Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 10, 2021

CASE NO(S).: PL200496

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Mary Peterson

Subject: By-law No. BL 3491-2020

Municipality: Township of Augusta

OLT Lead Case No.: PL200496

OLT Case No.: PL200496

OLT Case Name: Peterson v. Augusta (Township)

Heard: July 27 to 29, 2021 by video hearing

APPEARANCES:

Parties	Counsel
Mary Peterson (“Appellant”)	Self-represented
Family Entertainment Resorts Retreat Inc. (“Applicant”)	Greg Meeds
Township of Augusta (“Township”)	John Simpson

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON JULY 27, 2021 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is a hearing of the merits of the appeal commenced by the Appellant concerning a decision of the Township to approve a zoning by-law amendment (“ZBA”) of By-law No. BL 3491-2020 to permit a waterpark and resort development (to be known as “Aquaworld”) located at 1898 Merwin Lane, proposed by the Applicant.

2Ms. Peterson lives in the general area of the proposed development and states that she represents the interests of area residents in opposition to the proposed development; however, the Tribunal received no evidence to indicate that she represents any interests other than her own.

Witnesses and Participant

3At the outset of the Appellant’s case, Ms. Peterson called Dr. Sandra Iseman to testify as an expert in Land Use Planning. However, Dr. Iseman was not qualified by the Tribunal as an expert on such matters.

4Dr. Iseman testified that she has a PhD and Master’s Degree in Urban Planning and a “regional planning certificate”. However, upon cross-examination by counsel for the Applicant, and following questions from the Tribunal, it was determined that she is not a Registered Professional Planner, has no experience working as a professional planner, and has no record of prior qualification as an expert in the subject field. For example, she was not able to identify some of the most basic aspects of the Provincial Policy Statement (“PPS”). She subsequently admitted to be more of an expert in “research” of planning policy.

5Furthermore, it was confirmed that Dr. Iseman is partisan to the subject matter, as she is a local resident, who appeared before counsel in personal opposition to the Aquaworld development proposal.

6In summary, the Tribunal finds that Dr. Iseman was not qualified as an expert because she lacked the necessary qualifications and was furthermore unable to execute the duties of an expert in a manner which is independent, impartial and unbiased.

7Consequently, Dr. Iseman requested that she be granted participant status instead, and that the Tribunal accept her “witness statement” as her participant statement. Counsel for the parties consented, and the Tribunal so ordered.

8Notwithstanding her lack of expertise, Dr. Iseman’s statement cited various provincial and municipal polices and opined that the proposed development failed to make appropriate use of the subject land, failed to contribute to the local economy, represented inappropriate intensification, involved hydrological and environmental concerns, had a negative effect on population density, caused loss of agricultural land, would result in traffic problems and light pollution, and is generally bad planning.

9As a result of Dr. Iseman’s lack of qualifications to provide such opinions, the Tribunal finds that it will provide no weight to her statement aside from a basic acknowledgement that she, like the Appellant, is an area resident who opposes the development.

10The Appellant also testified on her own behalf. She expressed similar concerns and opinions as Dr. Iseman. However, again, due to her lack of expertise of the subject matters, no weight shall be given to her evidence aside from a basic acknowledgement that she is an area resident who opposes the development.

11The Appellant provided no other evidence in support of her appeal. In summary, she provided no meaningful evidence whatsoever to challenge the decision of the Township to approve the ZBA, or otherwise to refute the evidence of the other parties which all supported the development (see details below).

12The following expert witnesses were qualified to provide opinion evidence in relation to the scope of expertise listed below:

Aquaworld

• Tracy Zander – Land Use Planning;
• Colleen Vermeersch – Hydrogeology and Terrain Analysis;
• Sean Spisani – Natural Heritage; and
• Steven Taylor – Transportation Planning.

Township

• Myron Belej – Land Use Planning.

ISSUES

13The parties, including the Appellant, provided the following issues list to scope the matters of the appeal:

• Issue 1: Is By-law No. BL 3491-2020 consistent with the PPS, 2020?
• Issue 2: Does the application conform to the Official Plans (“OP”) of the Township and the United Counties of Leeds and Grenville (“Counties”)?
• Issue 3: Is the development that would be permitted by By-law No. BL 3491-2020 an appropriate land use at the proposed location?
• Issue 4: Will the proposed development result in unacceptable adverse impacts on either the local groundwater supply, or surrounding watercourses?
• Issue 5: Can the existing road network safely accommodate the additional traffic that will be generated by the development? Will additional traffic result in adverse effects in the area that are not in accordance with provincial standards and requirements?
• Issue 6: Does By-law No. BL 3491-2020 and the development it would permit represent good planning and is it in the public interest?

14Given a lack of qualified evidence provided by the Appellant, the following analysis relies exclusively on the evidence of the other parties’ experts.

ISSUE 1: Is By-law No. BL 3491-2020 consistent with the PPS, 2020?

15The Tribunal heard from two professional land use planners in this regard. The Tribunal accepts the evidence and opinion of Ms. Zander that the proposed ZBA is consistent with the PPS, including the following sections:

• Sections 1.0 and 1.1 which address managing and directing land use to achieve efficient and resilient development and land use patterns. The development proposal will efficiently use rural land on an existing municipal road without need for additional municipal infrastructure. It will contribute to the financial well being of the Municipality and the Province through increased tax revenue, tourism and recreation dollars. The scale of development will require a large workforce during construction and for daily operations, providing a significant amount of new employment opportunities to area residents. Public health and safety concerns have been addressed through the supporting hydrogeology and traffic analyses completed by others, and the proposed development can be sufficiently separated from nearby land uses due to the large size of the subject property and various intervening land uses such as the Bradley’s Creek, the rail corridor and Highway 401. There are sufficient lands between the subject property and the Town of Prescott to allow for a future expansion of the settlement area if appropriate, without limiting that opportunity.
• Section 1.1.4 which notes that rural areas are “important to the economic success of the province and our quality of life”, meant to be “healthy, integrated and viable”, while promoting diversification of the economy and creating employment opportunities. A balance between rural land uses and commercial activity can be achieved. The proposed resort destination would add to the local tourism industry, contribute to the local job market and economy, and introduce residential housing opportunities which are permitted in the rural areas, thereby contributing to the economic success of the area and adding to the range of land uses.
• Section 1.1.5.3 which notes that “recreation, tourism and other economic opportunities should be promoted”. The development proposal would front to an existing, paved municipal road, and can be suitably serviced with onsite water and sanitary services. Recreational, tourism, and economic opportunities will all result from the proposed development.
• Section 1.2.6 which addresses land use compatibility between “major facilities” and sensitive land uses. Ms. Zander opined that the buffers of the development proposal meet or exceed any buffer which may otherwise be required to ensure compatibility.
• Section 1.3 which provides that “planning authorities shall promote economic development and competitiveness” through a diversified economic base. The development proposal will add to the range of employment opportunities available within the Township to meet the long-term needs of its residents. The site chosen for the development is suitable given its large size and proximity to the Town of Prescott, and the range of uses and activities occurring on the site will draw tourists into the area, thereby supporting employment not only at the proposed waterpark but also at existing businesses currently operating in the area.
• Section 1.4 which states the proposed uses will permit a range of additional types of housing in the community. The proposed ZBA would allow for a range of housing types and tenures, including affordable rental housing opportunities to contribute to the supply of housing in the community. Housing opportunities would include a condominium hotel, cottages for seasonal or year-round accommodation and villas.
• Section 1.6.6 which speaks to sewage, water and wastewater. Ms. Vermeersch confirmed that the studies prepared by Kollaard Associates (“Kollaard”) demonstrate that the site can be adequately serviced by onsite private services. Furthermore, Ms. Zander opined that the Holding provision of the proposed ZBA will prevent the issuance of building permits until servicing and stormwater matters are addressed to the satisfaction of the Township and the Conservation Authority.
• Section 1.6.8 which speaks to transportation and infrastructure corridors. Ms. Zander and Mr. Taylor both detailed the nature of access to and from the site, which includes close access to Highway 401 and County Road 2 and County Road 18.
• Section 1.7 which speaks to long-term economic prosperity. The proposed uses will promote opportunities for economic development, contribute to the diversification of the workforce and promote sustainable tourism, and create a sense of place.
• Section 1.8 which speaks to energy conservation, air quality and climate change. Ms. Zander referenced a number of measures of the proposal which she opined will address these concerns.
• Section 2.1 which speaks to the management of natural heritage features. Referencing a positive Environmental Impact Statement prepared by Stantec dated October 23, 2018 (the “Stantec EIS”) and detailed by Mr. Spisani, Ms. Zander confirmed that there will be no development in or within 30 metres (“m”) of Bradley’s Creek, that there are no Areas of Natural and Scientific Interest on site, and that the portion of the site containing wetlands is to be protected through the Environmental Protection (“EP”) zone of the development proposal.
• Section 2.2 which notes requirements to “protect, improve or restore the quality and quantity of water”. Ms. Zander opined that concerns about surface water will be managed through appropriate stormwater management measures implemented at the site plan control stage. Ms. Vermeersch testified that groundwater impacts have been assessed by Kollaard and Ms. Zander opined that the use of the Holding provision ensures that the Township and Conservation Authority are satisfied of all proposed measures prior to issuance of building permits.

16The Tribunal notes that Ms. Zander also opined on considerations associated with impacts on agricultural and aggregate resources. The Tribunal finds that, while Ms. Zander is not an expert in the fields of agriculture and aggregate resources, she is capable as a planner to understand the implications of the fact that the lands are not designated prime agriculture, being classified as Class 2, 4 and 6 soils, and only a small portion of the west side of the site is designated as Bedrock Resource. As a result, in her opinion, she testified that impacts on agriculture and aggregate resources are minimal and acceptable from a planning perspective. She further provided testimony to confirm that the proposed zoning has no measurable effect on the subject resources compared to the present zoning because the present zoning already allows widespread development of the land. As such, the Tribunal finds that the proposed ZBA does not have a net negative impact on agricultural or aggregate resources in the specific context of this case, or such impacts are minor and acceptable.

17Mr. Belej, a professional land use planner on staff at the Township, concurred with Ms. Zander’s assessment of PPS consistency. No opinion evidence was presented by the Appellant to the contrary. The Tribunal accordingly finds that the proposed ZBA is consistent with the PPS.

18Mr. Spisani provided evidence to the Tribunal regarding issues surrounding natural heritage. Mr. Spisani’s evidence summarized the findings and recommendations of the Stantec EIS. Mr. Spisani confirmed that:

• the proposed development will not result in the direct loss of natural features as defined in the PPS;
• the loss of Bobolink and Butternut Tree habitat will require mitigation plans;
• mitigation measures are recommended to protect fish habitat and water quality downstream of the development; and
• mitigation measures to protect natural heritage features and species from potential indirect impact associated with construction and long-term impacts.

19Mr. Spisani concluded the proposed development will not result in negative impacts on significant natural features or their ecological functions provided the mitigation measures identified in the Stantec EIS are implemented. No opinion evidence was presented by the Appellant to the contrary. The Tribunal accordingly finds that the proposal is consistent with the PPS provided the mitigation measures identified in the Stantec EIS are implemented.

ISSUE 2: Does the application conform to the OPs of the Township and the Counties?

20The Tribunal heard from Ms. Zander and Mr. Belej with regards to this issue. The Tribunal accepts Ms. Zander’s professional land use planning opinion that the ZBA conforms with all relevant Counties OP policies, including:

• Section 2.6.3 recognizes the importance of tourism and recreation-based activities aimed at leveraging the long-term visibility and growth of existing and future tourism in the Counties. Section 2.6.3d states that “new and existing resource-based recreational uses are permitted within the Rural Area”, which is the designation of that portion of the property located outside of the Rural Settlement Area;
• Section 3.3.1a promotes development opportunities relating to recreational uses and tourism in rural lands. Ms. Zander opined that the proposed uses conform with the land use policies in Section 3.3.3 of the OP, given the range of uses proposed, the location of the site in relation to transportation corridors and the setbacks from surrounding uses. Noise is not anticipated to cause adverse negative impacts, the natural heritage features will be maintained and protected, and traffic impacts have been assessed;
• Section 4.2 details the Counties’ natural heritage features and functions policies. The Stantec EIS includes recommendations for mitigation measures to preserve existing features. A minimum setback of 30 m from such features will provide further protection, together with the designation of the wetlands within a new EP zone;
• Section 4.4.2 sets out the Source Water Protection policies relating to groundwater. The Hydrogeological and Terrain Study prepared by Kollaard determined that no negative impact is expected on surrounding wells. The proposed setback from Bradley’s Creek, together with the EP designation of the wetlands further ensures the Source Water Protection Areas around the creek and wetland are preserved and maintained.

21On behalf of the Township, Mr. Belej concurred with Ms. Zander’s opinion that the proposed By-law conforms to the Counties OP. No opinion evidence was presented by the Appellant to the contrary. The Tribunal accordingly finds that the proposed ZBA conforms to the Counties OP.

22Ms. Zander went on to provide her opinion regarding conformity to the Township OP. The site is designated as Rural, Settlement Area, Provincially Significant Wetlands and a small area of Bedrock Resource Area. The majority falls within the Rural designation. The Tribunal accepts Ms. Zander’s professional land use planning opinion that the ZBA conforms with the Township OP, including:

• Section 3.1.1 which details the General Policies of the Rural Policy Area;
• Section 3.1.8 sets forth the non-residential development policies in the Rural Policy Area. A variety of non-residential uses are permitted per Section 3.1.8.2, including tourism commercial uses and recreational commercial uses;
• Section 3.1.9 includes policies to ensure the protection of resources and natural heritage features within the Rural Policy Area. Site plan control and restrictive zoning serve to protect the natural heritage features; and
• Section 9.4.4.1 of the Township OP provides development criteria for consideration on development applications. Ms. Zander opined that the proposed ZBA will ensure that considerations such as driveway access, off-street parking, barrier-free access, vegetative screening, buffering and landscaping will all be addressed at the site plan stage. Ms. Zander also opined that drainage and stormwater management have been addressed through professional reports, and the Holding provision will ensure that these matters are addressed to the satisfaction of the Township and Conservation Authority prior to building permit issuance.

23Mr. Belej concurred with Ms. Zander’s professional land use planning opinion that the By-law and proposed development conforms to the policies of the Township OP. No opinion evidence was presented by the Appellant to the contrary. The Tribunal accordingly finds that the proposed ZBA conforms to the Township OP.

ISSUE 3: Is the development that would be permitted by By-law No. BL 3491-2020 an appropriate land use at the proposed location?

24The Tribunal heard from Ms. Zander and Mr. Belej with regards to this issue. The Tribunal accepts Ms. Zander’s professional land use planning opinion that the ZBA represents an appropriate use this location. In support of this opinion, Ms. Zander referenced the following, which the Tribunal finds as facts:

• the site is very large (254 acres) with good access to major transportation corridors;
• the site is located in close proximity to a number of local settlement areas, and within an easy drive to major population centres including Montreal, Ottawa, Toronto and northern New York State;
• the size of the property will allow for the proper buffering and protection of existing natural heritage features;
• the size of the property also provides ample opportunities for buffering of the proposed development from surrounding land uses; and
• the location will provide much-needed tourism and economic/job creation activity development in the area.

25Mr. Belej concurred with Ms. Zander’s opinion on this issue. No opinion evidence was provided to the contrary. The Tribunal accordingly finds that the proposed development is an appropriate land use at the proposed location.

ISSUE 4: Will the proposed development result in unacceptable adverse impacts on either the local groundwater supply, or surrounding watercourses?

26The Tribunal accepts the opinion of Ms. Vermeersch, a professional engineer qualified to provide opinion evidence in the area of hydrogeology and terrain analysis, that the proposed development plan will not result in unacceptable adverse impacts on either the local groundwater supply, or surrounding watercourses.

27The evidence of Ms. Vermeersch summarized the conclusions of a Hydrogeological and Terrain Analysis report prepared by her:

The Hydrogeology and Terrain Study recommendations include safeguards to ensure that daily water taking does not exceed the safe yield of the well. This, together with ensuring that the stormwater management design includes the EIS recommendations / mitigative measures made by Stantec, and the proposed sewage treatment design by Newterra with supporting documentation by GEMS Inc. will ensure that the impacts from the proposed development will be within acceptable limits, such that no unacceptable adverse impacts to the local water supply or the watercourse occur.

28No opinion evidence was provided to the contrary. The Tribunal accordingly finds that the proposed development plan will not result in unacceptable adverse impacts on either the local groundwater supply, or surrounding watercourses.

ISSUE 5: Can the existing road network safely accommodate the additional traffic that will be generated by the development? Will additional traffic result in adverse effects in the area that are not in accordance with provincial standards and requirements?

29The Tribunal accepts the opinion of Mr. Taylor, a professional engineer qualified to provide opinion evidence in the area of traffic planning. His evidence summarized the Traffic Impact Study prepared for the proposed development. Mr. Taylor’s opinion concluded:

• the proposed development would generate only a limited volume of traffic during peak hours, resulting in no significant impact on the function of intersections along Merwin Lane;
• sightlines and sight distances were all found to be appropriate; and
• the only future road infrastructure improvement that will be necessary is a northbound left-turn lane on County Road 18 once the development is completed.

30In summary, Mr. Taylor’s opinion is that the existing road network can safely accommodate the additional traffic that will be generated by the proposed development and additional vehicular traffic will not result in any potential adverse effects in the area that are not in accordance with provincial standards and requirements.

31No opinion evidence was provided to the contrary. The Tribunal accordingly finds that the existing road network can safely accommodate the additional traffic that will be generated by the development, provided that a northbound left-turn lane on County Road 18 is constructed once the development is completed, and the additional traffic will result in no adverse effects that are not in accordance with provincial standards and requirements.

ISSUE 6: Does By-law No. BL 3491-2020 and the development it would permit represent good planning and is it in the public interest?

32For all of the reasons set out above, the Tribunal accepts Ms. Zander’s opinion that the ZBA and the development it would permit represent good planning and is it in the public interest, including her findings that:

• it is consistent with the PPS, 2020 and conforms with the Counties and Township OPs;
• issues surrounding natural heritage and traffic have been properly addressed through studies and recommendations to be implemented through site plan approval; and
• the inclusion of the Holding provision will restrict the issuance of building permits until such time as a detailed site plan and servicing studies are submitted by the Applicant and reviewed and approved by the Township and reviewing agencies, such as the Conservation Authority.

33Mr. Belej concurred with Ms. Zander’s land use planning opinion on this issue. No opinion evidence was provided to the contrary. The Tribunal accordingly finds that the ZBA and the proposed development would represent good planning and is in the public interest.

34In summary, the Tribunal finds in favour of Aquaworld’s and the Township’s position with respect to each issue, and accordingly dismisses the appeal.

ORDER

35The Tribunal orders that the appeal against By-law No. BL 3491-2020 of the Township of Augusta is dismissed.

“K.R. Andrews”

K.R. ANDREWS

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.