OBD Developments Inc., OBM Marina Inc., & OBG Golf Inc. v. Georgian Bay (Township), 2024 CanLII 81269

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 22, 2024

CASE NO(S).: OLT-23-001240

PROCEEDING COMMENCED UNDER subsection 51(43) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: OBD Developments Inc., OBM Marina Inc., & OBG Golf Inc. (collectively "Oak Bay")

Subject: Conditions of approval of draft plan of subdivision

Description: To request an extension to the approval of the draft plan and to revise the layout to incorporate a stormwater management plan within the draft plan

Reference Number: C2008-6

Property Address: Part of Lots 31 and 32, Concession 2, Baxter

Municipality/UT: Georgian Bay/Muskoka

OLT Case No.: OLT-23-001240

OLT Lead Case No.: OLT-23-001240

OLT Case Name: OBD Developments Inc., OBM Marina Inc., & OBG Golf Inc. v. Georgian Bay (Township)

Heard: July 29, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
OBD Developments Inc., OBM Marina Inc., and OBG Golf Inc. (Appellant / Applicant)	Leo Longo
District Municipality of Muskoka (“District”)	Jamie Clow
Township of Georgian Bay (“Township”)	Colin Leger

MEMORANDUM OF ORAL DECISION DELIVERED BY J. INNIS ON July 29, 2024 AND interim ORDER OF THE TRIBUNAL

INTRODUCTION

1OBD Developments Inc., OBM Marina Inc., and OBG Golf Inc. (collectively “Oak Bay Developments”) are the Applicants for an appeal regarding lands legally described as Part of Lots 31 and 32, Concession 2, Baxter in the Township of Georgian Bay. These lands are known as the Waterside lands within the Oak Bay Development, which is a fully serviced residential development consisting of a variety of housing types. The appeal requests an extension of five years for the approval of Draft Plans of Subdivision, is further seeking revised conditions, and also the need for a servicing agreement.

2The Waterside lands are on the south side of Golf Course Road, comprising of 2.8 hectares that are designated and zoned for development. The proposed application would permit a total of 29 single detached dwellings to be developed as a Vacant Land Condominium project.

3On February 1, 2023, the Applicant requested a five-year draft plan extension for Vacant Land Condominium C2008-6, the Waterside Lands, from the District. Monthly extensions were provided, however, on August 25, 2023, the Applicant was still seeking a longer extension, then appealed the Draft Plan Conditions to the Tribunal. The Applicant was also seeking a minor red line revision for the southern portion of the plan in the location of the proposed Stormwater Management Plan. Lastly, the Applicant sought to update the Draft Plan Conditions to reflect the wording for Subdivision Plan S2005-10, approved by the Tribunal in November 2023 (OLT Case File No. OLT-22-004481).

4The Draft Plan conditions have been revised and updated to reflect the wording approved for the underlying subdivision. There are ongoing discussions between Oak Bay Developments and the Township in regard to drainage easements and a provision has been made in the Conditions to allow for these discussions to continue and conclude. A resolution regarding servicing between the District and Oak Bay Developments has been achieved. The District’s Additional Costs Reimbursement Agreement has been fully executed.

5Disposition of the matter has come before the Tribunal as a Settlement Hearing. The Tribunal confirms that it has received, reviewed and considered the following materials and submissions:

i. the uncontested opinion evidence of H. Celeste Phillips, a Registered Professional Planner and a full member of the Canadian Institute of Planners, contained in her comprehensive Witness Statement dated July 25, 2024 marked as (Exhibit 1);

ii. the draft Order;

iii. the Waterside Condo Proposed Revised Conditions, dated July 24, 2024; and

iv. the Parties’ oral submissions in support of the Settlement.

Decision

6The Tribunal understands that the aforementioned evidence of Ms. Philips reflects revisions to the application before the Tribunal that were reached through the cooperative efforts of the Parties.

7The Tribunal accepts the opinion evidence of Ms. Philips presented in her Witness Statement and oral testimony, and similarly finds that the subject application, as revised, has regard to those applicable matters of provincial interest found in s. 2 of the Planning Act, is consistent with the Provincial Policy Statement, 2020, conforms to the District Municipality of Muskoka Official Plan and the Township of Georgian Bay Official Plan, and otherwise reflects principles of good land use planning.

8If the Parties do not advise the Tribunal by Monday, September 16, 2024, that both the District Municipal Agreement (Condition 11, in Attachment 1) and the Municipal Agreement (Condition 8, in Attachment 1) have been fully executed, the Parties shall provide a written status report to the Tribunal by that date, as to the timing for the finalization of these agreements. Upon confirmation of these agreements being fully executed, the Tribunal will release the five-day Merit Hearing, scheduled to commence on Monday, November 25, 2024 at 10 a.m.

ORDER

9THE TRIBUNAL ORDERS THAT that the appeal is allowed, in part, and the Draft Plan, prepared by J.D. Barnes, dated June 16, 2021 and revised on July 24, 2023, comprising Part of Lots 31 and 32, Concession 2, Baxter, is approved, subject to the fulfillment of the conditions as set out in Attachment 1 to this Order.

10Pursuant to s. 51(56.1) of the Planning Act, the District of Muskoka shall have the authority to clear the conditions set out in Attachment 1 and to administer final approval of the plan of subdivision for the purpose of subsection 51(58) of the Planning Act. In the event that there are difficulties implementing any of the conditions of draft plan approval, or if any changes are required to be made to the draft plan, the Tribunal may be spoken to.

11The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call.

12The Member will remain seized.

“J. Innis”

J. INNIS

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.

ATTACHMENT 1

VACANT LAND CONDOMINIUM FILE NO. C2008-6

“(Oak Bay – Block 14)”

Part A

General Standard Conditions

1. This approval applies to Vacant Land Condominium Description File C2008-6 (Oak Bay-Block 14), revised by J.D. Barnes Surveying Limited and Celeste Phillips Planning Inc., dated July 24, 2023, showing a total of 29 vacant land condominium units, a stormwater management block, 7 blocks for common element road and laneways, one common element recreational block on Lots 31 and 32 Concession 2, Township of Georgian Bay, District of Muskoka.

2. Prior to final approval being granted, The District Municipality of Muskoka shall be provided with a copy of the final plan in digital format, including road centrelines, in accordance with The District Municipality of Muskoka Digital Draft and Final Plan of Subdivision/Condominium Description Submission Requirements.

3. Prior to final approval being granted and prior to the submission of the proposed internal road names to the Township of Georgian Bay for approval purposes, the names shall be submitted to The District Municipality of Muskoka for 911 verification.

4. Prior to final approval, The District Municipality of Muskoka shall be in receipt of a draft copy of the Condominium Declaration for review for District interests such as the creation of easements.

5. Prior to final approval being granted, Block 14 of Plan of Subdivision File S2005-10 shall be registered.

Conveyances

6. Easements as may be required for access, pedestrian walkways, utilities, drainage, or other purposes shall be granted to the Township of Georgian Bay and any other authority or party.

Zoning

6. a) Prior to final approval being granted, the property included in this condominium description shall be zoned for its intended residential uses;

7. b) Prior to final approval being granted, the Township of Georgian Bay shall confirm that the final plan is in compliance with the zoning by-law in effect.

Infrastructure

7. Prior to final approval being granted, four copies of a detailed report(s), including a detailed plan(s), prepared by a professional engineer, in consultation with a qualified biologist, addressing stormwater management, construction mitigation, and municipal water and sewer services shall be submitted to the District Municipality of Muskoka. The biologist shall verify in writing to The District Municipality of Muskoka that the proposed plans incorporate the recommendations of the Environmental Impact Study prepared by Gartner Lee Limited, dated April 2006 and the peer review report prepared by Michalski Nielsen and Associates Limited, dated September 20, 2006, the addendum to the Environmental Impact Study prepared by Beacon Environmental Limited, dated May 2022, and the Wildlife Crossing – Muskoka Road 5 study, prepare by Gartner Lee Limited, dated April 1, 2008.

The plan(s) shall be circulated by The District Municipality of Muskoka to the Township of Georgian Bay for their review and comment. In addition, one of the following documents shall also be provided to The District Municipality of Muskoka for any applicable works, including but not limited to stormwater management:

(i) An Environmental Compliance Approval (ECA) for the project(s) shall be obtained from the Provincial Ministry with jurisdiction; or

(ii) Written confirmation from the Provincial Ministry with jurisdiction exempting the project(s) from the requirement to obtain an ECA; or

(iii) A written opinion, stamped and signed by a Professional Engineer, that confirms that the project(s) meet the specific exemptions outlined in the applicable legislation/regulations.

7. a) Prior to December 31, 2025, and final approval of Engineering drawings for Waterside, hydraulic modelling of both water and sewer services may be completed by The District Municipality of Muskoka and any required improvements or modifications to either the condominium design or the municipal water and sewer services shall be implemented to the satisfaction of The District Municipality of Muskoka. Population, flows, peaking factors for this development phase will be provided by the owner’s engineer at the time that the hydraulic modelling is being completed.

Environmental

7.b) Prior to final approval being granted, written confirmation from a qualified biologist shall be submitted to The District Municipality of Muskoka and the Township of Georgian Bay that the Environmental Impact Study Addendum, prepared by Beacon Environmental dated May 2022, remains valid and no updates are required to address changing conditions and/or legislation. In the event that the qualified biologist identifies that the Environmental Impact Study Addendum, prepared by Beacon Environmental dated May 2022 is no longer valid, an appropriate update to the satisfaction of the District Municipality of Muskoka shall be submitted to the District of Muskoka and the Township of Georgian Bay.

7.c) Prior to final approval, a copy of the required Overall Benefit Permit issued by the Provincial Ministry with jurisdiction shall be provided to The District Municipality of Muskoka and the Township of Georgian Bay. Any recommendations endorsed by the Provincial Ministry with jurisdiction shall be implemented to the satisfaction of The District Municipality of Muskoka and the Township of Georgian Bay.

Area Municipal Agreement

8. Prior to final approval being granted, a condominium, amending and/or other type of agreement with the Township of Georgian Bay in accordance with Section 51(26) of the Planning Act, R.S.O. 1990, as amended shall be registered on title and shall include provisions outlining the need to satisfy all the requirements, financial and otherwise of the Township of Georgian Bay including but not limited to the following:

Stormwater

i) The implementation of the plans required in Condition 7 under the supervision and to the satisfaction of a professional engineer;

ii) The provision of securities or other guarantees for the implementation of the plans required in Condition 7, as necessary;

Environmental

iii) The implementation of the recommendations of the Environmental Impact Study prepared by Gartner Lee Limited, dated April 2006 and the peer review report prepared by Michalski Nielsen Associates Limited dated September 20, 2006, including but not limited to the following:

a) The development of a “Best Management Practices” manual for any future condominium corporation to ensure proper use and disposal of chemicals, responsible road salting, street sweeping, and landscape maintenance activities to ensure the protection of rare wildlife species and their habitat; and

b) The distribution to all purchasers a homeowner’s manual which provides information on the natural area values and their protection;

iv) That all lighting for roads, parking and residential areas are dark sky friendly; and

v) The implementation of Condition 7.b) and 7.c), as required.

9. Prior to the Area Municipal Council’s endorsement and execution of any amending or new area municipal agreements that are to be registered on the title of the lands, a copy shall be forwarded to The District Municipality of Muskoka for review, comment and potential revisions related to District interests, if required.

10. Prior to final approval being granted, The District Municipality of Muskoka shall be in receipt of a registered copy of the area municipal agreement.

District Municipal Agreement

11. Prior to final approval being granted, a condominium, servicing and/or amending agreement with The District Municipality of Muskoka in accordance with Section 51(26) of the Planning Act, R.S.O. 1990, as amended shall be registered on title and shall state that all the requirements, financial and otherwise, of The District Municipality of Muskoka shall be satisfied, including but not limited to the following:

i) The provision and installation of municipal water and sewer services and for municipal assumption and operation of such services;

ii) The availability and allocation of sufficient municipal water and sewer capacity measured in Equivalent Residential Units (ERUs) to service the development;

iii) The disposal of solid waste; and

iv) The implementation of conditions 7, 7.a), 7b) and 7c) as required, including provision of securities if required.

Clearance Letters

12. Prior to final approval being granted, the Township of Georgian Bay shall advise the District in writing that conditions 1, 3, 6, 6.a), 6b), 7, 7b), 7c), 8, 9, 10 have been complied with to their satisfaction with a brief and concise statement detailing how each condition has been satisfied.

13. Prior to final approval being granted, The District Municipality of Muskoka shall be satisfied that conditions 2, 4, 5, 7, 7.a), 7b), 7c), 10, 11, 12, 13, 15 and 16 have been complied with to their satisfaction.

14. The final plan must be in registerable form together with all necessary instruments or plans describing an interest in the land.

15. Prior to final approval being granted, the Commissioner of Community and Planning Services or their designate shall be satisfied that the conditions of approval have been satisfied and the final plan is in conformity with the draft plan.

16. In the event that these conditions of draft approval fail to be fulfilled on or before November 2, 2028, the approval herein granted shall be deemed to have lapsed pursuant to the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Extensions to draft approval may be considered provided that existing technical reports remain applicable, or updates are provided and the provisions of By-law 2008-22, as amended, including the performance and planning based criteria, are met.

Part B - Lapsing Provision

In the event that these conditions of draft approval fail to be fulfilled on or before November 2, 2088, the approval herein granted shall be deemed to have lapsed pursuant to the Planning Act, R.S.O 1990, as amended.

Extensions to draft approval may be considered provided that existing technical reports are still applicable, or updates are provided and the provisions of By-law 2008-2, as amended, as well as The District of Muskoka Water and Sewer Capacity Allocation Strategy performance and planning based criteria are met.

It is the responsibility of the applicant and/or their agent to apply for any required extensions of draft approval at least three (3) months prior to the lapsing date noted above. The District Municipality of Muskoka will forward one courtesy notice prior to the lapsing date. This notification is a best efforts courtesy only and The District Municipality of Muskoka does not assume any responsibility for notification of lapsing of approval. No further notices will be forwarded and in the event that the appropriate application and related fee are not received, the approval herein granted shall be deemed to have lapsed.

Any site alteration or the installation of any works that may be the subject of any agreements required by these conditions shall not be permitted prior to the execution of such agreements. Where any such works are undertaken in violation of this clause, approval of this plan may be withdrawn as authorized under Section 51 (44) of the Planning Act, R,S,O, 1990, as amended.