Gutzman v. Tyendinaga (Twp.), 2023 CanLII 7694

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 01, 2023

CASE NO(S).: OLT-22-002561 (Formerly PL210309)

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

Appellant: Susan Gutzman

Subject: By-law No. 2021-15

Municipality: Township of Tyendinaga

OLT Case No.: OLT-21-002561

Legacy Case No.: PL210309

OLT Lead Case No.: OLT-21-002561

Lead Legacy Case No.: PL210309

OLT Case Name: Gutzman v. Tyendinaga (Twp.)

Heard: in writing

APPEARANCES

Parties	Counsel*/Representative
Susan and Jerry Gutzman	Self-represented
Township of Tyendinaga	J. Savini*
Suranjita and Mousam Hazarika	Self-represented

DECISION DELIVERED BY CARMINE TUCCI AND ORDER OF THE TRIBUNAL

1The matter before the Tribunal proceeded by way of a written hearing of the appeals initiated by Susan and Jerry Gutzman (the “Appellants”) in relation to By-law No. 2021-15 (“ZBA”) approved by the Township of Tyendinaga (the “Township”) with respect to the property municipally known as 28 Rock Street (“Subject Property”) owned by the Applicant, Suranjita Khaund Hazarika.

OVERVIEW

2The ZBA approved by the Township provided relief from deficiencies on an existing lot of record, to facilitate the development of a single detached residential dwelling. The materials filed with the Tribunal for this matter included:

a. Appellant filed an Affidavit with multiple references to Municipal and Provincial guidelines. No professional opinions were filed;

b. Applicant filed an Affidavit comprising of 44 pages; and,

c. Municipality filed Affidavits:

i. comprising of 76 pages from Jason Budd, Senior Planner for the County of Hastings.

ii. comprising of 53 pages from Sharlene Richardson, Regulations Officer for the Quinte Conservation Authority.

3The Subject Property is designated Hamlet and Environmental Protection in the Official Plan and is currently zoned Residential Second Density (“R2”) and Environmental Protection (“EP”) Zone pursuant to the Township’s Zoning By-Law No. 03-16.

4The Subject Property is an existing lot of record in a registered plan (Lot 11 of Registered Plan 41), in the Hamlet of Lonsdale (“Hamlet”) in the Township and is known municipally as 28 Rock Street. The Hamlet is a settlement area that has been subject to development since the early 19th century. The surrounding land uses are low density residential consisting of single detached dwellings.

5The Subject Property is approximately 0.26 acres in size and has 20 metres of frontage on Rock Street and 20 metres of frontage on Salmon River. It is approximately the same size and configuration as other adjacent lots subdivided and registered under the same plan.

6The Subject Property is flat, adjacent to the road and slopes southerly from Rock Street towards Salmon River, until approximately halfway down the lot at which point it drops to a steeper slope to the shoreline.

7The Tribunal was advised that the Applicant applied for a Zoning By-law Amendment on March 5, 2021, to address deficiencies relating to the minimum lot area, minimum lot frontage and setback from the high-water mark, to facilitate the development of a single detached dwelling.

8The Applicant has prepared engineering plans for retaining walls to be installed to ensure slope stability and is also proposing to install a tertiary septic system.

9The Tribunal further heard the Environmental Protection Designation and Zoning are approximately 13 metres in depth from the top of the bank/high-water mark of the Salmon River on the Subject Property.

10The proposed development, including the tertiary septic system, is located outside the high-water mark, the 100-year flood line and Environmental Protection Land Use Designation and Zoning.

11Quinte Conservation (“QC”) issued a permit for the proposed development on March 4, 2021. In reviewing the permit application, QC staff considered a prior study which confirmed the absence of karst on the neighbouring and adjacent lots, and a slope stability study confirming the slope was stable and could support future construction. The application also included a site plan demonstrating the location of the proposed development on the Subject Property.

12The Applicant’s written submissions noted that the Applicant was unaware of the need for a Zoning By-law Amendment application.

13The permit contained conditions that were later incorporated into the requirements of the holding provision recommended for the proposed Zoning By-law Amendment.

14QC staff reviewed the application for a Zoning By-law Amendment. The Township received notification indicating that QC did not have any objections to the proposed re-zoning and that a permit had previously been issued for the proposed development.

15Within the Township’s submissions, an updated site plan was provided by the Applicant on May 11, 2021, in order to amend the permit to reflect a required change in the location of the septic system. An amended permit was issued on May 14, 2021.

16A staff recommendation was presented to Council to approve the Zoning By-law Amendment with a holding provision, which includes the conditions of QC’s development permit.

17Council approved the Zoning By-law Amendment on April 19, 2021.

PARTIES

18The statutory Parties to the hearing are Ms. Gutzman as the Appellant, and the Township as the Zoning By-law Amendment (“ZBA”) Approval Authority. The Tribunal granted Ms. Gutzman’s request to include her spouse as a Party such that the Appellants are now Susan and Jerry Gutzman (“Appellants”).

19The Tribunal also granted Party status to Ms. Hazarika, being the owner of the site and Applicant for the ZBA, and similarly, granted joint Party status to her spouse, Mousam Hazarika (“Applicants”).

20Factual planning evidence was provided to the Tribunal by means of the written Affidavits of Ms. Gutzman for the Appellant and Ms. Hazarika for the Applicant.

21Jason Budd, a Senior Planner for the Township, and Sharlene Richardson, a Regulations Officer for the Quinte Conversation Authority (“QCA”), provided evidence for the Township.

22After reviewing the qualifications and signed Acknowledgement of Expert Duties, the Tribunal is satisfied that Mr. Budd, a full member of the Ontario Professional Planners Institute with over 22 years land use planning experience can provide evidence as an expert in land use planning and Ms. Richardson, a Risk Management Official and Inspector for the Quinte Source Protection Region can provide evidence regarding a Risk Management Review.

APPELLANT’S EVIDENCE

23Ms. Gutzman presented no professional opinion evidence for the Tribunal’s review but did provide some written fact evidence.

24Ms. Gutzman also provided a series of written responses to submissions from all Parties and of photographs depicting varied heights of water levels at different times during a calendar year.

25In her written submissions, Ms. Gutzman purported to rely on “verbatim policies written by the experts of provincial and municipal bodies, statements written by experts in emails and other relevant factual documents to support this appeal.”

APPLICANT’S EVIDENCE

26Ms. Hazarika presented no professional opinion evidence for the Tribunal’s review.

27In her detailed written submission, the Applicant informed the Tribunal that:

1. Due to the location on Salmon River, both QCA and the Township have always been a part of the permit process, with discussions about building a detached house commencing with them in January 2020, prior to purchase. The guidance and directives provided by both organizations are highly appreciated. As a result of the consultations, several design alterations and accommodations were made to follow the intent of the bylaws and protect both the river and its inhabitants.

2. An Eljen Septic system, one of the most eco-friendly and advanced in the market, will be installed to ensure no adverse effect on the environment.

3. A structural engineer has been hired - Michael McDonnel, BEng, Peng, MSc, CPM - to ensure recommendations from the Slope Stability Analysis by Cambium Engineering are built into the design. Some key aspects of the structural plans include: armor stone and gabion retaining walls, footings dowelled to bedrock, maximum possible distance from the waterline, slope stabilization, etc.

4. A slope stability report by Cambium Engineering submitted during the QCA application, indicated no evidence of active erosion, a stable slope, no seepage from the slope face, no landslide activity and no evidence of previous or potential failure. No indication of Karst was found and Cambium indicated future construction can be supported by the slope.

5. On April 19, 2021, an application for rezoning of 28 Rock Street was approved at Township Council Public Meeting – No. 2021-05P. As agreed in the meeting, a development agreement between the owner and the Township will be enacted as a part of the building permit. The rezoning will be designated Holding Residential Second Density – Special (R2-6-H) with the -H removed only on satisfactory completion of the terms and conditions. These terms and conditions include but are not limited to conformance with approved plans, sediment and erosion controls, off-site storage of fill, maintenance of drainage patterns, slope stabilization, native vegetation seeding, etc., requirements much more stringent than typical for other, similar development in the area.

TOWNSHIP’S EVIDENCE

Jason Budd

28Mr. Budd, a qualified Land Use Planner for the County of Hastings (“County”), the upper tier municipality, assumed the responsibility as the lead planner for the Applicant’s proposal.

29The Township’s submissions noted that on March 5, 2021, an application for ZBA was completed by the Applicant for the property municipally known as 28 Rock Street. The Applicant is requesting permission to rezone the property from Residential Second Density ‘R2’ Zone to Holding Special Residential Second Density ‘R2-6H’ Zone. The purpose of the application is to address deficiencies in an existing lot of record in order facilitate the development of a single detached dwelling. The deficiencies identified include minimum lot area, minimum lot frontage and setback from the high-water mark.

30In support of the application, the Applicant submitted the following information:

1. Application for ZBA;

2. Plan of Survey, prepared by Hopkins Chitty Land Surveyors Inc., dated October 23, 2020.

3. Building Plan, prepared by Hopkins Chitty Land Surveyors Inc., undated; and,

4. Proposed Site Plan.

Planning Review

Provincial Policy Statement (“PPS”)

31The Tribunal was informed through Mr. Budd’s submissions of the relevant sections of the PPS.

1. Section 1.1 c) avoiding development and land use patterns which may cause environmental and public health and safety concerns;

32The Tribunal was informed the proposed development is setback from the 100-year flood line and utilizes advanced waste management technology in the form of a tertiary septic system to minimize the potential for any adverse impact on the natural environment as well as minimize the footprint of the septic system. The existing Environmental Protection (EP) designation and zoning provides a buffer to protect the natural and hydrological functions of the Salmon River.

2. Section 1.1 d) avoiding development and land use patterns that would prevent the efficient expansion of settlement areas in those areas which are adjacent or close to settlement areas

33The Tribunal learned the proposed development is on an existing lot in a registered plan and is located within a rural settlement area.

3. Section 1.1 h) promoting development and land use patterns that conserve biodiversity

34The Subject Property is within a settlement area that has been subject to human influence and development since the early 19th century. The area subject to development is close to Rock Street and the existing surrounding residential dwellings. The property has been partially cleared and graded in preparation for construction. Engineered retaining walls will be installed consistent with the engineered plans (Attachment No. 11). The owner has submitted designs that ensure slope stability and creates a physical barrier, with the establishment of the retaining wall, separating the proposed single detached dwelling from the natural heritage feature. This barrier will protect against erosion and provides a defined delineation between the lands permitted to be development in the R2-6 zone and the lands to be protected in the EP zone. The development of an existing lot of record, in a residential neighbourhood, is an efficient use of land and constitutes a form of infill development within a rural settlement area. Directing and promoting development to settlement areas contributes to protecting the natural environment by limiting the subdivision of rural lands for non-farm residential development.

4. Section 1.1.3.1, Settlement Areas shall be the focus of growth and development

35The Tribunal was informed the Subject Property is located within the Hamlet land use designation in the County Official Plan and therefore, meets the definition of a settlement area in the PPS. The definition of “settlement areas” in the PPS includes both urban and rural settlement areas,

Settlement areas: means urban areas and rural settlement areas within municipalities (such as cities, towns, villages and hamlets) that are:

a) built-up areas where development is concentrated, and which have a mix of land uses; and

b) lands which have been designated in an official plan for development over the long-term planning horizon provided for in policy 1.1.2. In cases where land in designated growth areas is not available, the settlement area may be no larger than the area where development is concentrated.

5. PPS, Section 1.1.3.2 a) Efficiently use land and resources

36The Tribunal heard the development is proposed on an existing lot of record and the utility of the property is maximized through the introduction of a tertiary septic system which requires less area for installation. Armor Stone and gabion retaining walls are required to ensure the greatest possible setbacks from the Salmon River. These engineered structures are recommended in the Slope Stability Report prepared by Cambium Engineering and submitted in support of the building permit and septic permit applications.

6. PPS, Section 1.1.3.2 b) are appropriate for, and efficiently use, the infrastructure and public service facilities which are planned or available, and avoid the need for their unjustified and/or uneconomical expansion

37The development of the single detached dwelling will not require the extension of any public services, such as roads. The subject property is an existing lot of record in a rural settlement area and has direct frontage onto Rock Street, a local road. The property will be serviced with a private well and septic. Other services, such as telecommunications and electricity are available from Rock Street.

7. PPS, Section 1.1.3.2 c) minimize negative impacts of air quality and climate change, and promote energy efficiency

38The proposed development is situated within an existing hamlet on an existing lot of record and is not part of a greenfield development contributing to urban sprawl but an infill development. The proposed single detached dwelling and associated septic system will be located outside of the 100-year flood line. The existing EP land use designation and zone protects the waterfront from development that would compromise the natural heritage feature, the Salmon River, and land immediately adjacent to the river. The residential building will have to be constructed to meet Ontario Building Code regulations for heating and insulation. The north/south orientation of the lot allows for the possibility of passive solar.

39In his expert opinion evidence described above in paragraphs [31] to [38], Mr. Budd opined the application is consistent with the PPS.

County of Hastings Official Plan

Planning Principles

40Mr. Budd informed the Tribunal that the County Official Plan establishes key planning principles to be applied when reviewing development for appropriateness within its member municipalities. The criteria include directing and focusing growth to the County’s urban communities and hamlet areas. Section 1.7.1 d) states, “focus growth in Settlement Areas designated Urban and Hamlet with defined boundaries, permitted uses, and appropriate servicing levels, pursuant of the creation of healthy, active, livable, age-friendly, safe, and resilient communities.”

41Principle of development as a residential lot has been established on the Subject Property by virtue of the lot size and configuration, the application of the ‘Hamlet’ land use designation, and Residential Type 2 (R2) Zone.

Hamlet

42The Tribunal was advised that the Subject Property is designated Hamlet and Environmental Protection in the County Official Plan. The Official Plan promotes development to occur in the County’s settlement areas, including hamlets.

43The Hamlet land use designation permits the development of low-density residential land uses, such as single detached dwellings (Section 2.5.2.1 (a), Official Plan). The proposed development of a single detached dwelling at 28 Rock Street is in conformity with the permitted uses of the Hamlet designation.

44The parcel does not conform to the existing minimum lot area for parcels in the hamlet designation (Section 2.5.4.2, Official Plan), however the minimum lot area policy is intended to be applied to new subdivision development within the Hamlet designation. The parcel is an existing lot of record that was legally subdivided prior to the adoption of the current Official Plan.

45The Official Plan permits the development of undersized waterfront lots provided that it has been, “demonstrated to the satisfaction of the member municipality and appropriate agency and the intent of the policies of this plan are maintained (Section 5.5.3.7, Official Plan).” The proposed development was circulated to the QCA for review and comment. The QCA supported the proposed development of a single detached dwelling on the subject property and issued a permit subject to conditions.

46The conditions of the QCA’s Development Permit have been included as conditions of –H holding symbol being recommended to be applied to the Special Residential Second Density ‘R2-6’ zone.

Waterfront Residential Development

47The Tribunal was advised that the minimum lot size for a new waterfront lot in the County Official Plan is 0.8 hectare in area. This minimum lot area for a new lot may be reduced to 0.4 hectare if it can be justified through the completion of a hydrogeological study (Section 5.5.3.3, Waterfront Residential Development, County Official Plan). The Subject Property is an existing lot of record. The minimum lot area policy for a waterfront lot does not apply.

48The Tribunal was further informed that the Applicant has been required to demonstrate that the lot can accommodate a residential use subject to present regulations and standards. The Applicant has demonstrated to the satisfaction of Planning Staff and the QCA that a dwelling, well, specialized septic system and buffering from the watercourse can be adequately accommodated on the Subject Property.

Environmental Protection (“EP”)

49The Tribunal was advised that the setbacks established in the Official Plan and the Zoning By-law from the watercourse are intended to protect the natural feature from the stresses resulting from development of adjacent lands. The proposed development, including the septic system is located outside of the high-water mark, 100-year flood line and EP land use designation. The application of erosion control and slope stability via the construction of engineered retaining walls provides additional measures to mitigate any potential adverse impacts on the river. The lands immediately adjacent to the Salmon River are designated EP Area. The EP Area land use designation comprises both natural features and natural hazards. The land use designation follows the 100-year flood line and is approximately 13 metres in depth on the Subject Property and provides a buffer from development to the Salmon River and associated natural features.

Significant Valley Land

50Mr. Budd submitted that the Subject Property is located within an area designated Significant Valleyland on Schedule B, Natural Heritage Features and Areas of the County Official Plan (Attachment No. 5). The entire hamlet of Lonsdale is within the Salmon River Valleyland. The surrounding lands are dominated by existing developments like what has been proposed on the Subject Property. It was Mr. Budd’s opinion that the Hamlet land use designation is the primary designation. The policies applied to the Hamlet accounts for the historic settlement pattern of the area and provides the direction for the permitted uses and pattern of development. The purpose of the Valleyland policies of the Official Plan is to protect natural drainage systems and watersheds. This policy is generally applied to large new developments, such as plan of subdivision. When reviewing the proposed construction of the single detached dwelling against the policy, the owner is required to provide a grading and drainage plan that is reviewed by a qualified person to ensure that the development is properly engineered to provide slope stability, prevent erosion and appropriately drain the property. The natural heritage linkages, system and floodline is protected by maintaining the EP zone on the portion of the land adjacent to the Salmon River.

51The Tribunal was informed that through the technical review process the application for ZBA was circulated to the QCA for review and comment. The QCA did not identify the need to complete an Environmental Impact Statement (“EIS”). Pursuant to Section 7.8.6.3 of the Official Plan, the Planning and Development Department did not require an EIS for the following reasons:

a. the proposed development is limited to the construction of a single detached dwelling within a developed area;

b. circulation to the qualified Agency did not identify the study as being required;

c. the Significant Valleyland policies of the Official Plan are applied to address potential adverse impacts on drainage systems for the watershed (Section 4.3.5.3, Significant Woodlands and Valleylands, County Official Plan). The policy applies to larger greenfield developments such as Plan of Subdivision or rural industry, such as forestry, that would have impacts on a larger area. The lot is approximately 1,060 square metres in area. Construction of a single detached dwelling will not have a measurable impact on the hydrology of the river; and,

d. there is an existing EP designation buffering the natural feature and hazard area along the Salmon River. This policy is implemented through the EP Zone. This zone limits development to conservation uses and passive outdoor recreation.

52Section 7.8.6.3, EIS, Official Plan, “Where required by the policies of this Plan or as required by the County, Member Municipality or other agency through the development review process, an EIS will be completed by a qualified person in the relevant environmental field of study, prior to the related development’s approval and/or commencement.”

53The Tribunal was informed that the proposed development was reviewed by the QCA with respect to erosion hazard, location of the septic system and potential adverse impacts to the Salmon River. The QCA issued a development permit, subject to conditions (Attachment No. 12), which will facilitate the development once the appropriate zoning is in place and in full force and effect. The conditions included in the permit were applied to the zone as conditions in the Holding Symbol. The following conditions were applied:

a) the works be completed as per the approved plans;

b) that sediment and erosion controls have been properly designed and installed to isolate the work site from the river and must remain in place until the site has stabilized;

c) that all fill that is to be temporarily stored on the site before and during construction is independently surrounded by appropriate sediment and erosion controls and remove sediment and erosion controls upon completion of the project;

d) that the owner demonstrate how drainage patterns shall be maintained;

e) that the owner demonstrate how drainage patterns shall be maintained; and,

f) that the owner provides a copy of the notices of the commencement of work and the completion of work to the QCA and the Chief Building Official.

54Mr. Budd stated in his Affidavit that based on the QCA’s review and conditions, the requirements for an EIS have been met.

55Further, the Applicant will be constructing and upgrading a series of retaining walls as a means of sediment control and erosion prevention.

56Mr. Budd opined the proposed ZBA and development of a single detached dwelling on the Subject Property conforms to the applicable policies of the County of Hastings Official Plan.

Zoning

57Mr. Budd noted that the Subject Property is presently zoned Residential Second Density ‘R2’ Zone and Environmental Protection ‘EP’ Zone in Zoning By-Law No. 03-16.

58The existing R2 zone permits the development of a single detached dwelling. The Official Plan Hamlet policy and the implementing R2 zone establish the principle of development, which includes low density residential. The R2 zone category applies the zone provisions of the R1 zone for single detached dwellings. The proposed development was reviewed against the applicable general provisions and R1 zone provisions of the Zoning By-Law.

59The Zoning By-law includes provisions for development on undersized lots but limits the relief to lots with 50% of the required lot frontage of the zone category applied to the subject lands. The required minimum frontage is 60 metres in an R1 zone, as such the 20-metre lot frontage of the subject lands does not meet the requirement. Due to this deficit in conjunction with the specific zone relief required for minimum lot area and proximity to the Salmon River, it was the opinion of municipal staff and planning staff that a ZBA was a more appropriate application than a minor variance.

60Mr. Budd further submitted that in addition to recognizing a reduced lot frontage and lot area the recommended Holding Special Residential Second Density ‘R2-6-H’ Zone include provisions specific to this development. They are:

61An interior side yard setback (minimum) of 2.0 metres and a minimum aggregate of 4.5 metres for both yards. The purpose of this zone provision is to ensure that the approved drainage pattern, identified in the Conservation Authority development permit is maintained by limiting the building envelope as proposed in the plans submitted in support of the application.

i) Setback from the high-water mark (minimum) 18.3 metres (60 feet). Section 5.9.2 of the Zoning By-law is a provision prohibiting development within a specified distance from a high-water mark or top of bank or Environmental Protection Wetland Zone or floodplain of the Bay of Quinte. The zone provision is written such that the setback most appropriate to the location is applied. In this instance, the most appropriate setback is from the high-water mark due to the steepness of the lot and significant grade change from the front of the property to the bank of the Salmon River. The proposed setback is 18.3 metres from the high-water mark. High-water mark is defined the Zoning By-law as, “shall mean the mark made by the action of water under natural conditions on the shore or bank of the body of water, which action has been so common and usual and so long continued that is has created a difference between the character of the vegetation or soil on one side of the mark and the character of the vegetation or soil on the other side of the mark.” A site visit to the subject property was conducted on October 26, 2021, following consecutive days of heavy precipitation in the area. Planning Staff observed that the water level of the Salmon River did not exceed the lip of the bank. It is my professional opinion that the proposed reduction from 30 metres to 18.3 metres will not pose a risk to the natural environment and proposed development due to the significant grade change over the 18.3 metres setback.

ii) The entire Hamlet of Lonsdale is within the significant Valleyland designation. Section 5.9.4 of the Zoning By-law references a section from the former County Official Plan. In August 2018, the new County Official Plan came into full force and effect. County Planning Staff are in the process of updating the Zoning By-laws of the 14 member municipalities to bring them into conformity with the new Official Plan. The former Official Plan did not include the Hamlet of Lonsdale within the lands identified ‘Environmentally Sensitive’ (Schedule A17, County Official Plan (2000)) (Attachment No. 7). Presently, the Valleyland designation in Schedule B of the Official Plan encompasses the entire Hamlet of Lonsdale. Consequently, any new construction or expansion of an existing use will not comply with Section 5.9.4 of the Zoning By-Law and will require a minor variance or a ZBA. The past practice of the Township is to not apply this zone provision to new development and redevelopment within the hamlet area.

62The Tribunal was advised that on April 19, 2021. The Township Council passed the ZBA (Zoning By-Law No. 2021-15) requesting the change to the subject property from a Residential Type 2 (R2) Zone to a Holding Special Residential Type 2 (R2-6-h) Zone. The Notice of Decision was circulated by the Township Clerk on April 21, 2021.

63Mr. Budd’s concluding opinion stated the Zoning By-law No. 2021-15 is consistent with the PPS, conforms to the County Official Plan and represents good planning in the public interest.

Sharlene Richardson

64Ms. Richardson, a qualified Regulations Officer with the Quinte Conservation Authority (“QCA”), conducted an Environmental risk management review of the subject application.

Description of the Subject Lands

65The Tribunal was advised that the vacant lot is predominantly flat adjacent to the road and slopes gradually until approximately halfway down the lot at which point it drops to a steeper slope, ending at the shoreline of the Salmon River.

66The lot was originally vegetated with a mix of trees and grass, however it had been disturbed by placement of fill, parking of vehicles and vegetation removal. Bedrock was exposed across parts of the site

67The lot is not part of, or directly adjacent to, an Area of Natural and Scientific Interest (“ANSI”), Provincially Significantly Wetlands (“PSW”), or Significant Woodlot.

68Layers provided by the Ontario Geological Survey on the QCA mapping indicates that karst topography is “known” in the area. Karst is unstable bedrock and karst lands are considered “hazardous sites” under the PPS. Hazardous sites are specifically mentioned in Section 3.1 of the PPS.

69The flood hazard of the Salmon River encompasses the very southern portion of the lot, along the shoreline.

Procedural History and Recommendation

70January 25, 2021, an application (under the Conservation Authorities Act Regulation) for development at 28 Rock Street, Lot 32, Concession 3, in the Township was received from the Applicant. The lot in question is vacant and within the Hamlet of Lonsdale along the Salmon River. The development proposed was a single-family dwelling and a septic system.

71A previous study regarding the potential for karst on the site had been completed for the neighbouring property in 2017 and confirmed the absence of karst on the neighbouring and adjacent lots. Additionally, a slope stability study had been completed in 2018 for the subject lot and confirmed that the slope was considered stable and could support future construction.

72The application included a site plan that detailed the location of the development relative to the property boundaries and the shoreline of the Salmon River.

73As part of the permit application, the Applicant is responsible for informing QCA staff about any municipal requirements for a severance/rezoning or minor variance because of the proposed development. The application did not indicate that a rezoning or minor variance would be required for the proposed development.

74The Tribunal was informed that the application was processed appropriately as it met the tests of the regulation. Development is not proposed in a flood, erosion or dynamic beach hazard, or on hazardous lands or in a wetland. A permit was issued for the proposed development on March 4, 2021.

75The application was to rezone the parcel in question from Residential Second Density (R2) and Environmental Protection (EP) to Holding Residential Second Density-Special (R2-6-H) Zone and Environmental Protection (EP) Zone to allow for a single detached dwelling to be erected on an undersized lot which is deficient in both frontage and area. Conditions were applied to the application that must be fulfilled prior to removing the H symbol.

76The Tribunal was informed that QCA staff reviewed the application as per our delegated duty with regards to Section 3.1 of the PPS – Natural Hazards. The application did not propose development in an area of hazardous lands or in an area of hazardous sites. Further, development was not proposed in a Natural Heritage area mapped on the QC system.

77The Tribunal was advised that on April 15, 2021, a letter from QCA was sent to the Township indicating that QCA did not have any objections to the proposed re-zoning application. The letter also indicated that a permit had previously been issued for the proposed development through the QCA regulatory process.

78The Tribunal further heard that despite the permit being issued in advance of the planning application decision, the comments provided by QCA on the plan review would have remained the same if the application order was reversed. At no point was development proposed in on hazardous lands or in a hazardous site which conforms to Section 3.1 of the PPS.

79On May 11, 2021, an updated site plan was provided by the Applicant to QCA staff as a request to amend the permit to reflect a required change in the location of the septic system.

80On May 14, 2021, an amendment to permit REG0021-2021 was issued to reflect the new septic system location.

Policy Analysis

81The Tribunal was advised that the Board Approved QCA Watershed Regulations (O. Reg. 319/09) Policy Manual details the applicable policies required to issue a permit for an application for development under the Conservation Authorities Act. It is the opinion of Quinte Conservation staff that the policies of this manual and the intent of the regulation were met in the issuance of that permit.

82With regards to the re-zoning application and circulation, as mentioned previously, QCA staff are responsible for commenting on Section 3.1 of the PPS. It is the opinion of QCA staff that the application conforms with subsection 3.1.1 as development was not proposed in:

a. an area of hazardous lands adjacent to the shorelines of the Great Lakes or a large inland lake as the property is along the Salmon River and not a Great Lake or large inland lake;

b. hazardous lands adjacent to river, stream or small inland lake systems which are impacted by flooding hazards and/or erosion hazards as the development is not proposed in a flood or erosion hazard, and is setback a minimum of 15 metres from the flood hazard; and,

c. hazardous sites, as the property was determined to have a stable slope and karst topography was not present on site. This had been confirmed though the previous studies that had been completed as part of the permit application process.

83The Tribunal was further informed that the development conforms to subsection 3.1.2 as development and site alteration are not proposed within:

a) the dynamic beach hazard;

b) defined portion of the flooding hazards along connecting channels;

c) areas or an area inaccessible to people and vehicles in times of hazards; and ,

d) a floodway.

84The Tribunal was informed the Memorandum of Understanding (“MOU”) between QCA and the Township states that QCA will “review and provide comment … with respect to potential environmental impacts. These include…Natural Heritage”. The MOU does not refer specifically to Section 2.1 – Natural Heritage of the PPS and historically, this section has not been directly quoted in any planning letter comments. QC has and will provide comments on Natural Heritage features available through the internal GIS mapping which, at present, includes PSW’s, ANSI’s, and Significant Woodlots. In addition to commenting on these features, QC will review EISs, on behalf of the Township.

85The Tribunal was advised that that it is the opinion of QCA staff that the application is consistent with Section 2.1 of the PPS as follows:

S2.1.4: development is not proposed in:

a) a significant wetland in Ecoregion 5E, 6E or 7E, or

b) a coastal wetland;

S2.1.5: development is not proposed in:

a) significant wetland in the Canadian Shield north of Ecoregion 5E, 6E, and 7E;

b) significant woodlands in Ecoregions 6E and 7E;

c) significant areas of natural and scientific interest; and

d) coastal wetlands in Ecoregion 5E, 6E and 7E that are not subject to policy 2.1.4(b)

86Development is proposed within subsection c) significant Valleylands, and d) significant wildlife habitat, however, negative impacts on the natural features or their ecological functions from this application would be unlikely given the size and scope of the features, and the mitigation measures that are required to be implemented during the building/construction phase of this development.

87The Tribunal was further informed that the lot in question is an existing lot of record in a Hamlet where surrounding land has been developed. To date, an EIS or alternative method of demonstrating no negative impacts has not been required for any previous development in the Hamlet, including for the Appellants.

88Ms. Richardson concluded that the comments provided by QCA on this ZBA ensure that Provincial interests regarding Natural Hazards are considered and that development is suitable for the lot in question. Development is not proposed in a natural hazard, or on a hazardous site. The proposal meets the tests for development under the applicable regulation.

APPELLANTS ISSUES LIST

89The Tribunal was presented with a comprehensive list of issues submitted by the Appellants.

90Mr. Budd and Ms. Richardson provided the following responses which were accepted by the Tribunal:

1. Does the development permit satisfy the relevant policies of the County Official Plan?

91Mr. Budd opined that the proposed construction of a single detached dwelling on the Subject Property conforms to the most salient policies.

2. Has the Applicant completed all necessary studies in accordance with the County Official Plan?

92Mr. Budd provided that adequate consultation and review was completed with the existing information available for review. The subsequent information submitted by the applicant in support of the application following the appeal of the ZBA provided more contextual information that further supported the application.

3. Does the ZBA establish appropriate setbacks from the high-water mark and for slope stability purposes in accordance with the engineering report, in conformity with the County Official Plan and consistent with the PPS?

93Mr. Budd provided that the ZBA establishes an appropriate setback from the top of bank and high-water mark.

94Ms. Richardson provided that it is not relevant for QCA from a planning perspective, however, the site plan prepared does meet all the setbacks required under the applicable regulation.

4. Should the proposed, discussed and agreed upon Eljen Septic System be included in the holding ‘H’ provisions of the ZBA or in a development agreement per 7.3.2.2 d) Holding By-Laws County Official Plan and as per Township Zoning By Law No. 5.4 Holding Zones?

95Mr. Budd noted that a condition requiring the installation of an Eljen Septic system or equivalent may be applied to the Holding Symbol. The Chief Building Official identified the need for the alternative septic system. Further, Mr. Budd opined that since the requirement was identified as part of the building permit review process including the installation of an Eljen Septic System as a condition of the -h Symbol is not necessary.

96Not relevant for the QC.

5. Is there sufficient evidence to warrant a reduction in the required setback of 30 metres from the high-water mark for the ZBA to be consistent with the County Official Plan: 4.5 Environmental Protection and Land Designation; 4.5.1 Rationale/Strategy for Development; 4.5.3. Flooding Hazards including 4.5.3.5 a) setback e) Setback, Erosion Hazard 4.4.2; setback 4.4.2.2, 4.2.4 Fish Habitat including setback; 4.2.4.3, 4.2.4.4, 4.2.6 Aquatic Species-at-Risk including 4.2.6.1 Setback 4.2.6.6, 4.2.6.8, and Township Zoning By-Law No. 5.9.2.

97Mr. Budd provided the circulation and review process, which has satisfied support for the reduction in the recommended 30-metre setback established in the County Official Plan.

98Ms. Richardson provided from a regulatory perspective for QCA, the required setback from a flood hazard is 15 metres. From a QCA planning perspective, development is not proposed within the flood hazard.

6. Is the ZBA consistent with the PPS: 2.1 Natural Heritage including 2.1, 2.1.1, 2.1.2, 2.1.3, 2.1.5 c) d), 2.1.7, 2.1.8, and 6.0 Definitions: Valleylands, Natural Heritage Features and Areas, Natural Heritage System, Wildlife Habitat, Negative Impacts and County Official Plan Policy 4.3 Natural Heritage Features and Areas including Policy 4.3.1 Natural Heritage System, Policies 4.3.1.1, 4.3.1.2, 4.3.1.3, 4.3.1.4,4.3.1.5?

99Mr. Budd provided that the proposed ZBA satisfies the spirit and intent of the relevant policies of the PPS as outlined in the Witness Statement. The 2020 PPS provides policy direction on matters of provincial interest related to land use planning and development, which are intended to be complemented by local policies addressing local interests. Under Section 3 of the Planning Act, all municipal decisions regarding planning matters “shall be consistent with” applicable provincial policy. The County Official Plan obtained Ministry approval in August 2018 and was deemed to be consistent with the policies of the PPS by virtue of this approval. Planning Staff have reviewed the applicable policies in the new 2020 PPS against the policies of the Official Plan and confirmed the policies of the Official Plan remain consistent with the policies of the PPS. Consequently, conformity with the Official Plan results in the ZBA being consistent with the policies of the PPS.

100Ms. Richardson provided QCA did not specifically review this application in relation to Section 2.1 of the PPS, staff are of the opinion that the application is consistent with the PPS. The lot is in a designated Hamlet where development has been directed to be concentrated. The significant Valleyland spans the entire length of the Salmon River and is unlikely to be negatively impacted by development of individual lots in a small geographical area. Similarly, significant wildlife habitat is unlikely to be found directly on site or on the adjacent lots as they have been previously impacted by fill, dumping and debris. The area surrounding Lonsdale is undeveloped and capable of supporting a diverse array of wildlife that may be temporarily displaced by development of this lot. QC has no relevant comments with regards to the County OP.

7. Is the Zoning By Law Amendment consistent with the PPS3.1 Natural Hazards including policies 3.1.1 b) c) and 6.0 Definitions: Hazardous Lands, Hazardous Sites and The Hastings County Official Plan policy 4.4 Natural Hazards including 4.4.1.2 b), 4.4.2 Erosion 4.4.2.2, 4.4.2.4 a), b), 4.4.2.5, 4.4.2.6 4.4.3, 4.4.3.1, 4.4.3.2, 4.4.3.3, 4.4.3.4?

101Ms. Richardson noted that it is the opinion of QCA staff that the application is consistent with Section 3.1 of the PPS. Further the application is consistent with the definitions of Hazardous Lands and Hazardous Sites as outlined in the PPS. QCA has no relevant comments with regards to the County OP.

8. Is the ZBA consistent with the PPS 1.1.4 Rural Areas in Municipalities including policies 1.1.4, 1.1.4.1 a) h), 1.1.4.3?

102Mr. Budd provided the subject property is within the Hamlet settlement area of Lonsdale. These policies do not apply.

103Not relevant for QC.

9. Is the ZBA consistent with the PPS 2.0 Wise Use and Management of Resources?

104Mr. Budd opined that the development of an existing lot of record within a residential neighbourhood in a designated settlement area is the wise use and management of resources.

105Not relevant for the QC.

10. Are the Quinte Watershed policies 3.7.3 a) and d) applicable to this ZBA and does it satisfy those policies?

106Mr. Budd provided this is not a land use planning question. The Hastings County Official Plan does not reference the Quinte Watershed Policy.

107Ms. Richardson provided The Watershed Regulations (O.Reg. 319/09) Policy Manual is applicable only to applications made under Section 28 of the Conservation Authorities Act. A permit can be issued provided the tests of the regulation and the policies are met. When QCA staff review a planning application as to the applicability of the applicable regulations and the need for a permit for any proposed development, however the planning application does not need to satisfy any specific policy within the governing regulatory manual at that time. Further, Section 3.7.3 a) and e) of the Policy Manual state: That where there is an existing vacant lot of record (including and infill lot), no new development will be permitted where the lot has no safe access, or is entirely within one or more of the following:

a) The flood hazard (One Zone Policy Area), or erosion hazard of a valley and stream corridors, other hazardous lands;

e) The required setbacks from any feature listed in a)-c). The required setbacks are described in Section 3.7.9

108The lot in question has safe access and is not entirely within a flood or erosion hazard, nor on hazardous lands. Qualified professionals state that the site does not have karst (hazardous land) present, and that the slope is stable and did not show evidence of active erosion. Section 3.7.9 states that the setback from a flood hazard is 15m which has been met by the proposed development on this lot.

11. Does the ZBA conform with the County Official Plan policy 7.0, 7.1 Goals and Objectives including policies 7.11 a) d) e) f) g) h)?

109Mr. Budd opined the application was processed in conformity with the Official Plan and the Planning Act. An affidavit included in the package to the Ontario Land Tribunal from the Clerk of the Township verifies that the circulation of the Notice of Public Meeting complied with the Planning Act.

110Not relevant for QC

12. Does the Zoning By Law Amendment conform with The Hastings County Official Plan policy 7.8.8 Site Evaluation Report including 7.8.8.1, 7.8.8.2 a) b) c) d) f) g) h) I) j) k), 7.8.8.3 a) b) c) d) e) f) g) h) I), 7.8.8.4, 7.8.8.5, 7.8.8.6, 7.8.8.7?

111Mr. Budd provided specifically Section 7.8.8.1 when following a review of the proposed single detached dwelling, a review of the relevant Official Plan Policies and information received from the technical circulation it was determined that a site evaluation report was not required.

112Not relevant for QC

13. Does the ZBA conform with the County Official Plan policy 7.8.6 Environmental Impact Statement (EIS) including policies 7.8.6.1,7.8.6.2,7.8.6.3, 7.8.6.4, 7.8.6.5, 7.8.6.6, 7.8.6.7, 7.8.6.8 and Table A-7.1 – Measures of Adjacency for Environmental Impact Statements (EIS)

113Mr. Budd opined that the ZBA conforms to Section 7.8.6 of the Official Plan, more specifically Section 7.8.6.3, see witness statement.

114Not relevant for QC.

14. Does the County Planning Report conform with the County Official Plan Policies 7.8.2 Planning Report including Policies 7.8.2.1, a), b) c) 7.8.2.2?

115Mr. Budd opined that the Planning Report conforms to Section 7.8.2 of the Official Plan.

116Not relevant for QC.

15. Does the Zoning By Law Amendment conform with the Hastings County Official Plan policy 1.7.1 Planning Principles of The Official Plan including policies 1.7.1 a), f), g), i, 1.7.3, a), b?

117Mr. Budd opined that the ZBA conforms to Planning Principles of the Official Plan.

16. Does the ZBA conform with the County Official Plan Policy 4.0 Sustainable Natural Environment & Resources including Goals 4.1, 4.1.1 a) b) c) e) f) i) k) j) o); Including Objectives 4.1.2, a) c) g) h)?

118Mr. Budd opined that the ZBA conforms to the spirit and intent of the Sustainable Natural Environment & Resources policies of the Official Plan.

119Not relevant for QC.

17. Does the ZBA conform with the County Official Plan Policy 4.2.4 Fish Habitat including 4.2.4.1, 4.2.4.2, 4.2.4.3, 4.2.4.4, 4.2.4.5, 4.2.4.6?

120Mr. Budd opined that the existing EP land use designation and environmental Protection zone satisfies the spirit and intent of the Fish Habitat policies of the Official Plan by providing a natural buffer between the river and the proposed single detached dwelling.

121Not relevant for QC.

18. Does the ZBA conform with the County Official Plan policy 4.2.6 Aquatic Species at Risk including 4.2.6.1, 4.2.6.2, 4.2.6.3, 4.2.6.4, 4.2.6.5, 4.2.6.6,4.2.6.8?

122Mr. Budd opined that the ZBA conforms to the spirit and intent of the Aquatic Species-At-Risk policies of the Official Plan.

123Not relevant for QC

19. Does the ZBA conform with the County Official Plan Policy 4.3.5 Significant Valleylands including 4.3.5.3, 4.3.5.4 a) f), Table A-4.3 4.3.5.5

124Mr. Budd opined that the ZBA conforms to the Significant Valleylands policies of the Official Plan.

125Not relevant for QC.

20. Does the ZBA conform with the County Official Plan Policy 4.3.2 including 4.3.2.1, 4.3.2.2, 4.3.2.3, 4.3.2.4, 4.3.2.5, 4.3.2.6, 4.3.2.7?

126Mr. Budd opined that the ZBA conforms to the spirit and intent of the Habitat of Endangered and Threatened Species policies of the Official Plan.

127Not relevant for QC.

21. Does the ZBA conform with the County Official Plan Policy 4.3.3 Significant Wildlife Habitat including 4.3.3.2, 4.3.3.3, 4.3.3.4, 4.3.3.5, 4.3.3.6, and 4.3.3.7?

128Mr. Budd provided that in Schedule B of the Official Plan does not identify any significant wildlife habitat at this location. The Subject Property has been graded and denuded of vegetation in preparation of construction of the single detached dwelling. An engineered retaining wall creates a physical barrier between the watercourse, associated EP area and the location of the single detached dwelling and septic system.

129Not relevant for QC.

22. Does the ZBA conform with The Hastings County Official Plan policy? 2.0 Section II - Communities with Opportunities 2.1 Goals and Objectives, 2.1.1 Goals including 2.1.1 e) Cultural Heritage Resources 2.1.2 a)?

130Mr. Budd advised that the proposed single detached dwelling is consistent with the housing types of the surrounding area and maintains the low-density residential character of the hamlet. The property immediately adjacent to the Subject Property (24 Rock Street) was constructed circa 1970s and the dwelling on 38 Rock Street was constructed more recently (based upon site visit and discussion with owner of 24 Rock Street, October 26, 2021).

131Not relevant for QC.

23. Does the ZBA conform with the County Official Plan Policy 5.0 Section V – Emerging Rural Economy5.1 Goals and Objectives including 5.1.1 including 5.1.1 c), d), 5.1.2 a) I), ii) iii) b) 5.2.1, 5.2.2, 5.2.3, 5.2.4 “ The Land Between”, 5.2.8, 5.2.9?

132Mr. Budd opined that these policies are not relevant to this application.

133Not relevant for QC.

24. Does the ZBA conform with the County Official Plan Policy 5.3 Cultural Heritage Resources, 5.3.1 General Policies including 5.3.1.1, 5.3.1.2, 5.3.1.3 a) b) c) g)h) i), 5.3.1.4, 5.3.1.5, 5.3.1.7, 5.3.2.1 b) ii), c) i), ii), 5.3.2.6?

134Mr. Budd advised that the Subject Property is not a listed or designated property under the Ontario Heritage Act. The Hamlet of Lonsdale does not have a heritage conservation district plan applied to it. It is my opinion that the ZBA conforms to the Cultural Heritage Resource policies of the Official Plan.

135Not relevant for QC.

25. Does the ZBA conform with the County Official Plan Policy 2.5 Hamlet Land Use Designation, 2.5.1 Rationale/Strategy for Development, 2.5.1.2, 2.5.4 Planning Policies including 2.5.4.1, 2.5.4.2, and PPS - Part IV: Vision for Ontario’s Land Use Planning System?

136Mr. Budd opined that the ZBA conforms to the spirit and intent of the Habitat of Endangered and Threatened Species policies of the Official Plan.

137Not relevant for QC.

26. Does the ZBA conform with the County Official Plan Policy 5.5.3 Waterfront Residential Development including 5.5.3.1, 5.5.3.7, 5.5.3.8?

138Mr. Budd opined that the ZBA conforms to the spirit and intent of the Waterfront Residential Development policies of the Official Plan.

139Not relevant for QC.

27. Does the ZBA conform with the County Official Plan Policy 4.2.3 Groundwater including Policies 4.2.3.2 and 4.2.3.9?

140Mr. Budd opined that the ZBA conforms to Groundwater Policies of the Official Plan. A review of the Subject Property by Cambium Engineering confirmed that the bedrock was not fractured and suitable for development.

141Not relevant for QC.

28. Does the ZBA conform with the County Official Plan Policy 4.5.3 Flooding Hazards, including 4.5.3.2.c), e), and 4.5.3.5 e)?

142Mr. Budd opined that the ZBA conforms to the Flooding Hazards policies of the Official Plan. The proposed single detached dwelling is outside of the 100 year flood line. The elevation change from the 100 year flood line and the development makes it almost impossible to be subject to flooding hazards.

143Ms. Richardson provided that although it is not relevant, our regulations do not permit development in a flood hazard and the development was specifically placed on the property to ensure that development was not in a flood hazard, and additionally, met a metre setback from the flood hazard.

29. Is the ZBA consistent with the Township Zoning By-Law No. 5.9.4 Fish Habitat, Significant Valleylands, Significant Wildlife Habitat including Habitat of Endangered/threatened species?

144Mr. Budd provided That the majority of the Hamlet of Lonsdale is within the significant Valleyland designation. Consequently, none of the properties can comply with Section 5.9.4 of the Zoning By-law. It is my opinion that the Significant Valleyland Zone provision does not apply for the following reasons:

a) The Valleyland policies and subsequent implementing by-law are intended to be applied to address potential adverse impacts on a larger scale, such as plan of subdivision;

b) That the zone provision in section 5.9.4 speaks to adjacent lands. The entire hamlet is within the Valleyland designation. It has been past practice to not apply the significant Valleyland setback provision within the Hamlet (Attachment No. 8).

c) The Hamlet is the focus of growth within the rural land use context. The Hamlet has experienced human habitation and disturbance since the early 19th century. The Valleyland policy has been addressed because the areas required to be protected within the Hamlet have been designated and zoned EP.

d) The subject property is an existing lot of record with a residential zone and environmental protection zone applied to it.

145Not relevant for QC.

30. Is the ZBA consistent with the Township Zoning By-Law 5.13 Existing Undersized Lot and 5.3.8?

146Mr. Budd provided the ZBA includes a provision to recognize the reduction in required minimum lot area and frontage.

147Not relevant for QC.

31. Does the ZBA represent “Good Land Use Planning.”

148Mr. Budd opined that the application for ZBA is appropriate, necessary and constitutes good land use planning.

149Not relevant for QC.

ANALYSIS AND FINDINGS

150It is to be noted that no expert opinion evidence respecting planning or environmental risk management was provided by the Appellants to support their Appeal or to counter the evidence of either the Applicant’s or the Township's expert witnesses who were called to provide their professional opinion in those areas.

151The Tribunal has considered the thorough and complete uncontroverted expert opinion evidence of the Township’s witnesses in particular and can find no reason to doubt their findings for the approval of the ZBA.

152The Tribunal, after a consideration of all of the evidence, has no reluctance in finding that the Applicant’s proposal is consistent with the 2020 PPS, conforms to the County Official Plan and constitutes good land use planning.

ORDER

153THE TRIBUNAL ORDERS that the appeal against By-Law No. 2021-15 is hereby dismissed.

“Carmine Tucci”

CARMINE TUCCI

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.