Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 28, 2022
CASE NO(S).: OLT-21-001790 (Formerly) PL200374
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: John Macdonald Subject: By-law No. 20-24 Municipality: Township of Elizabethtown-Kitley OLT Case No.: OLT-21-001790 Legacy Lead Case No.: PL200374 OLT Case Name: Macdonald v. Elizabethtown-Kitley (Township)
Heard: January 13, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| John Macdonald (Appellant) | Michael Polowin |
| Township of Elizabethtown-Kitley (Township) | Tony Fleming |
MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON JANUARY 13, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is a Settlement Hearing concerning an appeal by John Macdonald (“Appellant”). The appeal is pursuant to s. 34(19) of the Planning Act and concerns the adoption of Zoning By-law No. 20-24, which is a general amendment to the Township’s comprehensive Zoning By-law No. 13-21 to implement revised official plan policies. The appeal is focused on certain environmental zoning concerning the Appellant’s property at 1473 County Road 2, as shown in Schedule A3 of the By-law. At issue is the mapping.
BACKGROUND
2The Township adopted Zoning By-law No. 20-24 as a general amendment to the Township’s comprehensive Zoning By-law No. 13-21, intended to implement revised official plan policies.
3The Appellant owns property located at 1473 County Road 2, illustrated in Schedule A3 of the Zoning By-law, and challenges the wetland designation applicable thereon as illustrated in Schedule A3.
4With the consent of the parties, the Tribunal issued an Order on January 18, 2021 that the entirety of By-law No. 20-24 would come into force as of the date of its passage, save and except the portion of Schedule A3 that affects 1473 County Road 2.
5The parties negotiated a resolution of the remainder of the appeal as it relates to the property of the Appellant. The basis of the settlement requests that the Tribunal approve an amendment to paragraph 50 of By-law No. 20-24 by adding the following subparagraph immediately after the last bullet in s. 3.22 of the Zoning By-law:
Notwithstanding the generality of the foregoing, for lands zoned EP-LSW, the boundary of the EP-LSW zone may be altered by the Municipality without further amendment to this By-law in relation to any parcel of land where a qualified professional(s) demonstrates, to the reasonable satisfaction of the Municipality, the appropriate location of the zone boundary in relation to any proposed development. Once the Municipality accepts the location of the EP-LSW boundary, the 50 m setback and the provisions of this section shall apply to the altered boundary.
PLANNING EVIDENCE AND ANALYSIS
6The evidence in support of the within matter’s settlement was provided by Steven Pentz, who was duly qualified on consent as an expert in Land Use Planning.
7Mr. Pentz opined that the requested amendment maintains the intent and purpose of Zoning By-law No. 20-24. He testified that Schedule A3 identifies natural heritage features, including locally significant wetlands that are designated with the zoning symbol EP-LSW, and that the Schedule is based on Ministry of Natural Resources and Forestry wetland mapping and the Ministry’s wetland identification system.
8Mr. Pentz testified that the Township did not conduct site visits in the Township to verify the boundaries of natural heritage features, as is the standard practice given the limited resources of the municipality. He further opined that it is therefore reasonable and in keeping with the purpose and intent of the By-law to entrench a process in the specific provisions of the By-law to allow property owners to establish modifications to natural heritage feature boundaries based on site-specific investigations conducted by qualified professionals.
9Mr. Pentz further opined that the proposed amendments to By-law No. 20-24 will allow site-specific boundary modifications to reflect actual conditions on any parcel of land in the Township, including that which is occupied by the Appellant, thus ensuring appropriate zone boundaries are established and the natural heritage features are protected.
10Mr. Pentz testified that the proposed amendment is consistent with the Provincial Policy Statement 2020 (“PPS”) respecting the protection of natural heritage features and, correspondingly, the process to allow site-specific boundary adjustments will adequately protect natural heritage features and allow the Township to impose appropriate zoning regulations to preserve these features.
11Mr. Pentz further opined that the proposed amendment conforms with the Official Plan of the Township as the identification of locally significant wetlands will be undertaken by qualified professionals and reviewed by the Township to ensure any modifications to boundaries of these natural features are appropriate, and are in conformity with the Official Plan.
12In conclusion, Mr. Pentz testified that the proposed amendment represents good land use planning and recommended that the Tribunal approve the proposed amendment and dismiss the balance of the Appellant’s appeal.
13The Tribunal accepts the evidence and opinion of Mr. Pentz and finds same. The Tribunal further finds that the proposed amendment is an improvement upon the original Zoning By-law No. 20-24 insofar as it establishes a mechanism to more accurately depict natural heritage feature boundaries on an ongoing basis without the necessity of a ZBA, through site-specific investigations that may be initiated following the passage of the subject By-law. Site-specific investigations conducted by qualified professionals, who actually attend the property to assess the subject features of the lands, will undeniably lead to more accurate and reliable planning instruments compared to a municipality’s blind reliance on Ministry mapping and wetland identification system, which may or may not involve on-the-ground site specific investigations. Such a process, given its promotion of greater accuracy and reliability, will invariably lead to greater consistency/conformity with the environmental objectives of the PPS/Township’s Official Plan.
14Upon delivery of the Tribunal’s oral decision at the conclusion of the hearing, the parties jointly requested that the By-law Amendment come into full force and effect as of the day of the hearing. The Tribunal confirmed that it would.
ORDER
15THE TRIBUNAL ORDERS that;
- The appeal against Zoning By-Law No. 20-24 of the Township of Elizabethtown-Kitley is allowed in part by amending paragraph 50 of By-law No. 20-24 by adding the following subparagraph immediately after the last bullet in section 3.22:
Notwithstanding the generality of the foregoing, for lands zoned EP-LSW, the boundary of the EP-LSW zone may be altered by the Municipality without further amendment to this By-law in relation to any parcel of land where a qualified professional(s) demonstrates, to the reasonable satisfaction of the Municipality, the appropriate location of the zone boundary in relation to any proposed development. Once the Municipality accepts the location of the EP-LSW boundary, the 50 m setback and the provisions of this section shall apply to the altered boundary.
Zoning By-law No. 20-24, as amended by paragraph 1 of this Order, is in full force and effect as of the date of the decision delivered orally on January 13, 2022.
In all other respects, the Tribunal Orders the appeal is dismissed.
“K.R. Andrews”
K.R. ANDREWS 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.