Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
April 06, 2023
CASE NO(S).:
OLT-22-001993
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Jennifer & Oliver Tozser
Subject:
Application to amend Township of Muskoka Lakes Zoning By-law -- By-law 2014-14, as amended - Refusal of the application
Existing Zoning:
Waterfront Residential (WRl-7)
Proposed Zoning:
Site Specific (To be determined)
Purpose:
To facilitate redevelopment
Property Address/Description:
Lot 21, Concession C, Block 18, Plan M-642 (in the former Township of Medora)
Municipality:
Township of Muskoka Lakes
Municipality File No.:
ZBA-21/21, By-Law 2021-065
OLT Case No.:
OLT-22-001993
OLT File No.:
OLT Case Name:
OLT-22-001993
Tozser v. Muskoka Lakes (Twp)
Heard:
December 12, 2022 by video hearing
APPEARANCES:
Parties
Counsel
Jennifer and Oliver Tozser
Leo Longo
Township of Muskoka Lakes
Edward Veldbloom
DECISION DELIVERED BY S. BOBKA AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is an appeal by Jennifer and Oliver Tozser (together the “Applicant”) of a Zoning By-law Amendment (“ZBA”) denied by the Planning Committee of the Township of Muskoka Lakes (“Township”) for the property municipally known as 1363-2 Innisfree Road (“Subject Property”).
2The Applicant applied to the Township for an amendment from Zoning By-law No. 2014-14, as amended (“ZBL”), for a site-specific by-law amendment to permit the reconstruction and addition to an existing dwelling, as well as the construction of a new two-storey boathouse on the easterly shoreline.
3Prior to the Hearing, the Parties advised that a settlement had been reached and would be presented to the Tribunal. The Tribunal converted the scheduled Case Management Conference to a Settlement Hearing per Rule 19.6 of the Ontario Land Tribunal’s Rules of Practice and Procedure.
4In a discussion regarding proper Notice, James Lewis, a local resident, raised a concern that he had not received any Notice, despite his written submission at the public meeting. Counsel for the Applicant confirmed that Notice was sent out as directed by the Tribunal. It was confirmed that Mr. Lewis did not live within 120 metres (“m”) of the Subject Property and that he had not made a written request to the Township to receive Notice. Upon review of the Affidavit of Service, the Tribunal confirmed that Notice was properly issued.
5In response to the Notice, thirteen (13) requests for Participant status were received. Upon review and with no objections from the Parties, the Tribunal granted Participant Status to the following:
Acton Island Association
Bess Weston
David and Beverly Bell
David Bolton
Debbie Korolnek
Dennis Sloan
Illana and Anton Rabie
Jennifer Hastings
John Baker
Muskoka Lakes Association
Rachael Kelebay
Ron Binns
Ruth Duffield
6Mr. Lewis stated that he had also submitted a request for Participant status on December 1, 2022. The Tribunal asked Mr. Lewis to provide a brief outline of his concerns which focused on the determination of the front lot line. The Tribunal granted him Participant Status and directed the Applicant to have their witness speak to the concerns raised by the fourteen (14) Participants.
LEGISLATIVE TESTS
7In making a decision on the ZBA before it, the Tribunal must be satisfied that it is consistent with the Provincial Policy Statement (“PPS”) and that it conforms to the applicable Official Plans. In addition, the Tribunal must have regard to the matters of provincial interest in s. 2 of the Planning Act (“Act”) and in general, regard for the related decisions of the municipality, and be satisfied that the proposed ZBA represents good planning and is in the public interest.
HEARING
8The Tribunal received and marked the following:
Exhibit 1: Affidavit of Service
Exhibit 2: Affidavit of S. Szczerbak
Exhibit 3: Photos Exhibit 4: Staff Report dated August 12, 2021
9The only witness called by the Applicant was Stefan Szczerbak, a Land Use Planner, who, upon review of his Curriculum Vitae and Acknowledgement of Expert’s Duty form, was qualified by the Tribunal to provide expert opinion evidence in land use planning.
SUBJECT PROPERTY
10The Subject Property is approximately 0.92 hectares (“ha”) (2.27 acres) in size and is situated on a “through lot” with two frontages on Lake Muskoka (“Lake”). The westerly shoreline has approximately 198.9 m of water frontage, while the easterly shoreline has approximately 202.2 m of water frontage.
11The Subject Property is naturally vegetated with mature coniferous trees and is bisected by an existing private right-of-way (single lane road). Mr. Szczerbak explained that it:
contains a single storey dwelling, a two storey dwelling, a single storey sleeping cabin, a single storey garage, a shed, a pump house, a single storey boathouse with an associated dock, and a second dock (part of which forms a sundeck on land). The property has been in use for over 100 years, and the two-storey dwelling is currently used as a year-round residence. (Exhibit 2, paragraph [11])
BACKGROUND
12Mr. Szczerbak outlined that in April 2021, the Applicant initially filed their application with the Township. At an August 2021 meeting, the application was considered and deferred by the Township’s Planning Committee and there was a subsequent request by Township Planning Staff for the floor plans of all buildings as well as a reduction to the size of the proposed dwelling with improved setbacks. The Applicant provided an extensive response and in October 2021, a revised proposal was submitted, removing one of the five originally requested by-law variations. The Planning Committee denied the application on December 21, 2021 and the Applicant then appealed to the Tribunal.
13The proposal would result in the existing single storey dwelling, single storey garage, shed, and pump house being demolished; the existing sleeping cabin being converted to storage; and the existing deck and boathouse remaining. The existing dwelling would be reconstructed with an addition and a new two-storey boathouse would be constructed on the easterly shoreline.
14Mr. Szczerbak stated that the settlement proposes the following amendments to the ZBL:
a. The minimum setback from the south-westerly high water mark for sundecks shall be 33 feet and 34 feet, as shown on the site plan;
b. The maximum cumulative dock width shall be 145 feet for the entire property;
c. The maximum cumulative first storey boathouse [width] shall be 93 feet;
d. Require a reduced maximum total lot coverage of 9.4% (whereas a maximum coverage of 10% is permitted as-of-right in this zone); and
e. Restrict the maximum height for a dwelling to 32 feet (whereas a maximum height of 35 feet is permitted as-of-right in this zone). (Exhibit 2, paragraph [20])
Planning Evidence
15Mr. Szczerbak noted that Ashley Hodder, a Planner with his firm, initially had carriage of this file and that he fully adopted her planning recommendations.
16It was Mr. Szczerbak’s overall opinion that the proposed ZBA is consistent with the PPS, conforms to the Key District of Muskoka Official Plan (“DOP”) and the Township of Muskoka Lakes Official Plan (“OP”), has appropriate regard to the matters set out in s. 1 and s. 2 of the Act, is appropriate and compatible development and represents good planning.
17Regarding the PPS, Mr. Szczerbak found that the proposal was consistent and he spoke to specific policies related to Rural Areas (s.1.1.4) and Rural Lands (s.1.1.5). He opined that the proposed use is fully consistent as residential development and resource-based recreational activities (including recreational dwellings) are both permitted uses. Regarding compatibility, it was Mr. Szczerbak’s opinion that the proposal is consistent with other properties on the island. He also spoke to the Environmental Impact Study completed by Beacon Environmental and he stated that no natural heritage features or functions would be impacted by the proposal.
18It was Mr. Szczerbak’s opinion that the Growth Plans and other Provincial Plans were not applicable to the Subject Property.
19Mr. Szczerbak outlined that in both the DOP and the OP, the Subject Property is designated as ‘Waterfront’, which permits residential uses including dwellings and associated structures.
20He highlighted the requirement that new development is to maintain the general character of the lake and surrounding neighbourhood (as referenced in s. J4.2.h and J4.3.i of the DOP). He opined that the:
existing mature natural vegetation along the shorelines and throughout the lot creates a natural buffer. Since the development is proposed in the centre of the property, it will remain in conformity with Sections B.5.2, B.5.4, (Character) of the … [OP], which requires the natural form should dominate the character of the Lake Muskoka waterfront … Character is specifically implemented into the ZBL through various provisions including lot coverage, setbacks and vegetation cover. (Exhibit 2, paragraphs [35-36])
21In addition, it was explained that the:
proposed boathouse and dock will be in keeping with the character of other properties on Category 1 lakes, is located in a suitable location, there are no nearby neighbours whose view or privacy could be impacted and will meet all of the other required provisions in the by-law. The proposed zoning amendment is in keeping with the character of the Waterfront designation. (Exhibit 2, p.21)
22Mr. Szczerbak spoke to the size and scale of the proposed new boathouse, stating that both are appropriate. He explained that the proposed structure would not “exceed any zoning restrictions for a similar sized property with one shoreline”, that this property has two shorelines and that approximately 87% of the 400 m of the cumulative shoreline will remain “untouched and in a natural state.”
23Speaking to compatibility, density and lot coverage (s. B.5.54, s. B.10.5 and s. B.10.6 of the OP), Mr. Szczerbak explained that the OP places a limit of 10% on total lot coverage and that this proposal features approximately 9.4% total lot coverage. He also stated that as part of the settlement, the Parties have agreed to “essentially “freeze” any future development of the property.”
24It was also highlighted that the OP specifies in s. B.4.2 that built form does not become concentrated or dominate the Waterfront to the detriment of natural form and in s. B.4.12 that the environment is protected from negative impacts of development. It was explained that the majority of the proposal will be located within the footprints of existing buildings, that there will be limited tree removal and that as the majority of the of property is well vegetated with mature coniferous trees, the visual impact of the structures will be limited from lake side views.
25Mr. Szczerbak identified that the Subject Property:
has structures with legal non-complying setbacks, which permit reconstruction with setbacks closer than 20 m from the shoreline. Redevelopment of the property is determined by its shape, with limited possible dwelling locations due to its narrowness and the existing right-of-way through the centre. The enlargement of the main dwelling has been designed to take advantage of the existing building footprints and meet the required setbacks as much as possible, however it would be impossible to meet the setback for the structure due to the physical limitations of the property, including the location of the right-of-way. (Exhibit 2, paragraph [39])
26It was the overall opinion of Mr. Szczerbak that the proposal conforms to the applicable Official Plans by “maintaining the general waterfront character for a property in this location and its size and shorelines”.
27Mr. Szczerbak spoke to the concerns raised in the Participant Statements. He categorized the issues and addressed them both in his testimony and as summarized in his chart below:
(Exhibit 2, page 31)
28Mr. Szczerbak also spoke to the concern relating to the determination of the front lot line. He cited the August 12, 2021 Staff Report (Exhibit 4) which speaks to the Township’s Comprehensive Zoning By-law and states that the “front lot line, in this case, is the north-easterly high water mark”; Mr. Szczerbak concurred with this analysis.
29It was Mr. Szcerbak’s opinion that the concerns of the Participants were adequately addressed through the settlement and the draft ZBA.
30Mr. Szczerbak concluded that it was his professional opinion that the ZBA is consistent with the PPS, conforms to the applicable Official Plans and has regard for s. 1 and 2 of the Act. He opined that the development is appropriate and compatible, and that the settlement and ZBA represent good planning.
FINDINGS
31The Tribunal heard uncontested evidence in support of the proposed ZBA and accepts the uncontroverted expert opinion evidence provided by Mr. Szczerbak.
32In coming to its Decision, the Tribunal reviewed the concerns raised by the Participants, and is satisfied that those concerns have been adequately considered and addressed through Mr. Szczerbak’s Affidavit and testimony.
33The Tribunal is satisfied that the proposal has been designed to be mostly low profile, will be significantly screened from view by the substantial vegetation, reduces the total number of buildings on the property and has been designed to respect the zoning provisions as much as possible on a narrow and irregularly shaped property.
34In summary, the Tribunal is satisfied with the evidence presented indicating that the proposal is consistent with the PPS and conforms to the applicable Official Plans. The Tribunal has had regard to the matters of provincial interest in s. 2 of the Act (including but not limited to sections a), c), p) and r)) and in general, for the related decision of the municipality and is satisfied that the proposed ZBA represents good planning in the public interest.
35As a result of the foregoing, the Tribunal will approve the settlement.
ORDER
36THE TRIBUNAL ORDERS that:
a. The appeal is allowed, in part, and By-law No. 2014-14, as amended, of the Township of Muskoka Lakes is hereby further amended as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the Township of Muskoka Lakes to assign a number to this by-law for record keeping purposes;
b. No costs shall be awarded in respect of this Order; and
c. The Tribunal may be spoken to concerning issues arising from the implementation of this Order.
“S. Bobka”
S. BOBKA 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.