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Donnelly Law on the Recent Oak Ridges Moraine Victory

28 February 2014 No Comment

On January 27, 2014, the Ontario Municipal Board (“OMB”) denied a planning application submitted by Mr. Peter Eliopoulos to allow a massive outdoor wedding/banquet facility in King Township in the Countryside Area of the Oak Ridges Moraine Conservation Plan (the “ORMCP”).  The decision was featured in the Toronto Star, with David Donnelly saying:

“Putting large-scale, car-dependent commercial activities in some of the most beautiful and natural country in southern Ontario would have been a big mistake,” said lawyer David Donnelly, who represented local residents at the OMB hearing. “If you believe that King Township is horse country and not paintball country, then this is a big decision for the Oak Ridges Moraine.”

The parking lot alone would host up to 600 people plus staff, making it the largest parking lot in King Township.  The banquet and wedding proposal included three garden areas with tent-like structures (solid floors and three solid sides).  The outdoor event/banquet facility would be operated by a business that runs several other event venues with package deals for weddings and bar mitzvahs.

The property, at 3550 18th Sideroad, King Township, has been the subject of controversy for years.  Over many years, a long canal and pond were bulldozed on the site, in contravention of the Township’s Site Alteration By-law, creating a “water feature” that extends over one kilometre-long and is estimated to have the same capacity as 14 Olympic size swimming pools!  The property was downgraded from Prime Agricultural to Rural in 2013.

King Township Council voted unanimously on August 26, 2013 to oppose the application.  The Stewards of the Moraine (the “Stewards”) was also opposed to the application, and received party status at the OMB.

The Oak Ridges Moraine, one of Ontario’s most significant landforms, is protected by the ecologically-based ORMCP.  The Stewards is pleased by the decision of the OMB that halted in its tracks an inappropriate development that could have set a dangerous precedent for more inappropriate development on the Moraine, just a few short months before Ontario begins its mandatory review of the ORMCP.

The OMB hearing focused only on whether the outdoor banquet facility was permitted by the ORMCP i.e. is the outdoor banquet facility a “major recreational use”?  The ORMCP defines major recreational use as “recreational uses that require large-scale modification of terrain, vegetation or both and usually also require large-scale buildings or structures, including but not limited to the following: golf courses, serviced playing fields, serviced campgrounds, and ski hills.”

The OMB heard three days of expert planning evidence from three planners, including Mr. Robert Lehman, a highly respected planner with more than 40 years’ experience, on behalf of the Stewards.  The planners focused on one key question:  can a wedding be considered a major recreational use?

The Applicant’s professional planner, Mr. Jim Dyment, MCIP, RPP, testified in his evidence that a wedding is a “recreational activity”.  Under cross-examination by the Stewards’ lawyer, Mr. David Donnelly, Mr. Dyment stated that a wide variety of activities could be construed as “recreation”, including dating, courting, playing cards, sitting in quiet meditation or even attending a book club can be considered “recreation” per the definition in section 6 of the Provincial Policy Statement, 2005.  The planners for King Township and the Stewards held a different opinion:  the proposed use was predominantly commercial and not recreational.  Mr. Gerrit de Boer, a lay witness for the Stewards, shared this opinion and was quoted in the OMB Eliopoulos decision at paragraphs 19 to 21:

“A wedding is a celebration of life where two people commit to each other by taking vows. It is not recreational. And I would have never gone out with my wife if her father thought going out on a date was a major recreational event.”

The OMB summed up Mr. Boer’s evidence as follows:

“It was Mr. de Boer’s contention that the proposal represented a commercial venture of a type that would not be allowed under the ORMCP.  While Mr. de Boer was not an expert witness on land use planning, or even weddings, the Board found his observations interesting.

The OMB agreed with Mr. de Boer, the Stewards and King Township: “the proposed banquet/wedding/event facility is not a recreational use as anticipated by the Province in the ORMCP” (Eliopoulos Decision at paragraph 31).

While this may seem like an academic debate over a simple definition, approval of the Eliopoulos outdoor banquet facility could have had profound consequences for the Oak Ridges Moraine.  If this outdoor banquet facility were approved under the guise of being “recreational”, it could open the door to a whole suite of development applications that the ORMCP did not anticipate in the Countryside Area.  To the Stewards’ very great surprise, some in King Township consider the definition of “major recreational use” to be very broad.  The Applicant’s planner, Mr. James Dyment, seemed to argue that paintball, go-carts, laser tag and other borderline outdoor recreational pursuits could be permitted in the ORMCP Area as major recreational uses.

This is not what the drafters of the ORMCP had in mind when they put the intent of the Oak Ridges Moraine Conservation Act, 2001 into regulation i.e. the ORMCP, to protect farmland, headwaters and foster growth in suitable areas.

The clear intent of the ORMCP is to limit uses and the intensity of uses in the ORMCP Area.  Any exceptions to the list should only be granted in very narrow and clearly analogous cases e.g. downhill vs. cross-country skiing.  The purposes of the ORMCP include protecting the ecological and hydrological integrity of the Oak Ridges Moraine Area, ensuring the Area is maintained as a continuous natural landform and environment for the benefit of present and future generations, and providing for continued development within existing urban settlement areas.  The Eliopoulos OMB decision reinforces the strict conservation mandate of the ORMCP.

This case is also a cautionary tale, decided before the ORMCP 2015 review kicks into high gear.  On December 6, 2013, after the hearing, the Stewards wrote to King Township, commenting on the current Official Plan review as follows:

Given the different views on “recreation” and “major recreational use”, it would be prudent for the Township to bring greater specificity to recreational policies in the ORMCP Area through its Official Plan Review.  To ensure the Township remains an “idyllic community of communities” over time, the Township should define permissible recreational uses and strengthen its recreational policies, keeping in mind subsection 8(2) of the Act, which allows the Township to be more restrictive than the ORMCP in its Official Plan.

The Oak Ridges Moraine Conservation Act, 2001 subsection 8(2) allows municipalities to adopt stricter policies for environmental protection of the Moraine.

The ORMCP 2015 Review will provide an opportunity to reconsider what types of development should be permitted on the Oak Ridges Moraine.  In so doing, Moraine advocates must ensure their voices are heard, loud and clear.  The Stewards hopes this victory before the OMB is the start of a successful ORMCP Review.

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