2428568 Ontario Limited v. Midland (Town), 2023 CanLII 10100

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 9, 2023

CASE NO(S).: OLT-22-002354

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: 2428568 Ontario Limited

Subject: Site Plan

Description: To permit the construction and use of a 6-storey, 117 room hotel containing a 100-seat restaurant, 80 square metres of retail space, an in-ground swimming pool and a tennis court

Reference Number: SPA-02-20

Property Address: 1191 Harbourview Drive

Municipality/UT: Midland/Simcoe

OLT Case No: OLT-22-002354

OLT Lead Case No: OLT-22-002354

OLT Case Name: 2428568 Ontario Limited v. Midland (Town)

Heard: February 2, 2023 by video hearing

APPEARANCES:

Parties	Counsel
24285868 Ontario Limited (“Kaitlin”)	Marc Kemerer
Town of Midland	Bruce Engell

MEMORANDUM OF ORAL DECISION DELIVERED ON FEBRUARY 2, 2023 BY S. BRAUN AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION

1This was a settlement hearing of an appeal by 24285868 Ontario Limited (“Kaitlin”/”Applicant”) under s. 41(12) of the Planning Act¹ (“Act”) against the failure of the Town of Midland (“Town”) to make a decision on a site plan application in relation to the proposed development of the property located at 1191 Harbourview Drive (“subject lands” / ”site”).

2Jamie Robinson, a Registered Professional Planner, who provided a sworn Affidavit (Exhibit 1) and was qualified by the Tribunal to provide land use planning opinion evidence in relation to the matter under appeal delivered a detailed contextual and land use planning rationale in support of the settlement. In Mr. Robinson’s opinion, subject to certain minor variances (discussed in greater detail below) being approved and coming into force and effect, the proposed site plan is representative of good planning and meets all requisite legislative tests.

SITE AND CONTEXT

3The site is located on the east side of Harbourview Drive and is 1.38 hectares in size having frontage on both Harbourview Drive and Marina Park Avenue. To the north of the site are residential uses; to the south is a residential apartment building, a park and vacant land; to the west is vacant land; and immediately east of the site are Georgian Bay and a yacht club.

4The site is desginated Employment Areas in the Official Plan for the Town of Midland (“TOP”) and is zoned Highway Commercial (HC-H) subject to a Holding Symbol² in the Town of Midland Zoning By-Law 2004-90 (“ZBL”). The site plan before the Tribunal is for a 6-storey hotel and additional commercial uses, including a convenience store and coffee shop. A previous version of the application included a restaurant, which has since been removed.

5Mr. Robinson highlighted some relevant and somewhat unique history and context to the matter before the Tribunal. He explained that the ZBL permits a maximum building height of 11 metres (“m”) and requires a minimum of two loading spaces, which must be adjacent to or within the building. In order to give effect to the development proposal, a minor variance was sought to increase the maximum height from 11 m to 20 m. In addition, because the demand for loading space at a hotel is limited and locating loading spaces adjacent to or within a hotel is not practical, a variance was sought to reduce the number of required loading spaces from two to one and to allow for the loading space to be located elsewhere on site.

6The Town’s Committee of Adjustment approved the requested variances on December 9, 2021, subject to a condition which Mr. Robinson described as a “sunset clause” requiring finalization of site plan approval within 6 months. On April 20, 2022 Kaitlin requested an extension to December 9, 2022. The request was approved on the following basis:

That site plan approval be finalized to the satisfaction of the Executive Director of Planning, Building and By-law and Approval be gained on or before December 9, 2022.

7Mr. Robinson further explained that, for a variety of reasons, delays prevented Kaitlin from obtaining the required site plan approval by the specified date and, as such, the approval of those minor variances has lapsed.

8As a result of the foregoing, the settlement between the Parties includes a requirement for Kaitlin to apply for minor variances consistent with those previously granted, which the Town will support. Mr. Robinson opined that once the variances are approved and come into full force and effect, the proposed site plan will be compliant with all the requirements of the ZBL.

9Mr. Robinson also noted that the proposed site plan may require a minor revision to address location of existing hydro poles. He noted that the Parties are awaiting the required sign-off with respect to this issue from the local hydro authority. He testified that he has had several conversations with engineers for the Town as well as electrical and civil engineers and based upon such conversations is of the view that the matter is technical and can be accommodated. Finally, Mr. Robinson noted one further outstanding item, which is a required easement in favour of Kaitlin over Marina Park, a municipally maintained road. He explained that stormwater from the site is to be conveyed underground through the easement out to Georgian Bay. He characterized this as a technical issue as well, and noted that neither of the foregoing affect the functioning of the site or his planning opinion.

PLANNING EVIDENCE

10Mr. Robinson provided a thorough explanation of the ways in which the proposed site plan, subject to the aforementioned minor variances coming into effect, meets all legislative tests. He provided his opinion on such tests as follows.

11The proposed site plan has appropriate regard for matters of Provincial interest, including, but not limited to: the adequate provision and efficient use of sewage and water services; the orderly development of safe and healthy communities and the appropriate location of growth and development. In addition, it sufficiently addresses matters outlined in s. 41(4) of the Act relating to site plan control.

12The proposed site plan is consistent with the Provincial Policy Statement (“PPS”), as the proposed development is located within a Settlement Area, which is to be the focus of growth and development and the proposed development can be appropriately serviced with sewage and stormwater management services. There is conformity with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”) and the Official Plan of the County of Simcoe (“COP”) as the proposed development is within a Strategic Growth Area and a Settlement Area (areas to which growth and development are to be focused) and the subject lands are appropriately designated by the COP to accommodate the proposed use.

13Although the Town of Midland has approved a new Official Plan (“New OP”), the subject lands are still subject to the policies and schedules of the (old) TOP. This is because the New OP has been appealed and the subject site falls within the area of influence of that appeal. The proposed site plan conforms with the policies in the TOP, including s. 3.1.3(b), which outlines permitted uses for Employment Areas and includes the proposed use. In addition, once the two outstanding technical matters (being the aforementioned easement and hydro pole location) are addressed, the proposed site plan will conform to s. 8.8, which addresses site plan control matters.

14The proposed hotel and convenience commercial uses are permitted within the Highway Commercial Zone and, in accordance with the settlement agreement, once a site plan agreement is completed and executed, an application to remove the Holding Symbol will be submitted to the Town. Subject to the approval and coming into effect of the minor variances (discussed above at paragraphs 5-8), the proposed site plan will be in compliance with all the requirements of the ZBL.

15On the basis of the foregoing, Mr. Robinson recommended the Tribunal approve the site plan, but withhold the Final Order until such time as the aforementioned minor variances come into effect and a site plan agreement is completed and executed.

FINDINGS

16Based on the uncontested land use planning opinion evidence provided by Mr. Robinson, the Tribunal is satisfied that subject to the aforementioned minor variances coming into force and effect and the technical matters (discussed above at paragraph 9) being addressed, the development of the subject lands in accordance with the proposed site plan is representative of good planning; has appropriate regard for matters of Provincial interest; is consistent with the PPS; conforms to the GP, COP and TOP; and is compliant with the ZBL.

INTERIM ORDER

17The Tribunal orders that the appeal is allowed in part, and the site plan respecting the lands located at 1191 Harbourview Drive in the Town of Midland as prepared by Chamberlain Architect Services Limited (Attached hereto as Schedule 1) is approved, subject to the Applicant addressing potential minor revisions, as necessary.

18The Final Order is withheld pending the Tribunal’s receipt of confirmation from the Town’s solicitor that the following conditions have been satisfied:

a) minor variances related to height and loading facilities (consistent with variances previously granted for the project) have been approved; and

b) a site plan agreement has been completed and executed.

19The Town of Midland shall provide confirmation that the foregoing pre-requisites have been satisfied and request the issuance of a Final Order by August 2, 2023 or shall provide a written status report to the Tribunal by that date.

20The Tribunal may be spoken to should any matter arise in relation to the implementation of this Interim Order.

“S. Braun”

S. Braun

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.

Schedule 1

Footnotes

R.S.O. 1990, c. P.13, as amended.
Execution of a site plan agreement is required for the Holding Symbol to be removed.