ISSUE DATE:

December 5, 2013 PL121036

ww_Ow Ontario

Ontario Municipal Board Commission des affaires municipales de l'Ontario Crestwood Park Holdings Inc. has appealed to the Ontario Municipal Board under subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended, from Council's refusal or neglect to enact a proposed amendment to the Official Plan for the Township of Oro-Medonte to redesignate land located at 99 Mount Saint Louis Road East from 'rural' to 'commercial' to allow for a restaurant (Approval Authority File No.: 2011-0PA-OZ) OMB File No.: PL121036 Crestwood Park Holdings Inc. has appealed to the Ontario Municipal Board under subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended, from Council's refusal or neglect to enact a proposed amendment to Zoning By-law 97-95 of the Township of Oro-Medonte to rezone lands respecting 99 Mount Saint Louis Road East from 'agricultural/rural' and 'environmental protection zones' to include 'general commercial' to permit the operation of a restaurant OMB File No.: PL121037

APPEARANCES:

Parties Township of Oro-Medonte Crestwood Park Holdings Inc.

Counsel Christopher Williams Paul Peterson Sher Scott

DECIMN DEUVERED BY C. FIEFFE ON frND ORDER OF THE OARD BACKGROUND [1] For over 50 years, Webers restaurant ("Webers") has been a landmark on

Highway 11, north of Orillia. At peak times during the summer months, 600 to 700 customers per hour flock to the site for hamburgers and fries. The site is instantly recognizable to the traveling public by its railway cars and by its rustic buildings and picnic benches.

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In 2010, Crestwood Park Holdings Inc. ("Crestwood"), which owns and operates

Webers, acquired lands on Mount St. Louis Road East at the southeast corner of the partial interchange with Highway 400, opposite the Mount St. Louis resort ("subject lands"). The partial interchange allows both northbound and southbound traffic access to the resort as well as to the homes and rural estates on both Mount Saint Louis Road east and west. Crestwood proposes to replicate its Highway 11 Webers restaurant model on the subject lands. Crestwood also proposes to open another eastbound lane on the existing overpass and beyond to allow easier access to the proposed Webers restaurant from both the resort and from southbound Highway 400. A concept plan for the proposed development was entered into the evidence as Exhibit 10. [3] The subject lands comprise a total of approximately 36 ha, of which

approximately 11`)/0 or 3.3 ha are intended for the proposed restaurant, accessory buildings, access to parking, waste management facilities and landscaped open space. Kristine Loft, who was qualified by the Board to give opinion evidence on land use planning, testified that the proposed landscaped open space will include a large "artificially regulated" pond (that is, detention pond) and stream emptying into the Coldwater River. The Coldwater River runs across the southeast portion of the subject lands, some distance from the area proposed for development of the buildings and parking lot. [4] The remainder of the subject lands (that is, approximately 32.7 ha) is designated

Agriculture/Rural and Environmental Protection in the Township of Oro-Medonte Official Plan ("TOP"). It is proposed to leave these lands untouched, except for a parcel of approximately 0.8 ha, which would be used for the proposed sewage disposal (septic) beds. The proposed sewage disposal beds are shown on the Concept Plan (Exhibit 10) and are included in the calculation of the 3.3 ha area proposed for development. [5] The TOP sets down land use policy respecting all the lands within the

municipality. The Township of Oro-Medonte is within the County of Simcoe, which also has an official plan. The County of Simcoe Official Plan ("COP") came into effect in 1999, a revised official plan was adopted by County Council in 2009. However, the latter was appealed by a number of parties and is not yet in force. Excerpts from the new, but not in-force 2009 County of Simcoe Official Plan were entered into the evidence as

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Exhibit 17. The still in-force 1999 COP was entered into the evidence as Exhibit 2, Tab 4. [6] The in force COP policy 3.6.7 for lands designated Rural provides:
In rural areas, uses permitted are those listed in 3.6.6 plus highway commercial, institutional, residential lots created by consent, country recreational facilities, country residential subdivisions to a maximum of 40 lots, and rural business parks.

[7]

Highway commercial is defined in the in force COP as:

Uses or establishments are those which provide a service to the travelling public and include uses such as automotive servicing, accommodation, tourist, craft, and special feature establishments and restaurants.

[8]

David Butler, an experienced professional planner who was retained by

Crestwood, pointed out that pursuant to in force COP policy 3.6.7, a restaurant is a permitted Highway Commercial use on lands designated Rural. This point was not contested. Mr. Butler was qualified by the Board to provide opinion evidence on land use planning. [9] The Board was advised by Andria Leigh that the currently in-force TOP was

approved in 1997. She said that preparation of a new TOP is currently underway. Ms. Leigh is the Director, Planning Services for the Township. She was qualified by the Board to provide opinion evidence on land use planning matters. [10] A petition with 540 signatures opposing the proposal was entered into the

evidence as Exhibit 29A. The nine-day Ontario Municipal Board ("Board") hearing held in the Oro-Medonte offices was well-attended by area residents.

MATTERS BEFORE THE BOARD [11] Crestwood has appealed under subsections 22(7) and 34(11) of the Planning Act

for the neglect or failure of the Council of the Township of Oro-Medonte ("Township") to make a decision respecting Crestwood's applications for amendments to both the TOP and Zoning By-law No. 97-95, as amended ("By-law") to permit development of a Webers restaurant on the subject lands at the southeast corner of Highway 400 and

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Mount St. Louis Road East. The subject lands are municipally known as 99 Mount St. Louis Road East. [12] The proposed restaurant and accessory buildings with site modifications also

requires Site Plan Approval from the Township. [13] The proposed TOP and By-law amendments would also permit development of a

gas bar and indoor sit-down restaurant facilities in the future. Any further development of the subject lands, such as a gas bar or indoor sit-down restaurant facilities, also requires Site Plan approval from the Township. [14] The Township opposed the Crestwood appeal. Neither the County of Simcoe

("County") nor any of the commenting Provincial ministries, the Ontario Ministry of Transportation ("MTO") and the Ministry of Natural Resources ("MNR"), or the Nottawasaga Valley Conservation Authority ("NVCA") appeared at the hearing.

LOCATBON [15] The subject lands are located in the southeast quadrant of Highway 400 and the

Mount St. Louis Road interchange, approximately 20 km north of the point where Highway 400 and Highway 11 split just north of Barrie. Highway 11 continues north through North Bay and Highway 400 northwest through Sudbury. [16] The Mount St. Louis resort is located on Mount St. Louis Road West directly

opposite the subject lands on the west side of Highway 400. The 49-year old resort is best known for its winter skiing but it also hosts major events throughout the year. Sarah Huter, director of marketing for the resort reported that one event the "Tough Mudder" annually attracts several thousand visitors. [17] A bridge over Highway 400 and a partial interchange allows direct access to both

the Mount St. Louis resort and the residential homes along Mount St. Louis Road West from both the southbound and northbound lanes of Highway 400 as well as from Mount St. Louis Road East. [18] There are seven private residences located on the south side of Mount St. Louis

Road West, directly opposite one of the parking lots for the ski hill. Highway 400 is

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between these private homes and the subject lands. The distance between the closest of these residences and the subject lands is greater than 300 m. The nearest developed residential property on Mount St. Louis Road East is located approximately 285 m east of the subject lands and is shielded from view of the subject lands by a thick stand of mature trees. [19] The subject lands are located approximately 32 km north of the closest 0Nroute

service centre on Highway 400. This service centre is located about 500 m south of Essa Road in Barrie on the east side of Highway 400 and provides direct off-and-on access from the northbound lanes. The next centre providing comparable service gasoline and diesel fuel, truck, bus and car parking, washrooms and food is located just off Highway 400 near Waubausheen. Waubausheen is approximately 32 km from the subject lands and 64 km north of the Essa Road 0Nroute centre. [20] An aerial photo of the Township, which was entered into the evidence as Exhibit

5, shows that except for the ski area, all the lands in the area are either designated Agricultural in the TOP or are heavily forested. The forests occupy lands designated Environmental Protection and/or Greenlands in both the TOP and the COP.

EXPERT WITNESSES [21] For the Township: [22] Andria Leigh, RPP, is Director, Development Services for the Township

For the Applicant: Kristine Loft, RPP, is a planning consultant David Butler, RPP, is a planning consultant Michael Cullip, PEng, is a transportation expert Donald Fraser is a Senior Ecologist with Beacon Environmental Ltd. Tom Rennie is the owner of Crestwood and operator of Webers.

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[23] The following participants submitted witness statements to the Board. Their statements were entered into the evidence as Exhibit 4, Tabs 45-50 and Exhibits 29, 29A. 1. Ian Bender 2. Danielle Berube 3. Sarah Huter 4. Gary Kumpula

5. Cynthia Colby 6. Dwight Holm [24] Robert King, Peter Blackman, Ward and Grace Sullivan were also recognized as participants but did not submit witness statements. [25] The participants contended that the subject lands do not constitute an acceptable location for a second Webers restaurant given the unacceptable adverse impact, which would inevitably result from the significant numbers of vehicles that are expected to use the site and the fact that the subject lands are an integral part of an important natural heritage feature. They maintained that the subject lands constitute habitat for a number of threatened species and development of such lands is prohibited under the Endangered Species Act, the Lake Simcoe Protection Act and by the policies of the NVCA, which is the most directly concerned conservation agency.

APPLICANT'S POSMON [26] Mr. Butler advised that Webers has operated successfully for over 50 years at its Highway 11 location north of Orillia, and that its business model has been tested and found to require a large piece of land with north/south highway visibility and direct access from the northbound lane of the highway. He contended that the proposal is consistent with the 2005 Provincial Policy Statement ("PPS") and conforms to the Growth Plan for the Greater Golden Horseshoe ("Growth Plan") as well as to the policies for lands designated Rural in both the COP and TOP. He maintained that a new Webers restaurant on the subject lands would not only provide approximately 45 much-

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needed full and part time jobs to area residents but would also provide a rest stop for the traveling public as well as a refuge for travelers during extreme weather events.

TOWNSHIP'S POSITION [27] The Township contended that the proposed Webers restaurant should be located

in a settlement area (the community of Craighurst approximately one km east of Highway 400 was identified) or on designated Commercial land in the Mount St. Louis Special Policy Area ("S.P.A."). It also contended that the proposal contravenes both TOP policies for lands designated "Rural" and the Provincial growth strategy.

CORE ISSUE [28] The Board determined the core issue to be the location of the proposed Webers

restaurant and whether the TOP can and should be amended by the Board to approve the proposed Webers restaurant.

POLICY CONTEXT Provincial Policy

[29] Ontario operates within a policy-driven land use system which provides a

measure of predictability both for owners of land and for regulatory authorities. It gives not only the owner of a parcel of land but also the owners of surrounding properties the opportunity to determine the use to which a particular parcel of land may be put, what type and size of building may be developed on that parcel of land and to what use that building, once constructed, may be put. [30] The land use planning system in Ontario also operates within a legislative

hierarchy. Driving this system is the Planning Act. The Planning Act provides for the land use policies such as the Growth Plan, the PPS the official plans for the upper and lower tier municipalities and the zoning by-law for the lower tier municipality. In the present instance, the County of Simcoe is the upper tier municipality and the Township of Oro-Medonte the lower tier.

-8[31] The Growth Plan, which was enacted in 2006 and the PPS, which was

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promulgated in 2005, set down Provincial policy respecting the use to which all public and private lands may be put. All land use decisions of provincial agencies, municipal councils and the Ontario Municipal Board must be consistent with Provincial policy as provided in the PPS and conform to Provincial policy as provided in the Growth Plan. [32] Provincial policy as provided in the Growth Plan policy 5.4.1.5 "encourages"

planning authorities and decision makers to go beyond the policies and targets in the Growth Plan as these represent minimum standards. In the event of an apparent conflict between the Provincial and municipal policies, Growth Plan policy 5.4.1.5 encourages planning authorities and decision makers (such as this Board) to apply the more restrictive policy. Sometimes the more restrictive policy may be the local policy found in the official plan. [33] areas. [34] Growth Plan policy 5.4.1.5 provides that:
The policies and targets of this Plan represent minimum standards. Planning authorities and decision-makers are encouraged to go beyond minimum standards established in specific policies and targets, unless doing so would conflict with any policy of this Plan, the applicable PPS, or any other provincial plan.

PPS policy 4.5 states that an official plan shall provide "clear, reasonable and

attainable policies to protect provincial interests and direct development to suitable

LOCAL POUCY [35] Court decisions make it clear that an official plan is not legislation but a policy

document. Where an interpretation of an official plan is necessary, a 2010 Ontario Court of Appeal decision ruled that (interpretation) is a question of law that the Board must determine, rather than a question of fact that may be addressed by competent witnesses (Niagara River Coalition v. Niagara-on-the-lake (Town) 2010 ONCA 173, 68 M.L.P.R. (4th) 1, 49 C.E.L.R. (3rd) 159, 261, O.A.C. 76, 186 A.C.VV.S. (31830). ("Jet

Boat decision').

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Much of Mr. Butler's testimony regarding the interpretation of the TOP was based

on his assumption that the interpretation was a question of fact regarding which his testimony was material. The Board rejects Mr. Butler's assumption since it (the Board) is bound by the Court of Appeal's decision in the Jet Boat decision. Nor does the Board accept the suggestion implicit in Mr. Williams' argument that the Jet Boat decision stands for the proposition that official plans are to be treated by the Board as the equivalent of statutes. Mr. Williams was legal counsel for the Township. [37] It is also important to note that official plan policies are not intended to be applied

or interpreted independently of each other. Rather, each policy is intended to be weighed with the other relevant policies and performance standards and work together to determine whether a development application has successfully met the overall intent of these policies and performance standards.

ZONING BY-LAW [38] The zoning by-law for a municipality implements its official plan. In the present

matter, the By-law (for the Township) was enacted after the TOP was approved and had come into force and is intended to implement the TOP. The By-law is the key instrument for determining how a particular parcel of land or a building can be developed and used by a non-governmental person as a matter of legal right at any point in time (emphasis added). The permitted uses for the subject lands, which are zoned Agricultural/Rural ("A/RU") were entered into evidence as Exhibit 2, Tab 6, p.175. [39] In this case, an approximately 2.5 ha portion of the subject lands is zoned A/RU,

which permits as a matter of legal right only land uses that serve the needs of the local agricultural-based population plus a few other uses such as Residential Care Homes and Portable Asphalt Plants that may be allowed in any zone. [40] In the appeal before the Board in these proceedings, Crestwood applied for an

amendment to both the By-law and the TOP to permit an approximately 6,000 sq. ft. Webers take-out restaurant, which would be similar in design to the existing Webers on Highway 11 but without the indoor seating provided in the (former) railway dining cars on the site. With parking, storage in the (former) railroad boxcars, washrooms, picnicstyle outdoor seating, and landscaping, the proposal requires approximately 2.5 ha of

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land. Including the land set aside for wastewater treatment, the total area required is approximately 3.3 ha.

EVIDENCE AN FINDINGS [41] During the nine-day hearing, the Board heard extensive evidence on a number of

issues including natural heritage, traffic, marketing and land use planning. [42] The Board heard opinion evidence from Donald Fraser, who is a qualified

ecologist, on the ecology of the subject lands and from Michael Cullip, a professional engineer and traffic management expert, on traffic and transportation matters. The Board also received written reports on matters such as site servicing, waste and wastewater treatment, potable water supply, grading and drainage, landscape concept plan and archeological research without objection from Mr. Williams. An environmental impact study ("EIS") assessing the overall environmental impact of the proposed development was also submitted by the applicant again without objection from Mr. Williams. The EIS was prepared (by Donald Fraser) at Beacon Environmental Ltd. A list of the reports submitted is found at Exhibit 2, Tab 9, p. 194. After consideration of all the evidence, the Board finds that none of these matters would constitute an unresolvable impediment to the proposed development. [43] Tom Rennie, who owns Crestwood and operates the Webers restaurant on

Highway 11, north of Orillia, also testified. Mr. Rennie was very generous in sharing with the Board the Webers business model, his marketing insights and the lessons he has learned from his many years in the food business. [44] However, it was clear from the beginning of the hearing that the matter of exactly

what uses are permitted on lands designated as Rural in the TOP would be a threshold issue. In other words, regardless of whether the proposal constitutes good business sense and conforms to all of the other policies within the relevant Provincial and local plans, if it does not conform to the TOP and to Provincial policy as expressed in the Growth Plan, it cannot be approved. [45] Mr. Butler took the Board to Growth Plan policy 2.2.2.1(i), which provides:

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Population and employment growth will be accommodated by [...] directing development to settlement areas, except where necessary for development related to the management or use of resources, resource-based recreational activities, and rural land uses that cannot be located in

settlement areas (emphasis added).

[46]

Mr. Butler contended that the proposed Webers restaurant cannot be located in a

settlement area. He testified that the Webers model does not fit in either the Craighurst settlement area or in the Mount St. Louis S.P.A. He explained that the Webers business model requires a generous amount of space in order to work successfully. It requires a site with a minimum area of approximately 2.5 ha exclusive of lands required for any onsite wastewater treatment. It was not disputed that a restaurant premises requiring that much space would not be appropriate for a settlement area, which is by definition intended to be compact and to make efficient use of land. [47] The term "settlement areas" is defined in the Growth Plan as:
Urban and rural settlement areas within municipalities (such as cities, towns, villages, and hamlets) where: Development is concentrated and which have a mix of land uses; and Lands have been designated in an official plan for development over the long term planning horizon provided for in the Provincial Policy Statement, 2005. Where there are no lands that have been designated over the long term, the settlement area may be no larger than the area where the development is concentrated.

[48]

The Craighurst Secondary Plan ("CSP"), which was entered into the evidence as

Exhibit 33, provides that the core of the Craighurst settlement area be developed with two to three-storey buildings incorporating residential uses above retail shops. The CSP provides that the remaining lands (which are designated "Living Area" in the CSP) are intended to be developed with single-family homes in a variety of housing forms. [49] Mr. Butler pointed out that the largest lot outside the central area of Craighurst is

an estimated 0.4 ha in area. Referencing Schedule A3 of the CSP, he noted that although there are two of these 0.4 ha lots side-by-side, they are flanked by lands designated for residential uses on two sides. Besides this impediment, accessing the settlement area from either the Horseshoe Valley Road or County Road 93 interchanges would require driving over a ON level crossing. This, he suggested, would

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offend the basic principle of the Webers business model, which requires easy and unimpeded access to and from the main highway. [50] Mr. Butler's conclusion was that neither Craighurst nor the Mount St. Louis SPA,

which had also been suggested as a possible location, represents a suitable or appropriate location for a Webers restaurant. [51] Ms. Leigh also took the Board to policy 2.2.2.1 (i) of the Growth Plan. It bears

repeating that this policy provides that:

Population and employment growth will be accommodated by [...] directing development to settlement areas, except where necessary for development related to the management or use of resources, resource-based recreational activities, and rural land uses that cannot be located in settlement areas.

[52]

Ms. Leigh testified that in her opinion Provincial policy requires that new growth

be directed to settlement areas. There are exceptions, she testified, but these exceptions are for "resource-based" developments such as ski areas or motor speedways and not for restaurants. She disagreed with Mr. Butler's characterization of the proposed Webers as a "rest stop" or "service centre" and contended that Webers is first and foremost simply a restaurant. Although the Webers model as proposed may not be capable of fitting into a settlement area such as Craighurst and would likely not be desirable or appropriate therein, Provincial policy directs restaurants to settlement areas. The appropriate course of action, she contended, is for Webers to modify its current business model to allow it to fit in a settlement area rather than to change the rules for the settlement area to accommodate the Webers model. The Board finds Ms. Leigh's opinion to be persuasive and agrees with it. [53] Ms. Leigh further advised that the subject lands are designated Rural in the TOP

and the proposed development would be classified as a "Highway Commercial" use. A highway commercial use would require that "Highway Commercial" be a permitted use on lands designated Rural in the TOP and would require a "General Commercial" zoning category in the By-law. This was not disputed.

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[54] Mr. Butler contended that policy C2.3.3 of the TOP provides that Highway Commercial uses that serve the needs of the rural area may be permitted on lands designated Rural in instances where some eight conditions are satisfied: New institutional and highway commercial uses that serve the needs of the rural area [...] may be permitted subject to an amendment to the implementing Zoning By-law [....]
Before considering an amendment to the Zoning By-law to permit any of these uses in the Rural designation, Council shall be satisfied that the proposed use: a) Is compatible with the rural character of the area; b) Can be designed and sited to blend in with the rural surroundings; c) Is located where it would have little or no. impact on agricultural operations; d) Can be serviced with an appropriate water supply and means of sewage disposal; e) Is to be accessed by municipal roads that can accommodate the increased traffic generated by the proposed use; f) Will not cause a traffic hazard as a result of its location on a curve or a hill; and, g) Can be appropriately buffered from adjacent residential uses. In addition, prior to considering an application to develop a new industrial, institutional or commercial use, Council shall be satisfied that the proposed use cannot be reasonably sited in a nearby settlement area or on lands in the vicinity that are designated institutional or commercial (emphasis added).

[55]

Mr. Butler spoke at some length to each of these conditions and testified that the

Crestwood proposal satisfies all of them. [56] Ms. Leigh, on the other hand, advised that Township policy, as expressed in the

TOP, requires all commercial development to locate in designated settlement areas. She pointed to Craighurst as a settlement area that could, in her opinion, reasonably accommodate another restaurant. [57] She explained that Craighurst is the main settlement area within the Township

and that new residential and employment development within the Township is being directed there. The main intersection in Craighurst is on Horseshoe Valley Road. It is a one kilometer ("km") drive from the interchange with Highway 400, and a 3 km drive

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from the County Road 93 interchange with Highway 400. The Horseshoe Valley Resort and Heights of Horseshoe Ski Club are located a few km east of the main intersection in Craighurst. [58] Ms. Leigh advised that new employment uses for the Township are also being

directed to the Highway 11 commercial corridor, the Lake Simcoe Regional Airport industrial area and to Oro Station. [59] She testified that section 4.1 of OPA 27, which amends the TOP to incorporate a

secondary plan for the Craighurst community, identifies Craighurst as being "ideally suited for growth". She advised that even if it turns out that there is not currently an adequate site designated in the CSP for commercial uses within the settlement area boundaries, the CSP provides that these boundaries can be extended without the necessity of first amending the plan. [60] The Board noted that although Official Plan Amendment No. 27 ("OPA 27") was

adopted by the Township (May 27, 2009), it is not in force because the County of Simcoe, which is the approval authority, has not approved it. However, as the Township Council has adopted it, it is the Board's view that OPA 27 represents Council's current thinking on the question of where new commercial growth in the west part of the Township should be located. [61] The major impediment to the proposed Webers restaurant on the subject lands

is, Ms. Leigh testified, that it does not conform to the TOP. She contended that the first paragraph of TOP policy C2.3.3 (cited above by Mr. Butler) requires that new highway commercial uses serve the needs of the rural area:
New institutional and highway commercial uses that serve the needs of the rural area (emphasis added) [...] may be permitted subject to an amendment to the implementing Zoning By-law [....]

[62]

In the Board's opinion, the intent of the above clause "uses that serve the needs

of the rural area" refers to commercial uses such as a bed and breakfast, a corner store and perhaps a welding shop or similar. It does not contemplate a space-extensive restaurant (such as Crestwood has proposed) that serves the travelling public. The Board allowed evidence of an informal poll taken (by Webers management) at the Highway 11 Webers location one day in 2012. This poll indicated that fewer than 11% of

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the Webers customers identified themselves as "local". Over 89% indicated they were from the GTA, southwest Ontario or the United States of America. This demonstrated that the purpose of the Webers Highway 11 restaurant is not to "serve the needs of the rural area". In the Board's view, a similar restaurant on the subject lands would serve the needs of the rural area even less because it is even more isolated from the rural population centres. [63] Mr. Butler and Ms. Loft (the two planning witnesses retained by Crestwood) both

contended that it was not the intent of the TOP that uses on lands designated in the official plan as Rural be directed to serve only or even primarily the needs of the local rural area. The Board preferred the evidence of Ms. Leigh on this key policy of the TOP. It was the Board's view that Ms. Leigh's testimony reflects a simple reading of the words of the policy. It does not, as does the interpretation of the policy presented by Mr. Butler and Ms. Loft require an inference to be drawn as to the extended meaning or possible intent of the policy. The Board therefore finds that the TOP requires that new commercial development on lands designated Rural should be primarily for the purpose of serving the needs of the local rural area.

CONCLUSION
[64] In the Board's view, the meaning of Provincial policy is crystal-clear. The

governing principle of the Growth Plan (and the PPS) is that development in the form of strip 1950's-style Highway Commercial and strip residential resulting from rural severances represents sprawl. All sprawl (urban or rural) has demonstrated itself to be unsustainable. New proposals which promote sprawl are not therefore permitted. [65] The Webers Highway 11 model has proven itself over the past 50 years to be

extraordinarily successful. The Highway 11 location with its rustic design and railroader theme is well-known and vastly entertaining and convenient for the traveling public. It certainly qualifies as a tourist attraction and may even be, as Mr. Butler suggested in his evidence, "iconic". However, the Board finds on the evidence that in the end the proposal is for a restaurant, which is a use that both Provincial and local policy directs to settlement areas.

-16[66] On the evidence, the Board finds that the subject lands are not within a

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settlement area. And also on the evidence, the Board finds that the proposed development is not consistent with Provincial policy as expressed in the Growth Plan and the proposed amendments do not conform to the provisions of the TOP and the Bylaw. Furthermore, on the evidence, the Board finds that the TOP and the By-law cannot be amended so long as the Growth Plan remains in effect. [67] The Board also finds that if and until the Growth Plan policy directing

development to settlement areas is changed, the TOP cannot be changed to allow it. If a higher court should find the Board's interpretation of this policy is wrong, this Panel still concluded on the evidence that the proposed development would have an unacceptable adverse impact on both the local community and the natural environment and should not be in any event be approved. [68] In sum, the Board finds on the evidence that the requested amendments to the

TOP and the By-law to allow the proposed development do not represent good planning and should not be approved.

ORDER [69] The Board orders the appeals are not allowed.

"C. Hefferon"

C. HEFFERON MEMBER