Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
June 08, 2023
CASE NO(S).:
OLT-21-001664
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant
1394706 Ontario Inc.
Subject:
Application to amend the Zoning By-law – Refusal of application
Description:
Refusal of ZBA to permit an aggregate extraction site
Reference Number:
D02-02-19-0038
Property Address:
7731 Fernbank Road
Municipality/UT:
Ottawa/Hamilton
OLT Case No:
OLT-21-001664
OLT Lead Case No:
OLT-21-001664
OLT Case Name:
1394706 Ontario Inc. v. Ottawa (City)
PROCEEDING COMMENCED UNDER section 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.10.
Subject :
Application for a (Class A or B) licence for the removal of aggregate
Reference Number:
626398
Property Address:
7731 Fernbank Road
Municipality/UT:
Ottawa/Ottawa
OLT Case No:
OLT-22-003316
OLT Lead Case No:
OLT-21-001664
Heard:
February 6, 2023, by video hearing and February 23, 2023, in writing
APPEARANCES:
Parties
Counsel
1394706 Ontario Inc.
Gregory Meeds Lauren Benoit
City of Ottawa
Timothy Marc
DECISION DELIVERED BY M.A. SILLS AND ORDER OF THE TRIBUNAL
Link to Final Order
1This was a Settlement for the consideration of the Tribunal in the matter of an appeal brought by 1394706 Ontario Inc. (“Applicant”) from the refusal of the City of Ottawa (“City”) of an application for an amendment to Zoning Bylaw Amendment No. 2006-250 (“ZBA”) pertaining to the property located in Part of Lot 11, Concessions 10, in the Geographic Township of Goulbourn, and municipally known as 7731 Fernbank Road in the City of Ottawa (the “subject property” / “Site”).
Context
2The Applicant submitted an application to the Ministry of Natural Resources and Forestry (“MNRF”) pursuant to s. 11(2) of the Aggregate Resources Act (“ARA”) for a Class “A”, Category 3 Pit Above Water licence, and a concurrent application to the City for a ZBA under the Planning Act to permit a licensed pit operation (the “Leslie Pit”) on the subject property. The purpose and effect of the proposed ZBA is to place the Leslie Pit lands in the Mineral Extraction Subzone 2 (“ME2”) zone category to allow the intended use.
3The subject property has an area of approximately 73 hectares (“ha”) and has 605 metres (“m”) of frontage on Fernbank Road. The proposed pit extraction area will occupy an area of approximately 38.5 ha, setback approximately 300 m from Fernbank Road. A 6 m berm will separate the extraction area from the remainder of the property. The aggregate operation is anticipated to produce approximately 500,000 tonnage per year.
4The Northwest Goulbourn Community Association (“NGCA”), represented by Peggy Jordan, requested and was granted Participant Status in the ZBA appeal at a Case Management Conference (“CMC”) held on August 10, 2022. For the background to the status of the NGCA in this appeal the reader is directed to the Decision and Order of the Tribunal issued on August 26, 2022.
Planning Evidence
5Tracy Zander is a Registered Professional Planner, a full member of the Canadian Institute of Planners and the Ontario Provincial Planners Institute, and she is the Owner and principal planner of ZanderPlan Inc. Ms. Zander has provided expert testimony before the Ontario Land Tribunal and its predecessors on numerous occasions. Ms. Zander was retained by the Applicant in February of 2018.
6Mr. Meeds informed the Tribunal that Ms. Zander was not able to attend at the start of the hearing due to a family emergency, but it was hoped that she will be able to join the hearing at some point.
7In the circumstances, the Tribunal offered two options to the parties: the first was that the Tribunal would stand down the present hearing and reconvene on another date; the second was that the hearing be concluded in writing. Both counsel preferred and agreed to the hearing proceed to conclusion in writing.
8Accordingly, in arriving at its Decision on the ZBA, the Tribunal accepts and relies on the Witness Statement of Ms. Zander in combination with the various background materials, reports and studies provided, including:
Staff Report to Agriculture and Rural Affairs Committee dates October 7, 2021
ZanderPlan Planning Report and Aggregate Resources Act Summary Statement, Revision July 7, 2021
Natural Environment Level 1 and 2 Report prepared by Geofirma, October 26, 2018 and Revision 1 January 10, 2019
EIS Addendum prepared by Gemtec, February 3, 2021
Stage 1 Archaeological Assessment prepared by Adams Heritage, September 2003, and Addendum September 1, 2010
Stage 2 Archaeological Assessment prepared by Past Recovery, February 26, 2014
Hydrogeology Study prepared by Morrison Hershfield, June 30, 2021
Transportation Brief prepared by McIntosh Perry, December 21, 2015; Addendum Traffic Letter Report prepared by Castleglenn Consultants, January 10,2019 and Addendum Traffic Letter, March 31, 2020
Haul Route Truck Traffic Noise Assessment prepared by Aercoustics, December 11, 2019
Storm Water Management Report prepared by Morrison Hershfield, June 30, 2021
9In Ms. Zander’s professional opinion, the proposed ZBA is consistent with the relevant policies of the Provincial Policy Statement, 2020 (“PPS”) and appropriately addresses matters of Provincial interest. The proposed pit will contribute to the financial well-being of the Province by providing finite aggregate material to near-by markets, will minimize environmental and public safety impacts through appropriate setbacks, berms, buffering and other measures implemented through the Site Plan, and will contribute to infrastructure and other public service facilities by making aggregate material available to the market.
10The subject property is located in a Rural Area where resource areas are located and “the management or use of resources” is identified as a permitted use subject to other policy considerations. Licensed pit operations are permitted on Rural lands subject to the implementing Zoning By-law to place the property in an appropriate Mineral Extraction zone. There is approximately 2.5 to 3 million tonnes of aggregate available for extraction on the Site.
11The proposed pit operation will have a setback from nearby residential lands that is greater than what is required by Provincial or City policies. The area to be rezoned for the proposed pit is located 300 m from the north side of Fernbank Road, and the existing residences on the south side of Fernbank Road are more that 325 m from the proposed pit operation. As well, the Site Plan for the pit, as approved by the MNRF, includes onsite setbacks, berms, vegetation and screening that will aid in minimizing impacts to the nearby sensitive land uses.
12The Traffic Study and the Haul Route Truck Traffic Noise Assessment addresses the compatibility of the proposed pit with near-by land uses, and impacts such as those related to dust are being managed through the Site Plan under the ARA. The studies related to truck traffic from the proposed pit operation, accepted by City staff, demonstrate that the existing roads can support the anticipated traffic from the Site.
13The Environmental Impact Study, which provides a full assessment of the natural heritage features on the Site, indicated that the avoidance and mitigation measures that have been accepted by City, Conservation Authority and MNRF staff will be implemented through the Site Plans under the ARA. The noise, traffic, environmental, hydrogeology and stormwater reports/studies have also been accepted by the City. The Site Plans as approved by the MNRF demonstrate that progressive rehabilitation of the Site will follow the direction of the extraction starting with the southwest part of the licensed area.
14The Traffic studies and reports concluded that the proposed increase in traffic resulting from the pit operation can be safely accommodated within Provincial standards and requirements. City staff have accepted the conditions from the traffic reports, and subsequently recommended that the ZBA be approved. Based on the uncontested study and analysis, it is Ms. Zander’s position that the expected level of vehicular traffic will not result in any undue adverse impacts on the surrounding lands.
15Overall, it is Ms. Zander’s professional opinion that the requested ZBA fully accounts for the Provincial interests and is consistent with the policies in the PPS. The ZBA meets the intent of the policies in the OP and will permit the establishment of a licensed Pit operation which will supply sand and gravel resources to the area, and in her opinion, represents good land use planning.
16Supporting studies and reports to address all relevant OP, PPS and ARA policies have been completed, reviewed, and accepted by City, Conservation Authority and MNRF staff. Mitigation measures including separation distance, natural heritage protections, acoustical and visual berms, vegetation, and hours of operation have been implemented through the Site Plans prepared under the ARA and accepted by MNRF staff. The ZBA meets the intent of the policies in the OP and will permit the establishment of a licensed Pit operation which will supply sand and gravel resources to the area. In Ms. Zander’s opinion, the issues raised by the NWGCA have been fully addressed in the supporting studies and reports completed and reviewed and accepted by City and Ministry staff.
Disposition
17In determining this matter the Tribunal relies on the various studies and reports provided and accepts the uncontested planning evidence and opinions of Ms. Zander. In particular, the proposed pit is consistent with the PPS policy objective of “Building Strong Communities”, and in turn, will contribute to the economic prosperity of the Province. Based on the studies and materials provided, the mitigation measures to be implemented, and the planning evidence of Ms. Zander the Tribunal is satisfied that the concerns and issues raised by the NWGCA have been considered and have or will be appropriately and satisfactorily addressed.
18The Tribunal finds that the proposed ZBA meets the policy criteria established by the Province and the City OP and aligns with the principles of good land use planning, and therefore should be approved.
ORDER
19The Tribunal Orders that the appeal is allowed in part, and the amendment to By-law No. 2008-250, as set out in Attachment 1, to this Order is approved.
“M.A. Sills”
M.A. SILLS
VICE-CHAIR
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.
Attachment 1
BY-LAW NO. 2021 - XX
A by-law of the City of Ottawa to amend By-law No. 2008-250 to change the zoning of part of the lands known municipally as 7731 Fernbank Road.
The Council of the City of Ottawa, pursuant to Section 34 of the Planning Act, R.S.O.1990, enacts as follows:
The Zoning Map of By-law No. 2008-250, entitled the “City of Ottawa Zoning By-law” is amended by rezoning the lands shown as Area A on Attachment 1 from RU to ME2[924r].
Section 240 – Rural Exceptions of the said By-law No. 2008-250 is amended by adding the following exception:
I
Exception Number
II
Applicable Zone
Exception Provisions
III
Additional Land Uses Permitted
IV
Land Uses Prohibited
V
Provisions
924r
ME2[924r]
-Asphalt batching and concrete batching are not permitted.