Man Cao and Tien Lu v. Town of Gravenhurst, 2024 CanLII 74431

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 31, 2024

CASE NO(S).: OLT-23-000266

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Man Cao and Tien Lu

Subject: Application to amend the Zoning By-law – Appeal of Decision

Description: To facilitate the development of a dwelling and accessory structures on subject property

Reference Number: ZA 24-2021

Property Address: Part of Lot 12, Con 10

Municipality: Town of Gravenhurst

OLT Case No.: OLT-23-000266

OLT Lead Case No.: OLT-23-000266

OLT Case Name: Cao Man v. Gravenhurst (Town)

Heard: June 10, 2024 by Video Hearing

APPEARANCES:

Parties Counsel/Representative*

Man Cao Self-represented*

Town of Gravenhurst Edward Veldboom

DECISION DELIVERED BY G. POLITIS AND S. BOBKA AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Man Cao and Tien Lu (together the “Appellant”) own the property located at Part of Lot 12, Concession 10 (“Subject Property”) in the Town of Gravenhurst (“Town”). The Appellant applied to the Town for a Zoning By-law Amendment (“ZBA”) to rezone the Subject Property from Residential Rural (RR-5) to Residential Waterfront (RW-6) in order to facilitate the development of a dwelling and accessory structures.

2The Town denied the proposed ZBA, and the Appellant subsequently appealed that decision to the Tribunal under s. 34(11) of the Planning Act (“Act”).

LEGISLATIVE FRAMEWORK

3The Tribunal must be satisfied that the proposed ZBA represents good land use planning and is in the public interest. In making its decision, regard must be had for matters of Provincial interest in s. 2 of the Act and for the decision of the Municipality, as well as the information considered by it, in accordance with s. 2.1(1). The ZBA must be consistent with the Provincial Policy Statement (“PPS”) and must conform with any applicable Official Plans, in this case the Town’s Official Plan (“OP”).

4With respect to this appeal, to determine whether to approve the ZBA changing the zoning from RR-5 to RW-6, the Tribunal must be satisfied that there is appropriate water access to the Subject Property.

HEARING

5Mr. Cao was self-represented at the Hearing. His intent was to present his own evidence to the Tribunal and then to call his neighbour Tracy Pegg as a witness to speak to an agreement to use her property to gain water access to his property in order to satisfy the requirements of the RW-6 zone. The Tribunal opted to affirm Mr. Cao as a lay witness. Without objection from the Town, this approach enabled the Tribunal to hear and separate Mr. Cao’s factual evidence from his submissions. Without objection, the Tribunal also affirmed Mrs. Pegg as a lay witness.

6The Town was represented by Edward Veldboom as Counsel at the Hearing and called Adam Ager, the Manager of Planning Services for the Town as a witness. Upon review and consideration of Mr. Ager’s Curriculum Vitae and Acknowledgement of Expert’s Duty form, the Tribunal qualified Mr. Ager to provide expert opinion evidence in Land Use Planning.

EVIDENCE

Background

7Mr. Ager provided contextual background information on the Subject Property and the history of the Application.

8The Subject Property consists of two separate properties that are vacant and are proposed to merge together. It is currently vacant and is densely vegetated.

9The Subject Property is currently zoned Rural Residential (RR-5), which requires frontage on a road that is maintained year-round by a public authority in order to have building rights.

(Found at p.13 of Exhibit 1)

10Access to the Subject Property is via Merkley Road (the closest year-round maintained municipal road) to road allowances Barkway Lake Drive (municipally identified as “Fire Route 1A”) and East Drive. These road allowances have not been assumed by the Municipality and are not maintained year-round. There is a bridge on Fire Route 1A that crosses the Garter Snake River (“legacy bridge”) and which has also not been assumed by the Municipality.

11There are currently no development rights on the Subject Property as it does not front onto a road that is publicly maintained year-round as required by the RR-5 zoning.

12The Town Zoning By-law 10-04:

permits lots that are zoned Residential Waterfront (RW-6) to be developed provided such lot has water access on a navigable waterway, which is defined as any body of water that is capable of affording reasonable passage of watercraft of any description for the purpose of transportation, recreation, or commerce and includes any river, stream, or lake considered navigable by law.

13Mr. Cao began communicating with the Town in June of 2021 and submitted the ZBA application to change the Subject Property’s zoning from RR-5 to RW-6 in July 2021; however, the Application did not include supporting planning justification nor confirmation of the appropriate access.

14On February 28, 2023, at the request of the Appellant, a public meeting was held to consider the proposed ZBA Application. The Town Council refused the Application.

15The Appellant then appealed that decision to the Tribunal. Three Case Management Conferences (“CMC”) were held, in July and October of 2023 and in February of 2024.

16It is noted by the Tribunal that in the third CMC, it was explained to Mr. Cao that changing the zoning of the Subject Property was the only matter currently before the Tribunal. It was clearly stated that matters relating to the merging or severing of lots, the unassumed road or the legacy bridge were beyond the Tribunal’s jurisdiction with respect to this Appeal. It was also explained that if Mr. Cao was successful in changing the zoning of the Subject Property, that this would not automatically entitle him to build on the site. Mr. Cao acknowledged this and confirmed that he was willing to wait on the other issues and continue his appeal of the ZBA.

Appellant’s Evidence

17Mr. Cao testified that he could access the Subject Property via several different means, including both land and water. He explained that he had obtained permission from his neighbours, David and Tracy Pegg, to use their property to access the Garter Snake River in order to gain access to his property via water.

18Mr. Cao discussed at length how he wanted, and should be allowed, to access the Subject Property by means of the legacy bridge on Fire Route 1A, which goes over the Garter Snake River and which he described as safe. Mr. Cao stated that the legacy bridge could be reconstructed at a cost of around $60,000, whereas the Town maintained that the cost would be $400,000.

19Mr. Veldboom objected to the continued discussion regarding the legacy bridge as: i) it was not relevant to the issue before this Tribunal regarding the ZBA and whether there was appropriate water access to the Subject Property, and ii) it was not supported by any type of documents or evidence.

20Mr. Cao maintained that there were many ways to access his property and that he was not “stuck on” accessing it only from the legacy bridge. He stated that the Application met all the requirements for approval from the initial time of application. He provided the following diagram, illustrating six different ways to access his property.

(Found at p.8 of Exhibit 4)

21Mr. Cao stated that Mr. Ager had not been fair to him and had convinced the Town Council to vote against him. He showed the Tribunal two videos of the Town’s Council meeting where they discussed and then decided upon his application (found in Exhibits 7 and 8).

22Mr. Cao also showed several pictures of the Garter Snake River in the Winter, Spring, Summer, and Fall.

23Mr. Cao highlighted that he had a signed agreement with the Peggs which should allow the Tribunal to certify the water access to his land. He indicated that that access from the Pegg’s land was labelled as number 3/ on the above map (found above at paragraph [20]) which states “Assess by water way from 1044 Hopkins Rd”.

24Mr. Cao stated repeatedly that there was appropriate water access to the Subject Property.

25Regarding the transportation to the Subject Property of the required construction materials for his proposed dwelling, Mr. Cao indicated that he would not be using heavy machinery but would bring things “little by little” using a boat. He explained that he was very handy.

26Mr. Cao stated that he was an eco-friendly person who would be a good addition to the Town. He stated that he wanted to give back to the community.

27On cross-examination, when asked how he would access the waterway, Mr. Cao explained that there is a parking area on the Pegg’s property that he would use to launch a pontoon boat. However, he admitted that he had not yet attempted the route as he was waiting for the ZBA approval before getting the boat.

28When asked by Mr. Veldboom, Mr. Cao stated that he planned to build a dock at the Pegg’s property and at the Subject Property. When asked specifically about the part of the agreement that stated there could be no disturbance to the shoreline, Mr. Cao explained that he believed that meant he could build the dock but couldn’t dig up the land or make a beach.

29Mr. Cao further explained that the parking area on the Pegg’s property, was a large open space on the far side of an existing bridge where he could maneuver a boat trailer with a pontoon boat; however, he again confirmed that he had not yet attempted to launch a boat from that location.

30In her testimony, Mrs. Pegg confirmed that she and her husband had an agreement with Mr. Cao to allow Mr. Cao to access the Garter Snake River from their property at 1044 Hopkins Road.

31When asked in cross-examination, Mrs. Pegg confirmed that the agreement only allowed two cars to park by the shore and did not permit machinery or heavy equipment nor any shoreline disturbance, such as the removal of trees. She stated that she thought Mr. Cao could probably back down to the river and launch a boat; however, she had only ever launched kayaks and paddleboats from that location.

32When asked, Mrs. Pegg confirmed that Hopkins Road was maintained year-round by the Town up to the edge of her property, and that Town vehicles turned around in her driveway (with permission). She also confirmed that Mr. Cao would need to drive through her property (on what Mr. Veldboom called a ‘Cart Path’) to get to the location where he could launch his boat.

Town’s Evidence

33It was Mr. Ager’s overall opinion that the proposed ZBA to rezone the Subject Property from RR-5 to RW-6 is not consistent with the PPS, does not conform to the Town’s OP, and does not represent good planning.

34Mr. Ager highlighted that Fire Route 1A was not a year-round maintained road and that the legacy bridge that crosses the Garter Snake River was a legacy structure circa the 1900’s, was in poor condition and needed to be reconstructed (as indicated in a report by the Town’s Director of Infrastructure Services). Mr. Ager identified that there were existing dwellings along Fire Route 1A that did use the bridge for vehicular access as they predated ZBL 10-04, but he explained that any new development, including Mr. Cao’s proposed dwelling, needed to have access via a year-round maintained road under the RR-5 zoning.

35Mr. Ager explained that the proposed ZBA is not consistent with the PPS, and specifically offends s. 1.1.5, which states that development is to be appropriate to the infrastructure, which is planned or available, and avoid the need for the unjustified and/or uneconomical expansion of this infrastructure. Given that the legacy bridge is in poor condition, he stated that it would not be considered appropriate infrastructure.

36Mr. Ager explained that it is a fundamental requirement of the RW-6 zoning that there be access to a navigable waterway to then gain access to the Subject Property. It was his opinion that the Garter Snake River “does not constitute suitable water access for the purposes of the Official Plan, or the Town’s Zoning by-law.” He referred to Mr. Cao’s photos, which showed that in portions of the Garter Snake River, there are downed trees as well as debris that block the watercourse.

37Mr. Ager stated that the proposed ZBA does not conform with the Town’s OP. Specifically, the proposal would not enable emergency services to access the Subject Property as is required by s. J1.7. Mr. Cao’s proposed access through the Pegg’s property would require emergency vehicles to travel along Hopkins Road which is serviced year-round only until the edge of the property, to then travel along the “Cart Path”, and finally to launch some type of boat to reach the Subject Property. Mr. Ager stated that this was not in keeping with s. J1.7., could pose a risk to the occupants of the Subject Property, and would not be good planning.

38Mr. Ager highlighted that the upper-tier local government, the District Municipality of Muskoka (“District”), provided the following comment objecting to the application:

District staff are unable to recommend approval of the above-noted application. Further, District staff share the same concerns, as it would appear that the application would confer development rights to a property that does not have access either via a navigable waterway or a municipally owned, year-round maintained road.

39Mr. Ager also highlighted that the Pegg’s private property is not currently zoned for waterfront structures or docks and that they would have to apply for a zoning change to permit the construction of any dock. In addition, he stated that as the current agreement is between the Peggs and Mr. Cao, if a future owner denied Mr. Cao access to their property, it would result in Mr. Cao’s access to the Subject Property being shut out completely.

40On cross-examination, Mr. Ager was asked if any of the six proposed alternatives would be acceptable? Mr. Ager highlighted that the Town Staff had spent significant time and effort trying to assist Mr. Cao throughout the entire process. However, Mr. Ager’s position was that there has been insufficient detail provided to:

demonstrate how any of the proposed alternatives meet the policies of the PPS or the Town’s Official Plan. Further, the proposed alternatives would require additional applications under the Planning Act to be considered by, and approved by, Council, as well as relevant supporting studies including evaluating the environmental impacts of the proposal, and a planning rationale in support of filing a complete application to address a Waterfront Landing.

41Mr. Cao insisted that emergency vehicles could service his property. He questioned why he was not allowed to use the legacy bridge when others used it. Mr. Ager explained that the other dwellings pre-dated the current policies and were considered legal non-conforming. He emphasized that if those lots were currently vacant, under the RR-5 zoning they would not be granted building rights today.

FINDINGS

42The Tribunal commends Mr. Cao for his detailed review of the relevant planning documents; however, he is not (by his own admission) a Land Use Planner. He did not bring forward any expert planning evidence for the Tribunal’s consideration.

43The evidence provided by the expert witness, Mr. Ager, stood uncontradicted by any other expert.

44Mr. Cao presented the Tribunal with several possibilities as to how he might access his property by land and water, including his evidence with respect to gaining water access through an agreement with the Peggs.

45The Tribunal is not satisfied that there is appropriate access either by land or by water and therefore will not approve the change in zoning from RR-5 to RW-6. It is clear from Mr. Ager’s evidence, that the legacy bridge is not considered appropriate infrastructure. At this time, it is unclear whether a pontoon boat could be launched from the Pegg’s property or whether it would make it from there to the Subject Property along the Garter Snake River, given the debris and downed trees, as well as the seasonal variation in water levels.

46Furthermore, access does not just mean being able to launch a boat or move people to and from the Subject Property. In order to construct the proposed dwelling and accessory buildings, Mr. Cao will need to move a significant amount of building materials, and the Tribunal is not satisfied that this can be done via the proposed water access.

47Finally, the Tribunal finds that emergency services would not be able to get to the Subject Property in a reasonable manner or timeframe using the proposed water access through the Pegg’s property.

48The Tribunal has had regard for the decision of the Municipality and the materials considered by it.

49The Tribunal accepts the evidence of Mr. Ager and similarly finds that the proposal is not consistent with the PPS, does not conform to the OP, and does not represent good planning. In addition, the Tribunal finds that the proposal would not have regard to the matters of Provincial interest, specifically as it does not represent the orderly development of safe and healthy communities or the appropriate location of growth and development.

ORDER

50THE TRIBUNAL ORDERS that the appeal is dismissed and the requested amendment to By-law No. 10-04 is refused.

“G. POLITIS”

G. POLITIS

MEMBER

“S. BOBKA”

S. BOBKA

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.