Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 18, 2024

CASE NO(S).: OLT-24-000093

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

Applicant/Appellant: JRB Williams Enterprises Inc.

Subject: Application to amend the Zoning By-law – Refusal of application

Description: To permit a development consisting of 32 residential units located in 8 buildings

Reference Number: Z13-2022

Property Address: Part of Lot 33, Conc. C

Municipality/UT: Brighton/Northumberland

OLT Case No.: OLT-24-000093

OLT Lead Case No.: OLT-24-000093

OLT Case Name: JRB Williams Enterprises Inc. v Brighton (Municipality)

PROCEEDING COMMENCED UNDER subsection 51(39) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Subject: Proposed Plan of Subdivision - Refusal by Approval Authority

Description: To permit a development consisting of 32 residential units located in 8 buildings

Reference Number: SUB2022-01

Property Address: Part of Lot 33, Conc. C

Municipality/UT: Brighton/Northumberland

OLT Case No.: OLT-24-000094

OLT Lead Case No.: OLT-24-000093

OLT Case Name: JRB Williams Enterprises Inc. v Brighton (Municipality)

Heard: September 25-26, 2024 by video hearing

APPEARANCES:

Parties	Counsel
JRB Williams Enterprises Inc.	Jennifer Savini Daniel Querques (Articling Student)
Municipality of Brighton	John Ewart

DECISION DELIVERED BY A. SNOWDON AND DAVID BROWN AND INTERIM ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal concerns Appeals brought by JRB Williams Enterprises Inc. (“Appellant”) following the Municipality of Brighton’s (“Municipality”) refusal of Applications for a Zoning By-Law Amendment (“ZBA”) and Draft Plan of Subdivision (“DPS”) (collectively the “Applications”). The Appeals are brought pursuant to ss. 34(11) and 51(39) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”). The Appellant is proposing to build 32 townhouse units on the lands located at the terminus of Elgin Street East and described as Part of Lot 33, Concession C, Municipality of Brighton, County of Northumberland (“County”) (“Subject Lands”).

2The Subject Lands are currently vacant. The surrounding lands to the west and south are low-density residential use, with the terminus of Elgin Street located to the west and Price Street located to the south. A Provincially Significant Wetland (“PSW”) is located to the north and the Presqu’ile Yacht Club is located to the east. The Subject Lands have an area of 2.64 hectares (“ha”).

3The Appellant proposes to develop the Subject Lands with a 32-unit residential standard condominium development comprised of six three-storey townhouse buildings containing four dwelling units each, and two two-storey townhouse buildings containing four dwelling units each. A private condominium road with a cul-de-sac at the east end will provide access to all units (“Proposed Development”). An emergency access is proposed to Price Street and the Proposed Development will be serviced by municipal water and sewer services.

4To implement the Proposed Development, the Appellant filed a ZBA to modify the Municipality Zoning By-Law No. 140-2002. The ZBA proposes to redesignate lands currently zoned Future Development (FD) to Urban Residential Four Exception Five (R4-5) Zone, Environmental Protection Exception One (EP-1) Zone, and Open Space (OS) Zone. The site-specific provisions that would apply to R4-5, include a maximum of 32 units, a minimum setback from the EP-1 Zone of 3 metres (“m”), and a minimum rear yard setback of 5 m. The Appellant also filed a DPS to create the Plan of Condominium to create the 32 units, the condominium road, and a servicing agreement.

5The Applications were filed with the Municipality on September 29, 2022, and deemed complete on November 11, 2022. The Statutory Public Meeting was held on January 16, 2023.

6On December 11, 2023, Council of the Municipality (“Council”) considered the Applications. The Municipal Staff Report dated December 11, 2023, (“Staff Report”) (Exhibit 1, Tab 37) was presented to Council recommending approval of the Applications subject to the conditions of Draft Plan Approval contained in the Staff Report. Council refused the Applications, citing that developments should “have regard for the character and quality of established neighbourhoods” and “ensure that the character of the residential area will be maintained or enhanced and that such redevelopment will not burden existing facilities and services.”

7The Appellant filed the Appeals on January 3, 2024.

LEGISLATIVE FRAMEWORK

8When considering an appeal under ss. 34(11) and 51(39) of the Act, where an application was refused, the Tribunal shall have regard to matters of provincial interest as set out in s. 2 of the Act. Further, the Tribunal shall have regard to the decision of the Municipality and the information it considered in making its decision. The Tribunal must be satisfied that the ZBA is consistent with the Provincial Policy Statement, 2020 (“PPS”), conforms with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”), conforms to the Northumberland County Official Plan (“NCOP”), and conforms to the Municipality’s Official Plan (“BOP”).

9When considering the Appeal of a DPS, the Tribunal shall have regard to the matters identified in s. 51(24) of the Act, and that the proposed conditions are reasonable pursuant to s. 51(25) of the Act.

10In consideration of the above statutory requirements, the Tribunal must be satisfied that the ZBA and DPS represent good planning and are in the public interest.

SUBMISSIONS

11The Tribunal qualified Kent Randall, a Registered Professional Planner (“RPP”), to provide expert opinion evidence in the area of land use planning on behalf of the Appellant. Mr. Randall’s Witness Statement (Exhibit 2) and Reply Witness Statement (Exhibit 3) were filed with the Tribunal for consideration.

12The Tribunal qualified Diana Keay, an RPP, to provide expert opinion evidence in land use planning on behalf of the Municipality. Ms. Keay’s Witness Statement (Exhibit 4) was filed with the Tribunal in support of the Municipality’s position.

13Mr. Randall reviewed the Draft Plan of Condominium (“Draft Plan”) (Exhibit 7), which included a revised access arrangement in response to the Municipality’s concern with respect to the legal frontage and the proposed access location. He proffered that the revision was minor and would not impact the stormwater management, as confirmed by the letter from the Consulting Engineer attached to Exhibit 3.

14Mr. Randall reviewed the location of the proposed condominium road, emergency access, visitor parking spaces, and the proposed building locations. The Proposed Development will comprise two blocks (“Block 1” and “Block 2”), with Block 2 being environmentally sensitive lands, inclusive of the setback buffers and to be zoned EP-1. The balance of the Subject Lands will comprise Block 1. A vegetative buffer is proposed along the southern boundary of the Proposed Development to provide a natural screening from the adjacent residential properties.

15During the Archeological Investigation, Mr. Randall advised that artifacts were found at the east end of the Subject Lands. A 10 m setback is provided around the area where the artifacts were found, and no development will occur in this area.

Matters of Provincial Interest

16Mr. Randall opined the Applications have appropriate regard for the relevant matters of provincial interest set out in s. 2 of the Act, as follows:

a. With respect to s. 2(a), an Environmental Impact Study (“EIS”) (Exhibit 1, Tab 12) identified the extent of the natural heritage features and recommended a 30 m buffer from the PSW which has been incorporated in Block 2 of the Draft Plan to protect the PSW. Block 2 is proposed to be zoned EP-1.

b. With respect to s. 2(d), a Stage 3 Archeological Assessment (Exhibit 1, Tab 17) was conducted after the artifacts were found. A Protected Area with a 10 m buffer has been delineated and zoned OS to protect the artifacts. No development will occur in the OS zone.

c. With respect to s. 2(f), a Traffic Impact Study (Exhibit 1, Tab 13) found that the road network is sufficient to support the Proposed Development. Further, The Preliminary Servicing and Stormwater Management Report (“SSWM”) (Exhibit 1, Tab 16) confirmed that the municipal sewer system requires no extensions and has sufficient capacity for the Proposed Development. The Proposed Development represents an efficient use of the existing municipal infrastructure.

d. With respect to s. 2(h), the Proposed Development is located partially within the Municipality’s Built (Intensification Area) Boundary (“IA”) and will “round out” existing development in the IA. There are no natural hazards where the Proposed Development is located, ensuring safe access and use of the Subject Lands.

e. With respect to s. 2(j), the Proposed Development is row housing, representing a different form of housing from that on the surrounding lands. Mr. Randall confirmed that there is no intention to build affordable housing within the Proposed Development.

f. With respect to s. 2(o), the Proposed Development will provide a 21 m setback from the identified floodplain and wave uprush hazard associated with Presqu’ile Bay to ensure public safety.

g. With respect to s. 2(p), the Proposed Development will contribute to the efficient growth and development within the Brighton Urban Area, have no negative impact on the adjacent natural heritage features, and conforms to the NCOP and BOP.

h. With respect to s. 2(q), there is no public transit in the area. The Proposed Development is designed to be pedestrian friendly.

i. With respect to s. 2(r), the Proposed Development respects the existing built form in the neighbourhood through buffering and height limits. Integration with the neighbourhood will be accomplished via walking paths and pedestrian connections.

17Ms. Keay submitted that the Proposed Development, as described in the last revision of the Draft Plan filed with the Municipality, does not have legal road access as the last revision to the Draft Plan provides the road access to the Subject Lands crossing private property. Ms. Keay proffered that relocating the road access, as proposed by the Draft Plan, at Exhibit 7, requires a resubmission to the Municipality, accompanied with revisions and updates to the supporting studies, including a Stormwater Management Plan.

18Ms. Keay submitted that the DPS is premature until such time as a formal revision is filed and circulated to ensure that legal road access is available, addressing the matters addressed in s. 2 of the Act with respect to the provisions of legal access.

Provincial Policy Statement, 2020

19Mr. Randall opined that the Proposed Development is consistent with the PPS as the Proposed Development: addresses environmental concerns; improves the range and variety of dwelling units within the Municipality; utilizes the existing municipal services; accommodates growth; represents intensification on underutilized lands; maintains a 30 m setback to the PSW; and protects archeological resources.

20Ms. Keay proffered that the Applications are not consistent with the PPS as the PPS directs development to areas with a delineated built boundary and that growth is to be focused in such areas. She submitted that only 25% of the Proposed Development is located within the IA. The remainder of the Proposed Development is within the Greenfield Area. Ms. Keay proffered that the Planning Justification Report (“PJR”) (Exhibit 1, Tab 23) and the Staff Report do not speak to how the Proposed Development supports the intensification targets of the Municipality.

A Place to Grow: Growth Plan for the Greater Golden Horseshoe

21Mr. Randall opined that the Proposed Development conforms to the Growth Plan as the Subject Lands are in an urban, services area, and partially within the IA of the Municipality, with access to opportunities for employment, education, and community services. The Proposed Development will offer a mix of housing type options and will protect the natural heritage features of the PPS, as required by Policy 4.2.2.6.

22Ms. Keay’s opined that the Applications do not conform to the Growth Plan due to a failure to address intensification targets. She proffered that only 10 of the 32 units proposed are within the IA.

Northumberland County Official Plan

23The NCOP includes broad policies directing growth protecting resources within the County and the Municipality. Schedule A Land Use designates the Subject Lands as Urban Area.

24Mr. Randall opined that the Proposed Development conforms to the NCOP by:

a. Helping the Municipality reach the Intensification Target of 42% within the IA and achieving a minimum Density Target of 25 people/jobs per ha as required by Policies B9 and B10;

b. Confirming there is sufficient sewage and water service capacity to support the Proposed Development as required by Policies B15 and E1.4;

c. Demonstrating that the portions of the Subject Lands outside of the IA are adjacent to the IA and are a logical extension to the IA, as described by Policy B16a), and providing housing options that will minimize land consumption as encouraged by Policy B16b), and utilizing existing infrastructure to service the Proposed Development;

d. Maintaining the character of the existing and surrounding neighbourhood as required by Policy C1.2.1a) through landscape buffers to minimize visual impacts to adjacent residential units, a maximum height of three storeys to mitigate massing impacts, providing ample parking to minimize on-street parking, incorporating pitched roofs into the building design to blend with surrounding lands, and encouraging increased housing densities;

e. Proposing an appropriate density that does not require an expansion of municipal infrastructure, as encouraged by Policy C1.4;

f. Incorporating the recommendations of the EIS and the SSWM to protect the quality and quantity of groundwater, as required by Policies D2.1 and E1.4; and

g. Proposing a development within walking distance to Hilda Montgomery Memorial Park, which includes a baseball diamond, a playground, and a small pavilion, conforming to Policy E1.4g).

25Mr. Randall, in consideration of Policies B9 and B10 of the NCOP, submitted that the Greenfield Area designation, outside of the IA, does not preclude development.

26Ms. Keay proffered that the Proposed Development does not conform to the NCOP as the housing type proposed is a different form than the “predominate built form of single or two-unit dwellings”, as described in the NCOP definition of low-density residential. Further, she opined that the Proposed Development does not substantially contribute to the intensification targets as the majority of the Proposed Development is located within the Greenfield Area designation.

Municipality of Brighton Official Plan

27The BOP designates the Subject Lands as Residential and Environmental Protection on Schedule A, Map 2 Land Use Designations. Schedule H Land Use of the BOP identifies the Subject Lands as Urban and being located within the Urban Settlement Boundary.

28The Proposed Development will support the Municipality’s goal to achieve the intensification targets of 42% in the IA and 58% outside of the IA, as defined in the BOP. Mr. Randall noted that these targets mirror those targets found in the NCOP and he proffered that these are municipal wide targets.

29Mr. Randall proffered that the Proposed Development represents intensification, and rounding-off the existing residential development, as encouraged by Policy 3.3.3.ii) of the BOP, which states,

The following policies shall be applied to developments brought forward for consideration, in accordance with the Phasing of Development within the Municipality: … ii) Council shall encourage and give priority to development that:

c. Promotes a compact form and pattern of development,

d. Provides for the development of land through infilling, intensification, or the rounding-off of built-up areas,

e. Provides for the development of land as a contiguous extension of existing built-up areas that avoids leap-frogging of large undeveloped tracts of land. …,

f. Will not result in a premature demand for urban services.

30The Proposed Development will utilize the existing municipal infrastructure as required by Policy 3.4.1 of the BOP.

31Mr. Randall advised that the SSWM has been reviewed with the Lower Trent Conservation Authority (“LTCA”), as required by Policy 3.5, and the LTCA has indicated they have no further requirements, having provided a sign-off on the Proposed Development.

32An EIS has been prepared, as required by Policy 3.9.5 of the BOP, and Mr. Randall advised that the mitigation measures recommended have been incorporated into the Proposed Development and are addressed in the Draft Zoning By-law (“DZB”) (Exhibit 1, Tab 48) and through the Draft Plan and the Draft Conditions of Approval for the Draft Plan Condominium (“Draft Conditions”) (Exhibit 1, Tab 47).

33Mr. Randall proffered that the Proposed Development proposes a density of 21 units per ha, which meets the BOP definition of Low Density Residential. He advised that the BOP defines Low Density Residential as the predominant “use of land in the form of single unit, and two (2) unit development, that do not exceed a density of 30 units per net ha.” It was noted that the definition does not preclude other building forms, including townhouses, so long as the density is complied with.

34Ms. Keay responded that the Proposed Development does not conform to the BOP as the majority of the development is located outside of the IA and it does not contribute substantially to the intensification target of the IA, as required by the BOP.

Section 51(24) Criteria and Conditions of Draft Approval

35Mr. Randall reviewed the criteria set out in s. 51(24) of the Act and proffered the following:

a. With respect to s. 51(24)(b), there is a demand for new housing in the Municipality, and therefore the Proposed Development is not premature. There are no unplanned extensions of public services required and the Proposed Development will not create land uses that are inappropriate for the Subject Lands;

b. With respect to s. 51(24)(c), the Proposed Development conforms to the NCOP and BOP, as outlined above;

c. With respect to s. 51(24)(d), the technical reports prepared in support of the Proposed Development address issues related to land use suitability;

d. With respect to s. 51(24)(g), restrictions related to the PSW and floodplain have been identified and appropriately incorporated in the Draft Plan and DZB; and

e. With respect to s. 51(24)(h), the Proposed Development provides an appropriate setback and buffer to the floodplain and wave uprush limits.

36Ms. Keay reiterated that the Applications are premature until the road access issue has been resolved, including the updating of technical studies to show that the new road access does not have adverse impacts.

37Mr. Randall advised that the Draft Conditions were drafted by the Municipality’s planner, with input from Mr. Randall, and presented to Council for approval. Mr. Randall opined that the Draft Conditions are appropriate.

PARTICIPANTS

38Mr. Randall advised that he has reviewed the Participant Statements filed with the Tribunal, and the concerns raised are generally the same as those raised throughout the process of reviewing the Applications at the Municipality and the public meetings.

39Mr. Randall opined that the concerns of the neighbours have been addressed through revisions to the Proposed Development and the various studies and reports prepared by professionals, many of which were peer reviewed at the direction of the Municipality. Mr. Randall further noted that many of the Draft Conditions address the concerns raised by the Participants.

40Mr. Randall concluded by opining that the Applications constitute good planning. The Applications have been vetted through multiple studies and reports, addressing the PSW and the archeological attributes identified. The Applications are supported by technical studies, the Staff Report, and the commenting stakeholders. Mr. Randall proffered that the Applications are consistent with, or conform to, the relevant planning policy framework. The Proposed Development addresses the impacts to the natural heritage features, avoids hazards, appropriately addresses stormwater issues, and fits the character of the area.

41Mr. Randall recommended that the Tribunal allow the Appeals and approve the ZBA and DPS, subject to the Draft Conditions

42Ms. Keay recommended that the Appeals be dismissed as it is her opinion that the Applications do not represent good planning. The Proposed Development does not give priority to the delineated IA and does not support the intensification targets established under the NCOP and BOP. The majority of the Proposed Development is located in the Greenfield Area, and justification of how this conforms to PPS, the Growth Plan, the NCOP, and the BOP has not been completed. Any revisions to the Draft Plan as it relates to road access should be reviewed, and the applicable supporting studies submitted and peer reviewed.

ANALYSIS AND FINDINGS

43The Tribunal considered the submissions of the Parties, the testimony and Witness Statements of Mr. Randall and Ms. Keay, the Participant Statements, and the Exhibits filed with the Tribunal. The Tribunal also reviewed the decision of the Council and notes that the issues raised by the Municipality’s planner were different from those identified by Council in their decision, and no evidence was proffered in support of the issues identified by Council in their refusal of the Applications.

44The Tribunal, having reviewed the Draft Plan, filed as Exhibit 7, accepts the evidence of Mr. Randall and finds that the issue of legal road access has been addressed in the Draft Plan. The Tribunal is satisfied that the issues relating to Storm Water Management raised by the Municipality will be addressed through the clearance of the Draft Conditions, as conceded by Ms. Keay.

45The Tribunal finds that, while the predominate housing type in the area is single or two-unit dwellings, the BOP does not preclude other built forms and accepts the position of Mr. Randall that the density is the determinant factor in the Low Density Residential designation contained in the BOP. The Proposed Development of four-unit dwellings is a departure from the predominate built form in the area, however the PPS, Growth Plan, and the NCOP all provide for and encourage a range of housing types and densities, which would be supported by the Proposed Development. Through the design of the proposed buildings, the Tribunal finds that the proposed dwelling units provide a built form that is consistent with the built form that the Zoning By-law currently permits on the neighbouring lands in terms of maximum height, pitched roofs, and building footprints.

46In consideration of the density targets contained in the NCOP and the BOP, the Tribunal finds the intensification target in the built-up area is a minimum of 42% and the target in the Greenfield Area is a maximum of 58%. The Tribunal finds that the policies do not preclude building outside the IA, and when considering lands immediately adjacent to IA, the BOP “encourages the rounding-off of built-up areas.” The intensification targets are an average over time for the entirety of the Municipality, and therefore, the amount of intensification inside and outside the IA will vary year to year and does not prevent the Proposed Development and the mix of intensification inside and outside of the IA. The Tribunal finds that the Proposed Development to be implemented by the ZBA conforms to the BOP and the NCOP.

47The Subject Lands are an appropriate location for growth. The Proposed Development represents appropriate intensification, is an efficient use of land and existing infrastructure, has incorporated appropriate mitigation and buffering to the PSW and the floodplain hazards, and represents orderly development. The Tribunal finds that the Applications have appropriate regard for matters of provincial interest set out in s. 2 of the Act, are consistent with the PPS, and conform to the Growth Plan.

48The Tribunal has concerns regarding the Draft Conditions submitted for the DPS. The Tribunal finds that many of the proposed conditions within the Draft Conditions are not conditions but are in fact statements with no obvious criteria for clearance. The Tribunal requires that the conditions must be revised to a format where clearance can be provided upon the performance of certain requirements, as opposed to the many general statements with no action for clearance. The Tribunal notes that conditions do not appear in any organized order and recommends that clearances from the respective clearance authorities should be grouped together.

49The Tribunal finds that the Proposed Development represents good planning, is in the public interest, and should be approved.

50The Tribunal allows the Appeal of the ZBA and approves the DZB, as set out in Attachment 1 to this Order. The Tribunal allows the Appeal of the DPS and approves the DPS in principle, subject to the Appellant providing a revised list of Draft Conditions in a form as set out in paragraph [48] above, and a Draft Plan of Condominium signed by a qualified Ontario Land Surveyor.

FINAL Order

51THE TRIBUNAL ORDERS THAT the Appeal filed pursuant to s. 34(11) of the Planning Act is allowed and By-law No. 140-2002 is hereby amended, as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the Municipality of Brighton to assign a number to this by-law for record keeping purposes.

INTERIM ORDER

52THE TRIBUNAL FURTHER ORDERS THAT the Appeal filed pursuant to s. 51(39) of the [Planning ]Act is allowed, in part, on an interim basis, contingent upon confirmation, satisfaction, or receipt of those pre-requisite matters identified in paragraph [53] below, and the draft plan prepared by Gifford Harris Surveying Ltd. and EcoVue Consulting Services Inc., referenced as Project No. 21-2142 and dated September 10, 2024 comprising Part of Lot 33, Concession C, Town of Brighton, County of Northumberland, as set out in Attachment 2 to this Interim Order, is approved in principle subject to the fulfilment of the conditions referred to in paragraph [53] below.

53The Tribunal withholds the issuance of its Final Order in respect of the Appeal filed pursuant to s. 51(39) of the Planning Act, contingent upon the following pre-requisite matters:

a. The Tribunal has received and approved a final list of Conditions of Draft Condominium Plan Approval, provided in a form acceptable to the Solicitor for the Municipality of Brighton, whereby each condition identified can be fulfilled upon the performance of those certain requirements, as set out in the respective condition; and

b. The Tribunal is in receipt of the Draft Plan of Condominium signed by a qualified Ontario Land Surveyor confirmed to be satisfactory to the Solicitor for the Municipality of Brighton.

54The Panel will remain seized for the purposes of reviewing and approving the final form of the Conditions of Draft Condominium Plan Approval and issuance of the Final Order.

55If the Parties do not submit the final form of the Conditions of Draft Condominium Plan Approval for approval by the Tribunal and a signed copy of the Draft Plan of Condominium, as required in paragraph [53] above, and do not request the issuance of the Final Order by Friday, April 25, 2025, the Appellant and the Municipality of Brighton shall provide a written status report to the Tribunal by that date, as to the timing of the expected submission of the final form of the Conditions of Draft Plan of Condominium Approval, the signed Draft Plan of Condominium, and issuance of the Final Order by the Tribunal.

56The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines and deadlines for the submission of the final form of the Conditions of Draft Plan of Condominium Approval, the signed Draft Plan of Condominium, and the issuance of the Final Order.

“A. Snowdon”

A. SNOWDON

MEMBER

“David Brown”

DAVID BROWN

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.

ATTACHMENT 1

ATTACHMENT 2