Ontario Land Tribunal / Tribunal ontarien de l’aménagement
ISSUE DATE: January 03, 2023
CASE NO(S).: OLT-21-001101
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Friends of South Shore (FOSS)
Subject: Proposed Official Plan Amendment OPA2- 2018
Purpose: To permit a 337-unit park model trailer site on a 38.6 hectare parcel of land along the shore of Soup Harbour
Property Address/Description: 558 Welbanks Road
Municipality: Prince Edward County
OLT Lead Case No.: OLT-21-001101
OLT Case No.: OLT-21-001101
OLT Case Name: Friends of South Shore (FOSS) v. Prince Edward (County)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Friends of South Shore (FOSS)
Subject: By-law No. Z25-18
Property Address/Description: 558 Welbanks Road
Municipality: Prince Edward County
OLT Lead Case No.: OLT-21-001101
OLT Case No.: OLT-21-001102
PROCEEDING COMMENCED UNDER subsection 10(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Fourward Holdings Inc.
Request by: Request for Directions
Heard: November 22, 2022
APPEARANCES:
| Parties | Counsel |
|---|---|
| Fourward Holdings Inc. ("Applicant" or "Fourward") | Patrick Harrington, Matthew Helfand |
| County of Prince Edward ("County") | Darryl Mast and Jennifer Savini |
| Friends of South Shore (hereafter referred to as "FOSS") | David Donnelly |
DECISION DELIVERED BY D. CHIPMAN AND INTERIM ORDER OF THE TRIBUNAL
INTRODUCTION
1This proceeding relates to the appeals by FOSS, on the passing by the Council of the County of an Official Plan Amendment (“OPA76”) and a Zoning By-law Amendment (“87-2021”) (collectively, the “Applications”) for the lands owned by Fourward Holdings Inc. and located at 558 Welbanks Road, being Part 1, Plan 47R- 8797, Part of Lots 19, 20, 21 Concession 2 South Side of East Lake, Athol (“Subject Lands”).
2On May 20, 2021, County Council adopted OPA 76 and Zoning By-law Amendment No. 87-2021. These amendments are comprised of the following:
3(a) Redesignates the Subject Lands from “Rural” to “Shore Land” on Schedule E of the Prince Edward County Official Plan.
4(b) Rezones the Subject Lands from a RU2 Zone and a RU3 Zone to a TPC-13-H1 Zone and a TPC-13-H2 Zone. Under the TPC-13 Zone exception includes the following:
a. a maximum of 337 seasonal park model trailers together with related accessory uses, buildings and structures including recreational facilities shall be permitted.
b. seasonal is defined as occupancy of the park model trailers between May and November only.
c. primary access shall be from Salmon Point Road through lands zoned TPC-12 and TPC-1
d. a minimum setback of the greater of 15 m from Lake Ontario including the wave rush limit or 30 m from the high watermark.
e. a minimum 15 m setback from an EP zone. Within the 15 m buffer a naturalized vegetative offer will be established and maintained, except 1 driveway crossing is permitted.
f. a minimum trailer site frontage of 12.1 m.
g. a minimum setback of 30 m from Welbanks Road.
h. a maximum trailer site coverage of 40%.
i. a minimum of two parking spaces per site.
j. a holding symbol 1 shall apply to a portion of the Site until a site plan has been approved and a site agreement has been executed and registered on title, approvals from the Quinte Conservation Authority are received, and a copy of the current Environmental Compliance Approval (ECA) regarding existing private sewage works is provided to the County.
k. a holding symbol 2 shall apply to a portion of the Site until a site plan has been approved and a site agreement has been executed and registered on title, approvals from the Quinte Conservation Authority are received, a copy of the current Environmental Compliance Approval (ECA) regarding existing private sewage works is provided to the County, and written clearance is received regarding the archeological site identified as Burlington Farnstead and associated buffer.
BACKGROUND AND PLANNING CONTEXT
Site Description
5The Subject Lands are approximately 32.8 hectares (80 acres) in area with 821 metres of frontage on Lake Ontario. There is 224.2 metres frontage on the western side of Welbanks Road. Welbanks Road bisects the Subject Lands from other lands owned by the Applicant. The Subject Lands are currently accessed through an existing lane onto Welbanks Road; however, the proposed development would be accessed internally through the exiting Quinte's Isle Camp Park that fronts onto Salmon Point Road.
6The site for the proposed development is relatively flat with a slight slope towards Lake Ontario with a shoreline that is comprised of stony pebbly washed rock. The shoreline is characterized by dynamic barrier beach conditions that include shifting dunes. Approximately three quarters of the site contains fallow pasture areas. The remaining portion of the site area is wooded.
Surrounding Neighbourhood
7Surrounding the Subject Lands to the immediate west is Quinte’s Isle Campark, a recreational trailer park owned by the same family as the Applicant. Quinte’s Isle Campark, which is also known as Pebble Beach West, is a 389 ha. resort with 619 serviced trailer and transient camping sites.
8The Quinte’s Isle Campark site is comprised of three precincts:
9Main Camping Area – comprises 289 serviced trailer and camping sites. Also within this area is the main office/reception and amenity features including an adult lounge, store/snack bar; washrooms/showers; laundromat; basketball; baseball; tennis; horseback riding; playground; youth lounge; miniature golf; shuffle board court; horse shoe court and pool/splash pad.
10Limestone Area – this area is situated between the main camping area and the Pebble Beach West precinct and provides 136 serviced trailer sites.
11Pebble Beach West – located along the Lake, this area contains 136 serviced seasonal park model trailer sites and 58 serviced transient pull-through trailer sites. The trailer sites have frontages of 12.2 m, 13.7 m. 15.2m or 18.3m. Typical site area ranges from 279 m2 to 501 m2. Amenity space includes a picnic area, playground equipment and horseshoe court. Adjacent to the Pebble Beach West precinct is the Quinte’s Isle Moorings and Park. Facilities in this area include playground, picnic and harbour boardwalk, a boat launch ramp, parking for 177 cars and 32 boat-trailers and a restaurant with an outdoor patio area. Eighty floating boat slips are provided in the harbour, available on a rental basis to park tenants.
12West of the Quite Isle Campark are agricultural and rural lands as well as several woodlands. Along Salmon Point Road are several rural residential properties.
13North and east of the Subject Lands are agricultural and rural lands as well as several woodlands. Along Salmon Point Road, Welbanks Road and Kelly Road, are several rural residential properties. The Soup Harbour PSW is located immediately east of Welbanks Road.
14Lake Ontario and Soup Harbour are located immediately south of the Subject Lands.
Development Proposal
15In March 2018, Fourward submitted Official Plan and Zoning By-law Amendment applications to permit a seasonal tourist commercial Campark with 337 park model trailer sites. On May 16, 2018, a statutory Public Meeting was held. At the meeting an information report was presented to Council describing the proposed development. On August 2, 2018, the Applicant hosted a community meeting.
16MECP Environmental Compliance Approval (ECA) for the proposed wastewater system dated March 4, 2019, was submitted. The County obtained peer reviews dealing with stormwater management and traffic. As well, FOSS obtained a peer review related to cultural heritage landscapes. The Wave Uprush Analysis prepared by Shoreplan Engineering, dated July 9, 2019, was also filed.
17On November 5, 2019, a formal second submission was provided to PEC of the planning applications. The following reports were updated: a) the Beacon EIS (October 2019); b) the GGG Stormwater Management Report (September 24, 2019); c) Planning Rationale Report, together with an updated Development Site Plan was submitted on October 30, 2019.
18The applications were approved by Council; the Official Plan Amendment 76 (OPA) and Zoning By-law Amendment 87- 2021 (ZBA) were formally adopted on May 20, 2021.
THE HEARING
19This matter had been set down for a three week hearing of the merits which began on November 22, 2022.
20On the first day of the hearing, Ms. Ruth Ferguson Althouse, on behalf of the Applicant, provided her curriculum vitae and an executed Acknowledgement of Expert’s Duty, was qualified by the Tribunal to provide expert evidence in the area of land use planning.
21Ms. Ferguson Althouse provided an overview of the applications, as well as a very thorough chronology of the applications and a contextual overview of the area. The Tribunal was also furnished with an overview of the planning regime as it pertains to the Issues List.
22On the second day of the hearing, Counsel for the County suggested a panel approach to the land use planning evidence. The Tribunal agreed with this approach recognizing that a panel would significantly reduce the time needed to hear land use planning evidence and reduce duplication.
23The Tribunal qualified Mr. Matthew Coffey, the Planning Coordinator, Approvals, at the County and Mr. Mike Crough, Associate Director, IBI Group both of whom provided their curriculum vitae and executed Acknowledgement of Expert’s Duty, to provide expert evidence in the area of land use planning. It was suggested that Ms. Ferguson Althouse having been affirmed prior, would contribute to any land use planning evidence as well.
24The Tribunal heard the County’s testimony which was analogous in nature to what was presented by Ms. Ferguson Althouse. The outcome of each of the three expert’s testimony drew similar conclusions that the applications met s. 2 of the Planning Act, were consistent with the PPS 2020 and PPS 2014, the County OP, represented good planning, and are in the public interest.
25On the third day of the hearing, all counsel requested to adjourn in order to discuss a possible settlement. Counsel had indicated that there would be sufficient time remaining within the block set aside, to resume the hearing, should the Parties be unable to reach an agreed resolution. The Tribunal stood down for 3 days to allow discussions between the parties to progress.
26On the December 1, 2022, Counsel advised that Minutes of Settlement had been signed by the Parties.
27The Parties presented the amendments to the planning instruments reflected in the Settlement and corresponded each of the elements to the applicable sections of the Planning Act, PPS and PEC OP.
28The Tribunal heard that the settlement resulted in modifications from the Applicant’s original submission. The modifications are contained in the schedules attached to and forming part of the Minutes of Settlement; Schedule A – Copy of OPA 76 as adopted by Prince Edward County; Schedule B – Copy of ZBA 87-2021 as modified by the Parties; and Schedule C – Revised Development Site Plan, dated November 30, 2022.
Planning Evidence – Settlement
29In the Tribunal’s view, the Settlement has regard for section 2 of the Planning Act, including matters set out in sections 2(a), 2(d), 2(f), 2(n), and 2(p). The Tribunal heard that through the Environmental Impact Study (“EIS”) and Peer Review, the protection of ecological systems and conservation of features of significant cultural and archeological features have been maintained. There has been adequate provisions and use of transportation, sewage and water services demonstrated in the engineering reports submitted and the protection of the financial and economic well-being to both the Province and the municipality has been demonstrated.
Provincial Policy Statement 2020 (“PPS”)
30The Tribunal heard that the Settlement is consistent with the Provincial Policy Statement (“PPS”). Ms. Ferguson Althouse’s Planning Report assessed the planning applications against the 2014 PPS and found them to be consistent with the relevant sections of the PPS at that time and with the subsequent PPS 2020.
31The proposed land use and land use pattern will help sustain the financial well-being of the municipality; will not cause environmental or public health and safety concerns; will conserve biodiversity and address climate change impacts.
32The Subject Lands are in a Rural Area of the municipality. The PPS recognizes that rural areas are important to the economic success of the Province and the quality of life (1.1.4). The OPA to designate the subject site to the Shore Land designation will enable the assets and amenities of the subject site to be leveraged for economic advantages related to tourism, while ensuring that the environmental resources and rural character are protected (1.1.4.1).
33The Tribunal heard that on Rural Lands, resource-based recreational uses are permitted (1.1.5.2). The planning instruments are consistent with section 1.1.5.3 which states that: “recreational, tourism, and other economic opportunities should be promoted”. Ms. Ferguson Althouse opined that the expansion of Quinte’s Isle Campark will enhance opportunities for tourism and economic development within PEC.
34The landscape plan demonstrates a compatible rural character, including retaining significant vegetated areas and hedgerows, which she stated will be submitted at the time of Site Plan Approval. Water and sanitary sewer services will be provided by the resort operator (i.e. the applicant) and there will be no additional demand on the municipality to increase services to the resort (1.1.5.5).
35Testimony indicated that the municipality and applicant have engaged with Indigenous communities (Section 1.2.2) with respect to managing the natural, cultural and archaeological heritage resources and other related issues as part of the development review process. Ms. Ferguson Althouse ensured that all emergency management and other considerations have been, or will be addressed through the municipal planning process by PEC (Section 1.2.3).
36The type of sewage, water and stormwater services proposed for Pebble Beach East are consistent with Section 1.6.6.1(a) of the PPS. These services will be sustainable, financially viable, comply with all regulations, and protect human health and the natural environment (1.6.6.1b). The Significant Wildlife Management plan proposed is consistent with Section 1.6.6.7 and will prevent increases in contaminant loads to Lake Ontario, maximize vegetative and pervious surfaces in the Campark and promote best practices.
County of Prince Edward Official Plan (1998)
37The Tribunal heard that FOSS has agreed to withdraw its appeal of OPA 76. FOSS acknowledged that this withdrawal shall bring into force and effect OPA 76 in the form of Schedule A (attached to the Minutes of Settlement) with no costs being sought by either Party in respect of the withdrawal.
County of Prince Edward Comprehensive Zoning By-law 18-2016
38ZBA 87-2021 would rezone the subject site from the Rural 2 (RU2) and Rural (RU3) Zone to a Trailer Park Commercial (TPC-13) Zone. The on-site wetlands are rezoned to the Environmental Protection (EP) Zone. There are Holding One (H1) and Holding Two (H2) Zones applied to the TPC-13 Zone.
39The TPC-13 Zone permits a recreational vehicle park with a maximum of 337 seasonal park model trailers, together with related accessory uses, including recreational facilities. Section 3.232 of PEC Zoning By-law 1816-2006 defines park model trailer, while “seasonal” is defined in the TPC-13 Zone as occupancy of the park model trailers between May and November only.
40The lands zoned TPC-13 Zone will gain primary access to Salmon Point Road though lands zoned TPC-12 and TPC-1 that form part of Quinte’s Isle Campark. The trailer park on the TPC-13 lands will also share potable water supply and recreational facilities with Quinte’s Isle Campark.
41The Parties agreed that Zoning By-law 87-2021 be amended as per the Minutes of Settlement. Ms. Ferguson Althouse confirmed that, in her professional opinion, the amendments were appropriate and represented good land use planning.
FINDINGS AND ANALYSIS
42The settlement, and the evidence in support of the withdrawal of the OPA and proposed ZBLA were presented with the concurrence of all Parties.
43Through the information and evidence provided by Ms. Ferguson Althouse and Mr. Harrington having provided an overview of the terms of the settlement, the proposed draft instruments and draft conditions, the Tribunal finds the settlement has regard for matters of provincial interest and the Planning Act.
44The Tribunal finds that the seasonal use of the seasonal recreational vehicle trailer park will provide economic benefits to the County while ensuring the establishment and maintenance of the natural shoreline and wetland buffer areas are protected.
45The Tribunal finds the approval of the planning instruments will not result in an over-concentration of Tent, Trailer and Recreational Vehicle Park and similar uses in the area. Quinte’s Isle Campark and Pebble Beach East have more than adequate land mass, water frontage, park and open space lands, and recreational amenities to attract and serve an increased level of tourism that is consistent with the goals and objectives of the PEC OP.
46The Tribunal finds that through the settlement, the concerns raised regarding the seasonal occupancy of the resort, protection of the wildlife corridor, landscape details and transportation issues have been addressed.
47The Tribunal notes there is no strain on municipal services as they are proposed to be created and maintained by the Applicant.
48The Parties have requested that the Tribunal withhold the issuance of the Final Orders until such time as certain prerequisites agreed to by the Parties under the terms of the Minutes of Settlement, have been satisfied including the confirmation of the Minutes of Settlement by County Council.
49The Tribunal has no difficulty with the proposed conditions as submitted by the Parties and accordingly the Orders of the Tribunal will be provisional only, and a Final Order will be issued only when the Tribunal is advised that the conditions agreed by the Parties have been satisfied.
ORDER
50THE TRIBUNAL ORDERS that the Appellant’s appeal of Amendment No. 76 to Official Plan of the County of Prince Edward is hereby dismissed, having been withdrawn by the Appellant. No costs shall be sought by either Party in respect of this withdrawal.
INTERIM ORDERS
51THE TRIBUNAL ORDERS THAT the appeal is allowed in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph [53] below, and the Zoning By-law Amendment set out in Attachment 1 to this Interim Order, is hereby approved in principle.
52The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the Prince Edward County Solicitor, of the following pre-requisite matters:
23.5.13TPC-13 Zone (Fourward Holdings Inc.) Part of Lots 18, 19, 20, 21, South Side of East Lake, Ward of Athol
- i) Within the area zoned TPC-13 Zone, a recreational vehicle trailer park with a maximum of 337 seasonal park model trailers, together with related accessory uses, buildings or structures, including recreational facilities, shall be permitted. “Seasonal” is defined as occupancy of the park model trailers between May and November only.
ii) Lands zoned TPC-13 Zone are contiguous to the Quinte’s Isle Campark establishment at 237 Salmon Point Road and will gain primary access to the Salmon Point Road through the lands zoned TPC-12 and TPC-1. The trailer park on the TPC-13 lands will share potable water supply and recreational facilities and amenities with Quinte’s Isle Campark.
iii) Minimum Setback from Lake Ontario – All development will be setback a horizontal distance which is the greater of 15m from the Lake Ontario 100-year flood level; or 30m from the high water mark.
iv) Buildings or structures will not be permitted closer than a horizontal distance of 15m from any EP Zone. Within the 15m setback, a naturalized vegetated buffer will be established and maintained, save and except one (1) driveway crossing shall be permitted.
v) Minimum trailer site frontage - 12.1 m
vi) Minimum Setback from Welbanks Road shall be 30m
vii) Maximum trailer site coverage - 40%
viii) A minimum of 2 parking spaces per site shall be provided.
ix) The requirements of Section 41 of the Planning Act as amended related to Site Plan Control shall apply to the lands zoned TPC-13. All other provisions of the TPC Zone and By-law 1816-2006 as amended, shall apply to the lands zoned TPC- 13.”
- A By-law shall not be enacted to remove the “Holding One” (-H1) symbol from the TPC-13-H1 Zone until such time as:
a. A Site Plan has been approved and a Site Plan Agreement has been executed and registered on title of the lands. The Agreement shall address, among other things: a) the establishment and maintenance of natural shoreline and wetland buffer areas in accordance with the recommendations of the Environmental Impact Study (EIS) prepared by Beacon Environmental, dated May 2020; and b) mitigation measures to guide the implementation of the Site Plan as outlined in the EIS by Beacon Environmental to protect the site during and after construction to ensure compliance with Species at Risk Act and all other applicable environmental legislation; c) Land is deeded to the Municipality for the Welbanks Road allowance; d) the developer upgrades Welbanks Road to municipal standards a distance of 650m from the intersection with Kelly Road to the planned turnaround.
b. All approvals have been received from the Quinte Conservation Authority under its regulations.
c. Providing to the Municipality a copy of the current Environmental Compliance Approval (ECA) from the Ministry Environment, Conservation and Parks for all required private sewage works; and
d. Prior to the removal of the “Holding One” (-H1) symbol, no person shall erect any building or structure for any purpose and the only permitted uses shall be agricultural, conservation and open space uses.
- A By-law shall not be enacted to remove the “Holding Two” (-H2) symbol from the TPC-13-H2 Zone until such time as:
a. A Site Plan has been approved and a Site Plan Agreement has been executed and registered on title of the lands. The agreement shall address, among other things: a) the establishment and maintenance of natural shoreline and wetland buffer areas in accordance with the recommendations of the Environmental Impact Study (EIS), prepared by Beacon Environmental, dated May 2020; and b) mitigation measures to guide the implementation of the Site Plan as outlined in the EIS by Beacon Environmental to protect the site during and after construction to ensure compliance with Species at Risk Act and all other applicable environmental legislation; c) Land is deeded to the Municipality for the Welbanks Road allowance; 2303 d) The developer upgrades Welbanks Road to municipal standards a distance of 650m from the intersection with Kelly Road to the planned turnaround.
b. All approvals have been received from the Quinte Conservation Authority under its regulations.
c. Providing to the Municipality a copy of the current Environmental Compliance Approval (ECA) from the Ministry Environment, Conservation and Parks for all required private sewage works;
d. The Ministry of Heritage, Sport, Tourism, Culture Industries has provided written clearance for the archaeological site identified as the Burlington Farmstead (Site AIGh-75) and associated buffer; and
e. Prior to the removal of the “Holding Two” (-H2) symbol, no person shall erect any building or structure for any purpose and the only permitted use shall be conservation and open space uses.
Interim Orders to Become Final Orders
53The Panel Member will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-Law Amendment and the issuance of the Final Order. The provisional Interim Orders of the Tribunal shall be withheld until such time as the Tribunal is advised in writing by the Parties, jointly, that the County of Prince Edward has approved the Minutes of Settlement and the terms of the Minutes of Settlement, have been satisfied.
54If the Parties do not submit the final drafts of the Zoning By-law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph [54] above have been satisfied, and do not request the issuance of the Final Order, by Friday, September 29, 2023, the Applicant and the City shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the draft Zoning By-law Amendment and issuance of the Final Order by the Tribunal. In the event the Tribunal fails to receive the required status report, and/or in the event the contingent pre-requisites are not satisfied by the date indicated above, or by such other deadline as the Tribunal may impose, the Tribunal may then dismiss the Appeal.
55The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines and deadline for the submission of the final form of the instrument(s), the satisfaction of the contingent pre-requisites and the issuance of the Final Order.
“D. Chipman”
D. CHIPMAN
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.