Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 18, 2024

CASE NO(S).: OLT-21-001716

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

Appellant: Langmaid's Island Corporation Appellant: Mitchell Fasken Subject: Zoning By-law Description: Community Planning Permit 2021-111 Reference Number: By-Law 2021-111 Property Address: Township of Lake of Bays Municipality/UT: Lake of Bays OLT Case No: OLT-21-001716 OLT Lead Case No: OLT-21-001716 OLT Case Name: Fasken v. Lake of Bays (Township)

Heard: March 27, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

Township of Lake of Bays

John Ewart

Mitchell Fasken

Mark A. de Jong Jennifer Meader (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY G.C.P. BISHOP ON MARCH 27, 2024 AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This is a Settlement Hearing with respect to an appeal brought by Mitchell Fasken (“Fasken”) pursuant to s. 34(19) of the Planning Act, relating to Community Planning Permit By-law No. 2021-111 (the “CPP By-law”) passed by the Council of the Township of Lake of Bays (“Township”). There are two appeals to the passing of the CCP By-law but the appeal by Langmaid’s Island Corporation (“Langmaid’s”) was separated and will be heard at a Tribunal hearing, to commence on Tuesday, April 9, 2024. The CPP By-law is a result of the consolidation of the Township’s two existing zoning by-laws, those being the Development Permit By-law 2004-180 (“By-law 2004-180”) and the Comprehensive Zoning By-law 2004-181 (“By-law 2004-181”).

2The Tribunal heard from two expert planning witnesses: Helena Craymer, Planner for the Township, and Michael Wynia, hired by the Township to prepare the new CPP By-law.

3The Tribunal was supplied with a sworn affidavit, dated February 12, 2024, in support of the settlement, that includes Ms. Craymer’s curriculum vitae and Acknowledgement of Expert’s Duty, and which was marked as Exhibit 1. Ms. Craymer was qualified to deliver opinion planning evidence, but her testimony was of a factual basis that included a brief history of these appeals and a discussion around two further amendments to By-law 2004-180 and By-law 2004-181 (the “By-laws”).

4The Township passed amendments to the above-noted By-laws relating to Short-term Rental, and both of these amendments to the By-laws were certified by the Clerk of the Township on March 22, 2024, as a result of no appeals having been received. It is the Township’s wish to have these two amendments to the By-laws be reflected in the CPP By-law. The amendment to the By-laws is not within the Jurisdiction of the Tribunal, but, from a housekeeping perspective, the Tribunal takes no issue in allowing the Township to administratively amend the CPP By-law to reflect the passing of the two By-laws and include these changes in the final version of the CPP By-law to be supplied to the Tribunal after this hearing event.

5The Tribunal was supplied with a sworn affidavit dated February 13, 2024 in support of the settlement from Michael Wynia, a Registered Professional Planner and Partner at the firm of Skelton, Brumwell and Associates Inc. This affidavit was marked as Exhibit 2. The affidavit includes Mr. Wynia’s curriculum vitae and his Acknowledgement of Expert’s Duty, together with the Planners’ Agreed Statements of Facts and redline copy of the CPP By-law illustrating the proposed amendments to the By-law. Mr. Wynia was qualified to present opinion planning evidence at this Hearing.

6The Issues List, contained in the Tribunal’s Order issued on September 6, 2023, consists of a total of 39 issues. Issues 13 through 39, for a total of 27 issues, relate to the concerns of Fasken. The Planners’ Agreed Statement of Facts states that agreement has been reached on 19 of the issues and these have been removed from the list. This leaves eight remaining issues which have been dealt with through modifications to specific sections of the CPP By-law, and these proposed amendments are also included in the Agreed Statement of Facts and reflected in the redline version of the By-law appended to Exhibit 2.

7There is other redline revisions in the CPP By-law beyond those relating to this settlement and the Tribunal queried Mr. Wynia on these suggested amendments. These further amendments were inserted in the most recent version of the CPP By-law. The focus of the other draft revisions relates to the addition of transition provisions in Section 2.22 of the CPP By-law and, in Section 2.23, the Repeal of Former By-laws. There is the recognition of permits issued under the Development Permit By-law 2004-180, or a by-law passed, or a minor variance granted, after January 1, 2004, despite any repeal and the specific provisions passed or granted shall prevail. The transition provisions also carry forward any conditions that were imposed by a Holding provision pursuant to Section 36 of the Planning Act.

8Mr. Wynia stated that all the suggested revisions do not change his professional opinion as to the appropriateness of this comprehensive Zoning By-law amendment. Mr. Wynia opined that the CPP By-law, with the proposed amendments, is consistent with the Provincial Policy Statement, conforms to the Official Plan of the District of Muskoka, conforms to the Official Plan of the Township of Lake of Bays, represents good planning and is in the public interest. The Tribunal accepts and adopts Mr. Wynia’s position on this matter and finds that the CPP By-law, with the proposed modifications, is consistent and conforms to the above-mentioned planning instruments, represents good planning and is in the public interest.

9The Tribunal reviewed a minor typographical error on one of the Schedules and asked the Township to make the minor revision and send a revised and final copy of the CPP By-law for attachment to this Decision. The Tribunal has received the updated final version of the CPP By-law, which also includes the housekeeping amendments relating to Short-term Rentals and has appended it to this Decision as Attachment 1.

CONSOLIDATED VERSION OF THE CPP BY-LAW

10As noted in paragraph 1 above, the Tribunal separated the two appeals relating to the CPP By-law but both matters settled in front of this same constituted panel member and before either of the final Orders were issued. The site-specific appeal of the Langmaid’s Island Corporation (file OLT-21-001716) was heard together with their other remaining appeals in front of the Tribunal (file OLT-22-002969 [lead file]) and that full settlement was presented to this Member on April 11, 2024. To avoid any confusion for the reader, the Tribunal has appended to this Decision the complete version of the CPP By-law that reflects the result of both settlements and will attach the complete version of the CPP By-law when issuing the Decision on the Langmaid’s Island Corporation appeals with the decision that will follow.

ORDER

11The Tribunal Orders that:

i. the appeal against Community Planning Permit By-law 2021-111 of the Township of Lake of Bays is allowed in part, and Community Planning Permit By-law 2021-111 is amended as set out in Attachment 1 to this Order and comes into full force and effect on the date of the issuance of this written decision. In all other respects, the Tribunal Orders that the appeal is dismissed;

ii. this Order and approval of the above-mentioned Community Planning Permit By-law 2021-111 is without prejudice to the site-specific appeal of Langmaid’s Island Corporation and the Tribunal hereby retains the jurisdiction to consider and approve modifications to any policies, non-policy text, definitions and mapping approved herein as may be appropriate to dispose of the outstanding, site-specific appeal before the Tribunal.

12The Tribunal notes that the Minutes of Settlement state that the Parties to the agreement will not request that the Tribunal make an Order for costs. The Member may be spoken to should issues arise with respect to the implementation of this Order.

“G.C.P. Bishop”

G.C.P. BISHOP

VICE-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.