Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 11, 2022
CASE NO(S).: OLT-21-001863 (Formerly) PL210261
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Aleksander Cukaj
Subject: Minor Variance
Variance from By-law No.: 2016-088
Property Address/Description: 200 Birch Island
Municipality: Town of Bracebridge
Municipal File No.: D13-15/20
OLT Case No.: OLT-21-001863
Legacy Case No.: PL210261
OLT Lead Case No.: OLT-21-001863
Legacy Lead Case No.: PL210261
OLT Case Name: Cukaj v. Bracebridge (Town)
Heard: January 21, 2022 by video hearing
APPEARANCES:
Parties
Counsel
Aleksander Cukaj and Lorena Cukaj (“Appellants”)
Russell Cheeseman
Town of Bracebridge (“Town”)
Harold Elston
MEMORANDUM OF ORAL DECISION DELIVERED BY M. RUSSO ON JANUARY 21, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1On April 4 2020, the Appellants, applied to the Town’s Committee of Adjustment (the “C of A”) for variances to the Town’s Zoning By-law No. 2016-88 (“ZBL”) to facilitate the addition to an existing dwelling and an expansion of an existing deck (the “Proposal”) for the property legally described as Lot 49, RCP 544, Monck South Ward of the Town of Bracebridge, being Part of Birch Island in Lake Muskoka (the “Subject Property”).
2The variances applied for were as follows:
i. relief from section 3.3.3.1 of the Town’s ZBL in order to permit a minimum setback of 15.3 metres from the high-water mark for a dwelling, where 20.0 metres is required, and,
ii. relief from section 3.3.3.1 of the Town’s ZBL in order to permit a minimum setback of 12.2 metres from the high-water mark for a deck attached to a dwelling, where 18.5 metres is required.
3Town planning staff after having reviewed the submissions of the Appellants and their application, recommended deferral of the application, citing additional materials were needed and a staff site visit was recommended.
4After having received the requested materials and having conducted their site visit, Town planning staff recommended approval of the requested variances by the Appellant conditional on:
i. The Appellants submit a vegetation plan to the satisfaction of the Town; and
ii. That the proposed deck be limited to the size location shown on the variance sketch.
5After two deferrals of the matter by the C of A, on March 29, 2021, the Committee granted the approvals sought by Appellants, however, the Committee chose to add and impose an additional condition (which Town planning staff had neither included nor recommended) that read:
“The height of the dwelling be limited to that of the existing structure”.
6On April 16, 2021, counsel on behalf of the Appellants appealed the decision of the C of A to the Local Planning Appeal Tribunal (now the Ontario Land Tribunal) (the “Tribunal”) with the reason being:
They were of the opinion that the C of A erred in its decision in respect of the conditions imposed upon the Decision in respect of both minor variances and that the variances sought by the application satisfies all of the provisions of s. 45(1) of the Act.
7This matter was scheduled to be heard January 21, 2022 before the Tribunal, but on January 5, 2022, counsel for the Town contacted the Tribunal and subsequently followed up with written confirmation on January 12, 2022 that the Parties have settled their issues and are requesting the matter be heard as a Settlement Hearing.
Site Context and Surrounding Area
8The Subject Property is located at 200 Birch Island, an island within the Town.
9The Subject Property is approximately 0.15 hectares (0.42 acres) in area with 30.5 metres (100 feet) of frontage on Lake Muskoka.
10Currently, the Subject Property contains an existing legal non-complying dwelling with decking, as well as a boat port and attached sun deck located in the centre of the shoreline of the lot. A small shoreline deck is located on the southwestern portion of the lot, which encroaches onto the neighbouring property. The Appellants have noted to the Town that this deck is to be removed from the site.
11The shoreline of the Subject Property contains a mixture of open rocky areas, as well as mature coniferous vegetation along with some low-lying vegetation. From the shoreline, the Subject Property steeply slopes upward in elevation towards the current dwelling. At the rear of the existing dwelling (away from shoreline), the lot topology contains a rocky sloped area that is predominately naturalized and would restrict and hinder any additions to the rear of the dwelling.
12The surrounding land uses are primarily waterfront residential in nature. The dwellings nearby are comprised by a mixture of sizes with varied setbacks. The two dwellings to the west contain setbacks of approximately 25 metres (82.0 feet) and 8.5 metres (27.8 feet) to the high-water mark. The two dwellings to the east contain dwellings with setbacks of approximately 15.5 metres (50 feet) and 13.0 metres (42.5 feet) to the high-water mark. The Subject Property high-water mark setback to the existing dwelling is 15.8 metres (51.8 feet) at its closest point.
13The Subject Property is within the Waterfront Area land use designation within the Muskoka Official Plan (the “District OP”) and are designated Waterfront Area Shoreline by the Town Official Plan (the “Town OP”).
14The Subject Property is presently zoned Shoreline Residential One (SR1) by the Town ZBL.
STATUTORY TESTS REQUIRED
15Although settlement has been reached by the Parties, the Tribunal is still tasked to determine if the relief of the ZBL sought and the variances before the Tribunal are consistent with provincial interest as set out in the Provincial Policy Statement, 2020 (the “PPS”) and four tests as set out in s. 45(1) of the Planning Act (“Act”).
16More specifically, the Tribunal must determine if:
i. The variance is consistent with the PPS 2020?
ii. Does the variance meet the intent and purpose of the Town and District Official Plans (the “OPs”)?
iii. Does the variance meet the intent and purpose of the ZBL?
iv. Is the variance appropriate and desirable?
v. Is the variance minor in nature?
LAND-USE PLANNING WITNESS
17On consent of the Parties, Savas Varadas was the lone witness that appeared and provided viva voce testimony at this hearing. Mr. Varadas’ Curriculum Vitae (the “CV”) and Acknowledgement of Expert Duty form were provided in Exhibit 1 for the Tribunal’s consideration.
18With no objection heard and upon review of Mr. Varadas’ CV and Acknowledgement of Expert Duty form, the Tribunal duly affirmed and qualified the witness to provide opinion evidence in land-use planning at these proceedings.
THE HEARING
19Having been provided the following submissions on consent from counsel, the Tribunal marked these submissions as follows:
i. Document Book – Exhibit 1.
ii. Witness Statement of Savas Varadas – Exhibit 2.
iii. Settlement Letter, by H.G Elston on behalf of the Town.
20Mr. Varadas provided a brief overview of the chronology of the Proposal, as well as a description of the variances sought and conditions the Parties have settled on and are before the Tribunal.
[Section 2](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec2_smooth) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)
21Section 2 of the Act provides that approval authorities in carrying out their responsibilities shall have regard to among other matters, matters of provincial interest, and sets out criteria to access the proposal against.
22Mr. Varadas opined that the scope of the proposed development is so specific that matters of provincial interest found in the Act are generally too broad to directly apply to this Proposal. He continued however, to opine that in a broader analysis, no natural heritage features are found on the Subject Property nor impacted by the Proposal. The Proposal is for the expansion of an existing recreational dwelling, which is a permitted use on rural lands, and the proposed additions are aesthetically pleasing.
23He concluded with his opinion that the proposed development has regard to the matters of provincial interest set out by s. 2 of the Act.
The Provincial Policy Statement
24The Subject Property, being outside any Settlement Area of the Town, is considered to be within the Rural Area of Ontario, as defined in the PPS. Furthermore, being located outside any Prime Agricultural Area of Ontario, the Subject Property is deemed to be ‘Rural Lands’ within the policy framework of the PPS.
25Similar to his evidence pertaining to the Act, Mr. Varadas opined the narrow and detailed scope of the Proposal and the broad nature of the policies within the PPS, there is little policy that would directly apply.
26However, in noting the above, Mr. Varadas did provide his overall opinion that the Proposal is consistent with all relevant policies of the PPS.
27He took the Tribunal to s.1.1.1, “healthy, liveable and safe communities” and speaking to this policy and subsections, he opined the Proposal seeks to make better use of rural lands that have additional development potential by implementing the proposed additions. This investment into the property, being of a recreational nature, assists with the financial well being of the Town over the long term. The Subject Property does not appear to contain any natural heritage features and there is no indication of any environmental features that would require protection. There are no health or safety concerns that are related to the proposed setback variances.
28Mr. Varadas also noted s. 1.1.5.2 (b) of the PPS permits “resource-based recreational uses (including recreational dwellings)” on rural lands, which matches the description of the existing land use of the property. He also noted s. 1.1.5.3 of the PPS promotes “recreational, tourism and other economic opportunities” on rural lands, which is consistent with the sector that development such as proposed supports.
29Concluding his evidence pertaining to the PPS, Mr. Varadas noted s. 2.1.6 of the PPS states that “development and site alteration shall not be permitted in fish habitat except in accordance with provincial and federal requirements.” He opined that constraint mapping indicates that the stretch of shoreline abutting the Subject Property is classified as Type 2 Fish Habitat, which is less sensitive to the impacts of development.
The Four Tests and section 45(1) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)
Test One
30Test one of the four tests set out in s. 45(1) of the Act, requires the Proposal and the relief sought by the variances to still conform or more appropriately demonstrate that the intent of the OP is maintained.
31Mr. Varadas provided his opinion that it is important to note that specific to the Subject Property, the Town is governed by an upper-tier municipality with its own OP, being the District of Muskoka (the “District”). Both the upper-tier and local OP’s should be analyzed to ensure that the general intent and purpose of the OP is maintained by the proposed minor variances.
32Mr. Varadas concluded that the Proposal supports the development of a healthy community that does not jeopardize the safety and quality of its cultural and natural environment.
33The Subject Property as noted previously, with its land use designation permits the existing and proposed uses. Mr. Varadas opined the Proposal through his analysis and visual evidence demonstrates compatibility with existing development in the general area in terms of density, lot size, maximum building heights, and minimum setbacks.
34Mr. Varadas advised the Tribunal that the Appellant is agreeable to the revegetation of a portion of the shoreline buffer with native trees and additional vegetation. This would result in bringing the shoreline buffer into conformity with s. B14.2.4 of the OP (save and except permissions granted by the ZBL for legal non-complying building expansions). Together with the removal of a small shoreline deck on the property, a net improvement over the existing situation is achieved with the Proposal.
35Mr. Varadas concluded with his opinion that with the reasons provided above and additional reasons found in his witness statement, it is his professional opinion that the general intent and purpose of both the District OP and the Town OP are maintained and thus the Proposal meets the first test required for minor variances.
Test Two
36Test two requires that the intent and purpose of the Town ZBL is maintained.
37Mr. Varadas opined that with the exception of the proposed shoreline setbacks for the addition, the Proposal meets and/or exceeds the regulations of the ZBL.
38Section 4.8 of the ZBL was cited in Mr. Varadas witness statement, it reads:
a legal non-complying building or structure, except for a barn, may be enlarged, repaired, renovated or reconstructed provided that: i) the enlargement, repair, renovation or reconstruction does not further increase the extent of the non-compliance.…
Mr. Varadas noted, as the dwelling and deck additions are encroaching slightly further into the shoreline setback, a minor variance is required to address this requirement of the ZBL.
39However, Mr. Varadas reminded the Tribunal that an existing shoreline deck is to be removed, and the proposed reconfiguration of the existing deck will result in a net reduction in deck area proposed on the property, despite the proposed addition.
40Mr. Varadas further provided the opinion that given the limited nature of the encroachment and proposed improvements to the shoreline buffer (satisfying s. 3.3.3.2(4) of the ZBL) combined with the low-profile nature of the proposed addition and compliance with the western side-yard setback, the encroachment would not create a significant visual impact.
41Mr. Varadas concluded this section that it was his professional opinion that the proposed development maintains the general intent and purpose of the ZBL.
Test Three
42Test three requires the approval authority (in this case the Tribunal) be satisfied that the Proposal and the relief sought by the variances are appropriate and desirable.
43Mr. Varadas provided a more fulsome analysis in his witness statement, where he ultimately opined that test three is satisfied. His Viva voce testimony being more concise focused more on the relatively modest variances sought and the Proposal not encroaching any further towards the shoreline than currently exists. Mr. Varadas also opined that the Proposal augments the livability of the dwelling and outdoor amenity space for the Appellant with no negative impacts to the adjacent neighbours or the lake in general.
44For the reasons cited above and expanded upon in his witness statement, Mr. Varadas opined, in his professional opinion the Proposal and the variances sought are desirable and the appropriate development, use of the land, and built form.
Test Four
45Test four requires the Tribunal be satisfied that the Proposal and the relief sought by the variances are minor in nature.
46Mr. Varadas opined that the test of whether or not a minor variance is minor or not is rooted in if the impacts of the variance are minor, rather than any numerical analysis.
47Numerically, Mr. Varadas was of the opinion that variances sought being 4.7 metres and 6.3 metres in variation between ZBL requirements and those proposed (both cited previously in this Decision) are indeed quantitatively minor.
48Expanding on the more subjective aspect of impact, Mr. Varadas provided the opinion that given the central nature of the proposed additions, compliance with side yard setbacks, and mature vegetation existing (and proposed) in those setbacks, the impacts of the additions and decking proposed will be insignificant, and there are no expected negative impacts to neighboring property owners, their views to the lake, or the enjoyment of the property.
49Mr. Varadas concluded this section opining that as indicated the proposed use is permitted, the intent of all relevant policies and by-laws have been met and with the reasons cited above, thus, it was his professional opinion that the proposed minor variances meet the fourth test and are minor in nature.
50Mr. Varadas summarized for the Tribunal that it was his professional opinion that provincial interests have been considered and met by the Proposal. The Proposal further meets the four tests of s. 45(1) of the Act, represents good planning and for all the above reasons plus those provided in his witness statement, he supports the approval of the variances before the Tribunal with the conditions provided.
ANALYSIS AND DISPOSITION
51The Tribunal is satisfied and accepts the uncontroverted evidence of Mr. Varadas. The Tribunal has also considered the evidence for this hearing in its entirety and has put weight on the recommendations of Town planning staff to the C of A, to approve the minor variances without the condition of height (which both Town planning staff had indicated and Mr. Varadas provided to the Tribunal is not a variance sought by the Tribunal with the height proposed meeting ZBL requirements).
52The Tribunal finds that the Proposal and variances sought are consistent with relevant policies of the PPS.
53The Tribunal finds that the Proposal and variances sought satisfy the four tests set out in s. 45(1) of the Act.
54The evidence of Mr. Varadas satisfied the Tribunal that no negative impacts are created, and the character of the area and shoreline is maintained with the variances as proposed.
55Lastly, the conditions of approval proposed have been reviewed by the Tribunal. The Tribunal finds them to be appropriate and helpful in both reaching settlement between the Parties, but more importantly conforming with policy and ensuring the impacts of overview and buffering are addressed, as well as concerns both of current and proposed vegetation are dealt with in a prudent and reasonable manner.
ORDER
56THE TRIBUNAL ORDERS that the appeal is allowed and variances to By-law No. 2016-88 are authorized subject to the conditions set out in Attachment 1 to this Order.
57THE TRIBUNAL ORDERS that the authorization of the variances, is to be in substantial conformity to Attachment 2 as appended to this Order.
58AND THE TRIBUNAL FURTHER ORDERS that it may be spoken to in the event that there are any issues arising from the implementation of this Order, and/or the clearance of the conditions.
59The Tribunal has been advised by counsel for both Parties that no costs will be sought by either party in regard to this proceeding.
“M. Russo”
M. russo
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.
OLT-21-001863 – Attachment 1
- The Tribunal orders that the appeal is allowed and the following variances are authorized for the Subject Property:
i. relief from Section 3.3.3.1 of the Town of Bracebridge Zoning By-law 2016-088, in order to permit a minimum setback of 15.3 metres from the high-water mark for a dwelling, where 20.0 metres is required, and,
ii. relief from Section 3.3.3.1 of the Town of Bracebridge Zoning By-law 2016-088, in order to permit a minimum setback of 12.2 metres from the high-water mark for a deck attached to a dwelling, where 18.5 metres is required.
- Provisional authorization to the above variances has been granted, subject to the Tribunal being advised that the following conditions, have cleared or have been fulfilled:
i. That the Appellant submits a vegetation plan to the satisfaction of the Town.
ii. That the proposed dwelling addition and deck be substantial conformity to the sketch appended as Attachment 2 to this decision.
OLT-21-001863 – Attachment 2