Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 11, 2022
CASE NO(S).: OLT-22-002300 (Formerly PL200556)
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 1186675 Ontario Ltd.
Appellant: Daniel Aquino
Appellant: Bushland Heights Limited
Appellant: Jessica Ferri; and others
Subject: Township of King (Our King) Official Plan, 2019
Municipality: Township of King
OLT Case No.: OLT-22-002300
Legacy Case No.: PL200556
OLT Lead Case No.: OLT-22-002300
Legacy Lead Case No.: PL200556
OLT Case Name: Aquino v. King (Township)
Heard: April 21, 2022 by Video Hearing
APPEARANCES:
Parties
Counsel/Representative*
Bushland Heights Limited,
Steven Ferri
Daniel Aquino, Via-Ru Limited
and 1186675 Ontario Ltd.
Lino and Elio Nicoletti
Tony Nicoletti*
Regional Municipality of York
Pittman Patterson
Lee English
Township of King
Tom Halinski
Jasmine Fraser
Flato Developments Inc.
Diana Betlej
Wyview Group
Yellow Horizon Homes Ltd.
Natalie Ast
MEMORANDUM OF ORAL DECISION DELIVERED BY M. Russo on april 21, 2022 and order of the tribunal
INTRODUCTION
1The matter before the Ontario Land Tribunal (the “Tribunal”) is with respect to the appeals under s. 17(36) of the Planning Act (the “Act”) as a result of the decision by the Regional Municipality of York (“Region”) to approve the new Official Plan (the “OP”) for the Township of King (the “Township”) subject to various modifications.
2A first Case Management Conference (“CMC”) was held May 11, 2021, and a second CMC was held September 21, 2021. With some additional case management requirements still requiring attention, a Telephone Conference Call (the “TCC”) was conducted January 7, 2022.
3During the CMC process, a consensus was reached by the Parties and a submission was put forward and accepted by the Tribunal, that the hearing of the merits be divided into two phases (set out in the Procedural Order (the “PO”)). The first phase, being a 20-day hearing that was scheduled to be heard April 4, 2022, and had issues affecting certain Parties and scoped issues, specified in the PO. The second phase, dealing with additional scoped issues, focused on matters and issues raised by additional Parties, and is scheduled to commence September 6, 2022.
4This Hearing before the Tribunal deals with matters of the Phase 1 aspect, identified in the PO. The Parties have settled the identified issues and are seeking a Settlement Hearing for Phase 1. Further, the remaining Parties having worked through several issues and awaiting some additional information from Township Council are requesting a CMC be scheduled to perhaps refine and reduce issues and perhaps reduce the time required for the Phase 2 Hearing.
CHRONOLOGY AND BACKGROUND
5The Township’s OP review process commenced in 2013. The purpose of the OP review was to bring the Township’s OP (1970), the Hamlet Secondary Plan and the Community Plans of Schomberg, King City and Nobleton into conformity with the Region’s newly adopted OP (2010).
6The adoption of the Township OP followed an extensive public consultation and work program that sought to develop a comprehensive long-term vision for the future of the Township as a whole, which was consistent with and conformed to all relevant Provincial and Regional policies and regulations. The Council-adopted OP established a detailed policy framework to guide growth and development in the Township, for a planning horizon to 2031.
7The Township’s OP review was undertaken in four phases spanning from 2014 to 2019.
8On September 23, 2019, Township Council adopted the Our King Official Plan (the adopted “Township OP”) through By-Law No. 2019-82 to replace the Township’s former OP, Secondary Plan, and Community Plans, and to submit the new OP to the Region for approval.
9On October 8, 2020, the Region issued its Notice of Decision to approve, with modifications and three deferrals, the Township OP in accordance with s. 17(35) of the Act.
10The Region received 12 notices of appeal of its approval of the Township OP during the appeal period. The Appellants were as follows:
(1) Sandra Kendall (“Kendall”);
(2) Stateview Homes (High Crown Estates Inc.) (“Stateview”);
(3) Yellow Horizon Homes Ltd. (“Yellow Horizon”);
(4) Kindome Investments Inc. (“Kindome”);
(5) Flato Developments Inc. and Wyview Group (“Flato and Wyview”);
(6) Lino and Elio Nicoletti (“Nicoletti”);
(7) Nobleton York Holdings Inc. (now Nobleton 2715 Developments Limited) (“Nobleton 2715”);
(8) 1186675 Ontario Ltd. (“118”);
(9) Bushland Heights Limited (“Bushland”);
(10) Via-Ru Limited (“Via-Ru”);
(11) Daniel Aquino (“Aquino”); and,
(12) Jessica Ferri (“Ferri”).
11Three of the 12 appeals (Kendall, Kindome and Ferri) were withdrawn.
12One of the 12 appeals (Stateview) was resolved via Tribunal Decision and Order dated October 29, 2021, in this proceeding.
13Five of the 12 appeals (Nicoletti, 118, Bushland, Via-Ru and Aquino) are relevant to Phase 1 of the Hearing in this matter.
14Four of the 12 appeals (Yellow Horizon, Flato and Wyview, Nobleton 2715 and 118) are relevant to Phase 2 of the Hearing in this matter. Counsel for two of the Parties involved in the Phase 2 aspect of this Hearing, were present to observe the Settlement proceedings for Phase 1. One Party was involved in both phases and the remaining Party was to be updated from present Counsel, whom have all worked amicably throughout this process.
THE HEARING
15The appealed policies in the 118, Bushland, Via-Ru and Aquino Appeals were scoped to either an area-specific or site-specific basis via Tribunal Decision and Order dated September 24, 2021.
16Further as indicated, the Tribunal approved PO set out parameters on how the Phase 1 Hearing would proceed and issues to be dealt with. Phase 1 of the Hearing was to focus on urban areas issues (Chapters 3 and 5 of the King OP), natural heritage issues (Chapter 4 of the King OP), rural area issues (Chapter 6 of the King OP) and implementation and interpretation policies (Chapters 9 and 10 of the King OP).
17With the numerous Parties involved in this Hearing, Tom Halinski, Counsel for the Township, had taken on the role to be a conduit to share information between Parties. He continued this role at the Hearing and further took a role as spokesperson at the proceedings. Mr. Halinski shared that all five parties, Aquino, Bushland, Via-Ru, 118 and Nicoletti, involved in Phase 1 of the Hearing have reached a Settlement of their appeals pertaining to the Township OP.
18Mr. Halinski provided opening submissions that summarized the Settlement reached for Phase 1. Before doing so, the Tribunal marked three items that were put forward and are relevant to these proceedings.
Exhibit 1 - The Affidavit of Kristen Harrison
Exhibit 2 - Draft Order
Exhibit 3 - Schedule 1 to the Draft Order
19Mr. Halinski described the five appeals for the Tribunal and summarized them into four groups or appeals.
20Appeal one, the “Aquino Appeal”:
i. The Tribunal was brought to pages 1 and 2 of Exhibit 3. Page 1 - s. 5.1, Village Site-Specific Policy Areas and Page 2 - Schedule ‘D1’ Map of the Township OP.
ii. The proposed Settlement has added:
Village Site-Specific Policy Area 9 (“V-SSPA-9”)
A new policy was added to the OP, that will be reviewed by the planning witness on this matter and is covered in paragraphs 41-59 of Exhibit 1.
21Appeals two and three, are actually two separate appeals, but similar in nature and will be reviewed in tandem. The “Bushland – Via-Ru” appeals:
i. The Tribunal was brought to pages 3 and 12 of Exhibit 3. Page 3 - s. 6.2.10.1 Hamlet Site Specific Policy Area X (“H-SSPA-1”) and Page 12 - Schedule ‘E1’ Map of Pottageville Land Use Designations within the Township OP.
ii. The proposed Settlement has amended:
Section 6.2.10 and added new Site-Specific Policy Areas X (“H-SSPA-1”)
after s. 6.2.10.1.
The new policy is dealt with and reviewed in paragraphs 60-113 of Exhibit 1.
It sets out the allowed uses and updates Schedules 4-11 and 13-22 of Exhibit 3. Further, pages 23-27 of Exhibit 3 include proposed minor corrections and language modifications agreed to and settled by the Parties.
22Appeal four, the “Nicoletti Appeal”:
i. The Tribunal was brought to pages 28-29 and 30 of Exhibit 3. Page 28- s. 6.2.10 Hamlet Site Specific Policy Areas (“H-SSPA-4”) and Page 30 - Schedule ‘E3’ Hamlet of Kettleby, Land Use Designations Map of the Township OP.
ii. The proposed Settlement has amended:
Section 6.2.10 to add the new Site-Specific Policy Area 4 (“H-SSPA-4”) after s. 6.2.10.
The new policy added to the OP, will be reviewed by the planning witness on this matter and is covered in paragraphs 114-139 of Exhibit 1.
23Appeal five, the “118 Appeal”:
i. It was Mr. Halinski’s submission that this appeal was procedurally more complicated than the former four appeals.
ii. Many issues have been resolved, however, there are outstanding issues within this appeal that the Parties feel are more appropriately dealt with at the Phase 2 portion of the Hearing.
iii. Issues specific to the “Hamlet of Snowball”, which are not before the Tribunal are relevant to this appeal and lands surrounding the subject lands referred to as the “donut lands” (reviewed on page 11, Exhibit 3).
iv. Thus, with the complexities of this appeal and some matters still awaiting to be dealt with, the Parties are requesting from the Tribunal that the matters pertaining to this appeal be deferred to the Phase 2 portion of the Hearing. Further, the affected Parties, as well the remaining Phase 2 Parties, will be seeking a CMC be scheduled subsequent to the conclusion of this Settlement Hearing.
APPLICABLE LEGISLATION AND POLICIES
24Land 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 OP, Zoning By-Laws, issue-specific guidelines, etc.
25Although the Parties have settled their issues, in adjudicating these appeals, the Tribunal must still 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”), 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”). These appeals may also be subject to additional provincial plans including Oak Ridges Moraine Conservation Plan (“ORMCP”), the Niagara Escarpment Plan (“NEP”), the Greenbelt Plan and Lake Simcoe Protection Plan (“LSPP”). Any appeals subject to these provincial plans, must also conform to the policies of those applicable provincial plans. Lastly, the Tribunal must be satisfied with the proposal’s conformity with both the Regional and Township OP, and that it represents good land-use planning in the public interest.
THE PLANNING WITNESS
26Jointly, the Parties agreed to call Ms. Harrison, Manager of Policy Planning at the Township and Registered Professional Planner, in the Province of Ontario. The Tribunal was asked that she be qualified to give viva voce evidence on the proposed Settlement.
27Provided in Exhibit 1 was Ms. Harrison’s affidavit and written evidence on the matter. Also included was her Curriculum Vitae (“CV”) and Acknowledgement of Expert's Duty form for the Tribunal’s consideration.
28Upon review of Ms. Harrison’s CV and Acknowledgement of Expert's Duty form, the Tribunal duly qualified and affirmed Ms. Harrison to provide expert opinion evidence pertaining to Land-Use Planning for this Hearing.
PLANNING EVIDENCE
Appeal one, the “Aquino Appeal”
29Ms. Harrison opined that the Aquino Lands subject to V-SSPA-9 form part of a ‘stable neighbourhood’ identified background studies (provided as exhibits within Exhibit 1) and as such, the Township OP designates those lands Established Neighbourhood and Village Natural Heritage System. In order to support any future redesignation of the Aquino Lands to allow for low-rise residential intensification or mixed-use development, the policies of V-SSPA-9 appropriately requires further studies to be undertaken.
30In her opinion, the Aquino Appeal Settlement (and V-SSPA-9) otherwise conforms to the Township OP. Paragraph (3) of V-SSPA-9 subjects the Aquino Lands to the rest of the Township OP policies in their totality.
31Ms. Harrison testified that in her expert opinion, the Aquino Appeal Settlement:
i. has the appropriate regard to s. 2 of the Act;
ii. is consistent with relevant policies of the PPS;
iii. conforms with the policies of all applicable Provincial Plans;
iv. conforms with relevant policies of the Regional OP;
v. conforms with relevant policies of the Township OP; and,
vi. represents good land-use planning in the public interest.
Appeal two and three, the “Bushland and Via-Ru Appeals”
32Ms. Harrison provided evidence that the proposed modifications to the OP set out in Schedule “B” to the Bushland Settlement seek to address the Appellants’ concerns with respect to the established neighbourhood policies, site plan control policies, and minor policy clarifications and additions.
33Ms. Harrison explained that Via-Ru appealed a number of policies and schedules of the Township OP, including all policies and schedules appealed by Bushland save and except for Schedule D3 (Schomberg), which Via-Ru appealed in place of Schedule D1 (King City). The Via-Ru Appeal primarily relates to the recognition and consistency to the pre-existing site-specific policy with respect to the Via-Ru Lands. Thus, these appeals dealing with many similar policies and schedules were dealt with in tandem.
34In her expert opinion, the proposed Settlement and the added new Site-Specific Policy Areas X (“H-SSPA-1”) after s. 6.2.10.1 conform to the general intent and purpose of the Township OP.
35Ms. Harrison provided her overall opinion to the Tribunal, that the Bushland and Via-Ru Appeals:
i. have the appropriate regard to s. 2 of the Act;
ii. are consistent with relevant policies of the PPS;
iii. conform with the policies of all applicable Provincial Plans;
iv. conform with relevant policies of the Regional OP;
v. conform with relevant policies of the Township OP; and,
vi. represent good land-use planning in the public interest.
Appeal four, the “Nicoletti Appeal”
36The Nicoletti appeal dealt with the land use designation of the subject lands, and policies under s. 6.2.8 (Hamlet Rural Area Designation) and the applicable schedules of the Township OP. The reasons for appeal are primarily concerned with the Hamlet Rural Area designation in relation to the subject lands. The Appellant contended that certain policies under s. 6.2.8 of the Township OP did not conform to the ORMCP and were unnecessary and/or overly prescriptive.
37The proposed Settlement includes the introduction of Hamlet Site Specific Policy Area 4 (“H-SSPA-4”) as it relates to the subject lands and corresponding modifications to Schedule E3.
38Ms. Harrison opined that, in her expert opinion, the Nicoletti Appeal Settlement:
i. has the appropriate regard to s. 2 of the Act;
ii. is consistent with relevant policies of the PPS;
iii. conforms with the policies of all applicable Provincial Plans;
iv. conforms with relevant policies of the Regional OP;
v. conforms with relevant policies of the Township OP; and,
vi. represents good land-use planning in the public interest.
39In summary, it was Ms. Harrison’s recommendation to approve the appeals before the Tribunal in Phase 1 of this Hearing. The Tribunal was provided a Draft Order (Exhibit 2) for its consideration. Ms. Harrison felt the Draft Order was appropriate and should be implemented in conjunction with Schedule 1 to the Draft Order (Exhibit 3) with some amendments possible and may be provided (shortly after the conclusion of the Phase 1 Hearing) for the Tribunal’s consideration, with some minor revisions and new language offered to Schedule 1.
THE CMC
40At the conclusion of the Settlement Hearing, the Tribunal heard from Counsel for the Township regarding a request that a CMC be scheduled in advance of the Phase 2 Hearing commencing.
41With the appeal of 118 and the requested deferral of the entire appeal to be dealt with at Phase 2, combined with the Parties still awaiting some clarity and some items to be dealt with by Council and other pending matters, the Parties felt it would be prudent to schedule a CMC and have the Parties continue to work through some issues, in an attempt to refine and scope issues, and in hopes of decreasing the number of Hearing dates or possibly settling matters.
DISPOSITION AND FINDINGS
42The Tribunal is satisfied and accepts the expert opinions and testimony of Ms. Harrison.
43The presiding Member, having sat on previous proceedings (CMC, TCC, and Settlements) for this matter, has seen a progression of issues being dealt with and discarded from items being contested by the Parties.
44The Tribunal is satisfied that site specific issues pertaining to Goals and Objectives, Growth Management, Village and Countryside policies, ORMCA Hamlet policies, Employment and Land Use Policy and Regulation (Implementation and Interpretation) established neighbourhoods and all issues itemized on the PO have been dealt with.
45With the evidence provided in Exhibit 1 and the viva voce testimony of Ms. Harrison, the Tribunal is satisfied that the four appeals dealt with at this Phase 1 Hearing:
i. have the appropriate regard to s. 2 of the Act;
ii. are consistent with relevant policies of the PPS;
iii. conform with the policies of all applicable Provincial Plans;
iv. conform with relevant policies of the Regional OP;
v. conform with relevant policies of the Township OP; and,
vi. represent good land-use planning in the public interest.
46Further, the Tribunal is satisfied and finds that a subsequent CMC prior to Phase 2 is appropriate and shall be scheduled.
ORDER
47THE TRIBUNAL ORDERS that in accordance with Section 17(50) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the “Act”):
i. The appeals by Daniel Aquino, Bushland Heights Limited, Via-Ru Limited, and Lino and Elio Nicoletti of the Township of King (Our King) Official Plan, 2019 (the “King OP”) are allowed, in part;
ii. The King OP is hereby modified in the form attached to this Order as Schedule "1" and the King OP shall be amended in accordance with Schedule "1" immediately upon the issuance of this Decision and Order;
iii. The appeals by Daniel Aquino, Bushland Heights Limited, Via-Ru Limited, and Lino and Elio Nicoletti are dismissed in all other respects; and,
iv. The Tribunal authorizes the municipal clerk to format, as may be necessary, and assign a by-law number to Schedule "1" for record-keeping purposes.
48THE TRIBUNAL ORDERS that:
i. This Order and the approval of portions of the King OP are without prejudice to the disposition of the appeals by 1186675 Ontario Ltd., Flato Developments Inc. and Wyview Group, Nobleton 2715 Developments Limited, and Yellow Horizon Homes Ltd. of the King OP (the “Phase Two Appeals”), and any unapproved portions of the King OP, including but not limited to positions taken by the parties to the Phase Two Appeals, such that if the Phase Two Appeals proceed to a subsequent hearing or motion, either on their own or as may be consolidated with other site-specific appeals, no party shall be permitted to take the position that the Tribunal ought not to approve site-specific or area-specific modifications to the affected policies, schedules, maps, figures, definitions, tables and associated text of the King OP on the mere basis that they deviate from or are inconsistent with such policies, schedules, maps, figures, definitions, tables and associated text on a Township-wide basis (or as approved in respect of other lands, which are subject to the same policies, schedules, maps, figures, definitions, tables and associated text). However, this does not affect the Township’s right to assert that the approved policies, schedules, maps, figures, definitions, tables, and associated text should be applied to the specific sites or areas without modification on the basis that doing so is consistent with the Act, provincial policies, conform to provincial plans and/or constitutes good planning.
ii. Notwithstanding this Order, the Tribunal retains jurisdiction to consider and approve modifications to any policies, schedules, maps, figures, definitions, tables and associated text approved herein, as may be appropriate to dispose of the Phase Two Appeals.
49THE TRIBUNAL FURTHER ORDERS that:
a. A CMC is scheduled (to deal with Phase 2 matters) to proceed by video on Tuesday, June 7, 2022, commencing at 9 a.m.
50Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
https://global.gotomeeting.com/join/765631861
Access Code: 765-631-861
51Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.
52Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: Toll-Free 1-888-455-1389 or +1 (647) 497-9391. The Access Code is as indicated above.
53Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the video hearing to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
54If any issues arise, the Member may be spoken to, if required, through correspondence received through the Case Coordinator.
55The Member is not seized for the purposes of the CMC or Phase 2 Hearing of the Appeals.
56No further notice will be given.
“M. Russo”
M. RUSSO
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.
SCHEDULE “1”