Bradley Dennis & Lisa Flafferty v. Lake of Bays (Town), 2023 CanLII 66823

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 21, 2023

CASE NO(S).: OLT-23-000005

PROCEEDING COMMENCED UNDER section 12(2) of O. Reg. 173/16 – Refusal of the O. Reg. 173/16 Community Planning Permits

Appellant: Bradley Dennis & Lisa Flafferty

Subject: Development Permit

Description: To permit legal non-conforming dwellings & to increase permitted shoreline activity area frontage

Property Address: 1034 South Toad Lake Road

Municipality/UT: Lake of Bays/Muskoka

Municipal File No.: DP 107/21

OLT Case No.: OLT-23-000005

OLT Lead Case No.: OLT-23-000005

OLT Case Name: Bradley Dennis & Lisa Flafferty v. Lake of Bays (Town)

Heard: July 13, 2023 in writing

APPEARANCES:

Parties

Representative

L. Flafferty, B. Dennis

Self-Represented

DECISION DELIVERED BY P. TOMILIN AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1This was a Hearing in the matter of the appeal by Bradley Dennis and Lisa Flafferty (“Applicants” / “Appellants”) arising from the decision of the Township of Lake of Bays (“Township”) to refuse an application pertaining to the Community Development Permit System, or O. Reg. 173/16 to permit legal non-conforming dwellings, and to increase permitted shoreline activity area frontage for the property located at 1034 South Toad Lake Road (“subject property” / “Site”).

2The subject property has a street frontage of 76.5 metres (“m”), water frontage of approximately 42.2 m and a lot area of 7,382 square metres (“m²”). The existing dwelling has a footprint area of 60.67 m² and has been in use as a cottage/residential dwelling for over 50 years.

3The Site is a designated Waterfront in the Township’s Official Plan and is subject to the standards and provisions of the Development Permit By-law No. 04-180 (“DPBL”). With respect to the standards set out in the DPBL, the structures on the subject property enjoy legal non-complying status as they exist within the shoreline yard and were constructed in approximately 1972, prior to the enactment of the DPBL.

4The DPBL provides for variations to expand legal non-conforming dwellings within the Shoreline Activity Area (“SAA”). An exception to Section 4.39 to permit an addition to a legal non-complying dwelling that does not comply with all other provisions of the DPBL, namely, shoreline yard setback.

5Planning evidence was provided to the Tribunal by means of the Written Affidavit of Marie Poirier. After reviewing the qualifications and signed Acknowledgement of Expert Duties, the Tribunal is satisfied that Ms. Poirier is a qualified professional land use planner. She provided the Tribunal with a comprehensive overview of the application in relation to the relevant policies.

BRIEF CHRONOLOGY OF THE APPLICATION AND THE RETAINER

6Ms. Poirier explained that the subject property was purchased by the Appellants in 2020 with all the structures having existed since circa 1972, except for the addition and portico. The building permit was issued for the plumbing to the dwelling, and all structures were recognized without concerns in 2009.

7On September 2, 2020, an Order to Comply was issued by the Municipal Chief Building Official (“CBO”) due to the portico and the addition to the legal non-complying dwelling being constructed without the permit. Additionally, the CBO has determined that a building permit to address the Order to Comply could not be issued due to non-compliance of certain structures with the DPBL.

8One of the Appellants provided a Doctors’ note (Exhibit 3) stating that the Appellant has both mental and physical challenges and has been working with a Lawyer and her title Insurance company to rectify the issues for building and planning matters. Due to an agreement with the Appellant’s title Insurance company, Ms. Poirier’s services were retained to bring the subject property into compliance with the DPBL. The Planning Justification Report was marked as Exhibit D.

9The construction of the addition and portico is intended to ensure that the access to the shoreline will be wheelchair accessible in the future. The bedroom addition will provide sufficient space for a wheelchair to maneuver. The covered portico will ensure the wheelchair ramp into the cottage is protected from inclement weather and will provide safe access to the dwelling.

10Ms. Poirier stated that the addition is a single storey with the same height as the existing dwelling of approximately 3.35 m, has a shoreline setback of approximately 8.9 m and is consistent with the neighbouring properties.

11Ms. Poirier notes that the owners of the neighbouring properties have provided signatures in support of the development.

12On May 9, 2023, the Tribunal received a communication confirming that the Township will not be participating in the Appeal.

THE DEVELOPMENT

13Ms. Poirier provided that in order to bring the property into compliance, several measures were undertaken:

1. Building “G” has been moved to a location 19.9 m from the shoreline.

2. Building “F” has been moved to the rear of the lot.

3. The “temporary shelter” has been removed.

4. The hot tub has been relocated further back from the water and aligned with the front dwelling addition.

5. The fire pit in the front yard has been removed and the area will be re-vegetated.

14Due to the legal non-conforming nature of the structures (other than the new addition), the DPBL provides for variations to expand legal non-complying dwellings within the SAA. An exception to Section 4.39 to permit an addition to a legal non-complying dwelling is required. The Applicants seek:

1. A variance to Section 5.1 d) minimum shoreline yard setback to permit an 8.9 m setback to the dwelling including the portico.

2. A variance to Section 5.1 k) shoreline activity area frontage to permit the legal non-complying frontage of 23 m.

3. To permit the addition to a legal non-complying dwelling in the SAA in accordance with Section 4.39. The addition is less than the 50% shoreline activity area allowable through a Category 1 Staff Development Permit.

4. To recognize the legal non-complying structures (Buildings C, D, E G) and specifically a sleeping cabin and Gazebo, within the 30 m minimum setback from the High-Water Mark, and which existed prior to the passing of DPBL and as shown on the sketch prepared by E.J. Williams dated May 27, 2022 (Exhibit H).

EVIDENCE

15Ms. Poirier reviewed the applicable policies of the Planning Act (“Act”). More specifically Section 2 (h.1) which states:

2 The Minister, the council of a municipality, a local board, a planning board and the Tribunal, in carrying out their responsibilities under this Act, shall have regard to, among other matters, matters of provincial interest such as,

(h.1) the accessibility for persons with disabilities to all facilities, services and matters to which this Act applies

16Ms. Poirier proffered that the application conforms to the Act and does not offend any matters of Provincial interest.

17She called the Tribunal’s attention to Sections 2.1 and 2.2 of the Provincial Policy Statement, 2020 (“PPS”). Ms. Poirier stated that the construction did not require removal of vegetation and the shoreline buffer has been maintained. Removal of the additional structures will minimize the impact of development on these lands, by lowering the existing lot coverage.

18The Tribunal agrees that the application is consistent with the PPS.

19Ms. Poirier stated that she reviewed the District of Muskoka Official Plan (“MOP”) in its entirety and brought to the Tribunal’s attention policies B2 Guiding Principles, J4 Waterfront Area, and sections J4.1, J4.2, J4.3. She opined:

“The development on the subject lands is minor in scale and does not negatively impact the overall landscape or visual aesthetic of the waterfront area. The development is consistent with the surrounding lots and maintains a significant vegetation buffer. No vegetation was removed during the construction of the addition and no buffers were disturbed. The structures which are the subject of this application are consistent with the permitted use as described as resource-based recreational uses, low density single unit recreational dwelling. The development of both the addition and the portico has been done so to create an accessible dwelling on the waterfront property. In order for the property owner to enjoy the subject lands and use the interior and exterior areas safely, it will be necessary to have wheelchair access into the dwelling as well as having sufficient space within the dwelling for the movement of a wheelchair. The dwelling is old and the addition will provide the only interior space that will be totally wheelchair accessible. The portico provides shelter for the wheelchair ramp into the dwelling, ensuring safe access and protecting the ramp from the elements during all seasons.”

20Ms. Poirier reviewed the Township of Lake of Bays Official Plan (“TOP”) in its entirety and gave special attention to Section B – Goals and Objectives, Section D – Environment, Section E – Development Constraints and Section H – Waterfront.

21She opined that the development is in conformity with the TOP. In her view, the DPBL allows for the expansion of a legal non-conforming dwelling located within the shoreline yard. The addition does not exceed the allowable 50% of SAA coverage and remains behind a vegetation buffer. The removal of Building “F” and the placement of Building “G” behind the SAA setback reduced both the SAA and the width. The vegetation buffer will be improved through a replanting plan and there are no large structures located in the shoreline yard.

ANALYSIS AND FINDINGS

22The Tribunal finds that the proposed development is desirable for the Site and is consistent with higher-level policy documents, like the Act. The Tribunal agrees with Ms. Poirier’s professional opinion that the application conforms to the MOP and TOP, is consistent with the PPS and maintains the intent of the Township’s DPBL.

23The evidence provided by Ms. Poirier supports the following exception and variances to the DPBL:

1. An exemption to Section 4.39 to permit an addition to a legal non-complying dwelling that does not comply with all other provisions of the By-law namely, shoreline yard setback;

2. A variance to Section 5.1 d) minimum shoreline yard setback to permit 8.9 m setback to the dwelling;

3. A variance to Section 5.1 k) shoreline activity area frontage to permit the legal non-complying frontage of 23 m;

4. To permit the addition to a legal non-complying dwelling in the SAA in accordance with Section 4.39;

5. To recognize the legal non-complying sleeping cabin, gazebo, and Buildings C, D, E, and G all of which are shown on the site plan with the 30 m minimum setback from the High-Water Mark, as existing prior to the passing of the DPBL; and;

6. To recognize the existing development as shown on the Site Plan prepared May 27, 2022, by E.J. Williams OLS as attached under Exhibit H.

ORDER

24THE TRIBUNAL ORDERS that the appeal is allowed, and the requested variances and exceptions are authorised.

“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.