Richardson v. Lake of Bays (Township), 2024 CanLII 11537

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 12, 2024

CASE NO(S).: OLT-23-000789

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Joan Arlene Richardson

Subject: Zoning By-law/Amendment

Description: To permit a short-term rental within an existing dwelling unit in the primary building located on the subject property

Reference Number: Z 17-23 LOB

Property Address: 2833 Highway 60

Municipality/UT: Township of Lake of Bays

OLT Case No.: OLT-23-000789

OLT Lead Case No.: OLT-23-000789

OLT Case Name: Richardson v. Lake of Bays (Township)

Heard: December 11, 2023, by Video Hearing

APPEARANCES:

Parties

Counsel

Joan Arlene Richardson (“Applicant”)

Self-Represented

Township of Lake of Bays

John Ewart

DECISION DELIVERED BY J. INNIS ON DECEMBER 11, 2023, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Joan Arlene Richardson (“Applicant”), owner of lands known Municipally as 2833 Highway 60 (“Subject Property”), appealed the Township of Lake of Bays (“Township”) decision to refuse an application for a site-specific Zoning By-law Amendment (“ZBA”) to permit a Short-Term Rental (“STR”) within an existing dwelling unit, in a commercial building on the Subject Property.

2This case turns on balancing policies which promote local tourism (i.e. providing STR accommodations) verses those which encourage providing a greater supply and mix of longer-term housing options to the area. For the reasons set out in this Decision, the Tribunal upholds the decision of the Township, and dismisses the appeal.

SITE CONTEXT AND BACKGROUND

3The Subject Property is designated Community Area- Dwight, in the District of Muskoka Official Plan (“DMOP”) and Community Designation A4-Dwight, in the Township Official Plan (“TOP”). In the Township’s Comprehensive Zoning By-law (“ZBL”) No. 2004-181 (ZBL 2004-181), the Subject Property is zoned as Community Service Commercial (“C2”).

4The Subject Property is approximately 36.9 metres (“m’) wide and 100 m deep. With an approximate total area of 0.29 hectares, it is developed with a building, detached garage and parking area. The main floor of the building is used as a commercial space, consisting of offices, while the second floor is an accessory dwelling unit. In the location of the existing building and parking area, the Subject Property remains open to the front and west of the Property, while the back contains a Woodlot with dense vegetation and steep terrain.

5The surrounding lands of the Subject Property are within the Community Service Commercial (C2) Zone, except the lands directly across Hwy 60, which are zoned as Community General Commercial (C1). There are a mix of commercial and residential uses to the west and south, and residential uses to the east of the Subject Property.

6In July of 2021, the Township approved Zoning By-law Amendment No. 2021-076 (“ZBA 2021-076”), to control the use of STRs township wide. ZBA 2021-076 only permits STRs on properties that are zoned to permit residential uses as their primary use, and only permits STRs to be located within a primary dwelling. The following is the definition of a STR in ZBA 2021-076:

Means a primary dwelling or any part thereof that operates or offers a place of temporary residence, lodging or occupancy by way of concession, permit, lease, license, rental agreement or similar arrangement for thirty (30) consecutive calendar days or less with no on-site management throughout all or part of the year. Short-term rental uses shall not mean or include a bed and breakfast establishment, institutional tourist establishment, tourist campaign establishment, motel, resort, or similar commercial or institutional use.

7On April 14, 2023, the Applicant submitted application (Z 17-23 LOB), to the Township seeking to permit the operation of a STR in the existing accessory dwelling unit, in the commercial building. The amendment was required to permit the STR use in the C2 Commercial-zoned Subject Property, and to permit a STR in an accessory dwelling unit. The proposal will not modify the existing building or parking.

8A Township Staff Report recommended that the ZBA application be denied on the basis that the proposed rezoning and use of the Subject Property, as a STR, was neither appropriate nor maintained the intent of the policies pertaining to development in the Core Area of Dwight. The application was denied by Township Council on July 25, 2023, as it was deemed that the application did not conform to the intent of the TOP or ZBL 2004-181.

9Evidence was provided to the Tribunal by both Parties that the Applicant has not rented the accessory dwelling unit for some time and has no intention to do so. However, the Tribunal concurs with Counsel for the Applicant that the desire of the owner is not sufficient justification to support a change in the use.

EVIDENCE AND analysis

10The Tribunal must have regard to matters of provincial interest as set out in s. 2 of the Planning Act (“Act”) when making a decision regarding a ZBA. Under s. 3 (5) of the Act, the Tribunal’s decision on the ZBA must also be consistent with the Provincial Policy Statement, 2020 (“PPS”) and under s. 24 (1), the ZBA must conform with the DMOP and the TOP. The Township provided evidence that the general intent of the ZBL is a consideration too, however, this is not the part the legislative tests set out in the Act.

11The Tribunal heard evidence from two experts, who were affirmed and deemed qualified to provide expert opinion evidence in land use planning; Melissa Markham for the Applicant and Helena Craymer for the Township.

The Planning Act

12As the proposal does not require any new development, will use existing services, and will provide a range of housing, Ms. Markham opined that the application has regard for s. 2 of the Act. Ms. Craymer also acknowledged that the Proposed Development generally has regard to the matters of provincial interest as outlined in s. 2 of the Act.

13With the evidence provided, the Tribunal agrees with both expert witnesses that the application does have regard for matters of provincial interest as set out in s. 2 of the Act.

The Provincial Policy Statement, 2020

14As the Subject Property is within a rural settlement area, Ms. Markham opined that the proposed application is an efficient use of land that uses existing services and builds upon the rural character by providing opportunities for increased tourism in the Community of Dwight. Ms. Markham provided testimony that the application will enhance the use of the Subject Property, without adversely impacting the natural environment or public safety.

15Ms. Markham opined that the application would provide opportunities for increased tourism within the Community of Dwight, as identified in s. 1.1.4.1 of the PPS which provides that; “Healthy, integrated and viable areas should be supported by…providing opportunities for sustainable and diversified tourism.”

16For this reason, it was the opinion of Ms. Markham that the proposed application is consistent with the PPS.

17Ms. Craymer provided evidence that the proposed application is generally not consistent with the PPS when considering the community’s need for a diversified economic base and an appropriate range and mix of housing options. Ms. Craymer further opined that the continuing use of the existing Long-Term Rental (“LTR”) unit would instead provide a housing option in an area where this type of housing is limited.

18The Tribunal notes that neither Party provided any statistics to demonstrate a need for LTR housing in the area, but the Tribunal finds that it is common knowledge that the Province is dealing with a Province-wide shortage of housing. Consequently, the Tribunal accepts the proposition that, on a balance of probabilities, there is a shortage of a diversified mix of housing in the area.

19It was therefore the opinion of Ms. Craymer, that the proposed application was not consistent with the following sections of the PPS:

S. 1.1.4.1: Healthy, integrated and viable rural areas should be supported by: (c) accommodating an appropriate range and mix of housing in rural settlement areas;

S. 1.3.1 states, in part, that Planning authorities shall promote economic development and competitiveness by: (b) providing opportunities for a diversified economic base, including maintaining a range and choice of suitable sites for employment uses which support a wide range of economic activities and ancillary uses, and take into account the needs of existing and future businesses; (d) encouraging compact, mixed-use development that incorporates compatible employment users to support liveable and resilient communities, with consideration of housing policy 1.4; and

S. 1.4.3 in part, that Planning authorities shall provide for an appropriate range and mix of housing options…(b)permitting and facilitating: 1. All housing options required to meet the social, health, economic and well-being requirements of current and future residents, including special needs requirements and needs arising from demographic changes and employment opportunities.

20Ms. Craymer further opined that the retention of the accessory dwelling unit would aid in realizing the intent of s.1.1.4.1 c) and 1.3.1 b) and d) of the PPS, by providing a long-term housing option that would serve the local economy by providing support for the tourism sector in providing housing for its employees.

21Both expert witnesses concurred that STR’s are not specifically identified in the PPS as a housing option. However, based on the definition of STR used in ZBA 2021-076 and the oral testimony of the Applicant, the Tribunal finds that the proposed STR will not likely provide housing apart from tourist accommodations. As such, the Tribunal considers this use as temporary and accepts Ms. Craymer’s assertion that the proposal will remove a LTR unit, and her opinion that this is therefore inconsistent with the PPS insofar as its policies are aimed at promoting a diversified range and mix of housing.

22When balancing the policies of the PPS, including those directed at tourism and promoting longer term housing options, the Tribunal generally prefers Ms. Craymer’s opinions. This is because it is generally accepted that there is a shortage of longer-term housing options in the Province, and the intent of the PPS is to address this issue through policies aimed at promoting a greater supply and mix of housing. While this may take away some accommodations that would otherwise be available to accommodate tourists, the Tribunal does not accept that there is an equal urgency to supply tourist accommodations. At the same time, the Tribunal finds that the tourism industry is likely to be in similar need of longer-term accommodations to house its seasonal employees, so even the tourism industry will see some benefit from retaining LTRs in the area.

23Given all of the above considerations, the Tribunal finds that the balance tips against approving the applications for it being inconsistent with the goals and objectives of the PPS.

District of Muskoka Official Plan

24Section. F1.1 of the DMOP provides policies related to economic development. Ms. Markham testified that providing STR of a commercial property that’s near existing businesses, other tourist establishments, and the Dwight Beach, protects the natural environment and supports the tourism sector.

25Ms. Markham opined that the proposed STR, would strengthen the tourism sector and will continue to attract visitors to the area as is supported by the following section of the DMOP s. F7 which:

a) provides that it is an objective of the Plan that tourism sector be strengthened, enhanced, expanded and diversified by encouraging the upgrading and expansion of existing facilities or operations and the establishment of new uses; and

b) provides that is recognized that there are many forms of accommodation and tourism supportive uses in Muskoka and that a variety of accommodation types and other uses is desirable to continue attracting visitors to the area.

26As the Subject Property is developed within a small-scale commercial use that includes an accessory dwelling unit, it was the opinion of Ms. Markham that the application conforms to the DMOP, as it recognizes the character and history of the community, will provide an opportunity for sustainable and diversified tourism and has existing servicing.

27Ms. Craymer stated that having a healthy amount of available housing options contributes to a vibrant economy and is supported by s. F1.1 of the DMOP.

28The DMOP does not provide specific policies pertaining to STRs, however it does encourage area Municipalities to explore regulation options, which was done through ZBA 2021-076.

29Ms. Craymer opined that the application to permit a STR in an existing accessory dwelling unit, within a commercial building, is not supported by policy J2.1 of the DMOP, which pertains to the “Community Areas” encouraging the development of complete small-scale communities, with opportunities for an appropriate range and mix of housing. J2.1 states the following, in part as the objective of the Plan is to:

c) Encourage the development of complete small-scale communities, with opportunities for housing, employment, learning, and accessing amenities and services; and

d) Encourage the provision of an appropriate range and mix of housing, including attainable/affordable housing, where feasible.

30The DMOP addresses the need to develop complete communities that provide an appropriate range and mix of housing. The Tribunal accepts the opinion of Ms. Craymer insofar as the application does not conform with the DMOP, as the application would allow for the removal of a LTR unit and thus fail to safeguard attainable and affordable housing that would ensure a mix and range of housing. This, in turn, supports the economic function of tourism by providing a housing option for its permanent residents, with access to amenities and services within the community of Dwight.

Township of Lake of Bays Official Plan

31The Subject Property is within the Community of Dwight and is designated as Core Area under schedule A4 in the TOP.

32Ms. Markham provided evidence that a STR will support tourist uses, and that the application will enhance the economic opportunity, while respecting the character and heritage of the Township, and thus comply with the policies in s. B of the TOP.

33As there are no changes required to the built form on the Subject Property, Ms. Markham testified that there is already adequate access, services, and that the land use is compatible with the existing community. Ms. Markham opined that the use of the Subject Property as a STR, preserves the character and values of the Community designation, and is compatible with and complements the character of the Community of Dwight, while supporting its vitality, growth, and prosperity.

34Ms. Markham provided evidence that the use of the Subject Property as a STR aligns with the tourism centre function of the Community of Dwight as provided for in s. G. 169 of the TOP, which states:

Dwight will continue to grow as a low-density community, which acts as a commercial and service centre for the surrounding area, a tourism centre and an administrative centre. These functions will be preserved and enhanced.

35It was the opinion of Ms. Markham that the STR regulation implemented by the Township did not amend the TOP to permit the use in the Township, nor is there any reference to STR in the TOP, and as a result, the application conforms with the TOP.

36The approval of the application, in the opinion of Ms. Craymer, would have an adverse effect on the local economy. Ms. Craymer opined that the application serves to remove a housing unit option for LTR, which play a vital role in the economy, and it does not support the following objectives:

s. B.4: to strengthen the economy through land use and development which builds upon and complements the existing economic base of the Township in a fiscally, socially and economically sound manner; and

s. B.20: to provide for an appropriate range and mix of housing.

37Ms. Craymer provided evidence that the TOP does not explicitly address the provisions for staff housing, but that it does aim to bolster the tourism economy by way of supportive features, such as available housing for LTR. Ms. Craymer opined that the existence of affordable housing units that complement and support the tourism industry is supported by the TOP, and that the removal of this unit from the rental pool is not consistent with the intent of the TOP.

38Ms. Craymer opined that Community policies seek to enhance the economy and function of the communities and that the TOP sets out ways in which a community can be enhanced, that include the development of affordable housing and available LTR units. It was the opinion of Ms. Craymer that the conversion of a LTR unit to a STR does not reflect enhancement of function for a healthy community or align with the importance of attainable and affordable housing in the community.

39The TOP contemplates residential and commercial development within the Community Designation, and the ‘Core Area’ policies in the “Community of Dwight” specifically contemplate the land uses on the Subject Property. The primary use of the Subject Property is commercial, and Ms. Craymer opined that the TOP does not contemplate accessory dwelling units within commercial buildings in the Community Area, as the existing accessory dwelling unit in the application was in existence before the TOP came into effect.

40Ms. Craymer provided evidence that the commercial use of the property is supported by the Community of Dwight policies and that accessory residential units are contemplated in the Core Area of Dwight. Ms. Craymer opined that the dwelling unit in the application is an accessory to the established commercial use of the Subject Property, and that accessory residential units are intended to enhance the function of the economy by providing a LTR unit to assist in providing housing for an employee of a local business.

41It is the opinion of Ms. Craymer that permitting a STR in an accessory dwelling unit, within a commercial building on a commercial property does not conform to the Community of Dwight policies, as this action would remove a LTR unit, adding to the shortage of this type of housing being available.

42Ms. Craymer provided evidence that within the Community of Dwight and near the Subject Property, are small-scale resorts that provide STR accommodations. Ms. Craymer also indicated that the use of the accessory dwelling unit as a STR would not reflect the highest and best use of the property, but rather the use as a LTR would provide greater tourism supportive use through the means of available and attainable housing.

43Upon considering the above evidence and in balancing the applicable policies of the TOP, the Tribunal prefers the evidence provided by Ms. Craymer insofar as an appropriate mix of housing is required as a supportive feature of the economy and tourism function of the Community of Dwight. Ms. Markham’s evidence that STR’s conform with the TOP as a permitted use as the Township was not required to bring forward an Official Plan Amendment when they implemented ZBA 2021-076 to regulate STRs, does not reflect that the ZBL only permits them in primary dwellings and on residential properties. The Tribunal further finds that accessory dwelling units in the Community of Dwight are intended to enhance the function of the economy by providing LTR opportunities. As such, the Tribunal accepts Ms. Craymer’s conclusion that the application does not conform with the TOP.

FINDINGS AND DECISION

44The Tribunal accepts the mutual positions of the Parties insofar as the proposal has sufficient regard for matters of provincial interest in accordance with s. 2 of the Act. The Tribunal further accepts that, while the PPS, does not acknowledge STRs as a housing option, it nevertheless emphasizes the necessity to provide a diverse housing mix. The Tribunal further finds that providing attainable housing options, such as LTRs, will also support tourism and economic development by ensuring a mix and range of housing to meet the housing needs of area employees. The Tribunal generally accepts the evidence of Ms. Craymer, and similarly finds that the application is not consistent with the PPS.

45The Tribunal further finds that it is an objective of the DMOP to strengthen the tourism sector and that a variety of accommodation types and other uses are desirable to continue to attract visitors to the area, but it also recognizes the need to develop complete communities that provide a range and mix of housing. The Tribunal finds that LTR accommodations are required to achieve a range and mix of housing to build complete communities and to support the tourism sector, as objectives and goals of both the DMOP and the TOP. Additionally, the Tribunal finds that this application would allow for a conversion of an accessory dwelling unit to a STR, reducing the supply of attainable housing. To this extent, the Tribunal prefers the conclusions of Ms. Craymer insofar as the application does not conform with the DMOP or the TOP.

46The Tribunal comes to the finding that the application to permit a STR in an accessory dwelling unit within a commercial building, on a commercially zoned property has regard for the provincial interests expressed in s. 2 of the Act, but it is not consistent with the PPS and does not conform with the DMOP, or the TOP.

47The Tribunal upholds the decision of the Township and dismisses the appeal. The focus on providing accommodations for visitors/tourist lacks comparable policy emphasis to the priority by both the Province and the Township, to ensure housing availability and affordability.

ORDER

48THE TRIBUNAL ORDERS that the appeal is dismissed, and the requested amendments to Zoning By-law No. 2004-181 of the Township of Lake of Bays is refused.

“J. Innis”

J. INNIS

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.