Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 26, 2024 CASE NO(S).: OLT-24-000227

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Dayle Pinckard Subject: Consent Description: To create one (1) new and one (1) retained parcel of land Reference Number: B 33-23 LOB Property Address: Part of Lots 10 and 11, Concession 9, Franklin Ward Municipality: Lake of Bays OLT Case No.: OLT-24-000227 OLT Lead Case No.: OLT-24-000227 OLT Case Name: Dayle Pinckard v. Lake of Bays (Township)

Heard: July 29, 2024, by Video Hearing

APPEARANCES:

Parties	Counsel
Dayle Pinckard	M. McDermid

MEMORANDUM OF ORAL DECISION DELIVERED BY P. TOMILIN ON JULY 29, 2024 AND ORDER OF THE TRIBUNAL

1The matter before the Tribunal is an Appeal filed by Dayle Pinckard (“Appellant”) arising from the conditions attached to the Consent Application by the Committee of Adjustment (“COA”) for the Township of Lake of Bays (“Township”), pursuant to s. 53(19) of the Planning Act (“Act”) for the property Municipally known as Part of Lots 10 and 11, Concession 9, Franklin, Lake of Bays Lane, Community of Dwight (“subject lands” / “site”).

2The Appellant is seeking to create one new and one retained parcels of land. Both the Planning Report and the COA recommended the approval of the Application, subject to the conditions.

3There were no other status requests for this Hearing.

PRELIMINARY MATTER

4Prior to the Hearing, the Tribunal received a communication that the Township will not be participating in the Hearing.

5The provisional consent was granted and is not being challenged through this Appeal. However, on the Appeal to the Tribunal the entirety of the Consent Application is before the Tribunal for disposition, including all conditions of Consent Approval.

6Condition 7 requires: "That the portions of Lake of Bays Lane traversing the subject lands be identified on a reference plan and be dedicated to the Township of Lake of Bays at the owner's expense, at a minimum width of 10 metres (33 feet), measured equidistant from the centre of the travelled road.”

SUBJECT LANDS AND SURROUNDINGS

7The site is located southeast of the intersection of Lake of Bays Lane and Dwight Beach Road. Dwight Beach Road is owned and maintained by the Township and is approximately 20 metres (“m”) wide. Lake of Bays Lane is largely privately-owned yet has been historically maintained by the Municipality. The existing road allowance is about 5 m (16 feet (“ft”)) wide.

8Lake of Bays is located across, and to the west of Lake of Bays Lane and the subject lands.

9Given that Lake of Bays Lane is maintained by, but not owned by, the Township, the Lane is referred as a “trespass road” in the Township’s COA Staff Report. The site and 12 other properties are solely accessed by Lake of Bays Lane.

10Lake of Bays Lane is a gravel-based, dead-end road and is generally flat with some gradual curves with open ditches along the side. It provides an adequate width for year-round maintenance and access of vehicles for the number of properties that it serves.

PLANNING EVIDENCE

11Debra Walker, a Partner in the firm of MacNaughton Hermsen Britton Clarkson Planning Limited, and a member of the Canadian Institute of Planners, appeared on behalf of the Appellant and provided evidence to support the Appeal.

12Ms. Walker provided to the Tribunal a brief history of the subject lands. In 1945, certain members of the Pinckard family acquired Parts 1, 4, and 7 of Reference Plan 35R-5662 (dated April 13, 1978).

13Also in 1945, a different combination of members of the Pinckard family acquired Parts 2, 3, and 6 of Reference Plan 35R-5662.

14When one of the family members passed away around 1978, the two parcels automatically merged on title. In the late 70’s, the owners applied for a Consent to separate the merged parcels. Despite being just a technicality, and to the objections of the family, the Township required a conveyance to the Township of Parts 3 and 4, 35R-5662 (66 ft. in perpendicular width). Following that transaction, Parts 6 and 7 of Plan 35R-5662 became part of and merged with the site. Parts 1, 2, 3, 4, 5, and 6 of Plan 35R-22234 became owned by the Township as part of the late 70’s Consent.

15For the following 30 years, the Pinckard family lobbied the Township claiming that the Township’s “taking” of excessive lands was unreasonable and unjustified. In the late aughts, Township Council unanimously agreed that the taking was unreasonable and unjustified. Ms. Walker proffered that the reasoning being:

a) “the topography of the land dedication was most unsuitable for a road widening at this location and prohibitive at abutting locations (to the southeast) on Lake of Bays Lane;

b) Council had over the years and would in the future not permit Lake of Bays Lane to become a “through road” so as to connect southerly with either Dwight Beach Road or Sale Road and, as a consequence, there was no need to acquire significant road widenings on this road;

c) the lot merger had been an unfortunate event upon which the Council of the day had seized (“a legislated opportunity”);

d) the Department of Highways (now Ministry of Transportation) no longer issues road grants to municipalities based on the aggregate total kilometers of 66’ wide roads in inventory and it was acknowledged that these grants had been the principal driver in Council’s motivation at the time (1970s) to demand road widenings at every opportunity.”

16As a result of the above, the lands described as Parts 3 and 4 of 35R-5662 were deemed surplus by Council, an easement granted over the lands for Hydro and Bell prior to transfer through By-law No. 08-11; and were sold and conveyed back to the Pinckard family for the sum of one dollar ($1).

17Following that, the Township confirmed its jurisdiction and designated Parts 2 and 5, 35R-22234 as part of the Municipal highway system, according to By-law No. 2010-119 and by resolution (dated October 12, 2010) named the road “Lake of Bays Lane”. Further, Parts 2 and 5 represented the actual roadbed of Lake of Bays Lane as surveyed at 16 ft in perpendicular width and are owned by the Township.

18The Staff Report to the COA included the following statement:

“As part of the Application, the Applicant has proposed to dedicate a portion of Lake of Bays Lane that is currently a “trespass road”, that is, a road that is located on private-owned land but is maintained by the Township. Staff further recommend that the identified portions of road be dedicated as a condition of consent. [T]he cliff feature on the northern portion of the property whereby the existing site-specific By-law 2022-094 requires a minimum 30 metre development setback from the top of the cliff.”

19Ms. Walker clarified that the Appellants only proposed to dedicate lands on the Severed Lot for the travelled portion of Lake of Bays Lane and up to the hydro poles / lines on the Severed Lot. The Appellants did not intend or propose for lands on the Retained Lot to be dedicated, given that the previous late 70’s conveyance that had been made and settled in aughts, with re-conveyance of the surplus lands to the Appellants’ family.

20Ms. Walker pointed out that, as mentioned in the Staff Report in para [18] above, the cliff is in the same area as where the Township’s requested road dedication would be, and that the location of the cliff, which prevents access to Lake of Bays Lane is the main reason for the proposed easement over the Severed Lot to allow for access to the Retained Lot.

21Ms. Walker testified that the Township’s decisions in 2008 and 2010 relative to the road dedication requirement of 16 ft (4.87 m) perpendicular roadbed width is generally consistent with s. C.75 of the Official Plan (“OP”) and the Staff Report.

22It is Ms. Walker’s professional opinion that the dedication requirement as described in Condition 7, and as approved by the COA, would inappropriately go beyond what is described in the Staff Report and beyond the policy direction set out in s. C.75 of the OP.

23Ms. Walker reviewed the applicable policy sections of the Act, and provided that the appropriate regard has been given to those provisions listed in s. 51(24), 51(25) and s. 53(12).

24Ms. Walker proffered to the Tribunal that the site is considered a rural settlement area by definition in the Provincial Policy Statement, 2020 (“PPS”). She brought to the attention of the Tribunal s. 1.1.4, 1.1.4.3 of the PPS.

25Policy 1.1.4.3 states: “When directing development in rural settlement areas in accordance with policy 1.1.3, planning authorities shall give consideration to rural characteristics, the scale of development and the provision of appropriate service levels”.

26Given that Lake of Bays Lane is not a through road and given that the lands in the northerly portion of the Retained Lot are very steep with an exposed bedrock cliff face, and are not passable, it is Ms. Walker’s professional opinion that the requested road dedication, as stated in Condition 7 would not be appropriate and is not good planning for the following reasons:

a) “The same lands (Parts 3 and 4 on Plan 35R-5662) have previously been gratuitously conveyed historically from the Owner to the Township and the non-travelled portion of the lands were deemed surplus and subsequently re-conveyed back to the Owner by the Township as it had determined that the lands were not required for any planned or future road widening; and

b) There has been no material change to relevant land use policy or planned use of the road to warrant the Township Requested Road Dedication since the re-conveyance was made in 2010.”

27Rather, Ms. Walker stated that the Condition 7 should be replaced with the following: “That the lands on the Severed Lot shown in cross hatching on Schedule A to the Provisional Consent Decision, which contains the travelled portion of Lake of Bays Lane and two additional areas beyond the travelled portion but agreed to by the Owner be identified on a reference plan and be dedicated to the Township of Lake of Bays at the owner's expense.”

ANALYSIS AND FINDINGS

28In making this Decision, the Tribunal has considered and accepted the uncontested land use planning evidence of Ms. Walker and has taken into consideration the Planning Report and the decision of the COA. The Tribunal is satisfied that the Consent Application should be approved and given the prior history of the subject lands and its natural features, the Condition 7 should be revised, as provided in para [27] above.

29The Tribunal is further satisfied that the revised Condition 7 is appropriate for the Consent application for the site.

ORDER

30THE TRIBUNAL ORDERS that the appeal is allowed, and provisional consent is to be given subject to the conditions set out in Attachment 1 to this Order.

“P. Tomilin”

P. TOMILIN MEMBER

Ontario Land Tribunal Website: 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

OLT-24-000227 Dayle Pinckard v. Lake of Bays (Township)

Conditions

(1) A draft reference plan of survey is to be submitted to the Secretary-Treasurer for approval prior to registration. The reference plan must identify the dimensions and lot area of the severed and retained lands if required, as well as the proposed parts for the right of access for which this consent approval has been granted, shown in Schedule "A", together with any applicable easements, the location of any buildings, structures, septic systems, driveways and roadways, as well as any watercourse locations. An electronic version (i.e. "pdf” format) is also to be provided.

(2) Following the above condition, submit two copies of a deposited reference plan of survey that confirms the dimensions and lot areas of the proposed lands, as well as the proposed parts for right of access, to which this consent approval has been granted. An electronic version (i.e. "pdf” format) is also to be provided.

(3) That any zoning non-compliances, identified through Condition 1 above, resulting from the proposed severance, be brought into compliance.

(4) That a "Transfer in Preparation" and a "Long Form Certificate" for the severed lands be provided to the Secretary-Treasurer.

(5) That a 3.0 metre wide easement, to measure 1.5 metres on either side of the aerial infrastructure (to extend a minimum of 1.5 metres from the base of the pole and 0.5 metres on either side of any guywires, if present), as can be reasonably accommodated within the property boundaries, be transferred to Bell Canada at the sole expense of the applicant in order to protect the existing facilities (Transfer of Easement for a Utility Line as Defined in the Ontario Energy Board Act, 1998).

(6) That the "R-E142" zoning of the severed and retained lands be amended to address the proposed road frontage, existing accessory structures, and maintain the development restriction from the top of cliff on the retained lands.

(7) That the lands on the Severed Lot shown in cross hatching on Schedule A to the Provisional Consent Decision, which contains the travelled portion of Lake of Bays Lane and two additional areas beyond the travelled portion but agreed to by the Owner, be identified on a reference plan and be dedicated to the Township of Lake of Bays at the Owner's expense.

(8) That cash-in-lieu of parkland dedication be paid to the Township of Lake of Bays in accordance with By-law No. 00-04.

(9) That the owner applies for an entrance permit from the Township's Public Works Department for the severed and retained lots, and a copy be provided to the Secretary-Treasurer.

(10) That any outstanding balances related to the subject application be paid to the Township of Lake of Bays in accordance with the Cost Acknowledgement Agreement.