Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 16, 2023
CASE NO(S).: OLT-22-004264
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Core Vision Investments Inc.
Subject: Application to amend the Zoning By-law – Refusal of application
Description: To rezone in order to permit existing single dwelling as a Short-Term Accommodation.
Reference Number: P3110
Property Address: 689667 Monterra Road
Municipality/UT: The Blue Mountains/Grey
OLT Case No: OLT-22-004264
OLT Lead Case No: OLT-22-004264
OLT Case Name: Core Vision Investments Inc. v. The Blue Mountains (Town)
Heard: February 23, 2023 by video hearing and written submissions by March 29, 2023
APPEARANCES:
Parties
Counsel
Core Vision Investments Inc.
Mark Vernon
Town of The Blue Mountains
Leo Longo
DECISION DELIVERED BY BITA M. RAJAEE AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Hearing concerned an appeal under subsection 34(11) of the Planning Act (“Act”) by Core Vision Investments Inc. (“Applicant”) of the refusal, on July 4, 2022, by the Council of the Town of The Blue Mountains (“Town”) of a Zoning By-law Amendment (“ZBA”) pertaining to a property located at 689667 Monterra Road in the Town (“Subject Property”). The purpose of the ZBA is to rezone the Subject Property such that it can be used as a short-term accommodation (“STA”).
2As this was the first and only Hearing event, the Tribunal confirmed that proper Notice was given and marked the Affidavit of Service as Exhibit 1 to the proceeding, confirming the adequacy of Notice provided.
3In response to the Notice, the Tribunal received Participant status requests from Tony Slepanek and Terry Kellar, who collectively raised concerns regarding noise, previous and future infractions, incompatibility with the neighbourhood, the premature nature of this proposal, inappropriate location for a STA, and the potential that this would set a precent. The Applicant did not object to the two requests, and the Town consented to same. The Tribunal found that both individuals had an interest in the matter and would assist the Tribunal in understanding the potential impacts of the ZBA on the local community. As such, the Tribunal granted Participant status to Tony Slepanek and Terry Kellar.
DECISION
4For the reasons that follow, the Tribunal allows the appeal.
SUBJECT PROPERTY
5The Subject Property, owned by the Applicant, is triangular in shape, with a total area of approximately 0.45 hectares (1.1 acres). The property contains an existing two storey dwelling, centrally located on the lot, which is approximately 3,200 square feet, with five bedrooms and 3.5 baths, and is on full municipal services. No changes are proposed to the dwelling itself.
6To the east of the dwelling is a gazebo placed on a concrete slab. The existing access from Monterra Road is located at the eastern end of the Subject Property and the driveway traverses the northern lot line boundary to the front door of the dwelling. There are mature trees along the western and northern lot line boundaries. The Subject Property is generally flat in nature and has a fairly constant elevation at 190 metres (“m”). At the west lot line boundary, the land rises approximately 15-20 m up to Ridgeview Drive.
7The Subject Property is one of only two properties developed as single residential dwellings along Monterra Road. The second developed property is on the opposite side of Monterra Road, closer to Grey Road 21 approximately 600 m to the east, and backs onto the Monterra Golf Course. To the north and north-east of the Subject Property, the land is vacant. To the south is the Monterra Golf Course and further south is the Snowbridge residential development. To the south-east is the Monterra Estates development. Approximately 1 km to the west is Blue Mountain Resort and Blue Mountain Village. To the north-west are various established residential developments, including Summit Green, Tyrolean Village, and Heritage Corners.
PROPOSAL AND HISTORY OF THE APPLICATION
8The Subject Property is currently zoned Residential ‘R1-1’ under the Town’s Zoning By-law 2018-65 (“ZBL”). As per s. 6.1 of the Town’s ZBL, the permitted uses of the Subject Property under the R1-1 designation are: single detached dwelling, accessory apartment, group home, home childcare, and home business.
9The ZBA proposes that the existing dwelling be zoned Resort Residential (‘RR’), allowing for the provision of STAs with a maximum occupant load of eight persons. Additionally, a small part of the Subject Property is proposed to be zoned as Hazard ‘H.’ The Subject Property is 4,459.5 square metres (“m2”) in area, and of that, the proposed H-Hazard zone is to be 543.81 m2, leaving the balance of 3,915.69 m2 to be zoned RR.
10A pre-consultation meeting with the Town was completed on January 7, 2021, wherein the Town asked for the following:
a. A planning justification report demonstrating conformity of the application with the Town’s Official Plan (“OP”), which the Applicant submitted and is dated November 2021;
b. Consultation with the Grey Sauble Conservation Authority, who reviewed this application and recommended the Hazard-H designation for a portion of the Subject Property;
c. Application for a ZBA, which is the subject of the present appeal; and
d. Application for Site Plan approval, which was permitted to be submitted after a decision was received on the ZBA.
11Town staff reviewed this application in advance of its consideration by the Committee of the Whole. In a report to the Committee of the Whole dated June 21, 2022 (“Town Staff Report”), Town staff recommended approval of the ZBA, with the modification that a small section of land on the northwest boundary of the Subject Property be re-zoned to the Hazard ‘H’ zone. The Applicant accepted this and, as mentioned above, the proposed ZBA includes that designation.
12Town Council denied the ZBA on July 4, 2022 and the Applicant subsequently commenced this appeal.
13Of note, the Applicant submitted that the steps necessary before any STA use would be permitted are: ZBA approval, Site Plan approval, and then obtaining a business licence. This appeal only concerns the first step in the process. As explained in the Town Staff Report, at page 2, “While appropriate zoning is a precursor to obtaining a Short Term Accommodation Licence, it does not entitle an owner to a license. All owners must still meet the requirements of the Licensing By-law and be approved for a License in the normal course, notwithstanding zoning permissions.”
LEGISLATIVE TESTS
14In making a decision on the ZBA presently before it, the Tribunal must be satisfied that it is consistent with the Provincial Policy Statement 2020, that it conforms to/does not conflict with the Niagara Escarpment Plan 2017, and that it conforms to the applicable official plans.
15Further, the Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Planning Act. Moreover, in accordance with s. 2.1(1) of the Act, the Tribunal shall also have regard to the decision made by Council and to any information and materials that Council considered in making its decision.
16Lastly, the Tribunal must be satisfied that the proposed ZBA represents good planning and is in the public interest.
HEARING
17At the Hearing, the Applicant provided evidence in support of the ZBA, with the Tribunal receiving written and oral evidence from the following, both qualified by the Tribunal to give expert opinion evidence in the area of land use planning:
a. Miriam Vasni, registered professional planner, who had been retained by the Applicant from the commencement of the ZBA Application.
b. Trevor Houghton, registered professional planner, who provided evidence under summons by the Applicant. At the time of the subject application, Mr. Houghton was the Manager of Community Planning at the Town of the Blue Mountains. The Town Staff Report, which had recommended approval of this ZBA, had been prepared under his supervision (as well as Will Thomson, in-house counsel, and Shawn Everitt, CAO of the Town, who had both signed off on the report before it went to the Committee of the Whole). At the Hearing, he indicated that his opinion remained the same as the Town Staff Report he had signed off on.
18The Town opposed this appeal, asking the Tribunal to dismiss the request to zone the majority of the Subject Property as RR. The Town asked that the existing zoning of R1-1 on that same portion of the Subject Property be maintained. However, the Town supported the Applicant’s request that the western edge of the property be rezoned to an H-Hazard zone. Thus, to achieve that end only, the Town requested that the Tribunal allow the appeal, in part, and rezone that western edge of the property from R1-1 to H-Hazard, but maintain the R1-1 zoning for the remainder of the Subject Property. The Town requested that the Tribunal maintain Council’s decision to refuse the ZBA, and this is the crux of this Hearing.
19In support of that position, the Town did not call any witnesses, but extensively cross-examined the Applicant’s witnesses and provided oral opening and written closing submissions. Of note, in his opening submissions, the Town’s Counsel stated that a newly elected Council in the Town provided him with instructions in January 2023 to continue to oppose this ZBA and to obtain an expert planner in that regard, but when he reached out to a number of planners, none could accommodate the Hearing date of February 2023. The Tribunal notes that no adjournment request was received.
20The Town did also seek an alternate request from the Tribunal, which is discussed in further detail below. Namely, the Town requested that, in the alternative, if the Tribunal allowed the appeal, the proposed ZBA be revised as follows:
a. (i) a holding zone “h7” be imposed on the RR zone to acknowledge and ensure that a site plan agreement has been executed and registered on title respecting this commercial STA use; and
b. (ii) the RR zone be subject to a site-specific provision stipulating a minimum lot area of 3,900 m2 to ensure that no further redevelopment occurs on the subject property.
Matters of provincial interest under [s. 2](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec2_smooth) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html), consistency with the Provincial Policy Statement, 2020 (“PPS”), and Conformity with the Niagara Escarpment Plan, 2017 (“NEP”)
21Mr. Houghton and Ms. Vasni’s evidence was that this ZBA had appropriate regard to matters of provincial interest under s. 2 of the Act, was consistent with the PPS, and conformed with the NEP. Ms. Vasni explained that the Subject Property is in a Settlement Area as designated in the PPS. She cited a number of PPS policies and indicated that the ZBA was consistent with those. She further explained that the Subject Property is designated Escarpment Recreation Area in the NEP, which permits seasonal and permanent residential uses. Moreover, the Subject Property is not subject to Development Control under the NEP. The ZBA, she opined, was appropriate and desirable in support of existing recreational uses in the area (such as Blue Mountain Resort, Blue Mountain Village, and Monterra Golf Course) and conforms with the NEP.
22This evidence was not challenged in cross-examination. The Town submitted no opposing evidence on these issues.
Conformity with the Grey County Official Plan 2018 (“County’s OP”)
23Mr. Houghton and Ms. Vasni’s evidence was that the proposed ZBA conformed with the County’s OP. Their evidence was that the Subject Property is designated Recreational Resort Area in the County’s OP. Section 3.8 of the County’s OP states that the Recreational Resort Area designation is designed to “enhance recreational and tourism related activities.” Ms. Vasni’s evidence was that the only section in the County’s OP that addresses STAs is Section 4.2.8, which states:
“The County recognizes the need to identify and have regard for short-term accommodations…There are recognized benefits to allowing these types of short-term uses, although we recommend local municipalities implement regulating policies to address any potential long-term concerns.”
24Mr. Houghton and Ms. Vasni’s evidence regarding the conformity of the ZBA with the County’s OP was not challenged in cross-examination and the Town submitted no evidence to the contrary.
Conformity with the Town of the Blue Mountains Official Plan 2016 (“Town’s OP”)
25The Subject Property is located in the Residential Recreational Area designation in the Town’s OP (Schedule A-5), which recognizes areas where: there is a mix of seasonal and permanent residential and recreational uses; and where some residential uses are located to support access to the resort and recreational amenities. Both Ms. Vasni and Mr. Houghton confirmed that STAs were a permitted use under the Residential Recreational Area in the Town’s OP, specifically in section B2.5.
26Moreover, both Ms. Vasni and Mr. Houghton agreed that the proposed ZBA conformed to the Town’s OP, and specifically the requirements under Section B2.5, as follows:
a. Disruption to adjacent residences would be avoided through mitigation of potential impacts including noise control (noise aware monitor), waste management (enclosed garbage box currently on-site), setbacks (exceeds all required setbacks), buffering (meets or exceeds all buffering requirements as the closest residence is 261 feet away, buffered by trees and ridge), servicing (already connected to municipal water/sewer), and adequate on-site parking (large lot with adequate parking provided for in the proposed site plan). Further, this property will be subject to site plan control and be subject to all operational controls provided for by the business licensing by-law (including noise and occupancy loads);
b. This proposed ZBA, if approved, would satisfy the requirement that this dwelling, providing STA, be considered a commercial use, and permitted as such under the implementing ZBL;
c. No change is proposed to the dwelling already existing on the Subject Property, and therefore, the residential character of the house will be maintained;
d. The Subject Property is not within a single detached residential neighbourhood, an existing residential plan of subdivision, or a residential area which has been substantially developed for single detached residential dwellings;
e. The STA will provide mitigation measures, and as proposed, it meets all the current mitigation requirements under the ZBL;
f. The Subject Property meets all the provisions in the ZBL with respect to the scale of the STA use, parking requirements, separation distances, and setbacks and buffering, and is compatible with the surrounding uses;
g. The Subject Property does not abut a low-density residential use; and
h. The Subject Property will be subject to all other relevant municipal by-laws including the business licensing by-law.
Compliance with Town’s standards for STAs in ZBL 2018-65, as amended by ZBL 2021-59
27The Applicant is not seeking any relief or modification to the standards for STAs set out in the Town’s ZBL. Table 7.2 of the ZBL sets out the zoning standards for the proposed RR zone, including minimum setbacks, lot area, and coverage. Mr. Houghton and Ms. Vasni testified that the Subject Property, as is, would comply with all of the requirements of the RR zone. Ms. Vasni provided a Site Plan and a Parking Management Plan as part of her witness statement, showing how the proposed ZBA on the Subject Property would comply with the parking requirements in ZBL.
28Section 4.32 of the ZBL sets out the requirements for STA uses. Mr. Houghton and Ms. Vasni’s evidence was that this proposed ZBA meets all existing requirements in s. 4.32 of the ZBL, including that: the proposed maximum occupant load be eight (which would be enforced by municipal by-law officers through the STA licencing by-law); the nearest other STA use is more than 120 m away (231.18 m to be exact); the Subject Property is subject to Site Plan control (which application is pending the decision on the ZBA); the Subject Property does not abut a residential zone so there are no vegetative buffer requirements (though the Subject Property does have significant existing vegetation buffering it from the nearest residential property regardless); it has one enclosed garbage box; it is connected to municipal water and sewage services; and it meets the parking requirements in s. 4.32 (h) of the ZBL.
29Both Mr. Houghton and Ms. Vasni supported the approval of the proposed ZBA.
Regard for Council’s Decision
30The crux of the Hearing was the Town’s assertion that the Tribunal must have regard to Council’s Decision, and uphold same.
Town’s Position
31The Town relied upon subsections 2.1(1) & (3) of the Act and asked that the Tribunal have regard to Council’s decision to refuse the application and maintain the R1-1 zoning on the Subject Property. The Town’s Counsel submitted that the Town followed all statutory requirements of the Act in processing the ZBA application. Public notices were provided, well-attended public meetings were held, and staff reports were prepared. At the conclusion of this process and assessing all that it had heard, Council decided to refuse the requested rezoning for reasons set out in its decision.
32The Town’s Counsel further submitted that the information and material received by Council respecting this application consisted of more than the Planning Justification Report prepared by Ms. Vasni and the Town Staff Report supervised by Mr. Houghton. Written and oral submissions from the public were received, recorded, and considered, as detailed in the Municipal Record, which was made an exhibit to this Hearing, as were the videos and minutes from the Public and the Council Meetings. The Town’s Counsel recited subsection 2.1(3) of the Act, which explicitly states that “written and oral submissions from the public relating to the planning matter” are to form part of the “information and materials” that the Tribunal “shall have regard to.” The Town’s Counsel also referred to the two Participant Statements submitted on this matter.
33In support of the position that the Tribunal uphold the Council’s decision, the Town’s submissions, as presented through its Counsel, were as follows:
The Town has had a long history and experience in dealing with the problems associated with STA uses and with crafting a definition and land use planning regulations of STAs within the municipality through OP and zoning policies.
The most recent comprehensive review of its STA policies culminated in the passing of ZBL 2021-59 in July 2021, which was appealed but then confirmed and approved in Tribunal Decision OLT-22-001311, dated February 18, 2022. As a result of that Decision approving ZBL 2021-59, STA and Commercial Resort Unit provisions are now included in the Town’s Comprehensive ZBL
This ZBA application pertaining to the Subject Property was filed in November 2021, very shortly after the Town’s STA policies were confirmed and clarified in ZBL 2021-59. It was submitted that the ZBL provides limited permissions for new STA growth with very few “exception areas.” The Subject Property is not in one of those areas.
No previous such application
During the public meeting on February 7, 2022, the video of which was made an Exhibit to this Hearing, Council had asked about the last time that a property had been rezoned from R1-1 to permit an STA, and was advised by Town Planning Staff that “To our records there has been no owner initiated R1-1 rezoning to permit an STA.”
Both R1-1 and RR are acceptable
The evidence of Mr. Houghton and Ms. Vasni did support the contention that rezoning the Subject Property from R1-1 to RR was consistent with the PPS and conformed with current County and Town OP policies. However, under cross-examination, both Mr. Houghton and Ms. Vasni agreed that the current R1-1 zoning was also consistent with the PPS and conformed with current County and Town OP policies. Accordingly, the Town’s Counsel submitted, the Tribunal is faced with evidence from the same witnesses who opined that both the current R1-1 zoning and the proposed RR zoning meet the “consistency” and “conformity” tests. When two alternative zoning outcomes are acceptable, and the elected municipal Council has chosen one of those alternatives as representing good planning for the community, the Tribunal ought to respect Council’s decision and uphold same.
ZBA is premature as there is an insufficient consideration of impacts
Any initial analysis of the appropriateness of a zoning application must include an assessment of land use impacts of the proposed use on existing and planned surrounding uses, and this is a basic fundamental planning principle. In this instance, the Town’s Counsel submitted, the required analysis was wanting. Other than addressing parking, Town staff deferred almost all other land use impact considerations to either the site plan process and/or the STA licensing process. Too much reliance was placed on future applications addressing the potential land use impacts of the proposed STA use when such impacts ought to have been considered as part of this zoning application. One of Council’s stated reasons for refusing the ZBA was “compatibility concerns.” While seemingly relying on these future applications to ensure compatibility, existing planning tools that could have been utilized at this zoning stage to achieve that outcome were not considered.
As discussed below, the Town’s Counsel suggested that the use of the pre-existing “h7” holding zone provision could provide a minimum assurance that site plan approval and a registered site plan agreement would be finalized before the ZBA would take effect.
Whether the ZBA is what will actually happen
The proposed ZBA imposes a maximum occupant load of eight persons. The Tribunal was asked to consider whether it is a reasonable expectation that the proposed eight-person maximum occupant load will be respected / adhered to in this existing five bedroom dwelling. It was submitted that the eight person-limit would not be respected.
Moreover, the Town Staff Report noted that the Subject Property has been the location of past violations and charges for operating an STA without a licence, which was also one of the reasons included in Council’s Decision to refuse the application. Thus, it was submitted that it would be unlikely that the ZBA, if approved, would be respected.
34In addition, the Town submitted, through its Counsel, that this Hearing was not a “lis” between the two parties. Rather, the Tribunal must consider applications of public policy and protecting public interests. The following cases were referenced:
a. The case of Oro (Township) v. BAFMA Inc., 1995 CanLII 10658 (ON SC) (“Oro Case”): When this case was heard at the OMB, this Tribunal’s predecessor, all expert witnesses supported a planning document and outcome that was opposed by others. The OMB sided with those opposed. In upholding the OMB’s decision, the Ontario Divisional Court noted:
“The Board must give the parties a full and fair hearing and their submissions must be considered, but their views may be overruled upon the larger considerations of administrative policy… There is no "lis" between parties. A hearing means that the parties and the public be given an opportunity to be heard. While what is in the public interest is first determined by the municipal council, the 1990 Act places an obligation upon the Board and it must exercise its independent judgment on the merits of the application.” (p. 18)
“During the hearing, the Board heard from nine expert witnesses, all of whom supported amendment 37 and the related by-laws. These experts filed detailed supporting evidence. No expert evidence was called by the participants in opposition.” (p. 23)
“In my opinion, the fact that the Board chose not to follow all the expert evidence does not in itself justify the court in interfering with the decision when it had other persons who were appearing in opposition thereto. The Board was establishing policy.” (p. 28)
b. City of Ottawa v. Minto Communities Inc., 2009 CanLII 65802 (ON SC) (“Minto Case”) at paragraph 30:
“Furthermore, it is important to keep in mind that the appeal process before the Ontario Municipal Board is not merely a lis between parties, but a process requiring the OMB to exercise its public interest mandate. The decision to be made by the Board transcends the interests of the immediate parties because it is charged with responsibility to determine whether a land planning proposal is in the public interest. At first instance, that public interest is determined by Municipal Council, but on an appeal the Board has the obligation to exercise its independent judgment on the planning merits of the application and to assess the proposal and the positions of the parties from the perspective of applicable legislation, regulations, provincial plans, the provincial policy statement, official plans and bylaws and even the potential impact on neighbouring municipalities. In doing so, it brings its own expertise to bear.”
35In summation, the Town’s Counsel submitted that, at a Tribunal Hearing considering a ZBA from a decision to refuse the application, a municipality is not required or expected to restrict its evidence and submissions to solely the reasons set out in the Council Decision. As stated in the Oro Case, quoted above, the Tribunal “must give the parties a full and fair hearing and their submissions must be considered” and then exercise its “independent judgement on the merits of the application.” The Town opposed this appeal. It was represented by legal Counsel at the Hearing. Oral opening and written closing submissions were made. The witnesses called by the Applicant were cross-examined and tested by the Town’s Counsel. It is all of this that the Tribunal must consider in making its Decision.
Applicant’s Position
36With regard to section 2.1 of the Act, the Applicant’s Counsel went through the Council’s reasoning for refusing this Application, outlined in their decision, and submitted the following with respect to the refusal:
Council’s Decision
Applicant’s Response
Not a unanimous decision
The decision of Council was not unanimous. Mr. Houghton confirmed that, in the 6-1 decision, Jim Uram, a former registered professional land use planner, voted in favour of the ZBA.
First Reason: “The Town’s Official Plan sets out that Short Term Accommodation uses are not permitted in the R1-1 Zone.”
Under the Town’s OP, the Subject Property is designated Residential Recreational Area, which permits STAs. The OP provides that STAs “may be considered appropriate in some residential areas, provided they are adequately regulated to avoid land use conflicts with the surrounding area” (Section B2.5 (a) of the Town’s OP). The expert evidence of both Mr. Houghton and Ms. Vasni was that no Official Plan Amendment (“OPA”) was required to permit the proposed use and the proposed ZBA conformed with the Town’s OP, as discussed in detail above.
Second Reason: “Compatibility concerns”
The Public Meeting Video of February 7, 2022, the Council Meeting Video of July 4, 2022, and the Committee of the Whole Meeting of June 21, 2022 were made Exhibits to this Hearing.
At the Committee of the Whole meeting, Shawn Potsma, senior policy planner with the Town, described the Town’s STA regulation regime as “very restrictive” but acknowledged that this ZBA met the restrictive requirements of the Town for an STA. Mr. Houghton’s evidence at the Hearing was that he concurred with Mr. Potsma’s opinion.
Moreover, the Town Staff Report extensively addressed compatibility concerns. Mr. Houghton confirmed that his opinion remained as contained in the Town Staff Report and additionally testified that this ZBA would be compatible with the surrounding uses. Ms. Vasni’s opinion was also that this ZBA would be compatible with the surrounding uses. She added that any negative impacts were mitigated by the fact that the closest residence was 261 feet away from the house on the Subject Property and separated by a large ridge and significant amount of trees between the two houses. As noted in the Town Staff Report, there is approximately 9 m of “significant vegetation” which provides a buffer between the Subject Property and the nearest residential dwelling.
Third Reason: “Previous infractions for operating a Short-Term Accommodation without a license at the subject property by current ownership group.”
On this issue, the Applicant’s Counsel submitted that there was no direct evidence provided regarding the specifics of any previous by-law infractions. The Town called no evidence from its by-law officers. Town staff noted the existence of previous infractions in the Town Staff Report but noted the licensing process was separate and distinct from the re-zoning process. Mr. Houghton’s evidence at the Hearing was that the existence of any prior infractions did not change his recommendation that this ZBA be approved.
The Applicant’s Counsel further submitted that the existence of by-law infractions does not change how a planning application is considered for approval. He referenced the case of Blue View Chateaux Inc. v Blue Mountains (Town), 2017 CanLII 85744 (ON LPAT), wherein it was noted that the property for which the ZBA was sought was the subject of a prior prosecution by the Town for operating a STA in contravention of the Town’s by-laws. An interim STA was permitted as a result of that prosecution, while planning applications were processed. The Tribunal wrote at paragraphs 6 and 7: “The existence of the interim STA on the property is neither an advantage nor a disadvantage to the Applicant in this proceeding. It has no bearing on the Decision, as the Board generally ignores its existence.”
Both Ms. Vasni and Mr. Houghton testified that the existence of by-law infractions did not impact their recommendation to approve this ZBA. Both witnesses addressed the by-law infractions in their evidence only because the by-law infractions were a preoccupation of Council and one of the primary reasons it turned down the ZBA. Mr. Houghton, in fact, explained that in the Town Staff Report, at page 2, the previous bylaw infractions are noted, but ultimately, even after consultation with the Town’s legal department, it was found that the ZBA could be considered and recommended despite previous infractions.
Fourth Reason: “Particular urgency and need for attainable housing in the area where the subject property is located.”
The Subject Property is a 3,200 square foot single detached house. The Applicant’s Counsel submitted that it was not clear how this property would have any impact on any alleged need for “attainable housing” in the area. Ms. Vasni’s testimony was that there is no policy in the Town’s OP with respect to “attainable housing,” and in fact, the word “attainable” is used only once in the Town’s OP in Section B10. Ms. Vasni advised that the Town could have requested an “Attainable Housing Report” during the pre-consultation process, but no such report was required by Town staff. Town staff did not raise “attainable housing” as a concern in the Town Staff Report. The Town submitted no evidence (expert or otherwise) that there was a “need for attainable housing” in the area in which the Subject Property was located, let alone any evidence as to how this specific Subject Property would meet such an alleged need.
37With respect to the cases cited by the Town, the Applicant’s Counsel submitted that the Minto Case also stands for the proposition that “the Board does not have to find that the Council decision is demonstrably unreasonable to arrive at an opposite conclusion” (paragraph 33).
The Town’s Alternate Request
38In its closing submissions, the Town requested that, in the alternative, if the Tribunal allowed the appeal, the ZBA proposed by the Applicant be revised as follows:
a. (i) a holding zone “h7” be imposed on the RR zone to acknowledge and ensure that a site plan agreement has been executed and registered on title respecting this commercial STA use; and
b. (ii) the RR zone be subject to a site-specific provision stipulating a minimum lot area of 3,900 m2 to ensure that no further redevelopment occurs on the Subject Property.
39The Town’s Counsel submitted that these requested revisions would be in conformity with the Town’s OP policies and ensure that the STA use proceeds in an orderly process and results in the development in the form and scale as was presented to the Tribunal. The “h7” hold is a pre-existing zoning provision (s. 10.2.7 of ZBL 2018-65) specifically to be used for lands subject to a future site plan.
40If the Tribunal granted this alternate request, the Town’s Counsel further requested that the Tribunal withhold its final Order allowing the appeal, in part, as revised as set out in paragraph [37] of this Decision, until:
a. (i) the Tribunal has received from the Parties a ZBA approved in form and content that has been revised to incorporate the above provisions; and
b. (ii) the Tribunal has been advised that the Applicant has been granted and issued an STA Licence for the Subject Property.
41The Town’s Counsel submitted that withholding a final Order until condition (ii) is satisfied would be both appropriate and necessary, as the Applicant and the expert planners relied significantly on the licensing process to address several land use planning impact issues at the licensing stage rather than the zoning stage. Thus, to ensure implementation of measures before the STA ZBA takes effect for the Subject Property and to ensure that all necessary and required steps to the establishment of an STA have been completed, the Town requested that the Tribunal withhold its final Order pending the completion of that licensing process.
Applicant’s Response
42With respect to the Town’s alternate request, the Applicant’s Counsel submitted that significant planning evidence was provided at the Hearing regarding the appropriateness of this Subject Property for a STA use from a land-use impacts analysis. As an example, in Ms. Vasni’s planning justification report in support of the initial application dated November 2021 (at page 11), she wrote:
“The subject lot is one of only two properties developed as single residential dwellings along Monterra Road. The second developed property is on the opposite side of Monterra Road, closer to Grey Road 21, approximately 600m (1,970ft) to the east. The closest dwelling in Monterra Estates is approximately 200m (656ft) south-east of the subject property. An indoor and outdoor Noise Aware Monitor, or equivalent will be installed on the property and inside the dwelling, an enclosed waste/recycling depot consisting of a wooden garbage box currently exists on the subject property, the existing dwelling complies with all implementing R1-1 Zone setbacks, the site has natural buffering with mature tree cover along the western and northern lot line boundaries, as well as a number of existing mature coniferous and [deciduous] trees along the lot frontage, the site has existing municipal water and sewage services, and the site can provide adequate on-site parking”
43Moreover, the Applicant’s Counsel submitted that the Town’s suggestion of a site-specific condition requiring a minimum lot area of 3,900 m2 to ensure no development occurs on the Subject Property is unnecessary. There is no evidence that any future development is contemplated. If there was any future development, it would be subject to all the usual planning controls and processes. Further, the planning ramifications of this late breaking proposed condition have not be adequately considered.
44The Applicant submitted that, apart from simply rezoning the Subject Property to RR-H, no additional restrictions are required in the ZBA because the ZBL already sets out restrictive standards for STA uses, in addition to the requirements under the Town’s Business Licensing By-law No. 2021-70. No holding provision is required because even if this proposed ZBA is approved, the Subject Property cannot be used as a STA until a site plan application is submitted and a business licence application is approved.
45With respect to the Town’s suggestion that the Tribunal withhold its final Order pending the issuance of a STA license, the Applicant’s Counsel submitted that it would not be appropriate for the Tribunal to do this, as the licensing process is a separate and distinct process from the Tribunal’s statutory duty in this appeal. There is a separate appeal process under the STA licensing by-law. Further, STA licences have a fundamentally different nature in that they are issued to a person (including corporations), do not run with the land, are not transferable, and may only be valid for a temporary period at the Town’s discretion. Lastly, the Applicant’s Counsel submitted, if the concern is the premature use of the Subject Property as a STA, since a STA licence is a requirement for operating a STA, the Subject Property cannot be used as such until a STA licence is granted. Moreover, the Town has many tools at its disposal to enforce compliance.
FINDINGS AND DISPOSITION
46The Tribunal accepts the planning evidence and opinions of Ms. Vasni and Mr. Houghton, and finds that the ZBA as proposed aligns with good land use planning, satisfies all legislative tests detailed above, and warrants approval.
47The question before the Tribunal solely relates to the ZBA. As clarified by the Applicant and the witnesses it put forward, this is the first step in the process of the dwelling being used as a STA, with additional steps that are required to take place if the ZBA is approved. As such, the applicable test in determining the ZBA is restricted to the ZBA matter alone, and is identified at paragraphs [14] to [16] of this Decision.
48The evidence that was before the Tribunal, as testified to by Ms. Vasni and Mr. Houghton and submitted by the Applicant’s Counsel in opening and closing submissions, was that the ZBA:
a. Was consistent with the PPS;
b. Conformed to the NEP;
c. Conformed to the applicable official plans, in this case the County’s OP and the Town’s OP;
d. Had regard to the matters of provincial interest set out in s. 2 of the Act; and
e. Represented good planning.
49On these parts of the legislative test for the approval of a ZBA, the Tribunal did not receive contrary evidence. Moreover, both expert planning witnesses confirmed that the ZBA was limited to the use of the property as a commercial STA (and rezoning a portion of the property as Hazard), and no other ZBA provisions were required as the Subject Property was entirely in conformity with the ZBL.
50The two remaining parts of the legislative test, on which the Parties disagreed, were:
a. Whether the Tribunal must refuse the ZBA as a way to have regard to Council’s decision and the information and materials that Council considered. As the Town’s Counsel worded it, “the Tribunal ought to respect Council’s decision.”
b. Whether the ZBA was in the public interest (if its approval was the opposite of what elected Council had decided).
51On these points, the Tribunal found that having regard to Council’s decision is not tantamount to maintaining it, and that, based on the totality of the evidence provided, the ZBA was in the public interest.
52The Minto Case, provided by the Town’s Counsel, is particularly helpful in outlining the Tribunal’s obligations in having regard to Council’s decision. For example:
25The court has not had occasion to consider the meaning of the phrase “have regard to” under s.2.1 of the Planning Act. However, many judicial decisions considered that phrase in a different context, prior to Bill 51. For example, before the present version of the Planning Act, requiring the Board to “find consistency with” the Provincial Policy Statement, the Act used to require only that the Board “have regard to” the Provincial Policy Statement. In Concerned Citizens of King Township v. King Township[10] A. Campbell J. observed that “have regard to” falls somewhere on a scale that stretches from “recite them then ignore them” to “adhere to them slavishly and rigidly”. Other cases do not helpfully address a more definitive point along that spectrum, though they do clearly suggest the conclusion that “have regard to” is significantly less deferential than “be consistent with”. In this case, counsel for the City admits slavish or rigid adherence sets the bar too high. Counsel for Minto admits that “reciting but ignoring” the municipal decision sets the bar too low.
30Furthermore, it is important to keep in mind that the appeal process before the Ontario Municipal Board is not merely a lis between parties, but a process requiring the OMB to exercise its public interest mandate. The decision to be made by the Board transcends the interests of the immediate parties because it is charged with responsibility to determine whether a land planning proposal is in the public interest. At first instance, that public interest is determined by Municipal Council, but on an appeal the Board has the obligation to exercise its independent judgment on the planning merits of the application and to assess the proposal and the positions of the parties from the perspective of applicable legislation, regulations, provincial plans, the provincial policy statement, official plans and bylaws and even the potential impact on neighbouring municipalities. In doing so, it brings its own expertise to bear.
31The legislature used language that suggests minimal deference when choosing the words “have regard to”, considering the many other expressions it could have used to signal the level of deference suggested by the City in this appeal. In my view the traditional role of the Board, and the broad powers it exercises, should not be altered radically without a more clear and specific expression of legislative intent.
33… The words “have regard to” do not by themselves suggest more than minimal deference to the decision of Municipal Council. However, in the context of the Planning Act, and balancing the public interest mandates of both the Board and the municipality, I would agree with Member Stefanko in Keswick Sutherland that the Board has an obligation to at least scrutinize and carefully consider the Council decision, as well as the information and material that was before Council. Furthermore, because Bill 51 now obliges Council to give written reasons when refusing to adopt requested planning amendments, which are part of the record before the Board, the Board also ought to carefully and explicitly consider the specific reasons expressed by Council. However, the Board does not have to find that the Council decision is demonstrably unreasonable to arrive at an opposite conclusion.
[emphasis added by the Tribunal]
53In short, the Tribunal’s role, as an appeal body to Council’s decision, is to consider the reasons expressed by Council and think about them when evaluating the evidence it hears at the Hearing. However, as rightly pointed out by the Town’s Counsel, the Tribunal Hearing is not restricted to the evidence and submissions before Council at the time it made its decision. At a Tribunal Hearing, including this one, both Parties are provided with the opportunity to present a full case and provide additional evidence should they so choose. The public is also invited to participate in the Hearing in various ways. More importantly, the Tribunal must exercise its independent judgement, based on the totality (including potentially new or additional) of evidence before it when arriving at its conclusion.
54In this case, the evidence presented in support of the ZBA was extensive. The submissions provided with respect to Council’s decision were extensive as well. Below are the Tribunal’s findings with respect to the Town Counsel’s submissions and Council’s decision.
55The Tribunal acknowledges that this has been a live issue in the Town, especially in light of the significant resort uses that arise from the nearby Blue Mountain Village area and other recreational facilities. The Tribunal also acknowledges that the Town has now taken measures to provide some clarification and boundaries with respect to this use, by way of ZBL 2021-59. Specifically, Section 4.32 of the Town’s ZBL 2018-65 was amended to include Section 4.32(a), which states: “No person shall use any land or erect, alter or use any building or structure for the purpose of a short term accommodation use within any Residential Zone unless otherwise permitted by this By-law.” The ZBL allows STA growth in certain areas of the Town, but the Subject Property is not located in one of those areas.
56However, the Tribunal also notes that a ZBA is expressly for the purpose of amending an in-force ZBL and it is natural that it would seek something that the in-force ZBL does not allow until the ZBA is approved. The applicable legislative test in determining whether the ZBA should be approved is outlined at paragraphs [14] to [16] of this Decision. The history of STA uses, while informative of some of the reasoning behind the Council’s position, does not form part of the legislative test for evaluating the ZBA. The Tribunal also notes that ZBL 2021-59 was specifically enacted to include STA and Commercial Resort Unit provisions in the Town’s Comprehensive ZBL, signifying that the Town does see this use as something that is and will continue to be present and applicable in the Town.
57With respect to the submission that this is the first application (rezoning from R1-1 to RR) of its kind in the Town, the Tribunal does not find that persuasive to any branches of the legislative test. The Tribunal treats each application as entirely separate from any others, as the particularities of each application (location, size, purpose, details of the area, character, and so on) are unique. Thus, it would not have been a factor for consideration even if numerous applications like this had been previously submitted.
Both R1-1 and RR are Acceptable
58The Town argued that the expert planners had confirmed that the Subject Property’s current zoning (R1-1) also meets the requirements of the legislative test and constitutes good planning. As such, in a case where two alternative zoning outcomes are acceptable, and the elected municipal Council has chosen one of those alternatives as representing good planning for the community, the Tribunal ought to respect Council’s decision and uphold same.
59As stated in the Minto Case, quoted above, the Tribunal ought to “scrutinize and carefully consider” Council’s decision, but is not required to agree with it. Moreover, as admitted by the Town’s Counsel, the evidence before the Tribunal was more fulsome than that before the Council. The Tribunal had the benefit of video recordings and meeting minutes from the entire public process, numerous document books and supplementary document books, witness statements, Participant statements, visual exhibits, the entire Municipal Record, and two proficient Counsel to assist and provide legal analysis and relevant caselaw. As such, this was not a case where the planners indicated that both zonings on the property were equal and that the information supporting both was on the same footing. This was a case where significant evidence was provided in support of the ZBA before the Tribunal.
60Additionally, in most, if not all, ZBA cases, the current zoning on the property already meets the legislative test outlined above. The question before the Tribunal is not whether the ZBA would be better than the current zoning. This comparative analysis is not part of the test for a ZBA. The question is simply whether the ZBA meets the legislative test outlined at paragraphs [14] to [16] of this Decision. Moreover, the Tribunal finds that if this argument was accepted, then the Tribunal’s role as an appeal body would become significantly limited, because it would have to defer to Council’s decision in most ZBA cases where Council had refused the application.
ZBA is Premature as There is Insufficient Consideration of Impacts
61It was submitted that the appropriateness of a zoning application must include an assessment of land use impacts of the proposed use on existing and planned surrounding uses. In this case, however, other than the issue of parking, Town Staff had deferred almost all other land use impact considerations to either the site plan process or the STA licensing process.
62The Tribunal finds that, while Town Staff may have considered parking, the expert witnesses before it did consider a number of other factors having to do with land use impacts. Paragraph [26] of this Decision is an example of such an analysis that was provided to the Tribunal.
63Moreover, the Tribunal notes that, as submitted by the Town’s Counsel, the Town just recently went through an exercise of evaluating STAs, culminating in the passing of ZBL 2021-59. The Tribunal received submissions and evidence that the ZBA was step 1 of a 3-step process, which would include a Site Plan Approval and obtaining a business license. The STA could only function after all three steps had been completed. If this process was not acceptable, or would result in premature applications, the Town could have selected a different process for STAs, but it did not. The Tribunal also notes, as detailed at paragraph [10] of this Decision, that at the pre-consultation meeting on January 7, 2021, the Town asked the Applicant for a ZBA application and a Site Plan approval, but the Applicant was permitted to submit the Site Plan after a decision was received on the ZBA. Again, the Town could have chosen differently in that case.
64In addition, the Tribunal did not hear evidence from either planner that this ZBA was premature. Both planners agreed that the ZBA met all legislative requirements, and its approval (as is) was good planning.
Whether the ZBA is What Will Actually Happen
65It was submitted that the ZBA imposes a maximum occupant load of eight persons, which in this case would likely not be respected as the dwelling is quite large (5 bedrooms and 3.5 baths). However, the Tribunal cannot stipulate on what the Applicant may or may not do. It is not within the jurisdiction of the Tribunal to penalize an Applicant on the basis that the dwelling could fit more than the eight-person limit. The Tribunal is simply asked to consider the ZBA. What the Applicant may then do with it is not a factor to consider in assessing the ZBA. Additionally, the Tribunal notes that the Applicant has not requested to increase the eight-person limit as a provision to the proposed ZBA, and the Tribunal will assess the ZBA as has been submitted.
66Lastly, as testified to by the planners, if the Applicant does advertise or rent the property for more than the eight-person maximum, then there are a number of recourses available to the Town to deal with that.
Council’s Stated Reasons for Refusal
67The Town’s Council cited the following reasons for refusing the ZBA:
a. The Town’s Official Plan sets out that Short Term Accommodation uses are not permitted in the R1-1 Zone.
b. Compatibility Concerns.
c. Previous infractions for operating a Short-Term Accommodation without a license at the subject property by current ownership group.
d. Particular urgency and need for attainable housing in the area where the subject property is located.
68The Tribunal is persuaded by the Applicant Counsel’s submissions in response to each of these points, detailed at paragraph [36] of this Decision. Namely, the Tribunal finds that, as testified to by the planners at the Hearing, the Town’s OP does permit STA uses. With respect to compatibility concerns, no evidence at the Hearing supported that finding. In fact, the evidence presented was that the dwelling would not be changed in any way, with the neighbourhood remaining as it was, and the STA use would not create compatibility concerns either. Any potential concerns were either already addressed by the ZBA (through mitigation factors taken into consideration) or would be addressed in the next steps. The same finding applies to the attainable housing concern. There was no evidence presented on how the Subject Property’s use being changed would impact attainable housing, and Ms. Vasni confirmed that attainable housing was not a main concern raised in the Town’s OP.
69With respect to previous infractions, the Tribunal repeats its agreement with the Applicant Counsel’s submissions at paragraph [36] of this Decision. Moreover, the Tribunal finds as follows:
a. The test for a ZBA does not include consideration of past infractions;
b. It is not in the Tribunal’s jurisdiction to penalize an Applicant for past infractions, if any (which denying the ZBA on this basis would be); and
c. Mr. Houghton testified that, prior to the Town Staff Report being finalized, it had been confirmed that past infractions had no bearing on the ZBA (this evidence was before the Town Council when it made its decision).
The Town’s Alternate Request
70The Town’s alternate request is outlined at paragraphs [38] to [41] of this Decision.
71With respect to those, the Tribunal agrees with the Applicant’s submissions, outlined at paragraphs [42] to [45] of this Decision. Namely, the Tribunal finds:
a. The planners who testified at the Hearing both agreed that the ZBA could be approved as is.
b. No evidence was provided on the additional provisions requested by the Town.
c. No holding zone “h7” is required as a Site Plan Approval is already a necessary part of the process to follow the ZBA approval before the dwelling could be used as a STA.
d. A minimum lot area provision is not required as no further redevelopment is contemplated. Moreover, without further information, the Tribunal cannot determine whether further development would be warranted. As submitted by the Applicant’s Counsel, such an application would undergo the usual process and scrutiny.
e. An interim Order with conditions is not required as a result of this finding. Specifically, the Tribunal does not find it necessary to invert the order of things (ZBA first, then Site Plan Approval, then Business License Approval) and order that the STA Licence be provided before the ZBA is approved in a final Order. Moreover, as pointed out by the Applicant’s Counsel, the licensing process is a separate and distinct process from the ZBA appeal.
Summary of the Tribunal’s Findings
72Based on the above, the Tribunal finds that the requested ZBA: has due regard for matters of provincial interest in s. 2 of the Planning Act; is consistent with provincial policies; conforms with applicable regional and local policies; and is a suitable amendment within the policies and provisions of the ZBL. In making this finding the Tribunal had regard for Council’s decision and considered the information and materials that the Town received in relation to this matter. Thus, the Tribunal finds that the proposed ZBA constitutes good land use planning and is in the public interest.
73Moreover, the Tribunal has considered the concerns raised by the Participants. Most of the concerns raised have been addressed in extensive detail above. With respect to the concern that this approval would set a precedent, the Tribunal states that each application is to be assessed based on its own merits. Additionally, in the video of the Committee of the Whole Meeting (at 4 hours and 32 minutes), Shawn Potsima (currently the Manager of Community Planning in the Town) answered a question regarding this ZBA “opening up the tap” of such applications, and explained that the way the Town’s STA policies have been written is very restrictive, and it would be difficult to meet the minimum criteria outlined in the ZBL and the OP. He further stated that, while this Subject Property meets those requirements, this is not an indication that future applications will also. The Tribunal agrees with that sentiment.
ORDER
74THE TRIBUNAL ORDERS that the appeal is allowed and the Town of The Blue Mountains’ Zoning By-law No. 2018-65 is hereby amended as set out in Schedule A to this Decision and Order. The Tribunal authorizes the municipal clerk of the Town to assign a number to this By-law for record keeping purposes.
“Bita M. Rajaee”
bITA M. rajaee
member
Ontario Land Tribunal
Website: 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.