Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 03, 2021
CASE NO(S).: PL210336
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Joseph Poulin
Subject: Minor Variance
Variance from By-law No.: 55-19
Property Address/Description: 9489C Road 509
Municipality: Township of North Frontenac
Municipal File No.: A04/21
OLT Case No.: PL210336
OLT File No.: PL210336
OLT Case Name: Poulin v. North Frontenac (Township)
Heard: November 17, 2021 by video hearing
APPEARANCES:
Parties
Counsel/Representative*
Township of North Frontenac (“Township”)
T. Fleming* S. Putnam*
Joseph Stephan King Poulin (“Appellant”)
Self-Represented
MEMORANDUM OF ORAL DECISION DELIVERED BY M. RUSSO ON NOVEMBER 17, 2021 AND ORDER OF THE TRIBUNAL
1This hearing before the Ontario Land Tribunal is an appeal under the Planning Act (the “Act”), s. 45(12).
2The Committee of Adjustment (the “C of A”) for the Township of North Frontenac (the “Township”) denied the Minor Variance Application of the Appellant, which precipitated the Appellant to exercise their statutory appeal rights prescribed under the Act.
3The subject property is located at 9489C Road 509 in the Township and within the County of Frontenac (the “County”). It is approximately 0.72 hectares in area and presently contains a single residential dwelling, two accessory storage buildings, and an outhouse.
4The Appellant had expanded a previously existing structure on the subject property to the single residential dwelling that exists presently. However, he had done so without permits or approval from the Township. During construction the Appellant was served with an Order to Comply by the Township Building Department on September 12, 2019, for the construction of the single residential dwelling without building permits or planning approvals.
5Subsequently, in attempting to obtain the necessary building permits, the requirement of Minor Variance was identified, and the Appellant applied to the Township’s C of A to obtain approval.
6The Minor Variance application was filed with the Township on January 7, 2021. On April 19, 2021 the C of A refused the application citing its reasons as follows:
The application as presented is not consistent with the PPS and does not meet the intent and purpose of the Township Official Plan or the intent and purpose of the Township Zoning By-Law. Based on the applicant’s refusal to provide the additional technical assessment recommended in the Baseline Environmental Assessment report dated August 13, 2020 from St. Lawrence Testing & Inspection Co. Ltd., planning staff cannot confirm that the development is desirable and appropriate for the subject property, or that the requested variance is minor in nature.
7On May 5, 2021 the Appellant filed the appeal as indicated above to the Tribunal.
Required Minor Variance
8The subject property requires relief from Section 3.27 c) ii. of the Township’s Zoning By-law No. 55-19.
9Section 3.27(c)(ii) states the following: Minimum Distance Separation, Influence Areas and Special Setbacks – Pits and Quarries. The influence area from a pit (which is the identified use of the adjacent neighbouring property) shall be 300 metres (“m”) measured from the property line of a sensitive land use and the license boundary of the pit. The minimum separation distance shall be 70 m measured from the lot line of the sensitive land use and the license boundary of the pit.
10Therefore, the Requested variance from this section is as follows:
Required minimum setback from the lot line and the license boundary of the pit: 70 metres;
Constructed dwelling setback approximately 12.2 metres (40 feet) [as measured during a site visit on March 30, 2021]
The variance request sought, 57.8 metres.
Statutory Tests Required
11The Tribunal is tasked to determine if the relief sought is consistent with Provincial interests as set out in the Provincial Policy Statement, 2020 (the “PPS”) and four tests as set out by the Act.
12More specifically, the Tribunal must determine if:
i. the variance is consistent with the PPS 2020?;
ii. does the variance meet the intent and purpose of the Township and County Official Plans (the “OPs”)?;
iii. does the variance meet the intent and purpose of the Zoning By- law?;
iv. is the variance minor in nature?;
v. is the variance appropriate and desirable?
The Hearing
13The Tribunal received one written request for Participant status from Darwyn Sproule, the abutting neighbour and owner of the gravel pit adjacent to the subject property.
14Hearing no objections from the statutory Parties, the Tribunal granted the request of Mr. Sproule to be a Participant for these proceedings and accepted his Participant statement provided.
15No further requests for status were brought forward making the Appellant and the Township the sole Parties on this matter.
16The Township advised the Tribunal that they intended on calling one witness and provided the Curriculum Vitae and Acknowledgement of Expert Duty form for Jennie Kapusta, in the Draft Book of Documents (which the Tribunal Marked as Exhibit 1).
17The Appellant advised the Tribunal that he would be self-represented at these proceedings and he had no objections to Ms. Kapusta being qualified to provide opinion evidence on the matter.
18Counsel for the Township had no objection that the Appellant provide factual evidence (in light of the Appellant not intending to call any other witness) but with no indication of his qualifications or experience, Counsel did ask that the Appellant’s testimony be confined to factual information and not opinion evidence.
19The Tribunal concurred with the requests of the Parties and Ms. Kapusta was duly affirmed and qualified to provide opinion evidence in Land-Use Planning and the Appellant was allowed to provide factual evidence.
Opinion Evidence
20Ms. Kapusta, currently employed with the Township as a Land-Use Planner and author of the Planning Report submitted to the Tribunal in Exhibit 1, Tab 24, adopted and relied on that Planning Report when providing evidence to the Tribunal at this Hearing.
21Ms. Kapusta’s primary concern with the proposal was the ability to determine the impact of the gravel pit on the residential use proposed and the reduction in the separation distance the Minor Variance is seeking relief from.
22The Appellant had provided an Environmental Assessment (the “EA”) to the Township as required (within Exhibit 1, Tab 22). However, in the opinion of Ms. Kapusta the EA’s findings and recommendations were quite clear, that additional measurements of sound and vibrations were required to determine impacts of the variance sought.
23Ms. Kapusta opined that the EA’s testing was only a “Baseline” (which she opined was also clearly evident in the EA’s opening text) during inactive operation of the adjacent gravel pit. Determining impacts of the variance required the testing during active operation of the gravel pit or mitigative strategies proposed by the consultant (with neither provided).
The PPS
24In the Opinion of Ms. Kapusta, the application is inconsistent with the PPS citing s. 1.1.5.1:
When directing development on rural lands, a planning authority shall apply the relevant policies of Section 1: Building Strong Healthy Communities, as well as the policies of Section 2: Wise Use and Management of Resources and Section 3: Protecting Public Health and Safety.
s.1.1.1(c):
avoiding development and land use patterns which may cause environmental or public health and safety concerns;
s. 1.1.3.4:
Appropriate development standards should be promoted which facilitate intensification, redevelopment and compact form, while avoiding or mitigating risks to public health and safety.
s.1.2.6.1:
Major facilities and sensitive land uses shall be planned and developed to avoid, or if avoidance is not possible, minimize and mitigate any potential adverse effects from odour, noise and other contaminants, minimize risk to public health and safety, and to ensure the long-term operational and economic viability of major facilities in accordance with provincial guidelines, standards and procedures.
s.1.6.6.4:
Where municipal sewage services and municipal water services or private communal sewage services and private communal water services are not available, planned or feasible, individual on-site sewage services and individual on-site water services may be used provided that site conditions are suitable for the long-term provision of such services with no negative impacts. In settlement areas, individual on-site sewage services and individual on-site water services may be used for infilling and minor rounding out of existing development.
At the time of the official plan review or update, planning authorities should assess the long-term impacts of individual on-site sewage services and individual on-site water services on the environmental health and the character of rural settlement areas. Where planning is conducted by an upper-tier municipality, the upper-tier municipality should work with lower-tier municipalities at the time of the official plan review or update to assess the long-term impacts of individual on-site sewage services and individual on-site water services on the environmental health and the desired character of rural settlement areas and the feasibility of other forms of servicing set out in policies 1.6.6.2 and 1.6.6.3.
25With the subject lands having applied for an individual on-site sewage system and the approval authority (South Frontenac Township) not yet having provided approvals, Ms. Kapusta opined, that the above policy applies and negative impacts (if any) also cannot be assessed by Township staff.
26Ms. Kapusta opined that the proposal as provided fails to demonstrate consistency with the PPS. In her opinion the proposal fails to meet the policies above and address environmental concerns and if any adverse impacts may arise or how they may be mitigated if present.
THE FOUR TESTS
Test one: meeting the intent and purpose of the Township and County OPs.
27Ms. Kapusta opined that the variance does not conform to the County OP. The evidence provided in support of her opinion for the County OP was focused on policy 2.1.2.2, Mineral Aggregates. This policy’s direction is to ensure that extraction occurs in an environmentally sound manner that adequately protects significant natural environment features and minimizes community disruption.
28Policy 4.2.1.5 speaks to individual on-site sewage systems, and their obligation to be safe and have no negative impacts. It was Ms. Kapusta’s opinion that with approvals not having been obtained by the Appellant, nor having demonstrated or provided evidence that the subject lands satisfy or fulfill this policy requirement, the proposal fails to conform with the intent and purpose of this policy.
29Policy 7.3.3, Human-Made Hazards speaks to the addressing and mitigation methods if required or necessary of gravel pit uses on adjacent lands.
30In the opinion of Ms. Kapusta, these County OP policies and mitigation of potential negative impacts on the subject lands have not been demonstrated, and therefore do not conform with the requirements of the County OP.
31Pertaining to the Township OP, Ms. Kapusta brought the Tribunal to s. 3.3, Buffering and Land Use Conflicts. In her opinion this policy and the assurances that adjacent lands do not create adverse effects or provide adequate buffering or mitigative strategies if required also have not been demonstrated or any adequate mitigation (if required) has not been proposed. In Ms. Kapusta’s opinion insufficient and incomplete test results have been provided, thus one is unable to determine conformity with the OP.
32Ms. Kapusta provided the Tribunal an explanation of s. 3.8.1 and s. 4.15.4 of the Township OP, Description of the Influence Area and Separation Distance. In her opinion this policy exists to provide where appropriate, adequate separation distance and mitigate potential adverse effects on incompatible land uses.
33With the adjacent lands being a gravel pit, the influence area is set at 300 m and the separation distance required for subject lands is 70 m from the dwelling structure to the property line. Ms. Kapusta in her testimony highlighted this, as there appeared to be some confusion with how to attain the 70 m calculation by the Appellant.
34On the adjacent gravel pit lands a 30 m setback does exist for the operator of the mineral extraction operation. However, that in the opinion of Ms. Kapusta is irrelevant in the calculation for the subject lands and the variance sought, which clearly indicates dwelling to property line be the points of measurement in her opinion. Township staff verified the dwelling distance to property line to be 12.2 m on its March 30, 2021 site visit.
35Ms. Kapusta opined that again, with the lack of demonstration and incomplete testing to properly assess if any negative impacts exist, the policy directives are not achieved and thus the variance fails to conform with the Township OP. This reinforced Ms. Kapusta’s opinion that the minor variance sought fails this test required by the Act.
Test two: meeting the intent and purpose of the Township Zoning By-law
36Ms. Kapusta did concede that the subject lands are zoned Hamlet (H) in the Township which allows for residential uses.
37However, conversely Ms. Kapusta opined the subject lands fail to meet the requirements of the Zoning By-law policy 3.27(c)(ii), that re-iterate the 70 m separation distance and 300 m influence area provided in the OP.
38Ms. Kapusta opined that failure to demonstrate and have sufficient testing to assess the impacts of the variance sought lead to her conclusion that the intent and purpose of the Zoning By-law is not met and thus fails the required test required to be satisfied by the Act.
Test three: Is the Variance minor and Test four: Is it desirable and appropriate
39Ms. Kapusta opined that as indicated above, failure to demonstrate and have sufficient testing and technical support to assess the impacts of the variance, creates a situation that the analysis required to determine if the test is minor or desirable and appropriate cannot be confirmed. Without that confirmation the prudent approach is that the variance requirements are not fulfilled and therefore fails the tests set out by the Act.
40In closing Ms. Kapusta provided her overall opinion to the Tribunal that with the variance being inconsistent with the PPS and failing the four tests set out by the Act, it is her professional opinion the appeal should be dismissed.
Factual Evidence of the Appellant
41The Appellant put forward to the Tribunal, that residential use is an allowable use, which was confirmed by Ms. Kapusta.
42The Visual Evidence in Exhibit 1 also highlighted that currently there exist numerous residential uses abutting the gravel pit, and many have existing dwellings closer than that proposed by the Appellant.
43The Appellant also put forward that the gravel pit has not been in use since his acquisition of the subject lands in 2018. He further referred to correspondence that confirmed that the adjacent gravel pit has been inactive for some time.
44In cross examination the Appellant conceded the correspondence he had referred to more accurately read “infrequent activity” opposed to the “not inactive” operation.
45Lastly, the Appellant closed by providing the Tribunal clarification that the Planning Report and Township inaccurately stated he was unwilling to provide a secondary or follow up EA. He sought to clarify to the Tribunal that the inability to provide a follow-up EA stemmed from the fact the gravel pit has been inactive and his attempts to contact the neighbour and potentially facilitate a secondary EA were never returned. It was the position of the Appellant that the current EA is indicative of what currently exists, and of what has existed for the very least, since his acquisition of the subject property in 2018.
FINDINGS and ANALYSIS
46Although the evidence has indicated that the gravel pit is infrequently in use and indeed inactive over the recent years, that does not preclude the pit operator from operating or increasing activity or use (with an active license -No. 624220). Therefore, the proposal must meet the obligations and requirements of Provincial interests and also County and Township OPs, as well as Zoning requirements.
47The Tribunal appreciates and places weight on the sentiments of Township staff, that were conveyed to the Appellant in correspondence (Exhibit 1, Tab 23) that speaks to the EA and the inactivity of the pit at this time, that reads:
While I understand from the report that the pit is inactive at this time (or use is infrequent), the author (of the EA) may be able to speak to what the impact would be if the pit were in operation (based on proximity of the licensed area to the proposed dwelling and type/volume of extraction permitted). The author may also be able to propose mitigation measures that could be put in place (e.g. retaining vegetation along the rear property line) to ensure public health and safety is addressed. The author may wish to review the pit license to determine maximum extraction potential and compare to similar operation to determine if there would be an impact (e.g. is blasting permitted, at peak operation 5 trucks would be in and out of the property which would be a noise compatible with a residential use.
48The Tribunal does concur with the submissions of Township Counsel that the obligation and burden to demonstrate consistency with the PPS and Conformity with County and Township OPs falls on the Appellant to provide this Tribunal evidence of such.
49The Act is also quite explicit to require that all four tests set against the relief sought by the minor variance must be passed. If one test is deemed to fail, the minor variance should not be supported.
50The Tribunal is satisfied with the evidence and the opinions provided by Ms. Kapusta that all four tests fail with the inability of the Appellant to demonstrate that adverse impacts will not occur or mitigative strategies to handle any impacts if they do occur.
51The Tribunal finds that the evidence heard and submitted by the Appellant for this Hearing is insufficient to support the appeal and the minor variance sought. However, the Tribunal does note, that failure at this time, does not preclude the Appellant from providing the necessary updates to the EA and continue dialogue with the Township and to resubmit a new application to the C of A, with emphasis by the Tribunal of the requirement for the Appellant to provide new evidence to support a new application. This submission was also respectively shared by Counsel for the Township at the conclusion of this Hearing.
52The Tribunal is tasked to adjudicate at this Hearing for the matter at hand and only that matter pertaining to the minor variance sought at this time and the evidence before it in relation to the Appellant’s dwelling. No evidence to why other dwellings exist on nearby properties and what distances were acceptable on those properties in relation to the gravel pit was provided. With its analysis of the written and oral evidence heard and having had regard to the participant statement provided, the Tribunal finds that the evidence provided by the Appellant fails to demonstrate the consistency and conformity required. The Tribunal is satisfied that the evidence of Ms. Kapusta is essentially uncontroverted and that the minor variance is inconsistent with the PPS and fails the four tests set out by the Act.
ORDER
53THE TRIBUNAL ORDERS that the appeal is dismissed, and the variance is not authorized.
“M. Russo”
M. RUSSO
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.