Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 30, 2023
CASE NO(S).: OLT-22-004719
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Glencedar Inc.
Subject: Official Plan Amendment
Description: To permit existing built form to be used as new resort/tourist establishment
Property Address: 1297 Kashagawigamog Lake Road
Municipality/UT: Minden Hills/Haliburton
Municipal File No.: PLOZA2021051
OLT Case No.: OLT-22-004719
OLT Lead Case No.: OLT-22-004719
OLT Case Name: Glencedar Inc. v. Minden Hills (Township)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Glencedar Inc.
Subject: Zoning By-law Amendment
Description: To permit existing built form to be used as new resort/tourist establishment
Property Address: 1297 Kashagawigamog Lake Road
Municipality/UT: Minden Hills/Haliburton
Municipal File No.: PLOZA2021051
OLT Case No.: OLT-22-004720
OLT Lead Case No.: OLT-22-004719
Heard: April 26, 2023 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Glencedar Inc. | L. Longo |
| Township of Minden Hills | J. Ewart |
MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN T. MASTORAS AND D. ARNOLD ON APRIL 26, 2023 AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION AND BACKGROUND
1The matter is before the Tribunal as a Settlement Proposal (“Settlement”) between Glencedar Inc. (“Appellant”) with the concurrence of the Township of Minden Hills (“Township”) relating to 1297 Kashagawigamog Lake Road (“Subject Property”) pursuant to an appeal of the Town’s refusal of an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) (together the “Applications”) under s. 22(7) and s. 34(11) of the Planning Act (the “Act”) respectively (the “Appeals”).
2The Subject Lands are used for residential purposes currently with multiple dwellings located thereon. The proposed OPA would redesignate the Subject Lands as “Special Policy Waterfront – OPA 16 and permit a new waterfront commercial (non-residential) use on the Subject Lands. The proposed ZBA would rezone the Subject Lands from Shoreline Residential (SR) to Recreation Commercial Exception Twenty-One (C3-21) with site-specific exemptions pertaining to the range of permitted uses, lot area and coverage, frontage, buffers and height.
3Counsel for both Parties, informed the Tribunal that ongoing settlement discussions were successful, and that following an April 6, 2023, Township Council (“Council”) meeting in the interim period between the previous Case Management Conference (“CMC”) and this hearing, the Parties had agreed to a Settlement of the Appeals.
4Regarding the Participant, Lake Kashagawigamog Organization (“LKO”), the Tribunal is in receipt of written confirmation from the LKO Board of Directors authorizing Jan Gerrow to appear on behalf of the LKO.
5An Affidavit of notice was previously identified entered as Exhibit 1 in this proceeding at the CMC on April 3, 2023. A witness statement signed and dated April 19, 2023, by Rian Allen was entered into evidence as Exhibit 2, and the proposed OPA and the ZBA as Exhibits 3 and 4 respectively.
ISSUES
6When adjudicating such appeals, the Tribunal must determine whether the proposed amendments specific to this Subject Property:
i. are consistent with policy statements issued by the Minister, which in this case is the Provincial Policy Statement, 2020 (“PPS”).
ii. conforms with applicable official plans which in this case, includes the County of Haliburton Official Plan 2007 (“COP”) and Township of Minden Hills Official Plan 2014 (“TOP”); and,
iii. represent good planning.
7In making a determination, the Tribunal must also have regard for matters of Provincial interest set out in s. 2 of the Act and have regard to the information and materials that Council received in relation to the matters under s. 2.1(2) of the Act.
EVIDENCE
8At the Hearing, the Appellant called one witness, Mr. Allen, who was qualified by the Tribunal to provide expert opinion land use planning evidence. Mr. Allen’s Curriculum Vitae and Acknowledgement of Expert’s Duty dated March 24, 2023 are found at Exhibits A and B respectively of Exhibit 2 in evidence at this proceeding, being Mr. Allen’s witness statement.
9Through his testimony, Mr. Allen provided a general outline of the history of the Subject Property and noted that it is approximately two acres, with a frontage of 76.4 metres (“m”) along a class C public municipal road and a shoreline frontage of approximately 58.5 m. All buildings are one storey in height, the site has no municipal services, and a new septic system was installed in 2019 to replace an old failing system and the existing structures located on the property include:
four dwellings
one sleeping cabin
one boathouse
one garage; and,
one dock.
OFFICIAL PLAN AMENDMENT (“OPA”)
10Mr. Allen further testified that the purpose of the OPA is to permit a new waterfront commercial use (non-residential use) on Kashagawigamog Lake. The subject lot is currently used for residential purposes and contains multiple dwellings, a sleeping cabin and is proposed to be converted into a Tourist Establishment/Resort with a total of 17 bedrooms and dining facilities (restaurant). No new buildings or structures are proposed.
11Mr. Allen also testified that the Subject Property is in an area that is characterized by shoreline residential, rural, and commercial uses including a tourist resort, restaurant, and a vacant general store. Several community uses are also present (i.e. Ingoldsby United Church and Ingoldsby Cemetery), the Ingoldsby Transfer Station, and the site of the former Ingoldsby Post Office. Several photographs were also submitted in Exhibit 2 with one dating back to approximately 1950, and others with more current, upgraded existing structures, including a restored post house building and an adjacent stream separating the site from a shuttered neighbourhood store.
12Regarding the history of the Applications, Mr. Allen testified that the process began with an initial submission in June 2021, followed by the statutory public meeting on December 9, 2021, whereby the Council deferred its decision and requested further information and analysis from both the Applicant and Planning staff. Council considered the matter again on June 9, 2022, which included a peer review of the Lake Impact Assessment, a response to the Peer review, a revised but unchanged Planning Justification Report and a response to public submissions to Council.
13The matter was again deferred to an August 15, 2022 Council meeting, with a request for additional information including a sewage system capacity analysis and review, which fully and carefully addressed the phosphorus lake level concerns, following the 2019 new septic system installation. The Peer reviews and Stormwater and Vegetated Buffers (pg. 31-32) analysis also received Planning staff support with recommendations to approve and adopt the Applications at the August 2022 Council meeting. Council received the Planning staff as information, and notwithstanding this supplemental information, the matter was refused with no additional rationale provided to the Appellant.
14In summary, Mr. Allen opined that regarding concerns from the public, he believed that his Planning Justification Reports adequately and satisfactorily address the issues and concerns expressed during the public consultation process, which, in his opinion, exceeded the minimum statutory requirements of the Act. Accordingly, his support of the OPA and ZBA specific to this site remained unchanged.
Provincial Policy Statement 2020 (“PPS”)
15Mr. Allen opined that the Applications are consistent with the PPS. The Subject Property is located within the “Rural Area” as defined by the PPS. As such, the relevant policies that apply to the Applications were referenced as Sections 1.1.5 “Rural Lands” which states in part:
-1.1.5.2 On Rural Lands permitted uses are g) other rural land uses.
-1.1.5.3 Recreational, tourism and other economic opportunities should be promoted.
-1.1.5.4 Development that is compatible with the rural landscape and can be sustained by rural service levels should be promoted.
-1.1.5.5 Development shall be appropriate to the infrastructure, which is planned or available, and avoid the need for the unjustified and/or uneconomical expansion of this infrastructure.
16Moreover, Section 2.1 of the PPS applies to the Subject Property and requires:
-2 2.1.1 Natural features and areas shall be protected for the long term.
17Mr. Allen opined that the proposed re-development of the Subject Property as a Tourist Establishment/Resort is consistent with the PPS as it contemplates tourism and economic activities on Rural Lands, the accommodation capacity will not change from the existing buildings’ capacity and the “existing character of the property will be maintained.” Furthermore, the proposed development will utilize on-site water and sewage services including a new septic system, which will protect water quality and the environment by reducing phosphorus inputs.
County of Haliburton Official Plan 2007 (“COP”) and Township of Minden Hills Official Plan 2014 (“TOP”)
18Mr. Allen testified that the Subject Property is designated “Rural Lands” and within the Ingoldsby “Community.” Further, at Schedule L – Natural Heritage of the COP, Kashagawigamog Lake is identified as being “At Capacity.” Mr. Allen opined that Section 3.4 of the COP provides that a Tourist Establishment/Resort is permitted in the Rural Lands designation. Further, Sections 3.1 and 3.2 of the COP states that rural development is to be compatible with the rural landscape, provide economic and employment opportunities, have consideration for the environment and natural features and avoid the uneconomical expansion of municipal services. Mr. Allen opined that the proposed development can be serviced using the existing on-site water and sewage service and does not require the expansion of municipal services. Mr. Allen opined that:
The proposed commercial use of the subject lands will protect and enhance the integrity and function of Natural Heritage Features. More specifically, the water quality of Kashagawigamog Lake will be protected by expanding the existing shoreline buffer, through the completion of a Lake Impact Assessment which confirms no net increase of phosphorus loading into the lake, through the installation of a new septic system, through the use [of] gravel parking areas and laneways that reduce storm water runoff, and by maintaining the low density of development on the site.
19Mr. Allen added that “the existing shoreline buffer on Kashagawigamog Lake will be maintained and enhanced and the forested open space character of the landscape will be preserved.” In summary, Mr. Allen opined that the Applications conform to the COP.
20Regarding the TOP, Mr. Allen testified that the Subject Property is located on Kashagawigamog Lake, which is identified as an “At Capacity Lake” on Schedule B – Natural Heritage Features and no other Natural Heritage Features or Constraints are identified for the Subject Property. Mr. Allen testified that the TOP does not currently conform to the COP, and specifically with respect to the TOP’s designation of Ingoldsby as a settlement area and, as the COP prevails pursuant to the Act, the TOP’s settlement area policies do not apply with respect to the Applications to the extent of conflict with the COP.
21Section 1.3.1.1 of the TOP states that evaluation of environmental impact is a significant consideration and Section 1.3.1.9 provides that land use on the shores of rivers, lakes and streams shall be limited to low density residential and low intensity recreation-based uses. In this regard, Mr. Allen opined that Applications conform to these TOP policies as the proposed change of use from residential to commercial will occur on the existing lot and within the existing buildings and a Lake Impact Assessment has been completed, which concludes that there will be a net reduction of phosphorus to the Lake from the Subject Property. Additionally, this Assessment concluded that there will be no adverse impact on the Lake or related Lake Trout habitat as required in accordance with the TOP policies including those relating to Water Quality and the Lake’s designation as Lake Trout lake.
22Mr. Allen opined that the Applications were improved by the removal of the old septic system and the installation of the new septic system. Additionally, the Lake Impact Assessment is adequately addressed and noted for the benefit of the Tribunal, that the existing septic is almost at maximum capacity currently, which would further limit any additional capacity efforts beyond 17 units on site (pg. 11, para. 70).
23Moreover, no changes are needed or will occur regarding Kashagawigamog Lake Road which provides access to the Subject Property. Mr. Allen opined that the proposed development would provide new employment opportunities and provide economic activity in conformity with Section 1.3.3.2 and 1.3.3.3 of the TOP.
24Mr. Allen asserted that site access, privacy, and traffic, met all Public Works staff requirements and confirmed that existing access was acceptable, referencing the traffic consultant’s submissions in the Planning report.
25Mr. Allen’s testimony referenced his witness statement (pg. 34-53) which expands in detail on the numerous requirements and objectives of the COP and TOP, including Rural Lands, Community Directions, Policies, Permitted Uses, Shorelines, Stormwater Management, Water Bodies, Economic Development, Growth Management, Community Character, Natural Environment, Lake and Shoreline Areas, Waterfront, Wellness and Quality of Life, Water Quality, Servicing and Access, Shoreline Protection, Commercial Uses, Waterfront Design, Waterfront Landscape, Tree Preservation, and Waterfront Servicing.
Zoning By-law Amendment (“ZBA”)
26Regarding the ZBA, there exists a maximum lot coverage 12%, with the existing one-storey height restriction including a shoreline buffer length and depth that must be maintained, and existing setbacks which should be recognized in ZBA, also confirmed through the Site Plan. While the existing coverage is 10.4%, this adjusted 12% maximum coverage in the Settlement, in Mr. Allen’s opinion, may allow for a maximum additional 1,000 square feet that provides some flexibility for minor ancillary uses in the future, such as a small storage or greenhouse garden.
27Mr. Allen also opined that the proposed ZBA would rezone the subject lands from Shoreline Residential (SR) to Recreational Commercial (C3) and provide certain site-specific exceptions including to address setbacks of existing buildings as referenced in Schedule “A” to By-law No. 23-55.
[Section 2](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) (“Act”)
28Regarding public concerns, Mr. Allen summarized the Participants’ statements submitted to the Tribunal, including two neighbouring landowners and the LKO, noting that the principal issues raised were related to traffic, privacy, noise, Official Plan criteria, servicing and septic system, findings of the Lake Impact Assessment, protection of water quality and the environment, suitability of the site, and the impact of any precedence of a decision to allow the Appeals.
29Mr. Allen also opined that Peer review comments were addressed effectively in the engineering analysis and there were no remaining Peer reviewer concerns. He asserted that a professional engineer had fully reviewed the new 2019 septic system, and the site has been satisfactorily addressed on the issues of concern relating to the impact on water quality. The additional requirement that a phosphorus Lake Impact Assessment review took place and that Ontario Building Code conditions were satisfied requiring a commitment to tree plantings which would enhance the shoreline buffer were also submitted as evidence.
30In conclusion, Mr. Allen opined that following his review of the Settlement, and the proposed OPA and ZBA as per the attachments referenced in his witness statement, it is his professional opinion that the settled OPA and ZBA have appropriate regard for the matters of Provincial interest as set out in s. 2 of the Act, are consistent with the PPS, conform with the TOP and COP, and represent good land use planning.
ANALYSIS AND DISPOSITION
31Based on the uncontroverted witness testimony and evidence of Mr. Allen, the Tribunal finds that the Applications are consistent with the PPS, conform to the COP and the TOP, have appropriate regard for the matters of Provincial interest set out in s. 2 of the Planning Act and constitutes good land use planning. In so finding, the Tribunal has had regard for the decisions of the Council including the decision to approve the Settlement that includes the proposed OPA and ZBA.
32Finally, the Tribunal believes that the Settlement properly reflects ongoing upgrades to the Subject Property, provides particular attention to environmental considerations, establishes reasonable limits on future development, and creates a long-term economic benefit to the community.
ORDER
33THE TRIBUNAL ORDERS that the Official Plan Amendment appeal is allowed, in part and the Official Plan for the Township of Minden Hills is amended as set out in Attachment 1 to this Order.
34THE TRIBUNAL ALSO ORDERS that the Zoning By-law Amendment appeal is allowed, in part, and By-law No. 06-10, as amended, of the Township of Minden Hills is hereby amended as set out in Attachment 2 to this Order. The Tribunal authorizes the Municipal Clerk to format and assign such numbers to this instrument as may be necessary for the Township’s record keeping purposes.
“Steven T. Mastoras”
STEVEN T. MASTORAS
MEMBER
“D. Arnold”
D. ARNOLD
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
Amendment No. 16
to the Official Plan for the Township of Minden Hills
Affecting certain land located in Part of Lots 19 & 20, Concession 2, geographic Township of Minden now in the Township of Minden Hills, as illustrated on the attached schedules
Statement of Components
PART "A" is the preamble to Amendment No. 16 to the Official Plan for the Township of Minden Hills and does not constitute part of this amendment. It provides general introductory information on the purpose, location and basis of the amendment.
PART "B" consisting of the following text and map (Schedules "A") constitutes Amendment No. 16 to the Official Plan for the Township of Minden Hills.
Part A – The Preamble
Purpose
The purpose of this Official Plan Amendment is to re-designate subject lands as ‘Special Policy Waterfront –(OPA 16)’
Location
The lands subject to the amendment comprise Part Lots 19 & 20, Concession 2, Geographic Township of Minden, now in the Township of Minden Hills, County of Haliburton. The property consists of a total of approximately .825 hectares (2.03 acres) in area with approximately 58.5 metres (191.9 feet) of frontage on Lake Kashagawigamog.
Basis
The property in question is the subject of applications filed on behalf of Glencedar Inc. in order to recognize development of the lands as a Tourist Establishment/Resort.
Part B – The Amendment
Introductory Statement
The intention of this part of the document entitled Part B – The Amendment, which consists of the following text and Schedule ‘A’, constitutes Amendment No. 16 to the Official Plan of the Township of Minden Hills.
Details of the Amendment
The Official Plan of the Township of Minden Hills is hereby amended as follows:
Schedules ‘A’ & ‘A3’ – Land Use is hereby amended by changing the designation on lands located in Part Lot 19 & 20, Concession 2, geographic Township of Minden, from ‘Rural Settlement Area’ to “Special Policy Waterfront Five” as shown on Schedule “A”, attached hereto and forming part of this amendment.
Section 3.2.8 (Special Policies) of the Township of Minden Hills Official Plan is hereby amended by adding a new section, namely 3.2.8.5 which shall read as follows:
“Special Policy Waterfront Five (OPA16) on lands located in Part Lots 19 and 20 Concession 2 (Minden), a Tourist Establishment/Resort together with support uses shall be permitted”
Implementation and Interpretation
Amendment No. 16 to the Official Plan of the Township of Minden Hills shall be implemented and interpreted in accordance with the respective policies of the Official Plan of the Township of Minden Hills.