Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 15, 2022
CASE NO(S).: OLT-21-001335
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Theresa Livingston
Appellant: Gary Muntz
Subject: By-Law No. 17-Z-2021
Municipality: Norfolk County
Municipal File No.: ZNPL20211051
OLT Case No.: OLT-21-001335
OLT Lead Case No.: OLT-21-001335
OLT Case Name: Livingston v. Norfolk (County)
Heard: March 4, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Gerald and Theresa Livingston | Courtney Boyd |
| Gary Muntz | Self-represented |
| County of Norfolk | David Steele |
| John VanHalteren Jr. (Dovercraft Marine Ltd.) | Nancy Smith |
DECISION DELIVERED BY S. Braun AND ORDER OF THE TRIBUNAL
INTRODUCTION
1John VanHalteren Jr. (the “Applicant”) owns the property known municipally as 15 Jaylin Crescent, (“subject property”) and operates a marina (Dovercraft Marine Ltd.) thereon. The subject property fronts onto Jaylin Crescent, a gravel road which is currently owned and maintained by Norfolk County (“County”). The subject property includes a large amount of open space used for open storage of watercraft, as well as a commercial building which houses an office and boat repair shop with habitable space on the second floor. Surrounding land uses are low-density residential, including uses directly across the river.
2The Applicant sought permission for an accessory residential use on the second storey of the existing commercial building to provide security and oversight of the marina. As the subject property is located within the Marine Commercial Zone (CM) and does not have frontage on a fully constructed and improved street, he applied to the County for a zoning by-law amendment (“ZBLA”)1.
3County Council approved the ZBLA, subject to specific conditions attached as a holding provision, at the recommendation of County planning staff on July 20, 2021. The by-law, as enacted, changes the zoning on the subject lands from Marine Commercial Zone, CM to Marine Commercial Zone, CM (H) with special provisions and permits an accessory residential dwelling unit on the second floor of the existing commercial structure, defining accessory residential use as “a residential use which is subordinate to and exclusively secondary to the principal use of the marine commercial activities and located in the same building on the secondary floor”. The relevant holding provisions for this appeal include the approval of a building permit for the change of use to ‘accessory residential use’ on the second floor; a building permit for a safe access and egress, if necessary; and a LPRCA2 permit for safe access and egress.
4The foregoing decision is the subject of the appeals presently before the Tribunal, brought by Gerald and Theresa Livingston (the “Livingstons”) and Gary Muntz, pursuant to s. 34(19) of the Planning Act3 (“Act”).
5As this was the first and only hearing event scheduled, the Tribunal confirmed that proper Notice was given and marked the Affidavit of Service as Exhibit 1 to the proceeding. In advance of the hearing, the Tribunal also received a written request for party status from the Applicant (Exhibit 2). The request was granted without objection from the parties.
6The following reasons address two matters: the Tribunal’s denial of relief requested by the Livingstons in the context of a Motion to Adjourn considered at the outset of the hearing, and a decision on the merits dismissing the appeals.
MOTION TO ADJOURN
7At the outset of the hearing, the Tribunal considered a Motion to Adjourn, filed by the Livingstons on the afternoon of March 3, 2022 (Exhibit 3).
8It is important to note that the Livingstons had previously requested an adjournment on February 17, 2022, with the consent of Mr. Muntz. The County and the Applicant did not consent. The reasons given for the request were as follows:
The Appeal has four (4) parties, including two (2) Appellants. The Appellant, Theresa Livingston, intends to have at least one (1) expert witness. Similarly, the Respondent, Norfolk County, will have an expert witness. There is an additional Appellant, Gary Muntz, and an additional party, Jonathan Vanhalteren. The hearing schedule on March 4, 2022 provide (sic) for one (1) day. Based on the number of parties and expert witnesses, the matter could not practically be heard in it (sic) entirety in one (1) day. The Request for Adjournment is sought to adjourn the hearing until a later date that will allow for a sufficient number of hearing days. We anticipate at least two (2) days are required to hear all the evidence and submissions of the parties.
On February 18, 2022, the Tribunal denied the request, noting the reasons provided did not represent a reasonable basis for an adjournment pursuant to Rule 17.4 of the Tribunal’s Rules of Practice and Procedure (“Rules”), considering that the hearing was scheduled to commence on March 4, 2022.
9The grounds for the Motion to Adjourn considered at the outset of the hearing reiterated similar reasons to those above and included new reasons, distilled from the Motion Record as follows:
- On or about February 18, 2022, the intended expert witness for the Livingstons advised that there was insufficient time within which to prepare a witness statement and they were unable to attend the hearing due to a conflict in schedule with another Tribunal matter. The proceeding of the hearing on March 4, 2022 disallows the Livingstons from calling expert witness evidence in support of their Appeal.
- Due to the number of parties and complexity of the matters subject to this appeal, the short notice of the hearing date does not provide adequate time for the Appellants or their counsel to prepare.
- On or about March 2, 2022, the County submitted a witness statement from its expert witness and supplemental evidence to be relied on at the hearing. Pursuant to the Notice of Hearing dated January 18, 2022, all documents to be relied on at the hearing were to be filed at least ten (10) days in advance of the hearing. The Livingstons submitted all documents to be relied on at least ten (10) days in advance of the hearing and will be unfairly prejudiced if the hearing proceeds on March 4, 2022 with the inclusion of this evidence due its submission less than two (2) full days before the hearing.
10As the Motion was not filed in accordance with the Rules, there was insufficient time for the filing of responding materials, so counsel for the County and the Applicant made brief oral submissions in opposition thereto. It was noted that the grounds were not substantially different than the request that was denied on February 18, 2022 and, to the extent that new grounds were raised, in particular, the inability of the Livingston’s intended expert witness to attend, it was noted that the Appellants chose to raise such grounds on the eve of the hearing, despite being fully aware of the witness’ inability to attend since February 18, 2022.
11With respect to the assertion that there was insufficient time for the Appellants and their counsel to prepare for the hearing, it was noted that the ZBLA was enacted in July 2021, the appeals were both filed in August 2021 and Notice of the Hearing date was provided January 18, 2022, all of which constituted ample time to prepare for the March 4, 2022 hearing, which the County and the Applicant were able to do.
12Finally, in relation to the supplementary materials filed on March 2, 2022, Mr. Steele explained he had not submitted the witness statement of the County’s land use planning witness to the Tribunal and did not intend to rely thereon for the hearing. He further explained that, in any event, the statement circulated to the parties as a courtesy for ease of following along with the testimony, did not contain new or different information than the planning reports (authored by the witness) which were already before the Tribunal and the parties.
13Counsel for the Livingstons acknowledged the County would not be relying upon the witness statement, but argued in the event of a denial of the Motion to Adjourn, the balance of the supplementary materials filed by the County should not be admitted into evidence, as to do so would unduly prejudice the Appellants.
14Mr. Steele noted the balance of the supplementary materials the County wished to rely upon were comprised of the County Official Plan (“OP”) Schedule B-16, a map which forms part of the public record and an updated copy of the ZBLA, which includes a paragraph designed to correct an error/oversight made when approved by the County. Mr. Steele further explained should the appeals be dismissed, the County would be asking for this corrected version of the ZBLA to be approved.
15To the extent any of the supplementary material represented information not previously seen or considered by the Appellants, he argued it should nevertheless be admitted into evidence and submissions with respect to weight could be made in order to address any potential prejudice created as a result of the late filing.
Ruling on the Motion to Adjourn
16The Tribunal, having considered the written and oral submissions of the parties, denied the requested adjournment and ordered the hearing to proceed as scheduled.
17It was firstly noted that the Affidavit in support of the Motion and the grounds upon which the Livingstons relied did not address the Tribunal’s Rules respecting adjournments. It was further noted that insofar as the grounds for the Motion included similar reasons to those provided in the February 17, 2022 request, the Tribunal would not revisit those grounds.
18The act of filing a Notice of Appeal (done on August 18, 2021 by both the Livingstons and Mr. Muntz) signals an appellant’s readiness for a hearing. The Tribunal sent a Notice of Hearing to the parties on January 18, 2022. As such, the Tribunal was not persuaded the Appellants had insufficient time to prepare.
19Central to the Tribunal’s denial of the adjournment was a lack of evidence of the Livingstons having made any reasonable efforts to retain an alternative land use planning witness or to obtain an adjournment on the consent of the parties following the revelation on February 18, 2022 of their witness’ inability to provide a witness statement and attend the hearing. Instead, the Livingstons chose to wait until the afternoon prior to the hearing to file a Motion to Adjourn.
20In the view of the Tribunal, the potential prejudice to the County and the Applicant of having fully prepared for a hearing only to have the matter delayed was not outweighed by the potential prejudice to the Appellants, who had ample time to prepare for the hearing and to make efforts to cure the very prejudice upon which they relied in paragraphs 11-13 of the Motion Record – attending a hearing with no expert planning evidence to offer the Tribunal.
21Finally, on the explanation provided by Mr. Steele, the Tribunal was not persuaded that the late filing of supplementary materials by the County resulted in undue prejudice to the Appellants either warranting an adjournment or a refusal to admit same into evidence.
22Moreover, the Tribunal would note the inaccuracy of the assertion in the Motion Record that the Livingstons were compliant with the Rules in submitting all documents to be relied upon at least ten days in advance of the hearing. The Livingstons’ materials were submitted on February 23, 2022, nine days in advance of the hearing. The Tribunal pointed out that were it to apply rigid adherence to the Rules as argued by the Livingstons’ counsel in relation to the treatment of the County’s supplementary materials, the late filing of the Livingstons’ materials would be subject to similar scrutiny and treatment. As such, the County’s supplementary filing was accepted into evidence and the Appellants were invited to make submissions with respect to the weight to be given thereto.
THE HEARING
23In considering the appeals before it, the Tribunal must determine whether the ZBLA is consistent with the Provincial Policy Statement (“PPS”) and conforms to the County’s OP. Regard must also be had for matters of Provincial interest as well as the decision of the municipal council and the information considered by it in the course of making that decision.
24While a variety of issues were raised at the hearing, the parties were all in agreement that the key issue was the protection of public health and safety in light of the flooding hazard posed by the adjacent river and, in particular, safe access to and from the second storey of the existing building.
25The Tribunal heard evidence from the Appellants, Messrs. Livingston and Muntz, as well as from Mohammed Alam, a Registered Professional Planner duly qualified to provide opinion evidence in land use planning on behalf of the County. Mr. Alam’s was the only professional planning evidence offered on this appeal, standing uncontradicted.
Position and Evidence of the Appellants
26Mr. Livingston testified that the marina at the subject property is somewhat unique, in that it is situated along the shore of a river whereas most marinas are generally located within protected basins. Both Messrs. Livingston and Muntz spoke of their personal experiences with flooding on Jaylin Crescent, describing the inherently hazardous nature of the river and testifying to the existence of a constant and dangerous fast-flowing current at the best of times. They further testified that the area is prone to flooding during heavy storms and spring thaws which, in the past, have included substantial “ice damming”, as well as floodwaters as high as 4 feet 11 inches on Jaylin Crescent. Mr. Livingston testified that emergency services experience difficulty accessing the area when the road floods and emergency vehicles suffer damage when attempting to do so, as a result of the substantial amount of debris that ends up on the road.
27The Livingstons and Mr. Muntz were aligned with respect to their positions on the appeals before the Tribunal. Given that Jaylin Crescent and the subject property are prone to flooding and designated in the OP as Hazard Lands, safe access to and from the second storey of the existing building is a requirement of an accessory residential use being permitted. The Appellants expressed the view that, in the absence of technical studies including, but not limited to, engineering reports demonstrating that safe ingress/egress can, in fact, be achieved, the County’s enactment of the ZBLA was premature, not representative of good planning in the public interest, inconsistent with the PPS and not in conformity with the OP.
28The Tribunal heard evidence with respect to another application for the same relief filed by the Applicant, which was considered and denied by County Council in 2015 on the basis that it was inconsistent with the PPS policies and not in conformity with OP policies in relation to Natural Hazards. At that time, planning staff expressed concerns with a lack of construction/engineering detail in relation to the proposed access in the form of a walkway or other structure. It was argued by both Appellants that nothing had changed since 2015 as there was still no detail provided with respect to ingress/egress.
29In Mr. Livingston’s view, the existing building was “never built to withstand the ice jams and ice flows”, which happen with some degree of regularity each year. He described the safe ingress/egress requirement of the ZBLA as “a myth”, asserting “it is impossible to get a boardwalk out of the flood-zone” and “nobody can engineer a boardwalk out to the road or maintain it”. He further expressed the view that, even if some type of walkway were to be constructed, it would not be safe and would not be safe for children.
30Counsel for the Livingstons argued, with reference to the holding provision included in the ZBLA, that not all risks can be foreseen by the LPRCA and despite the approval of any ingress/egress, risks to public health and safety cannot be absolutely eliminated, given the inability to know with certainty what the future holds, especially as it relates to climate change.
31Finally, with reference to a number of past events suggesting a history of non-compliance on the part of the Applicant (such as construction of the second storey unit without required permits) as well a lack of enforcement by the County, both Appellants expressed serious misgivings with respect to the authenticity of the Applicant’s stated purpose (for the owner to occupy the proposed accessory residential unit to provide security and oversight of the marina and the large number of watercraft located on the property). They asserted the Applicant could, contrary to this stated purpose, rent the second storey to a family, possibly putting the safety of children at risk. Both testified that if this were the case, they had little to no faith that public health and safety would be protected by Municipal staff through proper inspection and enforcement.
Position and Evidence of the County and the Applicant
32The County and the Applicant aligned with respect to their positions on the ZBLA, submitting the proposed use is entirely appropriate as the marina is not a “nine-to-five operation” and patrons may require access and assistance at all hours of the day and night. While it was acknowledged that public health and safety is of primary concern as the subject property is situated within Hazard Lands, it was noted that so too, are a number of other residences in both immediate area and all over Port Dover.
33Both the County and the Applicant submitted that the inclusion of the holding provision in the ZBLA represents a material difference when comparing the application approved in 2021 against the 2015 application, which was denied. It was argued that the holding provision is representative of the reasonable compromise referred to in specific OP policies intended to strike a balance between risks to health and safety and development in the context of property situated within Hazard Land designations.
34It was further submitted that the holding provision stands as a complete response to any suggestion that the approval of the application was premature, as it appropriately addresses the potential for risk to public health and safety due to flooding on Jaylin Crescent.
35Counsel for the County argued the determination of adequate mitigation of risks with respect to flooding is the job of the LPRCA and beyond the scope of the expertise of land use planners. As such, the holding provision sets up an appropriate two-stage process, the first stage being consideration and approval of the ZBLA subject to the holding provision requiring safe ingress/egress, followed by the second stage, which relies upon the technical competence of the qualified professionals at the LPRCA to ensure the hazard issue is appropriately dealt with.
36Counsel for the Applicant agreed, adding that, should Mr. Livingston’s assertions be accurate with respect to the impossibility of the technical solution in the form of a structure providing safe ingress/egress, the holding provision will not be removed and the proposed use will not be permitted.
37The County called Mr. Alam, who provided a detailed contextual and land use planning rationale in support of the ZBLA. Mr. Alam opined that overall, the ZBLA represents good planning, is consistent with the PPS and conforms to the OP. The majority of his evidence focused upon specific policies speaking to public health and safety and development on lands within Natural Hazards.
38He referenced PPS policies which speak to Natural Hazards, including but not limited to: s. 3.1.1 b), which states “development shall generally be directed…to areas outside of hazardous lands adjacent to river, stream and small inland lake systems which are impacted by flooding hazards and or erosion hazards”. He opined that the words “shall generally be directed” indicate there are exceptions, for example, situations where there is already extensive development on Hazard Lands, as is the case throughout Port Dover. He opined that the PPS, being a high-level policy document is quite general and therefore, one must look to OP policies for more specific guidance.
39Mr. Alam described the subject property and immediate area, as well as the broader area of Port Dover, pointing out many areas designated in the OP as Hazard Lands on which residences and businesses have been and continue to be developed. As such, the OP has specific land use policies in place which seek to address this fact and strike a balance to appropriately manage risks to health and safety while acknowledging that development has and will continue on Hazard Lands.
40He provided a detailed overview of OP policies applicable to the present appeal, including, but not limited to, policy 7.3.2 b) which states:
There are areas of extensive development located on Hazard Lands. In these areas, a reasonable compromise shall be made between the extent of the hazard and the continued use and future development of the area.
Mr. Alam also discussed policy 7.3.1 g) iii), which permits marine uses including marinas, which may include a restaurant, recreation park and/or sale and service function in association with the marine operation and accessory uses, provided the use will not pose additional risk to life or property and the requirements of the appropriate Conservation Authority have been satisfied.
41He opined that a structure providing safe ingress/egress to the second storey unit approved through the LPRCA and the building permit process would allow for the proposed accessory residential use of the second storey unit to provide on-site security and oversight of the marina without posing additional risk to life and property, representing a reasonable compromise in accordance with the foregoing policies.
42While he acknowledged that, at present, there is no detail available surrounding the proposed technical solution to provide safe access, Mr. Alam testified that the holding provision adequately addresses concerns in this regard, given that the technical solution to provide safe access is to be developed with and approved by qualified professionals at the LPRCA. Mr. Alam also pointed out that policy 7.3.2.1 e) permits minor additions and redevelopments in existing areas within Hazard Lands with certain conditions including, but not limited to, mitigation measures which will be approved by the LPRCA and approval authorities such as the Building Department.
43With respect to the assertion that nothing has changed since the 2015 application, Mr. Alam described a number of differences, including the fact that a municipal sewer connection is now available to service the property, which had been a concern of Public Works and Environmental Services in 2015. In addition, he noted there had been general changes in Provincial policy and further noted there had been a shift in the floodplain, which no longer encompasses two individual lots on the west side of Jaylin Crescent as it had previously in 2015. Most importantly, he testified that the holding provision requiring a solution for safe ingress/egress approved by the LPRCA had not been explored in the context of the 2015 application.
44In relation to concerns raised by the Appellants regarding past history and the authenticity of the Applicant’s stated purpose (for the owner to occupy the proposed accessory residential unit to provide security and oversight of the marina and the large number of watercraft located on the property), Mr. Alam testified that, as a land use planner, he must evaluate development proposals on the basis of the information provided therein.
45Finally, Mr. Alam spoke directly to the supplementary material submitted by the County and, in particular, an updated/corrected draft ZBLA which includes the following paragraph:
For the purposes of this By-law, in section 3.11.1 of the Zoning By-law 1-Z-2014, an improved street shall include an open road allowance owned and maintained by the County.
He explained that, although the need for this provision had been discussed in detail in his July 2021 planning report at page 10, as a result of an administrative error, the corresponding wording addressing this requirement was not included in the version of the ZBLA that the County approved. He noted the County Zoning By-law states that no building or structure shall be erected, altered or enlarged on any land which does not have the minimum required lot frontage on an open, constructed and year-round improved street. Mr. Alam explained that the County currently maintains the road which is currently a gravel road and therefore not fully improved, therefore necessitating the inclusion of the above noted paragraph in the ZBLA.
46In relation to Mr. Alam’s explanation above, counsel for the County requested, in the event of a decision dismissing the appeals, that the Tribunal approve the version of the ZBLA included in the County’s supplementary materials.
FINDINGS
47Having considered the totality of the evidence before it, including the uncontradicted land use planning evidence and opinions of Mr. Alam, the Tribunal is satisfied that the ZBLA is consistent with the PPS, conforms to the OP and overall, is representative of good planning.
48Counsel for the Applicant relied upon the case of Hamilton (City) Zoning By-law No. 13-048 (Re), [2013] O.M.B.D. No. 780 (Tribunal Case No. PL130300) and, in particular paragraph 18, where Vice-Chair Stefanko noted:
In matters of this type i.e. when those opposed to a development which has been approved by the Municipality do not present expert evidence to support their position, it is difficult, if not impossible, to overlook or disregard the expert testimony given in support of the proposal. Notwithstanding that the concerns of the Appellant and those expressed by other ratepayers are sincerely held, they do not override, in my view, the thorough and persuasive evidence of Mr. Chan, Ms. Plosz and Mr. McNamara.
It was submitted that, in this instance, there was no compelling evidence offered by either Appellant which would warrant the Tribunal’s rejection of the thorough and persuasive land use planning opinion in support of the ZBLA provided by Mr. Alam.
49The Tribunal agrees and prefers the evidence provided by Mr. Alam. The Appellants’ arguments in opposition to the ZBLA were based solely upon apprehensions with no compelling evidence to support same, either in the form of a land use planning opinion, professional engineering/construction or other evidence.
50While the Tribunal acknowledges Mr. Livingston purportedly has experience in the construction industry and, in light of such experience, holds the views that safe ingress/egress cannot possibly be engineered and the existing commercial building on the subject property was never built to withstand ice jams, Mr. Livingston was not tendered as an expert in construction and/or engineering. The Tribunal views the foregoing statements as conjecture and no weight was placed thereon.
51Both Appellants testified that they disagreed with the conclusions of the various professionals at Municipal Departments (i.e., fire, conservation authority) which were relied upon by Mr. Alam in his July 2021 planning report, without offering any contradictory evidence. For example, in relation to the following notation: “as for emergency vehicle access, the Fire Department confirmed that there is no concerns (sic) to provide emergency services as long as all facilities are constructed as per building code”, Mr. Livingston testified that he disagreed with the Fire Department’s response and stated “they didn’t do their job”. The Tribunal would note the staff report from 2015 indicates Emergency Medical and Fire and Rescue Services had no concerns at that time either.
52The Tribunal rejects the arguments put forth by the Livingstons’ counsel that the County’s approval of the ZBLA was premature and the holding provision is not satisfactory, given the inability of the LPRCA to foresee and entirely eliminate all risks to public health and safety. Instead, the Tribunal was persuaded by compelling arguments made by counsel for the Applicant, who drew attention to Schedule B-16 of the County’s OP and referred back to Mr. Alam’s contextual description of the area and his opinion with respect to the holding provision. In particular, she highlighted areas on Schedule B-16 depicted in a greyish colour, which denote the various lands throughout Port Dover designated as Hazard Lands due to risk of flooding.
53She noted that people reside and expand their houses and business on those Hazard Lands and “life goes on in the grey”. She submitted that this is the reality of life in this particular area of the Province, which requires a balance that is dealt with from a policy perspective by requiring a reasonable compromise between the extent of the hazard and the continued use and future development of the area, as set out in the OP.
54The Tribunal accepts the evidence of Mr. Alam and is satisfied that the requirements of the holding provision adequately address the protection of public health and safety; are representative of the reasonable compromise required by the OP; and represent a material difference in the 2021 application as compared to the 2015 application. The Tribunal is also satisfied that the intended use of the second storey of the building is appropriate, as patrons might require access or assistance at all hours.
55The Tribunal also accepts Mr. Alam’s evidence in relation to the administrative error which results in the need for an amendment to the ZBLA as enacted through the Tribunal’s approval of the draft ZBLA submitted by the County.
56Finally, the Tribunal notes it has given regard to matters of Provincial interest, including the protection of public health and safety and the orderly development of safe and healthy communities. Due regard has also been given to the decision of the municipal council and the information considered by it. The County appeared in support of the ZBLA and the evidence before the Tribunal is that the concerns expressed by the public, including those raised by the Appellants in the context of this appeal, were received and considered by Council, which nevertheless approved the ZBLA.
ORDER
57The Tribunal orders that the appeals against Zoning By-law No. 17-Z-2021 are allowed in part in order to amend Zoning By-law No 17-Z-2021 as set out in Attachment 1 hereto.
“S. Braun”
s. braun
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.
OLT-21-00135 – Attachment 1
Footnotes
- The application also included a concurrent deeming by-law application to consolidate lots 13, 14 and Part of Lot 15 & Jaylin Crescent as one parcel, which is not at issue for the purpose of this appeal.
- Long Point Region Conservation Authority.
- R.S.O. 1990, c. P. 13, as amended.