Ottawa Trim & Door Incorporated v. Ottawa (City), 2022 CanLII 58205

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 30, 2022

CASE NO(S).: OLT-21-001475

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Ottawa Trim & Door Incorporated c/o Tony Faranda

Subject: Consent

Property Address/Description: 7665 BIeeks Road

Municipality: City of Ottawa

Municipal File No.: D08-01-21/B-00186

OLT Case No.: OLT-21-001475

OLT Lead Case No.: OLT-21-001475

OLT Case Name: Ottawa Trim & Door Incorporated v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Ottawa Trim & Door Incorporated c/o Tony Faranda

Subject: Consent

Property Address/Description: 7665 BIeeks Road

Municipality: City of Ottawa

Municipal File No.: D08-01-21/B-00187

OLT Case No.: OLT-21-001476

OLT Lead Case No.: OLT-21-001475

Heard: June 2, 2022 by Video Hearing

APPEARANCES:

Parties Counsel

Ottawa Trim & Door Roberto Aburto and Incorporated (“Appellant” Jessica Chen or “Applicant”)

City of Ottawa Christina Enta (“City”)

DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL

BACKGROUND

1This is an appeal of the decision of the City’s Committee of Adjustment (“Committee”) denying two consent applications that would result in the creation of three lots to be located on the property municipally known as 7665 Bleeks Road (“Subject Property”). The Subject Property is shown on a sketch attached as Appendix A. The proposed severed parcels will be as follows:

File No.	Frontage	Depth	Lot Area	Municipal Address to be assigned
B-00186	90 metres	100 metres	9,065 square metres	7645 Bleeks Rd. (vacant)
B-00187	80 metres	100 metres	8,000 square metres	7651 Bleeks Rd. (vacant)

The retained land will continue to be known municipally as 7665 Bleeks Road, will have a frontage of 137.2 metres on Bleeks Road, to an irregular depth of 677.2 metres and will have a lot area of 189,565 square metres.

2The south end of the Subject Property, where the severances are proposed, is designated as General Rural Area as per Schedule A – Rural Policy Plan of the City’s Official Plan (“OP”), while the balance of the site falls under the Rural Natural Features designation. The Subject Property is zoned as Rural Countryside (“RU”) in Area D of the City’s Zoning By-law No. 2008-050 (“ZB”). The Applicant submitted two consent applications to permit the severance of two residential building lots from the Subject Property to permit the construction of detached single-family dwellings (“Proposed Development”).

3The Subject Property has a woodlot and wetland natural heritage features and is within 500 metres of an active aggregate pit. The Proposed Lots will be outside the wetland natural heritage feature but inside the woodlot natural heritage features. Severance No. 1 will be within the setback zone from the wetland natural heritage feature.

4An environmental report was prepared due to the natural heritage features on the Subject Property. This report identifies that risk mitigation measures must be taken to preserve these features. The City reviewed the environmental report and had no concerns with the proposed measures.

5The Subject Property is within 300 metres of an area zoned for aggregate extraction and which is currently being used by Dale Argue Equipment as an active sand and gravel pit. The Applicant had its consultant prepare a Mineral Resource Impact Assessment (“MRIA”) in support of the consent applications.

6After reviewing the consent applications, the City’s Planning Department prepared a report for the Committee recommending against the approval of the consent applications (“Municipality Planning Report”) since it was not satisfied that the MRIA showed that there would be no conflict between the two proposed lots and with future mineral aggregate extraction at the nearby gravel and sand pit, and it did not conform to the OP. Based on this report, the Committee denied the consent applications. The Applicant appealed the Committee’s decision to the Ontario Land Tribunal (“Tribunal”). Prior to the hearing, the City and the Appellant reached a settlement and appeared before the Tribunal to request that the appeal be allowed subject to the Conditions set out in Appendix B.

APPEAL AND HEARING

7This appeal is a hearing de novo of the consent applications. The Tribunal is required to hear the evidence presented in favour of the consent applications and decide whether to allow them based on this evidence by applying the applicable legal tests. The Tribunal must have regard to the decision of the Committee but is not bound by it.

8The Applicant called Tracy Zander as a planning witness and Gary D. McLaren as witness in the field of aggregate resources. They were properly qualified as expert witnesses in their respective fields and the Tribunal found their evidence to be credible and uncontradicted. Both witnesses answered all the questions posed by the Tribunal in a clear, concise and forthright manner.

CRITERIA UNDER S. 51(24) OF THE ACT

9Section 51(24) of the Act sets out the criteria that the Tribunal must consider when granting a severance. The most important criterion in this case is conformance with the OP. Several issues arise under the OP due to the proximity of the Subject Property to the aggregate pit and the natural heritage features on it.

CONFORMITY TO THE OP

10The planning evidence regarding conformance to the OP is focused on three areas:

1. The environmental impact study - reviewing the impact and the recommended mitigating measures to be taken due to the natural heritage features on the Subject Property;

2. The limitations under the OP regarding creation of new residential lots for property designated General Rural Area; and,

3. The possible conflict between the proposed residential use of the two lots to be created and the aggregate resources use on the property within 300 metres of the Subject Property.

11The OP requires that an environment impact study be completed due to the wetland and woodland natural heritage features on the Subject Property. This study demonstrates that if the risk mitigation proposals included in the report are undertaken, there should be minimal anticipated impacts to the natural environment. These risk mitigation measures have been included in the proposed conditions for the consents identified in Appendix B.

12The two Proposed residential lots will be created on the portion of the Subject Property designated as General Rural Area. They will not impact any agricultural uses since there are no such uses proximate to the site.

13Section 3.7.4 of the OP forbids any development within 300 metres of a Sand and Gravel resource area unless it can be demonstrated that such development will not conflict with future mineral aggregate extraction. The corner of the lot to be created from severance one shown in Appendix A will be within the 300 metre zone of Dale Argue Equipment gravel and sand pit. The City’s planning department was concerned by this situation and did not support the consent applications. The Committee followed this advice and rejected the original consent applications for the Subject Property.

14A more comprehensive MRIA report was prepared by Mr. MacLaren after the Committee decision and convinced the City to support the Appeal. It was part of the evidence before the Tribunal. Mr. Maclaren also testified that:

1. The area of the aggregate pit closest to the Subject Property has been mined, filled with clean fill and replanted. This area of the Dale Argue Equipment pit is unlikely to be used again to extract sand and gravel.

2. The area to the north of Bleeks Road buffering the aggregate pit from the street and the Subject Property, was formerly used to extract aggregates but the supply there has been exhausted.

3. The lot area within Severance No. 1 that lies within the aggregate 300-metre zone is very small. The building area envelope outside it can easily accommodate residential development.

4. There are existing residential uses closer to the pit between the aggregate mine and the Subject Property.

15Based on the evidence, the Tribunal finds that the proposed lots will conform with the OP since they will not interfere with the aggregate mine for the reasons expressed in the MRIA report, there will be no impact on any agricultural uses in the area and there will be limited impact on the natural heritage features provided that the risk mitigation measures identified in the conditions of Appendix B are taken.

CONFORMANCE TO THE ZB AND OTHER FACTORS OF S. 51(24) OF THE ACT

16The Subject Property is zoned RU by the ZB, which permits residential lots in the countryside to accommodate single family dwellings as proposed. Section 67 of the ZB identifies that no new residential dwellings may be constructed within 150 metres of an ME2 zone, the zoning permitting the aggregate pit. Both the proposed lots are well beyond the 150-metre setback from ME2 zones required for residential development. The Tribunal accepts the planning evidence that the severances will conform with the ZB.

17There are a range of other factors under s. 51(24) of the Act, which are relevant to the analysis of the Tribunal. The planning evidence identified that:

1. The Proposed Development is consistent with the Provincial Policy Statement (“PPS”) since it promotes the addition of residential uses in an area supported by existing municipal infrastructure. The PPS policies addressing protection of aggregated resources for long term use have been fully addressed by the MRIA report supporting the proposed residential lots.

2. The proposed severances are not premature since the lots to be created will be serviced by sufficient roads and hydro. The severances are in the public interest since they will result in additional housing.

3. The lots will be required to rely on private wells and a septic system and the conditions in Appendix B address the requirement for appropriate hydrogeological studies to be completed to ensure that both the wells and septic system will operate appropriately.

4. The lots will be of a regular shape and meet all other zoning requirements.

5. The lots will be of a sufficient size to accommodate septic systems.

6. The development agreement required by the conditions in Appendix B will protect the natural heritage features.

7. There are sufficient school services in the area to accommodate new students.

18In summary, the consent applications meet the requirements of s. 51(24) and will be allowed by the Tribunal, subject to the Conditions identified in Appendix B.

ORDER

19THE TRIBUNAL ORDERS THAT:

a) the Consents for Proposed Severance No. 1 and Proposed Severance No. 2 as shown on the sketch in Appendix A are granted, subject to the conditions attached to this decision as Appendix B.

“A. Cornacchia”

A. CORNACCHIA

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.

APPENDIX A

APPENDIX B

Requested Conditions of Approval for 7665 Bleeks Road – D08-01-21/B-00186 & D08-01-21/B-00187

1. That the Owner(s) enter into an Agreement with the City, at the expense of the Owner(s) and to the satisfaction of the Development Review Manager of the relevant branch within the Planning, Real Estate and Economic Development Department, or his/her designate, which is to be registered on the Title of the severed lots, to deal with nearby Sand and Gravel Resource area. The following covenant/notice shall run with the land and bind future owners on subsequent transfers:

"Please note that the lands are in proximity to lands zoned for the extraction of minerals and aggregates and these activities are required to be protected from conflicting uses. The owner agrees that they shall never oppose any mineral extraction activities, solely, nor collectively, directly, nor indirectly, and shall, at their cost, provide themselves noise, vibration and well water protections as they and/or a consultant, also at their cost, see fit"

The Committee requires a copy of the Agreement and written confirmation from City Legal Services that it has been registered on title.

2. That the Owner(s) enter into a Development Agreement with the City, at the expense of the Owner(s) and to the satisfaction of the Development Review Manager of the relevant branch within Planning, Real Estate and Economic Development Department, or his/her designate, which is to be registered on the title of the property, which includes those recommended mitigation measures or other requirements listed in the accepted Environmental Impact Statement submitted in support of the severances.

3. That the Owner(s) provide evidence (payment receipt) to the Committee and/or Tribunal that payment has been made to the City of Ottawa of cash-in-lieu of the conveyance of land for park or other public recreational purposes, plus applicable appraisal costs. The value of the land otherwise required to be conveyed shall be determined by the City of Ottawa in accordance with the provisions of By-Law No. 2009-95, as amended. Information regarding the appraisal process can be obtained by contacting the Planner.

4. That the Owner enter into an Agreement with the City, at the expense of the Owner(s) and to the satisfaction of Development Review Manager of the relevant branch within Planning, Real Estate and Economic Development Department, or his/her designate, which provides the following covenant/notice that runs with the land and binds future Owner(s) on subsequent transfers:

“The City of Ottawa does not guarantee the quality or quantity of the groundwater. If, at some future date, the quality or the quantity of the groundwater becomes deficient, the City of Ottawa bears no responsibility, financial or otherwise, to provide solutions to the deficiency, such solutions being the sole responsibility of the homeowner.”

The Committee requires a copy of the Agreement and written confirmation from City Legal Services that it has been registered on title.

5. That the Owners provide a report, to the satisfaction of the City of Ottawa, demonstrating the adequacy of the aquifer with respect to quality and quantity to support the proposed development, failing which the Owners construct a new well on the severed lot and provide a report, to the satisfaction of the City of Ottawa, to demonstrate the adequacy of the aquifer with respect to quality and quantity to support the proposed development. The report must include a septic impact assessment to evaluate the water quality impact of the on-site septic system on the receiving aquifer.

The Owners’ report must demonstrate the following to the City of Ottawa:

a. That the construction of any new well on the severed parcel is in accordance with the Ministry of the Environment, Conservation and Parks;

b. That the quality of the water meets the Ministry of the Environment, Conservation and Parks Regulations, Standards, Guidelines and Objectives;

c. That the quantity of water meets all the Ministry of the Environment, Conservation and Parks requirements;

d. That the septic impact assessment meets the Ministry of the Environment, Conservation and Parks requirements.

A qualified Professional Engineer or Professional Geoscientist must prepare the report. It is the Owner’s responsibility to coordinate the person drilling a new well, if required, and the professional noted herein in order to properly satisfy this condition.

If the accepted report recommends specific mitigation measures or design requirements, the Owners shall enter into a Development Agreement with the City, at the expense of the Owners, which is to be registered on the title of the property, which includes those recommendations. In instances where the subject site has sensitive soils, the drilling of a well or the conveyance of a 30-centimetre reserve may be required. Both the report and any required Development Agreement shall be prepared to the satisfaction of Development Review Manager of the relevant Branch within Planning, Real Estate and Economic Development Department, or his/her designate.

The Report shall be prepared as per Procedure D-5-4 “Technical Guideline for Individual On-Site Sewage Systems: Water Quality Impact Risk Assessment” and Procedure D-5-5 “Technical Guideline for Private Wells: Water Supply Assessment”.

6. That the Owner(s) convey, if required, at no charge to the City of Ottawa, sufficient frontage across the severed and retained lands to provide for a road right-of-way measuring 13 metres from the centreline of Bleeks Road. The Owner(s) must provide to the City Surveyor a copy of the Decision of the Ontario Land Tribunal and a draft Reference Plan that sets out the required widening. The Committee and/or the Tribunal shall require written confirmation from City Legal Services that the transfer of the widening to the City has been registered.

If the Owner’s Surveyor determines that the widening condition has already been satisfied, it must be indicated on the Draft Reference Plan and submitted to the City Surveyor for approval. The Committee and/or the Tribunal shall require written confirmation from the City Surveyor confirming that the widening is not required.

If the Owner(s) wish to temporarily retain the existing fence within the widening lands until the City develops the widening lands, the Owner(s) shall enter into (and register, if necessary) an encroachment agreement and/or letter of tolerance to the satisfaction of the General Manager, Planning, Infrastructure, and Economic Development. The Committee and/or Tribunal requires written confirmation from City Legal Services confirming either that a letter of tolerance/encroachment agreement has been executed (and registered if necessary) or will not be required.