2568731 Ontario Inc. v. Norfolk (County), 2022 CanLII 71614

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

August 02, 2022

CASE NO(S).:

OLT-22-003453

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant:

2568731 Ontario Inc.

Subject:

Application to amend the Zoning By-law – Refusal of application

Description:

To permit a storage facility

Reference Number:

ZNPL2021124

Property Address:

Part Lot 12, Concession 6

Municipality/UT:

Norfolk/Norfolk

OLT Case No.:

OLT-22-003453

OLT Lead Case No.:

OLT-22-003453

OLT Case Name:

2568731 Ontario Inc. v. Norfolk (County)

Heard:

July 6, 2022 by video hearing

APPEARANCES:

Parties

Counsel

2568731 Ontario Inc.

Jennifer Meader

County of Norfolk

Peter Tice

MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY ON JULY 6, 2022, AND ORDER OF THE TRIBUNAL

INTRODUCTION

12568731 Ontario Inc. (“Applicant”) appealed the failure of Norfolk County (“County”) to make a decision within statutory timeframes on a Zoning By-law Amendment (“ZBA”) pursuant to s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”). The application relates to the property located at Part Lot 12, Concession 6, Geographic Township of Woodhouse, in the County (“Subject Property”).

2The Applicant’s original ZBA application was deemed complete by County Planning Staff on April 9, 2021. Following County Council comments, public comments and concerns identified by County Planning Staff, the Applicant provided revised drawings and planning justification to the County prior to the matter being presented to the County Council in November 2021.

3The ZBA was recommended by County Planning Staff for approval subject to site plan control and items set out in the Staff Report. The County Council refused the ZBA noting that “…it does not meet the intent of the Official Plan, in particular 6.6, and is not a permitted use within 6.6.1 of the Hamlet Commercial Zone in the County’s Zoning by-law 1-Z-2014”.

SUBJECT PROPERTY

4The Subject Property is currently vacant and is located on the southwest corner of Highway 3 and Cockshutt Road, Renton, Norfolk County. It is approximately 1.2 hectares in size.

5Approximately half of the Subject Property is within the Hamlet Boundary and the entire lot is designated Hamlet in the County Official Plan (“OP”). The majority of the Subject Property is zoned Hamlet Commercial with a Holding (“CHA(H)”) in the County Zoning By-law (1-Z-2014”) (“ZBL”) and is subject to Site Plan Control.

6The Subject Property is largely surrounded by low density single-detached residential dwellings with a few commercial operations at the intersection of Highway 3 and Cockshutt Road. To the west of the Subject Property is a single detached dwelling and farmland. To the east is Cockshutt Road, and further east is a single detached dwelling and agricultural lands. To the south of the Subject Property is farmland and to the north is Highway 3. North of Highway 3 is a single detached dwelling and a gas station.

PROPOSAL

7The current proposal before the Tribunal is a revision from the original proposal before Council to reflect comments received from the County and the public. The current proposal will permit the Subject Property to be used for a storage facility and will include a 3-metre landscaped strip around the entire perimeter of the Subject Property (“Proposed Development”). The Applicant is proposing to maintain primary access to the Subject Property via the existing driveway on the southeast corner and away from the Ministry of Transportation (“MTO”) / County controlled intersection.

8The Proposed Development will locate a small storage container in a gated area connected to hydro from Cockshutt Road, which will be used as an office for the administration of the business. There are no permanent buildings proposed and due to the nature of the passive business, washrooms and a potable water supply are not required. However, the Applicant is proposing temporary washrooms to be located on the Subject Property.

9The Proposed Development will rent “Moving Box” bins to customers, which will be delivered to the customer’s property, picked up when full and stored on the Subject Property. Customers will have access to their bin on the Subject Property. In addition, the Applicant proposes to rent space on the Subject Property for customers to store RVs and trailers.

10The Applicant submitted a ZBA application to the County to permit the use of a storage facility on the Subject Property and reduce various zone provisions to maximize the efficient use of the land. Currently, the ZBL does not permit a storage facility in the CHA(H) zone. A storage facility for empty bins with staff access only is permitted as-of-right; however, a ZBA is required for the storage of full bins with access to the public.

11The ZBA attached as Schedule “A” to this Decision will amend the ZBL which will permit the Proposed Development. The amendments proposed by the ZBA are as follows:

a. Re-zone the portion of the lands currently zoned CHA(H) to CHA and a Special Provision (14.1008);

b. Amend Special Provision (14.1008) to permit a storage facility; and

c. Reduce the minimum rear yard setback in the CHA zone from 9 metres to 5.6 metres.

HEARING

12This appeal was originally scheduled as a merit hearing; however, the Tribunal was notified in advance of the scheduled hearing that the Parties had reached a settlement. The Parties jointly requested that the Tribunal approve the ZBA attached hereto as Schedule “A”.

13As evidence at the hearing, the Tribunal received the following exhibits, which were identified sequentially during the hearing:

a. Exhibit 1: Affidavit of Eldon Darbyson

b. Exhibit 2: Draft Zoning By-law Amendment

c. Exhibit 3: Minutes of Settlement.

14The Applicant called Eldon Darbyson as its planning witness who was qualified by the Tribunal, without objection, to provide expert evidence in the area of Land Use Planning. Mr. Darbyson’s Curriculum Vitae and Acknowledgement of Expert’s Duty were appended to his Affidavit, which was entered as Exhibit 1. He provided a contextual and land use planning rationale to support the proposed settlement and reviewed the Act, the Provincial Policy Statement, 2020 (“PPS”), OP and ZBL.

15It was Mr. Darbyson’s opinion that the ZBA facilitates the development of underutilized land for commercial purposes. The services that will be provided by the Proposed Development will serve local communities without requiring any additional infrastructure or negatively impacting the surrounding agricultural area.

Evidence

16Section 2 of the Act outlines land use matters that are of provincial interest and for which County planning decisions shall have regard. Mr. Darbyson is of the opinion that the ZBA has sufficient regard for matters of provincial interest.

17The PPS outlines policies to manage and direct land use to achieve effective and efficient development and land use patterns. The PPS provides policy direction for land use planning and development patterns to achieve healthy, liveable and resilient communities that will protect, among other things, resources of provincial interest, public health and safety and will facilitate economic growth.

18The Subject Property is identified as being within a Settlement Area according to the PPS. Development and redevelopment within settlement areas is tied to long-term economic prosperity within communities. Mr. Darbyson testified that the PPS encourages the type of development proposed by the ZBA. It is an efficient use of existing land and infrastructure without the requirement of additional public expenditures.

19In his affidavit, Mr. Darbyson opined that the ZBA will facilitate the development of underutilized lands for commercial purposes which will provide services to the surrounding communities. He noted that there is a growing housing market in the County, which will utilize the proposed storage facility and the trailer and RV storage. Mr. Darbyson found that the ZBA and the Proposed Development are consistent with the PPS.

20The Subject Property is designated Hamlet Designation in the OP and Section 7.5.1 sets out criteria that must be addressed when further development is contemplated within the Hamlet Designation.

21Mr. Darbyson reviewed select criteria with the Tribunal, including that the proposed use must be dry in nature and not require excessive amounts of water. The Proposed Development contemplates storage bins containing household goods and the storage of large vehicles on the Subject Property. Both proposed uses are dry uses not requiring water or irrigation. Mr. Darbyson further noted that the proposed uses will not unduly burden the County as they do not require any additional municipal services.

22Mr. Darbyson testified that the Hamlet Designation does not assume further development is suitable in all cases. He opined that in this particular case, there are no natural features on the Subject Property, nor will there be any negative impacts to the surrounding agricultural area. In fact, the Subject Property would be enhanced with the Proposed Development as it will be landscaped to reflect the surrounding rural area. As such, development on the Subject Property in this particular case is suitable and appropriate.

23It was Mr. Darbyson’s opinion that the ZBA and the Proposed Development meet the general purpose and intent of the OP.

24The Subject Property is zoned Hamlet Commercial (CHA) with a Holding (H) and permitted uses include single detached dwellings, automobile gas stations and other uses. However, storage and a storage facility are not identified in the ZBL as permitted uses in this zone.

25It is significant to note that County Planning Staff confirmed in their Staff Report that under the ZBL, a proposed storage facility is permitted as-of-right if empty portable storage units with staff access only were being contemplated. This use would be considered accessory to the permitted office use. However, the Proposed Development contemplates that the portable storage units will not be empty, and access will be provided to customers, thereby necessitating the requirement of the ZBA.

26The ZBA proposes to rezone the CHA zone with a site specific provision to permit the storage facility use and a reduced rear yard setback to facilitate the Proposed Development. The Tribunal asked Mr. Darbyson to comment on the concern raised by an adjacent neighbour regarding impacts from the Proposed Development on their sensitive crops. Mr. Darbyson testified that these concerns, along with others raised by the County, had been addressed through the settlement process. Revisions were made to the site plan, setbacks were increased and additional landscaping and a fence were added to the Proposed Development. All of these revisions would provide a significant buffer between the Proposed Development and the agricultural crops of the neighbour. Mr. Darbyson noted that the revisions to the Proposed Development resolved these concerns to the satisfaction of County Staff.

27Mr. Darbyson opined that the Proposed Development which will be facilitated by the ZBA represent good planning and are in the public interest.

CONCLUSION

28The Tribunal accepts and agrees with the uncontested evidence of Mr. Darbyson and finds that the ZBA attached as Schedule “A” to this Decision is approved.

29The Tribunal agrees with Mr. Darbyson’s assessment that the Proposed Development is a passive use that does not generate traffic or noise impacts that more intense uses would produce. It is significant to note that more intense uses, such as gas stations, are permitted under the existing zoning.

30The Proposed Development which is facilitated by the ZBA is compatible with the surrounding agricultural and residential land uses. There are no negative impacts expected to be generated by the Proposed Development and the Subject Property will be enhanced with additional landscaping and buffering.

31The ZBA and the Proposed Development efficiently use lands within a designated settlement area with minimal anticipated negative impacts to the environment and surrounding areas. The Applicant revised the initial proposal to respond to concerns raised by County Planning Staff and the public and the ZBA before the Tribunal respects surrounding agricultural land uses while efficiently utilizing land on a main Highway for economic development.

ORDER

32THE TRIBUNAL ORDERS that the appeal is allowed in part and directs the Municipality to amend By-law No. 1-Z-2014 as set out in Schedule “A” to this Order.

“C. Hardy”

c. hardy

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.

OLT-22-003453 – Schedule A