Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 02, 2021 CASE NO(S).: PL200083

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

Applicant and Appellant: 1968223 Ontario Limited Subject: Application to amend Zoning By-law No. 1-Z2014 - Refusal or neglect of Norfolk County to make a decision Existing Zoning: Development (D) Proposed Zoning: Residential Type (R1-B) and Residential Type 2 (R2) Purpose: To permit development of 160 dwelling units. Property Address/Description: 81 Dover Mills Road Municipality: Norfolk County Municipality File No.: 28TPL2018312 LPAT Case No.: PL200083 LPAT File No.: PL200083 LPAT Case Name: 1968223 Ontario Limited v. Norfolk (County)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 1968223 Ontario Limited Subject: Proposed Plan of Subdivision - Failure of County of Norfolk to make a decision Purpose: To permit development of 160 dwelling units. Property Address/Description: 81 Dover Mills Road Municipality: Norfolk County Municipality File No.: 28TPL2018312 LPAT Case No.: PL200083 LPAT File No.: PL200084

Heard: May 3, 2020 by video hearing

APPEARANCES:

Parties	Counsel
1968223 Ontario Limited	N. Smith
Norfolk County	P. Boutis

MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID L. LANTHIER AND K.R. ANDREWS ON MAY 3, 2021 AND INTERIM ORDER OF THE TRIBUNAL

BACKGROUND

11968223 Ontario Limited (the “Applicant/Appellant”) made Applications for approval of a Zoning By-law Amendment (“ZBLA”) and a Draft Plan of Subdivision (“Draft PoS”) to allow for a subdivision development at 81 Dover Mills Road within the geographic Town of Port Dover in Norfolk County (the “County”). According to Property Identification Number (PIN) 50239-028 (LT), the site is legally described as Pt Lt 11 Con 2 Woodhouse as in NR584289: Norfolk County (the “Subject Lands”). The County made no decision with respect to the Applications and the Applicant/Appellant accordingly filed appeals with respect to all Applications.

2A Case Management Conference (“CMC”) was held on October 23, 2020, and these matters were set down for a 10-day hearing to commence on April 26, 2021. Subsequent to the CMC, the Tribunal was advised that a resolution of all issues had been reached and a request was made to the Tribunal to schedule a Settlement Hearing conducted via video. Accordingly, a Settlement Hearing was scheduled for May 3, 2021.

3In an order dated February 12, 2021, three participants were granted status in these proceedings, Bryan Kerman, Cindy Dell and Heather Easton. All three participants submitted written statements within the required timelines.

4For the reasons that follow, the Tribunal allows the Appeals, in part, and approves the proposed ZBLA and Draft PoS with Conditions but will withhold issuance of the Final Order upon the stipulated prerequisites set out herein.

THE HEARING AND TERMS OF SETTLEMENT

5The settlement, and the evidence in support of the approval of the proposed ZBLA and Draft PoS with Conditions, were presented with the concurrence of all Parties.

6The Tribunal received planning evidence from Mr. Eldon Darbyson on behalf of the Applicant/Appellant, and Mr. Mohammad Alam on behalf of the County.

7Both Planners provided their curriculum vitae and an executed Acknowledgement of Expert’s Duty. Both were qualified by the Tribunal to provide expert evidence in the area of land use planning and the Tribunal received the benefit of their affidavits and oral testimony at the hearing (Mr. Darbyson and Mr. Alam are hereinafter collectively referred to as “the Experts”).

8The following documents were marked as Exhibits for the purposes of this Settlement Hearing:

Exhibit 1: Executed Minutes of Settlement between all Parties dated April 21, 2021

Exhibit 2: Affidavit of Eldon Darbyson sworn April 21, 2021, with attached exhibits to the Affidavit, A to C

Exhibit 3: Affidavit of Mohammad Alam sworn April 21, 2021, with attached exhibits to the Affidavit, A to B

Exhibit 4: Written participant statement of Bryan Kerman

Exhibit 5: Written participant statement of Cindy Dell

Exhibit 6: Written participant statement of Heather Easton

9The Parties have also submitted the agreed upon final drafts of the proposed ZBLA (appended as Attachment 1 of this Decision and Order), Draft PoS (appended as Attachment 2 to this Decision and Order) and Draft Plan Conditions (also forming part of Attachment 2 to this Decision and Order, together with the Heritage Design Guidelines Terms of Reference appended as Attachment 3 to this Decision and Order) as a means of resolving all outstanding issues relating to the Applications and the Appeals.

10The Parties have mutually requested the Tribunal to withhold the issuance of the Final Orders with respect to each of the Appeals until such time as the prerequisite conditions agreed to by the Parties under paragraph 2(e) of the terms of the Minutes of Settlement have been satisfied, which provides as follows:

That final orders be withheld pending the County confirming that Council has adopted and budgeted for a technical solution to the lack of municipal services regarding water availability, thereby allowing the County to confirm that water can ultimately be committed and allocated for the development; whereafter final orders are to be issued, following confirmation of same by the County to the Tribunal.

11The County indicated that the prerequisite to the final Order should be resolved no later than December 15, 2021 and undertook to provide the Tribunal with a status update no later than the same date.

Evidence

12The Affidavit of Eldon Darbyson provided a comprehensive and detailed overview of the proposed Development, including both its physical context and policy context, as well as the terms of the settlement, the proposed draft instruments and draft conditions now presented for consideration by the Tribunal. Mr. Darbyson’s affidavit evidence was supplemented by oral evidence at the hearing in response to questions from the Tribunal, and in particular as it related to the Participants’ concerns, traffic considerations, heritage features related to the woodlot to the north of the development, and eventual water supply to the proposed homes.

13The Affidavit of Mohammad Alam essentially adopted the findings of Mr. Darbyson’s Affidavit from a planning standpoint. Mr. Alam also added details related to the water-servicing issues that the County is currently experiencing, and the County’s support of an agreement between the parties related to solving those issues.

Site Description and Neighbourhood Context

14The Site is within the Port Dover urban settlement area. The Subject Lands front onto the north side of Dover Mills Road and the west side of Cockshutt Road. A small portion of the Subject Lands have access to Prospect Street.

15Approximately 15 hectares (38 acres) of the Subject Lands are developable. The northerly portion of the Subject Lands are considered a significant woodlot and are not proposed for development. The Subject Lands are presently vacant and have traditionally been farmed.

16Several single detached dwellings exist along Prospect Street and Dover Mills Road.

17The lands located adjacent to the east and west of the Subject Lands are currently farmed.

18The Subject Lands are designated Urban Residential and are in the Lakeshore Special Policy Area according to the Norfolk County Secondary Plan.

The Development Proposal

19The purpose of the Application (as revised) is to permit the development of 144 single detached dwelling units and 16 semi-detached dwelling units for a total of 160 dwelling units. The Draft PoS was revised twice to respond to comments and concerns from County staff, neighbouring residents, and circulated agencies.

20The Application proposes to rezone the Subject Lands from Development Zone (D) to Urban Residential Type R1-B Zone to permit single detached dwellings, and to Urban Residential Type 2 Zone (R2) to permit semi-detached dwellings. Special provisions were proposed for reduction of exterior side yard setbacks for corner lots in order to facilitate good urban design, improve streetscape characteristics, and facilitate improved interaction between home residents and pedestrians passing by on the sidewalk. The lands designated Significant Woodlands and zoned Hazard Lands do not form part of the residential subdivision draft plan and shall be conveyed to the County.

21The design of the subdivision is based on the approval of the North Dover Mills Neighbourhood Planning Area which includes:

a. An east-west collector road connection between two adjacent properties in the planning area;

b. A stormwater management pond located to take advantage of an outlet to the north and to provide an opportunity for a communal pond with the future development of lands to the east;

c. A parkland block adjacent to the stormwater pond to add open space;

d. A network of sidewalks and pedestrian linkages to provide a safe environment suitable for active transportation;

e. A mix of housing types in the form of single detached dwellings and semidetached dwellings. (It is noted that the original submission included street townhouses which were removed due to local area resident objections); and

f. A network of roads to facilitate an efficient servicing and residential design.

Municipal Water-servicing Issues

22Port Dover has had a water shortage since 2018, with Council declaring a development moratorium in June 2019. According to the County, it has actively been considering solutions to increase supply, including considering an Inter Urban Water Supply (“IUWS”) strategy, which will address County wide water issues. The County may also be approving a solution that will address water capacity at the Port Dover Water Treatment Plant (“PDWTP”) as a stand-alone matter.

23According to the County, it is anticipating a report from Environmental and Infrastructure Services in May or June 2021, related to the IUWS options with a goal to approve a Water Supply Agreement with Haldimand County. A report for the PDWTP, as a stand-alone matter, is anticipated by Council in September. Depending on what solution(s) Council adopts, it anticipates the water supply will be available to permit developments to move forward in two to six years.

24It is noteworthy that the County’s Official Plan requires the County to defer planning applications when unallocated servicing capacity does not exist. Policy 8.9.3(a) states, in part, the following:

When unallocated servicing capacity does not exist for a proposed development, the County shall defer the processing of the planning application until capacity is available.

25According to the County, while no solutions have been adopted and budgeted for by it related to water-servicing, it does anticipate that this will be resolved in 2021. Once this has been confirmed, the County supports issuance of final orders related to development of the Subject Lands.

26Regarding Phase One of the proposed development (referred to as “Part 4” in the draft Zoning By-law Amendment), the County also supports as an interim, a temporary measure, the use of a private water supply, anticipated to be cisterns, for the limited number of homes to be built in that phase (12 homes). Phase One is still dependant on confirmation of Council’s approval of a budgeted water solution; however, the County supports it being allowed to proceed before any actual implementation of the water-services expansion. The other phases of the development will not be permitted to proceed until actual public water capacity is available and can be allocated.

Planning Opinions − Provincial Policy Statement

27Both Experts for the respective parties shared essentially the same planning opinions, with Mr. Aman having testified that he had reviewed Mr. Darbyson’s affidavit and agreed with the opinions expressed therein related to planning matters.

28Mr. Darbyson identified the relevant matters of provincial interest in s. 2 of the Planning Act (the “Act”) and opined that the Development Proposal is consistent with the Provincial Policy Statement 2020 (“PPS”), conforms with the Norfolk County Official Plan (“OP”) and Lakeshore Special Policy Area Secondary Plan, and otherwise has sufficient regard to the matters of provincial interest.

29As it relates to the PPS specifically, the Experts opined that the proposed development is consistent by being located an urban area and will contribute to the long-term prosperity and social well-being of Port Dover and Norfolk County. They further opined that the development is consistent by, among other reasons, being designed to cater to various incomes and contribute to the range of housing types in Port Dover, offering parkland and pathways for recreation, accomplishing a desirable degree of intensification in a relatively compact form, and taking advantage of existing municipal services in the area (noting that water-service availability has yet to be formally confirmed).

30The Experts further noted no environmental or public health and safety concerns, the proposed development is located outside of flood plains with a planned stormwater pond, it includes roads and sidewalks proposed to facilitate transportation, including connections to Prospect Street and Dover Mills Road, as well as additional linkages along a future east-west collector road that may service future development of adjoining lands.

31The Experts both agreed that the existing water-service issues will be adequately addressed through the conditions and related temporary measures agreed to by the parties, including the holdback of this Tribunal’s final order pending the County confirming that Council has adopted and budgeted for a technical solution to the lack of municipal water-services.

Planning Opinions − OP

32The experts opined that the development proposal conforms to applicable goals objectives and policies of the County OP, including those relating to:

1. Protecting the Natural Environment
2. Maintaining and Enhancing the Rural and Small-Town Character
3. Maintaining a High Quality of Life
4. Upgrading and Expanding Infrastructure
5. A Well Governed, Well Planned and Sustainable County

33In so doing, the Experts highlighted: the preservation of the natural heritage features of the Subject Lands; support from the local conservation authority; no anticipated effect on groundwater; establishment of streetscaping, parkland and pedestrian linkages; connections to existing and future roads; compact design for efficient use of lands; as well as public consultation that was done and which resulted in revisions to the plan to satisfy various stakeholders. The development plan also provides for the necessary assessment to be done in order to determine the presence of any archeological resources.

34The Experts also noted, in the context of conformity with the OP, how the plan incorporates the County’s ongoing efforts to address water capacity issues, and final approvals for the various phases will be contingent upon the incremental resolution of those issues.

Planning Opinions − Lakeshore Special Policy Area Secondary Plan

35The Experts opined that the development proposal conforms with the Lakeshore Special Policy Area Secondary Plan for much of the same reasons stated above regarding the OP. In addition, site specific heritage guideline requirements are proposed as a condition of the development proposal, and the area school board indicated that no new school was required as a result of the proposal.

36Mr. Darbyson noted that only residential uses are contemplated for Phase One of the Plan; however, that will not preclude the development of employment, commercial, recreational, or institutional uses in the other phases of the neighbourhood planning area.

Planning Opinions – Plan of Subdivision

37The experts opined that the development proposal has sufficient regard for the matters listed in s. 51(24) of the Act, including conformity with the County OP. Mr. Darbyson provided a fulsome account of each of the enumerated criteria of that section, together with his commentary. The factual basis identified in support of these findings are again similar to those identified by the Experts in support of their opinion that the development proposal is consistent with the County’s OP.

38The Experts also opined on the Draft Plan Conditions as they are presented to the Tribunal, and they conclude that they are reasonable and otherwise meet the tests set out in s. 51(25) of the Act.

ISSUES AND FINDINGS

Zoning By-law

39In considering the ZBLA Application and Appeal, the Tribunal must have regard to those matters of Provincial Interest set out in s. 2 of the Act, and must be satisfied, pursuant to s. 3(5), that the draft instruments, as they will permit the proposed Development, are consistent with the PPS. The ZBLA must also conform to the County OP and the Lakeshore Special Policy Area Secondary Plan, inclusive of those policies relating to water capacity, and represent good planning in the public interest.

40In considering these issues and determining this matter, the Tribunal must also have regard to any decision of the Council for the Municipality as it relates to the ZBLA, including its recent decision to approve the proposed settlement and ZBLA, and also to the supporting information and material that was before Council in making such decisions.

41The Tribunal, upon the Experts’ evidence, concludes that the proposed ZBLA is consistent with the policies of the PPS that apply to the Development, and conforms to the County OP and Lakeshore Special Policy Area Secondary Plan. It is the finding of the Tribunal that the ZBLA, as it will enable the Development, generally represents good planning in the public interest.

Draft Plan of Subdivision

42The issue to be determined by the Tribunal, under this s. 51(34) appeal, is whether the proposed Draft PoS, with such Draft Plan Conditions that may be required to effectively implement the draft plan, have due regard for the criteria set out in s. 51(24) of the Act. Subject to such site-specific issues that may arise within the enumerated criteria, and in addition to the other specific criteria set out in the subsection, and the requirements of s. 3(5) of the Act, the Tribunal, in considering the Draft PoS, must: have regard for matters of provincial interest set out in s. 2 of the Act; ensure consistency with the PPS; be satisfied as to the conformity of the Draft PoS to the Growth Plan and the County OP; whether the Draft PoS conforms, as well, to adjacent plans of subdivision if any; that the Draft PoS is not premature and is in the public interest; that the Site is suitable for the proposed draft plan; and that the PoS, with the Draft Plan Conditions, represents good planning. The Tribunal must also have regard to the materials and information before Council.

43With respect to the proposed Draft Plan Conditions, under s. 51(25) of the Act, the Tribunal must also be satisfied that the Conditions are appropriate and reasonable, having regard to the nature of the proposed PoS, and thus: are causally related to the subject matter of the subdivision application; are achievable in that they can be satisfied by the Applicant/Appellant; represent an orderly means of implementing the Draft PoS and address all necessary pre-requisites to the draft plan and the application that is before the Tribunal; and represent good planning in the public interest as they will implement and permit the proposed Draft PoS.

44The Tribunal finds that the proposed PoS, with the recommended Draft Plan Conditions, is consistent with the PPS, conforms to the policies contained in the County OP, the Lakeshore Special Policy Area Secondary Plan and the Growth Plan, and it is also in compliance with the performance criteria set out in the applicable zoning by-law as amended by the ZBLA. The Tribunal also concurs with the Experts, upon the evidence provided, that the PoS addresses the criteria set out in s. 51(24) of the Act.

45With respect to the proposed Draft Plan Conditions, under s. 51(25) of the Act, the Tribunal finds that the Conditions are appropriate and reasonable, having regard to the nature of the proposed PoS, are causally related to the subject matter of the PoS; are achievable in that they can be satisfied by the Applicant/Appellant; represent an orderly means of implementing the PoS and address all necessary pre-requisites to the draft plan and the application that is before the Tribunal. The Tribunal accordingly finds that the Conditions represent good planning in the public interest as they will implement and permit the proposed Draft PoS.

46As a result of these findings, and upon all of the evidence presented, the Tribunal finds that the PoS, with the Draft Plan Conditions, has regard for all matters of Provincial Interest identified in s. 2 of the Act, represents good land use planning, and should be approved. The Tribunal, in reaching this conclusion, has had regard for the information and material that was before Council, as it has approved the settlement as it has now been presented at this hearing.

Participant Submissions

47The Participants of this matter, Bryan Kerman, Cindy Dell and Heather Easton, submitted written submissions. While the Participants’ submissions touched on a number of issues, including environmental issues, water supply, water and flooding concerns, heritage and possible archaeological implications, and objections to townhouses and/or semi-detached dwellings, all three were seemingly primarily concerned about potential traffic issues caused by the proposed development.

48In light of the Participants’ concerns, the Tribunal made specific inquiries to the planners at the hearing on these respective issues of concern, and traffic in particular. Upon the responses to this questioning, the Tribunal is satisfied that the Participants’ issues of concern have been adequately addressed by the parties and the proposed development plan.

49On the subject of traffic specifically, and referencing the concerns expressed by the Participants, upon inquiry from the Tribunal, Mr. Darbyson referenced the reports within the Municipal Record filed with the Tribunal and confirmed that the Applicant/Appellant retained RC Spencer Associates Inc, Consulting Engineers, to provide a Traffic Impact Study in support of the proposed development. The conclusion was that “[t]he proposed development should not adversely affect existing or future traffic operations within the study area.” As noted by counsel for the County, the Study examined a very large area and determined that there were no issues and recommended only that monitoring of certain intersections be conducted, which is to occur. This conclusion of the Traffic Consulting Engineers is uncontested, supported by the evidentiary record before the Tribunal, and accepted by the planners in support of their opinions and recommendations to the Tribunal. The Tribunal, therefore, likewise accepts the conclusions and has accordingly made the findings set out above.

50While it is understandable that neighbours of the proposed development might be concerned about such issues, and potential traffic impacts in particular, those concerns are not supported by the evidence presented to the Tribunal in this hearing and amount only to general apprehensions, particularly with respect to traffic implications arising from the proposed development.

Summary

51Upon all of the evidence, including the uncontroverted evidence provided by the Experts, and with their findings, and for the reasons indicated, the Tribunal will accordingly allow the Appeals in part and will approve the ZBLA at Attachment 1, and the revised Draft PoS, subject to those Conditions of Draft Plan Approval, as set out in Attachment 2, including the Heritage Design Guidelines Terms of Reference at Attachment 3.

52The Parties have requested that the Tribunal withhold the issuance of the Tribunal’s Final Orders with respect to each of the Appeals until such time as certain prerequisites agreed to by the Parties under the terms of the Minutes of Settlement have been satisfied.

53Specifically, the Minutes of Settlement between the Applicant/Appellant and the County request that the Final Orders be withheld “pending the County confirming that Council has adopted and budgeted for a technical solution to the lack of municipal services regarding water availability, thereby allowing the County to confirm that water can ultimately be committed and allocated for the development”. The Tribunal has no difficulty with the proposed prerequisite as submitted by the Parties, as it is a crucial underpinning to the required conformity with policies relating to water supply. Accordingly, the Final Order will be withheld by the Tribunal until it is advised that the prerequisite has been satisfied.

INTERIM ORDERS

Zoning By-law Amendment

54Subject to the conditional withholding of the Final Order as set out in paragraph 57 below, the Tribunal provisionally orders that the Appeal relating to the amendment of Zoning By-law No. 1-Z2014, pursuant to s. 34(19) of the Act, is allowed in part, and the City is directed to amend Zoning By-law No. 1-Z2014 as set out at Attachment 1 to this Decision and Order.

Draft Plan of Subdivision

55Subject to the conditional withholding of the Final Order as set out in paragraph 57 below, the Tribunal provisionally orders that the Appeal is allowed, in part, and the Draft Plan of Subdivision prepared by G. Douglas Vallee Limited and certified on November 13, 2018, on lands legally described as Pt Lt 11 Con 2 Woodhouse as in NR584289: Norfolk County, appended to this Decision and Order at Attachment 2, is approved subject to the Draft Plan Conditions also set out in Attachment 2, including the Heritage Design Guidelines Terms of Reference at Attachment 3 to this Decision and Order.

56Subject to the conditional withholding of the Final Order as set out in paragraph 57 below, the Tribunal also provisionally orders that pursuant to subsection 51(56.1) of the Act, the County shall have the authority to clear the Conditions of Draft Plan approval and to administer final approval of the Plan of Subdivision for the purposes of subsection 51(58) of the Act. In the event that there are any difficulties implementing any of the Draft Plan Conditions, or if any changes are required to be made to the Draft Plan of Subdivision, the Tribunal may be spoken to.

Interim Orders to Become Final Orders

57The provisional Interim Orders of the Tribunal set out in paragraphs 54 to 56 above shall be withheld until such time as the Tribunal is advised in writing by the Parties, jointly, that Council has adopted and budgeted for a technical solution to the lack of municipal services regarding water availability, thereby allowing the County to confirm that water can ultimately be committed and allocated for the development, in accordance with paragraph 2(e) of the Minutes of Settlement executed by the parties and dated April 21, 2021.

58Upon receipt of such written confirmation, the Final Order will issue.

59The Panel Members 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.

60If the Parties do not provide confirmation that the prerequisite set out in paragraph 57 above has been satisfied, and request the issuance of the Final Order, by Wednesday, December 15, 2021, the Parties shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and issuance of the Final Order by the Tribunal. The Tribunal may, as necessary, arrange the further attendance of the Parties by telephone conference call to determine the timelines for the issuance of the Final Order and such further follow-up as may be required to have the Final Order issued by the Tribunal.

“David L. Lanthier”

DAVID L. LANTHIER VICE-CHAIR

“K.R. Andrews”

K.R. ANDREWS 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.