Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 18, 2023

CASE NO(S).: OLT-21-001615

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Brad Billings

Subject: Application to amend Zoning By-law No. 279 - Refusal or neglect of Township of Sioux Narrows – Nestor Falls to make a decision

Existing Zoning: Rural Residential (RR)

Proposed Zoning: Tourist Commercial (TC)

Purpose: To permit short-term vacation rentals

Property Address/Description: 60 Clopper Road

Municipality: Township of Sioux Narrows – Nestor Falls

Municipality File No.: Z/02/21

OLT Case No.: OLT-21-001615

OLT Lead Case No.: OLT-21-001615

OLT Case Name: Billings v. Sioux Narrows – Nestor Falls (Township)

PROCEEDING COMMENCED UNDER subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: The Township of Sioux Narrows-Nestor Falls

Request for: Request for Dismissal Without a Hearing

Heard: In writing

APPEARANCES:

Parties	Counsel
Brad Billings	C. Fraser
Township of Sioux Narrows-Nestor Falls	C. Bryson
Peter Harkness	P. Harrington

DECISION DELIVERED BY S. BRAUN AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Decision and Order arises out of the Tribunal’s rehearing of a Motion brought by the Township of Sioux Narrows-Nestor Falls (“Township”) to dismiss, without a hearing, an appeal by Brad Billings (“Appellant”) pursuant to s. 34(11) of the Planning Act¹ (”Act”). Mr. Billings appealed the Township’s decision to refuse his application for a Zoning By-law Amendment (“ZBA”) in relation to the property located at 60 Clopper Road (“subject property”/“site”).

2Pursuant to s. 23 of the Ontario Land Tribunal Act² (“OLTA”) and Rule 25 of the Tribunal’s Rules of Practice and Procedure (“Rules”), as a result of the direction of the (then Interim) Chair in a letter dated December 23, 2022, the previous decision was set aside and the motion to dismiss ordered to be reheard. In accordance with Rule 21, the rehearing of the motion was conducted in writing.

3For the reasons that follow, the Tribunal grants the requested relief, having found the appeal is premature in view of the limits of the Tribunal’s jurisdiction. Were the matter to proceed to a full hearing, the Tribunal would be incapable of rendering a decision on a fundamental issue, which is whether the ZBA conforms with the Township’s Official Plan (“OP”), in the absence of determinations with respect to whether access to the subject property is located on public or private lands, all of which is discussed in more detail below.

4The subject property is approximately 0.44 hectares in size with roughly 272 feet of water frontage on Whitefish Bay, Lake of the Woods. It is currently designated within the OP as Rural and zoned Rural Residential (“RR”) in the Township’s Comprehensive Zoning By-law (“ZBL”). At present, the site contains a three-bedroom main lodge, two-bedroom guest cabin and a two-bedroom apartment above a garage, all of which accommodate a total of 14 guests. The site is privately serviced, uses potable water from the lake and has two septic fields for the disposal of sewage.

5The Appellant has owned the subject property for approximately 30 years and has occasionally provided short-term rentals (“STR”) of the property to tourists. The Township does not permit commercial uses (including STR) in the RR zone. Although the Appellant disagrees that the use is not permitted within the RR zone, he nevertheless applied to have the subject property rezoned from RR to Tourist Commercial (“TC”). He does not wish to expand his business, but merely seeks rezoning to permit him to continue what he has done for years, which is to occasionally use his property for STR.

6The Township refused the application for a number of reasons, including lack of access to the subject property being located on a private road and a lack of agreements with existing private landowners to address the short term and long term maintenance costs associated with any increase in traffic. Central to the dispute is the road from which the subject property is accessed. Bell Road is a paved municipal road, which is assumed and maintained by the Township to the point at which the pavement ends. The road continues eastward as a one-lane, unpaved gravel road not maintained by the Township, known as Clopper Road. The subject property is accessible via Bell Road, Clopper Road and a private driveway. The Parties are at odds as to where Clopper Road begins, whether it is a public or private road and the ownership of portions of the road as well as whether the private driveway accessing the subject property is on Crown land or privately owned land.

7On May 17, 2022, a Case Management Conference was held before a panel differently constituted. At that time, Peter Harkness, who owns lands proximate to the Subject Property sought and, on consent, was granted Party Status.

MOTION TO DISMISS

8The Township filed a Motion for an Order of the Tribunal dismissing the appeal without a hearing, taking the position that the Appellant cannot demonstrate that the proposed ZBA conforms with the OP, given the lack of access to the subject property from a public road and the lack of agreements to allow access from a private road on Crown land and a private access road across lands owned by Mr. Harkness, and to upgrade the private road to municipal standards, maintenance and repair.

9Mr. Harkness supports the Motion and submits the appeal does not have a reasonable prospect of success because it proposes a rezoning to permit a commercial tourism use that relies solely upon a road that the Appellant does not own or control. Specifically, the Appellant has no agreement with the Municipality for the maintenance of those portions of the private road that are not privately owned; has no easement, licence or other permission related to the use of Mr. Harkness’ lands (“Harkness lands”) and does not have Mr. Harkness’ permission to cross the Harkness lands for the purposes of operating a STR or TC use.

10The relevant sections of the OP upon which the Township and Mr. Harkness rely are as follows:

8.1.1 The planned minimum right-of-way width for municipal public roads within the Township is 20 metres. In certain circumstances, a lesser right-of-way width may be permitted for municipal public roads, provided such reduction is approved by the Municipality.

8.1.7 In most cases, development shall only be permitted if access to a public road is available or established as a condition of approval. Development on new lots on private roads shall only be permitted provided the requirements of Section 7.4 in respect to such lot creation are followed. Development on existing lots of records on private roads shall follow Section 9.11.

8.1.8 Where land is required for road widening, road extensions, road right-of-way or intersections, such land shall be obtained, by the appropriate agency, in the course of approving plans of subdivision, development or redevelopment applications, site plan approval applications, and consent for land severances. Any proposals to widen, extend or improve roads in the Township should take into account the scenic factors and natural attributes of the adjacent lands, particularly trees and watercourse crossings that may be on or near the road allowance.

9.11.3 Notwithstanding the above, development on existing lots of record on private roads shall only proceed if there are agreements acceptable to Council regarding access, services and the maintenance of the private road and that any other service deemed necessary by Council shall exist or shall be provided to the site by the developer.

11The Township relied upon the sworn Affidavit and Reply Affidavit of Jeff Port, a Registered Professional Planner and author of the Planning Report on the subject application, which was considered by the Township.

12At paragraphs 5 and 6 of his Affidavit, Mr. Port states:

The Subject Lands are accessible only by a private road on abutting Crown and private lands, which is gravel, one lane and minimally maintained by other nearby cottage owners.

The Applicant/Appellant does not have an agreement with the Ministry of Northern Development, Mines, Natural Resources and Forestry (“MNDMNRF”) or the private landowner, Mr. Peter Harkness, to use, bring up to standard, maintain or repair the road to the satisfaction of the Township of Sioux Narrows-Nestor Falls, for purposes of Sections 8.1.7 and 9.11.13 of its Official Plan.

13At paragraphs 3-5 of his Reply Affidavit, Mr. Port states:

Bell Road is a municipal road and highway to its end where the pavement stops. The Township has assumed and maintains Bell Road to where the pavement ends and it becomes Clopper Road.

Clopper Road is a private road over Crown lands, subject to the Public Lands Act and Regulations for access, standards, service and repair purposes, and then the private lands of Mr. Peter Harkness, subject to his permission for any access but personal vehicular travel of Mr. Billings ensured by the Road Access Act absent a court order to close it and standards, maintenance and repair.

Clopper Road did not exist upon the original Crown grant of the Harkness lands. There are no colonization roads in Sioux Narrows-Nestor Falls and no provincial or municipal highway existed at the time of the Crown grant to be reserved by the Crown Patent.

14The Township submits that the only municipal road in this scenario is Bell Road, to where the pavement ends and that it has not assumed Clopper Road at any time, nor has it performed maintenance on it at any time and not prior to January 1, 2023, which may have implied dedication by Mr. Harkness and acceptance by the Township as a municipal road.

15The Tribunal also had before it the sworn Affidavit of Mr. Harkness, whose evidence is that access to both his property and the subject property are gained by using a private road which has multiple private owners and is not maintained by the Municipality. Mr. Harkness asserts that Clopper Road is a private road that travels over Crown land until it reaches the private Harkness lands, and the driveway that accesses the subject property exits Clopper Road at a point within the Harkness lands and thereafter, traverses a different portion of the Harkness Lands.

16In June 2022, he retained Rugged Geomatics (an Ontario Land Surveyor) to confirm the boundaries of the Harkness lands and confirm whether portions of the private road are situated within the Harkness lands. Exhibit C to the Harkness Affidavit is an opinion letter from Rugged Geomatics which states, in part:

The vehicular access route to nearby Location EB 2305 (PIN 42117-0892(LT)) passes through the property of interest. The centerline of the access falls within the subject property by a maximum is 8.94 metres. The subject property is subject to an allowance for road by patent 16863 (see attached). A solicitor should be consulted to determine if this access route would be deemed a public highway or whether prescriptive rights under the Land Titles Act could be claimed by the owner of Location EB2305. The Road Access Act may also be applicable, but again your solicitor should be consulted where this statute is concerned.

The resulting bearings and distances for the boundaries of the subject property based on our field survey agree substantially with plans of record in the land registry system.

17Mr. Harkness submits that for development on an existing lot on a private road, s. 9.11.3 of the OP requires the landowner to have an agreement in place to maintain the private road to facilitate the use. He further submits the Appellant does not have any form of agreement with the Municipality or the Province to use any portion of Clopper Road for the purposes of facilitating a TC use for the travelling public. In addition, although Mr. Harkness has permitted personal vehicular access over the Harkness lands to the Appellant for his personal use, there is no easement, licence or other permission related to the use of the Harkness lands in favour of the Appellant to facilitate a TC use.

18On the basis of all the foregoing, the Tribunal was asked to dismiss the appeal in accordance with its powers under s. 34(25) of the Act and s. 19 of the OLTA.

APPELLANT’S RESPONSE TO MOTION

19The Appellant submits that the matter should proceed to a full hearing, taking the position that the usage of the property for STR is a compatible residential use; that other property owners in the area have applied for, and been granted, zoning by-law amendments to permit STR and, in any event, the Township’s ZBL does not specifically address and provide clear regulations of STR. The Appellant does not intend to expand the existing use of the property and is willing to accept site specific restrictions to prohibit commercial expansion or a site specific amendment to the current zoning to allow STRs under rural residential zoning.

20He relied upon the Affidavit of Registered Professional Planner, Shannon Dodd-Smith. While Ms. Dodd-Smith acknowledges that there may be access issues which would need to be addressed in order for the ZBA to conform to the OP, beyond briefly addressing same, her evidence focused primarily upon STRs and a perceived lack of clarity within the OP and ZBL with respect to STRs. She questions the basis upon which a zone change is required to permit the STR use of the property and opines the proposed use is similar to a bed and breakfast, which is currently permitted in the RR zone. Ultimately, the majority of her evidence was not considered helpful to the Tribunal in the context of this Motion to dismiss.

21With respect to the issue of access and the status and ownership of Clopper Road and the driveway, the Appellant rejects the claims of the Township and Mr. Harkness that the road accessing the subject property is not a public municipal road and relies upon s. 8.1.9 and Schedule A of the OP:

8.1.9 Those roads, which are being maintained by the Township at the date of adoption of this Plan, are identified on Schedules A, B, and C. These shall be referred to as municipal public roads, All other roads, with the exclusion of Provincial Highway 71, are considered to be private roads.

He submits that, regardless of whether the municipality maintains the road or not, Schedule A of the OP identifies roads in black letters, clearly referring to Bell Road as a municipally maintained road and no evidence was presented by either the Township or Mr. Harkness to show where Bell Road ends and Clopper Road begins. Moreover, he notes anecdotally that Bell Road and Clopper Road are commonly referred to interchangeably.

22In the alternative, it is submitted that should the Tribunal find the road in question not to be a municipal public road, it should nevertheless be considered a public road under the Public Lands Act³ – allowing free use for the general public and not requiring agreements with any third parties, including the Ministry of Natural Resources and Forestry (“MNRF”).

23With respect to ownership and access, the Appellant takes the position that, in the absence of a true survey, there is insufficient evidence to demonstrate that the driveway of the subject property, which connects to Clopper Road encroaches on the Harkness lands. Further, at paragraphs 6 and 7 of his Affidavit, the Appellant states:

I am advised by my counsel that the Harkness Lands are subject to a crown patent which states that any public or colonization roads or any highways crossing the said land at the date of these Letters Patent - are owned by the crown. Attached hereto as Exhibit C is a copy of the Crown Patent, instrument number PA16863.

The Crown has designated authority of this road, Clopper Road, also referred to as Bell Road to the Ministry of Natural Resources and Forestry (“MNRF”). Attached hereto as Exhibit D is a screenshot from the Ontario GeoHub showing the MNRF Road Segment of Clopper Road.

24He goes on, at paragraphs 10 and 11, to state:

It is of (sic) my belief that the "private road" is owned wholly by the Crown and that the Crown Patent registered on Mr. Harkness’ property negates any requirement of an access agreement as he does not own the road. Further, access to the Subject Lands does not cross upon the Harkness Lands. Should it be found that access to the Subject Lands does impede on the Harkness Lands, I have hired a contractor who is currently in contact with the MNRF to obtain the necessary permits required to construct a new route of access to the Subject Lands via Clopper Road that avoids the Harkness Lands entirely.

It is also of (sic) my belief that this road would be defined simply as a road in the Public Lands Act not requiring any specific agreement with the MNRF in order to access the road.

25Finally, the Appellant notes that although one of the reasons for the Township’s refusal of the ZBA was a concern that the road could not withstand additional traffic introduced by potential commercial expansion, he has no plans to expand the use of his property and there will be no change to the current maintenance needs of the subject road.

LEGISLATIVE FRAMEWORK

26The Tribunal’s authority for dismissing a ZBA appeal is found in s. 34(25) of the Act, which sets out a list of grounds that are disjunctive, meaning the moving party need only demonstrate that one has been satisfied to be successful on a Motion to Dismiss. Section 34(25) states:

Dismissal without hearing

34(25) Despite the Statutory Powers Procedure Act and subsection (24), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:

1. The Tribunal is of the opinion that,

i. the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal,

ii. the appeal is not made in good faith or is frivolous or vexatious,

iii. the appeal is made only for the purpose of delay, or

iv. the appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.

27In addition, s. 19(1) of the OLTA addresses, in general, the dismissal of an appeal without a hearing and states, in part:

19 (1) Subject to subsection (4), the Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing…

…(c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success.

ANALYSIS AND FINDINGS

28The issue to be decided on this Motion is whether the appeal of the Township’s refusal of the ZBA should be permitted to proceed to a hearing. In making a decision on whether to dismiss an appeal without a hearing, the accepted starting point is the decision in Toronto (City) v. East Beach Community Assn., 1996 CarswellOnt 5740, [1996] O.M.B.D. 1890, 42 O.M.B.R. 505 (“East Beach”), which establishes that it is insufficient for a Notice of Appeal to simply employ planning language. Rather, there must be disclosure of “genuine, legitimate and authentic planning grounds” worthy of the adjudicative process. The Tribunal is cognizant that rights of appeal should not be taken away “whimsically, readily and without serious consideration of the circumstances of each case”, as noted in East Beach. However, the Tribunal is equally cognizant of the need to ensure that valuable resources not be expended unwisely in the pursuit of appeals which have no reasonable prospect of success.

29While a great deal of argument and evidence put forth by the Appellant relates to the STR use of the property and whether it is already permitted or similar to already permitted uses within the RR zone (such as a bed and breakfast) and/or whether the Township’s Zoning By-laws are sufficiently clear in respect of regulation of the STR industry, the Tribunal finds that the key issue to determining whether the requested relief should be granted is whether the Appellant is capable of demonstrating that the proposed ZBA conforms with the OP and, in particular, those provisions speaking to access, including s. 8.1.7 and s. 9.11.3.

30The Tribunal agrees with the submission of counsel for Mr. Harkness that, “ownership of the means of access to the proposed tourist commercial use is the fundamental issue in this case”.

31The Parties are clearly at odds with respect to the status of Clopper Road, from which the subject property is accessed, as well as ownership of portions thereof and they are also at odds as to whether the private driveway to the subject property traverses lands owned by the Crown and/or Mr. Harkness.

32The Township and Mr. Harkness assert that Clopper Road is private and traverses lands owned by Mr. Harkness and that there is no direct access to the subject property other than over these lands. The Township also submits that, while the Appellant has personal use permission to traverse the Harkness lands to access the subject property, Mr. Harkness’ objection to others crossing his lands to access the subject property for a TC use defeats any claim to a prescriptive easement, and although the Road Access Act⁴ protects the Appellant’s personal vehicular access to the subject property, it does not afford access to others. The Appellant asserts that the road is public, as it appears on Schedule A of the OP and, in the alternative, that the “private road” is wholly owned by the Crown, negating any requirement of an access agreement, as Mr. Harkness does not own the road. He further asserts that the driveway accessing the subject property does not cross the Harkness lands.

33The Township put before the Tribunal the decision of VC Lanthier in Beyore v. Peterborough (County), 2018 CanLII 94292 (“Beyore”), referencing paragraph 29, which notes that secured access to a development is a fundamental planning requirement for approval. For the purposes of this Motion however, the Tribunal considers the more salient point of this authority to be found in paragraph 18:

Aside from the very limited and specific powers granted to the Tribunal in regards to highways, all decisions with respect to ownership of, rights of way over, and easements within, unopened road allowances, and all decision-making relating to highways, streets, open and closed road allowances and other matters relating to such municipal infrastructure, are within the sphere of jurisdiction of a municipality.

34At a hearing of the merits, the Tribunal would be tasked with determining whether the proposed land use meets the requisite legislative tests, including whether the ZBA conforms with the OP and, in particular, s. 8.1.7 and/or s. 9.11.3. However, in order to make such a determination, the Tribunal would be required to make a finding with respect to the status of Clopper Road and ownership/title of portions thereof. It would also be required to make a finding with respect to property rights between the Appellant and Mr. Harkness and specifically, whether the driveway to the subject property crosses lands owned by Mr. Harkness and/or the MNRF. It is well settled that the determination of legal title is not within the jurisdiction of the Tribunal but rather, the Superior Court of Ontario.

35The Tribunal is a creature of statute and is not empowered to make findings on issues which lie outside of its jurisdiction. On the totality of the evidence, arguments and authorities before it, the Tribunal finds the appeal, as it currently sits, is premature and has no reasonable prospect of success absent a determination on the aforementioned issues of ownership/title and roadway status. Accordingly, the Township’s Motion to dismiss is granted.

ORDER

36UPON APPEAL to this Tribunal by Brad Billings of a decision of the Township of Sioux Narrows-Nestor Falls to deny an application for a Zoning By-law Amendment;

37AND UPON MOTION to this Tribunal by the Township of Sioux Narrows-Nestor Falls and Peter Harkness for an Order dismissing the appeal under section 34(25) of the Planning Act and/or section 19 of the Ontario Land Tribunal Act, and after the hearing of the motion,

38THE TRIBUNAL ORDERS that the appeal by Brad Billings is dismissed.

“S. Braun”

S. Braun

MEMBER

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

Footnotes

1. 1R.S.O. 1990, c. P.13, as amended.
2. 2S.O. 2021, c.4, Sched. 6.
3. 3R.S.O. 1990, c. P.43, as amended.
4. 4R.S.O. 1990, c. R.34, as amended.