Shewchuk v. Muskoka Lakes (Township), 2024 CanLII 102779

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 18, 2024

CASE NO(S).: OLT-24-000640

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Robert Shewchuk

Subject: Minor Variance

Description: To modify an existing boat dock structure

Reference Number: A29/24

Property Address: 1077 River Street

Municipality/UT: Township of Muskoka Lakes

OLT Case No.: OLT-24-000640

OLT Lead Case No.: OLT-24-000640

OLT Case Name: Shewchuk v. Muskoka Lakes (Township)

Heard: September 11, 2024 by Written Hearing

APPEARANCES:

Parties

Representative

Robert Shewchuk

Leo Longo

Township of Muskoka Lakes

Edward B. Veldboom

DECISION DELIVERED BY A. SNOWDON AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal concerns an appeal filed pursuant to s. 45(12) of the Planning Act, R.S.O. 1990, c.P.13 (“Act”) by Robert Shewchuk (“Appellant”) regarding the decision of the Township of Muskoka Lakes (“Township”) Committee of Adjustment (“COA”) to approve, in part, the minor variance application (“MV”) for 1077 River Street (“Site”) in Bala within the Township.

2The Site is located on Moon River and is surrounded by other neighbouring residential dwellings, some of which contain boat docks of varying lengths. It is zoned R4-Residential Waterfront. R4 zoning permits a residential dwelling. A two-storey dwelling and a floating dock, that extends 15 feet onto the land, exist at the Site. The dock was rebuilt without the Appellant having a building permit.

3The Moon River is zoned WOS-Waterbody Open Space (“WOS”). Docks, boathouses, and/or sun shelters are permitted in WOS zoning if they are an accessory use to the permitted uses of the nearest abutting zone above the high-water mark and subject to the provisions of the abutting zone.

VARIANCES REQUESTED

4The MV requested the following variances:

a. to permit a dock to be a maximum of 70 feet in length from the high-water mark instead of the required 66 feet;

b. to permit a minimum side yard setback of six feet (at the closest point) from the southeasterly side lot line for a dock instead of the required 15 feet;

c. to permit a dock to be located in the front yard a maximum distance of 15 feet instead of the required 10 feet;

d. to permit a minimum side yard setback from the southeasterly side lot line of 13.5 feet for a new sun shelter instead of the required 15 feet; and

e. to permit a maximum lot coverage “entire lot” of 17.8% (4955 square feet) instead of the required 15% (4177.6 square feet).

5On May 13, 2024, the COA issued a decision stating that the Application meets the four tests of a minor variance and permitting the MV subject to the following conditions:

a. that an Amending Site Plan Agreement be entered into, along with securities, to retain and re-vegetate the shoreline buffer and to implement the recommendations of the Scoped Environmental Impact Study, dated February 15, 2024, prepared by RiverStone Environmental Solutions; and

b. that the as-built boat port/canopy structure be removed.

6The Appellant is requesting that the appeal, with the above-mentioned variances, recognize an as-built dock structure and to approve the construction of a 192 square foot sun shelter. Additionally, they are requesting that approval of the appeal not be subject to condition b which requires the removal of the as-built boat port/canopy structure.

PARTICIPANT STATEMENTS

7The Tribunal received four participant statements from Anne Buck, David Rattray, Joyce Wilson, and Kelly Wimbush (Exhibits 6-9). All Participant statements were objecting to the MV citing that the Site exceeds the maximum lot coverage, and that the development isn’t appropriate for the area.

SUBMISSIONS

8The Appellant provided the Witness Statement of Stefan Szczerbak, the witness’ CV, Affidavit of Experts Duty, and planning evidence supporting their statement. This submission was marked as Exhibit 1. A supplemental affidavit, requested by the Tribunal, was received from Stefan Szczerbak on October 8, 2024, and marked as Exhibit 5.

9Stefan Szczerbak, a Registered Professional Planner and Principal at Planscape Inc., provided the Tribunal with opinion evidence set out in their Witness Statement dated September 11, 2024 and their supplemental Affidavit. Planner Szczerbak has been qualified by the Tribunal previously to provide expert evidence in land use planning matters.

[Section 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

10The Tribunal must have regard to matters of Provincial interest as set out in s. 2 of the Act when making a decision regarding a MV Application. Under s. 3(5) of the Act, the Tribunal’s Decision on the MV must be consistent with the Provincial Policy Statement, 2020 (“PPS”).

11When considering a proposed variance, the Tribunal must consider each of the four elements set out in s. 45(1) of the Act, to determine if the requested variance:

1. maintains the general intent and purpose of the Official Plan;

2. maintains the general intent and purpose of the Zoning By-Law;

3. is desirable for the appropriate development or use of the land; and

4. is minor in nature.

12The Appellant bears the onus of demonstrating that the four tests, as set out in s. 45(1) of the Act, have been met.

Provincial Policy Statement

13The Planning Report from the Township (Exhibit 5) states that the Site is within the Settlement Area and the MV is consistent with the PPS.

General Intent and Purpose of the Official Plan

14Planner Szczerbak stated that they reviewed the Township Official Plan 2013 (“OP”) and the Adopted Official Plan 2023. They stated that the Application has regard for both of them.

15Planner Szczerbak stated that, in s.11.1.2 of the OP, the residential development policies support a variety of residential land uses and densities. They opined that sun decks, sun shelters, and docks are permitted within the residential designation.

16Planner Szczerbak testified that the existing dock and proposed sun shelter are in keeping with the character of the neighbourhood as dictated by the OP. Sections.B.4.2, B.4.18, B.5.2, and B.5.46 of the OP states that waterfront lots need to support the compatibility of development within the character of an area, maintenance of vegetation and the natural environment, and minimizing the dominance of built form. The intention is that the vegetative shoreline will be maintained, and that the vegetation will eventually screen the built form.

17Planner Szczerbak stated that the sun deck and proposed sun shelter will not impede the immediate view of the surrounding properties as dictated by ss. L15.1 c) & d) and is located on a rocky shore where no vegetation exists, which is inline with ss.B.5.14 and B.13.5 of the OP.

18Planner Szczerbak indicated that retaining and revegetating the shoreline (via Site Plan Control) will improve the conditions of the Site to conform with s. I6 h) i). A condition of this Application would ensure that the vegetative buffer would be across the entire water frontage to meet s. I6 h) ii)

19Planner Szczerbak’s professional planning opinion is that the MV maintains the general intent and purpose of the OP.

General Intent and Purpose of the Zoning By-law

20Under the R4 zoning in the Township of Muskoka Lakes By-Law No. 2014-14 (“ZBL”), a single residential dwelling and accessory structures, such as sun decks, sun shelters, and docks, are permitted.

21Furthermore, the ZBL allows a dock or sun shelter in the WOS Zone as long as it abuts a Residential Zone and provided it is an accessory use. Planner Szczerbak provided evidence to support the Appellant’s position that the deviations from the ZBL are appropriate.

22Dock Submissions of Planner Szczerbak :

a. The dock is a re-build of an old dock with “one finger” of the dock extending to 70 feet. The finger extending beyond the limit is due to the shape of the shoreline. The other finger of the dock is within the 66 foot requirement;

b. The new dock has a greater setback than the old dock. The old dock had a side lot setback of three feet whereas the new dock has a setback of six feet. The ZBL is silent on dock side yard setbacks; and

c. The variance required for the on-land portion of the dock, 15 feet instead of 10 feet, is to accommodate the proposed sun shelter. Planner Szczerbak stated that this extension is located on an existing rock outcrop where no site alteration or vegetation removal was required.

23Sun Shelter Submissions of Planner Szczerbak:

a. The proposed sun shelter complies with s. 5.1.11 c) of the ZBL (e.g., max shelter area is less than 200 square feet, not enclosed on any side, not taller than 15 feet, no part more than 35 feet from high water mark) except the side lot setback.

b. The sun shelter is subject to the required setback of 15 feet. The proposed sun shelter is 13.5 feet from the side yard lot line.

c. The construction of the proposed sun shelter increases the lot coverage to 17.8% where the allowable coverage is 15% (s. 5.1.9 j). The 15% limit is to allow for private on-site sewage disposal. He stated that the proposed sun shelter is not a habitable structure and does not impact the location of the existing on-site sewage system.

24Planner Szczerbak’s professional planning opinion is that the MV maintains the general intent and purpose of the ZBL.

Desirable for the Appropriate Development or the Use of Land

25Planner Szczerbak testified that the R4 Zone allows residential dwelling and accessory structures, and the WOS Zone permits docks, sun decks, and sun shelters provided they abut the residential zone.

26They opined that because no tree removal or site alteration was required, the proposed sun shelter will not change the character of the Site or impact the privacy of the neighbouring properties.

27Planner Szczerbak’s professional planning opinion is that the MV is desirable and appropriate for the Site.

Is Minor in Nature

28Planner Szczerbak stated that the new dock has a larger side lot setback than the previous dock and that the new dock configuration functions better for mooring a boat with less seating area. They feel that this reduces the impact of the development and is therefore minor.

29It is Planner Szczerbak’s professional planning opinion that the MV is minor in nature.

BOAT CANOPY

30The Appellant has had an existing temporary removable canvas canopy over the dock’s boat slip. The Appellant has submitted that under s. 11.40 of the ZBL, the boat canopy falls under the definition of a dock as it is neither a boathouse nor a boatport. Boathouses and boatports are, in part, defined as “roofed” structures whereas the boat canopy is a temporary removeable canvas cover.

31The Township contends that the boat canopy frame is defined in s. 11.171 of the ZBL as a structure. A structure is defined as something, “that is…erected of parts joined together”.

32The Township stated that the boat canopy is not an accessory structure (s. 11.1) as defined in the ZBL which would be allowed in s. 3.5.2. To qualify as an accessory use/structure, the structure must be “located on the same lot” as the principal use to which it is incidental and subordinate.

33The Township testified that the dock and boat canopy are located within the WOS Zone which does not allow principal or main uses or structures to be permitted. To be a permitted use or structure in the WOS Zone, the use or structure must be accessory to the principal/main use in the abutting zone above the highwater mark, which is R4. The Township stated that only three permitted specific accessory uses/structures can be in the WOS Zone, and they do not include a boat canopy. Furthermore, the Township has indicated that the boat canopy “dramatically changes the otherwise low-profile nature of docks”.

34The Appellant stated that a dock is a permitted accessory structure to the residential property and that as boathouses and boatports are permitted uses in the WOS Zone, the boat canopy will not change the low-profile nature of docks.

FINDINGS

35The Tribunal accepts the evidence of the Appellant and finds that the requested variances have regard for the Provincial interests expressed in s. 2 of the Act, are consistent with the PPS, and satisfy all four elements of s. 45(1) of the Act.

36Additionally, the evidence for meeting the legislative tests for minor variances provided by the Appellant has not been opposed by the Township and has not been contradicted by any other Party.

37With regards to the boat canopy, the Tribunal finds that the explicit exclusion of boathouses and boatports from the definition of a dock suggests that other structures could be erected on/near a dock and would be considered part of the dock so long as they do not meet the criteria of a boathouse or boatport. Therefore, the Tribunal finds that the boat canopy is, by definition, part of the dock and it is a permitted use.

38Given that boathouses and boatports are considered permitted uses in the Township, the Tribunal finds that the argument that a boat canopy would change the low-profile nature of docks to be irrelevant.

ORDER

39THE TRIBUNAL ORDERS THAT the appeal is allowed and the variances to the Township of Muskoka Lakes By-Law No. 2014-14 are authorized, subject to the following condition:

1. That an Amending Site Plan Agreement be entered into, along with securities, to retain and re-vegetate the shoreline buffer and to implement the recommendations of the Scoped Environmental Impact Study, dated February 15, 2024, prepared by RiverStone Environmental Solutions Inc.

“A.Snowdon”

A.SNOWDON

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.