Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: MAY 17, 2023

CASE NO(S).: OLT-22-004862

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

Appellant: United Counties of Prescott-Russell

Applicant: Charles & Natasha Zaloum

Subject: Consent

Description: To permit creation of a new residential lot

Reference Number: D-10-22-22

Property Address: 1422 Joanisse Road

Municipality/UT: Clarence-Rockland/Prescott and Russell

OLT Case No.: OLT-22-004862

OLT Lead Case No.: OLT-22-004862

OLT Case Name: United Counties of Prescott and Russell v. Clarence-Rockland (City)

Heard: April 21, 2023 by video hearing

APPEARANCES

Parties

Charles & Natasha Zaloum

United Counties of Prescott-Russell

Counsel

S. Dippold

G. Meed

DECISION DELIVERED BY C.I. MOLINARI AND JEAN-PIERRE BLAIS AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1This matter is an appeal filed by the United Counties of Prescott-Russell (“United Counties”) under s. 53(19) of the Planning Act, R.S.O. 1990, c. P. 13 (“Act”) against the decision of the City of Clarence-Rockland (“City”) Committee of Adjustment (“CofA”) approving an Application for Consent (“Application”) to sever lands known municipally as 1422 Joanisse Road (“Subject Property”).

2The Subject Property is owned by Charles and Natasha Zaloum (“Applicants”) and has an area of 225,688 square metres (“sq m”) with a lot frontage of approximately 150 metres (“m”) and is located on the west side of Joanisse Road, in the rural part of the City.

3The Subject Property is subject to the United Counties Official Plan (“UCOP”) but is not governed by the City Official Plan as it does not apply to the rural area of the municipality. Joanisse Road is classified as a Minor Collector Road in the UCOP and the Subject Property is designated ‘Rural Policy Area’ in the UCOP and zoned ‘Rural (RU) Zone’ (“RU”) in the City Zoning By-law No. 2016-10 (“ZBL”). With the approval of Official Plan Amendment No. 39 (“OPA 39”) to the UCOP on April 14, 2022, a minimum road frontage of 100 m is required for new lots fronting on Minor Collector roads. The ZBL also requires a minimum lot frontage of 100 m for properties zoned RU.

4The Application, filed on September 12, 2022, after OPA 39 came into force and effect, proposes the creation of a new lot with a lot frontage of approximately 75 m and an area of approximately 10,125 sq m, and a retained lot with a lot frontage of approximately 75 m and an area of approximately 215,563 sq m.

5The United Counties opposed the approval of the Application due to deficient lot frontages on both the severed and retained lots and noncompliance with the UCOP. The City opposed the approval of the Application due to nonconformity with the ZBL and the UCOP. However, both the United Counties and the City provided conditions of approval in the event the CofA approved the Application. One of the City’s conditions of approval required an amendment to the ZBL (“ZBLA”) to reduce the minimum frontage requirement for the severed parcel to 75 m. There was no condition requiring a ZBLA for the retained lot. There was also no condition from the United Counties to require an amendment to the UCOP.

6The Application was approved by the CofA on November 23, 2022, subject to the conditions included in the City Staff Report (“Staff Report”), following which the United Counties appealed the decision on the basis that it did not meet the minimum frontage requirement of the UCOP.

PARTY AND PARTICIPANT STATUS

7It was confirmed at the beginning of the hearing by Counsel for the United Counties that the City was not taking a position nor participating in the hearing.

8No Party or Participant status requests were received in advance of or at the hearing.

LEGISLATIVE FRAMEWORK

9When considering an appeal pursuant to s. 53(19) of the Act, the Tribunal must be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the municipality as required by s. 53(1) of the Act.

10Should the Tribunal be satisfied that a plan of subdivision is not necessary, s. 53(12) of the Act states that the Tribunal, in determining whether provisional consent is to be given, shall have regard to the matters under s. 51(24) of the Act which includes having regard to the effect of the Application on matters of provincial interest as set out in s. 2 of the Act and whether the plan, or in this case the severance, conforms to the official plan. Further, s. 3(5) of the Act requires decisions of the Tribunal to be consistent with the Provincial Policy Statement 2020 (“PPS”) and to conform with provincial plans, if any, that apply to the Subject Property. For this Application, there are no provincial plans that apply.

PLANNING EVIDENCE

Applicants’ Evidence

11The Tribunal qualified Marc Daigneault on consent to provide land use planning opinion evidence.

12Mr. Daigneault confirmed that the only Official Plan affecting the Subject Property was the UCOP.

13Mr. Daigneault provided testimony related to the history of the approval process for OPA 39, the process and requirements for filing an application for a consent application with the City, and a contention that proper notice was not served for OPA 39.

14The Tribunal clarified that it does not have jurisdiction to consider the legality of OPA 39 or the related notice requirements. The Applicants were advised to focus their submissions on the planning merits of the Application.

15At this point, Counsel for the Applicant was prepared to conclude questioning of Mr. Daigneault, but, in response to a question from the Tribunal, she pursued questions with Mr. Daigneault on the criteria in s. 51(24) of the Act, in order to establish that the Application meets the criteria.

16Mr. Daigneault addressed some of the criteria set out in s. 51(24) of the Act and proffered that the Proposal will not have any impact on surrounding properties, the Subject Property is suitable for the purpose of the severance, there are no issues related to the conservation of natural resources and flood control (with any impacts addressed through the various studies that were submitted with the Application), there would be no changes to utilities, municipal services or school sites, the properties would be serviced with a private well and septic system, and there would be no impact to the public.

17Mr. Daigneault did not address orally whether the Application conforms to the UCOP or whether a plan of subdivision is necessary for the proper and orderly development of the municipality. He did, however, address policy 2.5.2.4 of the UCOP in his Planning Justification Report (“PJR”) regarding maintaining and protecting the character and identity of the Rural Policy Area and the importance of avoiding “inefficient land use patterns such as strip, rear lot or scattered development” in order to minimize incompatibility between land uses and to minimize adverse environmental impacts. In his PJR, Mr. Daigneault opined that the configuration and dimensions of properties in the Rural Policy Area are varied, providing a particular character to the rural area. He continued that the Application has the effect of strengthening the character of the Rural Policy Area, the location of the proposed severed lot minimizes the impacts on the natural characteristics identified on the property, and the Application is neither a form of inefficient or incompatible land use nor linear or scattered development.

18Although undated, Mr. Daigneault advised the Tribunal that his PJR was prepared prior to the approval of OPA 39 and therefore did not address the policy changes to the UCOP effected by OPA 39.

19On cross-examination, Mr. Daigneault acknowledged that the Application does not conform to the UCOP, as amended by OPA 39, with respect to policy 3.3.5(1), which requires a minimum road frontage of 100 m for the creation of any new residential lots on Joanisse Road. Mr. Daigneault acknowledged that, prior to OPA 39 coming into force, severances along Minor Collector roads such as Joanisse Road were strongly discouraged. He further acknowledged that, with the passing of OPA 39, they are now prohibited and that, therefore, the Application does not have regard for s. 51(24)(c) of the Act related to whether the proposed severance conforms to the UCOP.

20Mr. Daigneault confirmed for the Tribunal that both a UCOP Amendment (“UCOPA”) application and a ZBLA application would be required for the potential success of the Application and that the Applicants have not submitted a UCOPA application.

Appellant’s Evidence

21The Tribunal qualified Dominique Lefebvre on consent to provide land use planning opinion evidence.

22Ms. Lefebvre reviewed the matters of provincial interest in s. 2 of the Act and had concerns with respect to the Application related to s. 2 (f) as to the adequate provision and efficient use of transportation and s. 2 (h) as to the orderly development of safe and healthy communities. Ms. Lefebvre proffered that it is the interest of the United Counties to protect the transportation movements on Joanisse Road, as a County road, and thereby to give safe access to the community.

23With respect to protecting the transportation corridor along Joanisse Road, Ms. Lefebvre provided the Tribunal with a review of the historical policies governing the road. In the 1999 UCOP, Joanisse Road, was designated as a ‘Major Collector’ road which prohibited residential lot creation. In the 2006 UCOP, Joanisse Road was redesignated to a ‘Minor Collector’ road, which strongly discouraged severances and required the issuance of an entrance permit. With the approval of OPA 39, the UCOP now requires a minimum 100 m lot frontage to mitigate issues that the United Counties Public Works Department had with the enforcement of the United Counties’ Entrance By-law subsequent to severances being approved.

24Ms. Lefebvre provided further context to the UCOP and advised that prior to the approval of OPA 39, the United Counties began an Official Plan Review and that the review continued after the approval of OPA 39. The new Official Plan was then adopted by the United Counties on September 28, 2022 and is currently with the Province for approval. Although the new Official Plan is not yet in force, once approved, it will redesignate Joanisse Road back to a ‘Major Collector’ road. Ms. Lefebvre advised the Tribunal that the ‘Major Collector’ policies in the new Official Plan related to the protection of the road corridor have strengthened and will no longer permit lot creation by consent for residential purposes for the Subject Property, regardless of the lot frontage.

25With respect to the PPS, Ms. Lefebvre advised the Tribunal that, in her opinion, policies 1.6.7.1 and 1.6.8.1 related to transportation systems and corridors apply to the Application. Policy 1.6.7.1 states that transportation systems should be provided which are safe, energy efficient, facilitate the movement of people and goods, and are appropriate to address projected needs. Policy 1.6.8.1 states that planning authorities shall plan for and protect corridors and rights-of-way for infrastructure, including transportation systems, to meet current and projected needs. Ms. Lefebvre advised the Tribunal that County roads are major volume roads for the movement of people and goods and opined that the Application does not meet these policies as the required entrances would increase the number of ‘pinch points’ for the movement of traffic. She concluded that, in her opinion, the Application is not consistent with the PPS.

26On cross-examination regarding the PPS transportation policies, Ms. Lefebvre expounded on the impacts additional driveways have on transportation corridors such as Joanisse Road, which she described as a major volume road for the movement of people and goods with a maximum speed limit of 80 kilometres per hour (“km/hr”). She proffered that the goal of the UCOP policies, in this regard, is to protect the entire road corridor from the cumulative impact of entrances along the corridor. In response to a question from the Tribunal, Ms. Lefebvre confirmed that the speed limit of 80 km/hr for Joanisse Road has not changed over the years since the 1999 UCOP was approved.

27With respect to the UCOP, Ms. Lefebvre reiterated that OPA 39 was in effect when the Application was submitted and that therefore, as per policy 3.3.5 (1), a 100 m minimum lot frontage for the creation of any new residential lots on Joanisse Road is required, and that the proposed severed and retained lots, each with only 75 m lot frontages, would not meet this policy requirement of the UCOP. She concluded that, in her opinion, the Application does not conform to the UCOP.

28With respect to the ZBL, Ms. Lefebvre relied on the Staff Report which indicates that residential uses are permitted but that, as per Schedule F to the ZBL, a minimum frontage of 100 m is required for any new lot zoned RU on Minor Collector roads, including Joanisse Road. As only 75 m lot frontages are proposed for both the severed and retained lots, Ms. Lefebvre advised the Tribunal that the Application does not conform to the ZBL and that a ZBLA would be required.

29Ms. Lefebvre proffered that, with the UCOP requirement for a minimum lot frontage of 100 m, if the Applicants submitted a ZBLA application, they would not be able to succeed as the ZBLA would not be in conformity with the UCOP. She further opined that a UCOPA would be required but that it would not be an appropriate condition of approval for the Application as it is standard practice that a UCOPA be obtained before a ZBLA or a severance application is approved. She continued that, if the ZBLA application was submitted once the new Official Plan is approved, the ZBLA application still could not succeed as the redesignation of Joanisse Road to a ‘Major Collector’ road will eliminate the minimum lot frontage requirement but will prohibit new residential lots along Joanisse Road.

30With respect to the list of conditions imposed by the CofA in the approval of the Application, Ms. Lefebvre opined that, other than the condition requiring a ZBLA application, the remaining conditions are standard and reasonable.

31In summary, Ms. Lefebvre concluded that it is her professional opinion that the Application does not have regard for the criteria in s. 51(24) of the Act including having regard to matters of provincial interest in s. 2 and conformity to the UCOP, is not consistent with the PPS, does not conform to the UCOP and does not represent good land use planning.

ANALYSIS AND FINDINGS

32Initially, the submissions put forth by the Applicants’ witness were with respect to the legality of OPA 39 and the related notice requirements. When the focus of the submissions was redirected to the criteria in s. 51(24) of the Act, the Applicants’ witness admitted under cross-examination that the Application does not conform to the UCOP, as amended by OPA 39, which requires a minimum road frontage of 100 m for the creation of any new residential lots on Joanisse Road. In this regard, the Tribunal is persuaded by the submissions of both the Applicants’ witness and the Appellant’s witness and finds that the evidence demonstrates that the Application does not meet criteria in s. 51(24)(c) of the Act as it does not conform to the UCOP.

33The Tribunal agrees with the Appellant’s witness that the Application does not meet s. 2 (f) of the Act with respect to providing adequate provision of transportation systems and s. 2 (h) of the Act regarding the orderly development of safe communities as the 100 m minimum lot frontage requirement of both the UCOP and the ZBL is in place for the purpose of road access safety measures. The intent of the 100 m minimum lot frontage is to minimize entrances to protect the entire road corridor from the cumulative impact of entrances.

34The Tribunal finds that the Application is not consistent with the PPS in that, in the words of the Appellant’s witness, the required entrances would increase the number of ‘pinch points’ for the movement of traffic, and that the PPS requirement to ensure the safe movement of people and goods along the transportation corridor would be compromised.

35The Tribunal finds that the Application does not conform with the UCOP as the Application would result in deficient lot frontages for both the severed and retained lots, in direct contravention of the minimum lot frontage requirement of the UCOP.

36The Tribunal finds that the Application does not conform to the ZBL and, even with a condition to obtain a ZBLA to reduce the minimum frontage for both the severed and retained lot, the success of a ZBLA application is precluded by the UCOP policy requiring a 100 m minimum frontage.

37In recapitulating the tests of a consent application, the Tribunal finds that the Application does not have regard to the criteria of s. 51(24) of the Act including the matters of provincial interest set out in s. 2 of the Act, is not consistent with the PPS, does not conform to the UCOP or the ZBL, and the Application, therefore, does not represent good land use planning.

ORDER

38THE TRIBUNAL ORDERS that the appeal is allowed and the provisional consent is refused.

“C. I. Molinari”

C. I. MOLINARI

MEMBER

“Jean-Pierre Blais”

JEAN-PIERRE BLAIS

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.