Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 20, 2024

CASE NO(S).: OLT-23-000307

PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Canadian National Railway Company

Applicant: Performance Communities Realty Inc.

Subject: Zoning By-law

Description: To permit a 185-unit residential Subdivision of single detached dwellings, semi-detached dwellings and townhouse dwellings

Reference Number: ZBA05-22

Property Address: Part of Lot 81, Concession North of Talbot Road East

Municipality/UT: Aylmer/Elgin

OLT Case No.: OLT-23-000307

OLT Lead Case No.: OLT-23-000307

OLT Case name: Canada National Railway v. Aylmer (Town)

Heard: February 14, 2024 by Video Hearing

APPEARANCES:

Parties Counsel

Canadian National Railway Company (“Appellant”) Katarzyna Sliwa

Town of Aylmer (“Town”) Ken Strong

Performance Communities Realty Inc. (“Applicant”) Andrew Hentz

DECISION DELIVERED BY JENNIFER GOLD AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1Canadian National Railway Company (“Appellant”) appealed the Town of Aylmer’s (“Town”) approval of Zoning By-law Amendment No. 12-23. Performance Communities Realty Inc. (“Applicant”) applied for a Zoning By-law Amendment to rezone Part of Lot 81, Concession North of Talbot Road East, in the Town of Aylmer (“Subject Property”) in order to permit a 185-unit residential subdivision of single detached dwellings, semi-detached dwellings and townhouse dwellings. Zoning By-Law Amendment 12-23 was passed by Town council on March 15, 2023. The Appellant appealed the ZBA pursuant to section 34(19) of the Planning Act due to concerns relating to safety, vibration and noise.

2This appearance was scheduled as a Case Management Conference (“CMC”); however, the Parties notified the Tribunal in advance that a settlement had been reached. At the request of the Parties, the Tribunal converted the CMC to a Settlement Hearing.

3The Tribunal reviewed the Affidavit of Service sworn December 21, 2023. Counsel confirmed that there was no issue with the service of the Notice of the CMC and the Affidavit of Service, together marked as Exhibit 1.

4There were no Party or Participant status requests received by the Tribunal and no one in attendance at the Hearing seeking Party or Participant status.

5In advance of the Hearing, the Tribunal received the Affidavit of Heather James sworn February 13, 2024 including her curriculum vitae and Acknowledgement of Expert’s Duty, as well as a draft order and draft instrument. The Tribunal received confirmation from the Parties that the draft order and draft instrument were on consent.

6Based her Affidavit sworn February 13, 2024, the Tribunal confirms that Ms. James is qualified an expert in the field of land use planning. Such finding was not opposed by the parties. The Affidavit of Heather James sworn February 13, 2024 was entered into evidence as Exhibit 2.

BACKGROUND

7The existing Town of Aylmer Official Plan designation for the Subject Property is Low Density Residential and Parks and Open Space, subject to various policies. The Subject Property is vacant and contains no municipal services. The existing Zoning designation is Residential Holding (RH) and Environmental Protection (EP) Zones.

8The Applicant submitted a Zoning By-law Amendment application to the Town to re-zone the Subject Property to permit low and medium density residential uses with special regulations as well as environmental and open space uses. The purpose of the Zoning By-law Amendment application was to rezone the Subject Property from Residential Holding (RH) Zone to the following:

i. Residential Type 2 Special Provision 20 (R2-20) to permit semi-detached dwellings with special regulations (Lots 39 to 46);

ii. Residential Type 3 Special Provision 11 (R3-11) to permit single detached dwellings with special regulations (Lots 10 to 38, 47, 48 and 51-74);

iii. Residential Multiple Second Density Special Provision 1 (RM2-1) to permit row townhouse units with special use regulations (Lots 1 to 9, 49, 50, 75 and 76);

iv. Residential Multiple Second Density Special Provision 2 (RM2-2) to permit vacant land condominium townhouse units (Block 77); and

v. Environmental Protection (EP) to permit stormwater management area, open space and a temporary turnaround area (Blocks 80, 82-83 and 88 and 89)

9The Appellant received notice of the proposed Zoning By-law Amendment Application pursuant to Ontario Regulation 545/06 of the Planning Act, as the Subject Lands are within 300 metres of the railway line. The Appellant made written submissions to the Town requesting that certain conditions be incorporated into the final Zoning By-Law Amendment approved by the Town. The conditions included: minimum setbacks from the rail line, a safety berm, the undertaking of a noise and vibration study by the Applicant, warning clauses, runoff waters from stormwater management facilities directed away from the Canadian National Railway (“CN") right of way, that the Applicant enter into a CN Development Agreement registered on title to the Subject Property, and that an environmental easement for operation noise and vibration emissions be registered against the Subject Property in favour of the Appellant.

10The Town approved the Application and Zoning By-law Amendment 12-23 was passed by Town council on March 15, 2023. The Town did not implement the Appellant’s requested conditions in the Zoning By-law Amendment on the basis that setbacks were addressed through the noise and vibration study and that other conditions will be addressed either in the subdivision agreement or through the developer in the offer of purchase and sale agreements.

11The Appellant appealed Zoning By-law Amendment 12-23 on or about April 6, 2023. In its Municipal Submission Form, the Appellant states that:

[its] reasons for the appeal are centred on concerns of safety, vibration and noise. Federation of Canadian Municipalities and the Railway Association of Canada Guidelines for New Development in Proximity to Railway Operations (FCM-RAC Guidelines) recommend that sensitive uses should not be permitted within 300 metres of railway lines and within 1000 metres of rail yards. The Ministry of Environment, Conservation and Park’s D-Series Guidelines and FCM-RAC Guidelines set out the standards and requirements for railway safety, as well as mitigation measures. The Provincial Policy Statement, 2020 (PPS 2020), in particular, policies 1.2.6 and 3.6, have not been addressed in zoning by-law no. 12-23 as the appropriate mitigation measures, relating to noise, vibration, odour and safety have not been addressed. Zoning by-law no. 12-23 is not consistent with the PPS 2020 and the Town Official Plan.

SETTLEMENT

12In order to settle this matter, the Parties propose a revised Zoning By-law Amendment in order to address the Appellants concerns in this appeal and have agreed upon mitigation measures. This revised Zoning By-law Amendment can be found as Attachment 1 to this decision. The main amendment is Section 6 that includes a 15 metre rear yard depth in the RM2-11 zone.

13The Tribunal accepts the uncontroverted evidence of Heather James who is a Registered Professional Planner of the Ontario Professional Planners Institute and a full member of the Canadian Institute of Planners. She is Manager of Planning and Development with the Town. In her Affidavit, she opines that the proposed Zoning By-law Amendment conforms with Policies 1.13, 1.4.3, 3.1.1(b), and 3.1.2(c) and is consistent with the PPS because: “i. The Subject Lands are within a settlement area and will be used for residential uses. ii. The Subject Lands will have a variety of low and medium density housing options and densities. iii. The variety in house types proposed represents residential intensification and will provide greatly needed residential units to the Town’s housing supply. iv. Development will be outside of hazardous lands.”

14The proposed Zoning By-law Amendment also conforms with County of Elgin Official Plan which divides settlement areas into three tiers based on their scale, function and the level of services that exist in each settlement. The Subject property is designated Settlement Area Tier 1 in County of Elgin Official Plan, Policy B2.5 as shown on Schedule “A” Land Use with a portion of the lands subject to the Woodlands constraint. In her analysis of the conforming of the Zoning By-law Amendment to the County of Elgin Official Plan, Ms. James concludes that there is conformity because:

i. The lands will be used for low and medium density residential uses. ii. The scoped Environmental Impact Study prepared for the proposed development demonstrates that there will be no negative impact on the significant features and functions of the woodlands. iii. The proposed minimum rear yard of 15.0 metres protects the existing adjacent rail line. Iv. All of the above combined factors result in the proposed Amendment conforming with the CEOP.

15In her Affidavit, Ms. James also opines that the proposed Zoning By-law Amendment conforms to the Town of Aylmer Official Plan, is appropriate for the site, is compatible with the adjacent rail line, will not have an adverse impact on surrounding properties and uses and represents good land use planning. The Tribunal accepts her opinion and uncontroverted expert evidence.

ORDER

18THE TRIBUNAL ORDERS that the appeal is allowed in part and that the Town of Aylmer Zoning By-law No. 57-99 is amended in accordance with Attachment 1 to this decision. The Tribunal authorizes the municipal clerk to format, as may be necessary, and assign a number to this instrument for record keeping purposes.

“Jennifer Gold”

JENNIFER GOLD

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.