1469406 Ontario Ltd. v. The Blue Mountains (Town), 2022 CanLII 37692

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 02, 2022

CASE NO(S).: OLT-21-001463

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

Applicant and Appellant: 1469406 Ontario Ltd.

Subject: Refusal of application to amend Zoning By-law No. 2015 – 65

Existing Zoning: Rural (RU) and Rural Employment Exception (M2 – 5) zone

Proposed Zoning: Site specific – to be determined

Purpose: To permit an electrical contractor’s yard as an accessory use

Property Address/Description: 207484 Highway 26, Part of Lot 36, Cone. 11 (Former Township of Collingwood)

Municipality: Town of The Blue Mountains

Municipality File No.: P2961

OLT Case No.: OLT-21-001463

OLT Lead Case No.: OLT-21-001463

OLT Case Name: 1469406 Ontario Ltd. v. The Blue Mountains (Town)

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Subject: Site Plan

Referred by: Victor Vandergust (1469406 Ontario Ltd.)

Property Address/Description: 207484 Highway 26, Part of Lot 36, Cone. 11 (Former Township of Collingwood)

Municipality: Town of The Blue Mountains

OLT Case No.: OLT-21-001464

OLT Lead Case No.: OLT-21-001463

Heard: April 12, 2022 by video hearing

APPEARANCES:

Parties	Counsel
1469406 Ontario Ltd.	Victor Vandergust
Town of The Blue Mountains	Leo Longo

DECISION DELIVERED BY C. HARDY AND ORDER OF THE TRIBUNAL

BACKGROUND

1The matter before the Tribunal is a settlement hearing related to an appeal filed by 1469406 Ontario Ltd. (“Applicant”) pursuant to s. 34(11) of the Planning Act (the “Act”) arising from the Town of The Blue Mountain’s (“Town”) refusal of an application to amend Zoning By-law No. 2018-65 (“ZBL”). The Applicant also filed an appeal pursuant to s. 41(12) of the Act arising from the Town’s failure to approve plans/drawings for lands within a site plan control area.

2The Applicant proposes to rezone a portion of the property known as 207484 Highway 26, The Blue Mountains (“Subject Property”) from Rural Employment Exception (M2-5) to an amended Rural Employment Exception.

3The Exception M2-5 currently permits an abattoir, associated buildings and structures and accessory uses. The Applicant is seeking to delete the text of the Exception M2-5 and replace it with wording set out in Attachment 1 to allow a contractor’s yard and associated structures and accessory uses. There are no new buildings or structures proposed. The Applicant is further seeking approval of amended plans/drawings for lands within a site plan control area (together referred to as the “Proposal”).

SITE CONTEXT

4The Subject Property has an area of approximately 1.77 hectares and is vegetated with natural trees and plants. The Subject Property fronts onto Highway 26 and currently contains a commercial building of approximately 750 square metres, a parking area and a pond at the rear of the Subject Property.

5The Subject Property is located adjacent to vacant land to the south and the Lora Bay Golf Club to the north. Located to the west of the Subject Property is rural residential and to the east is rural with an unoccupied residence and rural commercial buildings.

6The upper tier County of Grey Official Plan (“GOP”) designates the Subject Property as Rural. Permitted within this designation are a variety of land uses including buildings and yards associated with trades, including contractor’s yards, plumbing, electrical, heating/cooling shops, etc.

7The lower tier Town of The Blue Mountains Official Plan (“OP”) also designates the Subject Property as Rural. Permitted within this designation are a limited number of uses, including small scale commercial or industrial uses, veterinary clinics, recreational uses, dog kennels and institutional uses.

8As noted above, the ZBL currently zones the Subject Property to permit an abattoir and associated buildings, structures, and accessory uses.

BACKGROUND

9The Applicant called David Finbow as a lay witness to provide the Tribunal with background information relating to the appeal. Mr. Finbow explained that the original building on the Subject Property was constructed prior to 1990 as an abattoir on a bison farm. In 2012, the original owner wished to construct an addition to the original building and applied to the Town for permission. There was a hearing before the Ontario Municipal Board, which resulted in the original owner entering into a site plan agreement with the Town in 2013 (“2013 SPA”). The 2013 SPA was registered on title and binds successive owners, including the Applicant.

10Subsequent to this approval, the Subject Property was developed with an addition to the existing one-storey building, 22 parking spaces, loading spaces / areas, stormwater management infrastructure and a driveway to Provincial Highway 26. The existing building is currently legal non-conforming and the Proposal will not alter this designation.

11The original owner continued operations on the Subject Property until 2019. The Applicant acquired the Subject Property towards the end of 2019.

12The Applicant submitted a ZBL Amendment (“ZBLA”) on January 4, 2021 to permit certain uses on the Subject Property, including an electrical contractor’s yard. Subsequently, the Applicant amended the ZBLA application to specifically request permission to use the Subject Property as an electrical contractor’s yard.

13On March 8, 2021, the Town held a public meeting. Prior to the public meeting, 29 letters were received from the public outlining concerns and following the public meeting, an additional 18 letters of concern were received by the Town. The concerns raised were largely related to visual impacts and traffic.

14On June 4, 2021, the Applicant submitted a request to the Town for a revision to drawings associated with the Site Plan Agreement (“SPA”) for the Subject Property.

15Town Planning Staff prepared a report dated August 24, 2021 where they recommended various options for approval. On September 7, 2021, Town Council refused the ZBLA noting that the proposed change of use was inappropriate due to traffic and safety concerns.

16The Applicant and the Town worked diligently and were able to reach a settlement prior to the start of the hearing. The Parties are jointly requesting that the Tribunal approve the ZBLA and SPA.

SETTLEMENT HEARING

17There were no requests for Party or Participant status at the hearing.

18The Tribunal received and marked the following Exhibits at the hearing:

• Exhibit 1 – Affidavit of Service of Diane Buchanan
• Exhibit 2 – Minutes of Settlement
• Exhibit 3 – Affidavit of Michael Wynia
• Exhibit 4A – Curriculum Vitae (“CV”) of Michael Wynia
• Exhibit 4B – Acknowledgement of Expert’s Duty of Michael Wynia
• Exhibit 5 – Appellant’s Record
• Exhibit 6 – Appellant’s Record Addendum
• Exhibit 7 – CV of David Finbow
• Exhibit 8A – CV of Michael Cullip
• Exhibit 8B – Acknowledgement of Expert’s Duty of Michael Cullip

19The Tribunal had the benefit of oral testimony from Michael Cullip. Mr. Cullip is a member of the Professional Engineers of Ontario and the Institute of Transportation Engineers. He was qualified without objection by the Tribunal to provide independent expert traffic engineering evidence.

20Planning evidence and opinion to support the ZBLA and SPA was provided by Michael Wynia. Mr. Wynia is a Registered Professional Planner and a full member of the Canadian Institute of Planners and the Ontario Professional Planners Institute. He was qualified without objection by the Tribunal to provide independent expert land use planning evidence.

21The Tribunal had the benefit of Mr. Wynia’s oral testimony in addition to his sworn affidavit which was presented and entered as Exhibit 3. Mr. Wynia reviewed the Minutes of Settlement, ZBLA and SPA. It is his professional opinion that together they constitute good planning and conform to all appliable planning policies.

22Messrs. Cullip and Wynia advised the Tribunal that the settlement Proposal addresses the main issues that the Town and the public had regarding traffic and visual impacts.

Policy Framework

23Mr. Wynia opined that overall, the Proposal is consistent with the Provincial Policy Statement, 2020 (“PPS”), the GOP and the OP. The Proposal is compatible with the surrounding area, utilizes existing infrastructure and transportation facilities, is supportive of farming operations in the area and there were no objections noted from the Grey Sauble Conservation Authority (“GSCA”).

24The PPS establishes land use policy requirements for communities and decisions under the Act must conform to the PPS. Mr. Wynia noted that the Subject Property is located in a Rural Area, not a Prime Agricultural Area, and this is an important distinction. Policy 1.1.4.1 of the PPS is supportive of development that is compatible with the rural landscape, such as opportunities related to the support of farming and the rural economy. Mr. Wynia opined that the Proposal contemplated is appropriate in an area designated as Rural and is an efficient use of existing services. The GSCA did not have any objections to approval of the Proposal as they also felt that it was consistent with the policies in the PPS.

25The PPS also sets out policies related to transportation systems in Policy 1.6. Mr. Wynia noted that the Ministry of Transportation (“MTO”) did not have any concerns with the Proposal that is before the Tribunal. He opined that it represents an efficient use of infrastructure which capitalizes on its highway location, which is meant for the type of traffic generated by the Proposal. County Staff had no objection relative to the PPS as they agreed that it was an appropriate re-use of the Subject Property and promotes economic opportunities.

26The ZBLA and Site Plan Agreement conform to the GOP and the OP. The Subject Property is designated Rural in both the GOP and the OP.

27The Rural designation in the GOP permits a variety of land uses with agricultural and resource being given priority. Mr. Wynia noted that a contractor’s yard is specifically contemplated in the GOP and that County and Town Staff did not have any concerns. Mr. Wynia agreed with their assessment that a contractor’s yard is specifically contemplated and concluded that the Proposal is consistent with the GOP.

28The designation of Rural in the OP includes all rural lands that do not fall within the criteria for designation as Agricultural and Specialty Agricultural. Mr. Wynia opined that the appeal before the Tribunal is an ideal situation. The Proposal is to permit a business use that supports the agricultural community without being located on prime agricultural lands.

29Section 4.4.3 of the OP lists permitted uses which include small-scale commercial or industrial uses that are directly supportive and related to farm operations in the area. The Town requested that the Applicant provide supporting information to demonstrate how its business satisfies this section of the OP. The Agricultural Advisory Committee reviewed the information provided by the Applicant and concluded that the business of the Applicant conforms to this section of the OP. Its business is supportive of farm operations and in fact, provides electrical expertise for the agricultural commercial building requirement.

30With respect to drainage, Mr. Wynia testified that the original 2013 SPA approval found that drainage on the Subject Property was appropriate. He further noted that the modification being made to the site plan in the Proposal is to add a berm which will not impact drainage.

31Policy B4.4.4.1(d) requires that access to the Subject Property be from a public highway of reasonable construction, maintained on a year-round basis and is appropriate for the contemplated use. Mr. Cullip reviewed traffic impacts with the Tribunal and testified that the previous and the proposed uses generate comparable traffic volumes, which would be limited. In addition, Highway 26 is an appropriate public highway to accommodate commercial uses. Mr. Cullip further opined that the highway is flat and straight which results in excellent site lines in both directions for vehicles exiting, entering and approaching the Subject Property. The MTO provided an email noting their satisfaction with the Proposal that is before the Tribunal. Mr. Cullip’s opinion is that there are no safety concerns regarding traffic hazards.

32Mr. Wynia took the Tribunal to Policy D5.4 which refers specifically to the Highway 26 corridor and recognizes it as a scenic corridor. There is no new development being proposed and the only changes are to the use of the Subject Property and the addition of a berm. The berm was not a requirement of the 2013 SPA and Mr. Wynia is of the opinion that it will improve the aesthetics of the Subject Property. Mr. Cullip also addressed the addition of the berm and noted that it will be constructed within the property lines of the Subject Property so as not to affect the safety of vehicles entering and exiting the site.

33Mr. Wynia further noted that the area where open storage can occur on the site is stipulated in the SPA and will be a significant improvement over what exists currently. The Proposal will lead to an enhanced site along the scenic corridor of Highway 26 and is consistent with Policy D5.4. Finally, as noted previously, the existing building is currently legal non-conforming as it is larger than what is permitted. This legal non-conforming status will not change as there are no new or expanded buildings proposed nor permitted.

34It is the opinions of both experts that the ZBLA and SPA that will facilitate the Proposal are consistent with the land use planning framework established in the PPS, and conform with the GOP and the OP.

Consistency and Compatibility

35Through the public process associated with the ZBLA application, there were concerns raised regarding consistency, compatibility and potential impacts which would result from the change of use of the Subject Property. Mr. Wynia pointed out that the only site alteration proposed is the installation of the berm and that this would improve the aesthetics of the site.

36With respect to the ZBLA, Mr. Wynia opined that it is important to note that the Applicant is not requesting an amendment to the M2 Zone. Rather, the Applicant is proposing to leave the parent category and continue the existing exception, but limit it to a contractor’s yard rather than an abattoir. Mr. Wynia testified that amending the parent category would have allowed a wider range of uses. The Applicant requesting a re-wording of the current exception further limits the use beyond what would normally be permitted within the more broad M2 Zone and is compatible with the land use in the area.

37It is Mr. Wynia’s opinion that the concerns raised during the public process have been considered and the Proposal has addressed these concerns in an appropriate manner.

38With respect to the SPA, Mr. Wynia testified that the Subject Property has already received the 2013 SPA approval and there is no change being requested to this layout. The only change is to the use of the Subject Property and the addition of a berm. Mr. Wynia is of the opinion that the addition of the berm is appropriate as it assists in meeting the aesthetic objectives of the OP regarding the Highway 26 corridor.

FINDINGS AND DISPOSITION

39The Tribunal accepts the uncontroverted planning evidence and opinions of Messrs. Wynia and Cullip in whole in the disposition of the appeals.

40The Tribunal finds that the ZBLA provides a precise definition of a contractor’s yard and stipulates that the only uses permitted on the Subject Property are those found in the amended M2-5 Zone. In addition, the only permitted structures and buildings permitted on the Subject Property are those in existence currently. There are no new buildings or additions to current buildings permitted without an amendment to the ZBL.

41The ZBLA and SPA are consistent with the policy direction of the PPS and conform to the policy intents of the GOP and the OP. They have appropriate regard for matters of Provincial interest and represent good planning that is in the public interest.

42The Tribunal is satisfied, based on the evidence presented, that the concerns of the public and the Town regarding consistency, compatibility, traffic and visual impacts have been appropriately addressed.

ORDER

43THE TRIBUNAL ORDERS as follows:

• that the appeal pursuant to s. 34(11) against Zoning By-law No. 2018-65 is allowed in part and that By-law No. 2018-65 is amended as set out in Attachment 1 to this Order;
• that the appeal pursuant to s. 41(12) is allowed in part and the Site Plan Agreement set out in Attachment 2 to this Order is approved.

44The Member will remain seized and may be spoken to concerning matters relating to this Order.

“C. Hardy”

c. hardy

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-21-001463 – Attachment 1

Proposed Zoning By-law Amendment:

1. That Table 9.1- Exceptions of Zoning By-law No. 2018-65 is amended by deleting the text of exception 5 and replacing with the following:

Exception Number	Zone	Special Provisions
5	M2-5	These lands shall only be used for a Contractor’s Yard, and associated structures and accessory uses. For the purpose of the M2-5 zone, a Contractor’s Yard shall mean an electrical contracting business which also includes excavating, haulage and vacuum truck services and the construction/installation services of on-site sewage systems. Permitted buildings and structures are limited to those existing at the time of passing of this amending by-law. New or expanding buildings and structures are not permitted without amendment to this by-law. Accessory Outdoor Storage, including storage of motor vehicles having a capacity exceeding 4,500 kg, equipment, goods and materials, shall be permitted only in the accessory outdoor storage area depicted on Figure 1 below. The front lot line shall be deemed to be the lot line along Highway 26. FIGURE 1

2. This By-law shall come into force and take effect upon the approval thereof.

OLT-21-001463 – Attachment 2