Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 7, 2022
CASE NO(S).: OLT-21-001782
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Ed Pat Wyrwas
Appellant: Ron Duffy
Appellant: Sylvia Burden
Subject: Zoning By-law
Description: To update lot area data in the zoning by-law.
Reference Number: BL 2021-34
Property Address: (Part of the annulled portion of Hyman Township)
Municipality/UT: Nairn and Hyman/Sudbury
OLT Case No: OLT-21-001782
OLT Lead Case No.: OLT-21-001782
OLT Case Name: Burden, Duffy, et al. v. Nairn and Hyman (Twp.)
Heard: August 24, 2022 by Video Hearing
APPEARANCES:
Parties
Counsel*/Representative
Pat and Ed Wyrwas
Self-Represented
Ron Duffy
Self-Represented
Sylvia Burden
Self-Represented
Township of Nairn and Hyman
Not Represented
Agnew Lake Property Group
Leighton Roslyn*
MEMORANDUM OF ORAL DECISION DELIVERED BY BRYAN W. TUCKEY ON AUGUST 24, 2022 AND ORDER OF THE TRIBUNAL
1The Tribunal convened the first Case Management Conference (“CMC”) for the above noted matter. Ed and Pat Wyrwas, Ron Duffy, and Sylvia Burden (“Appellants”) have filed appeals against the Township of Nairn and Hyman’s (“Township”) approval of By-law No. 2021-34 (“ZBL”) pursuant to s. 34(19) of the Planning Act.
2The purpose of the ZBL is to amend the minimum lot and block areas for lands in the Agnew Lake Property Group (“ALPG”) subdivision. The minimum lot areas were established originally in By-law No. 2020-25, a By-law amending Zoning By-law No. 2013-5 as amended. The ZBL is considered technical in nature as it has the purpose of updating minimum lot areas that were refined following a legal survey when the Plan of Subdivision was finalized.
3Notice was given by the Tribunal dated July 4, 2022. No further notice is required.
4The ALPG has requested party status with respect to this matter. The ALPG was granted party status with consent of all parties. Mr. Patrick Duffy requested participant status which was also granted by the Tribunal as he has an interest in the matter. Mr. P. Duffy was advised to have his written participant statement submitted to the Tribunal through the Case Coordinator as early as possible. There were many interested observers present for this CMC.
5The Township was not represented formally at this proceeding. Ms. Belinda Ketchabaw, the CAO/Clerk Treasurer, was in attendance and answered questions both of the Appellants and the Tribunal.
6Mr. Roslyn, counsel for the ALPG, provided background information with respect to the application for the benefit of the Tribunal, parties, participants, and observers present. Suffice it to say this matter has a significant history. The history is briefly described as follows.
The unregistered plan of subdivision has evolved over time to include a mix of permanent and seasonal homes, accessory buildings and private garages located on or adjacent to the unregistered land parcels (“subject lands”). The subject lands consist of 52 parcels of which 51 are residential and one is commercial. Only one lot remains vacant.
The ALPG purchased the subject lands from Vale in December 2016.
After the purchase of the subject lands, the ALPG began to work with the Township to seek zoning and plan of subdivision approval in order to be able to convey to each property owner a deed for the parcel they currently lease.
A draft plan of subdivision was prepared, and By-law No. 2020-25 used this draft plan as a basis for its construct. It was adopted by Council in July 2020 and By-law No. 2020-25 was not appealed.
The draft plan of subdivision has been approved. Subsequent to this approval, ALPG and the Township have been working on schedules to the subdivision agreement. Schedules to this agreement include provisions for the ongoing maintenance of the private road network to ensure the continuity of road access to each and every lot in the subdivision.
Upon the completion of a final survey of the plan of subdivisions lot fabric, minor changes occurred to some lot areas within tables of By-law No. 2020-25. These changes are incorporated into the ZBL which is the By-law that is before the Tribunal.
7Each of the three Appellants provided detailed explanations of their issues and concerns with respect to the evolution of this matter. Issues related to maintenance of driveway access, reduction in lot sizes, and a variety of other neighborhood issues and disputes that are a result of the Township’s and ALPG’s efforts to finalize the ZBL and plan of subdivision. None of the issues and concerns presented are contained in planning instruments before the Tribunal and may well not be considered within its jurisdiction in this proceeding.
8The Tribunal asked all parties whether there would be some benefit to Tribunal-led mediation. There is no consent of all parties to seek mediation as the issues have been lingering for years and the opportunity for resolution is remote.
9Mr. Roslyn submitted that the Appellants have not clearly set out the objection to the ZBL and the reasons in support of this objection as required by s. 34(19) of the Planning Act. Therefore, he suggested to the Tribunal that these appeals could be dismissed without a hearing in keeping with Rule 15.4 of the Ontario Land Tribunal Rules of Practice and Procedure (“Rules”). Failing that, the ALPG would consider bringing a motion before the Tribunal in keeping with Rule 10..
10Upon hearing this submission from ALPG, the Tribunal explained in detail the role and obligations of a party as found in Rule 8.2 and the process of Motions found in Rule 10 of the Rules. The Tribunal took considerable effort to explain what is before it in these proceedings and explain the general jurisdictional parameters it is required to follow.
11The Tribunal encouraged all parties to meet in an effort to better understand the process, see how some of their issues are being addressed in the subdivision agreement and resolve the outstanding issues and concerns. The Tribunal suggested to the Appellants that it would be prudent for them to receive professional advice with respect to their appeal and the motion process.
TRIBUNAL DISPOSITION
12The Tribunal finds that it requires a determination to be made on the validity of the appeals and whether they are worthy of being heard in a merits hearing. The matter, as presented at this CMC, does not meet the threshold necessary to make that determination. The Appellants should have the opportunity for due process to review and respond to a motion should they wish to proceed.
13The Tribunal agrees that a written motion in keeping with Rule 10 in order to make a determination regarding the validity of the appeals, may be prudent. The mover of the Motion is the APLG, and the responding parties are the Appellants. The Tribunal directs that the Appellants work together to prepare one coordinated response to the Motion.
14The Tribunal is prepared to schedule a full day Motion Hearing commencing on Friday, October 28, 2022 at 10 a.m.
MOTION HEARING TECHNICAL DETAILS
15A full day Motion Hearing will convene on Friday, October 28, 2022, by video hearing at 10 a.m.
16Parties 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:
GoTo Meeting: https://global.gotomeeting.com/join/519389173
Access code: 519-389-173
17Parties 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 at: https://app.gotomeeting.com/home.html
18Persons 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: +1 (647) 497-9373 or Toll Free 1-888-299-1889. The access code is 519-389-173
19Individuals 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 events may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
20Accordingly, the Tribunal Orders:
a written motion in keeping with Rule 10 – Ontario Land Tribunal – Rules of Practice and Procedure be initiated in order to determine the validity of the appeals.
the moving party for this motion is the Agnew Lake Property Group.
the responding parties are Ed and Pat Wyrwas, Ron Duffy, and Sylvia Burden.
a full-day Motion Hearing is to convene on Friday, October 28, 2022.
21The Agnew Lake Property Group is granted party status to these proceedings.
22Mr. Patrick Duffy is granted participant status to these proceedings.
23No further notice will be given.
24The Member is not seized.
“Bryan W. Tuckey”
BRYAN W. TUCKEY
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.