Ms. Nooren summarized Report COA2024-114. The applicant is proposing to create three (3) new severed waterfront lots as well as a private road on the Subject Land. The balance of the lands, which front Baseline Road, will comprise the retained lot. Ms. Nooren summarized concerns received from neighbouring properties relating to natural heritage, roadway and environmental impacts. In addition, comments were received at the meeting from the owner, Mr. Moore.
The Committee had the following questions and concerns:
1) Noted Mr. Moore’s email stating the City's solicitor had no concerns with Mr. Moore developing a private road versus a condominium road.
Ms. Nooren acknowledged Mr. Moore’s email and had determined that Condition 3, a Common Element Condominium agreement be included.
2) Does the private road meet the required standards?
Ms. Barrie, Director of Development Services referred to Mr. Moore’s email pertaining to the statement "our understanding is the road currently exists...". Ms. Barrie believes that the road does not exist as it was never created under the Planning Act under this Committee. Ms. Barrie referred to original comments stating the "road" is a driveway and as such changes the nature of what is permitted. The Committee are looking at a traveled driveway that traverses across private land.
3) Why would the Committee approve the creation of three lots where there is no access to the lots?
Ms. Barrie recommended the Committee to only consider the creation of three waterfront lots which staff have evaluated have merit but only if they are accessed by a private road that is governed under an agreement that the owners enter into that fall into a Condominium Corporation (financial security). Ms. Nooren agreed with Ms. Barrie.
4) Difference between a private road and private lane.
Ms. Nooren deferred to the Director of Development Services. Ms. Barrie referred to the Zoning By-law.
5) Site Servicing. The report indicated the use of private wells and lake drawn water supply. Ms. Nooren replied that the lots will be serviced by private well and septic as well as Lake water supply. Ms. Nooren also deferred to the applicant for a response.
6) If an Official Plan Amendment takes place first, the lots will be classed as infilling lots. Will the Condominium agreement be required as the distance separation is satisfied?
Ms. Nooren referred to the Official Plan Policy 33.3 for Consents, and deferred to Ms. Barrie for further discussion as to a Council resolution respecting existing limited service agreements on existing private roads. Ms. Barrie noted that it was staff’s intention to bring the consent applications to the Committee first before the Official Plan Amendment and went on to explain the steps. The Committee of Adjustment has to create/approve a private road. Once the private road exists, then an amended infill policy would enable the creation of the lots to the private road.
7) Road - Is the Condominium agreement the City's only legal solution or could the owners be on title for their section of the road? Ms. Barrie spoke to the existing infill policy and the direction taken by staff to make the Committee aware of implications that could fall on Council in the future. Ms. Barrie finished by saying that research has shown that over the past two decades that land divisions of this type have not been brought to Committee of Adjustment and that this is new to the Committee. Councillor Yeo noted for the record that he does not agree with the Common Element Condominium agreement.
8) The Committee needed more clarification as they have seen many applications come to the Committee for development relating to private roads whereby no agreement was required. Ms. Barrie explained the difference being the private road existed in previous applications whereas in this case the private road does not yet exist. Ms. Barrie explained the Common Element Condominium Agreement. The Chair commented on past history being a Councillor and the frustrations caused with private roads.
The applicant, Mr. Moore was present via electronic participation. Mr. Moore indicated that his application stated that he would use lake water, his consultant added well water as an option for future potential owners. Committee referred to setbacks and environmental protection areas and asked if there is a big enough building envelope for a well? Mr. Moore replied yes, as they are large lots.
Mr. Moore summarized his proposal and spoke to the history of the property. He indicated he had earlier discussions with the City's solicitor regarding a draft Private Road Agreement stating Tenants in Common ownership achieve similar goals of the Condominium Agreement or Common Element Condominium (CEC) Agreement at a significantly lower cost. A week before the meeting Mr. Moore received the staff report indicating instead that a condition was added to enter into a CEC Agreement. Ms. Barrie provided clarification that the City’s solicitor does not provide legal advice to the public.
The Committee had the following questions and concerns:
1) Ownership of the private road.
2) Roadway that crosses Mr. Moore’s property once registered, would it create a severance of two lots?
3) Referenced email presented by Mr. Moore dated August 8th. Did the City's Solicitor state the proposal for the road was acceptable and you were of the understanding you could proceed?
Ms. Barrie confirmed there is no agreement between the City's Solicitor and Mr. Moore. Ms. Barrie can confirm that contact was made between Mr. Moore and the City's Solicitor. However, the role of the City's Solicitor is to support staff and not to provide advice of drafting private agreements. Ms. Nooren followed up by saying the survey was received after the conversation with the City's Solicitor to confirm the road did not exist.
The Committee had the following questions and concerns:
1) At what point were you aware that a Common Element Condominium Agreement was required. Mr. Moore replied at the pre-consultation stage however disagreed with it and referred to a previous severance he processed in the past.
2) Reference to the August 8th email, indicating a draft agreement between Mr. Moore and The Manager of Planning, Mr. Donnolly. Is there a copy of that email? Ms. Barrie suggested the owner is referring to former Manager of Planning Mr. Connolly. There was a conversation, which took place with the former Manager, but there is no agreement or draft template. Ms. Barrie also clarified that the right-of-way created through a consent mentioned by Mr. Moore for a previous application is called an easement and was approved as it crossed an existing private road.
Ms. Barrie spoke to the member’s previous question regarding the number of retained lots.
Ms. Nooren clarified that a number of public comments were received of which planning has responded to all public comments and forwarded copies of the Planning Justification Report and the Environmental Impact Study. There was no further feedback from the public.
3) Referred to the extra severance and asked staff if in the future could the two properties be built on?
4) If the CEC were registered, would that create two properties?
5) Clarification of what the Committee are approving today. Ms. Barrie responded and recommended approval of the staff report of which the applicant would have to enter into a CEC.
6) The applicant disagrees with the condition for a CEC. The Chair indicated that if we approve the application as recommended by staff, Mr. Moore would have to apply for a CEC application. Ms. Barrie followed up by explaining the appeal rights available to the owner.
7) Is Shadow Lake Road municipally maintained?
Ms. Barrie noted that Shadow Lake Road is an existing private road.
Councillor Yeo indicated that he would like to approve all severances today without requiring a CEC agreement for a private road.
8) Will the Committee be violating the City's By-law by approving all severances today? Staff responded.
9) If the decision today was to approve the applications as recommended by staff could it result in court proceedings? Staff responded.
10) Reason for the CEC agreement is for the future? Ms. Barrie replied that it is one of many components and referred to guidance documents and policies.
The Chair sought clarification from Ms. Barrie regarding the Committee's decision relating to the private road. Ms. Barrie explained the process.
11) Committee has seen many applications that front onto private roads, which have not required a CEC agreement. What is the difference with this application? Ms. Barrie responded the difference being this is not an existing private road.
12) Limited Service Agreements.
13) What motion would the Committee have to approve to create the three lots and not approve the CEC agreement? And what are the implications to staff? Ms. Barrie indicated all severances would have to be approved including D03-2024-058 to allow the creation of three residential lots and the private road to access them. Implications are lack of securities in place and finances to maintain the road for current and future owners.
Discussions ensued around the private road.
Member Strangway put a motion on the table to approve the creation of three residential lots and not to support the application for the CEC agreement. Seconded by Member Richardson. Committee asked staff, if the motion were to be approved, how would the owner proceed to create the private road? Ms. Barrie responded that conditions would be attached to D03-2024-058 for the creation of the private road, to be finalized through the owner’s solicitor.
Ms. Barrie noted the challenges Committee are having to arrive at a decision and suggested a deferral to the next meeting to allow time for the owner to present the Committee with supplementary information identifying financial burden to the owner and future owners.
Member Richardson withdrew her motion as she thought the motion was to approve the staff’s recommendation. Councillor Yeo, seconded the motion made by Member Strangway. Councillor Yeo spoke to his decision and the policies of Council.
Committee asked if this motion was to pass, what conditions would be attached to the approval. Ms. Barrie responded that conditions referring to application D03-2024-058, Condition 3 relating to the CEC agreement be removed as well and Condition 7 for Cash-in-lieu. Further language would be included to address that a deed is required for the road.
The Committee continued discussions with CEC agreements for private roads.
Recorded vote:
For - S. Strangway, Councillor Yeo, G. Erickson.
Opposed - S. Richardson, B. Archer, L. Robertson and E. Finn.
Failed.
A second motion was made to approve the applications as recommended by staff.
For – S. Richardson, E. Finn, B. Archer, S. Richardson and L. Robertson.
Opposed – S. Strangway and Councillor Yeo.
There were no further question from the Committee or other persons.