Blue Birch Properties Inc. v. The Blue Mountains (Town), 2025 CanLII 24807

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 20, 2025

CASE NO(S).: OLT-24-000196

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

Applicant and Appellant: Blue Birch Properties Inc.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the rezoning of subject lands to redefine the existing wetland and hazard zones and to establish two (2) development envelopes.

Reference Number: P3386

Property Address: Part Lot 25, Concession 4

Municipality: The Blue Mountains

OLT Case No.: OLT-24-000196

OLT Lead Case No.: OLT-24-000196

OLT Case Name: Blue Birch Properties Inc v. The Blue Mountains (Town)

Heard: March 17, 2025 by Video Hearing

APPEARANCES:

Parties

Counsel

Blue Birch Properties Inc. ("Appellant")

Jason Park Sarah Kagan

Town of The Blue Mountains ("Town")

Narmada Gunawardana Denise Baker (in absentia)

Grey Sauble Conservation Authority ("GSCA")

Alex Ciccone

Niagara Escarpment Commission ("NEC")

Demetrius Kappos Margaret McCloskey

MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON MARCH 17, 2025 AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal was a hearing to consider a settlement proposal ("Proposal") of the Appellant’s appeal of a Zoning By-law Amendment ("ZBA") (the "Application").

2The purpose of the Application was to facilitate a development by rezoning lands municipally known as Part Lot 25, Concession 4 ("Subject Land" / "Site"), redefining the existing wetland and hazard zones and to establish two development envelopes on the Subject Land, in the Town of The Blue Mountains ("Town").

3Following the Proposal a draft ZBA was provided.

4Kristine Loft, a registered Professional Planner, swore an Affidavit on March 10, 2025, on behalf of the Appellant, in support of the Proposal. She was qualified to give expert opinion evidence in land use planning matters. The Affidavit was marked as Exhibit 1.

5The Tribunal, having reviewed the Proposal, the documents, and the affirmed testimony of Ms. Loft, allows the appeal for the reasons set out below.

PLANNING EVIDENCE

6Ms. Loft gave an overview of the Application and the legislative and policy framework in support of the Proposal. She addressed the concerns of the Participants, relating to: inconsistency in the findings of the Environmental Impact Assessment, Flood Hazard Study, and Planning Justification Report; clarification of the changes that allow for the development of defined wetlands and hazard lands; support for the responsible development of the Subject Land, emphasizing the need for the Town to resolve drainage issues in a comprehensive manner; support for responsible development of the Subject Land, emphasizing the need for the Town to resolve flooding, drainage, and stormwater management issues in a comprehensive manner and to return the entrance lands to the owner; and concern regarding the potential harm to endangered tree and wildlife species, as well as the irreversible damage to existing woodlands and wildlife habitats.

7She informed the Tribunal that the Appellant’s consultant engineers and experts have conveyed that there were no adverse impacts. The Environmental Impact Assessment, Flood Hazard Study and Planning Justification Report have been reviewed, and confirmation of site constraints has been carefully addressed. The proposed development, including the delineation of developable limits, has been thoroughly examined and is supported by the technical studies including Earth Works Analysis, Environmental Impact Study, Flood Hazard Study, Functional Servicing Brief and Geotechnical Investigation. The proposed development provides the required infrastructure to address drainage, stormwater management, and functional servicing needs for the proposed building envelope at the northwest quadrant of the Subject Lands. Additional comprehensive planning regarding municipal drainage issues can be explored by the Town and other agencies. The management of existing natural features, endangered wildlife species, and hazard lands has been examined and carefully reviewed.

8The relevant policy framework includes the Provincial Planning Statement, 2024 ("PPS"), the Niagara Escarpment Plan (NEP"), the County of Grey Official Plan ("COP"), and the Town’s Official Plan ("OP"). Ms. Loft opined that the Proposal and ZBA represent good land use planning, and she recommended approval of the ZBA.

AREA CONTEXT

9The Subject Land is an irregularly shaped lot near the Georgian Bay shoreline in the Town of The Blue Mountains. The Site is in Camperdown, south of Highway 26 West and generally between Barclay Boulevard to the west, Hidden Lake Road to the east, and James Street and Hidden Lake Road to the south. The Subject Land abuts the Georgian Trail at the northern boundary.

10The Subject Land is in a residential area surrounded by existing residences that have frontages on Barclay Boulevard and James Street. The Site is adjacent to a medium density condominium development (Hidden Lakes Development) to the east.

11The Subject Land is vacant and has a lot area of 10.6 hectares("ha"). A significant portion of the Site comprises a wetland feature and associated hazard lands. A watercourse, known as Watercourse 22, traverses the property from the southwest to the northeast. The Subject Land has frontage onto James Street in the southeast quadrant. The Site abuts a parcel of municipally owned lands between the Subject Land and Barclay Boulevard.

12Under the OP, the Subject Land is currently designated ‘Residential Recreational’ and ‘Hazard’ in Schedule A-3.

13The Subject Land is currently zoned ‘Development (D)’, ‘Hazard (H)’, and ‘Wetland (W)’ in the Town Zoning By-law 2018-65 ("ZBL") as amended. The Site also includes a h1 Holding Symbol that is a holding provision related to "Lands Adjacent to Wetland Zone".

THE REVISED PROPOSAL

14As part of the Proposal, a revised plan has been prepared, now showing a summary of changes made to the plan because of the expert discussions:

1. The area proposed to be disturbed by the development was significantly reduced from 1.52 ha to 0.64 ha. The settlement plan yields a final development envelope/area of 0.46 ha (versus 0.73 ha previously proposed) and will require regrading and replanting of approximately 0.18 ha for floodplain volume offsetting (versus 0.79 ha previously proposed).

2. The original proposal reflected in the Application sought a development envelope having an area of approximately 0.72 ha at the southeast quadrant of the property abutting James Street. This building envelope has been removed from the settlement plan.

3. The impact to identified natural heritage features and functions has also changed: Less Significant Woodland, Significant Wildlife Habitat, and candidate Species at Risk Habitat (for Endangered Bats) is proposed for permanent alteration.

4. Permanent site alteration is entirely removed from the wetland habitat and a minimum 15 metre setback to the feature is provided.

5. MECP has reviewed the proposal and confirmed that contravention of the Endangered Species Act, 2007, is unlikely, provided that the proposed timing windows for tree removal are adhered to.

15In response to concerns with the southeast development envelope, the Proposal was revised to remove the southeast development envelope.

ANALYSIS AND FINDINGS

16The Tribunal accepts the uncontested opinion evidence of Ms. Loft. The Tribunal finds that the Proposal has proper regard for the matters of provincial interest as set out in s. 2 of the Planning Act ("Act"). In particular, s. 2(a) the protection of ecological systems, including natural areas, features and functions; and 2(p) the appropriate location of growth and development.

17Further, the proposed development is consistent with the PPS, issued under s. 3 of the Act. The PPS is a streamlined province-wide land use planning policy framework that replaces both the Provincial Policy Statement, 2020 and the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019.

18Ms. Loft opined, and the Tribunal agrees, that the Proposal is consistent with the policies within the PPS and conforms to the NEP, COP and the OP.

Provincial Planning Statement, 2024

19The Proposal is consistent with the policies of the PPS, particularly sections 2.3.1.1 and 2.3.1.2a) which promote growth and development in Settlement Areas and the efficient use of land and resources.

20The Proposal is consistent with s. 4.1.8, which states that development and site alteration shall not be permitted on lands adjacent to identified natural heritage features unless the ecological function of the adjacent lands has been evaluated and it has been demonstrated that there will be no negative impacts.

21Section 4.2.2 provides that development and site alteration shall be restricted in or near sensitive surface water features and sensitive groundwater features such that these features and their related hydrologic functions will be protected, improved or restored, which may require mitigative measures and/or alternative development approaches.

22The management of the existing natural features and hazard areas on the Subject Land has been appropriately mitigated as described in the technical reports which included the Flood Hazard Study (Tatham, 2023), Environmental Impact Study (Birks Natural Heritage Consultants, 2023), and Functional Servicing Report (Tatham Engineering, 2023).

23The Tribunal finds that the Proposal and ZBA are consistent with the PPS 2024.

The Niagara Escarpment Plan

24The Subject Land is designated ‘Escarpment Recreation Area’ in the NEP. Single detached dwellings are permitted within the Escarpment Recreation Area.

25Section 1.8.5 provides Development Objectives within the Escarpment Recreation Area. The policy requires that growth and development shall be compatible with and provide for the protection of natural heritage features and functions and the protection of hydrologic features and functions.

26Section 2.7.3 provides for diversity and connectivity between key natural heritage features and key hydrologic features to be maintained and where possible enhanced for the movement of native plants and animals. Subsection 2.7.8 provides that development within the habitat of endangered species and threatened species within the Escarpment Recreation Area is not permitted unless it is in compliance with the Endangered Species Act, 2007.

27The proposal has taken into consideration the natural heritage features and the hydrologic features and functions, as well as the protection of natural habitats of species at risk. The Tribunal finds the Proposal and ZBA conform to the NEP.

County of Grey Official Plan

28The Subject Land is designated as "Recreational Resort Settlement Area" on Schedule A – Map 2 Land Use Types in the COP.

29The Subject Land is identified as containing Significant Woodlands and Other Wetlands and is near to two "Abandoned Petroleum Wells" and one "Unknown Petroleum Well" on Appendix B of the COP- section 5.8.1(1). A Geotechnical Report was prepared which confirmed the existing soils can support residential uses and are also suitable for on-site sewage disposal.

30The Flood Hazard Study (Tatham, 2023), Environmental Impact Study (Birks Natural Heritage Consultants, 2023), and Functional Servicing Report (Tatham Engineering, 2023) confirm that implementation of appropriate mitigation measures, including site regrading, minimum setback distances, and established developable limits appropriately respond to policies related to Natural Heritage Features (Section 7.3.2 – Other Wetlands; Section 7.4 – Significant Woodlands) in the COP.

31The Tribunal finds that the Proposal and the ZBA conform to the COP.

Town’s Official Plan

32The Subject Land is designated ‘Residential Recreational Area’ and ‘Hazard’ in Schedule A-3 of the OP.

33Section B3.7 provides for Residential/Recreational Area policies. Section B3.7.3 provides the permitted uses which includes single-detached dwellings, among other uses listed.

34The Subject Land is currently vacant and surrounded by existing residential uses that comprise a mix of seasonal and permanent dwellings. The Site is near recreational areas including Northwinds Beach, Craigleith Provincial Park and to the Village at Blue. Existing natural feature constraints limit opportunities for new development on the Subject Land. The Proposal offers an opportunity for a building envelope to be established near resort and recreational amenities on an existing lot of record.

35Section B5.1.1 provides policy objectives related to natural heritage features and areas. The objectives include the maintenance and enhancement of the ecological integrity of natural heritage features, elimination of the potential for loss of significant wetlands, and the provision of tools to properly assess development applications near environmentally sensitive features and areas.

36Section B5.2 provides policies related to Natural Heritage Features. Section 5.2.1 provides that development and site alteration is not permitted in Significant Wetlands and Woodlands unless it has been demonstrated that there will not be any adverse impacts to the natural features or their functions.

37With respect to the requirements of Section B5.2 the following studies were provided; a Flood Hazard Study (Tatham Engineering), Environmental Impact Study (Birks Natural Heritage Consultants), Soil Report (Soil Engineers) and Functional Servicing Report (Tatham Engineering). These reports conclude that implementation of appropriate mitigation measures, including site re-grading, minimum setback distances, and established developable limits, appropriately respond to policies related to Natural Heritage Features.

38Section B5.4 provides policies related to Hazard Lands. Section B5.4.2 provides limitations on permitted uses being forestry, uses connected with conservation, agriculture, passive public parks, public utilities and resource based recreational uses.

39The proposed ZBA includes a Site-Specific exception which relates to an area of Hazard zoned lands whereby "Additional permitted uses include limited site works including tree clearing, site grading and restoration, in accordance with any permit issued by the Conservation Authority".

40The Tribunal finds that the Proposal and the ZBA conform to the OP.

ZONING BY-LAW

41The Subject Land is zoned ‘Development (D)’, ‘Hazard (H)’, and ‘Wetland (W)’ in the Town Zoning By-law 2018-65 ("ZBL"), as amended. The Site also has a Holding symbol (h1) on the property. The h1 symbol is related to the "Lands adjacent to Wetland Zone".

42The purpose and effect of the Proposed Zoning By-law Amendment is to rezone the lands from Development (D), Hazard (H) and Wetland (W) Zones to a Residential One- One–Site-Specific Exception (R1-1-X-HXX), Hazard (H-hXX), Hazard Site-Specific Exception (H-XX-hXX) and Wetland (W-hXX) Zones to allow for a proposed building envelope and the potential for three (3) residential lots by way of a future consent process in the northwest quadrant of the site. The By-law will also lift Holding symbol (h1).

43The holding '-h' symbol shall not be removed from the portion of the lands zoned Hazard (H) and Wetland (W), prior to any site alteration or disturbance, until future proposed works shall be reviewed by a person knowledgeable in Species at Risk, and their habitats, in order to ensure that the proposed works are in keeping with the Endangered Species Act, 2007 as current at such time that site alteration is contemplated. Further regulations on holding provisions and removal are stipulated in the draft ZBA.

44The Tribunal finds that the ZBA complies with the general provisions of the ZBL and represents good planning.

45The Tribunal finds that:

a) The Subject Land is in an area identified for residential and recreational development which permits the proposed development.

b) The Proposal contains mitigation measures for existing hazard lands and have protection of the natural heritage features and functions on the Subject Land.

c) The Proposal provides for appropriate conservation of the hydrological features and functions. The natural habitats of species at risk are conserved and protected with the Proposal.

d) The Subject Land within the Recreation Resort Settlement Area of the COP and the Residential Recreation Area of the OP permit the Proposal contemplated.

CONCLUSION

46The Tribunal is satisfied that the Proposal and the ZBA represent good planning, have regard for the matters of provincial interest as set out in s. 2 of the Act, are consistent with the PPS, and conform to the NEP, COP, and the OP.

47The Tribunal grants the appeal in part and approves the ZBA.

ORDER

48THE TRIBUNAL ORDERS THAT the appeal is allowed in part, and that:

1. The Town of The Blue Mountains By-law No. 2018-65 (as amended) is hereby amended, as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk to assign a number to this By-law for record keeping purposes.

"T.F. Ng"

T.F. NG

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