Riddle v. Uxbridge (Township), 2023 CanLII 73707

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 11, 2023

CASE NO.: OLT-23-000256

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

Appellant: Marlene Riddle

Subject: By-law No. 2023-020

Description: To appeal rezoning of property to permit 7 single detached dwellings

Reference Number: ZBA 2012-08

Property Address: 309 Zephyr Road (Reg Rd 13), Part Lot 25

Municipality/UT: Uxbridge/Durham

OLT Case No.: OLT-23-000256

OLT Lead Case No.: OLT-23-000256

OLT Case Name: Riddle v. Uxbridge (Township)

Heard: July 31, 2023 by video hearing

APPEARANCES:

Parties Counsel/Representative*

Marlene Riddle (“Appellant”) M. Riddle* (Self-represented)

China Canada-Jing Bei Min International Co. Ltd. (“Applicant”) Not present

Township of Uxbridge/ Region of Durham B. Ruddick

DECISION DELIVERED BY STEVEN T. MASTORAS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter is before the Tribunal as an Appeal pursuant to s. 34(19) of the Planning Act (“Act”) resulting from a Township of Uxbridge (“Township”) Council Zoning By-law Amendment No. 2023-020 (“ZBLA”) approval permitting the development of seven single-detached dwellings. The property is known as 309 Zephyr Road (Regional Road 13), east of Regional Road 39 and is legally described as Part of Lot 25, Concession 3 (former Scott Township) in the Geographic Township of Uxbridge, in the Region of Durham (“Region”) (“Subject Property”).

2The Subject Property is currently designated as "Hamlet" in the Region of Durham Official Plan (“DROP”) and is zoned Rural (“RU”), Environmental Protection (“EP”), and Open Space Exception 3 (“OS-3”).

3The purpose of the Application is to permit the proposed development of a 2.96-hectare (“ha”) portion of the total 40 ha site, allowing for the creation of seven (7) single detached dwellings on an L-shaped cul-de-sac extending south from Zephyr Road. A turning circle is proposed at south end of the development which may be proposed as an extension through a separate application. Frontages of the proposed lots range from 35.4 metre (“m”) to 106.66m and lot areas range from 0.29 ha to 0.47 ha.

4The ZBLA approved by the Township on February 13, 2023 rezoned the portion of the Subject Property from RU to Hamlet Residential (“HR") and is intended to facilitate the implementation of a separate proposed Draft Plan of Subdivision (“DPS”) application. The separate DPS application proposes to create the seven lots and the proposed public roads. The portion of the RU lands to be subdivided is currently occupied by the former Lockwood/Hidden Ridge Golf Course entrance driveway and associated structures. The only matter before the Tribunal is the Appeal to the ZBLA.

5The Affidavit of Service providing notice of this Hearing is signed by Debbie Leroux on May 24, 2023 and is marked as Exhibit 1.

LEGISLATIVE TESTS, PROVINCIAL POLICIES, AND GUIDELINES

6Pursuant to the Act, key applicable policies regarding this matter are those found in the Provincial Policy Statement 2020 (“PPS”), Places to Grow: Growth Plan for the Greater Golden Horseshoe 2020 (“GP”), the Green Belt Plan, 2017 (“GBP”), the Lake Simcoe Protection Plan (“LSPP”), the DROP and the Township of Uxbridge Official Plan (“TOP”).

7Planning decisions by the Township must be consistent with the policies of the PPS, and conform to the policies of the GP, GBP, LSPP, DROP and the TOP. Decisions on the Application shall also have regard to criteria as set out in s.2 of the Act.

THE APPEAL

8The Appellant is self-represented as a neighbouring resident at 12 Dafoe Street, located across the street from the Subject Property on the west side of Dafoe Street, and submitted the Appeal based on the following reasons:

• The Appeal is to the ZBLA passed on February 13, 2023, which modifies "Minimum Lot area to 2,700 square metre (“m2”)" when in fact the "Purpose and Effect" of the By-law states "...lots range from 0.29 ha to 0.47 ha" and as per Township of Uxbridge 4: Zone Provisions 4.8.2 a. which state "minimum lot area of 3,000m2" when in fact the Owner owns 40 ha total. There is no need to reduce lot size requirement to 2,700m2 as the request was for "lot range from 0.29ha". Further, all lots will require individual wells and septic systems since there are no municipal services in Hamlet.
• The area in question is wetland and slopes towards existing properties and to a large designated Environmental Protection Area (“PSW”) with drainage eventually to Lake Simcoe. DROP (9.1.7) states "to establish a firm limit to Hamlet Development" and (9B 2.4c) states "larger lots that accommodate private services".

HEARING OUTLINE AND WITNESS TESTIMONY

9The Parties agreed that the Hearing would first proceed with the Township’s evidence and expert Planning witness, followed by the Appellant’s cross examination and closing statements. There were no witnesses expected to testify in support of the Appeal. The Tribunal was also informed that to avoid the possibility of duplicity/overlap in the proceedings, the Township advised the Applicant that their attendance was not necessary at the Hearing. The Tribunal appreciated this clarification in the interest of ensuring an expeditious Hearing.

10Counsel for the Township provided the Tribunal with a Township Book of Documents on July 21, 2023, which is marked as Exhibit 2.

11Elizabeth Howson, was qualified by the Tribunal as an expert Planning Consultant, engaged with the Township since 1994, who has appeared on numerous occasions before the Tribunal and its predecessor Tribunal/Board. Ms. Howson’s witness statement sworn on July 21, 2023 is marked as Exhibit 3.

12Ms. Howson initially opined regarding the relevant provincial policy documents/guidelines and local and regional matters. This testimony consisted of a high-level overview confirming that the Application is consistent with the PPS and conforms with all other policies and guidelines including the GP, GBP, LSPP, DROP, and the TOP.

13Regarding the PPS, and GP, Ms. Howson generally opined that the Application is consistent and conforms with the objectives relating to rural settlement areas, with limited growth and development. She also opined that “natural features and areas should be protected for the long term, and development should not lead to public health and safety concerns.” (Exh.3 p.20). Ms. Howson concluded that the Township also had regard to the Hamlet of Zephyr Development Plan, which included the Subject Property.

14Ms. Howson further opined that the Application satisfied all LSPP technical issues, site alteration plans, and stormwater management priorities. She asserted that the focus in this matter is the ecological health of the Lake Simcoe watershed, and that with the establishment of conditions required by the Lake Simcoe Region Conservation Authority, the Application is in conformity with the LSPP and should proceed.

15Furthermore, Ms. Howson asserted that the DROP is satisfied based on its early inception in the 1980’s, which addresses Hamlets being a predominate location for development and in its recently updated version, which also defines the boundary in the plan including the Subject Property. This is referenced in greater detail on page 21 of Exhibit 3. Finally, regarding the TOP, Ms. Howson stated this required minimal consideration in the analysis, because this plan was guided primarily by the direction of the DROP, and the GBP.

16Ms. Howson testified that the GBP states that

“Hamlets are subject to the policies of the Growth Plan and continue to be governed by official plans and related programs and initiatives and are not subject to the policies of this Plan save for the policies of sections 3.1.5, 3.2.3, 3.2.6, 3.3 and 3.4.2. Limited growth is permitted through infill and intensification of Hamlets subject to appropriate water and sewage services.” (Exh.3, p.20)

17Finally, Ms. Howson testified that there was a correction required to the ZBLA, which should allow for a more accurate alignment of the text relating to a Holding Zone provision (“H”) with the Schedule, and that this correction could be easily amended. She asserted that the H provision would not be removed until all conditions in the ZBLA were properly satisfied.

Appeal Issues

18In response to the four primary issues of concern noted in the Appeal, Ms. Howson attempted to separate the issues and opined on the submissions in the following order:

Issue 1:

“Township of Uxbridge Zoning By-law passed on February (sic) 13, 2023 modifies “Minimum Lot Area to 2,700 m2” when in fact the Purpose and Effect of the By-law states “….lots range from 0.29 ha to 0.47 ha” …”

19Ms. Howson opined that this concern lacked clarity, and that “the notice outlines “Purpose of the Applications” and that

“in that section it identifies some general parameters of the development including the proposed number of lots, dwelling type and road configuration. It also provides ranges for the frontages and areas of the proposed lots and the identified lot size range is “lot areas range from

0.29 ha to 0.47 ha.” (Exh.3, p.4).

20Furthermore, Ms. Howson asserted that at the Council meeting, the Applicant’s planner provided a more detailed overview of the proposed development which expanded on lot frontages, lot sizes, the ZBLA and more details regarding the proposal. She noted that if larger lots should be required resulting from further study through the DPS process, plans would have to be revised accordingly.

Issue 2:

“….and as per Township of Uxbridge “4: Zone Provisions 4.8.2 a. states “minimum lot area 3,000 m2” when in fact the Owner owns 40 ha total and there is no need to reduce the lot size requirements to 2,700 m2 as the request was for “lot range from 0.29 ha” and all lots will require individual wells and septic systems since there are no municipal services in the Hamlet.”

21Ms. Howson asserted that

“the lands which are the subject of the applications for re-zoning and plan of subdivision are part of a larger property which is 40 hectares in size, but the current applications relate only to approximately 5.13 hectares at the northern end of the property. The proposed lot sizes have been determined based on the background studies to date and support the proposed lot sizes subject to more detailed work to satisfy the conditions of draft plan approval.” (Exh.3 p.5).

22Furthermore, Ms. Howson testified that a number of studies had been completed with the original Application in 2012, including a Hydrogeological Assessment, an Environmental Impact Study, and Preliminary Stormwater Management Report. Subsequent studies under the new ownership were conducted in 2017, including a Preliminary Stormwater Management Report, and a Hydrogeological Report.

23Ms. Howson also asserted that

“the applications, including the technical background reports were reviewed by the Township of Uxbridge, including their consulting engineers AECOM; the Region of Durham and their peer review consultants, as well as the Lake Simcoe Conservation Authority. The Township and other agencies were satisfied with the proposed development and supporting technical studies subject to the establishment of draft plan conditions. This included the proposed lot sizes and layout subject as noted to additional work to satisfy the draft plan conditions.” (Exh.3, p.6).

Issue 3:

“It should also be noted that the area in question is wet land and slopes towards existing properties and to a large designated Environmental Protection Area (PSW) with drainage eventually to Lake Simcoe.”

24In response to this, Ms. Howson reiterated that

“the proposed development has been subject to a number of detailed technical studies which have been reviewed by the Township engineering consultant, peer reviewed by the Region of Durham consultants, and reviewed by the LSRCA. All of this work has considered the topography and drainage and in particular the proximity to the environmentally significant lands to the east.” (Exh.3, p.6).

Issue 4:

“Region of Durham Official Plan 2020 (9.1.7) states “to establish a firm limit to Hamlet Development” and (9B.2.4.c) states larger lots that accommodate private services”.”

25Ms. Howson opined that

“the Hamlet of Zephyr is in the rural area of the Township and the primary planning policy direction is found in the Region of Durham Official Plan. The Regional Official Plan currently designates hamlets with a symbol (See Document Book). However, the limit of the hamlet has been established in the Development Plan of the Hamlet of Zephyr (Hamlet Plan) which was initially adopted by Township Council in 1979 (See Document Book). The Hamlet Plan is a non-statutory document prepared by the Township and required by Section 10.4.2.1 of the initial Region of Durham Official Plan. The Hamlet Plan includes the subject lands in the Hamlet Boundary through Amendment No. 2 adopted by Township Council in 1981. In addition, it should be noted that the new Regional Official Plan (adopted in February 2023 by the Region but not yet approved by the province), now establishes a specific hamlet designation which includes the subject lands (See Document Book).” (Exh.3, p.6).

26Ms. Howson asserted further that

“with respect to the larger lot requirement in the current Regional Plan, no specific size is established in the Plan. As has occurred through this application, the lot size is established through detailed technical studies of the lands proposed for development recognizing that the lots will be developed on private services.” (Exh.3, p.6).

27In summary, Ms. Howson stated that there were numerous important conditions set out resulting from the review of various authorities and stood by the Planning report supporting the ZBLA including the following:

The establishment in the Zoning By-law of special zones for the subject lands; and,

The establishment in the Zoning By-law of a holding zone which will only be removed when the following conditions are complied with:

• A development agreement has been fully executed by the Owner and the Township of Uxbridge;
• A development agreement has been fully executed by the Owner and the Region of Durham; and,
• All necessary approvals have been received from Lake Simcoe Region Conservation Authority, and any conditions of the Authority have been appropriately incorporated into the plan of subdivision agreement and financially secured, all to the satisfaction of the Authority and confirmed in writing to the Township.

28Ms. Howson concluded that following extensive review of relevant policies and regulations, public input and that of agencies and the Applicant, in her opinion, the proposed development is appropriate and should be approved as it conforms with the Provincial guidelines and is consistent with Regional and Township policies. She further concluded that the Application is designed to protect natural features and areas, ensuring public health and safety, and is good land use planning.

ANALYSIS AND FINDINGS

29The witness statement supports the oral testimony provided by Ms. Howson which consistently highlights the Subject Property is in a rural settlement area known as the Hamlet of Zephyr. Provincial, Regional and Township planning policy directs the limited development permitted in the rural area to such communities provided such development meets specific criteria.

30The witness statement also describes the history of the Subject Property which began when Applications were originally submitted to the Township by QSRP Developments Inc. for a ZBLA, and to the Region for approval of a DPS in 2012. The property was then acquired by China Canada Jing Bei Xin Min International Co. Ltd. (“China Canada”) in 2017.

31The witness statement further discloses that at the time of the original application the Subject Property was described in the Planning Justification Report prepared by Martindale Planning Services (September 2012) as:

• "The portion of the property proposed to be subdivided is a 2.96 ha site occupied by the former Lockwood Golf Course entrance driveway and associated structures, including storage buildings.... and a maintenance building. The easterly part of the site consists of agricultural fields. The site generally slopes towards the northeast and is devoid of vegetation."
• The subject lands, based on the revised application put forward by China Canada, are part of a larger property which is 40 hectares in size (the former Hidden Ridge Golf Course), of which approximately 5.13 hectares (12.7 acres) is currently proposed for development.
• The current applications are to permit a plan of subdivision for seven lots to accommodate single detached dwellings on private services. The proposed Phase 2 development on the former golf course property to the south is to be the subject of separate applications.
• Lot sizes are proposed to range from 2,700-4,600 square metres in size. with between 39 and 74 metres of frontage. The subdivision will be accessed from Zephyr Road with the road ending in a cul-de-sac. Three lots will front on the entrance road. A short cul-de-sac connecting to the entrance road will provide access to four additional lots. A nitrate attenuation zone is to be located in an easement which will be subject to a restrictive covenant to the east of the proposed subdivision.
• The subject lands are located in the Hamlet of Zephyr in the southeast quadrant of Zephyr Road (Regional Road No. 13) and Regional Road No. 39. The subject lands have approximately 23.06 metres of frontage on Zephyr Road which provided access to the former golf course.
• The lands proposed for development are currently zoned "Rural (RU) Zone". The lands to the east and south are zoned "Recreational Open Space Exception No. 3 (OS-3) Zone", while the lands to the north and west are zoned "Hamlet Residential (HR)Zone."

32The Tribunal finds that the details of the Application have remained generally consistent throughout the extended period between the original filing and the present-day proposal, with some modifications resulting from peer analysis, public, and agency input. Additionally, Ms. Howson provided the necessary analysis in her clear and definitive testimony for the Tribunal to make a fulsome determination on the ZBLA Appeal.

33The Tribunal has considered the reasons for the appeal, and evidence of the Appellant very carefully, as well as the relevant public input provided to the Township in consideration of this matter. The Tribunal appreciates the efforts of the self-represented Appellant, which has allowed for discussion around the issue of the H provisions which requires clarity. It is also clear that the need for the recommended conditions sought and supported by Planning Staff and the Township were appropriately contemplated and almost entirely implemented in the Council decision.

34Ms. Howson’s experienced testimony made it very clear that the controls relating to all the concerns submitted by the Appellant, prior to and during the Township’s deliberations, and now before the Tribunal, will properly control the next steps in the development process. More specifically, when the H provisions are implemented more accurately via a replacement to the ZBLA by this Order, along with the DPS application process to follow, the Tribunal believes that this path should allow opportunity for additional analysis to proceed, as the proposal evolves.

35The Tribunal finds that the uncontroverted evidence of Ms. Howson, supports the approval given by Township Council at its February 13, 2023 decision supporting the ZBLA. Therefore, the Tribunal will order a replacement ZBLA Schedule “A” as it relates to the H provisions, to correctly reflect the text in the ZBLA.

36Finally, the DPS process to follow, allows for Planning Staff and other agencies, to thoroughly review all aspects of the Application, and address these issues appropriately at that time. The concern regarding any future applications relating to the balance of the Rural Recreational property, rests with the owners and the Township if/when such a proposal should follow. The Application represents good land use planning and is in the public interest. The Township’s ZBLA decision also represents consistency with the PPS, and conformity with the GP, GBP, LSPP, RDOP, the TOP.

37At the present, the only matter before the Tribunal is this Appeal pursuant to s. 34(19) of the Act, and the determination of the Tribunal is that the Appeal should be allowed, in part, allowing for the H provision amendment to the ZBLA Schedule “A”, and that in all other respects, the Appeal shall be otherwise dismissed.

ORDER

38THE TRIBUNAL ORDERS that pursuant to s. 34(26)(b) of the Planning Act, the Appeal to the Township Zoning By-law Amendment No. 2023-020, is allowed, in part, and the Tribunal directs the Municipality to amend By-law No.2023-020 as follows:

a) By deleting Schedule “A” to the Council passed By-law in its entirety and replacing it with the copy of Schedule “A” that is attached hereto as “Attachment 1”.

39THE TRIBUNAL FURTHER ORDERS that in all other respects, the Appeal is otherwise dismissed.

“Steven T. Mastoras”

STEVEN T. MASTORAS

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.