Larizza v. Thunder Bay (City), 2021 CanLII 69341

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 26, 2021

CASE NO(S).: PL190102

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Vera and Rosario Larizza

Subject: Proposed Official Plan Amendment No. OPA 69

Municipality: City of Thunder Bay

LPAT Case No.: PL190102

LPAT File No.: PL190102

LPAT Case Name: Larizza v. Thunder Bay (City)

Heard: Written hearing

APPEARANCES:

Parties	Representative
Vera and Rosario Larizza	Self-Represented
Vince and Cathy Desando	Self-Represented

DECISION DELIVERED BY SUSAN de AVELLAR SCHILLER AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Vince and Cathy Desando (“Applicants”) are the owners of a property at 464 Belton Road (“Subject Site”) in the City of Thunder Bay (“City”). They have taken steps to enlarge the Subject Site with the purchase of an unopened road allowance, known as the Brighton Avenue Allowance, adjacent on the north side of the existing lot. The road allowance beside the Applicants’ property has been declared surplus by the City.

2The Tribunal understands that the Applicants may wish to seek a consent to sever the Subject lands into two lots. With the enlargement through acquisition of the surplus road allowance, the Subject Site falls slightly short of the frontage minimum of 60 metres (“m”) for each lot if the property is severed into two lots.

3The requirement for the minimum 60 m frontage is in the City’s Official Plan 2002 (“OP 2002”) and is repeated in the City’s Official Plan 2018 (“OP 2018”). The Applicants applied for a site-specific official plan amendment. Adopted by the City, this became Official Plan Amendment No. 69 (“OPA 69”).

4OPA 69 is a site-specific exemption from the lot creation policies of the City’s OP 2002. It states:

The City of Thunder Bay Official Plan, as amended, is further amended as follows:

The Rural Residential policies of the Official Plan are amended by introducing a "Site Specific Amendments" policy section following the "Site Specific Policies" and adding the following site-specific policy:

"East side of Belton Road at the northern terminus:

Notwithstanding the Development and Lot Creation policies of this Plan, one lot with a frontage of not less than 54 metres may be permitted on lands described as Registered Plan 762, Lot 15 and the adjacent Brighton Avenue Allowance."

5Vera and Rosario Larizza (“Appellants”) appealed the adoption of OPA 69 to this Tribunal.

6The City appeared at the mandatory Case Management Conference (“CMC”) and advised the Tribunal that it would not be calling any evidence or participating other than as an observer of the proceedings.

7The Applicants sought, and received, Party status at that CMC.

8Al and Marlene Bosma were made Participants, also at that CMC. A Participant Statement was to have been filed but none was available or considered at this written hearing.

9Although an oral hearing was held by a panel of the Tribunal differently constituted, no decision issued. A written re-hearing was then ordered. This is the decision from the written hearing.

ISSUES, ANALYSIS AND FINDINGS

10None of the acquisition of the surplus road allowance, an application for consent to sever the Applicants’ lot, or a proposal to develop a possible severed lot is before the Tribunal in this proceeding. The sole matter before the Tribunal is the question of whether OPA 69, which addresses only minimum lot frontage for a single site on a site-specific basis, is consistent with the Provincial Policy Statement 2020 (“PPS 2020”).

11The Appellants have raised three key concerns:

1. flooding and access,
2. existing alternative arrangements to accommodate a second dwelling on the existing site, and
3. an OP 2018 bar on lot additions to create new developable lots.

12In each case, the Appellants have advanced their opposition analysis through the lens of a consent and development of a second dwelling on a separate lot. This focus is grounded firmly in the openly stated position of the Applicants that they wish to accommodate a second dwelling and wish to do so on a separate lot.

Flooding and Accessibility

13The Subject Site is in a Rural Area, outside the Urban Area boundary, and is designated Rural Residential. Seasonal flooding has water over-topping Belton Road. A study by the Lakehead Region Conservation Authority (“LRCA”) concluded that the culvert crossing under Belton Road may be undersized.

14The Appellants contend that this condition engages policy 3.1.2 (c) of the PPS 2020, which states:

3.1.2 Development and site alteration shall not be permitted within …

c) areas that would be rendered inaccessible to people and vehicles during time of flooding hazards …unless it has been demonstrated that the site has safe access appropriate for the nature of the development and the natural hazard…

15The Appellants contend that the seasonal over-topping of water on Belton Road would render any severed north part of the existing lot inaccessible.

16Subsequent to the LRCA study, the City undertook a review to determine if the culvert crossing should be upgraded and/or the existing culverts replaced. The City retained external experts to review the LRCA modelling and assess the existing culvert crossing on Belton Road. The review concluded that the current infrastructure complies with all applicable standards.

17The Tribunal finds that the question of the suitability of the culvert crossing and occasional over-topping of water on Belton Road, and whether this crossing should be upgraded, is not before the Tribunal and is not triggered by the adoption of OPA 69.

18Also not before the Tribunal is a proposal for development or site alteration that might trigger a closer examination of whether the proposed development or site alteration would have “safe access appropriate for the nature of the development and the natural hazard…”

19The Tribunal attaches no weight to this concern in terms of the analysis of OPA 69.

Alternative Arrangements for a Second Dwelling Unit

20The planner, whose professional opinion was submitted by the Appellants, reviewed at some length the alternatives for a second dwelling unit on the existing lot rather than the Applicants’ apparent preference for a second dwelling unit on a severed lot.

21The Applicants’ preference is just that: a preference. OPA 69 neither imposes nor prohibits the Applicants from holding a preference. The site-specific amendment simply provides for a site-specific reduction in the minimum lot frontage.

22The Tribunal attaches no weight to the question of whether an alternative preference might be accommodated on the existing lot.

OP 2018 Bar on Certain Lot Enlargements

23The City’s OP 2018 contains the following statement on lot additions:

Lot additions may be supported within all land use designation for technical or legal reasons, or for the purpose of lot enlargement…However, within the Rural or Rural Settlement Area designations, lot additions may not be used to create new developable lots now or in the future.

24The Appellants have woven together OPA 69, the Applicants stated preference to sever the existing lot, and the Applicants’ intended acquisition of the City’s surplus road allowance along the north side of their property.

25The Appellants are targeting what they assume is the end goal of the Applicants. Here again, though, the City’s decision to declare the unopened road allowance surplus and enter into an agreement that would have the Applicants purchasing that land to enlarge their existing property is not a matter that is before the Tribunal in this proceeding. Also not before the Tribunal is the reason for the acquisition or the question of whether this statement in the OP 2018 applies to the Applicants’ property.

26The Tribunal finds that this OP 2018 statement has no relevance to the matters now before the Tribunal for decision.

Statutory Requirements

27The Planning Act (“Act”) requires the Tribunal to have regard to certain matters and make certain findings when making a decision on a planning matter.

Provincial Policy Statement 2020

28In this case, the Tribunal must determine if OPA 69 is consistent with the PPS 2020.

29The PPS 2020 encourages the efficient use of land and infrastructure. It is clear in its preference to direct development to settlement areas, to have development on full municipal services and to protect natural heritage areas.

30There is a provincially significant wetland (“PSW”) in the area. A portion of the Subject Site appears to be within the area designated as the PSW buffer.

31The Appellants assert that this portion of the Subject Site meets the definition of adjacent lands within the PPS 2020. They also contend that this condition engages policies that prohibit development on such lands unless the ecological function of the adjacent lands has been evaluated and demonstrates that there will be no negative impacts on the natural features or their ecological functions.

32The PPS 2020 has specific definitions for development, ecological function and negative impacts.

33OPA 69 is not a proposal for development; it is a site-specific amendment dealing with lot frontage. Any future proposal for development, based on OPA 69, would then have to consider the requirements of the PPS in effect at the time.

34With no development proposal before the Tribunal, a concern about a possible future proposal for development does not assist the analysis. The Tribunal attaches no weight to this area of the Appellants’ submissions.

35The minimum requirement for lot frontage is a short-form way of suggesting the need for an appropriately sized lot on private services. While the PPS 2020 encourages full municipal services, appropriate private services in a rural area are also contemplated. The key for the PPS 2020 is that the services selected for development in a rural area be appropriate for environmental protection.

36In addition to having no development proposal before the Tribunal to be analysed in terms of the provision and utilisation of services, the Tribunal finds that there is nothing in OPA 69 that deals in any way with water and sewer services that would result in OPA 69 failing to be consistent with the PPS 2020.

37The Tribunal attaches no weight to this area of concern.

38The Tribunal finds that OPA 69 is consistent with the PPS 2020.

Matters of Provincial Interest

39The Tribunal is required to have regard to the matters of provincial interest, as set out in s. 2 of the Act.

40The matters of provincial interest complement the policies set out in the PPS 2020.

41Applying the analysis of the PPS 2020 policies, the Tribunal finds that OPA 69 has had regard for the matters of provincial interest.

Decision of Council and Materials Considered by Council

42Section 2.1 of the Act requires the Tribunal to have regard to the decision of the municipal council and to the materials considered by the council in reaching its decision.

43The Tribunal notes that the decision of the City Council was to adopt OPA 69.

44The Tribunal also notes that a report from its planning staff did not recommend adoption. The Appellants have relied on and repeated the concerns set out in the staff planning report.

45The Tribunal considered this material and notes that it displays the same difficulty as that presented by the Appellants’ submissions. Specifically, the analysis proceeds as if the application is an application for development and an application for a consent to sever lands. It is not. In making that assumption, woven within the report to the Council, the report was analysing something the author thought would result from OPA 69 and failed to fully recognise the more limited ambit of the specific language in OPA 69.

46The Tribunal finds that the fact that the foundation for the assumption appears to be certain statements of preference from the Applicants is irrelevant to the limited analysis appropriate when weighing a limited and focused planning instrument.

47While the Tribunal has had regard for these concerns, they are premised on a possible proposal whose details are not fully known and which was not before the City Council or this Tribunal for decision regarding OPA 69.

ORDER

48The Tribunal orders that the appeal by Vera and Rosario Larizza is dismissed and the City of Thunder Bay Official Plan Amendment No. 69 is approved.

“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.