ISSUE DATE: May 03, 2023
CASE NO(S).: OLT-22-004278
PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant: Mark Prokopchuk
Applicant: Ontario Aboriginal Housing Support Services Corporation
Subject: Description: Zoning By-law ZBA to facilitate the construction of a single-story transitional housing facility for Indigenous youth
Reference Number: Z01-2022
Property Address: Lots 37, 38, 44, 45, 46, 47, 48 and 49, Plan SM201, frontage on Partridge Street and Dorothy Street
Municipality/UT: Atikokan/Rainy River
OLT Case No.: OLT-22-004278
OLT Case Name: Prokopchuk v. Atikokan (Town)
Heard: March 8 and 9, 2023, via video conference
APPEARANCES:
| Parties | Counsel |
|---|---|
| Mark Prokopchuk | Rene Larson |
| Town of Atikokan | Larry Eustace |
| Ontario Aboriginal Housing Support Services Corporation | Steven O’Melia |
MEMORANDUM OF A DECISION ORDERED BY GREGORY J. INGRAM AND ERIC S. CROWE ON MARCH 9, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is based on an appeal by Mark Prokopchuk (the “Appellant”) related to the passage of By-law 29-22 (July 27, 2022), enacted by the Council of the Town of Atikokan to permit a 20-unit Group Home sponsored by the Ontario Aboriginal Housing Support Services Corporation, intended to provide transitional housing for youth/young adults on lands having frontage on both Partridge and Dorothy Streets.
2The purpose and effect of the proposed Zoning By-Law Amendment (“ZBLA”) is to rezone lands legally described as LOTS 37, 38, 44, 45, 46, 47, 48 and 49, Plan SM201 from the Residential Multiple (R2) Zone to the Residential Multiple Exception Holding (R2-2) (H) Zone. The approved zoning amendment restricts permitted uses to an apartment building, a retirement home or long-term care home or a group home. The ZBLA also establishes that a group home shall be defined as a residential building comprised of up to 20 internal apartment dwelling units together with accessory space and uses necessary to the operation of the facility that provides transitional housing support for youth who live under responsible 24-hour supervision. The proposed zoning amendment also includes a Holding (H) provision which would require the passage of a deeming by-law and the approval of a site plan agreement prior to the issuance of a building permit.
3Mr. Prokopchuk contends that the proposed housing does not conform to the current in force group home provisions and definitions which permit such uses in residential zones, and therefore should have more appropriately proceeded by way of Official Plan (“OP”) and Zoning amendments as a proposed Institutional use pursuant to Sections 4.3.13, and 4.3.14 of the OP.
4A Case Management Conference (CMC) was held on December 8, 2022, with respect to this matter. During the CMC it was agreed by Counsel to prepare and submit a draft Procedural Order (PO) with an Issues List (IL) prior to December 24, 2022. The hearing on the merit of the appeal was therefore scheduled for a total of three days to commence Wednesday March 8, 2023, at 10:00 a.m.
5The issues that the Tribunal must address when adjudicating a ZBL amendment appeal are whether the proposed amendment:
a. Is consistent with policy statements issued by the Minister (in this case, the Provincial Policy Statement, 2020 (“PPS”).
b. Conforms with applicable regional and municipal plans. In this case, the Growth Plan Northern Ontario (GPNO) and the Atikokan Official Plan.
c. Conforms with the nature and intent of applicable Zoning By-laws.
d. Represents good planning.
6It is of note that the PO was not received by the Tribunal on the date noted above and therefore was not approved and only used as a guideline for the hearing.
ORDER OF EVIDENCE AND WITNESSES
7It was agreed that the following Order of Evidence and Witnesses would apply for the Hearing:
a. S. Dodd-Smith, Planning Expert (Applicant, Ontario Aboriginal Housing Support Services Corporation). Provided a factual overview of the application.
b. M. Prokopchuk, lay witness (Appellant)
c. S. Huzan, Planning Expert (Appellant)
8Ms. Dodd-Smith is a Registered Professional Planner with the Ontario Professional Planners Institute and a Full Member of the Canadian Institute of Planners. She has been qualified as an expert witness in the past by the former Local Planning Appeal Tribunal and the Ontario Municipal Board. Her professional experience includes preparation and review of municipal official plan policies, comprehensive zoning by-laws and input to the Provincial Policy Statement implementation. After reviewing Ms. Dodd-Smith’s professional qualifications and confirmation of her Acknowledgement of Expert Duties, the Tribunal, on consent, qualified Ms. Dodd- Smith to provide expert opinion evidence in the field of land use planning.
9Mr. Prokopchuk is a resident of Atikokan and lives at 231 Dorothy St. which is adjacent to the proposed development. He indicated that he is a business software application developer by profession. He indicated that he is not an expert in land use planning and that he is appearing as a ‘lay’ witness.
10Mr. Huzan has experience in land use planning through his work in both the public and private sectors. He has been involved in a broad range of planning matters which include the consideration of ZBLA’s. He is not a registered professional planner or a member of the Canadian Institute of Planners.
11Counsel for the Applicant asked questions of clarification to Mr. Huzan regarding his work experience with various Ministries of the Ontario Government that he referenced during qualification as they were not reflected in the CV provided. Mr. Huzan indicated that the experience was as an intern in and around 1979.
12After reviewing Mr. Huzan’s professional qualifications and confirmation of his Acknowledgement of Expert Duties, the Tribunal, with comments and concerns raised by the Applicant’s counsel, qualified Mr. Huzan to provide expert opinion evidence in the field of land use planning.
13The Tribunal qualified Mr. Huzan based on thirty years of planning related experience with the City of Thunder Bay, along with over twenty years of related experience as a self-employed planning consultant.
OPENING STATEMENTS
14Mr. Larson, Counsel for the Appellant, shared that his client feels that it is not appropriate for the Town to create a new definition for ‘group home’ as it is outside the bounds of the current zoning bylaw and OP. He also emphasized that his client feels that the proposed development is outside of the character of the area.
15Mr. O’Melia, Counsel for the Applicant, provided an overview of the organization he is representing. He emphasized that the application is about housing for youth who have aged out of the youth support system and the facility is meant to support the transition to independent living in the community. He also summarized the current land use designation as R2, permitting a variety of uses, has a previously established plan of subdivision and that the ‘group home’ designation is permitted in all zones of Atikokan. He went on to say that if the application was for five or fewer inhabitants there would be no grounds for an appeal. He concluded by noting that the ZBLA was approved on June 16, 2022, the Town Planner supported the application and he asked that the Tribunal review the decision of Atikokan Counsel.
16Mr. Eustace, Counsel for Town of Atikokan, indicated that he agreed with the Counsel for the Applicant and added that the ZBLA is in the best interest of the Town.
GENERAL OVERVIEW OF THE APPLICATION
17Ms. Dodd-Smith provided a factual overview of the property location related to its place within the region and specifically within the Town of Atikokan. She noted that the proposed development site is on an approved plan of subdivision and is fully serviced by municipal services. She reviewed the project design, described its location next to a hospital, a place of worship, police station and several residential homes. She noted that the proposed development would be placed on property already zoned R2 and within an area designated by the Atikokan OP as multi-residential and residential designation. She suggested that the only definition close to ‘institution’ is ‘group home’ in the Comprehensive Zoning By-law (15-10). She also confirmed that the Zoning By-Law in question is site specific.
EVIDENCE
APPELLANT EVIDENCE
18Mr. Prokopchuk, provided evidence as a ‘lay’ witness related to the following topics:
a. Public Consultation: Mr. Prokopchuk opined that the public consultation was limited and not as inclusive of all neighbouring residents as it should have been. He also offered that the Applicant should have held a meeting with the residents to better explain the plan for the property. He also expressed concerned for possible licensing issues for the facility given his belief that there isn’t a definition in the ZBL and OP that aligns with the planned institutional use. It was also suggested by the Appellant that there is confusion as to who will be housed in the new facility.
b. Land Use Planning: Mr. Prokopchuk offered that the proposed land use is incompatible with existing single dwelling uses and its bulk will overshadow the single dwellings already in the neighbourhood. He also asserted that the proposed property should be preserved to meet future housing needs in support of economic develop.
c. Official Plan and Provincial Policy Statement: Mr. Prokopchuk felt that the OP of the Town of Atikokan is outdated as there have been two updates of the Provincial Policy Statement (PPS) since it was created.
d. Definitions in Zoning By-Law and Official Plan: Mr. Prokopchuk asserted that it is unreasonable to apply the definition of a ‘Group Home’ in the Zoning By-Law to a development that will house 20 individuals and suggested that the Town should consider an amendment to the OP.
e. PPS: Mr. Prokopchuk referred the Tribunal to Subsection 1.6.3 of the PPS and suggested that the municipality should consider using “existing infrastructure and public service facilities” instead of constructing a new building. He suggested a vacant school would be a possible option.
f. Additional Assessments: It was also asserted by Mr. Prokopchuk that additional studies should have been conducted such as a feasibility/needs assessment and an environmental impact study related to transitional housing before the ZBLA was passed.
g. Site Plan: Mr. Prokopchuk explained that he and his neighbours were concerned about the traffic flow into and off the property, and parking lot placement
CROSS EXAMINATION
19Under cross examination by Counsel for the Applicant, Mr. Prokopchuk confirmed his position on several issues. He indicated that he does not object to the proposed type of housing existing but feels that existing vacant buildings should be used first. He also noted that in principle, he does not agree with institutional living even though he acknowledged that some kind of housing may be needed. Mr. Prokopchuk said that he understands that an apartment building could be built on the subject property without a ZBLA. Mr. Prokopchuk indicated that he and many other residents participated in the public meeting and were given opportunities to ask questions. It was his opinion that attendees often felt that answers were unsatisfactory or not provided at all. He also acknowledged that it was a good first meeting but felt that people needed time to process the information and would have benefitted from a further public meeting.
QUESTION OF CLARIFICATION
20Mr. Prokopchuk indicated that he is not opposed to the type of residence but would like to see it located in existing buildings that are smaller. He also said that he would have no concern with the proposed entrances/exits if they were moved to reduce traffic in the residential area. He stated that there have been conflicting messages around who will be living in the facility and the number of staff. Mr. Prokopchuk indicated that it is his assumption that the number of parking spaces reflects the need for the number of staff expected to work at the facility.
PLANNING EVIDENCE BY APPELLANT
PROVINCIAL POLICY STATEMENT 2020 (PPS)
21It is the opinion of Mr. Huzan that the Town of Atikokan By-law 29-22 is not consistent with PPS – 1.1.3.4. He believes that it does not provide the necessary land use development standards, creates conflicting definitions, and causes confusion.
22Mr. Huzan acknowledged that the PPS, like the OP, generally supports municipal policies that provide for the inclusion of group homes within residential areas in order to ensure facilities are properly available to meet the needs of the handicapped and disadvantaged persons. He told the Tribunal that the policies include 1.1.1(b), policy 1.1.1(f) and policy 1.4.3(b)1.
23In addition, he referenced policies 1.1.3.3 and 1.1.3.4 of the PPS which emphasize the importance that development does not disrupt the function and appearance of an existing residential area and that they facilitate the intensification and redevelopment in a compact form.
24Mr. Huzan referenced Section 8.4 of the ZB and noted that it had multiple requirements that are ignored in the new plan and replaced with 4 requirements. He also contends that By-law 29-22 introduces conflict and confusion through the new definition of housing. Apartment dwelling units is a new term added to the ZBL, but it is not defined, nor does it reference the existing definitions. He suggested that the new use is intended for “youth” however this term is undefined, and he asserted that such a reference also inappropriately ventures into the realm of people zoning.
GROWTH PLAN FOR NORTHERN ONTARIO 2011 (GPNO)
25It is Mr. Huzan’s position that GPNO does not provide any special land use exemptions regarding both persons in need of group home type facilities and aboriginal persons. It is his assertion that the normal criteria apply for the evaluation of proposed uses and proposed physical development proposals.
26In his testimony, Mr. Huzan opined that sections 4.2.1(b) and 7.5.1 of the GPNO are relevant to the application before the Tribunal in its reference to supporting economic development by providing a wide range of housing and to engage aboriginal communities in existing land use planning and policy processes. Mr. Huzan offered that if the application had focused on community needs related to economic development, job creation, employment, and investment, then both the GPNO and the PPS would better align with the development.
ATIKOKAN OFFICIAL PLAN (OP)
27Mr. Huzan opined that the Town of Atikokan in essence amended the OP through the mechanism of a ZBLA . He suggests that his analysis has revealed that the proposed use with 20 residents would exceed the 10 resident limit which is inherent in the intent of the existing OP. In his opinion, to amend this definition beyond 10 residents would require an OP amendment. It is his belief that the OP allows increases up to the statutory limit, only if assessment determines the proposal fits in the existing residential area.
28In supporting his position noted above, Mr. Huzan referred to definitions used in other provincial and municipality statutes. He contended that the definition of Group Homes found in Section 163(3) of the Municipal Act is more commonly used by municipalities in Ontario. He also shared a definition for ‘institution’ found in Section 62 of the Child, Youth and Family Services Act (2017). He proceeded to suggest that the City of Toronto Act also uses the Municipal Act definition for a “group home”. Mr. Huzan also shared that a recent Brampton Zoning By-Law amendment defined a facility with more that 10 units as a “Residential Care Facility” and such a use is only permitted in the Brampton “I”- Institutional Zone.
29In addition to the above noted position, Mr. Huzan believes that the character and design of the proposed use does not meet the compatibility criteria of the applicable Atikokan OP policies 4.3.2(b), 4.33, 4.35, 4.36, 4.38 and 4.12(c). He believes that the size and scale of the proposed facility conflicts with the residential area and would not be harmonious. Mr. Huzan contended that the facility will have about 10 times more on-site parking than a house, many staff arriving and leaving at various hours, excessive vehicle noise as well as the site having more exterior lighting from the building and vehicles.
30Mr. Huzan asserts that the new definitions in the ZBA are not minor and contravene the intent of the plan to allow comparatively smaller size group homes, consistent with provincial legislation. It is his opinion that an OP amendment is required.
31Mr. Huzan is of the opinion that given that the new facility will likely be supporting individuals from well beyond Atikokan, that it is more of an institution and should be located within an institutional area. He believes that this then requires an OP Amendment and an associated ZBLA which in turn would allow and better define the new use, and to also re-designate the appropriate lands from Residential to Institutional, and thereafter apply the standard institutional zoning provisions.
COMMUNITY NEED
32Mr. Huzan contents that the Town failed to demonstrate that the facility will meet the needs of the residents of Atikokan first, as called for in the PPS-2020 Policy 1.4.3(b)1, the Growth Plan Policy for Northern Ontario, 4.2.1(b) and Atikokan OP policy 2.2.3(a). He believes that the proposal is designed to support the Northwestern Ontario region.
33Mr. Huzan’s supported his position further by sharing his analysis of data from the 2021 Census of Canada. He suggested from his analysis that there are not enough persons that identify as Indigenous within Atikokan to justify building this facility. He extended this argument to note that if the facility is to serve a broader region, then it is more institutional in nature and should not be permitted in a residential zone.
34In his testimony, Mr. Huzan also suggested that the OP includes the condition that group homes, like other increases in density, must demonstrate that the facility “fits in” with the surrounding residential neighbourhood.
CROSS EXAMINATION OF APPELLANT PLANNER
35During Cross examination, Mr. Huzan testified that he was a provisional member of the Ontario Professional Planners Institute (OPPI) in the past and did not pursue this designation further although he had plenty of opportunities to do so.
36Mr. O’Melia brought to Mr. Huzan’s attention the Ontario Municipal Board (OMB) 2015 (Exhibit 7 - PL141249) decision where he indicated that he was unsuccessful at passing the OPPI. Mr. Huzan indicated that it was decades ago, and he couldn’t recall or give an explanation for the discrepancy.
37It was also suggested to Mr. Huzan that he had been approved three out of six times before the Board to provide expert testimony to which Mr. Huzan indicated that he could not recall if he had been disqualified previously.
MUNICIPAL ACT AND CITY OF TORONTO ACT (DEFINITON OF A GROUP HOME)
38Counsel for the Applicant suggested to Mr. Huzan that both the Municipal Act and Toronto Act have no relevance to the land use planning decision before the Tribunal. Section 163 of the Municipal Act is about licensing of ‘group homes’ and not land use planning.
39Mr. Huzan acknowledged that Section 163 is about licensing but held to the position that it provides a guiding principle for ‘group homes’ and should be considered by anyone establishing a group home.
2021 STATISTICS CANADA CENSUS
40Under cross examination, Mr. Huzan indicated that he felt he was an expert in data analysis given his wide experiences in land use planning. He did acknowledge that after a question of clarification that he had not been qualified as an expert in data by the Tribunal at any time.
41Under cross examination, Counsel questioned the relevance of the Statistics Canada data and the accuracy of the calculations made and shared with the Tribunal by Mr. Huzan. During cross examination several mathematical errors were uncovered and acknowledged by Mr. Huzan. The calculation errors were related to the total number of Indigenous youths living in the Atikokan area who would potentially access the transitional housing. The witness also suggested that data collected regarding Indigenous people is often inaccurate.
LAND USE AND DEVELOPMENT PLAN
42Under cross examination, Mr. Huzan indicated that the use of the property in this application is the last location for low or medium development in the town and should be preserved for future development/needs given that it is unknown, in his opinion, what is going to happen in the proposed facility. Counsel for the Applicant countered that the land has been approved for housing for over fifty years and remains vacant.
43Counsel for the Applicant, proceeded to ask Mr. Huzan about his testimony regarding the proposed site plan and building design. Mr. Huzan accepted that the hospital and place of worship are probably closer to the proposed building but contended that the existing houses still define what the ‘residential fabric’ of the area should be. He believes that the new building is not harmonious with the residential area.
ZONING BY-LAW (ZBL)
44Counsel continued cross examination by referring to provisions of the R2 of the ZBL. Provisions discussed were lot coverage and building height provisions. Mr. Huzan acknowledged that the proposed property development plan asks for a smaller building than what could be permitted under the existing zoning by-law and said he felt that was a good thing. In addition, he acknowledged that he believed using a holding provision for this application was a good decision by the Municipal Council.
PLANNING EVIDENCE BY APPLICANT
CONTEXT
45Ms. S. Dodd-Smith, Professional Planner, was called as a witness by the Applicant. In her opening, she indicated that her evidence would focus on planning and the Issues List. She indicated that ‘modern’ planning is focused on human rights more than it may have been in the past. It was noted by Counsel that the IL was prepared by the Appellant and that there have been no changes made by other Parties. Counsel also asked the Tribunal to note that the identification of an issue on the List does not mean that all parties agree with the item being an issue, or the way it is expressed. Finally, he indicated that while they do not agree with the issues, the Applicant will be asked to respond to them anyway.
46The Tribunal asked the witness to share her knowledge of how the facility would function, as this was a concern raised by the residents in the area. She indicated that it is her understanding that individuals will live at the residence voluntarily and will share chores and duties to build skills for transitioning to independent living. She explained that there will be approximately four staff which will result in minimal traffic entering and exiting the property.
47Ms. Dodd-Smith indicated that the proposal is a publicly funded facility for residential use which supports access to more affordable housing. Exhibit 8 is an excerpt from the Transfer Payment Agreement between Aboriginal Housing Support Services Corporation and the Ministry of Municipal Affairs and Housing which confirms a commitment of $3,093,054 of the total of over 8 million dollars committed to this project from various other public sources.
PLANNING OPINION
48In her opening statement, Ms. Dodd- Smith opined that the proposed development, including the zoning amendment process, conforms to the Atikokan OP, has regard to the matters of Provincial Interest in the Planning Act (s.2), is consistent with the PPS, 2020, conforms or does not conflict with the GPNO, and is generally representative of good planning.
49Specifically, the witness said that the proposed transitional housing has been categorized as a group home for the purposes of interpreting and implementing the Atikokan ZBL No.15-10 and OP and group homes are permitted anywhere there is residential use. It is her opinion that there is no provincial definition for group homes, and planners must use the Planning Act as a guide. She acknowledged that many municipalities use the definition for group homes in the Municipal Act, but Atikokan has not, in her opinion. Further she felt that the established principle of development for the subject property is residential and noted that the proposed location is on an approved plan of subdivision which is fully serviced. It was her contention that the servicing and design details required by the OP and ZBL development standards have been met or exceeded and will be implemented through site plan control and building permit requirements. She contends that the ZBLA appropriately addresses the fact that Group Homes are not listed as a permitted use in the existing zone and are generally limited to 5 occupants.
OP - RESIDENTIAL LAND USE
50Ms. Dodd-Smith emphasized that municipalities must ‘zone land’, not ‘zone people’ and recognize that the use is residential regardless of age, race, gender, etc. of the residents. She suggests that this position is reinforced by Section 35(2) of the Planning Act, which states that there is “no distinction on the basis of relationship” with respect to occupancy and notes that the Ontario Human Rights Code offers protection from discrimination in accommodation, which includes housing. She also referenced a recent court decision, the Canadian Charter of Rights and Freedoms, Ontario Human Rights Commission, and more recent municipal practices that recognize the importance of zoning land, not people. Further she referred to Section 35(2) of the Planning Act which states “no distinction based on relationship with respect to occupancy of a residence.
51In response to a question of clarification from the Tribunal, Ms. Dodd-Smith indicated that it doesn't matter who or how they are related in living in a home. She indicated that she is not an expert in social supports and needs for Indigenous youth but indicated that given that the funder for this project is a publicly funded agency responsible for Indigenous youth it would be her expectation that they know what is needed.
52It is Ms. Dodd-Smith’s position that the provision of a range of housing, particularly supportive and affordable housing, is a fundamental component of good land use planning which results in a net benefit to neighbourhoods and healthy communities.
OP - GROUP HOMES DEFINITION
53Ms. Dodd- Smith contends that the OP supports the land use proposed by the Applicant. She indicated that while s. 3.7 in the OP imposes a limit of five residents, it is her assessment that the intent for greater than five is made clear in s. 3.7.5 if there is adequate community, social and medical services and it is in compliance with the ZBL. She directed the Tribunal to the following specific sections as support for her testimony: s. 3.7.1, s. 3.7.2A, s. 3.7.3, s. 3.7.4, and s. 3.7.5.
54Ms. Dodd-Smith indicated to the Tribunal that while the OP defines group homes it does not define ‘single unit residential use’. Further she opined that a specific definition of Single Housekeeping Unit is not found in the OP, ZBL, Planning Act or PPS. Instead, she offered that the distinguishing characteristic of a single housekeeping unit is best described as individuals having shared experiences, space, and responsibilities rather than how occupants are related to one another, their personal status (age, gender, etc.) or how many there are. It is her position that a key feature of the proposal is the expectation that the residents will have shared chores, cooking, cleaning, budgeting, and other household activities. Ms. Dodd-Smith contends that the proposal conforms to the policies of the Group Home section of the OP and is not an institutional use. In forming this opinion, she referred to the definition for Institutional Use in the ZBL which does not include group home as a permitted use.
OP – RESIDENTIAL USE
55It is Ms. Dodd-Smith’s opinion that the land is zoned for residential use and will be used for residential use. She contends that with site plan control in effect, the proposal addresses the Group Home and Residential policies of the OP along with the goals, objectives, applicable servicing, and stormwater management policies.
56In support of her position, Ms. Dodd-Smith referred the Tribunal to sections 4.3.1, 4.3.2, 4.3.3, 4.3.9, 4.3.10, 4.3.11, 4.3.12 of the OP. She suggests that the proposed application meets the standards for development listed in these sections as they relate to density, size, site plan, drainage, parking, separation distances and buffering, municipal services, and support.
57It was also noted by Ms. Dodd-Smith that the new proposed building being single story, will be a change of the viewscape for neighbouring residents as the land is currently vacant but less so than a multi-story apartment that is currently permitted in the zone.
58Ms. Dodd-Smith then referenced the Preamble of the OP and some of the Goals and Objectives that she felt specifically applied to the application being contested. It is her opinion that section 2.2.1F is of critical importance in that it refers to the responsibility of the municipality to provide affordable and accessible housing while also providing opportunities for intensification and redevelopment within serviced areas. She opined that this emphasis will also be present in the next PPS.
PROVICIAL POLICY STATEMENT
59It is Ms. Dodd- Smith’s opinion that the development proposal and the requisite zoning amendments are consistent with the PPS. In particular, she referred to the following parts of section one of the PPS. Specifically, she referenced section 1.1.1 A-G (healthy, livable, and safe communities), section 1.1.3.1 (settlement areas shall be focused on growth and development), section 1.2.2 (planning authorities shall engage with Indigenous communities and coordinate on land use planning matters), section 1.4.1(provide an appropriate range and mix of housing options and densities to meet projected requirements of current and future residents) to support her opinion.
GROWTH PLAN FOR NORTHERN ONTARIO (NGP)
60It is Ms. Dodd- Smith’s contention that the NGP goes above and beyond physical land use planning to include factors for thriving communities and a thriving Northern Ontario which focuses heavily on social planning involving Indigenous Peoples. She felt that some of which explicitly address health and housing; but generally, are too aspirational in nature to specifically apply to this land use issue. She noted for the Tribunal that Atikokan is situated close to many Indigenous communities.
ATIKOKAN COMPREHENSIVE ZONING BY-LAW
61Ms. Dodd-Smith contends that the proposal meets the provisions of the Atikokan Comprehensive Zoning By-Law No. 15-10 with the amending By-law No. 22-29 except for the requirement for Group Home parking in s.4.24. She noted that thirty-four parking spaces would be required by the current ZBL and the ZBL amendment specifies twenty-one sites. She recommended that a statement needs to be added to clarify. It was also her opinion that it is easier to add spaces to a site than to reduce. She offered that the OP allows for modifying the number of appropriate parking spaces to the development, which in her opinion the applicant has defined.
62Ms. Dodd-Smith opined that it is the intent of the Planning Act for zoning by-laws to be amended from time to time to permit a more appropriate or unique use that had not previously been contemplated; and to improve interpretation (e.g., aligning, modernizing or clarifying definitions).
ISSUES LIST
63Ms. Dodd-Smith continued her testimony by addressing each of the items on the issues list presented by the Appellant by generally referring to her previously presented testimony.
64Ms. Dodd-Smith also indicated that it was her opinion that the Municipality did not amend the OP at the same time as the ZBL as there was no trigger for an OP amendment. She indicated that the Planner for the Municipality had the same position.
65With respect to the site plan and building design concerns raised by the Appellant IL, Ms. Dodd-Smith indicated that the ZBL 29-22 and ZBL 15-10 will continue to apply and address the concerns. She acknowledged that a site plan cannot be appealed but noted that the Planning Act requires that all municipal decisions (such as site plan approval, site plan agreements, building permits) conform to the OP and be consistent with the PPS. Site Plan Control policies are in effect, in accordance with the Planning Act.
66It was Ms. Dodd- Smith’s opinion that given that the plan of subdivision was previously approved by the Municipality which would suggest there are no service capacity issues. She indicated that the Town would address any other concerns related to the environment by using planning implementation tools as provided for in the OP and under the Planning Act.
67Ms. Dodd-Smith indicated that she does not believe restarting the process is appropriate and felt that neither the OP nor the ZBL contemplated transitional housing specifically when they were written, so existing and ‘closest to’ definitions and provisions needed to be used (amended) on a site-specific basis. This approach is perfectly normal and accepted by the profession and will only apply to this specific parcel of land.
68Ms. Dodd-Smith further opined that to restart the planning process to achieve the same outcome in a different way would not create a new or different way to address the concerns raised in the appeal. She noted that the evaluation criteria would be the same and the land use would be just as appropriate: across from a hospital, adjacent to R2, within the townsite, on municipal servicing, within easy access to established municipal roads and a provincial highway and having compatible design.
69Ms. Dodd-Smith confirmed that she had reviewed the Tribunal package documents and communicated directly with the Municipal staff and Planner. It is her opinion that, preliminary and community consultation took place in accordance with Planning Act requirements and OP policies and that planning related concerns have been addressed to the degree possible in accordance with the applicable planning framework.
70Ms. Dodd-Smith stated that the development proposal - with a technical adjustment in ZBL No. 22-29 to clarify the status of ZBL s.4.24 - conforms to, and does not conflict with the GPNO, has regard to the Planning Act matters of Provincial Interest, is consistent with the 2020 PPS, conforms to the relevant policies of the OP, conforms to the general purpose and intent of the Atikokan ZBL and is representative of good planning.
CROSS EXAMINATION
71Cross-examination of Ms. Dodd-Smith examined the following topics: site-plan and building design, the applicability of licensing as a part of the ZBLA, interpretation and application of the OP and ZBL definitions, permitted uses and technical details of the ZBLA.
72Ms. Dodd-Smith maintained her position of support for the application and the process followed by the municipal council to approve the ZBLA. She indicated that site plan and building design questions would be addressed through other planning provisions and regulations.
73Ms. Dodd-Smith expressed the opinion under cross examination that it is good planning to use existing definitions as much as possible especially when the same term is used in the OP and ZBL.
74The relationship between licensing and funding was raised by Counsel for the Appellant and Ms. Dodd-Smith indicated that she is not an expert on licensing or funding. She indicated that licensing isn’t a planning issue and doesn’t determine whether something is a good land use or not. It was her contention that licensing is not part of the OP or ZBL.
75Ms. Dodd-Smith was asked to comment on the meaning of ‘residential housing’ to which she referred to planning documents including municipal statutes. She asserted that the application is best described as a single housekeeping unit based on s.2.52 of the ZBL. It is her opinion that the shared spaces and responsibilities of residents distinguishes the development and makes it a single housekeeping unit. She also referred to section 35.2 of the Planning Act which indicates that limits are not allowed in a family dwelling.
76Under cross examination about specific detail errors in the ZBA, Ms. Dodd-Smith suggested that the word ‘additional’ be added to the ZBLA in reference to the new regulations.
77Under examination, Ms. Dodd- Smith also suggested that two additional technical changes to the ZBLA be considered by the Tribunal related to the number of parking spaces and a labeling correction on the site plan map.
CLOSING ARGUMENTS
78Counsel for the Appellant, in his closing arguments, maintained that the entire process was confusing to the community and the use of a ZBLA approach was inappropriate. He suggested that the Municipality must start over through a more appropriate and inclusive process. He contended that the proposed facility doesn’t fit the neighbourhood and that there was no study to confirm need. He noted that a major issue for the residents is the size of the building and the number of residents.
79Counsel for the Applicant, in his closing arguments, contends that there is no planning evidence to dismiss this application and that the proposal meets all pertinent planning documents for the province, region and municipality. Further, he suggested that the evidence provided by the witness brought by the Appellant given his history before the OLT, his determination to provide expert testimony outside of his expertise as determined by the Tribunal, and errors made in the use of the data shared during the hearing. He continued by noting that the Planner for the municipality also supported the application and the ZBLA. Counsel closed his comments by emphasizing that the need for this project is established by the Aboriginal Housing Authority and it has a commitment of over $8 million dollars to support it.
80Counsel acting on behalf of the Town of Atikokan indicated that it is the opinion of two Planners that the application is appropriate and should be supported. He indicated that the ZBL was passed in good faith by Council and should be supported by the Tribunal.
FINDINGS
81In determining this matter, the Tribunal has considered all the evidence presented during the hearing. In doing so, the Tribunal accepts and adopts the land use planning evidence and expert opinion provided by Ms. Dodd-Smith. The Tribunal is persuaded by the evidence that the proposal is consistent with the PPS, conforms with applicable provincial, regional, and municipal plans, (in this case, Growth Plan for Northern Ontario. Atikokan Official Plan), conforms with the nature and intent of applicable Zoning By-laws, represents good planning and is in the best interest of the community.
82The Tribunal heard testimony from Mr. Prokopchuk on behalf of himself and other neighbours who live near the subject property. The Tribunal is satisfied that the policy and procedural issues raised by Mr. Prokopchuk have been addressed through the testimony of Ms. Dodd-Smith. It is the position of the Tribunal that any site plan and building placement items will be addressed through established municipal processes.
83The Tribunal also heard testimony from Mr. Huzan who provided evidence on behalf of the Appellant. The Tribunal was not persuaded by and does not accept the land use opinion evidence presented by Mr. Huzan. The Tribunal was not persuaded by his evidence and in particular his assertion that there is not a demonstrated need, that the proposal is not in character with the surrounding properties and that the area should be preserved for employment generating use.
84Mr. Huzan’s inability to account for contradictory statements made under oath regarding his pursuit of accreditation as a Planner is concerning. Under cross-examination, Mr. Huzan was unable to explain why he said at a previous hearing that he was unsuccessful in his attempt to become accredited under the OPPI, yet during this hearing, he indicated that he was a provisional member and did not try to go any further. He also was unable to confirm how many times he was disqualified by the Tribunal when confronted with this during cross-examination. The Tribunal believes that Mr. Huzan was not forthright and therefore weighted his testimony accordingly.
85The Municipal Record contains two planning reports prepared by a professional Planner and used to inform their decision. These reports were referred to during the hearing. The Tribunal accepts the recommendations and rationale provided in these reports in support of the application.
86The Tribunal finds that the ZBLA is an appropriate response to the proposed use as it acknowledges the need for supported housing in its definition of ‘group homes’. While the term used does not perfectly align with the terminology used in the application, the proposed use has the same intent. It would be impossible for a municipality to predict all potential uses and terminology used to describe supported housing when writing a by-law which makes the amendment an appropriate approach.
87The Tribunal accepts that the proposed use is residential in nature which is consistent with the permitted uses that have been in place for over fifty years through the plan of subdivision.
88It is the position of the Tribunal that the application is supported by the PPS and aligns with priorities and intent of the Atikokan OP and the Northern Ontario Growth Plan.
89The Tribunal was not convinced that the issues related to the site plan and building design are significant and believes that they can be addressed through municipal processes. It was noted during the hearing that the amount of parking proposed in the ZBL is excessive and could be reduced to provide more flexibility as part of the final site plan agreement. It was also established that there will typically be fewer than five employees on the property at any given time which does not amount to a traffic flow issue for the area. Any development that was already permitted on this parcel of land could have resulted in much more traffic than the proposal before the Tribunal.
90Given that the Municipality supported the application, the Tribunal has no concern for the adequacy of municipal services. It was also noted during the hearing that there were no letters of concern received from the local school district or other public service providers.
91The Tribunal accepts the position that need has been established by the Applicant as it is the mandate of the Aboriginal Housing Authority to provide safe and affordable housing to urban and rural First Nation, Inuit and Métis people living in Ontario. Evidence was presented in the form of a Transfer Payment Agreement that confirmed that over $3 million dollars has been committed by the Ministry of Municipal Affairs and Housing with the remainder committed from other public sources. It is also common for funders to require applicants to demonstrate need before committing public funds to a project.
92In addition, to the IL provided by the Appellant, regard has been given to letters received by the Municipality through their process. It is of note that several letters of support for this development were received by the Municipality that indicate a full understanding of its purpose and the need in the area.
CONCLUSION
93In making the above findings, pursuant to subsection 2.1 of the Planning Act, regard has been given to the decision of Council and the information considered by it in the course of making its decision. Upon the evidence, the Tribunal is satisfied that the concerns raised were given appropriate consideration.
94Upon the evidence, the Tribunal is satisfied the ZBL No. 29-22 will not result in undue adverse impacts at the Subject Property or to the area in general.
ORDER
95The Tribunal Orders that the Appeal against By-law 29-22 of the Town of Atikokan is dismissed; and
96The Tribunal Orders that Zoning By-Law No. 29-22 is amended in the manner set out in Schedule 1 to this Order, and as amended, is approved.
97The Tribunal may be spoken to concerning issues arising from the implementation of this Order.
“Gregory J. Ingram”
Gregory J. Ingram MEMBER
“Eric S. Crowe”
ERIC S. CROWE 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 No. 29-22, Section 8.6.1 be amended:
i. to add the word “additional” in the paragraph below and adjust the maximum number of parking spaces required from ‘21’ to ‘up to 21’ .
Furthermore, notwithstanding Section 8.4, an apartment building, retirement home long-term care home or group home shall be subject to the following additional regulations:
a) Maximum rota/Floor Area: 1,677 m2 b) Maximum Number of Apartment Dwelling Units: 20 c) Maximum Number of Parking Spaces: 21 d) Maximum Number of Stories: 7
ii. to change the wording in the third paragraph in this section from “maximum number of residents” to “maximum number of self-contained units”
iii. to correct the land use label on the Schedule A-1 site map from Residential Multiple Exception Holding (R2-1)(H)) Zone to Residential Multiple Exception Holding (R2-2)(H)) Zone