Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 07, 2023
CASE NO(S).: OLT-22-004128
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: BMO Trust Company
Subject: Application to amend the Zoning By-law – Refusal of application
Description: Proposes to demolish the existing dwelling and construct a new four storey dwelling and storage/utility building
Reference Number: ZBA-52/21
Property Address: 1038 Bayview Avenue
Municipality/UT: Muskoka Lakes/Muskoka
OLT Case No: OLT-22-004128
OLT Lead Case No: OLT-22-004128
OLT Case Name: BMO Trust Company v. Muskoka Lakes (Township)
Heard: June 20, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| BMO Trust Company, Nominee FBO the Muskoka Trust | C. Gibson, H. Elston, K. Vergis-Mayo |
| Township of Muskoka Lakes | E. Veldboom |
MEMORANDUM OF ORAL DECISION DELIVERED BY P. TOMILIN ON June 20, 2023 AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1This was a hearing of an appeal by BMO Trust Company (“Applicant” / “Appellant”) under s. 34(11) of the Planning Act (“Act”) against the refusal of the Township of Muskoka Lakes (“Township”) regarding an application to amend the Zoning By-law for the redevelopment of the property located at 1038 Bayview Avenue, Windemere (“Site” / “subject property”). The Parties have resolved their issues.
2Rian Allen, a Registered Professional Planner, provided a Sworn Affidavit (Exhibit 1) and was qualified by the Tribunal to provide land use planning opinion evidence in relation to the matter under appeal. Mr. Allen delivered a detailed contextual and land use planning rationale in support of the settlement.
SITE CONTEXT
3The Site is legally described as Part of Lot 31, Concession 9 (in the former Village of Windermere), now the Township of Muskoka Lakes, within the District of Muskoka. The subject property is approximately 1.4 hectares (“ha”) (3.5 acres) in size with approximately 129.5 metres (“m”) of water frontage on Lake Rosseau and approximately 45 m of frontage on Bayview Avenue.
4The Site contains a single two-storey dwelling, a garage, a dock, and a boathouse. The existing total building coverage is 167 square metres (“m2”). The subject property is elevated approximately 26 m above Lake Rosseau and contains steep slopes along the shoreline and bedrock outcrops throughout. The existing and the proposed building locations are elevated approximately 15 m above the shoreline and are serviced with individual on-site sewage and water services.
DEVELOPMENT PROPOSAL
5The redevelopment plan proposes to demolish the existing dwelling and construct a new four-storey dwelling with an associated sundeck, an accessory fire egress tower attached to the dwelling via a breezeway, an accessory storage/utility building with an associated sundeck, a shed, an accessory photovoltaic array, and an accessory water tank.
6The proposed new dwelling, fire egress tower and accessory storage/utility building fully comply with all zoning requirements, except for height. The proposed shed, accessory photovoltaic array, and accessory water tank comply with the Zoning By-law requirements and are not part of the application.
7The Zoning By-law Amendment (“ZBA”) will permit:
A dwelling height of 16.8 m;
A fire egress tower with an associated breezeway height of 14.7 m; and,
A storage/utility building height of 7.9 m.
8The proposed ZBA includes a site plan as a schedule to the by-law and the proposed buildings with increased height will only be permitted in specific building envelopes, sizes, and locations on the property. Buildings constructed in other locations and/or sizes must comply with the standard minimum zoning requirements.
9Other zoning requirements imposed on the property by the ZBA include:
Increasing the minimum lot frontage from 61.0 m and minimum lot area from 0.4 ha (1 acre) to 129.5 m and 1.4 ha (3.5 acres) to prevent severance of the property and the development of a second dwelling and sleeping cabin.
Reducing the maximum permitted lot coverage from 15% to 5% to lower the density of development, reduce the total building area, and limit tree removal and site alteration.
Increasing the minimum setback from the easterly interior side lot line to 14.9 m and the minimum setback from the westerly interior side lot line to 25 m, to direct development towards the centre of the lot and away from neighbouring lots, and to provide increased buffering and separation distance of development.
Requiring a minimum 50% of the lot area to be maintained as 'natural area' instead of the 30% 'landscaped area' requirement.
Including a definition of 'natural area'.
PLANNING RATIONALE
10The planning documents related to these amendments are s. 2 of the Act, the Provincial Policy Statement, 2020 (“PPS”), the District of Muskoka Official Plan, June 2019, (“MOP”), Township of Muskoka Lakes Official Plan, April 2013 (“TOP”) and Township of Muskoka Lakes Zoning By-law No. 2014-14, December 2017 (“ZBL”).
11The Tribunal accepts the following findings, based on Mr. Allen’s uncontroverted evidence.
12The proposed development has appropriate regard for the matters of Provincial interest in s. 2 of the Act, is consistent with the PPS, conforms to the MOP and TOP, is compliant with the ZBL and overall, represents good land use planning. For more detailed report, please see Exhibit 1.
13Mr. Allen addressed issues brought up by the Muskoka Lakes Association (“MLA”) in their Participant Statement. In his written affidavit, Mr. Allen states:
The principal issues raised by the MLA are related to concerns regarding increased building height, compatibility with neighbouring development, the character of Windermere; potential visual impacts, cumulative impacts of similar decisions, consistency with previous Township decisions, compliance with the Township Official Plan, and a lack of a Planning Justification Report. The Township Official Plan specifically indicates that maintenance of the waterfront character in Communities will be achieved by larger lot sizes compared to non-waterfront lots. The area and frontage of the property greatly exceeds the minimum requirement for residential lots in the waterfront and the severance restriction will preserve the existing lot size. The proposed development will not change the mix of waterfront commercial and residential development focused towards Lake Rosseau. The existing naturally forested state of the property will be maintained and the appearance of the natural environmental will continue to dominate over built form. The existing low density residential use of the property will be maintained and not conflict with surrounding residential and commercial uses. Development of the property with what is otherwise permitted as of right but in a more vertical form with smaller building footprints and less lot
coverage in order to minimize environmental impact, tree removal and site alteration, as has been done in this case represents good planning, and there is no cumulative impact that would depart or conflict with the Official Plan or other applicable policy. The participant is correct, no Planning Justification Report was filed with the application. The Township's Zoning By-law Amendment submission requirements do not require a Planning Justification Report however, consideration was given by the Applicant to Official Plan policies and the PPS at the application stage, and the Applicant will have this planning evidence affirmed before the Tribunal.
ORDER
14THE TRIBUNAL ORDERS that the Appeal is allowed in part, and that the Township of Muskoka Lakes (“Township”) By-law No. 2021-161, amending the Township By-law No. 2014-14, appended to this Order as Attachment A is approved.
15The Clerk of the Township of Muskoka Lakes may format and number the amendments for record keeping purposes.
“P. Tomilin”
P. TOMILIN
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.
THE CORPORATION OF THE TOWNSHIP OF MUSKOKA LAKES
BY-LAW 2021-161
Being a By-law to amend Comprehensive Zoning By-law 2014-14, as amended, in the Township of Muskoka Lakes
WHEREAS the authority to pass this by-law is provided by Section 34 of the Planning Act, R.S.O. 1990, Chapter P.13 and amendments thereto;
AND WHEREAS By-law 2014-14 was enacted by the Corporation of the Township of Muskoka Lakes to regulate land use within the Municipality;
AND WHEREAS the Council of the Corporation of the Township of Muskoka Lakes deems it advisable to further amend By-law 2014-14;
NOW THEREFORE the Council of the Corporation of the Township of Muskoka Lakes enacts as follows:
- Section 12 of By-law 2014-14 is hereby further amended by the addition of the following subsection:
87-1983
i) The land affected by this amendment is described as Part of Lot 31, Concession 9 (in the former Village of Windermere), now in the Township of Muskoka Lakes, as shown hatched on Schedule I to By-law 2021-161.
ii) Despite the provisions of Section 5.1.3 of By-law 2014-14, as amended, for those lands described above, the maximum permitted height for a dwelling shall be 55 feet as shown in the location and extent on Schedules II and III to By-law 2021-161.
iii) Despite the provisions of Section 5.1.3 of By-law 2014-14, as amended, for those lands described above, the maximum permitted height of an accessory fire egress tower with an associated breezeway shall be 48 feet and the maximum permitted height of an accessory storage/utility building shall be 26 feet as shown in the location and extent on Schedules II, III, and IV to By-law 2021-161.
iv) Despite the provisions of Sections 5.1.3 and 5.1.9 i. of By-law 2014-14, as amended, for those lands described above, the minimum lot frontage shall be 425 feet and the minimum lot area shall be 3.5 acres.
v) Despite the provisions of Sections 5.1.3 and 5.1.9 i. of By-law 2014-14, as amended, for those lands described above, the maximum permitted lot coverage shall be 5% (7,557 square feet).
vi) Despite the provisions of Sections 5.1.3 and 5.1.9 i. of By-law 2014-14, as amended, for those lands described above, the minimum setback from the easterly interior side lot lines shall be 49 feet and the minimum setback from the westerly interior side lot line shall be 82 feet.
vii) Despite the provisions of Sections 5.1.3 of By-law 2014-14, as amended, for those lands described above, the minimum landscaped area requirement shall not apply and instead a minimum required natural area of 50% of the area of the lot shall apply.
viii) For the purpose of subsection vii) of this By-law natural area shall mean an area maintained in a self-sustaining state with a mixture of trees and plants where the removal of existing vegetation is permitted only for the removal of invasive or non-native species, dead trees or branches or trees or parts thereof that represent an imminent danger to people, buildings or structures.
All other provisions of By-law 2014-14 apply. To the extent of any conflict between By-law 2021-161 and By-law 2014-14, as amended, the provisions of By-law 2021-161 shall apply.
- Schedules I, II, III and IV attached hereto are hereby made part of this By-law.
SCHEDULE I TO BY-LAW 2021-161