Huminilowycz v. Tay (Township), 2024 CanLII 40902

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 02, 2024

CASE NO(S).: OLT-22-003538

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

Appellant: Yuri Huminilowycz Applicant: Maple Leaf Marinas Holdings GP Inc. Subject: Zoning By-law Reference Number: BL 2022-18 Property Address: 3282 Ogdens Beach Road Municipality/UT: Tay/Simcoe OLT Case No.: OLT-22-003538 OLT Lead Case No.: OLT-22-003538 OLT Case Name: Huminilowycz v. Tay (Township)

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: George Dixon Applicant: Maple Leaf Marinas Holdings GP Inc. Subject: Proposed Official Plan Amendment Reference Number: TA-OPA-2241 Property Address: 3282 Ogdens Beach Road Municipality/UT: Tay/Simcoe OLT Case No.: OLT-22-004562 OLT Lead Case No.: OLT-22-003538

Heard: April 11 to April 14, 2023 in person and April 21, 2023 in writing

APPEARANCES:

Parties	Counsel/Representative*
Maple Leaf Marinas Holdings GP Inc.	Susan Rosenthal Grace O’Brien
Township of Tay	Harold Elston
County of Simcoe	Marshall Green (excused)
Yuri Huminilowycz	George Dixon*
George Dixon	Self-represented*

DECISION DELIVERED BY M. A. SillS and order of the tribunal

Link to the Order

INTRODUCTION

1This was the Hearing of an appeal by Yuri Huminilowycz (“Appellant”) from the passing of Zoning By-law Amendment No. 2022-18 (“ZBA”), together with an appeal by George Dixon (“Appellant”) from the approval of Official Plan Amendment No. 41 (“OPA 41”) for the lands municipally known as 3282 Ogdens Beach Road and legally described as Part of Lots 18 and 19, Concession 3, in the Township of Tay (“Township”) (“subject lands”/“property”).

2The Appellants are residents of the Town of Midland (“Town”). For context, the distance between the westerly shoreline of the Township and the easterly shoreline of the Town is approximately 30 metres (“m”) at the nearest point and 350 m at the greatest distance. Mr. Dixon resides 145 m west of the subject lands, while Mr. Huminilowycz’s property is 1.1 kilometre (“km”) north-west.

3The subject lands lie along the western boundary of the Township abutting the Wye River and comprise an area of approximately 53 hectares (“ha”) with 680 m frontage along Ogdens Beach Road.

4The property is owned by Maple Leaf Marinas Holdings GP Inc. (“MLM”) and operates as the Wye Heritage Marina (“WHM”). The WHM currently has 700 boat slips and maintains 11 structures and various other amenities including boat storage buildings, a restaurant, sports court, pool, picnic areas, walking trails, playground, washroom facilities, and an office with administrative/security staff available from 8 a.m. to 2 a.m. during the boating season. The WHM is serviced by private communal sewage and water systems, and currently operates from May to October annually.

5The WHM has existed in its current development form since 1989, and precedes the shoreline urbanization of the Town, much of which took place between 2008 and 2012.

6MLM is proposing to further develop the property with a 74-unit seasonal, recreational trailer park with accommodations being limited to park model trailers and Class A and Class C motorhomes, as an accessory use to the WHM. The trailer park is proposed to be operational from April to November annually (the “Proposal”).

7Park Model Homes, while transportable recreational vehicles, are designed for more long-term or permanent placement at a destination. Class A is the largest class of motorhomes and offer the best and most luxurious features, including full kitchens and master bedrooms that can fit queen-sized beds. Class C motorhomes have a similar design to that of camper vans with the overhead cabin, but offer luxuries similar to Class A motorhomes. All of the intended units will be set on a concrete slab within their sites with provisions for parking, decking, setbacks to other sites, and landscaping areas.

PRELIMINARY PROCEDURAL MATTERS

8The Appeal Forms (A1) filed by both Messrs. Dixon and Huminilowycz indicate their respective appeal was filed on behalf of the Tiffen Basin Action Committee (“TBAC”), an unincorporated local community group. Therefore, Messrs. Dixon and Huminilowycz are the Appellants of Record in these proceedings.

9Messrs. Dixon and Huminilowycz have each provided a Curriculum Vitae (“CV”) and an Acknowledgement of Expert’s Duty Form affirming their understanding of their duty “to provide opinion evidence that is fair, objective and non-partisan”, and “is related only to matters that is within my area of expertise”.

10Mr. Dixon is a retired lawyer and is an appellant in this matter. He confirmed it was his intent to also represent Mr. Huminilowycz, and in particular, to cross-examine the witnesses presented by MLM. As is apparent from his Acknowledgment of Expert’s Duty Form, he was also seeking to be qualified as an expert witness.

11In opposition, MLM has provided a Book of Authorities comprising several decisions of the Tribunal and the Superior Court of Justice, wherein it has been consistently held that “one cannot be the witness and the agent for a party at the same time, one has to make a choice” [Jones v. Toronto (City), [2016] O.M.B.D. No. 891].

12In that same vein; “it is a trite principle of trial procedure that an expert witness provide independent assistance to the court and should never assume the role of advocate” [emphasis added], [Bailey v. Barbour, 2013 ONSC 4731, 2013 CarswellOnt 16529].

13Of greater gravity, Rule 4.1.01 (1) of the Rules of Civil Procedure (R.R.O. 1990, O.Reg. 194) stipulates that:

(1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

a) to provide opinion evidence, that is fair, objective and non-partisan;

b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise.

Duty Prevails

(2) – The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged”. (O. Reg. 438/08 s. 8.)

14At the direction of the Tribunal to decide which role he will assume in the hearing, witness or agent, Mr. Dixon confirmed he would represent Mr. Huminilowycz.

15Mr. Huminilowycz also provided an Acknowledgement of Expert Duty Form. According to his CV, Mr. Huminilowycz was a registered professional planner and a Member of the Canadian Institute of Planners (“CIP”) from 1974 – 1979. Putting aside that his accreditation as a registered professional planner and his membership in the CIP may have lapsed, the Tribunal finds that as an Appellant in this case, he does not meet the “fair, objective and non-partisan” standard that is required for qualification as an expert witness.

16Lastly, counsel for the County of Simcoe (“County”), Marshall Green, provided an account of the justifications and subsequent rationale that led to the County’s approval of OPA 41. Given that the County did not intend to present a case or to otherwise participate in the hearing, Mr. Green was excused.

CHRONOLOGY OF THE DEVELOPMENT PROPOSAL

17On March 2, 2020, MLM submitted applications to the Township seeking an OPA and a ZBA (the “Applications”) to facilitate the development of a seasonal recreational trailer park with 74 sites as an accessory use to the WHM. The Applications were deemed complete on March 6, 2020.

18The statutory public meeting was held remotely by Video and by Telephone Conference Call on May 27, 2020, and resulted in more than 50 members of the public providing written/oral comments. As a courtesy, the Notice of the public meeting was extended beyond the circulation area required under the Planning Act to include the owners of adjacent shoreline properties in the Township. The concerns raised by those property owners are generally related to noise, watercraft/snowmobile traffic, reduced setbacks, adverse impacts from the short term rental use, impact to species/wildlife, water quality and septic system, decreased property values, visual impact, lighting and pollution.

19The County as the final approval authority for the OPA, requested that additional studies be undertaken, including a Natural Heritage Study, a scoped Natural Heritage Evaluation and an Archaeological Assessment.

20Following from the public meeting, MLM provided a re-submission package to the Township on November 3, 2020, which included a revised conceptual plan, an addendum to the Planning Justification Report as well as several other reports and studies, and a response matrix addressing the comments and questions arising from the public meeting. The re-submission package was provided to Township Council in December, and a second public meeting was held on February 10, 2022.

21On March 9, 2022, Township Staff provided a favourable Planning Report to Council, and recommending that OPA 41 as revised and the implementing ZBA be approved. Township Council approved OPA 41 and passed the implementing ZBA on March 23, 2022. Subsequently, OPA 41 was approved by County Council with seven (7) minor modifications.

22The following reports and studies have been provided to support the development proposal:

(a) Planning Justification Report prepared by Innovative Planning Solutions dated February 2020;

(b) Planning Justification Report Addendum prepared by Innovative Planning Solutions dated October 30, 2020;

(c) Natural Heritage Evaluation (“NHE”) prepared by Cambium Inc. dated October 21, 2020 (peer reviewed by the Severn Sound Environmental Association);

(d) Arborist Plan prepared by Landmark Environmental Group Ltd. dated January 20, 2020;

(e) Tree Inventory, Analysis and Preservation Report prepared by Landmark Environmental Group Ltd. dated February 2020;

(f) Wave Uprush and Overtopping Assessment and Analysis Report prepared by Aqua Solutions 5 Inc. and Acqua Engineering Inc. dated Nov. 1, 2020 (peer reviewed);

(g) Functional Servicing and Preliminary Stormwater Management Report prepared by WMI & Associates Ltd. dated February 2020;

(h) Geotechnical Investigation Report prepared by Cambium Inc. dated January 31, 2020;

(i) Hydrological Study and Water Balance Analysis prepared by Wilson Associates dated February 4, 2020; and,

(j) Stage 1-2 Archaeological Assessment prepared by Irvin Heritage Inc. dated July 22, 2020; Conceptual Site Plan; Conceptual Masterplan; and Conceptual Trailer Site Plan.

SUBMISSIONS BY MLM

23MLM called four (4) witnesses, all of whom were qualified as experts in their respective area of expertise; Karla Tamayo (land use planner), Jeremy Prahl (certified environmental professional), Todd Weatherall (land use planner) and Darren Vella (planner).

24Ms. Tamayo was retained by MLM in 2019, and is a Candidate Member of the CIP. Together with Mr. Vella, she prepared a Planning Justification and an Addendum Planning Report. Ms. Tamayo provided non-opinion contextual evidence.

25The subject property has been largely cleared of vegetation, with light landscaping and gravel areas interspersed throughout and a forested area along the southern boundary, that is visually distinct from the cleared gravel areas.

26The Proposal involves two separate areas of the property; 1) the cleared area that has been used for boat storage for approximately 15 years, and 2) the western spit of the property, which is comprised of cleared gravel areas and lanes with some existing trees and minor accessory structures.

27The Applications effect the rezoning of approximately 1.8 ha of the cleared area to limit the use of these lands solely for boat storage. Notably, an Environmental Compliance Approval (“ECA”) has been obtained for the development of a new tile bed within the existing clearing. The location of the tile bed was approved in coordination with the Ministry of the Environment, Conservation and Parks (“MECP”) staff. This area is within the County Rural Land use designation.

28The second aspect of the Proposal involves approximately 4.5 ha of the marina lands, largely associated with the western marina spit. These lands have been mostly cleared of vegetation, with light landscaping and gravel areas interspersed throughout, and a forested area along the southern boundary, which is visually distinct from the existing cleared gravel areas. This area is currently used for off-season boat storage.

29The subject lands are designated ‘Rural’ and ‘Greenlands’ in the COP. The lands proposed for development are located entirely within the Rural designation – no development is occurring on the lands designated Greenlands.

30The subject lands are designated Marine Commercial (“MC”) with an ‘Environmental Protection 3 overlay’ (“EP 3 overlay”) in Schedule ‘A’ of the TOP. The Marine Commercial designation is applied to the whole of the property and is primarily for marine functions, such as boat docking and storage, service and repair, and car parking. All development or redevelopment in the ‘Marine Commercial’ designation is subject to Site Plan Control.

31These lands are also identified as lying partially within the EP 3 overlay. The majority of the lands within the EP 3 overlay include the woodlands and wetlands on-site, and also take in the lands designated Rural in the COP, which includes the lands currently being used for boat storage, and through the Applications, will continue to be used for boat storage.

32The EP 3 overlay is one of three environmental land use policy sections in the TOP, which in this case, recognizes existing development rights and the ability to develop in accordance with the underlying designation. Other uses permitted within the MC designation include hotels, motels, restaurants, recreational facilities, and retail needs.

33The EP 3 overlay designation recognizes areas within the Township which form part of the NHS but where some form of development rights and/or permissions have already been granted. The intent of the EP 3 overlay designation is to maintain, to the greatest extent possible, the important features, functions and linkages of these areas by integrating the development with the natural environment through sensitive design.

34As a park model/motorhome development is not identified as a permitted use on Marine Commercial lands (whereas hotels and motels are) a site specific OPA is required to permit the intended use.

35The subject lands are zoned ‘Marine Commercial (C6)’ and ‘Lakeside (LS)’ by the Township Zoning By-law No. 2000-57. LS consists of the water surrounding the marina. The uses permitted by this zone includes marinas, restaurants, accessory residential uses, and hotel uses (boat storage is permitted as part of a marina use). Hotel uses are defined in the Township ZBL as “buildings designed for the accommodation of the travelling or vacationing public wherein no room shall be occupied by the same guest for a period exceeding 31 days”.

36As the current zoning does not permit a park model/motorhome site, the ZBA is required to implement the Proposal. The ZBA rezones approximately 1.8. ha of the cleared area to limit the use of these lands solely for boat storage and to restrict this area from other marine commercial uses. The intended development will provide additional opportunities for recreational uses and the proposed model/motorhome sites will provide a logical expansion of an existing marina use, and does not present an uneconomical expansion to the existing services or infrastructure.

37Ms. Tamayo confirmed that no noise complaints have been filed against the MLM for the past 10 years in which the Township has kept a record.

38Jeremy Prahl is a Certified Environmental Professional and is currently the Manager of Natural Sciences Group / Senior Ecologist at Cambium Inc. Mr. Prahl has more than 13 years working experience as an Ecologist in an environmental consulting role and was retained by MLM to prepare a Scoped NHE in June 2020. The nature and scope of the work undertaken, methodology, study protocols, outcomes and conclusions are detailed in his witness statement.

39Following from his NHE and Impact Assessment, it is Mr. Prahl’s professional opinion that the Proposal will not negatively impact the Key Natural Heritage Features (“KNHFs”) or the Key Hydrological Features (“KHFs”) located on or adjacent to the WHM lands, or their ecological functions.

40In that regard, it is his professional opinion that the proposed development meets the applicable natural heritage policies of the Provincial Policy Statement, 2020 (“PPS”), and the relevant policies of the Growth Plan for the Greater Golden Horseshoe, 2019 (“GP”), the COP, and the Township of Tay Official Plan (“TOP”). These policies generally seek to ensure that there are no negative impacts to KNHFs, KHFs and their ecological functions.

41Based on the work completed as part of the NHE, and in review of the documents related to the Applications, he was able to confirm that no development or site alteration is being proposed, or will occur within the KNHFs and/or KHFs. The only development in areas adjacent to the KNHFs and KHFs is an accessory use within the Vegetation Protection Zone (“VPZ”), of which a distance of 30 m only is required. The NHE was peer reviewed by the Township and the Severn Sound Environmental Association (“SSEA”) to ensure that the development has been adequately designed to protect the environment and the ecosystems.

42The Applications propose the redevelopment of an area that is actively used and maintained for marina operations to permit a recreational accommodation in the form of park model and motorhomes. Through the impact assessment, it was determined that as the proposed development does not expand into the KHNFs or KHFs, no direct impacts are anticipated.

43The area of the property subject to the ZBA and OPA 41 is currently used for boat storage, internal roadways and amenity space associated with the existing marina. This area is cleared and graded, dominated by gravel and turf grass, and provides very limited natural cover. The ZBA will limit permitted uses in the woodland opening, providing additional protection to surrounding KNHFs and KHFs.

44The area located north of the woodland and proposed for the recreational accommodation, and the area proposed for boat storage within the woodland opening, contain no KNHFs or KHFs.

45Lands adjacent to the proposed development were reviewed as part of the NHE and potential indirect impacts to the KNHFs and KHFs identified in those areas were also assessed. An evaluation has been completed to determine appropriate setbacks, buffers and vegetation protection zones adjacent to the identified KNHFs and KHFs. The NHE provides recommendations to avoid or mitigate potential indirect adverse impacts, including but not necessarily limited to:

• A 5 m Vegetation Protection Zone (“VPZ”) is being recommended for the woodland feature, which is a Candidate Significant Woodland and encompasses wetlands, Candidate Significant Wildlife Habitat and Candidate Habitat of Endangered and Threatened species. This measure was determined to be sufficient to prevent negative impacts to the KNHFs and KHFs adjacent to the proposed development.

• Fencing is to be installed along the outer edge of the 5 m woodland VPZ to prevent human encroachment into the adjacent KNHFs and KHFs and to discourage wildlife access to developed areas of the subject property.

• A 15 m naturalized landscape buffer with wildlife habitat enhancements along the Wye River will improve connectivity with existing natural areas and enhance the riparian corridor of the Wye Marsh to the benefit of various wildlife species. This measure was determined to be sufficient to prevent negative impacts to the feature and its ecological functions. In his opinion, a 5 m woodland VPZ with fencing and 15 m shoreline naturalized landscape buffer is sufficient to prevent negative impacts to KNHFs and KHFs adjacent to the proposed development, and will serve to improve connectivity within the upper- and lower-tier municipal Natural Heritage Systems (“NHS”). This re-naturalization and enhancement would not occur but for these redevelopment applications.

46In his opinion, the recommendations in his NHE are sufficient to ensure that no adverse impacts are to be anticipated from the proposed development, and once implemented, will provide improved protection to the KNHFs and KNS and their functions which occur on adjacent lands than what is currently present.

47Todd Weatherell is the Township’s Manager of Planning and Development Services. He is a Full Member of the Ontario Professional Planning Institute and a Certified Planning Technician (Canadian Association of Certified Planning Technicians) with 23 plus years experience in land use planning.

48Mr. Weatherell cited several PPS, GP, COP and TOP policies that in his view support his recommendation that OPA 41 and the ZBA to facilitate the development of the proposed recreational trailer park as an accessory use to the existing marina, be approved.

49The PPS establishes policies for sustaining “healthy, liveable and safe communities” by avoiding development and land use patterns which may cause environmental or public health and safety concerns, and that contribute to the rural area and support tourism.

50The NHE recommends avoidance and mitigation measures and best practices which will help protect the NHFs associated with the expansion of the marina. The proposed 74 model/motorhomes sites for seasonal recreational use is not anticipated to have any unwanted impacts, provided the recommendations contained in the NHE are followed, which will be implemented through a site plan agreement.

51The proposed Applications are consistent with the policies of the PPS as opportunities are being provided for increased tourism, and economic development. The Proposal is expected to contribute to the rural area and will support the tourism industry in the Township.

52The PPS sets priorities on the types of servicing that should accompany development. The proposed private communal water and sewage system is appropriate as municipal servicing is not available. The subject lands have been approved for an ECA to expand the existing water and sewer services on site. This upgrade will ensure an updated sewage system to satisfy the most current engineering standards.

53KHFs and KNHFs are addressed in the GP: It is his opinion, the Proposal conforms with the GP as it will provide additional recreational uses, provides a tourism related use as well as recreational dwellings for seasonal accommodation.

54The COP provides that lands within the Rural designation shall be the focus of rural and agricultural land uses. Rural commercial development that cannot be located and is not appropriate in a settlement area may be permitted in the Rural designation subject to certain conditions, one of which is that suitable sewage and water services for individual servicing is available. Resource-based recreational activities, including recreational dwellings, are permitted in the Rural designation.

55The proposed Applications conform with the COP as resource based recreational activity, which includes recreational dwellings, is being provided which is more suited to the Rural designation versus within a settlement area.

56The WHM provides recreational opportunities, commercial services, and access to Georgian Bay. The expansion of tourist and recreational opportunities through establishments such as the WHM is encouraged through the applicable provincial, regional and local policy framework.

57The primary use of lands designated Marine Commercial shall be for boat docking (long term and transient), boat storage, car parking, fuel and water supply, sewage pump outs and minor repair service. Accessory uses, including a hotel, motel, restaurant, recreation facility, related retail, servicing and repair of boats and snowmobiles, and similar uses for recreational activities.

58The Township is situated in the heart of some of the most spectacular natural and waterfront areas in the province, and has a long and rich history of offering four-season recreation and leisure pursuits for residents and visitors alike.

59Tourism and waterfront development presents a significant opportunity for the Townships’ future; support for, and the expansion of, the Township’s tourism and the waterfront infrastructure is a goal of the TOP. In his opinion, the Proposal conforms with the policies of the TOP as it will promote tourism, and waterfront and service commercial opportunities in the Township, while protecting the NHS.

60Based on his review and analysis it is Mr. Weatherell’s professional opinion that OPA 41 and the ZBA to facilitate the development of the proposed recreational trailer park as an accessory use to the existing marina represents good planning and is in the public interest. The proposal represents a logical expansion, which will support a diversified rural economy through the introduction of a recreational trailer park and will bring additional visitors to the area. The proposal is appropriate within the prevailing rural context and the proposed zoning will ensure there are no negative impacts on the environmental features.

61Darren Vella is a professional planner and a member of the Canadian Institute of Planners (“CIP”) and the Ontario Professional Planners Institute (“OPPI”) with more than 20 years of experience as a land use planner. He was retained by MLM in 2019.

62Mr. Vella prepared a detailed Planning Justification Report and response to the primary issues and concerns raised by the Appellants, including: the protection of the NHS; transient/short-term rental use; archeological assessment; and land use compatibility.

63In this case, the rationale for the development of recreational accommodations is to offer alternative forms of accommodations for marina users (many of whom are not residents within the vicinity of the Township) as an alternative to staying on their boats.

64In his opinion, the proposal is in conformity with the policy direction in the Township OP as it will promote tourism, and provide waterfront and service commercial opportunities while protecting the NHS. An ECA has been obtained for the upgrade and the expansion of the sewage system. This upgrade will ensure an updated sewage system that meets the most current engineering standards.

65In regard to the protection of the NHS, the NHE confirms that no development is occurring in natural areas and therefore, direct impacts to KNHFs and KHFs is avoided. The NHE further confirms that the proposed development does not result in any direct impacts to wetlands, critical fish habitat or any other sensitive features, and any potential indirect impacts to these areas can be addressed through the recommended measures and practices.

66In response to the issue of compatibility of short term rentals, it is Mr. Vella’s position that the proposed use is compatible with the adjacent homes and will not create negative impacts that cause serious harm. He also noted that short-term accommodation rentals are also permitted in the Town.

67However, it is his opinion that the Applications should not be viewed for appropriateness in relation to the standards and principles for short term rentals. In that regard, unlike short term rentals the MLM provides staff onsite to monitor activity and enforce rules and regulations, similar to that of a hotel or motel. The park model/motorhome development is intended as an alternative form of accommodation to the hotel and motel uses that are currently permitted on the subject lands.

68From a land use compatibility perspective; the proposed Applications seek to introduce park model homes/motorhomes as recreational and tourist accommodations on a marine commercial property, where the use of the lands for travelling and vacationing publicly is already recognized. The proposed development has been thoughtfully planned to offer a compatible urban design to the surrounding permanent single-detached shoreline residential uses within the Township and the Town.

69The Applications provide seasonal recreation accommodations that will diversify the experience for users of the marina. By incorporating additional naturalized areas and trails, the proposal provides a balance of open spaces and facilities. In addition to providing for an appropriate transition in built form (single storey) and maintaining compatible waterfront views, the proposed development will offer a 15 m naturalized landscape buffer along the eastern shores of the Tiffin Basin.

70The NHE confirms that the proposed development does not result in any direct impacts to wetlands, critical fish habitat, or any other environmentally sensitive areas. Moreover, potential indirect impacts to these areas can be addressed through the recommended measures and practices to ensure that there are no adverse impacts from the proposed development.

71In regard to whether the Applications sufficiently address and implement the measures recommended in the NHE and the Archeological Assessment, the recommendations provided by Mr. Prahl have been incorporated into the approval documents and will be dealt with through the Site Plan Approval process.

72The Archeological Assessment was submitted and reviewed by the Ministry of Heritage, Sport and Tourism and Cultural Industries, and has been entered into the Ontario Public Register of Archeological Reports. As is the case for all Archeological Reports, if artifacts are found in the course of the construction process, work must stop and reporting has to occur.

73Section 4.2.2 of the GP relates to the NHS. At the time the Applications were deemed complete, the NHS for the GP had not been implemented in the applicable upper-tier OP, and therefore, the NHS identified in the applicable OPs of the Township and County applied and were reviewed in relation to the NHS policies of the GP.

74Notably, s. 4.2.2.3 of the GP provides that within the NHS new development or site alteration will demonstrate certain criteria. However, no new development or site alteration is proposed in the NHS as mapped by the Township and County.

75In response to the issue raised by the Appellants regarding s. 4.2.4 of the GP, Mr. Vella directed the Tribunal to s. 4.2.4.1 which states:

“outside settlement areas, a proposal for new development or site alteration within 120 m of a KNHF within the NHS for the GP or a KHF will require a natural heritage evaluation or hydrologic evaluation that identifies a vegetation protection zone, which a) is of sufficient width to protect the KNHF and its functions from the impacts of the proposed change; b) is established to achieve and be maintained as natural self-sustaining vegetation; and c) for KHFs, fish habitat, and significant woodlands, is no less than 30 m measured from the outside boundary of the KNHF or KHF”.

76Section 4.2.4.3 of the GOP provides that “development or site alteration is not permitted in the VPZ, with the exception of that described in s. 4.2.3.1 or shoreline development as permitted in accordance with s. 4.2.4.5 of the GP”. [emphasis added]

77Section 4.2.3.1. of the GP states that:

outside of settlement areas, development or site alteration is not permitted in key natural heritage features that are part of the Natural Heritage System for the Growth Plan or key hydrologic features except where, among other things e) expansions to existing buildings and structures, accessory structures and uses, and conversions of legally existing uses which bring the use more into conformity with the Plan, subject to demonstration that the use does not expand into any KHF feature or KNH feature or vegetative protection zone unless there is no other alternative, in which case any expansion will be limited in scope and kept within close geographic proximity to the existing structure.

78Mr. Vella maintains the proposed Applications meet this exception as the recreational trailer park units are accessory uses to the marina. For instance, should the marina use cease to exist, so would the recreational trailer park. As such, the development is permitted to encroach into the GP’s VPZ.

79It is also notable that the VPZ is currently comprised of lands that have been historically cleared and disturbed for marina use, and currently demonstrate to be unvegetated, gravel areas. Implementing landscape plans to revegetate and enhance these lands as part of the proposed development would bring the use more into conformity with the GP.

80In his opinion, the unvegetated gravel areas are an appropriate location to accommodate the proposed accessory use. Utilizing these lands for the proposal ensures that the expansion into the proposed VPZ is limited in scope to only historically cleared and disturbed lands. It is noteworthy that the Township, the County and the SSEA accepted or confirmed that this exception applies to the proposal.

81Mr. Vella asserts the WHM has demonstrated over its many years in operation that it is a significant component of the Township’s tourist commercial base in that it provides recreational opportunities, commercial services, and access to Georgian Bay. The expansion of tourist and recreational opportunities through establishments such as the WHM is encouraged through the applicable provincial, regional and local policy framework.

82The WHM has a long history and proven record of being a valuable asset to the tourism industry in the Township. The development proposal represents a logical expansion of the marina and the introduction of a recreational trailer park will provide additional opportunities for tourism thereby, contributes to the economy of the Township.

83Based on his extensive review and analysis, it is Mr. Vella’s professional opinion that the relevant matters of Provincial interest set out in s. 2 of the Planning Act have been appropriately regarded. The Applications demonstrate consistency with the PPS (2020 and 2014), and conformity to the GP (2019 and 2020), the COP (2019), and OPA 7 (not yet in-force and effect). In his opinion, the proposed Applications represent good planning and are in the public interest.

THE APPELLANTS’ SUBMISSIONS

84Mr. Huminilowycz contends the proposed recreational trailer park is incompatible with residences in the Town because it will result in increased noise from boat and jet ski activity. He confirmed he does not have a problem with a hotel, which is currently permitted as-of-right, because there would be management staff on site to address noise concerns. Mr. Huminilowycz disagrees with the Township’s and County’s position that the VPZ can be less than 30 m.

85Mr. Dixon is claiming that OPA 41 in its’ current form does not comply with the GP because it fails to identify the required 30 m, and would permit development or site alteration within the VPZ. He disagrees with the Township’s and the County’s opinion that the VPZ could be less than 30 m.

86In that regard, it is his position that under the GP any proposed development or site alteration must be setback a minimum of 30 m from wetlands, fish habitat and significant woodlands; this minimum 30 m vegetation protection zone must be established and maintained as natural self-sustaining vegetation, and development or site alteration must not encroach into a required VPZ. In support of this position, he referred the Tribunal s. 4.2.4 of the GP:

• Outside settlement areas, a proposal for new development or site alteration within 120 m of a key natural heritage feature within the Natural Heritage System for the Growth Plan or a key hydrologic feature will require a natural heritage evaluation or hydrologic evaluation that identified a vegetive protection zone, which: is of sufficient width to protect the key natural heritage feature or key hydrologic and its functions from the impacts of the proposed change; is established to achieve and be maintained as natural self-sustaining vegetation; and for key hydrologic feature, fish habitat, and significant woodlands is no less than 30 m measured from the outside boundary of the key natural heritage feature or key hydrologic feature.

87Mr. Dixon maintains that although the exception set out in s. 4.2.3.1 of the GP, “does not apply”, neither does it eliminate the requirement to first identify a VPZ of sufficient width since the only thing the exception would allow, if it applied, would be some degree of development or site alteration within an identified vegetative protection zone. “We submit that when correctly interpreted the exception has no application to the Marina’s development proposal”.

88In that regard, “the COP refers to a 30 m VPZ “adjacent to the significant woodland” but then makes the actual provision and design of the VPZ a requirement of site plan approval. “We submit OPA 41 in its current form does not comply with the GP because it fails to identify the required 30 metre VPZ and would not also permit development or site alteration within the VPZ”.

89Mr. Dixon further asserts that the proposed recreational trailer park would not be permitted in or adjacent to a settlement area in the Township and should not be permitted adjacent to a settlement area in the Town based on incompatibility. The reports written to justify OPA 41 and the ZBA fail to address land use compatibility of the proposed seasonal recreational trailer park with the adjacent community of year-round homes in the Town. In terms of compatibility, Mr. Dixon used the example of a noisy gathering of vacationers enjoying themselves and keeping residents of the Town up at 2 a.m.

ANALYSIS AND DISPOSITION

90In arriving at this disposition, the Tribunal has had regard to the documents and illustration materials entered as exhibits at the hearing, has considered the evidence and opinions of the expert witnesses called by MLM, the testimony of Mr. Huminilowycz and the written closing submissions of Ms. Rosenthal and Mr. Dixon.

91From a land use policy and environmental perspective, the Tribunal finds the evidence and opinions of the expert witnesses called by MLM both creditable and persuasive, and accepts same in the determination of these Applications.

92By contrast, the Appellants did not call any expert evidence or provide any independent technical studies/reports, nor creditable evidence to support the eighteen issues and other concerns they have raised, or that is capable of shaking or otherwise diminishing the substantive evidence and opinions proffered by the expert witnesses of MLM.

93The Tribunal takes particular note of Mr. Dixon’s argument in regard to land use compatibility in regard to noise nuisance. In the first instance, the WHM existed in its current location long before the shoreline development occurred in the Town and has proven to be a valuable asset and contributor to the tourism in the Township.

94Moreover, it is just as likely that outdoor activities taking place at or from the shoreline properties in the Town could create noise disturbance for the boaters and future users of the trailer park. In the same vein, noise disturbance is just as likely to emanate from the boats moored at the marina.

95In any event, marina staff are available on site between 8 a.m. and 2 a.m. during the boating season, and otherwise, there are local authorities that can deal with these kinds of complaints. The Tribunal finds it is worthy of note that there have not been any noise complaints filed against the WHM for the past 10 years.

96In regard to s. 4.2.3.1 of the GP, the Tribunal finds that as the trailer park units are an accessory use to the marina, the exception applies in this case.

97The Tribunal finds that appropriate regard has been had to the relevant provisions in s. 2 of the Planning Act. The Proposal conforms with the applicable policies of the PPS, the GP, the COP and the TOP and represents good land use planning, in the public interest.

ORDER

98THE TRIBUNAL ORDERS that the appeals are dismissed and Official Plan Amendment No. 41 and the Zoning By-law Amendment are approved.

“M. A. Sills”

M. A. SILLS

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.