Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 28, 2021

CASE NO(S).: PL190296

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Rhonda Culin

Subject: By-law No. 2019-85Z

Property Address/Description: Parcel 29390 SES, Lot 7, Concession 1

Municipality: City of Greater Sudbury

OLT Case No.: PL190296

OLT File No.: PL190296

OLT Case Name: Culin v. Greater Sudbury (City)

Heard: March 12, 2021 by Video Hearing

APPEARANCES:

Parties	Counsel
City of Greater Sudbury	K. Gravelle
Rhonda Culin (“Appellant”)	J. LeBlanc
South End Hygiene Services Inc. (“Applicant”)	K. Mullin M. Poremba

DECISION DELIVERED BY D.S. COLBOURNE AND ORDER OF THE TRIBUNAL

1This third-party Appeal of Greater Sudbury Council’s enactment of a site-specific zoning amendment was filed June 21, 2018, and thus, fell under the Bill 139 regime of amendments to the Planning Act (the “Act”). Subsequently, further amendments in Bill 108 came into force September 3, 2019. These restored in large part, the traditional appeal regime prior to Bill 139. However, it required that the Appellant file another notice of appeal to transition from Bill 139. This Appellant did not file another appeal, and thus, the hearing process remained under Bill 139 regime.

2The Tribunal conducted two Case Management Conferences (“CMC”) in this matter, one in September 30, 2020, and the other October 28, 2020, and ultimately, directed that the Hearing be in writing.

3At the first CMC, the landowner, South End Hygiene Services Inc. (“South End” or the “Applicant”) was granted Party status. Under the Bill 139 provisions, the Applicant had no automatic right to be a Party.

4At the second CMC, both Glenda Hicks and Patricia Daley were granted Participant status. Both had filed documents to support their application for status, which also included their positions in support of the Appeal.

5In brief, under Bill 139, the framework for the hearing of certain appeals under the Act changed substantially which has occurred in this matter. The Act has long required that decisions on such appeals be consistent with or not conflict with the provincial policy statements in effect, and they must conform with the provincial plans that are in effect on the decision date. However, many substantive and procedural changes occurred with Bill 139.

6Under the new legislative framework, these consistency and conformity tests were expanded to be the only grounds for appeal from Official Plan (“OP”) and zoning by-law matters. The basis on which persons may be added as Parties or Participants also changed. There was also mandatory dismissal of certain appeals.

7The Local Planning Appeal Tribunal Act required at the time that those persons who are not Appellants (even the owner of the property in question) or the municipality whose planning instruments are under appeal, must make a written submission to the Tribunal requesting status in the proceeding. The statute sets out specific requirements for content and filing.

8The submission had to address whether the decision of the municipality was inconsistent with a provincial policy statement, did not conform with or conflicted with a provincial plan; or failed to conform with an applicable official plan. A Zoning By-law Amendment (“ZBA”) appeal had to address conformity with “an applicable official plan”.

9The grounds for a third party appeal, then, were inconsistency with the 2020 Provincial Policy Statement (“PPS”), and conformity or conflict with a provincial plan or with an applicable official plan, or a zoning by-law’s non-compliance with the OP. These were about the only grounds on which the Tribunal could reject an Appeal.

10In this case, the Hearing took place in written form, on the basis of the Municipal Record, the Appeal Record filed by the Appellant, the Responding Record filed by the City and the written submissions of the Applicant. The Tribunal also considered the Participants’ statements. The Appellant in filing her Appeal raised the issues of consistency with the PPS, s. 1.2.6 and s. 1.6.8, and the lack of conformity with the OP, s. 14.2 and s. 14.5.

11The Bill 139 process, in this matter, became somewhat procedurally complicated because of the following:

12On October 9, 2019 the City of Greater Sudbury, a Party to the proceedings, advised:

The City of Greater Sudbury takes no position and the City will not be responding to or submitting any materials in relation to the appeal.

13However, on August 31, 2020 (almost a year later), the City filed two document briefs. One, a Responding Case Synopsis, and two, a Responding Appeal Record. These did not meet the Procedural Order time requirements. This was all during the time of the transition via Bill 108.

14The City is a statutory Party. The City documents contained the background and timing of the Application and Appeal, and all of the Planning staff, Planning Committee and Council proceedings and reports, prepared by the City in the matter. It also included argument on the planning issues, and a planning report of the Applicant’s planner in support of the proposal.

15The factual background of the Application and the Appeal is:

a. South End, the Applicant, is the owner of a parcel with the municipal address 402 Martilla Drive located at the northeast corner of that street and Regent Street, in the City of Greater Sudbury. There is a frontage of 28 metres (“m”) on Martilla Drive, a local road, and a 48 m frontage on Regent Street, which is a Secondary Arterial.

b. Rhonda Culin, the Appellant, owns or co-owns three properties in the same ”block face” (surrounding area). They are: the property abutting the northern lot line (corner of Austin and Regent) 1396 Regent Street, and she co-owns another property that forms part of the block face between Martilla Drive and Austin Street. She also co-owns 357 Martilla Drive. One of the Participants and her husband own 388 Martilla Drive, east of No. 357.

16The subject site is designated as Mixed Use Commercial in the OP, and was previously zoned R2-2, low density residential 2 in the City’s Zoning by-law, in line with the Low Residential District designation that applied previously to the site. The property is currently vacant.

17The area surrounding the site has both commercial and residential uses. To the north is a single detached residence, south and east are low and medium density residential, and in the west are commercial and institutional uses and low, medium and high density residential. There are also some vacant parcels similar to the subject.

18The abutting lands are designated Linear Mixed Use District under the former Sudbury Secondary Plan. They are zoned H17C3.D90(19) Holding - Limited General Commercial Special. That was due to the efforts of those surrounding owners in 1997. The owner of the subject property was not involved.

19That Limited General Commercial zoning of the surrounding properties permits scoped commercial uses, limited to offices, personal service shops or retail stores. It also permits the existing residential uses.

20The “hold” symbol requires that certain site-specific items be dealt with to permit commercial uses. One of these items includes that the owners of land in ”a single block face” area enter into a Site Plan Control Agreement.

21South End submitted its application for amendment to rezone its lands to provide for a medical (dental) office, which is what is to be developed.

22In Pre- application consultation, however, the City staff suggested that a C3 special zoning allowing all uses permitted in the Mixed Use Commercial designation was more appropriate and more flexible. The City staff also required that a concept plan be prepared for the site and abutting properties (388 Martilla Drive, 1396 Regent Street and 373 Austin Street).

23A concept plan was prepared by the Applicant’s planner for the site and in the surrounding area as the Applicant states “to show that the proposed development would not preclude development of the abutting lands”. A consultation meeting was held with the neighbours on October 23, 2018 to present the concept plan.

24The required Public meeting on the planning application was held January 23, 2019. The Planning staff report prepared for that meeting recommended that the by-law amendment be approved, subject to a condition that the zoning include a holding category, and that a Site Plan Control agreement for all lands within the single block face (set out above) was required prior to lifting the holding designation.

25While the planning staff had no concerns as to the consistency with the 2020 PPS and the conformity with the Growth Plan of Northern Ontario (“GPNO”) some issues of conformity with the current OP Amendment (“OPA”) or OP such as discouraging small lot rezoning, which leads to the requirement of a Site Plan Control Agreement, and the lack of the requirement of a landscaping strip were of concern.

26The planning report summary prepared by the Chief Senior planner (Tab 3 – Appellant’s Appeal Record) contains the following:

The application (subject) was for C3, Limited General Commercial, with the main use a dentist’s office. Site specific relief is required for rear and corner side yard setbacks, lot frontage, landscaping, and the location of a refuse storage area for that specific dental use.

27The proposal presents concerns related to the suitability of the lot to accommodate all C3 uses and their interface with abutting single detached dwellings to the north and east. The Applicant wanted a dental facility, and was persuaded to accept C3 zoning and then is subject to criticism that the site is not large enough for all other C3 uses.

Planning Services recommends that the subject property be rezoned to “H17C3.D90(19)”, Holding Limited General Commercial Special which is the special zoning applied to the adjacent lands comprising the single block face.

28On those terms, Planning Services ultimately had no issue in terms of the conformity with the OP.

29At the first meeting, Planning Committee of Council deferred consideration of the application, in order to allow the Applicant and the abutting owners to attempt to come up with an agreement for a single block face development plan for all of the surrounding properties. There were two meetings to give effect to this and both made it clear that none of the other owners had plans for redevelopment nor were they willing to commit to development of a plan, nor a related agreement, at least partly because of costs involved.

30South End’s concern, in all of this, was that applying the holding symbol would have the effect of preventing any commercial development in any reasonable period of time.

31The Planning Committee ultimately adopted a resolution approving the ZBA with six site-specific exceptions related to the development of a dental facility. The Applicant’s concept plan they believed accommodates the facility, given existing surrounding development with present separation and foliage. The exceptions given the size of the lot were in the rear and corner setbacks of 2 m, a 2-m landscaped strip adjacent to the road, no landscaped strip along the northerly lot line, parking to be permitted within 3 m of the abutting residential development and refuse storage within the front yard. All of this was approved by Council.

32The City’s position (Council and Planning Committee) is that even in the absence of a holding provision as recommended by Planning staff, the ZBA is consistent with the PPS and conforms with the OP. The City argues that despite the absence of a holding provision requiring that a “single block face” be developed together, the proposed development can still be integrated with any future development on the abutting properties as shown in the concept plan.

33As earlier indicated, no issue was raised with respect to conformity with the GPNO, and the Planning staff agreed with that opinion.

34Planning staff, Planning Committee, and Council and the planner for the Applicant accepted that the OPA designation is Mixed Use Commercial. It is only the Appellant and her planner who are not on the same page.

Conformity with the Official Plan is based on a review of those above noted policies.

35The Planning staff report of December 8, 2019, contains what I believe are the OP matters they considered were relevant.

In order to minimize the disruption of traffic flow along Arterial Roads and promote better development, small lot rezoning will be discouraged and land assembly for consolidated development will be promoted.

36The OP policies applied to Mixed Use Commercial Corridors discourage small lot redevelopment on major arterial roads, where lot consolidation is the preferred development scenario.

37This is particularly relevant in this case, as the adjacent lands comprise a single block face area that is subject to a special zoning that requires a Site Plan Control agreement, amongst other matters.

38Landscaping along the entire length of road frontages and buffering between non-residential and residential uses will be provided.

39In discussing the suitability of the lot, the Planning Staff sets out comments on pg. 23 of its report of December 6, 2018:

“The site presents constraints due to its size and configuration, proximity to low density residential uses and the setback applied to Secondary Arterial Roads. The corner lot also requires a 9.0 m sight triangle, which prohibits parking and structures that would obstruct site lines.

The site constraints are reflected by the range of site-specific relief required by this proposal. Despite the relatively small building footprint that is proposed, variances are required for setbacks, landscaping and the location of a refuse storage area.

• The built form is 1 metre from the Regent Street property line.

• There will not be a 3.0 m landscaped area adjacent the full length of the street line

• The rear yard reduction places the built form directly adjacent to the northerly lot line

• A full planting strip for buffering and screening cannot be provided.

• Although the abutting lands are subject to a special zoning that may include future commercial and /or medium density residential development, consideration must be extended to the current single residential use.

40While being concerned with those aspects of the OP conformity, the Planning staff recommended approval of the C3 special zoning subject to the H provision.

41For the immediate surrounding uses, the zoning is H17C3.D90(19), which permits scoped commercial uses, limited to offices, personal service shops or retail stores, as well as the present residential uses. As it was earlier set out, those lands were zoned following the adoption of OPA No. 183, which changed the designation of the abutting lands to Linear Mixed Use District.

42On the issue of the PPS, in referencing the 2014 statement, contrary to the Appellant and her planner’s opinions, the Planning staff report states: “the application is consistent with the relevant policies of the PPS,” for the reasons set out on pg. 25 of their December 6, 2018 report. I have already referred to the applicability of the 2020 PPS statement in this matter.

43Similarly, in the Planning staff’s view of the 2011 GPNO is that: “The application conforms with the Growth Plan for Northern Ontario”, again for the reasons set out on pg. 25. The Appellant does not dispute that issue.

44The H symbol is in place for the surrounding lands and one presumes that is why the Planning staff wanted it placed on the subject lands to overcome their concern of a single lot rezoning surrounded by lands, subject to the block plan development scheme. It might also presumably alter the impact of the requirement of some of the specific by-law exceptions.

45Quite rightly, the Applicant points out, and I agree that the OP allows the City to use the Holding provisions under circumstances set out in s. 19.5.4 of the OP. None of those apply in these circumstances. There is an appellant issue with respect to rock and blasting, but the Applicant points out there are provisions for blasting requirements from the appropriate City department to be followed by the Applicant and undertaken prior to building.

46No other City department including transportation had issues with the development.

47The Appellant’s opinion:

is that the subject property should be appropriately rezoned to H17C3.D90(19), Holding Limited General Commercial Special, which will allow a mix of residential uses similar to the adjacent properties, including a dentist’s office. This will effectively round out the existing single block face area, which is desirable from a land use perspective (pg. 26)”. This would only allow residential on the subject site until the surrounding few owners agree to further overall development.

The parameters for corridor redevelopment on this part of Regent Street were established through a comprehensive planning approval in 1997, which required concurrent rezoning

48That is not what the development was on the property and not what this owner wants.

49The situation is that the surrounding owners (the majority being the Appellant) back in 1997, were effective in obtaining OP and zoning approval to permit and control the development of the block. The subject property owner did not participate and is thus, an island. The surrounding owners have the ability to do what the subject owner is trying to do now. The timing is in their control and currently they wish to remain residential and oppose the dental office here.

50Is it equitable that this vacant property owner be controlled on development to the desires of the surrounding landowners, especially given the multiple property ownership by one party? I accept the OPA policies to safeguard haphazard development of small contiguous lots as reasonable but, unless all owners of the entire block agree it is not equitable.

51In that vein, the City on the application required the Applicant to prepare a concept plan to demonstrate that the proposed dental office would not preclude development of the abutting lands. That plan, in my view, accomplished that goal.

52Subsequently, the Planning Committee during its deferral of the application required the Applicant to meet with the surrounding owners to attempt to come up with an agreement for a comprehensive single block face development plan. That failed since there was no will on the part of the surrounding owners to develop a plan nor any agreement at that time. Again, an opportunity missed to develop an overall plan for the block.

53After the CMCs, the Tribunal invited further submissions and responses from the both the Appellant and the Applicant, and received more than requested from the Appellant. The Appellant’s planning opinions are not helpful, nor do they carry the weight to be accepted as expert, given the obvious conflict of interest. The Tribunal also received further opinions from M. Kivistik, a planner, on behalf of the Appellant, whose affidavit was also excess to the invited submissions.

Procedure for the Hearing

54As mentioned, in the Bill 139 process, the Tribunal determines the method of hearing, and whether it requires oral evidence from witnesses. With considerable written materials already filed, the Tribunal determined that these were sufficient to enable it to reach a Decision. The Tribunal advised that it saw no need to call witnesses for examination.

55On the issue of OP conformity, the Appellant and her planner are of the view that the previous OP that was in place prior to the ZBA application on August 2018, is the one in force. This is so even though OPA No. 88 giving the Mixed Use Commercial designation to the site was adopted by Council on June 26, 2018. The zoning by-law was enacted April 8, 2019. They state that since the OPA was approved by the Minister in April 2019, the Clergy principle applies.

56I agree with Ms. Mullin in that the Clergy principle is used for the benefit of applicants not appellants. The Clergy principle does not apply in this circumstance.

57Section 24(2) of the Act provides:

(2) if a council or a planning board has adopted an amendment to an official plan, the council of any municipality or the planning board of a planning area to which the plan or any part of the plan applies may, before the amendment to the official plan comes into effect, pass a by-law that does not conform with the official plan but will conform with it if the amendment comes into effect

(2.1) - A by-law referred to in subsection (2),

(a) shall be conclusively deemed to have conformed with the official plan on and after the day the by-law was passed, if the amendment to the official plan comes into effect:

58Consistency with the PPS was raised by the Appellant and her planner, Mr. Kivistik. This is in part based upon their view that the 2014 PPS is the only consideration. While one considers the policy applicable at the time of the application, the later policies of 2020 are equally applicable, especially since, in this case, they were put in place May 2019.

59No one takes issue with the zoning application related to the policies in the GPNO, neither the current nor previous one.

60Contrary to the Appellant’s position, on the issue of the PPS, I accept that the 2020 version is the one to be considered and I as well as the Planning staff have concluded consistency, which has been extensively outlined in the Applicant’s and City’s document books.

61The ZBA enacted by Council is consistent with s. 1.1.1 and s. 1.1.3.2 of the PPS because it allows an employment use to situate on the Site, whereas the existing R2-2 zoning would only permit residential uses. Intensification on the Subject lands is appropriate because it is situated in a Settlement Area on an arterial road in the City. There is public transit within close proximity and the subject lands benefit from existing sewer, water, road, active transportation and public transportation infrastructure, which can meet the needs of the development. Site-specific performance standards allow for more efficient use of the Site instead of leaving it vacant.

62Section 1.1.3.4 is complied with since the site has a larger area than what is required and has close to the needed frontage. The site-specific standards recognize the site as an appropriate size and will facilitate redevelopment.

63The reduced rear yard setback benefits from the existing vegetation strip on the adjoining property, parking will be mitigated by a fence, the Molok system of refuse storage is aesthetic and reduces the impact on the residence on the east, and facilitates the City’s collection process.

64With respect to s. 1.3.1, as the site is vacant and underutilized, the ZBA will facilitate economic activity in an area designated Mixed Use Commercial. In the absence of the site-specific standards in the ZBA, the site would not be developable for a commercial use and is contextual and an area-appropriate investment opportunity would be lost.

65I am satisfied on the issue of consistency with the appropriate PPS provisions and find that the Appellant has not met the test, in part because of the focus on the 2014 PPS.

66In this matter, I look to the Planning Staff concerns on the issue of OP conformity, which were only peripherally raised by the Appellant.

67I am satisfied on the issue of the H (holding category for reasons previously stated) that it is not appropriate to be applied in these circumstances.

68In this case, the OP requirement for block, rather than single site development, shows how difficult (inequitable) such a proposal can be in reality. The 1997 agreement of surrounding properties, which excluded this site and the majority ownership pattern surrounding it was unable to assist in the development proposed.

69What remains for me are the concerns on the issue of the exceptions required for the development and the configuration of the lot. Given the size of the lot and having reference to the setbacks, and recognizing the surrounding residential development, the location of the single structure closer to the street, with parking to the rear, the fencing for the parking separation, the underground disposal unit, all I believe respond appropriately to the concerns the Appellant and the Planning staff raised in terms of the Official Plan.

70These all relate to the setbacks, planting strips, buffering for parking and the storage and acknowledgment of surrounding uses. The rezoning of individual lots is discouraged and development in a block face is the appropriate method of development.

71On the submissions made, I am satisfied that the Appellant has not met the onus placed on her and hereby dismiss the appeal.

“D.S. Colbourne”

D.S. COLBOURNE 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.

WRITTEN SUBMISSIONS

City Synopsis August 31, 2020 – Responding Case

City Notice of Appeal August 31, 2020 – Responding Appeal Record

South End – Applicant September 10, 2020 – Party Status Submission

South End November 25, 2020 – Written Submissions

South End December 24, 2020 – Reply Written Submissions

South End February 4, 2021 – Written Submission

South End February 9, 2021 – Reply Written Submissions

Rhonda Culin – Appellant Appeal Record – Date

Rhonda Culin - Case Synopsis

Rhonda Culin Affidavit

Rhonda Culin Final Submissions in Reply

Mr. Kivistik Affidavit

Glenda Hicks – Participant August 24, 2020

Patricia Daley – Participant August 20, 2020