Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 11, 2023

CASE NO(S).: OLT-22-004402

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

Applicant and Appellant: Ambiance Fine Homes Inc.

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

Purpose: To permit a textile manufacturing, processing, and machining business

Property Address: 1524 Highway 124

Municipality: Municipality of Whitestone

OLT Case No.: OLT-22-004402

OLT Lead Case No.: OLT-22-004402

OLT Case Name: Ambiance Fine Homes Inc. v. Whitestone (Municipality)

Heard: March 10, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

Ambiance Fire Homes Inc.

Andy Margaritis

Municipality of Whitestone

Mark Kemerer

Dr. Fiona Hunter and Dr. Michael Bidochka

Matthew Di Vona

MEMORANDUM OF ORAL DECISION DELIVERED BY S. deBOER AND S. MASTORAS ON MARCH 10, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision results from a Settlement Hearing that was conducted with respect to the appeal by Ambiance Fire Homes Inc. (the “Applicant”) for the failure of the Municipality of Whitestone (the “Municipality”) to make a decision within the statutory timeframe of 90 days for the application to amend Zoning By-law No. 07-2018 (the “ZBL”) pursuant to s. 34(11) of the Planning Act (the “Act”).

2The Subject Property is municipally known as 1524 Highway 124, Municipality of Whitestone. The Subject Property is located approximately 40 kilometres east of the Town of Parry Sound. The legal description of the property is Part of Lots 40 and 41, Concession A, Municipality of Whitestone. The total area of the property is approximately 102 hectares and is currently zoned as “M2 – Industrial Pit”. The Applicant proposed to rezone a portion of the Subject Property fronting onto Highway 124 as “M1 – Industrial” to permit the operation of an office, textile manufacturing, processing and machining business.

3The Subject Property is surrounded by largely undeveloped lands with a minimal amount of small industrial and agricultural operations to the north. To the east are wetlands and a Class “B” sand and gravel pit is in operation on the abutting property to the west of the Subject Lands.

APPLICATION HISTORY

4The original application was received by the Municipality in April 2022. The application was seeking a zoning by-law amendment to have approximately 4.45 hectares fronting onto Highway 124 rezoned from the aforementioned M2 – Industrial Pit to M1 – Industrial. The permitted uses in the M1 zone include:

a) Residential Uses

• a dwelling unit or units permitted under the provisions of this By-law;

• converted dwelling;

• a garden suite.

b) Commercial Uses

• a building supply outlet;

• a parking garage, structure or lot;

• a bulk fuel storage establishment;

• a service station or public garage;

• a farm implement dealer;

• a restaurant, licensed or unlicensed;

• a marina;

• a business or professional office;

• a laundromat;

• a motor vehicle sales and service establishment; or

• kennel

c) Industrial Uses

• a car wash;

• an airport;

• a fabricating, processing or manufacturing establishment;

• an assembly plant;

• a saw mill;

• a contractor or tradesman shop or yard;

• commercial composting facilities;

• a seed cleaning plant;

• a farm produce storage area;

• a slaughter house;

• a feed mill, open storage of goods and materials;

• a fertilizer mixing plant;

• a truck or bus storage terminal;

• a machine or welding shop;

• a warehouse;

• a salvage yard; or

• a municipal garage.

5Previous to the submittal of the application, the Applicant undertook a preliminary environmental review which was completed and submitted to the Municipality in January 2022. The results of the study were that there were a few areas on the Subject Property that would need some minor remediation, however, the report stated that the rezoning request could proceed.

6In May 2022, the Applicant submitted more detail to the Municipality as to the intent of the rezoning, that included a light industrial use, which could potentially employ up to 50 people.

7Based on the totality of the application, John S. Jackson, from John Jackson Planner Inc., a professional planner for the Municipality, submitted a report on the matter which stated that there were no Provincial or Official Plan conflicts, and that the application should proceed to a public meeting. Following the public meeting of July 5, 2022, it was recommended by Council resolution that a peer review be conducted of the “planning and socio-economic issues associate with the application”.

8On September 2, 2022, the Applicant filed an appeal to the Tribunal for the failure of council to make a decision on the application within the statutory timelines. A Case Management Conference (“CMC”) was held on January 10, 2023. Prior to the CMC, the Tribunal was informed that the parties had reached a settlement, and a request for a settlement hearing before the Tribunal was then scheduled to consider the Settlement Proposal.

PLANNING EVIDENCE

9On the day of the hearing, the Tribunal heard testimony from a single planning witness. The witness presented was John S. Jackson, the Planner who had carriage of the application for the Municipality. The Applicant’s planning witness, Mr. Wayne Simpson was unable to attend the hearing, but did submit an Affidavit in support of the settlement on behalf of the Applicant on March 6, 2023. Mr. Simpson’s Affidavit included an Acknowledgement of Expert’s Duty and a Curriculum Vitae. This evidence in support of the settlement was acknowledged by the Tribunal. Mr. Jackson was affirmed and qualified without refute to give expert opinion evidence in land use planning.

Provincial Policy Statement, 2020 (the “PPS”)

10Mr. Simpson’s affidavit gave testimony and opinion that the Settlement Proposal is consistent with the PPS as it meets the following policies:

• Section 1.1.1 Healthy, liveable and safe communities are sustained by:

a) promoting efficient development and land use patterns which sustain the financial well-being of the Province and municipalities over the long term;

c) avoiding development and land use patterns which may cause environmental or public health and safety concerns;

• Section 1.1.4.1 Healthy, integrated and viable rural areas should be supported by:

a) building upon rural character, and leveraging rural amenities and assets;

f) promoting diversification of the economic base and employment opportunities through goods and services, including value-added products and the sustainable management or use of resources

• Section 1.1.5.2 On rural lands located in municipalities, permitted uses are:

a) the management or use of resources

• Section 1.1.5.4 Development that is compatible with the rural landscape and can be sustained by rural service levels should be promoted.

• Section 1.1.5.7 Opportunities to support a diversified rural economy should be promoted by protecting agricultural and other resource-related uses and directing non-related development to areas where it will minimize constraints on these uses.

• Section 1.3.1 Planning authorities shall promote economic development and competitiveness by:

b) providing opportunities for a diversified economic base, including maintaining a range and choice of suitable sites for employment uses which support a wide range of economic activities and ancillary uses, and take into account the needs of existing and future businesses;

c) facilitating the conditions for economic investment by identifying strategic sites for investment, monitoring the availability and suitability of employment sites, including market-ready sites, and seeking to address potential barriers to investment;

11Regarding Section 2.0 of the PPS concerning management of resources, Mr. Simpson’s affidavit relied on the Azimuth Environmental Consulting Inc. report which was submitted to the Municipality on January 19, 2002. The report concluded that the “Suggested Development Envelope” was in a “Low Development Constraint” and recommended that the proposed rezoned area maintain a 30-metre setback for any wetlands and watercourses in the surrounding area.

12Mr. Simpson’s affidavit gave opinion that the proposal as presented will maintain the recommended setbacks and as such, is consistent with the PPS. Mr. Jackson agreed with the opinion of Mr. Simpson’s affidavit that the proposal is consistent with the PPS.

Growth Plan for Northern Ontario 2011 (the “GPNO”)

13The GPNO is a part of the Places to Grow Act. The Purpose of this Act is to:

a. to enable decisions about growth to be made in ways that sustain a robust economy, build strong communities and promote a healthy environment and a culture of conservation;

b. to promote a rational and balanced approach to decisions about growth that builds on community priorities, strengths and opportunities and makes efficient use of infrastructure.

14Section 2.2.2 of the GPNO states that the Province of Ontario will focus economic development strategies on the existing and emerging priority economic sectors and the distinct competitive advantages that Northern Ontario can offer within sectors that include:

a) advanced manufacturing

g) minerals sector and mining supply and services

15In Mr. Simpson’s opinion, the proposed rezoning does conform to the GPNO and the rezoning will help contribute to the success of the Plan. Mr. Jackson agreed with the opinion of Mr. Simpson concerning the GPNO.

Official Plan of the Municipality of Whitestone (the “OP”)

16Mr. Simpson stated through his Affidavit that the Subject Property is designated “Rural”. Permitted uses of this designation include “resource extraction – pits and quarries by rezoning” and “commercial/industrial by rezoning”. The proposal before the Tribunal is compatible with both categories. This was also affirmed in Mr. Simpson’s submission in that the proposal meets both zoning provisions. As such, the proposed rezoning of the specific area can be permitted. The settlement does limit the activities that can be performed in the newly designated commercial/industrial zoning to:

a. a business or professional office

b. a fabricating, processing or manufacturing establishment excluding a textile/weaving manufacturing establishment that requires the application of water, solutions or dyes in the manufacturing process;

c. a machine or welding shop; and

d. a warehouse.

17The settlement will also have a “holding” or “H” designation on the new commercial/industrial zoning until the Municipality has received and is satisfied with a planning justification report and an engineering report. The engineering report will contain mitigation measures that will need to be satisfied before the holding symbol can be lifted. In Mr. Simpson’s opinion, the proposal satisfies the criteria as requested by the Municipality and will conform with the OP. Mr. Jackson was in agreement with Mr. Simpson that the rezoning and conditions agreed upon will allow the Proposal to conform to the OP.

Conclusionary Opinion

18In Mr. Simpson’s opinion through his Affidavit, the Proposal is consistent with the PPS, the GPNO and the OP. The rezoning will allow for the continued operation of the aggregate pit. The rezoning area that is being requested is less than 5% of the total area of the Subject Property. The “exception” to limit the proposed uses is appropriate and reasonable for the Subject Property. In Mr. Simpson’s opinion, the proposal represents good land use planning.

19In Mr. Jackson’s opinion, the proposed rezoning is consistent with the PPS and conforms to the GPNO. The limited size of the rezoning is appropriate as the rezoning area is next to a highway and is isolated from neighbours. The proposed light industrial use will create a much-needed employment opportunity. The agreed upon site plan control and holding symbol satisfies the Municipality’s concerns with natural heritage matters. In his opinion, the proposal represents good land use planning, and he recommends the approval of the proposal.

ANALYSIS AND FINDINGS

20The Tribunal accepts the uncontested expert planning evidence and opinions of both Mr. Simpson through his Affidavit and the expert opinion evidence of Mr. Jackson. The Tribunal finds that the proposal as presented, has regard to matters of Provincial interest, is consistent with the PPS and conforms to the GPNO.

21The Tribunal finds that the Proposal does not impede the current aggregate operation and the rezoned area’s site plan control measures satisfy the Municipality’s natural heritage priorities. Therefore, the Tribunal is satisfied that the Proposal conforms with the OP and will also act to provide much needed employment opportunities.

22The Tribunal finds that the holding designation, in the proposed amendment to the ZBL, satisfies the Municipality’s concerns and is in the public interest. Therefore, it is appropriate to issue the final Order.

ORDER

23THE TRIBUNAL ORDERS that the appeal is allowed, in part, and that By-law 07-2018 of the Municipality of Whitestone is hereby amended as set out in Attachment 1 to this Order.

“s. deBoer”

s. deboer

MEMBER

“Steven T. Mastoras”

STEVEN T. MASTORAS

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