8 PL170627 LOCAL PLANNING APPEAL TRIBUNAL TRIBUNAL D’APPEL DE

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8 PL170627

Local Planning Appeal Tribunal

Tribunal d’appel de l’aménagement local

ISSUE DATE:

January 06, 2020

CASE NO(S).:

PL170627

The Ontario Municipal Board (the “OMB”) is continued under the name Local Planning Appeal Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or Board in any publication of the Tribunal is deemed to be a reference to the Tribunal.

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:	Jennifer Dewar
Appellant:	Sand Lake Area Property Owners Association
Applicant:	Edgewater Park Lodge Inc.
Subject:	By-law No. 2017-27
Municipality:	Town of Kearney
OMB Case No.:	PL170627
OMB File No.:	PL170627
OMB Case Name:	Dewar v. Kearney (Town)

Heard:

February 21 and 22, 2019 in Kearney, Ontario and December 17, 2019 by telephone conference call (“TCC”)

APPEARANCES:

Parties	*Counsel/Representative**

Jennifer Dewar	D. Trinaistich* (February 21 and 22, 2019) Self-Represented (December 17, 2019)
Sand Lake Area Property Owners Association	D. Trinaistich* (February 21 and 22, 2019) J. Skelton (December 17, 2019)
Jennifer Kirkham	D Trinaistich* (February 21 and 22, 2019) Self-Represented (December 17, 2019)
Edgewater Park Lodge Inc.	P. Peterson*

MEMORANDUM OF ORAL DECISION DELIVERED BY THOMAS HODGINS ON DECEMBER 17, 2019 AND ORDER OF THE TRIBUNAL

INTRODUCTION

Disposition

The Tribunal allows the appeals in part and approves an Amended Zoning By-law.

Background

This Memorandum of Oral Decision and Order results from a hearing and telephone conference call (“TCC”) on appeals by Jennifer Dewar and the Sand Lake Area Property Owners Association (“Appellants”) of the Town of Kearney’s (“Town”) Zoning By-law No. 2017-27 (“ZBL”) which proposes to amend Comprehensive Zoning By-law No. 2002-28 to permit seven additional campsites at 45 Edgewater Park Road (Part of Lot 19, Concession 3, Proudfoot, Part 1, PSR-1636) (“Site”).

The ZBL responds to an application submitted to the Town by Edgewater Park Lodge Inc. (“Applicant”).

The appeals were filed in May 2017 pursuant to s. 34(19) of the Planning Act.

HEARING

The Tribunal convened a two day hearing in Kearney on February 21 and 22, 2019. The Town undertook notice of the hearing and provided an Affidavit of Service to the Tribunal in advance of the hearing.

All of the Parties as noted above were represented at the hearing. Jennifer Kirkham gained Party status at the outset of the hearing upon request and without challenge. There were no other requests for Party status or Participant status. One person requested Observer status in order to receive a copy of the Tribunal’s Decision in this matter.

The Town did not appear.
Mr. Trinaistich advised that he had recently become aware that the Applicant had an Environmental Impact Study (“EIS”) prepared and intended to submit it as evidence and call Al Shaw, the consultant who prepared the EIS, as a witness. He indicated that the Appellants should have been made aware of this prior to the hearing and were now at a disadvantage in responding to the EIS and related evidence. Mr. Trinaistich requested an adjournment to allow the Appellants the opportunity to review and prepare a response to the EIS or, in the alternative, a ruling from the Tribunal that the EIS and Mr. Shaw are excluded from the hearing. Paul Peterson opposed the request and noted that no Procedural Order (“PO”) with exchange obligations was in place and that, under the circumstances, the Applicant and the other Parties were free to prepare their cases as they deemed fit. No adjournment was granted as it was subsequently agreed by the Parties that the hearing should proceed and initially focus on two questions: Is an EIS required by the Town’s Official Plan (“OP”) or other statutory document?; and if yes, what is the proper scope of the EIS and should a PO be put in place to, amongst other matters, allow for its preparation and/or review?

The two hearing days were not sufficient to hear all of the intended evidence on the above-noted questions. Only one (Peter Hungerford) of two witnesses for the Applicant was heard and there was no time for evidence from the other Parties. At the end of the two days, the Tribunal adjourned and advised that a continuance would be scheduled. In the interim, the Parties agreed to discuss a number of matters, including the content of an EIS, the possible scoping of issues and the need for a PO. Given that the Tribunal only heard part of the case from one of the Parties and made no decisions or rulings on the merits of the appeals, the Tribunal will not report or comment further on the two day hearing.

INITIATIVE TO SETTLE

Prior to the start of a scheduled continuance, Mr. Peterson advised the Tribunal of a possible settlement and, with the consent of the other Parties, requested that the continuance be adjourned to give the Parties time to determine if a settlement could be finalized. The Tribunal agreed to an adjournment.

The Parties subsequently confirmed that a settlement had been reached and requested that a settlement hearing be scheduled. The Tribunal agreed and a settlement hearing by TCC occurred on Tuesday, December 17, 2019.

THE TCC

Jennifer Dewar and Jennifer Kirkham participated in the TCC and were self represented. Jim Skelton participated as the representative of the Sand Lake Area Property Owners Association. Mr. Peterson participated as Counsel for the Applicant.

In advance of the TCC, Mr. Peterson provided the Tribunal with a Document Book that includes, amongst other matters: Minutes of Settlement (“MOS”); an Amendment to the MOS; an Amended ZBL based on the settlement; a resolution from Town Council supporting the Amended ZBL; and an affidavit from land use planner Marie Poirier in support of the Amended ZBL. Ms. Poirier is a consultant engaged by the Applicant.

The Parties confirmed that a settlement had been reached.

Ms. Poirier, after being qualified by the Tribunal, without challenge, to provide independent expert opinion evidence in land use planning, responded to certain questions from the Tribunal and confirmed that the Amended ZBL, in her opinion, has regard to Provincial interests as set out in the Act, is consistent with the Provincial Policy Statement, 2014 (“PPS”), conforms with the OP and represents good planning. Ms. Poirier advised that no Provincial Plan and no upper tier official plan apply to the Site. She indicated that she was satisfied that the Amended ZBL would not result in any unacceptable environmental impact and that sufficient study in this regard, including the aforementioned EIS, has been completed.

ANALYSIS AND FINDINGS

The Site is close to Sand Lake and has frontage on Highway 518, Edgewater Park Road and Perry’s Road. It is about two hectares in size. The Site is relatively flat and well-treed and is part of an enterprise known as Edgewater Park Lodge. The Site is currently developed with a five unit motel, garage, comfort station, storage building and five camp sites.

Lands abutting the Site are developed with low density residential uses (cottages) and related waterfront accessory uses.

The Site is considered Rural in the PPS and is designated Shoreline and Rural in the OP.

A copy of the Amended ZBL is appended to this Memorandum of Oral Decision and Order as Attachment 1 and it proposes to rezone the Site from the CT-3 Zone to the CT-4 Zone with an exception that applies a number of Site-specific provisions to the Site. The exception, for instance, defines the terms “Recreational Accommodation Unit” and “Camp Site”, specifies that ten Recreational Accommodation Units and an additional four Camp Sites are permitted and identifies the permissible locations for these uses. A provision for a buffer along the southern property line is also included.

The key differences between the Amended ZBL and the ZBL adopted by Council are a reduction in the number of camp sites permitted and the inclusion of an exception which adds certain detail regarding the manner in which the Site may be used.
It is Ms. Poirier’s uncontested expert opinion that the Amended ZBL: has regard to Provincial interests; is consistent with the PPS; conforms to the OP; and represents good land use planning. Perhaps in recognition of the environmental issues that dominated the first two days of the hearing, Ms. Poirier swears in her affidavit that she paid special attention to Section 2.2 Natural Heritage Resources of the PPS in arriving at her opinion that the Amended ZBL is consistent with the PPS and that the implementation of the Amended ZBL will have no impact on the natural environment.
Based on the uncontested evidence of Ms. Poirier, and with the support of the Appellants, Ms. Kirkham, the Applicant and Town Council, the Tribunal finds that it is appropriate to allow the appeals in part and approve the Amended ZBL.

In arriving at its Decision, the Tribunal had regard to matters of Provincial interest and finds that its Decision is consistent with the PPS.

The Tribunal acknowledges the efforts of the Parties in reaching a settlement. Pursuant to an inquiry from Ms. Dewar at the TCC, the Tribunal will not include the MOS in its Order as it addresses matters beyond the scope of the Tribunal’s jurisdiction.

ORDER

The Tribunal orders that:

A. the appeals are allowed in part;

B. Amended ZBL 2017-27 provided as Attachment 1 is approved; and

C. Comprehensive Zoning By-law No. 2002-28 is amended in accordance with Amended ZBL 2017-27.

“Thomas Hodgins”

THOMAS HODGINS

MEMBER

If there is an attachment referred to in this document,

please visit www.elto.gov.on.ca to view the attachment in PDF format.

Local Planning Appeal Tribunal

A constituent tribunal of Tribunals Ontario - Environment and Land Division

Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

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