Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
March 03, 2025
CASE NO(S).:
OLT-22-004427
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant:
1105702 Ontario Ltd.
Appellant:
2596701 Ontario Inc.
Appellant:
ClubLink Corporation ULC
Subject:
Zoning By-law
Description:
By-law 2022-97 to establish a Community Planning Permit By-law
Reference Number:
BL 2022-97
Property Address:
(City-wide)
Municipality/UT:
Huntsville/Muskoka
OLT Case No:
OLT-22-004427
OLT Lead Case No.:
OLT-22-004427
OLT Case Name:
Clublink Corporation ULC v Huntsville (Town)
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by:
2596701 Ontario Inc.
Request for:
Request for Directions
Heard:
January 22, 2025 by Video Hearing
APPEARANCES:
Parties
Counsel
Langmaids Island Corporation (“LIC”)
Town of Huntsville (“Town”)
S. Lampert
A. Ivo – Articling Student
J. Ewart
DECISION DELIVERED BY a. sauve AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1This Motion was brought by LIC asking the Tribunal for an Order directing that the “Waterfront Landing” use as defined by the Towns Community Planning Permit By-law No.2022-97 (“CPP By-Law”) and permitted on the properties (“Subject Properties”) known municipally as 3933 South Portage Road (“3933 Landing”) and 4215 South Portage Road (“4215 Landing”), does not prohibit construction access and commercial barging activities associated with the Waterfront Landing use.
22596701 Ontario Inc., a corporation affiliated with LIC, owns both Subject Properties listed above. The 3933 Landing is currently vacant. The 4215 Landing contains a tourist establishment containing several cottages and is known locally as Still Bay Resort.
3LIC is the registered owner of Langmaid’s Island (“Island”), near the westerly limit of Lake of Bays in the Township of Lake of Bays, in the District of Muskoka.
4The CPP By-Law is a development control tool that utilizes the Community Planning Permit System as found in the Planning Act. This system combines tools common to Zoning By-Laws and Site Plan Control By-Laws into one municipal planning By-Law that regulates development in a streamlined fashion through one approval.
BACKGROUND
5In 2018, applications were submitted on behalf of LIC to permit a 32-lot residential subdivision on the Island. The applications submitted were to amend the Township’s Official Plan (“TOP”) and the Town Zoning By-law No. 2008-66P (“ZBL”). Applications were also submitted to amend the ZBL to provide mainland access to the Island via the Landings. Lastly, LIC submitted an application for approval of a Draft Plan of Subdivision for the Island and the Landings.
6The Tribunal hearing related to the Island was split into two phases. The first phase (“Phase 1”) of the Tribunal Hearing dealt with the Township applications and the Town ZBL’s. The Township applications would permit the proposed development and establish regulations for the proposed development. The Town ZBLs would permit the Waterfront Landings in the Town to service the proposed lots on the Island. The second phase (“Phase 2”) dealt only with the proposed Draft Plan and associated Conditions of Approval.
7The Tribunal issued its Decision on the Phase 1 hearing (OLT Case File No.: OLT-22-002969) on September 12, 2022. In the Decision, the Tribunal approved the applications permitting a 32-lot residential subdivision on the Island, as well as the applications which permit the Waterfront Landing use on the Landings by way of amendments to the ZBL which was in effect at the time of the Phase 1 hearing.
8After the Phase 1 hearing, but prior to the Phase 2 hearing, on July 25, 2022, the Town enacted the CPP By-law, which replaced the former ZBL.
9In May 2023, the Parties executed a Minutes of Settlement (“MOS”) to settle Phase 2 of the hearing. Through a Decision issued on July 6, 2023, the Tribunal approved the agreed-upon Draft Plan and Conditions of Approval.
10In June 2023, LIC reached a settlement with the Town in respect of the CPP By-law Appeal. This settlement resulted in site-specific exceptions for the Landings that were consistent with the Tribunal’s Decision in the Phase 1 hearing. No MOS were prepared. The Site-Specific Exception No. “0010”, as outlined in Table 6.1 of the CPP By-Law, indicates that notwithstanding any provisions of the CPP By-Law the following exceptions apply:
A. The only permitted use is a Waterfront Landing;
B. There shall be two (2) parking spaces for each property served plus one (1) visitor parking space for every three (3) properties served by the Waterfront Landing; and
C. A maximum of 10 docking slips shall be permitted.
11The CPP By-law defines a “Waterfront Landing” as “a mainland parking and docking facility for a commercial property or for four or more residential properties.”
12On April 25, 2024, a Community Planning Permit application was submitted with supporting material for a Waterfront Landing use at the 3933 Landing.
13On June 7, 2024, an email from the Town Planner was received that included a comment that ‘No commercial mooring or barging is permitted in reference to the 3933 Landing.
14LIC intends to use the 3933 Landing for mainland parking and docking facilities for the proposed residential use of lots on the Island, including as an access point for vehicles and water vessels to transport goods, materials, equipment, and other items for activities on the Island, including facilitating the construction of the approved development on the Island. However, the Town submits that the Waterfront Landing designation does not allow for the use of the 3933 Landing for materials and equipment stockpiling and staging related to construction activities associated with the proposed development on Lake of Bays, and for the construction access and docking for commercial barges.
15The Moving Party brought this Motion asking for an Order directing that the Waterfront Landing designation does not prohibit commercial barging activities at the 3933 Landing.
EVIDENCE
16The following documents were made Exhibits for this Hearing:
Motion Record;
Responding Motion Material;
Reply Motion Record;
Amended Responding Motion Material;
Affidavit of Service sworn January 13, 2025; and
Affidavit of Service sworn January 20, 2025
ORAL MOTION
17At the onset of this Hearing, LIC brought an oral Motion for an Order striking Paragraph 36 and Exhibit F of the Affidavit of Richard Clark in the Town’s Responding Motion Record due to breach of settlement privilege. However, the Parties were able to discuss the matter and agreed on an Amended Responding Motion Record which was marked as Exhibit 4. The Tribunal did not make any findings or Orders regarding this issue.
ARGUMENT AND ANALYSIS
18LIC argues that the site-specific exception does not restrict the types of activities permitted at the parking and docking facilities, nor do they impose limitations on the types of vehicles or vessels that can be used at the Landings. LIC informed the Tribunal that it intends to use the Landings for mainland parking and docking facilities for the proposed residential use of lots on the Island, including as an access point for vehicles and water vessels to transport goods, materials, equipment, and other items for activities legally permitted on the Island, including facilitating the construction of the approved development on the Island.
19LIC asserts that the transfer of goods and materials, including construction materials and lumber, is an activity that is normally incidental to the development or use of a residential lot, and would be normally incidental to the Waterfront Landing use and function. The Town argued that this issue was not raised by LIC until recently and if their intention was to use this property for commercial barging, LIC should have raised it sooner in the process.
20The Tribunal was also asked by LIC to consider the Tribunal’s Decision in Daraban Holdings Ltd. v. King (Township) Committee of Adjustment, 2003 CarswellOnt 7730, where a minor variance was granted to use part of the property for a golf driving range, even though this use was not explicitly permitted in the ZBL. LIC contends that the Tribunal interpreted the by-law liberally, determining that a golf driving range fell under the broader category of "recreational use," which included golf courses. They submitted to the Tribunal that the case should be interpreted to mean unless a by-law expressly prohibits a particular activity or use, such activities and uses are permitted. Conversely, only activities that are expressly prohibited by the by-law are restricted.
21LIC then argued that, in this instance, the silence of the CPP By-law on construction access and commercial barging supports the conclusion that such activities are not prohibited, particularly when they align with the broader planning and zoning framework, and specifically, the approved Island development. LIC asserted that no provision in the CPP By-law prohibits the docking of certain types of vessels in any use or precinct, including the Waterfront Landing use. Furthermore, there are no policies or provisions in the TOP, or any other Town by-law, which prohibit the docking of specific types of vessels at a private Waterfront Landing.
22The Town argued that this matter has already been dealt with in the previous Decisions that granted the Site-Specific Exemption for this property [see para.10 above] with the creation of the parking requirements. They argued that the Site-Specific Exemption only allows the 3933 Landing to be used in accordance with the Waterfront Landing designation which prohibits any activity not specifically permitted.
23The Town argued that s. 3.1.2 of the CPP By-Law indicates that “Parking, loading spaces and all driveways and aisles leading to those spaces shall be provided for each land use in accordance with the provision in this section and;
a. Must be set aside for and used exclusively for that purpose;
b. Must not be obstructed; and
c. Must be located on:
i. The same lot as the use or building for which they are provided, or
ii. Located on a lot located within 150 metres of the site, provided the parking facilities are legally secured for that use, to the satisfaction of the Town.
24The Town then brought the Tribunal to s. 3.1.5 of the CPP By-Law which requires all motor vehicle parking spaces and queuing and loading spaces to have unobstructed access directly to a public street. Also, the Town informed the Tribunal that “Parking Area”, “Parking Space” and “Loading Space” are defined in the CPP By-Law. The definition provided for a Loading Space is “An area of land which is provided and maintained upon the same lot or lots upon which the principal use is located, and which adequate area is provided for the temporary parking of one commercial vehicle while merchandise or materials are being loaded or unloaded from such vehicle, and is not upon or partly upon any street, lane or alley.”
25Commercial barging and construction access at this property, the Town argued, is prohibited by the CPP By-Law because there is nowhere for the loading and storage of construction vehicles and materials without blocking access to the parking spaces which is specifically prohibited.
26It was asserted by LIC that there are no references to barges, and where they are prohibited, in the CPP By-Law nor are there references to construction access. In other words, the CPP By-Law is silent on construction access and commercial barging activities in any context.
27Whether or not commercial barging activities are even a possibility at this location, LIC asserted, can be determined later during the permit process. The Town agreed that a permit would still be necessary.
DECISION
28The Tribunal finds that “Waterfront Landing” as defined by the CPP By-Law does not prohibit construction access and commercial barging activities. The argument of LIC was persuasive in that a plain reading of the “Waterfront Landing” designation does not prohibit these activities and, in fact, contemplates some sort of commercial use. The Tribunal does not accept the Town’s assertion that the lack of a dedicated loading and storage area creates a prohibition because the required parking spaces may be obstructed. The Tribunal received no evidence that the parking spaces and access to those parking spaces would be obstructed unduly, or at all, by the requested activity.
29The Tribunal finds that the requested construction access and commercial barging activities are not prohibited by the “Waterfront Landing” designation in the CPP By-Law.
30It should be noted that the Notice of Motion listed the requested relief for both the 3933 South Portage Road property and the 4215 South Portage Road property, however, LIC withdrew the requested relief for the 4215 South Portage Road property as it was unnecessary.
ORDER
31THE TRIBUNAL ORDERS THAT the Motion is granted, in part, and that “Waterfront Landing” as defined by the Town of Huntsville’s Community Planning Permit By-Law No. 2022-97 does not prohibit construction access and commercial barging activities for the property known municipally as 3933 South Portage Road.
32If there any difficulties implementing this Order the Tribunal may be spoken to.
33This Member is not seized.
“A. Sauve”
A. SAUVE
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.