Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 01, 2023

CASE NO(S).: OLT-23-000468

PROCEEDING COMMENCED UNDER subsubsection 12(2) of O. Reg. 173/16 of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Josephine Buchman

Subject: Community Planning Permit Application – Conditions

Description: To permit the construction of a boat launch and recognize the existing structures on the lot

Reference Number: CPP/07/2023/HTE

Property Address: 190 Rachels Lane

Municipality/Upper Tier: Huntsville/Muskoka

OLT Case No.: OLT-23-000468

OLT Lead Case No.: OLT-23-000468

OLT Case Name: Buchman v. Huntsville (Town)

Heard: September 19, 2023

APPEARANCES:

Parties

Counsel

Josephine Buchman (“Appellant”)

Russell Cheeseman and Stephanie Fleming

Town of Huntsville (“Town”)

Sarah Hahn

MEMORANDUM OF ORAL DECISION DELIVERED BY A. SAUVE ON SEPTEMBER 19, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (“CMC”) of this matter regarding a Zoning By-Law Amendment (“ZBA”) at 190 Rachels Lane (“Subject Land”) in the Town of Huntsville. The Subject Land is waterfront property, and the owner is seeking permission for the construction of a boat launch and the recognition of the already existing structures on the lot.

2The Appellant had originally applied for a Minor Variance from Zoning By-Law 2008-669, but over the course of that application being processed the Town adopted Community Planning Permit By-Law 2022-97. As a result, the Appellant’s application was converted to an application for a Class 2 Community Planning Permit.

3On May 1, 2023, Town of Huntsville Planning Council issued their decision to provisionally approve a portion of the Community Planning Permit – the recognition of existing structures – with conditions of approval. However, their decision denied the portion of the permit seeking approval for the construction of a boat launch.

4At the outset of the CMC, the Appellant raised two issues: first, since they are agreeable to the first part of the decision, could a Hearing be held solely in regard to the boat launch; and second, does the Ontario Land Tribunal (“OLT”) have jurisdiction over Community Planning Permit’s.

5The Tribunal found that the appeal must be for the entire application and cannot be split. The Hearing will be a trial de novo of the application as a whole. However, the Parties may wish to offer joint evidence and joint submissions in regard to the elements of the Planning Council decision that they both agree with. This would also create a more efficient use of Hearing time.

6The Appellant also raised a potential issue regarding the OLT’s jurisdiction over Community Planning Permits. The Tribunal was not asked to make a ruling regarding this issue at the CMC as it seemed that the Parties had yet to fully put their minds to this question; it was raised as a potential issue. This was not discussed at length and may be further raised by way of a Motion or at the Hearing.

7The Tribunal would like to thank the Town for drafting and circulating a draft Procedural Order (“PO”) prior to this CMC.

PARTY AND PARTICIPANT STATUS REQUESTS

8The Tribunal received one Party Status Request in this matter from Fox Lake Association (“Association”) who was represented at the CMC by Alix Yule, who is president of the Association. Ms. Yule is not a lawyer and does not have experience representing matters at the OLT. The Town took no position with this Request. The Appellant raised concerns regarding the Association’s lack of a plan on how they were going to participate in the Hearing. The Association indicated that they may call lay witnesses and may retain counsel.

9The Association was unable to explain to the Tribunal how their involvement as a Party would assist resolving the issues raised in the Appeal and were denied Party status. However, they were granted Participant Status. While the interests of the Town and Association do not completely overlap, many of the issues raised are shared by both of them.

10The Tribunal also received four Participant Status requests. Two requests, by Dave Carey and Todd Macyk, were granted. Both individuals were present at the CMC. The remaining Participant Status Requests, one by Barbara Bai and Wain Choi and the other by Maureen Daniels, were not granted as they were not present at the CMC and their Request forms mirrored the issues raised by the two Participant Status Requests that were granted.

NEXT STEPS

11The Parties agreed that a two-day Hearing would be necessary. Both intend to call one witness each. The Parties also agreed that the date for Participant Statements to be submitted to the OLT would follow the date that expert reports can be submitted, in order for the Participants, should they wish, to address any issues raised and/or not raised by the experts. The PO and Issues List have been reviewed and approved and are attached to this Decision.

12A two-day Video Hearing has been scheduled for January 11 and January 12 of 2024, beginning at 10 a.m. each day.

13Parties and Participants are asked to log in to 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/344779885

Access Code: 344-779-885

14Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling in to an audio-only telephone line: Toll-Free +1 (647) 497-9373 or 1-888-299-1889. The Access Code is 344-779-885.

15Parties 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

16Individuals 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.

17No further notice is required.

ORDER

THE TRIBUNAL ORDERS that:

The dates and particulars of the Hearing are as set out above; and
The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

“A. Sauve”

A. SAUVE

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.

SCHEDULE 1

Procedural Order

CASE NO(S).: OLT-23-000468

PROCEEDING COMMENCED UNDER: subsection 12(2) of O. Reg. 173/16 of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Josephine Buchman

Subject: Community Planning Permit Application

Description: To permit the construction of a boat launch and recognize the existing structures on the lot

Reference Number: CPP/07/2023/HTE

Property Address: 190 Rachels Lane

Municipality/Upper Tier: Huntsville/Muskoka

OLT Case No.: OLT-23-000468

OLT Lead Case No.: OLT-23-000468

OLT Case Name: Buchman v. Huntsville (Town)

The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

The video hearing will begin on Thursday, January 11, 2024 at 10 a.m. The Hearing will run until Friday, January 12, 2024, inclusive.
The parties’ initial estimation for the length of the hearing is 2 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.
The parties and participants identified at the case management conference are set out in Attachment 1.
The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.
The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.
Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before Friday, November 3, 2023 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.
Expert witnesses in the same field shall have a meeting on or before Friday, November 10, 2023 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before Friday, November 17, 2023.
An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.
Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.
On or before Friday, November 24, 2023, the parties shall provide copies of their witness and expert witness statements to the other parties, participants, and to the OLT case co-ordinator and in accordance with paragraph 23 below.
On or before Friday, December 1, 2023, a participant shall provide copies of their written participant statement to the other parties and to the OLT case co-ordinator in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before Friday, December 8, 2023, the parties shall provide copies of their witness and expert witness reply statements, if necessary, to the other parties, participants, and to the OLT case co-ordinator and in accordance with paragraph 23 below.
On or before Monday, December 11, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before Friday, December 29, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 23 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, December 29, 2023,.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal.
A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Thursday, January 4, 2024 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.
All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1

LIST OF PARTIES AND PARTICIPANTS

Parties

Buchman, Josephine

Russell Cheeseman & Stephanie Fleming

Municipal Law Chambers

Royal Building

277 Lakeshore Road East, Suite 211

Oakville, Ontario L6J 6J3

Tel: 416-955-9533

Fax: 416-955-9532

Email: rdcheese@aol.com

sfleming@mlawc.com

Town of Huntsville

Sarah Hahn

Barriston LLP

151 Ferris Lane, Suite 202

Barrie, ON L4M 6C1

Tel : (705) 792-9200

Fax : (705) 792-6911

Email : SHahn@barristonlaw.com

Participants

Fox Lake Association

Tel : (705) 788-0529

Email : alixyule@hotmail.com

David Carey

Email : dgcarey16@gmail.com

Todd Macyk

Tel : (403) 922-6166

Email : macyktodd@gmail.com

ATTACHMENT 2

ISSUES LIST

NOTE: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

Issues of the Town of Huntsville:

Is the development proposal in compliance with the Town of Huntsville’s Community Planning Permit Bylaw (By-law 2022-97, as amended) (the “CPP” By-law)?
Does the development proposal, including requested variations, satisfy criteria for evaluating variations contained within the “CPP By-law”, ss. 1.20.1, particularly:

a. Is the development proposal appropriate for the lands?

b. Does the development proposal take into account the unique characteristics of the property?

c. Does the development proposal identify potential off-site and adverse impacts and mitigate them where appropriate?

d. Is the development proposal compatible with the surrounding land uses and waterfront character?

e. Is the development proposal consistent with any applicable urban design guidelines?

f. Is the development proposed in conformity with Town of Huntsville Official and District of Muskoka Official Plan? and

g. Is the proposal consistent with the Provincial Policy Statement?

Can the applicant demonstrate that the development proposal will meet all applicable criteria contained in ss. 1.20.1 of the CPP By-law and appropriately address adverse impacts as required in the CPP By-law, ss. 1.20.2.
Is the development proposal in conformity with the Town of Huntsville’s Official Plan 2019, s. B1.2, s. B2, B3, C7.2.11 – C7.2.19?
Is the development proposal in conformity with the District of Muskoka Official Plan 2021, s. C1, s C2
Is the development proposal consistent with the Provincial Policy Statement 2020 (PPS), s. 2.1, s. 2.2?
Does the proposed development demonstrate proper regard for the matters of provincial interest in s. 2 of the Planning Act, R.S.O. 1990, c. P.13, particularly a), c), e), n)?
Does the development proposal represent good planning and is it in the public interest?

ATTACHMENT 3

ORDER OF EVIDENCE

Josephine Buchman