Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 01, 2022

CASE NO(S).: OLT-21-001861 (Formerly PL210242)

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

Applicant and Appellant: Ed Seguin & Sons Trucking & Paving Ltd.

Subject: Application amend Zoning By-law No. 2014 - 45 - Refusal of Application by Municipality of West Nipissing

Existing Zoning: R1 – Residential One

Proposed Zoning: M1 – Light Industrial

Purpose: To permit the development of industrial warehousing/cold storage.

Property Address/Description: Part of Lot 5, Con. A, Et Al

Municipality: Municipality of West Nipissing

Municipality File No.: ZBLA2021-04

OLT Case No.: OLT-21-001861

Legacy Case No.: PL210242

OLT Lead Case No.: OLT-21-001861

Legacy Lead Case No.: PL210242

OLT Case Name: Ed Seguin & Sons Trucking & Paving Ltd. v. West Nipissing (Mun.)

Heard: January 27, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Ed Seguin & Sons Trucking & Paving Ltd.	Ira T. Kagan
Municipality of West Nipissing	Edward B. Veldboom

MEMORANDUM OF ORAL DECISION DELIVERED BY S. BRAUN ON JANUARY 27, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was a settlement hearing with respect to an appeal filed by Ed Seguin & Sons Trucking & Paving Ltd. (“Applicant”) pursuant to s. 34(11) of the Planning Act ¹(“Act”). The Applicant applied for a Zoning By-law Amendment (“ZBLA”) in relation to the property on Villeneuve Court described as Part of Lot 5, Concession A, being Part 1 and Part of Part 2, plan 36R-19026, Town of Sturgeon Falls (“the subject property/site”), which was refused by the Municipality of West Nipissing (“Municipality”).

2The Applicant and the Municipality advised the Tribunal that they had reached an agreement to resolve the appeal and presented executed Minutes of Settlement (“MOS”, Exhibit 2). Mr. Paul Goodridge provided expert land use planning evidence in support of the settlement. The parties requested the Tribunal allow the appeal and approve the ZBLA.

3The Tribunal received an Affidavit of Service dated December 16, 2021 (Exhibit 1) confirming that Notice of this hearing was properly given.

SITE CONTEXT AND DEVELOPMENT PROPOSAL

4The subject property is owned by the Municipality and was deemed surplus to Municipal requirements in late 2020. The Municipality and the Applicant entered into an Agreement of Purchase and Sale for the subject property, conditional upon the Applicant requesting a re-zoning of the property from Residential One (R1) to Light Industrial (M1).

5The subject property is currently vacant and is located on the east side of Villeneuve Court in the Town of Sturgeon Falls. To the immediate north is a warehouse and parking area owned by the Applicant. The Applicant rents part of that property to a mining business for the storage of mining equipment and uses the balance for the operation of its trucking and paving business.

6Further to the north and to the east are lands currently zoned Light Industrial (M1) and Heavy Industrial (M2). To the south and southwest are lands zoned R1. There are existing residential dwellings immediately to the south and an area which has received draft approval for a nine (9)-lot residential subdivision to the southwest.

7The Applicant proposes to use the subject property for warehousing and cold storage (of large iron and steel mechanical parts and equipment used for mining, in a building which is neither heated nor air-conditioned). At present, the subject property is zoned for residential use, but is located within an Employment District, as set out in the West Nipissing Official Plan (“OP”). As such, in order to use the subject lands as intended, the Applicant seeks a rezoning to Light Industrial (M1).

LEGISLATIVE FRAMEWORK

8In making a decision on the ZBLA presently before it, the Tribunal must be satisfied that it is consistent with the Provincial Policy Statement (“PPS”), that it conforms to/does not conflict with the Growth Plan for Northern Ontario, 2011 (“Growth Plan”) and that it conforms to the OP. In general, the Tribunal must be satisfied that the proposed ZBLA represents good planning and is in the public interest

9In addition to the foregoing, the Tribunal must have regard to the matters of Provincial interest in s. 2 of the Act and must also have regard to the decision made by the Municipality, including information considered by it in the course of making that decision.

PLANNING EVIDENCE

10The Tribunal heard uncontested opinion evidence from Mr. Goodridge, a former member of the Ontario Professional Planners Institute and Canadian Institute of Planners, who provided a detailed contextual and land use planning rationale to support the settlement. In addition, Mr. Goodridge specifically addressed issues raised by area residents who, while not having party or participant status in this matter, had nonetheless raised concerns that approval of the ZBLA and proposed use of the subject property would result in negative impacts to their properties (for example, drainage/flooding, traffic/safety and noise).

11Overall, Mr. Goodridge opined the ZBLA satisfies all legislative tests under the Act and represents good planning in the public interest. He ultimately recommended the Tribunal approve the ZBLA, pointing out that doing so will result in the zoning being brought into conformity with the OP.

PPS and Growth Plan

12In Mr. Goodridge’s opinion, the proposed ZBLA is consistent with the PPS in general and he highlighted some key policies for the Tribunal’s consideration. With reference to a compendium of visual evidence contained in a document book (Exhibit 3), the Tribunal’s attention was drawn to a number of nearby industrial buildings and uses. Mr. Goodridge opined that the proposed rezoning is consistent with PPS policies which encourage municipalities to cluster similar land uses together (in this case, industrial facilities) in order to ensure efficient use of lands, facilities and infrastructure.

13The PPS also speaks to employment areas planned for industrial or manufacturing uses having appropriate transition to adjacent non-employment areas. Mr. Goodridge explained there will be a 15 metre (“m”) buffer at the rear of the existing adjacent residential properties (in addition to minimum setbacks in the ZBL), which will be retained by the Municipality and will retain the R1 zoning. The 15 m R1 buffer was the direct result of discussions with neighbouring residential owners and is intended to ensure the proposed use of the subject property does not result in negative impacts to those adjacent properties.

14In Mr. Goodridge’s opinion, the proposed rezoning represents the highest and best use of the subject property, while avoiding or appropriately mitigating potential adverse impacts upon adjacent residences. He also referenced environmental policies within the PPS and opined that the Site Plan Control Process and detailed site design will serve to ensure future development of the subject property will be consistent with same.

15Mr. Goodridge opined that economic development and protection of the environment are the primary focus of Growth Plan policies. He testified that the proposed rezoning promotes economic development and again, referencing the Site Plan Control requirement, he opined that environmental protection will be appropriately addressed. As such, in his view, the ZBLA conforms to/does not conflict with the Growth Plan.

West Nipissing Official Plan

16With respect to the OP, a key policy therein requires the Municipality to be developed in accordance with the Land Use Schedule. With reference to that Land Use Schedule, Mr. Goodridge pointed out that the subject lands are clearly designated as being within an Employment District. He explained that, as the subject property is currently zoned R1, it is not in conformity with the OP.

17The Tribunal’s attention was also drawn to OP policy 3.06.8.4 and, in particular, the portion of the policy which reads:

The Municipality may establish specifically designated areas for industrial uses through zoning. Such areas should be designed to cluster industrial uses in one area of the community ie: Employment District.

Mr. Goodridge additionally noted the subject property is within an Urban Settlement Area, as referenced in Table 3.1 (Permitted Land Uses) and he opined that the proposed use is a Class 1 Industrial Use, which is permitted in such an area.

18With reference to Schedule A of the proposed ZBLA, Mr. Goodridge drew the Tribunal’s attention to a number of other areas in the vicinity to illustrate similar examples of industrial zoning adjacent to residential zoning. He opined that the subject property is located in a comparable “mixed use” neighbourhood having both residential and industrial uses.

19In Mr. Goodridge’s view, the proposed ZBLA “conforms exactly to the OP” and achieves a clustering of similar industrial buildings and uses in an area which is designated for Employment.

Specific concerns raised by nearby residents

20With respect to the concerns raised by nearby residents in general, Mr. Goodridge testified that the subject property will be subject to Site Plan Control and the Applicant will be required to enter into a Site Plan Control Agreement with the Municipality to be registered on title. In his view, Site Plan Control is the best mechanism for mitigating any potential negative impacts upon the adjacent residential properties.

21He highlighted the significance of the requirement to register the Site Plan Control Agreement on title, explaining that the Applicant and any subsequent owner of the property would be bound by the terms and conditions thereof which, in his view, provides additional assurance that there will be no unmitigable impacts upon adjacent residential properties now, or in the future.

22Mr. Goodridge went on to address specific concerns raised in relation to drainage/flooding. He acknowledged that, as a result of an earlier expansion of the parking facilities on the Applicant’s property, there had been flooding onto some of the nearby residential properties in the past.

23He reiterated that the subject property will be subject to Site Plan Control, and noted that prior to any further building permit or development applications, a drainage plan will need to be approved. He provided an in-depth review of a Drainage Plan at Tab 14 of Exhibit 3 and opined the proposed design adequately addresses potential flooding/drainage issues. He explained that the plan will be reviewed and, if necessary, amended at the site plan stage, representing additional assurance that any and all concerns in this regard will be appropriately addressed.

24In relation to concerns with respect to visual and noise impacts, Mr. Goodridge referenced Table 8.3 (Lot Requirements for Industrial Zones) of the ZBL. He drew the Tribunal’s attention to the minimum yard requirement for an interior side yard abutting a residential zone, which is 15 m. Mr. Goodridge explained that this 15 m minimum setback would be in addition to the 15 m buffer along the north side of the abutting residential properties, which will be retained by the Municipality to ensure visual and sound attenuation. He opined the total separation distance of 30 m would be adequate to mitigate any potential noise issues but should it be determined that 30 m is insufficient, the Municipality can, through the Site Plan Control process, require further sound attenuation measures such as additional plantings.

25Finally, with respect to traffic/safety concerns, Mr. Goodridge indicated that the proposed zoning and proposed use is light industrial. He testified that the warehousing and storage activity on the site would represent an increase of approximately 1-3 heavy trucks per day in the area. He noted that the area already has both light and heavy industrial uses in the vicinity and opined there would be a relatively negligible increase in traffic in the event of the approval of the ZBLA. Mr. Goodridge testified the site design would take into account the entrance to the residential neighbourhood, so as to mitigate the potential for conflict between heavy trucks and passenger vehicles.

FINDINGS AND DISPOSITION

26The Tribunal accepts the uncontradicted planning evidence and opinions of Mr. Goodridge and finds the proposed ZBLA is consistent with the PPS, conforms to/does not conflict with the Growth Plan and conforms to the OP. In particular, as the OP clearly designates the subject property for employment, the change in zoning from R1 to M1 brings the zoning into conformity with the OP. Overall, the Tribunal is satisfied that the proposed ZBLA represents good planning in the public interest.

27Regard has been given to matters of Provincial interest including, but not limited to, the orderly development of safe and healthy communities, the protection of the financial and economic well being of the Province and its municipalities and appropriate location of growth and development.

28Regard has also been given to the decision of the Municipal Council and the information considered by it. The Municipality appeared in support of the proposed ZBLA and the Tribunal had before it the Staff Report which recommended approval of same, as well as public comments in relation to potential adverse impacts such as drainage/flooding, noise and traffic, which Mr. Goodridge addressed in his evidence.

ORDER

29The Tribunal orders that the appeal is allowed in part and Zoning By-law No. 2014/45 is amended as set out in Attachment 1 to this Order.

“S. Braun”

S. BRAUN 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.

Footnotes

1. 1R.S.O. 1990, C. P. 13, as amended.