Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 25, 2022

CASE NO(S).: PL210047

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: Niacon Limited Construction Company

Subject: Request to amend the Official Plan – Failure of the Town of Fort Erie to adopt the requested amendment

Existing Designation: Commercial

Proposed Designation: Special Policy Area

Purpose: To permit the construction of a self-storage facility

Property Address/Description: 625 Garrison Rd. & 0-10389 Helena St.

Municipality: Town of Fort Erie

Approval Authority File No.: 350309-0507

OLT Case No.: PL210047

OLT File No.: PL210047

OLT Case Name: Niacon Limited Construction Company v. Fort Erie (Town)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Niacon Limited Construction Company

Subject: Application to amend Zoning By-law No. 129-90 – Refusal or neglect of the Town of Fort Erie to make a decision

Existing Zoning: Highway Commercial (C3-489) Zone

Proposed Zoning: Highway Commercial (C3) Zone, site specific

Purpose: To permit the construction of a self-storage facility

Property Address/Description: 625 Garrison Rd. & 0-10389 Helena St.

Municipality: Town of Fort Erie

Municipality File No.: 350309-0507

OLT Case No.: PL210047

OLT File No.: PL210048

Heard: October 6 to 8, 2021 by Video Hearing

APPEARANCES:

Parties	Counsel
Town of Fort Erie	Thomas Hanrahan
Niacon Limited Construction Company	Jennifer Meader

MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN COOKE ON OCTOBER 6, 2021 AND ORDER OF THE TRIBUNAL

1The matter before the Tribunal was a settlement hearing for Niacon Limited Construction Company (the “Applicant”) for the failure of the Town of Fort Erie (the “Town”) to make a decision within the legislative prescribed timelines under s. 22(7) for an Official Plan Amendment (the “OPA”) and s. 34(11) of a Zoning By-law Amendment (the “ZBA”) applications for the property municipally known as 625 Garrison Road (the “Subject Site”).

2The Applicant proposed to construct a 9,996 square metre (“sq m”) indoor and outdoor storage facility, located within 19 buildings, with 83 outdoor vehicle storage spaces.

3The Subject Site is an irregular shaped lot that has a long driveway from Garrison Road, and has a frontage on Helena Street as shown in the diagram, on page 3 of the Decision, taken from the Visual Evidence marked as Exhibit 3.

PLANNING EVIDENCE

4Gerry Tchisler was qualified by the Tribunal to give expert land use planning evidence and opinion.

PLANNING ACT

5In addressing s. 2 of the Planning Act, Mr. Tchisler testified that the Subject Site had previously gone through an Environmental Impact Study (the “EIS”) in 2013 for a previous development application. The EIS indicated that there is no significant woodland, wildlife habitat or wetlands on the Subject Site. The Subject Site does have a 24 metre setback of provincially significant wetlands. The setback between the Subject Site and the wetlands includes a retired rail line that has been converted into part of the Town trail system.

6The Tribunal was informed that a lot of the Town urban area is designated as Petroleum Resource Area. It was the opinion of Mr. Tchisler that the proposed development has no impact on active petroleum wells.

7Mr. Tchisler proffered that the Subject Site is located in an existing urban area that is designated for development and would utilize municipal infrastructure and utilities that are already there.

8It was the expert opinion of Mr. Tchisler that the applications conforms to the Planning Act.

Provincial Policy Statement (“PPS”)

9Mr. Tchisler gave his opinion that the proposed is consistent with various policies of the PPS.

10Policy 1.1.1 states that healthy, liveable and safe communities are sustained by:

a) promoting efficient development and land use patterns which sustain the financial well-being of the Province and municipalities over the long term;

b) accommodating an appropriate affordable and market-based range and mix of residential types (including single-detached, additional residential units, multi-unit housing, affordable housing and housing for older persons), employment (including industrial and commercial), institutional (including places of worship, cemeteries and long-term care homes), recreation, park and open space, and other uses to meet long-term needs;

c) avoiding development and land use patterns which may cause environmental or public health and safety concerns.

11It is the opinion of Mr. Tchisler that the proposed development promotes the efficient development of land. As the Subject Site is located behind the existing commercial uses, it will continue to maintain the streetscape.

12Mr. Tchisler stated that while the direct creation of employment would be limited, a storage facility of this size would support the economy by providing storage spaces for other local businesses that generate employment in the area. The proposed development would consist of larger units that are designed for the trades industry.

13As previously indicated, the EIS that was completed, addresses Policy 1.1.1 c), and that this development should not cause environmental, public health or safety concern.

14Mr. Tchisler testified that although the proposed development would have the sole purpose of being a storage facility, the mixture of commercial and public sized storage units contributes to the objectives of mix of uses, in an existing built-up area as desired under Policy 1.1.3.6.

15While the Subject Site is currently vacant lands, it is within a settlement area and has access to municipal infrastructure. Mr. Tchisler states that the proposed development is consistent with Policy 1.6.6.2 that states:

Municipal sewage services and municipal water services are the preferred form of servicing for settlement areas to support protection of the environment and minimize potential risks to human health and safety. Within settlement areas with existing municipal sewage services and municipal water services, intensification and redevelopment shall be promoted wherever feasible to optimize the use of the services.

16It was the recommendation from Mr. Tchisler that the proposed OPA and ZBA application should be approved as it is consistent with the PPS.

Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”)

17The Growth Plan set out broad policies for development within urban areas. It is the opinion of Mr. Tchisler that the Subject Site is located within a settlement area that has a delineated built boundary, serviced by existing municipal infrastructure. Storage for residents and businesses provide opportunities for more compact housing by providing opportunities for off-site storage that will contribute to support the achievement of complete communities.

18It is his opinion that based on the proposed developments and contribution to the support of achieving complete communities, the OPA and ZBA applications conform to the Growth Plan.

NIAGARA REGION OFFICIAL PLAN

19The Tribunal was informed that the Niagara Region Official Plan (the “ROP”) designates the Subject Site as being within an Urban Area Boundary and Designated Greenfield Area. The objectives of these policies are that growth management is directed to existing urban area, compact built transit supportive, efficient use of existing municipal sewage and water services, and a mix of land uses for complete communities.

20Mr. Tchisler testified that the proposed development represents an orderly use of existing roads and municipal services, on a vacant lot that is within an existing urban area. It is his opinion that the creation of a storage facility supports the ROP objectives of a complete community.

TOWN OF FORT ERIE OFFICIAL PLAN

21Mr. Tchisler outlined the general goals and objectives of the Town’s Official Plan (the “TOP”). It was his opinion that the proposed development represents an efficient and orderly use of vacant lands in an existing urban area. The vacant lands are located over 100 metres from the main commercial street of Garrison Road that will allow for the Town to maintain a streetscape marketed for commercial uses.

22It was the opinion of Mr. Tchisler that the proposed development on underutilized vacant lands represents an economic investment in supporting employment opportunities and an increase to the Subject Site’s property taxes.

23Schedule “A” of the TOP designates that the Subject Site as Commercial and is within a Site Specific Policy Area No. 5 (the “SSPA 5”). SSPA 5 requires the completion of an EIS for properties before they may proceed with development. Mr. Tchisler informed the Tribunal that the previously conducted EIS has satisfied the Town of this requirement.

24The SSPA 5 also called for the completion of the Frenchman’s Creek Trunk Sanitary Sewer Project. Mr. Tchisler informed the Tribunal that the Region has completed the project throughout the entire SSPA 5 area.

25The Subject Site is zoned Highway Commercial. The Tribunal was told by Mr. Tchisler that the Highway Commercial category is primarily used for commercial uses that depend on vehicular traffic and the travelling public as the source of their businesses.

26While the Subject Site only has a 15 metre frontage on Garrison Road with the majority of the Subject Site lands setback 100 metres from the road, it is the opinion of Mr. Tchisler that the nature of a storage facility is economically viable. While a storage facility is vehicular dependent for those living and working in the area, it is not dependent on business from the travelling public.

27The proposed development will utilize the existing access from Garrison Road. The Town has requested that an additional access from Helena Street be created. Mr. Tchisler confirmed that the Parties have agreed to include the new access point.

28Mr. Tchisler testified that the proposed development addresses the Urban Design Policies within the TOP by providing landscaping along the perimeter of the entire Subject Site.

29It was the opinion of Mr. Tchisler that the proposed OPA and ZBA applications represent good planning, that it is in the public interest and conforms to the TOP.

ANALYSIS AND FINDINGS

30In determining this matter, the Tribunal accepts and adopts the uncontested land use planning evidence and expert opinions provided Mr. Tchisler. The Tribunal is persuaded by the evidence that the proposal promotes efficient development of land, accommodates a range of supportive uses for the area, intensifies uses within the settlement area, maximizes the use for existing municipal infrastructure, and supports complete communities as desired by the Region and the Town.

31The Tribunal finds that the proposal is consistent with the policy direction established by the PPS and conforms to the relevant directives established by the GP, and as maintained by the ROP and the TOP. The Tribunal is further satisfied that the proposal has due regard for matters of Provincial interest, is consistent with the principles of good land use planning and is in the greater public interest. More significantly, the proposal furthers the goals and objectives of the Provincial planning regime by providing infrastructure support to businesses that allows for increase employment opportunities.

ORDER

32THE TRIBUNAL ORDERS that the appeal is allowed, and the Official Plan for the Town of Fort Erie is amended as set out in Attachment “1” to this Order.

33THE TRIBUNAL ORDERS that the appeal is allowed, and By-law 129-90 is hereby amended in a manner set out in Attachment “2” to this Order. The Tribunal authorizes the municipal clerk to assign a number to this by-law for record keeping purposes.

“Steven Cooke”

STEVEN COOKE 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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT 1

ATTACHMENT 2