Ellis v. Wellington North (Township), 2023 CanLII 112288

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 22, 2023

CASE NO(S).: OLT-23-000033

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

Applicants/Appellants: Parry Levine & Lindsay Ellis

Subject: Zoning By-law Amendment

Description: To facilitate the construction of a single detached dwelling on private services

Reference Number: ZBA 26-22

Property Address: Part Park Lot 1 & 2 N/S Macauley St., Arthur

Municipality/Upper Tier: Wellington North/Wellington

OLT Case No.: OLT-23-000033

OLT Lead Case No.: OLT-23-000033

OLT Case Name: Ellis v. Wellington North (Township)

Heard: June 15, 2023, by video hearing ("VH")

APPEARANCES:

Parties

Counsel

Lindsay Ellis and Parry Levine

Alex Ciccone

Township of Wellington North

Chris Manning

MEMORANDUM OF DECISION DELIVERED BY S. MANN AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1Lindsay Ellis and Parry Levine ("Appellants") own lands located on the west side of County Road 14 and the south-east side of the unopened road allowance of Wells Street. The lands were originally comprised of 45.46 acres ("ac"). In June of 2022, the lands were severed to create a new property. The conditionally severed property is described as Part Park Lot 1 & 2 N/S Macauley St, Arthur ("subject property"). The subject property has a lot area of approximately 2.96 ac, a lot frontage of 178.56 metres ("m") and an irregular depth, as it is a triangular shaped lot, ranging from 13.71 m to 173 m. The subject property is not serviced with municipal services, is currently vacant and is used for farming purposes.

2The subject property is located within the geographic Town of Arthur in the Corporation of the Township of Wellington North ("Township") and is located at the edge of the urban boundary.

3Lands to the north of the subject property are used for agricultural purposes, along with a number of residential dwellings and a dog kennel facility. To the east are farmlands and residential buildings; the lands to the south are currently vacant and used for farming purposes; further south along Eliza Street is a contracting company. The lands to the west are used for agricultural purposes.

4Within the Wellington County Official Plan ("County OP"), the subject property is within the "Arthur Urban Centre" and is designated as "Future Development" and "Core Greenlands". The Township does not have its own Official Plan, but instead relies upon the County OP.

5The subject property is zoned Future Development within the Wellington North Zoning By-Law 66-01 ("ZBL"). The properties to the north and west are zoned Agricultural (A1), the lands to the east and south zoned Future Development (FD).

6The Appellants seek to rezone the subject property from Future Residential Zone to Site Specific Future Residential Zone in order to facilitate the construction of a single detached dwelling on private services.

BACKGROUND

7Prior to the Appellants' application for zoning by-law amendment, they had applied for and were granted conditional approval to sever the subject property, which stipulated a condition of rezoning the subject property.

8The subject property was granted provisional consent as a result of the severance application, which was granted provisional consent by the Wellington County Land Division Committee ("Committee") in July 2022. No appeals were filed in regards to the severance application. The consent will sever a 2.96 ac vacant lot, leaving a retained lot of 42.5 ac vacant parcel ("retained lot"). The purpose of the consent application was to create a new residential lot that will accommodate a new single detached dwelling, leaving the remnant lands for future development, while currently vacant and used primarily for agricultural purposes.

9Between the subject property and the retained lot is a tributary of Farley's Creek, which creates a natural separation between the two properties.

10The Future Development Zone permits only uses, buildings and structures that existed at the time of the passing of the ZBL. An application for zoning by-law amendment ("ZBA application") was submitted to fulfill the conditions of the consent application in order to permit the construction of a residential dwelling at the subject property.

11The severance application was brought before the Committee twice between early 2021 and the granting of provisional consent in July 2022. Township staff did not support the severance application as the County of Wellington ("County") was in the early stages of their Municipal Comprehensive Review ("MCR"). Staff were of the opinion that any application for severing lands designated and zoned Future Development was premature and recommended deferral to the Council.

12Despite the recommendation, the Committee conditionally approved the severance application, with condition 12 of the decision seeking zoning compliance to permit a single detached dwelling on private services within the urban centre of Arthur.

13The Appellants submitted the ZBA application in November 2022. Council for the Township of Wellington North ("Council") denied the ZBA application noting concerns regarding lack of density and underutilization of the subject property. Concerns were also raised around potential interference of a future municipal well in the area given that proponents would be required to drill a private well on the subject property.

14Following Council's denial of the ZBA application, the Appellants filed an appeal on the basis that although the Council prefers more density on the subject property, the geographical and environmental constraints of the irregular shaped property and lack of municipal servicing supports lower density housing such as what the Appellants propose. Further, in their appeal, the Appellants argue that Council's concern with the subject property's capacity for a drinking water well is not substantiated with data.

15The Appellants further appealed on the grounds that the ZBA application is consistent with the Provincial Policy Statement, 2020 ("PPS"), A Place to Grow: Growth Plan for the Greater Golden Horseshoe ("Growth Plan"), conforms to the County OP, complies with the intent of the ZBL and constitutes good planning that is appropriate and desirable.

PARTIES AND EVIDENCE

16The Appellants attended the hearing together with their counsel, Alex Ciccone. Also in attendance on behalf of the Appellants was Rachelle Larocque, a registered professional planner, who was qualified on consent of the parties to provide evidence to the Tribunal.

17On behalf of the Township, Chris Manning appeared as counsel along with Matthieu Daoust, a senior planner employed by the County, who was qualified on the consent of the parties to provide evidence to the Tribunal.

18The following was entered into evidence in relation to the hearing:

Exhibit 1 – Appellant Document Book

Exhibit 2 – Rachelle Larocque Witness Statement

Exhibit 3 – Municipality Document Book

Exhibit 4 – Zoning By-Law Town of Erin

Exhibit 5 – Zoning By-Law Township of Puslinch

19Parties presented evidence on the matter with reference to the Planning Act ("Act"), the PPS, Growth Plan, County OP and the ZBL. In reviewing the provincial and municipal policies, the key issue in this matter relates to high order land use, whether the proposed development of the subject property will impact future orderly development.

POLICY REVIEW

[Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

20S. 2 of the Act identifies the need to have regard for matters of provincial interest. Witnesses for both parties raised evidence in support of their position of the relevant subsections. In reviewing the evidence provided, the Tribunal considered matters of provincial interest in regards to the ZBA application.

21S. 2(a) of the Act requires consideration for the protection of ecological systems, including natural areas, features and functions. In regards to the subject property and retained lot, the tributary of Farleys Creek is the only environmental feature. Ms. Larocque informed the Tribunal of how no environmental features exist on the subject property, because the tributary remains on the retained lot. Further, the Grand River Conservation Authority identified that there are no concerns with the proposed development, a comment which was provided in both the consent application and ZBA application.

22S. 2(e) of the Act requires consideration for the supply, efficient use and conservation of energy and water. The proposed development would be serviced by a private water well due to its distance from the existing municipal infrastructure. Ms. Larocque testified that comments from Township staff indicated that an additional private well being located on the subject property should have no impact on other existing wells nor the municipal water supply and may provide an opportunity for additional testing for the Township.

23S. 2(f) of the Act relates to the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems. Ms. Larocque opined that the subject property is served by existing and adequate communication and transportation infrastructure. The Appellants intend to rely upon private sewer and water services, as the municipal infrastructure has not extended far enough to service the subject property and may not occur until sometime after 2051. In terms of transportation, the subject property is adequately serviced by Eliza Street and Ms. Larocque indicated that communications are underway with the County roads department for an appropriate location of a driveway to avoid traffic concerns. Counsel for the Township raised concerns in regards to the adequate provision of electricity, noting a letter from Wellington North Power Inc. indicating that a higher density would be more advantageous for the subject property.

24S. 2(h) of the Act speaks to the orderly development of safe and healthy communities. Ms. Larocque opined that the subject property is located at the northern most tip of the Urban Boundary of the Town of Arthur and the lands are physically separated from the retained lot by the tributary. As a result, the development of a single detached dwelling would not impact the orderly development of the retained lot. Mr. Daoust, on the other hand, opined that the proposed development lacks consideration for orderly development as a single detached dwelling on such a large lot so close to an urban boundary would not meaningfully contribute to the overall housing supply and that what would constitute orderly development could not be determined prior to the approval of the MCR and this proposed single detached dwelling could in fact negatively affect the viability of future development in the area.

25S. 2(j) of the Act requires consideration for the adequate provision of a full range of housing, including affordable housing. Ms. Larocque opined that the proposed development would allow for the creation of a single detached dwelling, which, although minimal, would still be a contribution to the Township's supply of housing. Mr. Daoust's opinion, in contrast, was that this matter of provincial interest is not addressed as, for such a property, adequate provision of housing would be higher density, such as a townhouse development or apartment building.

26S. 2(o) of the Act relates to protection of public health and safety. In regards to the proposed development, Ms. Larocque opined that the only concern would be additional vehicular traffic created by the subject property, which is addressed by the requirement for an entrance permit from the Township.

27S. 2(p) of the Act considers the appropriate location of growth and development. As previously stated, the subject property is designated Future Development within the Township's urban boundary. Mr. Daoust opined that the subject property is not an appropriate location for growth and development at this time. Mr. Daoust reasoned that currently there is a lack of servicing in the area, the MCR is not complete at this time and development of the subject property prior to its completion would sterilize the land for future development. Contrary to the opinion of Mr. Daoust, Ms. Larocque opined that the County has no requirement to develop the area surrounding the subject property prior to 2051. Despite this, policies within the County OP do permit limited exceptions for lot creation, where development is in accordance with the policies of the County OP. Further, the subject property was chosen for the proposed development because, as a result of the natural barrier created by Farley Creek, the creation of a single detached dwelling will not impact the growth and development of the retained lot to the south.

Provincial Policy Statement, 2020

28The PPS provides policy direction on matters of provincial interest related to land use planning and development. The subject property is considered to be within a settlement area. Policies related to this concept encourage the creation of healthy strong communities sustained by promoting efficient development and land use patterns which sustain the financial well-being of the Province and municipalities over the long term.

29Ms. Larocque provided the opinion that the proposed development is consistent with the PPS. The creation of even a single dwelling would assist in adding to the housing supply of the Province. Further construction would not impede development in the surrounding Future Development designated lands due to the natural barrier adjacent to the subject property.

30In contrast, Mr. Daoust opined that Council's denial of the ZBA application is consistent with the PPS as the creation of a single detached dwelling on a large lot is not a good use of land and resources within a settlement area. Further the proposed development does not provide density nor a mix of land uses, as prescribed by the PPS.

31Transit supportive development intensification and infrastructure planning are also encouraged to achieve cost-effective development patterns, optimize transit investment and minimize land consumption and servicing costs. Ms. Larocque opined that the proposed development can rely on the existing municipal roads and private servicing instead of relying on the expansion of municipal infrastructure.

32Use of municipal sewage services and water is an important concern of the PPS in order to create efficient land use. The PPS provides that individual on-site sewage and water services may be used where municipal service is not available, planned or feasible. The policy further states that in settlement areas, individual on-site services may be used for infilling and minor rounding out of existing development.

33Ms. Larocque opined that due to a lack of existing municipal water and sewer infrastructure, with no plan to extend services at this time, in order to permit one single detached dwelling, private on-site systems are an adequate solution supported by the policies of the PPS and the subject property is a suitable size to allow for such systems without creating negative impact on surrounding properties or to the natural environment.

34Mr. Daoust's opined that private services such as those proposed would not support the protection of the environment and would not minimize potential risks to human health and safety. The PPS prefers the use of municipal services within settlement areas. The witness continued on stating feasibility of future servicing has not been explored at this time and, until the completion of the MCR, the future plan for servicing cannot be determined.

A Place to Grow: Growth Plan for the Greater Golden Horseshoe

35The Growth Plan builds on the PPS to establish a planning framework that supports the achievement of complete communities, a thriving economy, a clean and healthy environment and social equity.

36As the subject property is located within a settlement area, the Growth Plan directs the vast majority of growth to such areas that: (i) have a delineated boundary; (ii) have existing or planned municipal water and waste water systems; and (iii) can support the achievement of complete communities.

37Ms. Larocque opined that the subject property is within a settlement area, but is outside the delineated built boundary and existing infrastructure. Despite the Future Development designation of the subject property, it is located within a settlement boundary where growth and development is to be focused. The proposed development can rely on private servicing for now and it can be connected to the Township water and sewer infrastructure at a later time, when servicing will be extended to the area.

38Mr. Daoust opined that the subject property is not located within the delineated built up area, but instead 900 m beyond the boundary.

County Of Wellington Official Plan

39As previously stated, within the County OP the subject property is located within the Arthur Urban Centre and is designated Future Development and Urban Core Greenlands. Eliza Street is labelled as County Roads.

40Mr. Daoust referred to policy within the County OP on objectives for the next 20 years. Direction provided encourages development in particular to areas with municipal water and sewer services, to which the subject property does not have access and will not have access in the near future.

41The County OP encourages efficient and cost-effective development patterns and encourages growth in urban areas. Ms. Larocque opined that the proposed development would allow for the growth of the urban area and the use of private servicing can mitigate the lack of municipal servicing in the area.

42Contrary to Ms. Larocque, Mr. Daoust opined that the County OP policy on growth strategy states multiple lot and units for development are to be directed to Urban Centres and Hamlets and may be allowed in site specific locations with existing approved zoning or designations that permit this type of development. The witness noted that neither the existing zoning nor designation of the subject property permit this proposed development. He opined that the designation and zoning established were done so to prevent short sighted planning which may compromise the integrity of Future Development lands.

43The County OP encourages a variety of housing forms to satisfy the present and future needs of residents and encourages densities which efficiently use available servicing that are appropriate for site conditions and existing patterns of development. Ms. Larocque opined that the proposed development would be consistent with existing forms of development on properties immediately adjacent.

44Regarding the Urban Core Greenlands designation of the subject property, Mr. Daoust opined that policy in the County OP encourages increased densities and a broader mix of housing. The subject property, being located in the urban centre, should seek to accommodate much higher density, with the County OP seeking to achieve a minimum density of 40 residents and jobs per hectare in regards to greenfield areas.

45Ms. Larocque opined that policy within the County OP on the Future Development designation outlines that the purpose of lands within its designation is to recognize it may not be possible to pre-designate land for intended use because the lands are not required for the time period of the County OP. The policy goes on to identify that permitted use of lands within these areas are those which existed at the time of the passing of the County OP, which is agricultural use in this case. However, the policies allow for consideration of a new lot by consent, provided development is in accordance with the policies of the County OP. Ms. Laroque observed that the Committee determined that the consent application met Provincial, County and Township criteria and that no appeals in regards to the consent application were made. In fact, the ZBA application before the Tribunal is a result of a condition imposed in relation to the severance.

46In contrast, Mr. Daoust's opinion in regards to policy related to areas designated Future Development led to the conclusion that the proposed development would amount to putting the cart before the horse, as municipal services are not present and also noted that in 2018 single detached residential dwellings were removed as a permitted use from Future Development zoning to conform with the County OP objective of ensuring orderly development of such lands.

47Mr. Daoust also noted that in speaking to the Appellants before any application was received, he had advised the Appellants that an Official Plan Amendment ("OPA"), zoning by-law amendment and severance application would be required to pursue a dwelling on the subject property. As a result, the witness is of the opinion that the Appellants will require an OPA in order to achieve their goal, which has not been applied for at this time. In the alternative, the Appellants could wait until the MCR is complete to determine land designation and intended use, which may impact the necessity of an OPA.

48In regards to Ms. Larocque's interpretation of Future Development lands policy, Mr. Daoust disagreed, stating that a single detached dwelling is not listed as a permitted use. Further, although policy in the County OP does permit redesignation, it must be proven that additional land for development purposes is required. This would include a comprehensive review of the needs and impacts of development lands on the surrounding area having regard to a number of factors including proving that a need for development of additional land is demonstrated by the fact that approximately three quarters of the land designated for development by the County OP is already developed and that the proposed development is contiguous to and is a logical extension of existing development. Mr. Daoust confirmed that a comprehensive review, which the County OP requires, was never complete. He opined that without this justification, the proposed rezoning would not be deemed as required and needed.

49Contrary to Mr. Daoust's opinion on the County OP, Ms. Larocque provided opinion on policy in relation to creating new lots, which outlines matters for consideration when creating new lots by subdivision, consent or part lot control. These criteria would be evaluated at the time of lot creation and Ms. Larocque asserts that such evaluation occurred when the Committee approved the consent application.

50Mr. Daoust's testimony in contrast opined that the County OP policy on creation of new lots does not provide justification for the proposed development, in fact the Township staff report prepared in regards to the consent application reviewed this policy and Mr. Daoust was of the opinion that the criteria were not met. He noted a requirement that any new lots being required to be consistent with County OP policies and ZBL regulations, as well adequate provision of water and sewer services.

ANALYSIS

51The Tribunal received evidence from two witnesses with conflicting evidence on this matter. Ms. Larocque expressed the opinion that the proposed development is appropriate as servicing is available, with the exception of water and sewage which can be mitigated through the use of a private well and septic system. The proposed development would add to the housing supply of the Province, in a manner consistent with existing forms immediately adjacent and would do so in a manner permitted by the County OP designation of Future Development.

52Contrary to Ms. Larocque, Mr. Daoust was of the opinion that the proposed development is premature as the designation of the subject property demonstrates an intention to retain the lands for future development. Mr. Daoust opined that the addition of a single dwelling on the subject property would not contribute meaningfully to the overall housing supply, instead higher density would be appropriate, but only once a MCR determines the timing and recommended use for the subject property. Mr. Daoust went on to express the opinion that the County OP provides direction for the development of such lands to prevent short sighted planning compromising future development.

53Both witnesses provided different interpretations of the County OP, with Mr. Daoust of the opinion that the County OP does not permit the proposed development as development is encouraged in areas with existing services and with higher densities. On the other hand, Ms. Larocque opined that the development should be permitted, using private servicing to mitigate lack thereof, to add to the Province's housing supply.

54Both witnesses commented on the policy of the County OP related to lands designated Future Development, with Ms. Larocque of the opinion that the policy regarding new lot creation permits the proposed development, while Mr. Daoust opined that the criteria for new lot creation were not met and, as a result, an OPA would be necessary.

55As outlined in the County OP, the objective of lands designated Future Development is to protect future development. Ms. Larocque opined that while this policy does restrict new development, there is no outright prohibition.

56The Township raised valid concerns in regards to the proposed development as there is a lack of water and sewage servicing to the subject property's surrounding area. However, the Appellants have provided a solution in the form of private servicing, which would mitigate the lack of water and sewage without impact to existing wells or water supply while also providing the Town an additional source of water for testing in the area.

57The issue of appropriate density and timing for the subject property's development was a key concern raised by the Township. The Appellants' position that the contribution which a single dwelling would add to the housing supply of the Province appears negligible in contrast to the Township's vision of a town house community or apartment building. In addition, the Township's concern that any development should be put on hold pending the MCR is understandable as the development of Future Development lands including the subject property are a long term goal of the Township.

58The Appellants' proposed development resulted from a severance application leading to the creation of the 2.96 ac subject property. The full scale of lands owned by the Appellants include the 42.5 ac retained lot. As explained by Ms. Larocque, the Appellants intentionally severed the subject property, as it is located at the northern most portion of the Arthur Urban Centre. The subject property is separated from the retained lot by an environmental barrier in the form of the Farley's Creek Tributary. Ms. Larocque opined that the purpose of choosing the location of the subject property was to afford the Appellants the opportunity to construct a single dwelling on the subject property as far as possible from the Arthur Urban Centre built up boundary while protecting the larger retained lot for future development at a higher density.

59The County OP provides the goal of development density at a rate of 40 people and jobs per hectare. This is a metric applied to an area, not to a single property. The Appellants have provided the ability for the Township to accomplish this goal through future use of the retained lot.

60A key question that arose in this matter related to whether the proposed development was premature at this time. The Township position, that the Appellants should wait on completion of the MCR, is understandable as the County OP designation of the subject property being Future Development demonstrates an intention for greater growth in the area, requiring adequate planning to ensure such development is not compromised.

61The Appellants position, being that new lot creation is permitted by the County OP, provides the ability for an exception to this issue. The County OP provides that consideration may be given to the creation of a new lot by consent provided such development is in accordance with the policies of the County OP. The proposed development would provide housing supply in a manner similar to adjacent properties while also leaving the retained lot available for development in the future at higher density thereby providing a variety of housing options. Further, while the County OP wishes to limit and restrict redesignation of Future Development lands, there is no outright prohibition.

62The question of whether an OPA is necessary for the proposed development to proceed was raised in this matter. Although in 2018, permission for single detached dwellings in Future Development areas were removed from the ZBL, Ms. Larocque opined that, as a result of the County OP policy on new lot creation for Future Development lands, there is a mechanism to develop lands without OPA. Further, Ms. Larocque demonstrated that the Zoning By-Laws for the Towns of Erin and Puslinch currently permit the development of single detached dwellings in certain Future Development zones, demonstrating that an OPA is not necessary to permit the proposed development.

CONCLUSION

63The Tribunal, having reviewed the evidence of both the Appellants and Township, has been persuaded by the evidence of the Appellants and find that the proposed Zoning By-Law Amendment meets the relevant tests of s. 2 of the Act, the PPS, and Growth Plan, is in conformity with the County OP, represents good planning and is in the public interest.

64The proposed development demonstrates consideration for matters of provincial interest as it considers the protection of ecological systems (being the Farley Creek tributary) and makes use of communication and transportation infrastructure.

65The proposed development is consistent with the PPS and Growth Plan as it will add to the housing supply within a settlement area while leaving 42.5 ac for a greater variety and density of development in the future. Further, as the Future Development lands are intended to be developed with the year 2051 in mind, there will be opportunity for the future development of the subject property. There could be a generation before development is implemented for the Future Development lands. The proposed development of the single dwelling at this time does not restrict the future development of the subject property before or beyond the 2051 year threshold at a density greater than the minimum of 40 people per hectare, as stated in the County OP.

66The proposed development implements the policies of the County OP through the use of policy related to lands designated Future Development for new lot creation. Although the policy is restrictive on development of these types of land, the Appellants have proposed its development in a manner that will lead to minimum impact on surrounding lands in the most suitable location.

67The subject property is a unique parcel of land which is separated from the retained lot by natural barriers which involves challenges in its development. The Appellants have proposed a development which the subject property can accommodate while leaving opportunity for future development of the retained lot.

ORDER

68THE TRIBUNAL ORDERS that the appeal is allowed and By-Law 66-01 of the Township of Wellington North is hereby amended as generally set out in Attachment 1 to this Order. The Tribunal will withhold the final Order pending the delivery of a final, and acceptable version of the By-law, acceptable to both parties. The Parties have until Friday, March 1, 2024, to deliver the final form of the By-law to the Tribunal for review, approval and issuance. The Parties can contact the Member, through the case coordinator, if any issues arise in meeting this deadline.

"S. Mann"

S. MANN

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.

Attachment 1