Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 08, 2024
CASE NO(S).: OLT-24-000713
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Niki Haley-Scott and Errol Duke Scott
Subject: Minor Variance
Description: To permit the development of a boathouse structure.
Reference Number: A-37/24.
Property Address: 1093 Island Park Road
Municipality/UT: Township of Muskoka Lakes
OLT Case No.: OLT-24-000713
OLT Lead Case No.: OLT-24-000713
OLT Case Name: Niki Haley-Scott and Errol Duke Scott v. Township of Muskoka Lakes
Heard: October 4, 2024 by Video Hearing
APPEARANCES:
Parties
Counsel/Representative*
Niki Haley-Scott and Errol Duke Scott
Jack Lorenz* (Agent)
Township of Muskoka Lakes
Ed Veldboom
memorandum of oral DECISION delivered BY STEVEN T. MASTORAS on october 4, 2024 AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1The matter before the Tribunal was a Hearing to consider a settlement proposal (“Settlement”) relating to an Appeal pursuant to s. 45(12) of the Planning Act (“Act”) from a decision by the Committee of Adjustment (“COA”) in the Township of Muskoka Lakes (“Township”) for refusing a Minor Variance Application (“MVA”).
2The Appeal has been filed by Niki Haley-Scott and Errol Duke Scott (“Applicants”/“Appellants”) who are seeking permission to construct a new single-storey boathouse structure, at the municipal address known as 1093 Island Park Road (“Subject Site”).
3For reasons that follow in this Decision, the Tribunal allowed the Appeal of the Township Comprehensive Zoning By-law No. 2014-14 (“ZBL”), with recommended conditions reflected in the Settlement, and as contained in the Order below.
HEARING EXHIBITS
4The following Exhibits were confirmed at the beginning of the Hearing on consent of the Parties:
Witness Statement of Lanny Dennis including his Curriculum Vitae and Acknowledgement of Experts’ Duty (dated October 3, 2024);
Minutes of Settlement (dated October 2, 2024); and,
Municipal Record
THE VARIANCE
Proposed Variance (per Schedule A)
Variance
ZBL 2014-14 Section(s)
Description
Permitted
Proposed
Relief
A
4.1.7 & 4.1.7.12 c.
Maximum Cumulative Width for a Single Storey Boathouse
23.7 ft.
28 ft.
4.3 ft.
5The Variance seeks to increase the maximum cumulative width for a single-storey boathouse from 23.7 feet (“ft”) to 28 ft, a variance of 4.3 ft, representing an increase in lot area from a permitted maximum of 16% to 18.9%.
LEGISLATIVE FRAMEWORK
6An Appeal pursuant to s. 45(1) of the Act is a hearing de novo. The Appellants bear the onus of demonstrating that the four tests as set out in s. 45(1) have been met, namely that the requested Variances:
Maintain the general intent and purpose of the Official Plan (“OP”);
Maintain the general intent and purpose of the Zoning By-law;
Are desirable for the appropriate development or use of the land, building or structure; and,
Are minor in nature.
7In addition, s. 3(5) of the Act requires the Tribunal’s Decision to be consistent with the Provincial Policy Statement 2020 (“PPS”) and must also have regard to the matters of Provincial interest as set out in s. 2 of the Act, as well as for the decision of the COA (comprised entirely of Municipal Council) and the information considered while making its decision, as set out in s. 2.1(1) of the Act.
SUBJECT SITE AND SURROUNDING AREA
8The Subject Site presently consists of a residential property which allows for an as-of-right boathouse, similar in general nature to other neighbouring properties with boathouses, docks, and other shoreline structures. Vegetative buffers currently exist along the westerly lot line from the existing dwelling, and there is an existing shed on the Subject Site.
PLANNING EVIDENCE
9Mr. Dennis appeared before the Tribunal and was duly qualified to provide expert opinion evidence in the area of land use planning, on behalf of the Appellants and the Township for the purposes of the Hearing. He confirmed that he was retained by the Appellants on August 22, 2024, and had not previously appeared before the COA on the matter.
10Mr. Dennis initially provided an overview of the Application, and confirmed that since his engagement, the Settlement was approved by the Township and confirmed by its Counsel on October 1, 2024. For the record, he further outlined that a Planning Staff Report (“PSR”) dated June 10, 2024; recommended approval of the Variance subject to the following condition:
That a satisfactory Site Plan Agreement be entered into and registered on title, along with securities, for retention of vegetation and plantings to retain and revegetate the shoreline buffer.
11Some key considerations in the PSR supportive of the legislative framework and the statutory ‘four tests’ included, but were not limited to some of the following excerpts (Exhibit 3, pg. 67):
The Township’s Official Plan and Comprehensive Zoning By-law establish maximum widths for shoreline structures with the general intent and purpose to control density and ensure built form does not dominate the shoreline. The Township’s Official Plan directs that the maximum cumulative single storey boathouse width permitted on a Category 1 Lake/River (Indian River) is 16% of the lot frontage. On this property, with a lot frontage of approximately 148 feet, the Township’s Comprehensive Zoning Bylaw stipulates that the maximum permitted cumulative single storey boathouse width is 23.7 feet. The proposed single storey boathouse with a rooftop sundeck is to be 28 feet in width, equivalent to 18.9% of the property’s lot frontage;
Based on staff’s site visit and available aerial photography (see Figure 2), there appears to be reasonable separation between the proposed shoreline structure envelope and shoreline structures on the abutting properties. The proposed boathouse complies with a required 45 foot side yard setback;
It is noted that the applicants have stated that their boat is longer than the allowable maximum boathouse width, thus necessitating the request for the over width boathouse. Staff acknowledge that the design of the proposed boathouse accommodates two boats gaining access parallel to the shore which further necessitates the increase in boathouse width. Ingress/egress of boats in this manner can occasionally be a concern for neighbours. Policy E.4.12 of the Township’s Official Plan states that side yard setbacks for shoreline structures are established 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. It is noted that the proposed boathouse meets the required side yard setbacks. It is also noted that the Township’s Zoning By-law contains no provisions controlling the orientation of boat slips;
Numerous Official Plan policies encourage shorelines to be maintained in a
predominantly natural state with tree cover and ground vegetation extending across a property’s shoreline to a target depth of 50 feet. Official Plan Policy B.6.5 explains that the role of naturally vegetated shorelines in buffering waterbodies from erosion, siltation and nutrient migration is critical to the protection of water quality and supports improvements upon the natural state of shoreline buffers during redevelopment;
The subject property is reasonably well vegetated aside from an open area along the shoreline. The proposed over width boathouse will contribute to built form on the property, and the opening with a clear view of the dwelling may exacerbate this. The subject property is zoned Waterfront Residential (WR1-7) owing to the presence of deer wintering habitat. Lands zoned WR1-7, including the subject lands, are subject to Site Plan Control, however docks/boathouses/sundecks, are exempt.
12Mr. Dennis noted that he also submitted his land use Planning Justification Report on September 9, 2024, to the Township, which corroborated the PSR and followed up with testimony providing a focus on the legislative framework.
THE PPS AND SECTION 2 OF THE ACT
13Mr. Dennis testified that the Subject Site is designated as Rural Lands, and that the Application maintains consistency with any and all applicable policies in the PPS.
14He also generally opined through his testimony, that the MVA has appropriate regard for s. 2 of the Act.
THE FOUR TESTS
Does the Variance Maintain the General Intent and Purpose of the Township Official Plan (“TOP”)?
15Mr. Dennis opined that while the Application is subject to the Upper tier, District of Muskoka Official Plan, and its more broadly based guidelines and policies, he confirmed that boathouses and docks are subject to the TOP. More specifically, he reiterated that the Subject Site is designated as the Waterfront Area and in a similar fashion as the PSR, stated that the Application conforms to the TOP.
16Mr. Dennis was also supportive of the recommended conditions included as part of the Settlement, in that they provide further assurance that the MVA conforms appropriately to the TOP.
17The PSR summarized that Species at Risk and Fish Habitat policy conditions were available to the COA, and presumably to Council, but neither of these issues were identified as conditions in the Settlement.
Does the Variance Maintain the General Intent and Purpose of the Zoning By-Law?
18The ZBL designates the Subject Site as Waterfront Residential (WR1-7). This permits the intended use, establishing maximum widths which ultimately controls density and limits permitted shoreline-built forms, minimizing adverse impact.
19Mr. Dennis opined that the Application “generally maintains the general intent and purpose” of the ZBL as “the marginal increase in width is visually in keeping with [the] area and does not dominate the shoreline, particularly with the application of site plan control for the retention of vegetation and additional plantings to assist in minimizing the built form.”
20The Tribunal noted that the PSR briefly references this test as follows:
It is noted that the proposed boathouse complies with all other applicable zoning provisions, including setbacks, length, height, etc. It is noted that the resultant lot coverage on the property will be 4.6% over the area of the entire lot and 7% over the area of the lot within 200 feet, which is less than the permitted maximums of 10%.
Is the Variance Desirable for the Appropriate Development or Use of the Land?
21Mr. Dennis opined that the boathouse is:
a) modest in size, with a single-storey, and a low-pitch roofline design;
b) there is an existing, well-vegetated shoreline, and the location proposed is “equidistant” from neighbouring properties;
c) it does not represent an overbuilt design, accounting for 4.6% of the entire lot; and,
d) as a permitted use, a boathouse of this nature would be “indiscernible and unrecognizable as seen from the water.”
Is the Variance Minor in Nature?
22With a width only 4.3 ft wider than what is permitted as-of-right, Mr. Dennis opined that “there are no unacceptable adverse impacts” and that combined with recommended site-specific conditions, the boathouse represents a relatively minor impact to the area character.
ANALYSIS AND DISPOSITION
23Based on the uncontroverted evidence from both witnesses, the Tribunal finds that the MVA, is consistent with the PPS, and has appropriate regard for s. 2 of the Act. The Application meets the statutory ‘four tests’ including that the MVA: maintains the general intent and purpose of the OP; maintains the general intent and purpose of the ZBL; is desirable for the appropriate development or use of the land, building or structure; and is minor in nature. Appropriate regard has also been given to the decision of the COA, as required under the Act.
24Finally, as a matter of record, Counsel for each of the Parties were invited to provide submissions relating to the pending new Provincial Planning Statement 2024 (“New PPS”) framework. There were no concerns or issues relating to the MVA maintaining consistency with the New PPS, should the Decision issue after the New PPS effective date of October 20, 2024.
ORDER
25THE TRIBUNAL ORDERS that the Appeal filed by Niki Haley-Scott and Errol Duke Scott is allowed, and the Variance to By-law No. 2014-14, in the Township of Muskoka Lakes, is authorized, subject to the following conditions required of the Applicants or other owner that they shall:
Enter into a Site Plan Agreement under Section 41 of the Planning Act. The said Agreement shall be to the satisfaction of the Township of Muskoka Lakes and registered on title, along with securities;
Include the retention of vegetation and plantings to retain and re-vegetate the shoreline buffer of the property, and include a provision wherein there is agreement to use the proposed boathouse for only those uses permitted by the Township's Comprehensive Zoning By-law No. 2014-14, as amended; and,
Construct the Proposed Boathouse substantially in accordance with the Site Plan Agreement.
“Steven T. Mastoras”
STEVEN T. MASTORAS
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.