Muskoka Property Management v. Muskoka Lakes (Township), 2022 CanLII 18625

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 11, 2022

CASE NO(S).: OLT-21-001278

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant: Daniel Cleland

Appellant: William Kenyon (Muskoka Property Management)

Subject: Minor Variance

Property Address/Description: 1361 Rosseau Lake Road 2

Variance from By-law No.: By-law 2014-14

Municipality: Township of Muskoka Lakes

Municipal File No.: A-16/21

OLT Case No.: OLT-21-001278

OLT File No.: OLT-21-001278

OLT Case Name: Muskoka Property Management v. Muskoka Lakes (Township)

Heard: February 22, 2022 by Video Hearing

APPEARANCES:

Parties Counsel/Representative*

Daniel Cleland Sarah Hahn* and Carly Emmett (student-at-law)

William Kenyon Self-represented

MEMORANDUM OF ORAL DECISION DELIVERED BY Eric S. CROWE and r.g.m. makuch ON FEBRUARY 22, 2022 AND ORDER OF THE TRIBUNAL

BACKGROUND

1The matter before the Tribunal is an appeal filed by William Kenyon, Muskoka Lakes Property Management (the “Appellant”), against the decision of its Committee of Adjustment’s (the “CoA”) decision on May 11, 2021, in relation to a minor variance from Zoning By-Law No. 2014-14 concerning 1361 Rosseau Lake Road 2 (the “Subject Property”). Mr. Kenyon owns the property known municipality as 1362 Lake Rosseau Road located immediately across from the Subject Property.

2In the application, Daniel Cleland (the “Applicant”) is seeking relief from s. 3.4.1e of By-law No. 2014-14, as amended, being the minimum lot area requirement for an existing lot of record. The Applicant is proposing to rebuild an existing seasonal cottage that is being removed and reconstructed as a sundeck with a reduced front yard setback and slightly larger footprint.

3The Subject Property is zoned Waterfront Residential (WR1) in the Township of Muskoka Lakes (“Township”) Official Plan (“OP”) and fronts onto Rousseau Lake Road 2. The minimum lot requirement is 15,000 square feet (“sq. ft.”) for an existing lot. The Subject Property has 11,732 sq. ft. of lot area. If the variance is granted, it will permit the reconstruction and enlargement of a dwelling, and the reconstruction of a sundeck on an undersized lot.

4The following are the variances applied for:

5The CoA approved the minor variance on May 11, 2021, based on the Planning Report dated May 10, 2021, namely:

i. To permit the reconstruction and enlargement of a dwelling and the reconstruction of a sundeck on an undersized lot.

ii. To permit a dwelling to have a gross floor area of 499 sq. ft.

iii. To permit the construction of a dwelling 11 ft. from the front lot line.

iv. To permit the construction of a sundeck 5 ft. from the front lot line.

v. To permit the construction of a dwelling and sundeck 11 ft. and 5 ft. from the lot line abutting the street (Rosseau Lake Road 2), respectively.

6These variances were granted subject to the following conditions:

1. That any existing Entrance Permit be revoked if necessary and that the existing entrance be removed to the satisfaction of the Township’s Public Works Department.

2. That the existing parking facilities on the Original Road Allowance associated with Rosseau Lake Road 2 be removed to the satisfaction of the Township’s Public Works Department.

3. That an Entrance Permit be issued for a new driveway and private parking facilities to the satisfaction of the Township’s Public Works Department.

7The Appellant filed the appeal on May 28, 2021, under s. 45(12) of the Planning Act (the “Act”) with the reasoning of the appeal to be attached at the time of the hearing.

8It is noted that the Tribunal granted Party status to the Applicant, at the commencement of the Hearing, as he has a substantial interest in this matter and that he has evidence to offer, which is necessary for the adjudication of this matter by the Tribunal.

REQUEST FOR ADJOURNMENT

9The Appellant did not appear at the Hearing claiming he was travelling outside the country and could therefore not attend. He requested an adjournment of the hearing on the grounds that he did not receive notice of the hearing until Friday, February 17, 2022.

10Counsel for the Applicant objected to this request for an adjournment and it is clear from the Tribunal’s record that the Appellant received notice of the hearing well within the time prescribed by the legislation. The Tribunal notified the Appellant on December 7, 2021, with a notice of the hearing including submission reminders via email on February 2, 2022, a telephone call to the Appellant’s counsel on record, Tyler McMurren, on February 17, 2022, who notified the Tribunal he did not represent the Appellant but advised he did forward the submission reminder to the Appellant on the same day. The adjournment request was refused.

LEGISLATIVE TESTS

11It must be noted that an appeal to this Tribunal, pursuant to s. 45 of the Act is a hearing de novo and the onus of establishing that the four tests, under s. 45(1) of the Act, to meet is on the Applicant, notwithstanding that the CoA approved the application. In addition, in making a decision under the Act with respect to a minor variance, the Tribunal must have regard to matters of provincial interest as set out in s. 2 and to the decision of the Approval Authority under s. 2.1. The decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”) under s. 3(5) and conform with any Provincial plans that are in effect.

12Applications for minor variance must satisfy all four tests as set out under s. 45(1) of the Act, namely that the requested variances:

i. maintain the general intent and purpose of the Official Plan,

ii. maintain the general intent and purpose of the Zoning By-law,

iii. are desirable for the appropriate development or use of the land, building or structure, and,

iv. are minor.

EVIDENCE

13The only evidence before the Tribunal consists of the testimony of Kaitlyn Walker, a land use planner for the Township, who appeared before the Tribunal to give expert testimony. Ms. Walker prepared the report to the CoA recommending that the variances be authorized.

14After reviewing Ms. Walker’s professional qualifications and a confirmation of her Acknowledgement of Expert Duties, the Tribunal qualified Ms. Walker to provide expert testimony in the field of land use planning.

15Ms. Walker adopted the contents of her Staff report as her evidence, which provides an overview of the application as well as the applicable planning policies.

16The Tribunal is satisfied based on the submission of evidence that the four tests under s. 45(1) of the Act have been met by this application and that the appeal should be dismissed for the reasons that follow.

Minimum Lot Area

17Evidence presented showed the Township’s OP and Comprehensive Zoning By-law contain minimum lot requirements with the intent and purpose of ensuring that lots are of sufficient dimension and size to accommodate a residential use, related buildings and structures, and services within acceptable standards. In this case, the Subject Property is undersized due to its lot area. To be a ‘building lot’ a property that is zoned Waterfront Residential (WR1) must have at least 15,000 sq. ft. of lot area.

18The Subject Property has 11,732 sq. ft. of area. As the Subject Property is undersized and the existing dwelling and sundeck are legal non-complying due to certain non-compliances, they cannot be reconstructed and expanded as-of-right. The variance will not deem the Subject Property a ‘building lot’.

19Ms. Walker also explained that: the proposed dwelling and sundeck will utilize the existing footprints and will require minimal site alteration and tree removal; The proposed dwelling is small and will not significantly increase built form on the Subject Property. Development Services have raised no concerns from a servicing perspective. This variance meets the four tests according to Ms. Walker.

Minimum Dwelling Gross Floor Area (“GFA”)

20Ms. Walker explained the Township’s OP is generally silent in regard to the minimum GFA of a dwelling. The Township’s Comprehensive Zoning by-law requires a dwelling to have a minimum GFA of 750 sq. ft. The intent of this requirement is largely twofold:

a) to ensure that dwelling units are reasonably sized for human accommodation and health and safety; and,

b) to draw a distinction in size between a dwelling unit as a main use/building and a sleeping cabin as an accessory use/building in the Waterfront. The proposed dwelling will be 499 sq. Ft..

21The existing dwelling (circa 1958) is 403 sq. ft. and has been established on the Subject Property for many years. The proposed dwelling will be 499 sq. ft., bringing the building closer to compliance, but still in character with the established dwelling. The Subject Property is small in size and does not meet the minimum area requirements to be considered a building lot and exhibits a development constraint in the form of a steep rock outcrop/slope between the road allowance associated with Rosseau Lake Road 2 and the interior of the lot. A small dwelling is likely more appropriate than a larger dwelling in this context.

22Ms. Walker opined that a reduced dwelling size will enable the provision of more housing opportunities. She opined that this variance meets the four tests.

Minimum Front Yard Setback (Dwelling and Sundeck)

23It is the opinion of Ms. Walker that the Township OP, Policy B.5.12 indicates that the front yard setbacks are established in recognition of the requirement for a shoreline buffer, a requirement to minimize the dominance of built form on the natural environment, a requirement to maintain privacy and noise attenuation, a requirement to maintain the aesthetic qualities of the waterfront, and a requirement to protect natural habitat and minimize environmental impacts along the shoreline areas.

24Further, Policy B.5.13 identifies that exceptions can be made to a requirement for a 66-ft. front yard setback for an existing development as defined in an implementing zoning by-law and where terrain or other constraints exist and for minor accessory buildings and structures. The proposed dwelling and sundeck are to be 11 ft. and 5 ft. from the front lot line, respectively.

25The proposed dwelling and sundeck will be situated at increased setbacks from the front lot line, representing an overall improvement. The existing sundeck currently encroaches onto the road allowance associated with Rosseau Lake Road 2 and this encroachment will be resolved through the proposed redevelopment.

26The front lot line of the Subject Property does not abut a navigable waterway and staff do not anticipate the reduced front yard setbacks will have a negative impact on the character of the street.

27Ms. Walker maintains that it is very difficult, if not impossible, without significant site alteration and tree removal, to comply with the required setbacks as there is a large rock outcrop behind the existing/proposed dwelling.

28Rebuilding in the same footprint will reduce the amount of tree removal and site alteration that is required. Ms. Walker opines that the variance meets the four tests.

Minimum Setback from a Public Street (Dwelling and Sundeck)

29The evidence submitted showed the Township’s OP is generally silent in regard to a setback from a public street. In this case, the Township’s Comprehensive Zoning By-law establishes 25 ft. as the required minimum setback from a street. This setback is established, in part, to provide for the appearance of a yard (typical of a residential setting) and to prevent incompatibility conflicts between a residential use and traffic and the use of a travelled road, including maintenance. Ensuring that development is sufficiently setback from a public street helps protect the long-term function of the street/roadway. The proposed dwelling and sundeck are to be 11 ft. and 5 ft. respectively from Rosseau Lake Road 2.

30The existing sundeck encroaches into the road allowance and therefore, has a setback of 0 ft.. The proposed sundeck will correct this encroachment and improve upon the existing setback. The proposed sundeck is to be 5 feet from the road allowance.

31The existing dwelling is setback 5 ft. from the road allowance. The proposed dwelling will be setback 11 ft. from the road allowance and will improve upon the existing setback.

32Ms. Walker does not anticipate that the proposed dwelling or sundeck will conflict with traffic along this section of Rosseau Lake Road 2. The street is relatively quiet and ends at the lake just past the Subject Property. Ms. Walker opines that the variance meets the four tests.

Provincial Policy Statement, 2020 (“PPS”)

33In relation to the PPS, Ms. Walker submitted, according to s. 3(5) of the Act, the application is consistent with the policies of the PPS. The dwelling is a well-designed built form and the application allows for correcting the encroachment issue and is within the existing footprint with little site variation required. It is Ms. Walker’s opinion that the application is consistent with the PPS and meets the intent and purpose of the OP and Zoning By-Law.

FINDINGS

34In determining this matter, the Tribunal accepts and adopts the uncontested land use planning evidence and expert opinions of Ms. Walker. The Tribunal is persuaded by the evidence that the application promotes good land use planning and is satisfied that the application for minor variance meets the four tests under s. 45(1) of the Act.

ORDER

35The Tribunal Orders that the appeal is hereby dismissed, and the variance to By-Law No. 2014-14 is authorized subject to the same conditions imposed by the Committee of Adjustment, namely;

1. That any existing Entrance Permit be revoked if necessary and that the existing entrance be removed to the satisfaction of the Township’s Public Works Department;

2. That the existing parking facilities on the Original Road Allowance associated with Rosseau Lake Road 2 be removed to the satisfaction of the Township’s Public Works Department; and,

3. That an Entrance Permit be issued for a new driveway and private parking facilities to the satisfaction of the Township’s Public Works Department.

“Eric S. Crowe”

ERIC S. Crowe MEMBER

“R.G.M. Makuch”

R.G.M. MAKUCH VICE-CHAIR

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.