1918318 Ontario Inc. v. Peterborough (City), 2021 CanLII 129324

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 10, 2021

CASE NO(S).: PL210057

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 1918318 Ontario Inc.

Subject: Application to amend Zoning By-law No. 1997-123 – Refusal of Application by City of Peterborough

Existing Zoning: R.1,4h, R.2,4h Residential District

Proposed Zoning: SP.295 (F) Residential District with exceptions

Purpose: To permit an existing triplex and to recognize the property’s location on a flood plain

Property Address/Description: 793 Crawford Dr.

Municipality: City of Peterborough

Municipality File No.: Z2009

OLT Case No.: PL210057

OLT File No.: PL210057

OLT Case Name: 1918318 Ontario Inc. v. Peterborough (City)

Heard: November 23, 2021 by Video Hearing

APPEARANCES:

Parties

Counsel

1918318 Ontario Inc.

M. Kathleen Kinch, Jenna Khoury-Hanna

City of Peterborough

Alan Barber

MEMORANDUM OF ORAL DECISION DELIVERED BY SHARYN VINCENT ON NOVEMBER 23, 2021 AND ORDER OF THE TRIBUNAL

11918318 Ontario Inc. (“Appellant”) has appealed the refusal of an application to amend the zoning by-law applicable to lands known as 793 Crawford Drive, which, if granted, would have the effect of allowing the property and existing structure to be used as a triplex, whereas the current zoning permits a duplex dwelling unit. The third unit, occupying the basement, and which the Parties acknowledge has existed for many years contrary to the current zoning, was refused principally on the recommendation of Otonabee Region Conservation Authority (“ORCA”), a commenting agency providing input to City Council when considering all applications seeking to amend the zoning by-law. The request to amend the zoning by-law also seeks to amend two other zoning provisions, which reflect existing conditions: the east setback and a percentage of coverage attributable to surface the parking area. Neither of these two proposed amendments were contested.

2Based on an assessment by ORCA, utilizing the flood lines found in a 2014 modelling exercise titled The Lower Beyersville Flood Plain Mapping Update, September 2014 Final Draft, it was the position of ORCA, and adopted by the City, that the existing structure, would not have safe access in the event of a regulatory storm event prescribed under Ontario Regulation No. 167/06 (“O.Reg. 167/06”).

3The Tribunal was advised that ORCA’s position relies upon the prohibition in s. 3.1.2. c) and d) of the Provincial Policy Statement, 2020 (“PPS”), which states that:

Development and site alteration shall not be permitted within:

c) areas that would be rendered inaccessible to people and vehicles during times of flooding hazards, erosion hazards and/or dynamic beach hazards, unless it has been demonstrated that the site has safe access appropriate for the nature of the development and the natural hazard

d) a floodway regardless of whether the area of inundation contains high points of land not subject to flooding.

4The language and direction of the Growth Plan for the Golden Horseshoe (“GP”) in s. 2.2.1.2(e) states that development generally be directed away from hazard lands, which are defined as property or lands that could be unsafe for development due to naturally occurring processes. The PPS, in this instance, establishes the more onerous test, and therefore prevails.

5The modelling exercise conducted in 2014, projects that Crawford Drive, a fully developed residential street in an established neighbourhood, would be subject to a depth of flood waters in excess of 0.3 metres (“m”), and thereby, pursuant to the ORCA mandate and the ORCA Watershed Planning and Regulation Policy Manual, rendered inaccessible to people and vehicles.

6The Appellants take the position that the 2014 flood lines have never been formally adopted, have not been incorporated into the City’s Official Plan to amend the existing Schedule C thereto, which otherwise depicts flood lines, and therefore, are not in force or effect. The flood lines on Schedule C do not capture the subject property.

7The Tribunal was in receipt of a joint document book and heard evidence from six witnesses: Kevin Duguay, a registered professional planner, who was qualified to give opinion evidence in matters of land use planning, and Kenneth Smith, a professional engineer, who was qualified to assist the Tribunal with opinion evidence in areas related to water resource management and flood plain modelling, both on behalf of the Appellant. Mike Cahill, one of the co-owners, gave factual evidence with respect to the physical state of the property, the extent of the renovations carried out pursuant to issued permits since acquiring the property in 2018, and the insurance claim history on the subject property. Brad Appleby, a registered professional planner, Matt Wilkinson, the ORCA planner and Neil MacFarlane, the ORCA engineering technologist, were all qualified to assist the Tribunal with opinion evidence in their respective areas of land use planning and flood plain regulation, on behalf of the City.

AREA CONTEXT AND EVIDENCE

8Crawford Drive runs generally east/west, and is paralleled by Stocker Road to the south, which bends at both ends to intersect with Crawford Drive. There was visual evidence presented by the planning witness, Mr. Duguay, illustrating that there are 49 detached residential buildings constructed in this area, circa the early 1970’s pursuant to the zoning, which permits both single detached and duplex dwelling units. It was the uncontested evidence of Mr. Duguay that subsequent to construction, six purpose-built duplexes, pursued and were granted site specific zoning permissions to incorporate a third dwelling unit between the years 2003 and 2014. Based on the field work and observations of the witness, six other existing buildings, including the subject property, display exterior evidence, such as mail boxes or utility metres, to indicate the existence of a third unit.

9The Tribunal heard evidence that, in 2004, the City of Peterborough experienced a significant storm event and associated flooding, which both engineering witnesses acknowledged to be a lived experience in the community approximating, within 10%, the flooding impacts that could potentially be expected to be realized in the event of a regional storm event on this watershed.

10The event was brought into evidence as being significant for a number of reasons:

i) It was the testimony of Mr. Cahill that there was no sign of basement flooding at the subject property during the renovation, and in fact, a furnace dating at least 30 years in age was removed in the renovation, but had otherwise been functioning unaffected by the 2004 storm;

ii) There were no insurance claims made for flood damage over the history of coverage and claims reviewed in support of the anecdotal observations that the building had not sustained prior flood damage;

iii) Data collected at that time, in July 2004, through annotated photographs of high water marks was incorporated in the ORCA Final Draft 2014 document and was interpreted by the engineering witness of the Appellant both as a basis for ‘ground truthing’ the model, and data source to conduct localized testing of the modelling exercise being relied upon by ORCA. This exercise was undertaken in furtherance of demonstrating whether pursuant to s. 3.1.2 c) of the PPS, 793 Crawford has “safe access appropriate for the nature of the development and the natural hazard” despite the fact that the enforceability of the 2014 flood lines is in dispute in this proceeding.

iv) It was the evidence of the professional engineer, on behalf of the Appellant, that “Appendix F of the Lower Beyersville Creek Flood Plain Mapping Update (ORCA, 2014), includes photos of Beyersville Creek south of Crawford Drive during the July 2004 event, and reports a high water mark in red text that is approximately 0.25 m lower than the projection generated by the 2014 modelled elevation (Station 1219.936); this provides further evidence that the 2015 Draft Flood Plain may overestimate the potential flood depths in this area.”

v) This witness also directed the Tribunal to Figure 1.2 on page 4 of the 2014 Draft Mapping Update, a photo of flooding of the July 2004 on Crawford Drive at the current entrance to Costco ((Station 1256.944) which is located north west of the subject property. While the model projects a depth of at least 0.3 m across the whole road, the photo shows a depth of nearly 0.0 m at the centreline, thereby providing further evidence that the Draft flood plain may over estimate potential flood depths in this area.

vi) The engineering witness for the City confirmed that there was no other local data available to ground truth to the 2014 modelling projections.

11The City brought no evidence to crystalize the status of the 2014 final Draft report and associated flood lines, other than to assert that pursuant to s. 2.2 of the Conservation Authority Act, the mapping was filed at the head office of ORCA. No Council resolution or minutes from the Board of the ORCA or notice of decision with respect to an amendment to the Official Plan was proffered in support of the operating premise of the City through its delegated representative of ORCA, that the flood lines had been a subject of or to any formal approval process.

12The conclusion of the 2014 final Draft report states as follows:

these regulatory flood plain map sheets will be a guiding document to identify areas regulated under O. Reg. 167/06 and should be used for all municipal land use planning and development approval under the Planning Act. It is recommended that the flood plain be implemented into the applicable Official Plan and Zoning By-law by the City of Peterborough. [emphasis added]

ANALYSIS AND FINDINGS

13In the absence of any binding or compelling evidence to the contrary, the Tribunal finds that the subject lands are not located within, and therefore are not subject to, the flood plain designation as depicted by Schedule C of the Official Plan.

14Section 4.6 of the Implementation and Interpretation policies of the PPS, which stipulate that ‘the Official Plan is the most important vehicle for implementation of this Provincial Policy Statement. Comprehensive, integrated and long-term planning is best achieved through official plan.” The authors of the Draft Mapping Update, which bears the title page endorsement of both ORCA and the City of Peterborough, specifically recommend that the mapping be implemented into the applicable Official Plan and Zoning By-law both of which would be of a necessity following the public processes and the concomitant approval processes.

15There is no evidence before the Tribunal that this standard of review has been met to support the applicability of the 2014 flood lines as being lawfully determinative to affect the proposed rezoning of the existing structure at 793 Crawford Drive. Therefore, the site does not fall within the designated hazard lands, flood plain or floodway for the purposes of determining consistency with the PPS, conformity to the GP, or applicable provisions of the Official Plan.

16The Tribunal is, however, bound to consider from a public interest perspective, whether, in the alternative, the Tribunal satisfied that the ground proofing analysis undertaken by Mr. Smith, pursuant to the PPS, ‘demonstrate[s] that the [subject] site has safe access appropriate for the nature of the development and the natural hazard’.

17The Tribunal has weighed the evidence and finds that Mr. Smith’s logic was measured and reasonable and was executed using practical and discernible methodologies utilizing the only realistic, local comparative data. The Tribunal is persuaded by the evidence of Mr. Smith that the conclusions of the ground proofing exercise, which formed the basis of his professional opinion that the model could be over estimating the potential flood depth that could be realized on Crawford Drive, is consistent with s. 3.1.2.c) of the PPS. This finding takes into consideration that perhaps it is uniquely relevant and distinguishable in the facts, that there will be no change to the footprint or use of the existing structure that have historically existed on the site and through the 2004 storm event, and therefore, the conclusion with respect to safe access is appropriate for the “‘nature of the development and natural hazard”.

ORDER

18The Tribunal therefore allows the appeal and withholds its final order until the Tribunal is in receipt of the necessary amending by-law in final form, which will permit 793 Crawford Drive to be used as a triplex, having an easterly side yard setback of 1 m, an open parking area equal to 50% maximum, and subject to the suffix “F” to indicate that the property is located in proximity to a flood plain.

19The amending by-law shall be received prior to February 28, 2022, failing which the Tribunal will reconvene the hearing to resolve the final form of the amending by-law.

“Sharyn Vincent”

SHARYN VINCENT

VICE-CHAIR

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.