Champagne v. Tay Valley (Township), 2023 CanLII 115107

Tribunal ontarien de l’aménagement du territoire

November 27, 2023

OLT-23-000377

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellants:

Paula Champagne, Gordon Hill, Little Silver and Rainbow Lakes Property Owners’ Association

Subject:

Zoning By-Law 2023-17

Description:

Amendment to Comprehensive Zoning By-Law No. 02-121 Section 3.4 Wording Clarification of “Improved Street”

Reference Number:

Zoning By-Law 2023-17

Municipality/Upper Tier:

Tay Valley/Lanark

OLT Case No.:

OLT-23-000377

OLT Lead Case No.:

OLT-23-000377

OLT Case Name:

Champagne v. Tay Valley (Township)

Heard:

November 16, 2023 by Video Hearing

Parties

Counsel/Representative*

Little Silver and Rainbow Lakes Property Owners’ Association

Frank Johnson*

Paula Champagne

Self-represented

Gordon Hill

Self-represented

Tay Valley Township

Spencer Putnam

Tony Flemming (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY JEAN-PIERRE BLAIS ON NOVEMBER 16, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Little Silver and Rainbow Lakes Property Owners’ Association (“Association”), Paula Champagne, and Gordon Hill (together the “Appellants”) have filed appeals pursuant to s. 34 (19) of the Planning Act, R.S.O. c. P.13, as amended (“Act”), against the decision of the Tay Valley Township (“Township”) to amend its Comprehensive Zoning By-law No. 02-121 (“ZBL”), through the adoption of Amending By-law No. 2023-17 (“ZBA”), regarding the wording in Section 3.4 to clarify the definition of an “improved street” and the conditions under which a building permit may be issued.

2On November 16, 2023, the Tribunal held its second Case Management Conference (“CMC”) to organize the appeals and establish next steps in this proceeding.

3At the first CMC, the Tribunal Panel (differently constituted) left unresolved matters relating to the Notice of Hearing for the CMC and to the Issues List.

NOTICE

4At the first CMC, the Tribunal directed, on consent of the Parties and in accordance with Rule 6.2 of the Tribunal’s Rules of Practice and Procedure, that further Notice was appropriate prior to the present CMC. Notice was to be given to the public using the Township’s standard digital platforms and directly to the individuals named on the Notice of Passing of By-law - List of Recipients document. A signed Affidavit of Service was to be provided to the Tribunal. Moreover, the Tribunal directed that any additional Party or Participant Status requests would be considered by the Tribunal at the second CMC.

5At this CMC, there were no further issues raised with service of Notice of the CMC and, as such, no further notice is required. The Tribunal was in receipt of the Affidavit of Service of the Notice of the CMC sworn on September 26, 2023, which was marked as Exhibit 1 to this CMC.

STATUS REQUEST

6The Tribunal received no additional requests for Party Status.

7The Tribunal received 68 Participant Status requests, as listed in Attachment 1, in addition to the 14 Participant Status requests granted on consent at the first CMC. No objections were raised with respect to these additional Participants.

NEXT STEPS

8A draft Procedural Order was not provided to the Tribunal prior to the first CMC because the Parties were unable to agree as to its content, especially with respect to the Issues List. The Tribunal thus scheduled this second CMC and directed that, if the matter remained contested, Parties were to file written submission with respect to the Issues List by November 2, 2023.

9Gordon Hill submitted a list of 26 issues, containing many subparagraphs and a “Definitions” section. The Association and Paula Champagne submitted a list with seven issues. Mr. Putnam, Counsel for the Township, objected to most of the issues and proposed a list of five issues which he submitted are relevant and within the jurisdiction of the Tribunal in these appeals under the Act.

10Having considered the written and oral submissions of the Parties, including case law and statutory provisions cited, the Tribunal finds in favour of the Township. The Tribunal agrees that many issues proposed by the Appellants are not within the jurisdiction of the Tribunal and are not relevant to these Appeals. First, some of the issues raised are exclusively within the jurisdiction of the Superior Court as they relate to the alleged irregularities in the passage of the ZBA (section 273, Municipal Act, 2001 S.O., c. 25). Second, other issues relate to contractual liability or tortious liability, which are also not within the jurisdiction of the Tribunal. Third, while the Tribunal has jurisdiction to hear and determine all questions of law with respect to all matters within its jurisdiction (section 8(2), Ontario Land Tribunal Act, 2021, S.O., c. 4), these questions would have to relate to the ZBA, which is the subject of these Appeals, and not on a stand-alone basis. The terms of any future road access agreements are not dictated through the ZBA.

11To ensure a resolution of the proceedings which is fair, just and expeditious, the Appeals must focus on matters that are within the jurisdiction of the Tribunal and which are relevant to the Appeals (section 12(2), Ontario Land Tribunal Act, 2021, S.O., c. 4). Consequently, the five issues identified by the Township in its written submissions dated November 2, 2023, are directed to be the Issues to be considered by the Tribunal on the Merits of these Appeals.

12Given this finding, and having heard from the Parties, the Tribunal further finds reasonable that a hearing on the above issues could be appropriately considered during a two-day Merit Hearing. The Association and the Township indicated that they each intend to present an expert witness. The other Appellants have indicated that they do not intend to advance expert evidence. All Appellants reserved the right to cross-examine the Township’s witness or witnesses and to make submissions. The Tribunal therefore directed that a two-day Merit Hearing be scheduled to proceed by Video Hearing commencing on Wednesday, March 27, 2024, at 10 a.m.

13Parties 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.

GoTo Meeting: https://global.gotomeeting.com/join/709076365

Access code: 709-076-365

14Parties 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.

15Persons 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: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The Access Code is 709-076-365.

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.

ORDER

17THE TRIBUNAL ORDERS:

a. Its directions in this Decision;

b. That the individuals listed in Attachment 1 to this Order are granted Participant Status in this proceeding;

c. That the Issues List in Attachment 2 to this Order be the Issues List in this proceeding; and,

d. That Counsel for the Township of Tay Valley submit a draft Procedural Order, including the attached Issues List, to the Tribunal on or before Monday, November 27, 2023.

“Jean-Pierre Blais”

JEAN-PIERRE BLAIS

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.

ATTACHMENT 1

ADDITIONAL PARTICIPANTS

Alex Bushell

Allan Valk

Anna Janasik

4 & 5

Aveluy & Brian Ramsay

Allanaha Boode

Charles Boode

Brennan Lafleur

Bruce Henry

Bruce Hollebone

Catharine Anderson

Claire Rothery

David Tilston

Deborah Gemmill

Diane Salick

16 & 17

Ed & Diane Filby

Eldon Coombe

19 & 20

Frank & Sue Sammut

Gary Simonsen

Gillian Kotantoulas

Gregory Crain

24 & 25

Heather & David Fowler

Helen McCarthy

Henry Bruce

Johanna Tilston

John Lang

John Saull

Kathleen Dorner

Ken Hollebone

Ken Murray

Ken Toomey

Kerry Crain

Linda Marin

Linda Matheson

38 & 39

Maciej & Yoshiko Gumienny

Mary Victoria Townend

Michael Bradley Macdonald

Michael Leering

Michael Moriarty

Michele Noel

Murray Arkinstall

46 & 47

Pat & Ed Mills

Raymond Lam

Richard Greenstreet

50 & 51

Robert & Margaret Irwin

Shawn McAllister

Stacy Van Humbeck

Stephen Landsberg

Susan Avery

Heather Avery

Terrance Body

Thomas Ellis

Gordon Welby

Sharron Welby

William Deering

Allan Cuddihey

Carol Morgan

Ray Hewitt

Brent Cheff

Roxanne Darling

Tom Vilmansen

Glenn McCue

ATTACHMENT 2

ISSUES LIST

Is Zoning By-Law 2023-17 (“Amendment”) consistent with the 2020 Provincial Policy Statement, and particularly policies 1.0, 1.1.4.1, 1.1.5.5, 1.3.1, and 1.4.1?
Does the Amendment conform to the County of Lanark Sustainable Communities Official Plan, and particularly policy 4.2.1?
Does the Amendment conform to the Township of Tay Valley Official Plan, and particularly policies 2.8.2, 2.10, 2.17, and 4.4?
Does the Amendment constitute good planning and is it in the public interest?
Is it good planning to require a road access agreement for owners within a plan of subdivision where the individual agreements may vary between owners?