Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
February 28, 2023
CASE NO(S).:
OLT-22-002057
(Formerly PL210198)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c.P.13, as amended
Applicant and Appellant:
Richard Gates
Subject:
Request to amend the Official Plan – Failure of Township of The Archipelago to adopt the requested amendment
Purpose:
To create 4 new, non-waterfront affordable housing lots fronting a privately maintained road within the Woods Bay Neighbourhood.
Property Address/Description:
11 Woods Bay Lane
Municipality:
Township of Archipelago
Approval Authority File No.:
OP01-02
OLT Case No.:
OLT-22-002057
Legacy Case No.:
PL210198
OLT Lead Case No.:
OLT-22-002057
Legacy Lead Case No.:
PL210198
OLT Case Name:
Gates v. The Archipelago (Township)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c.P.13, as amended
Applicant and Appellant:
Richard Gates
Subject:
Application to amend Zoning By-law No. A2000-07- Refusal or neglect of Township of The Archipelago to make a decision
Existing Zone:
General Residential (GR) and Environmentally Sensitive (ES)
Proposed Zoning:
Site Specific (To be determined)
Purpose:
To permit to create 4 new, non-waterfront affordable housing lots fronting a privately maintained road within the Woods Bay Neighbourhood.
Property Address/Description:
11 Woods Bay Lane
Municipality:
Township of The Archipelago
Municipality File No.:
Z02-20
PROCEEDING COMMENCED UNDER subsection 53(14) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant:
Richard Gates
Subject:
Application for Consent – Failure of Township of The Archipelago to make a decision
Property Address/Description:
11 Woods Bay Lane
Municipality:
Township of The Archipelago
Municipal File No.:
B16-20
OLT Case No.:
OLT-22-002077
Legacy Case No.:
PL210200
OLT Lead Case No.:
OLT-22-002057
Legacy Lead Case No.:
PL210198
PROCEEDING COMMENCED UNDER subsection 53(14) of the Planning Act, R.S.O. 1990, c.P. 13, as amended
Applicant and Appellant:
Richard Gates
Subject:
Application for Consent – Failure of Township of The Archipelago to make a decision
Property Address/Description:
11 Woods Bay Lane
Municipality:
Township of The Archipelago
Municipal File No.:
B17-20
OLT Case No.:
OLT-22-002086
Legacy Case No.:
PL210209
OLT Lead Case No.:
OLT-22-002057
Legacy Lead Case No.:
PL210198
PROCEEDING COMMENCED UNDER subsection 53(14) of the Planning Act, R.S.O. 1990, c.P. 13, as amended
Applicant and Appellant:
Richard Gates
Subject:
Application for Consent – Failure of Township of The Archipelago to make a decision
Property Address/Description:
11 Woods Bay Lane
Municipality:
Township of The Archipelago
Municipal File No.:
B18-20
OLT Case No.:
OLT-22-002087
Legacy Case No.:
PL210210
OLT Lead Case No.:
OLT-22-002057
Legacy Lead Case No.:
PL210198
PROCEEDING COMMENCED UNDER subsection 53(14) of the Planning Act, R.S.O. 1990, c.P. 13, as amended
Applicant and Appellant:
Richard Gates
Subject:
Application for Consent – Failure of Township of The Archipelago to make a decision
Property Address/Description:
11 Woods Bay Lane
Municipality:
Township of The Archipelago
Municipal File No.:
B19-20
OLT Case No.:
OLT-22-002089
Legacy Case No.:
PL210211
OLT Lead Case No.:
OLT-22-002057
Legacy Lead Case No.:
PL210198
Heard:
February 15 – 17, 2022 by video hearing
and March 28, 2022 in writing
APPEARANCES:
Parties
Counsel
Richard Gates
Marc Kemerer
Township of the Archipelago
Christopher Tzekas
DECISION DELIVERED BY M.A. SILLS AND P. TOMILIN AND INTERIM ORDER OF THE TRIBUNAL
1This was the hearing on the merits of the appeals by Richard Gates (“Owner” / “Applicant”) from the failure or refusal of the Township of the Archipelago (“Township”) to adopt a site-specific amendment to the Official Plan (“OPA 68”); to amend Zoning By-law No. A2000-07 (“ZBA”); and from the failure of The Archipelago Area Planning Board to make a decision on Consent Applications B16-20, B-17-20, B18-20 and B19-20 (“Consent Applications”) pertaining to the property identified as Lot 40, Concession 3, in the geographic Township of Conger, and municipally known as 11 Woods Bay Lane (“Gates property”), in the Township.
2The Gates property is situated at the end of Healey Lake Road in the Woods Bay Neighbourhood (“WBN”) and comprises an area of approximately 40 hectares (“ha”) with 960 metres (“m”) of frontage on Woods Bay Lane. The WBN is south of the Town of Parry Sound (“Town”) and is accessed from Provincial Highway 400 via Healey Lake Road. Woods Bay Lane is generally situated on an unopened municipal road allowance and is privately maintained by the Woods Bay Road Association (“WBRA”). The WBRA is an unincorporated entity that is self-funded by users of the road on a voluntary basis.
3The Gates property is one of the original tracks of land granted to Metis families in exchange for service in the Canadian military during World War II, and is currently developed with a single detached dwelling occupied by the Applicant on a year-round basis, and accessory outbuildings.
Context to the Applications
4The Owner is proposing to sever four (4) building lots from the property and sell them to members of the Metis Nation community for housing purposes. The severed parcels are rectangular in shape and range in size from 2 ha (Lots 2 and 3), 4 ha (Lot 4) and 8 ha (Lot 1). The retained parcel has an area of approximately 23 ha. Each of the proposed severed lots as well as the retained lot will have frontage on Woods Bay Lane. The severed parcels will be sold as vacant lots and the future homes will be constructed by the respective owner(s). The current application has been modified from the original proposal which sought to create 10 new lots.
5The Consent Applications are subject to the policy provision set out in s. 14.4 of the Land Division Policies of the Official Plan (“OP”), which states:
All development in the Archipelago is to have frontage on a recreational waterbody. Consents that result in the creation of new lots or building permits will not be issued unless the lands front directly on a recreational waterbody or adjacent to an original shore road allowance. This policy does not apply to Pointe au Baril Station. Notwithstanding this policy, existing lots of record in Skerryvore and along Healey Lake Road including resources uses may be eligible for building permits subject to all other applicable policies of the Plan. [emphasis added]
6In this case, the Gates property does not have frontage directly onto a recreational waterbody and is not adjacent to an original shore road allowance.
7The purpose and effect of OPA 68 is to establish a site-specific provision in ‘Section 16 - Special Provisions’ of the OP to allow for the creation of four (4) new, non-waterfront lots fronting onto a privately maintained road. The purpose and effect of the ZBA is to rezone part of the Gates property from General Residential (GR) Zone to General Residential Exception 1 (GR1) Zone to recognize the Consent Applications and the areas to be restricted from development.
8The provincial and municipal planning policy documents relevant to these applications are the Planning Act (“Act”), the Provincial Policy Statement, 2020 (“PPS”), the Growth Plan for Northern Ontario, 2011 (“GPNO”) and the Township OP.
9The Consent Applications attracted significant interest from permanent and seasonal residents/property owners, both in support and in opposition. Several individuals were granted Participant status at Case Management Conferences held on September 14, 2021 and October 24, 2021. The complete list of approved Participants is recorded in the Procedural Order issued on February 1, 2022.
Background to the Township
10The Township was created from four (4) previously unorganized geographic municipalities located along the eastern shore of Georgian Bay. The newly created municipality was incorporated on April 1, 1980, by Ministerial Order, pursuant to the Parry Sound Local Government Act. Prior to incorporation, there was no municipal government in the area. The Township’s first Official Plan was adopted in 1983, and subsequently updated in December 2018. A five-year review of the OP is due to be carried out in 2023.
11The Township is a single-tier municipality with a unique geographic setting in that it is split into a north and a south precinct separated by other municipal jurisdictions. For greater context, the separation distance between the most southerly point of the south precinct and the most northerly point of the north precinct is approximately 100 kilometres (“km”).
12The Archipelago is a shoreline municipality encompassing several thousand islands in Georgian Bay and a number of inland freshwater lakes, all of which are used for recreational purposes. Most of the Township’s privately owned lands are developed with cottages or year-round residences that have customarily been accessed by water. The majority of the Township’s land base is Crown lands and cannot be developed.
13The essence of the Township is derived from its natural environment, typically described as remote and sparsely populated. The Township is part of the Georgian Bay Biosphere as designated by the United Nations Educational, Scientific and Cultural Organization (“UNESCO”). The Massasauga Provincial Park, 13,000 ha in area with more than 21 km of shoreline on Georgian Bay, embodies a large part of the southern portion of the Township. The economy of the Township results primarily from the natural resources of the area and its recreational base. The stated purpose of the OP:
is to establish land use policies which will guide development for the whole of The Archipelago Township and provide for the long term use of land and water for public and private recreation in accordance with the goals and objectives set out for the Municipality. The OP has been developed to be consistent with the Provincial Policy Statement, 2014, and conforms to the Growth Plan for Northern Ontario [emphasis added].
14The general goal of the OP:
is to preserve the unique and high quality of the natural environment which leads to a recreational experience that is both relaxing and aesthetically appealing to property owners and visitors who use the area, and is designed to make both property owners and visitors realize that they share equally in the responsibility of maintaining the ecological integrity within a UNESCO Biosphere Reserve.
Applicant/Appellant Evidence
15The Applicant/Appellant called two witnesses: Chris Goulding (lay witness) and John Jackson (professional planner).
16Mr. Goulding is a member of the Metis Nation community and has been a year-round resident of Moon Island at Sans Souci since 1978. He owns and has operated Moon Island Construction Ltd. for more than 42 years. He told the Tribunal that in about 1990 he undertook to educate himself on the Township OP and comprehensive zoning by-law. That led to his active engagement in Township planning matters and his advocacy for the recognition of the of the Metis Nation community, in particular, the securing of attainable, affordable housing for members the Metis Nation community – which he described in his own words as; “a four (4) year quest to achieve affordable homes for our community and over twenty years (20) since we began our attempts to get the township to recognize our [Metis Nation] community”.
17Mr. Goulding’s witness statement includes an extensive chronology of events (‘Timeline of Events’) with respect to the reviews of the Township OP (2006, 2011 and 2018) and the comprehensive zoning by-law. Suffice it to say, there is not a consensus among residents and Township council about the preferred future direction of development in the Township.
18In response to claims made by some property owners that the Metis Nation people were not original inhabitants of Moon River, Mr. Goulding provided documentation confirming that a Metis family was issued a Land Grant for the Gates property as well as a second land parcel directly to the south in 1908 (LP2996 – map provided). The early existence of the Metis Nation community in Moon River is documented in the Participant Statements provided by Senator Vic Brunelle and Louise Goulding.
19Mr. Goulding emphasized that members of the Metis Nation community and non-Metis alike are working class people who are not looking for subsidized housing from the Township or any other level of government. However, the Moon River community is in dire need of affordable housing to accommodate service providers and skilled workers/trades people. In that regard, the Tribunal was referred to the Woods Bay Neighbourhood Study (“WBNS”) Findings Report released in 2009, which specially identifies the shortage of available affordable housing in the community of Moon River.
20In response to concerns that have been raised about the increased ‘wear and tear’ on Woods Bay Lane that would result from the addition of four (4) new lots, Mr. Goulding pointed out that there are currently approximately forty (40) waterfront properties being accessed via Woods Bay Lane, some of these on a year-round basis. The first three (3) km of the road is paved. The next km of road is part of an original municipal road allowance. This section of road is not private property, nor is it for the exclusive use of Woods Bay Lane residents. The WBRA was created to assist with the maintenance of the road, and according to Mr. Goulding, the future owners of the proposed new lots would contribute.
21Mr. Goulding also pointed out that the ground is frozen for about three (3) months of the year and every spring half-load restrictions are imposed on Healey Lake Road. As a result, there is limited wear and tear on Woods Bay Lane by commercial trucks from about November to June of the year. Woods Bay Lane also has three spokes, but as each of these traverse private property they are not open to the public. From his perspective, the road has held up well as a result of the regular maintenance schedule currently in place and the new lots do not pose any threat to Woods Bay Lane.
Planning Evidence
22John Jackson is a professional land use planner and holds a degree in urban and rural planning from Ryerson University (1978). He is a Member of the Canadian Institute of Planners (“CIP”) and has more than 45 years of working experience as a land use planner. He was formerly retained as the consultant planner for the Township from 1980 to 2005, and has appeared before the Tribunal and been qualified as an expert land use planning witnesses on numerous occasions. Mr. Jackson confirmed that he has been retained by local Metis families, four of whom are hopeful of securing one of the new lots for residential purposes.
23Mr. Jackson explained that the newly established Township amalgamated nineteen (19) neighbourhoods with similar characteristics loosely based along Georgian Bay, the exception being Pointe au Baril Station (“Station”) in the northern portion of The Archipelago. In contrast to all of the other neighbourhoods, the Station is a predominantly year-round village with urban-like features, including a concentration of marinas, retail services, restaurants, banking and many other essential services. The Station is a designated Settlement Area and is the principal access community to island neighbourhoods in the north part of the Township. There is no other hamlet similar in contrast to the Station in the south part of The Archipelago. Most island communities in the southern portion of the Township gain access from either Parry Sound or the Township of Georgian Bay at Twelve Mile Bay.
24Initially, Woods Bay was typical of any cottage neighbourhood without any special status. There was no regional centre in place, marinas were non-existent, services were island focused, and the access road (Healey Bay Road) was in extremely poor condition, to the point that school buses would not travel down it.
25Eventually, the southern part of the Township started to mature and evolve, particularly in the case of the Woods Bay community. In Mr. Jackson’s view, one of the most significant contributing factors leading to the character transformation and subsequent elevation of the Woods Bay community to a regional service centre, and the consequent shift of focus from island to land-based services, many of which are now available at the terminus of Healey Lake Road, was the changing nature of cottaging on Georgian Bay.
26Mr. Jackson asserts the greatest change occurring in the region is that the remote experience with primitive services is no longer the norm. Islanders in the south part of the Township are now building and renovating to better accommodate a more urban living environment, which in turn allows for more frequent and longer stays at their Archipelago properties. This has led to islanders now demanding more modern amenities, such as new and improved communication technologies that will allow for extended stays, and upgraded marine facilities and services to better accommodate larger and more reliable watercraft. He said that ageing cottagers with more disposable incomes have become more dependent on private maintenance services and servicing, and in turn, there has been a compounding demand for more businesses and marine services and facilities.
27Mr. Jackson said it was through this transformation that it was realized it is more practical to provide services from the mainland in contrast to those having water access. In fact, the Township invested millions of dollars to substantially upgrade Healey Lake Road from Provincial Highway 400 to Woods Bay Lane. For the first time, islanders in the south part of the Township have good, reliable interface between Highway 400 and their island properties in The Archipelago.
28Hundreds of new boat slips were promoted to service an island community that had previously relied on the open waters from Parry Sound to Twelve Mile Bay to the south. A new full-service regional marina offering repairs, storage, docking and boat taxi service, and new servicing infrastructure including a waste transfer station and a public dock and boat ramp have been developed. A grocery store with an attached L.C.B.O. outlet has been developed. The Province established a provincial park (Massasauga Provincial Park) with Woods Bay as its principal access point.
29According to Mr. Jackson, all of this has contributed to an increased demand for construction, renovations, and development in general. This demand has led to a greater need for skilled workers including the specialized skills common to the Metis Nation people, but there are no viable local housing opportunities available to accommodate these workers. He also pointed out that the new marina facilities, mainland services, and expanded demands in the island community has generated an expanded economy in this part of the Township.
30Mr. Jackson confirmed that most of the tracts of land throughout The Archipelago that are not private cottage lands are Crown land (90%). A distinct exception to this pattern is a large block of lands encompassing approximately 1000 acres at the mouth of Moon River. Some of these lands were granted to a number of Metis families in exchange for their service in the Canadian military during World War II.
31The Planning Act stipulates that the policies of an official plan are to be consistent with provincial planning policies and must conform with the GPNO. It is Mr. Jackson’s contention that as the ‘Purpose’ of the current OP (2018) evolved from the charter OP (1983), it has not been prepared within the context of a provincially-led policy regime, such that there are intrinsically serious conflicts with respect to the provincial interests and policy directives.
32Section 2 of the Planning Act provides a list of provincial interests that a municipal council shall have regard to when carrying out its responsibilities under the Act. In particular, the Province has an interest in housing; (j) the adequate provision of a full range of housing, including affordable housing. Mr. Jackson maintains that Township Council has disregarded this provincial interest.
33In regard to s. 2 (a) the protection of ecological systems; The Applicant retained qualified environmental consultants to assess the suitability of the development being proposed from a natural heritage perspective. A Site Evaluation Report (“SER”) conducted by FRICORP Environmental Services concluded that “where the recommended mitigation measure is applied as directed, the proposed Consents will be consistent with s. 2.1 of the Provincial Policy Statement and the Township of The Archipelago Official Plan”.
34Other provincial interests set out in s. 2.1 of the Planning Act that are applicable to the Consent Applications are: f) adequate provision and effective use of …, communication, transportation, sewage and water services and waste management; h) orderly development of safe and healthy communities; k) the adequate provision of employment opportunities; l) protection of the financial and economic well-being of the Province and municipalities; and p) the appropriate location of growth and development.
35Rural homes/single-detached year-round residences are a permitted use of the Gates property. It has been well established that there is a demand and a need for this type of lot creation in the community, but properties with water frontage are extremely costly. The Consent Applications will serve to facilitate the creation of new homes on rural lands. The proposed lots are large in size such that private water and sewer servicing can be accommodated. Hydro servicing is provided along Woods Bay Lane by Hydro One, and the municipal waste transfer station is located adjacent to the Gates property. Woods Bay Lane will provide year-round vehicular access to the proposed lots.
36The development being proposed is very low density, meets typical rural development criteria, and will offer sustainable development for the community. The Gates property is heavily forested so the new dwellings will be well hidden/screened from the waterfront properties so that maximum privacy is provided. The goal of preserving the natural environment is not threatened by the Consent Applications. There are no adverse environmental impacts or threats to the public health and safety.
37Mr. Jackson said the genesis of the issues surrounding the applications are directly related to housing that is desperately needed in the community and directly aligns with provincial interests. The Moon River community has emerged at the Woods Bay centred location where a service centre has evolved. The proposed lots will be self-sustaining properties that will have no impact on public sector costs at any level and will provide opportunities to house near-by residents needed to serve the south part of the Township. In his opinion, the allowance for a limited number of lots on the Gates Property to accommodate homes for essential workers on a low density basis will have no perceptible impact on the water-based nature of the Township.
38The Gates property is subject to the GPNO. The GPNO has been prepared under the Places to Grow Act, 2005. Mr. Jackson said the north part of the Province has suffered from a lack of growth over the past decade. The intent of the GPNO is to reverse this trend, by recognizing the need to respect healthy environments, support robust economies and build strong communities. Mr. Jackson stated that “the GPNO is not a non-development plan; it is anything but a plan to preserve the status quo”.
39Mr. Jackson also pointed out that a consistent theme throughout the GPNO is the need to collaborate and support the needs of the indigenous communities. As a matter of Provincial direction, municipal official plans and zoning by-laws must recognize the ambitions and aspirations of these communities. Municipal official plan policies are required to be consistent with provincial policies, and both the PPS and the OP are to conform with the GPNO. Pursuant to s. 14.2 of the Places to Grow Act, wherever there is a conflict with the GPNO and an OP, a zoning by-law or the PPS, the GPNO shall prevail.
40The Gates Property is considered to be Rural Lands by the PPS and the Consent Applications are entirely consistent with development on rural lands. The PPS recognizes the need to provide for new development on rural lands and establishes policies to achieve efficient and resilient communities. This need was recognized in the Woods Bay Study (“WBS”) sponsored by the Township and conducted by Meridian Planning Consultants Inc. During the review of the Township OP (2018), the Province imposed a requirement that the findings of the WBS be implemented before the next 5-year OP review (2023).
41It has been well established that there is both a need and a demand for this type of lot creation in the Woods Bay community. The Consent Applications will facilitate the provision of housing for trades people who will in-turn serve the needs of the seasonal and permanent residents.
42The PPS also contains policies related to economic prosperity. Section 1.7.1 sets out that Long-Term Economic Prosperity should be encouraged by: a) promoting opportunities for economic development and community investment readiness, and b) encouraging residential uses to respond to dynamic market-based needs and provide necessary housing supply and a range of housing options for a diverse workforce. Mr. Jackson said the demand for new and expanded services, including new marina facilities, mainland services and the increased demands in the island community has in itself generated the economy that is at the core of the need for residential lot development.
43Section 1.2.2 of the PPS states that “Planning authorities shall engage with Indigenous communities and coordinate on land use planning matters”. Section 14.63 of the OP sets out that “The Township will work to ensure consultation is undertaken with interested Aboriginal communities as appropriate and required for applications, and any decision made under the Planning Act”. Mr. Jackson said the Township has been refusing to cooperate or even consult with the Metis Nation community as mandated by the Province through the PPS.
44Mr. Jackson said although it is his opinion, based on the language changes to the OP imposed by the Province, that an OPA is not required, the application was submitted in the interest of expediating the process. It is Mr. Jackson’s opinion, that when the modification inserted by the Minister during the 2018 OP Review (policy 6.3) is read together with policy 10.34 of the Land Division Polices of the OP, an OPA is not required.
45The Primary Objective and Goal of the OP is a fundamental vision to preserve the unique and high quality appeal of the natural environment of The Archipelago, which in his view is not being compromised by the Consent Applications. In fact, the purpose of the Consent Applications is complementary to this goal in that it will offer housing opportunities for trades people who will serve the needs of the ratepayers, thereby, allowing for their continued use and enhanced enjoyment of the Georgian Bay environment.
46Mr. Jackson said there are no viable options for attainable housing in a situation where waterfront properties are extremely costly. The WBS Findings Report confirmed that the value of waterfront property in The Archipelago has increased drastically in the past decade. According to local residents attending the WBS workshop the value of land in the Township has quadrupled in the last 10 years. Local contractors attending the workshop said it is difficult to find employees and skilled trades people due to the lack of affordable lodging in the area.
47In his opinion, the allowance for the limited number of lots being proposed to accommodate homes for essential workers on a low-density scale will have no perceptible adverse impact on the water-based recreational nature of the Township. The Gates property is relatively free from constraints to development as it has little topographic relief and is heavily forested with good drainage flows that slope from east to west towards Georgian Bay. There are no identified adverse environmental impacts or threats to public health and safety.
48The proposed future homes will be serviced by private wells and septic systems and the planned development will not place any new demands on municipal servicing levels. As the proposed lots will have direct access to Woods Bay Lane, no new road access or extensions are required, nor are there any being proposed. The addition of the proposed lots will have no perceptible impact on Woods Bay Lane. Hydro One servicing infrastructure is in place along Woods Bay Lane and there is an existing waste transfer station adjacent to the Gates property. In Mr. Jackson’s view, the Consent Applications for the Gates property are entirely consistent with development on rural lands.
49The OP requires that new development be appropriate for the area in which it is to be located in terms of density and/or prematurity. Mr. Jackson maintains that density is not an issue in this case. By comparison, the proposed lots are ten times the size of the waterfront properties on Woods Bay Lane. In terms of prematurity, no new infrastructure or servicing is required. In his opinion, the creation of a limited number of lots from the Gates property to accommodate homes for essential workers on a low density scale will have no perceptible impact on the water-based nature of the Township.
50In Mr. Jackson’s opinion, given much of the land base in the Township is Crown Land, and therefore is not available for residential development, the block of patented land at the terminus of Healey Lake Road, which takes in the Gates property, is the only viable option for any practical land division.
51Overall, it is Mr. Jackson’s opinion that the Consent Applications are in accord with the purpose of the Act, conform with the GPNO, and are consistent with the PPS. The relevant criteria set are out in s. 51(24) of the Act is met and all matters of the provincial interest have been duly regarded.
Township - Planning Evidence
52Jamie Robinson is the consultant planner retained by the Township to review the Consent Applications. He is a professional land use planner and a Member of the Canadian Institute of Planners and the Ontario Professional Planners Institute.
53It is Mr. Robinson’s position that the severance proposal does not represent good land use planning and the Consent Applications should not be approved because the eligibility policy requirements to be considered for lot creation have not been met. The OP does not permit lot creation unless the proposed lot(s) are either within a designated Settlement Area or are located on a recreational waterway, neither of which criteria is satisfied in this case. In his opinion, the Gates property is not an appropriate location for growth and development.
54Mr. Robinson stated that the Township’s OP policies have not permitted rural development outside of the designated Settlement Area (Station) since the incorporation of the Township in 1980 and the adoption of the first OP (1983). This policy directive is a fundamental principle upon which the land use concept of the OP is based. The growth management concept of the Township has been consistent in that residential lot creation is only permitted in the Settlement Area and/or on shorelines, neither of which is the case with the Gates property.
55Mr. Robinson pointed out that a total of twelve (12) new residential lots have been approved within the Township since 2018. While six (6) of these lots were non-waterfront lots, all of those lots are located in the Station, which is a designated Settlement Area. An additional eighteen (18) condominium units were created by consent from a past commercial waterfront resort. The Township Land Demand and Supply Analysis (“LSDA”) undertaken by RICHARDSON & ASSOCIATES LIMITED (September 30, 2021) concluded that there is a sufficient supply of lots to accommodate the Township’s projected housing demand over the forecast horizon (2046) through the current severance policies of the OP.
56The LSDA identified that The Archipelago is expected to grow to 50 year-round residents and 48 year-round households, 232 seasonal households and 50 employment lots by 2046. There were 202 existing legal lots of record available for development in the Township at the time the LSDA was undertaken. A further 242 lots can be created by consent based on the current lot creation policies of the OP. The future demand for approximately 295 lots is less than the existing supply of approximately 444 lots. This is premised on the assumption that owners of these lands will take full advantage of the land use planning permissions regarding lot creation in the OP and ZBL. Mr. Robinson stated he had not seen any evidence to suggest that there is a shortage of available lands to support housing in the area.
57The OP provides clear policies related to lot creation that is considered to be locally appropriate. In his opinion, the rural lot creation being proposed by the Consent Applications is not locally appropriate. The OP requires new development in the locale of the Gates property to have frontage on a navigable body of water. There are some exceptions to this requirement, but the Gates Property is not captured by any of the defined exceptions.
58The ‘no lot creation’ (except in a Settlement area or along the waterfront) policy of the OP is a fundamental principle upon which the land use concept of the OP is based. In his opinion, it is not good planning to amend a fundamental land use concept of the OP to accommodate a site-specific development proposal.
59The Township’s growth strategy is to accommodate growth in the Settlement Area. There is nothing unique about the proposed lots that would distinguish them from other rural lots in the Township which are not either in a Settlement Area or on the waterfront. Other than for the standard consent criteria, the OP does not provide any policies to evaluate the appropriateness of the proposed lots because new lot creation on the Gates property is not permitted by the OP.
60Mr. Robinson maintains the Consent Applications represent a complete departure from the general land use concept policies of the OP. The approval of the Consent Applications, OPA 68 and the ZBA would be ground-breaking for the Township and would set the stage for additional rural lot creation, which otherwise would not be permitted by the OP. In his opinion, policy changes should only occur through either an OP Review process or in the preparation of a new OP. In fact, the OP specifically identifies that the OP Review process is the appropriate time to review policies related to land supply and growth management.
61Mr. Robinson disagrees with Mr. Jackson’s opinion that in order to achieve affordable housing objectives the creation of the proposed lots must be allowed. Under Mr. Jackson’s interpretation lot creation would be permitted in any location in the Township provided it facilitates affordable housing, which in his view is not an appropriate interpretation of the OP.
62Mr. Robinson submits that the related OP policy cannot be read in isolation of the growth management strategies or as a ‘notwithstanding’ policy. Rather, it must be treated as a complimentary policy to the growth management policies. The related OP policy has two (2) parts. First, it recognizes that affordable housing is supported, but in accordance with the growth concept of the OP, new growth is to be focused to the Settlement Area. Second, it recognizes that the Township can consider designating a Special Policy Area to facilitate lot creation for affordable housing. This policy provision was added to the OP by the Province at the time of the last 2018 OP Review, but the Township has not adopted a special policy area.
63Furthermore, there is no policy basis to support the creation of rural lots on the suggestion that they would provide housing to a specific segment of the population as there is no ability through the Act to control who may or may not own or reside on a property. In any event, the affordable housing policies, even if they are applicable, cannot be applied in isolation nor do they trump the OP restriction on rural lot creation.
64In regard to s. 2 of the Act; Mr. Robinson contends that the Gates property is not an appropriate location of growth and development because the OP only permits residential lot creation that is located on the water or in a Settlement Area. In accord with s. 2.1 of the Act, the Tribunal shall have regard to any decision made by Council, which in this case was to deny the applications.
65Section 4.6 of the Provincial Policy Statement, 2020 (“PPS”) states that the OP is the most important vehicle for the implementation of the PPS. Mr. Robinson submits that comprehensive, integrated and long term planning is best achieved through official plans. In his opinion, the lot assembly being proposed by the Consent Applications does not constitute an efficient development pattern.
66From his perspective, there is nothing unique about the proposed lots that would distinguish them from other rural lots in the Township that are not within the designated Settlement Area or on the waterfront. Neither has he seen any evidence that would suggest the proposed lots would accommodate dwellings that meet the definition of ‘affordable’. The approval of the OPA, ZBA and Consent Applications would set the stage for other rural lot creation which is not permitted by the OP. In his opinion, the proposed consents are premature until such time as the 5-year OP review is undertaken.
67Mr. Robinson agrees that the proposed new lots are compatible with the rural landscape and would not appear to result in a public health and safety concern. From an environmental perspective, the Environmental Impact Study concluded that the development being proposed is supportable subject to development not occurring within the Deer Yard (Stratum 1) and the Deer Wintering (Stratum 2) features. He conceded that four (4) new lots are not anticipated to have an impact on existing infrastructure or hinder the ability of the public service facilities to provide servicing.
68In regard to road access, there is an existing dwelling on the Gates Property and the proposed addition of four (4) lots is expected to have only a marginal increase on the volume of traffic and the maintenance demands for the road. It is however his position that since the new lots are to be accessed by a private road on a municipal road allowance, in the event the Consent Applications are approved there should be a requirement for an agreement to be executed with the Township for the use of the road allowance. The agreement should also indicate that the road allowance is unopened and that the Township is absolved of any liability associated with the use of the unopened road allowance.
69Mr. Robinson also agrees that the Consent Applications do not conflict with the purpose or vision of the GPNO. The consent proposal will accommodate single detached dwellings and will not impact the range and mix of housing types in the area. In his view, there is no conflict with the policies pertaining to aboriginal peoples.
70In regard to the criteria set out in s. 51(24) of the Act, Mr. Robinson maintains that: (b) the creation of the proposed lots is premature and not in the public interest; (c) the Consent Applications do not conform to the OP policies, specifically policy 14.4; and (d1) although the lots are identified as affordable housing in the application materials there is nothing that would require these lots to be developed for affordable housing purposes. Mr. Robinson confirmed he has no concerns about the lot sizes that are being proposed having the ability to accommodate the necessary servicing.
71On the question of compatibility with the existing and planned character of the area, Mr. Robinson said the proposed lots are not dissimilar to the existing lots in the Woods Bay neighbourhood. In that regard, some lots are located on municipally maintained roads, while others, including the Gates property, are located on private roads. He confirmed the lot fabric being proposed by the Consent Applications is not out of character with the prevailing lot fabric of the area.
72However, it is his contention that the character of an area is a function of the characteristics of existing development and the expected characteristics of new development based on the direction of the Township’s policy documents. The proposed lots are not permitted or contemplated by the OP. The planned character of the Woods Bay Neighbourhood is that existing lots can develop in accordance with the policies of the OP, and new lot creation is only permitted with frontage on a recreational waterbody. In his opinion, although the proposed lots are compatible with the planned character of the area, they are not characteristic of the lot creation that is planned for the area. In that regard, unlike others, he does not believe that the character of the area is changing. It is a predominantly shoreline based neighbourhood with limited rural development.
73Based on his review and analysis, it is Mr. Robinson’s opinion that OPA 68, the ZBA and the Consent Applications do not represent good planning and should not be approved. The ‘no lot creation’ (except in the Settlement Area or along the waterfront) policy is a fundamental principle upon which the land use concept of the OP is based. It is neither appropriate nor good land use planning to amend a fundamental land use concept of the OP to accommodate a site-specific development proposal. These kind of policy changes should only occur through the OP Review process or in the preparation of a new OP. He recommends that the appeals be dismissed. However, should the Tribunal find merit in the Consent Applications there are a number of conditions of provisional consent approval that should be imposed.
74On the question of whether an amendment to the OP is required, it is his opinion that given the OP requirement for new development to have frontage on a recreational waterway or adjacent to an original shoreline allowance (with the exception of the Station), and whereas the proposed lots do not front directly onto a recreational waterway, an OPA is necessary to seek relief from the policy.
75Under cross-examination, Mr. Robinson acknowledged that the PPS establishes that “residential development, including lot creation, that is locally appropriate” is a permitted use on rural lands (s. 1.1.5.2). He also agrees that backlots are likely to be more affordable than a waterfront lot.
Analysis and Disposition
76In arriving at this disposition, the Tribunal has had due regard to the planning evidence of Messrs. Jackson and Robinson, the lay evidence of Mr. Goulding, the Participants Statements, and the closing arguments of counsel.
77The Tribunal will first provide a ruling on an issue raised by Mr. Tzekas in his written closing arguments, wherein he alleges that Mr. Jackson’s evidence “was partisan, not objective and not fair”. Mr. Tzekas submits that although Mr. Jackson signed an Acknowledgement of Expert’s Duty confirming it is his duty to provide evidence that is fair, objective and non-partisan, his evidence was not that. Mr. Jackson’s language was extreme and highly charged, and he descended into the arena and made his clients’ cause his own, as was clearly demonstrated by his constant referrals to “we” in the course of his testimony. Mr. Tzekas contends these are serious transgressions which raise concerns about whether Mr. Jackson has fulfilled his duties as an expert, and his evidence must be weighted in this context. In that regard, Mr. Tzekas submits that Mr. Jackson’s evidence should be rejected in its’ entirety, but at the very least, the Tribunal should prefer the dispassionate and balanced evidence of the Township’s planning consultant Mr. Robinson.
78In raising this issue, Mr. Tzekas has correctly identified that the Tribunal, on its volition, did question Mr. Jackson about who he was referring to by “we” in his oral evidence (reference: ENDNOTES). The response by Mr. Jackson under oath was that he was speaking on his own behalf - it was his planning evidence and his opinion, so to say. To the Tribunal’s recollection, Mr. Tzekas did not directly challenge the integrity of Mr. Jackson’s evidence or his response to the Tribunal’s inquiry during the hearing. On the basis of his response, of which the Tribunal has no reasonable or legitimate cause to reject, there is no basis upon which the Tribunal can make a finding that Mr. Jackson’s planning evidence and opinion was partisan, not objective and not fair.
79That being said, the Tribunal does agree that Mr. Jackson’s written and spoken comments were at times unnecessarily provoking, inappropriate and unwarranted. Again, the Tribunal does not recall Mr. Tzekas raising an objection to Mr. Jackson’s deportment during the hearing. At most, the Tribunal can say that it would have expected a more professional propriety from an expert witness that had appeared before this Tribunal on many occasions. That being said, the Tribunal finds there is no justifiable cause to outright disregard Mr. Jackson’s planning evidence in its’ entirety. Moreover, to do so would necessarily and unjustly prejudice his clients to the direct advantage of the Township. Were the Tribunal to exclude Mr. Jackson’s evidence, the appeals would be wholly unsupported from a land use planning perspective. In any event, the parties are assured that as is a matter of due course for the Tribunal, this Panel has weighed the entirety of the planning evidence it had before it in arriving at its Decision on the applications.
80Turning then to the planning merits of the applications; Mr. Robinson’s position in opposition to the Consent Applications principally relies on the locational prerequisite established in s. 14.4 of the Land Division Policies of the OP. It is his position that the locational criteria is a “fundamental principle upon which the land use concept of the OP is based”. Of particular note, Mr. Robinson did not explain the land use planning strategy or logic behind the requirement for frontage onto a recreational waterway or adjacent to an original shore road allowance.
81Mr. Jackson, on the other hand, placed considerable emphasis on the fact that the proposed homes would provide affordable housing for members of the Metis Nation community. Mr. Robinson countered that there is no policy basis to support the creation of rural lots on the suggestion that they would provide affordable housing to a certain segment of the population, and moreover, he had not seen any evidence to suggest that the proposed lots would accommodate dwelling units that meet the definition of ‘affordable’.
82First and foremost, the creation of affordable housing is not a prerequisite of Consent approval, and second, clearly it is not the intention of the legislature or the Tribunal to ‘zone people’. On the question of ‘affordability’, given that the new lots will be sold as vacant land parcels and then developed by the new owner(s) for residential purposes, the logical conclusion is that ‘affordable’ can be defined as the amount the owner is willing and financially able to pay.
83Although it is not a requirement for Consent approval, in this case the Tribunal finds that the provision of affordable housing is a relevant and appropriate consideration in the determination of the Consent Applications. Residents/ratepayers at a WBS workshop indicated the price of waterfront properties in The Archipelago have quadrupled in the last 10 years. Local contractors said they were having difficulties securing employees and tradespeople due to the shortage of affordable lodging in the Woods Bay community area.
84The provision of an appropriate range and mix of housing options, including affordable housing, is underscored in both the PPS and GPNO. The PPS permits residential development, including lot creation that is locally appropriate (s. 1.1.5.2). The Tribunal is satisfied that the Consent Applications will result in building lot dimensions that are appropriate and can meet the zoning standards. In any event, the Township will have the ability to both evaluate and control aspects of the development to occur on the proposed lots through the zoning standards by-law and the building permit/site plan approval process.
85The GPNO emphasizes the importance of a skilled and innovative population (s. 3.3), and specifically acknowledges the contribution that the Aboriginal peoples have had and will continue to have in the development of the North. The development being proposed by the Consent Applications is consistent with these objectives.
86Mr. Robinson contends the Consent Applications are premature, do not represent good planning and should not be approved. In that regard, he pointed out that the approval of the Consent Applications, OPA 68 and the ZBA would be ground-breaking for the Township and would set the stage for additional lot creation.
87The Township OP and the decisions of Township council are required to be consistent with the PPS, conform to the GPNO, and are intended to reflect the planning mandate of the Province. The Provincial planning mandate is highly focused on ‘building more homes’ and the ‘creation of affordable housing’. According to Mr. Robinson, the Township’s OP Consent policies have not changed since 1980. In the circumstances, it should not come as a surprise that the existing OP policies, in this case the Consent policies, are possibly unnecessarily restrictive and out of step with the Provincial planning mandate. In the Tribunal’s view, a ‘nudge’ in the direction of increasing the supply of housing, particularly affordable housing, is a step forward in meeting the Provincial mandate.
88The Tribunal has also considered the concerns identified and comments provided in the Participant Statements. The primary concern identified by those in opposition to the Consent Applications related to the use of Woods Bay Lane by the occupants of the proposed new homes. Most of the residents that access their waterfront properties from Woods Bay Lane are opposed to any non-waterfront lots using the roadway. It is apparent from some of the comments that many users of the road resent that the Owners have opted not to contribute to the WBRA maintenance fund. However, participation in the WBRA fund is on a voluntary basis, and resentment bears no credibility in the Tribunal’s determination of the Consent Applications. In any event, it was indicated that the owners of the new lots will contribute to the maintenance of the WBRA. The Tribunal is satisfied that any impact to Woods Bay Lane resulting from the additional use of the road would be inconsequential. The Tribunal further acknowledges there is considerable support for approval of the Consent Applications.
89In regard to the planning rational of the expert witnesses, the Tribunal found Mr. Jackson’s evidence to be more comprehensive and compelling. The Tribunal finds that the matters of provincial interest identified in s. 2 of the Act, and the relevant criteria enumerated in s. 51(24) of the Act, have been duly regarded and is met, and in accordance with s. 53(1) of the Act a plan of subdivision is not required. In arriving at this Decision, the Tribunal has had due regard to the decision of the Township Council and the information and materials that it had in making that decision.
90The Consent Applications will result in modest intensification of underutilized vacant rural lands. The proposed lots have frontage on an existing road and the new homes will be serviced by private water and sewer servicing. Otherwise, the necessary servicing infrastructure (hydro, etc.) is in place and will not be impacted by the proposed development.
91The Tribunal is satisfied that the Consent Applications and implementing OPA 68 and zoning amendments will facilitate residential development that is appropriate for the area in which the property is located, and will not adversely impact the surrounding properties, the natural features of this area, Woods Bay Lane, or the environment. The development being proposed will result in a modest increase in the local housing stock, aligns with the directives of the Provincial planning regime and is consistent with the principles of good land use planning. Accordingly, the applications warrant approval.
92In his written closing submissions, Mr. Tzekas requested that approval of the applications be made subject to a number of conditions, some of which are not within the Tribunal’s jurisdiction. Mr. Kemerer provided a list of conditions at the hearing, and does not consent to the conditions being requested by Mr. Tzekas. The direction of the Tribunal in regard to the Conditions of Consent Approval is set out in the Order.
93In his closing submissions, Mr. Kemerer is asking the Tribunal to find that an OPA is not required. Given that Mr. Tzekas has not been given an opportunity to make submissions on the request, the Tribunal is not prepared to consider this request.
ORDER
94THE TRIBUNAL ORDERS that provisional consent is to be given. Final approval of the Consent applications shall be subject to the fulfillment of conditions to be finalized by the parties and submitted to the Tribunal for approval. If the parties cannot agree on the Conditions of Consent approval, the Tribunal may be spoken to.
95THE TRIBUNAL ORDERS that Section 16 – Special Provisions of the Official Plan is hereby amended by the inclusion of the following policy:
16.51 The lands described as Part of Lot 40, Concession 3 in the geographic Township of Conger, identified as 11 Woods Bay Lane may be the subject of consent applications resulting in the creation of four lots fronting on Woods Bay Lane as set out in Consent Applications B16-20, B17-20, B18-20 and B19-20; and,
96THE TRIBUNAL ORDERS that Schedule A of Zoning By-law No. A 2000-07 as amended, is hereby further amended by zoning Part of Lot 40, Concession 3 in the geographic Township of Conger from General Residential (GR) Zone to General Residential Exception __ (GR-__) zone.
97The Final Order is being withheld until such time that the Zoning By-law Schedule and the Conditions of Consent Approval are provided to the Tribunal for attachment to the Final Order. If the parties cannot agree on the Conditions of Consent Approval, the Case Coordinator having carriage of this file is to be contacted for the scheduling of a Telephone Conference Call with this Panel.
“M.A. Sills”
M.A. SILLS
VICE-CHAIR
“P. Tomilin”
P. TOMILIN
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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.