Ball et al v. Huntsville (Town), 2021 CanLII 101819

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

October 13, 2021

CASE NO(S).:

PL200013

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

Applicant and Appellant:

Barbara Rowland et al

Subject:

Application amend Zoning By-law No. 2008-66P - Refusal of Application by Town of Huntsville

Existing Zoning:

Conservation-Holding (C-H)

Proposed Zoning:

Shoreline Residential Five (SR5)

Purpose:

To permit the development of two lots

Property Address/Description:

100 and 200 Treasure Island

Municipality:

Town of Huntsville

Municipality File No.:

Z/29/2019/HTE

OLT Case No.:

PL200013

OLT File No.:

PL200013

OLT Case Name:

Ball et al v. Huntsville (Town)

PROCEEDING COMMENCED UNDER subsection 53(14) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

Barbara Rowland et al

Subject:

Application for Consent - Failure of the Town of Huntsville to make a decision

Purpose:

To permit a severance on Treasure Island

Property Address/Description:

622 North Waseosa Lake Road

Municipality:

Town of Huntsville

Municipal File No.:

B/45/2019HTE

OLT Case No.:

PL200013

OLT File No.:

PL200054

PROCEEDING COMMENCED UNDER subsection 53(14) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

Barbara Rowland et al

Subject:

Application for Consent - Failure of the Town of Huntsville to make a decision

Purpose:

To permit a severance on Treasure Island

Property Address/Description:

600 North Waseosa Lake Road

Municipality:

Town of Huntsville

Municipal File No.:

B/44/2019HTE

OLT Case No.:

PL200013

OLT File No.:

PL200053

Heard:

April 19-23, 2021 by video hearing

APPEARANCES:

Parties

Counsel/Representative*

Keith Ball, Gayle Gailits and

Russell D. Cheeseman

Barbara Rowland

Lake Waseosa Ratepayers’ Association

Kevin Thompson and Jennifer Trommelen-Jones

Douglas Janes

Self-represented*

DECISION DELIVERED BY JATINDER BHULLAR AND ORDER OF THE TRIBUNAL

1This hearing was held by video over five days. The parties completed and provided written closing submissions to the Tribunal on May 7, 2021.

2The appeals have been brought by Keith Ball, Gayle Gailits and Barbara Rowland (“Applicant/Appellant”) regarding the refusal by the Town of Huntsville (the “Town”) to pass an amendment to Zoning By-law No. 2008-66P (the “ZBL”) and its failure to make decisions on consent applications relating to lands located at 600 and 622 North Waseosa Lake Road and 100 and 200 Treasure Island (“subject lands”).

3The consents are requested by the Applicant/Appellant so that the subject lands which are an island in Lake Waseosa can be suitably accessed from land access points that connect to North Waseosa Lake Road.

4There are three Zoning By-law Amendments (“ZBA”) requested by the Applicant/Appellant. These are:

a. Zoning Amendment for 600 North Waseosa Lake Road to add additional use “Waterfront Landing” to existing R5 designation; and

b. Two applications for rezoning of 100 and 200 Treasure Island from existing “Conservation-Holding (C-H)” in the Town’s ZBL to R5 zoning.

WITNESSES AND EVIDENCE

5The Town did not attend nor provide any evidence at the hearing. Two parties opposed the Applicant/Appellant’s requested relief in these appeals: Lake Waseosa Ratepayers’ Association (“LWRA”) and Douglas Janes (“Janes”).

6The Applicant/Appellant presented two witnesses. Lanny Dennis was called to provide expert opinion evidence in the area of land use planning. Hannah Wolfram was called to present expert opinion evidence in the area of ecology.

7LWRA presented two witnesses. Michael Sullivan provided expert opinion evidence in the area of land use planning. Tristan Knight presented expert opinion evidence in the area of land use planning.

8Janes called two witnesses. Kirstin Maxwell presented evidence as a lay witness. Stephan Fahner presented expert opinion evidence in the area of land use planning.

CONSENT APPEAL: ISSUES AND ANALYSIS

9Mr. Dennis explained that the consents relate to parking and water access in respect of the creation of rights-of-way over the properties known municipally as 600 and 622 North Waseosa Lake Road, in favour of the properties know as 100 and 200 Treasure Island in the Town (Exhibit 1, pages 27-30).

10In order to allow each of the consents, Mr. Dennis reviewed and presented uncontested evidence guided by s. 53 of the Planning Act (“Act”).

11As directed in s. 53, Mr. Dennis provided a detailed review of criteria in s. 51(24) of the Act:

(24) In considering a draft plan of subdivision, regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality and to,

(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2;

(b) whether the proposed subdivision is premature or in the public interest;

(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;

(d) the suitability of the land for the purposes for which it is to be subdivided;

(d.1) if any affordable housing units are being proposed, the suitability of the proposed units for affordable housing;

(e) the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them;

(f) the dimensions and shapes of the proposed lots;

(g) the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land;

(h) conservation of natural resources and flood control;

(i) the adequacy of utilities and municipal services;

(j) the adequacy of school sites;

(k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes;

(l) the extent to which the plan’s design optimizes the available supply, means of supplying, efficient use and conservation of energy; and

(m) the interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under subsection 41 (2) of this Act or subsection 114 (2) of the City of Toronto Act, 2006.

12Mr. Dennis stated that s. 51(24)(a) provincial interest is served as the consents will allow for the development and use of a recreational property, in small measure will facilitate construction jobs and provide for reasonable access to shoreline.

13In review of the remainder of s. 51(24) through subsections (b-m), Mr. Dennis opined that no new lots are created; the accesses provide a 7.6 metre (“m”) right-of-way over a private road; no municipal services are needed; no demand for schools expansion; and that the easements are made available for water lot access. Mr. Dennis concluded that the consents are not premature and are in conformity with the Town’s Official Plan (“TOP”).

14Mr. Dennis was cross-examined, and his evidence was unfettered. The Tribunal finds based on all the evidence on file and Mr. Dennis’ testimony that the consents are appropriate as the provincial interest is preserved and a plan of subdivision is not required.

15Based on the uncontroverted evidence of Mr. Dennis, the Tribunal finds that a plan of subdivision is not necessary for the proper and orderly development of the Town.

ZONING BY-LAW AMENDMENTS

16When considering a proposed ZBA, the Tribunal must consider each of the following tests set out in the Act, to determine whether the ZBA:

a. has regard for the Provincial interests set out in s. 2 of the Act;

b. is consistent with the PPS;

c. conforms to the District Municipality of Muskoka Official Plan (“DOP”) and the TOP;

d. maintains the general intent and purpose of the zoning by-law; and

e. is desirable for the appropriate development or use of the land.

ZBA FOR 600 NORTH WASEOSA LAKE ROAD

17Associated with the consent to facilitate access to 100 and 200 Treasure Island, the property at 600 North Waseosa Lake Road requires the addition of “Waterfront Landing” with associated performance standards to the permitted SR5 uses that are currently on the property (Exhibit 1, Tab 44, pages 814 to 816).

18Mr. Dennis provided the planning evidence and opined that this additional use meets all the statutory requirements for approval as a ZBA. Mr. Dennis referred to his Witness Statement for analysis of the Act, the Provincial Policy Statement 2020 (“PPS”), the District Municipality of Muskoka Official Plan (2019), and the Town of Huntsville Official Plan (2006), which was in force and effect at the time of the rezoning applications, and the Town of Huntsville Official Plan (2019). Mr. Dennis also relied on the evidence of Ms. Wolfram, the Ecologist called on behalf of the Applicant/Appellant at this Hearing, and her work on the Waterfront Landing property (600 and 622 North Waseosa Lake Road) which is attached to her Witness Statement (Exhibit 1, Tab 8, Appendix “D”, pages 82 to 89).

19Whereas Mr. Dennis was cross-examined, there was no opposing evidence presented and the expert opinion evidence of Mr. Dennis was unfettered.

20The Tribunal finds that based on the totality of the evidence before it that the ZBA requested for 600 North Waseosa Lake Road has regard for s. 2 of the Act, is consistent with the PPS, conforms with the DOP and TOP, maintains the general intent and purpose of the ZBL and is appropriate for desirable development of the land.

ZBA FOR 100 AND 200 TREASURE ISLAND

21The Applicant/Appellant seeks Shoreline Residential Five (SR5) zoning to construct one dwelling on each of 100 and 200 Treasure Island sites. This was the main area of contest between the Applicant/Appellant and opposing parties.

22At the hearing contested evidence was presented in two key areas as it affects the consideration of the ZBA request. These were:

a. The ecological assessment regarding suitability and feasibility of the proposal with respect to the two properties at 100 and 200 Treasure Island; and

b. The planning policies and plans as these relate to the subject lands.

ECOLOGY

23Ms. Wolfram provided specific evidence related to issues identified LWRA in the Procedural Order (“PO”). Ms. Wolfram stated that she conducted an in-water navigation study in Lake Waseosa around the Treasure Island property and also on-site work to assess ecological functions. Ms. Wolfram informed the Tribunal that she provided Scoped Environmental Impact Study which was provided to the Town (Exhibit 1, Tab 8, Appendix C). There was no peer review conducted by the Town however, the Town reviewed the material with the Ministry of Natural Resources and Forestry (“MNRF”). As a result, the subject lands were also studied for a variety of species that are endangered or threatened and could exist on the subject lands. Ms. Wolfram stated that she took habitat-based approach which provides conservative approach for protection of environment.

24Mr. Knight provided his evidence and critique of Ms. Wolfram’s study methodologies as part of LWRA participation in this hearing. Furthermore, Mr. Knight under questioning confirmed that his evidence was not based on any physical aquatic or land-based field work around Treasure Island or the subject lands.

25Mr. Knight disputed that the biophysical conditions have not been properly studied including erosion impacts and it could impact the sizing and location of building a structure or dwelling on the subject lands within the parameters of requested SR5 rezoning. Mr. Knight particularly cited that Ms. Wolfram’s studies of subject lands do not provide sufficient details to make such determination. Ms. Wolfram opined that she has done field measurements of water access, vegetation and terrain. Ms. Wolfram opined that the planned development locations and the suitable dwelling structures can be built that will work within the requested SR5 zone setbacks. She further opined that her field work did not identify any ecological issues save and except for a possible bat habitat that is not impinged upon by the proposal and sufficient mitigation measures exist if needed to be employed, given the size of each of 100 Treasure Island and 200 Treasure Island.

26Mr. Knight raised the concern that deer wintering areas were in the prescribed distance that requires a study of this feature. Mr. Knight estimated that this situation existed as the distance from an identified wintering habitat was short by 60 m, i.e. if the subject lands were another 60 m away then deer wintering study would not have been required. Mr. Knight in answer to questions admitted that he has used the same shoreline mapping in calculating his distance that he has previously stated was not accurate enough. Ms. Wolfram admitted to the existing of identified deer wintering area but added that there are substantial and continuous shoreline developments interposing between the subject lands and the deer wintering area creating continuous barriers of structures as well as Lake Waseosa, which are between the shoreline and the subject lands. Ms. Wolfram opined that creates relatively unsurmountable barriers for deer wintering to be of concern vis-a-vis the Treasure Island.

27Ms. Wolfram through her field data analysis showed that appropriate water ingresses were available for the proposal which avoided any identified Type 1 fish habitat. Mr. Knight opined that perhaps the timing of the studies did not fully follow the proper time of year for such a study being in late fall. Ms. Wolfram opined that she did close observations in her study to determine what sustains Type 1 fish habitat and had no reservations on the outcome of her studies.

28The Tribunal having reviewed the evidence presented by Mr. Knight and Ms. Wolfram prefers the opinion evidence of Ms. Wolfram. Ms. Wolfram has been engaged in and has carried out her studies and investigations through field work, in communication with Town staff, and having received direction indirectly from MNRF through the Town staff. The evidence of Mr. Knight is more in the vein of a peer review with a large number of embedded apprehensions and generally fault finding. He found it hard to recognize anything positive about Ms. Wolfram’s work and only under direct questions admitted some virtue or legitimate findings in Ms. Wolfram’s work.

29Ms. Wolfram answered the issues list questions indicating that the ecological investigations have established that the proposed zoning will not create any issues on an ecological basis vis-a-vis s. 2 of the Act regarding provincial interests, the PPS 2020, the DOP, the TOP and maintains the intent and purpose of the ZBL with respect to ecological aspects.

ZONING: SHORELINE RESIDENTIAL (SR5)

30The Applicant/Appellant seeks zoning Shoreline Residential for each of 100 Treasure Island and 200 Treasure Island versus existing zoning “C-H”, Conservation-Holding. Ms. Maxwell who works for the Town was asked about the origins of this zoning designation as prior to around 2008, the subject lands were zoned Rural 1 (“RU1”) and there was no dispute about this. Ms. Maxwell stated that she could not trace any reasons or history for the zoning change except it appears to have occurred around a municipal comprehensive review that was undertaken during the time of this change. Mr. Sullivan opined that the water quality has been updated and the removal of holding is not necessary as the underlying purpose of the same has been achieved.

31Mr. Dennis reviewed s. 2 of the Act in detail. He adopted the opinion evidence of Ms. Wolfram in the area of ecology for all planning considerations, whereby Ms. Wolfram opines that the rezoning has regard for s. 2 (a) and s. 2 (e) of the Act and ecological impacts are minimal to none and have been mitigated where necessary through proper location of accesses to subject lands as well as in the placement of dwellings. Mr. Dennis in further review of s. 2 opined that the requests comply with s. 2 with due buffers being established around proposed structures, the development represents developing recreational uses, possible jobs during construction and that there is reasonable access to shoreline. There was very little opposing evidence with regard to s. 2 other than Mr. Knight’s ecological opinions where the Tribunal has already determined that it prefers the opinion evidence of Ms. Wolfram.

32The Tribunal thus finds that the proposed zoning requests have regard for s. 2 of the Act and the provincial interest.

33Mr. Dennis reviewed the PPS including issues per the PO. Mr. Dennis adopted the ecological opinions of Ms. Wolfram specially policy 2.1 where Ms. Wolfram opined that there is availability of suitable sites for development and if necessary, any adverse affects like slopes can be minimized through mitigation measures. Mr. Dennis stated that within the context of the PPS, the subject lands are rural areas. Mr. Dennis opined that the proposal is consistent whereby suitable private sewage solution is feasible to manage the site dwellings. He also reviewed policy 1.1.5.2 b) which allows for resource based recreational uses. In review of policy 1.1.5.5 he opined that the proposed development is appropriate in size given the large size of each of the two parcels in the subject lands. The Tribunal notes that planners called by the opposing parties, Mr. Sullivan and Mr. Fahner, were in agreement that a dwelling on each lot would be appropriate given the size of 100 Treasure Island and 200 Treasure Island.

34In review of policies in s. 3.0 of the PPS regarding protecting public health and safety, Mr. Dennis opined that the siting of the development can provide for safe development of the dwelling and there will be no hazardous conditions that will confront the usage or development of these developments. Mr. Dennis opined that the site for development has been selected with ecological considerations and there are no species at risk within the proposed development envelopes. Mr. Dennis concluded that the proposal is consistent with the PPS.

35Mr. Dennis reviewed the DOP and specific policies in sections C and J regarding natural heritage, water resources and consistent with Muskoka settlement patterns. For consideration of section C, Mr. Dennis adopted the expert opinion evidence of Ms. Wolfram which concluded that the proposal is ecologically appropriate. Mr. Dennis opined that the proposal conforms with the specific direction in the DOP’s section J as the proposal is an appropriate economic recreational use waterfront development with due consideration for size, appropriate considerations for access and suitable infrastructure considered to develop the two dwellings. Mr. Dennis referring to section K5 stated that the DOP defers further considerations to the TOP.

36Mr. Dennis reviewed the applicable policies in the TOP. He opined that the proposal maintains the direction regarding community character through managed and appropriate scale of the development which maintains substantial tree cover. He opined that in respect of policy 2.4.1, the proposal addresses second home community direction in the TOP. Depending upon the expert opinion evidence of Ms. Wolfram, he added that the proposal follows the TOP with due consideration for activity areas established in the proposal, as well as environment direction in section 3 of the TOP through proposed environmental and landscape considerations with buffers between the surrounding areas and development envelopes.

37Mr. Fahner suggested that the lake plan for Lake Waseosa is the proper instrument and this development is an ideal candidate to be assessed against it. He added that this plan developed with efforts of LWRA is not recognized by the TOP. Janes suggested that perhaps the Tribunal should so request the adoption of this plan. The Applicant/Appellant submitted that this is not before the Tribunal and as such, the Tribunal lacks authority to allow this request. The Tribunal agrees with the Applicant/Appellant and cannot address the proposed lake plan for Lake Waseosa in this proceeding.

38Mr. Dennis reviewed section 8 of the TOP and opined that in consideration of applicable parts of section 8 (Waterfront Policies), the policy provides a balance between the building and natural features per subsection 8.2; follows the design principles guidance of subsection 8.3 with protection of “ribbon of life” as per subsection 8.3.3 and the accesses have been ecologically selected and also the development is offset from shorelines, so the build form does not dominate the shoreline.

39Mr. Dennis opined that whereas TOP 2006 is applicable to the appeal, he has reviewed and opines that the application has regard for the TOP 2019 and conforms. He particularly identified the coverage of steep slopes in the newer TOP and opined that the proposed development is over an area where soil exists over the majority of the area. Mr. Dennis concluded that the ZBA thus conforms with the TOP.

40Mr. Dennis reviewed the ZBA and stated that many people and staff have expressed that “C” zoning implies conservation and no change. Referring to the ZBL Mr. Dennis opined that apart from not allowing a dwelling unless it existed before the zoning was established, there are many uses allowed which have no relationship to or connection to a typical conservation area. He also opined that the “C” zoning appears to be an anomaly with only one other site so zoned while the shoreline of Lake Waseosa is heavily developed. He also emphasized and Ms. Maxwell agreed that there is no data available from the Town which provides rationale for the original change from rural to “C” in 2008.

41Mr. Dennis reviewed the requested R5 zoning and stated that it is the next most restrictive zoning category for such properties, but it allows for the development of dwellings with suitable safeguards with prescriptions for setbacks and other parameters. He stated that “Conservation Zone” has no corresponding designation in the Official Plans of either the District Municipality of Muskoka or the Town of Huntsville. Indeed, Treasure Island is designated the same as the rest of the shoreline in both the DOP (Waterfront Area) and the TOP (Waterfront).

42In spite of differing planning opinions, Mr. Sullivan and Mr. Fahner agreed that building at least one dwelling on each of 100 Treasure Island and 200 Treasure Island with water access provided through North Waseosa Lake Road properties is appropriate. Ms. Maxwell informed the Tribunal that the Town staff drafted certain different zoning options with site specific conditions. She added that these allowed for a specific area in each site to be zoned SR5 while maintaining that the rest of the property areas to be kept “C” zoned. Under cross-examination she admitted that on her review, she could see that the conditions attached to such scenarios were such that they would not allow any dwelling to be built in spite of a proposed zoning change. Mr. Sullivan stated that zoning of the subject lands as RS5 in full is problematic as future lotting and development could occur. Mr. Sullivan suggested that spot zoning will be more appropriate. Similarly, Mr. Fahner suggested that split zoning be considered whereby the building envelope and the accesses be zoned “SR5” and the rest of the subject lands be kept “C” zoned. Mr. Sullivan and Mr. Fahner opined that if it was not so established the Applicant/Appellant in the future could build more dwellings. Both the opposing planners could not provide any policy basis for their suggestions in this regard. The Applicant/Appellant submitted that site plan control and other approval processes interpose to ensure that the development proceeds according to due compliance with the Town’s planning policies and by-laws.

43Mr. Dennis concluded in his overall assessment of the ZBA applications and opined that the proposed zoning is fully supported in policies and is good planning as well as the ZBA maintains the intent and purpose.

44Having reviewed all the evidence before it, the submissions of the parties and the oral evidence presented at the hearing, the Tribunal finds that the ZBAs have regard for the provincial interest, are consistent with the PPS, conform with the District Municipality of Muskoka’s and the Town’s official plan and maintain the general intent and purpose of the ZBL.

ORDER

45The Tribunal Orders that the appeals are allowed in part. Provisional consent is to be given to the two consents 600 and 622 North Waseosa Lake Road for properties located at as per Attachment 1.

46The Tribunal allows the appeal in part and By-law No. 2008-66P for the property located at 600 North Waseosa Lake Road in the Town of Huntsville is to be amended generally in accordance with Attachment 2. The Applicant/Appellant shall provide the Tribunal with final form of these documents in a form considered suitable by the Town of Huntsville for review and issuance within 60 days of this order.

47The Tribunal allows the appeals in part to rezone 100 Treasure Island and 200 Treasure Island as Shoreline Residential 5 with respect to the Zoning By-law No. 2008-66P for the Town of Huntsville is to be amended and generally in accordance with Attachment 3. The Applicant/Appellant shall provide the Tribunal with final form of these documents in a form considered suitable by the Town of Huntsville for review and issuance within 60 days of this order.

48Should any difficulties arise in implementing this order, the Tribunal may be approached.

“Jatinder Bhullar”

JATINDER BHULLAR

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.

PL200013 – Attachment 1

PL200013 – Attachment 2

PL200013 – Attachment 3