Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 22, 2023

CASE NO(S).: OLT 23-000377

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellants: Paula Champagne, Gordon Hill, Little Silver and Rainbow Lakes Property Owners’ Association

Subject: Zoning By-Law 2023-17

Description: Amendment to Comprehensive Zoning By-Law No. 02-121 Section 3.4 Wording Clarification of “Improved Street”

Reference Number: Zoning By-Law 2023-17

Municipality/Upper Tier: Tay Valley/Lanark

OLT Case No.: OLT-23-000377

OLT Lead Case No.: OLT-23-000377

OLT Case Name: Champagne v. Tay Valley (Township)

Heard: September 14, 2023 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Little Silver and Rainbow Lakes Property Owners' Association	Frank Johnson*
Paula Champagne	Self-represented
Gordon Hill	Self-represented
Tay Valley Township	Spencer Putnam Tony Fleming (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY Gregory J. Ingram ON September 14, 2023, AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal at this Case Management Conference (“CMC”) arises from appeals filed by the Little Silver and Rainbow Lakes Property Owners’ Association, Paula Champagne, and Gordon Hill (“Appellants”) pursuant to s. 34 (19) of the Planning Act, R.S.O. c.P.13, as amended (the “Act”), against Tay Valley Township’s (“Township”) decision to amend its Comprehensive Zoning By-law No. 02-121 (“ZBL”) regarding the wording in Section 3.4 to clarify the definition of an “improved street” and the conditions under which a building permit may be issued.

2The Municipality held a public meeting in March 2023 concerning the proposed Zoning By-law Amendment (“ZBA”) and received comments from the community. The Planning Report shared at the meeting indicated the following:

Clarification of the language of Section 3.4 is necessary to more closely reflect the intention of the 2009 Zoning By-Law Amendment. That amendment provided a way for building permits to be issued to properties in subdivisions created before 2002 (with roads that were not brought up by the developer to a standard for the Municipality to assume). Prior to the 2009 amendment, those properties could not receive building permits because they were not located on Improved Streets…

The change that is being proposed is a shift from a description of situations where Section 3.4 is applicable (that references a mixture of buildings, lots and zones), to a clearer definition of IMPROVED STREET.

3The ZBA was passed on March 28, 2023, by the Municipality and the amended section with changes are below:

1.1 THAT, Section 3.4 (Frontage on an Improved Street) is hereby amended as follows:

3.4 Frontage on an Improved Street

No lot shall be used, and no building or structure shall be erected, on a lot in any zone unless such lot has sufficient frontage on an Improved Street to provide driveway access. Notwithstanding the foregoing, this provision shall not apply to a non-residential building or structure that is accessory to an agricultural or conservation use.

• A non-residential building or structure accessory to an agricultural or conservation use;
• A lot on a registered plan of subdivision and with frontage on a street which will become an improved street pursuant to provisions in, and financial security associated with, a subdivision agreement that is registered on the title to the lot;
• A lot on a plan of subdivision registered before December 10, 2002, that has frontage on a street that is not an improved street, where the owner has entered into a Road Access Agreement to the satisfaction of the Municipality;
• A lot located in a Limited Services Residential zone;
• A existing seasonal dwelling in a Seasonal Residential zone.

1.2 That the Definitions section is hereby amended as follows:

STREET shall mean a public thoroughfare under the jurisdiction of either the Corporation, the County or the Province of Ontario. This definition does not include a lane, a private road (private right-of-way) or easement.

• IMPROVED STREET shall mean a street which has been assumed by the Corporation, the County or the Province and is maintained on a regular, year-round basis. Notwithstanding the generality of the foregoing, in the circumstances listed below an Improved Street shall be defined to include:

• a street which is intended to become an Improved Street pursuant to provisions in, and financial security associated with, a subdivision agreement that is registered on the title to the lot in a plan of subdivision registered after December 10, 2002;

• a street that is within a plan of subdivision registered before December 10, 2002, where the street is subject to a Road Access Agreement entered into to the satisfaction of the Municipality;

• a private road in a Limited Services Residential zone; and

• a private road in a Seasonal Residential zone.

4The Appellants have filed separate appeals and agree in their opposition to the ZBA and have submitted two draft Issues Lists (“IL”) which they all support.

OPENING STATEMENTS

5By way of opening statements, Frank Johnson indicated that his association is most concerned with the definition of an “improved street” contained in the ZBA and the reference to the need for road access agreements. He submitted that the ZBA will stop building on over 300 properties within the Township. Gordon Hill provided brief comments about the history of development in the area and proffered that both developers and the Township were at fault for the current situation. Paula Champagne concurred with the statements provided by the other Appellants.

6Spencer Putnam indicated that his co-counsel, Tony Fleming, has spoken to the Appellants and they were not able to arrive at a consensus on the IL and agreed that it may be a matter for the Tribunal to determine. He suggested that it would be difficult to determine the number of days required for a hearing until the IL is finalized.

NOTICE

7The Tribunal received an email from Mr. Putnam prior to the CMC indicating that the Appellants did not receive notice of the CMC by the Municipality and indicated that they were notified through a communication from the Tribunal. He also confirmed that the Tribunal also notified all individuals who had requested Participant Status.

8Counsel opined that the notice provided by the Municipality when the ZBA was announced could be deemed sufficient as there is no legislative requirement for further notice. That said, he also indicated that he was not opposed to further communications to ensure the community is aware of the appeal to the Tribunal. Mr. Putnam referred the Tribunal to Section 34(24) of the Act to support this position. It reads as follows:

On an appeal to the Tribunal, the Tribunal shall hold a hearing of which notice shall be given to such persons or bodies and in such manner as the Tribunal may determine. 2017, c. 23, Sched. 5, s. 93 (6).

9The Appellants expressed concern that many permanent and seasonal residents impacted by the ZBA may not be aware of the approval by the Municipality or the appeal to the Tribunal.

10The Tribunal received additional comments via email from Mr. Putnam and Mr. Johnson following the CMC related to notice. While Mr. Johnson felt that all landowners directly impacted by the ZBA should be notified, he offered that at least those who requested notice of the passing of the amendment should be notified. Mr. Putnam indicated agreement with this suggestion.

11On consent of the Parties and in accordance with Rule 6.2 of the Tribunal’s Rules of Practice and Procedure, the Tribunal finds that further notice is appropriate prior to the next CMC and that any additional Party or Participant Status requests received 10 days prior to the next CMC will be considered by the Tribunal.

12The email notice to the Appellants and Participant Status applicants by the Tribunal was marked as Exhibit 1.

STATUS REQUESTS

13The Tribunal reviewed the Participant Status request applications and on the consent of the Parties, granted Status to the following individuals: Andrew Moody, William Giffen, Ron Mitchell, Shannon Celeste, Steven Barr, Judy Barr, Richard Mosley, Michael Poulin, Richard Whittall, Theresa Cody, Teresa and Lou Perna, Margo Ayers and Heather Dobroshinsky.

MEDIATION

14The Parties were made aware of Tribunal-lead mediation. The Appellants agreed that it is unlikely that mediation would lead to a resolution of the issues as they currently stand. Mr. Putnam indicated that the Municipality would be open to mediation but also felt that it is unlikely to remove the need for a merit hearing.

NEXT STEPS

15Given the inability of the Parties to provide an agreed-upon draft Procedural Order (“PO”) and IL at this CMC, the Tribunal referred the Parties to the following information provided in the Tribunal PO document to assist them:

The identification of an issue on this list by a party indicates that party’s intent to lead evidence on that issue. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the OLT.

The identification of an issue on the Issues List does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is either appropriate or relevant to the determination of the OLT at the hearing. The extent to which these issues are appropriate or relevant to the determination of the OLT will be a matter of evidence at the hearing.

16With the consent of the Parties, a second CMC was scheduled to proceed by video on Thursday, November 16, 2023 at 10.a.m. It was agreed that the Parties will update the Tribunal on the status of discussions on or before Thursday, November 2, 2023, and indicate if they are prepared to move to a Settlement Hearing, in which event the CMC will be converted to a Settlement Hearing. If the matter remains contested, then it is expected that an agreed-upon draft PO be submitted. In the event that there remains disagreement on the issues, written submissions by each Party, for consideration by the Tribunal, are required. The submissions must be submitted to the Case Coordinator on or before Thursday, November 2, 2023. The Tribunal will review and rule on the submissions and bring a final PO to the CMC.

17Parties 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/909787981

Access code: 909-787-981

18Parties 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

19Persons 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: (Toll-Free) 1-(888) 455-1389 or +1 (647) 497-9391. The access code is as indicated above.

20Individuals 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 CMC 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.

21This Member is not seized but is available through the Case Coordinator should procedural issues arise.

ORDER

22THE TRIBUNAL ORDERS:

1. That a second Case Management Conference commence by video on Thursday, November 16, 2023, at 10:00 a.m. The Case Management Conference may be converted to a Settlement Hearing.

2. That the Parties provide an update on the status of discussions by Thursday, November 2, 2023, and indicate if they are prepared to move to a Settlement Hearing, in which event the Case Management Conference will be converted to a Settlement Hearing.

If the matter remains contested, then it is expected that an agreed-upon draft Procedural Order be submitted, and hearing dates and number of days confirmed at the next Case Management Conference.

If there remains disagreement on the issues, written submissions by each Party are required and must be submitted to the Case Coordinator on or before Thursday, November 2, 2023.

3. That the Municipality provide notice of the next Case Management Conference to the general public using their standard digital platforms and directly to the individuals named on the Notice of Passing of By-law No. 02-121 - List of Recipients document and provide the Tribunal with a signed Affidavit of Service within 14 days after providing notice.

4. Party or Participant Status requests received by the Tribunal at least 10 days prior to the next Case Management Conference will be considered.

“Gregory J. Ingram”

GREGORY J. INGRAM 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.