Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 07, 2023 CASE NO(S).: OLT-22-004761

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

Applicant and Appellant: Jacob van Den Akker & Kristen Bartman Subject: Zoning Bylaw Amendment Description: To permit addition of car wash, drive thru restaurant to the existing gasoline bar and expansion of commercial uses Property Address: 260-262 Gorham Road and 3854 Disher Municipality/UT: Fort Erie/Niagara Municipal File No.: 350309-0456 OLT Case No.: OLT-22-004761 OLT Lead Case No.: OLT-22-004761 OLT Case Name: Jacob van Den Akker and Kristen Bartman v. Fort Erie

Heard: May 18, 2023 by video hearing

APPEARANCES:

Parties	Counsel*/Representative
Jacob van Den Akker and Kristen Bartman ("Appellants")	Self-Represented
Lucky Gas Inc. ("Applicant")	Eric Davis*
Town of Fort Erie ("Town")	Karen Shedden*

MEMORANDUM OF ORAL DECISION DELIVERED BY ASTRID J. CLOS AND P. TOMILIN ON MAY 18, 2023 AND FINAL ORDER OF THE TRIBUNAL

Link to Final Order

1The Tribunal convened a Merit Hearing (“Hearing”) with respect to an appeal brought pursuant to s. 34(19) of the Planning Act (“Act”) by Jacob van Den Akker and Kristen Bartman (“Appellants”) of the approval of By-law No. 130-2022 (“ZBL”) by Council on September 19, 2022, for a property municipally addressed as 260-262 Gorham Road and 3854 Disher Street (“Subject Property”) located in the Town of Fort Erie (“Town”).

2The purpose of the ZBL is to amend the zoning of the Subject Property from “Automobile Service Station (C4) Zone” and “Residential 2 (R2) Zone” to “Automobile Service Station (C4-755) Zone” and “Residential 2 (R2-756) Zone” to enable the redevelopment of commercial operations on 260-262 Gorham Road. The site specific C4-755 Zone will permit a restaurant with a drive-thru on 260-262 Gorham Road and includes special provisions to implement the proposed site plan. The site-specific R2-756 Zone will apply to the retained single detached dwelling on 3854 Disher Street and includes special provisions for reduced lot frontage, reduced lot area, reduced rear yard, and reduced interior side yard setback on a lot where no attached garage or carport is provided.

3The Town staff Report Number PDS-42-2020 dated September 21, 2020 recommended approval of the ZBL and the related Official Plan Amendment. Council deferred making a decision until a comprehensive Traffic Impact Study was prepared for the area.

4On September 19, 2022 Council approved the ZBL and adopted Official Plan Amendment No. 63 (“OPA No. 63”) for the Subject Property. (Exhibit 3 – Municipal Record)

5OPA No. 63 was not appealed and is in effect.

6The Appellant appealed the decision of Council approving the ZBL.

7The Affidavit of Service sworn on March 20, 2023 was entered as Exhibit 1.

Legislative Tests

8The Tribunal in carrying out their responsibilities shall have regard to matters of provincial interest, as set out in s. 2 of the Act.

9When making a decision related to a planning matter, the Tribunal shall have regard to any decision made by a municipal council or approval authority and any information and material considered by a council or approval authority in making the decision, as set out in s. 2.1 (1) of the Act.

10A decision of the Tribunal in respect of any authority that affects a planning matter, shall be consistent with the Provincial Policy Statement, 2020 (“PPS”), as set out in s. 3(5) of the Act and shall conform with or shall not conflict with the Growth Plan for the Greater Golden Horseshoe, 2020 (“GGH”) as set out in s. 3(5) of the Act.

11Any decision of the Tribunal shall be made pursuant to s. 24(1) of the Act, in that where an official plan is in effect, no by-law shall be passed for any purpose that does not conform therewith.

Subject Property and Surrounding Area

12The Subject Property consists of two parcels. The first parcel is a corner lot with approximately 65.1 metres (“m”) of frontage on Gorham Road and 45.5 m along Disher Street and is used for commercial purposes. The second property has approximately 13.5 m of frontage on Disher Street, with a depth of approximately 60 m and is a residential parcel.

13The existing uses on 260-262 Gorham Road, the commercial property on the corner of Gorham Road and Disher Street, include a gas station, convenience store, propane filling station, automatic carwash bay (currently used for storage) and a single-family residence. The existing use of 3854 Disher Street is residential dwelling.

Reasons for the Appeal

14The Appellants own the home abutting the Subject Property on Disher Street. They participated throughout the local planning process and provided their concerns. The reasons for the appeal included concerns related to noise, emissions from idling cars, a reduction in their property value, deficiency of the rear yard for the existing house, litter from the commercial operation on their property and light pollution.

15Jacob van Den Akker on behalf of himself and his wife Kristen Bartman indicated at the hearing that their main concerns relate to noise, the reduced rear yard setback for the dwelling and the garbage produced from the commercial uses that could end up on their property.

16The Appellants did not call any witnesses in support of their concerns but were provided the opportunity to cross-examine the witnesses called by the Applicant and the Town.

Status Request

17No status requests were received by the Panel for this hearing.

Noise Evidence

18Kyle Hellewell was qualified by the Panel to provide expert opinion evidence in the area of noise and vibration in relation to this matter. In providing his evidence Mr. Hellewell referenced his Witness Statement which was entered as Exhibit 5.

19Mr. Hellewell reviewed the revised Noise Report dated August 31, 2020. The 2020 Noise Report considers site plan changes consisting primarily of a reduction from two (2) to one (1) car wash queues, the removal of the coin-wash bay, a relocation of the automatic car wash, and a relocation and reorientation of the restaurant and associated drive through queue.

20Mr. Hellewell indicated that the 2020 Noise Report reduced the height of the recommended noise barrier from 3 m in height to 2.3 m. As a result, additional noise abatement was required for noise sources at the car wash. The additional abatement consists of a noise reducing door and a commitment to design the carwash to allow the door to be closed when the dryer is running.

21Mr. Hellewell provided evidence in response to the noise issues raised in the Notice of Appeal.

Appellants: “the sound levels are only a prediction and are likely to be louder than the MOECC guidelines of 50dBA given the unknown noise factor of the queuing traffic as well as the 95 dBA sound power levels on the carwash entrance and exit.”

Response: “Since the Proposed Development is not yet constructed, sound levels can only be determined through numeric modelling. Manufacturers’ data and proxy measurements of similar sources were used as inputs to the numeric modelling. Numeric modelling typically represents real world sound levels closely when the sources of noise are well understood and appropriately modelled.”

Appellants: “We believe sound will most certainly exceed 50 dBA during operational hours which is also when we are outside enjoying our residential property.”

Response: “NPC-300 requires assessment of one-hour average sound levels during predictable worst-case noise emissions from the facility. The predictable worst-case one-hour average sound level is predicted to comply with the 50 dBA limit. Sound levels from high-level short-duration events such as an engine revving may exceed the 50 dBA limit instantaneously but are not explicitly accounted for in the modelling as they would not be expected to significantly impact the average sound level.”

Appellants: “even if they shut their engines off, the car stereos can continue to play and bring noise levels to any number of dBA.”

Response: “Noise from car stereos is not addressed by NPC-300, and not typically considered in the context of a land use planning assessment. Noise of this nature is typically considered by local by-laws. The Town of Fort Erie has enacted by-law number 159-88 which prohibits “Amplified voices and amplified music of a volume likely to disturb the inhabitants of any area of the Town.”

22Mr. Hellewell provided his professional opinion that the noise emissions from the proposed development have been appropriately evaluated, and that following the recommendations of the 2020 Noise Report, the average hourly sound emissions are predicted to be compliant with the applicable NPC-300 daytime sound level limits.

Planning Evidence

23The Tribunal qualified Greg Taras to provide expert opinion evidence in the area of land use planning in regard to this matter. In providing his evidence Mr. Taras referenced his Witness Statement entered as Exhibit 4.

24Mr. Taras described the land uses surrounding the Subject Property as follows; to the north is a recreational trail (former railway), further north is a lumber yard. To the east and south are residential properties fronting onto Disher Street. To the west is a recently constructed gas station and convenience store on Gorham Road.

25Mr. Taras took the Tribunal through the lengthy history of this proposal which commenced with his retainer in 2017.

26Mr. Taras indicated that throughout the six year process a number of revisions had been made to the proposal to address both technical and public comments. He outlined the notable changes including:

• Removal of the access driveway from Disher Street, the residential street. All access to the commercial site will be from Gorham Road.
• Relocation of the restaurant closer to the public street.
• The restaurant parking and drive-thru were moved closer to the intersection.
• Reduction of the number of automatic car wash bays from two to one bay.
• Relocation of the automatic car wash bay further northwest on the site to provide additional distance from residential dwellings to the east.
• No manual car wash bays are proposed.
• Addition of a 3 m landscape strip along the east property line.
• Realignment of the drive-thru lane to reflect the removal of the access from Disher Street.
• Enlargement of the rear yard of 3854 Disher Street to increase the rear yard setback and to provide additional amenity area for the dwelling.
• A comprehensive Traffic Impact Study was completed to evaluate any potential traffic impacts including other developments in the area.

27Mr. Taras took the Panel to the Concept Plan and described the interface at the property line between the proposal and the Appellants’ abutting residential property. Closest to Disher Street the existing residential dwelling will remain with a rear yard amenity area provided. That portion of the interface will remain unchanged. Proceeding toward the back of the residential lot, the commercial property will include a 2.3 m high noise barrier and a minimum 3 m setback which will be landscaped.

28Mr. Taras addressed the reasons for the appeal raised by the Appellants. Mr. Taras indicated that the 7.5 m rear yard setback proposed for the existing residential dwelling is a 0.5 m reduction from the 8 m requirement in the zoning. He considers this a minor reduction in the rear yard given that other residential zones in the by-law only require a 6 m rear yard. He indicated that in his opinion an adequate rear yard amenity area will be provided by the 7.5 m rear yard. Mr. Taras indicated that litter is an enforcement issue and not a matter related to the ZBL. Mr. Taras provided that potential impact to property values is not a planning issue. Mr. Taras indicated that the issue of light potentially spilling onto an abutting property will be addressed through the Site Plan process.

29The Tribunal qualified Anamika Dilwara to provide expert opinion evidence in the area of land use planning in relation to this matter. In providing her evidence Ms. Dilwara referred to her Witness Statement entered as Exhibit 2.

30Ms. Dilwara, the Town’s witness, explained that public input was received at formal Public Meetings held on June 11, 2018 and again on September 21, 2020 following a major revision to the development proposal. Input received from the public and Council resulted in the Town completing an independent traffic study which concluded that significant traffic impacts would not result from the proposed development.

[Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) (“Act”)

31The Tribunal heard evidence from Ms. Dilwara that her planning analysis related to the ZBL had appropriate regard for the applicable matters of provincial interest under s. 2 of the Act.

Provincial Policy Statement 2020 (“PPS”)

32The Panel heard evidence from Mr. Taras that in his opinion the ZBL is consistent with the PPS. Specifically, the ZBL will focus future growth and development within existing urban settlement areas and promote efficient development patterns that optimize the use of land, resources, and infrastructure.

33Ms. Dilwara indicated that she is agreement with Mr. Taras’ opinion and further provided her opinion that the ZBL is consistent with the PPS as the Subject Property is within the existing urban settlement area for Ridgeway-Thunder Bay/Crystal Beach. Ms. Dilwara opined that the ZBL will implement an efficient use of urban land as it involves intensification of an existing commercial property in the urban area with full services, minimizing land consumption and servicing costs.

Growth Plan for the Greater Golden Horseshoe, 2020 (“GP”)

34Ms. Dilwara indicated that the Subject Property is identified as Built-up Area in the Growth Plan and that the ZBL conforms with the general intent of the GP through efficient use of land and infrastructure and is intensification of an existing commercial use in the Built-up Area of Fort Erie.

Niagara Region Official Plan 2014 (“ROP”)

35The Panel heard from Mr. Taras that the ROP designates the Subject Property in the Gateway Economic Zone which is meant to attract investment and promote employment growth in strategic locations. Mr. Taras explained that the existing and proposed commercial uses support both the local neighbourhood and tourism. Mr. Taras provided his opinion that the ZBL is in conformity with the ROP in that the Subject Property is located within an existing urban area, increases density through intensification, utilizes existing municipal services and will generate employment opportunities.

36Ms. Dilwara indicated that she was present for Mr. Taras’ evidence and accepts and adopts his evidence.

Town of Fort Erie Official Plan (“OP”)

37Mr. Taras indicated that on September 19, 2022, Council adopted OPA No. 63 for the Subject Property. OPA No. 63 was not appealed and is in effect. Mr. Taras provided his opinion that the ZBL implements the OP and is in conformity with the OP.

38Ms. Dilwara indicated that her opinion is also that the ZBL implements and is in conformity with the OP.

39The Panel was presented with uncontroverted professional planning evidence from two qualified witnesses that the ZBL:

• has had appropriate regard for the applicable matters of provincial interest under s. 2 of the Act,
• is consistent with the PPS,
• has had regard for the GP,
• is in conformity with the ROP,
• is in conformity with the OP,
• represents good planning, and
• is recommended for approval.

Findings and Analysis

40The Panel accepts and is in agreement with the uncontested planning opinion evidence of Greg Taras and Anamika Dilwara and finds that the ZBL meets all the relevant policy tests of s. 2 of the Act, is consistent with the PPS, is in conformity with the GP, is in conformity with the ROP as well as the OP and represents good planning.

41The Panel considered the information available to the Town Council and the decision of the Town Council when deliberating its decision.

42The Tribunal finds that the ZBL satisfies the required legislative tests with reasons that include the following:

a) OPA No. 63 was not appealed and the ZBL implements the OP.

b) The expert noise opinion evidence referenced recommendations in the 2020 Noise Report that when implemented will bring the proposal into compliance with the NPC-300 Guidelines.

c) A 2.3 m high noise attenuation barrier and 3 m landscaped setback will buffer the proposed commercial uses from the abutting existing residential.

d) Changes were made to the proposal through the local process to reduce any potential impacts to the existing residential use including, but not limited to, reducing the number of car wash bays, removing the driveway access from Disher Street and increasing the rear yard setback of the existing dwelling on the Subject Property.

e) The Appellants did not provide any evidence which would persuade the Tribunal to amend or repeal the ZBL.

f) On the evidence, the Panel dismissed the Appeal.

ORDER

43THE TRIBUNAL ORDERS that the appeal against By-law No. 130-2022 of the Town of Fort Erie is dismissed.

“Astrid J. Clos”

ASTRID J. CLOS MEMBER

“P. Tomilin”

P. TOMILIN 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.