Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 07, 2023

CASE NO(S).: OLT-22-004723

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

Appellant(s): See Schedule 1

Subject: By-law No. 2022-053

Description: Rural Countryside Zoning By-Law

Reference Number: Z-2020-03

Property Address: Town Wide

Municipality/UT: Township of King/Regional Municipality of York

OLT Case No.: OLT-22-004723

OLT Lead Case No.: OLT-22-004723

OLT Case Name: 611428 Ontario Limited et al. v. King (Township)

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

Appellant: 2593033 Ontario Limited

Subject: Application to amend the Zoning By-law – Appeal failure to make a decision

Description: To permit the redevelopment of the property as a landscape material and garden centre after amending the Rural Specialized (RU3) Exception Zone and the Restricted Industrial (M1) Exception Zone

Reference Number: Z-2021-03

Property Address: 7195 Highway 9 (Part Lot 35, Concession 10)

Municipality/UT: Township of King /Regional Municipality of York

OLT Case No.: OLT-22-004321

OLT Lead Case No.: OLT-22-004723

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 2593033 Ontario Limited

Subject: Site Plan

Description: To support the Zoning By-law which permits the redevelopment of the property as a landscape material and garden centre

Reference Number: SPD-21-04

Property Address: 7195 Highway 9 (Part Lot 35, Concession 10)

Municipality/UT: Township of King/Regional Municipality of York

OLT Case No.: OLT-22-004322

OLT Lead Case No.: OLT-22-004723

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, S.O. 2021, c. 4, Sched.

Motion By: Heste Corporation

Request for: Settlement of appeal against Zoning By-law No. 2022-053

Heard: April 27, 2023 In Writing

APPEARANCES:

Parties	Counsel
Heste Corporation	Steven C. Ferri Alexandra Whyte
Township of King	Tom Halinski Jasmine C.M. Fraser

DECISION DELIVERED BY BITA M. RAJAEE AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This motion was brought in writing by Heste Corporation (“Applicant”) in accordance with Rule 10.3 of the Tribunal’s Rules of Practice and Procedure. The motion seeks an Order of the Tribunal to resolve the Appeal filed by the Applicant regarding the Township of King (“Township”) Comprehensive Zoning By-law No. 2022-053 (“ZBL 2022-53”) by approving certain modifications described below.

2A case management conference (“CMC”) pertaining to this matter took place on March 14, 2023. At the CMC, the Tribunal was advised that the Applicant and the Township had reached an agreement to resolve the Applicant’s site-specific appeal against the Township’s ZBL 2022-53. Both Parties requested that this motion in writing be scheduled to allow the Tribunal to review the settlement and approve same if warranted.

3The Tribunal received a Motion Record, dated April 12, 2023, from the Applicant (“Motion Record”), as well as a Notice of Response to Motion, dated April 20, 2023, from the Township (“Township’s Response”). A number of other Parties are involved in OLT File No. OLT-22-004723, as set out in Schedule 1 to this Decision, pertaining to the Township’s ZBL 2022-053, but have not filed any materials with respect to this motion. This motion is unopposed.

SITE AND AREA CONTEXT

4The Applicant owns approximately 77.5 hectares of lands generally located south of 19th Sideroad on the east side of Dufferin Street, in the Township. The lands are legally described as Part of Lots 28 and 29, Concession 2, in the Township, in the Regional Municipality of York (“York Region”) and are municipally known as 16515 and 16333 Dufferin Street (“Subject Lands”).

5The area surrounding the Subject Lands consists of primarily rural and agricultural uses, with the uses directly abutting the subject lands being:

a. north: Dog Tales dog kennel; b. east: Rural residential and agricultural uses; c. south: Rural residential and agricultural uses; and, d. west: Dufferin Street, and rural residential and agricultural uses beyond.

APPLICATION HISTORY

6The Subject Lands previously consisted of two existing conveyable parcels of land, namely:

a. A property with two parts under common ownership located at 16515 and 16333 Dufferin Street; and, b. A land locked parcel directly abutting 16333 Dufferin Street.

7Currently, there are two separate legally established agricultural uses on the Subject Lands: a broodmare operation at 16333 Dufferin Street (“Part 1”), and an equine training/racing facility at 16515 Dufferin Street (“Part 2”).

8The Subject Lands are designated Agricultural Area under the Township’s Official Plan (“Township’s OP”). Under Zoning By-law No. 74-53 (“ZBL 74-53”), the Subject Lands are zoned as follows:

a. The Part 1 portion is zoned Oak Ridges Moraine Countryside (ORMC) with exceptions, Oak Ridges Moraine Natural Core Linkage (ORMNCL) and Oak Ridges Moraine Feature Protection (ORMFP); and b. The Part 2 portion is zoned Oak Ridges Moraine Countryside (ORMC) with exceptions and Oak Ridges Moraine Feature Protection (ORMFP).

9The entirety of the lands are also subject to site specific amendment to ZBL 74-53, under Zoning By-law No. 98-36 (“ZBL 98-36”), which provides for Exceptions 6.30(ii)(90), (91), and 22.139 related to the use of the existing detached dwellings. The exceptions permit two dwellings, one of which is for residence of farm help within an area identified as “Parcel A” under the By-law, corresponding to the entirety of the Subject Lands.

10On September 26, 2022, the Township passed ZBL 2022-53, which is the subject Zoning By-law under appeal in OLT File No. OLT-22-004723, and supersedes ZBL 74-53, as amended, for the Subject Lands. Under ZBL 2022-53, the Subject Lands are zoned Oak Ridges Moraine Countryside (ORC), Oak Ridges Moraine Feature Protection (ORF), and Oak Ridges Moraine Natural Core and Linkage (ORL). In addition, the Subject Lands are subject to the same site-specific exception permissions and provisions that existed under ZBL 98-36, incorporated as “Exception Zone No. 146” in ZBL 2022-53.

11On October 26, 2022, the Applicant appealed ZBL 2022-53 to the Tribunal. The basis for the Applicant’s Appeal is that ZBL 2022-53, as adopted:

a. Fails to recognize a Consent pertaining to the Subject Property that the Township’s Committee of Adjustments (“COA”) approved on October 19, 2022; and b. Fails to incorporate appropriate modifications in Exception Zone No. 146, which would effectively scope the applicable area of the use permissions to the Part 1 portion located at 16333 Dufferin Street and implement additional appropriate zoning standards.

THE HEARING

12In support of the settlement agreement reached between the Applicant and the Township, the Applicant relied on an Affidavit by Billy Tung, sworn on April 12, 2023 (“Affidavit”). The Curriculum Vitae and Acknowledgement of Expert Duty form for Mr. Tung were included with the Affidavit, and confirmed Mr. Tung’s expertise in the area of land use planning. Mr. Tung is relied upon by the Tribunal and, without objection, his opinions are qualified as expert opinion evidence in the field of Land Use Planning.

13In his Affidavit, Mr. Tung explained that, to resolve the Appeal, the Applicant and the Township have agreed to minor modifications to Exception Zone No. 146 of ZBL 2022-53 (“Proposed Modification”). The Proposed Modification is attached as Schedule 2 to this Decision.

14Mr. Tung explained that ZBL 2022-0053, including the Proposed Modification, has regard to matters of provincial interest pursuant to s. 2 of the Planning Act, is consistent with the Provincial Policy Statement 2020, and conforms to the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, the Region of York Official Plan, and the Township of King (Our King) Official Plan. Moreover, it represents good planning.

15Mr. Tung further explained that the Proposed Modification would provide the necessary clarity on the location of the Farm Help Dwelling permissions. In addition, the Proposed Modification includes additional zoning standards, detailed in Schedule 2. Currently, the Applicant has another appeal before the Tribunal pursuant to s. 53(19), OLT file 22-004766 (“Consent Appeal”), regarding one of the Conditions to the Consent approved by the COA on October 19, 2022, and mentioned at paragraph [11] of this Decision. Mr. Tung added that the resolution between the Township and the Applicant in this Appeal would resolve matters in such a way that, if the Proposed Modification comes into effect, the Applicant would be able to withdraw the Consent Appeal.

16In the Township’s Response, the Township confirmed that it agrees with this resolution.

The Planning Act

17In his Affidavit, Mr. Tung opined that ZBL 2022-053, including the Proposed Modification, as it pertains to the Subject Lands has regard to matters of provincial interests as outlined in s. 2 of the Act, particularly with respect to land use permissions and development requirements that protect ecological systems and agricultural resources.

Provincial Policy Statement 2020 (“PPS”)

18In accordance with s. 3(5) of the Act, all decisions that affect a planning matter are required to be consistent with the PPS.

19In his Affidavit, Mr. Tung opined that ZBL 2022-053, including the Proposed Modification, as it pertains to the Subject Lands is consistent with the policies of the PPS, including the Rural Area policies under Policies 1.1.4 and 1.1.5. The PPS’ land use permissions and policies for the Rural Areas are being implemented by ZBL 2022-053 and the Proposed Modification.

20In the Township’s Response, the Township confirmed its agreement with Mr. Tung’s conclusions regarding the PPS. Moreover, the Township submitted that the policies contained in Policy 2.3 of the PPS also apply to this appeal, and ZBL 2022-053, as amended by the Proposed Modification, is consistent with those policies.

A Place to Grow: A Growth Plan for the Greater Golden Horseshoe 2020 (“Growth Plan”)

21All decisions by an approval authority that affect a planning matter shall conform with the Growth Plan, subject to any legislative or regulatory provisions providing otherwise.

22In his Affidavit, Mr. Tung opined that ZBL 2022-053, including the Proposed Modification, as it pertains to the Subject Lands conforms with the Growth Plan. Mr. Tung indicated that the applicable policies include Rural Area policies under Section 2.2.9, whose land use permissions and policies would be implemented by the ZBL and the Proposed Modification.

23In the Township’s Response, the Township confirmed its agreement with Mr. Tung that ZBL 2022-053, as amended by the Proposed Modification, conforms with the Growth Plan. However, the Township submitted that Section 2.2.9 does not apply to the Subject Lands, as they are located within a prime agricultural area as identified in the Growth Plan. Rather, the policies contained in Section 4.2.6 (agricultural system) of the Growth Plan apply and to which ZBL 2022-053, as amended by the Proposed Modification, would conform. The Applicant did not submit Reply material in response to the Township’s position on the applicable section of the Growth Plan.

Oak Ridges Moraine Conservation Plan 2017 (“ORMCP”)

24In his Affidavit, Mr. Tung opined that ZBL 2022-053, including the Proposed Modification, as it pertains to the Subject Lands would conform with the ORMCP. The applicable ORMCP policies include the Natural Linkage Areas under Section 12 and Countryside Areas under Section 13, under which designations agricultural uses are permitted. The land use permissions and policies for these designations are being implemented by ZBL 2022-053 and the Proposed Modification.

York Region Official Plan (“YROP”)

25In his Affidavit, Mr. Tung opined that ZBL 2022-053, including the Proposed Modification, as it pertains to the Subject Lands conforms with the YROP 2022. The Subject Lands are designated Agricultural Area and are further identified as being subject to the ORCMP designations of Natural Linkage Areas and Countryside Areas. The applicable policies include the Agricultural policies under Sections 5.1 and 5.2. The land use permissions and policies for these designations would be implemented by ZBL 2022-053 and the Proposed Modification.

26In the Township’s Response, the Township confirmed its agreement with Mr. Tung that ZBL 2022-053, including the Proposed Modification, conforms with the YROP, and clarified that, along with the 2022 version of the YROP, it conforms with the YROP 2010, which is the applicable Regional Official Plan in this case. In the Notice of Motion included in the Motion Record, the Applicant’s Counsel also submitted that the Proposed Modification amending ZBL 2022-053 conforms with the YROP 2010.

Township of King (Our King) Official Plan 2019 (“Township’s OP”)

27In his Affidavit, Mr. Tung opined that ZBL 2022-053, including the Proposed Modification, as it pertains to the Subject Lands conforms with the Township’s OP. The Subject Lands are designated Agricultural Area and Oak Ridges Moraine Natural Linkage Area. The applicable policies include the Agricultural Area under Section 6.3, specific use policies under Section 3.8, and ORM Natural Linkage Areas under Section 6.6. The land use permissions and policies for these designations would be implemented by ZBL 2022-053 and the Proposed Modification.

Conclusion

28In his Affidavit, Mr. Tung concluded that ZBL 2022-053, including the Proposed Modification, as it pertains to the Subject Lands has regard for matters of provincial interest, is consistent with PPS (2020) and conforms with the Growth Plan (as amended in 2020), the ORMCP, the YROP, and the Township’s OP.

29He further concluded that the Proposed Modification provides clarity to an existing use permission and provides additional development standards to facilitate the approved Consent Application and would facilitate the appropriate use of the Subject Lands, which is in the public interest and represents good land use planning. He recommended that the Proposed Modification to ZBL 2022-053 be approved.

30In the Township’s Response, the Township confirmed its agreement with Mr. Tung’s conclusions, and supported the relief requested by the Applicant. No other Parties filed materials in response or opposed the agreement reached between the Applicant and the Township.

FINDINGS AND DISPOSITION

31The Tribunal is satisfied by the evidence provided by Mr. Tung, through his uncontroverted testimony provided by way of Affidavit. The Tribunal finds that the Proposed Modification of ZBL 2022-053 aligns with good land use planning, satisfies all legislative tests as detailed above, and warrants approval.

ORDER

32THE TRIBUNAL ORDERS that in accordance with section 34(26) of the Planning Act, R.S.O. 1990, c. P. 13, as amended:

a. The Appeal by Heste Corporation against ZBL 2022-053 is allowed, in part, as it relates to the Subject Lands.

b. ZBL 2022-053 is hereby amended as follows:

i. Exception No. 146 is deleted and replaced with Exception No. 146, attached hereto as Schedule 2.

c. The Appeal by Heste Corporation of ZBL 2022-053 is dismissed in all other respects.

33THE TRIBUNAL FURTHER ORDERS that this Order and the approval of portions of ZBL 2022-053 as attached hereto as Schedule 2 are without prejudice to the disposition of any other appeal of ZBL 2022-053 and any unapproved portions of ZBL 2022-053, such that if those appeals proceed to a subsequent hearing or motion, either on their own or as may be consolidated with other proceedings, the Township will not take the position that the Tribunal ought not to approve amendments to ZBL 2022-053 on the basis that such amendments deviate from or are inconsistent with the amendments attached hereto as Schedule 2 as brought into force by this Order. However, this does not affect the Township’s right to assert that ZBL 2022-053 as amended by Schedule 2 hereto, to the extent brought into force by this Order, should be applied to specific sites or areas without amendments on the basis that doing so is consistent with the Planning Act and provincial policies, conforms to provincial and official plans and/or constitutes good planning.

“Bita M. Rajaee”

BITA M. RAJAEE 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.

SCHEDULE 1

SCHEDULE 2