his view, for privacy reasons. It is also recognized that Avon Bay is highly developed, with many existing docks and boathouses. Staff had concerns with permitting a dock addition in an area where shoreline development is already over-concentrated. The open shoreline buffer surrounding the patio/fire pit area also contributes to the appearance of the built form dominating the natural environment.
25He also stated that there is no difference between a floating dock and a permanent installation as far as ZBL compliance is required. If a floating dock were approved, a more permanent installation would also be possible. An order to comply does in fact apply equally to both.
26His conclusions on the requested amendments to the ZBL are:
the proposed 78 feet (39%) of cumulative dock width should be denied, since it does not conform to the Township OP;
staff also had concerns with an enlarged dock together with a reduced sideyard setback. A severance possibility aside (which is not possible here), the OP requires that the maximum cumulative width of shoreline structures, including all docks, is 25% of the frontage. The proposed width here greatly exceeds 25% of the lot frontage.
the OP also indicates that built form must not become concentrated or dominate to the detriment of natural form. An increase in dock width, with a two-storey boathouse and the existing dock on a lot less than 300 feet, results in the appearance of shoreline structures dominating the shoreline over the natural configuration.
27Exemptions may not be granted for shoreline structure widths, because of careful planning for zoning provisions here. Past exemptions have only been supported where 1) the actual shoreline frontage is much greater than required, and the dock width does not exceed 25% of the actual frontage; 2) the lot is on a distinct point, or is a peninsula with irregular shoreline, and docking is needed to permit water access; 3) the additions represent a small percentage increase, are small in size and located immediately at the shoreline; and for other situations that do not apply to this application.
28The subject property and the proposed increased dock width do not meet any of the circumstances listed that have historically been used to consider increased dock width. His professional opinion was that the requested amendments do not conform to the OP, would dominate the shoreline and affect privacy, and would be out of character with waterfront development requirements.
29Mr. Soja did point to some positive aspects to the proposal. It is acknowledged that the dock addition:
does not extend past the front of the existing boathouse and dock;
from the west, it is visually screened by the existing boathouse; and
it will not impact navigation or views from neighbouring properties. The lot to the east is undersized, and cannot be developed as of right.
30Notwithstanding these positive aspects, staff believed that the proposed development does not conform with the Township OP, and does not represent good planning. Staff recommended that the application be denied, and the Planning Committee did so.
31In cross-examination, Mr. Yusishen stated that he had not realized that a permit was required for the docks. Respecting his evidence of the large floating docks seen nearby, Mr. Soja stated that these might have non-conforming status, or even be illegal uses. Any dock wider than the By-law permits definitely requires a building permit, and is subject to removal if not obtained. He agreed that boat traffic in this bay could access boat houses easily, so this is not a concern here. However, any cover over the boat lift adds a consideration for the definition of “boatport”. One must therefore include dock width in assessing the merits, but also the width of the boathouse. For a covered “one storey” boathouse, the By-law permits a dock to be 16% of the boathouse width. Otherwise a variance is needed.
THE APPELLANTS
32Mr. Yusishen represented the owner Ms. Yusishen in presenting their evidence in favour of the requested variances. He relied primarily on the fact that the requested floating docks are not permanent structures, but are used for only two months and are removed in winter. They have been in existence on site about four (4) years. The owner purchased the rights for a water lot from the provincial government, he stated. The structures are located out-of-sight and far away from anything. Their neighbour Tomulka, who is about 80 feet away, wrote a letter of support as did others, while opponents are more than 250 feet away.
33He would like to retain all three structures, that is, the boat lift and the two floating “fingers”. The order to comply served by the Township did not address the boat lift, he pointed out. The Yusishens would like to retain all three, but would settle in the end for the covered boat lift. There are many such floaters and lifts on the lakes, and his pictures (Exhibit 1, Tab 15, p. 144) prove this. No severance is possible for this lot so as to produce more frontage, as the lot to the east is a hydro right of way. The Participant, Mr. Dale complained about the application, but cannot even see the structures as he is located on the other side of the boathouse. No one is bothered by the docks as constructed, and he received support from nearby owners (see his map of their locations, Tab 15). The shoreline trees provide visual cover for the docks, protecting the shoreline as required.
34In cross-examination by Mr. Veltboom, Mr. Yusishen admitted that three letters of opposition, including Mr. Dale’s, had been received, but mentioned several letters of support as well. He had no knowledge of whether the other docks he had photographed were legal uses or legal non-conforming. It was common practice not to inform the Township of similar construction, he said.
Participants
35Mr. Dale filed a Participant Statement, as is required in order to make comments to the Tribunal as a non-Party. His cottage location to the west can be seen in the Staff Report, (Exhibit 1, Tab 3, p. 7 ). His objections were respecting waterfront access, reduced privacy, boat traffic, quality of the natural environment and the precedent that this approval would set. He pointed out that the other side of the Yusishen boathouse closer to him had never been used for docking a boat.
36There were other views expressed to the Planning Committee in opposition to the proposed amendments. Janet Greenwood and James Flynn, and Susan Haley, did not participate in the Hearing nor submit Statements, but had objected based on virtually the same issues as Mr. Dale. Ms. Haley to the east objected to any permanent installation, while temporary and removable was more acceptable. Mr. Flynn and Ms. Greenwood at 1028 Avon, stated to be adjoining, cited increased boat traffic, additional noise, and dock activity. Garry and Nancy Goudy also cited privacy, a reduced frontage, and contravention of the By-law provisions.
37The Tribunal has carefully considered all their concerns, despite their failure to file Participant Statements as the Rules require. An exception was made under Rule 1.5 for this irregularity. It has also studied the expressions of support from nearby cottagers, but considers the nearest neighbours’ objections to be more relevant to its decision.
38In his submissions, Mr. Veldboom pointed out that a Crown Patent must be obtained from the province for construction of a two-story boathouse. This must be the reason that the owners purchased part of the lot past the shoreline. The OP and zoning by-law apply over the water as well, which Mr. Yusishen had questioned. Mere appearance from the water is not the only test for determining whether to approve an application such as this. Minor changes to dock widths have been approved, but for island properties where frontage is not easily measured. This application involves significant relief from the OP shoreline policies, which is inappropriate. It is true from the Appellant’s photos that there appear to be many similar boathouse and dock structures close by in Lake Joseph. However, there was no evidence as to their legal status. Many could be non-conforming uses, or even built in contravention of the OP and By-law provisions, as these additions were.
DECISION
39The Tribunal will have to refuse this Appeal from the Council’s refusal of the amendments to Zoning By-law No. 2019-120. While agreeing in part with Mr. Soja’s “positive aspects” in considering the merits, they do not outweigh the many contraventions of the Township’s OP policies and zoning requirements.
40Mr. Yusishen requested partial relief, if the Tribunal saw fit, by allowing for retention of one or more of the challenged dock structures. The boat lift might be a possibility on the surface of it, until a further problem arises with the inclusion of “boat lift” in the definition of “boatport” and with the rules for a “one-story” boathouse. These are in fact very confusing to interpret. However, the end result appears to be that retaining even the boat lift would require one or two further minor variances, which are not before the Tribunal in this Appeal. Mr. Veldboom is correct that the Tribunal therefore has no jurisdiction to determine that the boat lift portion of the structure, even if it is more permanent, can be retained. It appears also to be in further contravention of the zoning standards. An application for zoning amendment(s) would be needed, and if refused, an appeal could be made. Without this prior procedure, the Tribunal cannot grant the exceptions for these components.
41The Tribunal finds that it is quite critical to adhere in the main to the requirements in the OP policies, and to the development standards in the ZBL, in order to preserve the Muskoka waterfront for future users. Creating many exemptions defeats the purpose of planning instruments. Mr. Soja stressed that any dock within 20 feet of a shoreline requires a building permit. Here the Appellant did not apply for a permit, nor consult with the Township planners prior to building the floating docks or the boat lift. From Mr. Soja’s testimony, even the existing boat lift structure would require a minor variance for “boat house width for a one-storey boathouse” before it becomes a legal use. This does sound confusing, as the boathouse was approved some time ago at two storeys. However, this is where consultation with the municipal planners or a private planner would have been useful for the owners. The existing By-laws must be respected where possible, or shorelines throughout the Township could be at risk.
42The closest neighbours the Tomulkas, and two others, Greg Hall and Adam Wallace, had no objections, as Mr. Yusishen stated. However, these other properties are farther away than the Tomulkas, who are directly across the small bay. While acceptable to these supporters visually, the structures still contravene the zoning allowances, and the nearest neighbours object to this.
43Under the Planning Act, s. 2.1 requires that the Tribunal consider written and oral submissions from the public, in addition to material before Council when its decision was made.
44In addition, by s. 3 (5), the Tribunal Decision must be consistent with provincial policy statements that are in effect on the date of the decision; and also must conform with provincial plans in effect on that date or shall not conflict with them. Mr. Soja addressed these documents in reaching his conclusion that the proposed ZBL amendments do not conform with provincial planning documents, nor with the OP and the ZBL. The Tribunal agrees, dismisses the Appeal and refuses to approve the requested changes to ZBL No. 2019-120.
“G. Burton”
g. burton
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.