Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 16, 2023

CASE NO(S).: OLT-22-004252

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

Applicant/Appellant: Muskoka World Peace Consulting Corporation

Subject: Minor Variance

Description: Permit three variances in order to construct a 5-storey mixed-use building

Reference Number: A-100/21

Property Address: 3 Ferndale Road

Municipality/UT: Muskoka Lakes/Muskoka

OLT Case No.: OLT-22-004252

OLT Lead Case No.: OLT-22-004252

OLT Case Name: Muskoka World Peace Consulting Corporation v. Muskoka Lakes (“Township”)

Heard: February 7, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Muskoka World Peace Consulting Corporation (“Applicant/Appellant”)	Leo Longo
Township of Muskoka Lakes (“Township”)	Edward Veldboom

MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE ON FEBRUARY 7, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an appeal filed by Muskoka World Peace Consulting Corporation (the “Applicant/Appellant”) against the decision of the Township of Muskoka Lakes (the “Township”) Committee of Adjustment’s (the “COA”) decision on June 14, 2022, in relation to the refusal of an application for a minor variance to the zoning provisions established by Zoning By-law No. 2014-14, as amended (the “ZBL”) concerning 3 Ferndale Road (the “Subject Property”).

2The proposal seeks to to permit the construction of a five-storey mixed use building with associated stairs and underground parking.

THE REQUESTED VARIANCES

3The Applicant sought three variances from ZBL 2014- 14:

BRIEF CHRONOLOGY OF THE APPLICATION

4Planning staff recommended in their Planning Report dated June 13 2022, that proposed variance A – Maximum Height, does not meet the four tests of a minor variance. In regard to proposed variance B, Interior Side Yard Setback, Planning staff advised the requested variance meets the four tests of a minor variance. In regard to proposed variance C, Setback from a Public Road, Planning staff advised the requested variance meets the four tests of a minor variance.

5On June 13, 2022 the COA denied all three variances as they did not meet the four tests under Section 45(1) of the Planning Act.

HEARING

6Upon the commencement of the hearing, Leo Longo, counsel for the Applicant/Appellant advised of a settlement reached between the AApplicant/Appellant and the Township.

7Muskoka World Peace Consulting Corporation and the Township (collectively, the “Parties”) have agreed to a comprehensive resolution of the Appeal and wish to reflect their agreement in Minutes of Settlement (Exhibit 1) and agree to place the proposed settlement herein before the Tribunal for an issuance of approval.

DESCRIPTION OF SETTLEMENT PROPOSAL

8The Parties agreed to a settlement proposal for variances to permit the construction of a five-storey mixed use building with associated stairs and underground parking:

(i) To permit a mixed use building to be 54 feet in height.

(ii) To permit a set of stairs to be 6 feet from the westerly interior side lot line.

(iii) To permit a mixed use building to be setback 10 feet from the lot line abutting a District Road.

WITNESS

9Evidence in support of the proposed minor variance application was provided by the Applicant/Appellant witness Lanny Dennis who was qualified on consent by the Tribunal to give opinion evidence in the area of Land Use Planning.

10The Tribunal received and marked the following documents as Exhibits to the Hearing:

• Exhibit 1: Minutes of Settlement

• Exhibit 2: Affidavit of Lanny Dennis

• Exhibit 3: Municipal Record

THE SUBJECT PROPERTY

11The Subject Property is located in Port Carling and was accessed via Ferndale Road. The property is a corner lot with frontage on Ferndale Road and Medora Street (Muskoka Road 118). The Subject Property contains a two storey commercial building and a parking lot. The Subject Property is relatively level but is separated from Muskoka Road 118 and the abutting western lot by a sharp rise in terrain. There is limited vegetation on the lot, with some mature trees along the northern and western lot lines.

LEGISLATIVE TESTS

12It must be noted that an appeal to this Tribunal pursuant to s. 45 of the Planning Act (“Act”) is a hearing de novo and the onus of establishing that the four tests under s. 45(1) of the Act are met is incumbent on the Applicant. In addition, in making a decision under the Act with respect to a minor variance, the Tribunal must have regard to matters of provincial interest as set out in s. 2 and to the decision of the approval authority under s. 2.1. The decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”) under s. 3(5) and conform with any provincial plans that are in effect.

13Applications for minor variance must satisfy all four tests set out under s. 45(1) of the Act, namely that the requested variances:

i. maintain the general intent and purpose of the Official Plan (the “OP”);

ii. maintain the general intent and purpose of the ZBL;

iii. are desirable for the appropriate development or use of the land, building or structure, and;

iv. are minor in nature.

PLANNING EVIDENCE

The Provincial Policy Statement (“PPS” 2020)

14Mr. Dennis highlighted the PPS encourages residential intensification in urban areas which have existing municipal services such as water and sewer. According to Mr. Dennis there are no policies within the PPS that the proposed development would offend.

15In Mr. Dennis’s opinion which the Tribunal agrees the proposed development is consistent with the PPS.

Muskoka Official Plan (“MOP”)

16Mr. Dennis submits the MOP is a broad based policy document and relies on details in the Township’s OP. The proposed development will be in the Port Carling Urban Centre which has existing municipal water and sewer.

17According to Mr. Dennis since the upper plan relies on local policy and the proposal maintains the general intent of that plan, it would generally maintain the intent and purpose of the upper tier plan.

18In Mr. Dennis’s opinion which the Tribunal agrees with, the proposed minor variance maintains the general intent and purpose of the MOP.

Township’s Official Plan (“OP”)

19The Subject Property is designated as Port Carling Urban Centre - Core Commercial, Area 1 for water and sewer servicing in the OP. According to Mr. Dennis the proposed development will provide additional housing from within the Port Carling Urban Centre.

20Mr. Dennis submits the OP states that Urban Centres have been constrained by a lack of development opportunities and opportunities for intensification and redevelopment should be encouraged.

21According to Mr. Dennis, the proposed development will complement the existing character by providing additional commercial and residential units in the area. The commercial units could also enhance the tourism economy by providing space for new business.

22Mr. Dennis concludes the proposed development encourages mixed use, an alternative form of housing in the area, and provides commercial space for encouraging businesses to locate in the urban Centre and will enhance the vitality and viability of a core area.

23In Mr. Dennis’s opinion with which the Tribunal agrees, the proposed minor variance maintains the general intent and purpose of the Township’s OP.

Township’s Comprehensive Zoning By-law

24Mr. Dennis advised the proposed development is a permitted use within the C3 zone. The intent of the ZBL in setting minimum yard setbacks is to address matters such as privacy, noise and access. According to Mr. Dennis the proposed side yard setback of 1.8m (6 ft.) to a stairway, will still allow for access around the structure. The portion of the proposed structure adjacent to this side yard is not habitable and therefore noise is not a concern with this development. The proposed setback to Medora Street of 3.0m (10 ft.) is in keeping with the previously approved minor variance A-46/15.

25Mr. Dennis submits the proposed increase in height is minor as, due to the topography of the Subject Property along Medora Street sloping up to the west, the proposed development will maintain the same visual roof line as the existing building on the property to the west.

26In Mr. Dennis’s opinion, which the Tribunal agrees with, the proposed development meets the general intent and purpose of the ZBL.

Desirable for the appropriate use or development of the Property

27Mr. Dennis advised the proposed mixed-use building in the Urban Centre is desirable for the appropriate use of the land. The proposed development is a permitted use of the Subject Property and is appropriately located in an Urban Centre. According to Mr. Dennis the proposed setbacks and increase in height will not result in any negative physical, environmental or visual impacts.

28Mr. Dennis highlighted again, the proposed development is a permitted use, the OP encourages development to be located within the Urban Centre and is keeping with the Community Improvement Plan for the Port Carling area.

29Mr. Dennis concludes that the proposed development will complement the existing character by providing additional commercial and residential units in the area and the commercial units could also enhance the tourism economy by providing space for new businesses.

30In Mr. Dennis’s opinion which the Tribunal agrees with, the development is desirable for the appropriate use of the land.

Minor in Nature

31Mr. Dennis submits the proposed reductions to the required side yard setback, setback to a road and increase in height are minor in impact and scale.

32Mr. Dennis contends, the proposed development is in character with the community and the proposed increase in height is minor given the terrain along the road.

33Mr. Dennis submits the proposed reduction in setbacks are minor for the development of the property and the reduced setback to the road was previously approved and is keeping with the setback from this road.

34In regard to height, Mr. Dennis opines the increase in height is in character with the area. There are terrain considerations related to the height of the building. The topography in front of this building is visually in keeping with the building located to the west. The building to the east is located on the same property, which will provide a visual buffer from the properties to the east.

35In Mr. Dennis’s opinion, with which the Tribunal agrees, the application is minor in nature.

FINDINGS AND DISPOSITION

36In determining this matter, the Tribunal accepts and adopts the uncontroverted planning evidence and expert opinion provided by Mr. Dennis. The Tribunal is persuaded by the evidence that the proposal promotes good land use planning and is in the public interest and is satisfied that the application is consistent with the PPS, conforms to the MOP, maintains the general intent and purpose of the Township OP and Comprehensive ZBL, is desirable for the appropriate development of the land and is minor in nature.

37The Tribunal also acknowledges the cooperation between the Parties to reach a Settlement in these proceedings.

ORDER

38THE TRIBUNAL ORDERS that the Appeal is allowed and the variances to Zoning By-law 2014-14, as amended, are authorized.

“Eric S. Crowe”

ERIC S. CROWE

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.