Perthmore Enterprises Inc. v. Perth (Town), 2024 CanLII 126134

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 4, 2024

CASE NO(S).: OLT-24-000210

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

Applicant and Appellant: Perthmore Enterprises Inc.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit a 94-unit residential subdivision consisting of single detached dwellings, semi-detached dwellings, and a 3 1/2 storey residential building.

Reference Number: D14-PE-12-20

Property Address: Part Southwest Half and Part Northeast Half Lot 3, Concession 2, Geographic Township of Drummond, being Part 1 on 27R-7125 and Part 1 on 27R-8420 except PL88, 27M-3, 27M-14, 27M-16, 27M-21, 27M-55 and Parts 3, 4 on 27R-7540, Town of Perth, County of Lanark

Municipality/UT: Perth/Lanark

OLT Case No.: OLT-24-000210

OLT Lead Case No.: OLT-24-000210

OLT Case Name: Perthmore Enterprises Inc. v. Perth (Town)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Perthmore Enterprises Inc.

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: To permit a 94-unit residential subdivision consisting of single detached dwellings, semi-detached dwellings, and a 3 1/2 storey residential building.

Reference Number: 09-T-21001

Property Address: Part Southwest Half and Part Northeast Half Lot 3, Concession 2, Geographic Township of Drummond, being Part 1 on 27R-7125 and Part 1 on 27R-8420 except PL88, 27M-3, 27M-14, 27M-16, 27M-21, 27M-55 and Parts 3, 4 on 27R-7540, now in the Town of Perth, County of Lanark

Municipality/UT: Perth/Lanark

OLT Case No.: OLT-24-000211

OLT Lead Case No.: OLT-24-000210

OLT Case Name: Perthmore Enterprises Inc. v. Lanark (County)

Heard: November 7, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

Perthmore Enterprises Inc.

E. Blanchard

Town of Perth

S. Putnam

County of Lanark

G. Meeds

MEMORANDUM OF ORAL DECISION DELIVERED ON NOVEMBER 7, 2024, BY S. DEBOER AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The Tribunal had originally scheduled a three-day hearing to hear the merits of the appeals by Perthmore Enterprises Inc. (‘Appellant”) pertaining to the failure by the Town of Perth (“Town”) and the County of Lanark (“County”) to make a decision within the statutory timelines pertaining to the Zoning By-law Amendment Application (“ZBA”) and the Proposed Draft Plan of Subdivision Application (“Draft Plan”) for the property municipally known as Part Southwest Half and Part Northeast Half Lot 3, Concession 2, Geographic Township of Drummond, being Part 1 on 27R-7125 and Part 1 on 27R-8420 except PL88, 27M-3, 27M-14, 27M-16, 27M-21, 27M-55 and Parts 3, 4 on 27R-7540, Town of Perth, County of Lanark (“Subject Lands”).

2Prior to the commencement of the hearing event, the Tribunal received correspondence that the Parties had reached a settlement on the issues and was requesting that the hearing of the merits be converted to a one-day hearing to consider a settlement proposal.

3In accordance with Rule 12 of the Tribunal’s Rule of Practice and Procedure, the Tribunal convened the proceedings as a hearing on the terms of the settlement.

4When considering appeals filed pursuant to s. 34(11) and s. 51(34) of the Planning Act (“Act”), the Tribunal must have regard to the matters of provincial interest as set in s. 2 of the Act. Section 3(5) of the Act requires decisions of the Tribunal affecting planning matters to be consistent with the new Provincial Planning Statement, 2024 (“PPS 2024”).

5In consideration of the statutory requirements set out above, the Tribunal must be satisfied that the Application represents good planning and is in the public interest.

SITE AND SURROUNDING AREA

6The Appellant is the owner of the Subject Lands listed above. The Subject Lands are approximately 29.7 hectares(“ha”) in size and are located within the boundaries of the Town’s Schedule “A” (Land Use Designations) of the Lanark County Sustainable Communities Official Plan. Within the Subject Lands is the proposed subdivision (“Phase 6”), which has an area of approximately 5.5 ha. Phase 6 is located in the northeast section of the Town. Phase 6 is currently accessed by Perthmore Street and Senators Gate Drive. Phase 6 is adjacent to other phases of previous subdivision development, which are located to the southwest and west of the Subject Lands.

7The Perth Long Swamp – a Provincially Significant Wetland – (“Wetland”) is located to the north and east of Phase 6. Phase 6 is designated as “Residential and Environmental Protection” on Schedule “A”. Phase 6 is zoned as Residential First Density (“R1-h”) and Environmental Protections Area (“EP”) in the Town’s Zoning By-law No. 3358.

8The 100-year floodplain is located to the north and east of Phase 6 but is outside of Phase 6’s boundary. The Rideau Valley Conservation Authority (“RVCA”) Regulatory Limit extends 30 metres (“m”) from the boundary of the Perth Long Swamp and 15 m from the 100-year floodplain limit and applies to a small portion of Phase 6. This portion is planned to be used for stormwater management within Phase 6.

9The Applicant had completed a pre-consultation with the Town, Lanark County (“County”), and RCVA on January 19, 2019. An initial Draft Plan was filed on December 23, 2020, with the County and was deemed complete on March 10, 2021. The initial Draft Plan was comprised of 42 lots for single detached dwellings, 23 lots for semi-detached dwellings for a total of 46 semi-detached units, and four blocks reserved for future high-density residential development.

10The initial ZBA was also filed on December 23, 2020, with the Town and was deemed complete on March 25, 2021. The ZBA was seeking a rezoning of Phase 6 from its “Residential First Density (R1-h) and Environmental Protections Area” to that of “Residential Third Density (R3) and Residential fourth Density (R4)”.

11A public open house for was held on April 19, 2021, by the Town to receive comments from agencies and the public. Comments were received from the following:

a) RVCA comments, received on April 15, 2021;

b) Town of Perth comments, received on June 8, 2021;

c) Lanark County received a status report on June 16, 2021;

d) Various comments received by the public in March and April 2021.

12Included in the original Draft Plan was a previously planned “Arterial Road” which had the intention of connecting County Road 10 in the south with Highway 7 to the north. The Town’s Committee of the Whole voted on August 9, 2022, to remove the Arterial Road from the Town’s Corporate Strategic Plan.

13As a result of this removal and the comments received from the various agencies and the public, the initial Draft Plan was modified. As a result of these modifications, the County requested that a new Draft Plan be submitted. This new Draft Plan was submitted on October 12, 2022, and the new Draft Plan now proposed:

1. A total of 94 dwelling units comprised of:

i. Thirty-four (34) single detached dwellings;

ii. Nineteen (19) semi-detached dwellings, at least four (Lots 50-53) containing basement apartment units; and

iii. One (1) three-and-a-half storey 14-unit apartment building;

2. A block for stormwater management; and,

3. A block for parkland.

14Supporting materials for the new Draft Plan were:

a) A revised Environmental Impact Study;

b) A revised Preliminary Servicing and Stormwater Management Report;

c) A revised Traffic Impact Study; and,

d) A revised Planning Rationale Report.

15These reports and studies were used to develop the agreed-upon Conditions of Draft Plan Approval, the finalization of the Draft Plan, and the ZBA that is now before the Tribunal.

SETTLEMENT PROPOSAL

16The Appellant presented Benjamin Clare to the Tribunal. Mr. Clare was qualified to give expert opinion evidence in the area of land use planning pertaining to the proposal before the Tribunal.

17The Tribunal marked the following items as exhibits to the hearing event:

Exhibit 1 – Affidavit of Benjamin Clare

Exhibit 2 – Exhibits Brief of Benjamin Clare

Exhibit 3 – Draft Order provided by Appellant

Planning Act

18It was the opinion of Mr. Clare that the settlement before the Tribunal is of provincial interest as per s. 2 of the Act as the settlement provides for the protection of ecological systems, provides for efficient use of communication, transportation, sewage, and water systems, provides for an adequate range of housing and is within an appropriate location for growth within the settlement area.

Provincial Planning Statement, 2024 (“PPS 2024”)

19The PPS 2024 came into effect on October 20, 2024, and replaced the Provincial Policy Statement, 2020 (“PPS 2020”). It was the opinion of Mr. Clare that the proposal before the Tribunal had taken into consideration both the old PPS 2020 and the new PPS 2024. Mr. Clare continued to opine that the settlement is consistent with policies 2.1, 2.2, 2.3, 3.1, 3.5, 3.6, 3.9, and 4.1 of the PPS 2024. The settlement proposal is within the settlement area of the Town. The proposal provides for an adequate range of housing, is an appropriate location for growth and development, makes use of existing public services and service connections, is a compatible land use, and plans for the proper use of existing sewer and water services. The proposal provides for public spaces and a park and does not have any impact on the natural heritage systems adjacent to the Subject Lands – this being the aforementioned Wetland.

Town of Perth Official Plan (“OP”)

20Mr. Clare gave the opinion that the proposal conforms to the OP by way of the proposed ZBA. The ZBA is requesting a zoning change from the current R1-h and EP designations to R3 and R4. The R3 designation will permit single- and semi-detached dwellings to be built with a one-metre reduction on the minimum depth of exterior side yards for dwellings built on corner lots. Mr. Clare continued by opining that this exemption is consistent with other previously developed phases of the subdivision surrounding the Subject Lands. The requested designations in the proposal are compatible with the surrounding land uses that were previously approved.

21Mr. Clare opined that the R4 designation would permit the development of the 14-unit residential apartment building located in block 54 of the settlement. The proposed apartment building is located adjacent to lands previously approved in an earlier phase of the subdivision development. The apartment block would represent a density of 73 units per ha, which, in Mr. Clare’s opinion, is comparable to the proposed density of 62 units per net ha in the adjacent lots 50 to 53. The maximum height of 12 m within the R4 zone is compatible with the adjacent lands.

22Concerning the EP designated lands, it was Mr. Clare’s opinion that these lands are small in size and are located in the stormwater management block – which is located in the southeast portion of the Subject Lands – and adjacent to the Wetland further to the east. The Environmental Impact Statement study determined that redesignating the lands from EP to R3 would be appropriate due to these lands being used for stormwater management and that the location is adjacent to the Wetland. The proposed Open Space in the northeast of the settlement is to be used as parkland in the future and meet the requirements of the Zoning By-law.

23It was Mr. Clare’s opinion that the settlement and ZBA had been reviewed by Town Staff, and there were no objections to the proposed rezoning of the Subject Lands. Mr. Clare continued to give an opinion that the proposed ZBA is of provincial interest as per s. 2 of the Act, conforms to both the County’s OP and the Town’s OP, and should be approved as presented before the Tribunal.

Draft Plan of Subdivision

24In Mr. Clare’s opinion, the proposed Draft Plan of Subdivision meets the criteria as set out in s. 51(24) of the Act. The Appellant has met all the planning and submission requirements. The settlement demonstrates that the proposed subdivision is a matter of provincial interest. The settlement demonstrates that the proposal is not premature, and through the enactment of the ZBA, the proposal will conform to the OP of the County and the Town. The settlement demonstrates that the proposal is compatible with the adjacent plans of subdivision, and the dimensions and shapes of the proposed lots conform to the County’s OP and Town’s OP through the implementation of the ZBA.

25Mr. Clare continued to give an opinion that there will not be any impacts on the Wetland, and this is proven through the reports that have been filed as a part of the Draft Plan of Subdivision. The existing municipal services are adequate to provide the level of municipal servicing required for the settlement. Mr. Clare continued to give his opinion that the areas of land dedicated to stormwater management and parkland are adequate and appropriate. The proposed low-rise apartment building on Block 54 will be subject to Site Plan Control as agreed upon by the Parties.

26It was Mr. Clare’s overall opinion that the settlement before the Tribunal concerning the Draft Plan of Subdivision meets the requirements of s. 51(24) of the Act and should be approved as presented by the Tribunal.

ANALYSIS AND FINDINGS

27The Tribunal accepts the uncontroverted testimony and evidence of Mr. Clare.

28The Tribunal finds that the settlement proposal before it will fit harmoniously into the existing area and will provide for a range of housing types. The location of the Subject Lands is an appropriate area for growth and development.

29The Tribunal accepts the submissions of Mr. Clare that the proposal will be served by existing municipal infrastructure and will not have an impact on the adjacent Wetland.

30The Tribunal is satisfied that the proposal, as presented, is consistent with the new PPS 2024, conforms to the County’s OP – pertaining specifically to the Draft Plan of Subdivision – and conforms to the Town’s OP. The Tribunal finds that the proposal conforms to the Town’s general intent and purpose of Zoning By-law No. 3358.

31The Tribunal finds that the proposal should be approved in its presented form, including the Draft Plan Conditions. The proposal is an appropriate form and use of the Subject Lands and represents good land use planning.

ORDER

32THE TRIBUNAL ORDERS THAT the appeal is allowed, and the Town of Perth Zoning By-law No.3358 is hereby amended as set out in Schedule 1 to this Order. The Tribunal authorizes the municipal clerk of the Town of Perth to assign a number to this By-law for record-keeping purposes.

33THE TRIBUNAL ORDERS THAT the appeal is allowed, and the Draft Plan of Subdivision as set out in Schedule 2 to this Order, is hereby approved, subject to the fulfillment of the conditions set out in Schedule 3 to this Order.

34AND THE TRIBUNAL ORDERS THAT pursuant to subsection 51(56.1) of the Planning Act, the County of Lanark shall have the authority to clear the conditions of draft plan approval and to administer final approval of the plan of subdivision for the purposes of subsection 51(58) of the Planning Act.

35In the event that there are any difficulties implementing any of the conditions of Draft Plan approval, or if any changes are required to be made to the Draft Plan, the Tribunal may be spoken to.

“S.deBoer”

s. DEboer

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.