Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
September 28, 2022
CASE NO(S).:
OLT-22-002392
PROCEEDING COMMENCED UNDER section 17(36) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant
James Hunter and Heather Hunter
Applicant
Timothy and Janette Thorne
Subject:
Proposed Official Plan Amendment
Description:
To permit limited retail and commercial uses including a outfitters store and an inn
Reference Number:
OPA C-2021-017
Property Address:
484 Carlisle Street
Municipality/UT:
Saugeen Shores/Bruce
OLT Case No:
OLT-22-002392
OLT Lead Case No:
OLT-22-002392
OLT Case Name:
Hunter v. Bruce (County)
Heard:
September 22, 2022 by video hearing
APPEARANCES:
Parties
Counsel*/Representative
James Hunter and Heather Hunter
Alexandra Ferrier*
County of Bruce
Tammy Grove-McClement*
Monica Poremba*
Town of Saugeen Shores
Tammy Grove-McClement*
Monica Poremba*
Timothy Thorne
Self-Represented
MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY ON SEPTEMBER 22, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is the first Case Management Conference (“CMC”) concerning an appeal by James Hunter and Heather Hunter (together the “Appellant”) of the County of Bruce’s (“County”) approval of By-law No. 2022-003 to adopt an Official Plan Amendment C-2021-017 (“OPA”) pursuant to s.17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”). The appeal relates to the property owned by Timothy Thorne (“Applicant”) located at 484 Carlisle Street, Town of Saugeen Shores (“Subject Property”).
2The Subject Property is located adjacent to Denny’s Dam Park and comprises approximately 0.97 hectares of land. There is a single detached dwelling unit (former inn) on the north side of the Subject Property along with a shed, parking and a storage building.
3The Applicant is proposing to redevelop the Subject Property to establish a new retail/storage use for renting kayaks, canoes, apparel and other goods typically found in an outfitters store including paddle boards, surfboards, fishing equipment, camping equipment and bicycles. In addition, the Applicant proposes to re-establish an inn which originally operated on the Subject Property.
4In order to permit the redevelopment, the OPA proposes to add special provisions to the Agricultural designation to permit retail and commercial uses, specifically, an outfitters retail store, equipment rental use associated with the Saugeen River, and to re-establish an inn. The Applicant filed an associated Zoning By-law Amendment which has not been appealed.
5At the CMC, the Tribunal addressed requests for status, opportunities for settlement discussions, an issue related to the ownership of Carlisle Street, the identification of issues to be addressed at the hearing and the setting of a second CMC date.
6The Tribunal canvassed Counsel who confirmed that there was no issue with service of Notice of the CMC, as such, no further notice is required. The Tribunal is in receipt of the Affidavit of Service of Anne Emke sworn August 3, 2022, which was marked as Exhibit 1.
STATUS REQUESTS
7There are two statutory parties regarding this appeal, and both were represented at the CMC by their respective counsel.
8In advance of the CMC, the Tribunal received two requests for party status from the Town of Saugeen Shores (“Town”) and from the Applicant. The Town is represented by Tammy Grove-McClement and Monica Poremba, who also appeared on behalf of the County. The Applicant is self-represented.
9The Applicant is the owner of the Subject Property and has a direct interest in the appeal. The Tribunal was advised that the Applicant has been and will continue to work together with the Town and County with respect to the appeal. When the Applicant filed the OPA, they also filed a Zoning By-law Amendment (“ZBA”) with the Town which was passed and has not been appealed. The outcome of the OPA appeal directly affects the ZBA. In addition, there is an outstanding issue relating to ownership of Carlisle Street, which services the Subject Property which will impact the Town.
10The Appellant consented to the party request of the Town and took no position on the party status request of the Applicant. Given the obvious interests of the Applicant and the Town in the subject matter of the appeal, the Tribunal finds that the participation of the Applicant and the Town as parties is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the appeal.
11The Tribunal granted party status to the Applicant and to the Town pursuant to Rule 8.2 of the Tribunal’s Rules of Practice and Procedure. The Tribunal specifically noted that as a Non-Appellant party, the involvement of added parties in the appeal is conditional upon, and subject to, Rule 8.3 in the Ontario Land Tribunal’s Rules of Practice and Procedure, which states:
8.3 Non-Appellant Party A party to a proceeding before the Tribunal which arises under any of subsections 17(24) or (36), 34(19) or 51(39) of the Planning Act who is not an appellant of the municipal decision or enactment may not raise or introduce a new issue in the proceeding. The non-appellant party may only participate in these appeals of municipal decisions by sheltering under an issue raised in an appeal by an appellant party and may participate fully in the proceeding to the extent that the issue remains in dispute. A non-appellant party has no independent status to continue an appeal should that appeal be withdrawn by an appellant party.
The Tribunal explained that the parties may participate fully in the appeal, however, must shelter under issues raised by the Appellant and do not have independent status should the appeal not proceed to a merit hearing.
12The Tribunal did not receive any requests for participant status.
SETTLEMENT OR MEDIATION
13The Tribunal discussed opportunities for settlement and/or mediation with the parties. The Tribunal reminded the parties that Tribunal-led mediation is available, and any requests can be made through the Case Coordinator.
14The parties advised the Tribunal that they have had discussions, and would continue to do so, but were not currently in a position to settle.
CARLISLE STREET OWNERSHIP DISCUSSION
15In advance of the CMC, the Parties notified the Tribunal that an issue had arisen with respect to the ownership of a road allowance for Carlisle Street. A portion of Carlisle Street, which provides access to the Subject Property, deviates from the road allowance and runs through the property of the Appellant.
16The Appellant submitted that legal title for their property includes the whole lot, including the road deviation. The Appellant’s position is that the substantive issue of ownership of the portion of Carlisle Street located on the Appellant’s property is outside of the Tribunal’s jurisdiction, however ownership needs to be determined prior to the appeal process moving forward.
17The Town submitted that road allowance deviations are not unusual, and that Carlisle Street is a paved, publicly travelled road providing access to the Subject Property and beyond. The Town maintains Carlisle Street, including the deviation, and it is part of the Town’s financial budget for maintenance. The Town submitted that the appeal could proceed prior to resolution of the ownership issue.
18After considering the submissions of the parties, the Tribunal agrees that road ownership is outside of its jurisdiction. The Tribunal determined that the appeal could proceed prior to a final determination on the issue of ownership of the portion of Carlisle Street located on the Appellant’s property. There was no good reason proffered by the parties to delay or stop the appeal process from advancing.
PROCEDURAL ORDER AND ISSUES LIST
19The Tribunal noted that the expectation is that parties will attend a CMC with a draft Procedural Order (“PO”) for the Tribunal’s review. The Town/County submitted that they have had discussions with the Appellant regarding a draft PO. The parties explained that they were unable to estimate the length of hearing, or the experts required prior to the Tribunal’s finding regarding the street ownership issue. The Tribunal advised the parties that a new PO template was available on its website and the parties were expected to use this updated template to complete the draft PO.
20In advance of the CMC the Town/County and the Appellant circulated separate Issues Lists. The Tribunal had a number of concerns with both of the Issues Lists and provided the parties with a few important reminders:
each issue must indicate the precise question that the Tribunal will be addressing. An Issues List cannot merely cite entire policy documents – it must be specific and refer to precise policies and sections within the documents.
an Issues List is not merely an opportunity to raise questions. Parties must be prepared to bring evidence to support each issue that they are raising.
the Appeal Form frames the issues to be adjudicated. The Tribunal is limited in its jurisdiction to make decisions on those matters that were specifically listed in the Appeal Form.
21The Appellant had no objections to the issues put forward by the Town/County. The Tribunal determined that the Town/County issues were too broad and directed the Town/County to amend their issues to refer to specific policies and sections.
22The Town/County advised that the Appellant’s list had been circulated one day prior to the CMC and as such, there was no opportunity to conduct a full review. However, the Town/County did submit that many of the issues are not relevant for the purposes of an OPA appeal.
23The Tribunal has reviewed the Appeal Form completed by the Appellant on February 14, 2022, which defines the issues in this appeal. The Tribunal found that a number of issues on the Appellant’s Issues List were not planning matters or had not been raised as issues in the Appeal Form. The Tribunal went through each issue on the Appellant’s list with the parties, received submissions and made the following determinations:
Issue 1 - strike from the Issues List. Based on submissions received by the Appellant, the Saugeen Ojibway Nation would like input into the building process involved in a building being constructed on the Applicant’s property. The Town/County submitted that the Saugeen Ojibway Nation was given notice of the OPA application and had no concerns. The Tribunal directed the Appellant to strike this issue as input into a building process is not a planning issue and is not related to the appeal before the Tribunal. In addition, the Appeal Form did not make reference to concerns regarding consultation with the Saugeen Ojibway Nation.
Issue 2 - strike from the Issues List. The Appellant submitted that they are unaware whether there are any artifacts on site but thought that an archeological study should have been required during the application process. The Town/County confirmed that this was considered during the planning process, and it was determined that an archeological study was not required. The Tribunal directed the Appellant to strike this issue as they conceded that they did not have any knowledge of artifacts on site and further, there was no reference to artifacts or an archeological study in the Appeal Form.
Issue 3 - requires amendment. The sections and policies being referred to need to be specified and the issue needs to be phrased in a neutral manner.
Issue 4 - requires amendment. The sections and policies being referred to need to be specified.
Issue 5 - requires amendment. The issue needs to be phrased in a neutral manner.
Issue 6 – requires amendment. The sections and policies being referred to need to be specified.
Issue 7 – strike from the Issues List. Issues related to the location of wells and whether there are proper agreements in place relating to use of a well are not planning matters within the jurisdiction of the Tribunal.
Issue 8 – strike from the Issues List. The number of businesses that a landowner operates in various locations is not a proper planning matter.
Issue 9 – strike from the Issues List on consent of all parties.
Issue 10 – requires amendment. The sections and policies being referred to need to be specified.
24The Tribunal encourages the parties to work together in the coming weeks to prepare an issues list that is specific, relates to the Appeal Form and raises issues that are within the Tribunal’s jurisdiction to adjudicate.
SECOND CMC
25Based on discussions during the CMC, the Tribunal determined that a second CMC is required in these circumstances.
26The Applicant was opposed to a second CMC and stressed that “time is of the essence” as he has already suffered significant business losses. The Town/County agreed with the Applicant that a further CMC will delay the process and suggested that it may not be necessary.
27The Tribunal sympathizes with the Applicant’s frustration and notes that it has a mandate to ensure an efficient and cost-effective process. In these specific circumstances, the Tribunal determined that the most efficient way to proceed is to schedule a second CMC. The Tribunal tends not to set hearing dates without a final PO being issued, or at the very least, ready to be issued. The parties do not have a draft PO prepared, the Issues Lists require considerable work and the parties are, at this point, unable to determine the number of experts that they will retain.
28The Tribunal encouraged the parties to work together in order to produce a draft PO and Issues List that can be approved at the second CMC. In that regard, the Tribunal tasked Counsel for the Town/County to file a draft PO and Issues List with the Tribunal on or before Wednesday, November 23, 2022.
ORDER
29The Tribunal orders that Timothy Thorne is a Party in these proceedings.
30The Tribunal orders that the Town of Saugeen Shores is a Party in these proceedings.
31The Tribunal orders that a second CMC will be held by video conference on Monday, November 28, 2022 commencing at 10 a.m.
32Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
https://global.gotomeeting.com/join/519389173
Access code: 519-389-173
33Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html
34Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (647) 497-9373 or Toll Free 1-888-299-1889. The access code is 519-389-173.
35Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
36The Tribunal directs the Town/County to submit a draft PO and Issues List to the Tribunal on or before Wednesday, November 23, 2022.
37The Member is seized.
38No further notice will be given.
“C. Hardy”
c. hardy
MEMBER
Ontario Land Tribunal
Website: 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.