Ouellette v. Frontenac (County), 2023 CanLII 121519

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 11, 2023

CASE NO(S).: OLT-22-002244

PROCEEDING COMMENCED UNDER subsection 51(43) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Gary Beach

Owner: Roberta Ouellette

Subject: Conditions of approval of draft plan of subdivision

Description: Proposed to create a residential subdivision consisting of 15 single detached lots, two stormwater blocks, a public roadway, a road allowance.

Reference Number: 10T-2011/002

Property Address: 2292 Sands Road

Municipality/UT: South Frontenac/Frontenac

OLT Case No: OLT-22-002244

OLT Lead Case No: OLT-22-002244

OLT Case Name: Ouellette v. Frontenac (County)

Heard: November 10, 2023, in Writing

APPEARANCES:

Parties

Representative

Roberta Ouellette

J. Mark Joblin

County of Frontenac

Greg Meeds

DECISION DELIVERED BY P. TOMILIN AND ORDER OF THE TRIBUNAL

Link to Order

1This was a Hearing in the matter of the appeal by Roberta Ouellette (“Applicant” / “Appellant”) arising from the denial of the request for an extension for the approval of conditions of a draft plan of subdivision by the Council of the County of Frontenac (“County”) for the property located at 2292 Sands Road (“subject property” / “Site”) in the Township of South Frontenac (“Township”).

2Planning evidence was provided to the Tribunal by means of the written Affidavit of Joseph Gallivan. Mr. Gallivan is the Director of Planning and Economic Development for the County, where he has been directly involved in subdivision approvals. After reviewing the qualifications and signed Acknowledgement of Expert Duties, the Tribunal is satisfied that Mr. Gallivan is a qualified professional land use planner. He provided the Tribunal with a comprehensive overview of the application (“Application”) in relation to the relevant policies.

3In his affidavit (Exhibit 1), Mr. Gallivan confirmed that he was consistently involved in the County review process associated with the Plan of Subdivision Application submitted in 2011 by the Appellant in order to permit development of a residential subdivision (“Draft Plan of Subdivision”) in the Township.

4Mr. Gallivan submits that he reviewed and considered correspondence received from the Cataraqui Conservation Authority, Malroz Engineering (County peer review for hydrogeological engineering) and the Township. He noted that he reviewed the staff reports with respect to the Draft Plan of Subdivision and the draft conditions of approval that were recommended by Township planning and public works staff. He has also reviewed correspondence submitted by other commenting agencies, including Bell Canada, Canada Post, Hydro One, and by the Kingston, Frontenac, Lennox and Addington Health Unit.

LOCATION AND SITE CONTEXT

5Mr. Gallivan explained that the subject property is 23 hectares (“ha”) (56.8 acres) (“ac”) in size and is located in the southern portion of the Township in the hamlet of Battersea. The Site is currently occupied by a single detached dwelling. The northern and western portions of the subject property are dominated by a large, wooded ridge and the land is generally rural in character sloping toward nearby wetlands. The surrounding area mostly consists of rural single detached lots, wooded areas and farmland, and a wetland is located just north of the Site.

6The subject property is legally described as Parts 9 and 10, Concession 9, Geographic Township of Pittsburgh, Township of South Frontenac, County of Frontenac.

7The Draft Plan of Subdivision proposes to create a residential subdivision consisting of 15 single detached lots, two stormwater blocks, a public roadway, a road allowance that would allow a future connection to the existing hamlet of Battersea, and a block for the existing home.

8Mr. Gallivan provided an overview of the history of the Application. On July 17, 2013, County Council approved the Draft Plan of Subdivision for the Site with conditions. An approval authority has the ability to extend draft plan approval (“Draft Plan Approval/DPA”).

9Since the original County Council approval in 2013, the DPA has been granted an extension six (6) times. The most recent extension was granted by County Council on January 20, 2021 to January 29, 2022.

10On January 12, 2022, the County received a request for a 7th extension for the DPA.

11On January 19, 2022, County Council denied any further extensions of the Draft Plan Approval.

12On January 28, 2022, one day before the DPA was set to expire, the County received an appeal to the Tribunal on behalf of the property owner of the decision by the County to deny a further extension.

13Subsequent to the filing of the appeal (“Appeal”), the Parties entered into negotiations in an attempt to settle the Appeal without a Hearing. Minutes of Settlement were finalized by the Parties in July 2023.

14The County, supported by the Township, has agreed to an Order of the Tribunal extending DPA to July 19, 2025, but with no further extensions.

PLANNING RATIONAL

15Mr. Gallivan explained that since the original draft planning approval in 2013 the planning policy environment in the County has evolved. The first County Official Plan (“OP”) was approved in 2016 and now provides regional policies that support and sustain the vitality of villages and hamlets in all four lower-tier Townships. He brought to the Tribunal’s attention that the Provincial Policy Statement (“PPS”) has been updated twice since 2013, and that the most recent version of the PPS contains policies to support rural settlement areas and specifically recognizes the use of communal servicing to support new development.

16Mr. Gallivan noted that the County has been working on establishing a regional utility to support new communal development across the County and that work will be completed by early 2024. He further notes that the Township is in the process of updating its OP, with County Council approval in 2024.

17Mr. Gallivan proffered that the new OP policies support the use of communal services (rather than private septic systems and wells for each lot). Thus, the residential development will be expected to be built at a higher density than the Draft Plan of Subdivision for the subject property with a mix of housing units, and will allow for affordable housing options.

18In Mr. Gallivan’s opinion, the Draft Plan of Subdivision does not reflect the future potential of mixed housing development near settlement areas and it is unlikely that this form of development will be supported in the future if communal services become the preferred form of servicing in villages and hamlets.

19Mr. Gallivan reviewed the applicable policies of the PPS, County and Township OP and s. 51(24) of the Planning Act, and concluded that the Draft Plan of Subdivision is consistent with the PPS, specifically s. 1.1.3.1, which provides that settlement areas shall be the focus of growth. It is Mr. Gallivan’s professional opinion that the Draft Plan of Subdivision conforms with the County OP and in particular s. 3.2.2, which encourages efficient development patterns and road connections to optimize public services and to make the most efficient use of land and resources. In his opinion, the Draft Plan of Subdivision conforms to the Township OP. He opined that the proposal is located entirely within the boundaries of the Battersea Settlement Area. Mr. Gallivan stated that the proposed 15 lot residential subdivision satisfies the criteria established in s. 51(24) of the Planning Act.

20In conclusion, Mr. Gallivan proffered that it is his professional opinion that the proposed Battersea subdivision represents good land use planning and is in the public interest. It is also his opinion that the conditions of Draft Plan Approval from 2013 remain appropriate but only for the period of the agreed extension to July 19, 2025. After that time, changes are anticipated with the adoption of a new Township OP that will require subdivisions to proceed on the basis of communal services.

ANALYSIS AND FINDINGS

21The Tribunal accepts the uncontroverted professional opinion of Mr. Gallivan and finds that the proposed Draft Plan of Subdivision represents good planning, is consistent and/or conforms with the higher-level policy documents, such as the PPS, County and Township OPs and s. 51(24) of the Planning Act.

ORDER

22THE TRIBUNAL ORDERS that the appeal is allowed, and the date for the fulfillment of the Conditions of Draft Plan of Subdivision Approval set out in Attachment 1 is hereby extended to July 19, 2025.

“P. Tomilin”

P. Tomilin

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

CONDITIONS TO DRAFT APPROVAL

The conditions of approval for the draft plan of subdivision are as follows:

1. Approved Draft Plan:

That this conditional approval applies to the Draft Plan of Subdivision, dated April 26, 2013, prepared and certified by Hopkins, Cormier, and Chitty Surveying Consultants Inc OLS. which shows the following:

• 15 lots for single detached dwellings (Lots 1-15);
• Two stormwater blocks (Blocks 16 and 17)
• 1 block for an existing single detached dwelling (Block 18)
• One public road (Street A)
• One future road allowance (Street B)

2. Subdivision Agreement:

That the owners of the subject land enter into a subdivision agreement with the municipality, prepared to the satisfaction of the municipality, to be registered on title of the subject land.

3. Financial Requirements:

A. That the owner agree in writing to satisfy all the requirements, financial and otherwise of the municipality concerning the provision of roads, installation of services and drainage, in accordance with the municipality’s standards and procedures.

B. That the Owner shall reimburse the Township of South Frontenac and County of Frontenac for all legal, engineering, planning, administrative expenses and permit fees including the cost of any peer review that the Township of South Frontenac or County of Frontenac may require in relation to the subdivision.

4. Access:

A. That the road allowance included in this draft plan as ‘Street A’ shall be shown and constructed to Township standards for public roads with paved asphalt surfacing and that the road be dedicated as a public highway.

B. That visual screening in the form of fencing and/or earthen berms and/or trees may be required to be constructed along the east and west side of the new road allowance where it abuts the existing neighbouring property and Lot 15 at Sands Road. After final grading of the new road is completed, the Township will determine the extent of buffering required based on providing an adequate measure of privacy for Lot 15 and the existing property-owner who could be negatively affected by the traffic on the new street.

C. That the street shall be named to the satisfaction of the municipality.

D. That any dead ends and open sides of road allowance created by this plan of subdivision shall be terminated in 0.3 metre reserves to be conveyed to and held in trust by the municipality and that ‘Street B’ which is a 20 metre wide area of land, be dedicated to the Township extending north from the new street and ending at the northern limit of the subject land to be for the purpose of providing a future road access to the north.

E. That a 1.5 metre wide concrete sidewalk be constructed to a standard satisfactory to the Township along the southeast side of the road allowance from Sands Road in the south and terminating at the cul-de-sac in the north and that the technical drawings prepared by EXP services Inc. be revised to show this sidewalk in relation to ditching and stormwater flows. The Township acknowledges that the 20 metre wide road allowance may be required to be further widened to accommodate this construction.

5. On-Site Sewage Disposal and Water Systems:

A. That the recommendations outlined in the letter dated November 14, 2012 and July 5, 2013 from KFL&A Public Health to the County of Frontenac, be addressed to the satisfaction of the municipality.

B. That all requirements and recommendations specified in the Hydrogeology, Terrain Analysis and Nitrate Impact Assessment Report, revised dated April 9, 2013, from EXP Services Inc., and associated drawings be complied with.

C. That any existing wells and or septic systems that may be present on the site and are not to be used as part of the plan of subdivision be decommissioned as per applicable regulations.

6. Environment

A. That all conditions outlined in the letters dated October 29, 2012 and May 29, 2013 from the Cataraqui Region Conservation Authority to the County of Frontenac, be addressed to the satisfaction of the municipality.

B. That the 30 metre setback from the wetland as illustrated by a grey dashed line on the ‘Site and Existing Conditions Plan C-01’, by EXP Services Inc, revision date 13/04/17, be identified on Lots 6 through 14 with a line of shrubs with a minimum height of 0.5 metres to be installed by the developer and maintained by each future Lot-owner for the purpose of defining a no-build area on each of these lots.

C. That a development agreement be entered into and registered on the title of Lots 6 through 14 which would require each Lot-owner to maintain a line of shrubs defining the 30 metre setback from the wetland and which would impose prohibitions on development within the area of each Lot that lies within the 30 metre setback from the wetland in accordance with the recommendations of the Environmental Impact Statement, dated March 5, 2011, from Ecological Services, and the Township’s environmental protection policies.

D. That recommendation number two of the EIS (Ecological Services, March 5, 2011) regarding the maintenance of a 15 m no disturbance area adjacent to the swamp areas be implemented through site plan control, development agreements, or other such means as deemed appropriate by the Township.

E. That prior to final approval, the County of Frontenac is to be advised by the municipality that this proposed subdivision conforms to the Zoning By-law in effect of the Township of South Frontenac including that the wetland within Lots 6 through 14 be zoned Environmental Protection (EP) Zone and that the zoning is satisfactory to the Cataraqui Region Conservation Authority.

F. That the recommendations of the Environmental Impact Statement (EIS) dated March 5, 2011, be implemented including the recommendation to complete a ‘Woodland Preservation Plan’ prepared by a qualified professional to maintain the ecological integrity of the woodlands on the high-ground in the northwest portion of the property and to ensure that it is not fragmented in accordance with the specifications presented in the EIS.

G. That the recommendations of the ‘Woodland Preservation Plan’ for preserving the woodlands on the high ground on the northwest portion of the subdivision be incorporated into an agreement to be entered into and registered on the title of Lots 2 through 7. The agreement shall require each Lot-owner to maintain the trees as specified in the Plan.

H. That the Subdivision Agreement include text to the satisfaction of the Township and the CRCA to provide notice to purchasers of Lots 5 to 14 inclusive and Blocks 16 and 17 that site alteration and construction (including but not limited to buildings, structures, filling and grading) on these lots will require permission under Ontario Regulation 148/06: Development, Interference with Wetlands, and Alterations to Shorelines and Watercourses prior to commencing these activities.

I. That the Subdivision Agreement include text to the satisfaction of the Township and the CRCA notifying the Owner that permission will be required under Ontario Regulation 148/06: Development, Interference with Wetlands, and Alterations to Shorelines and Watercourses prior to commencing rough grading, stockpiling, etc. associated with this subdivision.

7. Stormwater

A. That a lot grading and drainage plan and a sediment and erosion control plan be completed and approved to the satisfaction of the Township of South Frontenac and the Cataraqui Region Conservation Authority (‘CRCA’), and be included in the Subdivision Agreement between the Owner and the Township.

B. That a stormwater management plan be prepared by a qualified Professional Engineer and approved to the satisfaction of the Township and the CRCA, and that appropriate text to implement its findings be included in the Subdivision Agreement.

C. That site drainage design, construction and maintenance be in accordance with the recommendations contained in the ‘Stormwater Management Report for the Sands Road Residential Development’, revised dated April, 2013 by EXP Services Inc., and associated drawings including the construction of ditches, culverts and stormwater management facilities designed and constructed to the satisfaction of the municipality on Blocks ‘16’ and ‘17’ and that such facilities be dedicated to the Township of South Frontenac.

D. That the blocks to be dedicated to the Township for the two stormwater management ponds be designed with a minimum of 10 metres of frontage on the new street to provide direct access for drainage and maintenance of the stormwater management facilities.

8. Parkland Dedication:

That the owner convey up to five percent of the land included in the plan to the municipality for park purposes. Alternatively, the municipality may require cash-in-lieu for all or a portion of the conveyance.

9. Human Remains:

The subdivision agreement shall contain a clause providing that any Owner(s) be advised, and also that a notice be placed in the purchase and sale agreement alerting any prospective purchasers that in the event that human remains are discovered during construction or site development of a lot, that the property owner shall immediately contact the OPP, the Ministry of Tourism, Culture and Sport and the Registrar or Deputy Registrar of the Cemeteries Unit of the Ministry of Consumer Services.

10. Archaeological Resources:

A. That the subdivision agreement include all recommendations contained in the Stage 1 Archaeological Assessment Report dated June 2011, from Golder Associates Ltd.

B. That the archaeological resource identified in the Stage 2 Archaeological Assessment Report, dated October 11, 2011 by Abacus Archaeological Services on Lot 4 in the subdivision and further noted in the letter dated October 10, 2012 from the Ministry of Tourism, Culture and Sport, be protected by way of special zoning on Lot 4 and that any required future measures to protect the feature be implemented to the satisfaction of the Township.

11. On-Site Works

A. That all entrances to the lots including entrance culverts be located and constructed to the satisfaction of the Township.

B. That all servicing including Bell, Hydro etc. be installed underground.

C. That, prior to final approval, the municipality shall be satisfied that all servicing issues are resolved such as road and sidewalk construction, Canada Post, Bell Canada, and stormwater pond construction.

D. That, the subdivision agreement include a requirement that one tree be planted in the front yard of each of the fifteen lots in the subdivision of a size, type and location specified in the Township’s Site Plan Guidelines.

E. That, prior to final approval, street lighting shall be installed according to Township standards and to the satisfaction of the municipality.

F. That, prior to final approval, street signage shall be installed according to Township standards and to the satisfaction of the municipality.

12. Revisions to Draft Plan:

A. That Prior to Final Subdivision Approval, the Owner shall submit a revised Block Plan, if required, to reflect any significant alterations caused from this Draft Plan Approval.

B. That where final engineering design(s) result in minor variations to the Plan (e.g., in the configuration of lots, etc.), these may be reflected in the Final Plan subject to the satisfaction of the Township of South Frontenac and the County of Frontenac.

13. Community Mailboxes:

A. That Prior to Final Plan Approval, the Owner shall, in consultation with and to the satisfaction of Canada Post, identify the method of mail delivery. If community mailboxes are required, the location of the community mailboxes within the Plan shall be identified on drawings for approval by the Township. The locations of these community mailboxes shall be identified in the notice to future purchasers of the lots within the Subdivision.

B. The Owner shall, if required, provide detailed design plans for the community mailboxes including a landscape plan.

C. If required, the Owner shall provide a suitable temporary community mailbox location to the satisfaction of the Township.

14. Bell Canada

15. The Developer is hereby advised that prior to commencing any work within the Plan, the Developer must confirm that sufficient wire line communication/telecommunication infrastructure is currently available within the proposed development to provide communication/telecommunication service to the proposed development. In the event that such infrastructure is not available, the Developer is hereby advised that the Developer may be required to pay for the connection to and/or extension of the existing communication/telecommunication infrastructure. If the Developer elects not to pay for such connection to and/or extension of the existing communication/telecommunication infrastructure, the Developer shall be required to demonstrate to the Municipality that sufficient alternative communication/telecommunication facilities are available within the proposed development to enable, at a minimum, the effective delivery of communication/telecommunication services for emergency management services (i.e., 911 Emergency Services).

16. The Owner shall agree in the Agreement, in words satisfactory to Bell Canada, to grant to Bell Canada any easements that may be required for telecommunication services. Easements may be required subject to final servicing decisions. In the event of any conflict with existing Bell Canada facilities or easements, the owner/developer shall be responsible for the relocation of such facilities or easements.

17. The Owner shall be required to enter into an agreement (Letter of Understanding) with Bell Canada complying with any underground servicing conditions imposed by the Municipality, and if no such conditions are imposed the owner shall advise the municipality of the arrangement made for such servicing.

18. General conditions:

A. That when requesting final Approval from the County of Frontenac, the Owner shall accompany such request with the required number of originals and copies of the Final Plan, together with a surveyor’s certificate stating that the lots/blocks thereon conform to the frontage and area requirements of the Zoning By-Law.

B. That the lands within this Draft Plan shall be appropriately zoned by a Zoning By-Law which has come into effect in accordance with the provisions of the Planning Act.

16. Clearance Letters:

A. That Prior to Final Subdivision Approval, the County of Frontenac shall be advised that all Conditions of Draft Plan Approval have been satisfied; the clearance memorandum shall include a brief statement detailing how each Condition has been met.

B. That Prior to Final Subdivision Approval, the County is to be advised in writing by the Township of South Frontenac the method by which conditions 1 to 15 have been satisfied.

C. That Prior to Final Subdivision Approval, the County is to be advised in writing by KFL&A Public Health the method by which conditions 5 A and B have been satisfied.

D. That Prior to Final Subdivision Approval, the County is to be advised in writing by the Cataraqui Region Conservation Authority the method by which conditions 6) and 7) A to C have been satisfied.

E. That Prior to Final Subdivision Approval, the County is to be advised in writing by Canada Post the method by which condition 13 has been satisfied.

F. That Prior to Final Subdivision Approval, the County is to be advised in writing by Bell Canada the method by which condition 14 has been satisfied.

17. Lapsing Provisions:

18. That pursuant to Section 51(32) of the Planning Act, this Draft Plan Approval shall lapse at the expiration of three (3) years from the date of issuance of Draft Plan Approval if final approval has not been given, unless an extension is requested by the Owner and, subject to review, granted by the approval authority.

19. That pursuant to Section 51(33) of the Planning Act, the Owner may submit a request to the approval authority for an extension of the Draft Plan Approval. The extension period shall be for a maximum of three (3) years and must be submitted prior to the lapsing of Draft Plan Approval. Further extensions may be considered at the discretion of the Township and the County.