Graham/Alcorn v. Central Elgin (Municipality), 2022 CanLII 48588

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 03, 2022

CASE NO(S).: OLT-21-001376

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Michelle Graham and John Alcorn

Subject: By-law No. 2630

Municipality: Central Elgin

Property Address: 226 Colborne Street

OLT Case No.: OLT-21-001376

OLT Lead Case No.: OLT-21-001376

OLT Case Name: Graham/Alcorn v. Central Elgin (Municipality)

Heard: May 12, 2022 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Dr. Adam Burton	Self-Represented
John Alcorn Michelle Graham	Terra Duchene*
Municipality of Central Elgin	Analee Baroudi*

DECISION DELIVERED BY S. deBOER AND JATINDER BHULLAR AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This decision addresses the hearing of an appeal filed by John Alcorn and Michelle Graham (the “Appellants”) pursuant to s. 34(19) of the Planning Act (“Act”) against the Municipality of Central Elgin’s (the “Municipality”) decision to amend the Zoning By-law No. 1507 (the “ZBL”) to permit site specific rezoning (the “ZBA”) of the Subject Property known as 226 Colborne Street, Port Stanley.

2The Subject Property is located on the west side of Colborne Street with a lot frontage of 20.11 metres and a lot area of 0.08 hectares.

3The rezoning of the Subject Property would allow the development of a three-storey mixed use building that would contain a dental clinic on the main floor; and two apartments located on each of the second and third floor. There would be an additional apartment located in the basement, totalling five residential dwellings along with the dental clinic.

4The current zoning (B-1) allows for a retail store, restaurant, business office or personal services shop. This zoning also allows for dwelling units above the main or first storey and accessory uses. The site specific ZBA request is to permit the use of a dental clinic. The ZBA also seeks relief of the parking space requirement. Under the ZBL seven parking spaces are required for the five apartment units and based on the proposed size of the dental clinic, five additional spaces are required, for a total of 12 spaces. The Application is requesting for a total of nine parking spaces including one handicap space.

PROCEDURAL HISTORY OF THE APPLICATION

6Dr. Adam Burton (the “Applicant”) initially approached the Central Elgin Planning office with a proposal for a dental office and five apartment dwellings located at the Subject Property. A consultation meeting was held on April 26, 2019 with the Applicant, staff from the Kettle Creek Conservation Authority (the ”KCCA”), the Municipality of Central Elgin and the Central Elgin Planning Office. From this meeting, additional comments and correspondence were circulated to the Applicant during September 2019. As a result of these consultations, it was determined that a site-specific ZBA would be required. The Applicant submitted their ZBA request, and the application was deemed complete by the Municipality on November 1, 2019.

7An initial Planning Staff report concerning the application was submitted to Council and was received at the council meeting of November 25, 2019. It was the recommendation of Planning Staff that a decision on the application was premature. The staffed determined that further information was needed to demonstrate that the Subject Property could be suitably developed, and their concerns can be addressed. The additional information requested by staff was for studies to address whether the parking area can be constructed and maintained as required and an impact assessment of the north-west portion of the property which is located within the flood fringe zone. Planning Staff also recommended a public meeting be held concerning the application. This meeting was subsequently held on January 20, 2020.

8After the public meeting Planning and Municipal Staff met with the Applicant to address both the Municipality’s and public concerns of the proposal. The Applicant committed to providing the information to address the Municipality’s concerns and stated that they were flexible to the public’s concerns as to the building design. The Applicant commented that the build design can be appropriately addressed at the Site Plan approval phase of the process by the Municipality.

5The Applicant submitted a site plan and topography survey in February 2021 and a Flood Impact Study prepared by Ecosystem Recovery Inc. in July 2021. After reviewing the studies, the Planning Department and the KCCA were satisfied that their concerns had been satisfied.

6The Planning Department prepared a report recommending approval of the Application and this report was presented to Council on August 16, 2021. After the presentation of the report, Council approved the ZBA to Zoning By-law No. 1507 as per Attachment 1 to this decision.

PARTICIPANTS AND WITNESSES

7The hearing was scheduled for two days. The Tribunal confirmed that proper notice had been given and the Affidavit of Service was submitted as Exhibit No. 1. The Tribunal did not receive any requests for participant status and confirmed there would be three witnesses presented to the Tribunal. The witnesses were the two Appellants (John Alcorn and Michelle Graham) and the Planner for the Municipality of Central Elgin, Kevin McClure.

LEGISLATIVE FRAMEWORK

8In deciding on the appeal presently before it, the Tribunal must have regard to matters of Provincial interest in s. 2 of the Act and be satisfied that the proposed ZBA is consistent with the Provincial Policy Statement 2020 (the “PPS”) and conforms with the Municipality of Central Elgin Official Plan (“OP”) and represents good land use planning.

9The Tribunal must also have regard to the decision of the approval authority and the information that was before it when it made its decision.

THE HEARING

10Mr. Alcorn was affirmed as a lay witness to provide factual evidence concerning the application. Mr. Alcorn lives at 224 Colborne Street adjoining the Subject Property. He stated his main concerns were regarding the proposed height, style and placement of the building on the Subject Property. He also stated his concerns regarding lack of parking. Mr. Alcorn raised his concerns with the Municipality, at the public meeting and at the Council meetings concerning the application. Mr. Alcorn stated that the dwellings in the area are mostly 1 and 2 storeys in height. He added that he is not against development of this vacant lot, however, the purposed building does not fit in with the character of the area. He does not oppose the development of the Subject Property, but he would prefer something that would be a better fit to the neighbourhood.

11In cross examination, Mr. Alcorn agreed that the ZBA does not state the height of the building or where the building is placed. The ZBA only speaks to the uses and the parking for the property. He also confirmed that he did not consult a planning witness or a traffic expert to bring expert opinion evidence to present to the Tribunal.

12Ms. Graham was affirmed as a lay witness who gave factual evidence concerning the application. Ms. Graham lives at 225 Colonel Bostwick Street and her property abuts the Subject Property at the rear yard. She stated that she appealed the development for the same reasons as Mr. Alcorn. She agreed with the testimony of Mr. Acorn and stated that she has additional concerns regarding the flood fringe zone that spans part of the Subject Property. Ms. Graham confirmed that her property is fully located in the flood fringe zone and believes that the retaining wall located on the back of the Subject Property will not allow flood water to flow away from her property and thus would negatively impact her. Ms. Graham stated that the retaining wall will be a barrier to normal dispersal of water and could cause more damage to her property and other neighbouring properties if a flood event occurred.

13Ms. Graham stated that she understood that the KCCA and the Municipality were satisfied with the reports submitted by the Applicant, however, she feels that these reports did not consider sufficiently the effects in the flood fringe zone if the dredging of KCCA was not carried out. She added that since the Municipality did not take the action of dredging the creek, the flood fringe zone is not correct, and the Subject Property would be totally in the Flood Fringe Zone and not just the north-west portion of the Subject Property. She did confirm that she did not consult with a planning expert or a flood expert to bring contrary evidence to the Tribunal.

14Kevin McClure was affirmed and qualified by the Tribunal to provide expert opinion evidence in the area of land use planning. Mr. McClure confirmed that he works at the Municipality and was the person in charge of processing this application at the Municipality. Mr. McClure went through the application process and reviewed his concerns regarding the original application especially pertaining to flood and parking issues.

15Mr. McClure opined that the application was presented back to Council for the second time at the August 16, 2021 council meeting. During the time between the original application in 2019 and the application presented on August 16, 2021, the Applicant had filed supplementary reports that specifically spoke to the concerns of the Planning Department.

16Mr. McClure, referring to the J.S. Malpass report, stated that the concerns of the parking lot and the retaining wall were duly addressed. Mr. McClure added that the report addresses site grading and how stormwater management would be implemented at the Subject Property. Mr. McClure opined that the report adequately addressed the concerns of the Planning Department at the Municipality.

17Mr. McClure stated that the flood impact report which was submitted by Ecosystem Recovery Inc. addressed the potential flood issues. He referred to the conclusions in this report which state that:

There will [be] no increase in flood elevations in flood events up to and including the Regulatory storm. Flood risk to the adjacent and upstream properties will be unchanged. Safe access and egress is available to and from the site under proposed conditions during the Regulatory storm event.

18This report and its findings satisfied the concerns of the Planning Department and the concerns of the KCCA. The planning report presented to Council recommended that the Application be approved for the site-specific ZBA.

PROVINCIAL POLICY STATEMENT 2020

19Mr. McClure opined that the areas of the 2014 and 2020 Provincial Policy Statements (the “PPS”) where this application meets the consistency standards are the same in both Statements. The Subject Property is within a “Settlement Area” as defined in both the 2014 and 2020 PPS. He then took the tribunal through policies in sub-section s. 1.1.1:

Subsection 1.1.1 a) promotes, "efficient development and land use patterns which sustain the financial well-being of the Province and municipalities over the long term". Further, subsection 1.1.1 e) promotes, "cost-effective development patterns and standards to minimize land consumption and servicing costs.

20Mr. McClure stated that the "Settlement Areas" section of the PPS builds upon this direction through subsection 1.1.3.2 by providing policies that speak to land use patterns within settlement areas that have densities, and a mix of land uses which efficiently use land and resources, are appropriate for, and efficiently use, the infrastructure and public service facilities which are planned or available and provide a range of uses and opportunities for Intensification and redevelopment where this can be accommodated.

21Mr. McClure testified that the rear portion of the Subject Property is within the Kettle Creek Flood Fringe as Identified in Schedule "G2" to the Official Pian of the Municipality of Central Elgin. As such, the policies of 3.1 of the PPS as they relate to development within natural hazards would apply. He added that the policies of the PPS state that development shall generally be directed to areas outside of hazardous lands (3.1.1.), however, subsection 3.1.6 states that:

Where the two-zone concept for flood plains is applied, development and site alteration may be permitted in the flood fringe…

22Mr. McClure reviewed policies in subsection 3.1.7 which provides further direction by providing that:

… development and site alteration may be permitted in those portions of hazardous lands and hazardous sites where, the effects and risk to public safety are minor, could be mitigated in accordance with provincial standards, and where all of the following are demonstrated and achieved:

a) development and site alteration is carried out in accordance with floodproofing standards, protection works standards, and access standards;

b) vehicles and people have a way of safely entering and exiting the area during times of flooding, erosion and other emergencies;

c) new hazards are not created and existing hazards are not aggravated, and

d) no adverse environmental Impacts will result.

23Mr. McClure opined that the Application with its updated reports, would be consistent with the policies of the PPS as they are providing a mix and range of land uses, provides an opportunity for intensification and redevelopment, and has provided sufficient information to satisfy the policies for development in the flood fringe.

COUNTY OF ELGIN OFFICIAL PLAN

24Mr. McClure stated that through the Staff's original report, concerns were raised with respect to Stormwater Management (subsection 2.8.4.1 a)) and the Natural Hazard policies in subsection 3.2.1. The inclusion of the raised parking area at the rear of the property was of concern based on the potential impacts from a stormwater management perspective and related to development in the flood fringe during those periods of high-water levels and storm events. Based on the supplemental materials that were provided to Staff, and through confirmation by the KCCA, these concerns were addressed to their satisfaction.

25Mr. McClure opined that the application generally conforms to the policies of the County of Elgin Official Plan as it relates to the mixed-use development proposal and Staff no longer has concerns with respect to potential impacts of the parking area within the flood fringe.

MUNICIPALITY OF CENTRAL ELGIN OFFICIAL PLAN

26Mr. McClure opined that there is also policy direction that speaks to the built form/physical design (subsection 2.10.3) and a set of general criteria that applications for mixed-use commercial/residential development must be reviewed within the Port Stanley Commercial areas (subsection 4.6.6.6 i)). Mr. McClure testified that the Applicant provided an urban design brief to address the compatibility and character components of the Official Plan. He added that many concerns were raised at the public meeting related to the proposed building design. Mr. McClure stated that the Applicant has confirmed that they are open to design revisions that would take in account the concerns of the public and the Applicant requested that this would be more appropriate at time of Site Plan approval. Mr. McClure affirmed that the detailed building and site design can be address through the Site Plan process.

27Mr. McClure opined that having reviewed those applicable policies in the Official Plan, the ZBA conform to the policies of the Municipality of Central Elgin Official Plan.

VILLAGE OF PORT STANLEY ZONING BY-LAW 1507

28Mr. McClure opined that the Subject Property is within the Business 1 (B1) zone of the Village of Port Stanley Zoning By-law No. 1507. The B1 zone permits a retail store, restaurant, business office, personal service shop, dwelling units above the main or first storey, and accessory uses. A ZBA to rezone the lands currently zoned B1 to a site-specific business zone is required to permit the dental clinic and residential apartment below the ground floor.

29Mr. McClure stated that as was provided in the original Staff report, the by-law requires seven parking spaces for the five apartment units and based on the proposed size of the dental clinic, five additional parking units are required for that use. A total of nine parking spaces have been provided for the proposed development, whereas twelve spaces are required. The Applicant has proposed to use the cash-in-lieu of parking provisions in Port Stanley Zoning By-law No. 1507 to account for the reduction in commercial parking.

30Mr. McClure opined that based on the new materials received and reviewed by both Staff and the KCCA and the ZBA as approved by the Council is consistent with the PPS, conforms with the County of Central Elgin Official Plan and the Municipality of Central Elgin Official Plan and accordingly represents good land use planning and has regard for the provincial interest.

ANALYSIS AND FINDINGS

31The Tribunal notes the concerns of the Appellants and is in agreement with the opinion of Mr. McClure that these concerns can be mitigated at the Site Plan Control stage of the development. These concerns do not address the Application before the Tribunal.

32The Tribunal received comprehensive and uncontroverted expert opinion evidence by Mr. McClure. Based on this expert opinion evidence, the Tribunal finds that the ZBA has regard for provincial interest per s. 2 of the Act, is consistent with the PPS, and conforms with the County of Elgin Official Plan and the Municipality of Central Elgin Official Plan.

ORDER

33THE TRIBUNAL ORDERS that the appeal is dismissed, and the Village of Port Stanley By-law No. 1507 is amended per Attachment 1.

“S. deBoer”

S. deBOER

MEMBER

“Jatinder Bhullar”

JATINDER BHULLAR

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT 1

MUNICIPALITY OF CENTRAL ELGIN

BY-LAW NO. 2630

A By-law to amend Village of Port Stanley By-law No. 1507

THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF CENTRAL ELGIN ENACTS AS FOLLOWS:

1. Village of Port Stanley By-law No. 1507 as amended, is further amended by adding to Section 3, which Section includes the Zoning Maps and Schedules, Schedule "A" to this By-law, which Schedule is attached to and forms part of this By-law, and such Schedule shall form part of By-law No. 1507 as amended, and shall be known as "Map Part 3(ap)" to By-law No. 1507 as amended.

2. Village of Port Stanley Zoning By-law No. 1507 as amended, is further amended by designating the lands outlined in heavy solid lines on Schedule “A” hereto as “B1-24”, and the provisions of subsection 10.2.1 of By-law No. 1507 as amended, shall apply to such lands, subject to the provisions of Section 3 of this By-law.

3. Village of Port Stanley By-law No. 1507, as amended, is further amended by adding thereto, after subsection 10.2.2.23 and before subsection 10.3 the following new subsection:

“10.2.2.24

10.2.2.24.1 Defined Area: B1-24, as shown on Zoning Map

Part 3(ap).

10.2.2.24.2 Additional Permitted uses: a) Clinic

b) A dwelling unit below the main or first storey

10.2.2.24.3 Off-Street Parking: 1 space per residential unit.”

4. In anticipation of the eventual consolidation of By-law 1507 and all amendments to such By-law, including this amendment, Schedule “B” to this By-law is hereby adopted, such Schedule being Zoning Map 3 to By-law 1507 amended to include the changes made in such Zoning Map by all amendments to By-law 1507 to date, including this amendment.

READ THREE TIMES AND FINALLY PASSED, this 16^th^ day of August, 2021.

__________________________________ ___________________________________

Paul Shipway Sally Martyn

CAO/Clerk Mayor