Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 18, 2022
CASE NO(S).: OLT-22-002815
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Brackenrig Road Partners Inc.
Subject: Application to amend the Zoning By-law – neglect to make a decision
Description: Proposes to demolish all of the existing buildings and structures to construct a new dwelling
Reference Number: ZBA-64/21
Property Address: 1725 Brackenrig Road
Municipality/UT: Muskoka Lakes/Muskoka
OLT Case No.: OLT-22-002815
OLT Lead Case No.: OLT-22-002815
OLT Case Name: Brackenrig Road Partners Inc. v. Muskoka Lakes (Township)
Heard: June 29, 2022, by Video Hearing
APPEARANCES:
Parties
Brackenrig Road Partners Inc. (“Applicant”)
Counsel
L. Longo
The Corporation of the Township of Muskoka Lakes (“Township”)
J. Biggar
MEMORANDUM OF ORAL DECISION DELIVERED BY BLAIR S. TAYLOR ON JUNE 29, 2022, AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Applicant had filed a rezoning application with the Township for the lands known municipally as 1725 Brackenrig Road (“Subject Lands”).
2As the Township had failed to deal with the application within the statutory time frame, the Applicant appealed to the Tribunal.
3In the lead up to the hearing, the parties were able to resolve their issues and entered into Minutes of Settlement.
4Thus the matter came before the Tribunal as a settlement hearing.
5For the reasons set out below, the Tribunal allowed the appeal in part, and ordered that the Township’s Zoning By-law was amended by the draft Zoning By-law Amendment (“ZBA”) as found in Exhibit 3 at Schedule A.
DECISION
6The Subject Lands are about two acres in area with frontage of about 263 feet (measured in a straight line) onto Lake Rosseau. The Subject Lands slope toward the waterfront.
7Access is provided by a year-round public road. There are a number of building structures on the Subject Lands dating from about 1936, including a single storey dwelling, a single storey boathouse with a sundeck and associated dock, five accessory buildings (identified as sleeping cabins) and a separate washroom building.
8The Subject Lands are designated Waterfront, and zoned Waterfront Residential (WR4) and Open Space (OS2).
9The development proposal sought to demolish all the existing buildings and structures, and construct a new dwelling, to reconstruct within the same footprint an accessory building identified as a sleeping cabin, to construct a new land-based sleeping cabin, construct a new 2 storey boathouse with a sleeping cabin in the upper level, and with a site specific definition for height due to the slope of the Subject Lands.
10The Township’s Zoning Bylaw allows one dwelling and one sleeping cabin, and a 2 storey boathouse where the lot has a minimum 300 foot frontage.
11After the appeal to the Tribunal had been filed, the Township held a Public Meeting on April 14, 2022, for which a Township Planning Staff report had been prepared, which recommended partial approval relating to the 2 storey boathouse, the expansion of the dwelling, and a site specific definition for height.
12In the lead up to the hearing, the parties were able to reach an agreement that redevelopment could proceed with a 2 storey boathouse, one additional sleeping cabin, an expanded dwelling, and a site specific definition for height.
13Minutes of Settlement were entered into confirming the settlement, including a draft ZBA as found in Exhibit 3 at Schedule A.
14At the hearing, the Tribunal had before it the Township Planning Staff Report of April 14, 2022 (Exhibit 2), the Minutes of Settlement (Exhibit 3) and the land use planning affidavit of Marie Poirier (Exhibit 4), all in support of the proposed settlement.
15The Tribunal heard the viva voce evidence of Ms. Poirier, who opined that the proposed settlement as embodied in Exhibit 3:
a. Had appropriate regard for the matters of Provincial Interest in s. 2 of the Planning Act;
b. Had appropriate regard for the decision of the Township Council as found in the executed Minutes of Settlement;
c. Was consistent with the Provincial Policy Statement;
d. Conformed to the District of Muskoka Official Plan;
e. Conformed to the Township’s Official Plan;
f. Represented good land use planning; and
g. Was in the public interest.
16Accordingly, Ms. Poirier recommended the approval of the draft ZBA found in Exhibit 3 at Schedule A.
17Both the Applicant’s and the Township’s counsel recommended, based on the exhibits filed and the uncontested and uncontroverted evidence of Ms. Poirier, that the Tribunal approve the draft ZBA as presented in the Minutes of Settlement (Exhibit 3 Schedule A).
18The Tribunal having read the Township Planning Report (Exhibit 2), the Minutes of Settlement (Exhibit 3), the land use planning affidavit of Ms. Poirier (Exhibit 4), having heard her viva voce evidence, having heard the submissions of counsel and having considered the decision of Township Council, found that all the statutory tests had been satisfied.
19The Tribunal found that, bearing in mind all the existing structures on the Subject Lands, that the proposed settlement would bring a notable improvement in terms of compliance. For the boathouse, there is no Official Plan policy related to how to measure frontage and a survey was produced illustrating 330 feet of actual assessed frontage. The additional sleeping cabin is much less than the existing structures on the Subject Lands (some of which appear to have utilized the separate washroom building), as is the expansion of the dwelling. The site specific height regulation takes into account the site specific slope of the Subject Lands and enables design flexibility.
20Therefore the Tribunal allowed the appeal in part and ordered that the Township’s Zoning By-law was amended by the draft ZBA as found in Exhibit 3 at Schedule A.
21The Tribunal wishes to congratulate the parties for their efforts to resolve this matter and thus avoid a lengthy and costly hearing.
22This is the Order of the Tribunal.
“Blair S. Taylor”
BLAIR S. TAYLOR
MEMBER
Ontario Land Tribunal
Website: www.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.