ClubLink Corporation ULC v Huntsville (Town), 2023 CanLII 7740

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 31, 2023

CASE NO(S).: OLT-22-004427

PROCEEDING COMMENCED UNDER section 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 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: January 18, 2023 by video hearing (“VH”)

APPEARANCES:

Parties	Counsel
ClubLink Corporation ULC (“Appellant”)	Meaghan McDermid
1105702 Ontario Ltd. (“Appellant”)	Stephen Watt
2596701 Ontario Inc. (“Appellant”)	Andy Margaritis
Town of Huntsville	John Ewart

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON JANUARY 18, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (“CMC”) concerning appeals by 1105702 Ontario Ltd., 2596701 Ontario Inc., and ClubLink Corporation ULC. The appeals arise following the Town of Huntsville (“the Town”) passing By-law No. 2022-97 to establish 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 through a Community Planning Permit System and addresses zoning amendments, minor variances and site plan agreements under one application.

2At the conclusion of the CMC, the Tribunal held a Settlement Conference to deal with the appeals by ClubLink Corporation ULC (“ClubLink”) and 1105702 Ontario Ltd. (known locally as the North Granite Ridge Golf Club and hereinafter “NGR”), and also heard submissions from the remaining parties regarding a request to Order the implementation of the ZBA for all lands within the Town save and except for those lands owned by 2596701 Ontario Inc.

3It is noteworthy that all of the appeals are site-specific in nature, essentially seeking a particular exception within the CPP By-law, as currently written, as it relates to the respective Appellant’s properties only.

Service of Notice of CMC

4There was no issue with service of the Notice of this CMC, and so no further notice is required. The Tribunal was in receipt of the Affidavit of Service, which was marked as Exhibit 1.

Requests for Status

5No formal requests for status were received by the Tribunal in advance of the CMC; however, two requests were made at the time of the hearing: Maxime Bastedo sought party status, and Karen Insley and David Stewart jointly sought participant status.

6Ms. Bastedo is an area resident who expressed concerns about the municipal process pertaining to the passing of the CPP By-law, as well as perceived implications of the CPP By-law associated with environmental protection and character of the Town. The Tribunal explained the expected role and obligations of a party, compared to that of a participant, and Ms. Bastedo confirmed that she wanted party status. The Tribunal further asked her if she expects to fulfill such a role and obligations of a party, and she confirmed that she was not sure. She explained that she was currently seeking party status because she believed that it would be easier to “drop down” to participant status, rather than ask to “move up” to party status later.

7The Tribunal sought submissions from the existing parties regarding Ms. Bastedo’s request. The parties drew the Tribunal’s attention to the fact that their respective appeals are all site-specific in nature, and so Ms. Bastedo, as a Non-Appellant party, would be limited to sheltering under their issues pursuant to Rule 8.3 of the Tribunal’s Rules of Practice and Procedure:

8.3 Non-Appellant Party A party to a proceeding before the Tribunal which arises under any of subsections 17(24) or (36), 34(19) or 51(39) of the Planning Act who is not an appellant of the municipal decision or enactment may not raise or introduce a new issue in the proceeding. The non-appellant party may only participate in these appeals of municipal decisions by sheltering under an issue raised in an appeal by an appellant party and may participate fully in the proceeding to the extent that the issue remains in dispute. A non-appellant party has no independent status to continue an appeal should that appeal be withdrawn by an appellant party.

8In light of the fact that Ms. Bastedo’s expressed concerns are more general and town-wide in nature, the Tribunal finds that she is principally seeking to raise issues that she is not permitted to raise according to Rule 8.3. In addition, the Tribunal finds that her procedure-related concerns fall outside of the Tribunal’s jurisdiction. In addition, Mr. Bastedo could not satisfy the Tribunal that she will fulfill the expected role and obligations of a party. As a result, the Tribunal declined to grant her Party status.

9Despite all of this, Ms. Bastedo is nevertheless an area resident, which means she may legitimately have an interest in the outcome of the appeals. The Tribunal therefore asked her if she wants to seek participant status instead, and she confirmed that she does. The Tribunal subsequently granted her participant status.

10Ms. Insley and Mr. Stewart meanwhile both confirmed that they are also area residents. Given that they similarly have an interest in the matter, the Tribunal granted both of them participant status as well.

11The Tribunal gave each of the participants two weeks to submit a participant statement, being due on Wednesday, February 1, 2023. The Tribunal cautioned the participants to inform themselves of Rule 8.3, insofar as the Tribunal will only consider issues which shelter under the issues of the Appellant parties.

SETTLEMENT HEARING

12Counsel for ClubLink and NGR informed the Tribunal at the outset of the hearing that they had come to an agreement with the Town regarding amendments to the CPP By-law. All of the parties agree that the settlement is in conformity with the local Official Plans and consistent with the Provincial Policy Statement (“PPS”). Wayne Simpson was retained by ClubLink and NGR to provide planning evidence in support of the proposed revisions. He was duly qualified by the Tribunal as an expert in land use planning. The following is an account of his uncontested evidence.

ClubLink Property

13Mr. Simpson testified that ClubLink owns approximately 830 hectares of land on the north side of Highway 60, to the east of Muskoka Road No. 3 (old Hwy 11). Included are the lands legally described as Part Lots 26 and 27, Concession 1 and Lots 25 and 26, Concession 2, Chaffey. About 30% of the property is situated in the “Hidden Valley Recreational Resort and Lifestyle Area” (“Hidden Valley”) in the Huntsville Official Plan (“HOP”), while the balance of the property lies between Hidden Valley and the “Huntsville Urban Settlement Area”. The ClubLink property in Hidden Valley is locally referred to as the “Grandview Golf Club” or the “Mark O’Meara Golf Course”.

14The ClubLink lands within Hidden Valley are principally designated in the HOP as “Open Space”, while certain parts of the property (identified as not being required for the golf course operations) are designated as “Recreational Resort Residential” on Schedule B-2 to the HOP.

15Section 5.4 of the HOP applies to Recreational Resort Residential uses. The permitted uses are noted in Part C Section 5.4.1 as “limited to low and medium density residential and short-term rental accommodation uses”. The “Lot Requirements and Density” provisions are set out in the subsequent subsections of the HOP, including a “minimum lot size of 700 m2 and minimum lot frontage of 20 metres” and a gross density for medium density residential development ranging from 20 units to 40 units per gross hectare.

NGR Property

16Mr. Simpson testified that NGR is the owner and operator of the 18-hole North Granite Ridge Golf Club situated on a 174-hectare property in the Port Sydney Community Area. The NGR lands are principally designated “Open Space”, but (as with the ClubLink property) a certain part of the property not required for the golf course operations has been designated “Community Residential” in the HOP, as shown on Schedule B-2.

17Section 4.3 of the HOP applies to lands designated “Community Residential”. The permitted uses are listed in s. 4.3.2 as “limited to low density residential uses, such as single detached units, duplex and semi-detached units and converted dwellings”. Section 4.3.3 additionally permits “small-scale convenience commercial uses”. The lot and density requirements for new lots are set out in section 4.3.1, being “a minimum of 0.4 hectares in size and a minimum lot frontage of 30 metres”.

Planning Opinion

18Mr. Simpson opined that that to conform with the HOP, the Precincts applied to the ClubLink and NGR properties (collectively “the subject properties”) by the schedules in the CPP By-law must recognize the goals, objective and policies established in the HOP.

19He testified that Schedules F-10 and K-4 of the CPP By-law identify portions of the subject properties within the “Development’ Precinct” which, according to s. 4.11, restricts the use of these potential residential sites to the “Existing Use” only. In these instances, no uses would be permitted on the portions of the lands which are currently vacant and not used for golf course operations. In addition, the Development Precinct does not contain any minimum or maximum standards and instead requires an amendment to the CPP By-law for any development.

20Similarly, based on the land use designation in the HOP, Mr. Simpson opined that the NGR lands in Lot 21, Concession 5, former Stephenson Township, should be in the “Community Residential” precinct on Schedule K-4, as are other lands similarly designated “Community Residential” on Schedule B-2. The Open Space precinct is appropriately applied to the balance of the North Granite Ridge Golf Course.

21Mr. Simpson drew the Tribunal’s attention to section 4(2) in Ontario Regulation 173/16 (made under the Planning Act), where it states that there are numerous requirements of a community permit by-law, including in subsection (b) the need to “set out and define the permitted uses of land” and in subsection (c) the need to “set out a list of the minimum and maximum standards for development”. As stated above, the CPP By-law has failed to deliver these requirements.

22Mr. Simpson opined that the jointly submitted modifications to the CPP By-law will act as a solution to these deficiencies. The proposed modifications to the CPP By-law will replace the Development Precinct identification applied to the subject properties with a Precinct that is in conformity with the HOP designations, as well as a site-specific exception that identifies technical studies and requirements for a future CPP application to permit the development of the lands.

23Mr. Simpson explained that the modifications associated with the ClubLink property will modify Schedule F-10 to show portions of the ClubLink lands in the Recreational Resort Residential precinct. CPP By-law sections 4.9.2, 4.9.3 and 4.9.4 in the CPP By-law will now apply to these lands, which list the principal uses, accessory (discretionary) uses, and the lot requirements. He opined that the principal uses shown in s. 4.9.2 as being permitted in the Recreational Resort Residential precinct conform with the previously noted Part C Section 5.4.1 in the HOP where the permitted uses are “limited to low and medium density residential and short-term rental accommodation uses”.

24He further opined that the Recreational Resort Residential precinct will be consistent with other lands in Hidden Valley similarly designated Recreational Resort Residential on Schedule B-2 of the HOP. The balance of the ClubLink lands will remain in the Open Space precinct, which, he opined, is appropriate for the lands occupied by the golf course

25Mr. Simpson further explained that the modifications associated with the NGR property will modify Schedule K-4 to show the NGR lands as being in the Community Residential precinct. CPP By-law sections 4.2.1, 4.2.2, 4.2.3 and 4.2.4 will be applicable, which list the principal uses, accessory (discretionary) uses, and the lot requirements. He opined that the uses permitted in the Community Residential precinct under the CPP By-law conform with the previously noted Part C Section 4.3 in the HOP where the permitted uses are “limited to low density residential uses, such as single detached units, duplex and semi-detached units and converted dwellings” and “small-scale convenience commercial uses”. He noted that the lot requirements in the Community Residential precinct are set out in section 4.2.4 in the CPP By-law.

26Mr. Simpson added that the modifications associated with the ClubLink property will add a new site specific Exception 006, applying to the Recreational Resort Residential portion of the ClubLink Lands, which will require technical studies including an Environmental Impact Study, Functional Servicing Report and Traffic Impact Study to be completed in support of a CPP application and the findings and recommendations of these studies to be implemented either through conditions of a CPP or through agreements with the Town and District of Muskoka (“the District”), where appropriate. He opined that this modification is also in conformity with the HOP.

27Mr. Simpson further added that the modifications associated with the NGR property will add a new site specific Exception 007 applying to the Community Residential portion of the NGR lands, which will require technical studies including an Environmental Impact Study, Functional Servicing Report and Traffic Impact Study to be completed in support of a CPP application and the findings and recommendations of these studies to be implemented either through conditions of a CPP or through agreements with the Town and District, where appropriate. He opined that this modification is also in conformity with the HOP.

28He further testified that the site-specific exceptions proposed to be applied to the subject properties are intended to make special notice of certain matters including the requirement for environmental impact, functional servicing, and traffic impact studies. As indicated by the phrase “in addition to any other relevant requirements in the CPP”, the matters listed as site-specific provisions are not to be understood as exhaustive or complete. In the process of securing municipal approvals, Mr. Simpson points out, additional studies or reviews may be required.

29In summary on this point, Mr. Simpson opined that the proposed modifications to the CPP By-law will conform to the HOP. As described above, he opined that the modified Precincts and associated development standards are consistent with and will implement the HOP designations and policies that apply to the ClubLink and NGR lands.

30To complete his analysis, Mr. Simpson assessed the proposed modifications as it relates to conformity with the District OP (“DOP”) and consistency with the PPS.

31He testified that the DOP provides broad policy forming the basis of the HOP. Policy D2a) of the DOP states that settlement areas are the focus of year-round population and dwelling growth in the District and that their vitality and regeneration shall be promoted. Mr. Simpson opined that the proposed modifications to the precinct designations of the CPP By-law are consistent with this focus.

32He further testified that Policy E1 states that it is the objective of the District to always maintain the ability to accommodate residential growth for a minimum of 10 years through residential intensification and redevelopment, in line with the population and development projections contained within the DOP. Through the land use designations applied to the subject properties by Schedule B-2 in the HOP, these lands can accommodate residential growth in the near term. Mr. Simpson opined that the proposed modifications to the CPP By-law will conform with and implement this direction.

33As it relates to the PPS, Mr. Simpson testified that the PPS contains broad guidance for planning matters in Ontario through a set of overarching policies. All Official Plans and municipal by-laws must be consistent with the PPS.

34Mr. Simpson pointed out that Policy 1.1.1 encourages efficient development that sustains the financial well-being of the province and municipalities, accommodates a range and mix of housing opportunities, avoids development that would unduly risk human or environmental sustainability, is cost effective and maximizes the efficiency of land and services, is barrier-free, and has regard for the impacts of human development on climate.

35He further drew the Tribunal’s attention to Policy 1.1.3.1, which states that Settlement Areas (like the “Hidden Valley Recreational Resort and Lifestyle Area” and the “Port Sydney Community”) shall be the focus of growth and development and their regeneration shall be promoted.

36Mr. Simpson further testified that Policy 1.1.3.2 requires land use patterns within Settlement Areas be at a density that efficiently uses land and resources, are appropriate for the infrastructure and public services that are planned or available, minimizes impacts of climate change, promotes energy efficiency, supports active transportation, are transit and freight supportive, and promotes intensification and redevelopment wherever it can be accommodated.

37Mr. Simpson opined that the proposed modifications to Schedules K-4 and F-10 of the CPP By-law are consistent with these policies of the PPS. He states that the modifications serve to identify appropriate Precincts on the lands that will permit future residential uses on these already designated lands.

38Mr. Simpson noted that the next steps toward comprehensive development taking place on either the ClubLink or NGR lands will be the preparation of development plans that are supported by studies or technical reviews required by the Town and/or District.

Planning Conclusion and finding of the Tribunal

39Mr. Simpson opined that the proposed modifications to the CPP By-law, to the extent that they are specific to the ClubLink and NGR properties, will bring it into conformity with the HOP and be in accordance with O. Reg 173/16. He further opined that approval of the proposed Modifications will conform to the DOP, be consistent with the PPS, and are otherwise appropriate and represent good planning.

40The Tribunal accepts Mr. Simpson’s uncontroverted evidence and, for the same reasons outlined by him, approves the modifications to the CPP By-law pursuant to the Order set out below.

Approval of the balance of the CPP By-law

41Upon the above finding of the Tribunal, the present case now only involves the site-specific appeal initiated by 2596701 Ontario Inc. Following this finding at the present hearing, counsel for the remaining parties jointly request that the Tribunal Order the CPP By-law to come into force and effect, save and except for those lands, areas, and appeal rights of 2596701 Ontario Inc.

42Given that the remaining appeal is site-specific and the remaining Appellants both support the proposition, the Tribunal finds no reason to not provide the requested Order. Pursuant to the particulars of the Order set out below, it is ordered.

PROCEDURAL ORDER AND ISSUES LIST

43The Tribunal discussed the status of a draft Procedural Order with the remaining parties. Both parties confirmed that they have not produced a draft yet, since it would have been premature given the prospects of settlement between the other parties. The Tribunal accepts this.

44In addition, the parties indicated that the prospects of a settlement of the issues remaining between them, or at least some of those issues, is promising. This means that it would be prudent to schedule a second CMC to either deal with such a settlement, or firm up a draft Procedural Order with list of remaining issues in dispute.

45The Tribunal agrees with the proposed approach, and a second CMC will be scheduled to be used as either a settlement hearing or to confirm the contents of a draft Procedural Order and Issues List. The Tribunal made it clear to the parties that, if there is not a complete settlement proposed on that date, a draft Procedural Order and Issues List must be finalized and submitted to the Tribunal before the CMC.

SECOND CMC

46Upon request of the remaining parties, the Tribunal set a second CMC hearing commencing on Tuesday, April 25, 2023 at 10 a.m. by VH. No further Notice is required.

47Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections.

https://global.gotomeeting.com/join/914098901

Access code: 914-098-901

48Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

49Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9373 or Toll Free 1-888-299-1889. The access code is 914-098-901.

50Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

51The Tribunal Orders that:

1. Maxime Basted, Karen Insley and David Stewart are granted participant status;

2. The date and particulars of a second CMC are set out above;

3. The appeal by ClubLink Corporation ULC is allowed in part, and Community Planning Permit By-law 2022-97 is amended as follows:

   a. Modifying Schedule F-10 to re-designate portions of the lands legally described as Part Lots 26 and 27, Concession 1 and Lots 25 and 26, Concession 2, Chaffey from “Development Precinct (D)” to “Recreational Resort Residential (RRR)” as shown on Attachment 1; and

   b. Adding site-specific Exception No. 006 to Table 6.1 as follows:

   Precinct	Exception No.	By-law No.	Location	Schedule No.	Provisions
   Recreational Resort Residential	006	(new)	Pt Lots 26 and 27, Concession 1, Lots 25 and 26 Concession 2, Chaffey	F-10	In addition to any other relevant requirements in the CPP By-law being appropriately addressed, a Community Planning Permit shall not be issued for development to proceed on the property unless the Director of Development Services is satisfied that the following conditions have been met: An Environmental Impact Study (EIS), Functional Servicing Report (FSR), and Traffic Impact Study (TIS) shall be completed to the satisfaction of the Town of Huntsville and District Municipality of Muskoka, and any other relevant approval authority; All significant natural heritage features and areas, and any natural hazards, along with relevant buffers, linkages, and setbacks, as identified in the EIS, shall be protected by conditions attached to the permit and/or through implementation of recommendations in an agreement entered into with the Town of Huntsville; It shall be demonstrated to the satisfaction of the Town of Huntsville and District Municipality of Muskoka that the proposed development can be adequately serviced with water, sewer, stormwater systems, roads and transportation infrastructure in accordance with the relevant policies of the Town of Huntsville and District of Muskoka Official Plans; The provision of adequate infrastructure shall be constructed or secured, and any necessary agreements are entered into with the Town of Huntsville and District of Municipality of Muskoka.

4. The appeal by 1105702 Ontario Ltd. is allowed in part, and Community Planning Permit By-law 2022-97 is amended as follows:

   a. Modifying Schedule K-4 to re-designate portions of the lands legally described as Part Lot 21, Concession 5, Stephenson from “Development Precinct (D)” to “Community Residential (CR)” as shown on Attachment 2; and

   b. Adding site-specific Exception No. 007 to Table 6.1 - Site Specific Exceptions as follows:

   Precinct	Exception No.	By-law No.	Location	Schedule No.	Provisions
   Community Residential	007	(new)	Pt of Lot 21, Concession 5, Stephenson	K-4	In addition to any other relevant requirements in the CPP By-law being appropriately addressed, a Community Planning Permit shall not be issued for development to proceed on the property unless the Director of Development Services is satisfied that the following conditions have been met: • An Environmental Impact Study (EIS), Functional Servicing Report (FSR), and Traffic Impact Study (TIS) shall be completed to the satisfaction of the Town of Huntsville and District Municipality of Muskoka, and any other relevant approval authority; • All significant natural heritage features and areas, and any natural hazards, along with relevant buffers, linkages, and setbacks, as identified in the EIS, shall be protected by conditions attached to the permit and/or through implementation of recommendations in an agreement entered into with the Town of Huntsville; • It shall be demonstrated to the satisfaction of the Town of Huntsville and District Municipality of Muskoka that the proposed development can be adequately serviced with water, sewer, stormwater systems, roads and transportation infrastructure in accordance with the relevant policies of the Town of Huntsville and District of Muskoka Official Plans; • The provision of adequate infrastructure shall be constructed or secured, and any necessary agreements are entered into with the Town of Huntsville and District of Municipality of Muskoka.

5. Community Planning Permit By-law 2022-97, as modified above, is deemed to have come into force and effect in the Town of Huntsville (the “Town”) on the day it was passed for all areas of the Town to which it applies, save and except for those lands, areas, and appeal rights of 2596701 Ontario Inc., in relation to 3933 and 4215 South Portage Road (the “Subject Lands”); and

6. This Order deeming the Community Planning Permit By-law 2022-97 to have come into force on the day it was passed is without prejudice to the disposition of the appeal for the Subject Lands, such that if that appeal proceeds to a subsequent hearing or motion, either on its own or as may be consolidated with other proceedings, the Town will not take the position that the Tribunal ought not to approve site-specific amendments to By-law 2022-97 on the basis that they deviate from or are inconsistent with Community Planning Permit By-law 2022-97, as brought into force by this Order.

52The Member not seized but may be spoken to through the Case Coordinator if any issues arise.

“K.R. Andrews”

K.R. ANDREWS 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.