OBD Developments Inc. et al. v. Georgian Bay (Township), 2023 CanLII 115117

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 30, 2023

CASE NO(S).: OLT-22-004481

PROCEEDING COMMENCED UNDER subsection 51(43) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: OBD Developments Inc., OBM Marina Inc., OBG Golf Inc.

Subject: Conditions of approval of draft plan of subdivision Description: Revisions to Draft Plan re: approval extensions, secondary access road and phasing/correcting unit counts

Reference Number: S2005-7

Property Address: Oak Bay Golf Marina Community

Municipality/UT: Georgian Bay/Muskoka

OLT Case No: OLT-22-004481

OLT Lead Case No: OLT-22-004481

OLT Case Name: OBD Developments Inc. et al. v. Georgian Bay (Township)

PROCEEDING COMMENCED UNDER subsection 51(43) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Subject: Conditions of approval of draft plan of subdivision Description: Revisions to Draft Plan re: approval extensions, secondary access road and phasing/correcting unit counts

Reference Number: S2005-10

Property Address: Oak Bay Golf Marina Community

Municipality/UT: Georgian Bay/Muskoka

OLT Case No: OLT-22-004482

OLT Lead Case No: OLT-22-004481

Heard: November 2, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
OBD Developments Inc., OBM Marina Inc, and OBG Golf Inc.	L. Longo
Township of Georgian Bay	C. Léger
District Municipality of Muskoka	J. Clow

MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN T. MASTORAS AND N. EISAZADEH ON NOVEMBER 2, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal is a Settlement Hearing (“Settlement”) presented for the consideration of the Tribunal, as the result of an overall resolution achieved by the Parties.

2The Settlement arises out of appeals by OBD Developments Inc., OBM Marina Inc., and OBG Golf Inc. (“Applicants”) pursuant to s. 51(34) of the Planning Act (“Act”) seeking revisions to conditions of its Draft Plans of Subdivision, which was approved by the District Municipality of Muskoka (“District”) relating to two subdivisions in the Oak Bay Golf Marina Community located near Port Severn, in the Township of Georgian Bay (“Township”).

3The property is legally described as Part of Lots 30, 31, 32 and 33 Concession 2, formerly Township of Baxter, now Township of Georgian Bay (“Subject Site”). It comprises a total of 31 hectares (“ha”) of land, two subdivisions on a Draft Plan (“DPS”) originally approved in 2006, and is notable for its golf course feature running through the center between the two subdivisions. Together the two subdivisions consist of 638 residential dwellings in total, with outstanding dwellings yet to be constructed. The two subdivisions are divided into the North side of Golf Course Road which is proposed to facilitate the construction of 173 units and is referred to as the North “Hatch 7” (or “S2005-7”); and the South side of Golf Course Road, which is proposed to facilitate the construction 149 units and is referred to as the South “Hatch 10” (or “S2005-10”).

4The Settlement resolves the appeals in their entirety for both Hatch 7 and Hatch 10 and seeks to: (i) extend the time on the approval of the DPS for each subdivision; (ii) revise conditions related to the nature and function of the proposed secondary access road; and (iii) revise conditions respecting the phasing and unit counts and other clauses in the implementing subdivision agreements dating back to 2006 to make them current.

5For the reasons that follow, the Panel determined that the appeals should be allowed and approval of the revisions granted.

THE SETTLEMENT PROPOSAL

6The Parties jointly seek approval by the Tribunal of the following revised conditions and instruments on a site-specific basis for the Subject Site including:

(a) Consolidated Redlined Draft Plan of Subdivision S2005-7 and S2005-10 (Oak Bay Developments Inc.) attached as Schedule A to this Order;

(b) Conditions to Draft Plan of Subdivision S2005-7 (Oak Bay Developments Inc.) attached as Schedule B to this Order; and,

(c) Conditions to Draft Plan of Subdivision S2005-10 (Oak Bay Developments Inc.) attached as Schedule C to this Order.

THE EVIDENCE AND HEARING

7The materials before the Tribunal included the following:

(a) Evidence Outline from Celeste Phillips, undated, with all Attachments thereto, marked as Exhibit 1;

(b) Minutes of Settlement marked as Exhibit 2;

(c) The new proposed instruments including Consolidated Redlined DPS at Schedule A to this Order, the Conditions to DPS Hatch 7 at Schedule B to this Order, and the Conditions to DPS Hatch 10 at Schedule C to this Order; and,

(d) The Municipal Record available to it as forwarded by the Municipality.

8With the consent of the Parties, Celeste Phillips, the Applicant’s Land Use Planner, was qualified by the Tribunal to provide expert opinion evidence on land use planning matters concerning the Settlement.

9In her Evidence Outline and oral testimony, Ms. Phillips stated that:

(a) Her firm was retained in February 2016 by Court Appointed Receiver, then by the Applicant once their purchase had been finalized, to assist in the development approvals process, and she has had primary carriage of planning matters pertaining to the proposed development since that time.

(b) This matter originally dates back to a DPS approval in 2006, extended in August 2020, and subsequently granted a two-year extension by the District on September 12, 2022. This also coincided with the date of the filing of these appeals, resulting in the present need to change the lapsing date, at this stage, to the agreed upon new proposed date of November 2, 2028.

(c) The principal of development is already established with the Subject Site already designated and zoned for the proposed development. The Settlement allows for the development and completion of fully serviced residential units with a variety of housing types, with both freehold and condominium tenures.

(d) The Settlement is a culmination over several months of like experts’ meetings in various disciplines including environmental, civil engineering, traffic engineering and planning. Through those meetings, an agreement has been reached which proposes to delete a number of conditions that are no longer applicable, with revisions to other existing conditions to the satisfaction of all Parties.

(e) The Settlement has regard to relevant considerations in s. 2 of the Act including s. 2 (a), (c), (d), (h), (j), (p) and (r) and that an extensive degree of environmental and archeological analysis has occurred resulting in no change to the development envelope and the implementing conditions, which constitutes good planning in the greater public interest and accord with the matters of Provincial interest.

(f) The proposed conditions are reasonable having regard to, and being appropriate for, the orderly development of the Subject Site and conform to the criteria outlined in s. 51(24) of the Act.

(g) The proposed conditions are also appropriate and have regard to the nature of the development proposed for the two subdivisions pursuant to the criteria outlined in s. 51(25) of the Act.

(h) The Settlement is consistent with the Provincial Policy Statement (“PPS”), and more particularly, as follows:

i. s. 1.1.3 regarding settlement policies;

ii. s. 1.1.3.1 where settlements are the focus of growth;

iii. s. 1.1.3.2 regarding the efficient use of land and density being a mix of uses including residential, recreational, and commercial (marina);

iv. s. 1.1.3.7 respecting orderly development;

v. s. 1.4 respecting housing policies and particularly, the range and mix of housing where servicing capacity exists set out in s. 1.4.1;

vi. s. 2.1 relating to natural heritage policies and particularly, the protection of natural heritage features for the long term set out in s. 2.1.1; and,

vii. s. 2.1.2 setting out that Features are to be maintained and restored.

(i) There is conformity with the current Consolidated District Official Plan 2023 (“District OP”) , and particularly, as follows:

i. s. D1(a) regarding the efficient use of land and infrastructure;

ii. s. D1(d) setting out a focus on year round residential growth in Urban Centres where full services are available (and where Schedule A to the District OP depicts Port Severn as an “Urban Centre”);

iii. s. D2(a) aiming growth to be focused in settlement areas for year-round population;

iv. s. D15 servicing policies, which target the optimization of existing municipal sewage and municipal water services, with municipal services being the preferred form of servicing for Urban Centres;

v. s. E2 aimed at a range and mix of housing options;

vi. s. F3(b) encouraging development in Urban Centres;

vii. s. J1(a) focusing the majority of year-round growth on Urban Centres;

viii. s. J1(b) and (d) requiring the efficient use of land and infrastructure; and,

ix. s. J1(c) by providing an adequate supply of land and housing choices.

(j) There is conformity with the current Consolidated Township Official Plan 2021 (“Township OP”), and particularly, as follows:

i. s. B with the objective to encourage the majority of permanent growth to be in Port Severn as a designated Urban Centre;

ii. s. C.1.3 achieving the appropriate character of an Urban Centre through its physical setting including landscape characteristics, density, intensity of use and height, architecture and design, open space, natural areas and recreational areas and facilities;

iii. s. C.1.4 setting out that Urban Centre character evolves over time;

iv. s. C.2.3 reinforcing that the majority of permanent population growth is to be directed to Port Severn;

v. s. C.3.1.(b) and (c) which encourages the planning for the direction, location, scale and timing of growth to ensure compact, orderly and sustainable development that minimizes the cost of municipal services and related infrastructure (and where Port Severn is shown on Schedule A-C5.2 of the Township OP as within the Urban Centre boundaries which have such municipal services);

vi. s. D.1.1.2 setting out that the Township is located in part of the World’s largest freshwater archipelago with the Natural Heritage policies applicable, including but not limited to, provincially significant wetlands, coastal wetlands, significant wildlife habitat, areas of natural and scientific interest, and fish habitat. The two proposed subdivisions have already established areas where development is permitted and areas that are to be protected, with no changes to the development areas or envelope that would conflict with these policies;

vii. s. E.2.2.2 dealing with general policies for all settlement areas and Urban Centres, including Port Severn, with a variety of land uses permitted including residential, commercial, and recreational;

viii. s. E.3.2 which encourages full municipal services to be utilized in Urban Centres;

ix. s. E.4 dealing with land use policies, permitted uses and general development setting out that the predominant use of land shall be residential dwellings, which may include a broad range of dwelling structures from single detached to multiple unit development; and,

x. s. E.4.1.1.4 which permits a full range of housing including low density, medium density and affordable housing.

10In her concluding opinion, Ms. Phillips opined that the revised conditions to the DPS for both subdivisions have regard to the matters of provincial interests and planning criteria set out under the Act, are consistent with the PPS, conform to the District OP and Township OP, represent good planning and is in the public interest.

TRIBUNAL CONCLUSIONS AND FINDINGS

11Based on the review of all written materials, the uncontroverted evidence of Ms. Phillips, the submissions of Counsel, and on the consent of all Parties, the Tribunal is satisfied that the proposed Settlement is fair and reasonable and has appropriate regard to matters of provincial interest under s. 2 of the Act; is consistent with the PPS; conforms to the District OP and the Township OP; has the appropriate regard to the criteria set out in s. 51(24) and s. 51(25) of the Act; represents good planning; and is in the public interest.

12The Tribunal is satisfied that it is appropriate to allow the appeals, in part, and revise the DPS for Hatch 7 and Hatch 10, as well as the Conditions to the approved DPS, in accordance with the Settlement.

13The Tribunal is also satisfied with the extension of the lapsing time requested, on consent, for the fulfillment of the conditions to Draft Plan Approval for a further five years to November 2, 2028. The Tribunal directs that the Parties provide the Tribunal with a Status Update through the Case Coordinator on or before November 3, 2026, in this regard.

ORDER

14THE TRIBUNAL ORDERS that the appeals are allowed, in part, and that:

(a) The Draft Plans are redlined and approved as depicted on the October 5, 2023, consolidated plan attached hereto as Schedule A.

(b) The Conditions attached hereto as Schedule B are settled and approved for Draft Plan S2005-7.

(c) The Conditions attached hereto as Schedule C are settled and approved for Draft Plan S2005-10.

(d) Pursuant to subsection 51(56.1) of the Planning Act, the District Municipality of Muskoka shall have the authority to clear the Conditions of Draft Plan Approval and to administer the Final Approval of the Plan of Subdivision for the purposes of subsection 51(58) of the Act.

(e) The Parties shall provide a Status Update to the Tribunal on or before November 3, 2026.

15The Panel Members may be spoken to should any issue arise respecting the implementation of this Order via the Case Coordinator.

“Steven T. Mastoras”

STEVEN T. MASTORAS

MEMBER

“N. Eisazadeh”

N. EISAZADEH

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