Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 21, 2023

CASE NO(S).: OLT-22-002319, OLT-22-003999

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

Applicant/Appellant: Veronika Romvari-Pop and Ioan Pop

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit a reduction in the Minimum Distance Separation setback

Reference Number: ZBA21-21-DN

Property Address: 241 Langford Church Road

Municipality/UT: Brantford/Brant

OLT Case No.: OLT-22-002319

OLT Lead Case No.: OLT-22-002319

OLT Case Name: Pop v. Brant (County)

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Veronika Romvari-Pop and Ioan Pop

Subject: Consent

Description: To permit the creation of 2 residential lots

Reference Number: B25-B26-21-DN

Property Address: 241 Langford Church Road

Municipality: Brantford/Brant

OLT Case No.: OLT-22-003999

OLT Lead Case No.: OLT-22-002319

Heard: January 26, 2023, by video hearing

APPEARANCES:

Parties Ioan (John) Pop and Veronika Romvari-Pop - (“Appellants/Applicants”) County of Brant (“County”)

Counsel Derek Sinko Rochelle Welchman

DECISION DELIVERED BY J-P. Blais and K.R. ANDREWS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal involves a Zoning By-law Amendment (“ZBA”) and Consent applications brought pursuant to s. 34(11) and s. 53(14) of the Planning Act (the “Act”) respectively.

2The Applicants own the lands at 241 Langford Church Road in the County (the “Subject Lands”). They submitted applications to the County to facilitate residential development of the site.

3The proposed ZBA seeks to change the zoning to permit residential uses, as well as a reduction in the Minimum Distance Separation (“MDS”) setback from a horse barn located on an adjacent property.

4The Consent applications propose the creation of three parcels of land. The retained parcel will contain the existing dwelling. The two severed parcels are proposed for future development as residential lots.

5The County refused the ZBA application on the basis that the reduction of the MDS setback is not minor in nature and the proposed ZBA application is consequently not desirable for the surrounding agriculture land uses. The Tribunal notes that the Committee of Adjustments did not make a decision regarding the Consent applications within the statutory time period, which brings that matter to the Tribunal. Both applications have been appealed and consolidated into one matter due to the obvious overlapping of issues and evidence.

NOTICE OF HEARING EVENT

6This was the first hearing event in this matter. The Tribunal was in receipt of the Affidavit of Service of the Notice of Hearing Event, dated November 3, 2022, which was marked as Exhibit 1. The Notice referred to a 4-day merit hearing which was to start on January 23, 2023, and end on January 26, 2023. Given the proposed settlement, the hearing was shortened to a single day commencing on January 26, 2023, the last day of the scheduled hearing event.

7Given that the hearing did not start on the scheduled first day, the Tribunal considered the adequacy of notice in the circumstances. Counsels for the County and the Applicants indicated that neither of them had received inquiries from persons potentially seeking Party Status or Participant Status. Similarly, the Tribunal’s Case Co-ordinator was not contacted by persons potentially seeking status. As a result, the Tribunal finds that no person potentially seeking status might have missed their opportunity to address the Tribunal as a result of the matter not beginning on the scheduled first day of the hearing. In addition, given that the hearing was held within the period identified in the Notice of Hearing Event, the Tribunal finds that the Notice was adequate.

EVIDENCE AND ANALYSIS

8Prior to the present hearing, the parties reached a settlement on all outstanding issues (the “Proposed Settlement”). The Proposed Settlement is now before the Tribunal for approval. Although this was a settlement hearing, the Tribunal must nevertheless be satisfied that the applications satisfy all legislative tests.

9The uncontested evidence in support of the Proposed Settlement was provided by Ms. Ruchika Angrish, retained by the Applicants, who was qualified on consent as an expert in Land Use Planning. Ms. Angrish’s Final Witness Statement, in the form of an Affidavit dated January 15, 2023, including various attachments, was marked as Exhibit 2.

The Subject Lands

10The Subject Lands are described as Part Lot 7, Concession 2, East Side Fairchilds Creek, Part 1, 2R-6365; Part 1 2R-7173, former Geographic Township of Onondaga, located at 241 Langford Church Road, in the County. The Site has a frontage of approximately 115 metres along Langford Church Road and 114 meters on McBay Road, a depth of 73.5 metres and a total area of approximately 2.25 hectares. The Subject Lands are located on the south side of Langford Church Road and west of McBay Road and contain a single detached dwelling serviced by a private well/cistern and septic system.

11The Subject Lands are designated Rural Residential in the County of Brant Official Plan, 2012 (the “Official Plan”). They are currently zoned Agricultural (A) in the County of Brant Zoning By-Law 61-16 (the “Zoning By-Law”).

The Proposed Settlement

12Ms. Angrish testified that the ZBA proposes:

1. To change the zoning on a portion of the Subject Lands from Agricultural (A) Zone to Rural Residential (RR);

2. To change the zoning on the other portion of the Subject Lands from Agricultural (A) Zone to Special Exception Rural Residential (RR-54) Zone; and

3. To change section 9.5 Special Exceptions RR Zone to provide a reduced MDS setback of 243 metres (whereas 259 metres is currently required) to the dwelling unit from the neighbouring horse barn at 237 Langford Church Road within that area zoned RR-54.

13The Consent applications seek the creation of two (2) new rural residential lots fronting on McBay Road (the “Severed Lots”). It is the future dwellings on these severed lots which would be subject to the reduced MDS setback. The retained parcel containing the existing dwelling will front on Langford Church Road (the “Retained Lot”).

14The Proposed Settlement envisages Conditions of Severance.

Provincial Policy Statement (2020)

15The Provincial Policy Statement (PPS) is issued in accordance with Section 3 of the Planning Act which requires that decisions affecting planning matters shall be consistent with the PPS. The PPS establishes the policy foundation for regulating the development and use of land and provides policy direction on matters of provincial interest related to land use planning and development. The PPS applies to planning decisions and applies to the consideration of both the proposed ZBA and the Consent applications.

16Ms. Angrish noted that Policy 1.1.4. of PPS outlines policies related to rural areas that may include rural settlement areas, rural lands, prime agricultural areas, natural heritage features and areas, and other resource areas. Policy 1.1.4.1 states that healthy, integrated and viable rural areas should be supported by building upon rural character and leveraging rural amenities and assets (1.1.4.1.a) and encouraging the conservation and redevelopment of existing rural housing stock on rural lands (1.1.4.1.d).

17Ms. Angrish testified that, in her professional opinion, the proposed ZBA and Consent applications are consistent with the policy direction of the PPS. In particular, she underscored the following with respect to the Subject Lands:

1. They are located in the rural area of the County;

2. They are designated Rural Residential in the Official Plan;

3. They are surrounded predominantly by agricultural and rural residential uses;

4. They are located about 7 km from the Cainsville Employment area and within 10 km from the City of Brantford, providing the necessary amenities and services to the future residents;

5. They are serviced by private water and sanitary services; and

6. They abut similar rural residential lots on Langford Church Road and McBay Road and further intensify the existing rural residential designated area.

18Ms. Angrish also testified that the proposal is in keeping with the surrounding rural residential lots in terms of lot area and lot frontage, that no additional infrastructure will be required for the development of the lands, and that no natural heritage features are located on or abutting the Subject Lands.

19The Tribunal accepts this evidence and finds same.

Minimum Distance Separation Guidelines (2017 – Publication 853)

20Ms. Angrish testified that she reviewed the MDS report prepared by Soil Solutions Plus dated April 7, 2021.

21Ms. Angrish explained that MDS Guidelines are prepared by the Ontario Ministry of Agriculture, Food and Rural Affairs and represent the MDS Formulae as defined in the PPS. Ms. Angrish explained further that the MDS Guidelines are a land use planning tool with the intent to prevent land use conflicts and minimize nuisance complaints from odour. MDS I formula determines setbacks between proposed new development and existing livestock facilities.

22Ms. Angrish stated that, as per Guideline 8, where lot creation is proposed, an MDS I setback is required for both the severed and retained lot. ‘Type B’ land uses are characterized by higher density of human occupancy, habitation or activity including settlement area boundaries, and existing development outside of a settlement area which is recognized through an official plan designation (Guideline 33 and 34). Ms. Angrish opined that the Subject Lands are located in a residential designated area under the County’s Official Plan and are surrounded by a number of residential lots, hence are classified as a Type B land use.

23Ms. Angrish pointed out that the Soil Solutions Plus report confirmed that the livestock facility at 237 Langford Church Road contains 15 medium frame horses with a barn capacity potential of 20 horses and would normally require a ‘Type B’ separation distance of 259 metres from the livestock facility to the nearest property line of the proposed lot.

24In accordance with Guideline 41, the Severed and Retained Lots are less than 1 hectare, which requires the MDS I setback to be measured as the shortest distance between the proposed lot line and the surrounding livestock occupied portions of the livestock barns. Guideline 43 permits reduction of the MDS calculation by a site specific zoning by-law amendment or a minor variance.

25Ms. Angrish testified that the ZBA proposes that the measurement be established from the livestock barn to the location of the future dwelling unit, as the nearest lot line for the proposed new lots already exists.

26Additionally, she noted that, pursuant to the proposed Conditions of Approval for the Consent applications, a landscaping buffer will be provided for the Severed Lots to ensure that there is no potential odour nuisance due the existing livestock operation.

27The Proposed Settlement contemplates a MDS setback of 243 metres.

28Ms. Angrish testified that, in her professional opinion, the proposed ZBA and Consent applications are in keeping with the intent of MDS Guidelines and will not create any negative impacts on the existing livestock operations.

29The Tribunal accepts this evidence and finds same.

Growth Plan for the Greater Golden Horseshoe (2019)

30A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019 (the “Growth Plan”) is prepared under the Places to Grow Act, 2005. The Growth Plan provides policy direction for growth and development that supports economic prosperity, protects the environment, and helps communities achieve a high quality of life. It implements Ontario’s vision for building stronger, prosperous communities by better managing growth in the region.

31Policy 2.2.9 of the Growth Plan provides policy guidelines for rural areas, and rural land uses are permitted, provided they are compatible with rural landscape. Policy 2.2.9.6 states that new multiple lots or units for residential development will be directed to settlement areas but may be allowed on rural lands in site-specific locations with approved zoning or designation in an official plan that permitted this type of development as of June 16, 2006.

32Ms. Angrish testified that the Subject Lands are within the rural landscape of the County. However, the site is designated Rural Residential in the Official Plan, which permits limited infilling on the underutilized parcels. The proposal is in keeping with the rural character of the area as the Site is surrounded by similar sized rural residential lots along Langford Church Road and McBay Road.

33Ms. Angrish explained that the abutting lands are within County’s Prime Agricultural Area and contain an existing livestock operation (horses). The proposed development will not have any negative impact on the livestock operation as there are other existing residential lots within the same or closer proximity to the horse barn. The proposal achieves complete communities as the Subject Lands are in close proximity to Cainsville employment area and the City of Brantford, providing the necessary amenities and services to the future residents.

34Ms. Angrish testified that, in her professional opinion, the proposed applications are in conformity with the policy direction of the Growth Plan as the proposed development provides additional housing opportunities in a residential designated area of the County.

35The Tribunal accepts this evidence and finds same.

County of Brant Official Plan (2012)

36The County is a single-tier municipality. The Official Plan was adopted by County Council on September 7, 2010 and was approved by the Ministry of Municipal Affairs and Housing on August 10, 2012.

37The Subject Lands are designated Rural Residential in the Official Plan. The intent of this designation is to only recognize existing concentrations of large lot residential development to prevent scattered land consumption, inefficient use of existing infrastructure, and non-farm development in the Agricultural designation. Development in Rural Residential areas is limited to infilling on existing lots of record or new draft plans of subdivision within the boundaries of the designation. Prescribed criteria apply to growth and development within County’s Rural Residential Areas as per Section 2.2.3.3. (Community Structure) of the Official Plan.

38Section 3.7.1. of the Official Plan provides the policy framework for this designation. Single detached dwellings are permitted in the Rural Residential areas. Ms. Angrish opined that the proposed development meets the intent of Rural Residential designation and represents infilling of the existing designated area. In particular, she testified that the Severed and Retained lots have access to potable water; proof of such will be provided during clearance of conditions of the Conditions of Approval for the Consent applications. No impact on the adjoining properties will occur due to the proposed development. She noted that the pattern of the new lots is logical in the context of existing surrounding development. The proposed lots are of a similar size to existing lots in the surrounding area.

39A MDS calculation completed for the proposal concludes that the development of the Subject Lands will not have any negative impact on the livestock operations in the vicinity.

40Section 6.8.2.2 of the Official Plan provides policies for Non-Agricultural Consents with respect to residential lot creation and applies to lands within Rural Residential Designation.

41The Subject Lands front on Langford Church Road which is classified as a Rural Local Road in the County’s Transportation Plan and McBay Road which is classified as Rural Arterial Road. Safe access is available for both Severed and Retained lots. Additional Conditions of Approval for the Consent applications have been included to ensure appropriate road widenings/restrictions will be further evaluated and provided. The proposed development will not create any traffic issues on the existing road network.

42The existing dwelling on the Subject Lands is serviced by private well/cistern and septic system. The Severed Lots will require a new potable water system and septic system installed through the building permit applications. Proof of potable water has been included in the Conditions of Approval for the Consent applications.

43Similarly, additional conditions include providing a detailed grading plan for the suitability of the lots, Ministry clearance on Archaeological Assessment for the Severed Lots, and a landscaping buffer from the abutting livestock barn to mitigate any future conflicts.

44Ms. Angrish testified that, in her professional opinion, the proposed applications conform to the policies of the County of Brant Official Plan (2012).

45The Tribunal accepts this evidence and finds same.

Conditions of Approval

46The Planning Act provides for an approval authority, such as the Tribunal, to impose such conditions to the approval of a Consent as in the opinion of the Tribunal are reasonable, having regard to the nature of the proposed development.

47The proposed Conditions of Approval for the Consent applications require that the owner enters into a Development Agreement (“Development Agreement”) that is satisfactory to the County in connection with the development of the Subject Lands, including satisfying all requirements, financial and otherwise, of the County. The Development Agreement requires that all of conditions of approval be satisfied prior to final approval.

48Ms. Angrish testified that, in her professional opinion, the proposed Development Agreement and the Conditions of Approval for the Consent applications are appropriate for the nature of development of the Subject Lands.

49The Tribunal accepts this evidence and finds the Conditions of Approval for Consent to be reasonable.

CONCLUSION

50Having heard the uncontested evidence and reviewed the matter fully, the Tribunal finds that the Applications have regard to matters of Provincial interest in s. 2 of the Planning Act, have regard to the criteria in s. 51(24) of the Act, are consistent with the PPS, conform to the Growth Plan, and conform to the County of Brant Official Plan. They constitute good planning.

ORDER

51THE TRIBUNAL ORDERS that:

1. The appeal pursuant to s. 34(11) of the Planning Act is allowed in part and directs the municipality to amend By-law No. 61-16 as set out in Attachment 1. The Tribunal authorizes the municipal clerk of the County of Brant to assign a number to this by-law for record keeping purposes;

2. The appeal pursuant to s. 53(14) of the Planning Act is allowed in part and the provisional consent is to be given, in accordance with the sketch set out in Attachment 2, and subject to the conditions set out in Attachment 3; and

3. In all other respects, the appeal is dismissed.

“Member Signature”

J.-P. BLAIS

MEMBER

“Member Signature”

K.R. ANDREWS

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 - OLT-22-002319 & OLT-22-003999

BY-LAW NUMBER _____

-of-

THE CORPORATION OF THE COUNTY OF BRANT

To amend By-law No. 61-16, the Zoning By-law for the County of Brant, as amended, (J.H. Cohoon Engineering Inc., Agent, on behalf of John & Veronika Romvari-Pop Applicant/ Owner of 241, Langford Church Road) to regulate the use of lands and the location and use of buildings and structures in the County of Brant.

WHEREAS an application was received from J.H. Cohoon Engineering Inc., Agent, on behalf of John & Veronika Romvari-Pop Applicant/Owner of Part 1 2R-6365; Part 1 2R-7173 in the Former Geographic Township of Onondaga, located at 241 Langford Church Road, proposing to change the zoning on a portion of the subject lands from the Agricultural (A) Zone to Special Exception Rural Residential (RR-54) Zone to permit a reduction in the Minimum Distance Separation (MDS) setback, where no dwelling unit shall be located within 243 metres (797 feet), whereas 259 metres (850 feet) is required from the neighbouring livestock barn at 237 Langford Church Rd; and to change the zoning on a portion of the subject lands from the Agricultural (A) Zone to Rural Residential (RR) Zone; required in order to facilitate the creation of two (2) Rural Residential lots fronting on McBay Rd.

AND WHEREAS the Planning Act empowers a municipality to pass by-laws prohibiting the use of land and the erection, location and use of buildings or structures, except as set out in the by-law;

AND WHEREAS this By-Law is in conformity with the Official Plan for the County of Brant;

AND WHEREAS the Ontario Land Tribunal deems it to be desirable for future development and use of the lands described above;

NOW THEREFORE THE ONTARIO LAND TRIBUNAL HEREBY ENACTS AS FOLLOWS:

1. THAT Schedule ‘A’ of By-Law 61-16, Map 159, is hereby amended by changing the zoning on a portion of the subject lands from Agricultural (A) Zone to Rural Residential (RR) Zone as shown on Schedule ‘A’ of this By-Law.

2. THAT Schedule ‘A’ of By-Law 61-16, Map 159, is hereby amended by changing the zoning on a portion of the subject lands from Agricultural (A) Zone to Special Exception Rural Residential (RR-54) Zone as shown on Schedule ‘A’ of this By-Law.

3. THAT Section 9.5 Special Exceptions RR Zone is amended by adding the following:

RR-54

Notwithstanding any provisions of this By-Law to the contrary, within any area zoned RR-54 on Schedule ‘A’ hereto, no dwelling unit shall be located within a reduced Minimum Distance Separation (MDS) setback of 243 metres (797 feet) to the neighbouring horse barn at 237 Langford Church Rd shall apply.

All other requirements of the By-Law shall apply.

4. THAT this By-Law shall come into force on the day it is approved by the Ontario Land Tribunal.

Schedule A to the By-law No. ______

ATTACHMENT 2 - OLT-22-002319 & OLT-22-003999

ATTACHMENT 3 - OLT-22-002319 & OLT-22-003999

Conditions of Approval for Consent Applications

1. That the Applicants shall enter into a Development Agreement with the County, substantially as that appended to the Minutes of Settlement, generally on the terms and conditions herein contained pursuant to the provisions under subsection 53(12) which incorporates subsection 51 (26) of the Planning Act which allows the County to enter into agreements imposed as a condition to the approval of the consent and allows for registration of the Agreement on title and County Consent Authority receives confirmation that the Agreement has been registered on title.

2. Proof that taxes have been paid up to date on the subject property to the County of Brant.

3. That the Applicants provide a copy of the Draft Reference Plan to the County for review for each of the severed parcels, including the location of the existing buildings and septic system on the retained parcel, by a licensed surveyor, prior to the finalization of the Consent (i.e. registration of the deeds in the appropriate Registry Office).

a. The need to include parts on the draft reference plan for the purposes of road widening and/or 0.3 metre reserve shall be confirmed by Development Engineering Division prior to the preparation of the Draft Reference Plan.

4. That the following requirements Development Engineering are agreed to, specifically:

a. An overall grading plan for the severed lots including 10 m beyond the property lines in all directions be provided to confirm the drainage patterns to the satisfaction of the County;

b. Any applicable standard requirements of Development Engineering.

5. That the Applicants provide proof/copy of draft approved civic addressing for the Severed and Retained lands issued by the Planning Division to the satisfaction of the County.

6. That the Applicants provide proof/copy of draft approved entrance locations for the Severed Lands issued by the Operations Division to the satisfaction of the County.

7. That the Applicants satisfy the following requirements of the Development Engineering Division:

a. That the following be provided for review to the satisfaction of the County:

⋅ Site Development Plan;

⋅ Sedimentation & Erosion Control Plan;

⋅ Grading Plan; and

⋅ Stormwater Management Report for the Severed and Retained lands

b. That land transfers / conveyances for the purposes of road widening and/or 0.3 metre reserves be completed to the satisfaction of the County, if required.

c. That a Site Alteration Permit be obtained, if required, under the County By-Law 130-17 for any fill being brought into or being removed from the Site prior to the execution of the Development Agreement and/or Site Plan Approval.

d. An approved Public Works Permit is required prior to commencing any works within the municipal road allowance.

8. That the Applicants provide a landscaping plan to the satisfaction of the County that includes buffering in terms of trees, bushes and other landscaping elements along the west property line which abuts the agricultural uses to minimize potential odour from the adjoining horse barn.

9. That the Applicants satisfy the County with regard to the location and provision of a proven potable water supply (which may include but is not limited to a private well or cistern) for each lot, in accordance with the County’s policy for providing potable water prior to the issuing the Certificate of Official.

10. That the Applicants be required to provide an Archeological Assessment of the Severed Parcels by a licensed archaeologist who completed the assessment along with a copy of the acceptance letter issued by the Ministry of Tourism, Culture and Sport (MTCS).

11. That the Applicants provide draft transfer documents with legal descriptions of the severed lands utilizing an existing reference plan or new reference plan (if required) prior to the finalization of the Consent (i.e., registration of the deed in the appropriate Registry Office).

12. That the Applicants' solicitor shall prepare and register all the necessary documents following review and approval by the County solicitor, and immediately following the registration, the Applicants’ solicitor shall provide a certificate satisfactory to the County solicitor that the registrations have been completed properly and in accordance with the approvals provided.

13. That the standard requirements of Enbridge Gas are agreed to, specifically:

a. Enbridge Gas does have service lines running within the area which may or may not be affected by the proposed severance.

b. Should the proposed severance impact these services, it may be necessary to terminate the gas service and relocate the line according to the new property boundaries. Any Service relocation required due to a severance would be at the cost of the Applicants or property owners. Also, should future gas service be required to either the severed or retained parcel, a request for gas service needs to be submitted to the District Office.

14. That the standard requirements of GrandBridge Energy are agreed to, specifically:

a. The Applicants will be required to satisfy the conditions noted in the severance application prior to construction.

b. If relocation or upgrade of existing hydro plant is required as a result of this Application, the Applicants will be responsible for 100% cost. As per Energy+ Inc's Current Conditions of Service, only one service per property is permitted. Early consultation with Energy+ Inc's Service Coordinator is recommended.

c. The Applicants may be required to provide a Legal Survey showing all existing dwellings, existing lot lines, existing equipment, proposed dwellings, proposed lot lines, proposed equipment and existing easements at 100 % cost. The Legal Survey would need to include dimensions.

15. That the Applicants enter into a Development Agreement and provides a $10,000.00 security deposit, plus applicable $200.00 Registration Fees, per new building lot, for drainage/grading and provides a Site Development Plan completed by a P.Eng. for review by the Development Services Department, prior to the signing of Deeds.

16. Parkland dedication or monies-in-lieu of parkland will be payable at the time of stamping

of the deeds, in amount of $5,813, for each new building lot.

17. That a rural firefighting fee of $600.00, for each new building lot or some other method acceptable to the Fire Department (as required), be provided to the release of the executed Certificate of Official.

18. That the current $314.16 Deed Stamping Fee, for each new building lot, be paid to the County for each lot, prior to the release of the executed Certificate of Official.

19. That the above conditions must be fulfilled, and the Document for Conveyance be presented to the Consent Authority for stamping within the time prescribed in s. 53(41) of the Planning Act, otherwise the approval shall lapse.