Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 9, 2023

CASE NO(S).: OLT-22-004145

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Adam Ochshorn

Subject: Application to amend the Zoning By-law – Refusal of application

Description: To permit the creation of a new vacant lot, a right-of-way, and providing an exemption from the minimum lot requirements and side yard setback requirements for shoreline structures

Reference Number: ZBA-73/21

Property Address: 1805 Peninsula Road

Municipality/UT: Muskoka Lakes/Muskoka

OLT Case No: OLT-22-004145

OLT Lead Case No: OLT-22-004145

OLT Case Name: Ochshorn v. Muskoka Lakes (Township)

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Adam Ochshorn

Subject: Consent - refused by Approval Authority

Description: To permit the creation of a new vacant lot, a right-of-way, and providing an exemption from the minimum lot requirements and side yard setback requirements for shoreline structures

Reference Number: B/142/21/ML

Property Address: 1805 Peninsula Road

Municipality/UT: Muskoka Lakes/Muskoka

OLT Case No: OLT-22-004146

OLT Lead Case No: OLT-22-004145

Heard: November 24, 2022, by video hearing

APPEARANCES:

Parties	Counsel
Adam Ochshorn	David Bronskill
Township of Muskoka Lakes	Edward Veldboom

MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON NOVEMBER 24, 2022, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The parties have reached a settlement in the matter of appeals by Adam Ochshorn (“Applicant/Appellant”) from the refusal of the Township of Muskoka Lakes (the “Township”) for the Zoning By-law Amendment (“ZBA”) application to amend Zoning By-law No. 2014-14 (as amended) and the application for Consent to Sever (“Consent”) in respect of lands described as Part of Lot 15, Concession 12, (former) Township of Medora, municipally known as 1805 Peninsula Road Unit 375 (the “Subject Lands/subject property”).

2The effect of the proposed ZBA and the Consent is to create one new vacant lot.

3On June 15, 2022, the applications were denied and on June 23, 2022, the Applicant received notice of refusal of both applications from the Township’s Council.

4By a minutes of settlement dated November 15, 2022 (“Settlement Proposal” marked as Exhibit 1), a settlement has been reached between the Township and the Applicant, which involves an increase to the required side yard setback that applies to the construction of a boathouse on the severed lands to be a minimum of 60 feet from the westerly side lot line projection of the Severed Lot, and to impose a minimum front yard setback of 80 feet on the Severed Lot as recommended in the Staff Report.

5The parties jointly requested the appeals be allowed in part, the revised ZBA be approved, and the provisional consent be granted subject to conditions.

SITE

6The Subject Lands have approximately 632 feet of frontage on the Joseph River and are approximately 6.96 acres in lot area. Access to the Subject Lands is via a right-of-way over a private roadway known as 1805 Peninsula Road.

7The subject property is developed with an existing dwelling, a shed, and a two- storey boathouse with an associated dock. It is generally well vegetated and slopes moderately to the water along the shoreline. The area surrounding the subject property consists of predominantly waterfront residential land uses.

8The Subject Lands are designated Waterfront Area by the District Municipality of Muskoka Official Plan (“MOP”); designated Waterfront in the Township Official Plan (“TOP”); and are presently zoned Waterfront Residential Four (WR4) by the Township Zoning By-law No. 2014-14 (“ZBL”).

9The purpose of the applications is to create one Severed Lot with approximately 203.7 feet of frontage on the Joseph River and 2.6 acres of lot area. The Retained Lot would have approximately 428.5 feet of frontage on the Joseph River and 4.36 acres of lot area. A 20-foot-wide right-of-way is also proposed over the Retained Lot in favour of the Severed Lot.

10The location of the existing two-storey boathouse on the Subject Lands somewhat dictates where a dividing line can be drawn between the Severed Lot and Retained Lot, as it is centrally located along the property’s shoreline frontage. As a result of this, the Severed Lot is proposed to have its western extent situated at the closest point to the existing boathouse as reasonably possible, which results in setback and frontage variations to the ZBL.

PLANNING EVIDENCE

11Savas Varadas, the Applicant’s planner, was qualified by the Tribunal to give expert opinion evidence in land use planning matters. He is an experienced Professional Planner, a Member of the Canadian Institute of Planners and of the Ontario Professional Planners Institute.

12Mr. Varadas provided an analysis of the policy and regulatory framework. He concluded that the proposed applications represent good land use planning, and that the settlement proposal should be approved.

ANALYSIS/FINDINGS

Provincial Policy Statement

13The Subject Lands are outside any settlement area of the Township and are considered to be within the Rural Area of Ontario as defined in the Provincial Policy Statement, 2020 (“PPS”). The Subject Lands are deemed to be ‘Rural Lands’ within the policy framework of the PPS.

14Mr. Varadas referred to Section 1.1.5.2 of the PPS which states that permitted uses on rural lands include “residential development, including lot creation, that is locally appropriate” and “resource-based recreational uses (including recreational dwellings)”, which matches the existing land use and proposed development. The Tribunal finds that the lot creation resulting in the proposed lot sizes for the retained and severed lots are in keeping with the PPS and municipal policies. These lots will be locally appropriate and reasonably match the existing residential/recreational character of the surrounding area.

15Waterfront residential development is commonly found in Muskoka Lakes and throughout Muskoka. The Severed Lot is accessed from an existing private road. There is no expansion of services required as existing private utilities are available to service the severed lot, thus the proposal is promoted by the PPS where the development is compatible with and sustainable with the rural service and infrastructure available (PPS s.1.1.5.4 and s.1.1.5.5).

16Section 2.1.5 of the PPS states that “development and site alteration shall not be permitted in: d) significant wildlife habitat… unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions.” Section 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.” Section 2.1.8 of the PPS further states that “development and site alteration shall not be permitted on adjacent lands to the natural heritage features and areas identified in policies 2.1.4, 2.1.5, and 2.1.6 unless the ecological function of the adjacent lands has been evaluated and it has been demonstrated that there will be no negative impacts on the natural features or on their ecological functions.”

17The Applicant had engaged FRi Ecological Services to carry out two studies and assessments: one, for fish habitat and deer wintering; the other for species at risk (collectively “FRi Assessments”). The studies found two ecosites to be present on the proposed Severed Lot including “the presence of a small conifer stand on the proposed severed lands that has some potential to provide shelter and snow interception for deer through the winter months.” The FRi Assessments recommend that development be directed outside of the conifer ecosite within 20 metres of the shoreline and that removal of trees be limited. The FRi Assessments further state that “none of the potential fish habitat observed adjacent to the property could be considered Type 1 fish habitat as per the definition of the Ministry of Natural Resources and Forestry (“MNRF”) and conclude that “where recommended mitigation measures as outlined in this report are applied, there will be no negative impacts to fish habitat nor to deer populations and the function of deer habitat currently found on the property as a result of the proposed severance.”

18The FRi Assessments found four endangered species that have the potential to occur within the Subject Lands (Blanding’s Turtle, Chimney Swift, Little Brown Myotis and Tri-colored Bat) and provided recommendations for the protection of those species and their habitat, which include specific timing windows for vegetation clearing to occur. The FRi Assessments concluded that “where mitigation measures as outlined in this report are applied as directed, the proposed lot is capable of accommodating development such as a dwelling and associated infrastructure with no impacts to special concern, threatened, or endangered species at risk and their habitat.”

19The recommendations of the FRi Assessments will be implemented through an agreement between the Applicant and the Township under Section 51(26) of the Planning Act.

20The Tribunal finds that there are no demonstrable negative impacts associated with the proposed development or any threat to species at risk or their habitats, since the studies and assessments conducted do provide for necessary mitigation measures to be implemented and incorporated in an agreement. The Tribunal is satisfied that the proposed development is consistent with the PPS.

MOP

21The Official Plan of the District Municipality of Muskoka (the “MOP”) is the upper-tier policy document for the District of Muskoka to which the Official Plans of all lower-tier municipalities must conform.

22Schedule ‘A’ of the MOP designates the Subject Lands to be within the Waterfront Area land use designation category.

23The Tribunal finds that the proposal includes low density, single unit, recreational dwellings within the waterfront area and is a linear shorefront development (MOP s. J4.3 a); s. J4.4.2 a) and s. J4.4.2 b)).

24The proposed linear shoreline lot configuration and low-density residential use of the Severed Lot conform to permitted uses of the Waterfront Area designation.

25The Tribunal concurs with Mr. Varadas that the proposed development generally has a physical character similar to or compatible with existing development in terms of density, lot sizes, maximum building heights, and minimum setbacks” (s. J4.3 i)).

26The proposed frontage and area of both the Severed Lot and the Retained Lot exceed the minimum requirements of s. J4.4.2 c) (minimum lot area of 0.4 hectares and minimum water frontage of 60 metres). The shoreline abutting the Severed Lot was evaluated with no constraints identified that would prohibit construction of a dock. A building envelope for shoreline structures has been defined, illustrating that there is sufficient area to site a dock or boathouse while maintaining adequate separation from adjacent lands and meeting the minimum required side yard setbacks for shoreline structures. The Severed Lot is of sufficient size to accommodate a dwelling and accessory structures while meeting setbacks from lot lines and permitted lot coverage, which are important factors to ensure compatibility between new and existing development. Therefore, no environmental constraints or compatibility issues have been identified that would necessitate larger lot areas or frontages than proposed. (s. J4.4.2 c))

27Mr. Varadas stated that Schedule C2 of the MOP indicates that the Subject Lands are within a broad area of Stratum 2 deer wintering habitat.

28Section C1.4.4.2 of the MOP states that “development or site alteration in Stratum 2 habitat should conserve valuable conifer thermal cover, feeding areas and movement corridors. Should habitat be identified, the location of development shall avoid the habitat and/or mitigation measures proposed that result in no negative impacts to the features or their functions.”

29The FRi Assessments found that a stand of coniferous trees along the shoreline supports deer wintering habitat and recommends that development be directed outside of this conifer cover and that the existing conifer canopy be maintained approximately 20 metres deep from the shoreline. The FRi Assessments state that no negative impacts to deer habitat are anticipated with the implementation of this recommendation.

30Section C1.4.5 d) of the MOP states that “Type 1 habitats require the highest level of protection because of their specific sensitivity and importance to local fish populations. Type 2 habitats are less susceptible to development impacts.”

31The FRi Assessments found that the shoreline adjacent to the Severed Lot is more appropriately classified as Type 2 fish habitat. As this is not considered a critical habitat, there are no restrictions that would prohibit development of shoreline structures on the Severed Lot. However, prior to proceeding, permits and/or authorizations may be required by MNRF (Public Lands Act/Lakes & Rivers Improvement Act), Fisheries & Oceans Canada (formal Request for Review) depending on the final design and location of any shoreline structures or docks.

32As the recommendations of the FRi Assessments will be implemented through conditions of Consent approval, the Tribunal agrees with Mr. Varadas that the proposal conforms to the above policies of the MOP.

33The Subject Lands are generally well vegetated throughout and are in a natural state with a substantial buffer of trees along the shoreline of the Severed Lot. As these trees provide potential habitat for wintering deer, a shoreline buffer of approximately 20 metres in depth will be maintained, (complying with the minimum 15 metres depth in C2.6.4.2 c)) which will assist in blending built form into the natural environment on the Severed Lot. Given the coniferous vegetation already existing along the shoreline frontage of the Severed Lot, a suitable shoreline buffer will be maintained post-development.

34Lot creation is required to meet the standard protection policies under s. C2.6.5 of the MOP. These policies require development control techniques to address matters such as the appropriate location of buildings and sewage systems; retention of a natural vegetative buffer along the shoreline; and implementation of stormwater management and construction mitigation techniques. As future development on the Severed Lot is presently subject to site plan control, measures to address the protection of water quality can and will be addressed through the approval process. The Tribunal finds that the proposed development conforms to the MOP.

TOP

35The Subject Lands are within the Waterfront designation according to Schedule “A” of the Township Official Plan (TOP).

36Residential uses limited to single detached dwellings, as well as accessory structures and buildings incidental to such uses, are permitted in the Waterfront designation (TOP s. B5.7). Therefore, the existing and proposed land use is permitted on the Severed and Retained Lots.

37The proposed frontage of the Severed and Retained Lots has been set based on the location of the existing boathouse on the Subject Lands, which offers very little flexibility to increase the frontage of the Severed Lot beyond the 200 feet proposed.

38It is Mr. Varadas’ opinion that the proposed Severed and Retained lots are of sufficient dimension and size to accommodate the proposed residential uses of the lands. (TOP s. B5.8).

39The entirety of the Severed Lot is not considered to be deer wintering habitat, and the recommendations of the FRi Assessments indicate that development can be accommodated outside the ecosites that offer some deer wintering habitat. Therefore, as development is not proposed within those areas, the requirement for 300 feet of frontage to satisfy TOP s. B7.5 is not applicable to the Subject Lands.

40TOP s. B5.11 states that “in recognition of the character of Lake Joseph, and in accordance with Sections B.6.17 and B.6.18, the following shall constitute minimum lot requirements on Lake Joseph, unless otherwise specified: a) the minimum lot area of 0.8 hectares (2 acres); and b) the minimum water frontage of 90 metres (300 feet).”

41Section B8.10 of the Official Plan states that “the following shall constitute minimum water frontage requirements for lot creation: a) a water frontage of 90 metres (300 feet) in areas of narrowness < 150 metres (500 feet) and > 75 metres (250 feet) across; and b) a water frontage of 120 metres (400 feet) in areas of narrowness < 75 metres (250 feet) across.”

42Mr. Varadas opined that from a practical perspective, given how little of the river channel is less than 250 feet in width, it is reasonable to approach this matter with the notion that somewhere between 300 and 400 feet is acceptable in this case.

43The Subject Lands, with 632 feet of frontage, have enough frontage to accommodate two lots with average frontages of about 316 feet each, thus dividing the land is in conformity with, and maintaining the intent behind s. B8.10.

44The average frontage across the Severed Lot (203 feet) and the Retained Lot (428 feet) is still over 300 feet, at 316 feet. Therefore, the same density of development that would be permitted with lots of 333 feet and 300 feet is achieved with lots of 428 feet and 203 feet.

45The Original Road Allowance that is located to the immediate east of the Severed Lot contains a frontage of 99 feet. This additional 99 feet would visually appear to be part of the frontage of the Severed Lot, giving the Severed Lot the appearance of being 302 feet in frontage, and thus in conformity with TOP s. B5.11.

46For the reasons stated above, it is Mr. Varadas’ opinion that the proposed Severed and Retained Lots has regard to the intent behind, and is in conformity with, the frontage policies found in s. B5.11, B7.5, and B8.10 of TOP.

47TOP s. B5.4 states that “where development occurs in the Waterfront, it should complement the natural and built form and should enhance and protect those qualities that contribute to character.”

48A review of aerial mapping indicates that lot sizes in the surrounding area are varied in size, with instances of larger lots to the south and smaller lots (less than 2 acres in area and approximately 120 to 150 feet frontages) northeast of the Subject Lands on the shoreline opposite the Severed Lot.

49The proposed lot sizes are similar to recently created lots to the east. The adjacent unopened road allowance gives the Severed Lot the appearance of a 300-foot shoreline frontage. In addition, ample vegetation exists throughout the Severed Lot that will be retained to mitigate the visual impact of the future development from adjacent lands and provide separation between uses. Therefore, the proposed lot creation will maintain the character of Waterfront residential development as envisioned in s. B5.4 of TOP and has regard to adjacent plans of subdivision (or consents).

50As the Severed Lot is approximately 500 feet deep and 2.6 acres in lot area there is sufficient area to site a sewage system that meets the minimum required 30-metre setback from the shoreline.

51While the side yard setbacks for shoreline structures on the Retained Lot have been reduced, the side yard setback on the Severed Lot has been increased to compensate. By increasing the minimum required setback to 60 feet from the shared lot line, any future shoreline structures will be located a minimum of 75 feet from the existing two-storey boathouse on the Retained Lot.

52The FRi Assessments found that the shoreline of the Severed Lot contains a conifer stand that is potential deer wintering habitat. The FRi Assessments recommend that “development be directed outside of the conifer cover (G013Tt ecosite) on the subject land and any removal of mature hemlock growth be limited to hazardous, dead, or dying trees. Where retention of the existing conifer canopy remains intact (maximum extent from shoreline ≤20m), the function of this area to support deer populations will be maintained and no negative impacts to deer habitat are anticipated.” The Tribunal finds that this report demonstrates the proposed development conforms to s. B7.4 of the TOP that there will be no negative impacts on the natural features or the ecological functions.

53The Subject Lands are well vegetated with mature trees throughout, and an undisturbed shoreline buffer exists on the Severed Lot. The Tribunal finds that as the FRi Assessments recommend the retention of the existing vegetation on the Severed Lot to a depth of approximately 20 metres from the shoreline, the proposed development conforms to the policy in s. B6.5 of the TOP for the preservation of shoreline buffers in a natural state.

54Through conditions of approval, appropriate development techniques will be implemented to ensure the shoreline buffer is maintained. The recommendations of the FRi Assessments will be implemented through execution of a Planning Act (“Act”) s. 51(26) agreement between the Applicant and the Township. The Tribunal finds that the proposed development is in conformity with the TOP.

ZBL

55The Subject Lands are presently zoned Waterfront Residential Four (WR4-R) by the Township Zoning By-law No. 2014-14 (the ZBL).

56The proposal would modify the existing zoning on the Subject Lands to add an exemption to the WR4 zone, as outlined on the Draft Zoning By-law Amendment (“Draft ZBA”).

57Table 4.1.3 of the ZBL does not provide minimum requirements for new lot creation, stating instead that the minimum lot frontage and area of lots in the WR4 zone are “as existing on the date the By-law was passed”. As such, an exemption via ZBA is required to recognize the new area and frontage of both the Severed and Retained Lots.

58Based on the average frontage achieved between the Severed and Retained Lots, combined with the average width of the river in front of the Subject Lands being 292 feet, the proposed frontage of 200 feet for the Severed Lot and 428 feet for the Retained Lot has regard to and is in conformity with the TOP.

59The proposed exemptions to the side-yard setback requirements on the Retained Lot are compensated for on the Severed Lot with an increased setback requirement, which results in enough distance between the existing shoreline structure on the Retained Lot and a future shoreline structure on the Severed lot to allow for the ingress and egress of boats to dock spaces and boathouse slips, while maintaining reasonable views and separation for privacy between neighbouring properties. As such the Tribunal finds that conformity with the TOP is achieved and the intent of the ZBL is thus maintained.

CONCLUSION

60The Tribunal accepts the sole uncontroverted opinion and planning evidence of Mr. Varadas in support of the ZBA and Consent (severance) of the subject property.

61The Tribunal is satisfied that the proposed ZBA and Consent facilitate orderly residential development on lands within a rural area that accommodates the recreational dwellings housing type and form. The proposal makes efficient use of the Subject Lands, taps into existing available private water and sewage system on the Subject Lands, while ensuring that the natural habitats and particular identified species and species at risk that need protection on the subject property are addressed and protected. The proposed development will not have negative impacts on surrounding properties as the natural vegetative buffers are maintained. The recommended mitigation measures will be implemented through a s. 51(26) agreement. The proposal will be compatible with the existing shoreline waterfront character of the area in terms of lot sizes, dimensions, recreational dwellings and structures.

62The Tribunal finds that the proposed development is consistent with the Province’s land use planning policy directives. The proposed development has regard for matters of provincial interests, in particular the Act s. 2 (a) the protection of ecological systems, including natural areas, features and functions, and s. 2(p) the appropriate location of growth and development. The proposal as implemented by the ZBA and Consent represents good land use planning.

63The proposed development is consistent with the PPS, and conforms to the MOP and the TOP. The Tribunal is satisfied that the relevant s. 51(24) criteria of the Act are met. Pursuant to s. 51(25) of the Act, the conditions proposed for the severance are reasonable and appropriately site specific.

ORDER

64The Tribunal orders that the appeals are allowed in part, and:

a) Zoning By-law No. 2014 -14 (as amended) is amended in the manner set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk to assign a number to this by-law for record keeping purposes.

b) The Provisional consent is to be given subject to the conditions set out in Attachment 2 to this Order.

“T.F. Ng”

T.F. NG

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

ATTACHMENT 2