Crumlin Sportsmen’s Association v. Thay Lam and Alexandra Lam, 2022 CanLII 34887

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 28, 2022

CASE NO(S).: OLT-21-001057

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Crumlin Sportsmen’s Association

Applicant: Thay Lam

Subject: Minor Variance

Variance from By-law No.: Z-1

Property Address/Description: 3345 Gore Road

Municipality: City of London

Municipal File No.: A.141/19

OLT Case No.: OLT-21-001057

OLT File No.: OLT-21-001057

OLT Case Name: Crumlin Sportsmen’s Association v. London (City)

Heard: January 18 to 20, 2022 by Video Hearing

APPEARANCES:

Parties	Counsel
Crumlin Sportsmen’s Association	A. Baroudi
Thay (deceased Dec. 2021) and Alexandra Lam	P. Lombardi

DECISION DELIVERED BY N.P. ROBINSON AND ORDER OF THE TRIBUNAL

OVERVIEW

1This is an appeal of the City of London ("City") Committee of Adjustment ("COA") decision to approve one variance under s. 45(2)(b) of the Planning Act (“Act”) and four variances under s. 45(1) of the Act.

2The proposed variances relate to a remnant parcel of land created by the City under s. 50(3)(c) of the Act in 2019. The lands are municipally known as 3345 Gore Road, in the City (the "Subject Lands").

3The Subject Lands are designated "Agricultural" in the City's 1989 Official Plan (“1989 OP”) and are located in the Farmland Place Type in the City's new Official Plan (the "London Plan"). The Subject Lands are also located adjacent to natural heritage features and are identified as a Potential Naturalization Corridor on Map 5 of the London Plan. The Subject Lands are zoned Agricultural.

4The Appellant, Crumlin Sportsmen's Association ("CSA"), operates a long-standing rifle, shotgun, handgun, and archery shooting range with a mixture of indoor and outdoor facilities directly across the street from the Subject Lands. The CSA has been in operation since the 1940s and enjoys legal non-conforming status in the City's Zoning By-law No. Z-1.

5The parcel was created by the City outside of the usual consent process and, as a result, there was no right of appeal.

6It is also notable that the parcel was created only one year after a decision in 2018, by the Ontario Municipal Board (“OMB”) that dismissed an application by the previous owner of the Subject Lands to sever 3301 and 3345 Gore Road, and 360 Crumlin Road into six lots, with five of those lots (including the Subject Lands) to be used for residential purposes and one for open space purposes. CSA was the Appellant in that proceeding as well and was wholly successful.

7The predecessor of the Tribunal, the OMB, found that the lot was not suitable for a dwelling, as there were outstanding concerns regarding noise impacts from the CSA facilities.

8The City inserted Policy 1235 into the London Plan in 2016, authorizing a single detached dwelling to be situated on the Subject Lands, as well as authorizing the reduced lot area and frontage.

9A policy anticipating the dimensions of this specific lot was included in the London Plan three years before this parcel was even created and while the previous severance application was still under appeal by CSA. Melissa Campbell, the land use planner called to give evidence by the Applicant, admitted during cross-examination that this timing was unusual.

ISSUES

10The within appeal concerns the variances authorized under s. 45 of the Act, namely:

1. Does the use authorized by the COA under s. 45(2)(b) satisfy the test elaborated therein? i. Is the permitted "use" described in the By-law defined in general terms? ii. Does the purpose conform with the uses permitted in the By-law?
2. Do the variances authorized by the COA under s. 45(1) of the Act satisfy the four-part test described therein?

ANALYSIS

Variance Requested under s. 45(2)(b) of the Planning Act (“Act”)

11A "Farm Dwelling" is the only type of dwelling that is listed as permitted in the Zoning By-law for the Subject Lands.

12Farm Dwelling is defined in the Zoning By-law as follows:

13""Farm Dwelling" - means a single detached dwelling located in a farm cluster which is incidental and exclusively used in conjunction with a farm and is situated on the same lot therewith."

14The Applicant is seeking to modify the definition of "Farm Dwelling" as follows:

"Farm Dwelling" means a single detached dwelling which is not located in a farm cluster which but is incidental and exclusively used in conjunction with a farm and is situated on the same lot therewith.

15In order to approve the modified definition of Farm Dwelling as proposed by the Applicant, the Tribunal must find under s. 45(2)(b) that Farm Dwelling is defined in "general terms".

16If the Tribunal finds that Farm Dwelling is defined in "general terms", the Tribunal may permit the proposed modifications to the definition if, in the opinion of the Tribunal, the proposed modifications conform with the uses permitted on the Subject Lands in the Zoning By-law.

ISSUE A - Is the term "farm dwelling" defined in general terms?

17The definition of Farm Dwelling contains two specific criterion: 1) the dwelling must be part of a Farm Cluster; and 2) the dwelling must be incidental and exclusively used in conjunction with a farm and situated on the same lot therewith.

18L.J. (Jayson) McGuffin was qualified to give expert evidence in the area of land use planning. Mr. McGuffin gave evidence supporting this interpretation.

19Similarly, Melissa Campbell was qualified to, as an expert, give opinion evidence in the area of land use planning. Ms. Campbell admitted during cross-examination that the definition contains the two specific criteria.

20There is substantial jurisprudence that examines the meaning of “general terms” in Section 45(2)(b) of the Act. The Tribunal considered whether a definition of Group Home type 2 was "general" under s. 45(2)(b) of the Act in Social Betterment Properties International (Re) 2015, CanLII 32425. The definition had a specific component requiring that the facility be licensed, approved or funded by the Province. The Tribunal found that this requirement that the licensing, approval, supervision, or funding be by the Province meant that the term was defined in specific and not general terms. The proposed use would not be licensed, approved, supervised, or funded by the Province and, therefore, did not conform to the specific requirements. The Tribunal finds this case to be instructive insofar as it relates to the definition of Farm Dwelling-which includes the specific requirement that the dwelling be part of a farm cluster.

21In the case of Al Kitab Academy Inc. v. Mississauga (City) 2019, CanLII 96182 (ON LPAT), the Tribunal found that a cultural and academic learning facility could not be permitted under s. 45(2)(b) because it was not similar to the permitted use of a "commercial school".

ISSUE B - Does the proposed modified definition of "farm dwelling" conform with the uses permitted on the Subject Lands in the Zoning By-law if Farm Dwelling is defined in general terms?

22The modification seeks to remove the requirement that the dwelling be part of a Farm Cluster. The term Farm Cluster is defined in the Zoning By-law as follows:

"Farm Cluster" means the grouping of farm related buildings and farm dwelling(s) in an arrangement which maximizes the agricultural area and potential of the farm lot.

23The City could have chosen to generally permit "dwellings" in the Agricultural zone, or even just dwellings that are incidental and exclusively used in conjunction with a farm. Instead, the City added a very important criterion to the definition of Farm Dwelling - that the dwelling be part of a farm cluster.

24Mr. McGuffin gave evidence that the purpose of requiring a farm cluster is to ensure that farm related buildings and the dwelling are grouped in an arrangement which maximizes the agricultural area and potential of the farm lot.

25Mr. McGuffin's evidence was that the proposed variances serve to locate the dwelling toward the centre of the property with a long and meandering driveway, which reduces the agricultural potential of the lot.

26The modified definition will encourage and allow owners to use the dwelling as a primary use, as long as a lot is large enough to "potentially" be used to grow vegetables. Many larger residential lots in the urban area could meet this standard. The Tribunal has difficulty accepting that this was the intent and purpose of the permitted uses in the Agricultural zone.

Variances Requested under s. 45(1) of the Act

27The Applicant requested several variances under s. 45(1) as follows:

1. To permit a lot area of 0.63 hectares, whereas 40 hectares is required as the minimum lot area.
2. To permit a lot frontage of 47.1 metres (“m”) (154 feet (“ft”), whereas 200 m (656.2 ft) is the minimum lot frontage required.
3. To permit an east interior side yard setback of 8.7 m (28.5 ft), whereas 15 m (49.2 ft) is the minimum setback required.
4. To permit a west interior side yard setback of 11.7 m (38.4 ft), whereas 15 m (49.2 ft) is the minimum setback required.

28The variances must satisfy the four-part test under s. 45(1) of the Act to be authorized.

ISSUE A - Are the Variances Minor?

29In Kaplan and St. Denis v. Halton Hills (Town), 2019 CanLII 77525 (ON LPAT), the Tribunal held that the focus under this part of the test is on impacts; however, there is also consideration of the numerical increase or decrease. In some cases, the size of a variance may be excessive in relation to the Zoning By-law requirements in terms of sheer magnitude. A variance can fail if either the magnitude is too great or if there is significant impact.

30This request is for a 98% decrease in the minimum lot area and a 76.5% decrease in the minimum lot frontage. Mr. McGuffin's evidence was that there are some cases, such as this one, where a variance would simply be too great to be considered minor through the variance process and should be addressed through a Zoning By-law Amendment.

31The evidence of both Mr. McGuffin and Rob Stevens, the acoustical engineer called to give evidence by the Appellant, during evidence-in-chief was that the variances would result in significant adverse noise impacts and land use incompatibility.

32All of the acoustic studies and reports have confirmed that the CSA facilities generate significant noise. The SS Wilson Associates ("SSWA") report confirms that noise levels will exceed the acceptable limits of 60-70 A-weighted decibels (“dBA(i)”) by 10 dBA(i) or more in most of the outdoor amenity space within 30 metres of the dwelling, even with the noise mitigation measures proposed.

33The extensive noise measures proposed by SSWA only reinforce the fact that this proposed residential use is not compatible with the CSA facilities, which are located directly across the street and have been in operation since the 1940s.

34The noise impacts here are far from minor - they are major, and they threaten the ability of CSA to continue operating at this location due to inevitable noise complaints that will very likely be lodged by future owners of the Subject Lands.

35Ms. Campbell gave evidence that to otherwise sterilize the lands from any permitted form of development would cause an undue hardship on the property owner. The Tribunal views the question of hardship through the context of the intended use of the land. The Subject Lands are intended to be used for agricultural purposes and have historically been used for agricultural purposes. That use can continue and a single detached dwelling is not required for these lands to be used for their intended agricultural purpose.

ISSUE B - Are the Proposed Variances Desirable for the Appropriate Development or use of the Land?

36This branch of the test relates to the desirability in the public interest, not in the interest of a specific applicant, as elaborated in Basingstoke Enterprises Inc. v. Hamilton (City), 2019 CanLII 32398 (ON LPAT).

37Two expert acoustical engineers testified before the Tribunal, Stevens and Hazem Gidamy.

38The experts agreed, as demonstrated through the examination-in-chief of Mr. Stevens and the cross-examination of Mr. Gidamy, on the following statements:

1. Gun clubs are exempt from s. 9 of the Environmental Protection Act;
2. The most current Ministry of Environment, Conservation and Parks (“MECP” or “Ministry”) guideline is NPC-300;
3. NPC-300 does not regulate gun clubs;
4. The previous guideline used by the MECP, NPC-205, did regulate gun clubs;
5. A gun club is a source of stationary noise;
6. "A point of reception" as defined in NPC-205 means everywhere on the property where noise can be heard that does not emanate from that property;
7. Noise from the CSA facilities can be heard across the entirety of the Subject Lands (Mr. Gidamy did not measure the levels across the entire property, but expects this is the case);
8. Gun shots are a form of impulsive noise;
9. NPC-205 establishes 70 dBA(i) as the acceptable sound level for a gun club at a point of reception;
10. Municipalities have the authority to regulate noise through their by-laws;
11. Municipalities can adopt different standards in terms of noise levels;
12. The City of London regulates noise through its By-law PW 12;
13. By-law PW 12 adopts the noise standards in NPC-205, which is 70 decibels across the whole property;
14. The noise levels at the front façade of the proposed dwelling exceed the noise assessment target of 60 dBA(i), which was chosen by SSWA, and were in the range of 81-82 dBA(i). The noise levels were also exceeded in the outdoor area north of the proposed dwelling.

39While Mr. Stevens did agree with the measurement and analysis methods employed by SSWA, he raised concerns about the fact that the noise study was conducted in June, 2020 during the Pandemic. He testified during examination-in-chief that COVID-19 could have impacted the noise levels at the CSA facility in two ways: 1) lower attendance could have resulted in less overlapping shots than would normally take place; and 2) it is possible that louder guns may not have been used due to certain types of shooting activities being restricted.

40Mr. Gidamy admitted during cross-examination that he was unaware of what government restrictions were in place for gun clubs during the study period, how attendance at the club was affected, or whether any of the events listed on the CSA website actually took place or were well attended. Mr. Gidamy stated during cross-examination that individuals in his office tried unsuccessfully to speak with CSA prior to conducting the noise study, but he had no documentation to support that statement.

41The potential impacts of COVID-19 on the activities and attendance at CSA cast doubt on Mr. Gidamy's "predictable worst-case impact", which Mr. Gidamy agreed is intended to reflect a "planned and predictable" mode of operation of the stationary source.

42Mr. Stevens testified that under the applicable guideline of NPC-205, adopted in the City's By-law PW-12, the noise measures proposed by SSWA are insufficient as they do not bring the noise within acceptable levels across the entirety of the property. Mr. Gidamy argued that he need only bring the noise within acceptable levels within 30 m of the building. Even if Mr. Gidamy is correct, according to Mr. Stevens' evidence, the noise control measures would not bring the noise below 60-70 dBA(i) within 30 m around the entire dwelling, only in a limited area at the rear.

43Mr. Stevens also testified that the types of indoor noise mitigation measures, such as the use of air conditioning, are considered inferior by the Ministry as they encourage sensitive land uses to be placed immediately adjacent to facilities that generate high levels of noise, which is not good planning. These measures are also better suited to traffic noise and multi-storey, multi-unit developments, rather than stationary noise affecting a single dwelling where the standard requires levels to be met outdoors at all points of reception according to Mr. Stevens' evidence.

44Counsel for the Applicant took issue with whether NPC-205 applies, as By-law PW-12 adopts NPC-205 for "Residential Areas", which is a defined term in the By-law. The Appellant contends that the proposal is to construct a single detached dwelling that is not part of a farm cluster - in essence, an estate residential home and NPC-205 applies.

45The Tribunal notes that NPC-232 would apply if the lands are not in a "Residential Area" as defined in the By- law but instead are within a Rural Area. Mr. Stevens testified that the noise levels in NPC-232 are the same as the noise levels in NPC-205, being 70 dBA(i).

46Irrespective of which provincial guideline applies, the fact remains that there will be significant noise emanating from the CSA lands that, in the opinion of Mr. Stevens, cannot be properly mitigated through the measures proposed by SSWA. It was the opinion of Mr. Stevens that he does not believe there are any practical measures to achieve the acceptable noise limits on this property. Mr. Stevens testified that, in his opinion, this is not an appropriate land use juxtaposition from a planning perspective.

47Mr. Gidamy testified in cross-examination that he felt warning clauses registered on title were important and should be included within a Development Agreement imposed by the City. This recommendation is also found in his report.

48The Tribunal also notes that the conditions to the minor variance do not require any kind of agreement despite the ability of the City to require an agreement to be registered on title pursuant to Policy 1664 of the London Plan.

49Mr. McGuffin testified that the conditions do not require the noise measures to be maintained in perpetuity thereby leaving out a critical feature of Mr. Gidamy's proposed soft noise measures. Mr. Gidamy testified that the lack of a warning clause was cause for some concern.

ISSUE C - Will the General Intent and Purpose of the 1989 OP and the London Plan be maintained?

50Ms. Campbell admitted under cross-examination that the primary intent and purpose of the Agricultural designation in the 1989 OP and the Farmland Place Type in the London Plan is to promote sustainable farm practices and preserve agricultural uses and farm operations.

51Section 9.2.9 of the 1989 OP provides that existing lots at the date of adoption of the OP that do not meet the minimum farm parcel size of 40 hectares may be used for agricultural purposes including one single detached dwelling.

52Section 1215 of the London Plan also provides that existing lots as of the date of adoption of the London Plan in the Farmland Place Type that do not meet the minimum farm parcel size of 40 hectares may be used for agricultural purposes including one single detached dwelling. The London Plan was adopted in 2016.

53Mr. McGuffin and Ms. Campbell both agreed that, as the Subject Lands were created in 2019, they are not an "existing lot" under either s. 9.2.9 of the 1989 OP or under s. 1215 of the London Plan.

54There is a clear intent and purpose in both the 1989 OP and the London Plan to limit single detached dwellings on undersized lots to only those lots that existed as of the date of adoption of the plans. To permit a single detached dwelling on this lot, which is not part of a Farm Cluster, would run contrary to the intent and purpose of limiting residential uses to lots that existed as of 2016.

55This intent and purpose is made even more clear in s. 1213 of the London Plan, which provides that residential uses will be limited to existing lots of record "to prevent estate lots".

56According to the evidence of Mr. McGuffin, even where the London Plan permits residential uses on existing lots of record, this can only be accomplished through a Zoning By-law Amendment and subject to an environmental impact study if adjacent to a natural feature. This use cannot be permitted through a minor variance.

57The evidence of Ms. Campbell, at the hearing, that the Subject Lands are not an existing lot of record is contradicted by the Staff Report that she approved, wherein staff clearly rely on both s. 9.2.9 of the 1989 OP and s. 1215 of the London Plan as a basis for supporting the variances. Ms. Campbell testified that she was trying to "find a remedy for the applicant".

58The Tribunal recognizes that the intent and purpose of both the 1989 OP Agricultural designation and the London Plan Farmland Place Type is to limit single detached dwellings on undersized lots to existing lots of record.

59The Tribunal recognizes that the proposed development does not involve an existing lot of record and, even if it were, the Applicant would need a Zoning By-law Amendment to permit a single detached dwelling.

60The evidence before the Tribunal supports the conclusion that the variances do not meet the intent and purpose of the 1989 OP or the London Plan.

61The variances also run contrary to the intent and purpose of the 1989 OP and the London Plan because the Subject Lands are situated adjacent to natural heritage features and the policies require an Environmental Impact Study to be completed.

ISSUE D - Will the general intent and purpose of the City of London Zoning By-law be maintained?

62The Subject Lands are zoned Agricultural AG (“AG1”). This zone does not permit standalone single detached dwellings. Further, according to the evidence of Mr. McGuffin, s. 45.1 of the Zoning By-law sets out the general purpose of the AG1 Zone and strictly forbids the creation of properties less than 40 hectares in size.

63Mr. McGuffin provided evidence that Table 45.3 of the Agricultural Zone establishes the regulations, including the minimum lot area of 40 hectares and the minimum lot frontage of 200 m.

64Only Farm Dwellings are permitted in the Agricultural zone which, by definition, must be part of a farm cluster. This proposal would permit a dwelling on the property that is not part of a farm cluster.

65Given the stringent lot regulations in the Agricultural zone, as well as the fact that only a Farm Dwelling is permitted, which must be incidental and exclusively used in conjunction with a farm and be part of a Farm Cluster, it is clear that the proposed variances do not maintain the general intent and purpose of the Zoning By-law.

FINDINGS

66The Tribunal finds that the variance requested under s. 45(2)(b) does not meet the definition of a Farm Dwelling.

67The Tribunal finds that the permitted "use" described in the By-law is not defined in general terms.

68The Tribunal finds that the proposed modification to the definition of Farm Dwelling will result in a new use that does not conform to the permitted uses on the Subject Lands in the Zoning By-law.

69The Tribunal finds that the variances are not minor as required by s. 45(1) of the Act.

70The Tribunal finds that the proposed variances are not desirable for the appropriate development or use of the land as the noise levels on the Subject Lands cannot be brought within the acceptable level of 60-80 dBA(i) across the whole property, even with the noise measures proposed.

71The Tribunal finds that the general intent and purpose of the 1989 OP and the London Plan are not maintained by the proposal.

72The Tribunal finds that the proposed variances do not maintain the general intent and purpose of the Zoning By-law.

73Notwithstanding the above findings, perhaps the most compelling evidence came from the Applicant's own testimony before the Tribunal and the thrust of the Applicant's argument. The Applicant seeks to build their "dream home" and any agricultural operation on the Subject Lands appears to be tangential, at best, to that purpose. The Tribunal's holding on this matter will not impact the Applicant's ability to continue any genuine agricultural operations on the Subject Lands.

ORDER

74The Tribunal Orders that the appeal of the variances authorized under sections 45(1) and 45(2)(b) of the Planning Act is allowed.

"N.P. Robinson"

N.P. ROBINSON

VICE-CHAIR

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.