Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
September 01, 2023
CASE NO(S).:
OLT-23-000342
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Scott Bakewell
Subject:
Application to amend the Zoning By-law – Refusal by Municipality
Description:
To permit a reduced side yard setback for a one-story boathouse
Reference Number:
ZBA - 60/22; By-law 2022-196
Property Address:
1015 Birch Street, Lot 27, Concession 8
Municipality/UT:
Township of Muskoka Lakes
OLT Case No.:
OLT-23-000342
OLT Lead Case No.:
OLT-23-000342
OLT Case Name:
Bakewell v. Muskoka Lakes (Township)
Heard:
August 9, 2023 by video hearing
APPEARANCES:
Parties
Counsel
Scott Bakewell
Leo Longo (in absentia)
Matthew Helfand
Township of Muskoka Lakes
Edward Veldboom
MEMORANDUM OF ORAL DECISION DELIVERED BY GREGORY J. INGRAM ON August 9, 2023 AND ORDER OF THE TRIBUNAL
Link to the Order
INTRODUCTION AND BACKGROUND
1Scott Bakewell (“Appellant”) filed an appeal resulting from the Township of Muskoka Lakes (“Township”) refusal of an application for a Zoning By-law Amendment (“ZBLA”) pursuant to s. 34(11) of the Planning Act (“Act”). The purpose of the ZBLA is to permit a boathouse with a rooftop sundeck through exemptions in the Comprehensive Zoning By-law No. 2014-14 (“CZBL”) at 1015 Birch Street, in the Township of Muskoka Lakes (“Subject Site”).
2The Staff Report (February 16, 2023) presented to the Members of the Township Planning Committee (“Planning Committee”) indicated that in 2011 the Appellant submitted a minor variance application to the Township Committee of Adjustment (“CoA”) which was approved and permitted a boat port with a rooftop sundeck to be 39.3 feet (“ft”) from the side lot line. As a condition of the approval, the two-foot eave was to be reduced to one foot on all sides to further increase the setback. As a result of this change in eaves depth, the Appellant added sliding walls to the structure and closed the lakeside end of the structure to better protect stored items from the elements. According to the Township CZBL, a boat port “is not enclosed by more than one wall” to minimize the impact on neighbouring properties. Given the changes to the structure it was deemed to have been converted to a boathouse and in order to comply would require a ZBLA application.
3The ZBLA application was submitted in November 2022 and proposed to amend the CZBL to recognize the existing boat port as a boathouse. The application requested a reduction in side-yard setback from the required 45 ft to 40 ft and to permit a boathouse length of 38.5 ft from the 35 ft permitted.
4In February 2023 the proposal was considered by the Planning Committee which denied the application. In March 2023, the application was formally denied by the Township Council and a Notice of Refusal was issued. The Appellant appealed this decision to the Tribunal in April 2023.
5In the period since the Township refused the application, the Appellant and the Township have engaged in settlement discussions and reached an agreement for a ZBLA to permit the same general request that was proposed in the original application in November 2022. The settlement proposal recognizes the existing setback of the southeasterly lot line at 40 ft, and the maximum permitted converted boathouse length at 38.5 ft.
6Prior to the Hearing, the Tribunal was advised that the Parties had reached a settlement in this matter and provided a Minutes of Settlement document dated July 26, 2023. The Tribunal reviewed the document and granted the conversion of the case management conference to a settlement hearing.
SETTLEMENT PROPOSAL
7The Parties proposed that the CZBL be amended as follows:
i. The land affected by this amendment, described as Lot 27, Concession 8, (in the former Township of Wood), now in the Township of Muskoka Lakes, more particularly described as Lot 6, Plan M-269, as shown hatched on Schedule I to By-law No. 2022-196.
ii. Despite the provisions of s. 4.1.7 and 4.1.7.8 of By-law No. 2014-14, as amended, for those lands described above, the minimum permitted setback for a boathouse with a sundeck on the roof from the south-easterly side lot line projection shall be 40 ft, as shown in the location and extent on Schedule II to By-law No. 2022-196.
iii. Despite the provisions of s. 4.1.7.19 b. of By-law No. 2014-14, as amended, for those lands described above, the maximum permitted boathouse length shall be 38.5 ft, as shown in the location and extent on Schedule II to By-law No. 2022-196.
iv. All other provisions of By-law No. 2014-14 apply. To the extent of any conflict between By-law No. 2022-196 and By-law No. 2014-14, as provisions of By-law No. 2022-196 shall apply.
LOCAL AND SURROUNDING AREA CONTEXT
8The Subject Property has a single-storey dwelling, various accessory buildings and a boat port with a rooftop sundeck and dock. The property has about 100 ft of shoreline and contains numerous mature trees. The area has many similar lots and structures that are located on a narrow bay of Lake Muskoka.
LEGISLATIVE CONTEXT
9On this appeal, the Tribunal must be satisfied that the proposed ZBLA represents good planning and is in the public interest. With respect to the specific legislative tests to be met, the Tribunal must be satisfied that the proposed ZBLA is consistent with the Provincial Policy Statement, 2020 (“PPS”). Additionally, the proposed ZBLA must conform with the applicable official plans (“OP”), in this case, the District of Muskoka Official Plan (“COP”) and the Township of Muskoka Lakes Official Plan (“TOP”). Finally, the Tribunal must have regard to matters of Provincial interest set out in s. 2 of the Act, and to the information and materials that the Township received in relation to the matters under s. 2.1(2) of the Act.
HEARING
10As evidence at the hearing, the Tribunal received the following exhibits, which were identified during the hearing:
a. Exhibit 1: Affidavit of Service of Notice of CMC (July 5, 2023)
b. Exhibit 2: Affidavit of Stefan Szczerbak
c. Exhibit 3: Minutes of Settlement, July 26, 2023
d. Exhibit 4: Municipal Record (including Bakewell Planning Report)
11The Tribunal received eight Participant requests and on the consent of the Parties, granted Participant status to each. The Participants were not in support of the application and generally indicated concerns related to safety, impact on neighbouring properties and precedent-setting.
12In support of the proposed ZBLA, and the Settlement proposal, the Appellant presented Stefan Szczerbak, a Registered Professional Planner in the Province of Ontario, and a full member of the Canadian Institute of Planners and Ontario Professional Planners Institute. Mr. Szczerbak was qualified by the Tribunal and on consent of the Parties, provided land use planning opinion evidence. By way of written and oral testimony, Mr. Szczerbak provided a comprehensive contextual and planning rationale in support of the application. He opined that the proposed ZBLA, which would recognize the existing structure as a boathouse satisfies all requisite legislative tests described above.
13During his testimony, Mr. Szczerbak also addressed the concerns raised by the Participants in their respective statements that were filed with the Tribunal.
14The Township confirmed support for the proposed settlement and did not provide any additional evidence at the hearing. Counsel for the Township indicated that the settlement mirrored the application request previously refused by the Council and that they supported the written evidence provided by the Appellant.
EVIDENCE
15Mr. Szczerbak provided uncontested evidence in support of this application and indicated that his review and recommendations align closely with the report and recommendations prepared by the Township Planning Staff and provided to the Planning Committee in February 2023 (“Staff Report”).
The [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) and PPS
16Mr. Szczerbak proffered that the application has regard for s.2 of the Act and is consistent with the PPS. He indicated the requested changes recognize a structure that has existed in its current placement for over ten years. He also indicated that the subject property is identified as Rural Lands in the PPS which permits residential development, accessory structures and uses and resource-based recreational activities (including recreational dwellings and accessory structures (PPS 1.1.5.2). He noted that s. 1.1.5.4 recognizes the importance of development being compatible with the rural landscape and sustained by rural services.
Official Plans
17Mr. Szczerbak opined that the proposed settlement conforms with both the COP and the TOP given that the existing structure was previously approved and the primary change in this application is to meet the definition of a boathouse instead of a boat port.
18In considering the COP, Mr. Szczerbak referenced s. J4.3.a.i which permits low-density, single-unit recreational dwellings and s. J4.4.2.b which permits recreational development in the form of a single unit with accessory buildings. He also opined that the TOP in s. B5.7 permits the same.
19In regard to maintaining the general character of the lake and neighbourhood, Mr. Szczerbak referred to s. J4.2.h and J4.3.i of the COP and s. B4.2, B4.16 and B4.18 of the TOP. He opined that given that the structure has been in place for over ten years, it is already part of the character of the neighbourhood. Mr. Szczerbak supported his opinion through photos of the area and identified a variety of other structures and landscapes that were like the Subject Property.
20In considering setbacks, Mr. Szczerbak indicated that the COP does not contain policies related to setbacks while the TOP in s. B.5.14 indicates the setback needs to allow “ingress and egress of boats into docks and boathouse slips while maintaining reasonable views and separation for privacy between neighbouring properties” and may provide alternatives when not possible. He opined that given the long-term use and the visual evidence presented, the application complies with these directions.
21Regarding building structures that extend beyond the shoreline, Mr. Szczerbak referred to s. B13.3 of the TOP and opined that the proposal has regard for critical fish habitat, the natural flow of water, privacy, and other environment-related policies. He indicated that this opinion is shared by the Planning Staff of the Township.
22In considering the impact of shoreline structures and impeding the view of surrounding properties, Mr. Szczerbak opined that the proposal complies with s. B.13.5 of the TOP and referred to the Planning Staff report which interpreted ‘views’ as the following:
one’s view is not intended to be defined across one’s common lot line projection with another property, or in other terms, owners are not entitled to unobstructed 180-degree views down both shorelines.
Comprehensive Zoning By-law (“CZBL”)
23In consideration of the components of the CZBL, Mr. Szczerbak indicated that the property is zoned Waterfront Residential (WR6) which permits accessory structures such as sundecks, docks, and boathouses. He also noted that s. 4.1.7.8 requires a setback of 45 ft when a boathouse roof is capable of being used as a sundeck yet a boathouse with a peaked roof may be 30 ft from a side lot line. He also indicated that the definition of a boat port and a boathouse is the same in the CZBL.
24Mr. Szczerbak opined that given that the current structure’s placement was previously approved by the CoA it is his contention that if the proposed amendments to the CZBL are approved, they also will fully comply with all applicable zoning provisions.
PARTICIPANT CONCERNS
25The Participants to the Hearing raised concerns about safety for swimmers and boaters, view obstruction for a neighbouring property and the precedent approval of this request sets.
26The Tribunal is satisfied that Mr. Szczerbak and the Township Planning Staff have considered participant concerns in forming their recommendations and accept their opinion evidence. Specifically, Mr. Szczerbak opined that water safety is not a planning matter and demonstrated through photo evidence that the boat port structure is common in this area and has been in place for over ten years. He also opined that there is no precedent being set in the proposal as boathouses and boat ports are already permitted and there are no policies that distinguish one from another. Finally, he suggested that the position provided by the Township Planning Staff addresses the obstructed view concern.
ANALYSIS AND DISPOSITION
27The Tribunal having reviewed the Minutes of Settlement, the Planning Staff Report, and heard uncontroverted expert opinion evidence in land use planning is satisfied that the ZBLA has appropriate regard for matters of provincial interest, is consistent with the Provincial Policy Statement, conforms with the ROP and TOP, and is consistent with the CZBL. The Tribunal is also satisfied that the proposal represents good planning and is in the public interest.
28The Tribunal accepts the testimony of Mr. Szczerbak and Township Planning staff with respect to the issues raised by the Participants and concurs that the requested ZBLA recognizes an established use. Water Safety is not a planning issue and approval of this amendment does not set a precedent as evidence has demonstrated that it complies with provincial, regional and local planning documents.
29The Tribunal concurs with the Township Planning Staff analysis regarding the impact on the view of a neighbouring property. Planning Staff noted that a Minor Variance Application A-102/11 permitted a 16-foot-wide boathouse with a peaked roof and height of up to 16 feet ‘as-of-right’ in the same location (Restricted Waterbody ‘-R- Zone provisions were not in place). The proposed boathouse for the Subject Property has a width of 11.4 feet and a height of 10 feet (plus a railing). The Staff acknowledged that the rooftop sundeck could allow for a greater intensity of use along the shoreline, but it could be argued that a flat roof has a lesser impact on built form and views than a peaked roof.
ORDER
30THE TRIBUNAL ORDERS that the appeal is allowed in part and By-law No. 2014-14 of the Township of Muskoka Lakes is hereby amended as set out in Attachment 1 to this Order.
31The Tribunal authorizes the municipal clerk of the Township of Muskoka Lakes to assign a number to this By-law as required.
“Gregory J. Ingram”
GREGORY J. INGRAM
MEMBER
Ontario Land Tribunal
Website: 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
THE CORPORATION OF THE TOWNSHIP OF MUSKOKA LAKES
BY-LAW 2022-196
By-law 2014-14 is amended by the Ontario Land Tribunal as follows:
- Section 12 of By-law 2014-14 is hereby further amended by the addition of the following subsection:
87-2066 i) The land affected by this amendment is described as Lot 27, Concession 8, (in the former Township of Wood), now in the Township of Muskoka Lakes, more particularly described as Lot 6, Plan M-269, as shown hatched on Schedule I to By-law 2022-196.
ii) Despite the provisions of Sections 4.1.7 and 4.1.7.8 of By-law 2014-14, as amended, for those lands described above, the minimum permitted setback for a boathouse with a sundeck on the roof from the south-easterly side lot line projection shall be 40 feet, as shown in the location and extent on Schedule II to By-law 2022-196.
iii) Despite the provisions of Section 4.1.7.19 b. of By- law 2014-14, as amended, for those lands described above, the maximum permitted boathouse length shall be 38.5 feet, as shown in the location and extent on Schedule II to By-law 2022-196.
All other provisions of By-law 2014-14 apply. To the extent of any conflict between By-law 2022-196 and By-law 2014-14, as amended, the provisions of By-law 2022-196 shall apply.
- Schedules I and II attached hereto are hereby made part of this By-law.
SCHEDULE I BY-LAW 2022-196