John and Cori Christiaanse v. Quinte West (City), 2024 CanLII 118353

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 22, 2024

CASE NO(S).: OLT-24-000721

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: John and Cori Christiaanse

Subject: Consent – refused by Approval Authority

Description: To sever land to create new residential lot

Reference Number: B20/24M

Property Address: 567 Downs Road (Part of Lot 8, Concession 4)

Municipality/UT: Quinte West/Hastings

OLT Case No.: OLT-24-000721

OLT Lead Case No.: OLT-24-000721

OLT Case Name: Christiaanse v. Quinte West (City)

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: John and Cori Christiaanse

Subject: Minor Variance – refused by Approval Authority

Description: To permit reduced setbacks from cattle barns and manure pit to create new residential lot

Reference Number: A5/24M

Property Address: 567 Downs Road (Part of Lot 8, Concession 4)

Municipality/UT: Quinte West/Hastings

OLT Case No.: OLT-24-000739

OLT Lead Case No.: OLT-24-000721

Heard: October 2, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

John and Cori Christiaanse

Mark Pedersen

City of Quinte West

Jennifer Savini

DECISION DELIVERED BY GEORGE PoLITIS AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1This matter before the Tribunal is an appeal brought by John and Cori Christiaanse (“Appellants”) of the decision of the City of Quinte West’s (“City”) Committee of Adjustment (“CoA”), which refused applications for a Minor Variance Application (“MVA”) and a consent (“Consent”) to sever the existing lot municipally known as 567 Downs Road (Part of Lot 8, Concession 4), in the former Township of Murray, in the City of Quinte West/Hastings (“Subject Property” or “Subject Land”). The applications seek to sever the Subject Property into two lots with a reduced lot width and lot area pursuant to s. 53(19) and s. 45(12) of the Planning Act, R.S.O. 1990, c. P.13. as amended (“Act”), to facilitate a future development.

2The MVA and Consent Applications (“Applications”) were filed with the City and circulated for City Staff comments. Staff Reports recommended their approval subject to six conditions. Submissions from the adjacent neighbour opposed the Applications stating that the severance was not in keeping with the Minimum Distance Setback (“MDS”). There were additional complaints from the neighbour regarding the increased traffic on the shared road between the properties.

3On June 13, 2024, the CoA denied the Applications, citing that the MDS setbacks are neither minor nor desirable. The key issues regarding the refusal of the Applications were the MDS regarding noise, odour, and increased road traffic. On July 2, 2024, the Applicant filed his Appeal of the CoA decision.

RELIEF FOR PROPOSED CONSENT AND REQUESTED VARIANCES

4The following are the reliefs requested for the Subject Property:

Proposed Severance

a) The consent application seeks to sever a new vacant lot for an area of approximately 0.45 hectares (“ha”) with a retained area of 2.49 ha. (See below)

Proposed Variance(s)

a) The relief requested from the barn to the west for a MDS of 289.3 mm from the required 331 m.

b) The relief requested from the barn and manure pit to the south for an MDS of 557.8 m from the required 658 m.

Severed (Per Application)

Retained (Per Application)

Frontage: 71.8 m

Frontage: 127.3 m

Depth: 74 m

Depth: 194.1 m

Area: 0.45 ha

Area: 2.49 ha

STATUS REQUESTS

5The Tribunal received a Party status request from the adjoining property owners Brian and Helena Crews. After reading Rule 8 – ROLE AND OBLIGATIONS OF A PARTY, of the Tribunal’s Rules of Practice and Procedures, Mr. & Mrs. Crews revoked their request for Party status and asked the Tribunal to be granted Participant status.

6Mr. and Mrs. Crews raised a few concerns regarding the MDS. Counsel for the Appellants raised concerns over the written submissions from Mr. and Mrs. Crews with respect to the outdated information on the Land Planning Issues from 1990. The Tribunal agreed that the regulations and procedures had changed over the past 34 years and that weight would only be given to the current statutes. Due to the proximity of the Crews’ property to the Subject Land, the Tribunal granted Participant status to Mr. & Mrs. Crews.

7The City’s Manager of Planning Services, Kelly Weste, was summoned by the Appellants to provide expert opinion evidence.

8Counsel for the City maintained a Watching Brief.

LEGISLATIVE FRAMEWORK

Consent to Sever – s. 53(19) of the Act

9In order to determine whether provisional consent should be granted, the Tribunal must:

I. address the threshold question in accordance with s. 53(1) of the Act and be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the Municipality and can proceed by way of application for Consent;

II. if the Tribunal is satisfied that a plan of subdivision is not necessary, s. 53(12) requires that regard be given to the relevant criteria set out in s. 51(24) of the Act, which includes, inter alia: that the proposed Consent has regard to the effect that the Consent will have on matters of Provincial interest set out in s. 2 of the Act; whether the proposed Consent is premature or in the public interest; whether the Consent conforms to applicable Official Plans, which in this instance, is the City of Quinte West’s Official Plan (“OP”); the suitability of the land for the purposes for which it is to be subdivided; the suitability of the proposed affordable housing units, the dimensions, and shapes of the proposed lot, and the adequacy of utilities and municipal services;

III. as required by s. 3(5) of the Act, be satisfied that the approval of the proposed provisional Consent is consistent with the Provincial Policy Statement, 2020 (“PPS”) and conforms to the applicable Provincial plans;

IV. have regard to the decision of the Approval Authority relating to the Consent application that is before the Tribunal and the information and material that was before the Approval Authority in making the decision;

V. under s. 53(12), the Tribunal may consider and impose such conditions as may be determined to be reasonable, having regard to the nature of the proposed Consent, and such conditions may include such requirements as are set out in s. 51(25) of the Act; and,

VI. whether the giving of provisional Consent to the Applicant, with any required conditions, represents good planning in the public interest.

Minor Variances – s. 45(1) of the Planning Act (“Act”)

10The Tribunal must be satisfied that the requested Variances:

I. maintain the general intent and purpose of the OP;

II. maintain the general intent and purpose of the Zoning By-law (“ZBL”);

III. are minor in nature; and,

IV. are desirable for the appropriate development or use of the land, building or structure.

11There were no concerns or issues relating to the proposed Consent and the MVA maintaining consistency with the new Provincial Policy Statement, 2024 (“New PPS”), should the Decision issue after the New PPS effective date of October 20, 2024.

EXHIBIT LIST

12The Tribunal received and marked the following documents as Exhibits to the Appeals:

• Exhibit 1 – Curriculum Vitae of Ms. Kelly Weste

• Exhibit 2 – Acknowledgment of Expert’s Duty form for Ms. Kelly Weste

• Exhibit 3 – Staff Report 24-51 PD Municipal Submission

• Exhibit 4 – Staff Report 24-52 PD Municipal Submission

THE EVIDENCE, ANALYSIS AND FINDINGS

13After reviewing Ms. Weste’s Curriculum Vitae (Exhibit 1) and Acknowledgement of Expert’s Duty form (Exhibit 2), the Tribunal qualified Ms. Weste to provide opinion evidence in land use planning for both Parties. The Tribunal heard oral evidence from only one expert witness, Ms. Weste, Manager of Planning Services for the City, who prepared the initial Staff Planning Reports and recommendations for Approval, subject to six conditions (Attachment 1).

14After being affirmed, Ms. Weste acknowledged that she was summoned to the Tribunal by the Appellants and began to provide a thorough overview of the Subject Property. She testified that she was familiar with the case and all the files.

THE ISSUES

15The difference of opinion between the Appellants and the City lies within the MDS setbacks and road traffic safety. The Appellants are requesting approval for both the Consent Application and the MVA. The Appellants feel that the relief requested for the MDS is minor in nature, that the PPS and the OP encourage the creation of housing to serve the City’s population. The Appellants feel that the City, in denying the subject Applications, rendered a Decision which is not consistent with the PPS and not in conformity with the OP.

Neighbourhood Study Area and Context

16The Subject Property is situated in Murray Ward, with approximately 200 m of frontage on the south side of Downs Road. The Subject Property is currently developed with an existing detached dwelling and is heavily treed with a watercourse traversing the southern portion of the Subject Property, which falls within the Lower Trent Conservation Authority’s regulated area. The Subject Property is located in an area that is predominantly made up of large rural, and rural residential properties that have been developed with single-detached dwellings of varying age and character. There is a large agricultural property to the south of the Subject Property.

Consent Test

Provincial Policy Statement, 2020 (“PPS”)

17With regard to the proposed Application for consent, in relation to the PPS, Ms. Weste referred the Tribunal to the following sections below:

a) Section 1.1.4 Rural Areas in Municipalities; and,

b) Section 1.1.5.2 (c) that permits residential development, including lot creation on rural lands, as long as it is deemed to be locally appropriate.

c) Section 1.1.5.4. of the PPS stating that:

development that is compatible with the rural landscape and can be sustained by rural service levels should be promoted

d) Section 1.1.5.8 of the PPS states that:

new land uses, including the creation of lots, and new or expanding livestock facilities, shall comply with the Minimum Distance Separation formulae.

18Ms. Weste testified that, in her expert and professional opinion, that the consent proposal is consistent with the PPS.

Official Plan (“OP”)

19Ms. Weste testified that there is only one OP in the City and that it is a single-tier Municipality. She referred the Tribunal to s. 5.2.4 of the OP which states: “development with the Rural designation shall be limited to type, scale, and density consistent with maintaining the character of the rural landscape”.

20Ms. Weste introduced s. 5.2.4 (ii) of the OP, which states:

“the majority of non-farm residential development will be directed to the

urban and hamlet settlement areas.”

21Ms. Weste referred to s. 12.12.2.1 (vii) of the OP that requires that all lots created have frontage on an improved public road of a standard sufficient to support the proposed development. She went on to say that both the proposed severed and retained lots would have frontages on Downs Road, which is a year-round municipality maintained road.

22She referred to s. 12.12.2.1 (xix) of the OP that requires that all Applications for Consent comply with the MDS formulae since there are livestock barns within 750 m of the Subject Property. She went on to say that the Applicant has applied concurrently for an MVA to address a proposed reduction in setbacks from livestock barns on two adjacent properties. In her professional opinion, Ms. Weste testified that the proposed Consent Application maintains the general intent of the OP.

Zoning By-law

23Ms. Weste testified that the Subject Property is Zoned Rural (“RU”), with an Environmentally Sensitive Area (“ESA”) overlay on Schedule “D” in the City of Quinte West Zoning By-law (“ZBL”) No. 14-86. The ESA overlay on the Subject Property appears to recognize the watercourse, which is present in the southern portion of the Subject Property.

24She stated that the Rural (“RU”) Zone provisions require a minimum lot area of 2 ha. and a minimum lot frontage of 60 m. The proposed severed lot would have a total lot area of 0.45 ha. and 71.8 m of frontage, which does not comply with the existing Rural (“RU”) zoning. She stated that it is recommended that a Zoning By-law Amendment (“ZBA”) be required as a condition of consent, should this Application be approved. Ms. Weste testified that the proposed severed parcel would be rezoned to the Rural Residential (“RR”) Zone to recognize the proposed residential nature of the property. Further illustration of the Subject Land is depicted in the location diagram on page 10 of this Decision.

25Ms. Weste went on to say that the proposed retained parcel would remain in the Rural (“RU”) Zone, as it would continue to comply with the Rural (“RU”) Zone provisions. The ESA overlay would also remain unchanged.

26In her professional opinion, Ms. Weste testified that the Application for Consent meets the general intent of the ZBL.

Findings and Conclusion regarding the Consent

27Having addressed the key issues raised by the City’s expert Planner, the Tribunal is satisfied with the legislative tests for granting provisional Consent have been contented.

28The Tribunal is satisfied with the uncontroverted evidence of Ms. Weste that the provisional Consent has regard for matters of Provincial interest, and in particular:

i) through the development utilizing existing municipal services including active transportation, water, wastewater and waste management systems;

ii) the orderly development of safe and healthy communities through modestly increasing density by way of one additional lot in a rural neighbourhood through redevelopment of an under-utilized site to foster more users of transportation while respecting the existing character of the neighbourhood.

iii) the adequate provision of a full range of housing through an additional lot offering a more diverse range of housing through additional residential units and multi-generational housing, increasing home ownership opportunities and increasing new rental housing opportunities; and,

iv) the promotion of development that is designed to be sustainable.

29The Tribunal is satisfied with the evidence of Ms. Weste, regarding:

• the proposed development is not premature and is in the public interest as it provides modest intensification through the introduction of one (1) additional lot; and,

• the proposed development conforms to the policies of the OP, and that the Subject Property is located in the Rural System, where population growth and development are meant to occur. The proposed use also aligns with the subject designation.

30The Tribunal has had regard for the decision of the CoA as well as for the

information and materials that were before it, including the Staff Planning Report that recommended approval of the proposed applications subject to six conditions. Further to those materials, the Tribunal notes that the City provided evidence and submissions that support the initial neighbourhood comments of the CoA, which alleged concerns respecting safety, increased traffic, increased noise, and MDS setbacks.

31Finally, the Tribunal has reviewed all of the evidence and submissions, both oral and written, and finds them reasonable and appropriate, having proper regard for the PPS and the OP, and representative of good planning in the public interest.

Minor Variance Test

32Ms. Weste testified that the Subject Property is located in an area predominately made up of large rural, and rural residential properties that have been developed with single-detached dwellings of varying age and character. There is a large agricultural property to the immediate south of the Subject Land. See the distances from adjacent property in the chart below.

33Ms. Weste walked the Tribunal through the PPS s. 1.1.5.8 and stated that the PPS requires that all new land uses, including the creation of lots to comply with the MDS formulae. In order to ensure new development complies with the MDS formulae, Planning Staff referred to the MDS Document (Formulae and Guidelines for Livestock Facility and Anaerobic Digester Odour Setbacks, Publication 853). She testified that the MDS Document is a land use planning tool developed by the Ontario Ministry of Agriculture, Food and Rural Affairs (“OMAFRA”), and the intent of the document is to prevent land use conflicts and minimize nuisance complaints from odour, and went on to explain the MDS Formulae and Implementation Guidelines required in the PPS and other applicable Provincial Plans.

34MDS Implementation Guideline No. 12 (Existing Uses that Do Not Conform to MDS) states that:

35Ms. Weste stated that the proposed severed lot does not comply with the required MDS setbacks for the livestock barn located to the west of the Subject Property immediately across from 460 Downs Road. It has a required setback of 331 m, however, the Applicant has applied to reduce the setback to 293.3 m. The above survey sketch prepared in support of this application as shown above indicates that there are six rural residential properties within the intervening area. Three of the residential properties are located on the north side of Downs Road, and the other three are on the south side of Downs Road. She testified that all six properties are currently zoned Rural Residential (“RR”) and developed with single detached dwellings. The Intervening Area 1 indicates that 507 Downs Road, identified as D3 on the above survey sketch (noted in paragraph [34], page 14), is the furthest dwelling within the Intervening Area and is setback 245.1 m from the closest part of the livestock barn. The closest part of the severed lot would be 289.3 m from the livestock barn. Ms. Weste stated that as a result, the MDS calculation could be reduced given that it satisfies all the required conditions, outlined in MDS Guideline No. 12.

36Ms. Weste stated that the Subject Property is designated Rural on Schedule “A” of the OP and Policies pertaining to the Rural designation are located in s. 5.2 of the OP. The permitted uses in the Rural designation include limited commercial and industrial uses, which serve to enhance and promote the rural economy.

37Ms. Weste testified that s. 5.2.4 (i) and Section 12.11.1 of the OP states that the CoA will have regard for the following:

a) the Application meets the general intent and purpose of the Zoning By-law;

b) the Applicant cannot acquire sufficient land to comply without undue hardship;

c) the ability of the site to function in terms of vehicle access and parking;

d) the building coverage is not excessive;

e) the proposed development is compatible with surrounding uses, buildings or structures, and development standards associated with adjacent properties;

f) no negative impact on the natural environment;

g) whether the cumulative impact of the variance would be more appropriately addressed via a zoning by-law amendment; and,

h) the degree to which such approval may be set as an undesirable precedent.

38Ms. Weste testified that considering the above factors, it is not possible for the Appellants to have the severed lot comply with the required MDS setbacks given the existing location of the Agricultural uses on both properties. She stated that the proposed reductions in MDS would still allow for the agricultural properties to continue with their existing operations.

39Ms. Weste also testified that the proposed severed lot would function as any other rural residential property in the immediate vicinity, and would be required to comply with the Rural Residential (“RR”) Zone provisions, should this Application and conditions be approved. Ms. Weste stated that the reduced MDS would ultimately allow for a single detached dwelling to be constructed on the proposed severed parcel, which is generally compatible with the surrounding land uses, which are primarily residential along this portion of Downs Road.

40Ms. Weste stated that no negative impacts are anticipated on the natural environment as a result of this Application, and that this Application is minor in nature, and does not require a zoning by-law amendment, given that the Applicant is able to comply with MDS Guideline No.12. She also asserted that the approval of this Application does not set an undesirable precedent and that the proposal is generally consistent with the OP.

41With regards to the ZBL, Ms. Weste explained that the Subject Property is currently zoned Rural (“RU”) with an Environmental Sensitive Area (“ESA”) overlay on Schedule “D” in the City’s ZBL No. 14-86. She also testified that the Application proposes to permit the reduction of two MDS setbacks, as outlined. Ultimately, the impact of the reductions in the setbacks are considered to be minor as the immediate area consists primarily of rural residential lots developed with single detached dwellings.

42Ms. Weste testified that the proposed variance is considered reasonable since:

• there are existing single detached dwellings located closer to the livestock barns and manure pit than the proposed severed lot;

• there is no negative impact anticipated on the natural environment; and,

• the Application is justified for the functional reasons described herein.

43According to Ms. Weste, based on all her evidence and, in her professional opinion, the minor variances would not establish an undesirable precedent, they are considered minor in nature, and maintains the general intent of the ZBL.

Findings and Conclusion regarding the Minor Variance Test

44Having addressed the key issues raised by the City’s expert Planner, the Tribunal is satisfied with the four legislative tests for the granting of the Variances are met.

45The Tribunal accepts the uncontroverted evidence of Ms. Weste, supported by the Planning Staff Reports, that the Variances maintain the general intent and purpose of the OP. The Rural designation of the existing agricultural operations would already be limited due to the number of existing dwellings within the area.

46The Tribunal is satisfied that the MVA:

a) maintains the general intent and purpose of the OP;

• the OP is maintained, as the shape and size of the lots will remain consistent with the lots in the surrounding area and will encourage compact built-form that is encouraged by policies within the OP.

b) maintains the general intent and purpose of the ZBL;

• the evidence provided with the ZBL’s current zoning as Rural (“RU”) also includes an Environmental Sensitive Area (“ESA”) overlay. This would allow the proposed retained parcel to remain in the Rural (RU) Zone, as it would continue to comply with the Rural (RU) Zone provisions, further maintaining the general intent of the ZBL.

c) is desirable for the appropriate development or use of the land, building or structure; and,

• the proposal is desirable for the appropriate development or use of the land, building or structure and the reduced MDS would ultimately allow for a single detached dwelling to be constructed on the proposed severed parcel. This would make it compatible with the surrounding land uses, which are primarily residential along this portion of Downs Road.

d) is Minor in Nature.

• the evidence regarding the proposal to permit the reduction of two MDS and that the impact of the reductions in the MDS is considered to be minor as the immediate area consists primarily of rural residential lots developed with single detached dwellings.

47Regard has also been given to the decision of the City and the information it had available when making its decision.

48Finally, the Tribunal has reviewed the MVA and finds it reasonable and appropriate and having proper regard for matters of provincial interest as set out in the Act; is consistent with the PPS and the OP and represents good planning in the public interest.

ORDER

49THE TRIBUNAL ORDERS THAT the appeal is allowed and the provisional

consent is to be given subject to the conditions set out in Attachment 1 to this Order.

50THE TRIBUNAL ORDERS THAT the appeal is allowed and the variance(s) to Zoning By-Law No. 14-86 are authorized.

“George Politis”

GEORGE POLITIS

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

1. That a registered survey for the severed parcel be submitted to the City.

2. That a draft transfer for the severed parcel be submitted to the City.

3. That the tax account for the Subject Property be paid up to date.

4. That a Zoning By-law amendment be in effect for the severed lands pursuant to

the Planning Act.

5. That Minor Variance A5/24M be in effect pursuant to the Planning Act.

6. That the existing field entrance be removed due to inadequate sightlines and a new entrance be created at the north east corner of the lot. An Access/ Entrance Permit application will be required.