History of Lot Development and Seasonal Use Restrictions
1. The Cedar Springs Community Club (the “Club”) is an Ontario non-share capital corporation, incorporated by Letters Patent dated January 15, 1932. Among its objects are the following:
“(i) To enter into any arrangements with any authorities, municipal, local or otherwise, that may seem conducive to the Corporation’s objects or any of them and to obtain from any such authority any rights, privileges and concessions which the Corporation may think it desirable to obtain and to carry out, exercise and comply with any such arrangements, rights, privileges and concessions....
(w) To do all such other things as are incidental or conducive to the attainment of the above objects;”
2. The Club was incorporated as part of a General Building Scheme, in order to take title to certain common lands in the Building Scheme and to manage generally the Building Scheme. The lands that are the subject of the Building Scheme are located on the Niagara Escarpment and consisted of approximately 322 acres in 1939, including 59 acres with cottage lots. Other common lands have been purchased over the years and, by 1977, the most recent date the records of the Club indicate a reliable estimate, common lands totaled approximately 357 acres.
3. The concept of the Building Scheme originated with one William Delos Flatt (“Flatt”), who was the original owner of the lands. Flatt was a wealthy industrialist, who was also an avid naturalist. He subdivided the lands by registering Plan 224 on October 21, 1926 and Plan 225 on May 6, 1927 and then began to sell the individual lots. On July 9, 1932, he entered into the Building Scheme Agreement with all of the then owners of the individual lots and with the Club. Lots 1 to 5 inclusive were not subject to the agreement and therefore never part of Cedar Springs. The agreement described the part of Reserve B east of Willbrook Creek and Lots 6 to 96 inclusive as the developed member properties. In the agreement, the Club agreed to keep undeveloped Lots 97 to 110 inclusive and certain other lands in their natural state and condition.
4. The Building Scheme requires a person to be accepted as a member of the Club as a condition precedent to the purchase of lands within the development. Paragraph 9 of The Building Scheme requires members “... at all times to faithfully observe and comply with the rules, resolutions and by-laws regularly passed and adopted from time to time by the Corporation.”
5. The Club was originally made up of members who would be considered relatively well-off. All of the original members used their properties strictly as summer cottages. The Club provided ready access to a golf course, tennis courts and other amenities that were available to all of the members during the summer months. Dances, sporting events and social activities were organized throughout July and August. These activities continue today.
6. The Club maintained the golf course, a clubhouse and other facilities but also was, and continues to be officially recognized as, a self-sustaining community. It maintains its own roads, bridges, signs, lighting and club facility drinking water systems. The City of Burlington does not provide these services to the community.
7. In the early years, the Club operated a Christmas tree farm on its lands. The Club hired persons to maintain the property, including during the winter months. It was common for the employee manager to be a cabin owner and this resulted in cabins occupied by these managers to become winterized.
8. On the 1926 Plan of Subdivision it already showed the existence of a dwelling inside the gates of the Community on Club lands at 2048 Grand Blvd. This Gatehouse has been occupied by the Club’s superintendent who is a fulltime employee and a permanent resident.
9. On January 1, 1958, the Township of Nelson was amalgamated into the Town of Burlington. Burlington then enacted Zoning By-law 1681 on December 22, 1958, which was confirmed by the Ontario Municipal Board (“OMB”) on April 17, 1959. Under this By-law, Cedar Springs was considered a non-conforming use to what was probably zoned agricultural or greenbelt.
10. On November 17, 1959, in response to applications by a few members of the Club for the conversion of summer cottages to permanent homes, the Town of Burlington’s Building Commissioner wrote to Mr. G. E. Brenholtz, then Secretary and Manager of the Club. He stated that these applications to convert to permanent homes “itself creates a problem as your community is a non-conforming use with respect to zoning By-law #1681.” The letter went on to set out the Town’s required conditions for these approvals and requested the co-operation of the Club’s Board of Directors. The conditions were:
“a) approval from the Board of Directors respecting conversion.
b) approval from the County Health Unit that the water and septic system met all requirements as to a permanent home.
c) the dwelling had to be owner occupied.
d) the dwelling had to be converted in compliance with the Building Code as to materials, heating, etc.”
11. The Club agreed to the Town of Burlington’s request to require prior approval by the Board for conversion of seasonal cottages to permanent residences. On July 29, 1960, a meeting of members of the Club approved a motion adopting a procedure to handle applications for winter occupancy:
1. Approval be obtained from the Board of Directors of Cedar Springs.
2. The County Health Unit inspects to give their approval that the water & septic systems meet all the requirements as to a permanent home.
3. That a dwelling be converted in compliance with the building code as to materials, heating etc.
4. That the dwelling be occupied during the winter by the owner or his immediate family.
The Board exercised that power over the years by approving some but not all requests for conversion. Therefore, from an early date the Board was carrying out its objects under paragraph (i) of its Letters Patent by “entering into agreements with the municipality.”
12. In order that members be aware of this condition, and in keeping with its agreement with the Town of Burlington, the Club’s enacted rules and regulations containing a Winter Occupancy section which stated:
“Winter occupancy is defined as the use of the cottage as a permanent residence between November 1st and May 1st of the following year. No further expansion of winter occupancy shall be made without permission of the Board of Directors.”
This section continued to appear for many years in Rules and Regulations until replaced by By-law 15, Article 9.
13. On January 10, 1961 the Town of Burlington passed Sub-division Control By-law 1945 that deemed Registered Plans 224 and 225 not be registered plans anymore. That meant that the unsold vacant lots within Cedar Springs ceased to be saleable lots. From that date, the Club would require a severance to be approved by planning authorities to create any new building lots for sale.
14. It was reported in the minutes of a meeting of members on July 17, 1961, that the Club had been in discussions with officials of the Town of Burlington Planning Board with respect to the process of preparing an Official Plan. Planning Board authorities indicated that Cedar Springs could be classified as either “housing development” or “resort area”. If the area were to be developed as a housing development, winter occupancy would be permitted under higher standards for roads, septic and other health regulations. If the area were to be developed as a resort area, this would cause some difficulty in further granting of building permits by Town authorities for winterizing summer cabins. The meeting of members passed a motion that the Board of Directors be authorized to indicate in writing to the Planning Board of the Town of Burlington that the Cedar Springs Community Club recommended and suggested that the Town of Burlington Planning Board zone Cedar Springs Community Club area as “resort area”.
15. Burlington Official Plan Amendment 49 designated Cedar Springs lands as “Greenways”. Lands designated Greenways permit only buildings for recreational purposes.
16. Following approval by the members at a meeting on July 17, 1961, the Board of Directors of the Club on October 20, 1961 offered for sale by tender a new seasonal lot to be created at the northwest intersection of Twelve Mile Creek and Grand Blvd. The Golf Club Cottage was to be moved from the golf course to this new lot and placed on concrete piers at the expense of the Club and subject to municipal regulations. The tender document stated that the sale was subject to the Club receiving the approval of the Burlington Planning Board for a land separation. That approval was obtained and Murray Douglas Kelley purchased the property from the Club on March 23, 1962.
17. On June 14, 1965, the Committee of Adjustment of the Town of Burlington approved the severance of Parcels 7 and 8 on Registered Plan No. 224 to permit the creation of a second building lot. The Committee did so with the knowledge that the Halton County Health Unit was prepared to approve its use for building purposes. Originally developed as a seasonal cottage, in 1973 the Board approved the sale of Lot 7 as a year-round residence.
18. A memo to the Board of the Club dated September 13, 1974 and a March 5, 1975 memo to members indicate that, by 1975, the Club had recognized 12 conversions to permanent residences. All other member-owned properties were to be sold on a “Summer and Occasional Weekend basis.” The 12 permanent residences were the member-owned dwellings and did not include the Club-owned Gatehouse or the rental apartment in the Clubhouse that were both occupied by permanent residents. The rental apartment was lost when the Clubhouse burned down on April 12, 1979.
19. By memorandum dated July 5, 1978, the Chairman of the Membership Committee circulated to all members a 10-year review of membership. Attached to the memorandum was a copy of the standard Undertaking that each new member was required to sign in order to be considered for membership and for approval to purchase a lot in the Building Scheme. All 14 new members who had applied to purchase “recreational properties” between 1974 and 1978 had signed that form of Undertaking in which the member agreed that the cottage was for seasonal recreational use only.
20. On April 14, 1975, the City of Burlington first passed a motion to amend its Official Plan with respect to, among other things, the Cedar Springs Community. The amendment (No. 81), went through a long approval process, including approval in part by the Minister of Municipal Affairs and Housing on August 24, 1978 and by the OMB on May 1st, 1980. The amendment read as follows:
“It is the intent of this Amendment not to permit any further conversions of seasonal residential dwellings to permanent residences in the Cedar Springs Community. It is recognized that the Cedar Springs Community is a private self-sustaining development and will not have more than twelve year round residences and eight-two recreational cottages.”
21. The members of the Club, at a general membership meeting held on September 1, 1979, unanimously approved a resolution giving unqualified support for this O.P. amendment.
22. The excerpt respecting the Cedar Springs Community contained in the Burlington Official Plan currently in effect reads as:
“(i) Notwithstanding the general policies of the Plan, and subject to all applicable municipal by laws, policies and site plan requirements and development criteria of the Niagara Escarpment Plan, the following are permitted:...
(iii) the operation of a private, self-sustaining development with a maximum of 12 year-round residences and 82 seasonal cottages at the Cedar Springs Community located on Cedar Springs Road. The conversion of seasonal residential dwellings to permanent residences within the Cedar Springs Community shall not be permitted;”
23. In the process of amending the Official Plan by the City of Burlington, starting in 1974, the Club negotiated a benefit to the Club. The Club had asked for the reinstatement of Plans of Subdivision 224 and 225. This was not granted. However, Amendment No. 81 recognizes the right of the Club to develop existing lots or create additional seasonal cottages on the Cedar Springs lands. At the time of the amendment, the Club had 83 developed member properties (of which 12 were year round and 71 were seasonal recreational only). Amendment No. 81 provides for 94 residences, of which 82 must be recreational cottages that may not be used on a year-round basis. The amendment, therefore, allowed for the future development or creation of 11 additional recreational cottages by the Club that the Club could sell and the new memberships would create more annual membership fees.
24. On June 10, 1975, the City of Burlington ceased to have zoning control over the Cedar Springs Community lands because they were brought within a development control area established by regulation under the Niagara Escarpment Planning and Development Act. The Niagara Escarpment Commission assumed development control over the lands and the there is no other City zoning restriction in effect, or possible. In the period that followed, the City requested that the Niagara Escarpment Commission grant development permits with a condition that required the applicant to sign an undertaking to the City in which he would acknowledge the existence of the Club’s restriction on year round occupancy.
25. The Club advised the City of Burlington, by letter dated September 6, 1979 that the Board and the Membership, unanimously, approved the amendment to the Official Plan. In the same letter, the 12 member-owned lots that were designated as permanent residences were identified.
26. There were two objections raised to the specific reference to Cedar Springs contained in Amendment No. 81 to the Official Plan, which required a hearing by the Ontario Municipal Board (“OMB”). An objection was raised by Juen Fergus, a member of the Club, but subsequently withdrawn. Another member, Mrs. Helen Bryans, who was the owner at that time of Lots 8 and 11, Plan 224 also objected to the Cedar Springs clause in Amendment No. 81. She specifically wanted her property to be designated a permanent residence. The OMB held a hearing on May 1, 1980. The OMB confirmed the Cedar Springs clause contained in Amendment No. 81, thereby denying Mrs. Bryans’ request to have her property designated for year round use. In its decision, the OMB stated:
“we have to draw the line somewhere and we want to draw it at the existing situation and say ‘no more conversions - we recognize conversions up to now in equity because they are done.”.
When the Ontario Municipal Board held its hearing and gave its decision in May, 1980, health and the environment were key concerns:
“The justification for this concern, just by way of example, that on very small lots of less than 1 acre or in certain areas 0.7 acres and certain areas 0.2 acres, it is dangerous to have permanent development. Septic tanks might work for summer homes when they are getting used 2 or 3 months of the year. It is a horse of a different color if they are perhaps being operated for 12 months of the year. That is just one example of the problems of development in a rural area on undersized lots.
Secondly, the - and perhaps more importantly - if you are going to preserve your natural resource, you have designated as such, you have got to start being tough not just thinking with your heart, you have got to draw the line and you have got to man the barricade and you have got to stay there. You have got to preserve the natural environment and you cannot preserve it if you allow permanent residential development in these unique areas every time a nice lady or somebody comes down the line with a sympathetic story. This is important, the Board makes decisions on the evidence and any logical inference that can be drawn from that evidence and the qualified planner who is a well qualified one, was not shaken, not even challenged on his professional opinion on these matters which the Board and the Board accepts.”
27. In early 1978, Leonard Pegg retained a real estate agent with the intent to sell his property. Pegg was not a member of the Club and his property was not subject to the Building Scheme but Cedar Springs lands bound the property on all sides. On April 1, 1980, the Club purchased from the estate of Leonard Pegg two parcels of property comprising 7.5 acres contained within the Cedar Springs Community precinct. One parcel consisted of the old Dakota Mill site and the other parcel contained the Pegg homestead dwelling that had been Pegg’s permanent residence at 6226 Cedar Springs Road. Over the next 20 years or so, the Club rented the dwelling to various permanent residents who were not members of the Club.
28. Following the Official Plan amendment by the City of Burlington, the Club again became concerned about compliance by some members with the seasonal occupancy restriction. At a meeting of the Board on July 9, 1981, the representatives of the Board reported that the City of Burlington would like the Club to pass a by law “stating which properties (lot numbers) are designated as year-round residences”. The City was in effect asking the Club to pass the zoning by-law that the City itself did not have the authority to pass since Cedar Springs was under N.E.C. development control.
29. At the request of the City of Burlington, By-law 13 “By-law re the designation of permanent residences” was passed by the Board on September 3, 1981 and was approved by the members on May 22, 1982. By-law 13 was enacted to control the abuse of seasonal residency. It designates all member-owned lots (except for the 12 specified lots) as seasonal residences. The By-law operated together with the Rules & Regulations that continued to read:
“Winter occupancy is defined as the use of the cottage as a permanent residence between November 1st and May 1st of the following year. No further expansion of winter occupancy shall be made without permission of the Board of Directors.” (Rule #16 from Rules and Regulations as of July, 1982)
The by-law dealt only with member-owned lots and not dwellings owned by the Club on Club lands such as the Gatehouse and the Pegg homestead, both of which were occupied by permanent residents as tenants of the Club. See Appendix A.
30. On June 28, 1988, the Board passed By-Law 15. The membership, at a general membership meeting on August 25, 1988, passed the by-law, as amended. By-Law 15 was included in the Consolidated By-Laws that were approved by the Board of Directors on May 8, 1990 and confirmed by the membership on August 23, 1990. See Appendix B. Article 9 of By-Law 15 sets out Burlington’s Official Plan Amendment regarding prohibiting further conversion of seasonal dwellings to permanent residences and further states:
“If any Shareholder permits their Lot and Recreational Cottage to be used as the only residence during the period between November 1st and May 1st in the opinion of the Board, a resolution of the Shareholders may be passed at a special meeting called to deal with the matter and if passed the Shareholder shall forthwith not be entitled to enjoy the Privileges of Membership and the Shareholder shall be declared to be Not in Good Standing.”
By-Law 15 was intended to enforce Burlington’s Official Plan by removing membership privileges in the Club (but not rights, such as voting rights) from those who violated the policy regarding year-round use of the summer cottages.
The By-law 15 requirement to actually reside in another residence was clarified in 1998 in a memo to members by reference to the legal meaning of those terms. They must “live, dwell, abide, sojourn, stay, remain, lodge”... “at some place of abode with no present intention of definite or early removal and with the purpose to remain for undetermined period, not infrequently”. So checking into a hotel several nights between November 1st and May 1st does not constitute residing in another residence. Neither does any other personal presence at some place of abode for some determined period or for infrequent periods (e.g. staying at a property rented for a fixed period). It was also clarified that the Board was not seeking proof of a permanent residence somewhere else, but that the member must not make his Cedar Springs cabin his permanent residence and that the member must have another residence and he must reside there during the winter.
31. On April 19, 1989, the City Planning Department wrote to the NEC regarding a proposed addition to a seasonal cottage, raising the following two concerns:
“(a) the proposed addition should not lead to year round occupancy. To avoid this. staff would request that this requirement be noted in any approval. and further that the owner be required to sign an undertaking with the City acknowledging that the applicant understands this situation. The letter to be signed is available in the City's Legal Department.
(b) the increase in the size of the cottage will undoubtedly lead to more frequent use of the cottage, either by the current owner or some future owner. More frequent use of the expanded cottage is likely to place more of a demand on the septic system. Such a demand may be beyond the ability of the existing septic system to handle, particularly an older septic system and could lead to pollution of the ground water and/or Bronte Creek. For this reason, staff believe the septic system should be tested by the Health Unit before any development permits are issued for the proposed addition.
Conclusion
Staff have no objection to the proposed addition. however we are becoming concerned about the increase in the size and possible misuse of the cottages throughout the Cedar Spring Community. From this point onward, it will be the practice of this Department to request the imposition of three conditions when dealing with expansions to cottages in this community, and we would appreciate the assistance of the Commission and the Health Unit in implementing them. The three conditions are:
(a) that the permit points out that year round occupancy is not allowed.
(b) that the permit requires the applicant(s) to sign an undertaking with the City acknowledging that he or she is aware of the restriction on year round occupancy.
(c) that the permit will not issue until such Health Unit has confirmed that the septic handle the current and future demands on it.”
To satify (a), the NEC Permit contained the following condition:
“That, the use of this cottage is restricted to a seasonal basis (i.e. no habitation on a permanent basis).”
32. At a Members’ Meeting held August 15, 1996, the members amended By-law 13 to change Lot # 52 to Lot #51 so that the member who owned Lot #52 could sell it and buy Lot #51 and carry with him the right to continue to live year round.
33. At the October, 1996 members meeting, the Board was given the mandate to enforce, not change, the residency bylaws. In early 1997, the Board declined to approve membership for a prospective purchaser of the Harrison cottage because of concerns related to off-season use.
33. In early 1998, Kenneth Dakin, a professional planner, was commissioned to prepare a report, (the “Dakin Report”), concerning the issues and obstacles with respect to converting seasonal residences to year-round use. The Dakin Report indicates that the conversion of the seasonal cottages to year-round use would result in nitrates from septic beds contaminating potable water and Bronte Creek and approvals for conversion could not be obtained under existing applicable regulatory requirements.
“The general policy is that all lots proposed for conversion would be serviced by private individual systems to the satisfaction of the Regional Health Department. Few lots would meet basic criteria for private systems such as Nitrate loading from septic beds due to lot size and physical constraints affecting available lot area. Nitrate in waste water is considered to be critical contaminant for potable water and the environment.”
“If all lots were to convert to permanent use on private individual systems, preliminary assimilative assessment indicates that nitrate loadings would likely be exceeded in Bronte Creek given the average existing lots sizes and the location of lots relative to the creek.”
Bronte Creek and its tributaries are a Type 1 fisheries resource and a significant limiting factor for servicing impacts as the majority of member properties are along the banks of Bronte Creek and its tributaries.
34. In a further attempt by the Board to enforce compliance by its membership with its By- laws and in furtherance of Burlington’s Official Plan, it sought to provide the members with clear criteria as to what use a member could make of a cottage during the period between November 1st and May 1st which, in the opinion of the Board, would not be considered to be a breach of By-law 15 - Article 9 against year-round use of the summer cottages. The Board clarified that even if a member resides at another residence during the off-season as required by By-law 15, he must vacate his cottage for all but 60 days of the off-season or the Board may form an opinion that conversion to year-round use has taken place nevertheless. The Board also sought to provide members who had signed Undertakings (restricting winter use) with prior blanket approval (as called for under those Undertakings) for temporary relief to allow limited use of seasonal cottages during the 1997-1998 winter season. On May 17, 1997, the Board passed the resolution regarding “off-season holiday criteria” which provided for up to 58 days use during the 1997-1998 winter season. Beyond that, each member would be required to apply to the Board in writing for approval for further relief for the specific terms regarding extent of winter use. The Board passed a similar resolution on April 22, 1998 for the 1998-1999 winter season. At a meeting of members on August 20, 1998, the members passed a resolution endorsing the Board’s approach and the 60-day criteria. The Board passed a similar resolution on September 16, 1998. It continues to be applied by the Board to this day. See Appendix C.
35. In May 1998, the Board established a Residency Task Force which delivered its final report that summer. It recommended establishing a Residency Committee, which first met on December 10, 1998:
(i) The Residency Committee should be a standing committee of six members appointed by the Board, each to serve a three-year term, with two new members appointed each year to replace the two retiring members.
(ii) Members selected should be respected, trusted, and known in the community to be fair and objective.
(iii) Membership on the Residency Committee should comprise six members in good standing, one of whom shall be a year-round resident.
(iv) The Residency Committee should be the eyes and ears of the community. Its role shall be communication and mediation, not enforcement.
(v) Whenever a Cedar Springs member or staff becomes aware of a possible violation of Residency By-laws or the Residency Undertaking, the Residency Committee or the Board should be informed. The Residency Committee should immediately become involved, its role being to find out the facts and to communicate with the member who may be in violation.
(vi) The Residency Committee is to receive applications from members who want an extension of the period they are permitted to make use of their seasonal dwelling during the off-season.
(vii) Three or more members of the Residency Committee are to be used for each issue dealt with.
35. On May 16, 1998, at a special meeting of members of the Club, Warren McCrea was declared a member not in good standing and denied the privileges of membership for being in violation of s.9.01 of By-law 15 of the Club by living year-round at his cottage at 6069 Cedar Springs Road.
36. In August, 1998, Warren McCrea commenced an application to the Ontario Court (General Division) to strike down the Club’s restrictions on land use, other than those contained in the General Building Scheme. In particular, he referred to By-laws 13 and 15 and to resolutions by the Board on seasonal residency.
37. On November 13, 1998, Justice R.G. Thomas of the Ontario Court (General Division) declared that Club By-laws 13 and 15 exist and are valid, are not ultra vires the board of the community club and are not discriminatory against applicant or other members. Accordingly, application is dismissed.
38. On December 4, 1998, McCrea filed an appeal to the Court of Appeal for Ontario.
39. Following approval by Council on July 12, 1999, the City of Burlington and the Regional Municipality of Halton retained outside legal counsel to intervene in the McCrea case before the Ontario Court of Appeal in support of the Cedar Springs provision in the Official Plan. In seeking intervenor status at the Ontario Court of Appeal, the City's lawyer explained to the judge that the City's concern is "that if the habitable area of the appellant's cottage were to be increased, that would lead to more frequent use of the cottage, either by the appellant or some future owner." The City lawyer went on to explain that would lead to an increase in demands imposed on septic system and potential pollution of ground water or the water of Bronte Creek. The joint application confirmed the agreement between the City and the Club with respect to the Official Plan and its enforcement by the Club.
40. On September 13, 1999, the Court of Appeal for Ontario before Justices Abella, Laskin and Moldaver dismissed the appeal by McCrea, stating:
“The by-laws are authorized by the letters patent, and are in compliance with the Official Plan and the agreement with the Town of Burlington. Moreover, the appellant purchased the property with full knowledge and consent of the restrictions on the land. There is sworn evidence that the by-laws were properly passed and no evidence to the contrary. This appeal has no merit. Appeal dismissed with costs to the respondents only.”
See Downloads, History Folder, McCrea Case Court of Appeal for a PDF containing materials filed with the court.
41. Although the General Building Scheme is on title to every member’s Cedar Springs property, not all real estate lawyers were looking back to 1932 when doing title searches on cottage sales. Similarly, purchasers and their lawyers were not aware of the section in the Burlington Official Plan governing Cedar Springs. Commencing in April, 1997, the Club began requiring each purchaser to sign a new form of Undertaking acknowledging the General Building Scheme and agreeing to abide by the City’s and the Club’s seasonal residency rules. This Undertaking was attached to the deed with the Club’s consent and filed with Land Registry office. About the same time, the area of Cedar Springs was converted to Land Titles and computer access to documents. A legal case called Indian Park involving another building scheme resulted in a decision that required land titles to give clear notice of any restrictive covenants that run with the land. Commencing in April 2000, the Club required vendors of Cedar Springs properties to register on title a standard form Restrictive Covenants document under section 119 of the Land Titles Act. This document reproduced as negative covenants all of the land use restrictions contained in the General Building Scheme, the Club By-laws, the Rules and Regulations and former Undertakings. See Appendix D. The October 7, 2000 meeting of members was advised of that: “the new real estate title documents were required because of changes to the land registration system which meant that the Flatt Agreement was not showing up on computer searches of the cottage properties. To protect the Club and its members and to provide notice to potential members of the restrictions on the properties, it was determined to create documents that set out the rights and obligations governing the lands. It was not intended by these documents to create any rights or obligations that didn’t previously exist.” In his transfer closing letter to owner’s lawyers, the Club’s lawyer notes that the general resolution of the Board which grants relief to the owner of a Springs property to occupy his or her cottage for up to 60 days during the period from November 1st up to and including May 1st in each successive year (the "offseason") and cautions that this general resolution for 60 days is subject to revocation/non-renewal by the Board and must be renewed annually to be effective. Otherwise, cottage use during the offseason is limited to recreational use on occasional weekends and statutory holidays only (without prior Board approval).
The seasonal use restrictions contained in the Restrictive Covenants are as follows:
2. No buildings or other structures, erected on the lands described in PIN ZZZZZ-ZZZZLT, nor the said lands, shall be used or occupied by any person or persons: (i) as a permanent or year-round residence; (ii) other than for summer seasonal recreational purposes; and (iii) other than in accordance with the restrictions, terms and conditions set out in the By-law(s) of Cedar Springs Community Club, adopted and/or interpreted from time to time, by the Board of Directors of the Cedar Springs Community Club.
3. For the purpose of the interpretation of the restriction, regarding summer seasonal recreational use, set out in paragraph 2 above, and without limiting the generality of any of the restrictions herein contained, during the period from November 1st up to and including May 1st in each successive year (the "off-season"), no buildings or other structures, erected on the lands described in PIN ZZZZZ-ZZZZLT, or the said lands, shall be used or occupied by any person or persons:
(a) other than for recreational use on occasional weekends and statutory holidays; or
(b) as his, her or their: (i) domicile; or (ii) primary residence; or (iii) permanent residence; or (iv) year-round residence; or (v) full-time residence; or (vi) only residence, without the prior written consent of the Board of Directors, of Cedar Springs Community Club which must be obtained in advance on a per occurrence basis or pursuant to a general resolution of the Board of Directors, of Cedar Springs Community Club.
5. No buildings or other structures, erected on the lands described in PIN ZZZZZ-ZZZZLT, nor the said lands, shall be used or occupied by any person or persons as a permanent or year-round residence or other than for recreational cottage purposes as provided for by the City of Burlington Official Plan.
42. On August 22, 2002, the members amended Rule #4 Cottage Rental to say: Seasonal residences, as defined under the Club’s by-laws, shall not be rented during the off-season (November 1st to May 1st of the following year) and shall not be granted rent-free use in excess of six days during the off-season. (i.e. a Member’s 60 days of off-season use privilege cannot be transferred to or used by another Member).
43. In 2005, City of Burlington commenced a formal review of the Official Plan. The Club made a submission seeking to: (i) confirm that the Club may continue to have dwellings on its common lands with permanent residents making year-round use. e.g. Gatehouse at 2048 Grand Blvd.; (ii) confirm the provision under the Plan to build 11 additional seasonal cottages on lands owned by the Club or lands owned by its members that is subject to Club control and restrictions. i.e. lands within the Cedar Springs Community precinct; and (iii) confirm that properties adjacent to the original Cedar Springs precinct acquired by the Club or by a member of the Club after the first implementation of the Plan can continue to have permanent residents making year-round use of any existing dwellings. e.g. Pegg homestead at 6226 Cedar Springs Road acquired by the Club in 1980 and similar existing year-round properties west of Cedar Springs Road that could be acquired by the Club or its members.
44. The Club was successful in getting the understandings from City of Burlington planning staff we were seeking: (a) Staff proposed no amendment to the Cedar Springs section of the Official Plan; (b) Staff agreed that a purpose of the Plan was to grandparent the 12 year-round properties owned by members located on Registered Plans 224 and 225 and was not intended to govern the year-round dwellings owned by the Club and occupied by permanent residents located on lands owned by the Club; and (c) Staff agreed that properties adjacent to the original Cedar Springs precinct acquired by the Club or by a member of the Club after the first implementation of the Plan can continue to have permanent residents making year-round use of any existing dwellings (e.g. Pegg homestead).
45. The City of Burlington staff initial response was contained in January 2006 document and their final response was in Appendix II Public Consultation on the Draft Official Plan and Zoning By-law Amendments and Staff Response Document (June 2006): “The Official Plan policy to which the writer refers recognizes the operation of a private, self-sustaining development with a maximum of 12 year-round residences and 82 seasonal cottages at the Cedar Springs Community on Cedar Springs Road. This policy was introduced to the Official Plan in 1975 through the approval of Amendment 81. At the time, a map was provided by the Community Club to staff showing the existing landholdings of the club, to which this policy was intended to apply. This map still exists in the Planning Department and identifies their lands on the east side of Cedar Springs Road. It is the opinion of staff that the policy in the Official Plan applies to the original 1975 land holdings of the Community Club and that the additional permanent residences on additional lands purchased following the introduction of this policy would not be included within the 12 permanent residences identified by the policy. Staff also wishes to address the club’s interpretation respecting the Official Plan identification of a maximum of 82 seasonal cottages within the community. It is the opinion of staff that all seasonal cottages would need to be located within the Community Club holdings as existed in 1975 when the Official Plan policy reference was placed in the Official Plan. On this basis, staff is of the opinion that no further changes to the Official Plan policy are warranted through the Official Plan Review. Any future expansions to the Community Club should be evaluated by means a site-specific application submitted to the Niagara Escarpment Commission, Region of Halton and the City, on the basis of a detailed review of current planning policies and current standards for servicing and infrastructure.”
46. At the May 18, 2013 General Meeting of the Club's members, the Residency Committee of the Board presented the following resolution conducted by secret ballot but it FAILED to pass by the required 75% (39 in favour, 17 opposed):
Ballot Resolution to
Allow use of a Seasonal Cottage as a Permanent Residence or an Only Residence
While Maintaining the Prohibition on Year-round Use
(defined as more than 60 days of use during the Off-season)
WHEREAS, the Burlington Official Plan and the Corporation’s By-laws laws, seasonal residency undertakings and restrictive covenants that flow therefrom have prohibited use of a seasonal residential dwelling as a permanent residence, primary residence, full-time residence, domicile and only residence;
AND WHEREAS, the Board proposes to permit a a Seasonal Residential Dwelling to be used for such purposes, subject to restricting off-season use to a maximum 60 days;
AND WHEREAS, the Board wishes to seek Burlington Official Plan policy amendments and consequent conforming Club By-law amendments to:
(a) add a definition of seasonal residential dwelling to clarify the restrictions on use and occupation during the off-season intended at the time the City grandfathered Cedar Springs Community as a legal non-conforming use; and
(b) conditional on (a), to delete the prohibition on use and occupation of a seasonal residential dwelling as a permanent residence, while maintaining the prohibition on the conversion of a seasonal residential dwelling to year-round use.
THEREFORE, be it resolved:
THAT the Board be authorized to seek such amendments to the Burlington Official Plan;
THAT the Board report back to the members on the results of that process; and
THAT the Board prepare the consequent conforming changes to the Club By-laws for approval by the members.
Allow use of a seasonal cottage as a permanent residence or an only residence while maintaining the prohibition on year-round use (defined as more than 60 days of use during the off-season)
YES ____ NO ____
Prepared by Thomas H. Simpson, August, 2005, as amended.
“(i) To enter into any arrangements with any authorities, municipal, local or otherwise, that may seem conducive to the Corporation’s objects or any of them and to obtain from any such authority any rights, privileges and concessions which the Corporation may think it desirable to obtain and to carry out, exercise and comply with any such arrangements, rights, privileges and concessions....
(w) To do all such other things as are incidental or conducive to the attainment of the above objects;”
2. The Club was incorporated as part of a General Building Scheme, in order to take title to certain common lands in the Building Scheme and to manage generally the Building Scheme. The lands that are the subject of the Building Scheme are located on the Niagara Escarpment and consisted of approximately 322 acres in 1939, including 59 acres with cottage lots. Other common lands have been purchased over the years and, by 1977, the most recent date the records of the Club indicate a reliable estimate, common lands totaled approximately 357 acres.
3. The concept of the Building Scheme originated with one William Delos Flatt (“Flatt”), who was the original owner of the lands. Flatt was a wealthy industrialist, who was also an avid naturalist. He subdivided the lands by registering Plan 224 on October 21, 1926 and Plan 225 on May 6, 1927 and then began to sell the individual lots. On July 9, 1932, he entered into the Building Scheme Agreement with all of the then owners of the individual lots and with the Club. Lots 1 to 5 inclusive were not subject to the agreement and therefore never part of Cedar Springs. The agreement described the part of Reserve B east of Willbrook Creek and Lots 6 to 96 inclusive as the developed member properties. In the agreement, the Club agreed to keep undeveloped Lots 97 to 110 inclusive and certain other lands in their natural state and condition.
4. The Building Scheme requires a person to be accepted as a member of the Club as a condition precedent to the purchase of lands within the development. Paragraph 9 of The Building Scheme requires members “... at all times to faithfully observe and comply with the rules, resolutions and by-laws regularly passed and adopted from time to time by the Corporation.”
5. The Club was originally made up of members who would be considered relatively well-off. All of the original members used their properties strictly as summer cottages. The Club provided ready access to a golf course, tennis courts and other amenities that were available to all of the members during the summer months. Dances, sporting events and social activities were organized throughout July and August. These activities continue today.
6. The Club maintained the golf course, a clubhouse and other facilities but also was, and continues to be officially recognized as, a self-sustaining community. It maintains its own roads, bridges, signs, lighting and club facility drinking water systems. The City of Burlington does not provide these services to the community.
7. In the early years, the Club operated a Christmas tree farm on its lands. The Club hired persons to maintain the property, including during the winter months. It was common for the employee manager to be a cabin owner and this resulted in cabins occupied by these managers to become winterized.
8. On the 1926 Plan of Subdivision it already showed the existence of a dwelling inside the gates of the Community on Club lands at 2048 Grand Blvd. This Gatehouse has been occupied by the Club’s superintendent who is a fulltime employee and a permanent resident.
9. On January 1, 1958, the Township of Nelson was amalgamated into the Town of Burlington. Burlington then enacted Zoning By-law 1681 on December 22, 1958, which was confirmed by the Ontario Municipal Board (“OMB”) on April 17, 1959. Under this By-law, Cedar Springs was considered a non-conforming use to what was probably zoned agricultural or greenbelt.
10. On November 17, 1959, in response to applications by a few members of the Club for the conversion of summer cottages to permanent homes, the Town of Burlington’s Building Commissioner wrote to Mr. G. E. Brenholtz, then Secretary and Manager of the Club. He stated that these applications to convert to permanent homes “itself creates a problem as your community is a non-conforming use with respect to zoning By-law #1681.” The letter went on to set out the Town’s required conditions for these approvals and requested the co-operation of the Club’s Board of Directors. The conditions were:
“a) approval from the Board of Directors respecting conversion.
b) approval from the County Health Unit that the water and septic system met all requirements as to a permanent home.
c) the dwelling had to be owner occupied.
d) the dwelling had to be converted in compliance with the Building Code as to materials, heating, etc.”
11. The Club agreed to the Town of Burlington’s request to require prior approval by the Board for conversion of seasonal cottages to permanent residences. On July 29, 1960, a meeting of members of the Club approved a motion adopting a procedure to handle applications for winter occupancy:
1. Approval be obtained from the Board of Directors of Cedar Springs.
2. The County Health Unit inspects to give their approval that the water & septic systems meet all the requirements as to a permanent home.
3. That a dwelling be converted in compliance with the building code as to materials, heating etc.
4. That the dwelling be occupied during the winter by the owner or his immediate family.
The Board exercised that power over the years by approving some but not all requests for conversion. Therefore, from an early date the Board was carrying out its objects under paragraph (i) of its Letters Patent by “entering into agreements with the municipality.”
12. In order that members be aware of this condition, and in keeping with its agreement with the Town of Burlington, the Club’s enacted rules and regulations containing a Winter Occupancy section which stated:
“Winter occupancy is defined as the use of the cottage as a permanent residence between November 1st and May 1st of the following year. No further expansion of winter occupancy shall be made without permission of the Board of Directors.”
This section continued to appear for many years in Rules and Regulations until replaced by By-law 15, Article 9.
13. On January 10, 1961 the Town of Burlington passed Sub-division Control By-law 1945 that deemed Registered Plans 224 and 225 not be registered plans anymore. That meant that the unsold vacant lots within Cedar Springs ceased to be saleable lots. From that date, the Club would require a severance to be approved by planning authorities to create any new building lots for sale.
14. It was reported in the minutes of a meeting of members on July 17, 1961, that the Club had been in discussions with officials of the Town of Burlington Planning Board with respect to the process of preparing an Official Plan. Planning Board authorities indicated that Cedar Springs could be classified as either “housing development” or “resort area”. If the area were to be developed as a housing development, winter occupancy would be permitted under higher standards for roads, septic and other health regulations. If the area were to be developed as a resort area, this would cause some difficulty in further granting of building permits by Town authorities for winterizing summer cabins. The meeting of members passed a motion that the Board of Directors be authorized to indicate in writing to the Planning Board of the Town of Burlington that the Cedar Springs Community Club recommended and suggested that the Town of Burlington Planning Board zone Cedar Springs Community Club area as “resort area”.
15. Burlington Official Plan Amendment 49 designated Cedar Springs lands as “Greenways”. Lands designated Greenways permit only buildings for recreational purposes.
16. Following approval by the members at a meeting on July 17, 1961, the Board of Directors of the Club on October 20, 1961 offered for sale by tender a new seasonal lot to be created at the northwest intersection of Twelve Mile Creek and Grand Blvd. The Golf Club Cottage was to be moved from the golf course to this new lot and placed on concrete piers at the expense of the Club and subject to municipal regulations. The tender document stated that the sale was subject to the Club receiving the approval of the Burlington Planning Board for a land separation. That approval was obtained and Murray Douglas Kelley purchased the property from the Club on March 23, 1962.
17. On June 14, 1965, the Committee of Adjustment of the Town of Burlington approved the severance of Parcels 7 and 8 on Registered Plan No. 224 to permit the creation of a second building lot. The Committee did so with the knowledge that the Halton County Health Unit was prepared to approve its use for building purposes. Originally developed as a seasonal cottage, in 1973 the Board approved the sale of Lot 7 as a year-round residence.
18. A memo to the Board of the Club dated September 13, 1974 and a March 5, 1975 memo to members indicate that, by 1975, the Club had recognized 12 conversions to permanent residences. All other member-owned properties were to be sold on a “Summer and Occasional Weekend basis.” The 12 permanent residences were the member-owned dwellings and did not include the Club-owned Gatehouse or the rental apartment in the Clubhouse that were both occupied by permanent residents. The rental apartment was lost when the Clubhouse burned down on April 12, 1979.
19. By memorandum dated July 5, 1978, the Chairman of the Membership Committee circulated to all members a 10-year review of membership. Attached to the memorandum was a copy of the standard Undertaking that each new member was required to sign in order to be considered for membership and for approval to purchase a lot in the Building Scheme. All 14 new members who had applied to purchase “recreational properties” between 1974 and 1978 had signed that form of Undertaking in which the member agreed that the cottage was for seasonal recreational use only.
20. On April 14, 1975, the City of Burlington first passed a motion to amend its Official Plan with respect to, among other things, the Cedar Springs Community. The amendment (No. 81), went through a long approval process, including approval in part by the Minister of Municipal Affairs and Housing on August 24, 1978 and by the OMB on May 1st, 1980. The amendment read as follows:
“It is the intent of this Amendment not to permit any further conversions of seasonal residential dwellings to permanent residences in the Cedar Springs Community. It is recognized that the Cedar Springs Community is a private self-sustaining development and will not have more than twelve year round residences and eight-two recreational cottages.”
21. The members of the Club, at a general membership meeting held on September 1, 1979, unanimously approved a resolution giving unqualified support for this O.P. amendment.
22. The excerpt respecting the Cedar Springs Community contained in the Burlington Official Plan currently in effect reads as:
“(i) Notwithstanding the general policies of the Plan, and subject to all applicable municipal by laws, policies and site plan requirements and development criteria of the Niagara Escarpment Plan, the following are permitted:...
(iii) the operation of a private, self-sustaining development with a maximum of 12 year-round residences and 82 seasonal cottages at the Cedar Springs Community located on Cedar Springs Road. The conversion of seasonal residential dwellings to permanent residences within the Cedar Springs Community shall not be permitted;”
23. In the process of amending the Official Plan by the City of Burlington, starting in 1974, the Club negotiated a benefit to the Club. The Club had asked for the reinstatement of Plans of Subdivision 224 and 225. This was not granted. However, Amendment No. 81 recognizes the right of the Club to develop existing lots or create additional seasonal cottages on the Cedar Springs lands. At the time of the amendment, the Club had 83 developed member properties (of which 12 were year round and 71 were seasonal recreational only). Amendment No. 81 provides for 94 residences, of which 82 must be recreational cottages that may not be used on a year-round basis. The amendment, therefore, allowed for the future development or creation of 11 additional recreational cottages by the Club that the Club could sell and the new memberships would create more annual membership fees.
24. On June 10, 1975, the City of Burlington ceased to have zoning control over the Cedar Springs Community lands because they were brought within a development control area established by regulation under the Niagara Escarpment Planning and Development Act. The Niagara Escarpment Commission assumed development control over the lands and the there is no other City zoning restriction in effect, or possible. In the period that followed, the City requested that the Niagara Escarpment Commission grant development permits with a condition that required the applicant to sign an undertaking to the City in which he would acknowledge the existence of the Club’s restriction on year round occupancy.
25. The Club advised the City of Burlington, by letter dated September 6, 1979 that the Board and the Membership, unanimously, approved the amendment to the Official Plan. In the same letter, the 12 member-owned lots that were designated as permanent residences were identified.
26. There were two objections raised to the specific reference to Cedar Springs contained in Amendment No. 81 to the Official Plan, which required a hearing by the Ontario Municipal Board (“OMB”). An objection was raised by Juen Fergus, a member of the Club, but subsequently withdrawn. Another member, Mrs. Helen Bryans, who was the owner at that time of Lots 8 and 11, Plan 224 also objected to the Cedar Springs clause in Amendment No. 81. She specifically wanted her property to be designated a permanent residence. The OMB held a hearing on May 1, 1980. The OMB confirmed the Cedar Springs clause contained in Amendment No. 81, thereby denying Mrs. Bryans’ request to have her property designated for year round use. In its decision, the OMB stated:
“we have to draw the line somewhere and we want to draw it at the existing situation and say ‘no more conversions - we recognize conversions up to now in equity because they are done.”.
When the Ontario Municipal Board held its hearing and gave its decision in May, 1980, health and the environment were key concerns:
“The justification for this concern, just by way of example, that on very small lots of less than 1 acre or in certain areas 0.7 acres and certain areas 0.2 acres, it is dangerous to have permanent development. Septic tanks might work for summer homes when they are getting used 2 or 3 months of the year. It is a horse of a different color if they are perhaps being operated for 12 months of the year. That is just one example of the problems of development in a rural area on undersized lots.
Secondly, the - and perhaps more importantly - if you are going to preserve your natural resource, you have designated as such, you have got to start being tough not just thinking with your heart, you have got to draw the line and you have got to man the barricade and you have got to stay there. You have got to preserve the natural environment and you cannot preserve it if you allow permanent residential development in these unique areas every time a nice lady or somebody comes down the line with a sympathetic story. This is important, the Board makes decisions on the evidence and any logical inference that can be drawn from that evidence and the qualified planner who is a well qualified one, was not shaken, not even challenged on his professional opinion on these matters which the Board and the Board accepts.”
27. In early 1978, Leonard Pegg retained a real estate agent with the intent to sell his property. Pegg was not a member of the Club and his property was not subject to the Building Scheme but Cedar Springs lands bound the property on all sides. On April 1, 1980, the Club purchased from the estate of Leonard Pegg two parcels of property comprising 7.5 acres contained within the Cedar Springs Community precinct. One parcel consisted of the old Dakota Mill site and the other parcel contained the Pegg homestead dwelling that had been Pegg’s permanent residence at 6226 Cedar Springs Road. Over the next 20 years or so, the Club rented the dwelling to various permanent residents who were not members of the Club.
28. Following the Official Plan amendment by the City of Burlington, the Club again became concerned about compliance by some members with the seasonal occupancy restriction. At a meeting of the Board on July 9, 1981, the representatives of the Board reported that the City of Burlington would like the Club to pass a by law “stating which properties (lot numbers) are designated as year-round residences”. The City was in effect asking the Club to pass the zoning by-law that the City itself did not have the authority to pass since Cedar Springs was under N.E.C. development control.
29. At the request of the City of Burlington, By-law 13 “By-law re the designation of permanent residences” was passed by the Board on September 3, 1981 and was approved by the members on May 22, 1982. By-law 13 was enacted to control the abuse of seasonal residency. It designates all member-owned lots (except for the 12 specified lots) as seasonal residences. The By-law operated together with the Rules & Regulations that continued to read:
“Winter occupancy is defined as the use of the cottage as a permanent residence between November 1st and May 1st of the following year. No further expansion of winter occupancy shall be made without permission of the Board of Directors.” (Rule #16 from Rules and Regulations as of July, 1982)
The by-law dealt only with member-owned lots and not dwellings owned by the Club on Club lands such as the Gatehouse and the Pegg homestead, both of which were occupied by permanent residents as tenants of the Club. See Appendix A.
30. On June 28, 1988, the Board passed By-Law 15. The membership, at a general membership meeting on August 25, 1988, passed the by-law, as amended. By-Law 15 was included in the Consolidated By-Laws that were approved by the Board of Directors on May 8, 1990 and confirmed by the membership on August 23, 1990. See Appendix B. Article 9 of By-Law 15 sets out Burlington’s Official Plan Amendment regarding prohibiting further conversion of seasonal dwellings to permanent residences and further states:
“If any Shareholder permits their Lot and Recreational Cottage to be used as the only residence during the period between November 1st and May 1st in the opinion of the Board, a resolution of the Shareholders may be passed at a special meeting called to deal with the matter and if passed the Shareholder shall forthwith not be entitled to enjoy the Privileges of Membership and the Shareholder shall be declared to be Not in Good Standing.”
By-Law 15 was intended to enforce Burlington’s Official Plan by removing membership privileges in the Club (but not rights, such as voting rights) from those who violated the policy regarding year-round use of the summer cottages.
The By-law 15 requirement to actually reside in another residence was clarified in 1998 in a memo to members by reference to the legal meaning of those terms. They must “live, dwell, abide, sojourn, stay, remain, lodge”... “at some place of abode with no present intention of definite or early removal and with the purpose to remain for undetermined period, not infrequently”. So checking into a hotel several nights between November 1st and May 1st does not constitute residing in another residence. Neither does any other personal presence at some place of abode for some determined period or for infrequent periods (e.g. staying at a property rented for a fixed period). It was also clarified that the Board was not seeking proof of a permanent residence somewhere else, but that the member must not make his Cedar Springs cabin his permanent residence and that the member must have another residence and he must reside there during the winter.
31. On April 19, 1989, the City Planning Department wrote to the NEC regarding a proposed addition to a seasonal cottage, raising the following two concerns:
“(a) the proposed addition should not lead to year round occupancy. To avoid this. staff would request that this requirement be noted in any approval. and further that the owner be required to sign an undertaking with the City acknowledging that the applicant understands this situation. The letter to be signed is available in the City's Legal Department.
(b) the increase in the size of the cottage will undoubtedly lead to more frequent use of the cottage, either by the current owner or some future owner. More frequent use of the expanded cottage is likely to place more of a demand on the septic system. Such a demand may be beyond the ability of the existing septic system to handle, particularly an older septic system and could lead to pollution of the ground water and/or Bronte Creek. For this reason, staff believe the septic system should be tested by the Health Unit before any development permits are issued for the proposed addition.
Conclusion
Staff have no objection to the proposed addition. however we are becoming concerned about the increase in the size and possible misuse of the cottages throughout the Cedar Spring Community. From this point onward, it will be the practice of this Department to request the imposition of three conditions when dealing with expansions to cottages in this community, and we would appreciate the assistance of the Commission and the Health Unit in implementing them. The three conditions are:
(a) that the permit points out that year round occupancy is not allowed.
(b) that the permit requires the applicant(s) to sign an undertaking with the City acknowledging that he or she is aware of the restriction on year round occupancy.
(c) that the permit will not issue until such Health Unit has confirmed that the septic handle the current and future demands on it.”
To satify (a), the NEC Permit contained the following condition:
“That, the use of this cottage is restricted to a seasonal basis (i.e. no habitation on a permanent basis).”
32. At a Members’ Meeting held August 15, 1996, the members amended By-law 13 to change Lot # 52 to Lot #51 so that the member who owned Lot #52 could sell it and buy Lot #51 and carry with him the right to continue to live year round.
33. At the October, 1996 members meeting, the Board was given the mandate to enforce, not change, the residency bylaws. In early 1997, the Board declined to approve membership for a prospective purchaser of the Harrison cottage because of concerns related to off-season use.
33. In early 1998, Kenneth Dakin, a professional planner, was commissioned to prepare a report, (the “Dakin Report”), concerning the issues and obstacles with respect to converting seasonal residences to year-round use. The Dakin Report indicates that the conversion of the seasonal cottages to year-round use would result in nitrates from septic beds contaminating potable water and Bronte Creek and approvals for conversion could not be obtained under existing applicable regulatory requirements.
“The general policy is that all lots proposed for conversion would be serviced by private individual systems to the satisfaction of the Regional Health Department. Few lots would meet basic criteria for private systems such as Nitrate loading from septic beds due to lot size and physical constraints affecting available lot area. Nitrate in waste water is considered to be critical contaminant for potable water and the environment.”
“If all lots were to convert to permanent use on private individual systems, preliminary assimilative assessment indicates that nitrate loadings would likely be exceeded in Bronte Creek given the average existing lots sizes and the location of lots relative to the creek.”
Bronte Creek and its tributaries are a Type 1 fisheries resource and a significant limiting factor for servicing impacts as the majority of member properties are along the banks of Bronte Creek and its tributaries.
34. In a further attempt by the Board to enforce compliance by its membership with its By- laws and in furtherance of Burlington’s Official Plan, it sought to provide the members with clear criteria as to what use a member could make of a cottage during the period between November 1st and May 1st which, in the opinion of the Board, would not be considered to be a breach of By-law 15 - Article 9 against year-round use of the summer cottages. The Board clarified that even if a member resides at another residence during the off-season as required by By-law 15, he must vacate his cottage for all but 60 days of the off-season or the Board may form an opinion that conversion to year-round use has taken place nevertheless. The Board also sought to provide members who had signed Undertakings (restricting winter use) with prior blanket approval (as called for under those Undertakings) for temporary relief to allow limited use of seasonal cottages during the 1997-1998 winter season. On May 17, 1997, the Board passed the resolution regarding “off-season holiday criteria” which provided for up to 58 days use during the 1997-1998 winter season. Beyond that, each member would be required to apply to the Board in writing for approval for further relief for the specific terms regarding extent of winter use. The Board passed a similar resolution on April 22, 1998 for the 1998-1999 winter season. At a meeting of members on August 20, 1998, the members passed a resolution endorsing the Board’s approach and the 60-day criteria. The Board passed a similar resolution on September 16, 1998. It continues to be applied by the Board to this day. See Appendix C.
35. In May 1998, the Board established a Residency Task Force which delivered its final report that summer. It recommended establishing a Residency Committee, which first met on December 10, 1998:
(i) The Residency Committee should be a standing committee of six members appointed by the Board, each to serve a three-year term, with two new members appointed each year to replace the two retiring members.
(ii) Members selected should be respected, trusted, and known in the community to be fair and objective.
(iii) Membership on the Residency Committee should comprise six members in good standing, one of whom shall be a year-round resident.
(iv) The Residency Committee should be the eyes and ears of the community. Its role shall be communication and mediation, not enforcement.
(v) Whenever a Cedar Springs member or staff becomes aware of a possible violation of Residency By-laws or the Residency Undertaking, the Residency Committee or the Board should be informed. The Residency Committee should immediately become involved, its role being to find out the facts and to communicate with the member who may be in violation.
(vi) The Residency Committee is to receive applications from members who want an extension of the period they are permitted to make use of their seasonal dwelling during the off-season.
(vii) Three or more members of the Residency Committee are to be used for each issue dealt with.
35. On May 16, 1998, at a special meeting of members of the Club, Warren McCrea was declared a member not in good standing and denied the privileges of membership for being in violation of s.9.01 of By-law 15 of the Club by living year-round at his cottage at 6069 Cedar Springs Road.
36. In August, 1998, Warren McCrea commenced an application to the Ontario Court (General Division) to strike down the Club’s restrictions on land use, other than those contained in the General Building Scheme. In particular, he referred to By-laws 13 and 15 and to resolutions by the Board on seasonal residency.
37. On November 13, 1998, Justice R.G. Thomas of the Ontario Court (General Division) declared that Club By-laws 13 and 15 exist and are valid, are not ultra vires the board of the community club and are not discriminatory against applicant or other members. Accordingly, application is dismissed.
38. On December 4, 1998, McCrea filed an appeal to the Court of Appeal for Ontario.
39. Following approval by Council on July 12, 1999, the City of Burlington and the Regional Municipality of Halton retained outside legal counsel to intervene in the McCrea case before the Ontario Court of Appeal in support of the Cedar Springs provision in the Official Plan. In seeking intervenor status at the Ontario Court of Appeal, the City's lawyer explained to the judge that the City's concern is "that if the habitable area of the appellant's cottage were to be increased, that would lead to more frequent use of the cottage, either by the appellant or some future owner." The City lawyer went on to explain that would lead to an increase in demands imposed on septic system and potential pollution of ground water or the water of Bronte Creek. The joint application confirmed the agreement between the City and the Club with respect to the Official Plan and its enforcement by the Club.
40. On September 13, 1999, the Court of Appeal for Ontario before Justices Abella, Laskin and Moldaver dismissed the appeal by McCrea, stating:
“The by-laws are authorized by the letters patent, and are in compliance with the Official Plan and the agreement with the Town of Burlington. Moreover, the appellant purchased the property with full knowledge and consent of the restrictions on the land. There is sworn evidence that the by-laws were properly passed and no evidence to the contrary. This appeal has no merit. Appeal dismissed with costs to the respondents only.”
See Downloads, History Folder, McCrea Case Court of Appeal for a PDF containing materials filed with the court.
41. Although the General Building Scheme is on title to every member’s Cedar Springs property, not all real estate lawyers were looking back to 1932 when doing title searches on cottage sales. Similarly, purchasers and their lawyers were not aware of the section in the Burlington Official Plan governing Cedar Springs. Commencing in April, 1997, the Club began requiring each purchaser to sign a new form of Undertaking acknowledging the General Building Scheme and agreeing to abide by the City’s and the Club’s seasonal residency rules. This Undertaking was attached to the deed with the Club’s consent and filed with Land Registry office. About the same time, the area of Cedar Springs was converted to Land Titles and computer access to documents. A legal case called Indian Park involving another building scheme resulted in a decision that required land titles to give clear notice of any restrictive covenants that run with the land. Commencing in April 2000, the Club required vendors of Cedar Springs properties to register on title a standard form Restrictive Covenants document under section 119 of the Land Titles Act. This document reproduced as negative covenants all of the land use restrictions contained in the General Building Scheme, the Club By-laws, the Rules and Regulations and former Undertakings. See Appendix D. The October 7, 2000 meeting of members was advised of that: “the new real estate title documents were required because of changes to the land registration system which meant that the Flatt Agreement was not showing up on computer searches of the cottage properties. To protect the Club and its members and to provide notice to potential members of the restrictions on the properties, it was determined to create documents that set out the rights and obligations governing the lands. It was not intended by these documents to create any rights or obligations that didn’t previously exist.” In his transfer closing letter to owner’s lawyers, the Club’s lawyer notes that the general resolution of the Board which grants relief to the owner of a Springs property to occupy his or her cottage for up to 60 days during the period from November 1st up to and including May 1st in each successive year (the "offseason") and cautions that this general resolution for 60 days is subject to revocation/non-renewal by the Board and must be renewed annually to be effective. Otherwise, cottage use during the offseason is limited to recreational use on occasional weekends and statutory holidays only (without prior Board approval).
The seasonal use restrictions contained in the Restrictive Covenants are as follows:
2. No buildings or other structures, erected on the lands described in PIN ZZZZZ-ZZZZLT, nor the said lands, shall be used or occupied by any person or persons: (i) as a permanent or year-round residence; (ii) other than for summer seasonal recreational purposes; and (iii) other than in accordance with the restrictions, terms and conditions set out in the By-law(s) of Cedar Springs Community Club, adopted and/or interpreted from time to time, by the Board of Directors of the Cedar Springs Community Club.
3. For the purpose of the interpretation of the restriction, regarding summer seasonal recreational use, set out in paragraph 2 above, and without limiting the generality of any of the restrictions herein contained, during the period from November 1st up to and including May 1st in each successive year (the "off-season"), no buildings or other structures, erected on the lands described in PIN ZZZZZ-ZZZZLT, or the said lands, shall be used or occupied by any person or persons:
(a) other than for recreational use on occasional weekends and statutory holidays; or
(b) as his, her or their: (i) domicile; or (ii) primary residence; or (iii) permanent residence; or (iv) year-round residence; or (v) full-time residence; or (vi) only residence, without the prior written consent of the Board of Directors, of Cedar Springs Community Club which must be obtained in advance on a per occurrence basis or pursuant to a general resolution of the Board of Directors, of Cedar Springs Community Club.
5. No buildings or other structures, erected on the lands described in PIN ZZZZZ-ZZZZLT, nor the said lands, shall be used or occupied by any person or persons as a permanent or year-round residence or other than for recreational cottage purposes as provided for by the City of Burlington Official Plan.
42. On August 22, 2002, the members amended Rule #4 Cottage Rental to say: Seasonal residences, as defined under the Club’s by-laws, shall not be rented during the off-season (November 1st to May 1st of the following year) and shall not be granted rent-free use in excess of six days during the off-season. (i.e. a Member’s 60 days of off-season use privilege cannot be transferred to or used by another Member).
43. In 2005, City of Burlington commenced a formal review of the Official Plan. The Club made a submission seeking to: (i) confirm that the Club may continue to have dwellings on its common lands with permanent residents making year-round use. e.g. Gatehouse at 2048 Grand Blvd.; (ii) confirm the provision under the Plan to build 11 additional seasonal cottages on lands owned by the Club or lands owned by its members that is subject to Club control and restrictions. i.e. lands within the Cedar Springs Community precinct; and (iii) confirm that properties adjacent to the original Cedar Springs precinct acquired by the Club or by a member of the Club after the first implementation of the Plan can continue to have permanent residents making year-round use of any existing dwellings. e.g. Pegg homestead at 6226 Cedar Springs Road acquired by the Club in 1980 and similar existing year-round properties west of Cedar Springs Road that could be acquired by the Club or its members.
44. The Club was successful in getting the understandings from City of Burlington planning staff we were seeking: (a) Staff proposed no amendment to the Cedar Springs section of the Official Plan; (b) Staff agreed that a purpose of the Plan was to grandparent the 12 year-round properties owned by members located on Registered Plans 224 and 225 and was not intended to govern the year-round dwellings owned by the Club and occupied by permanent residents located on lands owned by the Club; and (c) Staff agreed that properties adjacent to the original Cedar Springs precinct acquired by the Club or by a member of the Club after the first implementation of the Plan can continue to have permanent residents making year-round use of any existing dwellings (e.g. Pegg homestead).
45. The City of Burlington staff initial response was contained in January 2006 document and their final response was in Appendix II Public Consultation on the Draft Official Plan and Zoning By-law Amendments and Staff Response Document (June 2006): “The Official Plan policy to which the writer refers recognizes the operation of a private, self-sustaining development with a maximum of 12 year-round residences and 82 seasonal cottages at the Cedar Springs Community on Cedar Springs Road. This policy was introduced to the Official Plan in 1975 through the approval of Amendment 81. At the time, a map was provided by the Community Club to staff showing the existing landholdings of the club, to which this policy was intended to apply. This map still exists in the Planning Department and identifies their lands on the east side of Cedar Springs Road. It is the opinion of staff that the policy in the Official Plan applies to the original 1975 land holdings of the Community Club and that the additional permanent residences on additional lands purchased following the introduction of this policy would not be included within the 12 permanent residences identified by the policy. Staff also wishes to address the club’s interpretation respecting the Official Plan identification of a maximum of 82 seasonal cottages within the community. It is the opinion of staff that all seasonal cottages would need to be located within the Community Club holdings as existed in 1975 when the Official Plan policy reference was placed in the Official Plan. On this basis, staff is of the opinion that no further changes to the Official Plan policy are warranted through the Official Plan Review. Any future expansions to the Community Club should be evaluated by means a site-specific application submitted to the Niagara Escarpment Commission, Region of Halton and the City, on the basis of a detailed review of current planning policies and current standards for servicing and infrastructure.”
46. At the May 18, 2013 General Meeting of the Club's members, the Residency Committee of the Board presented the following resolution conducted by secret ballot but it FAILED to pass by the required 75% (39 in favour, 17 opposed):
Ballot Resolution to
Allow use of a Seasonal Cottage as a Permanent Residence or an Only Residence
While Maintaining the Prohibition on Year-round Use
(defined as more than 60 days of use during the Off-season)
WHEREAS, the Burlington Official Plan and the Corporation’s By-laws laws, seasonal residency undertakings and restrictive covenants that flow therefrom have prohibited use of a seasonal residential dwelling as a permanent residence, primary residence, full-time residence, domicile and only residence;
AND WHEREAS, the Board proposes to permit a a Seasonal Residential Dwelling to be used for such purposes, subject to restricting off-season use to a maximum 60 days;
AND WHEREAS, the Board wishes to seek Burlington Official Plan policy amendments and consequent conforming Club By-law amendments to:
(a) add a definition of seasonal residential dwelling to clarify the restrictions on use and occupation during the off-season intended at the time the City grandfathered Cedar Springs Community as a legal non-conforming use; and
(b) conditional on (a), to delete the prohibition on use and occupation of a seasonal residential dwelling as a permanent residence, while maintaining the prohibition on the conversion of a seasonal residential dwelling to year-round use.
THEREFORE, be it resolved:
THAT the Board be authorized to seek such amendments to the Burlington Official Plan;
THAT the Board report back to the members on the results of that process; and
THAT the Board prepare the consequent conforming changes to the Club By-laws for approval by the members.
Allow use of a seasonal cottage as a permanent residence or an only residence while maintaining the prohibition on year-round use (defined as more than 60 days of use during the off-season)
YES ____ NO ____
Prepared by Thomas H. Simpson, August, 2005, as amended.