Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 17, 2023
CASE NO(S).: OLT-21-001782
PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant: Ed and Pat Wyrwas
Appellant: Ron Duffy
Appellant: Sylvia Burden
Subject: Zoning By-law
Description: To update lot area data in the zoning by-law.
Reference Number: BL 2021-34
Property Address: Part of the annulled portion of Hyman Township
Municipality/UT: Nairn and Hyman
OLT Case No: OLT-21-001782
OLT Case Name: Burden, Duffy, ET AL., v. Nairn and Hyman (Twp.)
PROCEEDING COMMENCED UNDER subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Agnew Lake Property Group
Request for: Request for Dismissal Without a Hearing
Heard: October 28, 2022 by video hearing
APPEARANCES:
Parties
Representative/Counsel*
Ron Duffy
Self-represented
Sylvia Burden
Self-represented
Ed and Pat Wyrwas
Self-represented
Agnew Lake Property Group
Leighton T. Roslyn*
DECISION DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL
INTRODUCTION
1On November 22, 2021, the Township of Nairn and Hyman (“Township”) passed Zoning By-law No. 2021-34 (“proposed Zoning By-law Amendment”) relating to lands located at Parts 1 to 11, Plan 53R-20718, in Part of the Annulled Portion of Hyman Township (“subject properties”). The subject properties are located on Agnew Lake, which is part of the Spanish River. They constitute 52 proposed waterfront lots, a proposed commercial lot, and a campground. Buildings and structures on the subject properties include a mix of seasonal and permanent homes and accessory buildings.
2A draft Plan of Subdivision for the subject properties as well as Zoning By-law Amendment No. 2020-25 (“initial Zoning By-law Amendment”) setting out permitted uses and lot areas were approved by the Township in 2020. In 2021, surveys were completed of proposed lot lines, public road allowances, and rights-of-way based on the draft Plan of Subdivision. As a result of these surveys, amendments to the initial Zoning By-law Amendment were found to be required to accurately reflect lot areas.
3The result was the Township Council’s passage of the proposed Zoning By-law Amendment on November 22, 2021.
4On November 25, 2021, Ron Duffy appealed the proposed Zoning By-law Amendment. His reasons for appeal are that the proposed road layout forces him to access his proposed lot through neighbouring properties. He asserts that the proposed Zoning By-law Amendment is not consistent with the Provincial Policy Statement, 2020 (“PPS”) and he states that it does not conform with a provincial plan.
5On November 26, 2021, Sylvia Burden appealed the proposed Zoning By-law Amendment. Her reasons for appeal are that utility lots have been created blocking access to public roads. She asserts that the proposed Zoning By-law Amendment is not consistent with the PPS and does not conform with a provincial plan.
6On November 29, 2021, Ed and Pat Wyrwas appealed the proposed Zoning By-law Amendment. Their reasons for appeal are that the proposed Zoning By-law Amendment reduces the size of their proposed lot and impacts access to it. They state that the proposed Zoning By-law Amendment is not consistent with the PPS and does not conform with the Township’s Official Plan.
7At a Case Management Conference, held on August 24, 2022, the Agnew Lake Property Group was granted Party status and Patrick Duffy was granted Participant status.
8On October 3, 2022, the Agnew Lake Property Group filed a motion to dismiss the appeals without a hearing.
9The motion was heard by video hearing on October 28, 2022.
ISSUE
10The key issues raised in the motion are:
do the Notices of Appeal disclose any apparent land use planning ground upon which the Tribunal could allow all or any part of the appeals (s. 34(25)(1)(i) of the Planning Act)?
do the Appeal Forms explain how the proposed Zoning By-law Amendment is inconsistent with the PPS and does not conform with a provincial plan or applicable official plan (as required under s. 34(19.0.1) of the Planning Act)?
EVIDENCE AND SUBMISSIONS
Evidence and Submissions of the Agnew Lake Property Group
11In support of the motion, the Agnew Lake Property Group filed an affidavit sworn by Glenn Tunnock, dated September 26, 2022. Mr. Tunnock is a retired land use planner.
12Mr. Tunnock stated in his affidavit that, beginning in the 1970s, the subject properties were leased by INCO Limited (Sudbury) (now Vale Canada Limited (“Vale”)) to various individuals for seasonal use. A number of cottages, permanent dwellings, and accessory buildings were built. He said Vale sold the subject properties to the Agnew Lake Property Group in 2016. He stated that, since that time, the Agnew Lake Property Group has engaged with the Township to obtain subdivision and zoning approvals to facilitate the conveyance of parcels to the individuals who previously leased lands from Vale. Presently, the Agnew Lake Property Group owns the subject properties and each member of the Group contributes to the payment of municipal property taxes based on the assessed value of their respective parcels.
13Mr. Tunnock stated that the Agnew Lake Property Group applied for a draft Plan of Subdivision for the subject properties in 2020 so that each person who previously leased a parcel from Vale may now have the opportunity to gain ownership of it. He said the draft Plan of Subdivision recognizes the existing parcels and subdivides surplus lands into eight non-development utility lots and four open space lots. He said the utility lots will be sold to residents for parking or storage uses. He stated that the draft Plan of Subdivision recognizes the existing access roads to the parcels. He said the road network consists of public roads, private roads and private rights-of-way. He said the execution of a subdivision agreement, which will include requirements for the maintenance of the private road network, is a condition of the draft Plan of Subdivision. He said this agreement will ensure road access to each proposed lot in the subdivision. He stated that discussions to finalize the subdivision agreement are ongoing.
14Mr. Tunnock said the initial Zoning By-law Amendment and the draft Plan of Subdivision were passed by the Township in 2020 and neither instrument was appealed.
15Mr. Tunnock stated that the Township used the draft Plan of Subdivision as the basis for the zoning of the subject properties. He said the initial Zoning By-law Amendment sets out the permitted uses for the proposed lots and the area of each based on the draft Plan of Subdivision.
16Mr. Tunnock stated that subsequent to the approval of the draft Plan of Subdivision and the initial Zoning By-law Amendment, final surveys of lot lines, road allowances, and rights-of-way were conducted to verify conformity with the draft Plan. As a result of the surveys, he said that it became apparent that minor changes and corrections to the initial Zoning By-law Amendment were needed to accurately reflect lot areas. He said the proposed Zoning By-law Amendment makes these changes. He said the amendments are minor in nature with no changes to the number of lots, lot layouts, or the road network. He reiterated that the only changes are minor corrections to lot areas.
17Mr. Tunnock stated that the proposed Zoning By-law Amendment specifically does not change any of the permitted land uses, road access, or lot frontage of the Appellants’ lands. He said the proposed Zoning By-law Amendment would not change Ron Duffy’s parcel in any way and would not alter the road access to it. He stated that the proposed Zoning By-law Amendment would increase the area of Sylvia Burden’s parcel from 1,464 square metres (“m2”) to 1,468 m2 and would not impact her access. He stated that the proposed Zoning By-law Amendment would increase the area of Ed and Pat Wyrwas’ parcel from 2,447 m2 to 2,501 m2 and would not impact their access.
18The Agnew Lake Property Group submits that the Appellants’ general concern relates to road access, which is not the subject matter of the proposed Zoning By-law Amendment. It submits that the proposed Zoning By-law Amendment addresses only minimum lot area requirements and does not deal with road access, permitted uses, or boundaries. It submits that the proposed Zoning By-law Amendment solely amends the initial Zoning By-law Amendment to correct lot areas and does not engage any of the policy statements or other documents referred to in s. 34(19.0.1) of the Planning Act. It submits that the Appellants raise access issues which are not part of the proposed Zoning By-law Amendment. It submits that the proposed Zoning By-law Amendment sets out lot area minimums and does not limit the size of lots as suggested by Ed and Pat Wyrwas.
Evidence and Submissions of the Appellants
19Ron Duffy submits that the proposed subdivision should allow everyone to have access to a public road. He submits that decisions regarding the road network were poorly made and driveways should not be shared. He submits that there was not proper consultation.
20Sylvia Burden submits that she needs a road out to a public road so that emergency vehicles can access her parcel. She submits that s. 4.13.1 of the Township’s Comprehensive Zoning By-law No. 2013-5 states that no person shall erect any building or structure in any zone unless the lot upon which such building or structure is to be erected has such lot frontage on a public street or private road as per the requirements of the respective zone within which the lot is situated. She submits that this has not been complied with. She submits that she wants her own road or driveway and not a shared one and the creation of the utility blocks will block her access to the public road. She submits that the Agnew Lake Property Group has not acted fairly, there is favouritism within the Group, and she has not been given a voice. She submits that she would have appealed the draft Plan of Subdivision, if the deadline for such an appeal had not passed.
21Pat Wyrwas submits that her family built the road to their parcel and that this road should not be included in another person’s new lot. She submits that she had been promised that utility lots would not be allowed by the Township. She also submits that, as a result of the subdivision, her neighbours’ lands will encroach onto her lands and she has lost lake frontage as a result. She presented photographs showing the roads, lots, and frontage. She submits that lot boundaries were changed without proper consultation in favour of other members of the Agnew Lake Property Group.
ANALYSIS AND FINDINGS
22The Tribunal’s authority for dismissing a zoning by-law amendment appeal is found in s. 19(1) of the Ontario Land Tribunal Act, 2021 and s. 34(25) of the Planning Act. Section 19(1) of the Ontario Land Tribunal Act, 2021 states that the Tribunal may dismiss a proceeding without a hearing, if among other things, the Tribunal is of the opinion that the proceeding has no reasonable prospect of success. Section 34(25) of the Planning Act further states that the Tribunal may dismiss an appeal without holding a hearing if, among other things, the Tribunal is of the opinion that:
the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal; or
the appellant intends to argue inconsistency with the PPS or non-conformity with a provincial plan or applicable official plan, but has not provided explanations regarding the inconsistency or non-conformity as required under s. 34(19.0.1) of the Planning Act.
The application of s. 34(25) is disjunctive. The moving party must only demonstrate that one of the listed grounds for dismissal has been satisfied.
23In the present case, the Appellants raise concerns related to the subdivision of the subject properties, but they do not set out grounds specifically relating to the proposed Zoning By-law Amendment. As a result, the proceedings have no reasonable prospect of success. Moreover, Ron Duffy and Sylvia Burden fail to provide an explanation in their Appeal Forms explaining how the proposed Zoning By-law Amendment is inconsistent with the PPS or fails to conform with a provincial plan.
24In his Appeal Form, Ron Duffy states as his reasons for appeal that the proposed road layout forces him to access his property through neighbouring properties. He states that he was not consulted regarding the access issues. He states that if the draft Plan of Subdivision and the proposed Zoning By-law Amendment are approved allowing new utility lots, it would require him to pass through three utility lots to access his lot and he may need to get permission from the owners to do so. The Tribunal finds that these are important issues, but they relate to the draft Plan of Subdivision and not specifically to the proposed Zoning By-law Amendment. The proposed Zoning By-law Amendment makes corrections to the initial Zoning By-law Amendment so that the zoning is consistent with the draft Plan of Subdivision. These corrections are regarding proposed minimum lot areas. It would not constitute good planning if the Tribunal were to amend the proposed Zoning By-law Amendment so that it addresses issues, such as the creation of utility lots and access, that were not before the Township Council when it considered the proposed Zoning By-law Amendment. The reasons for appeal regarding the creation of utility lots and access do not directly arise from the proposed Zoning By-law Amendment. As a result, the Tribunal finds that the reasons set out in Ron Duffy’s Appeal Form do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal and it finds that the proceeding has no reasonable prospect of success. Ron Duffy also asserts that the proposed Zoning By-law Amendment is not consistent with the PPS and does not conform with a provincial plan; but he does not identify the PPS policies or the provincial plans that apply. He fails to explain how the proposed Zoning By-law Amendment is inconsistent and/or does not conform with these instruments. The Tribunal finds that Ron Duffy’s Appeal Form fails to comply with s. 34(19.0.1) of the Planning Act in these regards.
25In her Appeal Form, Sylvia Burden states that the reasons for her appeal are that utility lots have been created blocking access to public roads and that some lots are considered private access and some lots have public access. Again, the Tribunal finds that these access issues do not arise from the proposed Zoning By-law Amendment and do not constitute proper land use planning grounds. The Tribunal notes that the Township’s Comprehensive Zoning By-law No. 2013-5 restricts development on lots without frontage on a public street or private road; however, the proposed Zoning By-law Amendment does not focus on development on existing lots and, in any event, it has the effect of amending the Township’s Comprehensive Zoning By-law No. 2013-5 in relation to the subject properties. Based on this, the Tribunal finds that the reasons set out in Sylvia Burden’s Appeal Form do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal and it finds that the proceeding has no reasonable prospect of success. Sylvia Burden also asserts that the proposed Zoning By-law Amendment is not consistent with the PPS and does not conform with a provincial plan, but she too does not identify the PPS policies or any provincial plans that apply. She also does not explain how the proposed Zoning By-law Amendment is inconsistent and does not conform. The Tribunal finds that her Appeal Form fails to comply with s. 34(19.0.1) of the Planning Act in these regards.
26In their reasons for appeal attached to their Appeal Form, Ed and Pat Wyrwas state that the proposed Zoning By-law Amendment reduces the size of their proposed lot to below its historic dimensions and it impacts their access. The Tribunal notes that the proposed Zoning By-law Amendment marginally increases the area of their parcel. It sets out the minimum lot area. The type of boundary changes envisioned by Ed and Pat Wyrwas exceed the scope of the proposed Zoning By-law Amendment, which is intended to make corrections to the zoning so that it is consistent with the draft Plan of Subdivision. Their issues relate to the draft Plan itself. Again, the Tribunal finds that access issues do not arise from the proposed Zoning By-law Amendment. As a result, the Tribunal finds that the reasons set out in their Appeal Form do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal and it finds that the proceeding has no reasonable prospect of success.
CONCLUSIONS
27The Tribunal finds that the reasons set out in the Appellants’ Appeal Forms do not disclose any apparent land use planning grounds upon which the Tribunal could allow all or part of the appeals and it finds that the proceedings have no reasonable prospect of success. The Tribunal also finds that Ron Duffy and Sylvia Burden have each failed to explain how the proposed Zoning By-law Amendment is inconsistent or does not conform with a provincial plan. The Tribunal finds that these Appellants’ Appeal Forms fail to comply with s. 34(19.0.1) of the Planning Act.
ORDER
28The Tribunal grants the Agnew Lake Property Group’s motion and orders that the Appellants’ appeals are dismissed.
“Hugh S. Wilkins”
HUGH S. WILKINS
VICE-CHAIR
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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.