Grundy v. Muskoka Lakes (Township), 2023 CanLII 26236

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

March 27, 2023

CASE NO(S).:

OLT-22-004339

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

Applicants/Appellants:

Eric and Valerie Grundy

Subject:

Minor Variance

Description:

To construct a dock addition

Reference Number:

A-17/22

Property Address:

1074 Woodington Road, Unit #1

Municipality/UT:

Township of Muskoka Lakes/

OLT Case No.:

OLT-22-004339

OLT Lead Case No.:

OLT-22-004339

OLT Case Name:

Grundy v. Muskoka Lakes (Township)

Heard:

January 27, 2023 by video hearing

APPEARANCES:

Parties

Counsel/Representative*

Eric and Valerie Grundy

Peter Gross and Jessica Chen

Carol Anderson-Bagot

Self-represented*

DECISION DELIVERED BY C.I. MOLINARI AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an appeal under s. 45(12) of the Planning Act, R.S.O. 1990 c.P.13 (“Act”) from a decision of the Township of Muskoka Lakes (“Township”) Committee of Adjustment (“CofA”) denying a minor variance application (“Application”) filed by Eric and Valerie Grundy (“Appellant”) respecting their property located at 1-1074 Woodington Road (“Subject Property”).

2The Subject Property is located on the east side of Woodington Road on the shore of Lake Rosseau in a rural area of the Township characterized by similarly developed lots both to the north and south of the Subject Property.

3The Subject Property is a pie shaped lot with approximately 66.5 feet (“ft”) of lake frontage and an area of 67,238 square feet. It is a legal non-conforming lot with a deficient lot frontage and side yard setbacks from the current dock. It is a well-vegetated property with a gradual slope to the shoreline and is currently developed for seasonal residential use with a dwelling, a cabin, a shed and a legal non-conforming dock.

4The Appellant is proposing to construct an addition to the dock (“Dock Addition”) to extend it further into the lake, triggering the need for a minor variance to the Township of Muskoka Lakes Zoning By-law No. 2014-14 (“ZBL”).

LEGISLATIVE FRAMEWORK

5An appeal pursuant to s. 45 of the Act is a hearing de novo. In this case, the Appellant bears the onus of demonstrating that the four tests as set out in s. 45(1) of the Act have been met. These tests are summarized as follows:

• Do the variances maintain the general intent and purpose of the Official Plan?

• Do the variances maintain the general intent and purpose of the Zoning By-law?

• Are the variances desirable for the appropriate development or use of the land, building or structure? and

• Are the variances minor in nature?

6In carrying out its responsibilities under the Act, the Tribunal must have regard to matters of provincial interest as set out in s. 2 of the Act, and, in the course of making its decision related to a planning matter, the Tribunal must have regard to the decision of the Township and the information it considered in accordance with s. 2.1(1) of the Act.

7In addition, s. 3(5) of the Act requires decisions of the Tribunal affecting planning matters to be consistent with policy statements issued by the Province and to conform with provincial plans. In this case, the Tribunal’s decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”). There are no provincial plans affecting the Subject Property.

APPLICATION FOR MINOR VARIANCE

8To facilitate the proposed Dock Addition, the Appellant filed the Application requesting relief from the ZBL provisions as follows:

• To permit a minimum side yard setback of a dock of 6 ft 6 inches (6.5 ft) to the projected north lot line whereas a minimum of 15 ft is required, and

• To permit a minimum side yard setback of a dock of 9 ft 9 inches (9.75 ft) to the projected south lot line whereas a minimum of 21.5 ft is required.

9Despite differing descriptions of the variances requested between the Application, the Planning Justification Report authored by Marie Poirier Planning & Associates and submitted with the Application, the Notice of Public Hearing, the Township Staff Report (“Staff Report”) and the Notice of Decision, it was confirmed through the submissions and through questions from the Tribunal that the variances requested are limited to the two listed above but with a slight modification to the side yard setback to the north to reflect a precise measurement of 6 ft 5 ¾ inches. No variance was requested nor sought for the deficient lot frontage.

10The variance to the side yard setback to the north lot line is to recognize the non-conforming setback of the existing dock. The variance to the side yard setback to the south lot line is to allow for the proposed Dock Addition which would further reduce the legal non-conforming side yard setback due to the configuration of the proposed Dock Addition, the side lot lines converging toward the shoreline and the method for determining side lot lines in the ZBL by projecting the lot lines into the lake.

11The Application was heard by the CofA on June 13, 2022, supported by a recommendation from the Township’s Planning Department that the Application be approved. No conditions to the approval were recommended. Two neighbours, including Carol Anderson Bagot who lives directly to the south of the Subject Property, attended the CofA hearing in opposition to the Application. A motion to approve the Application was defeated resulting in denial of the Application.

PRELIMINARY MATTERS

12Counsel to the Appellant raised two preliminary matters to be addressed ahead of the witness testimony. The first related to the section of the Act the Application should come under and the second related to an amendment to the Application.

Section 45(1) vs 45(2) of the Planning Act

13Mr. Gross submitted for the Tribunal’s consideration that the Application could come under either s. 45(1) or (2) of the Act. The Application was submitted and considered by the CofA under s. 45(1), but it was Mr. Gross’ submission that, since the dock enjoyed legal non-conforming status, it could proceed under s. 45(2) which allows for the extension of a legal non-conforming use with certain tests to be applied in the determination of the Application.

14It was the Tribunal’s finding that s. 45(2) is only applicable in instances where there is a change to a legal non-conforming use that is otherwise prohibited in a ZBL. The Tribunal finds that, as the dock is a permitted accessory use and the non-conformity is in relation to the setbacks of the dock, the Application properly comes under s. 45(1) of the Act and the four tests as set out in paragraph [5] above apply.

Amendment to the Application

15Mr. Gross also brought to the attention of the Tribunal the need to amend the Application under s. 45(18.1) of the Act due to a discrepancy of the dimension of the lot frontage along the shoreline. The Application was submitted and evaluated based on a lot frontage of 72 ft whereas the actual frontage is 66 ft. This correction affected the calculation of the cumulative width of shoreline structures which is allowed to a maximum of 25% of the water frontage of a lot. With the correction of the lot frontage, it was therefore required to shorten the length of the dock (which is at an angle to the shoreline), in order to reduce the shoreline structure width of the proposed extended dock to 16.5 ft, which represents 25% of the water frontage thereby meeting the ZBL maximum cumulative width of shoreline structures.

16It was Mr. Gross’ submission that the amendment to the Application was minor and that no further notice should be required as per s. 45(18.1.1) of the Act.

17Pursuant to s. 45(18.1) and s. 45(18.1.1) of the Act, the Tribunal accepted the amendment to the Application, found it to be a minor amendment and that no further notice is required.

EVIDENCE AND SUBMISSIONS

18Neither the Township nor the District of Muskoka participated in the hearing although the Staff Report recommended approval of the Application.

19The Appellant was represented by counsel who called Marie Poirier, Principal of Marie Poirier Planning & Associates Inc. and planning consultant to the owner. Ms. Poirier was affirmed and qualified without objection to provide opinion evidence in the area of land use planning.

20Ms. Bagot was affirmed and granted party status without objection at the outset of the hearing and provided non-expert, non-opinion witness testimony. Ms. Bagot did not call any witnesses to provide opinion evidence.

Planning Evidence – Appellant

21Ms. Poirier took the Tribunal through her witness statement and provided the Tribunal with an understanding of the site, the issues related to the proposed Dock Addition, the position of the Township Planning Department and the resulting denial of the Application by the CofA. Ms. Poirier provided her opinion on the merits of the Application and recommended that the appeal be allowed as the Application represents good planning and is in the public interest.

22Ms. Poirier opined that the Application had regard for the relevant matters of provincial interest in s. 2 of the Act including the protection of ecological systems including natural areas, features and functions and the protection of public health and safety.

23Ms. Poirier then took the Tribunal through the relevant sections of the PPS, the District of Muskoka Official Plan (“District OP”), the Township OP and the ZBL. Ms. Poirier confirmed that neither the A Place to Grow: Growth Plan for the Greater Golden Horseshoe 2020 nor the Growth Plan for Northern Ontario apply to the Subject Property.

PPS

24Ms. Poirier reviewed the PPS in its entirety and found sections 1.1.4, 1.1.5, 2.1, 2.2 and 4.6 to be relevant. She opined that the Application is compatible with the rural character and landscape as the Application does not propose any changes to the existing development on land. She further proffered that there are no identified significant natural heritage features or areas on or adjacent to the Subject Property and that there are no sensitive water or ground water features. She opined that the Application does not offend the water policies of the PPS and will have a minimal impact on the lakebed and no impact on the shoreline vegetation.

25Ms. Poirier found that the Dock Addition is consistent with the PPS and advised the Tribunal that section 4.6 points to the official plan as the most important vehicle for implementation of the PPS.

District OP

26The District OP was reviewed by Ms. Poirier in its entirety for general conformity of the Application. The Subject Property is designated Waterfront Area in the District OP. Ms. Poirier reviewed the guiding principles of the District OP for long-term prosperity, environmental health and social well-being in managing and directing land use and development patterns. She opined that the existing and continued use of the Subject Property for recreational residential purposes, including the Dock Addition, meets the guiding principles as the economy relies on shoreline activity, it enhances recreational opportunities on the property, and the character of the area is defined by waterfront uses including docks.

27Ms. Poirier addressed the Fish Habitat, Water Resources and Waterfront Area policies of the District OP and proffered that a study was not required to determine the impacts of the dock extension as the shoreline has been identified as being less sensitive to development as a Type 2 Fish Habitat, and that a Dock Addition will have minimal impact on the lakebed. In addition, she opined that the vegetation requirements of the District OP will be met as all existing shoreline vegetation would be retained and that the Dock Addition will not have any measurable visible impact along the shoreline and that it will maintain the visual aesthetic of the lake.

28Ms. Poirier opined that the Dock Addition conforms to the District OP Waterfront Area designation objectives and the general policies as waterfront landing areas are a permitted use. Ms. Poirier further opined that the Application conforms to the intent, spirit and specific policies of the District OP as the Dock Addition is minor, will not require any vegetation removal, will maintain the character of the area and will not impact the neighbouring properties.

Township OP

29The Township OP was also reviewed by Ms. Poirier in its entirety for general conformity of the Application. The Subject Property is designated Waterfront in the Township OP. Ms. Poirier reviewed the general development policies of the Waterfront designation which contribute to character and provide for a “focus for recreation, spiritual relaxation, water supply, and support for fisheries and wildlife habitat, among others” as well as requiring development to complement the natural and built form and enhance the qualities that contribute to character. The general development policies also specifically address the different character of the three large lakes in the Township, including Lake Rosseau, acknowledging that they exhibit larger built forms and building types generally not in character with the smaller lakes in the Township.

30Ms. Poirier opined that the Application will not negatively impact wildlife, fisheries and water supply, and will have no impact on the built form of the property or the character of the area. Ms. Poirier proffered that the built form on the Subject Property “has a very low impact in comparison with the majority of the neighbouring development. The neighbouring property to the south enjoys a dock longer in length then [sic] the proposed, while the neighbouring property to the north enjoys a two slip boathouse with a large dock area.”

31The Township OP permits residential uses, limited to single detached dwelling units, and associated accessory structures. Ms. Poirier proffered that the Subject Property and its existing development is consistent with the permitted uses in the Township OP and that a dock is a common accessory structure to a residential use.

32The Township OP policy 5.14 b) specifically addresses side yard setbacks to be established in the ZBL in recognition of shoreline structures “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” and that “consideration may be given to alternatives where such setbacks are not possible due to terrain or other constraints”. Ms. Poirier opined that there is adequate vegetation along the shoreline and that, with the Dock Addition, the views would be maintained resulting in adequate separation for privacy between the neighbouring properties.

33Ms. Poirier opined that the existing development and the Dock Addition are permitted uses and are in conformity with the Township OP. She further opined that the Dock Addition would maintain the general intent, spirit and purpose of the Township OP as the Dock Addition would maintain the character of the area and the natural features on the Subject Property.

ZBL

34Ms. Poirier advised that the ZBL zones the Subject Property Waterfront Residential (WR1) Zone, with the ‘1’ representing ‘No Constraints’. The WR1 zone permits residential uses and permits a dock as a permitted accessory use with a permitted maximum length of 66 ft and a maximum cumulative width as a percentage of the lot frontage of 25%. Ms. Poirier proffered that the existing dock enjoys a legal non-conformity status with respect to the deficient side yard setbacks.

35Ms. Poirier took the Tribunal to section 3.2c) of the ZBL which provides for non-complying structures to be “enlarged, extended, reconstructed or otherwise structurally altered if the enlargement, extension, reconstruction or structural alteration complies with all of the requirements of this Bylaw”. Ms. Poirier proffered that due to the pie shaped lot, the Dock Addition and the method for determining side lot lines extending into the lake will further reduce the non-compliance of the existing side yard setback to the south.

36Ms. Poirier advised the Tribunal that the length of the existing dock with the Dock Addition will be 58 ft which is less than the maximum permitted length of 66 ft. As such, the only ZBL standard to be affected by the Dock Addition is the south side yard setback. It is Ms. Poirier’s opinion that the proposed south side yard setback and the existing north side yard setback are minor and are due to the converging side lot lines of the lot as extended into the lake.

37In addition, Ms. Poirier advised the Tribunal that there is an unopened road allowance abutting the Subject Property to the north and the Dock Addition will not impact the road allowance as no part of the Dock Addition will extend closer to the north lot line as it is projected into the lake.

38Ms. Poirier opined that the Application would maintain the general intent and purpose of the ZBL as the north side yard setback variance is only required to recognize the existing legal non-conforming status of the dock and that the reduced south side yard setback will not impact the enjoyment of the neighbouring property and that there is a sufficient vegetation buffer existing between the dock and the south lot line.

Four Tests of a Minor Variance

39Ms. Poirier addressed the first two tests of a minor variance in her analysis of the Township OP and ZBL outlined above, opining that the Application maintains the general intent and purpose of both the Township OP and the ZBL.

40With respect to the third test of whether the variances are desirable for the appropriate development or use of the land, building or structure, Ms. Poirier opined that docks are permitted within the WR1 zone and that the configuration of the Dock Addition will “ensure that the integrity of the existing non-complying north side yard setback is not further eroded and in this regard constitutes appropriate development given the difficult constraints imposed by a pie-shaped lot”. Ms. Poirier further opined that the Application will “facilitate a dock extension not substantially different from those existing on abutting properties which enjoy docks of similar length” and that the Dock Addition will “continue to maintain an overall length in conformity with the Zoning By-law”. Ms. Poirier opined that the Application is appropriate for the development of the Subject Property.

41With respect to the fourth test requiring the variance to be minor in nature, Ms. Poirier opined that there is no adverse impact associated with the proposed Dock Addition and that the Application maintains the integrity of the existing north side yard setback and does not exceed the permitted maximum length of the dock in the ZBL. Ms. Poirier further opined that the Subject Property is developed with similar uses to the neighbouring properties and that the Dock Addition’s visual impact on the lake will be “benign and is no different than similar designed docks of neighbouring property owners” and that the “reduced side yard setback for the proposed dock extension is minor in nature”.

42In summary, Ms. Poirier opined that the Application is minor in nature both numerically and with respect to impact, does not present any adverse impact to existing vegetation, fish habitat or visual aesthetics, is consistent with the established landscape of the Subject Property and the surrounding lands, is consistent with the PPS, conforms to the District OP and meets the four tests for a minor variance. She further opined that the Application “represents good planning and is in the public interest” and therefore in her professional opinion “the appeal should be allowed and the Application approved”.

Submissions – Neighbour

43Ms. Bagot provided the Tribunal with her concerns related to the proposed Dock Addition and advised the Tribunal that she was opposed to the development and requested the Tribunal to deny the Application. Ms. Bagot filed a written version of her oral submissions with accompanying photographs of the area and the Subject Property.

44Ms. Bagot took the Tribunal through her written submission and advised the Tribunal that the Subject Property lot is unsuitable for the proposed Dock Addition as it is an undersized lot of record with limited possibilities for future development. She offered that “[n]obody has used the abandoned dwellings” and that the existing “dock was used for the first time since 2014 during the boating season of 2022”. She further drew attention to the narrow width of the bay, the shallow depth of the bay, the beach located to the north and the “public access right of way on the north side lot line, used in all seasons by locals, cottagers and contractors”.

45Ms. Bagot advised the Tribunal that adding extra length to a dock in the bay would not significantly increase the depth of the water at the end of the dock and that the summer water depth at the end of the existing dock is 2 ft and would remain at 2 ft at the end of the Dock Addition.

46Ms. Bagot expressed her concerns related to safety, enjoyment, views and privacy if the Application were to be approved. Her family has enjoyed the safety and privacy of the bay since 1882 and allowing the Dock Addition would mean that:

boats would be travelling across the area that we use for swimming, playing, sailing, canoeing and kayaking. Local residents who have no access to water, use the public right of way to the north and swim in this area. It will also prevent us from accessing the lake in the winter for snowshoeing and other winter sports.

The angle of the proposed dock extension is invasive and would direct all boat traffic to pass right in front of our property and our swimming dock. The current dock is 21.5 ft from the side lot line.

The proposed extension is even less, 9.75 ft ! With boats moored, they could easily reach the property line and hem us in completely.

47With respect to the non-complying status of the existing dock, Ms. Bagot proffered that “[i]f an extension is allowed and requires a bubbler it will cut off the only open public access to this part of Lake Rosseau that is safe and used in the winter for contractors, snowmobiles and fishermen, etc.”.

48Ms. Bagot advised the Tribunal that, in her opinion, the existing dock is functional and can easily accommodate a motorboat and that “[c]ontractors are able to navigate a large outboard motor craft to load and unload heavy materials on the right of way.”

49Ms. Bagot drew attention to two previous variance requests that were denied in 2018 and 2022, suggested that there is no shortage of suitable lots in the immediate vicinity and that the Subject Property is not an appropriate lot for “owners of deep hull boats or those needing multiple mooring spots”.

50Ms. Bagot also advised the Tribunal that the Subject Property:

already has a negative impact on the character of the area, on visual aesthetics and overall enjoyment of neighbouring properties. This property has two dwellings in very poor condition and a large abandoned car hauler trailer. Nobody has done any maintenance (grass, fallen trees) for over 10 years. Any further negative impact is unacceptable.

51Ms. Bagot expressed her concern that the Dock Addition would add to the negative impact on the character of the area, would not increase functionality and would change the nature of the bay, spoil the view, create a safety hazard and diminish enjoyment of her property.

52Ms. Bagot requested that the Tribunal respect her rights as a property owner and turn down the appeal.

ANALYSIS AND FINDINGS

53In consideration of the Application, the Tribunal considered the submissions of the Appellant, Ms. Bagot and the Municipal Record included in the Tribunal’s files which contains the Staff Report and the decision of the CofA.

54The Tribunal recognizes that the Subject Property is currently improved with a residential dwelling use including the existing dock and other structures. The existing dock is a legal accessory use enjoying legal non-conforming status with respect to the side yard setbacks.

55The Tribunal finds that the Application has regard for relevant matters of provincial interest under s. 2 of the Act, including those related to the protection of ecological systems including natural areas, features and functions and the protection of public health and safety.

56The Tribunal is satisfied that the Application is consistent with the PPS in that it is compatible with the rural character and landscape and will have minimal impact on the lakebed and no impact on the shoreline vegetation.

57The Tribunal is satisfied that the Application maintains the general intent and purpose of the County OP and the Township OP as supported by both the Staff Report and Ms. Poirier.

58The Tribunal is satisfied that the Application maintains the general intent and purpose of the ZBL. A dock is a permitted accessory use in the ZBL. The Application recognizes the existing north side yard setback and will allow for a further reduced south side yard setback based on the ZBL method for determining side lot lines and side yard setbacks as they project into the water. The Tribunal is satisfied that the Dock Addition will be sufficiently set back from the south lot line in this regard given the constraints imposed by the pie-shaped lot.

59The Tribunal is satisfied that the Application is desirable for the appropriate development and use of the Subject Property and is minor in nature. The Application facilitates an extension to the existing dock not out of character to existing docks on abutting properties, which are of significant length and area. The Dock Addition will not create any adverse impacts and the relief being requested is appropriate given the context of the Subject Property.

60With respect to the submissions made by Ms. Bagot, it is the Tribunal’s finding that the potential issues and concerns brought forth are not compelling and are characteristic of many waterfront developments. It is not relevant that there may be other properties in the area more suitable for a larger dock. There is no test in the Act to prove a need for the relief requested through the Application. Similarly, the depth of the water at the end of the dock is not relevant to the consideration of the merits of the Application. Finally, the Tribunal finds that the potential impacts Ms. Bagot proffered related to the enjoyment of her property, including a change to the nature of the bay, spoiling of the view and creating a safety hazard, are unsubstantiated.

61The Tribunal is satisfied that the Application meets the four tests of a minor variance and should be granted.

ORDER

62THE TRIBUNAL ORDERS that the appeal is allowed and the variances to the Township of Muskoka Lakes Zoning By-law No. 2014-14 are authorized.

“C.I. Molinari”

C.I. MOLINARI

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.