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Shoreline Development

  1. Jones v. Township of Seguin

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Residential Development, Severances, Shoreline Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    An appeal by the Applicant was made against the failure of the Committee of Adjustment of the Township of Seguin to approve an application for three new lots and against the approval by the Township of Comprehensive Zoning By-law No. 2006-125 with regard to a waterfront property at 189 Isabella Lake. The proposal was to create three parcels from the subject property which will divide the property into four seasonal residential lots with frontage on Lake Isabella. Issues included access on a private road and recreational carrying capacity.


    Held:

    Appeals dismissed.


    Reasons:

    The Board made a finding that the Clergy Principle, modified by James Dick, required that the applications would be tested against the policies in force at the time of application, and that while subsequent policies could be considered, they would not be determinative. The Board concluded that the consent applications do not conform to the Official Plan and they do not have appropriate regard for s. 51 (24) of the Planning Act. Approval of the application would be contrary to the intent of the Official Plan to limit development of waterfront areas on Lake Isabella. The Official Plan policies with regard to access were not achieved because access would be provided on a private road over which a proper registered right of way does not exist. With regard to the zoning appeal, the Board found that it is appropriate to place the lands into the Limited Service Residential zone, where land is not accessed by a public road.


    Document(s):



  2. Township of Muskoka Lakes v. Ontario (Natural Resources)

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Heritage Conservation, Judicial Review, Renewable Energy, Shoreline Development


    Court:

    Court of Appeal


    Application/issue:

    The Township of Muskoka Lakes appeals the order of the Divisional Court dismissing its application for judicial review of the decision of the Minister of Natural Resources to prohibit access to certain Crown lands adjacent to Bala Falls under section 28(1) of the Public Lands Act, and for orders: (1) declaring that a portage protected by section 65(4) of the Public Lands Act passes over the site; (2) prohibiting the Minister or any other person from interfering with that portage; (3) setting aside the water frontage at the Site for recreational purposes and access purposes pursuant to section 3 of the Public Lands Act; and (4) prohibiting any interference with that frontage.


    Held:

    Appeal dismissed


    Reasons:

    The Court sees no basis for interfering with the Divisional Court’s decision, as they believe that the Divisional Court identified the appropriate standard of judicial review and applied it correctly. Given the safety concerns, the Minister’s decision was reasonable, even if a portage protected by section 65(4) existed, or section 3 applied to the site. The Minister’s decision fell within a range of possible, acceptable outcomes, which are defensible in respect of the facts and law. Further, subject to any aboriginal and treaty rights, the Minister has the right to make an order under section 28(1) that has the effect of prohibiting passage over portages and Transport Canada has also provisionally concluded that navigation would not be substantially impacted by the proposed waterpower generation facility. The Court of Appeal agrees with the Divisional Court that the Minister’s decision was reasonable without having to make findings on the existence of the alleged portage and the sufficiency of the frontage.


    Document(s):



  3. Boswell v. Seguin (Township)

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Boathouses, Minor Variances, Shoreline Development


    Court:

    Ontario Municipal Board


    Application/issue:

    This variance hearing was uncontested. On Lake Joseph, there are many substantial boathouses with upper living quarters. Some are larger than what is permitted by today’s zoning – which was sometimes adopted years after these structures were built. Boswell (Applicant) owned on of those non-complying structures in the Township of Seguin. The Applicant proposed a boatlift apparatus, intended for the boat moored under her awning. Although these devices spend much of their time underwater, By-law 2006-25 treats any “in-water shoreline structure or facility” in much the same way as a building. The Applicant applied for three variances: to reduce the sideyard setback; to allow a corresponding increase in width of the boathouse; and to allow an adjustment in the allowable shoreline frontage. The Committee of Adjustment received letters of opposition and the Committee turned down the variances. The Applicant then appealed to the Board.


    Held:

    Appeal allowed


    Reasons:

    Although there are many instances where concerns would be justified, the Board was not convinced that they apply to the fact situation here. In terms of visual impact, and respect for the water and the shoreline: at present, the view is of a boat at water level, under a cantilevered awning; under this proposal, the only change to that vista would be that the boat would be propped, instead of being at water level. The Board was not persuaded that, in this specific case, the incremental act of propping the boat under the awning would represent a significant visual digression – as viewed from the lake. The Board concludes that the evidence makes the proposed variances minor, for the purposes of the Planning Act.


    Document(s):



  4. Township of Muskoka Lakes v. Ontario (Minister of Natural Resources)

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Heritage Conservation, Judicial Review, Renewable Energy, Shoreline Development


    Court:

    Ontario Superior Court of Justice – Divisional Court


    Application/issue:

    The Township sought judicial review of the Minister of Natural Resource’s decision to issue a section 28 order prohibiting the use by the public of Crown land adjacent to the Bala Falls. The MNR was prepared to lease the lands to Swift River Energy Ltd. to develop the site for hydroelectric power. The Township sought the following declarations, orders and relief: (1) declaring that a portage protected by section 65(4) of the Public Lands Act passes over the site; (2) prohibiting the Minister or any other person from interfering with that portage; (3) setting aside the water frontage at the Site for recreational purposes and access purposes pursuant to section 3 of the Public Lands Act; and (4) prohibiting any interference with that frontage.


    Held:

    Application dismissed


    Reasons:

    The Township has failed to establish that the Ministry’s decision to issue a Notice under s. 28 was unreasonable such that it could invoke our right to interfere with it under the court’s judicial review authority. There can be no reasonable dispute that there are safety issues concerning these lands that include rapids, waterfalls and dams among other hazards. It may be that there were other alternatives to address those safety concerns but the fact that the Ministry chose between different options does not constitute their decision to adopt one option over another as unreasonable.


    Document(s):



  5. Still’s Bay Landing Corporation v. Township of Muskoka Lakes

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Commercial Development, Recreational Development, Shoreline Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    Still’s Bay Landing Corporation applied to amend the Township of Muskoka Lakes Zoning By-law 87-87 in order to increase the size of the marina from 38 to 50 slips. The council of the Township of Muskoka Lakes denied the request. Still’s Bay Landing Corporation appealed its denial to the Board. The subject lands are designated “Waterfront” in both the Regional Municipality of Muskoka Official Plan and the Township Official Plan. The property in question is zoned Waterfront Commercial (WC2) in the Township of Muskoka Lakes Zoning By-law 87-87. The By-law limits the dock length to 80 feet and the width to 25% of the lot frontage. The Appellant/Applicant originally applied for a dock length of 150 feet and width of 75.6% and a side lot setback of two feet where the By-law requires 30 feet.


    Held:

    Appeal allowed in part


    Reasons:

    The Board accepts that there are problems with the existing use of the marina. It also accepts that marina operations such as this are necessary to the development of recreational tourism and cottage development. The Provincial Policy Statement, and both Official Plans provide for recreational and cottage development that is a major component of the local economy. The Board finds that the zoning amendment presented before the board is consistent with the Provincial Policy Statement, conforms to the Official Plans and represents good planning.


    Document(s):



  6. Township of Muskoka Lakes Heritage Designation

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Heritage Conservation, Recreational Development, Renewable Energy, Shoreline Development


    Court:

    Conservation Review Board


    Application/issue:

    Intention to designate three properties known as Township Dock at Lake Muskoka; Portage Landing at Moon River; and Shield Parking Lot, in the Town of Bala under the Ontario Heritage Act R.S.O. 1990, Chapter O.18, amended to 2009.


    Held:

    Properties designated


    Reasons:

    The Board found that under s. 29 of the Act, the Township had conducted a reasonable and fair process and the properties hold cultural heritage value and interest to the community. The Board finds that the Township met the requirement of s. 29(3) and s. 29(4); and finds that Swift River Energy’s argument is redundant. Since the Township is not in violation of the Act and the properties are identified as holding cultural heritage value, the Board finds that the Township can proceed with designating the three properties.


    Document(s):



  7. Durfy v. Township of Muskoka Lakes

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Minor Variances, Residential Development, Shoreline Development


    Court:

    Ontario Municipal Board


    Application/issue:

    Appeal an application for a minor variance to increase permitted lot coverage from 10% to 14.1% of the lot and 14.3% of the lot within 200 feet of the high water mark. The subject property is designated “Waterfront” and zoned WR1 in Zoning By-law No. 87-87.


    Held:

    Appeal allowed


    Reasons:

    The Board finds that the modest addition to the cottage is far enough removed from the waterfront and buffered by trees to have minimal impact on the views from the lake. The addition meets the general intent of the zoning by-law because it is hidden from view, does not interfere with development of abutting property and is not any more of a precedent than that of the abutting lands.


    Document(s):



  8. Mehlenbacher v. Township of Muskoka Lakes

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Boathouses, Minor Variances, Shoreline Development


    Court:

    Ontario Municipal Board


    Application/issue:

    Appeal for two minor variances to expand an existing two storey boathouse by adding a 198 square foot covered deck to the second storey. The variance would allow relief for the cumulative width of 15% whereas the by-law permits 13%.


    Held:

    Appeal dismissed


    Reasons:

    The Board finds that the addition to the boathouse will have an impact on the views from the lake and the covered deck would fundamentally change the view from the water. The OP sets limits for the development of waterfront structures based upon the size of the lake, the coverage of structures, and the frontage of the lot. The evidence clearly demonstrated that a significant area of natural shoreline would be blocked by the new roof and would increase the dominance of the man-made environment as opposed to the natural environment. Therefore, the Board finds the scale of the variance to be excessive because it transfers the rights of larger lots (over 400 feet) to a much smaller lot.


    Document(s):



  9. Train v. Weir

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Boathouses, Leave to Appeal, Shoreline Development


    Court:

    Ontario Superior Court of Justice


    Application/issue:

    Train moves under s. 96 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 for leave to appeal the decision to the Divisional Court on a question of law. The original appeal was granted to Mr. Weir resulting in the Board declining the building of a boathouse by Mr. Train.


    Held:

    Leave to Appeal declined


    Reasons:

    The moving party has not satisfied the Court that the Board failed to adhere to the underlying principles in having regard to council’s decision. Therefore, the Court does not find that the Board’s application of the principle is open to substantial doubt as an error of law. The Court also finds that the argument of possible abuse of hearsay evidence is not something that would ordinarily meet the test for leave to appeal to the Divisional Court, and does not so in this instance.


    Document(s):



  10. Sherman v. Township of Muskoka Lakes

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Residential Development, Shoreline Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    Appeal of the refusal to pass an amendment to the Zoning By-law No. 87-87 to allow variances to a cottage dwelling. The variance are lot coverage of 13.5% rather than maximum 10%; a setback of 44 ft. from water’s edge rather than required 45 ft.; and a landing are of 60 sq. ft. from the required front yard setbacks, whereas s. 3.1.2.b.ii) for the By-law permits 50 sq. ft.


    Held:

    Appeal allowed


    Reasons:

    The Board finds that there are no matters of Provincial interest affected by this application and it is in conformity with the intent and purpose of the District of Muskoka OP. The OP through a rigorous set of policies does allow for the consideration of exemptions in specific cases subject to a review of criteria set out in s. F.1.6 By-law Administration and policies found in s. B “Waterfront.” There would be no cumulative impacts on this or other lands in the immediate area and to the shoreline.


    Document(s):



Collingwood

Orillia

Owen Sound

Sudbury

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