TRG (Cherokee) Holdings Inc. v. Gravenhurst (Town), 2024 CanLII 23443

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 13, 2024

CASE NO(S).: OLT-23-000986

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: TRG (Cherokee) Holdings Inc.

Subject: Request to amend the Official Plan – Refusal of request

Description: To permit the development of a mixed-use boathouse containing commercial, residential and amenity spaces

Reference Number: OPA 01-2022

Property Address: 150, 160, 195 and 205 Cherokee Lane

Municipality/UT: Gravenhurst/Muskoka

OLT Case No.: OLT-23-000986

OLT Lead Case No.: OLT-23-000986

OLT Case Name: TRG (Cherokee) Holdings Inc. v. Gravenhurst (Town)

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

Subject: Application to amend the Zoning By-law – Refusal of application

Description: To permit the development of a mixed-use boathouse containing commercial, residential and amenity spaces

Reference Number: ZA 11-2022

Property Address: 150, 160, 195 and 205 Cherokee Lane

Municipality/UT: Gravenhurst/Muskoka

OLT Case No.: OLT-23-000987

OLT Lead Case No.: OLT-23-000986

Heard: February 28, 2024, by Video Hearing

APPEARANCES:

Parties	Counsel
TRG (Cherokee) Holdings Inc. (“TRG”/“Applicant”/“Appellant”)	Denise Baker
Town of Gravenhurst (“Town”)	Edward Veldboom

MEMORANDUM OF ORAL DECISION DELIVERED BY d. CHIPMAN ON FEBRUARY 28, 2024, AND FINAL ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This was a Settlement Hearing on the appeals filed by TRG (Cherokee) Holdings Inc. following the refusal of the Council for the Town of Gravenhurst on Applications for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”). TRG appealed pursuant to ss. 22(7) and 34(11) of the Planning Act.

2For the reasons set out below, the Tribunal will allow the appeals in part, and approve the OPA and ZBA and the attached Schedules A and B in accordance with the Minutes of Settlement.

SITE CONTEXT

3The Subject Lands are located along Cherokee Lane fronting Muskoka Bay in the Town. They are serviced by municipal water supply and sewage system, accessible by a municipally owned and maintained street (Cherokee Lane) and by Lake Muskoka. The total size of the Subject Lands along the shoreline (195 and 205 Cherokee Lane) is approximately 1.97 hectares, which is relatively flat, rectangular, contains some mature trees, and gradually slopes to the lake. They also include a water lot extending 200 metres from the shoreline. The other two parcels of the Subject Lands (150 and 160 Cherokee Lane) are approximately 0.14 hectares, and are vacant rectangular lots covered with vegetation.

4The Subject Lands are located within the Gravenhurst Wharf, which is a mixed-use area. The land use is predominantly commercial with some open space, and residential uses. The abutting properties to the Subject Lands consist of:

• To the North – High density residential (Alexander Retirement facility);
• To the South – Open Space (steamship port);
• To the East – Existing residential (Urban mixed-use waterfront designation); and
• To the West – Lake Muskoka.

5The two natural features that frame this section of the bay are Lake Muskoka, along the northwest edge, and the steep bedrock hill that runs along the shoreline, continuing east past Cherokee Lane. The abutting properties on top of the hill are mainly residential uses. The “Lookout Park” is located directly north of the subject water lot. The Bay Street Special Character designation and the central business district (Town core area) are located in close proximity to the Subject Lands.

BACKGROUND

6Prior to the submission of the Applications, TRG hosted a virtual Public Information Meeting on July 14, 2021. Approximately 60 people attended the virtual meeting due to COVID restrictions.

7The Applications were deemed complete on April 8, 2022, and a formal Notice of Complete Application was issued on April 22, 2022.

8The Notice of Concurrent Public Meeting was issued on February 7, 2023, and the initial public meeting was held on February 28, 2023.

9On July 25, 2023, staff completed their review of the modified proposal and recommended the approval of the Applications, based on their analysis.

10TRG revised the Applications once again, based on public comments, and staff continued to support the Applications. On September 6, 2023, the Town issued a Notice of Refusal.

11TRG appealed the Town’s decision on September 13, 2023. Since that time, the Parties have reached a settlement which is based on the same August 29, 2023, staff report presented to Town Council when it refused the Applications.

SETTLEMENT PROPOSAL

12The proposed settlement authorizes the approval of the following amendments to the Town Official Plan:

• C7.7.14.1 - The Subject Lands, being 150, 160, 195, 205 Cherokee Lane shall be defined as one lot for current and future planning purposes.
• C7.7.14.2 - Notwithstanding Section C7.7.6 b), the maximum permitted residential density shall not exceed 164 units per hectare and not exceed a gross floor area of 15,071 square metres.
• C7.7.14.3 - Notwithstanding any similar policies, to the contrary, a mixed-use building shall not exceed seven (7) storeys.
• C7.7.14.4 - Notwithstanding Section C5.9, C7.7.5 and similar policies, to the contrary, docks and boathouses extending out into Lake Muskoka will generally be longer than what is permitted and in general character with those contained within this designation.

13The Settlement Agreement also authorizes the granting of the following amendments to the Town Comprehensive Zoning By-law, as amended:

• Specify permitted uses;
• Define a “Beverage Brewing/Distilling” use;
• Specify parking requirements;
• Specify building setbacks and lot coverage;
• Specify maximum height and number of storeys;
• Limit the number of residential units and gross floor area;
• Permit docks and two storey boathouses projected out into Lake Muskoka; and
• Other similar zoning amendments.

PLANNING ANALYSIS AND EVIDENCE

14The Tribunal qualified Mr. Stephan Szczerbak, a registered professional planner in the Province of Ontario and a full member of the Canadian Institute of Planners, to provide opinion evidence in the discipline of land use planning. Mr. Szczerbak has experience in the municipal sector, which has included holding a planning position with the District of Muskoka (“District”).

15In his witness statement and through his viva voce evidence, Mr. Szczerbak provided a comprehensive contextual and planning rationale in support of the Revised Development.

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

16Section 2 of the Planning Act sets out matters of provincial interest for which regard must be had in making a decision. Mr. Szczerbak stated the Revised Development and Implementing OPA and ZBA have regard to s. 2 of the Planning Act, and in particular subsections a, d, e, f, h, k, l, n, p and r, as set out in the Planning Analysis Report dated July 2023 respectively, submitted by Planscape.

17The revised development is in an appropriate location for growth by providing for a variety of housing options and new employment opportunities in the Gravenhurst Urban Centre and around the Muskoka Wharf area.

18The revised development promotes built form that is well-designed, encourages a sense of place and provides for public spaces that are of high quality, safe, attractive and vibrant, that is designed to be oriented to pedestrians.

Provincial Policy Statement, 2020 (“PPS”)

19The revised development and Implementing OPA and ZBA are consistent with the PPS, and in particular, with policies 1.1, 1.3.1, 1.1.3.1, 1.1.3.2 b, 1.4.3, 1.6.6, 2, 3, 3.1.1, 3.1.2, 6, and 6.4 inclusive.

20The revised development provides for a mixed-use building that is consistent with the PPS as it relates to settlement areas being the focus of growth and development by providing a range of uses and opportunities for intensification.

21The revised development includes a mix of residential and commercial uses that reflects the existing character of the Muskoka Wharf area. The influx in commercial retail space represents an addition of small to medium sized retail space at the wharf that will support year-round commercial viability of the businesses. This addition to the regeneration of the settlement area is critical to the long-term economic prosperity of the community.

22The Tribunal heard that the supporting technical assessments provide a proper assessment of the natural features and their functions, including recommendations to ensure they are protected from the revised development. They further expand on how the existing floodplain elevation will be mitigated to ensure people and vehicles can safely access areas outside of the flood line.

23In Mr. Szczerbak’s opinion, the proposal to permit the development of a mixed-use building and associated accessory uses aligns with the policies set out in the PPS. He noted, this opinion is shared by Town staff.

District of Muskoka Official Plan (“District Plan”)

24The Revised Development and Implementing OPA and ZBA conform to the District Plan, as approved, and in particular, align with the objectives outlined in policies B1, B2, C, C.4, D, D1a, D1c, D1d, D1g, D1h, D1i, D1o, D1p, D1r, D1s, D12, D15, D20.1, E, E1a, E1b, E1d, F, F1d, F1h, H1l, F1n, F1p, F1s, F3, F3a, F3b, F3c, F3d, J1, J1a, J1b, J1c, J1d, J1e, J1f, J2a, J2b, J2c, K1a, K1b, K1c, K1d, K1i, and K11 inclusive.

25The proposal will permit a new mixed-use building that helps meet the 25% intensification targets on underutilized residential lands within the Wharf area, in close proximity to the downtown core.

26The proposal specifically builds on the permitted uses in this location, while promoting a community where people can live, work and play. The Subject Lands are within walking distance to the downtown core and supports the creation of a healthy community, a vibrant economy, and appropriate infill and intensification on lands that are underutilized.

27The District Plan also contains several policies encouraging intensification and infilling to further ensure the efficient usage of existing municipal infrastructure (municipal water & sewer, roads, sidewalks, etc.). The Subject Lands are serviced by existing municipal sewage and water services, optimizing this infrastructure to ensure a cost effective and efficient system.

28The Tribunal heard that compact, mixed-use neighbourhoods are encouraged as they are pedestrian friendly and offer characteristics that give residents “a sense of place” (Policy C.4).

29Mr. Szczerbak opined that the creation of a new mixed-use residential building in the corner of the wharf adds to the established businesses, restaurants, and tourist attractions. The Tribunal heard that in excess of 50% of the lot is to be landscaped and accessible to the public. In addition, the seventh floor of the building is proposed to be used for large private gatherings, providing additional outdoor amenity space for residents, and available as a rental venue to the public (weddings, etc.).

30The Subject Lands have direct access to Highway 169 which is a major regional road that connects Highways 11 and 400 along the west side of Lake Muskoka and Lake Rosseau. In addition, the wharf provides a navigable destination that draws regular boat traffic throughout the boating season. When conditions are favourable, it also provides a destination during the snowmobile season.

31Policy J4 of the District Plan recognizes the importance of providing boat parking facilities in any large-scale development. A Boat Impact Study was submitted that addresses the possible concerns over congestion in this area of the bay.

Town of Gravenhurst Official Plan (“OP”)

32The Subject Lands are located within the Urban Centre of the Town and are designated “Urban Mixed Use Waterfront Area” on Schedule A-1 to the OP.

33Mr. Szczerbak stated that the mixed-use development includes a range of commercial uses servicing the residential and tourist markets, as well as high density housing needs. This is consistent with the general policy direction of the Gravenhurst Urban Centre Goals and Objectives (Policy C.1- C.5). Although an amendment to the density policy within the OP, Policy C.7.7.6 provides the appropriate direction when considering higher density residential development, and Mr. Szczerbak opined that the Applications propose compact development, with significant amenity and open space, with a higher density of 165 units per hectare.

34The Tribunal heard that the site-specific policies set to be inserted after Section C7.7.13 of the OP build upon those set out in this specific designation and provide additional policy direction for the proposed land/waterfront interface, similar to what currently exists within the Wharf area. The proposed amendments also clarify the height of the proposed building and permit flexibility with the proposed parking via the Zoning By-law provisions.

35Mr. Szczerbak stated that the policies within the OP required that a technical study be submitted to ensure that any new docks and boathouses with the potential to increase boating capacity in this area be properly assessed to ensure that there are no issues related to the steamships. The Tribunal was informed that as a key feature, there are number of tours that go out on a regular basis in the summer and there is a requirement to provide a study to ensure that boating is safe in and around this area. The study was undertaken and reviewed by the Town and peer reviewed by the responsible agency, the Ministry of Natural Resources and Forestry.

Zoning By-law

36The Subject Lands are currently zoned “Commercial Special Purpose C-4 (S294 & S800)”, according to Appendix “A” and Appendix “C” of the Zoning By-law.

37The proposed ZBA deletes the current site-specific zoning provisions and replaces them with variances to permit the revised development. These specific provisions permit the maximum number of units in accordance with the OPA’s new density and maximum gross floor area policies, which provide for a maximum height of the building, minimum number of vehicle and boat parking spaces, and state reductions to the permitted yard setbacks for the proposed buildings and structures on land and out into the water.

Participant Statements/Public Concerns

38Upon review of the Participant Statements submitted, the Tribunal requested that Mr. Szczerbak provide a response to the following concerns raised:

1. Ownership of the remnant water lot (owned by TRG); and
2. Possible obstruction of Lookout Park by the proposed dock and boathouse structure.

39Mr. Szczerbak stated that Policy C7.7.7 of the OP outlines that: “There are a number of privately owned water lots adjacent to the shoreline. As a condition of development for a use over water, including docks, the balance of the water lot that is not to be used should be deeded to the Town.”

40Mr. Szczerbak emphasized that the policy does not require the remnant portion to be deeded to the Town and noted that throughout the entire process the Town did not indicate their desire to obtain ownership of said parcel.

41With respect to the possible obstruction of Lookout Park, he stated the original application included a 192 metre dock and boathouse structure projecting out into the water. The length of the structure was then reduced to 103.5 metres to address the encroachment on the adjacent Lookout Park. He demonstrated to the Tribunal that the park is also directly beside an Original Road Allowance, where only a small portion of the structure is located in front of this separate parcel of land.

Analysis and Disposition

42The Tribunal accepts the uncontested opinion evidence of Mr. Szczerbak and finds that the proposed OPA and ZBA are consistent with the PPS, conform with the District Plan, along with the Town OP, and are appropriate to implement the municipal and provincial policy directions.

43The Tribunal has had regard for applicable policies, guidelines and matters of provincial interest set out in s. 2 of the Act and finds that the proposed OPA and ZBA constitute good land use planning. The Tribunal considered the information and materials that the Town received in relation to the applications.

44In considering the matter, the Tribunal accepts Mr. Szczerbak’s opinion that the OPA and ZBA, which will facilitate the revised development, represent a compatible form of development in an area with existing infrastructure and services. There is a need for additional housing options in the Province and the proposed development is a form of intensification which will assist the District and the Town in achieving their intensification targets.

45The Tribunal accepts Mr. Szczerbak’s opinion evidence which was proffered in response to the Tribunal’s inquiry regarding concerns raised by members of the public related to ownership of the remnant lot and the possible obstruction of Lookout Park by the proposed dock and boathouse structure. The Tribunal finds that Mr. Szczerbak adequately addressed those concerns.

46The Tribunal finds that the proposal is an appropriate and desirable use of the Subject Lands, and in conjunction with the OPA and ZBA, represents good land use planning. The Tribunal will allow the appeal and approve the OPA and ZBA for the reasons set out above.

ORDER

47THE TRIBUNAL FURTHER ORDERS that the amendment to the Town of Gravenhurst’s Official Plan is hereby approved, as set out in Schedule A to this Order.

48THE TRIBUNAL FURTHER ORDERS that the amendment to the Town of Gravenhurst’s Zoning By-law No. 10-04 is hereby approved, as set out in Schedule B to this Order.

“D. Chipman”

D. CHIPMAN 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.