Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 18, 2021

CASE NO(S).: PL210155

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Ron Gallagher

Appellant: Matthew Richard

Subject: By-law No. Z-16-19

Municipality: Town of Whitby

OLT Case No.: PL210155

OLT File No.: PL210155

OLT Case Name: Gallagher/Richard v. Whitby (Town)

Heard: October 28 & 29, 2021 by Video Hearing

APPEARANCES:

Parties	Counsel
Durham Islamic Centre	J. Meader
Matthew Richard	Self-represented
Ron Gallagher	Self-represented
Town of Whitby	Did not appear

DECISION DELIVERED BY BRYAN W. TUCKEY AND INTERIM ORDER OF THE TRIBUNAL

1The Town of Whitby (“Town”) approved an application for a temporary use by-law to enable the use of an existing structure for a period of three years. The Durham Islamic Centre (“Applicants”) proposed to use the existing structure for a place of worship while the organization searches for a permanent location. The property is municipally known as 4618 Country Lane in the Town (“subject lands”). A Zoning By-law Amendment (“ZBA”) By-law No. 7713-21 was adopted by Town Council on January 25, 2021.

2The ZBA was appealed by area property owners, Matthew Richard and Ron Gallagher (“Appellants”), pursuant to s. 34(19) of the Planning Act. Both live close to the proposed temporary use and provided testimony to the Tribunal outlining their issues and opinions with respect to the proposal.

3An Affidavit of Service (revised) dated August 25, 2021, is marked as Exhibit 1. Messrs. Richard and Gallagher were given party status. There are no other parties or participants in this matter.

4The Tribunal has the benefit of three expert witnesses in this matter. This Decision includes evidence found in witness statements or referenced reports, and from oral testimony.

a. Bryce Jordan (Witness Statement, Exhibit 4) and Kaitlin Friesen (under subpoena) (Staff Report, Exhibit 2a, Tab 20) both are qualified to give expert opinion evidence in the discipline of Land Use Planning; and,

b. Roland Roovers (reports found at Exhibit 2, Tabs 29 and 31) is qualified to give expert opinion evidence in the discipline of Transportation Planning and Traffic Engineering.

BACKGROUND, SITE ANALYSIS AND AREA CONTEXT

5The Applicant is seeking land use planning approvals to make temporary use of the existing single detached dwelling on subject property it currently owns and make use of it as a place of worship to conduct their regular religious gatherings. The existing Official Plan designation does not permit such a use; hence, they are seeking a Temporary Use By-law under s. 39 of the Planning Act and Policy 10.1.9.1 of the Town Official Plan (“WOP”). The Applicant currently rents space in the McKinney Centre on Fridays to conduct regular religious gatherings.

6The subject lands are located at 4618 Country Lane, north of Taunton Road West. It is approximately 10.2 hectares in size and contains an existing two storey house with an attached garage. The livable floor area of the house is approximately 325 square metres (“m²”).

7The subject lands are located less than 200 metres (“m”) from the urban area boundary of the Town. Surrounding uses include rural residential to the north, west and east and agricultural uses to the south.

8Ms. Friesen in her evidence spoke to the extensive, comprehensive, and iterative process conducted by the Town in its review of the proposal. A summary of the review is as follows:

a. a pre-consultation meeting, application being submitted (September 2019) and the application was subsequently deemed complete by the Town;

b. a sign was placed on the property, all relevant agencies were circulated with comments being received and considered; a statutory public meeting was held along with a Public Information Centre with area residents at the request of Town Council;

c. a second submission was received from the Applicant taking into account agency and public comments; this submission was again circulated to all agencies for their review. A final staff report was prepared, and Council adopted staff recommendations subject to several conditions. (Exhibit 2 a), Tab 20, page 148);

d. To ensure conditions are met, the Town and the Applicant entered into a Development Agreement with an approved site plan. The Development Agreement was duly executed between the Town and Applicant. (Exhibit 2 a), Tab 25). Terms of the Development Agreement were circulated and agreed upon by relevant agency officials.

e. Council adopted By-law No. 7713-21 authorizing the temporary use in January 2021. This By-law was appealed by the Appellants.

9Studies and letters required by the Town, in support of this application, included:

a. a Planning Brief and Traffic Briefs prepared by GHD;

b. an overall site and grading plan for a replacement Sewage System design, two reports were prepared by Gunnell Engineering Ltd.;

c. a scoped Environmental Impact Study (“EIS”) prepared by Niblett Environmental Associates Inc.;

d. D.G. Biddle and Associates regarding Fire Protection Water Supply; and,

e. correspondence to the Central Lake Ontario Conservation Authority (“CLOCA”) with respect to Greenbelt Plan policies.

APPELLANT’S TESTIMONY

10At the hearing, the Appellants appeared on their own and provided the only evidence in support of their appeal. The Appellants live in the neighbourhood and Mr. Gallagher owns property immediately north of the subject lands. A document book was produced to assist the Tribunal in understanding their issues (Exhibit 3). Both were detailed in their description of the history of the application and their continued interest.

11Issues that the Appellants brought to the Tribunal’s attention included:

a. the Applicant purchased the home with the intention of building a community centre, school, church, and summer camp all uses are not permitted in the underlying Official Plan and Zoning By-law. The information that has been received by residents in the area is at best misleading;

b. the Applicant is presently renting space in the McKinney Centre and there seems to be no reason this arrangement could not continue;

c. conditions of the ZBA have or cannot be met for example, the installation of the dry hydrant was completed improperly;

d. there are many references to the Ontario Building Code (“OBC”) in Mr. Jordan’s witness statement, which he was not qualified to provide answers to. In the Appellants’ view, many of the requirements of the OBC have not been properly addressed including the structural integrity of the existing building should it be used as a place of worship even for a temporary period. The Appellants both had some working knowledge of the OBC, but no expert evidence was presented at the Hearing.

e. the traffic briefs prepared by GHD were based on improper assumptions and inputs, and therefore, do not accurately reflect appropriate parking requirements nor the resulting traffic impact on Country Lane. The increased traffic may be a risk to the safety of the traveling public and the many walkers, cyclists, and joggers who routinely use Country Lane; and,

f. in summary the “subject area and infrastructure is NOT able to handle this kind of volume” therefore, the ZBA is not acceptable and a temporary use that would permit a place of worship on the subject lands is not appropriate.

12Mr. Gallagher wanted additional comfort that if the ZBA is passed that it is done so in keeping with Policy 10.1.9.2 a) of the WOP clearly limiting the temporary use to a maximum of three years.

LAND USE PLANNING

13Mr. Jordan provided detailed evidence on how the proposal addresses the relevant Provincial and Municipal land use policies. Ms. Friesen was present for his testimony and adopted his evidence and opinion in its entirety.

Provincial Policy

14Mr. Jordan is of the opinion that the proposed ZBA is:

a. consistent with the Provincial Policy Statement 2020. He specifically noted s. 1.1.5.2 and s. 1.1.5.5 relating to rural land uses and the appropriate infrastructure needed to service these uses.

b. is in conformity with A Place to Grow – Growth Plan for the Greater Golden Horseshoe. This is a higher level, general policy document but does imply that existing rural residential uses are permitted to continue over the long-term. It is the clear intent of the ZBA that the subject lands will be returned to and maintained as rural residential for the long term.

15The Greenbelt Plan required some considerable effort to ensure conformity. Mr. Jordan noted the subject lands are designated as ‘Protected Countryside’ within the ‘Natural Heritage System’. The Greenbelt Plan recognizes existing uses on the Rural lands and these uses can continue and expand, subject to conditions. The proposed temporary use is permitted if the subject lands are returned to rural residential use and the site alteration in the Natural Heritage System meets three policies that apply to permitted development in the Greenbelt being:

a. s. 3.2.2.3 d) ii) – the impervious surface of the total developable area will not exceed 10 percent;

b. s. 3.2.5.5 b) – a natural heritage evaluation identifies a vegetation protection zone of natural self-sustaining vegetation adjacent to key natural heritage features; and,

c. s. 3.2.2.3 e) – 20 percent of the total developable area will remain or be returned to natural self-sustaining vegetation.

16Mr. Jordan described in detail how the Applicant demonstrated conformity to the Greenbelt Plan. The Town uses the resources of CLOCA to provide advice and any conditions of approval regarding matters related to the Greenbelt Plan. The EIS prepared, in support of the application, demonstrated that required works take up a very small portion of the subject lands and any disturbed areas are well removed from existing environmental features. A plan showing the Developable Area is found in Exhibit 2 b) Tab 36, page 474. CLOCA advised that the proposal met the setback requirements of the Greenbelt Natural Heritage System (and features) and a permit from CLOCA is not required. CLOCA officials were pleased that a Development Agreement was being entered into with the Applicant and offered no objections to the ZBA subject to conditions being added into the Development Agreement. CLOCA was consulted throughout the processing of the Application.

17Mr. Jordan is of the opinion that the ZBA conforms to the Greenbelt Plan because all of the criteria of the plan are being met in a manner that satisfies CLOCA and conditions have been secured in the executed Development Agreement and the site plan that is part of this Agreement.

18The Tribunal accepts the uncontested evidence of Mr. Jordan, which was adopted by Ms. Friesen in its entirety and finds that the proposed ZBA is consistent with the Provincial Policy Statement, conforms to Places to Grow and conforms to the Greenbelt Plan.

Municipal Policy

19The Region of Durham Official Plan (“DOP”) designates the subject lands as ‘Major Open Space’, which are mainly intended for conservation but also allow for a range of agricultural and agricultural-related uses along with a variety of secondary uses. Existing rural residential uses are also permitted but not specifically stated.

20Mr. Jordan opined that the proposed temporary use ZBA conforms to the DOP. He stated that cultural facilities such as a place of worship would not typically be permitted in a Major Open Space designation. A temporary use allowed under s. 39(2) of the Planning Act may be permitted when it will return to its existing permitted use as a rural residence.

21Regional comments confirmed this opinion:

the proponent intends to find a permanent location elsewhere capable of supporting a place of worship. It is also our understanding that no additions or new buildings are being proposed on the subject site to encourage the longevity of its use, however minor site alterations to accommodate vehicle parking are proposed away from KNHHF on-site. As such, the proposed development on a temporary basis can be considered the ROP.

22Mr. Jordan described in detail how the WOP has, through a series of policies, found in s. 10.1.9, addresses Temporary Uses within the Town in keeping with the required statutory parameters of the Planning Act. The policy framework is described in s. 10.1.9.1 as:

Council may pass a by-law to permit the temporary use of land(s), building(s) or structure(s), for any purpose which is otherwise prohibited by the Zoning By-law, without an amendment to this Plan for a period of up to three years…

23The policy framework then goes on to outline three circumstances under which a temporary by-law may be considered by the Town. The policy basis is very clear, complete, and comprehensive in its permissions and how the policy is to be implemented. It was confirmed for the benefit of the Appellants several times during this hearing that the ‘operative circumstance’ under which the place of worship is being considered is:

a. when a use is intended to exist for only a limited period of time

24The planner outlined the criteria under which a temporary use may be considered. In keeping with s. 10.1.9.3, Council must be satisfied that:

a. the site can adequately accommodate the proposed use, considering such matters as site layout, parking, traffic circulation, access, landscaping. and servicing;

b. the use will be compatible with, and not adversely affect, any surrounding land uses, roads, or the natural environment that currently exists;

c. the use will not prejudice the future development or redevelopment of the subject lands and the surrounding area as set out in this plan; and

d. no new building or expansion of existing buildings, except for temporary movable structures, shall be permitted.

25Mr. Jordan advised that in this situation, the proposal also takes into account s. 10.1.9.4 which states: “The Temporary Use By-law may include requirements to restore the use of land, buildings or structures to those in effect prior to the implementation of the Temporary Use By-law”.

26Mr. Jordan is of the opinion that the proposed ZBA meets all the requirements for a Temporary Use By-law and therefore, conforms to the WOP for the following reasons:

a. the existing building can adequately accommodate the proposed use;

b. the traffic brief and studies show the parking, traffic and access can be accommodated appropriately with the additional gravel parking spaces and widened driveway. There are no adverse impacts on the adjacent roads or portions of the subject lands with existing Natural Heritage Features;

c. the updated septic system is designed and implemented to adequately accommodate the proposed and future use of a five bedroom single detached dwelling. The upgraded septic system is well separated from the Natural Heritage Features and therefore, there are no adverse impacts;

d. the existing building and all the required changes to the subject lands are well separated from the existing rural residential uses and no adverse impacts are expected;

e. the future land use prospect for the subject lands is a return to its previous rural residential use on an existing lot of record at the expiry of the By-law time period; and,

f. no new structures or expansions to the existing buildings is being proposed. Although not confirmed a qualified expert at the hearing, Mr. Jordan is advised that the occupancy load of the OBC of the existing building is greater than what is anticipated by the Applicant.

27Ms. Friesen adopted Mr. Jordan’s testimony and expert opinion as part of her evidence.

28The Tribunal accepts the uncontested evidence of Mr. Jordan and adopted by Ms. Friesen in its entirety finds that the proposed ZBA conforms to both the DOP and WOP.

TRANSPORTATION AND PARKING

29Mr. Roovers provided expert opinion evidence with respect to Transportation Planning and Traffic Engineering. Mr. Roovers advised the Tribunal that the revised traffic brief (Exhibit 2 b), Tab 29) was in response to the comments from the Town and concluded the following:

a. Parking and Trip Generation – two parking demand studies were conducted at the McKinney Centre at peak time (Friday afternoon prayers) by personally interviewing each attending member. The survey allowed him to make certain conclusions on vehicle occupancy and parking requirements. All his assumptions were conservative to ensure conclusions related to required parking were adequate. Conclusions were the parking found on the site plan is sufficiently large enough to accommodate the typical weekly events on the proposed paved and gravel areas (total = 74 spaces). The adjacent grassed areas can accommodate parking for the occasional larger community event if needed;

b. Sightlines – distances were determined, and it was found that distances are more than the required sight distance to make safe turns from the site. He noted that the right-of-way may benefit from some trimming or removal of trees that may be causing a visual obstruction;

c. Vehicle Sweep Paths were found to be adequate for fire purposes; and,

d. A Transportation Demand Management Plan was prepared, making recommendations that membership be encouraged to carpool.

30Mr. Roovers outlined in evidence the content of a Traffic Brief completed for the purpose of this proceeding (Exhibit 2 b), Tab 31). He provided the following in evidence regarding Country Lane:

a. Country Lane is a north-south collector road under the jurisdiction of the Town. Traffic counts on three separate days found the maximum vehicles/day was 588 well below what Rural Collectors typically carry (or for that matter Rural Local roads).

b. Site Traffic - was estimated to be approximately 186 vehicles (in and out of the subject lands) assuming full membership.

c. Total Daily Traffic – was estimated and Mr. Roovers concluded that the proposed temporary use can be accommodated by Country Lane.

31Mr. Roovers is of the opinion that the proposed temporary use has sufficient parking to meet its needs; sight lines are sufficient for safe egress from the subject lands; fire vehicles are able to safely maneuver; and Country Lane can accommodate the increased traffic that is generated by the place of worship.

32The Tribunal accepts the uncontested evidence of Mr. Roovers in its entirety.

OTHER CONSIDERATIONS

Agency Comments

33Ms. Friesen, in her evidence, detailed staff efforts in receiving and taking into account all various agency and stakeholder comments in their consideration of this request. A complete reference of comments is found in Exhibit 2a), Tab 20. Review included the following:

a. Delegated Provincial Plan Review Responsibilities included review of the Natural Heritage Environmental Protection; Archaeological Potential; Aquifer Vulnerability and Potential Site Contamination;

b. Private Servicing – regarding well water and septic waste disposal systems was reviewed by the Region of Durham Health Department;

c. CLOCA was engaged throughout the review and implementation process. All their conditions incorporated in the Development Agreement;

d. the Town’s Public Works Department - with respect to Site Plan Engineering, Storm Water Management and Construction Management. All appropriate conditions were incorporated in the Development Agreement;

e. the Town’s Transportation and Parking Services – regarding parking supply; sightline analysis; auto turning requirements and Transportation Demand Management. The Appellant took all comments into considerations and received the following: “Based on our detailed review of the response letter and supporting documentation, Transportation Services staff have no additional comments at this time”;

f. the Town’s Fire and Emergency Services – requires an adequate water supply for fire fighting purposes and access requirements meeting their standards being provided. Evidence is a dry hydrant that has been installed on the subject lands and all appropriate conditions were incorporated in the Development Agreement; and,

g. Accessibility Advisory Committee – with respect to requiring an accessible parking space and a barrier free access to all buildings and amenities.

34The Appellants made much of the requirements of the OBC that, in their view, have not been or cannot be met including the structural integrity of the existing building should it be used as a place of worship even for a temporary period. No expert witnesses were called to confirm their assertions, but both had some experience with the OBC. Hence, the Tribunal makes special reference to the comment of the Town’s Building Services (incorporated in the Development Agreement):

A Change of Use Permit is required. The 2012 Ontario Building Code (OBC) and the Fire Code will be complied with.

35The Tribunal has no doubt that the Town has a very competent Building Services staff who are extremely well versed in the requirements of the OBC and will ensure all its requirements are met prior to the Change of Use permit is granted.

36Mr. Jordan (clarified by Ms. Meader) suggested, in his recommendations, to the Tribunal, that a Change of Use permit should be granted, conditionally granted or its receipt is imminent from the Town to the Durham Islamic Centre prior to the Tribunal issuing the Final Order. The Tribunal agrees.

Development Agreement

37The Town chose to use a Development Agreement (Exhibit 2 a), Tab 25) to ensure all requested conditions will be met. The Development Agreement between the Town and the Applicant has been executed. It is obvious that the Town has considerable experience in using such agreements to secure their interests in matters such as this. The agreement includes an extremely comprehensive list of standard requirements; various conditions of Town department and commenting agencies; requisite financial contributions and payments and an approved site plan. The agreement makes specific reference to the ‘Return to Original Use’ requirements.

38The Tribunal finds that the Town has followed a complete and comprehensive process in the review of the ZBA and has made full use of the appropriate tools at their disposal to ensure compliance with all salient matters.

CONCLUSIONS

39The Tribunal finds that the Town has well established planning policy with respect to the use of a temporary use by-law within its jurisdiction. Evidence demonstrated that the Town followed a careful, complete, and comprehensive planning review of the Application and found it met the criteria established for such a use in the WOP.

40The Tribunal finds that the Town has made full use of the appropriate tools available to ensure any changes to the subject lands are done properly, security has been received and in all relevant documents, it is clear the use is intended to be temporary. All commenting agencies were properly consulted, and their comments incorporated into a comprehensive development agreement that has been executed by the Town and the Applicant.

41The Tribunal appreciates Messrs. Richard and Gallagher’s forthright, honest, and detailed evidence. With this being said, it is important to note that the Appellants are required to show that there are authentic and compelling reasons upon which to overturn the Town’s Council decision to adopt this ZBA. The Tribunal finds that such reasons have not been established.

42The Tribunal accepts the evidence of Mr. Jordan and adopted by Ms. Friesen that the ZBA is consistent with the PPS; conforms to both the Growth Plan and Greenbelt Plan, conforms to the DOP and WOP. It agrees with Mr. Jordan’s request to make the Tribunal’s Final Order conditional on the Applicant receiving a ‘Change of Use Permit’ from the Town.

43The Tribunal accepts the evidence of Mr. Roovers that the proposed temporary use has sufficient parking to meet its needs; sight lines are sufficient for safe egress from the subject lands; fire vehicles are able to safely maneuver; and Country Lane can accommodate the increased traffic that is generated by the place of worship.

44The Tribunal is given no indication that the Town’s Building Services Department is anything but competent, well versed, and fully capable of ensuring all requirements of the OBC are met. The Tribunal agrees a ‘Change of Use Permit’ is an appropriate condition of approval of the ZBA. Hence, one may be confident that Town officials will ensure the 2012 OBC and Fire Code will be complied with.

ORDER

45Accordingly, the Tribunal Orders.

46THAT the appeal against By-law No. 7713-21 of the Town of Whitby is dismissed and the Tribunal approves in principle a revised By-law No.7713-21 as set out in Attachment 1 of this Order.

47THAT the final Order be withheld until such time as the Tribunal has been advised by the Town of Whitby and the Solicitor for the Durham Islamic Centre that:

a. a Change of Use Permit has been granted, conditionally granted or its receipt is imminent from the Town of Whitby to the Durham Islamic Centre.

b. the final form of By-law No. 7713-21 is received and approved by the Tribunal to be attached to the Final Order.

48THAT upon receipt of such written confirmation, the Final Order will issue.

49THAT the Counsel for the Durham Islamic Centre will advise the Tribunal no later than Monday, February 28, 2022, regarding the status of the Zoning By-law Amendment if this instrument has not been finalized.

50The Panel Member will remain seized for the purposes of the issuance of the Final Order and with respect to the Provisional Interim Orders set out above. In the event any matters arise, which are related to the implementation of this Interim Order, the Tribunal may be spoken to.

“Bryan W. Tuckey”

BRYAN W. TUCKEY MEMBER

Ontario Land Tribunal Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT 1

Town of Whitby By-law # 7713-21

Zoning By-law Amendment

Being a By-law to amend By-law # 1784, as amended, being the Zoning By-law of the Town of Whitby.

Whereas, the Ontario Land Tribunal has approved the passage of this By-law following a public hearing;

Now therefore, the Ontario Land Tribunal enacts as follows:

1. General

1.1. Schedule “B” to By-law # 1784 is hereby amended by changing the zoning from A to A-14 for the Subject Land shown on Schedule “A-1” attached to and forming part of this By-law.

1.2. Subsection 11 (h), Agricultural (A) Zone Exceptions to By-law # 1784, as amended, is hereby further amended by adding thereto the following Exception:

(h) EXCEPTIONS

EXCEPTION 14: A-14 4618 Country Lane

1. Notwithstanding the uses permitted in subsection 11(a)(ii), the temporary use of a place of worship shall be granted on the lands municipally known as 4618 Country Lane.

2. This By-law shall come into force on the date of the issuance by the Ontario Land Tribunal of its Order, dated______, 2021, approving this By-law.

3. This By-law shall expire three years from the date of the issuance by the Ontario Land Tribunal of its Order, dated _____, 2021, approving this By-law, unless the Council of the Corporation of the Town of Whitby provides an extension, by amendment to this By-law, to its expiry date.