Wintru Development Inc. v. St. Clair (Township), 2024 CanLII 101425

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 11, 2024

CASE NO(S).: OLT-24-000376

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Wintru Development Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit development of 17 residential subdivision lots Reference Number: OPA No. 28 Property Address: Part of Lot D Concession 5 Municipality/UT: St. Clair/Lambton OLT Case No.: OLT-24-000376 OLT Lead Case No.: OLT-24-000376 OLT Case Name: Wintru Development Inc. v. St. Clair (Township)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Wintru Development Inc. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit development of 17 residential subdivision lots Reference Number: R-19/23 Property Address: Part of Lot D Concession 5 Municipality/UT: St. Clair/Lambton OLT Case No.: OLT-24-000377 OLT Lead Case No.: OLT-24-000376 OLT Case Name: Wintru Development Inc. v. St. Clair (Township)

Heard: October 1, 2024 by video conference

APPEARANCES:

Parties	Representative
Wintru Developments Ins.	J. Murray Troup, President
St. Clair Township	Did not appear

MEMORANDUM OF WRITTEN DECISION DELIVERED BY JACKIE DENYES ON OCTOBER 1, 2024 AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Appeal proceeded by way of a Merit Hearing following a refusal to amend by the Township of St. Clair respecting applications for an Official Plan Amendment (“OPA”) pursuant to Section 22(7) and Zoning By-law Amendment (“ZBA”) Section 34(11) of the Planning Act.

2At the time of this hearing, it was acknowledged and supported by the Township of St. Clair that the Applicant had commissioned the professional services of the following in affirming there were no adverse impacts to the natural system on or adjacent to the Subject Lands.

(a) THMC Inc. - Archeological Assessment dated June 15, 2023; (b) Soil and Materials Engineering Inc. – Geotechnical Investigation dated August 9, 2023; (c) Greck Associates dated September 21, 2023; and (d) Sage Earth – Endangered Species Act Preliminary Screening for MCEP dated December 30, 2023.

3The hearing proceeded on an uncontested basis.

FOCUS OF THE APPEAL

Proposal

4The Subject Lands are proposed to be developed, in their entirety, for seventeen (17) residential lots through an application for Draft Plan of Subdivision to the County of Lambton. The purpose and effect of the proposed amendments is to change the Zoning from Residential-4 (R4) to Residential-2 (R2) and change a portion of Environmental Protection-Hazard (EP-H) to Residential-2 (R2). A portion of the Official Plan designation Open Space will be changed to Residential-2 (R2). A Site-Specific Official Plan Amendment and Zoning By-law Amendment is required to facilitate the residential development for the construction of single-detached (Lots 1-3) and semi-detached dwellings (Lots 14-17)

5The R4 zone permits Single-Detached Dwellings exclusively subject to regulations respecting recommended minimum flood elevations and the St. Clair River Development Area 2. The EP-H Zone does not permit residential land uses. The intent of the site-specific Zoning By-law Amendment (“ZBA”) is to permit a variety of housing options, specifically, Single-Detached Dwellings and Semi-Detached dwellings, as a permitted main use for the Subject Lands, with site-specific lot and building regulations.

SUBJECT PROPERTY AND SURROUNDINGS

6The Subject Lands are located within an Urban Settlement situated at the southeast intersection of St. Clair Parkway and Indian Road in the community of Chenal Ecarte in the Township of St. Clair, in the County of Lambton. The Subject Lands have a total lot area of 2,095 hectares (5.104 acres) and are vacant. The relative location and existing land use and zoning are as follows:

To the North – St. Clair Parkway/Agricultural uses Zoned Agricultural-1 (A1); To the East - Single Detached Dwellings/Marshy Creek Zoned R4 and EP-H; To the South – Hubbard Drain Single Detached Dwellings Zoned EP-H and R4 (R4-1); and To the West – Indian Road Single Detached Dwellings, Marina and Resort Zoned Residential R4-3, R4-4, EP-H and Waterfront Commercial (C4)

7The area is serviced by full municipal sewage and water services.

SUBJECT PROPERTY

HEARING

8At the outset of the hearing, the Tribunal conferred Participant Status to the following individuals who expressed their written concerns inter alia that the proposal and zoning does not conform with, or complement the existing neighbourhood and low-density area, there are too many deviations from current development standards and the development is an over-filling of the developer’s pockets. Their Participant Status requests were properly constituted before the Tribunal and the Tribunal will consider their concerns in arriving at its decision.

(a) Tiffany Cadotte who lives within 120 metres of the proposed development; (b) Theresa Nappi who lives to the north; and, (c) Jeremiah Feddes who lives to the east.

9Six exhibits were filed during the hearing as follows:

(1) Affidavit of Service of J. Murray Troup dated July 24, 2024; (2) Participant Status Request of Tiffany Cadotte; (3) Participant Status Request of Theresa Nappi; (4) Participant Status Request of Jeremiah Feddes (5) Affidavit & Acknowledgement of Expert Duty/Report of Rita Jabbour, RPP; and, (6) Report of Ian MacDougall, RPP, City Planner

EVIDENCE:

10The Tribunal heard uncontroverted evidence from Rita Jabbour, Registered Professional Planner engaged by the Applicant and Ian McDougall, Registered Professional Planner engaged on behalf of the Township of St. Clair.

Rita Jabbour, RPP

11Ms. Jabbour extensively referred to her Planning Justification Report (“PJR”) and testified as to how the Subject Lands, WaterWalk Residential Subdivision, as it will be known, are proposed to be developed, in their entirety, for 17 residential lots through an application for Draft Plan of Subdivision to the County of Lambton, the development pattern for a variety of housing options, specifically Single-Detached and Semi-Detached dwellings with minimum lot and building regulations to be established in a site-specific R4 Zone which requires the approval from the County of Lambton. She indicated Blocks 17 and 18 will have pedestrian access and utility easements for future boat and dock facilities. The banks and water of the Hubbard Drain are located within Block 19.

12Testifying to the purpose of the OPA, Ms. Jabbour indicated the effect of this proposed amendment is to allow for policy that will permit the development of the lands for a variety of housing options. The category of permitted dwellings and minimum lot and building regulations will be established in a site-specific exception to the Residential –4 Zone.

13Regarding the site-specific Zoning By-law Amendment, Ms. Jabbour testified the R4 zone permits Single-Detached Dwellings exclusively subject to regulations respecting recommended minimum flood elevations and the St. Clair River Development Area 2. The EP-H Zone does not permit residential land uses. She indicated the intent of a site-specific Zoning By-law Amendment is to permit a variety of housing options, specifically provisions for Semi-Detached dwellings and Single Detached dwellings.

14Regarding setbacks from Ditches and Drains, Ms. Jabbour testified that the policies found in the Township’s Official Plan (2005) affirms development adjacent to steep slopes or watercourses will be subject to setbacks from the stable top-of-bank, determined by the proponent in consultation with the Township and Conservation Authority and reflective of the degree, severity, and extent of the hazard. The proponent has proposed a 10 metres (“m”) setback from top-of-bank for Lots 12-17 whereas a minimum of 4 m buffer is recommended. It was Ms. Jabbour’s professional opinion that the reduced building setbacks from top-of-bank for Lots 12-17 of the Draft Plan should be permitted and no new natural hazards will be created as a result of the setback.

Ian MacDougall, RPP Senior Planner

15Mr. MacDougall provided brief corresponding evidence to that of Ms. Jabbour regarding the description of the Subject Lands, Surrounding Land Uses, Description of the Proposal and The Role of Planning Documents.

16His summary and conclusions emphasized the proposed development seeks to provide housing opportunities without harming the environment or jeopardizing the local residents.

17It was his further opinion the Application is consistent with the PPS 2020, conforms to the City of Lambton’s Official Plan, the St. Clair Official Plan and represents good planning.

18In arriving at his opinion, he considered that the municipality has the obligation to provide a full continuum of housing (i.e., homeless shelters to high end housing) and that single dwellings “will eat up a whole lot more land” than semi-detached dwellings. He further stated in support of the proposal, that St. Clair Township has very rich farmland to protect.

Planning Analysis

[Section 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)

19It was common ground between both expert witnesses that the proposal has regard to matters of provincial interest found in section 2 of the Planning Act. Ms. Jabbour specifically outlined these as follows:

(a) The protection of ecological systems, including natural areas, features and functions; a. (h) the orderly development of safe and healthy communities; (j) the adequate provision of a full range of housing including affordable housing by adding a variety of housing in an area that only provides for single dwellings (o) the protection of public health and safety; (p) the appropriate location for growth and development by encouraging a wide range of housing in this area such as single dwellings, semi-detached dwellings, and townhomes.

Provincial Policy Statement (2020) “PPS”

20It was also common ground between the expert witnesses that the proposal is consistent with the PPS 2020 as it relates to Section 1.0 Building Strong Healthy Communities and specifically, as outlined by Ms. Jabbour in the following subsections:

1.1 Managing and Directing Land Use to Achieve Efficient and Resilient Development and land Use Patterns by providing an appropriate market-based range and mix of residential types such a multi-unit housing and avoiding development and land use patterns which may cause environmental or public health and safety concerns;

1.1.3 Settlement Areas. The proposal focuses on growth and development based on densities and a mix of land uses which efficiently use land and resources

1.2.6 Land Use Compatibility shall be planned and developed to minimize risk to public health and safety;

1.4 Housing availability can be achieved by facilitating compact built form regulations that are regularly found in ZBL;

2.1 – Wise Use and Management of Resources by ensuring Natural Heritage shall be protected for the long term. Site alteration shall not be permitted in fish habitat or within habitat of endangered species and threatened species.

3.1 – Protecting Public Health and Safety and Natural Hazards. The Greck Report addresses hazardous lands and flooding channels and their recommendations contained therein that are consistent with the Ministry of Natural Resources and Forestry.

21The proposed amendments are consistent with the PPS as they propose to permit a range and mix of housing types in an urban settlement area which is characterized by primarily single-detached dwellings on large lots. The proposed amendments seek to minimize land consumption for residential purposes by redesignating lands that have been encumbered by environmental designations restricting development.

County of Lambton Official Plan (“COP”)

22Ms. Jabbour opined, and it is and not disputed by Mr. MacDougall, that the Applications are consistent with the “COP” as they provide a general framework for land use, economics, natural heritage, social and cultural decision-making within the County specifically by expressing long term intentions on the extent of growth through a management strategy for Lambton County to the year 2031 and protects agricultural lands and farming practices. She referred to the following relevant sections:

Section 2.3.4 Appropriate zoning provisions are required to permit a range and mix of housing forms, types, sizes, and tenures that meet the housing needs of local and county residents.

Section 3.1.5 The projected population to 2031 for St. Clair Township is 12,536 to 13,876. The number of allocated dwellings is 55.

Section 3.1.6. The proposed amendments are consistent with COP as they respond to the shifting demographic designed for smaller more desirable households, maximum leisure and will assist in maximum use of land that has historically been constrained by environmental designations based on rigorous Scientific Assessments which represents good planning.

Section 8.7 – Development setbacks are encouraged to protect new development in natural hazard areas as opposed to relying on structural protection that require maintenance and upgrading over time.

23The proposed development supports the policy directions of “COP”.

Township of St. Clair Official Plan (“TOP”) (2005)

24Relevant Policies referred to by Ms. Jabbour were as follows:

Part B – Section 3 – Chenal Ecarte Residential-Constraint Designation: The Greck Report (2023) demonstrates that recommended floodproofing measures for this proposal are less than what is prescribed in Policies 3.3.3 ;

Part B, Section 16 (3) Natural Heritage: The Sage Report demonstrates no evidence of Species at Risk (SAR) habitat located within the proposed phase of development and natural areas;

Part C, Section 1.1.4 – Transportation – The Subject Lands are consistent with the character of the area along the St. Clair Parkway and will incorporate recreation attributes with pedestrian access to the waterway;

Part D, Section 1.1.3 – Cultural Heritage/Archaeological Surveys. Stage 1 and 2 archaeological assessments have been conducted and did not result in the documentation of any archaeological resources;

Part E, Section 1 – Official Plan Reviews and Amendments. The amendment is needed and can be justified in light of accepted planning principles and through adequate full participation of the general public which will be undertaken through a statutory public meeting. OPA 28 does not propose changes to the Chenal Ecarte Residential designation and OPA 28 proposes policies for areas of Natural Hazards which may permit development if criteria consistent with those prescribed in the existing OP are met.

25The proposed development supports the policy direction of the “TOP” (2005)

Township of St. Clair Comprehensive Zoning By-law 17 of 2003

26The Subject Lands are located in St. Clair River Development Area 2 which is characterized by a very high-water table and flooding conditions. Through discussions between the Applicant, its team of professionals, and the City, the Applicant has indicated they can overcome the challenges faced when developing in St. Clair River Development 2. The development proposes increased housing density which will provide much needed housing options and to a standard that does not adversely affect the area identified for environmental protection in both the OP and ZBL.

FINDINGS

27The Tribunal accepts the uncontested viva voce evidence and written reports of Ms. Jabbour and Mr. MacDougall and is satisfied that the Zoning By-law Amendment (“ZBLA”) and OPA proposals support the anticipated planning objectives as presented in the evidence, are appropriate and desirable, represent good planning and should be approved.

28The Tribunal has regard to the City’s applicable policies and matters of provincial interest set out in s. 2 of the Act;

29The Tribunal finds that the ZBLA will facilitate the re-development of the Subject Property for an appropriate mix of land and uses appropriate for its context and will contribute to housing supply through an additional variety in housing types within the area and that it constitutes good planning and is in the public interest.

a. is consistent with the Provincial Policy Statement 2020; b. conforms to the policy direction of the County of Lambton Official Plan (2020); c. conforms to the policy direction of the Township of St. Clair Official Plan (2005); and d. conforms to the Township of St. Clair Comprehensive Zoning By-law 17-2003.

ORDER

30THE TRIBUNAL ORDERS that:

1. The Appeal pursuant to subsection 22(7) of the Planning Act is allowed, and By-Law No. 16-2024 is approved as set out in Schedule 1 being a bylaw to adopt Amendment No. 28 to the Township of St. Clair Official Plan.

2. The Appeal pursuant to subsection 34(11) of the Planning Act is allowed, and the Township of St. Clair Comprehensive Zoning By-Law No. 17-2004 is hereby amended in accordance with By-law No. 17-2024 as set out in Schedule 2 appended to this order.

“Jackie Denyes”

Jackie Denyes MEMBER Ontario Land Tribunal Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

SCHEDULE 1

THE CORPORATION OF THE TOWNSHIP OF ST. CLAIR ZONING BY-LAW NO. 16 OF 2024 Being a By-law to adopt Amendment No. 28 to the Township of St. Clair Official Plan

WHEREAS the Council of the Corporation of the Township of St. Clair under Section 17(22) (adoption of plan section) of the Planning Act, S.O. 1996, c.4, hereby enacts as follows:

WHEREAS the County of the Corporation of the Township of St. Clair deems it desirable to amend the said Township of St Clair Official Plan.

NOW THEREFORE, the Council of the Corporation of the Township of St. Clair hereby enacts as follows:

1. That Official Plan Amendment No. 28 of the Township of St. Clair, consisting of the attached map, is hereby adopted.

2. That subsection 3.3.3 c) be replaced with the following:

setbacks from the top of bank of any watercourse to any structure will be 10 metres. Where the flooding and erosion hazard has been overcome with shoreline protection designed and constructed based on acceptable engineering principles, the setback from the bank of any watercourse may be reduced to a suitable setback as specified by the Township Engineer in consultation with the St. Clair Region Conservation Authority.

3. The Clerk of St. Clair Township is hereby authorized and directed to apply to the approval authority, the County of Lambton, for the approval of Official Plan Amendment No. 28 for the Township of St. Clair.

4. This By-law shall come into full force and effect on the day of the final passing thereof.

Read the FIRST and SECOND time this 18th day of March 2024.

Read a THIRD and FINAL time this 18th day of March 2024.

Jeff Agar, Mayor Jeff Baranek, Clerk

I hereby certify that the foregoing is a true copy of By-law No. 16 of 2024 as enacted by the Council of the Corporation of the Township of St. Clair on this 18th day of March 2024.

Jeff Baranek, Clerk

SCHEDULE 2

THE CORPORATION OF THE TOWNSHIP OF ST. CLAIR ZONING BY-LAW NO. 17 OF 2024 Being a By-law to amend Comprehensive By-law No. 17 of 2003 Pursuant to Sections 34 and 39 of the Planning Act

WHEREAS the Council of the Corporation of the Township of St. Clair passed a comprehensive Zoning By-law Number 17 of 2003 on April 21, 2003;

WHEREAS the Council of the Corporation of the Township of St. Clair deems it desirable to amend the said by-law;

NOW THEREFORE, the Council of the Corporation of the Township of St. Clair hereby enacts as follows:

1. Schedule “A-12-3,” attached, is hereby declared to form part of this By-law.

2. By-law Number 17 of 2003 is hereby amended to affect the lands described as Part of Lot “D,” Con 5, Formerly Township of Sombra, now in the Township of St Clair. The lands are bounded by St Clair Parkway, Indian Road, and Hubbard’s Drain.

3. That the following provisions shall apply to the lands zoned R4-5 Exception 5 to the Residential -4 (Chenal Ecarte) Zone:

R4-5 Exception 5 to the Residential-4 (Chenal Ecarte) Zone:

Provisions for Semi-Detached Dwellings

Permitted Use	Min. Lot Frontage	Min. Lot Area	Min. Front Yard	Min. Interior Side Yard (if attached or no attached garage)	Min. Exterior Side Yard	Min. Rear Yard	Max. Building Height	Min. Landscaped Open Space (%)
Semi-Detached	9.1m per dwelling unit	300 m² per dwelling unit	4.6m	0 wall side/1.2 unattached side	1.2m	7.5m	10.5m	30%

• Front, side and rear yard setbacks and the minimum landscaped open space shall determine lot coverage.
• Notwithstanding subsection 4.20.2 for Lots A to D, Concession 5 to 15, the Minimum Building Openings for all buildings and structures located on the property adjacent to the St. Clair River, the minimum elevation for all openings shall be 176.91m. The minimum elevation of driveways and access roads servicing the proposed buildings shall be 176.31m.
• Notwithstanding subsection 4.19.1(a), Setbacks from Ditches and Drains, the minimum setback between a building or structure shall be 10m from the Top of the Bank of the Hubbard Drain.
• Notwithstanding subsection 4.19.3(c), Road Setbacks, the minimum setback for a building erected adjacent to the St. Clair Parkway shall be 9.1 meters from the street line.

Provisions for Single-Family Dwellings

Notwithstanding any provisions to the contrary, the following provisions shall apply to Single-Family dwellings on lands zoned R4-5 Exception 5:

• Interior Side Yard Width (minimum): 1.52m
• Exterior Side Yard Width (minimum): 1.52m
• Front yard Depth (minimum): 9.1m
• Rear Yard Depth (minimum): 8.5m
• Maximum Building Height 10.5m
• Front, side and rear yard setbacks and the minimum landscaped open space shall determine lot coverage.
• Notwithstanding subsection 4.19.3(c), Road Setbacks, the minimum setback for a building erected adjacent to the St. Clair Parkway shall be 9.1 meters from the street line.

4. This By-law shall come into force and effect pursuant to Sections 34 (21) or Section 34 (30) of the Planning Act R.S.O, 1990 upon being passed by Council.

Read the FIRST and SECOND time this 18th day of March 2024.

Read a THIRD and FINAL time this 18th day of March 2024.

Jeff Agar, Mayor Jeff Baranek, Clerk

I hereby certify that the foregoing is a true copy of By-law No. 17 of 2024 as enacted by the Council of the Corporation of the Township of St. Clair this 18th day of March 2024.

Jeff Baranek, Clerk