Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
September 13, 2021
CASE NO(S).:
PL190027
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Ron and Evelyne Chadband
Appellant (jointly):
Paul and Joanne Freeman, Luke Tomic
Subject:
By-law No. BL 10-2019
Municipality:
Township of Carlow/Mayo
OLT Lead Case No.:
PL190027
OLT Case No.:
PL190027
OLT Case Name:
Chadband et al v. Carlow/Mayo (Twp.)
Heard:
July 16, 2021 by video hearing
APPEARANCES:
Parties
Counsel
Paul and Joanne Freeman,
B. Dunn
and Luke Tomic
Ron and Evelyne Chadband
Self-represented
Township of Carlow/Mayo
J. Mastorakos
M. Pedersen (student-at-law)
MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON JULY 16, 2021 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1On January 8, 2019, the Township of Carlow/Mayo passed a zoning by-law amendment (“Zoning By-law Amendment”) to the Township’s Comprehensive Zoning By-law No. 33-2004 (“Comprehensive Zoning By-law”) regarding the lands located at Part of Lots 23 and 24, Concession 3 (“subject lands”). The subject lands are municipally known as 251 Haryett Road and 207 Haryett Road.
2The Zoning By-law Amendment rezones parts of the subject lands from Rural Residential (RR) to Special Rural (RU-12) and rezones other parts of the subject lands from Special Rural (RU-9) to Special Rural (RU-12). It also applies zoning provisions to the subject lands requiring:
a minimum front yard of 17.7 metres for existing accessory buildings;
the minimum setback for legally existing buildings to an Environmental Protection (EP) Zone and/or the high water mark of a waterbody as it exists on the date of passing of the Zoning By-law Amendment; and
section 5.25.3 of the Township’s Comprehensive Zoning By-law to not apply to existing accessory buildings in the Special Rural (RU-12) Zone.
3The Zoning By-law Amendment was appealed by Paul and Joanne Freeman and Luke Tomic (“Freeman Appellants”) and by Ron and Evelyne Chadband (“Chadband Appellants”). The owners of the subject lands (and proponents of the Zoning By-law Amendment application) have neither requested nor been granted status in the proceedings.
4The proceedings are subject to the procedural requirements under the Building Better Communities and Conserving Watersheds Act (“Bill 139”) and the substantive requirements under the More Homes, More Choice Act, 2019 (“Bill 108”).
5In April 2021, the Freeman Appellants and the Township informed the Tribunal that they had reached a proposed settlement. The Chadband Appellants have not agreed to the proposed settlement.
6The proposed settlement seeks the repeal of the Zoning By-law Amendment in its entirety. The basis of each of the Appellants’ concerns is that there are existing buildings located on the subject lands that may be within, or in close proximity to, Environmental Protection zoned and other sensitive lands. They state that the Zoning By-law Amendment authorizes the location of and setbacks associated with these buildings. They allege that the environmental impacts of these buildings have never been considered and the development of these buildings was not properly done in compliance with the Provincial Policy Statement (“PPS”), the County of Hastings (“County”) Official Plan, and the Township’s Comprehensive Zoning By-law.
7The terms of the proposed settlement state that the Township acknowledges that prior to any future land use decisions with respect to the subject lands, the Township shall ensure that:
a. there have been appropriate studies conducted or technical reports prepared (such as an environmental impact study and/or a natural heritage evaluation) demonstrating that the buildings and accessory structures on the subject lands, other than the residential dwelling and any structures/additions attached thereto (“exempted buildings”), are not within the prescribed setbacks for Environmental Protection lands and/or the high water mark and are in compliance with the provisions of the PPS, the County Official Plan, and the Township’s Comprehensive Zoning By-law; or
b. there have been appropriate studies conducted or technical reports prepared (such as an environmental impact study and/or natural heritage evaluation) evidencing that the buildings and accessory structures on the subject lands that are located within the prescribed setbacks for Environmental Protection lands and/or the high water mark, other than the exempted buildings, will neither result in any physical hazard which could cause harm to life of property nor result in any adverse impacts to the environmental features of the lands or the ecological function for which the area is identified; or
c. any buildings that are not in compliance with the PPS, the County Official Plan, and the Township’s Comprehensive Zoning By-law, other than the exempted buildings, have been removed.
8On July 16, 2021, the Tribunal held a hearing at which it considered the proposed settlement and heard evidence and submissions from the Chadband Appellants on the merits of their appeal.
ISSUES
9Under Rule 12.1 of the Tribunal’s Rules of Practice and Practice Directions (“Rules”), the issues to be addressed by the Tribunal when considering a proposed settlement are whether all statutory requirements and the public interest are satisfied. Based on these considerations, the Tribunal will determine whether the Zoning By-law Amendment should be approved, amended, or repealed and whether the proceedings should be continued or dismissed.
10The Bill 108 version of the Planning Act applies to the substantive issues to be adjudicated. The statutory requirements that the Tribunal must consider when making a decision on a zoning by-law amendment appeal under s. 34(19) of the Bill 108 version of the Planning Act are whether the proposed instrument:
is consistent with the PPS;
conforms with applicable provincial plans;
conforms with applicable official plans; and,
represents good planning.
The Tribunal also must have regard to the matters of provincial interest set out in s. 2 of the Planning Act and regard to the decision of the Township Council and the information considered by it pursuant to s. 2.1(1) of the Planning Act. In the present case, there is no applicable provincial plan. The applicable official plan is the County Official Plan.
Submissions and Evidence
11In support of the proposed settlement, the Township filed an affidavit sworn by Justin Harrow, dated July 8, 2021. Mr. Harrow is the Director of Planning at the County. He also provided oral evidence at the hearing. Based on his experience and expertise, the Tribunal qualified him to provide opinion evidence as an expert in land use planning.
12The Freeman Appellants filed an affidavit sworn by Kevin Duguay, dated July 14, 2021. Mr. Duguay is a land use planner retained by the Freeman Appellants.
13As noted above, the Zoning By-law Amendment authorizes setbacks to the nearby Environmental Protection zones and/or the high water mark of a waterbody for existing buildings, and exempts the application of s. 5.25.3 of the Township’s Comprehensive Zoning By-law (on the location of accessory buildings) in the Special Rural (RU-12) zone. Mr. Harrow opined that the Zoning By-law Amendment should be repealed. He opined that the Zoning By-law Amendment is not consistent with the natural heritage provisions in policy 2 of the PPS and does not conform with the environmental protection provisions in policies 4.5.2.1, 4.5.2.3, and 4.5.2.6 of the County Official Plan. These provisions require the protection of natural features and areas, set out permitted uses, and prohibit or restrict development and site alteration in these areas.
14In his affidavit, Mr. Duguay supports the Township’s position.
15The Chadband Appellants made submissions requesting the prevention of further development on the subject lands, an independent survey of the subject lands, and the determination of whether existing building on the subject lands are permitted. They raised governance concerns regarding actions taken by the Township and the County and questioned whether the Township would comply with the Tribunal’s orders. They raised noise and pollution issues and stated that zoning requirements must be enforced. They stated that they have not agreed to the proposed settlement because they do not trust the Township to carry it through.
ANALYSIS AND FINDINGS
16The Tribunal’s powers and the factors to be addressed when considering a proposed settlement prior to a hearing event are set out in Rule 12.1 of the Tribunal’s Rules. Rule 12.1 states:
12.1 The Tribunal may hold a hearing on the terms of a settlement if the parties in the proceeding agree to a settlement prior to a hearing event. The Tribunal may issue any directions to the parties necessary to ensure compliance with all statutory requirements, or to assist the Tribunal, prior to convening the settlement hearing. If all statutory requirements and the public interest are satisfied, the Tribunal may issue an order approving the settlement, with any necessary amendments.
17Under Rule 12.1, if all statutory requirements and the public interest are satisfied, the Tribunal may issue an order approving a proposed settlement, with any necessary amendments. In considering the statutory provisions and the public interest, the Tribunal must determine whether the outcome of the proposed settlement conforms with the provisions of the applicable legislation. This informs the Tribunal on whether the appeal should be allowed or dismissed and whether, in the present case, the Zoning By-law Amendment should be approved, amended or repealed, in whole or in part, under s. 34(26) of the Planning Act.
18The applicable statutory requirements to be addressed by the Tribunal in a zoning by-law amendment appeal under s. 34(19) of the Planning Act are found in s. 2, s. 2.1, s. 3(5), and s. 24(1) of the Planning Act. In summary, they require that:
s. 2: the Tribunal, in carrying out its responsibilities under the Planning Act, have regard to matters of provincial interest, including:
the protection of ecological systems, including natural areas, features, and functions;
the conservation and management of natural resources and the mineral resource base;
the orderly development of safe and healthy communities;
the protection of public health and safety; and
the appropriate location of growth and development;
s. 2.1: when the Tribunal makes a decision under the Planning Act that relates to a planning matter, it shall have regard to:
any decision that is made under the Planning Act by a municipal council that relates to the matter; and
any information and material that the municipal council considered in making its decision;
s. 3(5): a decision of the Tribunal in respect of any planning matter:
shall be consistent with the provincial policy statements that are in effect on the date of the Tribunal’s decision; and
shall conform with the provincial plans that are in effect on that date, or shall not conflict with them, as the case may be; and
s. 24(1): where an official plan is in effect, no by-law shall be passed for any purpose that does not conform with the applicable official plan.
19The Tribunal finds that the proposed settlement satisfies all of the applicable statutory requirements in the Planning Act and is in the public interest and, on that basis, it finds that the Zoning By-law Amendment should be repealed. Based on the uncontradicted opinion evidence provided by Mr. Harrow, the Tribunal finds that the Zoning By-law Amendment is not consistent with the PPS and does not conform with the County Official Plan. It finds that, based on the evidence before it, the Zoning By-law Amendment permits development and/or uses in, or in proximity to, Environmental Protection and other protected areas in a manner that is not consistent with the natural heritage provisions in policy 2 of the PPS and does not conform with the environmental protection provisions in policy 4.5 of the County Official Plan. The Tribunal has had regard to the matters of provincial interest in s. 2 of the Planning Act and the decision made by the Township Council. The Tribunal finds that the Zoning By-law Amendment does not represent good planning and is not in the public interest.
20The Tribunal takes note of the Chadband Appellants’ submissions and finds that the repeal of the Zoning By-law Amendment provides for the relief that they request insofar as it is within the Tribunal’s authority to provide.
21Based on the proposed settlement, the Tribunal finds that the Zoning By-law Amendment should be repealed and the appeals should be allowed under s. 34(26) of the Planning Act.
ORDER
22The Tribunal orders that the appeals are allowed and the Zoning By-law Amendment is repealed.
“Hugh S. Wilkins”
HUGH S. WILKINS
MEMBER
Ontario Land Tribunal
Website: www.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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.