Ferreira v. Bradford West Gwillimbury (Town), 2023 CanLII 46243

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 25, 2023

CASE NO(S).: OLT-22-004693

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant: WOW Living Appellant: Franca Ferreira

Subject: Zoning By-law Amendment

Description: To permit parking of 4 trailers on Church property to rent out, and ZBA from Institutional "I" to Temporary Use "T8"

Property Address: 2465 Line 9

Municipality/UT: Bradford West Gwillimbury

Municipal File No.: D14-22-06, by-Law No. 2022-86

OLT Case No.: OLT-22-004693

OLT Lead Case No.: OLT-22-004693

OLT Case Name: Ferreira v. Bradford West Gwillimbury (Town)

Heard: April 13, 2023, by video hearing

APPEARANCES:

Parties Franca Ferreira Town of Bradford West Gwillimbury WOW Living

Counsel*/Representative F. Picavet L. Longo* J. Ridout, Paralegal

DECISION DELIVERED BY C.I. MOLINARI AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal is an appeal filed by Franca Ferreira (“Appellant”) pursuant to s. 34(19) of the Planning Act, R.S.O.1990, c. P. 13, as amended (“Act”), against a decision of the Town of Bradford West Gwillimbury (“Town”) approving a temporary use Zoning By-law Amendment application (“Application”) to amend Zoning By-law 2010-050 (“ZBL”) affecting the lands known municipally as 2465 Line 9 (“Subject Property”).

2The Subject Property, located on the southeast corner of Yonge Street and Line 9, has an area of approximately 1.29 hectares with a frontage of approximately 68 metres (“m”) along Line 9 and approximately 144.5 m along Yonge Street. It is currently developed with a place of worship, known as the Bradford Community Church, a portable and 63 surface parking spaces. The property is serviced by a private septic system and private well. It is intended that the current institutional use of the property will continue.

3The Subject Property is surrounded by existing low density residential uses and agricultural uses to the north and west, an industrial use to the south and east, and low density residential uses further to the east.

4The Subject Property is located within the Bradford Urban Area settlement area boundary and is designated ‘Settlements’ in the County of Simcoe (“County”) Official Plan (“COP”) and ‘Residential’ in the Town Official Plan (“TOP”). It is located within the boundaries of Community Plan Area 5 (“CPA 5”) which is a secondary plan area within the Bradford Urban Area, however, the plan for CPA 5 has not yet been developed.

5The Application proposed to rezone the Subject Property under the current ‘Institutional’ zone to permit the temporary use of four modified trailers as residential rental units for a period of three years. The Institutional zone permits a variety of community-oriented uses as well as a number of residential type uses as of right, including group homes, long term care facilities, nursing homes, retirement homes and an accessory dwelling to a place of worship. The trailers would be serviced via a connection to the existing septic system and a new well. Parking for the proposed use would be provided from the existing parking available on the property, which exceeds the ZBL requirements for the existing use.

6A Staff Report to Council, dated September 20, 2022, recommended the Application be approved subject to Town staff recommended modifications.

7The Application was considered and approved by Town Council at their meeting on September 20, 2022. At that time, the Town enacted Temporary Use By-law 2022-86 (“By-law 2022-86”) giving effect to the rezoning of the Subject Property pursuant to the provisions of the Act. The Notice of the Council Decision (“Notice”) was issued on September 29, 2022, followed by a revised Notice issued on October 20, 2022. The Appellant filed the appeal on November 9, 2022.

8A related Site Plan Application was filed with the Town but has not been appealed to the Tribunal.

9Counsel for the Town advised that he was there to observe the proceedings while the Town witness under summons was providing testimony but that the Town did not intend to participate in the hearing otherwise.

10There were no requests for Party or Participant status at the hearing.

LEGISLATIVE FRAMEWORK

11When considering an appeal under s. 34(19) of the Act, the Tribunal shall have regard to matters of provincial interest as set out in s. 2 of the Act, and regard to the decision of the Town and the information it considered in making its decision as set out in s. 2.1(1) of the Act. Further, a decision of the Tribunal affecting a planning matter shall be consistent with the Provincial Policy Statement, 2020 (“PPS”) and shall conform with the relevant provincial plans, in this instance, the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”).

12In consideration of the above statutory requirements, the Tribunal must be satisfied that the Application represents good land use planning and is in the public interest.

WITNESSES

Appellant

13The Appellant did not call any witnesses in support of their case before the Tribunal, however, the representative for the Appellant, Mr. Picavet, provided submissions on the issues related to the Appeal.

Applicant

14Alan Wiebe, Manager of Community Planning for the Town, appeared under summons and was qualified on consent to provide land use planning opinion evidence.

15Neil Garbe, planning consultant for the Applicant, was also qualified on consent to provide land use planning opinion evidence.

PLANNING EVIDENCE – Mr. Wiebe

16Although the evidence of the Appellant would ordinarily be presented first, since Mr. Picavet’s evidence was directly in response to the contents of the Applicant’s Document Book (“Document Book”) submitted as an Exhibit, it was proposed by the Applicant and agreed to by the Appellant, that the Applicant would proceed first followed by the submissions by the Appellant.

17In this respect, Mr. Wiebe provided background information related to the Subject Property and the Application and advised the Tribunal that, although his name does not appear on the Staff Report, as Manager of Community Planning, he reviewed and approved the Staff Report for consideration by Town Council.

18Mr. Wiebe also provided uncontested planning opinion evidence related to the Application consistency with the PPS and conformity to the Growth Plan, the COP and the TOP. In addition, the Subject Property is within the area of the Town subject to the South Georgian Bay Lake Simcoe Source Protection Plan, 2015 (“SGBLSSPP”) with respect to protecting drinking water sources. In this respect, Mr. Wiebe provided uncontested planning opinion evidence related to the Applications conformity to the SGBLSSPP.

19Although the Applicant initially submitted the Application to permit the proposed trailers as garden suites, Mr. Wiebe advised the Tribunal that Town staff did not think the garden suite use applied to the proposal, given the definition of garden suite in the ZBL and the Act requiring it to be ancillary to an existing residential use. Therefore, the Application proceeded as a temporary rezoning to permit four trailers to be used as affordable rental housing units in addition to the existing place of worship.

Planning Act

20Mr. Wiebe addressed the relevant matters of provincial interest in s. 2 of the Act as they apply to the application before the Tribunal. He testified that the proposal addresses the adequate provision and efficient use of transportation, sewage and water services and waste management systems, as the County and Town have not expressed concern with the proposal in this respect and support the use of private services. The proposal will result in an orderly development of safe and healthy communities as it will help to accommodate people in the community who are experiencing insecure housing arrangements. With respect to the adequate provision of a full range of housing, including affordable housing, the addition of the trailers as a form of affordable housing would contribute to an increased variety and range of housing available in the Town. Regarding the resolution of planning conflicts involving public and private interests, Mr. Wiebe proffered that the Town had considered all comments from the public and provided detailed comments in the Staff Report on the concerns of the public. It is Mr. Wiebe’s opinion that the proposal has due regard to the provisions of s. 2 of the Act.

PPS

21The policy documents serve different functions to inform and guide municipal decisions with respect to development applications and in the case with the PPS, municipal decisions are required to be consistent with the PPS.

22The Staff Report notes that section 1.1.3 of the PPS promotes settlement areas to be the focus of growth while providing opportunities for intensification that allow land to be used efficiently, with such uses being served by existing infrastructure and facilities. It further notes that municipalities are encouraged to promote standards of development that enable intensification, redevelopment and compact form, and that new development within designated growth areas should occur adjacent to the existing built-up area and have a compact form, a mix of uses and densities that allow for efficient use of land, infrastructure and public service facilities. It further references policies 1.1.1 and 1.4.3 which require planning authorities to provide a range of housing options including housing that is affordable to low to moderate income households and older persons, including housing options that allow for innovation to accommodate evolving needs and demographics.

23Mr. Wiebe advised the Tribunal that, given the attributes of the Subject Property, the development being proposed, the comments received and the review of the PPS policies, both he and Town Staff are of the opinion that the Application is consistent with the PPS.

Growth Plan

24The Staff Report states that the guiding principles of the Growth Plan support the achievement of complete communities, prioritize intensification, and support a range and mix of housing options, including additional residential units and affordable housing, to serve all sizes, incomes, and ages of households. It states that the proposed development, being within a settlement area and within the Simcoe Sub-area of the Growth Plan, makes efficient use of available lands and infrastructure and that affordable housing is to be supported as part of this growth and as part of forming a complete community. The report further states that the Application would allow for affordable residential development to occur on lands that would contribute, albeit temporarily, to the population targets of the Growth Plan.

25Mr. Wiebe proffered that the Town is within the Simcoe Sub-area of the Growth Plan, and that the Growth Plan policies related to the Simcoe Sub-area support the direction to deliver a variety of forms of tenure of residential accommodation. The Staff Report concluded, and Mr. Wiebe opined, that the application conforms to the objectives and policies of the Growth Plan, including those of the Simcoe Sub-area.

South Georgian Bay Lake Simcoe Source Protection Plan, 2015

26The Staff Report indicates that the Application is subject to the provisions of the SGBLSSPP which are intended to protect existing and future drinking water sources and to ensure that a change in land use that is considered ‘major development’, as defined in the SGBLSSPP, does not pose a significant drinking water threat.

27Mr. Wiebe advised the Tribunal that Town Staff had reviewed the Application in the context of the SGBLSSPP and confirmed that the Town relies on the Lake Simcoe Valley Conservation Authority (“LSRCA”) for its technical review of Applications subject to the SGBLSSPP. In that respect, he confirmed the Staff Report findings that the Application does not constitute major development under the SGBLSSPP and that the LSRCA had no objection to the Application.

COP

28In consideration of the COP, the Staff Report indicates that the objectives of lands designated ‘Settlements’ include focusing population growth and development in settlement areas, to develop a compact urban form that promotes the efficient use of land and provision of water, sewer, transportation, and other services, and its policies include that settlement areas shall be the focus of population growth and residential land uses shall be developed within settlement area boundaries. The Staff Report notes that the development of a wide range of housing types and costs, including affordable housing, is a goal of the COP, which also encourages local municipalities to create and accommodate necessary affordable housing units through revising zoning by-laws to ensure that minimum zoning provisions do not hamper the appropriate provision of affordable housing at any residential locations and by using alternate development standards.

29Additionally, Mr. Wiebe noted that the County had no objection to the Application and found that it conforms to the COP.

TOP

30With respect to the TOP, the Staff Report indicates that for lands designated ‘Residential’, permitted uses include a mix of residential densities and dwelling types among other uses. The report states that it is a policy of the TOP to provide a variety of housing forms and opportunities throughout the Town to respond to the need for different types of accommodation. It is a further policy that growth can occur through infilling and intensification in the urban area and through the improved use of existing infrastructure.

31The Subject Property is also within the boundaries of secondary plan area Community Plan Area 5 (“CPA 5”). The Staff Report indicates that the secondary plan has not yet been initiated but that it is to be prepared before development or redevelopment may proceed. The report concludes and Mr. Wiebe concurred, however, that the approval of the Application, as a temporary use, would not adversely affect the Town’s ability to ensure CPA 5 is planned and developed in an orderly and efficient manner.

32With regards to land use compatibility, it is the policy of the TOP that development is to ensure compatibility with surrounding uses by minimizing potential adverse impacts between uses through various site plan considerations.

33The TOP specifically provides for the development of temporary housing in policy 10.6.2.1 through the passing of temporary use zoning by-laws. For temporary uses, policy 10.6.2.3 requires the proposed use to be of a temporary nature that can cease without undue hardship and to be compatible with the surrounding area, as well as maintain the intent and purpose of the TOP, not require the expansion of municipal services, and that the site is suitable for the use and that the use will not have any adverse impacts on surrounding properties. The Staff Report indicates that the proposed temporary use would meet these criteria.

34It was Mr. Wiebe’s opinion, as stated in the Staff Report, that the Application is compatible with the surrounding land uses and conforms with the TOP.

ZBL

35The Staff Report reviews in detail the existing and proposed zoning on the Subject Property. The Application proposes a site-specific exception from the Institutional zone to permit four trailers to be utilized as affordable residential rental units for a period of three years. Town staff evaluated the proposal against building standards for accessory buildings, mobile homes, institutional uses and garden suites and found that the proposed use will maintain the general intent and purpose of the ZBL.

36Mr. Wiebe concurred with the findings of the Staff Report in this respect and confirmed that a holding provision would be attached to the site-specific zoning to ensure that a site plan agreement be entered into through the Site Plan approval process, and to ensure the development of the site is consistent with applicable policies and regulations. The Site Plan approval process would establish a compatible urban design and ensure functional measures are implemented to ensure potential impacts are minimized.

37Mr. Wiebe confirmed for the Tribunal that all of the comments and concerns identified by residents and Town Council were addressed in the consideration of the Application and the recommendation to Council to approve the Application.

38Mr. Wiebe concluded that there is a need for affordable housing in the Town and that Town Staff are of the opinion that additional affordable housing units would be consistent with the PPS. Additionally, given the attributes of property and the Residential designation, Mr. Wiebe indicated that Town Staff are of the opinion that the Application satisfies all applicable land use planning and development policies of the province, County and Town and that the temporary use by-law was appropriate to recommend to Council for approval.

39With respect to the implementing by-law, By-law 2022-86, Mr. Wiebe reviewed the sections of the by-law and advised the Tribunal that it was in a form suitable for approval, if the Tribunal so determines, other than the expiry date of the holding provision. Counsel for the Town requested a change to the enactment and expiry dates to reflect the date of the Tribunal’s decision if the Tribunal were to dismiss the appeal and approve the Application.

PLANNING EVIDENCE – Mr. Garbe

40Mr. Garbe advised the Tribunal that he supports the submissions made by Mr. Wiebe and supports the position of the Town and Town Staff.

41Mr. Garbe focussed on the contents of his Planning Justification Letter (“PJL”), and specifically policy 4.3.1 of the COP which states:

The development of affordable housing is important to the County and the local municipalities to ensure individual health and long term community vitality. Official plans, zoning, and other bylaws shall be used to facilitate its development. The County will work with local municipalities to reduce unmet housing need, reduce housing inequality, improve housing quality and provide for an efficient delivery of affordable housing.

42Mr. Garbe also drew the Tribunal’s attention to policy 3.14.1 of the TOP which provides similar wording:

Attainable housing is a critical component of providing a complete community. It increases opportunities and choice for all who choose to make Bradford West Gwillimbury home. The need for affordable housing options exists and has been documented, and the Town will be assertive in ensuring it achieves its share of the County’s affordable housing.

43Mr. Garbe opined that these policies set the stage for the Application and that the Application offers the opportunity to fulfill the directive of the COP and the TOP, as well as the stated priority of Town Council to deliver on affordable housing. He concurs with Mr. Wiebe that the matters raised by the residents are related to site plan issues and can be mitigated through the site plan process.

44Mr. Garbe added that although the form of housing proposed is different from the existing residential housing to the east, this proposal offers a unique opportunity for residents of the community who are underhoused and, in his opinion, the proposal is compatible with the surrounding land uses.

45Mr. Garbe offered his professional opinion that the proposal represents good land use planning and should be approved.

APPELLANT SUBMISSIONS – Mr. Picavet

46Mr. Picavet submitted a written response to the Document Book (“Appellant’s Response”), filed as Exhibit 3. As acknowledged by Mr. Picavet in his submissions, many of the Applicant’s concerns are relevant to the Site Plan application that has been submitted to the Town but that is not before the Tribunal. Of the remaining land use planning related comments, the Appellant noted concerns related to the following listed items. Most of these concerns were addressed during the hearing in some respect and a brief response is provided below:

a) the TOP designation – the current land use designation is ‘Residential’, not ‘Future Residential’ as suggested in the Appellant’s Response.

b) land use compatibility – both Mr. Wiebe and Mr. Garbe provided their uncontested professional opinion that the proposed use is compatible with the surrounding land uses.

c) whether the PPS addresses the compatibility of trailers and whether they are considered a proper dwelling type – the PPS is a broad policy document and does not address form of dwelling units, nor trailers specifically. As stated in the Staff Report, the PPS does, however, require planning authorities to provide a range of housing options including housing that is affordable to low to moderate income households and older persons. In addition, the definition of ‘housing options’ in the PPS includes a reference to ‘tiny homes’. Mr. Wiebe provided his uncontested professional opinion that the Application is consistent with the PPS.

d) whether trailers are residential units, and whether they are a permitted use in the Institutional zone – the basis for the Application is for residential use of trailers on the Subject Property. The Institutional zone permits other forms of residential uses, and the intent of the Application is to allow trailers as an additional form of residential use in the Institutional zone.

e) accessibility to the downtown area due to conflicts related to ongoing road construction and whether the Application is premature – Mr. Wiebe testified that there were no concerns from any Town or County departments related to the Application in this respect.

f) the potential for six trailers in the future – the Application is for four trailers, any future aspirations of the Applicant for additional trailers is not a consideration before the Tribunal.

g) CPA 5 – Mr. Wiebe advised the Tribunal that the secondary plan has not yet been initiated and provided his uncontested professional opinion that the approval of the Application, as a temporary use, would not adversely affect the Towns ability to ensure CPA 5 is planned and developed in an orderly and efficient manner.

h) relocation of the proposed use – it is beyond the scope of the Tribunal to consider the merits of other potential locations for the proposed use. The matter before the Tribunal is limited to the merits of the proposed use on the Subject Property, and

i) whether the use is a garden suite – The issue of the garden suite use is addressed in paragraph [19].

47Based on the Appellant’s concerns, Mr. Picavet requested that the application be denied.

ANALYSIS AND FINDINGS

48In its deliberations, the Tribunal considered the opinion evidence of Mr. Wiebe and Mr. Garbe, the submissions of Mr. Picavet, and the Exhibits filed with the Tribunal.

49The submissions made by the Appellant, related to the concerns summarized in paragraph [46], were addressed by the witnesses and found by the Tribunal to not be compelling as weighed against the opinion evidence presented by the witnesses. The Tribunal is satisfied that the land use planning matters related to the Application have been satisfactorily addressed, including the concerns of the Appellant.

50By-law 2022-86 is a three-year temporary use by-law and has a holding provision attached to it which is to be removed through a subsequent rezoning application once the site plan application is approved and a site plan agreement is entered into. Additionally, the Council minutes from September 20, 2022 indicate that the site plan approval will be limited to permit two trailers at this time, with the additional two trailers to be permitted through a future amendment to the site plan. With these safeguards in place, the Tribunal is of the opinion that the proposed temporary use is appropriate and can be re-evaluated at the end of the three-year timeframe.

51The question of compatibility was raised as an issue concerning the proposal. Both the Staff Report and Mr. Wiebe addressed the issue of compatibility and found that the proposal, as a temporary residential use, is compatible. Mr. Garbe offered his support of the opinions expressed by Mr. Wiebe and in the Staff Report.

52The Tribunal considered the question of compatibility in the context of the Zoning By-law Amendment introducing a new use to the Subject Property. Compatibility is not to be interpreted as the “same as” or “being similar to” but as to whether the proposed use and built form are capable of existing together in harmony within an area. The Tribunal finds that the proposed residential use on the Subject Property fits within the character of the uses surrounding the Subject Property, and the Tribunal accepts the professional opinions proffered by the witnesses and finds that the Application is compatible with the surrounding land uses.

53No evidence was presented to the Tribunal by the Appellant to counter the testimony of the two witnesses that the Application is consistent with the PPS, is in conformity with the Growth Plan, the COP and the TOP, and that it is in keeping with the intent and purpose of the ZBL. In this respect, the Tribunal accepts the opinion evidence that the Application represents good planning and is in the public interest.

54In coming to its decision, the Tribunal has had regard to the decision of the Town and the information it considered in making its decision as set out in s. 2.1(1) of the Act as well as the matters of provincial interest set out in s. 2 of the Act and agrees with Mr. Wiebe’s opinion that the proposal has due regard to these matters, as it will result in the orderly development of safe and healthy communities and will help to accommodate people in the community who are experiencing insecure housing arrangements.

ORDER

55THE TRIBUNAL ORDERS that the appeal against By-law 2022-86, to amend Zoning By-law 2010-050, as amended, of the Town of Bradford West Gwillimbury, is allowed in part and By-law 2022-86 is amended as set out in Attachment 1 to this Order. In all other respects, the Tribunal orders that the appeal is dismissed.

“C.I. Molinari”

C.I. MOLINARI 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

By-law 2022-86 is hereby amended as follows:

Delete clause 1 in its entirety and replace with the following:

1. Notwithstanding anything contained in Zoning By-law 2010-050, as amended, to the contrary, up to four (4) "Park Model" trailers shall be permitted to be used for human habitation on the lands municipally known as 2465 Line 9 shown on Schedule "A" attached hereto and forming part of this By-law for a period of three (3) years from the date of issuance of the Ontario Land Tribunal’s Order.

Delete ‘Date Enacted: September 20, 2022’ and ‘Expiry Date: September 20, 2025’ in the table in clause 3 and replace with the following: