Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 16, 2023
CASE NO(S).: OLT-22-004665
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Glenda Campoli
Subject: Application to amend the Zoning By-law – Refusal of application
Description: Zoning By-law Amendment from Residential First Density zone to Special Residential First Density to allow an outside takeout canteen
Reference Number: ZA6/22
Property Address: 8 Victoria Street N.
Municipality/UT: Tweed/Hastings
OLT Case No: OLT-22-004665
OLT Lead Case No: OLT-22-004665
OLT Case Name: Campoli v. Tweed (Municipality)
Heard: April 12, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel*/Representative
Glenda Campoli (“Appellant”)
Municipality of Tweed (“Municipality”)
Self-represented
Mark Pedersen*
DECISION DELIVERED BY Jean-Pierre Blais AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1The matter before the Tribunal involved an appeal of the Municipality’s refusal of a Zoning By-law Amendment (the “ZBA”) brought pursuant to s. 34(11) of the Planning Act (the “Act”).
2The Appellant owns the property known municipally as 8 Victoria Street North in the Municipality (the “Subject Property”) and wishes to operate an outside take-out canteen to serve light food and beverages. To this end, Ms. Campoli submitted a ZBA application to re-zone the Subject Property from Residential First Density to Special Residential First Density under the Municipality’s Comprehensive Zoning By-law No. 2012-30 (the “Comprehensive By-law”). The Municipality refused the ZBA due to road safety concerns and the lack of off-street parking.
NOTICE OF HEARING EVENT
3This was the first Hearing event in this matter. The Tribunal was in receipt of the Affidavit of Service of the Notice of Hearing Event, sworn on February 2, 2023, which was marked as Exhibit 1. No issues were raised with respect to notice.
EVIDENCE AND ANALYSIS
4The Appellant appeared on her own behalf. Having been duly affirmed to provide truthful evidence, she provided the Tribunal with a mixture of evidence and arguments in support of her position. She did not present expert evidence in land use planning.
5The evidence in support of the Municipality’s position was provided by Mr. Justin Harrow, who was qualified on consent as an expert in land use planning. He is the Director of Planning and Development for the County of Hastings (the “County”). The County provides planning services, application review, and land use planning opinions when requested by lower-tier municipalities such as the present Municipality. His Witness Statement, in the form of an Affidavit sworn on March 22, 2023, including various attachments, was marked as Exhibit 2.
The Subject Property and Surroundings
6The Subject Property is located on the northwest corner of the intersection of Victoria Street and River Street, with approximately 26.3 metres of frontage on Victoria Street North and 26.5 metres of frontage on River Street West. There is a single detached dwelling and an attached carport on the Subject Property.
7The Subject Property is surrounded by a mix of residential, commercial, and industrial uses. There is a single detached dwelling immediately north, a propane/fuel business immediately west, and a pallet manufacturing business to the east. There is also in the vicinity a Municipal fire station and EMS (ambulance) post on River Street West.
Position of the Parties
8The Appellant wishes to operate the canteen from the carport on the Subject Property. She explained that, because of her health issues, operating a canteen from her property is a way to make much needed income and that she has already made important investments of time and money in her project. She intends, at first, to the operate the canteen three days per week. She operated the canteen for approximately one month before she had to close due to improper zoning. On the issue of parking, Ms. Campoli takes the position that there is sufficient on-street parking, stating that there are 11 on-street parking spots on the west side of Victoria and another nine on the east side. In any event, she believes that she would be attracting mostly foot traffic to her canteen, including lunchtime clients from the surrounding commercial and industrial businesses. She stated that this had been the case when her canteen had been temporarily open. With respect to visibility/sightline concerns, she testified that she had already removed the hedges on the River Street side of her property. With respect to off-street parking, she stated that three parking spots on her property – which is what the Municipality had requested – “is not going to happen”. She nevertheless wants the Tribunal to approve the ZBA. She considers this to be equitable treatment compared to of other businesses along Victoria Street.
9The Municipality takes the position that this is a high traffic area. Both Victoria Street and River Street are important arterial roads, and the intersection is a busy one. It is an uncontrolled intersection. The Subject Property is located right at that intersection. Victoria Street is a major north-south route which connects Highway 401 to Highway 7. As a result, off-street parking is essential to maintain road safety for vehicles and pedestrians. It is the view of the Municipality that in the absence of appropriate off-street parking, and given sightline concerns, the proposed ZBA fails to meet the statutory tests and the appeal must be dismissed.
Findings
10The Tribunal must consider this appeal under its statutory jurisdiction, including under sections 2, 2.1(1), 3(5) and 24 of the Act.
11Orally, Mr. Harrow testified that the matters of provincial interest enumerated in s. 2 of the Act did not seem relevant in this instance. The Tribunal, having had regards to those matters of provincial interests, agrees.
12In his written and oral evidence, Mr. Harrow did consider in detail the Provincial Policy Statement (the “PPS”) issued in accordance with s. 3 of the Act, which requires that decisions affecting planning matters be consistent with the PPS. The PPS establishes the policy foundation for regulating the development and use of land and provides policy direction on matters of provincial interest related to land use planning and development. The PPS applies to planning decisions and applies to the consideration of the proposed ZBA application. Mr. Harrow noted that the Subject Property is in a settlement area. He also noted that the PPS requires land use patterns that avoid safety concerns (section 1.1.1.c). Given both the location of the Subject Property – at a major intersection – and the poor visibility/sightlines, the proposed ZBA would create an unacceptable safety concern for pedestrians. He added that, without proper off-street parking, there would be an increase of pedestrians on the street, increasing the potential for traffic accidents. Mr. Harrow also testified that long-term economic prosperity would not be supported as required by the PPS (section 1.7.1.c). Both Victoria Street North and River Street West are intended to handle significant traffic, as well as the movement of goods and people throughout the County, region, and province. The proposed use of the Subject Property, particularly without proper off-street parking, may compromise safe traffic flow, and may cause the need for expensive upgrades to these roads or the intersection. Accordingly, in his professional opinion, the proposed ZBA is not consistent with the PPS.
13Mr. Harrow also testified with respect to the relevant Official Plan. When an Official Plan is in effect, s. 24 of the Act provides that no By-law shall be passed for any purpose that does not conform with that Official Plan. Mr. Harrow testified that the Municipality does not have its own Official Plan but is subject to the County’s Official Plan 2018 (the “OP”). The Subject Property, he explained, is designated Urban Main Street Core/Downtown on Schedule UCSP-A.6 under the OP. That designation permits a variety of uses, including the operation of a canteen, subject to meeting other policies in the OP. He underscored two constraining policies:
a) Discourage on-street parking, wherever possible, on major/arterial road so as not to disrupt traffic flow;
b) Encourage off-street parking and loading spaces in or immediately adjacent to employment and Main Street Core/Downtown Community Areas.
14Because of these policies, Mr. Harrow opined that the proposed development, without off-street parking, does not conform to the OP. He also explained that the adjacent intersection and parking availability was reviewed by the Municipality’s By-law Officer and Public Works Supervisor, both of whom had pedestrian and motorist safety concerns with respect to visibility and sightlines. These concerns were exacerbated by the blind corner and the presence of the nearby first responder station.
15With respect to the Municipality’s Comprehensive By-law, Mr. Harrow explained that the Subject Property is currently zoned for residential use and meets the minimum lot size of 550 square metres. The proposed rezoning would add a commercial use. As such, Mr. Harrow testified that lot size and configuration is important. Under the Comprehensive By-law, where a canteen is permitted, that use requires 185 sq. metres. Thus, when combining the minimum lot size to accommodate both the residential use and the canteen use, the required minimum lot size would be 735 square metres. At 607 square metres, the lot does not have sufficient area to accommodate both uses. For this reason, Mr. Harrow opined that the proposed ZBA does not meet the intent of the Comprehensive By-law.
16The Tribunal accepts the expert evidence of Mr. Harrow. Having heard his uncontested land use planning evidence and reviewed the matter fully, and having considered the relevant statutory provisions, including sections 2, 2.1(1), 3(5) and 24 of the Act, the Tribunal finds that the ZBA Application is inconsistent with the PPS, does not conform to the OP, does not meet the intent of the Comprehensive By-law, and would not constitute good planning. Moreover, the mere fact that the Applicant’s proposed canteen operations would target foot traffic not only does not mitigate the safety risks, it increases them. The evidence demonstrates that even minimal increases to on-street parking will affect visibility and sightlines at this busy, non-perpendicular intersection, placing the added pedestrian traffic to this new business at risk. Accordingly, the Appellant has failed to make the required case to persuade the Tribunal of the merits of her Appeal.
ORDER
17THE TRIBUNAL ORDERS that the appeal pursuant to s. 34(11) of the Planning Act is dismissed and the requested amendment to the Comprehensive By-law No. 2012-30 of the Municipality of Tweed is refused.
“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.