South Sharon Developments Inc. v. East Gwillimbury (Town), 2024 CanLII 16987

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 01, 2024

CASE NO(S).: OLT-23-001158

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

Applicant/Appellant: South Sharon Developments Inc.

Subject: Application for Minor Variance – Appeal

Description: To permit a driving range and sale of Christmas trees on the subject property

Reference Number: A.16.23

Property Address: 1080 Green Lane East, East Gwillimbury

Municipality/UT: Town of East Gwillimbury

OLT Case No.: OLT-23-001158

OLT Lead Case No: OLT-23-001158

OLT Case Name: South Sharon Developments Inc. v. East Gwillimbury (Town)

Heard: February 9, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel/Representative*

South Sharon Developments Inc.

Jude Tersigni*

Town of East Gwillimbury

No one appeared

MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON FEBRUARY 9, 2024 AND ORDER OF THE TRIBUNAL

Link to the Order

1South Sharon Developments Inc. (“Applicant”), of 1080 Green Lane East (“subject property”), in the Town of East Gwillimbury (“Town”) applied for relief from the provisions of Zoning By-law No. 2018-043 (“ZBL”) in order to permit the continued use of the existing driving range and seasonal sale of Christmas trees on the subject property.

2The minor variance sought is in respect of relief from the ZBL:

1. The provisions of Table 11A of the ZBL, as amended, to permit a golf driving range and seasonal Christmas tree sales on the subject property. (for a period of ten years (as amended at the Hearing)).

3The Town’s Planning Staff recommended approval but the Committee of Adjustment (“COA”) denied the former variance application on October 25, 2023 (“refusal”).

4The Tribunal has been asked to consider an application, amended during the Hearing, by adding words “for a period of ten years” as amended from the original application. The Tribunal has determined as provided for in s. 45(18.1.1) of the Planning Act (“Act”) that no further notice is required. The amendments proposed are minor, do not change the substance of the variance requested, but merely clarify the wordings of the variance by adding words for clarity of a term period.

SITE CONTEXT

5The subject property is located in the Town, on the north side of Green Lane East, east of 2^nd Concession and is the southern portion of a larger parcel of land with an approximate area of 10.7 hectares (“ha”) (26.4 acres (“ac”)).

6The subject property currently contains an existing driving range with artificial turf mats and grass tee boxes, as well as a putting/chipping green and a small cashier hut. Parking for the site is provided by an adjacent gravel parking lot.

7The subject property has an approximate area of 5.04 ha (12.47 ac) and has a frontage of approximately 180 metres (“m”) (590 feet (“ft”)) on Green Lane East. There is no sidewalk along this portion of Green Lane East.

8The subject property is located within a largely rural area, consisting predominantly of vacant agriculture lands to the north, west and south. A single detached dwelling is located to the east of the property, the Nokiidaa trail is located to the west, and East Gwillimbury GO Station is located to the southwest.

Background Information

9In 2002, applications for Site Plan and Temporary Use Zoning By-law Amendment (“temporary use by-law”) were approved by the Town Council to facilitate the construction and use of a driving range on the subject property, which included the driving range, parking lot, and pro shop.

10Further extensions of the temporary use by-law were approved by Council in 2005, 2008 and 2012.

11Temporary Use By-law No. 2018-101, as amended, permitted the driving range and seasonal sale of Christmas trees, and it expired in 2021.

12Discussions were held with the Town Planning Department regarding the continued use of the site as a driving range and seasonal tree sales, which resulted in the Minor Variance application relief from the ZBL to permit the continued use.

13The intention of the owner is to develop the land for medium density uses in the future. However, due to a lack of servicing capacity, redevelopment cannot occur (until such time as servicing is made available).

HEARING

14The Town gave notice to the Tribunal that it will not file any witness statement and no representative will appear at the hearing.

15Nick Pileggi, a land use planner, purported to act on behalf of the Applicant. However, he confirmed that he was not licensed to practise law. The Tribunal was informed that Mr. Pileggi will also be the Applicant’s expert witness. As such, the Tribunal directed that the Applicant’s Vice-President of their Planning Department, Jude Tersigni, who attended the Hearing, will be the Applicant’s authorized representative, which then enabled Mr. Pileggi to be an expert witness.

16Mr. Pileggi was qualified to give expert opinion evidence on land use planning matters. His witness statement was marked as Exhibit 1.

17The Town did not have a representative on hand to assert its position, which led the Tribunal to presume that it did not have a position in regard to the minor variance appeal.

18Thus, Mr. Pileggi’s opinion evidence in support of the variance application was uncontested.

THE APPLICANT’S POSITION

19Mr. Pileggi took the Tribunal through s. 2 of the Act; the Provincial Policy Statement 2020 (“PPS”); the Regional Municipality of York Official Plan (2022) (“ROP”); the Town Official Plan (“Town OP”); the ZBL, as amended, and the statutory tests with respect to minor variances. He concluded that the proposal represents good land use planning and is in the public interest.

ANALYSIS AND DECISION

20The Tribunal is persuaded by the land use opinion evidence of Mr. Pileggi. The Tribunal accepts the uncontroverted evidence of the Applicant’s expert witness. In coming to its conclusions, the Tribunal has evaluated the variance as requested.

21The issue for the Tribunal is whether the proposed development will be consistent with the PPS, has regard to provincial interests, and whether the variance requested meets the statutory tests set out in s. 45(1) of the Act.

22The Tribunal is satisfied that the proposed variance at the subject property has regard for the matters of provincial interest as set out in s. 2 of the Act, in particular s. 2(h) the orderly development of safe and healthy communities; and s. 2(i) the adequate provision and distribution of …social, cultural and recreational facilities.

23An Applicant must satisfy the Tribunal that the four tests in s. 45(1) of the Act are met, that: the variance maintains the general intent and purpose of the OP and the ZBL, is desirable for the appropriate development or use of the land building or structure and is minor in nature.

PROVINCIAL POLICY STATEMENT 2020 (“PPS”)

24Mr. Pileggi reviewed the applicable policies in the PPS, in particular, Policies 1.1.1, 1.1.2, 1.1.3.1, 1.1.3.2, 1.1.3.4, 1.2.1, 1.3.1, 1.5.1, and 1.7.1 along with the definitions of development, recreation, and settlement areas.

25The proposed development, within a settlement area, is appropriate for this location, especially as an interim use. There is no demonstrable impact, as the operation has existed on the subject property for many years.

26The Tribunal agrees that the proposed use provides recreation and employment opportunities to a predominantly residential community and finds that the proposal is consistent with the PPS.

REGIONAL MUNICIPALITY OF YORK OFFICIAL PLAN 2022, (“ROP 2022”)

27Mr. Pileggi reviewed the applicable policies of the ROP 2010 and 2022 (“ROP”), in particular, Policies 2.1, 2.3, 3.1.7, 4.1 and 4.2 along with the definitions of built-up area, community area, complete community, development, and passive recreational uses per the ROP. The policies related to this site are similar in both versions of the Town OP and the ROP 2022 outlines the most up to date policies likely to come into effect.

28The subject property is located within the “Community Area” as outlined on Map 1A, Land Use Designations of the ROP. The lands are within a New Community Area and the designation allows for a range of uses including residential, commercial, industrial, institutional, etc.

29Policy 4.2.24 ROP 2022 states that “That within New Community Areas, until such time as development occurs, normal farm practices and a full range of agricultural uses, agriculture-related uses and on-farm diversified uses shall be permitted and encouraged, where appropriate.”

30A similar policy exists in ROP 2010 (Part of Policy 6.3.10) which states, “within new community areas, until such time as development occurs, normal farm practices and a full range of agricultural uses, agriculture-related uses and secondary agricultural uses shall be permitted and encouraged.”

31While a driving range and Christmas tree sales is not specifically an agricultural related use or an on-farm diversified use, the commercial nature of those uses is very similar to the proposal. In addition, this policy specifically references the interim nature of such uses in New Community Areas, which is similar to the temporary or interim use proposed. The Tribunal finds that the proposed development conforms to the ROP.

TOWN OFFICIAL PLAN (“Town OP”)

32Mr. Pileggi reviewed the applicable policies of the Town OP 2010, October 2018 Office Consolidation, in particular, Policies 3.2.3, 4.1, 4.4.3, 4.8, and 4.15.5.

33The subject property is located within an area designated “Local Corridor” by the Town OP, as shown on Schedule ‘A’ Town Structure and it is also within the Green Lane Secondary Plan (“GLSP”), which came into effect through Official Plan Amendment No. 4-2018 through Council adoption on April 17, 2018, and approval by Regional Municipality of York (“York Region”) on September 20, 2018.

34The GLSP further designates the subject property as “Medium Density Residential 1”, “Medium Density Residential 2”, “Environmental Protection”, and “Open Space – Special Study Area”.

35The portion of the subject property that contains the driving range, check-in area, gravel parking lot, and the area for the seasonal sale of Christmas trees is designated “Medium Density Residential 1” and “Medium Density Residential 2”, as shown on Schedule “B-5” of the GLSP.

36The intention for the “Local Corridor” designation of the Town OP is to develop the Green Lane corridor into a hub of commerce, business, and entertainment activities on a smaller scale than “Regional Corridors”, with the intention of them growing into “Regional Corridors” in the near future.

37Although the proposed use of the site is not residential, s. 4.15.5 of the Town OP speaks to Temporary Uses and states that:

Temporary Uses

Temporary uses may take place in all land use designations in accordance with the following criteria:

i. The proposed use of a temporary nature and does not involve major construction or investment on the part of the owner, so that the owner will not experience undue hardship in reverting to the original use upon termination of the temporary use provisions;

ii. Such temporary use is determined to have no detrimental effect upon the existing land uses in the area;

iii. The proposed use will not be incompatible with adjacent land uses and the general character of the neighbourhood;

iv. The proposed use will not require the extension or expansion of municipal services;

v. The proposed use will not create any traffic congestion problems within the neighbourhood, nor will it adversely affect the volume or type of traffic serviced by the affected roads;

vi. Parking facilities for the proposed use will be provided on-site;

vii. The proposed use shall generally be beneficial to the adjacent area and the Town as a whole;

viii. Any other item the Town deems relevant with respect to the proposed use.

38Mr. Pileggi opined that the proposed driving range and seasonal sale of Christmas trees does not involve major construction or investment on the part of the owner, and has been in existence since 2002, nor does it cause any detrimental effects or incompatibility with adjacent land uses in the surrounding area or the general character of the neighbourhood.

39The subject property does not require a connection to servicing, does not create any adverse traffic impacts, provides on-site parking, and represents a benefit to the adjacent area and Town as a whole.

40Considering the four (4) previous Temporary Use By-laws’ approved for the subject property and the consistency of the proposed use over this period, the minor variance sought meets the criteria for temporary uses as set out by Policy 4.15.5 of the Town OP. The Tribunal finds that the proposed development conforms to the Town OP.

ZONING BY-LAW (“ZBL”)

41The subject property is zoned Rural (“RU”), Environmental Protection (“EP”), Residential Four Exception 68 Holding (“[R4(68)(H)]”), and Open Space One (“OS1”) as per the ZBL, as amended. The EP zone is located to the rear (north) of the subject property and is not utilized for the driving range.

42Although the zoning does not permit a driving range or the seasonal sale of Christmas trees, the Temporary Use By-law did so on a temporary basis.

Minor Variance Tests

The variance maintains the general intent and purpose of the Official Plan

43Section 4.15.5 of the OP outlines criteria that must be met to permit Temporary Uses.

44The Tribunal agrees with Mr. Pileggi that the existing driving range complies with all the temporary use criteria outlined in the Town OP as follows:

i. The driving range and related facilities already exist and does not require any new construction.

ii. The driving range has no adverse impact upon the existing land uses in the area.

iii. It is compatible with the surrounding rural and low-rise residential and respects the environmental protection area to the north.

iv. The driving range does not require the expansion of municipal services as it is serviced by two portable washrooms.

v. The driving range has no significant impact on traffic and is considered a low traffic generator.

vi. Parking facilities are provided on-site and no additional parking is required.

vii. The driving range provides a positive social and economic benefit to the adjacent area and the Town as a whole.

viii. The driving range would continue to be considered a temporary/placeholder use until appropriate development in compliance with the Town OP designation can take place.

45The driving range has been in place for many years and has been demonstrated to be compatible with the current uses in the area, without any issues or impacts.

46For the above reasons, the Tribunal finds that the variance maintains the general intent and purpose of the Town OP.

The variance maintains the general intent and purpose of the Zoning By-law

47Permitted uses under the RU zone range from agriculture to agritourism, single detached dwelling, and other agriculture-like uses.

48Temporary Use By-law No. 2018-101, as amended, permits driving ranges and/or seasonal sale of Christmas trees.

49The golf driving range and seasonal sale of Christmas trees is not considered the ultimate use for the subject property and is considered a temporary use.

50The driving range remains generally the same as shown on the site plan approved drawing from 2002.

51Current permitted uses for the subject property, such as agritourism, could produce more traffic or include more disturbance on the site of the existing seasonal driving range and sale of Christmas trees.

52Mr. Pileggi opined that the driving range and seasonal sale of Christmas trees is similar in nature to uses already permitted on the site.

53The Tribunal finds that the requested variance maintains the general intent and purpose of the ZBL.

The variance is desirable for the appropriate development of the land, building or structure.

54The golf driving range and seasonal sale of Christmas trees is considered a low impact development that does not create any land use conflicts and is compatible with the surrounding lands.

55The golf driving range poses little impact to the adjacent uses, or the EP zone made apparent through the uncontested existence and operation of the driving range and seasonal sale of Christmas trees over the past several years.

56Mr. Pileggi emphasized that the variance sought does not propose any changes to the existing facilities or physical lands.

57The Tribunal finds that the requested variance is desirable and appropriate for the subject property.

The variance is minor in nature.

58The requested variance is minor in nature as the requested relief represents less impact on the surrounding area and adjacent properties than what is currently permitted.

59The golf driving range and seasonal sale of Christmas tree sales pose no major adverse impacts on adjacent properties, uses, or the greater area.

60The golf driving range and seasonal sale of Christmas trees has existed on the subject site since 2002 without issue.

61The requested minor variance does not include any changes to any buildings, structures, or physical land.

62Mr. Pileggi reiterated that the requested use variance is temporary, and it is the intention of the owner to develop the subject property in a more appropriate manner upon provision of services and market conditions.

63The Tribunal finds that the variance is minor in nature.

CONCLUSION

64An access and maintenance agreement with the Town for the lands comprising 15.0 m within the Hydro Right-of-Way on the west of the subject property for the purpose of the trail was recommended by Town Staff to the COA as a condition of approval, as stated in the Town Staff report.

65The land is currently used by residents of the Sharon West community as an informal trail to Green Lane and the East Gwillimbury GO Station.

66The condition would facilitate the completion of the Town's Radial Line Trail south to Green Lane and provide a key link within the Town’s Active Transportation and Trails Master Plan (“ATTMP”). The owner agreed to the condition pending approval of the minor variance.

67Mr. Pileggi recommended and opined that the further proposed conditions of minor variance approval at the Hearing are appropriate and should be included as part of the approval. He opined that the proposed minor variance meets the four tests of the Act.

68The Tribunal finds that the proposed development is consistent with the PPS; conforms to the ROP and the Town OP. The variance meets the statutory tests.

69Having considered the opinion of Mr. Pileggi, the Tribunal is inclined to adopt his suggestions and recommendations on the appropriate conditions for the approval of the minor variance application. As such, the Tribunal will impose the Conditions proposed and agreed to by the Applicant.

ORDER

70THE TRIBUNAL ORDERS THAT the appeal is allowed in part and the variance as amended, pursuant to a determination under s. 45 (18.1.1) of the Planning Act, to Zoning By-law No. 2018-043 is authorized subject to the conditions that:

1. An access and maintenance agreement being executed between the owners of 1080 Green Lane East and the Town of East Gwillimbury (“Town”) with respect to 15 metres within the Hydro Right-of-Way on the west side of the subject property for the purpose of the Radial Line Trail Extension completion by the Town.

2. The owners shall pay the Lake Simcoe Conservation Authority (“LSCA”) Plan Review Fee, in accordance with the Approved Fees Policy.

3. The subject Minor Variance shall expire ten years after issuance of the Order from the Tribunal.

“T.F. Ng”

T.F. NG

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.