643855 Ontario Limited v Gravenhurst (Town), 2023 CanLII 106662

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 10, 2023

CASE NO(S).: OLT-23-000508

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 643855 Ontario Ltd.

Subject: By-law No. 2023-39

Description: Proposed Boathouse

Reference Number: ZA 02-2023

Property Address: 211 Wharf Road

Municipality/UT: Gravenhurst/Muskoka

OLT Case No.: OLT-23-000508

OLT Lead Case No.: OLT-23-000508

OLT Case Name: 643855 Ontario Limited v Gravenhurst (Town)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, .S.O. 2021, c. 4.Sched 6

Request by 643855 Ontario Ltd..

Request for Request for a motion to adjourn

Heard: September 29, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

643855 Ontario Limited

Peter A. Gross and

Jessica R. Chen (Student at Law)

Steve Johnstone

Russell D. Cheeseman

Stephanie Fleming

MEMORANDUM OF DECISION DELIVERED BY G. A Croser and J. denyes AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1This decision arises from an appeal filed by 643855 Ontario Limited (“Appellant”) regarding the passage of Zoning By-law No. 2023-29 (“ZBLA”) by the Town of Gravenhurst (“Town”). The proposed ZBLA makes site-specific amendments to the Town’s comprehensive Zoning By-law No. 2010-04 (“ZBL”) to permit the redevelopment of a boathouse located at the municipal address, 211 Wharf Road (“Subject Property”). The Appellant owns an abutting boathouse to the Subject Property.

2The Subject Property is a single storey boathouse of 90 square metres in size and 4.9 metres frontage on Lake Muskoka. The proposed ZBLA would permit the construction of a deck attached to the front of the boathouse which faces Wharf Road. The deck would be created at or around grade and would not be projecting out, onto, or over the waterfront. Specifically, the proposed amendments to the ZBL are:

a. A reduced front yard setback from Wharf Road to 0.6 metres, whereas the ZBL requires 3.0 three. metres; and

b. An increased lot coverage to 62.2 percent, whereas the ZBL maximum is 60.0 percent.

PARTY Status

3Steve Johnstone, as the owner of the Subject Property requested Party status. There was no objection from the Appellant and status was granted to Mr. Johnstone (“Applicant”).

4In advance of the hearing date, the Town advised the Tribunal that it would not be participating or taking a position on the appeal.

MOTION TO ADJOURN

5A written motion was filed by the Appellant on September 12, 2023, requesting that the hearing be adjourned to on or after December 1, 2023. This was not on consent. The Tribunal directed that it would abridge notice for a motion, in writing, with an oral decision to be made at the start of the merit hearing. As an alternative to this approach, the Tribunal proposed an extension for the delivery of expert witness statements or any other documents that will be utilized by the expert witnesses. The Appellant chose to proceed with the Motion. It was clearly stated to Counsel, that should the Motion to Adjourn be dismissed the Tribunal would immediately move onto the hearing on the merits.

6The Appellant’s motion was based on the fact that it had received an incomplete municipal record from the Town, which had been prepared and forwarded to it as part of the appeal process. The Appellant discovered that the Applicants’ planning justification report (“PJR”) prepared by their land use planner, Lanny Dennis was missing from the municipal record. This omission was discovered by the Appellant’s planner who requested the document from the Town on or about August 30, 2023. The Appellant’s position was that this had caused substantial prejudice as their planner had “insufficient time for a fulsome review” of the PJR.

7The Applicant’s Responding materials argued that the Appellant appealed the passing of the ZBLA within the prescribed timeframe for appeal, which ended on May 25, 2023. It was argued that the Appellant had been present at the public meeting when the ZBLA was passed and have only advised mere weeks before the commencement of the hearing that they have not reviewed, requested, or obtained the required evidence to support their appeal.

8The Tribunal ruled that there was no substantial prejudice to the Appellant caused by the delay in receiving the PJR. While expediency is a consideration for the Tribunal, procedural fairness and a fair and just process are also important considerations. In the case at hand, the delay in receiving the PJR was not deemed crucial to the Appellant planner’s preparation of an unbiased and independent report on the merits of the appeal. The Tribunal noted that both the Appellant and Applicant’s planners were able to deliver their expert witness statements in advance of the hearing date.

9The Motion to Adjourn was dismissed.

LEGISLATIVE FRAMEWORK

10The general issues to be adjudicated on ZBLA appeals are whether the proposed amendments:

• Are consistent with the Provincial Policy Statement, 2020 (“PPS”);

• Conform with any applicable provincial plans; and

• Conform with applicable Official Plans

11The Tribunal must also have regard to the matters of provincial interest, and it is incumbent on the Tribunal to have regard for the position taken by the Municipality and the information considered by it, pursuant to s.2.1(1) of the Act. However, this does not also encompass the process by which the Town reached its decision or, contrary to the position taken by the Appellant, the timing of the Town’s planning staff dissemination of information to the relevant council interests prior to its decision-making process.

12A great deal of time at the hearing was spent on future plans the Applicants have for the Subject Property. The proposed addition of a deck to the front of the Subject Property necessitated the ZBLA. The Panel was informed that the Applicants intent to redevelop the existing boathouse situated on the Subject Property. It was acknowledged by both Parties that the Town was aware of this fact prior to reaching its decision on the ZBLA. While the Tribunal was informed that the Applicants intent to build a roof top patio that will be accessed via stairs to be built on the new deck – the legality of that future use was not an issue before the Panel. The ZBLA deals only with front yard setback and lot coverage.

13The Tribunal’s decision in this matter is based solely on the proposed ZBLA. While much time was spent by Counsel and their planners on defining use and slope of a roof, this was an appeal of two very specific ZBLA, (1) an increase to lot coverage and (2) a reduction of the front yard setback. It was on these points and whether they constituted good land use planning that is in the public interest that directed and guided the Panel’s decision.

THE WHARF ROAD BOATHOUSES

14Wharf Road is the location of the original Muskoka Wharf, where the railway ended, and the steamships were moored. When the railways lines were removed, a plan of subdivision was developed and boathouses were constructed in the 1960’s, which provide access to Muskoka Bay and Lake Muskoka. The designation in the OP is ‘Urban Centre Commercial–Wharf Road Boathouses’. The Subject Property is one of the ‘Wharf Road Boathouses’ which forms part of Registered Plan 28 (“Plan 28”) in the Town of Gravenhurst Official Plan (“ Town OP”).

15Plan 28 consists of approximately 57 lots, most of them occupied by single storey attached boathouses or docks, with no municipal sewer or water services. As stated in Town OP, the “existing structures in Plan 28 are used for the storage of boats and marine equipment along with limited recreational use and have been developed as the principal uses on their lots.” These structures are not traditionally accessory boathouses as they occupy a significant portion of their lots and are the principal rather than the accessory use.

PLANNING EVIDENCE

16The Appellant produced one witness, Marie Poirier, who was qualified by the panel to provide expert opinion evidence in the area of land use planning. The Applicant called two witnesses: Mr. Dennis, a professional land use planner and . Adam Ager, the Director of Planning for the Town, the latter was compelled to attend via summons.

17It was Ms. Poirier’s opinion that the proposed deck and stairs at the Subject Property were required solely for accessing the proposed roof top patio, which, in her opinion, is a use that does not currently exist and is illegal. As such, the ZBLA to permit the construction of a deck and stairs to a proposed roof top patio was inconsistent with the policies contained in the PPS, did not conform with the District of Muskoka Official Plan (“District OP”) or the Town OP, and was not in the public interest or represent good land use planning.

18In his professional planning opinion, Mr. Dennis indicated that the request to permit a maximum 112 square feet at-grade deck was consistent with the PPS and conformed with both Official Plans and represented good land use planning.

[Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

19Ms. Poirier cited s. 2 of the Act as being relevant to the Appeal. In particular, s.2(f) of the Act, which requires “the adequate provision (of)....sewage and water services and waste management systems”. In Ms. Poirier’s opinion, if the boathouse was intensified by the addition of a roof-top patio and at-grade deck, then it would follow that there would be increased consumption of food and beverages at the Subject Property. Therefore, sewage and potable water were required. In her view, the absence of Municipal Services to support the change of use, triggered by the addition of a roof top patio and deck, would also pose a risk to the public health and safety, as per s.2(o) of the Act.

20Ms. Poirier also referenced s.2(a) of the Act, being the requirement of the council of a Municipality or the Tribunal to have regard to the protection of natural areas. In Ms. Poirier’s opinion, the construction of the at-grade deck would result in the removal of a natural area feature and function that enhances the Subject Property and as such does not have regard to s.2(a) of the Act. Ms. Poirier confirmed during cross-examination that the natural area feature to which she was referring was the strip of grass located between the front of the boathouse and Wharf Road.

Provincial Policy Statement, 2020

21It was Ms. Poirier’s position that the ZBLA was not consistent with the Provincial Policy Statement. In her opinion, the ZBLA would result in a change of use of the Subject Property, and in the absence of any Municipal Services there is a risk to the environment and public health and safety.

22Mr. Dennis disagreed with Ms. Poirier’s submissions with respect to the potential impacts to the environment and public health and safety. He noted that Part 2 of the PPS addresses protection of the environment and stated that this proposed re-development is in a Settlement Area where such development is promoted and permitted. He stressed that the re-development would be away from the shoreline and as such there would be no adverse impact on Lake Muskoka. Mr. Dennis opined that the proposed deck would not cause any adverse impacts as it would be located at grade and attached to the front of the boathouse and not at or over the shoreline.

23Mr. Dennis also referenced Part 3 of the PPS which addresses health and safety of development from human and man-made features. He opined that the proposed re-development is located on an existing structure and that the deck would be located at the front of the structure which faces Wharf Road. Mr. Dennis pointed out that public washroom facilities were near the Wharf Road Boathouses and that, in his opinion, there were no public health and safety concerns.

Town of Gravenhurst Official Plan

24In Ms. Poirier’s opinion, the proposed ZBLA would not comply with policies in the Town OP owing to the site’s lack of sewage and potable water, and the change in principle use created by the deck and proposed roof top patio. In her view, the Town’s planning staff failed to recognize that the proposed reconstructed boathouse would include a new use–being the roof top patio.

25Ms. Poirier also pointed out that the at-grade deck to be attached to the front of the boathouse would remove most of the greenspace associated with the Subject Property which offended policy C7.7.2 of the Town OP. This policy requires “new development” to be designed in a manner that maintains and enhances the natural character of the shoreline and that natural vegetation should be protected within 15.metres of the shoreline. She also opined that the proposed front yard setback reduction and lot coverage would result in increased parking in the area leading to congestion along Wharf Road. During cross examination, Ms. Poirier did acknowledge that a Municipal parking lot was located just a few minutes’ walk from the Wharf Road Boathouses.

26Ms. Poirier opined that the ZBLA would result in uses not contemplated in C7.7.12 of the Town OP which provides the policies for the Wharf Road Boathouses. Ms. Poirier also referenced C7.7.12.2 of the Town OP which sets out the development objectives policies for the Wharf Road Boathouses. The Planner drew the Tribunal’s attention to subsections (c) and (d) of that policy that recognizes “development is to occur on public water and sewer services” and to “ensure that the development of the property respects the design and environmental protection provisions applicable to the Urban Mixed Use Waterfront Area.” In Ms. Poirier’s opinion, in the absence of Municipal Services, the ZBLA does not conform to the environmental protection provisions nor does the new use conform to the requirement that the redevelopment have access to public water and sewer services.

27One of the Appellant’s grounds for appeal was that the ZBLA should apply to the entire row of boathouses located at Wharf Road. In Mr. Dennis’s opinion, the OP policies with respect to the Wharf Road Boathouses do not preclude redevelopment from occurring individually rather than through a comprehensive plan for the entire area. He directed the Tribunal to C7.7.12.1(e) of the OP as evidence that the redevelopment of the Wharf Road Boathouses is permitted on a site-specific basis through a ZBLA. Mr. Dennis noted that while the proposal for the Subject Property does not intend to connect the site to Municipal services, it did not preclude a future connection.

Town of Gravenhurst Zoning By-law No. 2010 - 04

28The existing zoning for the Wharf Road Boathouses is Commercial Special Purpose Zone Exception 5 (C4-5). This zone permits a maximum lot coverage of 60 percent and requires a minimum front yard setback of 3.0 metres. At present the front yard setback of the Subject Property is 2.7 metres, which is a legal non-conforming amount. As the boathouses are attached to each other the minimum side yard setback is zero metres. The ZBLA proposes a front yard setback of 0.6 metres and an increase in maximum lot coverage to 62 percent, these amendments would facilitate the construction of a 112 square feet deck attached to the front of the Subject Property.

29Ms. Poirier’s planning analysis included her view that the construction of the deck attached to the front of the boathouse would impede access along Wharf Road, and that the parking impacts had not been properly considered by the Town’s planning staff. In her opinion, the deck was not required in order to reconstruct the boathouse and its sole purpose was to provide an area for stairs leading up to the roof of the structure. Furthermore, the Planner was of the view that the at-grade deck would impede access into the neighbouring boathouse.

30During cross-examination, Ms. Poirier acknowledged that there were some Wharf Road Boathouses with decks attached to the front of the property. This was also illustrated in the Appellant’s Book of Documents which contained various pictures of the Subject Property and abutting properties, showing other boathouses with attached at grade decks with chairs and barbeques. The Planner also acknowledged during cross examination that the Applicant was permitted to build an at-grade deck by virtue of the ZBL.

31Ms. Poirier did not disagree with Counsel for the Applicant when it was pointed out that the doors to the boathouses visible in the pictures opened inward and thus would be unaffected by the construction of a deck on the abutting boathouse. Ms. Poirier also confirmed that none of the Wharf Row Boathouses are supported by sanitary services or running water. Ms. Poirier conceded that the ZBL does not contemplate stairs, and that any stairs constructed on the deck would have to meet the Ontario Building Code provisions. With respect to parking along Wharf Road, Ms. Poirier agreed with the Applicant’s Counsel there was a Municipal parking lot within a few minutes’ walk of the Subject Property, that she was not a traffic engineer nor was a traffic engineer retained by the Appellant regarding concerns over parking.

32With respect to the performance standards of the ZBL for the Wharf Road Boathouses, Mr. Dennis testified that the proposed lot coverage of 62 percent was a negligible increase from the ZBL limit of 60 percent. The minimum front yard setback in the ZBL is 3.0 metres and the proposed setback is 0.6 metres, to Mr. Dennis that change is not significant. He also noted that the at-grade deck would be located at the front of the boathouse where there will be no visual impact from the shoreline or any environmental impact.

33Mr. Dennis was cross-examined at length on whether a roof top deck would allow for the “full recreational use” of the boathouse. However, this point is moot as the issue of the roof top deck was not part of the ZBLA. Counsel for the Appellant noted that the ZBL does not indicate that decks are a permitted use, as the ZBL only referenced boathouses, boatports, and docks. Mr. Dennis was questioned if the addition of the at-grade deck was a new use and how did it meet the requirements of the ZBL if it was not a permitted use. Mr. Dennis opined that while the deck was a new use, it was not a new use of the property as the principal use, as a boathouse, was already established.

34With respect to permitted uses of the Wharf Road Boathouses in the ZBL, Counsel for the Appellant directed Mr. Dennis to the language of the ZBL which indicates that, with respect to the Wharf Road Boathouses “the permitted uses shall be limited to the following”, inferring that a deck was not a permitted use. Mr. Dennis explained that in this context “limited” allows for accessory use. In his opinion, the deck was an extension of the boathouse.

35With regard to lack of servicing with this proposed redevelopment, Counsel for the Appellant asked if Mr. Dennis agreed with Ms. Poirier’s evidence that when recreational uses are brought onto a property, such as eating and consuming beverages, that it necessitated the need for servicing. Mr. Dennis answered in the negative and pointed out that boathouses have existed “for years and never have there been municipal services”. Mr. Dennis reiterated that the Wharf Road Boathouses are not a traditional development area and there was no requirement for sanitary services on site.

36Mr. Dennis was then referred to ZBL and the following prohibition that “no boathouse, or part thereof, shall be used for the provision of sleeping or cooking accommodations, a leisure room, a recreation room or other like or similar uses”. Counsel for the Appellant questioned Mr. Dennis if a roof top deck is constructed for a leisure use. The position of the Applicant’s planner was that this section was referring to rooms and that it did not apply to a roof deck or at-grade deck.

Applicant’s Second Witness-Mr. Adam Ager, Director of Planning

37The second witness for the Applicant was Adam Ager, Director of Planning Town of Gravenhurst. Mr. Ager confirmed that he approved the Staff Planning Report sent to the Planning Council for the Corporation of the Town of Gravenhurst and that he presented this application to council and heard all submissions that were made. Mr. Ager indicated that the notice of public meeting respecting this ZBLA were all carried out in accordance with the Act and that the appropriate agencies had been circulated for comment. Mr. Ager concluded that it was the Town’s Planning Staff’s opinion that the application is consistent with the PPS, conforms to the OP, is appropriate and represents good planning.

38Mr. Ager noted that the Applicant indicated to planning staff in a pre-consultation what his plans were for the Subject Property, and that plans for the boathouse were included as part of the Application for a ZBLA package. It was the Town’s Planning Department’s view that the construction of a deck was a permitted use according to the ZBL as it would be attached to the principal building (the boathouse). With respect to the plans for a roof top patio, Mr. Ager indicated that there was nothing in the Town By-law that would prevent a roof top deck. Mr. Ager reiterated that the Application by the Applicants related to minimum front yard setback and maximum lot coverage and did not include anything to do with a roof top deck.

39Mr. Ager confirmed that he did not present to council at the Public Meeting the PJR as it was not part of his standard practice to do so. Counsel for the Appellant referred Mr. Ager to s.10.1 of the Act, which states:

A person or public body that applies for an amendment to a by-law passed under this section or a predecessor of this section, shall provide the prescribed information and material to the council.

40Mr. Ager acknowledged that he must comply with the Act to pass a valid By-law. He indicated the PJR was not presented to council at the public meeting but was provided to the appropriate council departments and members in advance.

TRIBUNAL ANALYSIS AND FINDINGS

41The Wharf Road Boathouses have an interesting history and their own specific planning policy within the Town OP. It is noted in the Town OP at C7.7.12.1(d) that these structures are not traditional accessory boathouses as the structures are the principal use of the lot and are used for the storage of boats, marine equipment and for “limited recreational use.” The fact that none of the Wharf Road Boathouses have Municipal services is acknowledged in the Town OP, and the proximity of public washroom facilities provide the basic facilities that Ms. Poirier deemed necessary.

42The Tribunal acknowledges the Appellant’s point that a re-development objective of the Wharf Road Boathouses found at C7.7.12.2(c) of the Town OP is access to public water and sewer services. However, the Tribunal finds that the creation of an at-grade deck does not, in this case, constitute a new use. The Tribunal notes that at C7.7.12.3 of the Town OP, “redevelopment of lands within Wharf Road for any use beside a one story [sic] boathouse” requires site servicing. The Tribunal finds that the proposal to redevelop the boathouse with the addition of a new at-grade deck does conform with the overall policies of the Town OP with respect to the Wharf Road Boathouses and does not create a danger to public health and safety.

43The Tribunal preferred the evidence of Mr. Dennis that the Application would have no adverse impact on the ecology of the area, given the fact that the proposed at-grade deck is located on the mainland and not the shoreline. The Tribunal also takes note of the fact that no environmental study was required by the Town. While Ms. Poirier opined that the removal of most of the grass from the front of the boathouse was contrary to various planning policy documents, the Tribunal finds that the impact is negligible and that policy C7.7.2 of the Town OP is not applicable to the matter at hand. The present front yard setback is an existing legal non-complying 2.7 metres, which will be reduced to 0.6 metres once the deck is constructed. The percentage increase in lot coverage is also minimal and will not impede parking or access to abutting boathouses.

44The Panel finds that the proposed Zoning By-law Amendment conforms with the District and Town Official Plans and is consistent with the Provincial Policy Statement, 2020. The Tribunal has had regard to the matters of provincial interest set out in s.2 of the Planning Act including the protection of ecological systems and the protection of public health and safety. It also has had regard to the decision of the Town Council and the information considered by it. The Tribunal finds that the proposed Zoning By-law Amendment ZBLA satisfies the applicable statutory tests and represents good planning.

ORDER

45The Tribunal orders that the appeal against Zoning By-law No. 2023–29 of the Town of Gravenhurst is dismissed.

“G.A. Croser”

G. A. Croser

MEMBER

“J. Denyes”

J. DENYES

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.