Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 12, 2023
CASE NO(S).: OLT-22-004427
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant: 1105702 Ontario Ltd.
Appellant: 2596701 Ontario Inc.
Appellant: ClubLink Corporation ULC
Subject: Zoning By-law
Description: By-law No. 2022-97 to establish a Community Planning Permit By-law
Reference Number: BL 2022-97
Property Address: City-wide
Municipality/UT: Huntsville/Muskoka
OLT Case No: OLT-22-004427
OLT Lead Case No.: OLT-22-004427
OLT Case Name: ClubLink Corporation ULC v. Huntsville (Town)
Heard: April 25, 2023 by Video Hearing (“VH”)
APPEARANCES:
| Parties | Counsel |
|---|---|
| 2596701 Ontario Inc. (“Appellant”) | Andy Margaritis |
| Town of Huntsville (“Town”) | John Ewart |
MEMORANDUM OF ORAL DECISION DELIVERED K.R. ANDREWS AND A. SAUVE ON april 25, 2023 AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1This is a settlement hearing concerning appeals originally initiated by ClubLink Corporation ULC, 1105702 Ontario Ltd., and 2596701 Ontario Inc. The appeals, all being site specific, arose following the Town’s passing of By-law No. 2022-97, establishing a new Community Planning Permit by-law (the “CPP By-law”). The CPP By-law purports to implement the policies of the Town’s Official Plan (“Town OP”) through a Community Planning Permit System which can address zoning amendments, minor variances and site plan agreements under one application.
2The present hearing deals with the proposed settlement of the remaining appellant, 2596701 Ontario Inc. (the “Appellant”). A previous hearing of the Tribunal settled the appeals of the other two original appellants, ClubLink Corporation ULC and 1105702 Ontario Ltd. That decision was issued January 31, 2023 - ClubLink Corporation ULC v Huntsville (Town), 2023 CanLII 7740 (ON LT).
3Jim Dyment, the Appellant’s planning expert, duly qualified by the Tribunal, provided uncontested opinion evidence in the area of land use planning in support of the proposed Settlement.
background
4Mr. Dyment explained that he was retained by the Appellant in June 2017 to assist in the preparation of development plans for Langmaid’s Island (the “Island”) and Seagull Island, both near the westerly limit of the Lake of Bays (the “Lake”), within the Township of Lake of Bays (the “Township”), in the District of Muskoka (the “District”).
5He further testified that the Appellant also owns lands located near the westerly limit of the Lake, within the Town, known municipally as 3933 and 4215 South Portage Road (individually, the “3933 Landing” and the “4215 Landing”; collectively the “Landings”).
6The 3933 Landing is currently vacant but was historically intended to be used for gaining access to the Island. Meanwhile, the 4215 Landing contains a tourist establishment containing several cottages (known locally as Still Bay Resort).
7To facilitate the Island’s proposed development, the Appellant filed applications for:
a. amendments to the Township’s Official Plan (“Township’s OP”) and Development Permit By-law;
b. amendments to the Town’s Zoning By-law to provide mainland access to the Island by way of the Landings; and,
c. District approval of a Draft Plan of Subdivision (“Draft Plan”) for the Island and the Landings.
8All of the Island applications were appealed to the Tribunal as a result of the Municipalities’ failure to make decisions.
9Mr. Dyment explained that the Tribunal hearing related to the Island applications was split into two phases. The first phase was heard February 1 to March 1, 2021 and dealt with the Township and Town ZBA applications. The second phase, yet to be heard, will deal with the proposed Draft Plan. The Landings represent two separate blocks within the proposed Draft Plan that is currently subject to an appeal before the Tribunal (under Case No.:OLT-22-002969).
10The Tribunal issued its decision in relation to Phase 1 on September 12, 2022 (“Phase 1 Decision”; Langmaid’s Island Corporation v Lake of Bays (Township), 2022 CanLII 85607 (ON LT)). In the Phase 1 Decision, the Tribunal approved the Township and Town ZBA applications.
11Mr. Dyment stated that one of the issues raised by the Town at the Phase 1 hearing was the potential impact of allowing the waterfront landing use to be established at the 4215 Landing property while ensuring the viability of the existing tourist resort. As a result of this concern, considerable work was undertaken as part of the Phase 1 hearing to develop conceptual plans for the Landings.
12Mr. Dyment then explained that, prior to the Tribunal’s release of the Phase 1 Decision, the Town enacted the CPP By-law which repealed Town By-law No. 2008-66P (the subject of the Town ZBA applications of Phase 1). Mr. Dyment confirmed that the CPP By-law introduced a number of new regulations/standards that would affect the proposed development of the Landings.
13Consequently, the Appellant is now seeking relief on consent to essentially re-instate a number of the provisions of former Town By-law No. 2008-66P, as they apply to the Landings, pursuant to the conceptual plans for those properties as prepared by the Appellant.
14Mr. Dyment stated that the requested relief will also establish parking requirements for the Landings as a means to implement the Tribunal’s Phase 1 Decision (a requirement for two parking spaces for each Island lot plus one visitor parking space for every three Island lots). Furthermore, Mr. Dyment stated that the proposed revisions to the CPP By-law will provide greater certainty regarding the future use of the 4215 Landing property as a tourist resort, making it a permitted use rather than a ‘discretionary use’ under the appealed CPP By-law. Mr. Dyment stated that the requested relief will also provide a mechanism to reduce the proposed 20-metre (“m”) vegetative buffer adjacent to a stream that bisects the 4215 Landing property to 15 m, subject to meeting certain conditions to ensure that the ecological integrity of the stream will be maintained or enhanced to the Town’s satisfaction.
Policy EVIDENCE
15Mr. Dyment opined that the “principle of development for the Island in the Township has been established, as have the principles of development of the Landings, through the Tribunal approved Township and Town Applications”.
16The Tribunal notes that the Tribunal’s Phase 1 Decision accepted the Appellant’s expert evidence (including Mr. Dyment’s opinion), finding that the proposed Island development has appropriate regard for s. 2 of the Act, is consistent with the Provincial Policy Statement (“PPS”), conform to the District Official Plan (“District OP”), the Township OP, the Town OP and otherwise meets all of the requisite planning policies of the Province, District, Township, Town, and represents good planning (see especially paras. 35, 43, 50, 55, 74, 83 and 195 – of Langmaid’s Island Corporation v Lake of Bays (Township), 2022 CanLII 85607 (ON LT)).
17Regarding the current Appeal, Mr. Dyment stated that the 4215 Landing development supports an active and existing tourist resort (Still Bay Resort) and, apart from the technical amendments related to adding the waterfront landing as a permitted use and providing parking regulations that implement the Tribunal’s Phase 1 Decision, the requested relief is intended to support the viability, enhancement and re-development of the Still Bay Resort.
18Mr. Dyment drew the Tribunal’s attention to sections 1.1.4.1(g) and 1.1.5.3 of the PPS, noting that the Landings are in a rural area and support and promote recreational uses and tourism, consistent with these sections of the PPS.
19Mr. Dyment also drew the Tribunal’s attention to sections F.1 (b) and (e), F.6, F.6(d), F.7(a)iii and J.4.2(i) of the District OP, opining that the development conforms with the objectives of these policies to support the maintenance and enhancement of the tourist industry in the District. Regarding the Town OP, Mr. Dyment opined that the development, as facilitated by the present Appeal, conforms with sections 1.14, 1.17, 1.18 and 1.19 to similarly support the maintenance and enhancement of tourist commercial uses.
20As it relates to 3933 Landing, Mr. Dyment explained that the requested relief of the present Appeal is purely technical in nature and designed to import the permissions granted through the Phase 1 Decision; namely, to permit only a waterfront landing on the property and provide consistency and clarification regarding parking requirements. There are otherwise no policy issues related to this amendment.
21With respect to the 4215 Landing property, the requested relief of the present appeal proposes to:
a. permit a Tourist Establishment as a permitted use (it is currently a “discretionary use” in the CPP By-law). Mr. Dyment opined that listing the use as a permitted use provides greater certainty and this approach more closely reflects the PPS, District and Town OP policies that strongly support these uses. He stated that the enhancement of the existing resort will still require a CPP By-law permit and full planning review under the provisions of the CPP By-law and the Town’s Official Plan;
b. include Waterfront Landing as a permitted use. Mr. Dyment stated that this will confirm elements of the Phase 1 Decision and Town By-law No. 2021-122 (OLT) prepared by the Town following the decision;
c. utilize the provisions for extending the side lot lines into the Lake to determine the setback for docks that existed in former Town By-law No. 2008-66P. Mr. Dyment stated that the proposed regulation in the CPP By-law extends the lot lines as a straight-line projection of the lot line and this has the effect of significantly reducing usable frontage where the lot line meets the shoreline on an angle;
d. revise the parking regulations to be consistent with and implement the Phase 1 Decision related to the Town ZBA application;
e. revise the provisions for a pathway to the proposed docks in the conceptual plan through the vegetated buffer. Mr. Dyment stated that this is necessary to reflect the existing conditions and ensure that the waterfront landing use can function by enabling vehicular access to the waterfront;
f. provide relief from the 20 m vegetative buffer requirement from the stream that bisects the 4215 Landing, subject to ensuring that a proposed 15 m buffer provides an enhanced level of protection for the stream than what currently exists. Mr. Dyment stated that this matter can be addressed in a future CPP By-law permit application for any re-development of the existing resort; and
g. recognize the existing side yards where existing buildings do not meet the required 12 m side yard from adjacent residential use. Mr. Dyment stated that there are currently two resort cottages that fall entirely within the 12 m setback and a third resort cottage that partially encroaches on the setback.
22In summary, Mr. Dyment opined that the requested relief to the CPP By-law, advanced on consent by the remaining Parties, will assist in implementing the Tribunal’s Phase 1 Decision regarding the Landings. He opined that the settlement will provide greater certainty with respect to the regulations under which the existing resort use on the 4215 Landing property will be maintained and enhanced, these amendments will implement the goals and objectives of the PPS, District and Town OPs and it represents good planning.
23Based on Mr. Dyment’s evidence, the Tribunal finds same.
ORDER
24THE TRIBUNAL ORDERS that the appeal against Community Planning Permit By-law No. 2022-97 of the Town of Huntsville is allowed in part and the Tribunal directs the Municipality to amend Community Planning Permit By-law No. 2022-97 as set out in Attachment 1 to this Order (“Amendments”). In all other respects, the Tribunal Orders the appeal is dismissed. The Tribunal authorizes the Town clerk to format the Amendments as may be necessary, and to assign amendment/exception numbers to the Amendments for record keeping purposes.
“K.R. Andrews”
K.R. ANDREWS
MEMBER
“A. Sauve”
A. SAUVE
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.
ATTACHMENT 1