Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 16, 2022

CASE NO(S).: OLT-22-002825 (Formerly) PL190276

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Empire Communities Subject: Proposed Official Plan Amendment No. OPA 6 Municipality: City of Thorold OLT Case No.: OLT-22-002825 Legacy Case No.: PL190276 OLT Lead Case No.: OLT-22-002825 Legacy Lead Case No.: PL190276 OLT Case Name: Empire Communities v. Thorold (City)

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

Appellant: Empire Communities Appellant: Lily Ruggi Appellant: Shane Webber Subject: By-law No. 60-2019 Municipality: City of Thorold OLT Case No.: OLT-22-002826 Legacy Case No.: PL190277 OLT Lead Case No.: OLT-22-002825 Legacy Lead Case No.: PL190276

Heard: June 8, 2022 by video hearing (“VH”)

APPEARANCES:

Parties	Counsel
City of Thorold (“City”)	P. Harrington
Lily Ruggi (“Ruggi”)	R. Di Lallo
Shane Webber (“Webber”)	R. Di Lallo

MEMORANDUM OF ORAL DECISION DELIVERED BY BLAIR S. TAYLOR ON JUNE 8, 2022 AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal held a Case Management Conference (“CMC”) to consider a proposed settlement of the Ruggi appeal against the City’s Comprehensive Zoning By-law No. 60-2019, and to hear a status update on the final outstanding appeal by Webber.

2In the lead up to the CMC the Tribunal received a proposed draft Zoning By-law Amendment (“ZBA”), a document brief, and a draft Procedural Order and Issues List (“PO”).

3For the reasons set out below, on the Ruggi appeal, the Tribunal heard expert land use planning evidence in support of the settlement proposal and allowed the appeal in part and in principle subject to receiving outstanding exhibits and a further revised draft ZBA including a holding provision and conditions of approval.

4With regard to the Webber appeal, as both parties had instructions to enable Tribunal-led mediation, the Tribunal gave directions for the parties to file a mediation request with the Mediation Coordinator, and set a further CMC for Wednesday, September 14, 2022, for a status update.

RUGGI APPEAL

5With regard to the Ruggi appeal, the municipal property involved is described as being Part 10 on Reference Plan 59R-10204 (“Subject Lands”).

6The Subject Lands are found within the Port Robinson East Special Policy Area in the City’s Official Plan, and designated Environmental Protection Two, and zoned EP2. The Official Plan has a specific policy for the Subject Lands that would allow one detached dwelling subject to: an Environment Impact Study (“EIS”), the completion of a Record of Site Condition, and a Noise/Vibration Study.

7The Subject Lands have a length of about 114.7 metres (“m”), some of which has frontage onto Biggar Road, with the remainder abutting the unopened road allowance. The Subject Lands have depth of about 54 m and an area of 0.62 square metres. The Subject Lands are flat and located about 44 m west of the CN mainline.

8Portions of the Subject Lands were previously used for railway purposes although there are no longer any railway tracks on the Subject Lands.

9In support of the proposed settlement which would rezone the Subject Lands from EP2 to R1A, the Tribunal heard expert land use planning evidence from John Hendricks.

10Mr. Hendricks testified that an EIS had been prepared for the Subject Lands and had been reviewed by both the Region of Niagara (“Region”) and the City staff and that the EIS confirmed that the Subject Lands did not contain any Core Natural Heritage Features.

11Exhibit 3 Tab 8 contains a letter dated October 9, 2020, from the Manager of Environmental Planning at the Region stating inter alia that the proposed boundary adjustment was acceptable, but that a 30 m Vegetation Protection Zone must be provided.

12Mr. Hendricks then took the Tribunal to the City’s Official Plan and policy E5 which is entitled “Interpretation of Land Use Designation Boundaries” which states the following:

The boundaries between land uses designated on the Schedules to this Plan are approximate except where they meet with roads, railway lines, rivers, pipeline routes, transmission lines, lot lines or other clearly defined physical features and in these cases are not open to flexible interpretation. Where the general intent of the document is maintained, minor adjustments to boundaries will not require amendment to this Plan.

It is recognized that the boundaries of the Environmental Protection designations may be imprecise and subject to change, given the dynamic and or seasonal nature of some natural heritage features. The City shall determine the extent of the environmental areas on a site-by-site basis when considering development proposals, in consultation with the appropriate agencies. Any minor refinement to the Environmental Protection designation shall not require an Amendment to this Plan.

13Further from the City’s Official Plan, Mr. Hendricks reviewed policy B 3.3.4.1 which states:

New development and site alteration may be permitted in the Environmental Protection Two designation provided it has been demonstrated through an Environmental Impact Study (EIS) that there will be no negative impact to the natural heritage feature or it ecological functions. An Environmental Impact Study submitted in accordance with this section of the Plan shall be subject to the review and approval of the appropriate approval authority, in accordance with policy C6.3 of this Plan. Where a proposal addresses the requirement of no negative impact, the adjacent official plan designation will apply and a Zoning By-law Amendment will be required to identify those lands where site alteration and development will be permitted. (Emphasis added).

14The Tribunal was then directed to Exhibit 1 being the draft proposed ZBA, which Mr. Hendricks stated required amendment as it did not provide for: a holding provision; conditions of approval including a Record of Site Condition, a Noise/Vibration Study, and the relabelling of the zoning schedule to be attached to the draft ZBA.

15However with those amendments, it was Mr. Hendricks’ professional land use planning opinion that an Official Plan Amendment was not necessary as this was a minor boundary refinement to the satisfaction of both the Region and the City, and proceeding by way of rezoning was appropriate.

16Further he opined that the amended proposed ZBA as he had outlined, would have appropriate regard for all the Provincial Interests in s. 2 of the Planning Act, that the rezoning was consistent with the Provincial Policy Statement (“PPS”), conformed to A Place to Grow: The Growth Plan for the Greater Golden Horseshoe (“Growth Plan”), conformed to the Region’s Official Plan and the City’s Official Plan and represented good land use planning and was in the public interest.

RUGGI DECISION

17The Appellant Ruggi had challenged the City’s Zoning By-law on the basis that the Subject Lands were more appropriately zoned R1A as demonstrated by the EIS.

18The Subject Lands appear to have been formerly used partly for railway purposes.

19While the appeal is to the City’s Zoning By-law, the evidence of Mr. Hendricks is that the City’s Official Plan in Policy E5 and B 3.3.4.1 specifically acknowledge that the boundaries of Environment Protection designations may be imprecise and subject to change given the dynamic and seasonal nature of some features and that minor refinements to the designation shall not require an OPA.

20The evidence is that an EIS was prepared, reviewed by the Region and the Region was satisfied that there were no Regional Core Natural Heritage Features on the Subject Lands, but required a 30 m Vegetation Protection Zone.

21With regard to the factual question as to whether this proposed boundary refinement was “minor” (it effectively would remove about 90% of the Subject Lands from the EP2 designation), Mr. Hendricks testified that the EIS brought clarity to the situation and had satisfied both the Region and the City that the EP2 boundary should be so refined, and thus it was minor.

22Counsel for the City confirmed the City’s support for this interpretation of the City’s Official Plan.

23While the draft ZBA found in Exhibit 1 does not provide a Holding provision, nor conditions of approval including the Record of Site condition and the Noise/Vibration Study, Mr. Hendricks identified these matters as being outstanding and recommended to the Tribunal an amended draft ZBA that would include all those provisions.

24This amended draft ZBA he opined would have appropriate regard to the matters of Provincial Interest in s. 2 of the Planning Act, would be consistent with the PPS, would conform to the Growth Plan, the Regional Official Plan and the City’s Official Plan, would represent good land use planning and would be in the public interest, and therefore he recommended approval of the amended draft ZBA.

25As the amended draft ZBA as proposed by Mr. Hendricks is not before the Tribunal, the Tribunal can only provide an Interim Order.

26The Tribunal will on the basis of the evidence of Mr. Hendricks, and the submissions of counsel, provide an Interim Order that allows the appeal in part and in principle on the conditions that counsel will forthwith provide to the Tribunal an amended version of the draft ZBA that will be specifically amended to include:

a. A Holding provision;

b. Require as a condition of approval a Record of Site Condition;

c. Require as a condition of approval, a Noise/Vibration Study; and

d. A revision to the Schedule to be attached to the draft ZBA.

27Further the Tribunal will require counsel to remit the outstanding exhibits (4, 5, 6, 7A and 7B) and the amended draft ZBA, all of which shall be provided to the Case Coordinator on or before July 8, 2020, failing which there shall be written communication to the Case Coordinator to explain why the required materials have not been provided, failing which the appeal may be dismissed.

WEBBER APPEAL

28The Tribunal noted in the communication that had been provided to the Case Coordinator from counsel to the City that both parties would be interested in Tribunal-led mediation/dispute resolution.

29The Tribunal confirmed with counsel that both had instructions for Tribunal-led mediation.

30The Tribunal inquired of counsel if a formal request for Tribunal-led mediation had been made?

31Upon being advised that such a request had not been made, but both parties were interested in mediation, the Tribunal stated that it would contact the Mediation Coordinator and advise that a mediation request would be forthcoming on this matter, (which has been done) and counsel for the City undertook to make that request.

32In these circumstances and although counsel for the City requested that the Tribunal set a five day hearing on the merits, the Tribunal in its efforts to optimize its limited hearing schedule, declined to do so, instead setting a further CMC for Wednesday, September 14, 2022, commencing at 10 a.m. by VH.

33Parties 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/927921077

Access Code: 927-921-077

34Parties 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.

35Persons 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 1-888-299-1889 or +1 (647) 497-9391. The Access Code is as indicated above.

36Individuals 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.

37If the event that a resolution is reached, the CMC may be converted to a settlement hearing. If no resolution is reached, the Tribunal will consider the draft PO that is found at Exhibit 2.

38There will be no further notice.

39I am not seized.

40This is the Interim Order of the Tribunal.

“Blair S. Taylor”

BLAIR S. TAYLOR 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.