Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 5, 2024

CASE NO(S).: OLT-24-000966

PROCEEDING COMMENCED UNDER subsection 51(48) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 1314566 Ontario Inc.

Subject: Appeal of conditions of draft plan of subdivision

Description: To appeal the conditions of the Draft Plan approval to construct 16 residential lots.

Reference Number: 350308-0052

Property Address: 0-12054 Centralia Avenue North

Municipality: Fort Erie

OLT Case No.: OLT-24-000966

OLT Lead Case No.: OLT-24-000966

OLT Case Name: 1314566 Ontario Inc. v. Fort Erie (Town)

Heard: November 21, 2024 by Video Hearing

APPEARANCES:

Parties 1314566 Ontario Inc. (Appellant/Applicant)

Counsel/Representative* Andrew Ferri

Parties Town of Fort Erie (Town)

Counsel/Representative* Karen Shedden Darien Ekblad (Student at law)

DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened a Hearing regarding an Appeal submitted by 1314566 Ontario lnc (“Appellant/Applicant”) to the conditions set out in the Draft Plan Approval to construct 16 residential lots in the Town of Fort Erie (“Town”) pursuant to s. 51(48) of the Planning Act (“Act”).

2The Applicant owns the property at 0-12054 Centralia Avenue North (“Site”) known as the Hershey Estates subdivision.

3The Tribunal notes that the Applicant/Appellant was represented by Mr. Andrew Ferri who indicated that he anticipated being a witness as well. The Tribunal took the time to ensure that Mr. Ferri fully understood that it is not permissible, for a Representative to be both advocate and witness before the Tribunal. The Tribunal stood down to provide Mr. Ferri time to consult with the Appellant and his Planner who had been retained. Mr. Ferri chose to continue as the Appellant’s Representative, and the Planner chose not to appear before the Tribunal.

BACKGROUND

4The Hershey Estates subdivision originally received Draft Plan Approval from the Town’s council (“Council”) on March 24, 2000, which included 22 estate residential lots on private services. The Draft Plan Approval (“DPA”) was extended and subsequently modified in 2003, which reduces the number of rural residential lots to 17.

5In 2018, after numerous extensions, the draft plan of subdivision was further modified due to a portion of the development area being designated as Provincially Significant Wetlands, which reduced the number of lots from 17 to 16. Additionally, the Conditions of DPA were revised to include a condition requiring the Applicant to complete an Environmental Impact Study (“EIS”), and to submit a Zoning By-law Amendment to rezone all portions of the 30-metre buffer to the Six Mile Creek Wetland Complex, and the 100 Year Flood Plain to an Environmental Protection category, to the satisfaction of the Niagara Peninsula Conservation Authority (“NPCA”).

6The balance of the subdivision was also required to be rezoned to bring it into compliance with applicable zoning regulations for lot geometry, as the draft approved lots did not meet the minimum lot frontage requirement of 60 metres.

7In February 2021, the Applicant requested a one-year extension due to the impacts of COVID-19, and the ongoing completion of an EIS, and to potentially address any matters resulting from the EIS.

8In March 2022, the Applicant requested two-year extension to prepare a modified draft plan of subdivision based on the results of the EIS. The modifications were required to bring the subdivision into conformity with current Provincial environmental policies. The two-year extension would bring the lapsing dates to February 21, 2024.

9The Applicant requested another extension of DPA on February 9, 2024, to ensure the completion of the Zoning By-law Amendment that was required to satisfy the DPA. The Applicant was granted a 3-month extension until May 21, 2024, by Staff, followed by another 3-month extension until August 21, 2024, to process the clearance of the condition to rezone the subject lands.

10Council approved the Zoning By-law Amendment for Hershey Estates on June 24, 2024, rezoning the subject lands to a site-specific Rural Residential (RR) Zone with a reduced long frontage from 60 meters to 28 meters and delineate the boundaries of the Environmental Protection (EP) Zone. Included in the provision was that the zoning of the lands would revert to the original zoning if a building permit has not been issued, and construction has not commenced within one year from enactment of the By-law.

11On August 12, 2024, the Town granted an extension for the DPA for Hersey Estates Subdivision from August 12, 2024, to April 30, 2025, to process the clearing of conditions DPA. The lapsing date effected was designated as April 30, 2025, and included the following additional conditions of final approval:

34. That a Restoration Plan be prepared to the satisfaction of the Town of Fort Erie and the Niagara Region (“Region”). The plan should include, at a minimum, the following elements:

a) Native plantings will be installed within all NES feature buffers, incorporating a diversity of natural self-sustaining trees, shrubs, and groundcover.

b) Restoration planting areas will be treated as ‘natural, self-sustaining vegetation’ (no mow), with existing native vegetation to be retained.

c) Removal of invasive species within NES feature and buffer lands, to the extent feasible

d) Removal of litter and debris within the restored areas.

35. That the developer provide securities to the Town of Fort Erie in the form of a Letter of Credit in the amount of the estimated cost as approved by the Town and Region for the restorative plantings required in accordance with the above condition and that the subdivision agreement include provisions whereby the developer agrees that the Town may draw on the Letter of Credit, if required, to ensure installation of the plantings.

36. That the Subdivision Agreement between the owner and the Town contain wording wherein the Owner agrees to implement the approved Restoration Plan.

ISSUES

12The current case comes before the Tribunal as the Parties cannot agree on the Region’s requested Conditions (known as Condition 34, 35 and 36) as outlined above.

Planning Evidence

13The Tribunal heard the uncontroverted testimony of Mr. Adam Boudens, Senior Environmental Planner with the Region of Niagara who appeared under summons and was duly qualified before the Tribunal.

Appellant’s Position

14Mr. Ferri stated that when the property was purchased, the Town set conditions associated with the development of the Subject Lands, which were to be satisfied before the property was to be developed. One such condition was the submission of an EIS. The Applicant applied for an extension of time for draft plan approval to complete the required study.

15The Tribunal heard that when the EIS was completed, the Town waived review of the EIS leaving it to the NPCA and the Region to approve the submission.

16Mr. Ferri stated that the Applicant requested a further extension of time in August 2024 to clear the remaining conditions. It was at that time the Region recommended the DPA be modified to include a Restoration Plan and associated securities for the buffer lands. The inclusion of the Region’s recommended conditions (Conditions 34, 35 & 36) along with the request for the extension of time was adopted by Council on August 12, 2024.

17Mr. Ferri questioned why this burden was being put upon the Appellant by the Town, at this juncture and questioned why the Town was involved on a request by the Region. He stated that this condition, if it were to be imposed, would take time to implement. Mr. Ferri stated that the buffer area has never been disturbed and has remained farmed throughout the development process. Given that the Region and the NPCA had cleared the EIS, Mr. Ferri stated, it would be unreasonable and unfair to impose this type of condition at this late date. Moreover, in the previous request for an extension the requirement of a restoration plan was never demanded.

Town’s Position

18The Town took the Tribunal through the history of the Application, highlighting that this matter has been active through many planning policy changes since the year 2000.

19Mr. Boudens informed the Tribunal that the Regional Official Plan (“ROP”) had been updated in 2022 to reflect, inter alia, the objectives of the Region pertaining to natural heritage systems and water resource systems to ensure compliance with Provincial policies and the Act.

20On the question of whether or not the Town has authority to request Conditions 34, 35 and 36, Mr. Boudens turned to Section 51 (“s. 51”) of the Act which states:

Conditions

(25) The approval authority may impose such conditions to the approval of a plan of subdivision as in the opinion of the approval authority are reasonable, having regard to the nature of the development proposed for the subdivision, including a requirement,

Decision

(31) The approval authority may give or refuse to give approval to a draft plan of subdivision. 1994, c. 23, s. 30.

Lapse of approval

(32) Subject to the regulations, in giving approval to a draft plan of subdivision, the approval authority shall provide that the approval lapses at the expiration of the time period specified by the approval authority, in accordance with subsection (32.1), and the approval shall lapse at the expiration of the time period, but, if there is an appeal under subsection (39), the time period specified for the lapsing of approval does not begin until the date the Tribunal’s decision is issued in respect of the appeal or from the date of a notice issued by the Tribunal under subsection (51). 2024, c. 16, Sched. 12, s. 10 (3).

Withdrawal of approval

(44) The approval authority may, in its discretion, withdraw the approval of a draft plan of subdivision or change the conditions of such approval at any time before the approval of the final plan of subdivision under subsection (58). 1994, c. 23, s. 30.

21Mr. Boudens opined that the requested Restoration Plan was also prescribed within the ROP in the following section:

3.1.30.3.4 If a draft plan approval is proposed to be extended, the Region may review the findings and recommendations made in the studies that supported the initial draft plan approval and may request that the studies be updated to determine if changes to the layout of the draft plan and/or any of the conditions need to be made before the extension request is granted.

22Mr. Boudens opined that the Restoration Plan has been recommended to protect and mitigate the impact of development next to the 30-metre buffer to the Six Mile Creek Wetland Complex and the 100 Year Flood Plain. As the current area is being farmed, the Restoration Plan would ensure a 30-metre buffer would be secured and furnished with native, self-sustaining plantings and the removal of invasive species.

23Mr. Boudens further indicated that the modification to the conditions is necessary to ensure there will be no negative impacts on ecological functions. It was his testimony that the Conditions are fair, as they will require no changes to the Plan of Subdivision other than the reassurance through Rehabilitation Plan that the buffer lands will be maintained, naturalized, and protected. Mr. Boudens clarified that as with all applications involving Significant Wetlands, the Region requests Rehabilitation Plans and securities to protect the 30-metre buffer to Natural Heritage Features as part of the Regions process.

ANALYSIS AND FINDINGS

24Onus is on the Appellant to provide planning justification for the reason why Conditions 34, 35 & 36 should not be included in the Conditions of DPA. In this matter, the Tribunal had a Representative of the Appellant, not a Planner, not an expert, and no one to provide any substantive planning rationale other than to say it was an unfair request.

25In the absence of any planning evidence to the contrary, the Tribunal finds and accepts the evidence and expert opinion of Mr. Boudens.

26This Plan of Subdivision has been in existence for more than a decade having been granted extensions of time that were agreeable to both the Town, and the Applicant in order to satisfy the Conditions of Approval.

27As the Town rightfully emphasized, the approval authority oversees and must be satisfied that all concerns of the Region are mitigated and that the interests of the province are upheld when dealing with DPA.

28The Region plays an active role ensuring policies, which speak to the requirements necessary for all DPAs, are examined to ensure they are designed to reduce impacts on natural environment systems.

29The Tribunal finds that the inclusion of the recommended Condition 34, 35, and 36, to the DPAs conditions is necessary and reasonable to ensure that the 30-metre buffer to the Six Mile Creek Wetland Complex and the 100 Year Flood Plain be maintained in a natural state. To do anything less, may compromise the integrity of the wetland and flood plain system adjacent to the development.

30With respect to relevancy, the Tribunal finds the requested Conditions by the Region are directly tied to a Plan of Subdivision that abuts a Natural Heritage System.

31The Tribunal is satisfied that the requested mitigation and rehabilitation measures are reasonable, as they will not compromise the layout of the Plan of Subdivision already before the Town.

32With regard to the timing of the request, the Tribunal was advised by the Town that the Applicant would be given two years to implement the Rehabilitation Plan.

ORDER

33THE TRIBUNAL ORDERS that the Appeal is dismissed and the following Conditions 34, 35, and 36 are added to the conditions imposed on the approval of the draft plan.

34. That a Restoration Plan be prepared to the satisfaction of the Town of Fort Erie and the Niagara Region. The plan should include, at a minimum, the following elements:

a) Native plantings will be installed within all NES feature buffers, incorporating a diversity of natural self-sustaining trees, shrubs, and groundcover.

b) Restoration planting areas will be treated as ‘natural, self-sustaining vegetation’ (no mow), with existing native vegetation to be retained.

c) Removal of invasive species within NES feature and buffer lands, to the extent feasible

d) Removal of litter and debris within the restored areas.

35. That the developer provide securities to the Town of Fort Erie in the form of a Letter of Credit in the amount of the estimated cost as approved by the Town and Region for the restorative plantings required in accordance with the above condition and that the subdivision agreement include provisions whereby the developer agrees that the Town may draw on the Letter of Credit, if required, to ensure installation of the plantings.

36. That the Subdivision Agreement between the owner, and the Town contain wording wherein the Owner agrees to implement the approved Restoration Plan.

“D. Chipman”

D. CHIPMAN 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.