Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 7, 2022
CASE NO(S).: OLT-21-001200
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant and Appellant: Terry Fangrad
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision.
Description: To permit an as-built dwelling and sundeck and to remove a dock
Reference Number.: ZBA-03/21
Property Address: 1030 Currie Street
Municipality/UT: Muskoka Lakes/Muskoka
OLT Case No.: OLT-21-001200
OLT Lead Case No.: OLT-21-001200
OLT Case Name: Fangrad v. Muskoka Lakes (Twp.)
Heard: July 12, 2022 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Terry Fangrad | Leo Longo |
| Township of Muskoka Lakes | Jennifer Biggar |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. BOBKA ON JULY 12, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Terry Fangrad (“Applicant”) owns the property located at 1030 Currie Street (“Subject Property”) in the Township of Muskoka Lakes (“Township”). The Applicant applied to the Township for a Zoning By-law Amendment (“ZBA”) to By-law No. 2014-014, as amended (“ZBL”) to change the zoning of the Subject Property. Planning staff were not supportive of the application and Council denied the application. The Applicant subsequently appealed to the Tribunal pursuant to s. 34(11) of the Planning Act (“Act”).
2This matter was originally set for a second Case Management Conference (“CMC”); however, the Parties notified the Tribunal that a settlement had been reached and requested that the CMC be converted to a one-day settlement hearing.
SUBJECT PROPERTY AND EFFECT OF PROPOSAL
3The Subject Property is approximately 2368.3 square metres (“sq m”) in area, has approximately 30.5 metres (“m”) of frontage on the western part of Lake Muskoka and is accessed from Currie Street.
4The Subject Property currently has an as-built single storey dwelling with an associated as-built sundeck, a two-storey boathouse and two additional separate docks. The dwelling has been enlarged and a new sundeck constructed in the absence of Building Permits. The Applicant proposes to recognize the as-built dwelling and sundeck and to remove a dock and two boatlifts.
5The original dwelling, docks and boathouse have legal non-complying status having been located on the Subject Property for numerous decades.
6The rear of the Subject Property is well-vegetated with mixed conifers, while the vegetated buffer between the dwelling and the shoreline ranges from between 1 - 2 m from the shore.
7If approved, the ZBA (found in Attachment 1) would permit the as-built dwelling and sundeck to remain on the property with reduced front and side yard setbacks and within the required setback from an original road allowance.
LEGISLATIVE FRAMEWORK
8In making a decision on the ZBA before it, the Tribunal must be satisfied that it is consistent with the Provincial Policy Statement (“PPS”) and that it conforms to the applicable Official Plans. In addition, the Tribunal must have regard to the matters of provincial interest in s. 2 of the Act and in general, regard for the related decisions of the municipality, and be satisfied that the proposed ZBA represents good planning and is in the public interest.
PLANNING EVIDENCE
9Planning evidence to support the proposed ZBA was given by Marie Poirier. Ms. Poirier is a Registered Professional Planner, as well as a full member of both the Canadian Institute of Planners and the Ontario Professional Planners Institute. She was qualified by the Tribunal to provide opinion evidence in land use planning.
10The following were received and marked as Exhibits:
Exhibit 1: Affidavit of Service (marked previously at CMC)
Exhibit 2: Minutes of Settlement
Exhibit 3: Affidavit of M. Poirier
11Ms. Poirier provided to the Tribunal detailed contextual and land use planning evidence and rationale to support the proposed settlement. It is her professional opinion that the proposed ZBA is an appropriate amendment to the ZBL and constitutes good planning in the public interest.
12Ms. Poirier opined that the proposal is consistent with the PPS and has considered all matters of provincial interest including s.2 (h.1) which deals with “the accessibility for persons with disabilities to all facilities, services and matters to which this Act applies”. Ms. Poirier highlighted the following policies in s. 2:
1.1.3 - Settlement Areas, stating that the proposal is both efficient and appropriate for the property and is in character with the surrounding residential uses. In addition, as it is on Municipal Services, water quality in Lake Muskoka will be preserved;
2.1 - Natural Heritage Features, stating that the proposal will have no negative impact on the property’s natural features, will have minimal impact upon natural heritage and will not disturb the shoreline or lakebed; and
2.2 - Water, stating that the proposal will have no impact on the quality of water in the Lake.
13The Subject Property is designated as an Urban Area of Bala in the District of Muskoka Official Plan (“DOP”). Ms. Poirier provided an in-depth review and analysis and opined that the proposal maintains the character of the area as defined in the DOP. She reiterated there would be no impact to a septic system as the Subject Property is on Municipal Services. She further explained that as there is no additional height being proposed for the structure, there wouldn’t be any additional visual impact and, as the proposal will improve the visual aesthetics of the area, it was Ms. Poirier’s opinion that the proposal conforms to the general intent of the DOP.
14The Township’s Official Plan (“OP”) designates the Subject Property as part of the Urban Centre of Bala. Ms. Poirier explained that the Subject Property fronts onto a Narrow Waterway (i.e. a waterbody that is less than 150 m across) and the policies of s. C – Urban Centres apply. It was her opinion that the proposal would have zero additional impact on the navigation of the lake. She also highlighted that the proposal would be subject to site plan control thereby ensuring consistency with specific policies including s. C 4.2.4, 6.13 and 11.1.5. She further explained that the proposal is considered a form of intensification and is consistent with the policies of s. C 11.4. In addition, Ms. Poirier confirmed that there would be no adverse impact to the environment or the water quality of Lake Muskoka. She opined that the proposal conforms to the general intent of the OP.
15Ms. Poirier specified that as the structure has legal non-complying status, the following provisions of the ZBL apply:
a. 5.1.4.4 Buildings and Structures;
b. 5.1.6 Front Yard Exemptions; and
c. 5.1.9 Special Provisions: Residential Waterfront (R3, R4).
16In support of the proposed zoning amendment, Ms. Poirier offered numerous justifications in the Planning Justification Report (found in Exhibit 3) including, but not limited to, the following:
a. The proposed dwelling enlargement will not result in excessive lot coverage for the property. The lot coverage is well within the permitted amount;
b. The width of the shoreline structures is proposed to be reduced from the existing width, mitigating the visual impact of the property from the water;
c. The requested reduction in the side yard setback for the deck, dwelling and dock is from a piece of vacant Municipal land known as “Lake Street”. As such the reduced side yard setback will have no impact on neighbours to this side;
d. Reconstruction of the existing cottage will increase value and enjoyability of the property and surrounding properties;
e. The vegetation in the shoreline will be increased/enhanced, improving aesthetics and assisting with mitigating environmental impacts;
f. Although the deck is a new structure and per zoning standards must comply with today’s setbacks requirements, it is modest in size and will have little to no impact visually or environmentally. Further, the deck is proposed to accommodate accessibility issues and to ensure the waterfront can be enjoyed by those who cannot physically traverse to the dock;
g. The proposed re-construction can be supported by the existing municipal services thereby not requiring the site to be additionally disturbed by way of upgrading a septic system. Any additional phosphorus created by the increase in use will be appropriately processed and therefore preventing any adverse impact to the quality of water in Lake Muskoka.
17It is Ms. Poirier’s opinion that the proposed ZBA accurately reflects the nature of the additions, conforms to the overall intent of the PPS and has regard for provincial interests. As stated above, Ms. Poirier testified that the proposal conforms to both DOP and the OP.
18Ms. Poirier concluded that the proposal satisfies all policy and regulatory requirements, provides an opportunity to bring the Subject Property into compliance from a legal non-complying standpoint and has minimal to no impact on the environment, aesthetics, views or neighbours. It was her overall opinion that the proposal represents good planning.
FINDINGS
19The Tribunal accepts the uncontroverted planning evidence and opinions of Ms. Poirier and is satisfied that the ZBA is consistent with the PPS and conforms to the policy intents of the DOP and OP. The ZBA also represents good planning in the public interest, has appropriate regard for matters of provincial interest and warrants approval.
ORDER
20THE TRIBUNAL ORDERS that the Appeal is allowed in part and By-law No. 2014-014, as amended, is hereby further amended as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the Township of Muskoka Lakes to assign a number to this by-law for record keeping purposes.
“S. Bobka”
S. BOBKA
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.
Attachment 1