Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 11, 2024
CASE NO(S).: OLT-23-004821
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Gina Anghelescu
Subject: Consent
Description: To permit creation of a new rural residential lot
Reference Number: PL-BDJ-2022-0071
Property Address: Part Lot 3, Concession 1, District of Portland
Municipality/UT: South Frontenac/Frontenac
OLT Case No.: OLT-22-004821
OLT Lead Case No.: OLT-22-004821
OLT Case Name: Anghelescu v. South Frontenac (Township)
Heard: July 28, 2023 by Written hearing
APPEARANCES
| Parties | Counsel |
|---|---|
| Gina Anghelescu | Heather Lippert |
| Township of South Frontenac | Tony E. Fleming |
DECISION DELIVERED BY CARMINE TUCCI AND ORDER OF THE TRIBUNAL
Link to Order
1A one day in person merit hearing was scheduled to commence on Friday, July 28, 2023. However, prior to that date, the Parties advised the Ontario Land Tribunal (“Tribunal”) that they had reached a settlement and requested that the hearing date be released and be converted to a Written hearing.
2The matter before the Tribunal, was with respect to the appeal under s. 53(19) in regard to the denial of the application by the COA. The Consent Application sought to create a new rural residential lot. The Subject Property has a lot area of 71 acres with a frontage of 353 metres. The proposal was to create one rural residential parcel with a minimum of two acres with a minimum frontage of 76 metres and is located on the east half of the Subject Property. The retained parcel would comprise of approximately 67 acres with a frontage of 201 metres and be utilized for agricultural uses.
3Prior to the scheduled hearing and subsequent written settlement, the Tribunal was in receipt of a Party status request from Neil & Melanie Hunter, an adjacent neighbour. The Tribunal appreciates the efforts and input of Neil and Melanie Hunter and believes that the Minutes of Settlement and the Conditions imposed, will satisfy any concerns presented by Neil and Melanie Hunter. The request for Party Status is not approved.
4The Tribunal was presented the following materials for this settlement hearing:
Exhibit 1: Sworn Affidavit of Christine Woods
Exhibit 2: Minutes of Settlement
EVIDENCE / ANALYSIS / CONCLUSIONS
5The Tribunal accepted the sworn written affidavit of Christine Woods as an expert to provide opinion evidence on land use planning.
6In her Affidavit Ms. Woods provided:
1. The Subject Property
The property is a 71-acre lot on Murton Road in the Township of South Frontenac. The Subject Property is vacant except for hydro lines across the front of the lot. It consists of open grassland that is flat and bordered by treeline. Aside from a wooded area on the north side of the property, there are no natural features.
The site is vacant except for hydro lines across the front of the lot. It consists of open grassland that is flat and bordered by treeline. Aside from a wooded area on the north side of the property, there are no natural features.
There are various residential properties and farmland surrounding the Subject Property along Murton Road. Immediately west of the Subject Property is a rural lot operating as a dairy cow farm, developed with a barn and manure storage (“3482 Murton Road”). Immediately east of the Subject Property is a rural lot developed with a residence and two barns currently used for lumber storage (“3400 Murton Road”).
The site is approximately six kilometers from the villages of Harrowsmith and Sydenham, and 10 kilometers from the northern limit of the City of Kingston’s urban boundary.
2. The Appeal
The Appellant submitted two applications to the Township for consent to sever two 2-acre lots from the Subject Property. The proposed lot at issue on this appeal is the westmost of the two proposed lots, referred to as “Lot 2”.
The Committee of Adjustment considered the applications at a public meeting on November 10, 2022.
The Township’s Public Services Department provided written comments confirming that there were adequate site lines for an entrance to the Proposed Lot, the road condition was adequate to support the increased development, and there were no special drainage concerns.
The Township’s Building Services Department provided written comments confirming that there was sufficient space to accommodate a dwelling and a sewage system on the Proposed Lot.
The Committee received written and oral comments from Mr. Neil Hunter with respect to the Proposed Lot. Mr. Hunter is the owner of 3482 Murton Road, immediately west of the Subject Property. He opposed the creation of the Proposed Lot on the basis that the establishment of a residential use on the Proposed Lot would constrain his ability to build a new manure storage facility to expand his dairy operation in the future.
Staff’s planning report recommended that the Committee of Adjustment approve both applications, with typical severance conditions.
The Committee of Adjustment refused the application for the creation of the Proposed Lot.
3. Planning Opinion
Ms. Woods opined that the proposed severance is consistent with the Provincial Policy Statement, conforms to the County of Frontenac and South Frontenac Official Plans, meets the criteria of section 51(24) of the Planning Act, and is good land use planning.
Provincial Policy Statement
- The proposed severance is consistent with the applicable policies of the Provincial Policy Statement 2020, as Policy 1.1.5.2(c) permits residential development, including lot creation, that is locally appropriate. The development is locally appropriate given its location in an area with other residential development, the adequacy of the existing road and the capacity for private servicing.
Upper-Tier Official Plan
- The Subject Property is designated “Rural” in the County of Frontenac Official Plan. Section 3.3 states that “Low density residential development as well as rural-related commercial, industrial, recreational and institutional development is desirable, provided it is appropriately located,” and permits “residential development of a limited scale” on rural lands. Section 3.3.3(2) outlines the criteria to be met for new development in the Rural designation. The Proposed Lot, if approved with the recommended conditions, will conform to these criteria.
Lower-Tier Official Plan
The Subject Property is designated “Rural” in the Township of South Frontenac Official Plan. Section 5.7 provides that limited non-agricultural residential development may be permitted within the Rural area so as to provide a variety of living accommodation for the residents of the Township.
The proposed 2-acre (0.8 hectare) area and 76 metre frontage on a public road meet the requirements of Section 5.7.4(ii)(a). The Retained Lot will also continue to meet these requirements.
The lot is capable of siting a private well and sewage system as required by section 5.7.4(ii)(b).
The Proposed Lot provides for a satisfactory geometric design of the parcel as required per Section 7.1(d) of the Township Official Plan.
Development within the Rural designation shall be serviced in accordance with Section 6.10 of the Township Official Plan. The conditions of approval shall ensure that development of the Proposed Lot proceeds in accordance with these servicing requirements, namely private well and septic.
Minimum Distance Separation Formulae I
Sections 6.23 and 7.1 (l) of the Township Official Plan state that “all division of land for new farm and non-farm uses shall comply with the Minimum Distance Separation Formulae I or II as amended”. Similarly, Section 1.1.5.8 of the Provincial Policy Statement 2020 states that the creation of lots, and new or expanding livestock facilities, shall comply with the minimum distance separation formulae.
The “Minimum Distance Separation (MDS) Document: Formulae and Guidelines for Livestock Facility and Anaerobic Digester Odour Setbacks (Publication 853)” specify that the “existing livestock facilities” to be considered are those facilities which have already been constructed or for which a building permit has been issued at the time that the municipality deems the planning application to be complete. Calculations are not required to include potential future new or expansions of livestock facilities when considering lot creation.
Ms. Woods provided the MDS I calculations for 3482 Murton Road. They determined that the Proposed Lot would exceed the required MDS I setbacks from the barn and manure storage at 3482 Murton Road. In accordance with the MDS guidelines, these calculations were based on the expansion of the existing barn for which a building permit had been issued, but did not include Mr. Hunter’s plans to construct a new manure storage in the future, as no building permit has been issued for such a structure.
A completed the MDS I calculations for 3400 Murton Road, and determined that the Proposed Lot would exceed the required MDS I setbacks from barns at 3400 Murton Road and concluded the Proposed Lot complies with the Minimum Distance Separation Formulae.
Section 51(24) Criteria
requires that the matters under Subsection 53(12) of the Planning Act requires that the matters under subsection 51(24) be considered in determining whether a provisional consent is to be given.
Ms. Woods opined the Proposed Lot is consistent with the applicable matters under s. 51(24).
| Criterion | Comment |
|---|---|
| (a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2; | The Proposed Lot is consistent with the matters of provincial interest referred to in section 2 of the Planning Act, including 2(b), 2(h), 2(j), 2(l), and 2(n), as it allows for rural housing supply while complying with the Minimum Distance Separation Formulae. |
| (b) whether the proposed subdivision is premature or in the public interest; | The Proposed Lot is not premature and will contribute to housing supply. |
| (c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any; | The Proposed lot conforms to the County and Township Official Plans. There are no adjacent plans of subdivision. |
| (d) the suitability of the land for the purposes for which it is to be subdivided; | The land is suitable for residential development. |
| (d.1) if any affordable housing units are being proposed, the suitability of the proposed units for affordable housing; | No affordable housing units are being proposed. |
| (e) the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them; | There are adequate site lines for an entrance to the lot, and the road condition is adequate to support the increased development. |
| (f) the dimensions and shapes of the proposed lots; | The dimensions and shapes are geometrically satisfactory and comply with the dimensions required in the Township Official Plan. |
| (h) conservation of natural resources and flood control; | There are no natural features, including watercourses, on or near the Proposed Lot. Public Services identified no drainage concerns. |
| (i) the adequacy of utilities and municipal services; | The Proposed Lot will be privately serviced in accordance with Official Plan policies. |
| (j) the adequacy of school sites; | The Proposed Lot is proximate to schools located in Harrowsmith, Sydenham, and Kingston. |
| (k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes; | A recommended condition of approval will require the Appellant pay 5% of the value of the Proposed Lot in lieu of parkland dedication. |
| (l) the extent to which the plan’s design optimizes the available supply, means of supplying, efficient use and conservation of energy; and | Not applicable. |
| (m) the interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under subsection 41 (2) of this Act or subsection 114 (2) of the City of Toronto Act, 2006. | Site plan control is not available for this scale of residential development. |
7Ms. Woods concluded that the proposed consent for the lot creation represents good land use planning and the approval of the Proposed Lot follow and adhere to the recommended conditions.
8Ms. Woods further opined that the Conditions are reasonable and necessary to ensure that the Proposed Lot is developed with appropriate servicing and in accordance with the Appellant’s proposal. These are standard conditions applicable to lot creation through consent in the Township.
9Upon review of the evidence within the Affidavit of Ms. Woods and the joint submission of the parties in support of the consent, the Tribunal is satisfied that the Settlement for consent is consistent with the Provincial Policy Statement, conforms to the County of Frontenac and South Frontenac Official Plans, meets the criteria of section 51(24) of the Planning Act, and is good land use planning.
ORDER
10THE TRIBUNAL ORDERS that the appeal is allowed and the provisional consent is to be given subject to the conditions set out in Schedule “A”.
“Carmine Tucci”
CARMINE TUCCI
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.
Schedule “A”
Expiry Period
- Conditions imposed must be met within two years of the date of the Tribunal’s Order as required by Section 53(41) of the Planning Act, RSO 1990, as amended. If conditions are not fulfilled as prescribed within two years, the Consent shall be deemed to be refused. Provided the conditions are fulfilled within two years, the Application is valid for two years from the date of Certificate of Official issuance.
Severed Lands
- The land to be severed by the Application PL-BDJ-2022-0071 shall be for the creation of one new residential lot a minimum of 2 acres (0.8 hectares) in area and with a minimum of 76 metres (250 feet) frontage on Murton Road.
Survey/Reference Plan or Registerable Description
An acceptable reference plan or legal description of the severed lands, in duplicate [Registry Act, s. 81, Land Titles Act, s. 150] and the Certificate of Official shall be submitted to the Secretary-Treasurer for review and consent endorsement within a period of two years after the date the Decision of the Tribunal is given.
The surveyor or applicant shall submit the draft Reference Plan including an area calculation and noting frontage along the road electronically or in paper form for review and approval by planning staff prior to depositing the Reference Plan with the Land Registry Office.
Road Widening
- The surveyor who prepares the reference plan referred to in Conditions 3 and 4 shall also determine by survey the width of Murton Road to be 20 metres (66 feet). If such width is less than 20 metres (66 feet), the owner shall dedicate to the Township land along the frontage of the severed lands as the case may be in the following manner:
a. The land to be dedicated shall be the width required to provide 10 metres (33 feet) from the centre of the existing travelled road for Murton Road;
b. The land to be dedicated shall be described as a separate part on a Reference Plan of Survey to be prepared and deposited at the Owner’s expense and filed with the Secretary-Treasurer prior to the issuance of the Certificate of Official;
c. The Transfer/Deed from the Owner for the land to be dedicated shall be engrossed in the name of “The Corporation of the Township of South Frontenac”, and shall include the following attached to the Transfer/Deed as a Schedule:
The Transferor hereby transfers the lands to the municipality for the purpose of widening the adjacent highway pursuant to Section 31(6) of the Municipal Act, 2001, Chapter 25, as amended
d. The Transfer/Deed of the land to be dedicated shall be registered by the Owner at the Owner’s expense
e. The duplicate registered Transfer/Deed for the land to be dedicated together with a letter of opinion of a solicitor qualified to practice law in the Province of Ontario addressed to the Secretary-Treasurer confirming that the municipality acquired good and marketable title to the land free and clear of all liens and encumbrances shall be delivered to the Secretary-Treasurer prior to the issuance of the Certificate of Official.
Municipal Requirements
Payment of the balance of any outstanding taxes and local improvement charges shall be made to the Township Treasurer. This includes all taxes levied as of the date of the issuance of the Certificate of Official.
The Township of South Frontenac shall receive 5% of the value of the parcel to be severed through Consent Application PL-BDJ-2022-0071, in lieu of parkland.
The Owner shall submit a well driller’s report demonstrating a potable water pumping capacity of 3.5 gallons per minute sustained over a 6-hour pump test for the parcel severed through Consent Application PL-BDJ-2022-0071.
In the even that there are abandoned wells located on the severed parcel or the retained property, they shall be sealed in accordance with the requirements of the Ministry of the Environment, Conservation and Parks and that this work shall be accomplished prior to the issuance of the Certificate of Official.
Zoning
- Where a violation of Zoning By-law No. 2003-75 is evident, the appropriate minor variance or rezoning shall be obtained to the satisfaction of the Township.