611428 Ontario Limited. et al. v King (Township), 2023 CanLII 71693

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 1, 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 9(1) of the Ontario Land Tribunal Act, S.O. 2021, c. 4, Sched.

Motion By: Township of King

Request for: Approval of the Un-appealed Portions of Zoning By-law No. 2022-053

Heard: July 17, 2023 in writing

APPEARANCES:

Parties

Counsel/Representative*

Township of King

Tom Halinski Jasmine C.M. Fraser

Multiple Appellants

Schedule 1

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

Link to Final Order

INTRODUCTION

1This motion was brought in writing by the Corporation of the Township of King (“Township”) pursuant to section 34(31) of the Planning Act (“Act”) and in accordance with Rule 10.3 of the Tribunal’s Rules of Practice and Procedure. The motion seeks:

a. An Order scoping the appeal of Deborah and David Solomon Weiss to pertain to only the lands bounded by King Street, Strawberry Lane and Edward Avenue to the north, Dufferin Street to the east, Jane Street to the west, and Highway 9 to the south;

b. An Order scoping the appeal of 84 Charing Cross International Inc. to pertain to only the lands identified on Schedule E to the Township’s Our King Official Plan 2019 (“OP”) as the Countryside Site-Specific Policy Area 2 (C-SPPA-2) (i.e., the Highway 11 Corridor Area);

c. An Order scoping the appeal of 611428 Ontario Limited to pertain to (i) the lands municipally known as 4670 18^th Sideroad, (ii) all lands zoned Future Use (F) by the Township’s Zoning By-law, and (iii) the lands municipally known as 13760 Keele Street;

d. An Order, pursuant to subsection 34(31) of the Planning Act, approving and bringing into force the un-appealed portions of the Township’s Comprehensive Zoning By-law 2022-053 (“ZBL 2022-053”). A draft of ZBL 2022-053 was provided, which identified the parts that remained under appeal, as well as the site-specific appeals pertaining to the entire by-law with respect to specific lands. This annotated draft of the ZBL, which is 328 pages, is identified as Exhibit 1 in this Motion. A note provided on page two of Exhibit 1 identifies the lands subject to the site-specific appeals and confirms that the parts of the by-law identified as blue in Exhibit 1 are under appeal. This note, specifically the entirety of page two of Exhibit 1, is attached as Schedule 2 to this Decision; and

e. Such further or other relief as counsel may advise and the Tribunal deems necessary.

2Two Case Management Conferences (“CMC”) have taken place on this matter, on March 14, 2023 (“First CMC”) and June 9, 2023 (“Second CMC”). At the First CMC, the Tribunal confirmed that adequate Notice had been provided, and granted Ray and Stacie Stanton Participant status in this proceeding. At the Second CMC, the Tribunal directed the Parties to provide a draft Procedural Order, including an Issues List, and the Hearings for the appeals were scheduled. Moreover, the Township requested that a motion in writing be scheduled so the Township may seek approval of the un-appealed portions of ZBL 2022-053 (“Un-appealed ZBL”). None of the Appellants, all present at the Second CMC, objected to the Township’s request to bring forward this motion, and thus, this present motion in writing was scheduled.

3The Tribunal received a Motion Record, dated June 30, 2023, from the Township (“Motion Record”), which is identified as Exhibit 2. A number of Appellants are involved in OLT File No. OLT-22-004723, as set out in Schedule 1 to this Decision, but they have not filed any materials with respect to this motion. This motion is unopposed.

BACKGROUND AND STATUS OF APPEALS

4On September 26, 2022, Township Council passed ZBL 2022-053 to replace the former Zoning By-law No. 74-53 (“ZBL 74-53”), as amended by Oak Ridges Moraine Area Zoning By-law No. 2005-23.

5ZBL 2022-053 is a new comprehensive by-law for the rural areas and hamlets within the Township, which were previously regulated by the ZBL 74-53, and applies exclusively to those areas. The rural area encompasses the Countryside and Hamlet designations of the Township’s OP, as well as the Nobleton Village Reserve Lands. The rural area excludes the urban Villages of King City, Nobleton and Schomberg, which are subject to other zoning by-laws.

6Following its passage, the Township received 17 notices of appeal with respect to ZBL 2022-053, including from the following: (1) Vito Pacifico, (2) B&D Love Inc., (3) 2731961 Ontario Inc., (4) 1186675 Ontario Ltd., (5) Heste Corporation, (6) Deborah and David Solomon Weiss, (7) Rideau Leasing Corp., (8) 84 Charing Cross International Inc., (9) Lloydtown Farms Ltd., (10) 611428 Ontario Limited, (11) Leading Edge Property Developments Inc., (12) Andris Michalis, (13) Northern Wide Plank Flooring Inc., (14) Tony Nicoletti, (15) 259303 Ontario Limited, (16) Penwest Holdings Limited, and (17) Bill and William Bowles Harris.

7The following status update was detailed in the Motion Record with respect to each appeal:

a. Appellants No. 1, 3, 7, 9, 11, 13, 14, 16, and 17 challenged certain provisions of ZBL 2022-053 on a site- or area-specific basis, as set out in each respective appeal. These appeals are ongoing.

b. Appellants No. 2 and 4 supported the passage of ZBL 2022-053 but filed a protective appeal to reserve their respective rights to fully participate in the hearing should changes be proposed to ZBL 2022-053 during this proceeding in such a way that would impact their specific landholdings within the Township.

c. Appellant No. 5 challenged the provisions of ZBL 2022-053 on a site-specific basis. Following discussions with the Township, Appellant No. 5 settled with the Township and brought a motion in writing, with the Township’s consent and support, seeking an Order of the Tribunal to approve site-specific modifications to ZBL 2022-053 with respect to its lands. In the Decision and Order dated June 7, 2023, the Tribunal granted this motion and approved the proposed site-specific modifications. Accordingly, this appeal has now been fully resolved and disposed of.

d. Appellants No. 6, 8, and 10 challenged a number of provisions of ZBL 2022-053 on a Township-wide basis. Since the filing of their appeals, the Township and the Appellants have engaged in further discussions and the Appellants have agreed to scope their appeals as follows:

i. Appeal No. 6 is scoped to only the lands bounded by King Street, Strawberry Lane and Edward Avenue to the north, Dufferin Street to the east, Jane Street to the west, and Highway 9 to the south;

ii. Appeal No. 8 is scoped to only the lands identified on Schedule E to the OP as the Countryside Site-Specific Policy Area 2 (C-SPPA-2) (i.e., the Highway 11 Corridor Area); and

iii. Appeal No. 10 is scoped to only (i) the lands municipally known as 4670 18^th Sideroad, (ii) all lands zoned Future Use (F) by the Zoning By-law, and (iii) the lands municipally known as 13760 Keele Street.

e. Appellant No. 12 failed to meet the appeal requirement under the Act and therefore its appeal was void.

f. Appellant No. 15 sought a consolidation of its appeal of ZBL 2022-053 with its appeals in OLT Case No. OLT-22-004321 regarding its site-specific planning applications. At the Second CMC, the Tribunal granted the Appellant’s request and accordingly this appeal, now consolidated with the site-specific appeals in OLT Case No. OLT-22-004321, will no longer be adjudicated as part of this proceeding.

8In short, it was indicated in the Motion Record that the remaining Appellants No. 1 to 4, 6 to 11, 13 to 17 have all scoped their appeals on a site, area, or zone-specific basis, and accordingly, numerous parts of ZBL 2022-053 are not in issue and not under appeal.

HEARING

9Subsection 34(31) of the Act provides that, before all of the appeals have been finally disposed of, the Tribunal may make an order providing that any part of the bylaw not in issue shall be deemed to have come into force on the day the by-law was passed. Subsection 34(32) of the Act provides that the Tribunal may make an order under subsection (31) on its own initiative or on the motion of any person or public body.

10In the Motion Record, the Township submitted that it seeks such an Order pursuant to subsection 34(31) of the Act, on the basis that: it is in the public interest to bring the uncontested portions of ZBL 2022-053 into force as soon as possible; the Order sought represents a fair and appropriate balance of all interests in the land use planning process; and it would provide certainty as to the applicable regulatory framework within the Township. Moreover, it would bring the un-appealed portions of ZBL 2022-053 into force and effect without prejudicing any appeals of ZBL 2022-053.

11In support of the motion, the Township relied on an Affidavit by Aloma Dreher, sworn on June 30, 2023. The Curriculum Vitae and Acknowledgement of Expert Duty form for Ms. Dreher were provided, and confirmed Ms. Dreher’s expertise in the area of land use planning. Ms. Dreher is relied upon by the Tribunal and, without objection, her opinions are qualified as expert opinion evidence in the field of Land Use Planning. Ms. Dreher has been involved in the development of ZBL 2022-053 since its initiation in November 2020 and has overseen the by-law review since December 2021 to its passage in September 2022, which resulted in the passage of ZBL 2022-053.

12The planning documents affecting this matter include: s. 2 of the Planning Act; the Provincial Policy Statement, 2020 (“PPS”); A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020, as amended (“Growth Plan”); the Lake Simcoe Protection Plan 2009 (“LSPP”); the Greenbelt Plan 2017; the Oak Ridges Moraine Conservation Plan 2017 (“ORMCP”); the York Region Official Plan 2010 (“ROP”); and the Township’s OP.

13Ms. Dreher opined that the Un-appealed ZBL has regard to matters of provincial interest indicated in Section 2 of the Act.

14Ms. Dreher explained that the Un-appealed ZBL encompasses lands that comprise the rural area of the Township, including the Township’s hamlets. She cited a number of applicable policies of the PPS relating to rural areas (such as Policy 1.1.4.1, 1.1.5.2, 2.1.1, and a number of others), and confirmed that the Un-appealed ZBL is consistent with those policies of the PPS.

15Ms. Dreher explained that the lands that are encompassed by the Un-appealed ZBL are located within the Growth Plan Area and within the Greenbelt Area of the Growth Plan. She stated that the Un-appealed ZBL conforms with the Growth Plan, and in particular, the policies relating to rural areas, water resource systems, natural heritage systems, and the agricultural system, some of which she cited and described.

16Ms. Dreher explained that the LSPP identifies urban areas and rural settlement areas, including villages and hamlets, as settlement areas, with policies 6.32-DP through 6.34-DP applying to existing settlement areas. Policy 6.45-DP provides direction for development or site alteration in relation to existing uses. The Township’s hamlets of Graham Sideroad, Lloydtown, Pottageville, Kettleby, and Snowball are all within the Lake Simcoe Protection Act watershed boundary and, as such, any future development in conformity with the Township’s OP will need to demonstrate conformity with the relevant policies of the LSPP. She opined that the Un-appealed ZBL conforms with the policies of the LSPP.

17Ms. Dreher next explained that the majority of the lands that are encompassed by the Un-appealed ZBL are within the Greenbelt Plan Area and include lands that are within the ORMCP Area. In accordance with Section 2.1 of the Greenbelt Plan, for lands within the ORMCP Area, the requirements of the ORMCP (Ontario Regulation 140/02), made under the Oak Ridges Moraine Conservation Act, 2001, continue to apply and the Protected Countryside policies do not apply, with the exception of section 3.3. The remaining lands within the Greenbelt Plan Area are within the Protected Countryside, as shown on Schedule 1 to the Greenbelt Plan. Ms. Dreher cited a number of policies and opined that the Un-appealed ZBL conforms with the Greenbelt Plan.

18Ms. Dreher explained that the lands that are encompassed by the Un-appealed ZBL within the ORMCP Area include lands that are within the ORMCP land use designations of Natural Core Areas, Natural Linkage Areas, and Countryside Areas. In the Countryside Area, Rural Settlements, including hamlets, are identified and delineated. Citing a number of relevant and applicable policies, Ms. Dreher opined that the Un-appealed ZBL conforms with the ORMCP.

19With respect to the ROP, Ms. Dreher detailed various policies that provided the framework and bounds for a number of aspects related to uses in this region. For example, among others, she referred to Policy 2.1.10, which sets out the permitted uses for lands within the Regional Greenlands System; Policy 2.2.9, which relates to natural heritage features; Policy 2.3.29, which relates to floodplains, hazardous lands, hazardous sites, and regulated lands; and Policy 3.5.4, which relates to housing types, including the range of housing types permitted in lands that are encompassed by the Un-appealed ZBL. In this respect, the majority of growth in the Township is directed to the Township’s Villages, which are not lands that are encompassed by the Un-appealed ZBL. Section 5 of the ROP provides policies for Hamlets. She concluded that the Un-appealed ZBL conforms with the ROP.

20With respect to the Township’s OP, Ms. Dreher explained that lands that are encompassed by the Un-appealed ZBL are located outside of the Villages, with the exception of the Nobleton Village Reserve which is subject to Section 5.16 of the OP. Section 3 of the OP contains general development policies, designed to support the Township’s overall vision, goals, and objectives. These policies, which apply across the entirety of the Township, are intended to support the growth and development of the Township as a healthy, sustainable, and complete community. Ms. Dreher opined that the Un-appealed ZBL conforms with the policies of this section, as well as with the Township’s OP as a whole. She detailed a number of policies in support of that position.

21Ms. Dreher summarized her professional opinion that the Un-appealed ZBL constitutes good planning, is in the public interest, and has appropriate regard to section 2 of the Act. The Un-appealed ZBL is consistent with the PPS, conforms with the applicable provincial plans, including the Growth Plan, LSPP, Greenbelt Plan, and the ORMCP, conforms with the ROP, and conforms with the Township’s OP for the reasons discussed above and in her sworn Affidavit. Ms. Dreher recommended that the Tribunal partially approve ZBL 2022-053, namely the Un-appealed ZBL, in the form set out in Exhibit “M” to her Affidavit, and identified as Exhibit 1 in this Motion Hearing.

22The Tribunal received no other materials in response to the Motion Record or any opposition from the other Parties with respect to the relief sought by the Township.

FINDINGS

23The Tribunal is satisfied by the evidence provided by Ms. Dreher, through her uncontroverted testimony provided by way of Affidavit. The Tribunal finds that the Un-appealed ZBL satisfies all legislative tests, as detailed above, and warrants approval.

ORDER

24With respect to the Order sought to scope three appeals, THE TRIBUNAL ORDERS THAT:

a. The appeal by Deborah and David Solomon Weiss is scoped and confined to only the lands bounded by King Street, Strawberry Lane and Edward Avenue to the north, Dufferin Street to the east, Jane Street to the west, and Highway 9 to the south.

b. The appeal by 84 Charing Cross International Inc. is scoped and confined to only the lands identified on Schedule E to the Township of King Official Plan 2019 as the Countryside Site-Specific Policy Area 2 (C-SPPA-2).

c. The appeal by 611428 Ontario Limited is scoped and confined to only (i) the lands municipally known as 4670 18th Sideroad, (ii) all lands zoned Future Use (F) by the Zoning By-law, and (iii) the lands municipally known as 13760 Keele Street.

25With respect to the Order sought pursuant to subsection 34(31) of the Planning Act, namely seeking an Order providing that parts of the Township of King’s Comprehensive Zoning By-law 2022-053 not in issue be deemed to have come into force on the day the by-law was passed, THE TRIBUNAL ORDERS THAT:

a. ZBL 2022-053 of the Township of King identified in Exhibit 1 to this Motion, save and except for the portions/provisions of said by-law being the appealed portions, shall be deemed to have come into force the day the by-law was passed, pursuant to subsection 34(31) of the Planning Act.

b. The regulations and schedules of ZBL 2022-053 identified with an annotation in Exhibit 1 to this Motion, being an annotated version of ZBL 2022-053, remain in issue by the Appellants. Moreover, ZBL 2022-053 remains in issue and under appeal in its entirety for the lands noted under the “Schedule A Index” of Exhibit 1, which is attached as Schedule 2 to this Order. The remaining regulations and schedules of ZBL 2022-053 that are not identified with an annotation in Exhibit 1 are no longer in issue and shall be deemed to have come into force on the day ZBL 2022-053 was passed.

c. This Order shall be strictly without prejudice to, and shall not have the effect of limiting, (a) the rights of a Party to seek to modify, revise, delete, or add to the unapproved regulations, sections, schedules, maps, figures, definitions, tables, and associated text in ZBL 2022-053 on a general, area-specific, or site-specific basis, as the case may be or (b) the jurisdiction of the Tribunal to consider and approve modifications, revisions, deletions, or additions to the unapproved ZBL 2022-053 regulations, sections, schedules, maps, figures, definitions, tables, and associated text on a general, area-specific, or site-specific basis, as the case may be.

26The scoping of appeals to a specific site or area is without prejudice to the positions taken by the Parties to those appeals so that if those appeals proceed to a subsequent hearing or motion, either on their own or as may be consolidated with other site-specific or area-specific appeals, no Party shall be permitted to take the position that the Tribunal ought not to approve site-specific or area-specific modifications, revisions, additions, and/or deletions to the affected sections, regulations, schedules, maps, figures, definitions, tables, and associated text on the basis that they deviate from or are inconsistent with such regulations, sections, schedules, maps, figures, definitions, tables, and associated text on a Township-wide basis or as approved in respect of other lands which are subject to the same regulations, sections, schedules, maps, figures, definitions, tables, and associated text. However, this does not affect the Township’s right to assert that the approved regulations, schedules, maps, figures, definitions, tables, and associated text should be applied to the specific sites or areas without modification on the basis that doing so is consistent with the Planning Act, provincial policies, conform to provincial plans, the Township of King Official Plan 2019, and/or constitutes good planning.

27The Member is not seized, but may be contacted through the Case Coordinator should procedural issues arise with the implementation of this Order.

“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:

Appellant

Counsel/Representative*:

1. Vito Pacifico

Milovan Prelevic

2. Robert Scheinberg B & D Love Inc.

Steven Ferri Alexandra Whyte Brendan Ruddick

3. 2731961 Ontario Inc.

Michael Cara Justine Reyes

4. 1186675 Ontario Ltd.

Steven Ferri Alexandra Whyte Brendan Ruddick

5. Heste Corporation

Steven Ferri Alexandra Whyte Brendan Ruddick

6. Deborah and David Solomon Weis

Steven Ferri Alexandra Whyte Brendan Ruddick

7. Len Payne, Rideau Leasing Corp.

David White

8. Zao Wang, 84 Charing Cross International Inc.

Amber Stewart Barry Horosko

9. Lloydtown Farms Ltd.

Steven Ferri Alexandra Whyte Brendan Ruddick

10. 611428 Ontario Limited

Steven Ferri Alexandra Whyte Brendan Ruddick

11. Leading Edge Property Developments Inc.

David White

12. Intentionally left blank

13. Shawn Peebles, Northern Wide Plank Flooring Inc.

David White

14. Tony Nicoletti

Self-represented*

15. 2593033 Ontario Limited (c/o Weston Garden Centre)

Alex Lusty

16. Penwest Holdings Limited

Michael Cara Justine Reyes

17. Bill and William Bowles Harris

Steven Ferri Alexandra Whyte Brendan Ruddick

SCHEDULE 2:

A COPY OF PAGE TWO FROM EXHIBIT 1 TO THIS MOTION

Note: The portions of Zoning By-law 2022-053 that are identified in blue are under appeal to the Ontario Land Tribunal (OLT Case No.: OLT-22-004723) and are not in force. In addition, the entirety of the Bylaw is under appeal on a site-specific basis for the following lands:

(1) 12940 Mill Road, specifically Part 3, Plan 65R-24448, Part of Lots 2 and 3, Concession 7, Township of King;

(2) 1265 19th Sideroad

(3) 1405 19th Sideroad;

(4) 13235 11th Concession;

(5) 1380 Wellington Street West;

(6) All lands within the King Street, Strawberry Lane and Edward Avenue to the north, Dufferin Street to the east, Jane Street to the west and Highway 9 to the south.

(7) 20150 Highway 11

(8) All lands within Countryside Site-Specific Policy Area 2 (C-SSPA-2) as per Schedule 'E' of the Our King Official Plan, as shown on Schedules A8 and A9 of this By-law;

(9) 3095 18th Sideroad;

(10) 4670 18th Sideroad;

(11) All lands marked as "F - Future Use" on Schedule A of this By-law;

(12) 13760 Keele Street;

(13) 4995 Lloydtown Aurora Road

(14) 5930 Lloydtown Aurora Road

(15) 675 Kettleby Road

(16) 7195 Highway 9

(17) 945 15th Sideroad

(18) Lands along Mill Road, specifically: PT LT 4 CON 7 KING AS IN R497091 (FIFTHLY) LYING W OF MILL RD; S/T A227033A, KI29395 TOWNSHIP OF KING (PIN No. 033620131)

(19) Lands along Mill Road, specifically: PT LTS 1, 2, 3, 4, CONCESSION 7 KING, AS IN R497091 SAVE & EXCEPT PTS 1 AND 2, 65R28384; PT W 1/2 OF E 1/2 AND E PT OF W 1/2 LOT 5 CON 7 KING AS IN B21208B & R106111; VAUGHAN; S/T EASE OVER PT LT 5 CON 7 AS IN A20443A; S/T EASE OVER PT LOTS 2 & 3 CON 7 AS IN A22305A; S/T EASE OVER PT LT 4 CON 7 AS IN A22703A; S/T EASE OVER WATER LOT OPPOSITE LT 4 CON 7 AS IN A64916A; S/T EASE OVER PT LT 5 CON 7 AS IN KI26778 (PIN No. 033630265); and

(20) Lands along Mill Road, specifically: PT LT 1 CON 7 KING, PT 1, 65R28384; VAUGHAN (PIN No.033630264).