Clarke v. Muskoka Lakes (Township), 2022 CanLII 23466

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 22, 2022

CASE NO(S).: OLT-21-001135

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

Applicant and Appellant: Robert Clarke

Subject: Minor Variance

Property Address/Description: 1140 Morinus Road

Variance from By-law: By-law 2014-14

Municipality: Township of Muskoka Lakes

Municipal File No.: A-44/20

OLT Lead Case No.: OLT-21-001135

OLT Case No.: OLT-21-001135

OLT Case Name: Clarke v. Muskoka Lakes (Township)

Heard: March 4, 2022 by video hearing

APPEARANCES:

Parties

Counsel*/Representative

Robert Clarke

Cameron Hoos*

Township of Muskoka Lakes

David Pink

MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON MARCH 4, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Robert Clarke (“Applicant”) of 1140 Morinus Road (“subject property’) in the Township of Muskoka Lakes (“Township”) has appealed the Committee of Adjustment’s (“COA”) refusal of a variance application. The variances were requested to enable construction of a dock (walkway) along the shore that will connect two boathouses.

2The Applicant and the Township have reached a settlement subject to conditions.

3Counsel for the Applicant, Mr. Hoos, called Stefan Szczerbak, a Registered Land use Planner, in support of the variance application. The Tribunal qualified Mr. Szczerbak to give expert opinion evidence on land use planning matters. He opined that these variances meet the s. 45(1) requirements of the Planning Act (“Act”).

4Counsel tendered a statement package together with Minutes of Settlement (marked as Exhibit 1).

5The Tribunal is satisfied based on the uncontroverted evidence before it that the variances should be allowed and authorized for the reasons that follow.

6The subject property is zoned Waterfront Residential (WR1) and is located on a Category 1 Lake, (Lake Rosseau). The reliefs requested under Zoning By-law No. 2014-14, as amended (“ZBL”) for variances requested are:

1. from Section 4.1.7 of the ZBL: to permit a total cumulative width of 116.5 feet for the dock walkway whereas the permitted total cumulative width is 75 feet.

2. from Section 4.1.3 of the ZBL: to permit an existing as built hot tub 1.3 feet from the highwater mark where the ZBL would require a minimum front yard setback of 66 feet. The variance requested is 64.7 feet.

7The subject property is located on the northern shoreline of Lake Rosseau. It has approximately 112.3 metres (“m”) of water frontage and a lot area of 8,094 square metres (“sq m”). On site is a single storey dwelling, two boathouses, a dock and two decks affixed to the dwelling. The structures subject to this application, are a hot tub and a shoreline walkway between the existing docks.

8The subject property is located in an area of waterfront/recreational development, with land uses consisting of:

• North: Waterfront Residential

• South: Lake Rosseau

• East: Waterfront Residential

• West: Lake Rosseau

9An Applicant must satisfy the Tribunal that the four tests in s. 45(1) of the Act are met, i.e., that the variances maintain the general intent and purpose of the Official Plan and the Zoning By-law, are desirable for the appropriate development or use of the land building or structure, and are minor in nature.

EVIDENCE AND ANALYSIS

10The Tribunal is satisfied, based on the uncontradicted evidence of Mr. Szczerbak and the Municipal records that the variances satisfy the statutory tests in s. 45(1) of the Act.

11The Tribunal is satisfied that the proposed variances at the subject property are consistent with the Provincial Policy Statement 2020 (“PPS”) and have regard for the matters of provincial interest as set out in s. 2 of the Act, in particular: 2(a) the protection of ecological systems; 2(h) the orderly development of safe and healthy communities; and 2(r) the promotion of built form that is well-designed.

Provincial Policy Statement 2020

12The, 2020 PPS provides policy direction on matters of provincial interest related to land use planning and development. Policies are set out to provide for appropriate development while also protecting resources of provincial interest, public health and safety, and the quality of the natural and built environment.

13The subject property is classified as Rural Lands by the PPS. The PPS, specifically section 1.1.5.2, recognizes resource-based recreational development, including recreational dwellings, as a permitted use on Rural Lands. The proposed walkway (dock) and existing hot tub are not specifically addressed through the PPS, but would generally be considered as accessory to the principal (recreational dwelling) use of the property, which is permitted.

14Section 1.6.6.4 provides policies that apply to development on individual well and septic. The existing cottage and sleeping cabin above the boathouse are each serviced by existing individual on-site sewage and water services. The Applicant has indicated the existing hot tub is to be connected to one of these existing septic systems. This is subject to a permit approval.

15Section 2 of the PPS contains policies that provide for the protection of natural resources. Section 2.1.6 provides that development and site alteration shall not be permitted in Fish Habitat except in accordance with provincial and federal requirements. The dock extension and hot tub are in an area representing Type II Fish Habitat, and may have been subject to Fisheries and Oceans Canada (“DFO”) approvals. Since the walkway is existing however, no further development or site alteration is expected within the area of Fish Habitat. Recognizing the as built development, rather than permitting a new development, DFO approval may not be required.

16The Tribunal agrees with Mr. Szczerbak that the variance application is consistent with the PPS. The dock walkway and the hot tub are sited unobtrusively on site. As there will not be further works or alteration at this site, no ecological disturbance will occur to this area of fish habitat.

District of Muskoka Official Plan

17The subject property is designated 'Waterfront' in accordance with Schedule A: Land Use Designations of the District of Muskoka Official Plan. Generally, within the Waterfront Designation, recreation and the protection and enhancement of the environment are important policy matters.

18Section C.2.6.4.2 of the District Official Plan establishes a minimum 20 m setback from any shoreline for all development, excluding shoreline structures, open decks and minor accessory structures. The subjects of this application, being an as-built dock extension and hot tub are both within the required 20 m setback but would be considered a shoreline structure and minor accessory structure, respectively.

19Section J4 of the District Official Plan contains policies pertaining to the Waterfront designation. Section J4.2 of the District of Muskoka Official Plan provides the Objectives for the designation including protection of the visual aesthetics of the lakes, integrity of the natural environment, protecting fish and wildlife resources and supporting the development and redevelopment of recreational dwellings as appropriate. Since both the dock extension and hot tub are now existing, no further development or site alteration is expected to affect the Type II Fish Habitat.

20Section J4.3 requires that Area Municipal Plans shall contain more detailed policies regarding the development in the Waterfront Area including the character of various waterfront areas and performance standards for a range of shoreline buildings and uses. The District of Muskoka Official Plan does not provide specific direction with respect to the application.

21The Tribunal finds that the variance application does not conflict with the District of Muskoka Official Plan. Both the walkway (dock extension) and hot tub accessory structures are unobtrusive when viewed from the shoreline. The general aesthetics of the subject property’s shoreline is not affected and the natural fish habitat is not impacted.

Township of Muskoka Lakes Official Plan

22The subject property is designated Waterfront in the Township of Muskoka Lakes Official Plan. Generally, the policies encourage the protection of waterfront character, and the environment. One of the main objectives of the Waterfront designation is to ensure built form does not dominate the natural shoreline.

23Section 84 provides four objectives regarding the character of the Waterfront Area including ensuring that built form does not become concentrated or dominate the waterfront to the detriment of the natural form.

24Section 85 (Waterfront - General Development Policies) generally requires that development should enhance and protect natural and built form that comprise the qualities that build the character of the waterfront.

25Section 85 (Waterfront - General Development Policies - General Development Standards) sets out guidance on general development and performance standards for the Waterfront and for the implementing Zoning By-law.

26Section 85.12 states that:

the front yard setbacks, as detailed in an implementing comprehensive zoning by-law, are established in recognition of- a) Requirement of a shoreline vegetative buffer; b) Minimizing the dominance of the built form on the natural environment; c) Maintenance of privacy and noise attenuation especially on properties fronting, onto a narrow waterbody; d) Maintenance of aesthetic qualities of the waterfront; and, e) Protection of natural habitat and minimizing environmental impact in the foreshore area.

27The Tribunal agrees with Mr. Szczerbak that the scale and design of the as-built dock extension and hot tub are compatible with the character of the surrounding area and do not represent dominating features of the shoreline as viewed from Lake Rosseau. The Applicant has made considerable effort to further integrate the hot tub with the bedrock along the shoreline of the property through the use of stone cladding on the external face of the tub.

28Mr. Szczerbak concurs with the Township’s Consulting Planners’ planning report (staff planners’ report) views, that the dock extension and hot tub would generally be considered shoreline and minor accessory structures, respectively. As such, they would be permitted within the 20 m setback which otherwise applies to development within the waterfront designation through the provisions of the Official Plan. It would have been the Applicant's responsibility to ensure the development of the dock extension and hot tub, (which are adjacent Type II Fish Habitat), complied with any regulations imposed by provincial and/or federal agencies (e.g. DFO). As the dock extension and hot tub are now existing, and being that no further development or site alteration is proposed, the minor variance application would meet the intent of the natural areas policies of the Official Plan which seek to regulate the effects of new development on shoreline natural areas. The staff planners found no evidence of shoreline vegetation being removed as part of the installation.

29The Tribunal notes that the structures, one a flat, level walkway dock extension, and the other a low, hot tub do not stand out on this site. These two structures do not dominate the shoreline as they are unobtrusive. Further there is no evidence that the natural vegetation on the subject property were removed when the structures were installed at the site. The natural visual characteristics of the subject property has not been affected. The Tribunal finds that the variances meet the general intent and purpose of the Township Official Plan.

Zoning By-law

30The subject property is zoned Waterfront Residential (WR1) in the Township of Muskoka Lakes Comprehensive Zoning By-law No. 2014-14 (the “ZBL”). The subject property is located on a Category 1 Lake (Lake Rosseau).

Walkway

31Mr. Szczerbak stated that Section 4.1.7, which limits the maximum cumulative width of an accessory structure over water on a lot implements the policies of the Official Plan which seek to maintain the character of the Township's shoreline area by striking a balance between development and natural shoreline. The additional 3.5 m of width, represents roughly a 10% increase beyond the cumulative width of accessory structures over water within the subject property at present. This dock extension is considerably set back from the front face of the boathouses which frame it on either side. Given the location and scale of the dock extension, the relief from the maximum cumulative width of an accessory structure over water provision to permit an additional 3.5 m beyond that existing meets the general intent and purpose of the Zoning By-law. Depending on the angle of one's view from the water, the dock extension would be largely screened by the two boathouses on either side. Only when viewed from directly in front of the extension would it be visible to the public from the water. The Tribunal accepts Mr. Szczerbak’s opinion on the dock walkway variance.

Hot tub

32Mr. Szczerbak explained that the Applicant has also requested relief from required minimum front yard setback and minimum setback from the high water mark associated with the placement of the as-built hot tub. As with the cumulative width of an accessory structure over water, the front yard and high water setback provisions of the Zoning By-law implement policies of the Official Plan which seek to maintain the character of the Township's shoreline by striking a balance between development and natural features. Setbacks from the high water mark also work to implement those Official Plan policies related to the public health and safety.

33Mr. Szczerbak concurs that the staff planners’ report stated that the hot tub represents a small scaled structure of thoughtful design which uses stone cladding to complement those textures along the existing shoreline both within the subject property and in neighbouring lots. Being that (i) the shoreline character is maintained despite the addition of the hot tub, (ii) that a hot tub is expressly permitted as a use making up part of a sundeck, and (iii) that a hot tub structure would not generally represent a concern to public health and safety in being located within the high water mark setback, relief from the minimum front yard setback and minimum setback from the high water mark provisions meet the general intent and purpose of the Zoning By-law.

34The Tribunal agrees with Mr. Szczerbak that the dock walkway extension is set back considerably. The intent of cumulative width limit is to maintain a balance of the size of the development and the effect on the natural shoreline. It is only visible from a direct angle from the lake and will be blocked from view by the boathouses. With respect to the hot tub, the express permitted use of this structure which is designed to blend in with the shoreline character by the stone claddings, will not affect the shore aesthetics. The Tribunal finds that the variance application maintains the general intent and purpose of the ZBL.

Desirable

35Mr. Szczerbak concurs with the staff planners’ report that the minor variance for the proposed dock walkway would be considered desirable for the appropriate development of the land on the premise that the proposed walkway (dock) is to connect the existing docks associated with the two boathouses within the subject property to provide safe passage between the two existing docks. The staff planners’ report further recognizes the hot tub would be considered desirable for the appropriate development of the land on the premise that the hot tub will be connected to an existing septic system within the subject property, and that the hot tub is of a finish that would maintain the aesthetic of the shoreline as experienced from Lake Rosseau.

36The Tribunal acknowledges that the dock walkway joining the existing boathouses that are on the subject property is a practical and safe solution to connect these two boathouses separated by a body of water. The hot tub is a permitted amenity sited at an appropriate location for the connection to one of the septic systems. The Tribunal finds that the variances are desirable for the appropriate use of the subject property.

Minor

37The Tribunal accepts the staff planners’ report and concurs with Mr. Szczerbak’s opinion that the physical scale and design of the dock extension and hot tub is small relative to the character of other development both within the subject property and in neighbouring properties. The short dock walkway that joins two existing boathouses has little impact on adjacent properties to the east. The hot tub is constructed to blend in and is relatively shielded from view. There is no evidence of adverse impact on neighbouring properties. The Tribunal is satisfied that the variances are minor in nature.

ORDER

38The Tribunal orders that the appeal is allowed and the variances to Zoning By-law No. 2014-14 are authorized subject to the following condition:

1. The Applicant shall enter into agreement with the Township of Muskoka Lakes pursuant to section 45(9.1) of the Planning Act to be registered on the Title.

“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.