Lord v. North Frontenac (Twp.), 2021 CanLII 56420

Ontario Land Tribunal / Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 22, 2021

CASE NO(S).: PL200029

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

Appellant: Brett Lord Subject: By-law No. BL 97-19 Municipality: Township of North Frontenac LPAT Case No.: PL200029 LPAT File No.: PL200029 LPAT Case Name: Lord v. North Frontenac (Twp.)

Heard: April 29, 2021 by Video Hearing

APPEARANCES:

Parties	Counsel*/Representative
Brett Lord	Self-Represented
Township of North Frontenac	Tony Fleming* and Spencer Putnam*
Smart’s Marina Ltd.	Jennifer Savini*

DECISION DELIVERED BY S. BRAUN AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The appeal before the Tribunal is brought pursuant to s. 34(19) of the Planning Act¹ (“Act”) by Brett Lord (“Appellant”), in relation to the decision of the Township of North Frontenac (“Township”) to approve a Zoning By-law Amendment (“ZBLA”) permitting a parking lot and storage compound at 804 Skootamatta Lake Road (the “subject property”). The Appellant’s property, at 815 Skootamatta Lake Road abuts the subject property, which is owned by Smart’s Marina Ltd. (“Applicant or Smart’s Marina”).

2The subject property is approximately three acres in size and is legally described as Part of Lot 26, Range B, Part 1 on Registered Plan 13R-17714, geographic Township of Barrie, in the Township of North Frontenac. It is located in the westerly part of the Township of North Frontenac on a municipally maintained road (Skootamatta Lake Road) in Cloyne, Ontario.

3The properties to the east, west and south of the subject property along Skootamatta Lake Road are mainly rural residential, with many single detached homes occupied by both permanent and seasonal residents. The lands north of the subject property are wooded and undeveloped. There are no commercially zoned properties in the immediate area and the subject property is located less than one kilometre (“km”) by Township Road to Highway 41, which is a major north-south corridor. It is also less than two km away from the Applicant’s business, Smart’s Marina, at 1018 Smart Road.

4The impugned ZBLA (No. 97-19) amends Township of North Frontenac By-law No. 55-19, to rezone the subject property from Rural (R) to General Commercial Exception Zone 5 (GC-X5) with permitted uses being limited to a Storage Compound².

5The Applicant proposes to develop an open parking lot and storage compound (“compound”) to be used solely for the storage of boats, trailers and other recreational vehicles. The ZBLA limits the use of the subject property to a storage compound only and Public Council Minutes of October 19, 2019 (Exhibit 1, Tab 10) indicate the Applicant confirmed there will be no onsite business activities beyond the storage of vehicles and no public access to the subject property, which will be gated in order to limit access to Smart’s Marina staff only.

6No buildings or waste disposal sites are proposed to be erected and there is no requirement for water or sanitary servicing. The compound is to be located on a portion of the subject property formerly occupied by a dwelling, which has already been removed. The existing entrance to the subject property on Skootamatta Lake Road will be used for access to the compound.

Background/History

7In advance of the hearing, Case Management Conferences (“CMCs”) were held and party status was granted to the Applicant. The parties also co-operated to compile a Statement of Agreed Facts which, inter alia, provided a chronology of the ZBLA application, briefly summarized below:

• September 3, 2019 – Applicant submits complete ZBLA application seeking to rezone one parcel of land from the Rural Zone to General Commercial Exception Zone to permit a storage compound;
• September 27, 2019 – Notice of Public Hearing issued;
• October 18, 2019 – statutory public hearing regarding the proposed ZBLA at which time a planning report from the County Community Planner (dated October 11, 2019) is received, along with comments from the public. A supplementary planning report is to be prepared to include the comments received;
• October 30, 2019 – Mississippi Valley Conservation Authority (“MVCA”) and Township Public Works Manager are contacted by County’s Manager of Community Planning for comment;
• November 13, 2019 – Planning report is prepared by the County’s Manager of Community Planning which incorporates comments from the public and MVCA. A determination from the Public Works Manager remains outstanding;
• November 22, 2019 – Council receives the above planning report and hears comments from both the Manager of Community Planning, the Public Works Manager and the Applicant. After three readings, the ZBLA is passed;
• November 25, 2019 – Notice of passing of Amending By-law is sent out;
• November 28, 2019 – Appeal is filed

THE HEARING

Witnesses

8At the hearing, the following three individuals were qualified by the Tribunal to provide independent opinion evidence in their respective fields of expertise: Darwyn Sproule, Public Works Manager (North Frontenac Township) - public works management and civil engineering; Megan Rueckwald, former Manager of Community Planning (County of Frontenac) – land use planning; and Tracy Zander, Owner/Principal Planner (ZanderPlan Inc.) – land use planning.

Positions of the Parties

9Mr. Lord raised a number of concerns in relation to the proposed compound, largely echoing public comments received in respect of same in October 2019. He argued neighbouring properties would not be protected from adverse impacts, including stormwater and drainage; visual aesthetics; increased traffic; and environmental hazards.

10Mr. Lord argued the proposed compound is not compatible with surrounding land uses, is not compliant with the North Frontenac Township Zoning By-law, does not conform to the County of Frontenac Official Plan (“COP”) and the Township of North Frontenac OP (“TOP”) and is inconsistent with the 2020 Provincial Policy Statement (“PPS”).

11He also raised concerns with respect to a lack of fairness in the process leading to what, in his view, amounted to a premature and inappropriate approval by Council of the ZBLA on November 22, 2019. He submitted that the proposed compound does not represent good land use planning, is not in the public interest and requested that the Tribunal set aside the ZBLA.

12Counsel for The Township and for the Applicant submitted that the proposed compound is a compatible land use in this area; that it meets or is capable of meeting any and all required performance standards in the North Frontenac Township Zoning By-law; that it conforms to both the COP and TOP; is consistent with the PPS and overall, represents good land use planning and is in the public interest.

13It was submitted that all commercial properties, including the proposed compound, are subject to a Township Site Plan Control By-law (No. 08-17) and all concerns raised in the context of this appeal are matters, which will be addressed prior to final site plan approval. The Tribunal’s attention was drawn to TOP policy 4.5.2 G:

Site plan control shall apply in governing the massing and layout of buildings and storage areas, waste disposal areas, access, parking and loading, lighting, drainage, utilities and services, landscaping for any new commercial or industrial and for extensions to existing uses.

The Tribunal’s attention was also drawn to TOP policy 3.3 (Buffering and Land Use Conflicts):

Where land uses may create a land use conflict or are incompatible with each other or may potentially lead to adverse effects, buffering may be required. The intent of this Plan is to require that matters of land use incompatibility be addressed in the review of all planning applications and that buffering and/or mitigation is undertaken wherever required to avoid land use conflicts. Buffering may consist of a fence, open space, a berm, a wall, landscaping or plantings, a separation distance, an intervening land use that is different from the conflicting land uses but compatible with both, or any combination of these measures. Buffering may be imposed through the use of zoning or site plan control to achieve the goal of reducing or mitigating potential adverse impacts...

14Counsel for the Township noted the ZBLA passed on November 22, 2019, changes the zoning of the subject property and indicates “all other provisions of By-law No. 55-19 shall remain in effect”. He submitted that s. 3.5 of By-law No. 55-19 responds directly to concerns raised by Mr. Lord with respect to visual impacts:

(a) Where a lot is used for a primarily non-residential purpose in any Zone and the side or rear lot line abuts a residential use and/or portion of a street, the opposite side of which abuts a residential use, then a buffer strip along the abutting lot line(s) in the case of the primarily non-residential use shall be provided and maintained on the lot in accordance with the following provisions:

i) Where a buffer strip is required, it shall have a minimum width of 3 metres measured perpendicular to the lot line it abuts. The buffer strip shall only be required to visually obscure the area of land actually used by the non-residential use from the adjacent residential use;

ii) A buffer strip shall consist of a continuous, unpierced hedgerow of evergreens or shrubs, not less than 1.2 metres high at maturity or a 1.2 metres high berm or privacy fence or combination thereof provided the land is adequately obscured. The remainder of the strip shall be planted with shrubs, flower beds, grass or a combination thereof; and

iii) In all cases where ingress and egress driveways or walks extend through a buffer strip, it shall be permissible to interrupt the strip within 3 metres of the edge of such driveway or within 1.5 metres of the edge of such walk.

15It was further submitted that Council carefully considered the matter and the process followed throughout the history of the disputed application complied with all mandatory requirements of the Act, in that a public meeting was held, public comments/concerns were received/considered and ultimately, Council determined the concerns raised, including those argued by Mr. Lord at this hearing, were matters to be dealt with in the context of site plan control.

16Counsel for the Applicant noted a current need for seasonal storage of boats and recreational vehicles in this area, which is located in the heart of cottage country. She submitted that the proximity of the subject property to the Applicant’s business, the lake and Highway 41 make this an ideal location for the proposed compound and further submitted that the expansion of this existing local business will support the promotion of tourism, recreation and the local economy in the area.

ISSUES

17In deciding the present appeal, the Tribunal must have regard to the matters of Provincial interest enumerated in s. 2 of the Act and must also have regard to the Township’s decision and the information it considered in the course of making that decision. The Tribunal must be satisfied that the ZBLA is consistent with the PPS, conforms to the COP as well as the TOP and must be satisfied the proposed development represents good land use planning and is in the public interest.

Stormwater Management & Drainage

18Mr. Lord expressed concerns with respect to the impact of the proposed compound on neighbouring properties in terms of stormwater runoff and drainage. He noted that grading would be required to address same and, in order to do so, existing vegetation on the subject property would need to be removed which would, in turn, have an effect in terms of visual aesthetics in that natural features, which might provide some screening would be removed. He further expressed concerns that rock berms on the subject property could prevent the installation of appropriate stormwater management (“SWM”) measures required to protect neighbouring properties.

19Mr. Sproule testified that, at the time of the Council meeting on November 22, 2019, it was his opinion that a drainage study was required to address the impact of the change in use and on-site conditions relating to runoff rates, resulting flow, outlets, SWM, erosion control and adequacy of downstream infrastructure, as reflected in his notes for the November 22, 2019 Council meeting (Exhibit 1, Tab 14).

20Thereafter, he reviewed and provided comments on an April 14, 2020 SWM plan prepared by Groundwork Engineering Limited (Exhibit 1, Tab 21) in an email to the Township on August 18, 2020 (Exhibit 3). The email confirms that, for the most part, his previously identified concerns had been adequately addressed by the SWM plan. In that email, he highlighted some further concerns and suggestions with respect to erosion control but, at the hearing, he confirmed that these could be adequately addressed in a site plan control agreement with the Applicant, which would be required in the event of ZBLA approval.

21Although Mr. Sproule testified that some degree of grading would, in all likelihood, be required on the property in order to achieve elevations set out in the SWM plan, in his professional opinion as an engineer, he testified he had no concerns with respect to the size or physical features of the subject property in terms of its ability to accommodate any necessary SWM infrastructure.

22Ms. Rueckwald testified that, in her (then) capacity as Manager of Community Planning for the County of Frontenac, she reviewed the ZBLA application and prepared a Planning Report (Exhibit 1, Tab 12) for the Council Meeting of November 22, 2019. Her report recommended Council defer passing the ZBLA until public comments received could be addressed by a qualified professional.

23With respect to SWM, in particular, she testified that, at the time, there was insufficient information to determine whether the application was consistent with the PPS and conformed with both the COP and TOP, all of which include specific policies requiring appropriate SWM. In her view, more information (in the form of a SWM plan and a detailed concept plan for the development) was required to better understand the proposal and assess any potential impacts in relation thereto.

24She testified that, in preparation for this hearing, she briefly reviewed the April 14, 2020 SWM plan (Exhibit 1, Tab 21) and had some concerns with respect to setbacks, noting the plan included a setback of 5.95 metres (“m”) from the edge of the front lot line, whereas the General Commercial Zone requires a setback of 7 m. Notwithstanding the foregoing she confirmed, during cross examination, a site plan could not be approved if mandatory setbacks and other Township requirements were not met.

25Ms. Zander concurred with the conclusion of Mr. Sproule, that the subject property is capable of accommodating necessary SWM and drainage infrastructure to avoid adverse impacts on neighbouring properties. She testified that a SWM plan would, in fact, be implemented prior to final site plan approval, noting it is common for SWM to be addressed at that stage of the planning process.

26In relation to specific concerns raised with respect to the SWM plan, such as inadequate setbacks, Ms. Zander testified that the plan had not yet been approved by the Township and explained it is common for revisions to be required by the reviewing municipality. She added, anecdotally speaking, it is rare for experts to “get it right” on the first draft. While she acknowledged there are details to be finalized with respect to SWM and drainage, she opined this would not be a reason to deny the ZBLA, reiterating that site plan approval could not be given in the absence of a finalized plan meeting the Township’s requirements.

Visual impacts

27Mr. Lord argued the proposed compound would result in unsightly visual impacts in relation to the storage of large boats and vehicles. He referred to both the SWM plan and a hand drawn sketch submitted with a September 22, 2020 application for site plan approval (Exhibit 1, Tab 23), noting inconsistencies between the two in respect of the amount of vegetation to be retained on the subject property. He expressed concern that there would be insufficient vegetation to adequately screen vehicles on the subject property from the view of neighbouring residences.

28Ms. Rueckwald testified that the Township Site Plan Control By-law (No. 08-17) would apply to the proposed compound, which would also be subject to s. 3.5 of By-law No. 55-19 requiring a buffer strip not less than 1.2 m in height. Although she opined that a 1.2 m hedge or fence would not likely provide sufficient screening to abutting residential uses, she acknowledged this is a minimum requirement and confirmed that the property is capable of accommodating an adequate amount of buffering to screen the compound from the road and surrounding residences. She further confirmed that details in relation to buffering could be addressed at the site plan control stage.

29Ms. Zander testified that she was unaware of whether appropriate screening existed on the property currently and admitted that the specific type(s) of buffering measures to be employed (i.e.: planting, fencing, etc.) had not yet been determined. Throughout her testimony, she consistently opined that the determinative issue is not whether there was or is appropriate buffering/screening on the subject property but rather, whether there can be. She echoed the opinion of Ms. Rueckwald that there is enough room on the property to implement adequate screening/buffering to appropriately address any visual/aesthetic issues associated with the proposed use.

30In the course of Mr. Lord’s questioning of Mmes. Rueckwald and Zander, he referred to a number of photos of vehicle/boat storage compounds elsewhere in the County. When asked to comment on the adequacy of visual screening/buffering employed at those other sites, both witnesses indicated they were unable to comment, as the sites shown could be subject to different ZBL requirements resulting from their locations or historical uses. Counsel for the Township submitted, and the Tribunal concurs, that other boat storage examples provided are not evidence of what will happen at this specific site and are therefore not assistive in the context of determining the present appeal.

31Mr. Lord also referred the Tribunal to page 13 of Ms. Zander’s witness statement:

• the site will be subject to Site Plan Control approval, assuming the zoning amendment is approved. The detailed site plan will demonstrate the proposed development area with all setbacks, screening/buffering measures, fencing, lighting, entrances, and stormwater management features, to ensure overall compatibility.

He noted that no lighting plan had been submitted and it was unknown whether any lighting would be part of the development, but expressed concerns with respect to potential impacts thereof on neighbouring properties.

32Ms. Zander testified that the paragraph to which Mr. Lord was referring included a generic list of items normally addressed at the site plan stage. She testified that she unaware of any lighting proposed for the compound but, in any event, lighting would also be subject to site plan approval so as to prevent adverse impacts upon neighbouring properties.

Traffic Impacts

33Mr. Lord expressed concerns that the proposed compound would result in an unacceptable increase in traffic along Skootamatta Lake Road, which would adversely affect the residential properties in the area. Mr. Sproule testified that he analyzed the potential traffic impacts associated with the proposed compound and referred the Tribunal to notes he authored in advance of the November 22, 2019 Council meeting (Exhibit 1, Tab 14, p. 111-112).

34For the purposes of his analysis, he accepted the Applicant’s confirmation that Smart’s Marina staff would be picking up and dropping off the vehicles to be stored and there would be no public access to the site. On that basis, he anticipated a maximum of ten two-way trips per day in the spring and fall for a total of twenty trips (outside of the peak season for traffic in this particular area).

35He used an AADT (Average Annual Daily Trips) of 300 vehicles per day along Skootamatta Lake Road and concluded that the compound would generate an increase of 6% on those days when the maximum number of trips to and from the compound would be made.

36Mr. Sproule testified that he had no concerns with respect to the existing road capacity or structure which, according to his review of the Roads Needs Study from 2019 pertaining to Skootamatta Lake Road, is capable of accommodating the anticipated increase in traffic. He opined that the proposed use would not adversely impact the road or properties south of the site on Highway 41 and no Traffic Study was necessary.

Environmental Impacts

37Mr. Lord also raised concerns with respect to the potential for the proposed compound to adversely affect the surrounding environment and drinking water, noting that the subject property is located in the area of a highly vulnerable aquifer, as identified in the Mississippi Rideau Source Protection Plan (“MRSPP”).

38Ms. Zander testified that the subject property, while located outside municipal drinking water sources such as wellheads and intake protection zones, does fall within an area characterized by a highly vulnerable aquifer, where land uses have the potential to impact same. She explained that the MRSPP utilizes mapping and a numeric rating system to identify a specific area’s degree of vulnerability, which then determines whether there is a need to restrict the types of uses in that area.

39She noted the subject lands have been assigned a vulnerability score of six (6) and that, in areas with a score of less than eight (8), there are no restrictions on land use. She opined that, in this instance, the proposed compound, which will be used solely for parking and storage (as distinct from vehicle maintenance, waste disposal, etc.) presents no environmental or source water protection concerns and has appropriate regard for the MRSPP.

Overall Land Use Planning Opinions

40Ms. Rueckwald did not provide an opinion on consistency with the PPS and conformity with applicable Official Plans in relation to the proposal as it sat before the Tribunal in this hearing but rather, as it was in November of 2019. In her opinion, at that time, there was insufficient information to make a determination in this regard. Nevertheless, she agreed that the issues raised by Mr. Lord in the context of this appeal could be dealt with at the site plan control stage.

41Ms. Zander provided a detailed land use planning opinion on the matter before the Tribunal, which was uncontested and unimpeached. She reviewed the PPS policies and opined that the ZBLA and the development it permits are consistent with same. She opined the proposed use will support an existing business in the Township that will contribute to the local economy and promote tourism; that it represents efficient development and use of land; there are no environmental or health and safety concerns associated therewith and any outstanding SWM issues have been flagged to be addressed at the site plan stage.

42She reviewed the COP and TOP and concluded the proposal conforms to both. Ms. Zander drew the Tribunal’s attention to COP policy 3.3 (Rural Lands), which discusses the promotion of tourism and the economy, and the encouragement of economic diversification while protecting rural character. She also referred to policy 2.1 of the TOP, which speaks to general goals of protecting existing development from adverse effects of incompatible development and ensuring healthy and sustainable growth while encouraging economic development to benefit all residents of the Township.

43Ms. Zander acknowledged the concerns of area residents and Mr. Lord, but opined that the proposed compound is not a conflicting land use to abutting residential uses and represents good planning in the public interest. She opined the compound represents a relatively innocuous use (involving no business activities aside from the parking and storage of vehicles) that will generate a minimal increase in traffic during off-peak seasons and will enhance the local economy by promoting tourism/recreation in the area. She further opined there are no environmental/health and safety concerns and the compound is capable of meeting the policies of the Township’s Zoning By-law, confirming that appropriate SWM/drainage and screening/buffering from both the street and abutting lots will be addressed prior to final site plan approval.

ANALYSIS AND CONCLUSION

44Based on the uncontroverted expert opinion evidence provided by Mr. Sproule, the Tribunal is satisfied that the proposed development will not result in a significant impact in terms of traffic. In terms of environment and source water protection, the Tribunal accepted the uncontroverted evidence of Ms. Zander, that the proposed change in land use will not result in adverse environmental impacts and there is appropriate regard for the MRSPP.

45In terms of visual impacts, much of the discussion centered around vegetation and whether there is, or would be, sufficient vegetation to provide adequate buffering/screening. However, both TOP policy 3.3 (Buffering and Land Use) and s. 3.5 of Zoning By-law No. 55-19 reference measures beyond the use of vegetation, which may be employed (including berms and fencing) and indicates a combination of different measures may be used to achieve adequate buffering/screening.

46The Tribunal concurs with Ms. Zander, that the issue is not whether there is adequate buffering on the subject property but rather, whether there can be. The Tribunal is satisfied that visual impacts associated with the proposed use can be adequately buffered/screened from the view of the road and surrounding residential properties, and that details, in this regard, will be dealt with at the site plan control stage.

47The Tribunal accepted Ms. Zander’s unimpeached land use planning opinion that the proposed compound is consistent with the PPS, conforms to both the COP and TOP, has appropriate regard for the MRSPP and overall represents good land use planning that is in the public interest. In deciding this matter, the Tribunal has given appropriate regard to the decision of Council and the information/material before it as well as to the matters of Provincial interest in s. 2 of the Act.

48Mr. Lord submitted that the legitimate concerns of residents were being addressed by the Township “reactively after the fact, rather than up-front”. He relied upon Ms. Rueckwald’s November 2019 planning report and her recommendation to defer approval pending receipt of a SWM plan and more detailed information against which to assess potential impacts of the proposed compound, arguing Council’s decision to pass ZBLA in the absence of same was premature, did not represent good planning and was not in the public interest.

49From a land use planning perspective, Ms. Rueckwald indicated that issues of buffering and SWM could either be included in the site-specific provisions of the Zoning By-law or dealt with through site plan control. Ms. Zander opined that the remaining details to ensure adequate SWM and appropriate buffering are appropriately dealt with through site plan control.

50The Tribunal notes TOP policy 3.3 (Buffering and Land Use Conflicts), which states “Buffering may be imposed through the use of zoning or site plan control”. In this instance, the Township chose to pass the ZBLA, leaving buffering to be addressed through site plan control. In light of the foregoing and the opinions of Mmes. Rueckwald and Zander, the Tribunal is of the view that Council’s decision to pass the ZBLA was neither premature nor inappropriate, as argued by Mr. Lord.

51Finally, with respect to issues raised by Mr. Lord in terms of fairness, the Tribunal is satisfied that Township Council complied with all mandatory requirements of the Act, including holding a statutory public meeting and receiving/considering public comments on the proposal.

ORDER

52THE TRIBUNAL ORDERS that the appeal against By-law No. 97-19 of the Township of North Frontenac is dismissed.

“S. Braun”

S. BRAUN 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.

Footnotes

1. 1R.S.O. 1990, c. P. 13, AS AMENDED.
2. 2As defined in Township of North Frontenac Zoning By-law No. 55-19, Storage Compound “means a secure enclosed area providing storage protection for large items, such as automobiles, trucks, recreational vehicles, boats, etc. and may be covered or open”.