Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 03, 2022
CASE NO(S).: OLT-21-001340
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Rock Island Management Inc. Subject: Application to amend Zoning By-law No. 1-2014 - Refusal or neglect of Town of Kingsville to make a decision Existing Zoning: Agriculture Proposed Zoning: Agriculture - Exception 85 Purpose: To permit conversion of the subject lands from single-family residential dwellings to worker housing. Property Address/Description: 2037 Peterson Lane Municipality: Town of Kingsville Municipal File No.: ZBA/14/21 OLT Case No.: OLT-21-001340 OLT File No.: OLT-21-001340 OLT Case Number: Rock Island Management Inc. v. Kingsville (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Rock Island Management Inc. Subject: Application to amend Zoning By-law No. 1-2014 - Refusal or neglect of Town of Kingsville to make a decision Existing Zoning: Agriculture Proposed Zoning: Agriculture - Exception 85 Purpose: To permit conversion of the subject lands from single-family residential dwellings to worker housing. Property Address/Description: 1566 Road 3 East Municipality: Town of Kingsville Municipal File No.: ZBA/15/21 OLT Case No.: OLT-21-001340 OLT File No.: OLT-21-001341
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Rock Island Management Inc. Subject: Application to amend Zoning By-law No. 1-2014 - Refusal or neglect of Town of Kingsville to make a decision Existing Zoning: Agriculture Proposed Zoning: Agriculture - Exception 85 Purpose: To permit conversion of the subject lands from single-family residential dwellings to worker housing. Property Address/Description: 1557 Road 3 East Municipality: Town of Kingsville Municipal File No.: ZBA/16/21 OLT Case No.: OLT-21-001340 OLT File No.: OLT-21-001342
Heard: September 26, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Rock Island Management Inc. | Edwin Hooker |
| Town of Kingsville | Susan Hirota |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. BOBKA ON SEPTEMBER 26, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was the first Case Management Conference (“CMC”) regarding appeals by Rock Island Management Inc. (“Appellant”) pursuant to s. 34(11) of the Planning Act (“Act”) for the failure to make a decision by the Town of Kingsville (“Town”) on Zoning By-law Amendments (“ZBAs”) for the properties municipally known as 2037 Peterson Lane, 1557 Road 3 East and 1566 Road 3 East (“Subject Lands”).
2The appeals seek to amend Zoning By-law No. 1-2014 (“ZBL”) to permit the conversion of the Subject Lands from ‘Agriculture (A1)’ to ‘Agriculture Exception 85 (A1-85)’, to permit the conversion of single-family residential dwellings to worker housing to support migrant farm workers.
3The Tribunal confirmed that proper Notice was given and marked the Affidavit of Service as Exhibit 1. In response to the Notice, no written requests for Party or Participant status were received and no individuals appeared at the CMC seeking status.
4The Tribunal was advised prior to the CMC that the Parties had reached a settlement. Pursuant to Rule 19.6 of the Tribunal Rules of Practice and Procedure, the Tribunal converted the CMC to a settlement hearing.
SUBJECT LANDS
5The Subject Lands are all in the same general area and have the following features:
| Municipal address | Size | Currently has | Municipal water service and connection to the municipal sewer system | Number of workers to be housed |
|---|---|---|---|---|
| 2037 Peterson Lane | 0.234 ha | Single detached dwelling and outbuilding | Yes | 14 |
| 1557 Road 3 East | 0.22 ha | Single detached dwelling and two outbuildings | Yes | 24 |
| 1566 Road 3 East | 0.1 ha | Single detached dwelling | Yes | 10 |
LEGISLATIVE TESTS
6In making a decision on the ZBA before it, the Tribunal must be satisfied that it is consistent with the Provincial Policy Statement (“PPS”) and that it conforms to the applicable Official Plans. In addition, the Tribunal must have regard to the matters of provincial interest in s. 2 of the Act and in general, regard for the related decisions of the municipality, and be satisfied that the proposed ZBA represents good planning and is in the public interest.
HEARING
7The Tribunal received and marked the following:
Exhibit 1: Affidavit of Service Exhibit 2: Resume of George Robinson Exhibit 3: Acknowledgement of Expert’s Duty of George Robinson Exhibit 4: Affidavit of George Robinson Exhibit 5: Draft Order
8The only witness called was George Robinson, Manager of Planning for the Town, who was qualified by the Tribunal to provide opinion evidence in land use planning.
9Mr. Robinson highlighted that when the applications initially went to Council in July 2021, the former Town Planner recommended that Council approve the applications. However, both a motion to defer and a motion to approve the applications failed and as such the Appellant appealed to the Ontario Land Tribunal.
10The witness explained that the Appellant owns four other similar properties which have been successfully rezoned to permit worker housing. Two properties (1361 Road 3 East and 1415 Road 3 East) were rezoned with Council’s approval, while the other two properties (1562 Road 3 East and 1335 Road 3 East) were rezoned by Order of the Local Planning Appeal Tribunal. It was Mr. Robinson’s opinion that the Subject Lands were indistinguishable from these four properties.
11It was Mr. Robinson’s professional opinion that the ZBA applications have regard to matters of provincial interest found in s. 2 of the Act, are consistent with the PPS, conform with both the County of Essex Official Plan (“COP”) and the Town of Kingsville’s Official Plan (“OP”) and represent good land-use planning in the public interest.
12Mr. Robinson also advised the Tribunal that he had specific regard for:
the human rights obligations of the Ontario Human Rights Code which require removal of any barriers that have a discriminatory effect on migrant workers including any that would be considered “people zoning” or otherwise create a significant barrier to migrant workers being able to live in the Town of Kingsville.
13Mr. Robinson explained that there is an Interim Control By-law (“ICBL”) which expires December 14, 2022, in place which:
was passed to prohibit the use of any land, building or structure for agricultural worker housing that is situated off the agricultural lands pending completion of a study but exempted “off-site worker housing that lawfully existed on the date of the passage of this by-law as long as it continues to be used for such purpose”.
14At the hearing, the Parties asked the Tribunal to exempt the Subject Lands from the ICBL which would “allow for the subject lands to be put to immediate use for the housing of migrant workers which is desirable given the lack of available housing to accommodate migrant workers.” It was Mr. Robinson’s opinion that:
the granting of these applications is consistent with the conclusions of the study as it relates to the need for such housing and its appropriate location and will not have any material detrimental impact to the Town’s eventual consideration and/or implementation of the recommendations in the study.
15Mr. Robinson opined that it would be appropriate and consistent with the proposed ZBAs to also amend the ICBL to exempt the Subject Lands. It was confirmed by Counsel for the Town that the Town was agreeable to the exemptions for the Subject Lands.
FINDINGS
16The Tribunal accepts the uncontroverted testimony of Mr. Robinson and is satisfied that the proposed ZBAs are consistent with the PPS and conform to the applicable Official Plans. The Tribunal has had regard to the matters of provincial interest in s. 2 of the Act and in general, regard for the related decisions of the municipality, and is satisfied that the proposed ZBAs represent good planning and are in the public interest, specifically as it will provide much-needed housing for migrant workers.
17The Tribunal has the general authority to decide matters related to the application and the Tribunal’s jurisdiction to release a property from an ICBL has been established in other decisions. The Tribunal was satisfied with the evidence that the proposed application is consistent with the conclusions of the related ICBL study. The Tribunal finds it appropriate to exempt the Subject Lands from the ICBL, which will result in the Applicant being able to house workers off site immediately.
ORDER
18THE TRIBUNAL ORDERS that the appeal related to 2037 Peterson Lane is allowed, and the municipality is directed to amend By-law No. 1-2014 as set out in Attachment 1 to this Order and to amend Interim Control By-law No. 68-2021 as amended by By-law No. 45-2022 (herein “Interim Control By-law”) so as to exempt 2037 Petersen Lane from the Interim Control By-law.
19THE TRIBUNAL ORDERS that the appeal related to 1557 Road 3 East is allowed, and the municipality is directed to amend By-law No. 1-2014 as set out in Attachment 2 to this Order and to amend the Interim Control By-law so as to exempt 1557 Road 3 East from the Interim Control By-law.
20THE TRIBUNAL ORDERS that the appeal related to 1566 Road 3 East is allowed, and the municipality is directed to amend By-law No. 1-2014 as set out in Attachment 3 to this Order and to amend the Interim Control By-law so as to exempt 1566 Road 3 East from the Interim Control By-law.
“S. Bobka”
S. BOBKA 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.
ATTACHMENT 1
BY-LAW XXX - 2022
Being a By-law to amend By-law No. 1-2014, the Comprehensive Zoning By-law for the Town of Kingsville
WHEREAS By-law No. 1-2014 is the Town’s Comprehensive Zoning By-law to regulate the use of land and the character, location and use of buildings and structures in the Town of Kingsville;
AND WHEREAS the Council of the Corporation of the Town of Kingsville deems it expedient and in the best interest of proper planning to further amend By-law No. 1-2014 as herein provided;
AND WHEREAS there is an Official Plan in effect in the Town of Kingsville and this By-law is deemed to be in conformity with the Town of Kingsville Official Plan;
NOW THEREFORE THE COUNCIL FOR THE CORPORATION OF THE TOWN OF KINGSVILLE ENACTS AS FOLLOWS:
- That Subsection 7.1 e) AGRICULTURE ZONE 1 A1 EXCEPTIONS is amended with the addition of the following new subsection:
7.1.85 ‘AGRICULTURE ZONE 1 EXCEPTION 85 (A1-85)’
a) For lands shown as A1-85 on Map 53 Schedule “A” of this By-law.
b) Permitted Uses i) Those uses permitted under Section 7.1 (Rural Residential); ii) A non-accessory bunkhouse;
c) Permitted Buildings and Structures i) Those buildings and structures permitted under Section 7.1 (Rural Residential) in the (A1) zone; ii) A non-accessory bunkhouse in an existing single detached dwelling in the A1-80 zone; iii) Buildings and structures accessory to the permitted uses.
d) Zone Provisions All lot and building requirements for the permitted buildings and structures shall be in accordance with Section 7.1 of this By-law.
Schedule "A", Map 53 of By-law 1-2014 is hereby amended by changing the zone symbol on lands, known municipally as 2037 Peterson Rd, in Pt. Lot 8, Concession 2 ED, Part 1 RP 12R 6854, as shown on Schedule 'A' in cross- hatch attached hereto from ‘Agriculture (A1)’ to ‘Agriculture Exception 85 (A1-85)'.
This by-law shall come into force and take effect from the date of passing by Council and shall come into force in accordance with Section 34 of the Planning Act.
ATTACHMENT 2
BY-LAW XXX - 2022
Being a By-law to amend By-law No. 1-2014, the Comprehensive Zoning By-law for the Town of Kingsville
WHEREAS By-law No. 1-2014 is the Town’s Comprehensive Zoning By-law to regulate the use of land and the character, location and use of buildings and structures in the Town of Kingsville;
AND WHEREAS the Council of the Corporation of the Town of Kingsville deems it expedient and in the best interest of proper planning to further amend By-law No. 1-2014 as herein provided;
AND WHEREAS there is an Official Plan in effect in the Town of Kingsville and this By-law is deemed to be in conformity with the Town of Kingsville Official Plan;
NOW THEREFORE THE COUNCIL FOR THE CORPORATION OF THE TOWN OF KINGSVILLE ENACTS AS FOLLOWS:
- That Subsection 7.1 e) AGRICULTURE ZONE 1 A1 EXCEPTIONS is amended with the addition of the following new subsection:
7.1.85 ‘AGRICULTURE ZONE 1 EXCEPTION 85 (A1-85)’
e) For lands shown as A1-85 on Map 53 Schedule “A” of this By-law.
f) Permitted Uses i) Those uses permitted under Section 7.1 (Rural Residential); ii) A non-accessory bunkhouse;
g) Permitted Buildings and Structures i) Those buildings and structures permitted under Section 7.1 (Rural Residential) in the (A1) zone; ii) A non-accessory bunkhouse in an existing single detached dwelling in the A1-80 zone; iii) Buildings and structures accessory to the permitted uses.
h) Zone Provisions All lot and building requirements for the permitted buildings and structures shall be in accordance with Section 7.1 of this By-law.
Schedule "A", Map 53 of By-law 1-2014 is hereby amended by changing the zone symbol on lands, known municipally as 1557 Rd 3 E, Pt. Lot 9, Concession 3 ED, as shown on Schedule 'A' in cross- hatch attached hereto from ‘Agriculture (A1)’ to ‘Agriculture Exception 85 (A1-85)'.
This by-law shall come into force and take effect from the date of passing by Council and shall come into force in accordance with Section 34 of the Planning Act.
ATTACHMENT 3
BY-LAW XXX - 2022
Being a By-law to amend By-law No. 1-2014, the Comprehensive Zoning By-law for the Town of Kingsville
WHEREAS By-law No. 1-2014 is the Town’s Comprehensive Zoning By-law to regulate the use of land and the character, location and use of buildings and structures in the Town of Kingsville;
AND WHEREAS the Council of the Corporation of the Town of Kingsville deems it expedient and in the best interest of proper planning to further amend By-law No. 1-2014 as herein provided;
AND WHEREAS there is an Official Plan in effect in the Town of Kingsville and this By-law is deemed to be in conformity with the Town of Kingsville Official Plan;
NOW THEREFORE THE COUNCIL FOR THE CORPORATION OF THE TOWN OF KINGSVILLE ENACTS AS FOLLOWS:
- That Subsection 7.1 e) AGRICULTURE ZONE 1 A1 EXCEPTIONS is amended with the addition of the following new subsection:
7.1.85 ‘AGRICULTURE ZONE 1 EXCEPTION 85 (A1-85)’
i) For lands shown as A1-85 on Map 53 Schedule “A” of this By-law.
j) Permitted Uses i) Those uses permitted under Section 7.1 (Rural Residential); ii) A non-accessory bunkhouse;
k) Permitted Buildings and Structures i) Those buildings and structures permitted under Section 7.1 (Rural Residential) in the (A1) zone; ii) A non-accessory bunkhouse in an existing single detached dwelling in the A1-80 zone; iii) Buildings and structures accessory to the permitted uses.
l) Zone Provisions All lot and building requirements for the permitted buildings and structures shall be in accordance with Section 7.1 of this By-law.
Schedule "A", Map 48 of By-law 1-2014 is hereby amended by changing the zone symbol on lands, known municipally as 1566 Rd 3 E, in Pt. Lot 9, Concession 3 ED, as shown on Schedule 'A' in cross- hatch attached hereto from ‘Agriculture (A1)’ to ‘Agriculture Exception 85 (A1-85)'.
This by-law shall come into force and take effect from the date of passing by Council and shall come into force in accordance with Section 34 of the Planning Act.