Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 01, 2024

CASE NO(S).: OLT-23-000998

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

Applicant/Appellant: Eugene Zdebiak

Subject: Consent

Description: To create two new parcels with one parcel retained

Reference Number: 1B/10/23

Property Address: CON 2 N PT LOT 5 PCL 5504 TBF GORHAM TWP

Municipality/UT: Township of Gorham

OLT Case No.: OLT-23-000998

OLT Lead Case No.: OLT-23-000998

OLT Case Name: Zdebiak v. Gorham (Township)

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

Applicant/Appellant: Eugene Zdebiak

Subject: Consent

Description: To create two new parcels with one parcel retained

Reference Number: 1B/11/23

Property Address: CON 2 N PT LOT 5 PCL 5504 TBF GORHAM TWP

Municipality/UT: Township of Gorham

OLT Case No.: OLT-23-000999

OLT Lead Case No.: OLT-23-000998

OLT Case Name: Zdebiak v. Gorham (Township)

Heard: January 24, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
Eugene Zdebiak	Matt Pascuzzo
Lakehead Rural Planning Board	Jennifer Savini

MEMORANDUM OF ORAL DECISION DELIVERED BY GREGORY INGRAM ON JANUARY 24, 2024 AND FINAL ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1The matter before the Tribunal is an appeal filed by Eugene Zdebiak (“Appellant”) under s. 53(19) of the Planning Act as amended (“Act”) against the Lakehead Regional Planning Board (“LRPB”) for refusing requests to create two new parcels and retain one parcel of land from a 55-hectare parcel. It is proposed that Severance 1 will be 13 hectares, Severance 2 will be 17.5 hectares, and the Retained Parcel will be 24.8 hectares (Exhibit 2). The property is known as 167 North Branch Road and is described by the municipality as Concession 2 North Part Lot 5, PCL 5504 TBF Gorham Township in the geographic district of Thunder Bay (“Subject Property”).

2The first issue the Tribunal must deal with in this matter is whether or not a growth management strategy (“GMS”) in the Official Plan for Gorham Township (“OP”) restricting the number of severances to 200 between the years 1997 and 2017 applies to these applications.

3Secondly, the Tribunal will consider the consent applications.

BACKGROUND

4Gorham Township is an unorganized geographic township and is included in a planning area with other unorganized townships. The LRPB is the approval authority for planning-related issues for the unorganized townships in this area and consists of members elected by the townships as well as two appointments by Municipal Affairs and Housing.

5Currently, the Subject Property is one parcel and includes a 28-trailer recreational vehicle park, a detached single-family dwelling, and several accessory buildings that have been owned by the Appellant and his brother since 1976.

6The Subject Property is designated Rural in the Official Plan of the Lakehead Rural Planning Area for the Townships of Gorham, Ware, and Dawson Road Lots, Lots 1-20, Concession A and B, east of the Kaministiquia River (“OP”) and zoned Rural according to By-law 002-2014 (“ZBL”). The property is abutted by additional rural lots, another trailer park is nearby, and the current uses comply with the OP and ZBL.

7In July 2023, an agent representing the Appellant approached the LRPB regarding the above described severances. Specifically, he proposed that one lot would include the trailer park, one the existing house, and one retained for future use. He was told by staff that the OP only permits 200 lots for the area, and that number has already been reached, therefore, the applications would be denied. He was also told that an updated OP is in the review and development stage, but until a new OP is adopted, no new lots will be approved.

8On September 7, 2023, the LRPB received and denied the consent applications from Mr. Zdebiak. No reasons were provided. The Manager of Planning’s report did not support the applications and, in summary, indicated that while the proposal meets the requirements of the rural zone, severances are not permitted due to the GMS in the OP, which places a maximum of 200 “newly created lots from 1997 to 2017 and a restrictive severance policy (one only).” Her report also indicated that before the cap, “only one severance per parcel of land could be created.”

9There were no objections from other municipal departments or public service providers related to these applications were received.

LEGISLATIVE FRAMEWORK

10On Consent appeals, the Tribunal’s decision must be consistent with the PPS and it must conform with applicable provincial and official plans. The Tribunal must be satisfied that the Consent application has regard to the criteria set out in s. 51(24) of the Planning Act, and the Tribunal must have regard to matters of provincial interest under s. 2 of the Planning Act and be considered good planning.

THE HEARING

11The following exhibits were submitted for this hearing:

1. Notice of Hearing
2. Document Book of the Appellant
3. Document Book of the LRPB
4. Standard Conditions used by LRPB for an approved Consent
5. Ontario Municipal Board Case Numbers PL171011 (Shedden v Township of Wainfleet) and PL141196 (Schuyler Farms Limited v. Norfolk (County))

12Opening statements were provided by both Parties. Mr. Pascuzzo provided an overview of the Subject Property and indicated that the intent of the consent applications is related to estate planning by the owners. It is his position that the restriction period for severances has expired, and the applications should be approved. He also indicated that he would not be calling any witnesses and submitted that Mr. Zdebiak’s witness statement be used as a source of factual information related to the application. He believes that both applications comply with all relevant planning legislation and should be approved. If the Tribunal does not concur with this opinion, he asked it to consider the Severance 1 application on its merit, as he believes there is no question it complies with the OP.

13Ms. Savini explained in her opening statement that the appeals should be denied due to non-conformity with the OP given the GMS limits consents to 200, and that number was reached in 2022. It is Counsel’s position that the restriction remains in effect until a new OP is approved. Ms. Savini requested that Kerri Reid, Manager of Planning for the Municipality of Paipoonge, be qualified to provide evidence in land use planning related to this case as she also supports the LRPB.

14Ms. Reid provided an overview of her professional experiences related to planning, including her current position with the Municipality of Oliver Paipoonge, which she has held since 2018, and as Planning Administrator for two years with the Municipality of Sioux Lookout. She completed a Primer on Planning course through the Association of Municipalities in 2015. Ms. Reid also acknowledged her obligations as outlined on her signed Expert Duty Form.

15Ms. Reid was qualified by the Tribunal, with the consent of the Appellant, to provide opinion evidence in the field of land use planning given her related professional experiences. It is noted that she is not a professional planner, nor is she a member of the Canadian Institute of Planners.

ISSUES, EVIDENCE, ANALYSIS AND FINDINGS

Issue One: Official Plan and Growth Management Strategy (“GMS”)

16Ms. Reid reviewed the application process leading to this appeal, and it is her opinion that the applications should not be approved as they do not conform with the OP and specifically, the limitations imposed by the GMS (OP 2.4.2(k)). In addition, she proffered that Policy 1.1.6. Territory Without Municipal Organization of the Provincial Policy Statement (“PPS”) sections one and two discourage growth in the area of the Subject Property due to the potential difficulty the municipality may experience in providing municipal services and the general lack of infrastructure to support growth in remote areas.

17Ms. Reid proffered that the LRPB, in making their decision only looked at section 51.24.c of the Act, which states that a consent application must align with the OP.

18Ms. Reid opined that there are no issues related to zoning with the applications, and if the Tribunal were to grant Severance 1, she requested that the standard list of conditions be applied as part of the Order (Exhibit 4).

19Under cross-examination, Ms. Reid opined that the current OP should have been reviewed and updated as per provincial regulations but proffered that it has not been done as the LRPB “receives funding from the province and money is tight.”

20In response to a scenario where approval is given for Severance 1, Ms. Reid opined that the current land use on Severance 1 and the Retained parcel comply with the zoning by-law, and any further changes to their use would require a zoning by-law amendment application.

21She opined that once the OP is updated, it is possible that one of the severance requests could be approved.

22Mr. Zedbiak’s witness statement (Exhibit 2) provided a history and overview of the Subject Property and outlined his reasons for submitting the severance applications. He indicated that his brother lives in the dwelling situated next to the trailer park, and as part of his estate planning, he would like to have the option of selling the trailer park while allowing his brother to remain in his home should at least one of the severance applications be approved.

23The Tribunal after considering all documentation and submissions before it, the opinion evidence of Ms. Reid, and the factual statement provided by Mr. Zedbiak, finds that the GMS in the OP has expired and does not apply to the applications before the LRPB for the reasons outlined below:

a. Ms. Reid’s testimony provided historical context and explained the current administrative planning issues for the LRPB region related to the intention and application of the GMS. She indicated that the OP update process is underway but was unable to speak to its content or completion date beyond saying she is “hoping it goes to [the Ministry] in March [and] hoping the new document would be in place by the end of the year.” The Tribunal has no indication of what the intention of the LRPB is related to the updated document and whether the growth strategy limit will be extended, changed, or removed completely.

b. The Tribunal is not convinced by Ms. Reid’s analysis and references to the PPS and Growth Plan for Northern Ontario as additional reasons for declining the applications. This is especially the case regarding the Severance 1 proposal, which she indicated has an existing use that is permitted. There was also no reference to these policies in her written report to the LRPB to support her recommendation.

c. Regarding the weight given to the GMS section of the OP in denying these applications, the Tribunal finds that a strategy initiated seventeen years ago with a specific end date and within an OP that has not been updated as required by legislation, should not be the primary reason for declining an application, if indeed, it should apply at all.

d. Regarding the application of the GMS, the Tribunal also looks to the preamble in the 2013 OP which provides an overview of the impact of the GMS and refers to it ending in 2017. Section 1.2.3.a. of the OP states that a goal is to create a new GMS to “replace the current policy that is due to terminate in 2017.” A new GMS has not been created, and therefore, the Tribunal finds that the significance of the GMS is minimal in considering the consent applications.

e. The Tribunal also refers to Section 2.3.2(l) of the OP, which states that “the determined 200 new lot ceiling shall continue to apply until 2017” and finds that this further serves as confirmation of an end date. Ms. Reid did not provide any additional legislative references to support the assertion that the GMS must remain in place until it is replaced or updated when asked by the Tribunal.

Issues Two: Severance 1 and Severance 2

24Given the findings noted above related to the GMS issue, the Tribunal will now consider the two consent applications.

25Regarding Severance 1, Ms. Reid indicated that OP Section 3.2.6 permits the creation of a single additional lot with one detached dwelling unit on it. She said that minus the GMS, it is her opinion that Severance 1 complies with the OP and ZBL.

26Ms. Reid’s report to the LRPB indicated that ZBL 002-2014 permits the current uses on the Subject Property. She said that the ZBL requires a minimum lot frontage of 100 metres and a lot area of 2 hectares, and that Severance 1 proposes a lot frontage of 230 metres and a lot area of 3 hectares. She also opined that the Retained lot complies with a frontage of 600 metres and an area of 24.8 hectares. In her oral testimony, she also proffered that the consent application for Severance 1 complies with these requirements.

27Ms. Reid’s report to the LRPB indicated that properties that abutted the Subject Property include additional rural lots and another trailer park.

28Regarding the consent application for Severance 2, Ms. Reid opined in her report to the LRPB that before 1997, the OP permitted one severance per parcel of land, and if severances were permitted, this would still apply and she would not recommend approving this application. The lot dimensions of the proposed Severance 2 comply with the frontage and lot area requirements of the ZBL as outlined in paragraph 19 and is currently vacant.

29For the reasons that follow, the Tribunal approves the appeal of Consent Application for Severance 1 in part and finds that it has regard for the Provincial interests of s. 2 of the Act; is consistent with the PPS, and conforms to and is consistent with the overall intent of the OP, excluding Section 2.4.2.(k-l) which are time bound. It also satisfies the purpose and intent of the Zoning By-Law and represents good planning in the public interest.

30The Tribunal in considering all of the evidence before it, does not grant the appeal of the Consent Application for Severance 2 based on the reasons set out below.

Consent Application for Severance 1

31Severance 1 has appropriate regard to the listed criteria set out in s. 51(24) of the Act given the Tribunal decision in paragraph 23 above regarding the GMS strategy. The application creates a single lot and does not require a plan of subdivision. A single dwelling exits on the site and does not create any additional pressure on municipal infrastructure or services.

32This application has regard for matters of provincial interest as set out in s. 2 of the Act, as the consent involves an existing permitted use and is therefore not premature and is consistent with uses in the surrounding area. Severance 1 and the Retained parcel have well and septic systems independent of one another and access to an existing road.

33The Tribunal concurs with the submissions of Mr. Pascuzzo related to Rural Land Use in the OP and finds that the Severance 1 application complies with Sections 3.2.1, 3.2.2, 3.2.3, 3.2.4, and 3.2.6.

34The Tribunal finds that Severance 1 complies with criteria identified in the Lot Creation Section 2.4.2 (a-j) of the OP given that there is an existing, previously approved use.

35The Tribunal finds that the Severance 1 application is consistent with the PPS and in particular sections 1.1.6.1, 1.1.6.2, and 1.1.6.4 in that the current uses have existed for many years, are sustainable and do not place any additional need for services. No expressions of concern with this application were received by local service providers or municipal departments.

36The Tribunal finds that the Severance 1 application is consistent with the Growth Plan for Northern Ontario and refers to section 4.2.2(c), which prioritizes the need to optimize “existing infrastructure.”

Consent Application for Severance 2

37Based on the evidence before it, the Tribunal finds that the consent application for Severance 2 does not conform with the OP and specifically, does not comply with the criteria outlined in Section 2.4.2 of the OP, and in particular Section 2.4.2 (j):

“A parcel held under unity of ownership as of June 1, 1997, is not subdivided by consent into more than one (1) parcel.”

This section is not time bound and therefore, still applies.

38The Tribunal concurs with Ms. Reid’s interpretation of the OP found in her report to the LRPB and during her oral testimony, that if the GMS was deemed to be expired, then “only one severance per parcel of land as of June 1, 1997, could be created [and] this would still be true now if severances were permitted” (LRPB Planning Report September 7, 2023).

39Section 2.4 also provides a detailed list of additional information required before a consent application can be considered, and the Tribunal did not hear testimony related to these criteria for Severance 2, which is vacant land.

ORDER

THE TRIBUNAL ORDERS

1. That the appeal of Consent Application for Severance 1 is allowed, and the provisional consent is to be given subject to the conditions set out in Attachment 1 to this Order.

2. That the appeal of Consent Application for Severance 2 is dismissed, and the Decision of the Lakehead Region Planning Board dated September 7, 2023, remains in effect.

“Gregory Ingram”

GREGORY INGRAM 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

CONDITIONS OF THE LAKEHEAD REGIONAL PLANNING BOARD (LRPB)

1. The original executed Transfer/Deed of Landform and one photocopy for the records of LRPB be provided.

2. A Schedule to the Transfer/Deed of Landform on which is set out the entire legal description of the parcel(s) in question and containing the names of the parties indicated on page 1 of the Transfer/Deed of Land form be provided.

3. One copy, and one electronic copy, of the reference plan of survey, bearing the Land Registry Office registration number and signatures as evidence of deposit therein, and illustrating the parcel(s) to which the consent approval relates and which must show in general the same area and dimensions as the sketch forming part of the application be provided.

4. The Secretary-Treasurer shall receive a written report from a certified well driller or Master Plumber that the retained and severed lot(s) are adequately serviced by a private water supply.

5. The Secretary-Treasurer receives a written report from a recognized testing laboratory that the water source on the retained and the severed property is potable.

6. That a letter of approval from the Thunder Bay District Health Unit is received by the Secretary-Treasurer of the Lakehead Rural Planning Board regarding the sanitary sewage disposal system.

7. That, unless previously established, a 20-metre allowance measured 10 metres either side of the centre line of the travelled road be laid out as a part on the Reference Plan of Survey, and that the part be transferred to the Township.