Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 27, 2021
CASE NO(S).: PL200594
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Michael and Ilana Agrette
Subject: Request to amend the Official Plan – Refusal of request by the City of Thorold
Existing Designation: "General Industrial" for a portion of the subject property
Proposed Designated: "Site-specific Policy Area 6"
Purpose: To permit a hockey training facility
Property Address/Description: 2350 Gainer Street
Municipality: City of Thorold
Approval Authority File No.: D09-02-2020
OLT Case No.: PL200594
OLT File No.: PL200594
OLT Case Name: Agrette v. Thorold (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Michael and Ilana Agrette
Subject: Application amend Zoning By-law No. 2140 (97) – Refusal of Application by the City of Thorold
Existing Zoning: Residential First Density "R1A-9" Zone for a portion of the subject property
Proposed Zoning: Residential First Density “R1A-9” zone, with site specific provisions
Purpose: To permit a hockey training facility
Property Address/Description: 2350 Gainer Street
Municipality: City of Thorold
Municipality File No.: D14-07-2020
OLT Case No.: PL200594
OLT File No.: PL200595
Heard: September 8, 2021 by video hearing
APPEARANCES:
Parties
Counsel
Michael and Ilana Agrette
Tom Halinski
City of Thorold
Thomas Hanrahan
MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON SEPTEMBER 8, 2021 AND ORDER OF THE TRIBUNAL
1Michael and Ilana Agrette (“Appellants”) filed applications with the City of Thorold (“City”) to amend the City’s Official Plan, Comprehensive Zoning By-law No. 2140 (97), and Zoning By-law No. 60-2019. The proposed amendments would facilitate the development of a hockey training facility at 2350 Gainer Street (“subject property”).
2The Appellants’ applications were refused by City Council and the Appellants appealed to the Tribunal.
3At a Case Management Conference, held on April 15, 2021, the Tribunal granted Participant status to Tina and Mike Peter and to Lindsay and Jeff Carpenter. They subsequently filed written submissions with the Tribunal to be considered when adjudicating the appeals.
4On August 12, 2021, the Tribunal was informed by the Parties that they had reached a proposed settlement of the appeals. The proposed settlement does not alter the proposed instruments that were considered by City Council in the Appellants’ original applications.
5On September 8, 2021, the Tribunal held a settlement hearing to address the proposed settlement.
ISSUES
6On an Official Plan Amendment appeal under s. 22(7) of the Planning Act, the issues that the Tribunal must determine are whether the proposed amendment:
a) is consistent with policy statements issued by the Minister of Municipal Affairs and Housing (in this case, the Provincial Policy Statement, 2020 (“PPS”));
b) conforms with applicable provincial plans (in the present case, A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”)); and,
c) represents good planning.
The Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Planning Act and also have regard to the decision of City Council and the information considered by it, as required by s. 2.1(1) of the Planning Act.
7The statutory requirements that the Tribunal must consider when making a decision on a zoning by-law amendment appeal under s. 34(11) of the Planning Act are whether the proposed amendment:
a) is consistent with policy statements issued by the Minister (again, in this case, the PPS);
b) conforms with applicable provincial plans (again, the Growth Plan);
c) conforms with applicable official plans (in the present case, the Regional Municipality of Niagara (“Region”) Official Plan and the City’s Official Plan); and,
d) represents good planning.
Also, the Tribunal again must have regard to the matters of provincial interest set out in s. 2 of the Planning Act and must have regard to the decision of City Council and the information considered by it, as required under s. 2.1(1) of the Planning Act.
EVIDENCE AND SUBMISSIONS
The Parties’ Evidence and Submissions
8Prior to the settlement hearing, the Appellants filed an affidavit sworn by Mary Lou Tanner on August 27, 2021. She is a land use planner retained by the Appellants. The Tribunal qualified her to provide opinion evidence in the area of land use planning. She also provided testimony at the settlement hearing.
9Ms. Tanner stated that the City’s planning staff, in a report to City Council, dated October 9, 2020, recommended Council’s approval of the proposed Official Plan Amendment (OPA No. 11) and the proposed Zoning By-law Amendments (Nos. 2020-142 and 2020-143). As noted above, City Council refused the applications on October 20, 2020.
10Ms. Tanner stated that the subject property is roughly 2.4 hectares in size. It is located in the Allanburg community of the City. It includes a single detached dwelling, an accessory building, and a storage building. She stated that the Appellants seek permission to convert the existing accessory building into a private hockey training facility. She said the installation of equipment for the facility has already been completed.
11Ms. Tanner stated that the proposed Official Plan Amendment is a site-specific policy change to permit the proposed hockey training facility. It would change the designation for the rear portion of the subject property (on which the existing accessory building is located) from General Industrial and Greenfield Overlay to Site-specific Policy Area 6.
12Ms. Tanner stated that the subject property is zoned as Residential First Density (R1A) under the City’s Comprehensive Zoning By-law No. 2140 (97) and as Single Detached (R1A) under Zoning By-law No. 60-2019. She stated that Zoning By-law No. 60-2019 was adopted by City Council to replace Comprehensive Zoning By-law No. 2140 (97). However, Zoning By-law No. 60-2019 is under appeal. She stated that the Appellants, therefore, must seek amendments to both zoning by-laws. The proposed Zoning By-law Amendments constitute site-specific zoning regulations for the hockey training facility in the existing accessory building. The proposed zoning includes site-specific provisions to be inserted in the two zoning by-laws, including provisions:
(a) adding a hockey training facility as a permitted use within the existing accessory building subject to the restrictions that:
(i) no more than 12 players shall use the facility at one time
(ii) the facility shall operate only between 12:00 p.m. and 8:00 p.m., Monday to Saturday, and 1:00 p.m. to 6:00 p.m. on Sundays;
(iii) outdoor mechanical equipment required for the ice surface shall be located at the northeast corner of the existing accessory building and shall be screened with acoustic fencing;
(b) removing the application of loading space requirements;
(c) requiring a total of 15 parking spaces for the hockey training facility and existing single detached dwelling;
(d) removing the application of requirements regarding access driveways to parking spaces;
(e) removing requirements that parking areas must be lit, but requiring that if lighting is proposed, light fixtures or standards shall be arranged so that light from them is deflected away from any residential uses;
(f) allowing the existing accessory building to be used for gain or profit by a hockey training facility; and,
(g) requiring the following provisions to apply:
(i) minimum two-way traffic aisle width - not applicable;
(ii) minimum stall depth for a zero-degree parking space – 5.8 metres.
13Regarding the applicable policies, Ms. Tanner opined that the proposed Official Plan Amendment and the proposed Zoning By-law Amendments are consistent with the PPS. She stated that the proposed hockey facility, its re-use of the existing accessory building, and measures to address noise and traffic concerns address the PPS’s economy, communities, recreation, and infrastructure policies.
14Ms. Tanner opined that the proposed Official Plan Amendment and the proposed Zoning By-law Amendments conform with the Growth Plan. She stated that the subject property is identified under the Growth Plan as being in a settlement area within the City and as a Designated Greenfield area. She stated that the proposed repurposing of an existing building for recreation uses in a Designated Greenfield area and the use of existing infrastructure assist in the implementation of the Growth Plan’s Designated Greenfield area policies and help to achieve a complete community.
15Ms. Tanner opined that the proposed Official Plan Amendment and the proposed Zoning By-law Amendments conform with the Region’s Official Plan. She stated that the subject property is also identified under the Region’s Official Plan as being located in a Designated Greenfield area. She reiterated that the proposed recreational use contributes to the development of a complete community. She stated that the scale of the proposed development using an existing building, the location of the proposed use (at the rear of the subject property), the integration of the proposed use with the mixed-use nature of the community (both existing and planned), and the low profile of the existing accessory building conform with the Region’s Official Plan policies.
16Ms. Tanner opined that the proposed Zoning By-law Amendments conform with the City’s Official Plan. She stated that the subject property is located within the City’s settlement area. She said the front portion of the subject property, including the single detached dwelling, is designated under the City’s Official Plan as Urban Living Area. She stated that the rear portion of the subject property, including the accessory building, is designated under the City’s Official Plan as General Industrial. The entire property is labelled Greenfield Overlay, making it subject to the City’s Greenfield policies in its Official Plan. She stated that the existing single detached dwelling is a permitted use under the Urban Living Area designation. She stated that the proposed hockey training facility will be a permitted use under the proposed Official Plan Amendment. She said the proposed development is appropriate within the existing accessory building as it re-uses an existing building, has an appropriate scale, is appropriately sited, addresses noise and traffic concerns, and is appropriate in terms of compatibility. She stated that residential zoning is appropriate on the subject property as it recognizes its existing and planned uses.
17Ms. Tanner stated that the proposed Official Plan Amendment and the proposed Zoning By-law Amendments have regard to the matters of provincial interest set out in s. 2 of the Planning Act. In her witness statement attached to her affidavit, she stated that by facilitating the re-use of the existing accessory building, the proposed Amendments support the mixed-use nature of the area and provide for recreational uses that contribute to the orderly development of a safe and healthy community. She stated that the subject property is located in an appropriate location for growth and development.
18Ms. Tanner also opined that the proposed Official Plan Amendment and the proposed Zoning By-law Amendments constitute good planning.
19Ms. Tanner stated that the proposed Official Plan Amendment and the proposed Zoning By-law Amendments facilitate an appropriate use of the accessory building and address community concerns. She opined that noise and nuisance concerns are addressed through the siting of the accessory building at the rear of the subject property and through the restrictions in the proposed Zoning By-law Amendments regarding noise, lighting, operation times, and the number of hockey players allowed at one time. She stated that parking for the proposed development would be located next to the accessory building and far from neighbouring properties and she opined that the proposed development would not unduly impact the privacy of neighbours or cause odour or chemical emissions. She stated that no specific traffic or road safety issues have been identified and the City’s Operations Department found that the proposed development creates no such issues.
20The City supported the Appellants’ evidence and submissions.
The Participants’ Submissions
21Mr. and Ms. Peter and Mr. and Ms. Carpenter filed written submissions with the Tribunal. Mr. and Ms. Peter raised privacy, dust, parking, and noise concerns. They stated that people entering the subject property would pass their home and invade their privacy. They stated that cars entering the subject property would result in dust in the air and parking would be visible from their home. They also said the cooling equipment for the rink would emit noise, odours, and possibly chemical contaminants. They said the proposed development would cause pedestrian safety and traffic problems and change the character of the neighbourhood.
22Mr. and Ms. Carpenter raised concerns regarding traffic and pedestrian safety arising from the proposed development. They stated that the proposed development would alter the dynamic of the community and that the residential area in which the subject property is located should not accommodate commercial businesses.
FINDINGS
23Based on Ms. Tanner’s uncontradicted opinion evidence, the Tribunal finds that the proposed Official Plan Amendment and the proposed Zoning By-law Amendments are consistent with the PPS, conform with the Growth Plan, and constitute good planning. It also finds that the proposed Zoning By-law Amendments conform with the Region’s Official Plan and the City’s Official Plan. The Tribunal has had regard to the matters of provincial interest in s. 2 of the Planning Act and the decisions of City Council and the information that Council had before it.
24The Tribunal notes the concerns raised by the Participants, but is satisfied, based on Ms. Tanner’s evidence, that the proposed development is appropriately sited and will not cause significant privacy issues or nuisances, such as air, dust, water or undue noise problems. It also notes her evidence that the proposed development will not cause traffic or road safety issues.
ORDER
25The Tribunal orders that the appeals are allowed.
26The Tribunal orders that the City’s Official Plan is amended as set out in Schedule 1 attached to this Order and Decision.
27The Tribunal orders that the City’s Comprehensive Zoning By-law No. 2140 (97) and Zoning By-law No. 60-2019 are amended as set out in Schedule 2 attached to this Order and Decision.
28The Tribunal authorizes the municipal clerk to assign numbers to the Zoning By-law Amendment for record keeping purposes.
“Hugh S. Wilkins”
HUGH S. WILKINS
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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.