2564669 Ontario Inc. & 520039 Ontario Limited v. Otonabee (Township), 2024 CanLII 94881

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 25, 2024

CASE NO.: OLT-23-000625 OLT-23-000626

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

Applicant and Appellant: 2564669 Ontario Inc. & 520039 Ontario Limited Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To facilitate the development of a residential subdivision Reference Number: Z12-21 Property Address: Concession 6, Part Lots 13 and 14, Otonabee Ward, Registered Plan 45R-335 Parts 2 and 3, and part 1 of 1 Municipality/UT: Otonabee-South Monaghan/Peterborough OLT Case No.: OLT-23-000625 OLT Lead Case No.: OLT-23-000625 OLT Case Name: 2564669 Ontario Inc. & 520039 Ontario Limited v. Otonabee (Township)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 2564669 Ontario Inc. & 520039 Ontario Limited Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision Description: To facilitate the development of a residential subdivision Reference Number: 15CD-21001 Property Address: Concession 6, Part Lots 13 and 14, Otonabee Ward, Registered Plan 45R-335 Parts 2 and 3, and part 1 of 1 Municipality/UT: Otonabee-South Monaghan/Peterborough OLT Case No.: OLT-23-000626 OLT Lead Case No.: OLT-23-000625 OLT Case Name: 2564669 Ontario Inc. & 520039 Ontario Limited v. Otonabee (Township)

BEFORE:

C. HARDY VICE-CHAIR

Wednesday, the 25th day of September, 2024

THESE MATTERS having come before the Ontario Land Tribunal (the “Tribunal”) for a Merit Hearing from July 10-12, 2024, regarding the lands known as Concession 6, Part Lots 13 and 14, Otonabee Ward, Registered Plan 45R-335 parts 2 and 3, and part 1 of 1;

AND THESE MATTERS having been subject to a Decision and Interim Order issued on August 16, 2024;

AND THE TRIBUNAL allowing the appeal pursuant to s. 34(11) of the Planning Act, R.S.O. 1990, c.P.13, as amended (“Planning Act”) in part and approving the draft Zoning By-law Amendment in principle, with the Final Order being withheld pending being provided the final form of the Zoning By-law Amendment, confirmed to be satisfactory to the Township of Otonabee-South Monaghan;

AND THE TRIBUNAL having allowed the appeal pursuant to s. 51(34) of the Planning Act in part and approving the Draft Plan of Condominium in principle, subject to conditions of draft plan approval, with the Final Order being withheld pending being provided the final form of the Draft Plan of Condominium confirmed to be satisfactory to the County of Peterborough;

AND THE TRIBUNAL having been advised by the Parties on September 6, 2024, that the Township and County have confirmed that they are satisfied with the final forms of the Zoning By-law Amendment and Draft Plan of Condominium;

THE TRIBUNAL ORDERS THAT the Township of Otonabee-South Monaghan By-law No. 2010-65, as amended, is amended as set out in Schedule “A” to this Final Order. The Tribunal authorizes the municipal clerk of the Township of Otonabee-South Monaghan to assign a number to this by-law for record keeping purposes;

THE TRIBUNAL FURTHER ORDERS THAT the Plan of Condominium shown on the plan prepared by D.M. Wills Associates Limited dated April 6, 2023 is approved subject to the fulfillment of the conditions set out in Schedule “B” to this Final Order; and

THE TRIBUNAL FURTHER ORDERS THAT pursuant to subsection 51(56.1) of the Planning Act, the County of Peterborough shall have the authority to clear the conditions of draft plan approval and to administer final approval of the Plan of Condominium of the purposes of subsection 51(58) of the Planning Act. In the event that there are any 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.

“Euken Lui”

EUKEN LUI ACTING REGISTRAR

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.

SCHEDULE A

THE CORPORATION OF THE TOWNSHIP OF OTONABEE-SOUTH MONAGHAN BY-LAW NO. 2024-__

Being a By-law under the provisions of Sections 34 of the Planning Act, R.S.O. 1990, c. P.13, as amended, to amend By-law No. 2010-65, as amended, the Township of Otonabee-South Monaghan Comprehensive Zoning By-law, with respect to certain lands located in Part of Lots 13 and 14, Concession 6, Otonabee Ward, Township of Otonabee-South Monaghan.

WHEREAS By-law No. 2010-65 was passed under the authority of Section 34 of the Planning Act, R.S.O. 1990, c. P.13, as amended, and regulates the use of land and the use and erection of buildings and structures within the Township of Otonabee-South Monaghan;

AND WHEREAS the Council of the Township of Otonabee-South Monaghan conducted a public meeting in regard of the subject application as required by Section 34(12) of the Planning Act, R.S.O. 1990, as amended;

AND WHEREAS Section 34 of the Planning Act, R.S.O. 1990, as amended, permits Council to pass an amending Zoning By-law, and the Council of the Township of Otonabee-South Monaghan deems it advisable to amend By-law No. 2010-65 with respect to the lands described in this By-law;

AND WHEREAS the matters herein are in conformity with the provisions of the Official Plan of the Township of Otonabee-South Monaghan;

NOW THEREFORE the Council of the Township of Otonabee-South Monaghan hereby enacts as follows:

1. THAT By-law No. 2010-65, as amended, is hereby amended as follows:

(a) Map No. 12 of Schedule “A” of By-law No. 2010-65 is hereby amended by changing the zone category of certain lands located in Part of Lots 13 and 14, Concession 6, in the geographic Township of Otonabee from the Future Development-4 (FD-4) Zone to a site-specific Hamlet Residential Exception-36 (HR-36) Zone and the Environmental Protection (EP) Zone as shown on Schedule “A” attached hereto and forming part of this By-law.

(b) Section 8.4 of By-law No. 2010-65, as amended, entitled “Special Hamlet Residential (HR) Zones,” is hereby amended by the addition of a new subsection numbered 8.4.36, which shall read as follows:

“8.4.36 Hamlet Residential-36 (HR-36) Zone

Notwithstanding any other provisions of this By-law to the contrary, within the Hamlet Residential-36 (HR-36) Zone the following provisions shall apply:

a) Special Provisions

i) A building or structure may be erected on a property with frontage only on a private condominium road. For the purposes of measuring lot frontage, the front lot line may be considered to be the lot line abutting a private condominium road.

b) Lot Regulations

Lot regulations of Section 8.2 apply with the exception of the following:

i) Minimum Lot Area 1,615.0 sq. m

ii) Minimum Lot Frontage 22.0 m

All other provisions of the Hamlet Residential (HR) Zone shall apply.”

2. All other provisions of By-law No. 2010-65, as amended, shall apply.

SCHEDULE B

The County’s conditions and amendments to final plan approval for registration of this draft plan of condominium, file no. 15CD-21001, are as follows:

No. Conditions

1. That this approval applies to the draft plan of vacant land condominium prepared by D.M. Wills Associates Limited, dated April 6, 2023, and signed by the Owner and Surveyor on a date to be signed after receiving an order from the OLT, showing a total of:

• Sixteen (16) lots (Lots 1-16 inclusive);
• Private common element road allowance;
• Two (2) drainage easements.

2. The lands shall be appropriately zoned in the Township of Otonabee-South Monaghan Zoning By-law for development of the plan of condominium.

3. The Owner shall agree in writing to convey cash-in-lieu of parkland to the Township representing 5% of the value of the property as per the Planning Act.

4. That the streets shall be named to the satisfaction of the Township, in accordance with municipal protocols.

5. The Owner shall agree in the condominium agreement to obtain the approval of the appropriate authority for the installation of electric, gas, telephone and telecommunication services.

6. That such easements as may be required shall be granted/reserved to the appropriate authority.

7. Drinking Water Supply – Prior to final approval and registration of the Plan, the Township shall confirm to the Approval Authority that there is sufficient supply capacity available to service the plan of condominium.

8. That the Owner shall include the following warning clauses in the Condominium Agreement and in all Offers of Purchase and Sale to the satisfaction of the Township:

a) “Purchasers/tenants are advised that the Township of Otonabee-South Monaghan will not be providing maintenance or snow removal service for or upon the private condominium road.”

b) “Purchasers/tenants are advised that the Township of Otonabee-South Monaghan will not be providing maintenance/operation services for the private water distribution system.

9. Prior to registration, the Owner shall provide a Development Phasing Plan, if applicable, to outline the intended sequence of development within the Plan, including the provision of the development driveway facility and servicing infrastructure.

10. A condominium agreement between the Municipality and the Owner shall be executed. The owner shall agree in the condominium agreement to satisfy all requirements, financial and otherwise, of the Township including the design and construction of roads, installation of water services, drainage and other matters required by the Township.

11. That wording be included in the Condominium Agreement between the Owner and the Township requiring that in the event that deeply buried archaeological remains are discovered in the course of construction the proponent must stop work immediately and contact the Ministry of Culture at 416-314-7146. In the event that human remains are uncovered in the course of construction, the local police, the local coroner, the office of the Registrar of Cemeteries (416-326-8404), and the Ministry of Culture must be notified immediately.

12. That the condominium agreement between the Owner and the Municipality be registered against the lands to which it applies once the plan of condominium has been registered.

13. The Owner shall not remove any trees or topsoil from the lands within the Draft Plan or start any grading of the lands, prior to the registration of the Draft Plan, without the prior written approval of the Township of Otonabee-South Monaghan.

14. The Owner shall prepare and implement, prior to the start of construction, a detailed construction management plan to address approaches to mitigate impacts on adjacent lands including dust, noise etc.

15. The Owner is responsible for all supply, maintenance and removal of all construction signage and shall immediately repair or reimburse the Township for all damages caused by construction traffic on Township Roadways.

16. Prior to final registration of the plan of condominium, and any on-site grading or construction, the Otonabee Region Conservation Authority must have reviewed and approved detailed reports describing:

a) The intended means of controlling stormwater runoff in terms of quantity, frequency and duration for all events up to and including the 1:100 year storm event.

b) The intended means of conveying stormwater flow through and from the site, including use of stormwater management quality measures, both temporary and permanent, which are appropriate and in accordance with the Ministry of the Environment (MOE) “Stormwater Management Planning and Design Manual,” March 2003.

c) The intended Low Impact Development (LID) methods should consider the Credit Valley Conservation (CVC) and Toronto Region Conservation Authority (TRCA) “Low Impact Development Stormwater Management and Design Guide” 2010.

17. All stormwater outlets will be designed to the satisfaction of Otonabee Conservation and the Township.

18. Prior to the final registration of the plan of condominium, and any on-site grading or construction, the Otonabee Region Conservation Authority must have reviewed and approved detailed reports describing:

a) The means whereby erosion and sedimentation and their effects will be minimized on the site during and after construction. These means should be in accordance with the Greater Golden Horseshoe Area (GGHA) “Erosion and Sediment Control Guidelines for Urban Construction,” (2019), or any successor guidelines. At a minimum, the erosion and sediment control plan shall incorporate the following:

i. A proactive, multi-barrier approach to erosion and sediment control, with an emphasis of preventing erosion on site during all phases of construction.

ii. A phased approach whereby the extent of grading and disturbed area is limited to only those areas necessary for immediate construction.

iii. Detailed construction staging plans, including installation details, inspection, repair and maintenance requirements, a spill management plan and contingency for additional measures.

iv. Site soil conditions, including grain size distribution profiles, infiltration capabilities, erosion potential, as well as bedrock and groundwater elevations;

v. Site grading plans; and

vi. Means of maintaining a pre-development water balance to the site.

19. The boundaries of the development envelope are to be clearly delineated with suitable protective fencing on the ground along the buffer areas of the wetland and hazards prior to any site preparation or construction activities. A suitable temporary barrier to work fence prior to and during construction or regrading to prevent sediment impact the adjacent natural heritage systems, watercourse.

20. All grading related works shall take place in accordance with the approved:

a) Erosion Sediment Control Plans;

b) Timing windows to avoid periods of high run-off volumes;

c) Grading plans resulting in minimized changes in land contours.

All disturbed areas of the site should be stabilized and revegetated immediately. The timing of the grading shall take place in consultation with Otonabee Conservation.

21. The proposed development should adhere to the recommendations in the ‘Environmental Impact Study (EIS)’, prepared by Cambium Inc., September 2021.

22. A Monitoring Program for mitigation effectiveness, and the listed EIS recommendations are to be submitted and will include a plan for any potential downstream erosion resulting from the stormwater management facility to the Otonabee Conservation satisfaction. This monitoring plan must include monitoring through pre- and post construction.

23. A Landscape/Enhancement Planting Plan for the wetland buffer on site and adjacent lands will be designed and installed to the satisfaction of Otonabee Conservation and shall be restricted to native plants and trees, and surrounding areas to keep natural to prevent the spread of non-native species.

24. Prior to the final registration of the plan of condominium, the Owner designs and constructs, stabilizes and has in operation all stormwater management facilities and stormwater outfalls, or appropriate alternative measures, in accordance with the approved Stormwater Management Plan. The owner agrees to plant all vegetation (which is not required for stabilization) within 12 months of draft plan registration as per the approved landscape drawings

Alternate Recommendation: that the Owner shall install approved landscaped elements on a lot-by-lot basis, within 12 months of the date of the Township issuance of a building occupancy permit for a dwelling unit.

25. The condominium agreement between the Owner and the Municipality shall contain the following provisions in wording acceptable to the Otonabee Region Conservation Authority:

a) That the Owner agrees to implement the works referred to in conditions 16 through 24.

b) The approved report(s) should be referenced in the subdivision agreement.

c) That the Owner agrees to maintain all stormwater management, erosion and sedimentation control structures operating in good repair during the construction period. During construction and on an ongoing basis, inspection and monitoring of the installation, maintenance and performance of all erosion and sediment control measures shall be conducted by a qualified professional.

d) That the Owner agrees to provide the Otonabee Region Conservation Authority for review, all relevant inspection and testing reports related to the construction of the stormwater management infrastructure.

e) That the Owner agrees to notify the Otonabee Region Conservation Authority at least 48 hours prior to the initiation of any on-site development.

26. The Owner shall obtain an entrance permit from the County of Peterborough Engineering & Design Department for the entrance of the condominium road at Heritage Line (County Road #34).

27. Prior to the final approval of the draft plan, Kawartha Pine Ridge District School Board (KPR) shall be satisfied that appropriate clauses are contained within the condominium agreement registered on title as follows:

a) All offers of purchase and sale shall contain a statement advising prospective purchasers that if school buses are required within the development in accordance with the Kawartha Pine Ridge District School Board Transportation policies, as may be amended from time to time, school bus pick up points will generally be located on the through street at a location as determined by the Student Transportation Services of Central Ontario.

b) That the Owner(s) are encouraged to provide a pedestrian walkway or dedicated pedestrian use only area throughout the proposed condominium to accommodate and promote safe walking routes.

28. That wording be included in the subdivision agreement which states that:

a) The applicant shall contact Enbridge Gas Distribution’s Customer Connections department by emailing SalesArea40@enbridge.com for service and meter installation details and to ensure all gas piping is installed prior to the commencement of site landscaping (including by not limited to: tree planting, silva cells, and/or soil trenches) and/or asphalt paving.

b) If the main needs to be relocated as a result of changes in the alignment or grade of the future road allowances or for temporary gas pipe installations pertaining to phase construction, all costs are the responsibility of the applicant.

c) In the event easement(s) are required to service this development, the applicant will provide the easement(s) to Enbridge Gas Distribution at no cost.

29. That prior to final approval by the County, we are to be advised in writing by the Township of Otonabee-South Monaghan, how conditions 2-28 have been satisfied.

30. That prior to final approval by the County, we are to be advised in writing by the Otonabee Region Conservation Authority how conditions 16-25 have been satisfied.

31. That prior to final approval by the County, we are to be advised in writing by Peterborough County Public Works Engineering and Design Division how conditions 26 have been satisfied.

32. That prior to final approval by the County, we are to be advised in writing by Kawartha Pine Ridge District School Board how condition 27 has been satisfied.

33. That prior to final approval by the County, we are to be advised in writing by Enbridge how condition 28 has been satisfied.

NOTES TO DRAFT APPROVAL

1. It is the applicant’s responsibility to fulfil the conditions of draft approval and to ensure that the required clearance letters are forwarded by the appropriate agencies to the Peterborough County Planning Department, quoting the County file number.

2. Clearances are required from the following agencies:

CAO for the Township of Otonabee-South Monaghan P.O. Box 70 20 Third Street Keene, ON K0L 2G0

Manager of Planning and Regulations Otonabee Region Conservation Authority 250 Milroy Dr. Peterborough, ON K9H 7M9

Manager of Engineering & Design County of Peterborough 470 Water Street Peterborough, ON K9H 3M3

Manager of Planning Services Kawartha Pine Ridge District School Board 1994 Fisher Drive Peterborough, ON K9J 6X6

Enbridge Gas Inc. 500 Consumers Road North York, ON M2J 1P8

If the agency condition concerns conditions in the subdivision agreement, a copy of the agreement should be forwarded to them. This will expedite clearance of the final plan.

3. We suggest that you make yourself aware of the requirements subsection 144(1) of the Land Titles Act which requires all new plans to be registered in a Land Titles System if the land is situated in a land titles division.

4. The final plan approved by the County must be registered within 30 days or the County may withdraw its approval under subsection 51(32) of the Planning Act, R.S.O. 1990, as amended.

5. That if final approval is not given to this plan within three (3) years of the Draft Approval date, and no extensions have been granted, Draft Approval shall lapse pursuant to section 51(32) of the Planning Act.