Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 16, 2022

CASE NO(S).: OLT-21-001897

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

Applicant/Appellant: Ahmed Ameen Al-Obaidi

Subject: Application to amend Zoning By-law No. 100-2010 - Refusal or neglect of the City of Thunder Bay to make a decision

Existing Zoning: Residential Zone One

Proposed Zoning: Site Specific (To be determined)

Purpose: To permit a neighbourhood dental clinic

Property Address/Description: 2129 Arthur Street East

Municipality: City of Thunder Bay

Municipality File No.: Z-06-2021

OLT Case No.: OLT-21-001897

OLT Lead Case No.: OLT-21-001897

OLT Case Name: Al-Obaidi Holdings Inc. v. Thunder Bay (City)

Heard: August 18, 2022 by video hearing (“VH”)

Parties Counsel

Al-Obaidi Holdings Inc. (“Applicant”) Rene Larson

City of Thunder Bay (“City”) Michael Grimaldi

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON AUGUST 18, 2022 AND ORDER OF THE TRIBUNAL

1This is a settlement hearing concerning an appeal by Al-Obaidi Holdings Inc. The Applicant is seeking a zoning by-law amendment (“ZBA”) to define and allow for a “Neighbourhood Dental Clinic” within an existing single detached dwelling at 2129 Arthur Street East (the “Subject Property). The proposed amendment would also require no less than seven and no more than 10 parking spaces.

BACKGROUND

2The application was refused by City council, notably for it purportedly not conforming to the City’s Official Plan (“OP”). Also of note, since the application was considered by council, the City passed an official plan amendment (OPA No. 7) to specifically allow a dental clinic on the subject property. The passing of OPA No. 7 has apparently led to the settlement of this matter.

3Uncontroverted planning evidence was provided by Stefan Huzan, a professional land use planner who has appeared before the Tribunal or its predecessors on a number of occasions. Mr. Huzan confirmed his acknowledgment of duties as an expert orally before the Tribunal and was duly qualified to provide expert testimony in the area of land use planning.

Planning Analysis

4Summarily, Mr. Huzan opined that the proposed ZBA is consistent with the Provincial Policy Statement 2020 (“PPS”), conforms and does not conflict with the Growth Plan for Northern Ontario (2011) (“GPNO”) and conforms with the City’s OP as amended by OPA No. 7.

5Mr. Huzan’s evidence is summarized below, with policy sections cited first followed by his comments.

Provincial Policy Statement

6Part V, Section 1.1.1 (b) – Accommodating a mix and diversity of land uses: the proposed ZBA contributes to sustaining healthy, livable safe communities by accommodating a dental office use that is an appropriate affordable and market based commercial use within the area’s mix of residential, employment and other uses.

7Part V, Section 1.1.1 (e) – Promoting integration: the proposed ZBA sustains healthy, livable safe communities per policy 1.1.1(e) by reflecting integration of land use planning, growth management, transit-supportive development, and intensification and infrastructure planning. By allowing this use in the developed settlement area, the proposed ZBA also achieves cost-effective development patterns, transit use, and minimizes land consumption and servicing costs.

8Part V, Section 1.1.3.4 – Appropriate development standards for intensification: the site-specific zoning provisions of the proposed ZBA provide appropriate building location, parking and landscaping standards, and thus facilitates intensification and redevelopment in a compact form.

9Part V, Section 1.1.3.5 – Regard for local conditions: the site-specific zoning provisions of the proposed ZBA allows redevelopment while maintaining the existing building location and significant landscaped areas.

10Part V, Section 1.3.1 (a) – Range of employment use sites: the proposed ZBA promotes economic development and competitiveness by maintaining a diverse economic base, increasing the range and choice of suitable employment use sites while taking into account the needs of existing and future businesses.

11Part V, Section 1.3.1 (d) – Compact and mixed-use areas: the proposed ZBA promotes economic development and competitiveness by facilitating a compact and mixed-use development while incorporating a compatible employment use into a livable and resilient community with appropriate regard for housing policies.

12Part V, Section 1.7.1. (e) – Design and retaining character: the proposed ZBA encourages a sense of place and retention of local character with a well-designed built form and preservation of local landscaping and building location features (through the use of site-plan control, which will be part of the building permit approval process).

Growth Plan for Northern Ontario

Part 2 – Economic Growth

13Policy 2.2.2 (f) – Improving health services: the proposed ZBA contributes to the economic development and competitiveness of Northern Ontario as it strengthens the priority economic sector of health services.

14Policy 2.2.3 (b) and (c) – Attracting health investment, retention and growth: the proposed ZBA facilitates economic development investment into health services and new facilities, and it encourages the growth and retention of a competitive health services business.

Part 3 – Human Development

15Policy 3.4.1 (a) – Recruitment: the proposed ZBA contributes to the objectives of a strong, skilled and healthy labour force as it helps to accommodate and retain qualified health professionals and helps create more opportunities for recruitment.

16Policy 3.4.2 (d) – Expanding scope and practice: the proposed ZBA establishes a new health care facility which provides an opportunity for expanding the scope of practice of non-physician health professionals.

17Policy 3.4.3 – Supporting diversity and mix: people benefit from the requested rezoning because it helps support and promote healthy community living by adding to the diverse mix of land uses, the range and mix of employment and housing types, and this subject local service would be easily accessible to residents.

Part 4 – Community

18Policy 4.2.1 (b) – Accommodating diverse needs: the proposed ZBA contributes to the long-term community strategy objective of accommodating the diverse needs of all residents, and health services needs in particular.

19Policy 4.2.1 (c) – Optimizing use of existing infrastructure: the proposed ZBA contributes to the long-term community strategy objective of optimizing use of existing infrastructure.

20Policy 4.3.3 (a) – Providing easy access: the proposed ZBA contributes to the long-term community strategy objective of providing easy access to health care services.

City of Thunder Bay Official Plan

21General Intent of the City’s OP: the subject property is located within the Residential land use designation, where non-residential uses are often limited to the Neighbourhood Commercial designation. However, Part 11 of the OP allows flexibility and specifically states “land use designations shall be considered as representing predominant land uses and shall not preclude small pockets of other land uses consistent with the pertinent policies of this Plan.” The subject property can be considered a component of an existing non-residential pocket (together with a non-residential building across the street, currently used as a day care facility) and, due to the existing area’s eclectic property characteristics, the proposed redevelopment is compatible and desirable.

22Compatibility Considerations: the proposed ZBA allows the Applicant to construct and operate a dental clinic inside the location of the existing building on the subject property. This provision is compatible with the surrounding residential area having had regard for the history of dental offices in residential areas across the City, the character of the use, the nature of the property and its location.

23Over the past decades, dental clinics have historically been established and allowed within residential-type buildings located in residential areas. These clinics have proven to be an integrated and compatible element within and serving these local areas without disruption. This subject property is highly visible to traffic, located at the top of a “T” intersection along a four-lane road. Both the number of permitted practitioners and the maximum size of the use is appropriately limited, in consideration of the surrounding residential neighbourhood. The proposed use would be located in or at the location of the existing long-standing dwelling, thus the structure remains compatible with the surrounding area. The proposed use will also retain existing boundary fencing and most of the existing natural landscaping. The proposal further retains the existing oversized front yard setback, which limits the building’s impact on the surrounding area and contributes to a compatible setting. The adjacent buildings/properties are of an eclectic nature of various ages, sizes and styles, and the current zoning permits additions and size increases, so the proposal fits well into the existing mixed-character area.

Official Plan Amendment No. 7

24Mr. Husan particularly noted that since council’s original refusal of the requested ZBA, for failing to conform to the applicable OP at the time, council passed OPA No. 7 to specifically allow a dental clinic on the subject property. The Tribunal finds that OPA No. 7 is clearly a product of council’s desire to allow the proposed development, amending the City’s OP so it is no longer a barrier for approval of the requested ZBA.

Summary and Conclusion

25The Tribunal accepts the evidence and opinions of Mr. Husan, as described above, and accordingly finds that the proposed ZBA is consistent with the PPS, conforms and does not conflict with the GPNO, and conforms with the City’s OP and OPA No. 7 in particular.

Relief Sought

26At both the outset and conclusion of the present hearing, the Tribunal requested confirmation from the parties with respect to the relief sought as part of the settlement.

27In response, the City tendered a draft instrument to reflect the contents of a ZBA approved by the parties to give effect to the settlement. That instrument included wording which not only purported to amend By-law No. 100-2010, the comprehensive Zoning By-law in effect at the time of the application (which is the subject of the present application and appeal), but also By-law No. 1/2022, which is a new comprehensive zoning By-law adopted by council on April 11, 2022. Counsel for the City confirmed that this new By-law is yet to come into effect due to various appeals associated with it, but it will eventually be in effect retroactively once those appeals have concluded. Counsel for the Applicant confirmed that the Applicant has not submitted an application to amend or appeal this new By-law.

28Counsel for the City suggested that the Tribunal has the power to order an amendment to the new By-law for pragmatic purposes, since an amendment to the old By-law will be repealed at the same time as the entire former comprehensive Zoning By-law is repealed when the new comprehensive Zoning By-law comes into effect. Furthermore, since the new By-law will come into force retroactively and eventually pre-date this decision, it will ultimately render the present decision ineffective. When counsel for the Applicant was asked if he agrees with this submission, counsel for the Applicant responded earnestly, despite the City’s position obviously favouring his client, acknowledging his belief that the Tribunal does not have the jurisdiction to amend a yet-to-be-in-force By-law which has not been formally brought to the Tribunal by way of an application or appeal by his client.

29Upon consideration of these submissions, and while recognizing that the timing of this hearing and the adoption of the City’s new comprehensive Zoning By-law is troublesome and will cause the parties to almost certainly revisit the current application/issues once the new By-law comes into effect, the Tribunal is unable to find that it has the power or jurisdiction to amend a yet-to-be-in-force By-law, particularly since it is not in any way the subject of the current application/appeal, nor is it otherwise before the Tribunal in any formal capacity. As a result, the Tribunal’s Order below only references the requested ZBA associated with By-law No. 100-2010.

30Notwithstanding the above, the Tribunal notes that, while the City is clearly not bound to amend By-law No. 1/2022 to accommodate the Applicant’s plans as a result of the present Tribunal Decision, the Tribunal observes that it would be prudent for the City to take some direction from the present Decision to avoid unnecessary costs and waste of time associated with another potential appeal by the Applicant involving essentially the same subject matter in relation to By-law No. 1/2022.

ORDER

31THE TRIBUNAL ORDERS that

The appeal is allowed in part and the Tribunal directs the City of Thunder Bay to amend By-law No. 100-2010 as follows:

Schedule "B" of By-law 100-2010 is amended by adding the following paragraph to it:

197 (1) The following parcel of land (referred to in this paragraph as the "affected land") within THUNDER BAY, in the District of Thunder Bay:

PCL 2-1 SEC WM63; LT 1-2 PL WM63 NEEBING; THUNDER BAY and shown as "Property Location" on Exhibit One to and forming part of this Amending By-law, is subject to the following provisions:

The provisions of Sections 4 and 8.1 and Table 5.15.9 of this BY-LAW continue to apply to the affected land. In addition to all other provisions of this BY-LAW, the affected land is subject to the following provisions:

a) Definitions

A “NEIGHBOURHOOD DENTAL CLINIC” is a MEDICAL OFFICE for the practice of not more than three dentists.

b) Permitted USES

In addition to the USES permitted in Section 8.1 of this BY-LAW, a NEIGHBOURHOOD DENTAL CLINIC, as defined in Subparagraph “197 (1) a), is a permitted USE in the BUILDING existing on the 29^th of April 2022.

c) Number of PARKING SPACES Required

In the case of a NEIGHBOURHOOD DENTAL CLINIC, as defined in Subparagraph “197 (1) a), no less than seven (7) PARKING SPACES are required and no more than 10 PARKING SPACES are permitted.”

The Tribunal authorizes the Municipal Clerk of the City of Thunder Bay to administratively assign and attach the property location map, referenced above in this Order, as “Exhibit One” forming part of the amending by-law; and
The Tribunal authorizes the Municipal Clerk of the City of Thunder Bay to assign a number to this by-law for record keeping purposes.

“K.R. Andrews”

k.r. andrews

MEMBER