Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 30, 2021
CASE NO(S).: 21-021
PROCEEDING COMMENCED UNDER subsections 25(5.1) and 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant: Terry Lachapelle
Applicants: Robert Harold and Joseph Schenck
Respondent: Niagara Escarpment Commission
Subject of appeal: Approval of a Development Permit Application to construct a two-storey grape processing winery facility tasting and retail area, and a new parking area; to install a new septic system; to install a cistern; and to upgrade an existing driveway and crossing.
Reference No.: N/A/2019-2020/138
Property Address/Description: Part Lot Plan M2 PT LOT 166 RP 30R; 3587 Part 1
Municipality: Town of Lincoln
Upper Tier: Regional Municipality of Niagara
NEHO Case No.: 21-021
NEHO Case Name: Lachapelle v. Ontario (Niagara Escarpment Commission)
Heard: May 4, 2021 by Telephone Conference Call
APPEARANCES:
| Parties | Representative |
|---|---|
| Terry Lachapelle | Self-represented |
| Robert Harold and Joseph Schenck | Self-represented |
| Niagara Escarpment Commission | Nancy Mott |
DECISION DELIVERED BY LAURIE BRUCE AND PROCEDURAL ORDER OF THE TRIBUNAL
1This matter is before the Ontario Land Tribunal (“OLT”) as the successor tribunal to the Environmental Review Tribunal (“ERT”), which was amalgamated with other tribunals and continued as the new consolidated OLT pursuant to s. 2 of the Ontario Land Tribunal Act, 2021, proclaimed in force on June 1, 2021 (“OLTA”). By virtue of a prior appointment of Members of the ERT as Hearing Officers under the Niagara Escarpment Planning and Development Act (“NEPDA”) and pursuant to the appointment of Members of the OLT as Hearing Officers under the NEPDA effective the date that s. 2 of the OLTA was proclaimed into force, the OLT now functions as the Niagara Escarpment Hearings Office (“NEHO”) to hear this development permit appeal. This matter is accordingly governed by the OLT Rules of Practice and Procedure (“Tribunal Rules”).
2This decision follows from a Pre-hearing Conference (“PHC”) on an appeal filed with the NEHO by Terry Lachapelle (“Appellant”) from the decision of the Niagara Escarpment Commission (“NEC”) to conditionally approve application N/A/2019-2020/138 for a Development Permit sought by Robert Harold and Joseph Schenck (“Applicants”). The Development Permit allows for the construction of a grape processing winery facility with a tasting and retail area along with a cistern and a septic system. The proposed development is located on Part Lot Plan M2 Part Lot 166 RP 30R; 3587 Part 1, Victoria Avenue, in the Town of Lincoln, Region of Niagara (“subject property”).
3The subject property is a 7.89 hectare irregular-shaped lot located on the east side of Victoria Avenue. The only access to the property is from Victoria Avenue. There is an existing vineyard on the property. The two-storey facility is compact at 162 square metres. In addition to the proposed development described above, there are plans to pave the portion of the existing access lane leading to Victoria Avenue and install a culvert close to the parking area.
4Nancy Mott, planner with the NEC, provided an overview of the Development Permit. She explained that a portion of the subject property is designated Escarpment Protection Area. The remaining northwest corner of the property, which serves as the access point to Victoria Avenue, is outside of the Niagara Escarpment Plan (“NEP”) and therefore not under Development Control. The NEC’s staff report stated that the proposal does not conflict with the relevant provisions of the NEP 2017 and is consistent with the 2020 Provincial Policy Statement. Ms. Mott, while not the author of the staff report, indicated she concurred with the report.
5Mr. Lachapelle lives directly across from the entrance to the property. He was invited to share his concerns. Mr. Lachapelle stated that he did not have a problem with the construction of the winery building but he was concerned about the laneway access leading to Victoria Avenue since there is already a lot of traffic on that road. Mr. Lachapelle spoke of the large number of trucks that already use Victoria Avenue, which he stated pose a safety concern. Mr. Lachapelle stated he was concerned that the proposed development would add to the existing traffic congestion and safety concerns associated with vehicles using Victoria Avenue.
6Mr. Harold stated that this is a small vineyard and the proposed facility would have limited opening hours and therefore, would not generate a lot of traffic. He stated the facility will not support large-scale events or any events not directly related to the wine production on property. Mr. Harold advised the Hearing Officer that visits to the winery would be by appointment only. He stated they had designed the winery and set the operating hours with neighbours in mind and that they will be open only two to three days per week between June and November. Mr. Harold stated that they would accept up to three appointments per day with a maximum of six people per appointment. He estimated that this would result in three cars every two hours or nine cars per day in addition to the two owners’ vehicles.
7Ms. Mott stated that the NEP does not address traffic but rather land use compatibility. She noted that no objections were received from any of the circulated agencies and that Region of Niagara (“Region”) had concluded there was no need for a traffic study due to the low intensity of use. Ms. Mott highlighted that an entrance permit will be required from the Region and that the entrance point is not on lands under Development Control.
8After hearing from the Applicants, the Appellant and the NEC, the Hearing Officer on her own initiation, considered whether the appeal, as scoped by the Appellant, raised a planning justification that could properly be considered by the Hearing Officer in the context of the specific Development Permit before the NEHO.
Relevant Legislation and Rules
9The relevant provisions of the NEPDA are as follows:
25 (8.1) Despite subsections (8) and (10), an officer appointed under subsection (8) may refuse to conduct or to continue a hearing if,
(a) in the opinion of the officer, the appeal does not disclose a planning justification for the appeal, is not in the public interest, is without merit, is frivolous or vexatious, or is made only for the purpose of delay;
(b) the notice of appeal did not specify the reasons for the appeal; or
(c) the person who appealed the decision has not responded to a request by the officer for further information within the time specified by the officer.
(8.2) Before refusing under subsection (8.1) to conduct or to continue a hearing, the officer shall notify the person who appealed the decision and give the person an opportunity to make representations thereon.
(8.3) If an officer refuses under subsection (8.1) to conduct or to continue a hearing, the decision of the delegate shall be deemed to be confirmed.
Discussion, Analysis and Findings
10Mr. Lachapelle was advised that the NEHO had concerns that that his appeal did not disclose a planning justification, gave him the opportunity to make representations and considered them accordingly. Mr. Lachapelle’s concern was limited to the potential implications of the winery’s access point from Victoria Avenue contributing to what the Appellant states are existing traffic and associated safety concerns. Mr. Lachapelle indicated he is not concerned with the winery building and operation itself, but rather the traffic that already exists on Victoria Avenue and the winery’s contribution to that traffic.
11The Applicants stated that the winery operation will result in an average of nine cars a day, two to three days per week for six months of the year. The Region did not raise concerns that this intensity of use would create a traffic management issue. Mr. Lachapelle’s traffic concerns are associated with an existing condition and based on the submissions heard at this PHC, the intensity of the use of this winery is not expected to exacerbate the existing traffic situation on Victoria Avenue.
12Mr. Lachapelle stated he was not concerned with the approval of the winery, but he wanted there to be an alternative location for the driveway. The Hearing Officer was advised by the applicants that the property is not adjacent to any other road and therefore there is not another option for an entrance to this property.
13After hearing submissions from the Appellant and the Applicant, the Hearing Officer finds that the appeal based on the issue of the winery’s contribution to local traffic lacks planning justification and therefore, the matter shall not proceed to a hearing.
14Furthermore, in accordance with s. 25(8.3) of the NEPDA, the Hearing Officer finds that the decision of the NEC to conditionally approve the Development Permit should be confirmed.
DECISION
15The Hearing Officer orders that:
The appeal is dismissed.
The decision of the Niagara Escarpment Commission to conditionally approve the Applicant’s development permit application N/A/2019-2020/138 is deemed to be confirmed pursuant to s. 25(8.3) of the Niagara Escarpment Planning and Development Act.
“Laurie Bruce”
LAURIE BRUCE HEARING OFFICER 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.