Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 09, 2022

CASE NO(S).: OLT-22-002004 (Formerly PL210101)

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

Appellant: Gavin Houston

Applicant: Texo Terra Contracting Ltd.

Subject: Minor Variance

Variance from By-law No.: 25-99

Property Address/Description: 963668 Road 96

Municipality: Township of Zorra

Municipal File No.: A06/20

OLT Case No.: OLT-22-002004

Legacy Case No.: PL210101

OLT File No.: OLT-22-002004

Legacy File No.: PL210101

OLT Case Name: Houston v. Zorra (Twp.)

Heard: February 1, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Gavin Houston	Martha Cook
Texo Terra Contracting Ltd.	Alex Ciccone
Township of Zorra	Alex Ciccone

DECISION DELIVERED BY S. deBOER AND S. BRAUN AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Texo Terra Contracting Inc. (“Applicant”) owns the property at 963668 96 Road, (“subject property”/“SP”). In order to permit the storage and parking of equipment, vehicles, sea containers and materials associated with the existing industrial use of the subject property, the Applicant applied for minor variances requesting the following relief from Zoning By-law No. 35-99 (“ZBL”) section 17.2 – Restricted Industrial Zone (MR) Zone provisions:

a) reduce the setback, minimum distance from the centerline of a County Road from 23 m to 10.5 m;

b) reduce the interior side yard minimum from 7.5 m to 0.5 m;

c) reduce the exterior side yard minimum from 10 m to 0.5;

d) reduce the front yard minimum depth from 10 m to 1 m; and

e) reduce the rear yard minimum depth from 7.5 m to 1 m.

2The Township of Zorra (“Township”) Committee of Adjustment (“CoA”) initially deferred the application, which was later revised as follows:

a) reduce the setback, minimum distance from the centerline of a County Road from 23 m to 21 m;

b) reduce the interior side yard minimum width from 7.5 m to 0.5 m;

c) reduce the exterior side yard minimum width from 10 m to 8 m; and

d) reduce the rear yard minimum depth from 7.5 m to 1 m.

3The COA approved the revised application, subject to the condition that it be for a period of three years. Gavin Houston (“Appellant”) appealed that decision to the Tribunal, pursuant to s. 45(12) of the Planning Act ¹ (“Act”).

REQUEST TO AMEND THE APPLICATION

4The Tribunal has the discretion to allow amendments to a minor variance application without the requirement for further public notice if it is of the opinion that the requested amendments are minor by virtue of s. 45 (18.1) and (18.1.1) of the Act.

5Prior to the hearing, the Applicant notified the Tribunal and the Appellant that it wished to amend the application as follows:

Zoning By-law Standard	Setback approved by CoA (subject to appeal)	Request to the Tribunal to Amend the Application
Distance from Centerline of a County Road: 23m	21m	21m (unchanged)
Interior side yard minimum width: 7.5m	0.5m	3m
Exterior side yard minimum width: 10m	8m	8m (unchanged)
Rear yard minimum width: 7.5m	1m	3.5m

6At the outset of the hearing, the Tribunal was advised that the Applicant agrees with and accepts the three-year condition imposed by the CoA and in the event of an approval of the variances by this Tribunal, the condition should remain.

7Further, in response to concerns raised in the witness statement provided by the Appellant’s land use planning witness, the Tribunal’s attention was drawn to Table 5.1.1.3 (Regulation for Accessory Uses), which sets out a minimum separation distance of 3 metres (“m”) between accessory structures and main buildings. The Applicant requested an additional variance allowing a reduction in the minimum separation distance to 1 m from the required 3 m. This would permit the Applicant to locate the sea containers closer to the rear of the existing main industrial building, thereby increasing the separation distance between the sea containers and neighbouring uses.

8Counsel for the Appellant objected and urged the Tribunal to deny the requested amendments, expressing concern at the number of revisions made since the original application which, in her view, amounts to a constantly moving target. She argued the notice provisions in the Act are designed to protect the ability of the public to participate in the process and further argued the amendments could not be considered minor because they impact upon procedural fairness to both the public and the Appellant.

9In response, counsel for the Applicant and Township noted that the requested amendments directly respond to concerns raised by the public and pointed out that the relief currently being requested would be less than what had been approved by the CoA.

Findings

10The requested amendments do not substantially change the nature of the appeal before the Tribunal and represent a reduction as compared to the variances conditionally approved by the CoA. The Tribunal accepts that the amendments respond to concerns raised by the public and seek to reduce the potential for impacts upon neighbouring properties. The amendments also respond to concerns raised in two staff reports which ultimately recommended refusal of both the original and the revised application. On the foregoing findings, no further notice is necessary, pursuant to s. 45 (18.1) and s. 45 (18.1.1) of the Act.

SUBJECT PROPERTY AND SURROUNDING AREA

11The subject property is approximately 0.17 hectares (“ha”) in size. It is zoned ed MR (Restricted Industrial Zone), which permits a wide range of uses including the following: assembly plant; contractor’s shop/yard; manufacturing plant; packaging plant; public garage; and service shop. Presently, the subject property contains an industrial building used as a mechanic shop, processing and packaging facility and contractor’s shop in addition to an accessory single detached dwelling.

12To the south, east and west of the subject property are single detached dwellings on large lots. Lands to the north are zoned REC (Recreational). The Appellant’s property is located across the road and slightly northwest of the subject property. There is a direct line of sight from the front of the Appellant’s property to the subject property.

13The parties agree that the subject property enjoys a legal non-conforming use exemption from the provisions of the zoning by-law as it does not meet the standards for lands zoned Restricted Industrial set out in s. 17.2 of the ZBL, but the industrial use of the subject property predates the ZBL. The ZBL requires a minimum lot area of 3,700 square metres (“sq m”), a minimum lot frontage of 40 m and a minimum lot depth of 92.5 m, whereas the subject property is approximately 1,715 sq m with a frontage of 32 m and a depth of 53.6 m.

LEGISLATIVE FRAMEWORK

14An appeal pursuant to s. 45 of the Act is a hearing de novo and the Applicant bears the onus of demonstrating that the four tests in s. 45(1) have been met, namely that the requested variance:

a) maintains the general intent and purpose of the official plan (“OP”);

b) maintains the general intent and purpose of the ZBL;

c) is minor in nature; and

d) is desirable for the appropriate development or use of the land building or structure.

15In addition, s. 3(5) of the Act requires the decision of the Tribunal to be consistent with the Provincial Policy Statement, 2020 (“PPS”). Finally, the Tribunal must have regard for matters of Provincial interest set out in s. 2 of the Act and must have regard for the decision of the municipal council and the information considered it in the course of making its decision, as set out in s. 2.1(1).

ISSUES

16Although a variety of issues were raised at the hearing, a great deal of argument and evidence focused upon whether the requested variances would result in an intensification of the current industrial use of the subject property, thereby exacerbating existing issues associated that use (including noise, odor/fumes, traffic) or whether they would allow for an enhanced and more efficient use of the site, which could result in an improvement upon the existing situation.

17The Applicant operates a contracting business which utilizes a variety of heavy vehicles and equipment that must be transported to job sites from the subject property. The Applicant seeks to relocate two existing sea containers used for storage which are presently located toward the front of the subject property. The variances sought would permit the sea containers to be sited at rear of the property behind the main industrial building. Additionally, the Applicant seeks the variances to allow for a parking area intended to accommodate employee vehicles and three small dump trucks which are all associated with the existing industrial use of the property.

18Mr. Houston opposes the requested variances because he believes they will lead to an increase in the industrial activities on the subject site and will worsen existing impacts. He testified that the current use of the subject property impairs his ability to use and enjoy his own property, describing daily nuisances, such as fumes/odors and noise from heavy truck traffic loading and unloading at the subject site.

19He explained that heavy trucks idle for hours on the road in front of the subject property, often parking on and blocking a portion of the County Road and expressed concerns that this poses risks to public health and safety. He also noted he has been personally impacted by excessive noise and odor from the operation of the business, which led him to install air conditioning in his home, as leaving his windows open is no longer an option given much of the activity associated with the adjacent business occurs in close proximity to his home.

20With reference to a visual presentation Mr. Houston gave to the CoA, contained within a Joint Document Book (Exhibit 1), the Tribunal’s attention was drawn to a number of photographs taken from the Houston property to show the current usage of the subject property.

21Some photos depict what appears to be smoke/emissions emanating from the subject. The majority of the photos depict large trucks parked on and blocking one lane of the two-lane County Road or backing out onto the road while loading and unload heavy equipment, with other vehicles travelling in the same direction using the opposite lane to manoeuvre around. The presentation also points out that employee vehicles park well into the road allowance due to a lack of space and a great deal of heavy industrial activity occurs mere meters away from Mr. Houston’s residence.

PLANNING EVIDENCE

22The following individuals were qualified by the Tribunal to provide independent expert opinion evidence in land use planning: Michael Barton, on behalf of the Applicant and the Township; and Rachel Bossie, on behalf of the Appellant. The Appellant also called Adam Ager, who appeared under summons. Mr. Ager authored both Staff Reports in his (then) capacity as the Township’s Planner. Both reports recommended the CoA refuse the application. Mr. Ager did not provide land use planning opinion evidence but rather, factual evidence with respect to the procedural history of the application.

23Ms. Bossie, while acknowledging that the current industrial use of the subject property is permitted, focused her planning opinion on the potential impact the requested variances could have in terms of intensifying that use. She opined that the lot, while legal non-conforming, is nevertheless undersized for the current use thereof. In her view, the variances allow the business to expand even further such that associated impacts on neighbouring properties would be exacerbated. Overall, she opined the variances do not represent good land use planning, do not satisfy the requisite legislative tests and she recommended the Tribunal allow the appeal.

24Mr. Barton explained that the Applicant does not seek to expand or intensify the use of the site but rather, requests the variances to allow more efficient organization to achieve a safer and more orderly use of the subject property. He recommended the Tribunal dismiss the appeal as the variances satisfy the requisite legislative tests and represent good land use planning by allowing an existing permitted industrial use of the property to continue to operate in a safer and more efficient manner, while improving compatibility with surrounding residential uses.

Provincial interests and the PPS

25Ms. Bossie highlighted matters of Provincial interest which, in her view, are most relevant to the application namely, the orderly development of safe and healthy communities; resolution of planning conflicts involving public and private interests; protection of public health and safety; appropriate location of growth and development; and promotion of built form that is well designed. In her view, the application does not have appropriate regard for the foregoing.

26Similarly, with respect to the PPS, she opined the requested variances are inconsistent therewith and focused upon policies which speak to building healthy and strong communities by avoiding development and land use which may cause environmental or public health and safety concerns and avoiding or mitigating risks to public health and safety.

27She expressed concern that the requested variances could result in the storage of additional materials on an already undersized subject property which could, in turn, lead to an increase in the heavy truck traffic at the site to load and unload such materials, exacerbating noise, odor and traffic issues. In her view, traffic, noise and air-quality studies are required to determine an appropriate site design and mitigation measures in order to ensure protection of public health and safety, orderly development of a safe and healthy community and ultimately, resolution of specific concerns raised by the public.

28In contrast, Mr. Barton considers the requested variances to be consistent with the PPS. He highlighted a number of relevant policies therein, including but not limited to: the promotion of efficient development and land use patterns which sustain the financial well-being of the Province and municipalities over the long-term; focusing growth and development in settlement areas and efficiently using land and resources so as to avoid the need for unjustified or uneconomical expansion; and avoiding development and land use patterns which may cause environmental or public health and safety concerns.

29He disagreed with Ms. Bossie’s assertion that the variances would lead to an increase in the amount of materials stored and therefore the number of trucks attending the site. He noted the sea containers, which are already on the property and used for storage, will simply be relocated and the provision of a defined parking area will allow for efficient parking and manoeuvring of vehicles on the property.

30With respect to environmental, public health and safety concerns in particular, Mr. Barton opined that the proposed parking area would result in an amelioration of traffic and safety concerns raised by the Appellant, who testified that heavy trucks often park on and block a portion of the two-lane County Road directly in front of the subject site. He further noted that relocating the existing sea containers to the rear of the property will allow for loading and unloading of the stored materials to take place further away from the road and may improve existing noise and odor impacts upon surrounding neighbours, including Mr. Houston. Moreover, Mr. Barton pointed out that the application was reviewed by a variety of public agencies, none of which indicated further study was necessary. He specifically noted Southwestern Public Health had no objections to the application.

Minor Variance Tests

31Ms. Bossie opined the requested variances do not maintain the general intent and purpose of the ZBL. She explained that setbacks in the ZBL are intended to ensure adequate separation from residential uses to reduce impacts of noise, odor, etc. and to ensure there is sufficient space on a property to allow for adequate drainage, fire safety, etc.

32With reference to Township Design Guidelines, which are intended to assist in the promotion of efficient land use through appropriate site layout, massing, etc., Ms. Bossie noted the subject property is not properly designed to accommodate the large heavy truck traffic which use the site, reiterating that the road allowance is currently used for loading and unloading.

33In her view, the requested variances represent a significant departure from the required setbacks in the ZBL, allowing the Applicant to maximize a current industrial operation which already overuses an undersized property and is unable to accommodate the current amount of heavy vehicular traffic associated with the business. She opined that expansion of the use would intensify existing compatibility issues with neighbouring residences without an adequate assessment of impacts in relation to noise, traffic and air-quality.

34Ms. Bossie further opined the general intent and purpose of the OP is not maintained, drawing the attention of the Tribunal to policy 6.4, which states:

Where concerns have been expressed as to the impact a proposed use may have on the environment, Area Council may consult with appropriate Provincial agencies and will be satisfied that any such impacts or risks of impact can be appropriately mitigated through Federal or Provincial legislation requirements and associated regulations prior to permitting such use. Area Council may not permit industrial uses or development when such consultation indicates that the use represents a significant health or safety risk to the public, employees or the environment by reason of pollution or other adverse environmental impact.

She explained the intent of the foregoing is to protect public health and safety. In her view, public concerns in relation to potential environmental and safety impacts were not adequately studied or addressed in the context of this application.

35She acknowledged that, in an effort to address mitigation, the Applicant proposes to retain an existing vegetative buffer, install a 1.5 m opaque fence around the property as required by the ZBL and provide additional hard and soft landscaping. However, she opined this would not be sufficient to mitigate noise, odors and emissions and relied upon the Environmental Land Use Planning Guide (D-Series) produced by the Ministry of the Environment, Conservation and Parks. Section 4.3.1 addresses noise and other contaminants, noting narrow strips of plantings, trees or shrubs and privacy fences have little or no effect with regard to the reduction of noise or air pollution.

36The Tribunal’s attention was also drawn to policy 10.3.6 of the OP, which provides that the evaluation of minor variances must include consideration of the following:

• whether constraints and/or restrictions to meeting the requirements of the zoning by-law due to the physical or inherent conditions of the site are involved;

• whether alternative designs of the proposal which would be in conformity with the relevant by-law are clearly not feasible or appropriate for the site;

• the concerns of the effect on adjacent owners, residents and community in general have been considered;

• the approval of the minor variance would not create an undesirable precedent; and

• that compliance with the standard of the relevant by-law would be unreasonable or impossible and would impose an undue hardship on the applicant.

37In regard to the foregoing, Ms. Bossie reiterated her opinion that the Township did not consider public concerns and further opined the variances would set an undesirable precedent to allow an undersized industrial site maximize the use and encroach toward adjacent sensitive land uses.

38Ms. Bossie’s view is that there is insufficient information available to determine whether the variances are minor in nature or desirable and appropriate for the use of the land. As such, she opined the Applicant should be required to proffer traffic, air-quality and noise studies to directly address concerns raised by the surrounding community about impacts related to the expansion of the business.

39Finally, with reference to the temporary nature of the approval given by the CoA, Ms. Bossie opined that the CoA must have been of the view that the requested variances are not appropriate long term and do not meet the requisite legislative tests.

40In contrast, to all of the foregoing, Mr. Barton testified that the requested variances maintain the general intent and purpose of the ZBL and the OP, are desirable for the appropriate use of the land and are minor in nature.

41He opined that the requested relief is minor and will not result in unmitigable impacts. He conceded that trees and fences alone cannot be relied upon for mitigation but, in his view, the degree of spatial separation attained by siting the sea containers as proposed in conjunction with trees and proposed fencing/landscaping achieves the intent of the minimum setback requirements in the ZBL.

42In response to Ms. Bossie’s assertion that the Applicant should be required to commission noise, air-quality and traffic studies to support the application and her reference to OP policy 6.4, Mr. Barton noted that application was circulated to and evaluated by qualified professionals at relevant public agencies who made no such recommendations.

43With respect to the considerations set out in OP policy 10.3.6, Mr. Barton testified these had, in fact, been addressed. He noted that alternative designs were considered and a number of revisions made to the application in response to the concerns of adjacent property owners as well as the Township and the commenting agencies that raised concerns with the original application. He opined that approval of the requested variances would not set an undesirable precedent but rather, provide an opportunity to improve upon the existing situation, allowing the owner to make safer and more efficient use of the site.

44Mr. Barton referenced the definition of intensification and testified there will be no increase in density, no expansion of buildings or footprints and no new uses on the site. He reiterated that the property has been used for industrial purposes for decades and is legal non-conforming. As such, he views the size of the lot as being irrelevant to the matter under appeal given there will be no change to the current use and the Applicant is not seeking an expansion of the buildings on the property.

45With respect to the assertion that the variances will result in an intensification of the current use of the site thereby exacerbating existing impacts, Mr. Barton disagreed. The use and parking of heavy vehicles, including dump trucks, is already occurring at the site as part of the ordinary operation of this industrial permitted use, which will continue regardless of approval of the variances. In his view, there is no evidence to suggest that the parking area or the relocation of the sea containers will result in an increase in the number of trucks and/or an increase in noise and fumes at the subject property.

46During cross-examination, Mr. Barton was taken to the photos included as part of the visual presentation to the CoA contained in Exhibit 1. Counsel for the Appellant put to him that the photos represent a use which is not consistent with the Restricted Industrial zoning requirements on the lot. Mr. Barton indicated that he could not comment upon how long heavy vehicles and equipment sit on the lot on a day-to-day basis but, in any event, opined that any changes aimed at improving the safety and functionality of the site represents an improvement, which is desirable.

47He explained the variances are intended to change the current configuration of the property, arranging storage and storage-related activities in a defined area behind the industrial building and providing more functional traffic movement and parking on the site, which is desirable for the appropriate use of the land. He opined that such changes would, in all likelihood, result in some degree of mitigation in relation to the current noise, odor and safety concerns which precipitated the filing of the initial application. For example, providing space for heavy vehicles to park and manoeuvre on the site may alleviate the need for such vehicles to park on the County Road.

48Finally, with respect to condition imposed by the CoA, Mr. Barton explained the Applicant made it known that the variances were being sought as an interim business solution and that there is a longer-term plan for the subject property, which includes a more permanent solution for storage. Mr. Barton noted it is commonplace for variances to be approved subject to conditions and disavowed the notion that the imposition of the three-year condition means the variances do not meet the requisite tests or are somehow not appropriate.

ANALYSIS

49While it is acknowledged that there appear to be impacts associated with the current industrial use of the subject property, the Tribunal is tasked with determining whether the requested variances meet the requisite legislative tests, and not whether the existing industrial use of the subject property should be permitted.

50The Applicant operates an existing contracting business which is a legal non-conforming use of the subject property. Currently, a great deal of the activity related to the operation of the business takes place in front of the industrial building metres away from the Appellant’s property. The evidence before the Tribunal is that the initial minor variance application was precipitated by complaints about impacts (traffic, noise and fumes) associated with this existing industrial use.

51The Tribunal accepted the evidence of Mr. Barton that the requested variances are designed to allow the business owner to rearrange his site in a manner that responds to such complaints. While impacts in relation to the existing business operations will not be eliminated, the Tribunal was persuaded that establishing a defined parking area may aid in mitigation of current traffic/safety issues and a defined storage area located away from the surrounding residential uses may aid in the mitigation of noise and odor issues.

52Despite Ms. Bossie’s assertion that the variances cannot be adequately evaluated in the absence of traffic, noise and air-quality studies, the Tribunal finds it significant that the application was, in fact, evaluated by Township staff and various public agencies and no such studies were recommended. The two staff reports authored by Mr. Ager did not mention the need for further study of any kind. The Tribunal was not persuaded by arguments that the Township may have failed to circulate the application to appropriate public agencies and that it may have failed to provide public agencies with fulsome information, and accepts the Township executed its duties with due diligence.

53Based on the totality of the evidence before it, the Tribunal finds the requested variances will result in an enhanced and optimized use of the subject site rather than an intensification thereof and is satisfied that the four tests in s. 45(1) of the Act have been met. The variances represent minor relief from the minimum setbacks in the ZBL which will result not result in negative impacts on the surrounding residential properties.

54In addition to the four tests, the Tribunal considered the additional factors in OP policy 10.3.6. Over the life of this application, a number of changes have been made to reduce the amount of relief requested (and the amount of relief approved by the CoA). This suggests an effort on the part of the Applicant to respond to public concerns and to seek out alternative designs while working within the constraints of a property which all parties agreed is legal non-conforming. The Tribunal accepts the evidence of Mr. Barton the variances will not set an undesirable precedent but will instead facilitate an improvement, allowing the business to use the site in a safer and less impactful manner.

55The Tribunal is further satisfied that the application demonstrates consistency with PPS policies including but not limited to, those which speak to promoting efficient development and land use patterns that sustain the financial well being of the Province and municipalities over the long term; the efficient use of land and resources and the avoidance of unjustified or uneconomical expansion; and avoiding development and land use patterns which may cause environmental or public health and safety concerns.

56Regard has been given to matters of Provincial interest including, but not limited to, the orderly development of safe and healthy communities; protection of the financial and economic well being of the Province and its municipalities; and appropriate location for growth and development.

57The Tribunal has also given regard to the decision of the CoA and information considered by it in the course of making that decision. The Tribunal had before it written comments from public agencies who reviewed the application, as well as comments from area residents both in support of and in opposition to the application. It is noteworthy that the Township appeared in support of the amended application, which requests lesser relief than that which had been approved by the CoA.

58With respect to the three (3)-year condition imposed by the CoA, the documentary evidence indicates the Applicant has longer term plans to improve the use of the site and is contemplating demolition of the existing residential dwelling to facilitate same. While such plans are not for consideration in the context of this appeal, the Tribunal is of the view that the temporal condition imposed by the CoA relates to the need for an interim solution to parking and storage pending a more permanent re-organization of the subject property and the Tribunal finds it appropriate to retain this condition.

ORDER

59The Tribunal, having been asked to consider an application which has been amended from the original application, has determined that no further notice is required in accordance with s. 45(18.1.1) of the Planning Act.

60THE TRIBUNAL orders that the appeal is dismissed. The following variances to the Restricted Industrial Zone (MR) Zone provisions in section 17.2 of ZBL No. 35-99 are authorized:

• Whereas the distance from centerline of a county road is required to be 23m, 21m is authorized.

• Whereas the interior side yard minimum width of 7.5m is required, 3m is authorized.

• Whereas the exterior side yard minimum width of 10m is required, 8m is authorized.

• Whereas the rear yard minimum width of 7.5m is required, 3.5m is authorized.

61The following variance from Table 5.1.1.3 (Regulation for Accessory Uses) is also authorized:

• Whereas the minimum separation setback of 3m is required, 1m is authorized.

62All of the above variances are subject to the following conditions:

1. the minor variances are granted for temporary period, expiring three (3) years from the date of the issuance of this Order; and

2. the Applicant shall erect a fence in accordance with 17.2.3.4 and 17.2.3.5 of the Township of Zorra Zoning By-law No. 35-99.

“S. deBoer”

S. deBOER

MEMBER

“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.