It’s been a long haul for the Fox Lake Association. They’ve been fighting since 1992 to maintain the integrity of the north end of Fox Lake. The problem: an application to subdivide a lot in an ecologically sensitive area that keeps coming back, again and again.
On September 8, 2015 the owner of the property in question, Henry Ender, was denied his request to subdivide the lot by the Ontario Municipal Board (OMB) . He appealed and was granted a rehearing which will be held on August 30 and 31 in Huntsville.
The OMB’s decision to allow a rehearing of the case has frustrated members of the Fox Lake Association and angered members of Town Council who say that an agreement was reached with the owner in good faith and upheld by the OMB.
This really aggravates me. I remember this case quite well and I remember it being a very well-negotiated agreement amongst all the parties. I thought the municipality played a very responsible role in finding a solution that was acceptable to all parties and in my mind a deal is a deal is a deal. I’m aggravated that one party has decided to ignore that. I’m aggravated that the OMB agreed with us coming up with this solution and now is changing their mind and trying to throw that negotiation in good faith out the window.
Mayor Scott Aitchison
A brief history of the agreement
According to a report prepared by Town of Huntsville staff in 2014, Henry Ender applied for a 41 lot subdivision in 1992. Lengthy negotiations between the owner, the Fox Lake Association, neighbouring property owners, the District of Muskoka and the Town of Huntsville ensued and resulted in a subdivision agreement that, among other clauses, reduced the number of lots to 19 and restricted further severance of a lot at the north end of the lake.
In 2005, Ender applied to sever that lot into two lots and amend the subdivision agreement. Due to feedback from the Lake Association and staff reluctance to amend the agreement, the application “was not processed any further”.
In 2009, Ender applied yet again, this time to sever the lot into four lots and amend the zoning bylaw to allow for the severance. The Town received 11 letters in opposition. This is a quote from one of them:
This agreement was reached with a great deal of effort and expense by many persons. The Fox Lake Association chose to work with the developer, Mr. Henry Ender, rather than oppose him. The Association’s aim was to protect, as much as possible, the last remaining area of substantial natural environment and heritage on Fox Lake and the fragile ecosystem of the Buck River, while enabling Mr. Ender to develop only 19 waterfront properties for a reasonable profit to his private enterprise. A major concern of the Fox Lake Association was to retain the character, natural beauty and environment of the development lands fronting the north shore of Fox Lake and the winding, narrow Buck River.
Ellen Fox, member of the Fox Lake Association, in a 2010 letter to the Town of Huntsville
Ender put the application on hold and then in February of 2014 asked the Town to set a date for a public hearing on that application. At that hearing, held April 16, 2014, the Planning Committee denied the severance and Council later denied the zoning request.
Ender appealed the Town’s decision to the OMB, was again denied. He then further appealed that decision and has been granted a rehearing later this month.
Here we go again
The Town spent nearly $27,000 on legal fees to defend its original subdivision agreement with the owner before the OMB. It’s not willing to incur that expense again and has notified the OMB that it will not be a party at the rehearing.
At the Huntsville Planning Committee meeting on August 10, Robin Yule from the Fox Lake Association questioned the Town’s decision not to appear and requested whatever assistance staff and Council could provide to help the Association oppose Ender’s application.
“We are preparing as best we can,” said Yule. “We have limited expertise and very limited funding… (We) believe the OMB would take opposition by the Town more seriously than the Fox Lake Association. It would carry more weight than we do.” Yule added that the case could set a bad precedent, essentially declaring “open season on subdivision agreements.”
Subdivision agreement vs. the Official Plan
A new OMB decision appears to hinge primarily on one thing: Huntsville’s Official Plan.
In a letter outlining his justification for the rehearing, S. Wilson Lee, Associate Chair of the Ontario Municipal Board said that too much weight had been placed on the subdivision agreement without taking into account whether the application conforms with the Town’s Official Plan.
The Town’s Executive Director of Development Services, Derrick Hammond, clarified the OMB’s stance for committee members: “There is a subdivision agreement which indicates no further land division… (but) the Board has to evaluate what the reasoning was for it. The conflict now is that there isn’t prohibitive policy in the Official Plan.” He suggested that there could have been a site-specific amendment to the Official Plan that would identify what areas should be protected around Fox Lake. That didn’t sit well with Mayor Aitchison.
The Official Plan is supposed to be more general in nature. It could become a myriad of appendices identifying pieces and parcels of land all over Huntsville… it would be as big as the Gutenberg Bible. Why would we have to enshrine (our decision) in a tool that is meant to be more general in nature? That doesn’t make sense to me… Suffice to say I’m pissed off and I want to be at the end of this one.
Mayor Scott Aitchison, to applause from Fox Lake Association members in the gallery
The Planning Committee passed a resolution to repeat its stance to the OMB: that Council upholds its original decision respecting Ender’s application and that it will not participate in the hearing. The resolution will go to Council on August 22 for ratification.
Chair Nancy Alcock advised the Fox Lake Association that Town staff would support their opposition of the application by being available to answer their questions. “They can’t represent you but they can work with you.”
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There are so many little access roads leading to lakefront properties in Muskoka. They were meant to be used in the summer for seasonally accessed cottages, not for permanent dwellings. Our little lakes are being over developed, that’s for sure. Just ask people who live on small lakes and have several air b&b’s in their neighbourhood. We need a strong commitment to the environment, not developers. And, I consider turning your property into a commercial air b&b a developoment.
Ryan Vallentin: Perhaps you could educate yourself BEFORE you throw around words like “elitist”. Here are the facts:
1) The original subdividers agreement was negotiated in good faith between the developer and the Fox Lake Association whereby the developer was allowed to construct a road NOT up to municipal standards (saving several hundred thousands of dollars) while compromising on the number of lots to be developed on the north end of the lake (several hundred requested by developer vs <10 requested by the FLA).
2) As a consequence, the property owners on the north end need to spend $1,000s each year (individually) just to maintain the substandard road in a "passable" condition. As one of those property owners, I can assure you the road is VERY fragile. Increasing the traffic volume on this road (via more properties) was a major concern for the property owners.
3) The specific lot in question was purposefully developed out of concern for the environmental impact on the river's ecosystem.
So along comes the developer several years later (when he could not get what he deemed fair market value for the property) ignoring the agreement made for his economic benefit. Additionally, the original 19 property owners shared a 1/19th share of the ownership of the road and common lands. The OMB ruled twice that the the lot could not be subdivided before outspending the property owners, the FLA, and the Town of Huntsville with their persistent ongoing legal battle. This was a pure business expense for a greedy developer. The OMB finally granted the developers application but decided that any subsequent property owner of the four new lots would be legally responsible for 1/4 of the original lot's 1/19th share of the road and common lands.
I and my "elitist" neighbors fought against the severance on the grounds that the original agreement was negotiated in good faith, the developer received significant benefit in being allowed to construct a substandard private road, and over concern of the environmental impact along the river's fragile ecosystem. And, by the way, the developer refused to accept any conditions to ameliorate the concerns of the property owners (i.e. he adamantly and vulgarly refused to invest any funds to improve the road). In fact the developer even refused to contribute to road maintenance and snowplowing while he was the legal owner of the property in question.
The OMB as an organization is really just a sham and most (if not all) developers know this. An earlier comment in this discussion very accurately alluded to the inclination of the OMB to act as an arm for the benefit of developers and development regardless of what agreements are in place.
Maybe you should get your facts straight before you make stupid comments like us being "elitist"!!
So existing waterfront owners are opposed to new waterfront owners. Let him subdivide and add more lots to allow more people access to our waterways. The Fox Lake Association sounds very elitist.
What is the current status of this subdivision situation?
We would love to talk with you to get any insights into this process that we can. Is there any way to get in touch with you?
It has been my experience that OMB decisions are usually prejudiced toward development; unless the Ministry of the Environment sit on the other side of the table. But their inspectors were reduced drastically in number under the “burnt earth” policies of the Harris regime. They simply do not have sufficient numbers for the field visits which are required, or for OMB appearances if warranted. Anything less than “provincially significant wetlands” will not fly without provincial backup.
A few years ago, I represented my lake association against the developer’s lawyer. We lost; but in conversation with the OMB’s representative after the fact, he averred that our case was stronger. Basically, the developer had spent significant monies, and that the land was useless to him without the subdivision. I am no great fan, however, of Pyrrhic victories. The Town is entirely justified in their stance. The OMB is patently not. I wish you luck.