Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 07, 2024

CASE NO(S).: OLT-23-000666

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

Applicant and Appellant: Carolyn Ferrier-Howard and Peter Howard

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit a one-storey boathouse with a sun deck and a new dock

Reference Number: ZBA-43/22

Property Address: 27 Tobin Island (R60)

Municipality/UT: Township of Muskoka Lakes / District of Muskoka

OLT Case No.: OLT-23-000666

OLT Lead Case No.: OLT-23-000666

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

Heard: November 01, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Carolyn Ferrier-Howard and Peter Howard	Meaghan McDermid
Township of Muskoka Lakes	Jennifer Biggar

MEMORANDUM OF ORAL DECISION DELIVERED BY C. TUCCI ON NOVEMBER 01, 2023 AND ORDER OF THE TRIBUNAL

1The matter before the Tribunal is an Appeal brought by Carolyn Ferrier-Howard and Peter Howard (together referred to as “Applicant”) pursuant to s. 34(11) of the Planning Act (“Act”) with respect to the Township of Muskoka Lakes (“Township”) failure to announce a decision respecting an application to amend Zoning By-law No. 2014-14 (“ZBLA”) with respect to 27 Tobin Island (“Subject Lands”) in the Township.

2A ZBLA is required to rezone the Subject Lands from Waterfront Residential (WR5) in the Township's Comprehensive Zoning By-law No. 2014-14 to a site-specific zoning to permit an increase in the maximum dock length and one-storey boathouse length, and a reduction in the required side yard setback for a boathouse with a rooftop sundeck (“Proposed Development”). Further, the ZBLA proposes to remove the restrictions imposed through By-law No. 2004-113 which prohibits boathouses and limits the location and size of docks at the Subject Lands. The application was deemed complete on November 25, 2022.

3The Tribunal was informed that the scheduled one-day hearing would not be required, as the Parties confirmed that a Settlement had been reached and was presented for the consideration of the Tribunal.

4Prior to the scheduled hearing and subsequent Settlement presentation, the Tribunal was in receipt of a Party status request from Stephen Niblett, an adjacent neighbour.

5Mr. Niblett expressed strong opposition to the boathouse expansion to which he provided that it directly impacts a registered aerodrome landing path situated near the proposed boathouse extension.

6Ms. McDermid objected to the request providing that the evidence submitted by Mr. Niblett was received a few days late on Thursday, October 26, 2023 despite the final due date of Monday, October 23, 2023.

7The Tribunal appreciates the efforts and involvement of Mr. Niblett and believes that the Minutes of Settlement and the Conditions imposed, will satisfy any concerns presented. The request for Party status is not approved and Participant status was ultimately granted to Mr. Niblett.

8The Tribunal was presented the following materials for this Settlement hearing:

1. Witness statement of Rian Allen - Exhibit 1
2. Document Book - Exhibit 2
3. Witness statement of Al Adams - Exhibit 3
4. Witness statement of Al Shaw - Exhibit 4
5. Minutes of Settlement - Exhibit 5

EVIDENCE AND SUMMARY OPINION

9The Tribunal was presented with three witnesses’ statements supporting the Settlement.

1. Rian Allen, a professional land use planner with the firm Planscape Inc. Mr. Allen has over 20 years of professional land use planning experience and has previously been qualified to provide expert evidence in the area of land use planning before the Ontario Land Tribunal and its predecessors.

10Mr. Allen was affirmed and qualified to provide expert evidence in relation to land use planning.

11Mr. Allen opined that the proposed ZBLA;

1. Has regard for matters of provincial interest under s.2 of the Act, specifically;
2. Is consistent with the Provincial Policy Statement (“PPS”);
3. Conforms to the Township and District Official Plans (“OP”);
4. Provides for a compatible design that does not create any adverse impacts and,
5. Is appropriate for the Subject Lands, represents good planning, and is in the public interest.

12Mr. Allen addressed the concerns raised by a neighbour related to the proximity of the proposed dock and boathouse to an existing aerodrome.

13The Tribunal heard that the proposed dock and boathouse are located more than 44 meters (144 feet) from the closest part of the dock of the neighbouring property used as an aerodrome, and further away than the existing dock. The proposed new dock and boathouse will maintain the same setback distance as the existing dock, and therefore should not have any greater impacts on navigation than the existing dock. The separation distance combined with shallow water depths at the back of the bay will prevent any impacts related to the new dock and boathouse.

2. Al Adams, an Air Canada Captain Check Pilot with over 18 years of experience with accreditations that include flying ratings for Boeing 777, Airbus A340 and A320, Embraer 190 and recreational float planes such as Cessna 185.

14The Tribunal was informed for the purposes of full disclosure that, Mr. Adams, shares family relations with Counsel for the Applicant.

15Mr. Adams was affirmed and qualified to provide expert evidence in relation to aviation.

16Through his testimony, Mr. Adams opined the proposed new dock and boathouse within the existing settings and adjacent aerodrome, poses no negative impact on the ability to land safely and dock floatplanes at the Applicant’s dock.

3. Al Shaw, a senior ecologist with the Firm RiverStone and a practicing environmental consultant with for over 20 years experience.

17Mr. Shaw was affirmed and qualified to provide expert evidence in relation to Ecology and Fish habitats.

18The Tribunal heard that the proposed ZBLA establishes the permitted location and dimensions for the proposed dock and boathouse. Mr. Shaw reviewed the proposed ZBLA and its Schedules and confirmed that the dock and boathouse is identified within the Type 2 Fish Habitat area in accordance with the recommendations of his 2022 Fish Habitat Assessment.

19The Fish Habitat Assessment recommended that the Proposed Development be directed to the Type 2 Fish Habitat, which has been appropriately incorporated into the proposed ZBLA.

20Mr. Shaw opined that the Proposed Development is located in the most appropriate position on the shoreline and will avoid critical habitat for fish.

FINDINGS

21On the strength of the uncontradicted expert opinion evidence of the three witnesses, and upon a review of the applicable provisions of the Act, the PPS, the local and district OPs, the Tribunal is satisfied that the proposed ZBLA represents an efficient use of land, resources, and infrastructure and poses no inherent threat to both the safety of the community and local wildlife habitats.

22Further, the Tribunal is of the view that the Settlement reached by the Parties is fair and reasonable, and that the resulting ZBLA represents good planning in the public interest. The Tribunal praises the Parties in working collaboratively and engaging in productive discussions in order to reach a Settlement in these proceedings.

ORDER

23THE TRIBUNAL ORDERS that the Appeal is allowed in part and directs the Municipality to amend By-law No. 2014-14 as set out in Attachment A to this Order. The Tribunal authorizes the Municipal Clerk of the Township of Muskoka Lakes to assign a number to this by-law for record keeping purposes.

24The Member may be spoken to should any issues arise with respect to the implementation of this Order.

“C. Tucci”

CARMINE TUCCI

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.