Theo Nibourg v. Town of Greater Napanee, 2022 CanLII 85605

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 15, 2022

CASE NO(S).: OLT-22-002726

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Theo Nibourg

Subject: Minor Variance

Description: To increase lot coverage from 10% to 60% as well as to permit outside storage in order to construct a Sales office with a parking lot, outside storage unit, and display sign areas.

Reference Number: PLVAR 2021 043

Property Address: (Part Lot 24, Concession 3); southeast end of Kimmetts Side Rd., Napanee

Municipality/UT: Greater Napanee/Lennox and Addington

OLT Case No.: OLT-22-002726

OLT Lead Case No.: OLT-22-002726

OLT Case Name: Nibourg v. Greater Napanee (Town)

Heard: June 14, 2022 by Video Hearing

APPEARANCES:

Parties Counsel

Theo Nibourg Jennifer Savini

Town of Greater Napanee Tony Fleming

DECISION DELIVERED BY S. BOBKA and s. deboer AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Theo Nibourg (“Applicant") owns vacant land located at Part Lot 24, Concession 3, former Richmond Township (“Subject Property”), in the Town of Greater Napanee (“Town”). The Applicant applied to the Town for variances from Zoning By-law No. 02-22 (“ZBL”) to permit the Subject Property to be developed for commercial use. On the recommendation of Town planning staff, the Committee of Adjustment (“COA”) denied the application for minor variances. The Applicant appealed the decision of the COA to the Tribunal.

SUBJECT PROPERTY AND EFFECT OF PROPOSAL

2The Subject Property is currently vacant, is approximately five hectares (“ha”) in size and is irregular in shape. It has a depth of 297 metres (“m”) and an average width of 160 m.

3Access to the Subject Property is via Kimmetts Side Road, which is a maintained public road. The Subject Property has 27 m of frontage on that road and abuts the north side of Highway 401.

4While the Subject Property is flat, it was used as a quarry in the 1960s and, as a result of the removal of stone, approximately 20% of its area is now a lagoon. A large portion of the Subject Property’s interior is exposed bedrock with no soil cover. The Subject Property’s southern exposure to Highway 401, its northern boundary and its entrance (at the western boundary) are in a natural state with small, mature coniferous stands of trees and other natural growth.

5In terms of the uses of the surrounding properties, those abutting the Subject Property are also vacant and zoned for development (as a business park and a casino), while the properties to the south (across Highway 401) are developed with industrial uses.

6The Subject Property is:

• designated ‘Urban Area’ on Schedule ‘A’, Land Use of the County of Lennox and Addington Official Plan (“COP”);
• located within the Urban Settlement Area (as defined on Schedule ‘A’) of the Town’s Official Plan (“OP”) and designated ‘Arterial Commercial’ (on Schedule ‘C’ Land Use Plan); and,
• zoned ‘Arterial Commercial (C2)’, which permits a range of commercial uses.

7The Applicant seeks the following relief regarding the lot coverage, outdoor storage and servicing provisions of the ZBL, in order to permit a swimming pool and hot tub sales business and outdoor storage use/accessory uses:

LEGISLATIVE FRAMEWORK

8In the determination of this Appeal, it must be noted that pursuant to s. 45 of the Planning Act (“Act”), this is a hearing de novo and the onus is on the Applicant to establish that the four tests have been met.

9Section 3(5) of the Act requires that decisions of the Tribunal affecting planning matters be consistent with the Provincial Policy Statement, 2020 (“PPS”). The Tribunal must also have regard to matters of Provincial interest in s. 2 of the Act, as well as regard for the decision of the Municipality and the information it considered in the course of making its decision, in accordance with s. 2.1(1) of the Act.

10The Tribunal must evaluate the minor variances in the context of the following four tests under s. 45(1) of the Act:

a. Do they maintain the general intent and purpose of the OPs?

b. Do they maintain the general intent and purpose of the ZBL?

c. Are they minor?

d. Are they desirable for the appropriate development or use of the land?

HEARING

11There were no requests for additional Party or Participant status at the Hearing.

12The Applicant attended the hearing accompanied by Counsel as well as Land Use Planner Lindsay Mills who was qualified by the Tribunal to provide opinion evidence in land use planning. Mr. Mills provided an executed Acknowledgement of Expert’s Duty (“AED”).

13In opposition to the Appeal, the Town was also represented by Counsel and relied upon the testimony of Mark Touw. Mr. Touw is a Land Use Planner consulting for the Town, who was qualified by the Tribunal to provide land use planning opinion evidence. Mr. Touw also provided an executed AED.

14The Tribunal received and marked the following documents as Exhibits to the Appeal:

• Exhibit 1 – Joint Book of Documents
• Exhibit 2 – Aerial Map and Water and Sewer Services
• Exhibit 3 – Additional Official Plan Policies

15The Tribunal also had the Municipal Record available to it, as forwarded by the Town, containing all the information and documentation that were before the COA when the application was received, considered and denied.

16The Planning witnesses were aligned that the main issue is allowing development on the Subject Property with connection to private services. The Town had no issues with the other two variances.

PPS

17Mr. Mills opined that the Application is consistent with the PPS, and took the Tribunal to s. 1.6.6.4, which states:

Where municipal sewage services and municipal water services or private communal sewage services and private communal water services are not available, planned or feasible, individual on-site sewage services and individual on-site water services may be used provided that site conditions are suitable for the long-term provision of such services with no negative impacts. In settlement areas, individual on-site sewage services and individual on-site water services may be used for infilling and minor rounding out of existing development.

18Mr. Mills opined that regarding this section of the PPS, development on private services would be permitted if it was infill, and it was his opinion that the development constitutes infilling. He stated in his planning report that while the term is not defined in the PPS:

it may be generally defined as something that fills a space or hole or, in planning terms, is new development in the space available between existing development. In this case, the property is in between development to the north and to the south. Thus, it seems clear that the proposal is consistent with this definition thereby meeting the general intent and purpose of the PPS policy to allow development in such cases.

19Mr. Mills testified that there was development approximately 500 m to the north and 200 m to the south of the Subject Property. As such, he opined, if there was development on one side of the proposal as well as on the other side then it should be considered infill.

20Mr. Mills stated that s. 1.6.6.4 is permissive; he opined that if municipal services weren’t available, planned or feasible then one could develop on private services. While he was of the opinion the proposal met the definition of infilling, he also opined that in interpreting the PPS, the second sentence of s. 1.6.6.4 didn’t apply. He testified that this second sentence provides examples of circumstances where private servicing could occur but does not prescribe those circumstances, which he opined was made clear by the removal of the word ‘only’ from the 2020 version of the PPS. As a result, Mr. Mills opined that the second sentence could be ignored.

21Mr. Mills and Mr. Touw were aligned in their opinions that the PPS establishes a hierarchy of servicing and the strong preference was to develop first on full municipal services, then on communal services and finally, on private services.

22Mr. Touw agreed with Mr. Mills that regarding the PPS, s. 1.6.6.4 was at the heart of the matter. In his January 19, 2022 letter to the Town (Exhibit 1), Mr. Touw concurred with the opinion of Mr. Mills that the proposal satisfied the first part/sentence of s. 1.6.6.4 as municipal services were not currently available, there were no plans “for an extension of services … (i.e. not in any foreseeable capital budgets). Feasibility of providing the service is uncertain, and it is not likely to be feasible until the broader area is further developed, which is likely many years in the future.”

23However, in that same letter, Mr. Touw provides a thorough analysis regarding the second sentence/test and whether this situation constitutes infilling. He concludes that the Subject Property is not within “an existing developed area as the lands abutting to the east, north and west are vacant and, at best, used for agricultural purposes. Highway 401 to the south forms a natural and definitive dividing line unlike an arterial road that would otherwise provide access….” He further opined that the Subject Property “does not provide an obvious “infill” or “rounding out” scenario given that it is not adjacent to any development and is in the path of future development that would be on full services.”

24It was Mr. Touw’s opinion that the proposal is neither “infilling” nor “rounding out” as prescribed by the PPS and therefore, the proposal is not consistent with the PPS.

25Mr. Touw testified that, in his experience, this is the first request for this type of relief that he has seen. He stated that in Napanee and other areas of the County, limiting private servicing to situations of infill and minor rounding are consistently applied and that private servicing in Urban areas is rarely contemplated. He stated that this speaks to the general understanding that the PPS is very limiting in allowing private servicing in Urban areas.

26On cross-examination, Mr. Mills conceded that this proposal was not a case of minor rounding out. He also stated that this was the first time in his career that he had proposed such a large gap (with development 500 m to the north and 200 m to the south) to be a case of infilling; however, he maintained that as the PPS does not specify the scale, the size of the gap is interpretive, and he interprets this to be a case of infilling.

Four Tests under [s. 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec45subsec1_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

General Intent and Purpose of the Official Plans

27Mr. Mills highlighted s. B11 a) of the COP to the Tribunal, which states:

Where municipal sewage services and municipal water services or private communal sewage services and private communal water services are not provided, individual on-site sewage services and individual on-site water services may be used provided that site conditions are suitable for the long-term provision of such services with no negative impacts. In Rural Settlement Areas, these services may only be used for infilling and minor rounding out of existing development.

28Mr. Mills opined, as with the PPS, that the second sentence of s. B11 a) does not negate the first sentence, and that the site conditions were suitable with no negative impacts. He highlighted that the County had not commented on the proposal. He testified that the proposed development is consistent with the direction of the COP in terms of directing new development to urban land use designations. It was his overall opinion that the proposal maintains the general intent and purpose of the COP.

29In his testimony, Mr. Touw brought the Tribunal’s attention to s. B9 a) and e) which state that:

In cases where new development is proposed outside of the built up area but within the Urban Area or Rural Settlement Area boundary it should be demonstrated that:

a) The new development area will generally serve as a logical extension to the existing built up area, is compact and minimizes the consumption of land;

e) All of the other infrastructure and public service facilities required to service the new development area is available, with such infrastructure and public service facilities being used as efficiently as possible.

30Mr. Touw opined that as stated in B9 a), development should be logical, with no leap-frogging and should progress from within developed areas outward. He testified that the Subject Property is within the Urban Area, but outside of the built-up area, and is not a logical extension as required in s. B9 a) of the COP.

31Upon cross-examination, Mr. Mills agreed that the Subject Property was within the Urban Area, but outside of the built up area, and also agreed that the Subject Property was in the logical path of the service extension.

32Mr. Touw also highlighted s. B11, stating that in Rural Settlement areas, private servicing is limited to minor infilling or rounding. Mr. Touw stated in his January 19, 2022 letter that the language of s. 1.6.6.4 of the PPS is replicated in the COP. Mr. Touw was of the opinion that the COP, like the PPS, prioritizes development on full Municipal services. Mr. Touw testified that the variance requesting private servicing does not conform with the purpose of the COP.

General Intent and Purpose of the Zoning By-law

33Mr. Mills testified that the Subject Property is zoned ‘Arterial Commercial’ (C2) on Schedule ‘7’ of the by-law, which permits commercial use, specifies a maximum of 10% lot coverage for display and does not allow open storage. In addition, he pointed the Tribunal to s. 4.33 c) i) of the ZBL, which states that “Within the … C2, C3, C6 … zones lots must be serviced by municipal water and municipal sewers.”

34Mr. Mills explained that there are many areas that are zoned ‘D’, which means there is to be no development. A ‘D’ zoning would guarantee that a re-zoning application would be needed and that there would be no development in the ‘D’ zone until issues (such as servicing) were worked out. He opined that while many surrounding properties are zoned ‘D’, the Subject Property is not, so the intent of the Town with the C2 Zoning was to allow development.

35In his planning report, Mr. Mills acknowledged that the proposal “does not meet the provisions of the zone”, and as such, the three variances are being sought to bring the proposal into compliance. He stated that zoning is often done with a ‘broad brush’ and that zoning relief (either through re-zoning or minor variances) is common.

36It was Mr. Mills’ opinion that if the variances sought were granted, then the proposal would meet the general intent and purpose of the ZBL.

37Upon cross-examination, Mr. Mills agreed with Counsel for the Town that there was a mandatory direction in the ZBL to develop on municipal services and that he was asking the Tribunal to reverse a prohibition.

38Mr. Touw testified that the ZBL is applicable law and specifically implements the policy direction of the OP. In the OP, s. 7.2.4 states that “All development in the urban area of Schedule ‘A’ unless specifically stated otherwise in this Plan, shall be on full services ….”

39Mr. Touw also highlighted s. 4.33 c) of the ZBL (as referenced above by Mr. Mills), which specifically states that within the C2 zone, lots must be on municipal services.

40Counsel for the Town submitted that the intent of the ZBL is to prohibit private servicing in the C2 zone without any identified exemptions. As such, an exemption from this prohibition would not maintain the general intent and purpose of the ZBL.

41Regarding the ‘D’ zone, upon cross-examination, Mr. Touw testified that there are properties zoned ‘D’ adjacent to the Subject Property (to the east) and that it is a tool that Municipalities can use to restrict development.

42Mr. Touw was of the opinion that the proposal did not meet the general intent and purpose of the ZBL, as that purpose was specifically to prohibit private servicing and no exemptions were provided in the ZBL.

Other Matters

43Mr. Mills testified that the Applicant was willing to: a) enter into a site plan agreement, b) enter into a new development agreement agreeing that connection to Municipal services would occur once they are extended to the lot line of the Subject Property and c) contribute $50,000 to the Town towards road improvement.

44Mr. Mills testified that there is an existing 1994 Pre-Development Agreement (“Pre-Development Agreement”) that was signed between the then Corporation of the Township of Richmond (“Township”) and the Applicant. The Applicant asked that the Tribunal give some weight to this Pre-Development Agreement and find that it signifies the intent of the then Township to allow private servicing.

45When questioned in cross-examination, Mr. Touw spoke to the Pre-Development Agreement. He drew the Tribunal’s attention to paragraph [5] which, he opined, highlights the fact that the Pre-Development Agreement does not obligate the Township to pay for the costs of servicing or access. Mr. Touw also stated that planning has changed significantly since the Pre-Development Agreement was signed.

FINDINGS

46As stated above, the onus of establishing that the four tests under s. 45(1) of the Act have been met is on the Applicant in this case.

47With regards to the PPS, the Tribunal prefers the testimony of Mr. Touw, finding that his interpretation was consistent with the direction provided in the PPS, which emphasizes reading the statement in its entirety (as stated in ‘Part III: How to read the Provincial Policy Statement’). The Tribunal agrees that the first sentence of s. 1.6.6.4 must be read in the context of the second sentence, with the second sentence demonstrating a specific requirement, otherwise the second sentence would serve no purpose.

48The Tribunal agrees that the intent of s. 1.6.6.4 is to allow private servicing in a settlement area where it is considered infilling or rounding out of existing development. The Tribunal agrees with Mr. Touw that this is not a case of infilling and, as Mr. Touw contended and Mr. Mills admitted, it is not a case of minor rounding out of existing development, as there is no existing development nearby.

49When looking at the COP, the Tribunal prefers the testimony of Mr. Touw, finding his interpretation of Policies B9 a) and e) to be compelling. Per Policy B9 a), the proposed development would not be a logical extension to the existing built-up area, as the area in question is not built up. As required in Policy B9 e), the proposal fails to demonstrate that infrastructure and public service facilities required to service the new development are available.

50In terms of the ZBL, the Tribunal prefers the testimony of Mr. Touw. The Subject Property is in the C2 zone and the ZBL clearly states that within that zone, “lots must be serviced by municipal water and municipal sewers…” and the ZBL offers no exemptions to that requirement. The Tribunal agrees that to provide a variance to this provision would be going against the purpose and intent of the ZBL.

51With regard to the Pre-Development Agreement with the Corporation of the Township of Richmond, the Tribunal has considered it, and concurs with the position of the Town that planning policy has changed significantly since 1994 and this document should not supersede the PPS, OP or ZBL. The Tribunal also notes that the Pre-Development Agreement, while still registered on the title of the property, is not within the jurisdiction of this Panel.

52Based on the totality of the evidence presented, and for the reasons outlined above, the Tribunal finds that the proposal is not consistent with the PPS, does not meet the general intent and purpose of the COP and does not meet the general intent and purpose of the ZBL. Having failed two of the four tests outlined in s. 45(1) of the Act, the Tribunal finds that there is no purpose served in examining the other two tests.

53The Tribunal has had regard for the decision of the COA as well as the information considered by it.

ORDER

54THE TRIBUNAL ORDERS that the Appeal is dismissed and the variances to By-law No. 02-22 are not authorized.

“S. Bobka”

S. BOBKA MEMBER

“S. deBOER”

S. deBOER 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.