Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 23, 2023

CASE NO(S).: OLT-23-000741

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

Applicant/Appellant: OBD Developments Inc.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit temporary use By-law for rock crushing on residential lands

Reference Number: Z22-12

Property Address: Part Lots 30 and 31, Concession 2, Baxter

Municipality/UT: Georgian Bay/Muskoka

OLT Case No.: OLT-23-000741

OLT Case Name: OBD Development Inc. v. Georgian Bay (Township)

Heard: October 10, 2023, by Video Hearing

APPEARANCES:

Parties

Counsel

OBD Developments Inc. (“Applicant/Appellant”)

David White, Q.C.

Township of Georgian Bay

Peter Pickfield

DECISION DELIVERED BY ROBERT G. ACKERMAN on October 10, 2023, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1On October 10, 2023, the first Case Management Conference (“CMC”) was heard in relation to the Appeal brought under s. 34(11) of the Planning Act by OBD Developments Inc. (“Applicant/Appellant”) against the Township of Georgian Bay (“Respondent”) for failure to make a decision within the statutory timeframes on an Application for a Zoning By-law Amendment (“ZBA”) (the “Application”) in relation to properties described as Parts of Lots 30 and 31, Baxter, Township of Georgian Bay, District of Muskoka (no municipal address assigned) (the “Subject Lands”).

2The purpose of the Application is to facilitate a temporary use By-law to permit rock crushing for a period of two years on the Subject Lands, which are located in Port Severn, south of Honey Harbour Road. The Subject Lands are part of the Oak Bay residential development consisting of two Draft Approved Plans of Subdivision, S-2005-7 and S-2005-10 (Summerside). The Subject Lands are designated as Block 19 on Plan of Subdivision S-2005-7. Shot/blast rock was generated during previous phases of the construction and servicing of the Oak Bay subdivision, and the larger rock which could not be used for construction purposes was stockpiled on the Subject Lands. The Appellant seeks the ZBA to permit the crushing of the stockpiled rock, as well as the further blast rock to be generated from the continued servicing of the residential development. Smaller shot rock has been, and will be, used by the Appellant for road base granular and foundation backfill, while the larger rock requires crushing to be of use for construction purposes.

3Rock crushing is not a permitted use under the Zoning By-law (“ZBL”) and a ZBA is therefore required to permit temporary rock crushing on the Subject Lands. The requested ZBA would permit crushing in two phases:

• Phase 1 would permit the crushing of the existing stockpile of approximately 14,000 cubic metres (31,000 T) of rock; and
• Phase 2 would permit the crushing of 15,500 cubic metres (34,000 Tonnes) of rock to be generated from servicing the Summerside phase of the development.

4The Appellant’s Application for the Temporary use By-law was filed on May 6, 2022, and on November 25, 2022, the Respondent issued a Notice of Complete Application. The Respondent failed to make a Decision on the Application, and the Appellant filed this Appeal on July 19, 2023.

5The Tribunal marked as Exhibit 1 the Affidavit of Service of Jenny Gillegean, sworn on September 7, 2023, confirming that Notice of this CMC was properly given.

REQUESTS FOR STATUS

6The statutory Parties to this Appeal are the Applicant/Appellant and the Respondent.

7The Tribunal had received a Party Status Request and several Participant Status Requests.

8The Party Status Request, and in the alternative, a Participant Status Request, was received from Jacob Loewen and was marked as Exhibit 2. Mr. Loewen identified his interest as a property owner in the vicinity of the Subject Lands. He raised concerns regarding excessive noise and environmental issues with respect to the proposed rock crushing on the Subject Lands, indicating that as a retired Professional Engineer, he would be in a position to provide expert commentary and insight regarding the proposal. After considering the requirement that an expert witness be independent and the role and obligations of a Party, Mr. Loewen withdrew his request for Party Status and asked, in the alternative, that he be granted Participant Status. The Tribunal, on consent of the Parties, granted Participant Status to Mr. Loewen.

9Participant Status requests were received from the following persons and marked as Exhibits:

1. David Miller Exhibit 3;
2. Whitney Miller Exhibit 3;
3. Rymanta Kaknevicius Exhibit 4;
4. John Dent Exhibit 5;
5. David Flower Exhibit 6;
6. Thomas Bain Exhibit 7; and
7. Gary Filipchuk Exhibit 8.

10David Miller, Whitney Miller and Thomas Bain did not appear, although properly served. Of the Participants who did appear, all indicated that they live within the vicinity of the Subject Lands and raised various issues including concerns with; the noise of the rock crushing operation, environmental concerns, air quality concerns, and health concerns attributable to air-borne rock dust. The Tribunal found that individuals who attended and had requested Participant Status had an interest in the matter, and will assist the Tribunal in understanding the potential impacts of the Proposal on the local community. The Tribunal, on consent of the Parties, granted Participant Status to:

1. Rymanta Kaknevicius;
2. John Dent;
3. David Flower;
4. Gary Filipchuk.

11In response to the Notice, the Tribunal received no other requests for Status as either a Party or a Participant.

MEDIATION AND SETTLEMENT

12The Tribunal raised the issue of opportunities for settlement discussions, including the use of Tribunal-assisted mediation. Counsel for the Parties indicated that they were in ongoing discussions.

13The Parties are directed to advise the Tribunal in writing should they reach a settlement with respect to some or all of the issues prior to the Hearing and, should they wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator.

PROCEDURAL ORDER, ISSUES LIST AND ORDER OF EVIDENCE

14Counsel had not produced a draft Procedural Order (“PO”) prior to the CMC. However, Counsel advised that an Issues List (“IL”) had been circulated but not filed with the Tribunal. Counsel advised that their clients were prepared to set a Hearing date, and that once the Hearing was scheduled, they would be in a position to complete a draft PO which they anticipated, would be on consent. Counsel agreed that a total of nine witnesses would be called at the Hearing and that a five-day Hearing would be required. After consultation with the Tribunal’s Hearing Coordinator, a five-day Hearing was agreed upon for February 5 to 9, 2024. The Tribunal directed that Counsel prepare the draft PO, which is to be filed with the Case Coordinator, and that the PO include an IL and an Order of Evidence which includes the names and areas of expertise for each expert witness, and the names and involvement of any lay witness.

15The Parties are directed by the Tribunal to provide a consent draft PO, including the IL and Order of Evidence, to the Tribunal on or before Friday, October 20, 2023.

16Once received and issued, the PO, will govern all further pre-hearing procedural requirements and the Hearing of the Appeal.

HEARING DATE

17Parties and Participants are asked to log into the Hearing at least 15 minutes before the start of the event to test their video and audio connections:

Monday, February 5, 2024, at 10 a.m. (five-day Merit Hearing)

GoTo Meeting: https://meet.goto.com/680885805

Access code: 680-885-805

Audio-only telephone line: 1-888-299-1889 or +1 (647) 497-9373

18Parties 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

19Persons 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 mentioned above.

20Individuals 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.

OTHER MATTERS

21As David Miller, Whitney Miller and Thomas Bain did not appear, Counsel for the Appellant undertook to serve each with notification of the Hearing date. The Tribunal inquired as to whether there were any other matters to be addressed, which might assist in the fair, just and expeditious resolution of this Appeal. The Parties indicated there were none.

ORDER

22THE TRIBUNAL ORDERS THAT:

A. The following persons are Participants in this Appeal:

1. Jacob Loewen;
2. Rymanta Kaknevicius;
3. John Dent;
4. David Flower;
5. Gary Filipchuk.

23The Hearing of this Appeal will proceed on Monday, February 5, 2024, at 10 a.m., for a period of five days.

24There will no be further Notice.

25This Member is not seized, but may be contacted through the Case Coordinator should procedural issues arise.

“Robert G. Ackerman”

ROBERT G. ACKERMAN

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.