Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 02, 2024

CASE NO(S).: OLT-23-000882 OLT-23-000126

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

Appellant: John Rose Subject: Official Plan Amendment No. 45 Description: To allow for development on vacant lands and redevelopment for properties that contain a residential dwelling Reference Number: TA-OPA-23045 Property Address: Lots 18, 19 & 20, Concession 5 & 6 (Paradise Point and Grandview Beach) Municipality/UT: Township of Tay/County of Simcoe OLT Case No.: OLT-23-000882 OLT Lead Case No.: OLT-23-000882 OLT Case Name: Rose v Tay (Township)

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

Appellant: John Rose Subject: By-law No. 2022-73 Description: To allow for development on vacant lands and redevelopment for properties that contain a residential dwelling Reference Number: 2022-ZBA-05 Property Address: Lots 18, 19 & 20, Concession 5 & 6 (Paradise Point and Grandview Beach) Municipality/UT: Township of Tay OLT Case No.: OLT-23-000126 OLT Lead Case No.: OLT-23-000126 OLT Case Name: Rose v Tay (Township)

Heard: April 11, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
John Rose	Self-Represented*
Township of Tay	Carly Emmett
County of Simcoe	Zarah Walpole (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY S. DIXON ON APRIL 11, 2024 AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Decision and Order arises from two consolidated appeals filed by John Rose pursuant to s. 17(36) and s. 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), concerning Official Plan Amendment No. 45 (“OPA 45”) to the Township of Tay (“Township”) Official Plan (“TOP”) and Zoning By-law Amendment No. 2022-73 to the Township Zoning By-law (“ZBA 2022-73”).

2OPA 45 and ZBA 2022-73 seek to permit future development on vacant lands and expansions to existing dwelling units, subject to new septic requirements and municipal water connections, in the area legally described as Lots 18, 19 and 20, Concessions 5 and 6, and known locally as Grandview Beach/Paradise Point within the Port McNicoll Settlement Area, in the Township (“Subject Lands”).

3OPA 45 and ZBA 2022-73 were adopted and passed, respectively, by the Township on January 25, 2023. OPA 45 was subsequently approved with modifications by the County of Simcoe (“County”) on July 4, 2023.

WITHDRAWAL OF ZBA 2022-73 APPEAL

4Prior to the Hearing, Mr. Rose filed a letter with the Tribunal confirming his withdrawal of the appeal to ZBA 2022-73 (Case No. OLT-23-000126), subject to the Tribunal’s approval of proposed revisions to OPA 45 on consent of all Parties. The withdrawal letter was marked as Exhibit 2.

SETTLEMENT

5In accordance with the withdrawal letter, the Parties advised the Tribunal that they had reached a settlement of the appeals, whereby Policy 4.1.1.4.3.1.4 of OPA 45 is proposed to be modified to provide further clarification and protections with regard to hydrogeological assessments and future development on the Subject Lands (“Settlement”).

6In support of the Settlement, the Tribunal was in receipt of a Joint Document Book containing executed Minutes of Settlement between the Parties and the sworn Affidavit of Todd Weatherell. The Joint Document Book was marked as Exhibit 1.

7Mr. Weatherell is the Manager of Planning and Development for the Township. He is a Registered Professional Planner and has been practicing land use planning for approximately 24 years. He has been qualified by the Tribunal to provide expert opinion evidence on matters pertaining to land use planning on numerous occasions and was so qualified again by the Tribunal at the Hearing.

ANALYSIS

Planning Opinion

8Attached to Mr. Weatherell’s affidavit was Staff Report No. PDS-2022-79 regarding OPA 45, prepared by Mr. Weatherell (“Staff Report”). At the Hearing, Mr. Weatherell adopted the recommendations and opinions of the Staff Report and further advised the Tribunal that his adopted opinions from same continue to hold true in respect of the proposed modifications to OPA 45.

9The Staff Report provides an analysis of the relevant policies of the Provincial Policy Statement, 2020 (“PPS”), the Growth Plan for the Greater Golden Horseshoe, 2019, as amended (“Growth Plan”), the County Official Plan (“COP”), and the TOP.

10In Mr. Weatherell’s professional opinion, OPA 45, as proposed to be modified by the Settlement:

a) Has due regard for matters of provincial interest as set out in s. 2 of the Act;

b) Is consistent with the PPS;

c) Conforms to the Growth Plan;

d) Conforms with the COP; and

e) Represents good planning.

Restrictions on Residential Uses

11The Tribunal took note of provisions within the modified OPA 45 that limit development to “single residential uses” on a lot. Mr. Weatherell confirmed that the intent of said language was to permit only detached dwellings on each lot and to prohibit semi-detached dwellings, duplexes, and accessory dwelling units.

12The Tribunal asked Mr. Weatherell to provide his opinion regarding s. 16(3) of the Act regarding restrictions for residential units, which states the following:

Restrictions for residential units

16(3) No official plan may contain any policy that has the effect of prohibiting the use of,

(a) two residential units in a detached house, semi-detached house or rowhouse on a parcel of urban residential land, if all buildings and structures ancillary to the detached house, semi-detached house or rowhouse cumulatively contain no more than one residential unit;

(b) three residential units in a detached house, semi-detached house or rowhouse on a parcel of urban residential land, if no building or structure ancillary to the detached house, semi-detached house or rowhouse contains any residential units; or

(c) one residential unit in a building or structure ancillary to a detached house, semi-detached house or rowhouse on a parcel of urban residential land, if the detached house, semi-detached house or rowhouse contains no more than two residential units and no other building or structure ancillary to the detached house, semi-detached house or rowhouse contains any residential units. 2022, c. 21, Sched. 9, s. 4 (1).

13The Tribunal was directed to s. 1 of the Act, which provides the following meaning of a “parcel of urban residential land”:

Interpretation

1 (1) In this Act,

“parcel of urban residential land” means a parcel of land that is within an area of settlement on which residential use, other than ancillary residential use, is permitted by by-law and that is served by,

(a) sewage works within the meaning of the Ontario Water Resources Act that are owned by,

(i) a municipality,

(ii) a municipal service board established under the Municipal Act, 2001,

(iii) a city board established under the City of Toronto Act, 2006,

(iv) a corporation established under sections 9, 10 and 11 of the Municipal Act, 2001 in accordance with section 203 of that Act, or

(v) a corporation established under sections 7 and 8 of the City of Toronto Act, 2006 in accordance with sections 148 and 154 of that Act, and

(b) a municipal drinking water system within the meaning of the Safe Drinking Water Act, 2002; (“parcelle de terrain urbain d’habitation”)

14In Mr. Weatherell’s opinion, the Subject Lands do not constitute a parcel of urban residential land as defined by the Act as the Subject Lands are not served by municipal sanitary sewage works. Accordingly, s. 16(3) of the Act does not apply to the Subject Lands and the TOP may restrict the number of residential units on a lot within same.

FINDINGS

15Based on the uncontroverted expert opinion evidence of Mr. Weatherell, the Tribunal finds that OPA 45, as modified and set out in Schedule 1 to this Decision and Order, has regard to matters of provincial interest as set out in s. 2 of the Act, is consistent with the PPS, conforms to the Growth Plan and the COP, represents good planning, and is in the public interest. As required by the Act, the Tribunal has had regard to the decisions of the Township and the County regarding OPA 45.

16The Tribunal acknowledges that, pursuant to the following Order confirming the approval of the modified OPA 45, Mr. Rose’s appeal of ZBA 2022-73 (Case No. OLT-23-000126) will be withdrawn in accordance with Exhibit 2 and the executed Minutes of Settlement.

ORDER

17THE TRIBUNAL ORDERS that the appeal pursuant to s. 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended, being Case No. OLT-23-000882, is allowed in part.

18THE TRIBUNAL ORDERS that Official Plan Amendment No. 45 to the Official Plan for the Township of Tay is modified as set out in the attached Schedule 1 and is approved as modified.

“S. Dixon”

s. dixon

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.

SCHEDULE 1

AMENDMENT NO. 45

TO THE OFFICIAL PLAN FOR THE TOWNSHIP OF TAY

THE CORPORATION OF THE TOWNSHIP OF TAY

BY-LAW NO. 2023-04

A By-law to adopt Amendment No. 45 to the Official Plan for the Township of Tay.

WHEREAS the Council of the Corporation of the Township of Tay, in accordance with the provisions of the Planning Act, R.S.O. 1990, as amended, HEREBY ENACTS AS FOLLOWS:

1. THAT the attached explanatory text, policies and schedule constitute the Amendment No. 45 to the Official Plan for the Township of Tay shall be and is hereby adopted.

2. THAT the Clerk is hereby authorized and directed to make application to the County of Simcoe for approval of the aforementioned Amendment No. 45 to the Official Plan for the Township of Tay.

3. THAT this Bylaw shall come into force and take effect on the date of its final passing, subject to the approval of the County of Simcoe. Read three times and finally passed in open Council this 25th day of January, 2023.

Mayor, Ted Walker

Clerk, Katelyn Johns

THE CONSTITUTIONAL STATEMENT

PART A - THE PREAMBLE: does not constitute part of this Amendment.

PART B - THE AMENDMENT: consisting of the following text and Schedule “A”, constitutes Amendment No. 45 of the Township of Tay Official Plan.

PART C – THE APPENDIX: which does not constitute part of this Amendment. This appendix contains more specific information regarding the Amendment and the background work that led to the preparation of the Amendment.

AMENDMENT NO. 45

TO THE TOWNSHIP OF TAY OFFICIAL PLAN

PART A - THE PREAMBLE

1.0 Purpose of the Amendment:

The purpose of this Official Plan Amendment is to provide policies to direct and control development and redevelopment in the Grandview Beach/Paradise Point area.

2.0 Location:

The subject lands are located in Lots 18, 19 and 20, Concessions V and VI, of the Port McNicoll Settlement Area, Schedule “C” to the Official Plan. The subject lands are identified on Schedule “A” attached to and forming part of this Amendment.

3.0 Basis:

The Grandview Beach/Paradise Point area has been the subject of significant involvement by the Township and area residents in identifying problems and solutions related to development. Development restrictions have been in place in the Community since 1974 in response to environmental and well water quality issues. Concerns were raised about the potential public health and safety impacts from the unfiltered migration of surface and sub-surface contaminants into the local ground water supply. Groundwater supplies are highly vulnerable to recurrent bacteriological contamination. Water quality in the lower limestone aquifer is poor. Studies since 1974 have looked at various options to address these issues. This involvement has included Class Environmental Assessments, Hydrogeological Assessments, Archaeological Assessments, and Heritage Impact Assessments. Generally the area exhibits very little overburden and in some locations exposed bedrock. Contamination of private wells is of significant concern in the area. The Township’s Official Plan was amended by Official Plan Amendment #29 in 2004 and Official Plan Amendment #33 in 2007 to define a reasonable level of what development and redevelopment may be permitted in the absence of full servicing.

With the extension of municipal services in 2017, and with the completion of a Hydrogeological Study in 2020 of the area, the need to review the existing freeze on local development and redevelopment requires further review. The policies and provisions set out herein are intended to provide for controlled and limited development and redevelopment. Development that by its nature or technical improvements will not further add to the existing environmental concerns, in a noticeable manner, may be considered.

The policies of this Official Plan Amendment will take the approach of limited growth provided the land owner is prepared to take appropriate measures so that any development or redevelopment will not likely contribute further to the degradation of the surrounding properties or contribute to a greater risk for area residents.

PART B - THE AMENDMENT

This part of the document, entitled “Part B – The Amendment”, and consisting of the following text and Schedule “A”, constitutes Amendment No. 45 of the Township of Tay Official Plan.

4.0 DETAILS OF THE AMENDMENT

That Schedule “C” – Port McNicoll Settlement Area is hereby amended by identifying the lands as shown on Schedule “A” attached hereto and forming part of this Amendment along with the notation “Subject to Section 4.1.1.4.3 - Grandview Beach/Paradise Point Development Policy Area”.

Section 4.1.1.4.3 Grandview Beach/Paradise Point Development Policy Area

is hereby deleted and replaced with the following:

4.1.1.4.3 Grandview Beach/Paradise Point Development Policy Area

4.1.1.4.3.1 General Principles

4.1.1.4.3.1.1 Those lands, as outlined on Schedule “C”, Port McNicoll Settlement Area, within the Grandview Beach/Paradise Point Development Policy Area and which are designated “Village Residential”, “Open Space” and “Environmental Protection 3” is subject to the policies of this section.

4.1.1.4.3.1.2 The Grandview Beach/Paradise Point Area is a mixture of permanent and seasonal residential uses. Many of the current dwellings were constructed well over 40 years ago. The geology of the area exhibits significant sedimentary bedrock, exposed at the surface, and where present the native soils are described as thin clay and gravel overburden. The bedrock is described as flat lying, layered limestone which allows for both the vertical and horizontal movement of groundwater. The concern associated with the above is the unfiltered migration of contaminants into the local groundwater supply.

4.1.1.4.3.1.3 The guiding principle regarding development and redevelopment shall be that no development or redevelopment should be permitted that would likely contribute to additional effluent loading and groundwater contamination within the policy area. Only proposals that utilize municipal water and a tertiary septic system will be considered.

4.1.1.4.3.1.4 In 2020, a Stage 3 Final Report – Hydrogeological Assessment was undertaken for the area. The report concluded that:

a. All future development should occur only with connection to the municipal water system.

b. Vacant lots that are to be developed shall be connected to municipal water services.

c. Any existing lots that utilize a private well are encouraged to connect to the municipal system and have the well properly abandoned. The work required to abandon an existing well must be conducted by an appropriately licensed well contractor and,

d. Development shall proceed on a staged approach (with monitoring). An initial tranche of up to twenty (20) vacant lots may be released for development for single residential use only, provided each lot contains only a single individual domestic sewage system. These lots are to be reasonably distributed about the area so that their effects, if any, will be similarly dispersed. During this development period, monitoring (of the monitoring wells constructed for the study) are to continue on a semi-annual basis by the Township until a minimum of three years has passed since all of the released lots have been developed. At the end of the monitoring period, the results are to be reviewed by a Qualified Person to verify that the impacts(s) are not occurring or are not likely to occur.

e. Provided that impacts are not evident or suggested by the monitoring data after development of the initial 20 lots, the Qualified Person may recommend a second tranche of lots be released and monitoring continue. Any division of an existing large lot must be based on a minimum lot size of 0.5 ha for both the new lot and the retained lands. Only single residential uses are allowed.

4.1.1.4.3.1.5 Development, redevelopment, and limited expansion of existing dwellings may be considered based on the policies of this section.

4.1.1.4.3.2 Permitted Uses

4.1.1.4.3.2.1 Lands designated “Village Residential” shall be for low density single detached dwellings only, except for those lands zoned Neighbourhood Commercial and Tourism Commercial which permit limited commercial uses.

4.1.1.4.3.2.2 The permitted uses of Section 4.6 - Open Space and Section 4.8.4 - Environmental Protection Policy Area 3 may be allowed but only in compliance with the no additional effluent loading principle.

4.1.1.4.3.3 General Policies

4.1.1.4.3.3.1 It is intended that development is to take place under the Holding Zone category as set out in the Zoning By-law.

4.1.1.4.3.3.2 All vacant lots that are to be developed shall:

a. utilize a tertiary sewage treatment system,

b. be connected to municipal water, and

c. be required to apply to remove the Holding Zone provision.

4.1.1.4.3.3.3 An existing dwelling unit may be replaced or enlarged provided the existing septic system or new septic system is designed and approved to manage the effluent load of the replacement or addition, and such dwelling unit shall be connected to the municipal water system. Where a new septic system is required, a tertiary sewage treatment system shall be required.

4.1.1.4.3.3.4 Additions to existing dwellings such as a garage, carport, porch, deck, or anything that does not increase the habitable living area of the dwelling unit are permitted without applying to remove the Holding Zone provision.

5.0 IMPLEMENTATION

The provisions of the Official Plan regarding the implementation of that Plan shall also apply to this Amendment.

6.0 INTERPRETATION

The provision of the Official Plan, as amended from time to time, shall apply in regard to the Amendment.

PART C – THE APPENDICES

This part consists of the background information and planning considerations associated with this Amendment. This section does not constitute part of the actual Amendment.

• Stage 3, Final Report – Hydrogeological Assessment for Grandview Beach and Paradise Point Communities Port McNicoll, Township of Tay, Prepared by Oakridge Environmental Ltd., December 2020;
• All reports and studies related to the Class Environmental Assessment, dated August 28, 2015; and
• Stage 3, Addendum to Final Report – Hydrogeological Assessment prepared by Oak Ridge Environmental Ltd., dated May 11, 2021

SCHEDULE “A”

TO OFFICIAL PLAN AMENDMENT NO. 45

SUBJECT LANDS – Subject to Section 4.1.1.4.3 Grandview Beach/Paradise Point Development Policy Area.