Lai Chun Lee Chu v. Whitchurch-Stouffville (Town), 2024 CanLII 16961

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 01, 2024

CASE NO(S).: OLT-22-004513

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

Applicant/Appellant: Lai Chun Lee Chu

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

Description: Proposes to develop the Property as a unique private camp that introduces principal agricultural functions as a fundamental component of the operation

Reference Number: ZBA22.011

Property Address: 17321 Woodbine Avenue

Municipality/UT: Whitchurch-Stouffville/York

OLT Case No: OLT-22-004513

OLT Lead Case No: OLT-22-004513

OLT Case Name: Chu v. Whitchurch-Stouffville (Town)

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Lai Chun Lee Chu

Subject: Site Plan

Description: Proposes to develop the Property as a unique private camp that introduces principal agricultural functions as a fundamental component of the operation

Reference Number: SPA20.028

Property Address: 17321 Woodbine Avenue

Municipality/UT: Whitchurch-Stouffville/York

OLT Case No: OLT-22-004514

OLT Lead Case No: OLT-22-004513

Heard: January 30, 2024 By Written Hearing

APPEARANCES:

Parties

Counsel

Lia Chun Lee Chu

Jonathan Cheng

Calvin Lantz

Town of Whitchurch-Stouffville

Christina Kapelos

Regional Municipality of York

Samantha Whalen

DECISION DELIVERED BY S. DEBOER AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1The Tribunal had originally scheduled a nine-day hearing to hear the merits of the appeals by Lai Chun Lee Chu (“Appellant”) concerning the Town of Whitchurch-Stouffville’s (“Town”) failure to make a decision on the Zoning By-law Amendment Application (“ZBA”) and the subsequent Site Plan Application (“SPA”) for the property municipally known as 17321 Woodbine Avenue (“Subject Property”) or (“SP”).

2Prior to the commencement of the hearing, the Tribunal received correspondence from the Town in advance of the merit hearing advising that the Parties have reached a settlement on the issues concerning the ZBA. The Parties are requesting that the Tribunal adjourn the SPA sine die and requesting that the merits hearing be converted to a settlement hearing on the ZBA only.

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

4When considering an appeal filed pursuant to s. 34(11) 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 Provincial Policy Statement, 2020 (“PPS”) and, in this case, conform to the Growth Plan for the Greater Golden Horseshoe 2020 (“Growth Plan” or (“GGH”)). In this particular matter, the Tribunal must take under consideration conformity to the Greenbelt Plan (2017), the Region of York’s Official Plan (“ROP”), the Town’s Official Plan (“OP”) and the general intent and purpose of the Zoning By-law (“ZBL”).

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

THE SITE AND SURROUNDING AREA

6The Subject Property is located on the east side of Woodbine Avenue and south of Davis Drive. The Subject Property is generally rectangular in shape, has an approximate area of 7.8 Hectares and has a frontage on Woodbine Avenue of approximately 200 metres.

7The Subject Property has two access points on Woodbine Avenue. The driveway at the north end of the property provides access to a large gravel parking lot while the second access point at the south end of the property is part of a mutual or shared driveway extending past the boundaries of the Subject Property and services the two residential dwellings located to the immediate east and south of the SP.

8The Subject Property is located in the Rural/Agricultural /Environmental Area of the Town’s OP. Schedule “B” of the Town’s OP designates the Subject Property as a Commercial Recreation Area.

9The SP is currently vacant, however, a one-storey office building currently exists and is set back 25 metres from Woodbine Avenue. A one-storey shed exists on the eastern portion of the SP.

10The previous commercial operations were that of a golf driving range and mini-putt course. Batting cages were also in operation on the SP. These uses were in operation until 2015.

11Located to the north of the SP is a vegetated vacant parcel with a watercourse running through it. Immediately to the south are several rural and estate residences. Immediately to the east is a rural residence that uses the existing shared driveway.

APPLICATION HISTORY

12The original ZBA and SPA applications were received by the Town on June 10, 2022. The applications proposed a two-storey, 4,998 square metres building for recreational uses that included fitness, meditation, and room for short-term accommodation with an approximate gross floor area of 5,100 square metres. Also included as apart of the proposal was an agricultural area for growing crops, permaculture plantings and an apiary. A stormwater management pond and parking for 168 vehicles were also included in the original proposal.

13The applications were deemed complete on July 11, 2022, and the Appellant filed an appeal to the OLT on September 20, 2022, for a non-decision on the applications within the statutory timelines.

14Between October 2022, and November 2023, the Applicant provided revisions to the proposal based on comments raised by the Town and the Regional Municipality of York (“Region”).

15Based on the revisions, the Appellant submitted without prejudice a settlement offer to the Town on December 1, 2023, which included a revised draft ZBA and a revised SPA with floor plan drawings. Based on the revisions, the Town adopted resolutions in support of the settlement proposed by the Appellant.

SETTLEMENT PROPOSAL BEFORE THE TRIBUNAL

16The Settlement Proposal (“Settlement”) considers the following changes and scale to the original proposal. The maximum gross floor area has been reduced by approximately 20 percent or 975 square metres for a new gross floor area of approximately 4,045 square metres. Approximately 3,500 square metres of the gross floor area will be located above grade whereas approximately 625 square metres will be below grade. The Settlement reduces the number of meditation rooms from 42 to 30. The Settlement introduces a new permitted use of a “Retreat Centre” along with a reduction of the total parking spaces to 165 spaces including six accessible parking spaces and the use of eco-paving materials throughout the parking area. The parking area itself has been revised to move parking areas away from the southern property line. As for the access driveways, the driveway to the north will be used primarily for anyone accessing the facility and the southern driveway will be used for emergency or delivery services only.

17The Settlement reorients the building to face west instead of the previously proposed southerly facing building and moves it closer to Woodbine Avenue. Two dwelling units are permitted as a part of the building envelope with a maximum size of 48 square metres each.

PLANNING EVIDENCE

18Emma West provided the planning evidence in the form of her written Affidavit in support of the Settlement. It is noted that Ms. West was retained by the Appellant to provide planning services concerning the applications. Ms. West has provided her opinion on the Settlement on behalf of the Appellant, the Town and the Region. Based on Ms. West’s knowledge and expertise in the area of land use planning, the Tribunal accepts Ms. West’s affidavit and qualifies her to give expert opinion evidence in the area of land use planning pertaining to the Settlement.

19The Tribunal marked the following items as exhibits for the Settlement Hearing:

Exhibit 1 Affidavit of Emma West

Exhibit 2 Revised Town of Whitchurch-Stouffville ZBA

Exhibit 3 Revised Town of Whitchurch-Stouffville SPA

[Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

20Section 2 of the Act sets out matters of provincial interest. It was Ms. West’s opinion that the Settlement does have appropriate regard for matters of provincial interest including but not limited to the orderly development of safe and healthy communicates; the location of growth and development; the promotion of built form that is well-designed and encourages a sense of place with high-quality design with sustainable design measures such as eco-paving; protects ecological systems; and supports the adequate provision and distribution of educational, social, cultural and recreational facilities.

Provincial Policy Statement (2020)

21Concerning the PPS, Ms. West opined that the Settlement is consistent with the PPS by meeting the following policies:

22Policy 1.1.1(b) and (h) considering the sustainability of healthy, liveable and safe communities;

23Policy 1.1.4 concerning healthy, integrated and viable rural areas,

24Policy 1.5.1 concerning active communities and publicly accessible built and natural settings for recreation;

25Policy 1.7.1 concerning long-term economic prosperity;

26Policy 2.1.1 which states natural features and areas shall be protected for the long term;

27Policy 2.1.2 concerning diversity and connectivity of natural features and biodiversity of natural heritage systems;

28Policy 2.3.6.1 concerning limited non-agricultural issues in Prime Agricultural Areas.

29Ms. West’s opinion was that the Settlement will create a new retreat centre that is consistent with the applicable designation on the Town’s OP and this use will promote sustainable recreation and tourism in the area. While the SP is considered to be a Prime Agricultural Area, there has not been any agricultural use since 1980. As such, no prime agricultural areas are being taken out of production. The soils are currently having no capacity for agriculture as seen in the findings of the Agricultural Impact Assessment report. Ms. West’s opinion is that the above determinations demonstrate that the Settlement is consistent with the PPS.

Growth Plan for the Greater Golden Horseshoe

30Ms. West gave an opinion that the Settlement before the Tribunal conforms to the GGH, specifically s. 1.2.1 which specifically supports the achievement of complete communities and protects and enhances the natural heritage, hydrologic, and landform systems, features and functions of the SP.

31Ms. West’s opinion was that the Settlement conforms to Policies 2.2.1.4, 4.2.2.3, and 4.2.6.3 of the GGH as the Settlement supports the achievement of complete communities by providing a space for educational, recreational, cultural and spiritual practices and at the same time protects a natural heritage system and supports permaculture practices in a rural setting.

Greenbelt Plan (2017)

32The SP is located within the Greenbelt Area per Schedule 1 of the Greenbelt Plan and is located within the Protected Countryside of the Greenbelt Plan. Since the SP is within the Protected Countryside, Section 1.2.2 of the Greenbelt Plan pertains to this Settlement. Section 1.2.2 states that the Greenbelt Plan is to enhance urban and rural areas and overall quality of life by improving items such as environmental protection, culture, recreation and tourism, increasing a range of recreational opportunities, support a strong rural economy and support the achievement of total communities.

33Section 5.2.1 of the Greenbelt Plan states that where an official plan was amended prior to December 16, 2004, to designate a land use, the approved land use may continue to be recognized through the Greenbelt Plan Conformity exercise. It was Ms. West’s opinion that the Settlement does conform to both of these policies and as such, conforms to the Greenbelt Plan as the Settlement provides for environmental protection, and provides for an increased range of tourism and recreational opportunities. Ms. West’s opinion was that the Settlement’s OP designation has not changed, in fact, the Settlement’s site-specific and zoning by-law permissions demonstrate further conformity with the Greenbelt Plan.

Region of York Official Plan

34It was Ms. West’s opinion that the Settlement conforms to both the 2010 ROP and the 2022 ROP. Concerning the 2010 ROP, the Settlement conforms to Policies 2.1.9, 2.1.10, 2.1.20, 8.4.23, 8.4.2.4 and 8.4.25. These Policies focus on protecting Regional Greenlands, protecting lands in the Greenbelt Plan from incompatible uses, and the transition policies regarding the Greenbelt Plan. Section 6 of the ROP concerning Agricultural and Rural areas has also been taken into consideration and the Settlement conforms to this section of the ROP.

35The Applications were filed before the approval of the 2022 ROP, however, after analyzing the 2022 ROP, it was Ms. West’s opinion that the Settlement has appropriate regard for the 2022 ROP, including but limited to Policies 3.1.6, 3.2.3, 5.1.9, 7.4.12, 7.4.15 and 7.4.16. It was Ms. West’s opinion that the Settlement ensures the protection of the natural heritage features within the SP. The Settlement will develop the SP in a manner that will be compatible with the surrounding area. The Settlement conforms to the above-mentioned policies that protect the Regional Greenlands System, the Greenbelt Protected Countryside and conforms to the existing land uses for the SP.

Town of Whitchurch-Stouffville Official Plan (2004)

36The SP is located in a rural/Agricultural/Environmental Area of the OP and is designated as a Commercial Recreation Area of Schedule “B” of the OP.

37It was Ms. West’s opinion that the Settlement conforms to Policies 4.11.1, 4.11.2 and 4.11.3 of the OP. These policies recognize the Commercial Recreation Area designation which was a permitted use prior to the original application being made. This use is not changed in the Settlement that is before the Tribunal. The proposed use as a Retreat Centre conforms with this land use and is an appropriate use of the lands and therefore conforms to the policies of the OP.

Town of Whitchurch-Stouffville Zoning By-law No. 2010-001-ZO

38The SP has different zoning provisions. On the western half of the property, the designation is Commercial Recreation (“CR(2)”). The eastern portion of the SP is zoned Environmental (“ENV”). The CR(2) zoning permits a maximum of 4,045 square metres of gross floor area and a maximum height of 13.7 metres and a minimum parking allotment of 165 parking spaces. The CR(2) zoning also allows for the site-specific designation of “Retreat Centre” which, in Ms. West’s opinion, specifically captures the cultural, spiritual, and recreational uses that are proposed for the SP.

39It was Ms. West’s opinion that the Settlement before the Tribunal includes a revised ZBA that allows for the site-specific exception of a “Retreat Centre” and properly defines the maximum gross floor area, height, setbacks and parking requirements needed to meet the CR(2) designation.

Overall Opinion

40It was Ms. West’s overall opinion that the Settlement before the Tribunal has proper regard for matters of provincial interest as per s. 2 of the Act. It was Ms. West’s opinion that the Settlement is consistent with the PPS, conforms to the Growth Plan, the Greenbelt Plan, the ROP, and the OP.

41It was Ms. West’s opinion that the Settlement before the Tribunal allows for the proper development of a retreat centre on the SP that will conform to the land use designations and represents good land use planning.

ANALYSIS AND FINDINGS

42The Tribunal has reviewed the materials of the Settlement and the land planning instruments presented. Based on the uncontroverted evidence in support of the Settlement provided by Ms. West, the Tribunal agrees with Ms. West’s professional opinions concerning the Settlement.

43The Tribunal finds that the Settlement before the Tribunal has sufficient regard for matters of Provincial interest as per s. 2 of the Planning Act.

44The Tribunal finds that the Settlement as presented is consistent with the PPS. The Settlement conforms to the Growth Plan, conforms with the Greenbelt Plan and conforms with both the Region’s Official Plan and the Town’s Official Plan.

45The Tribunal finds that the Settlement meets the general intent and purpose of Zoning By-law 2010-001-ZO and makes proper use of the zoning of the Subject Property.

46The Tribunal finds that the Settlement’s draft ZBA is appropriate and represent good land use planning and should be approved on an interim basis.

47The Tribunal agrees that the SPA should be adjourned sine die as requested by the Parties.

ORDER

48THE TRIBUNAL ORDERS that the appeal of the Town of Whitchurch-Stouffville Zoning By-law No. 2010-001-ZO is allowed, in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters listed in paragraph (49) below, and the Zoning By-law Amendment set out in Attachment 1 to this Interim Order, is hereby approved in principle.

49The Tribunal will withhold the issuance of its Final Order contingent upon confirmation in writing from the Town of Whitchurch-Stouffville Solicitor, of the following pre-requisite matters:

a. The Tribunal has received for approval, the Zoning By-law Amendment submitted in a final form, confirmed to be satisfactory to the Applicant and the Town and;

b. The Tribunal is advised in writing that the Applicant has withdrawn its appeal of the Site Plan Application.

50THE TRIBUNAL ORDERS that the Site Plan Application is to be adjourned sine die.

51If the Parties do not submit the final draft of the Zoning By-law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph (49) above have been satisfied, and do not request the issuance of the Final Order, by Friday, June 28, 2024, the Applicant and the Town shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the draft Zoning By-law Amendment and issuance of the Final Order by the Tribunal. In the event the Tribunal fails to receive the required status report, and/or in the event the contingent pre-requisites are not satisfied by the date indicated above, or by such other deadline as the Tribunal may impose, the Tribunal may then dismiss the Appeal.

52The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines and deadline for the submission of the final form of the instrument(s), the satisfaction of the contingent pre-requisites and the issuance of the Final Order.

53The Tribunal Member will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-law Amendment and the issuance of the Final Order.

“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.

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