Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 6, 2022

CASE NO(S).: OLT-22-002390 (Formerly PL200170)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Earls Road Developments Limited Subject: Proposed Plan of Subdivision -Failure of the District Municipality of Muskoka to make a decision Purpose: To permit the development of a plan of subdivision consisting of 287 single detached residential lots and nine (9) multiple residential blocks, each to contain a maximum number of 72 units, for a total of 935 residential units Property Address/Description: 174 Earls Road/ Part of Lot 17, Concession 3, being Part 1 on Plan 35R-6151, Geographic Township of Chaffey, Town of Huntsville, District Municipality of Muskoka Municipality: Town of Huntsville Municipality File No.: S2019-8 OLT Case No: OLT-22-002390 Legacy Case No: PL200170 OLT Lead Case No: OLT-22-002390 Legacy Lead Case No: PL200170 OLT Case Name: Earls Road Developments Limited v. Muskoka (District Municipality)

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant and Appellant: Earls Road Developments Limited Subject: Application to amend Zoning By-law No. 2008-66P -Neglect of the Town of Huntsville to make a decision Existing Zoning: “Rural One”, “Residential Four (R4)” and “Residential Four –Holding (R4-H)” Proposed Zoning: To be determined Purpose: To permit the development of a plan of subdivision consisting of 287 single detached residential lots and nine (9) multiple residential blocks, each to contain a maximum number of 72 units, for a total of 935 residential units Property Address/Description: 174 Earls Road/ Part of Lot 17, Concession 3, being Part 1 on Plan 35R-6151, Geographic Township of Chaffey, Town of Huntsville, District Municipality of Muskoka Municipality: Town of Huntsville Municipality File No.: Z/11/2020/THE OLT Case No: OLT-22-002391 Legacy Case No: PL210218 OLT Lead Case No: OLT-22-002390 Legacy Lead Case No: PL200170

PROCEEDING COMMENCED UNDER subsection 51(53) and subsection 34(25) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Motion By: Town of Huntsville and the District Municipality of Muskoka Purpose of Motion: Request for an Order Dismissing the Appeal Heard: In writing

APPEARANCES:

Parties	Counsel
Earls Road Developments Limited	E. Blanchard and L. Robinson
Town of Huntsville and District of Muskoka	J. Ewart

DECISION DELIVERED BY R. G. M. MAKUCH AND ORDER OF THE TRIBUNAL

BACKGROUND

1Earls Road Developments Limited (“Appellant”) is the owner of the lands municipally known as 174 Earls Road in the Town of Huntsville which consists of approximately 40.1 hectares (99.1 acres) of vacant land with 317 meters of frontage on Earls Road (“Subject Lands”). The adjoining properties are a mix of residential, institutional and rural properties. The lands immediately to the east of the Subject Lands are currently being developed as a residential subdivision known as “Huntsville Haven” or “Woodstream”.

2The Subject Lands are located within an area designated “Huntsville Urban Centre" in the District of Muskoka Official Plan and are designated “Residential” in both the 2006 and 2019 versions of the Town of Huntsville Official Plan. The Appellant seeks to develop a residential subdivision on the lands consisting of 285 single detached residential lots and nine multiple residential blocks each accommodating a maximum of 72 units (“Proposed Development”). The Proposed Development also includes a block for stormwater management, a park block, and an amenity area block proposed for communal use by the occupants of the proposed multiple residential blocks as well as a 2.8 hectare conservation block.

3The Appellant filed the required applications for approval of a draft plan of subdivision and implementing zoning bylaw amendment with the District of Muskoka and Town of Huntsville (“Municipalities” respectively ). The District of Muskoka deemed the Draft Plan Approval Application to be complete on October 29, 2019 and on September 11, 2020 the Town of Huntsville deemed the Zoning By-law Amendment Application to be complete. The Municipalities have not rendered decisions on these applications resulting in appeals being filed with this Tribunal based on the Municipalities’ failure to meet the timelines set out in the Planning Act (“PA”).

4The Tribunal has held five Case Management Conferences (CMC) to date respecting these appeals, which were set down for hearing by the Tribunal commencing on August 8, 2022 with three weeks being set aside.

MOTION TO DISMISS APPEALS BY MUNICIPALITIES

5The Municipalities now seek an order of the Tribunal dismissing the Appellant’s appeals without holding a full hearing.

Motion Materials

6The materials before the Tribunal on this Motion are the following:

1. Town of Huntsville and District of Muskoka Motion Record dated May 10, 2022 including:
   1. the Affidavit of Michael Keene, sworn April 6, 2022; and
   2. the Reply Affidavit of Michael Keene, sworn May 30, 2022.
2. Earls Road Developments Ltd. Response to Motion dated May 26, 2022 including:
   1. Affidavit of Jamie Robinson, sworn May 26, 2022;
   2. Affidavit of Wayne Simpson, sworn May 26, 2022;
   3. Affidavit of Chris Stilwell, sworn May 26, 2022;
   4. Affidavit of John Northcote, sworn May 25, 2022; and
   5. Affidavit of Gordon Nielsen, sworn May 25, 2022.

7The Municipalities also submitted the Reply Affidavit of Elizabeth Purcell, sworn May 30, 2022. The Tribunal has reviewed the Affidavit and agrees with counsel for the Appellant’s submission that this evidence should not be permitted as it represents information that the Municipalities knew of and had available to it when the motion was brought. It is not evidence that is responsive to new and unforeseeable evidence raised by the Appellant. The Tribunal’s Rules 10.4 and 10.5 require a moving party to identify and serve its documentary evidence and supporting affidavits on the responding party prior to the delivery of responding materials. Accordingly, the Affidavit of Elizabeth Pursell, sworn May 30, 2022 will not be allowed to be part of the record on this Motion.

Municipalities’ Grounds for the Motion

8The Municipalities maintain that the Tribunal can dismiss all or part of an appeal without holding a hearing if the Tribunal is of the opinion that the reasons set out in the Notice of Appeal do not disclose any apparent land use planning ground upon which the plan or part of the plan that is the subject of the appeal can be approved by the Tribunal or it is of the opinion that the proceedings are premature.

9The Municipalities argue that the Tribunal should dismiss the Appellant's appeals because the Appellant's Notice of Appeal does not disclose any apparent land use planning ground upon which the plan that is the subject of the appeal could be approved by the Tribunal due to issues of prematurity.

10The Municipalities also argue that the Tribunal can examine the reasons stated in the Appellant's Notice of Appeal to assess whether these constitute genuine, legitimate and authentic planning reasons or if the appeal itself is premature.

11The Municipalities further maintain that the Proposed Development is deficient and does not address the comments received by the commenting agencies. In particular, insufficient or outdated information has been made available by the Appellant for the Municipalities to be able to fully consider and assess elements of the Appellant's proposal.

12In particular, the Municipalities argue that the peer review findings for both the Traffic Impact Statement and Environmental Impact Statement have identified significant concerns with the Appellant's analysis and recommend that additional and updated information be provided by the Appellant for review. Neither the Appellant nor its consultants have yet to provide a satisfactory update to the Traffic Impact Study and/or Environmental Impact Study capable of review by either Municipalities.

13By failing to provide sufficient or updated information or to address significant concerns pertaining to the protection of the environment, connectivity, servicing capacity, scale and appropriate mix of uses and densities, the Municipalities argue that the Appellant has not provided justification and has failed to demonstrate that it will be able to provide land use planning grounds supported by evidence upon which the Tribunal could approve the Appellant's application for draft plan of subdivision and zoning by-law amendment.

14Due to the failure of the Appellant to provide sufficient or updated information in order to fully consider and assess certain elements of the Appellant's proposal, the application for a draft plan of subdivision and zoning by-law amendment, is therefore premature according to the Municipalities.

Appellant’s Response to Motion

15The Appellant maintains that it participated in a robust and comprehensive pre-consultation and consultation process with the Municipalities in respect of the Proposed Development, before and after filing the required applications for approval of a draft plan of subdivision and implementing zoning by-law amendment. This included meetings between its representatives, its consultants and the Municipalities’ staff over the course of a year and a half; and completion of all technical reports and studies required by the Municipalities for the Proposed Development. The reports relied on include a Planning Justification Report; a Functional Servicing Report with Preliminary Servicing and Storm Water Management Plan; an Environmental Impact Study; a Traffic Impact Study; Stage 1 & 2 Archaeological Assessments; a Visual Study; and, revising the Planning Justification Report and commissioning an Addendum to the Environmental Impact Study, all of which were intended to be responsive to comments made by the Municipalities. The Appellant maintains that it did not receive any comments from commenting agencies despite making numerous requests to the Municipalities.

16The Appellant states that the Municipalities did not undertake a peer review of any of the technical studies submitted by the Appellant until February 2022. The Appellant received a copy of the peer review of the Traffic Impact Study on March 1, 2022, and a “preliminary review” of the Environmental Impact Study on May 10, 2022.

17Furthermore, since the filing of the appeals in 2020, the parties have participated in five case management conferences before the Tribunal on: January 14, 2021, August 6, 2021, September 22, 2021, January 13, 2022 and February 14, 2022. On September 22, 2021, the Tribunal scheduled a three-week hearing to commence on August 8, 2022.

18The Appellant maintains that it has repeatedly attempted to resolve the appeals or, at a minimum, scope the issues requiring adjudication and identify matters better addressed through conditions of draft plan approval. For example, the Appellant on February 15, 2022, proposed to engage an experienced private mediator, at it’s expense, to facilitate a discussion aimed at identifying issues for adjudication / mediation, scoping the issues list and developing on a without prejudice basis acceptable draft plan conditions for issues which are not in dispute. No response has been received to that proposal.

19Furthermore, the Appellant has since January also repeatedly proposed that the parties’ land use planners meet to discuss any concerns regarding the Applications and appeals and, later, expanded that proposal to consultants in other technical disciplines. Those preliminary meetings only occurred on April 13, 2022 (traffic engineers) and May 6, 2022 (land use planners).

20On April 11, 2022, almost two years since the first appeal was filed, and a month before the previously agreed upon deadline for Witness Statements to be exchanged, the Municipalities for the first time raised the prospect of bringing a motion to dismiss the appeals without a hearing. The Municipalities delivered a Notice of Motion on May 10, 2022, three days prior to the date when Witness Statements were to be exchanged. Counsel argues that the Notice of Motion fails to articulate any reasonable basis to dismiss the appeals.

21Counsel also argues that the Motion is meritless and represents another example of the delay and lack of cooperation that has characterized the Municipalities’ treatment of the Applications and should be dismissed as the appeals raise multiple land use planning grounds upon which the Tribunal could approve the Applications and have merit and a reasonable prospect of success.

22Furthermore, there exist no statutory basis upon which the Tribunal could dismiss the appeal without a full hearing due to alleged “prematurity”.

ANALYSIS AND FINDINGS

23The Tribunal has carefully considered the evidence as well as the submissions of counsel and finds that the Motion should be dismissed for the reasons that follow.

24A review of the evidence in support of the Motion shows that there is simply no merit to the Application. The Motion materials filed on behalf of the Municipalities on this Motion fall far short of the requirements on such a motion. The grounds set out in the Municipalities’ Notice of Motion have convinced the Tribunal that the Motion should be dismissed. The Municipalities’ complaints as set out in its Motion demonstrate that the dispute should only be determined after a full and fair hearing where the evidence can be tested through cross-examination and full arguments by both sides.

25One must keep in mind that the Appellant filed its appeals as a result of the Municipalities failure to process the Applications notwithstanding voluminous reports filed by the Appellant in support of its Applications and the Municipalities’ deeming the Applications to be complete. The Appellant is entitled to have its Applications considered by this Tribunal given the Municipalities’ failure to deal with the Applications. To deny the Appellant a right to a full hearing, would amount to a denial of natural justice.

26It is quite evident to the Tribunal that the Municipalities are attempting through this Motion to have the issues determined without going through a full hearing where the evidence can be tested through cross-examination.

27The Ontario Land Tribunal Act, 2021 (“OLTA”) and the PA set out limited grounds upon which the Tribunal may grant the exceptional relief of dismissing an appeal without a hearing and the jurisprudence on this subject suggests that the Tribunal should not take away the rights of appeal whimsically, readily and without serious consideration of the circumstances of each case.

28It is clear to the Tribunal that none of the statutory grounds for a pre-emptive dismissal are applicable in this case, as the reasons set out in the Notices of Appeal disclose apparent land use planning grounds upon which the Tribunal could approve the Applications, given that the appeals emphasize the Proposed Development’s consistency with the Provincial Policy Statement, 2020 (PPS) and conformity with the Municipalities’ Official Plans, including in respect of urban intensification, protection of natural resources, and efficient use of resources and infrastructure planning.

29It is also clear to the Tribunal that the appeals have merit and have a reasonable prospect of success as the Appellant has retained a number of experts and intends to rely upon expert opinion evidence from two land use planners, a civil engineer, a transportation engineer, an ecologist, a certified arborist, a hydrogeologist, an archeologist, a landscape architect and an urban designer, each of whom is supportive of the Proposed Development.

30It is also clear to the Tribunal that the appeals were commenced in good faith and only for the purpose of obtaining the necessary approvals to proceed with the Proposed Development and were filed because of the Municipalities’ failure to make a decision regarding the Applications.

31In evaluating a motion to dismiss an appeal without a hearing, the Tribunal should be “reluctant to take away any individual’s right to appeal and to have a full, fair and complete hearing of their concerns”.

32The Tribunal agrees with counsel for the Appellant’s submission that motions to dismiss an appeal without a hearing are not designed to address the merits of an appeal, rather the issue is whether there are authentic land use planning issues upon which evidence may be called and which are capable of adjudication in a hearing on the merits. It is not the Tribunal’s role in the context of this Motion to determine whether the Appellant will be successful when the appeals are heard, it is only necessary to satisfy the Tribunal that there is a prospect that the Applications could be approved, in whole or in part.

33The Tribunal needs to have the benefit of full evidence that would be provided in relation to the grounds raised by the Appellant at a hearing, and the testing of that evidence through cross-examination.

34The Tribunal finds that the appeals raise multiple genuine, legitimate and authentic land use planning grounds which are worthy of adjudication by the Tribunal. Amongst other things, the Notices of Appeal set out the Proposed Development’s consistency with the PPS and conformity with the Municipalities’ Official Plans.

35The Tribunal finds that the Affidavit of Jamie Robinson (professional land use planner), sworn May 26, 2022, confirms that the appeals are founded on clear, genuine, and persuasive land use planning grounds including that the Subject Lands are designated in both the Municipalities’ Official Plans for the uses which are proposed; that no Official Plan Amendment is required in order to implement the Proposed Development; that the Proposed Development implements the planned function of the Subject Lands and is supported by multiple technical studies including a Traffic Impact Statement, Functional Servicing Report and an Environmental Impact Statement.

36The two affidavits relied on by the Municipalities in support of this Motion by Michael Keene, a land use planner, reflect a difference of opinion regarding the Applications’ consistency with the PPS and conformity with the Municipalities’ Official Plans. These fall far short of supporting a motion to dismiss. The Keene Affidavits rather demonstrate that there exists multiple land use planning grounds requiring adjudication by the Tribunal.

37The Affidavit of Christopher Stilwell, a civil engineer, sworn May 26, 2022, expresses the opinion that the Proposed Development is viable and that any outstanding servicing capacity-related matters can be appropriately addressed, including through phasing agreements and as conditions of draft plan approval. Mr. Stilwell opines that the Proposed Development proposes cost effective development patterns and standards to minimize land consumption and servicing costs. It is noted that Mr. Stilwell authored the Functional Servicing Report dated July 5, 2019, filed in support of the Application for the draft approval of the plan of subdivision.

38The Affidavit of John Northcote, a transportation engineer, sworn May 25, 2022 concludes that the proposed development will not cause any operational issues and will not add significant delay or congestion to the local roadway network and that any transportation-related matters can be appropriately addressed, including through phasing and as conditions of draft plan approval. Mr. Northcote completed the Traffic Impact Study dated June 4, 2019 in support of the application for the Proposed Development.

39The Affidavit of Gordon Nielsen, an ecologist, sworn May 25, 2022, concludes that all but the southeast and central east portions of the Subject Lands are appropriately suited for development, and that the Proposed Development is appropriate from a natural heritage perspective. His affidavit also confirms that, even after having reviewed the “preliminary review” undertaken by the Municipalities’ consultant, he remained of the opinion that the development of the Subject Lands is fully appropriate from a natural environment perspective and any outstanding concerns could be addressed as conditions of draft plan approval. The affidavit confirms that expert evidence will be further expanded in Witness Statements to be filed in the hearing of the appeals on the merits, and will address all relevant criteria in section 51(24) of the PA and will demonstrate that the Proposed Development and the zoning amendments required to implement it are consistent with the PPS, in conformity with all applicable Official Plan policies and represent good land use planning. Mr. Nielsen authored the Environmental Impact Study dated June 4, 2019, and the Addendum dated July 20, 2020, which was based on significant field work undertaken in 2018, 2019 and 2020.

40With respect to the Municipalities’ allegation that the appeal is premature, the Tribunal agrees with counsel for the Appellant that there is simply no statutory basis to dismiss an appeal without a hearing on the basis of “prematurity”. Again, it is noted that the Municipalities deemed the Applications to be complete.

41The Tribunal agrees with counsel’s submission that the Municipalities have incorrectly conflated the criterion in section 51(24)(b) of the PA, that in considering a draft plan of subdivision, regard be had to “whether the proposed subdivision is premature or in the public interest”. This is a question that speaks directly to the merits of the Applications and requires adjudication by the Tribunal at a full hearing.

42The Tribunal finds that the solutions proposed by Messer’s Stilwell, Nielsen and Northcote, which are proposed to be implemented as conditions of draft plan approval are entirely consistent with the ordinary process for development approvals, as confirmed by this Tribunal previously. The Tribunal has repeatedly acknowledged in its jurisprudence that conditional approvals are “routine” and that a project is not “premature” merely because a required approval is conditional.

43Accordingly, the Tribunal finds that the Motion should be dismissed.

ORDER

44The Motion is hereby dismissed.

45Any request for costs shall be made in accordance with the Tribunal’s Rules.

“R. G. M. Makuch”

R. G. M. MAKUCH vice-chair

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.