Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 31, 2023
CASE NO(S).: OLT-21-001765
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant: Jodi Harper
Subject: By-law No. 2021-147
Municipality: City of Kawartha Lakes
Municipal File No.: D06-2021-013
OLT Lead Case No.: OLT-21-001765
OLT Case No.: OLT-21-001765
OLT Case Name: Harper v. Kawartha Lakes (City)
Heard: September 8, 2022 by video hearing
APPEARANCES:
| Parties | Counsel*/Representative |
|---|---|
| Jodi Harper ("Applicant/Appellant") | Self-represented |
| City of Kawartha Lakes ("City") | Edward B. Veldboom* |
MEMORANDUM OF ORAL DECISION DELIVERED BY JATINDER BHULLAR ON SEPTEMBER 8, 2022 AND ORDER OF THE TRIBUNAL
Introduction
1This was the first Case Management Conference ("CMC") and a hearing respecting an appeal filed by Jodi Harper ("Applicant/Appellant") against the adoption of Zoning By-law Amendment No. 2021-147 (the "ZBLA") by the City of Kawartha Lakes (the "City") pursuant to s. 34(19) of the Planning Act. This ZBLA amended the Village of Bobcaygeon Zoning By-law No. 16-78 ("Zoning By-law 16-78") and only partially approved the requested Zoning By-law Amendment ("ZBA") sought by the Applicant/Appellant.
2The Applicant/Appellant's property is municipally known as 12 Mansfield Street, Bobcaygeon ("Subject Property"). The Applicant/Appellant proposes to establish and carry out a 'Bruncheonette' business. In order to do so, the ZBA requested accessory commercial uses and to amend the development standards primarily mainly in the area of on-site parking.
3The Tribunal reviewed the Affidavit of Service sworn by Ian Walker on August 8, 2022 as Exhibit 1a. The Tribunal notes that a previous Affidavit of service for a hearing that was subsequently adjourned was sworn by the same person and was marked for the record as Exhibit 1.
4There were no requests for granting of party or participant status received by the Tribunal.
Witness and Evidence
5Ian Walker was affirmed by the Tribunal. Mr. Walker presented his credentials and acknowledgement of expert's duty signed affirmation. Having duly considered Mr. Walker's Curriculum Vitae and on consent of the parties, Mr. Walker was qualified by the Tribunal to provide opinion evidence in the area of land use planning.
6Mr. Walker in his testimony referred to the staff report on file. He noted that he had authored this report. He further added that his report recommended that the Applicant/Appellant requested ZBA be approved in full, amending the ZBLA which partially approved the Applicant/Appellant request.
7Mr. Walker provided site context for the Subject Property as follows:
- North: Park Street; Bobcaygeon Beach Park; Medium Density Residential
- East: Institutional (Christ Anglican Church)
- South: Low and Medium Density Residential
- West: Mansfield Street; Low Density Residential
Mr. Walker further described the performance standards that have been varied and now agreed to between the parties as;
| Zone Standard: | 'R2' Zone: | Proposed 'R2-**' Zone: |
|---|---|---|
| Permitted Uses | As listed | Accessory commercial uses, including a bruncheonette; bed and breakfast; bakery; bistro; coffee house; diner; snack bar; and tea room |
| Permitted Yards for Accessory Uses | Side or Rear Yard | Front, Side or Rear Yard |
| Minimum Parking Spaces | 8 spaces for all uses | 5 spaces for all uses (3 spaces for Accessory Use) |
| Minimum Loading Spaces for Accessory Uses | 1 space | 0 spaces |
| Landscaping (Section 3.15) | 6.0 metres in a Commercial zone abutting an Open Space Special Use (02) Zone (reduced to 3.0 metres where a berm or opaque fence 2 metres in height provided) | 0 metres |
| Definition of 'Bruncheonette' | N/A | A building or structure or part thereof in which primarily light breakfast and lunch fare is prepared and associated dining facilities provided. |
8Mr. Walker reviewed and provided his opinion evidence for the applicable sections or policies based on the material submitted with the application as well as his Report Number PLAN2021-056 for the council meeting of October 6, 2021. He opined that:
i. The ZBA is consistent with the Provincial Policy Statement 2020 (PPS 2020) as it uses existing infrastructure while contributing towards efficient and resilient land uses in a Settlement area.
Planning for sewage, water, and stormwater shall be in accordance with Section 1.6.6 of the PPS. This includes the efficient use and optimization of existing municipal sewage and water services in a sustainable manner, and the use of low impact development techniques for stormwater management. The proposed development will utilize the existing municipal infrastructure.
Development and site alteration shall be directed in accordance with the policies of Section 2 and 3 of the PPS. This includes natural heritage and hydrologic features (Section 2), and natural and man-made hazards (Section 3). There are no natural heritage or hydrologic features on the site, and no natural or man-made hazards present. A Species at Risk (SAR) Assessment indicates the proposal would not likely contravene the Endangered Species Act (ESA).
ii. The ZBA conforms with the Growth Plan for the Greater Golden Horseshoe 2019, as amended (the "Growth Plan") as per section 2.2.1 it represents growth in a Settlement area. It further achieves aspects of a complete community as it provides for convenient access to stores and services.
iii. While the Subject Property is located within the Trent Source Protection Plan (TSPP) and in the Kawartha-Haliburton Source Protection Area ("SPA"); the Application has received due positive reviews and no objections.
iv. The ZBA conforms with the City Official Plan (COP) and the proposal conforms with the 'Urban' designation policies which permit a full range of land uses including residential, commercial, industrial and institutional uses. In further elaboration he noted that the proposed accessory uses would be similar to a restaurant use, which are encouraged to locate along arterial roads. Given the compact nature and proximity to downtown, the site is also accessible by pedestrian traffic.
v. With respect to the ZBL he stated that the proposal requests the following reliefs:
In relation to the proposed reliefs requested through this application, the applicant has requested relief from the following:
- A reduction to the required parking for all uses;
- A reduction to the required loading spaces;
- A reduction of the minimum landscaping requirement abutting an '02' zone; and
- Permission for the accessory commercial buildings to be located in the front yard.
9Mr. Walker opined that the proposal would not create off-site impacts with provided parking onsite as well as under-utilized on-street parking.
10Mr. Walker concluded that having duly shown necessary consistencies and conformities, the proposal has regard for s. 2 of the Planning Act and Provincial Interest and represents good land use planning.
11Having regard for the material that was before the approval authority when it made its decision, the information on file and the uncontroverted and unopposed land use planning opinion evidence of Mr. Walker, the Tribunal finds that, the ZBA has appropriate regard for the Provincial Interest, is consistent with Provincial Policy Statement 2020, conforms with the Growth Plan, the Trent Source Protection Plan and City Official Plan and represents good land use planning.
Order
12THE TRIBUNAL ORDERS that By-law No. 2021-147 to amend the Village of Bobcaygeon Zoning By-law No. 16-78 for the City of Kawartha Lakes is further amended as per attached Schedule 1 to this Order.
13Pursuant to Rule 24.3 of the Tribunal's Rules of Practice and Procedure, this Order shall be, and was, effective as of the date of the hearing of this Appeal, and the delivery of the Oral Decision and Order of the Tribunal, on September 8, 2022.
"Jatinder Bhullar"
JATINDER BHULLAR 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.
SCHEDULE 1
By-Law 2021 – 147, as approved and amended on September 8, 2022
Appendix "D" to Report PLA2021-056 File No: D06-2021-013
The Corporation of the City of Kawartha Lakes
By-Law 2021 – 147
As amended by Order of the Ontario Land Tribunal OLT Case No. OLT-21-001765
A By-law to Amend the Village of Bobcaygeon Zoning By-law No. 16-78 to Rezone Land within the City of Kawartha Lakes
[File D06-2021-013, Report PLAN2021-056, respecting Plan 70 Fourth Range Part of Lots 7 and 8; 57R-8768 Parts 1 and 2, Former Village of Bobcaygeon, identified as 12 Mansfield Street – Harper]
Recitals:
Section 34 of the Planning Act, R.S.O. 1990, c.P.13 authorizes Council to determine the appropriate zoning categories and provisions assigned to land.
Council has received an application to amend the categories and provisions relating to a specific parcel of land to permit a bruncheonette as an additional accessory use on the subject land.
A public meeting to solicit public input has been held.
Council deems it appropriate to rezone the Property.
Accordingly, the Council of The Corporation of the City of Kawartha Lakes enacts this By-law 2021-147.
Section 1:00 Zoning Details
1.01 Property Affected: The Property affected by this by-law is described as Plan 70 Fourth Range Part of Lots 7 and 8; 57R-8768 Parts 1 and 2, Former Village of Bobcaygeon, City of Kawartha Lakes.
1.02 Textual Amendment: By-law No. 16-78 of the Village of Bobcaygeon is further amended to add the following section to Section 6.3:
'o. Urban Residential Type Two Exception Fifteen (R2-S15) Zone
Notwithstanding Section 6.1, on land zoned R2-S15 the following uses are also permitted accessory to the primary residential use:
i. Bruncheonette ii. Bed and breakfast iii. Bakery iv. Bistro v. Coffee house vi. Snack bar vii. Tea room
Notwithstanding Sections 6.2, 3.1, 3.13, 3.14 and 3.15, on land zoned R2-S15 the following Zone provisions apply to the permitted accessory commercial uses:
A building for accessory commercial uses may be located within the front yard.
Minimum number of parking spaces 3 (As amended by the OLT)
Minimum number of loading spaces 0 (As amended by the OLT)
A landscaping buffer or visual screening shall not be required abutting an O2 zone.
For the purposes of Subsection 6.3 o., a Bruncheonette shall be defined as "A building or structure or part thereof in which primarily light breakfast and lunch fare is prepared and associated dining facilities provided".'
1.03 Schedule Amendment: Schedule 'A' to By-law No. 16-78 of the Village of Bobcaygeon is further amended to change the zone category from the 'Urban Residential Type Two (R2) Zone' to the 'Urban Residential Type Two Exception Fifteen (R2-S15) Zone' for the land referred to as 'R2-S15', as shown on Schedule 'A' attached to this By-law.
Section 2:00 Effective Date
2.01 Effective Date: This By-law shall come into force and take effect on the date it is finally passed, subject to the provisions of Section 34 of the Planning Act R.S.O. 1990, c.P.13.
By-law read a first, second and third time, and finally passed, this 19 day of October, 2021.