Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 11, 2022
CASE NO(S).: OLT-21-001151
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: Stephen Charalambides
Subject: Application to amend Zoning By-law No. 03-56 & 03-57– Refusal of application by the Township of Adjala-Tosorontio
Existing Zoning: Agricultural (A) & Open Space Conservation (OSC)
Proposed Zoning: Site Specific
Purpose: To permit an accessory structure where such structure is not permitted and to permit accessory structure larger than is permitted
Property Address/Description: 7406 Concession Rd. 2
Municipality: Township of Adjala-Tosorontio
Municipal File No.: Z02/21
OLT Case No.: OLT-21-001151
OLT File No.: OLT-21-001151
OLT Case Name: Charalambides v. Adjala-Tosorontio (Township)
Heard: March 1, 2022 by Video Hearing
APPEARANCES:
Parties
Counsel
Stephen Charalambides
Matt Hodgson
(“Appellant”)
Township of Adjala-Tosorontio
James J. Feehely
(“Township”)
MEMORANDUM OF ORAL DECISION DELIVERED BY M. RUSSO ON MARCH 1, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Ontario Land Tribunal (the “Tribunal”) is with respect to an appeal filed under s. 34(11) of the Planning Act (the “Act”) and filed within the statutory timeframe specified by the Act. The lands subject to the appeal are municipally known as 7406 Concession Road 2 (the “subject lands”).
2The Appellant appealed the refusal of draft By-law No. 2021-123, which proposed to rezone part of the subject lands to the Agricultural Exception 123 (“A-123”) Zone. The effect of the amendment would permit a small portion of lands to be rezoned from the Open Space Conservation (“OSC”) to the A-123 Zone and the remaining Agricultural (A) Zone to the A-123 Zone to permit an accessory building having a maximum building area of 168 square metres (“m2”) and being set back a minimum of 23 metres (“m”) from the closest watercourse. The majority of the OSC Zone lands would remain as zoned and undisturbed.
3The Parties have settled and worked through previously contested issues and thus, a settlement hearing was scheduled before the Tribunal.
4The proposed settlement and Zoning By-law Amendment (“ZBLA”) to rezone part of the subject lands as described above, now includes or has proposed a restriction to the uses Permitted, and to modify Section 3 - General Provisions of Township’s Zoning By-law No. 03-57, to:
a) permit an increase in maximum building area from 100 m2 to 168 m2 for the proposed new accessory building; and,
b) reduce the required distance between the proposed ‘site alteration, building and structure’ to a watercourse from 30 m to 23 m.
Collectively, the above are referred to as the “proposal”.
Description of Subject Site and Surrounding Context
5The subject lands front onto the west side of Concession Road 2 and have a total lot frontage of 121.9 m. The lot area is 0.80 hectares.
6The subject lands currently have an existing two (2) storey, single detached dwelling, a well, septic system, single lane driveway, a vehicle parking area, a 9 m x 18 m concrete pad, numerous trees, a stream, and a pond. Previously existing onsite, was a small cabin accessory building, where the now newly proposed accessory building is to be erected. The lands slope downward from the north lot line to the pond area of the lot. A watercourse flows across the southern half of the lot from the west lot line to the east lot line, then underneath Concession Rd. 2.
7The subject lands can be described as a rural residential lot situated in a rural area. The lot is tree covered other than the area of proposed construction, the existing dwelling and a pond and wetland situated on the southern portion of the property. Surrounding lands consist of a mix of agricultural and rural lots as well as Christmas tree plantations. Lands to the west and east consist of woodlands and wetlands associated with a watercourse, which flows from west to east through the southern portion of the lot through the pond.
8The area surrounding the Subject Lands are zoned Agricultural (A), Agricultural Exception 129 & 130 (“A-129 & A-130”) and OSC.
Applicable Legislation and Policies
9Land use planning in Ontario is a policy-led system implemented in hierarchical fashion. This system is deliberately crafted to recognize that there cannot be a one-size fits all approach to implementing policy framework, given the diversity of Ontario’s local communities. As such, the broader Provincial policies and objectives are to be implemented by each municipality through their Official Plan (“OP”), Zoning By-laws (“ZBL”), issue-specific guidelines, etc.
10Although the Parties have settled their issues, the Tribunal must still determine if the proposal meets provincial interests and municipal policy framework. In adjudicating the appeal, the Tribunal must have regard to matters of provincial interest enumerated in s. 2 of the Act. The Tribunal must be satisfied that the proposal is consistent with the Provincial Policy Statement, 2020 (the “PPS”) and pursuant to s. 3(5) of the Act. Further, the Tribunal must also find that the proposal conforms with policies of the provincial plan: A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (the “Growth Plan”). Lastly, the Tribunal must be satisfied with the proposal’s conformity with the upper tier, County of Simcoe (“County”) OP as well as the Township OP, and that it represents good land-use planning in the public interest.
THE HEARING
11The Tribunal swore in Gordan Russell. Provided in Exhibit 1 was his Acknowledgement of Expert’s Duty form and Curriculum Vitae. Having reviewed both and hearing no objections, the Tribunal qualified Mr. Russell to provide opinion evidence in the field of land use planning.
12Mr. Russell provided his viva voce testimony to the Tribunal, but also relied on written and visual evidence found in:
Exhibit 1 - Applicant Document Book -March 1, 2022
Exhibit 2 - Minutes of Settlement
13Mr. Russell provided a brief history of the application and advised the Tribunal he was retained by the Appellant (the registered owner of the subject lands), in June of 2021, to provide land use planning advise and services.
14Mr. Russell highlighted for the Tribunal that the location selected and proposed for the accessary structure was not random. Previously existing on the proposed location was an abandoned cabin (dating back at least to the 1960’s) that was in a state of disrepair, and was recently demolished. He opined this is quite important to consider, highlighting that no natural features will or have been disturbed or displaced for the proposal. He also opined that consideration should be given to the fact that the proposal is essentially an improvement of previous and long-standing conditions on the subject lands.
15Mr. Russell reviewed the Natural Heritage Evaluation Report dated February 2021 by Krystawyn Consulting, which analyzed the proposal to determine if any negative impacts would result from the proposed accessory structure and the adjacent natural heritage features on the subject lands.
16The conclusion of the Natural Heritage Evaluation was that the subject lands, specifically the area sought to be developed, has already significantly been influenced by past clearing and uses. The associated natural heritage values are correspondingly reduced from a "natural" environment. On that basis, the permissions for the accessory structure meets the requirements of the PPS with regard to protection of provincially significant natural heritage features and functions. The construction area is well separated from natural heritage features and, will occur without necessity of grading activity, does not alter the nature or intensity of the land use and does not require any mitigation to proceed. Therefore, in conclusion, there is no potential for any direct or indirect environmental impacts on natural features and functions of the area.
The [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) (the “Act”)
17Section 2 of the Act sets out matters of provincial interest for which planning authorities shall have regard to, among other matters, in carrying out their responsibilities to the legislation. Mr. Russell opined that the settlement proposal before the Tribunal has regard for relevant matters of provincial interest, as set out in Section 2 of the Act.
18Mr. Russell opined that particularly relevant to the proposal is Section 2:
(a) the protection of ecological systems, including natural areas, features and
functions;
(n) the resolution of planning conflicts involving public and private interests;
(p) the appropriate location of growth and development.
19It was Mr. Russell’s opinion that regard to these and all relevant subsections of the Act have been provided by the settlement proposal.
Provincial Policy Statement (the “PPS”)
20One of the key policy directions of the PPS is to build strong communities through the promotion of efficient land use and development patterns that support strong, liveable and healthy communities, protect the environment, and facilitate economic growth.
21Mr. Russell shared with the Tribunal that the subject lands are identified as rural lands and subject to rural area policies of the PPS under s. 1.1.4.
22He further opined that s.1.1.5.2 highlights the proposal is a permitted use, turning the Tribunal to subsection (c) that allows for residential development when locally appropriate, opining the accessory structure is indeed appropriate.
23Mr. Russell also opined the proposal is consistent with s. 1.1.5.4, and as the policy directs, the proposal is compatible with the rural landscape and can be sustained by existing rural service levels. Further, being consistent with s. 1.1.5.5, the proposal is for an accessory structure with no habitation proposed. This ensures the development is appropriate to the infrastructure, which is planned or available in the area, and avoids the need for the unjustified and/or uneconomical expansion of infrastructure.
24Lastly, and most relevant in the opinion of Mr. Russell, is that the proposal is consistent with s. 2.1.1 and the Natural features and areas are being protected for the long term. The Natural Heritage Evaluation (Exhibit 1, Tab 17) analysed this and concluded that the proposal has no negative impacts on the natural heritage features adjacent to the proposed structure and the reduced setback proposed is sufficient and requires no additional mitigation to ensure protection of the natural heritage feature onsite or nearby.
25Mr. Russell opined that the above is further reinforced by the Nottawasaga Valley Conservation Authority (“NVCA”), the conservation authority that has jurisdiction in the area, and over the subject lands. The NVCA will be seeking a permit if permissions are granted for the proposal, however it offered these comments found in Exhibit 1, Tab 19:
It is our understanding that Township staff consider the detached garage to be an ‘existing structure’. Accordingly, NVCA staff could consider this an expansion to an existing use. Under these circumstances, NVCA staff are satisfied with Mr. Wynia’s suggestion that the proposal meets exemption criteria under Section 4.2.3 of the Growth Plan. We have no further natural heritage related comments.
No further studies are required in support of this zoning by-law amendment application.
We offer no objection to the approval of the above noted zoning by-law amendment application.
We will require a copy of the notice of approval of the zoning by-law amendment prior to the release of the NVCA permit.
26Mr. Russell concluded for the reasons provided above and with the totality of his evidence provided in Exhibit 1, it is his professional opinion that the settlement proposal is consistent with relevant policies of the PPS.
The Growth Plan
27Similar to the PPS, Mr. Russell highlighted the rural nature of the subject lands. Mr. Russell opined the proposal conforms with s. 2.2.9 of the Growth Plan, Rural Areas.
28The Tribunal was brought to Growth Plan policies in s. 2.2.9, Rural Areas, which highlight development outside of settlement areas, as proposed. Mr. Russell opined the proposal as indicated in s. 2.2.9.3 may be permitted on rural lands for:
a) the management or use of resources;
b) resource-based recreational uses; and
c) other rural land uses that are not appropriate in settlement areas provided they:
i. are compatible with the rural landscape and surrounding local land uses;
ii. will be sustained by rural service levels; and
iii. will not adversely affect the protection of agricultural uses and other resource based uses such as mineral aggregate operations.
29In the opinion of Mr. Russell, the proposal and ZBLA sought by the Appellant conform with these relevant subsections highlighted above.
30Mr. Russell concurred with Township planning staff (and as mentioned, in Paragraph 25, NVCA adopted the assertion) that the accessory structure proposed is an existing use with the cabin having resided in the proposed location on the subject lands.
31Thus, Mr. Russell opined s. 4.2.3.1 (e) is relevant, and the proposal conforms with this policy that reads:
expansions to existing buildings and structures, accessory structures and uses, and conversions of legally existing uses which bring the use more into conformity with this Plan, subject to demonstration that the use does not expand into the key hydrologic feature or key natural heritage feature or vegetative protection zone unless there is no other alternative, in which case any expansion will be limited in scope and kept within close geographical proximity to the existing structure.
32Mr. Russell provided the opinion that it is important to consider the wording of the above policy, that specifically highlights the proposal bringing the existing use greater into conformity, which he believes is the situation as proposed. Further, Mr. Russell, brought the Tribunal back to the Natural Heritage Evaluation report, which he opined speaks to the protection of the subject land’s natural heritage features and their protection being assured.
33Mr. Russell brought the Tribunal to s. 4.2.4, Lands Adjacent to Key Hydrologic Features and Key Natural Heritage Features. This policy requires lands outside of settlement areas, which are proposing new development or site alteration and within 120 m of a key natural heritage feature, require a natural heritage evaluation or hydrologic evaluation that identifies a vegetation protection zone. Policy s. 4.2.4.1 (c) reads:
for key hydrologic features, fish habitat, and significant woodlands, is no less than 30 m measured from the outside boundary of the key natural heritage feature or key hydrologic feature.
34Mr. Russell shared with the Tribunal that s. 4.2.4.3 prohibits the development or site alteration in a vegetation protection zone (being the 30 m highlighted above), however, he opined the proposal meets the policy exception, as described in s. 4.2.3.1 (e) and paragraph 31 above.
35Mr. Russell opined the findings of the Natural Heritage Evaluation justify and support the requested 23 m setback for the accessory structure in place of the required 30 m setback, and thus, Mr. Russell opined, the proposed 23 m setback conforms with the policy, evaluation and report provided.
36Mr. Russell concluded this section, with the opinion that the settlement proposal conforms with the Growth Plan. In particular, with policies relating to rural growth and exceptions allowing for growth and with the support of relevant technical studies justifying any relief that may be sought.
The County Official Plan (“County OP”)
37Schedule 5.1 Land Use Designations identifies the subject lands as Agricultural and Greenlands.
38Schedule 5.2.2, Streams and Evaluated Wetlands, identified a stream to be located on the subject lands.
39Policy 3.8 describes the rationale for the Greenlands Designation and is found in the 1996 background report prepared for the County OP entitled “Development of a Natural Heritage System for the County of Simcoe”.
40Policy 3.8.11 indicates, the mapping of the Greenlands designation on Schedule 5.1 is approximate and does not reflect certain features such as habitat of endangered species and threatened species, or new or more accurate information identifying natural heritage features and areas. Minor adjustments to the Greenlands’ designation will be determined through more detailed mapping, field surveys, the results of an Environmental Impact Statements, or information obtained from the Ministry, conservation authorities or from the County or Township itself.
41Mr. Russell advised the Tribunal that the subject lands and specifically, the proposed developed area is not within the Greenlands area, and thus, more accurately designated Agricultural lands.
42Therefore, policies relevant to the subject lands are s. 3.6, Agricultural. Policy 3.6.10 indicates development in prime agricultural areas should, wherever possible, be designed and sited on a property so as to minimize adverse impacts on agriculture and the natural heritage system and cultural features.
43The above, in Mr. Russell’s opinion, has been done and demonstrated through the Natural Heritage Evaluation. It is for this reason and his interpretation of all other relevant policies, Mr. Russell concluded that the settlement proposal conforms with the County OP.
The Township Official Plan (“Township OP”)
44The Township OP contains Schedule A-7 entitled Land Use, that establishes many land use designations and special site areas. The subject lands are identified and designated Agricultural with a watercourse and pond traversing the south half of the subject lands.
45Township OP, specifically s. 4.3.3, lists the Permitted Uses generally permitted, in the Agricultural land use designation. Section 4.3.3.4 reads that, “existing non-farm uses on lots in the Agricultural designation may be recognized as permitted uses in the ZBL, provided the general intent of this Plan is maintained.
46As indicated, existing on the subject lands is a residential dwelling. Typically, in these rural areas, a standalone residential dwelling is not ‘generally’ included within the list of Agricultural permitted uses, However, through Municipal Planning staff, Mr. Russell was advised the lot was created for residential purposes through the allowance of a ‘Retirement Lot’ for a bona fide farmer, in accordance with s. 4.3.4.
47Pertaining to paragraphs 45 and 46, Mr. Russell opined the dwelling on the subject lands conforms to relevant OP policies and is a permitted use. More specifically, he opined the accessory structure, previously existing and as proposed, does also meet the general intent of the OP and thus, is an associated permitted use as indicated in s. 4.3.3.4.
48In closing Mr. Russell, brought the Tribunal to s. 6.4.10. This policy prohibits development and site alteration 50 m from boundaries of natural features or ecological functions. That withstanding, the policy further reads, that with demonstration of no negative impacts to the aforementioned natural features, the 50 m prohibition may be reduced and the policy satisfied with technical studies (as have been provided by the Appellant) demonstrating no negative impacts and more importantly, the studies’ findings accepted from the Township and NVCA, that 50 m may be reduced.
49Mr. Russell concluded with his opinion that the settlement proposal conforms with the Township OP, inclusive of the relief sought for the associated accessory structure proposed.
Zoning By-Law No. 03-57
50Mr. Russell advised the Tribunal that ZBL No. 03-56 requires no amendments, and the relief sought, is achieved by amending ZBL No. 03-57.
51Schedule A-7 graphically depicts the Township and the zoning in force and as set out in ZBL No. 03-57.
52Mr. Russell opined the initial resistance from Town planning staff in recommending approval of the ZBLA, focused on the Section 3-General Provisions and more specifically subsection 3.4, the numerous permitted uses allowed on the subject lands.
53It is the opinion of Mr. Russell, that the settlement proposal has resolved potential concerns by amending the General Provisions of the ZBLA sought and limiting the proposed uses, and in fact, restricting them to the select few proposed and as set out in the proposed draft ZBLA.
54For this reason and the totality of the evidence provided, Mr. Russell opined that the general intent and purpose of the ZBL has been maintained and the amendments sought represents appropriate development and sound planning.
Witness Conclusions
55In conclusion, Mr. Russell opined that the draft ZBLA provided jointly by the Parties for the Tribunal’s consideration, should be approved. With his viva voce analysis and written evidence, he opined that the settlement proposal:
(a) has appropriate regard to the Act;
(b) is consistent with the PPS;
(c) conforms with the Growth Plan;
(d) conforms with the County OP;
(e) conforms with the Township OP;
(f) maintains the purpose and intent of the Township ZBL No. 03-57; and,
(g) represents good land use planning in the public interest.
Analysis and Disposition
56The Tribunal, having reviewed all evidence provided in Exhibits 1-2, and having heard the viva voce opinions of Mr. Russell, accepts the uncontroverted expert land use planning evidence provided by the witness. The Tribunal finds that the proposed planning instruments, will permit the development and have appropriate regard for matters of Provincial Interest and s. 2 of the Act. The Tribunal also finds that the ZBLA is consistent with the PPS, conforms to the Growth Plan, the County and Township OP’s, and represents good land use planning, in the public interest.
57The Tribunal is satisfied that any Natural Heritage Features and concerns associated with the proposal have been addressed by the Natural Heritage Evaluation. Further, the Tribunal puts weight on the NVCA and Township both accepting the findings of the Natural Heritage Evaluation.
58The Tribunal has also given weight to the previously existing cabin having been present for decades and the proposed location being the same (with the reduced proposed setback).
59With the totality of the evidence heard and provided at this Hearing, the Tribunal finds that the proposed development is appropriate and the ZBLA should be approved.
ORDER
60THE TRIBUNAL ORDERS that the appeal is allowed and directs the municipality to amend By-law No. 03-57 as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the Township of Adjala-Tosorontio to assign a number to this by-law for record keeping purposes.
“M. Russo”
M. RUSSO
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.