Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 02, 2023
CASE NO(S).: OLT-22-004137
PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant 2006316 Ontario Inc.
Appellant Queen's Court Development Ltd.
Subject: Zoning By-law 2022-17
Description: To permit a range of residential and open space uses on the Subject Property
Reference Number: BL 2022-17
Property Address: 221 Fox Street (Town Wide)
Municipality/UT: Penetanguishene/Simcoe
OLT Case No: OLT-22-004137
OLT Case Name: Queen's Court Development Ltd. v. Penetanguishene (Town)
Heard: December 17, 2022 by video hearing
APPEARANCES:
Parties Counsel
2006316 Ontario Inc. David White
Queen’s Court Development Ltd. Johanna Shapira
Town of Penetanguishene Quinto Annibale and Alexandra Whyte
DECISION DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL
INTRODUCTION
1On December 7, 2022, the Tribunal held a Case Management Conference (“CMC”) and settlement hearing regarding appeals brought by Queen’s Court Developments Ltd. (“Queen’s Court”) and 2006316 Ontario Inc. (“2006316”). The appeals concern the passage by the Town of Penetanguishene (“Town”) on June 8, 2022 of Zoning By-law No. 2022-17 (“new Comprehensive Zoning By-law”). The new Comprehensive Zoning By-law amends the Town’s Comprehensive Zoning By-law No. 2000-02 (“old Comprehensive Zoning By-law”).
2Queen’s Court owns lands at 221 Fox Street. It plans to rezone and develop its lands with residential and open space uses. It submits that Schedule A of the new Comprehensive Zoning By-law depicts a watercourse on the lands, which it submits does not exist. It seeks an amendment to Schedule A to remove the watercourse depiction. It also seeks an adjournment of the CMC regarding its appeal until decisions on associated draft plan of subdivision and zoning by-law amendment applications regarding its lands are made and/or appealed.
32006316 owns lands located 123 Robert Street East. It filed an application for an amendment to the new Comprehensive Zoning By-law in order to facilitate a medium density residential development on its lands. On September 28, 2021, it appealed the failure of the Town to make a decision on its application. On October 14, 2022, it informed the Tribunal that it had reached a proposed settlement of its appeal with the Town.
4The Tribunal convened the CMC on December 7, 2022 to addressing these matters.
REQUEST FOR ADJOURNMENT OF THE QUEEN’S COURT CMC
5Queen’s Court stated that it has filed applications for a draft plan of subdivision and a separate zoning by-law amendment regarding its lands. It stated that these applications are still being considered by the Town. It requested that the CMC regarding its appeal of the new Comprehensive Zoning By-law be adjourned until the Town makes decisions on its draft plan of subdivision and zoning by-law amendment applications or until appeals are filed. Queen Court’s adjournment request was not opposed by the other Parties.
6The Tribunal directs that a further CMC regarding the Queen’s Court appeal shall be held by video hearing on Wednesday, May 10, 2023, commencing at 10 a.m.
https://global.gotomeeting.com/join/719383509
Access code: 719-383-509
7Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html
8Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll-Free) 1-888-299-1889 or +1(647) 497-9373. The access code is 687-587-165.
9Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
10The Tribunal requests that the Parties to the Queen’s Court appeal file a draft Procedural Order and Issues List with the Tribunal prior to the next CMC.
REQUEST FOR PARTICIPANT STATUS
11Anthony Huguenin requested Participant status in the 2006316 appeal proceeding. He lives across the street from 2006316’s lands and raises concerns regarding the validity of the appeal. He asserts that several statutory pre-requisites for bringing 2006316’s appeal have not been satisfied. None of the Parties objected to Mr. Huguenin’s request and the Tribunal granted him Participant status.
PROPOSED SETTLEMENT OF THE 2006316 APPEAL
12On January 28, 2021, 2006316 applied to amend the old Comprehensive By-law in order to facilitate a townhouse development on its lands located at 123 Robert Street East. It subsequently appealed the Town’s failure to make a decision on the application. That proceeding came before the Tribunal as Tribunal Case No. OLT-21-001619. Through discussions among the Parties to that appeal, they reached a proposed settlement, which was the subject of a settlement hearing before the Tribunal on August 23, 2022. In its Order, dated September 20, 2022, the Tribunal allowed that appeal and amended the old Comprehensive Zoning By-law.
13While that appeal was before the Tribunal, the Town passed the new Comprehensive Zoning By-law. 2006316 appealed it. That matter is the subject of the present proceeding.
Validity of 2006316’s Appeal
14The Participant, Mr. Huguenin, submits that 2006316’s appeal of the new Comprehensive Zoning By-law is not valid. He submits that s. 34(19) of the Planning Act states that the only persons who may appeal a zoning by-law amendment are the Applicant, a person or public body who, before the by-law was passed, made oral submissions at a public meeting or written submissions to Town Council, or the Minister of Municipal Affairs and Housing. He submits that 2006316 is not the Applicant (the new Comprehensive Zoning By-law was initiated by the Town) and it did not make oral submissions at a public meeting or written submissions to Town Council before the new Comprehensive Zoning By-law was passed.
15Mr. Huguenin also submits that 2006316’s grounds for appeal are invalid. He submits that the grounds set out in 2006316’s appeal letter summarize key events and dates and then simply states that Town Council failed to recognize 2006316’s application to amend the old Comprehensive Zoning By-law, which was under appeal at that time. Mr. Huguenin submits that these are not valid grounds for an appeal.
16Mr. Huguenin further submits that the present appeal is based on the Tribunal’s approval of 2006316’s amendment to the old Comprehensive Zoning By-law in Tribunal Case No. OLT-21-001619. He submits that revisions to that amendment proposal were not properly taken into account by the Tribunal and the Tribunal’s decision in Tribunal Case No. OLT-21-001619 is invalid. He submits that since the presently proposed settlement before the Tribunal is based on the Tribunal’s invalid decision in Tribunal Case No. OLT-21-001619, the presently proposed settlement is invalid.
17Mr. Huguenin further submits that there are errors and omissions in the proposed settlement agreement and in 2006316’s proposed amendments to the new Comprehensive Zoning By-law; however, he did not identify or elaborate on them.
18In response, 2006316 submits that the Notice of Appeal complies with the requirements in the Planning Act and the appeal is valid. It submits that it was in discussions with the Town regarding the zoning of its lands and that the Town was aware of 2006316’s concerns and issues before the new Comprehensive Zoning By-law was passed. It also submits that in Tribunal Case No. OLT-21-001619, the Tribunal had a proper appeal before it and its decision is valid.
19The Town submits that the appeal in Tribunal Case No. OLT-21-001619 was a proper appeal and that the present panel of the Tribunal does not have jurisdiction to reopen that decision. The Town submits that there are no errors or omissions in the proposed settlement materials or in the proposed amendments to the new Comprehensive Zoning By-law.
Analysis and Findings
20Through 2006316’s exchange of correspondence and materials with the Town regarding zoning on 2006316’s lands prior to the passage of the new Comprehensive Zoning By-law, 2006316 made written submissions to the Town that were intended to be considered by Council when making a zoning decision regarding 2006316’s lands. The Tribunal finds that it is clear that the Town and its Council were aware of 2006316’s position regarding the zoning when it passed the new Comprehensive Zoning By-law. The Tribunal finds that in this regard 2006316’s satisfies the requirements in s. 34(19) of the Planning Act to be a person who is eligible to bring an appeal.
21Regarding the reasons for appeal listed in 2006316’s appeal letter, the Tribunal agrees with the Participant that many of the stated reasons summarize events and dates; however, the reasons also include the statement that the Town failed to recognize 2006316’s application to amend the old Comprehensive Zoning By-law. 2006316’s Planning Justification Report, dated January 24, 2021, and letters from 2006316’s planner, dated July 4, 2021 and August 29, 2021, which are attached to the Appeal Form, elaborate on 2006316’s intended zoning for its lands and provide explanations on how it would be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform with applicable provincial and official plans. The Tribunal finds that 2006316’s Notice of Appeal, through its reference to the attachments, complies with the requirements in s. 34(19) and s. 34(19.0.1) of the Planning Act.
22Regarding the validity of the Tribunal’s decision in Tribunal Case No. OLT-21-001619 and whether the proposed settlement in the present case is based on it, the Tribunal notes that a review of that decision is not before the Tribunal. It also notes that each case before the Tribunal is adjudicated based on its specific merits. The Tribunal will hear evidence and submissions at the settlement hearing regarding the planning merits of 2006316’s appeal and will make its decision based on the evidence and submissions and the application of the relevant law and policy.
23Based on these findings, the Tribunal finds that the appeal is valid.
The Proposed Settlement
1. Issues
24The issues that the Tribunal must address when adjudicating a zoning by-law appeal are whether the zoning by-law:
a) is consistent with policy statements issued by the Minister (in this case, the PPS);
b) conforms with applicable provincial plans (in this case, the Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”));
c) conforms with applicable official plans (in this case, the County of Simcoe (“County”) Official Plan and the Town’s Official Plan); and
d) represents good planning.
25The Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Planning Act and have regard to the decision made by Town Council passing the zoning by-law and the information and materials that Town Council considered when making its decision (as required under s. 2.1(1) of the Planning Act).
2. Evidence and Submissions
26Celeste Phillips is a land use planner retained by 2006316. She provided oral testimony at the settlement hearing. The Tribunal qualified her to provide opinion evidence in the area of land use planning.
27The Town supports the proposed settlement. It did not provide evidence at the settlement hearing. Queen’s Court took no position.
28Ms. Phillips stated that 2006316’s lands consist of a 1.2 hectare triangular parcel with an existing single detached dwelling located on it. She said the proposed settlement would result in a site-specific change of zoning for 2006316’s lands from “D – Deferred Development” to “R3-92 – Residential”. She said the proposed development would consist of 31 freehold townhouses each with access to a municipal road and the proposed zoning would include site-specific zoning standards for setbacks and lot coverage.
29Ms. Phillips opined that, with the proposed changes envisioned through the proposed settlement, the new Comprehensive Zoning By-law would be consistent with the PPS. She said 2006316’s lands are within the built boundary of a settlement area under the PPS. She stated that, with the proposed changes, the new Comprehensive Zoning By-law would facilitate efficient development with access to full municipal services and it would add to the range of housing options in the area.
30Ms. Phillips opined that, with the proposed changes, the new Comprehensive Zoning By-law conforms with the Growth Plan. She said that, with the proposed changes, the new Comprehensive Zoning By-law would add to the density of housing stock in the area and provide for intensification. She reiterated that it would facilitate efficient development with access to full municipal services and add to the range of housing options in the area.
31Ms. Phillips opined that, with the proposed changes, the new Comprehensive Zoning By-law conforms with the County’s Official Plan. She stated that 2006316’s lands are designated “Settlements” in the County Official Plan to which growth is intended to be directed. She said that, with the proposed changes, the new Comprehensive Zoning By-law would provide for intensification and assist the County in meeting its intensification targets for the area.
32Ms. Phillips opined that, with the proposed changes, the new Comprehensive Zoning By-law conforms with the Town’s Official Plan. She stated that 2006316’s lands are designated as “Neighbourhood Area” in the Town’s Official Plan. She said that, with the proposed changes, the new Comprehensive Zoning By-law would help to provide a diversity of housing stock in the Town. She said 2006316’s lands are located close to parks, schools and other amenities and along a major roadway providing appropriate access. She said that, with the proposed changes, the new Comprehensive Zoning By-law satisfies the Official Plan’s criteria for infill development set out in policy 2.2.6.12, including those on the type and scale of development, access to municipal services, road network capacity, compatibility, height, massing and scale, and urban design and built form.
33Ms. Phillips stated that she has had regard to the matters of provincial interest set out in s. 2 of the Planning Act.
Findings
34Based on Ms. Phillips’s opinion evidence, the Tribunal finds that, with the proposed changes, the new Comprehensive Zoning By-law is consistent with the PPS and conforms with the Growth Plan, the County’s Official Plan, and the Town’s Official Plan. The Tribunal has had regard to the matters of provincial interest in s. 2 of the Planning Act as well as to the decision of Town Council and the information and materials that Town Council considered when making its decision. The Tribunal finds that, with the proposed changes, the new Comprehensive Zoning By-law constitutes good planning.
REQUEST TO APPROVE THE REST OF THE COMPREHENSIVE ZONING BY-LAW
35The Town requested on consent that the Tribunal deem the new Comprehensive Zoning By-law to have come into force for all areas of the Town to which it applies, except for lands associated with ongoing appeals.
36The Tribunal agreed to make the order, as requested.
ORDER
37The Tribunal orders that, in accordance with s. 34(31) of the Planning Act, Zoning By-law No. 2022-17 is deemed to have come into force on the day that it was passed for all areas of the Town to which Zoning By-law No. 2022-17 applies, save and except for those lands, areas, and by-law sections listed in Attachment B attached to this Order and Decision.
38The Tribunal orders that the 2006316 appeal is allowed in part and Zoning By-law 2022-17 is amended as set out in Attachment A attached to this Order and Decision. In all other respects, the Tribunal orders that the 2006316 appeal is dismissed.
39This Order and the approval of the amendment to Zoning By-law No. 2022-17 as set out in Attachment A attached to this Order and Decision is without prejudice to the disposition of the appeal listed in Attachment B attached to this Order and Decision and the Tribunal retains jurisdiction to consider and approve amendments to Zoning By-law No. 2022-17, as approved herein, as may be appropriate to dispose of the outstanding appeal before the Tribunal listed in Attachment B attached to this Order and Decision.
“Hugh S. Wilkins”
HUGH S. WILKINS
VICE-CHAIR
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 “B”
SUBJECT OF APPEAL
- The following portions of Zoning By-law 2022-17 as they relate to 221 Fox Street:
Schedule “A”
Definition of Watercourse in Part 3.0
Section 4.18.2