Hawk Ridge Homes Inc. v. Township (Woolwich), 2022 CanLII 95939

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

October 14, 2022

CASE NO(S).:

OLT-21-001285

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

Applicant and Appellant:

Hawk Ridge Homes Inc.

Subject:

Application to amend Zoning By-law No. (55-86) – Refusal of application by Township of Woolwich

Existing Zoning:

Mixed Medium Density (R-4), Residential Mixed Medium Density/Flood Fringe (R-4 (FF)) and General Industrial – Urban/Flood Fringe (M-2(FF))

Proposed Zoning:

Residential - Mixed Medium Density with Design Guidelines (R-4A) and Residential – Mixed High Density with Design Guidelines (R-5A) with site-specific provisions for the proposed residential portion of the Hawk Ridge Homes Inc. Draft Plan (the “Draft Plan”)

Purpose:

To permit 12 lots for single family homes, 24 lots for semi-detached homes, and a future non-residential block

Property Address/Description:

36-68 Union Street

Municipality:

Township of Woolwich

Municipal File No.:

D15 ZC 6/2016 E

OLT Lead Case No.

OLT-21-001285

OLT Case No.:

OLT-21-001285

OLT Case Name:

Hawk Ridge Homes Inc. v. Township (Woolwich)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant:

Hawk Ridge Homes Inc.

Subject:

Proposed Plan of Subdivision - Failure of Region of Waterloo to make a decision

Purpose:

To permit 12 lots for single family homes, 24 lots for semi-detached homes, and a future non-residential block

Property Address/Description:

36-68 Union Street

Municipality:

Township of Woolwich

Municipal File No.:

D12 30T16701 E

OLT Lead Case No.

OLT-21-001285

OLT Case No.:

OLT-21-001286

Heard:

July 18, 2022 by video hearing

APPEARANCES:

Parties

Counsel/Representative*

Hawk Ridge Homes Inc.

Nancy Smith

Township of Woolwich

Kevin Thompson and Jamie Cockburn

Regional Municipality of Waterloo

Fiona McCrea

Ron Koniuch

Self-represented*

DECISION DELIVERED BY S. BOBKA AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Hawk Ridge Homes Inc. (“Applicant”) proposed to develop 36 residential dwelling units on the lands municipally known as 36-68 Union Street (“Subject Lands”) within the Town of Elmira. The Applicant submitted applications to the Township of Woolwich (“Township”) for a Zoning By-law Amendment (“ZBA”) and to the Region of Waterloo (“Region”) for a Draft Plan of Subdivision (“Draft Plan”). The Township refused the ZBA application and the Region did not provide a decision within the prescribed timeframe for the latter. The Applicant appealed to the Tribunal pursuant to s. 34(11) and s. 51(34) of the Planning Act (“Act”).

2The Tribunal was provided with a copy of the Minutes of Settlement (“MOS”) signed by the Applicant, the Township and the Region. It is noted that Mr. Koniuch was not a signatory to the MOS. He advised the Tribunal in advance of the hearing that he would not be calling any witnesses but did plan to cross examine the Applicant’s witnesses.

LEGISLATIVE FRAMEWORK

3In making a decision on the ZBA 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 A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”) and that it conforms to the applicable Official Plan(s). In addition to the foregoing, the Tribunal must have regard to the matters of provincial interest in s. 2 of the Act and in general, be satisfied that the proposed ZBA represents good planning and is in the public interest.

4In considering a draft plan of subdivision, the Tribunal shall have regard to the criteria set out in s. 51(24) of the Act, including: that the proposal has regard to matters of provincial interest; whether it is premature or in the public interest; whether there is conformity to the applicable Official Plan(s); the suitability of the land for the purposes for which it is to be subdivided; the dimensions and shapes of the proposed lots; and the adequacy of utilities and municipal services. As well, the Tribunal shall be satisfied that the proposal is consistent with the PPS and conforms to the GP. Pursuant to s. 51(25) of the Act, the Tribunal may also consider and impose conditions that are determined to be reasonable, having regard to the nature of the proposed subdivision.

HEARING

5To support the Proposed ZBA and Draft Plan Applications, the only evidence presented to the Tribunal was from two witnesses, Mary Lou Tanner and Peter VanDelden, who were called by the Applicant.

6Ms. Tanner is a Registered Professional Planner and Fellow of the Canadian Institute of Planners and was qualified by the Tribunal to provide opinion evidence in land use planning.

7Mr. VanDelden is a Professional Physicist, full member of the Institute of Noise Control Engineering and Certified Occupational Hearing Conservationist and was qualified by the Tribunal to provide opinion evidence in the discipline of noise and vibration.

Subject Lands

8In her sworn Affidavit and testimony, Ms. Tanner provided detailed information about the proposal. The Subject Lands are located on the corner of Union Street and First Street and lie between the western edge of Elmira’s residential area and the eastern edge of the Township’s industrial area. With an area of 3.2 hectares (“ha”), the Subject Lands contain a two-storey brick dwelling, steel shed, frame shed and the concrete foundation of a demolished chicken coop. All existing buildings and structures are vacant and proposed to be demolished. The Shirt Creek/Weigel Drain traverse the northerly portion of the Subject Lands.

9Approximately 2.3 ha of the Subject Lands are suitable for development and have historically been used as an apple orchard. The balance, which is approximately 0.9 ha, is within the floodplain of the Shirt Creek/Weigel Drain and is subject to the Township's two-zone flood plain policy.

10The Subject Lands are:

1. Within the Built-Up Area of the Township's Urban Area as set out in the Region of Waterloo Official Plan ("ROP");

2. Designated Residential and Ancillary Uses in the Township Official Plan ("OP"); and

3. Zoned Residential - Mixed Medium Density, which permits detached and semi-detached dwellings, and General Industrial Urban, which permits manufacturing facilities, wholesale outlets, warehouses and various other commercial uses, within the Township's Zoning By-law No. 55-86 ("ZBL").

11The Subject Lands are bounded by Union Street to the east, First Street to the south, with an untraveled road allowance and Edward Street to the north. Residential uses are located to the north, east and west, with those to the west generally consisting of well-maintained one and one-and-a-half storey dwellings. There are also Industrial uses located to the north, east, and south, including two chemical manufacturing operations located east of Union Street: CCC Sulphur Products (formerly known as Sulco, and henceforth referred to as “Sulco”) and Lanxess Canada, (formerly known as Chemtura and henceforth referred to as “Lanxess”).

12The Subject Lands have been planned for residential development since the 1990s.

Development Proposal

13Ms. Tanner highlighted the specifics of the proposal. The ZBA proposes the following zoning changes:

1. Residential – Mixed Medium Density with Design Guidelines (R-4A) for Lots 1, 5, 14, 23 and 32 and Residential – Mixed High Density with Design Guidelines (R-5A) for the remaining portion of the residential development with site-specific provisions;

2. Residential – Mixed Medium Density with Design Guidelines and subject to Flood Fringe provisions R-4A (FF) and Residential – Mixed High Density with Design Guidelines subject to Flood Fringe provisions R-5A (FF) for Lots 32 to 36, respectively within the proposed residential development;

3. Convenience Commercial C-4A with site specific provisions for Block 37;

4. Open Space (O-1) for proposed park Block 38; and

5. Open Space (O-2) for Block 39 within the Floodway area, adjacent to the creek / storm drain.

14Ms. Tanner stated that the effect of the ZBA is to facilitate a residential development consisting of 12 single detached and 24 semi-detached dwelling units, totalling 36 units, with Block 37 to be rezoned for future non-residential development.

15All lots will front onto municipal streets, including First Street or the extensions of College and Bauman Streets, while the portion of the Subject Lands within the flood plain will be dedicated to the Township for public open space and a 1,634 square metre (“sq m”) park block will be dedicated to the Township for public park purposes. The total area to be dedicated to the Township for parkland and Open Space and the park block is 9,682 sq m which represents approximately 30% of the total area of the Subject Lands.

16Ms. Tanner testified that the zone requirements for lot frontage and area will be met, as will those for front, rear and side yard setbacks as well as height.

17Ms. Tanner explained that the Draft Plan will allow for the creation of the residential lots, the commercial block, park block and open space block, public streets, and reserves for matters such as daylight triangles.

Evidence

18As evidence in the hearing, the Tribunal received the following Exhibits:

Exhibit 1: Minutes of Settlement

Exhibit 2: Affidavit of Mary Lou Tanner

Exhibit 3: Affidavit of Peter VanDeldon

Exhibit 4: Attachment 2 to the Procedural Order – Issues List

Exhibit 5: Email from Ron Koniuch dated June 15, 2022

Exhibit 6: Email from Tribunal dated June 22, 2022

19It was Ms. Tanner’s overall opinion that:

the proposed ZBA, Draft Plan and Draft Plan Conditions (together, “Proposed Instruments”) have regard to matters of provincial interest as required by Section 2 of the Planning Act, are consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform to the Growth Plan (2019), the Regional OP and the Township OP. Further, the Draft Plan has regard to matters listed in subsection 51(24) of the Planning Act, including conformity with the Regional OP and Township OP, and the Draft Plan Conditions are reasonable, having regard to the nature of the development proposed, as required by subsection 51(25). The Proposed Instruments represent good planning.

20Ms. Tanner opined that the proposal has regard for matters of Provincial interest in s. 2 of the Act, specifically (but not limited to):

a) the protection of natural areas as the portion of the site containing the Shirt Creek/Weigle Drain and its flood plain will be dedicated to the Township for public open space and zoned appropriately;

f) the adequate provision of sewage and water services and waste management systems as the proposed development will be serviced by municipal sewage and water systems;

h) the orderly development of communities as the proposal logically extends the existing built residential community and the grid street pattern;

p) the appropriate location of growth and development as the proposal is within the Built-up Area of the GP and is planned for residential development; and

r) well-designed built form as the planned single and semi-detached lots are compatible with the existing nearby residential neighbourhood and results in a well-designed street with compatible densities of development.

21Ms. Tanner testified that the proposal is consistent with the PPS as it results in new housing and growth, building a complete community in an area that is designed for residential use. She highlighted that the proposal achieves land use compatibility requirements as outlined in s. 1.2.6 and is consistent with s. 3.1 regarding natural hazards, as Shirt Creek will be zoned appropriately with some lots (whose rear yards are in the flood fringe) will be zoned as residential with a flood fringe overlay.

22It was Ms. Tanner’s opinion that the proposal conformed with the GP. She explained that the Subject Lands are in a built-up area planned for intensification, are appropriately serviced and natural heritage features are protected.

23Ms. Tanner addressed the ROP, whose policies deal with where and how development should occur. She opined that the proposal respects the scale, character and context of the existing neighbourhood. She further opined that issues of Land Use Compatibility (s. 2.G.10) and Noise from Transportation (s. 2.G.13-15) had been addressed through the noise and air quality reports which “determined that it is feasible to develop the land for residential use and maintain compliance with the nearby industrial and transportation-related use, subject to implementing mitigation measures recommended through the studies”. Ms. Tanner testified that the proposal conforms to the ROP.

24The Subject Lands are within the Elmira Settlement Area of the OP. Ms. Tanner highlighted Chapters 3 and 4 which direct urban uses to identified settlement areas and opined that the proposal is a “cost-effective development pattern that is compatible with the surrounding neighbourhood, will promote the utilization of existing municipal services and transit facilities and will make use of the existing municipal infrastructure and transit services.”

25Ms. Tanner also explained that the Subject Lands are designated Residential and Ancillary Uses on Schedule “A” of Elmira’s Settlement plan (Chapter 7) which permits residential development on full municipal services. She stated that the proposal is near community amenities which supports the lands as suitable for the proposed residential use, and that as roads will be extended from the surrounding neighbourhood, connectivity will be maximized, providing better integration. She also spoke to the Restricted Area Overlay on the lands adjacent to the Shirt Creek/Weigel Drain which is:

addressed through the Draft Plan of Subdivision through: dedication of Block 39 (floodway) to the Township; zoning of Block 38 as Open Space and dedication to the Township of this block for park purposes; and inclusion of the flood fringe overlay on the zoning of the residential lands (Lots 32 to 36) that contain the flood fringe.

26Ms. Tanner stated that she relied on the opinion of Mr. VanDelden with respect to noise and vibration. However, she opined that the proposal is in accordance with policy 8.2 of the OP and supported by noise and air quality studies that ensure it will not negatively affect the existing industrial activities. In addition, she explained that the recommendations of these studies have been incorporated into the proposal.

27The witness explained that the proposal aligns with policy 9.7 and contributes to the Township’s growth needs by providing additional housing supply. In her opinion, the proposal conforms with the OP.

28Ms. Tanner recommended approval of the ZBA as in her professional opinion it represents good planning in the public interest.

29The Draft Plan must have regard for the provisions of s. 51(24) of the Act and Ms. Tanner was of the opinion that it did have appropriate regard. She opined that the proposal:

1. Addresses matters of provincial interest;

2. Is in the public interest;

3. Conforms to the ROP and OP;

4. Is suitable for residential development as it adjoins existing residential uses;

5. Features road extensions which will maximize connectivity and provide integration with the existing neighbourhood;

6. Is comprised of lots that are rectangular and generally consistent with the lot pattern in the community;

7. Recognizes the flood plain and flood fringe;

8. Conserves natural resources and flood control as the Shirt Creek/Weigel Drain and its flood plain will be dedicated to the Township for passive open space with no development permitted, while the proposed residential use will not impact the environmental function of the drain;

9. Has adequate utilities, municipal services and school sites;

10. Features two blocks to be conveyed for public purposes: Block 38 for parkland dedication and Block 39 for flood protection;

11. Will efficiently use vacant land with connections to local roads and proximity to transit; and

12. Features a commercial block that will be subject to a future Site Plan control application.

30Ms. Tanner reviewed the Draft Plan Conditions for the Tribunal. It was her opinion that as required by s. 51(25) of the Act, the proposed Draft Plan Conditions (found in Exhibit 1) are reasonable and have regard to the nature of the development proposed for the subdivision.

31Mr. VanDelden was the co-author of the ‘Land Use Planning Noise Feasibility Assessment’ dated February 12, 2021 (“Acoustic Report”), an environmental sound feasibility study of road, rail and stationary sources (found in Exhibit 3) conducted for the Applicant, as required by the Township and the Region.

32The Acoustic Report concluded that:

it is feasible to develop the land for residential use and maintain compliance with the applicable Ministry of the Environment, Conservation and Parks sound level guidelines following the implementation of the sound control measures identified in this study, designation of the lands as Class 4 with the associated installation of central air conditioning and warning clauses.

33Mr. VanDelden testified that the Acoustic Report was peer reviewed by HGC Engineering (“HGC”) to their satisfaction. Mr. VanDelden explained that in their letter (found in Exhibit 3) HGC also “discusses the implications of Class 4 and provides the Region with suggestions to go forward regarding the impulsive noise on Region [owned] land. A Class 4 designation was one of the suggested options.”

34Mr. VanDelden stated that “Region staff prepared supporting information regarding Class 4 for the Township staff. The Township staff report to … council supported the application with a Class 4 designation covering the entire development.” However, Council refused the ZBA Application resulting in the current Ontario Land Tribunal appeal.

35Mr. VanDelden testified that the issue in question is impulsive noise (or banging) due to rail shunting activity. Rail shunting occurs on both the Region-owned lands and the industrial-owned lands (i.e. Sulco and Lanxess). On the Sulco land, the Ministry of Environment, Conservation and Parks (“MECP”) has applied a Class 2 limit requiring “soft shunting to mitigate the sound levels on the proposed development”; however, the Region land:

is not subject to MECP’s permitting requirements but has still been evaluated against the MECP stationary source (i.e., industrial) limits. A conservatively high level was agreed with the Region’s peer reviewer, which results in a nighttime sound level above the Class 2 level. Compliance with NPC-300 Class 4 limits is demonstrated.

As mitigation, the proposed residences are to be constructed so that there are no sensitive spaces facing Union Street and the rail line. As a supplementary mitigation measure, the residences are to be provided with central air conditioning so that the residents can close their windows to further reduce sound levels.

In cases where industrial noise is mitigated at residences, the MECP requires a Class 4 designation so that industry can consider it under their MECP permit. In the case of the impulsive rail noise on Region land, MECP permitting is not applicable. However, a Class 4 designation has been requested to formally support the use of at-residence mitigation.

36Both Ms. Tanner and Mr. VanDelden reviewed the conditions in place to mitigate noise. In addition to those listed above, the witnesses highlighted that there are several noise warning clauses included in all agreements of purchase and sale and there is a noise warning clause included in any marketing materials. The Region submitted that the addition of the noise warning clause to the marketing materials was done to address some of the concerns raised by Mr. Koniuch.

37The majority of the planning evidence presented by Ms. Tanner was not contested by Mr. Koniuch. His concerns lay with the issue that noise (specifically noise relating to rail-shunting) makes this proposal incompatible with the nearby industrial uses.

38Mr. Koniuch submitted concerns regarding the Class 4 noise designation. He stated that he did not have any “issues with the Class 4 noise designation information as it had been presented” in the Affidavits but he raised the question as to why the Applicant had not assessed the ‘better’ option of what a Class 2 noise level subdivision design would be (found in Exhibit 5).

39In response to Mr. Koniuch, Mr. VanDelden responded:

In their MECP permit Sulco has been required to treat the [Subject Lands] as a Class 2 area. To enter into and agree to this permit, Sulco would have had to demonstrate that this is feasible. Thus the industry can co-exist with the subdivision on a Class 2 basis. The application of Class 4 to [the Subject Lands] addresses impulses that are not constrained under an MECP permit, as these might occur on Region Land.

Class 4 confirmation is at the discretion of the land use planning authority. The Region and Township can impose conditions on the Class 4.

40Mr. VanDelden also stated that the surrounding industries are currently operating under the Class 2 designation in relation to the Subject Lands. He explained that constructing houses doesn’t change the relationship between industry and the lands.

41The root of Mr. Koniuch’s concerns stemmed from the decision to designate the Subdivision as Class 4 rather than Class 2. He submitted that a Class 2 designation would be more restrictive, would offer more protections to the future residents of the new subdivision and this would minimize/lessen the conflict (and subsequent complaints) between the residents and the surrounding industries (specifically Sulco). However, Mr. Koniuch did not call any witnesses or present any evidence to support these submissions.

42Mr. VanDelden stated in his sworn Affidavit that:

Neighbours are protected from noise produced by stationary sources (e.g., manufacturing facilities) under the MECP permitting system. Under an MECP permit, Sulco has been required to meet the Class 2 limits at residences on the 36-68 Union Street land. The permit specifically limited both the continuous and impulsive noise from Sulco. The same permitting system applies to all of the industries in the area. The sound produced by the industries is limited to the Class 2 criteria … Class 4 formalizes that protection can occur at the residences and requires that the developer equip the residents with the mitigation measures to exercise this control themselves and informs them of that. Class 4 further ensures that the appropriate communication is in place.

43Mr. Koniuch also submitted that noise complaints to the Town against Sulco would be detrimental to the future of the business; however, he again did not bring forth any witnesses or evidence to substantiate this position to the Tribunal.

44Mr. VanDelden responded that the Township’s complaint procedures were not within his scope of expertise.

FINDINGS

45The Tribunal listened carefully to the concerns raised by Mr. Koniuch regarding noise and the co-existence of the existing industries with the proposed development. He was advised by the Tribunal prior to the hearing about the hearing process and the responsibilities of a Party. Yet Mr. Koniuch chose not to call any witnesses or present any expert opinion evidence at the hearing to support his claims and assertions.

46The Tribunal accepts the uncontested evidence and opinions provided by expert witnesses Ms. Tanner and Mr. VanDelden. There was no compelling evidence, planning or otherwise presented by Mr. Koniuch which would support the denial of the proposed settlement.

47The Tribunal is satisfied that the proposal is consistent with the PPS, conforms to the GP, the ROP and OP and is considered good planning in the public interest.

48The Tribunal is also satisfied that the Draft Plan has regard for the criteria of s. 51(24) of the Act and that the conditions of the Region and the Township are reasonable, having regard to the nature of the proposed subdivision.

ORDER

49THE TRIBUNAL ORDERS that the appeals are allowed in part and:

1. Zoning By-law No. 55-86 is further amended as set out in Schedule “A” attached to this Order. The Tribunal authorizes the municipal clerk of the Township of Woolwich to assign a number to this by-law for record keeping purposes;

2. The Draft Plan shown on the plan prepared by Jeffrey E. Buisman of Van Harten Surveying Inc. dated January 8, 2019 comprising all of Lots 74 and 75, Registrar’s Compiled Plan 1330, Township of Woolwich (PIN: 22218-0207 LT), as set out in Schedule “B” attached to this Order, is approved subject to the fulfillment of the conditions set out in Schedule “C” to this Order;

50AND THE TRIBUNAL ORDERS that pursuant to subsection 51(56.1) of the Planning Act, the Region of Waterloo shall have the authority to clear the conditions of draft plan approval and to administer final approval of the plan of subdivision for the purposes of subsection 51(58) of the Act. In the event that there are any difficulties implementing any of the conditions of draft plan approval, or if any changes are required to be made to the draft plan, the Tribunal may be spoken to.

“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.

SCHEDULE “A”