Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 18, 2023

CASE NO(S).: OLT-22-004069

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 2253100 Ontario Inc.

Subject: Site Plan

Description: To permit the construction of 40 new housekeeping units located in nine new buildings on a Tourist Resort Commercial property

Reference Number: SPA-77/17

Property Address: 1050 Paignton House Road

Municipality/UT: Muskoka Lakes/Muskoka

OLT Case No.: OLT-22-004069

OLT Lead Case No.: OLT-22-004069

OLT Case Name: 2253100 Ontario Inc. v. Muskoka Lakes (Township)

Heard: May 25, 2023, by video hearing

APPEARANCES:

Parties	Counsel/Representative
2253100 Ontario Inc. (the “Appellant”)	L. Longo
Township of Muskoka Lakes (the “Township”)	E. Veldboom

MEMORANDUM OF ORAL DECISION DELIVERED BY G.C.P. BISHOP ON MAY 25, 2023 AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1A merit hearing, scheduled for two days, was to commence today but the Parties informed the Tribunal that a settlement has been reached.

2The Appellant is the registered owner of the resort, locally known as The Rosseau Muskoka Resort and Spa, with a civic address of 1050 Paignton House Road, comprising of approximately 83 acres with roughly 800 feet of the frontage along Lake Rosseau (the “subject property”).

3The subject property contains 201, one-bedroom units and 20, two-bedroom units. The development of the subject property has been through a phasing process. The current Site Plan Appeal focuses on a portion of the subject property, adjacent to a section of the lakefront and envisions the construction of 40 new housekeeping units located in nine new buildings (the “proposal”).

4Although the appeal was not submitted until June 22, 2022, the application for site plan approval was submitted, and the public meeting was held in 2017. On February 15, 2018 the proposal was considered by Township Council and was deferred to allow the Appellant to consider concerns relating to servicing capacity and emergency services.

5Since this time the Village of Minett (the “Village”) was subject to an Interim Control By-law and the subject property is located within the Village. An Official Plan Amendment (“OPA”) was adopted, creating a site-specific policy area, which generally focused on the reduction of development potential mainly on other lands. The Appellant has also lodged an appeal of the OPA.

6Through the OPA, the Appellant is obligated to connect all of the sanitary sewage from the subject property to the, yet to be constructed public sewage treatment plant. The Appellant has an existing privately owned, on-site communal sanitary sewage treatment plant. The settlement in front of the Tribunal allows the Appellant to confirm that this proposal can be serviced by their on-site communal treatment plant through the authorization of an Environmental Compliance Approval issued by the Ministry of Environment, Conservation and Parks or when the District Municipality of Muskoka (the “District”) confirms capacity at the future public treatment facility for connection of the new development, subject of this Appeal. These options resolve the servicing capacity concerns and form part of the settlement agreement through Condition 1 for Site Plan Approval and is as follows:

1. That the Township shall receive: a. written confirmation from the District Municipality of Muskoka that it has allocated sanitary sewage disposal capacity to the development shown in/on the approved Site Plan(s); or b. written confirmation that the development shown in/on the approved Site Plan(s) can be serviced by the existing privately owned, on-site communal sanitary sewage treatment facility; such confirmation shall be in a report prepared by a qualified person which report shall be to the satisfaction of the Township, and/or the District Municipality of Muskoka and/or the Ministry of Environment, Conservation and Parks (MECP); or c. written confirmation that the development will be serviced by an expansion to the on-site communal sanitary sewage treatment facility which expansion has been authorized under an Environmental Compliance Approval issued by the Ministry of Environment, Conservation and Parks (MECP).

7The emergency services issues relate to sufficient water supply for firefighting purposes and proper access to the proposed structures identified as Block 4 and 7 on the Site Plan. Both of these concerns have mechanisms in the settlement agreement to satisfy these concerns and is satisfied through the insertion of Condition 2 for Site Plan Approval and is as follows:

2. That the Township shall receive confirmation from the Township’s Emergency Services Department that: a. sufficient water supply exists for firefighting purposes without the need for additional human intervention at the on-site pumphouse; b. sufficient provisions have been made for Emergency Services Department access to the proposed structures identified as Block 4 and Block 7 on the Site Plan.

8Condition 3 is also inserted to give the Township control over the issuance of a building permit and timing around construction and site alteration pending clearance of Conditions 1 and 2 and reads as follows:

3. That the Owner shall enter into an agreement with the Township pursuant to section 41(7) of the Planning Act, where in the Owner acknowledges and agrees, among other things, that: a. no construction or any site alteration related to the development shown on the approved Site Plan(s) shall commence until such time as Conditions 1 and 2 have been satisfied; and b. the Owner shall not apply for and the Chief Building Official is not obliged to issue a building permit for any buildings or structures shown on the approved Site Plans until such time as Condition 1 and any other applicable law has been satisfied.

OPINION EVIDENCE

9The Tribunal was in possession of the sworn affidavit of Stefan Szczerbak, a Register Professional Planner with 15 years of planning experience in the Public sector with the Credit Valley Conservation Authority, District of Muskoka and the Township of Lake of Bays before joining the private firm of Planscape Inc. in 2016, located in the Town of Bracebridge. Mr. Szczerbak has a depth of planning experience in the local area and is so qualified to give expert opinion evidence, to the Tribunal, in the area of land use planning.

Provincial Policy Statement, 2020 and Planning Act

10Mr. Szczerbak referred to the Planning Act and touched on Section 1 – purpose and Section 2 – matter of provincial interest and focused on subsections 41(4) and 41(7) that list the criteria to be included in plans and drawings, along with providing various conditions for approval of the plans. He stated that proposed settlement and conditions has regard to matters of provincial interest and the Tribunal agrees.

11Section 1 of the Provincial Policy Statement, 2020 recognizes two distinct areas within municipalities, Settlement Areas and Rural Areas. The subject property is located within the Settlement Areas. Permitted uses in Settlement areas include a range of mixed uses, including commercial resort development, subject to a list of criteria. Policy 2.1 addresses Natural Heritage and Mr. Szczerbak is not aware of any significant natural heritage features that have been identified that would be impacted by the proposal. Based on his review, it is his professional opinion that the proposal to permit the additional resort units is consistent with the 2020 Provincial Policy Statement and the Tribunal agrees.

District Municipality of Muskoka Official Plan (“DOP”) and Township of Muskoka Lakes Official Plan (“TOP”)

12Both the DOP and the TOP designate the subject property as a “Special Policy Community Area” and is further designated as a “Resort Commercial” property. These designations permit the existing and further expansion/redevelopment of existing resorts.

13Mr. Szczerbak stated that the DOP acknowledges that the TOP contains the detailed policies for development and redevelopment of existing resorts and referred to the following Policies:

a. DOP – Sections J5.4.1 & J542 provide the policy direction to ensure the tourist commercial, resort development and redevelopment will continue and enhanced to achieve the tourism and economic development objectives within the District of Muskoka.

b. DOP – Section J5.4.3 iii) Minett shall be planned based on development and redevelopment in accordance with the policies of the DMM OP and as detailed in the TML OP;

c. TOP – Section C1.2 recognizes the importance of Minett as a significant tourist commercial growth node and encourages development that will contribute to the success of Minett as a Resort Village destination and a waterfront service node.

d. TOP – Section C1.2.3.2 fosters the growth and redevelopment of existing tourist resorts and establishments.

e. TOP – Section C1.4.1.1 states that the uses permitted in Minett include tourist commercial (resorts, restaurants, hotels, etc.) among other related and complementary uses.

14Mr. Szczerbak also stated that the DOP and TOP contain several policies that are specifically related to Site Plan matters and are as follows:

a. DOP – Sections J5.4.3 viii) and x) list the development principles required to conserve natural vegetation and provide vegetation buffers in order to preserve open space, shorelines and the recreational character of the area; and require detailed stormwater management plans prior to any site alteration or development.

b. TOP – Sections C1.4.2.2 states that conservation of the natural landscape and retention or restoration of vegetation, particularly along the shoreline, will be encouraged.

c. TOP - Section C1.4.2.3 states that stormwater management facilities will make use of the natural landscape to the greatest extent possible. Promotion of lake system health shall be a key consideration of all stormwater programs.

d. OP - Section C1.4.2.4 states that landscaping shall be compatible with the natural Muskoka character and used to ensure that natural amenities soften the impact of built form. Native species shall be used in landscaping to the extent that is practical.

e. TOP - Section C1.4.2.5 states that dark sky lighting shall be used to preserve the darkness of the night sky.

15There is direction in the DOP and TOP with respect to the use of existing private services, provided these existing services can accommodate any proposed new development or a connection to municipal services is available. Also, there is direction to ensure that any proposed development can be supported by emergency services as well, and these Policies are as follows:

a. DOP – Section J5.4.3.c) until such a time as municipal water and sewer services are commissioned, the development of commercial uses, as identified in detail in the Township Official Plan servicing policies may proceed on the basis of a private water supply and sewage disposal system. In addition, minor expansions to existing development elsewhere in the portion of the servicing schedule to the Township Official Plan identified as Full Service Area may be permitted on the basis of a private water supply and sewage disposal system. When municipal water and sewer services are available connection to these services shall be compulsory.

b. TOP – Section C1.4.4.7 contains the same policy direction of J5.4.3 c) of the DMM OP.

c. TOP – Section C1.6.1.2 states that development shall only proceed if it is supported by appropriate servicing and municipal facilities including required emergency services.

16It is Mr. Szczerbak’s opinion that the proposed development, with the addition of the proposed conditions, conforms to the DOP and the TOP and the policies listed in paragraphs 13, 14 and 15 above.

Township of Muskoka Lakes Zoning By-law 2014-14 (“TZBL”)

17Mr. Szczerbak stated that the subject property is zoned Community Resort Commercial (C1CA1, C1CA2 and C1CA3) in the TZBL and has also been subject to a number of site-specific amendments to the TZBL over the years. These include amongst others, the following:

• By-law 97-173: Rezoned the property to permit a commercial resort and included detailed development requirements, holding provisions, gross floor area, lot coverage, unit density, setbacks, etc.

• By-law 2003-101: Amended maximum permitted gross floor area, reduced the minimum side yard setback, permitted housekeeping units in addition to accommodation units, and increased the maximum height of two resort buildings; and

• By-law 2008-128: Increased the maximum dock length and maximum dock width.

18Mr. Szczerbak stated that he reviewed the proposal against the TZBL and the zoning provisions of the various site-specific by-law amendments and confirmed that the proposed development complies with all the applicable zoning provisions.

19Mr. Szczerbak also stated that his planning analysis was very similar to the review conducted by staff as documented in their staff report February 15, 2018 that is contained within the appeal record.

20Mr. Szczerbak summarized his evidence and opined that the settlement agreement in front of the Tribunal has appropriate regard for: matters of provincial interest, as set out in the Planning Act; is consistent with the Provincial Policy Statement, 2020; Conforms to the District Municipality of Muskoka and the Township of Muskoka Lakes Official Plans; follows the special policies related to the Village of Minett; follows the site-specific zoning provisions for the subject lands and; represents good planning.

ANALYSIS AND FINDINGS

21The Tribunal was presented with series of plans and reports relating to the Site Plan including, but not limited to: overall Site Plan; Grading Plan; Planting Plan; Lighting Plan; General Servicing Plan; Grading, Stormwater and Construction Mitigation Plan, including Construction Notes and Details and; Architectural Plans for all nine proposed buildings on each of the nine Blocks. The Tribunal notes that none of these plans have changed since the latest revisions that took place generally from November of 2017 to February of 2018. These are the plans upon which the approval of this Tribunal is requested by the Parties.

22The Tribunal has no issue with the proposed expansion to the existing operation of this Resort Commercial property and finds that this proposal: has appropriate regard to matters in the Planning Act; is consistent with the Provincial Policy Statement, 2020; conforms to both the Official Plan of the District Municipality of Muskoka and of the Township of Muskoka Lakes and the special policies relating to the Village of Minett; follows the general and site-specific zoning provisions for the subject property; and represents good planning.

23The Tribunal recognizes that the two main issues of servicing capacity and emergency services concern can be addressed through imposing the suggested conditions listed in paragraphs 6, 7 and 8 above.

24Through Condition 2, the Appellant must satisfy the Township’s Emergency Services Department that there is sufficient water supply for firefighting purposes without the need for additional human intervention at the on-site pumphouse, and this Department is also satisfied that sufficient provisions are in place for their access to Blocks 4 and 7, on the Site plan.

25There has been a compromise by the Parties on the issue of servicing capacity. Section J5.4.3.c) of the DOP, in simple terms, states that development can occur on private water and sewer systems, where municipal water and sewer systems are not available, but goes on to state that: “…When municipal water and sewer services are available connection to these services shall be compulsory.” In the case of a large resort complex, such as this, that has been in existence for many years, the question becomes the issue of when to complete further expansion, given the timing around the potential for municipal water and sewer to come on line and the necessity to then connect.

26The only concern that the Tribunal has is the protection, safety and welfare of the public. The further expansion of the subject property, as proposed here through inclusion of Condition 1 above, involves either the expansion of the existing private facilities or connection to a future municipal service. The Tribunal is satisfied that this condition affords this protection and is in the public interest.

ORDER

27THIS MATTER having been scheduled for a two-day hearing commencing May 25, 2023;

28AND THE TRIBUNAL having been advised that the Parties have reached a settlement on this Site Plan Appeal;

29AND THE TRIBUNAL having received the affidavit and viva voce evidence of Stefan Szczerbak, MCIP, RPP, whom the Tribunal accepts as an expert qualified to give opinion evidence in the field of land use planning, on behalf of the Applicant/Appellant;

30AND THE TRIBUNAL having received and reviewed the Settled Site Plan Conditions attached hereto as Appendix “A”;

31AND THE TRIBUNAL having been satisfied that resolving this Appeal subject to the Conditions attached hereto as Appendix “A” constitutes good planning and has had appropriate regard to matters of Provincial interest, is consistent with the 2020 Provincial Policy Statement and conforms to the District Municipality of Muskoka Official Plan and the Township of Muskoka Lakes Official Plan;

32AND THE TRIBUNAL having considered the tendered evidence and submissions of the Parties, being 2253100 Ontario Inc. and the Township of Muskoka Lakes;

33THE TRIBUNAL HEREBY ORDERS THAT:

1. The appeal filed by the Applicant/Appellant in OLT File No. OLT-22-004069 is hereby granted in part.
2. The Site Plan and Conditions attached hereto as Appendix “A” are approved.
3. This is the Tribunal’s Final Order.
4. No costs shall be awarded in respect of this Order.
5. The Tribunal may be spoken to concerning issues arising with the implementation of this Order.

“G.C.P. Bishop”

G.C.P. BISHOP ALTERNATE CHAIR

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.

APPENDIX “A”

Site Plan Approval Conditions

The Site Plan(s), being the plans referenced in Schedule “A” to this Site Plan Approval Certificate, are hereby approved subject to the following condition(s):

1. That the Township shall receive: a. written confirmation from the District Municipality of Muskoka that it has allocated sanitary sewage disposal capacity to the development shown in/on the approved Site Plan(s); or b. written confirmation that the development shown in/on the approved Site Plan(s) can be serviced by the existing privately owned, on-site communal sanitary sewage treatment facility; such confirmation shall be in a report prepared by a qualified person which report shall be to the satisfaction of the Township, and/or the District Municipality of Muskoka and/or the Ministry of Environment, Conservation and Parks (MECP); or c. written confirmation that the development will be serviced by an expansion to the on-site communal sanitary sewage treatment facility which expansion has been authorized under an Environmental Compliance Approval issued by the Ministry of Environment, Conservation and Parks (MECP).

2. That the Township shall receive confirmation from the Township’s Emergency Services Department that: a. sufficient water supply exists for firefighting purposes without the need for additional human intervention at the on-site pumphouse; b. sufficient provisions have been made for Emergency Services Department access to the proposed structures identified as Block 4 and Block 7 on the Site Plan.

3. That the Owner shall enter into an agreement with the Township pursuant to section 41(7) of the Planning Act, where in the Owner acknowledges and agrees, among other things, that: a. no construction or any site alteration related to the development shown on the approved Site Plan(s) shall commence until such time as Conditions 1 and 2 have been satisfied; and b. the Owner shall not apply for and the Chief Building Official is not obliged to issue a building permit for any buildings or structures shown on the approved Site Plans until such time as Condition 1 and any other applicable law has been satisfied.

Schedule A – Approved Plans

A. The Plans prepared by MDP Landscape Consultants Limited, Project: Red Leaves, Including:

1. Overall Site Plan (Context Plan), Drawing Number L-1, Dated February 12, 2018;
2. Hardscape Plan, Drawing Number L-1, Dated January 24, 2018;
3. Grading Plan, Drawing Number L-2, Dated January 24, 2018;
4. Planting Plan, Drawing Number L-3, Dated January 24, 2018;
5. Lighting Plan, Drawing Number L-4, Dated January 24, 2018;
6. Landscape Details, Drawing Number L-5, Dated January 24, 2018.

B. The Plans prepared by Pinestone Engineering Ltd., Project No. 17-11318-M, Red Leaves Phase III including:

1. General Servicing Plan, Drwg. No. SERV-1, Revision 3, dated 18.02.06;
2. Grading, Stormwater and Construction Mitigation Plan, Drwg. No. GP-1, Revision 3, dated 18.02.06;
3. Grading, Stormwater and Construction Mitigation Plan, Drwg. No. GP-2, Revision 3, dated 18.02.06;
4. Construction Notes and Details, Drwg. No. DET-1, Revision 3, dated 18.02.06. Including Letter Update and Letter Addendum, dated February 2, 2018 and October 27, 2017.

C. The Plans prepared by Michael Pettes Architect Inc., Job 17-580-1, Rosseau Cottages:

1. Block 1 East Elevation, Lake Side, Sheet A.5.1.2 Revision 3, dated 11.29.17
2. Block 2 North Elevation, Street Side, Sheet A.5.2.1 Revision 2, dated 11.29.17
3. Block 2 South Elevation, Street Side, Sheet A.5.2.2 Revision 2, dated 11.29.17
4. Block 3 North Elevation, Street Side, Sheet A.5.3.1 Revision 2, dated 11.29.17
5. Block 3 South Elevation, Street Side, Sheet A.5.3.2 Revision 2, dated 11.29.17
6. Block 4 East. South-West, South Elevations, Lake Side, Sheet A.5.4.1 Revision 2, dated 11.29.17
7. Block 4 West Elevation, Left Side, Sheet A.5.4.2 Revision 2, dated 11.29.17
8. Block 5 North Elevation, Street Side, Sheet A.5.5.1 Revision 2, dated 11.29.17
9. Block 5 South Elevation, Lake Side, Sheet A.5.5.2 Revision 2, dated 11.29.17
10. Block 5 Side Elevations, Sheet A.5.5.3 Revision 2, dated 11.29.17
11. Block 6 North Elevation, Street Side, Sheet A.5.6.1 Revision 3, dated 1.25.18
12. Block 6 South Elevation, Lake Side, Sheet A.5.6.2 Revision 3, dated 1.25.18
13. Block 7 West Elevation, Entry Face, Sheet A.5.7.1 Revision 4, dated 1.25.18
14. Block 7 East Elevation, Lake Side, Sheet A.5.7.2 Revision 4, dated 1.25.18
15. Block 7 Side Elevations, Sheet A.5.7.3 Revision 4, dated 1.25.18
16. Block 8 East Elevation, Rear Face, Sheet A.5.8.2 Revision 2, dated 11.29.17
17. Block 8 Side Elevations, Sheet A.5.8.3 Revision 2, dated 11.29.17
18. Block 9 East Elevation, Lake Side, Sheet A.5.9.2 Revision 4, dated 1.25.18

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