Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 03, 2023

CASE NO(S).: OLT-22-004515 (Formerly PL170798)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: Boblo Developments Inc.

Subject: Proposed Plan of Subdivision – Failure of the County of Essex to make a decision

Purpose: To permit the approval for a draft plan of subdivision for 206 lots and 6 blocks creating 209 building lots on the south end of the Boblo Island

Property Address/Description: Part of Bois Blanc Island

Municipality: Town of Amherstburg

Municipality File No.: 37-T-14004

OLT Case No.: OLT-22-004515

Legacy Case No: PL170798

OLT Lead Case No.: OLT-22-004515

Legacy Lead Case No.: PL170798

OLT Case Name: Boblo Developments Inc. v. Essex (County)

Heard: January 27, 2023 by Written Hearing

APPEARANCES:

Parties	Counsel
Boblo Developments Inc. (the “Applicant”)	Matthew Lakatos-Hayward

DECISION DELIVERED BY DAVID L. LANTHIER AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1This Decision and Order now issues as a result of submissions made to the Tribunal by the Applicant, requesting final approval of an amended Plan of Subdivision and modified Draft Plan Conditions, subsequent to the hearing of this matter, before the Local Planning Appeal Tribunal, as it then was, from August 20 to August 22, 2018.

2The Decision and Order of the Tribunal issued on November 29, 2018 (the “Tribunal’s Prior Decision”) allowed the Applicant’s appeal in part and approved the Draft Plan of Subdivision located in the Town of Amherstburg (“Town”) which was before the Tribunal. The approval was in the ordinary course subject to the fulfillment of the conditions that were set out in Attachment 1 to that Decision and Order (“Draft Plan Conditions”).

3As the prior Decision and Order of the Tribunal determined all issues before it, on a final basis, and no subsequent communications were received, the Tribunal’s file was accordingly closed.

BASIS FOR REQUESTED MODIFICATIONS TO DRAFT PLAN AND CONDITIONS

4The Tribunal’s Prior Decision expressly stated that the Tribunal could be spoken to if minor changes were required with respect to the approval of the Draft Plan of Subdivision as it was subject to the Draft Plan Conditions. Paragraph [42] of the Tribunal’s Prior Decision was as follows:

[42] The County requested that the Tribunal's Order provide authority to the County to make redline revisions to the Draft Plan of Subdivision, if required. While this may not cause the Tribunal hesitation if the revisions were of a minor or typographical nature, the Tribunal is mindful that there could be significant changes to the plan's lots and configurations based on the outcome of the review by the MNRF. Given the extent of the evidence heard in this appeal, and in the interest of all parties to the appeal, the Tribunal finds that it is appropriate for the Tribunal to be spoken to should changes be required to the plan. Ideally, this could be done through a telephone conference call with the parties and Tribunal, and, if necessary, pre-filed affidavit evidence.

5Paragraph 44 of the Tribunal’s Prior Decision also indicated that if there were any difficulties implementing any of the Conditions of Draft Plan approval, the Tribunal could be spoken to.

6Section 51(56.2) of the Planning Act also provides the Tribunal with the authority to modify conditions to draft plan approval before approval of the final plan of subdivision by the approval authority. As the final draft of the Plan of Subdivision has not yet occurred, the Tribunal retains the jurisdiction to attend to receive and consider the requested changes to the Draft Plan Conditions.

7Over four years later, the Applicant, with the concurrence of the municipal authorities, now asks that the Tribunal retain jurisdiction to consider minor amendments to the Draft Plan of Subdivision and the Draft Plan Conditions.

8Vice-Chair Sarah Jacobs, the Panel Member that presided at that hearing, and whose decision and prior Order are the subject matter of this request to re-address the Tribunal’s Prior Decision would ordinarily have been seized to address this request. As that Member retired from the Tribunal in 2021, this Panel Member was accordingly assigned by the Chair of the Tribunal in accordance with s. 3(5)(a) of the Ontario Land Tribunal Act, to preside over the continuation of this proceeding as a written hearing. The file was reopened and assigned a new OLT file number and this written hearing was eventually scheduled on the Tribunal’s calendar for January 27, 2023.

CONSIDERATION OF THE EVIDENCE AND REQUESTS TO THE TRIBUNAL

9The Applicant and the Municipality have submitted materials in support of minor changes to the draft Plan of Subdivision and the Draft Plan Conditions that were originally approved. The following materials are before the Tribunal:

1. The covering letter and request of counsel for the Applicant dated September 16, 2022;
2. The Affidavit of Elizabeth Howson, land use planner for the Applicant, sworn September 9, 2022;
3. The Affidavit of Dr. Christopher Aspila, the Manager of Planning Services for the Town, sworn in September, 2022;
4. A summary of the seven changes/additions required to the Draft Plan Conditions;
5. A Table summarizing the status of the Draft Plan Conditions with related materials regarding clearance of conditions;
6. A redlined and clean copy of the revised Draft Plan Conditions incorporating the requested changes and additional conditions for the consideration of the Tribunal;
7. A final version of the Draft Plan of Subdivision with the Surveyor’s Certificate dated October 28, 2022, for the review and final approval of the Tribunal.

10The Tribunal has reviewed the planning evidence provided by Ms. Howson and Dr. Aspila, both of whom are qualified by the Tribunal to provide land use planning evidence, together with the appended and additional material they have provided. As of the date of reviewing the submitted materials, the Panel noted and requested confirmation of the final draft of the Plan of Subdivision to be registered and was provided with the final updated copy of the Plan of Subdivision now certified by O.L.S. Alec S. Mantha dated October 28, 2022. This replaced the draft Plan presented for approval with the materials.

11The evidence provided confirms that the number of lots, road pattern and general configuration of the Draft Plan of Subdivision remains unchanged from the version approved in the Prior Decision. The changes to the Plan and modifications to the Draft Plan Conditions now sought are for the purposes of implementing changes resulting from the requirements of the Ministry of Environment, Conservation and Parks (“MECP”) permit and from the more in-depth review of other technical reports. This resulted in improvements to the storm water management plan and the protection of existing buildings that have heritage significance. The proposed changes and modifications are in place primarily to better address matters of Provincial Policy relating to the protection of the natural environment and natural heritage and built heritage resources.

12Ms. Howson’s Affidavit, and the summary of changes required for the Conditions, provides a thorough and detailed overview of the final seven identified modifications to the Draft Plan of Subdivision and the proposed seven amendments to the Draft Plan Conditions that were previously approved by the Tribunal. Dr. Aspila’s Affidavit evidence, on behalf of the Town of Amherstburg, fully supports Ms. Howson’s evidence and specifically, her planning opinion.

13Both Ms. Howson and Dr. Aspila are of the opinion that the changes being sought to the Draft Plan of Subdivision and the Draft Plan Conditions are appropriate and they confirm that the changes are sought for the purpose of implementing changes resulting from the requirement of the MECP Permit as well as improvements to the storm water management plan and the protection of existing buildings that have heritage significance. As such, and having given careful consideration to the requested changes, both Planners are of the opinion that the changes that the Tribunal is being requested to approve, will result in improvements to the subdivision development, are consistent with Provincial Policy and represent good planning.

14The Tribunal, in reviewing the material, and the planning opinion evidence provided, is satisfied that it is appropriate to provide approval of the minor modifications to the Draft Plan of Subdivision originally approved and to the final Draft of the Plan now presented to the Tribunal. The Tribunal is satisfied that the additional blocks now added to the form of the Plan (in relation to the residential lots remaining substantially as they were originally in place) appropriately respond to the review and clearance processes that have followed the approval provided in the Tribunal’s Prior Decision in order to satisfy the previously approved Draft Plan Conditions. The changes to the Draft Plan of Subdivision, and the related modifications to the Draft Plan Conditions better address matters relating to natural habitat protection, species-at-risk, stormwater management, the conservation of built heritage, creating an archaeological buffer, and pedestrian access to built heritage.

15The Panel has carefully reviewed the Tribunal’s Prior Decision and those concerns and issues addressed by Vice-Chair Jacobs that were raised in the course of the settlement hearing that was conducted. In particular, the Tribunal has noted those concerns and matters raised by the Parties (and Participants at that time) and addressed by the Panel in her reasons. The Tribunal is satisfied that the proposed minor amendments to the Draft Plan of Subdivision and Draft Plan Conditions are consistent with the findings and conclusions of the Tribunal as set out in the Prior Decision and are either unaffected by the proposed minor amendments or, in fact, are more fully addressed in the proposed modifications, and thus, are appropriate.

16On the basis of the materials and evidence filed in support of this request to approve the modifications to the Draft Plan and Conditions, and upon the strength of the planning evidence provided, the Tribunal is satisfied that the approval of the changes to the Draft Plan of Subdivision and the modifications/additions to the Draft Plan Conditions are entirely consistent with the findings and conclusions of the Tribunal in the Prior Decision. Furthermore, the Tribunal is satisfied that the changes and modifications are minor in relation to the originally approved Draft Plan and Draft Plan Conditions, and substantially maintain the original form of the Draft Plan of Subdivision that was approved and improve upon the original Draft Plan Conditions.

17The Tribunal is satisfied, and accordingly finds, that the final form of the Draft Plan of Subdivision and the final form of the Draft Plan Conditions that are now before the Tribunal are consistent with Provincial Policy, and specifically the Provincial Policy Statement, 2020, and now, as before, represent good land use planning in the public interest.

ORDER

18The Draft Plan of Subdivision, as it was conditionally approved by the Tribunal in its Decision and Order issued on November 29, 2018, is, and the same is hereby, modified, and as modified and shown on the plan prepared by Alex S. Mantha dated October 28, 2022 appended to this Order as Attachment 1, is approved.

19The approval of the Plan of Subdivision in Attachment 1 is subject to the fulfillment of the Draft Plan Conditions set out in Attachment 2 to this Order, which are amended as they were approved by the Tribunal in its Decision and Order issued on November 29, 2018, which amendments are hereby approved.

20Without limiting the prior authority granted to the County of Essex under the Order of the Tribunal issued on November 29, 2018, and such conditions as may have been cleared to date, the Tribunal confirms and orders that pursuant to section 51(56.1) of the Planning Act, the County of Essex shall have the continuing authority to clear the Conditions of Draft Plan approval and to administer final approval of the Plan of Subdivision for the purposes of section 51(58) of the Planning Act.

21If there are any matters or difficulties arising from this Decision and Order the Tribunal may be spoken to.

“David L. Lanthier”

DAVID L. LANTHIER 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.

ATTACHMENT 1

ATTACHMENT 2