Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
July 14, 2021
CASE NO(S).:
PL190430
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Sheri Couchman
Subject:
By-law No. BL 54-2019
Municipality:
South Glengarry
LPAT Case No.:
PL190430
LPAT File No.:
PL190430
LPAT Case Name:
Couchman v. South Glengarry (Town)
Heard:
January 27, 2021 video hearing
APPEARANCES:
Parties
Counsel*/Representative
Township of South Glengarry
Tony E. Fleming*
Sheri Couchman
Self Represented
Gen-Mor Investments Inc.
D. Gregory Meeds*
DECISION DELIVERED BY SUSAN de AVELLAR SCHILLER AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Gen-Mor Investments Inc. (“Gen-Mor”) owns property in the former Township of Lancaster, now in the Township of South Glengarry (“Township”) in the United Counties of Stormont, Dundas and Glengarry (“SDG”). The site is located at 21895 Old Highway 2 (“Subject Site”).
2Gen-Mor wishes to develop a warehouse and distribution centre for food products. In support of this ambition, Gen-Mor applied for a zoning by-law amendment to rezone the Subject Lands from Rural (RU) and Floodplain-Holding (FP-H) to Rural Exception Thirteen (RU-13) and Floodplain Holding (FP-H).
3The Township approved the application for amendment and adopted By-law No. 54-19 (“By-law”) to rezone the Subject Lands to accommodate the distribution warehouse and maintain a holding provision for the floodplain.
4Sheri Couchman has appealed the adoption of this By-law to this Tribunal.
5This matter was the subject of an earlier Case Management Conference (“CMC”). That CMC added Gen-Mor as a Party to these proceedings. The decision from that CMC also set out the legislative regime under which this matter is being heard. The reader is referred to that decision for additional details.
6This current oral hearing was to hear oral submissions from the Parties. No witnesses were called to be examined.
7The Tribunal had before it the Municipal Record, the Appeal Record of Ms. Couchman, the Responding Appeal Record of the Township, and the materials filed by Gen-Mor that Gen-Mor styled as an appeal record. The Township materials included an affidavit from Joanne Haley, affirmed May 5, 2020. The materials from Gen-Mor included an affidavit from Tracy Zander, affirmed October 27, 2020. Mmes. Haley and Zander are both full Members of the Canadian Institute of Planners and registered professional planners in Ontario whom the Tribunal qualified to provide independent expert opinion evidence in land use planning matters. The Tribunal also had before it the Participant statement of Marc Belanger. Mr. Belanger’s statement was filed in support of Ms. Couchman’s appeal.
ISSUES, ANALYSIS AND FINDINGS
Natural Heritage
8The overriding issue in this proceeding is whether the By-law is consistent with the Provincial Policy Statement, 2020 (“PPS”), particularly in reference to the protection of natural heritage. A similar concern regarding the protection of natural heritage has been raised in the issue of whether the By-law conforms to the SDG Official Plan (“SDG OP”).
9An existing vacant dwelling and outbuildings are on the Subject Site. These structures would be removed with the development of the distribution facilities.
10The west half of the Subject Site is located in a floodplain, identified through a topographic survey and subject to the Raisin Region Conservation Authority (“RRCA”). The RRCA identified a portion of the property that is located within the 1:100-year flood risk area. A floodplain survey was conducted and accepted. This is the part of the Subject Site that the By-law has zoned Flood Plain – Holding.
11The Tribunal understands that the RRCA had no objection to the application and subsequent By-law. The RRCA will be involved in the site plan stage, ensuring that any concerns that may arise will be addressed.
12The Subject Site also has an existing drainage ditch that connects to Gunn Creek at the property line with an adjacent property. Gunn Creek contains fish, turtles and their habitat, and drains into the Bainsville Bay Marsh Provincially Significant Wetland. The drainage ditch is to be diverted to connect with Gunn Creek at a different point, subject to all applicable regulatory permits.
13Ms. Couchman felt a hydrogeological study should be undertaken. For purposes of considering a site-specific zoning by-law, no hydrogeological study was required in that the proposed facility was not considered to present a concern for water quantity and supply. To the extent that Ms. Couchman’s concern is directed to the relocation of the drainage ditch, the Tribunal notes that the regulatory review for that proposal is separate from that for the site-specific By-law review. Additionally, and as noted above, any such relocation is subject to all applicable regulatory permits and therefore to all applicable regulatory requirements and review.
14Ms. Couchman expressed the concern that an Environmental Impact Study (“EIS”) was not done prior the adoption of the By-law. Ms. Couchman relies on the SDG OP policies in section 5.5 Natural Heritage Features and Areas.
15The Subject Site is not located within a Natural Heritage Feature and Area, as set out in the SDG OP.
16The SDG OP also states that no development or site alteration should occur on lands adjacent to a natural heritage feature or area unless the ecological function of the lands has been evaluated and it has been demonstrated through an EIS that there will be no negative impacts on the natural features or their ecological functions. The requirement echoes a similar stricture in the PPS.
17The SDG OP identifies adjacent lands as 120 metres (“m”) from the boundary of a Provincially Significant Wetland, locally significant wetland, coastal wetland, or 120 m from the seasonal high-water mark for fish habitat. The Subject Site is not located within 120 m of any of these features.
18The RRCA did not require either a full EIS or a scoped EIS in this matter.
Light, Noise, Emissions and Transportation
19The Subject Site is on the north side of Old Highway 2, on the south side of Highway 401 and just east of an interchange of Highway 401. It is well-positioned with highway access for the intended distribution facility.
20In addition to some commercial uses, both existing and vacant, the surrounding area includes single family dwellings. Mr. Belanger and Ms. Couchman have both expressed concern for traffic safety for children and families in the area and public health challenges from light, noise and emissions.
21This is not a traditional residential area into which a distribution facility is being proposed. The Tribunal has already noted the ready access to major transportation facilities. That access has been noticed, and acted upon, by other transportation-related businesses. The evidence before the Tribunal is that there is a transport and distribution company that abuts the Subject Site to the east. A transport logistics company is located to the south, immediately opposite the Subject Site on Old Highway 2. Husky Oil Operations Ltd. had a truck stop immediately west of the Subject Site, subsequently demolished and decommissioned but planned to be re-built.
22All of these transport-related uses are located at or very near the Highway 401 interchange. Old Highway 2 is designated as the Emergency Detour Route for Highway 401. Taken together, there is a long and strong history of transportation-related uses in the area co-existing with the residential uses that are interspersed on the south side of Old Highway 2.
23Locating the distribution facility on Old Highway 2, close to the interchange with Highway 401, makes efficient use of existing transportation infrastructure and complements existing transport-related uses in the immediate area.
Economic Diversity and Employment
24The PPS encourages the support of economic viability of rural areas in municipalities. The proposed development will add to the range of employment uses in this rural area, thereby meeting the direction of the PPS.
Infrastructure and Public Service Facilities
25The PPS calls for the efficient use of existing and planned infrastructure. The stated provincial preference is for full municipal water and sewage services. In this rural area, there are no municipal water and sewer services. The proposed development would be on private water and sewer services, as are the other uses in the area.
26The size of the developable portion of the site has been reviewed and determined to be sufficiently large to accommodate safely the needed private water and sewer services on-site.
United Counties of Stormont, Dundas and Glengarry Official Plan
27The SDG OP designates the Subject Site as Rural District. The Subject Site is located between two properties that are zoned commercial. The site-specific zoning contemplated by the By-law is compatible with the abutting designations and zones.
28Water and sewer services within the Rural District are typically private and on-site. The Subject Site will be serviced in this manner as well.
29The fine-grain deployment of uses and mitigation measures for additional compatibility with nearby residential uses for noise, light, emissions and other similar details will be dealt with at the site plan stage.
Conclusion and Findings
30Neither Ms. Couchman nor Mr. Belanger are experts. They have both expressed concerns about the proposal. While the Tribunal has no doubt that the concerns expressed are held genuinely, the Tribunal finds that the concerns of Ms. Couchman and Mr. Belanger have been answered in the expert evidence in this proceeding.
31The Tribunal finds that the By-law is consistent with the PPS and conforms to the SDG OP.
32The Planning Act (“Act”) requires the Tribunal to have regard to the matters of provincial interest set out in s. 2. The Tribunal has had regard for the matters of provincial interest set out in s. 2 and finds that the By-law has had regard for this section as well. The Tribunal notes particularly s. 2(a) on the protection of ecological systems, including natural area, features and functions; s. 2 (f) on the adequate provision and efficient use of transportation systems; s. 2(h) on the orderly development of safe and healthy communities; s. 2(k) on the adequate provision of employment opportunities; and s. 2(p) on the appropriate location of growth and development.
33The Act also requires the Tribunal to have regard to the decision of the municipality and to materials considered by the municipality in making its decision. The Tribunal has done so and notes that the By-law application was carefully reviewed, and the resulting By-law was adopted.
ORDER
34The Tribunal orders that the appeal by Sheri Couchman of By-law No. 54-2019 is dismissed.
“Susan de Avellar Schiller”
SUSAN de AVELLAR SCHILLER
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.