OMB Decision on Hastings Drive

April 16, 2018

The OMB decision for Hastings Drive going forward has sterilized all new uses and new buildings and/or structures, except for the launching of a boat for day use and excluding a physical boat launch.  The rest of Long Point, Turkey Point and Port Dover should be aware and concerned of this ruling, since it is very troubling that ones property can be downzoned, devalued and completely sterilized without any compensation, if the powers at be feel justified by the potential Hazards present. 

 

There has been a misconception of this OMB Ruling in the news articles following, in that the Ruling only applies to vacant lots on Hastings Drive.   This OMB ruling directly applies to all lots, both cottage and vacant, on the unpaved section of Hastings Drive, and restricts any new site alteration, new uses and/or new development. 

 

To give some examples on how strict this new Bylaw is; if you own a cottage or vacant lot and you previously did not have a vegetable garden, yet you decide today you would like to create one, as per the new OMB Ruling you are unable to do so, since it is considered 'new' site alteration on your lot.  If a cottage or vacant lot, does not currently have a dock or boat ramp, yet decides today they would like to put one in to better have access to the great fishing in Lake Erie, the OMB Bylaw now in effect will not allow for this, because this would be considered new development.   Lastly, if a cottage or vacant lot would like to increase the size of their current deck, or build a new gazebo onto it, they could not with the new bylaw, because this would be considered new development.   

 

I'm not a real estate expert yet, this OMB Bylaw I could guess has reduced the property values of both cottage and vacant lots by at least 20% overall.   No current or future owners of these lots would be at all satisfied that they literally can not add anything new to their lots going forward.  No new or expansion of typical accessories to cottage lots are allowed going forward.   Not to mention, docks, boat ramps, driveways, change houses, sanitary and storage buildings were legal uses previously permitted on all lots (from 1985 onward), which now have been stripped going forward with the new OMB Bylaw.  Being a lake front property owner and now not being allowed to put in new structures (docks and boat ramps) to reasonably access Lake Erie, this alone will devalue any lot which did not previously have these structures established.   

 

Nobody is ever happy with their property 'as is' and always wants to make new improvements to it at some point, this is now forbidden to all.  In my eyes this will cause many lots and current structures to slowly rot away to an unsafe state, and as a result eventually be taken by a severe storm and/or abandoned.  More animosity and tension I do believe will be on Hastings Drive as a result of this Ruling, since it is in effect for all lots now and it most likely will not be consistently and fairly enforced.  

 

Unfortunately this entire OMB Bylaw process was initiated by a handful of newer/non-original cottage owners, which were unhappy with "vacant" lot owners reasonably using their long-standing lots.  A reasonable compromise, which was agreed upon by the majority of Council, was not willing to be accepted by the appellants and therefore the OMB process continued and eventually concluded.  Their original goal to rid all uses (past, present & future) on all vacant lots was never achieved by this Ruling, only new uses/structures going forward are effected, so long-standing owners with long-standing legally acquired uses are unaffected by this Ruling as Point 15 in it states regarding Legal Non-Conforming Uses.  Whether these handful of cottage owners realize it or not, all lots were sterilized and devalued, including their own as a result of this OMB Ruling.

 

To counter the concern about confiscation without compensation, lawful existing uses came to be protected under the concept of "acquired rights" both under the Civil Code in Quebec, and by judicial interpretation in the common law provinces: Toronto (City) v. Wheeler (1912), 4 D.L.R. 352 (Ont. H.C.), per Middleton J., at p. 353: [I]t is, I think, a sound principle that the Legislature could not have contemplated an interference with vested rights, unless the language used clearly required some other construction to be given to the enactment. (…)  It is against that background that the modern regime of land use controls, with their inherent tension between the owner's interest in putting its own property to what it regards as the optimal use and the municipality's interest in having all of the land within its boundaries organized in a plan which it thinks will maximize the benefits and amenities for all inhabitants, should be interpreted.   Click here, for more details on this topic of Legal Non-Conforming Uses Under the Planning Act (2006).

 

Points of Interest in the OMB Hastings Decision PL141006 - (download full ruling here):

 

[2] On one hand there is reliance on old approvals previously given, and on the other hand, the expectation of the implementation of newer public policy designed to advance land use planning and mitigate against personal and property loss.

 

[15] Legal Non-Conforming Uses - Nothing in this Decision should be read as directly or indirectly relating to any specific site or specific use that may be legal non-conforming. Legal non-conforming uses are dealt with on a site by site basis. This Decision does not deal with individual sites and does not make any decision on their status.

 

[170] In the alternative, were the Tribunal to be wrong in this finding, the Tribuanl finds that the outcome of this case fits clearly within the wording of the Dickenson et al decision: Where the health and safety of existing or future inhabitants are involved, where there are patent and imminent hazards to the well-being of the community, the municipality should have the unfettered discretion to sterilize the use of lands, without the additional burden of compensation. 

 

 

 

 

 

 

 

 

 

 

 

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Stephen Corke

I am the 3rd generation owner of Corke Point and

Long Point Ratepayers' Association Member

(647) 213-1026    

stephen@corkepoint.com

 

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