Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 26, 2024

CASE NO(S).: OLT-22-004218

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

Applicant/Appellant: Riwoche Society

Subject: Zoning By-law

Description: To permit a religious educational centre and place of worship (temple), including sleeping accommodations

Reference Number: By-law 2022-117

Property Address: 344 Old Mill Road

Municipality/UT: Kawartha Lakes/Kawartha Lakes

OLT Case No: OLT-22-004218

OLT Lead Case No: OLT-22-004218

OLT Case Name: Riwoche Society v. Kawartha Lakes (City)

Heard: November 7 to 9, 2023 by Video Hearing

APPEARANCES:

Parties Counsel

Riwoche Society Jennifer Evola Peter Voltsinis (Student-at-Law)

City of Kawartha Lakes Jennifer Biggar

DECISION DELIVERED BY S. DIXON AND INTERIM ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

Background

1Applications to amend the City of Kawartha Lakes Official Plan (“COP”) and Zoning By-law No. 87-06 (“ZBL”) were filed by the Riwoche Society (“Appellant”), a Tibetan Buddhist organisation, to permit the use and expansion of retreat-based and educational uses for meditation, education, and worship on the lands legally described as Part Lot 21, Concession 13, geographic Township of Manvers, and known municipally as 344 Old Mill Road (“Subject Lands”) in the City of Kawartha Lakes (“City”).

2The applications resulted in City Council’s adoption of two by-laws:

1. By-law 2022-11, which enacts Official Plan Amendment No. 24 (“OPA 24”); and

2. By-law No. 2022-177 (“Adopted ZBA”), which amends the ZBL.

3OPA 24 provides site-specific exceptions for the Subject Lands that permit retreat-based uses, a religious education centre with boarding rooms and dining facilities, and a place of worship (temple) on the Subject Lands. OPA 24 further notes that provisions related to the education centre and temple, including the size of the buildings and the number of rooms, shall be outlined in the implementing zoning by-law.

4The Adopted ZBA rezones the Subject Lands from Rural General (A1) to Rural General Special Forty-Five Holding [A1-S45(H1)(H2)(H3)] and establishes site-specific provisions for the phased implementation of permitted uses on the Subject Lands through the use of three separate holding symbols.

5OPA 24 was not appealed and is in full force and effect. The Adopted ZBA was appealed to the Tribunal by the Appellant, pursuant to s. 34(19) of the Planning Act, R.S.O. 1990, c. P.13 (“Act”), on the basis that the Adopted ZBA is overly broad, contains the exceptional use of holding provisions that are not needed for the orderly development of the Subject Lands, and ultimately creates a condition whereby the intended uses cannot be implemented.

Witnesses

6The Tribunal heard from two witnesses that were qualified by the Tribunal to provide independent expert opinion evidence on matters pertaining to land use planning:

1. The Appellant called Eldon Theodore, a Partner with MHBC Planning Limited. Mr. Theodore is a Registered Professional Planner and has been practicing land use planning since 2002.

2. The City called Mark LaHay, a Planner II at the City. Mr. LaHay is a Registered Professional Planner and has been practicing land use planning since 1989.

7The Tribunal also heard from two witnesses that proffered evidence pertaining to transportation. Each witness was qualified differently based on their respective areas of expertise, as follows:

1. The Appellant called Swan Im, a Senior Transportation Planner with Tranplan Associates. Mr. Im is a Member of the Institute of Transportation Engineers and has been practicing transportation planning since 1986. He was qualified by the Tribunal to provide expert opinion evidence on matters pertaining to transportation planning.

2. The City called David Angelakis, a Senior Project Manager with R.J. Burnside and Associates Limited. Mr. Angelakis is a Member of the Institute of Transportation Engineers, a Certified Engineering Technologist, and an active Member of the Ontario Traffic Council. He has been practicing transportation planning and transportation engineering since 1989. Mr. Angelakis was qualified by the Tribunal to provide expert opinion evidence on matters pertaining to transportation planning, transportation engineering, and transportation safety.

Participant

8The Tribunal is in receipt of and has considered a Participant Statement from Patti Kramp, who was conferred Participant Status at a prior Case Management Conference for this matter. Ms. Kramp owns the property directly across the road from the Subject Lands. She is primarily concerned with the condition of Old Mill Road and its ability to accommodate increased traffic resulting from the proposed development.

Modified ZBA

9Attached to the Witness Statement of Mr. Theodore was a modified version of the Adopted ZBA (“Modified ZBA”) that, in his opinion, would remedy the concerns of the Appellant while maintaining the intended outcome of the Adopted ZBA. Generally, the Modified ZBA:

a) Removes the holding symbol for the use of existing structures;

b) Relies on the existing definition for a Place of Worship in the ZBL;

c) Introduces a new definition for a Religious Education Centre;

d) Increases the maximum permitted gross floor area of a Religious Education Centre on the Subject Lands from 550 square metres (“m²”) to 1,143 m²;

e) Provides flexibility as to which phase of development occurs first; and

f) Limits the extent of non-permitted uses to those not accessory to the uses permitted by the Modified ZBA.

ISSUES

10Neither the City nor the Appellant oppose the change of land use on the Subject Lands. To that end, both the Adopted ZBA and the Modified ZBA (together, “ZBAs”) permit the following:

• A Religious Education Centre with a maximum of 15 bedrooms;

• A maximum of six meditation huts with single rooms for sleeping accommodation and a maximum cumulative floor area of 100 m²; and

• A Place of Worship with a maximum floor area of 363 m² and a maximum of seven bedrooms for overnight accommodation.

11Messrs. Theodore and LaHay agree that both ZBAs have appropriate regard to matters of provincial interest as set out in s. 2 of the Act, are consistent with the Provincial Policy Statement, 2020 (“PPS”), and conform to the Growth Plan for the Greater Golden Horseshoe, 2019, as amended (“Growth Plan”).

12What is in dispute is the form of the ZBAs and the provisions pertaining to the permitted uses. Accordingly, the following issues became the focus of the Hearing:

1. Whether the extent and type of holding provisions in the ZBAs are appropriate, particularly with respect to:

a. Improvements to Old Mill Road;

b. Site servicing; and

c. Existing Structures.

2. Whether the maximum floor area for the Religious Education Centre in each of the ZBAs is appropriate; and

3. Whether the non-permitted uses listed in the Adopted ZBA are appropriate.

Revised Zoning By-law Amendments

13Following the conclusion of the Hearing, counsel for each party submitted revised versions of their respective ZBAs to the Tribunal. The revised Modified ZBA submitted by the Appellant (“Appellant’s Revised ZBA”) is attached hereto as Schedule 1. The revised Adopted ZBA submitted by the City (“City’s Revised ZBA”) is attached hereto as Schedule 2.

14The revised versions of the ZBAs (together, “Revised ZBAs”) incorporate revisions proffered or conceded by the expert witnesses in response to the issues. Accordingly, the following analysis focuses on the Revised ZBAs to examine the issues listed in Paragraph [12], above.

ANALYSIS AND FINDINGS

Site and Area Context

15The Subject Lands consist of approximately 40 hectares of primarily agricultural land and contain a single detached dwelling, a garage containing an accessory dwelling unit with kitchen and bathroom facilities, and six small sleeping cabins.

16The Subject Lands do not have municipal services and instead utilise private septic systems and well water. The accessory dwelling unit within the existing garage was constructed without a change in use permit and uses an unapproved septic system. The sleeping cabins were constructed without the benefit of a building permit(s).

17The Subject Lands are located on the east side of Old Mill Road, north of Pigeon Creek Road. The northern boundary of the Subject Lands marks the approximate northern terminus of the municipally maintained portion of Old Mill Road. Further north, Old Mill Road is an unassumed and unmaintained road. Accordingly, a hammerhead turnaround – more akin to two offset opposing gravel driveways than a formal turnaround – is located at the northernmost entrance to the Subject Lands. Between the southern boundary of the Subject Lands and Pigeon Creek Road, Old Mill Road traverses a large Provincially Significant Wetland (“PSW”) that extends to the west and east.

18The surrounding area context includes rural residential lots, natural heritage features, and Pigeon Creek to the north; natural heritage features including woodlots and wetlands to the east; a rural residential lot and natural heritage features (including the aforementioned PSW) to the south; and agricultural uses to the west.

Issue 1: Holding Provisions

19Subsections 36(1) and (2) of the Act state the following:

Holding provision by-law

36(1) The council of a local municipality may, in a by-law passed under section 34, by the use of the holding symbol “H” (or “h”) in conjunction with any use designation, specify the use to which lands, buildings or structures may be put at such time in the future as the holding symbol is removed by amendment to the by-law. R.S.O. 1990, c. P.13, s. 36 (1).

Condition

(2) A by-law shall not contain the provisions mentioned in subsection (1) unless there is an official plan in effect in the local municipality that contains provisions relating to the use of the holding symbol mentioned in subsection (1). R.S.O. 1990, c. P.13, s. 36 (2).

20In accordance with s. 36(2) of the Act, Section 34.6 of the COP states the following:

The City when passing a zoning by-law, may, by use of the Holding Symbol "H" together with a specific zone category, specify the use to which land, buildings or structures in areas so identified may be used until the Holding Symbol is removed by an amending By-law.

The Holding Symbol may be used in a zoning by-law to meet or achieve any of the following objectives:

• to recognize or require the phasing of development;

• to encourage development by recognizing an area suitable for a use permitted within the applicable designation under this Plan, pending the imminent provisions and allocation of water, sewage or any municipal service necessary to support development; or

• to recognize a specific development site for a particular use or development pending the completion of related matters deemed necessary by the municipality such as: servicing or development agreements; site plans; grading and drainage plans; mitigation measures for drainage, sediment or erosion control; surveys; or any technical study.

The application of the Holding Symbol will be limited to situations where Council is satisfied that the details of the development are not so uncertain or complex that they pose an insurmountable obstacle for the proponent or the municipality to overcome.

In the case of servicing, the Holding Symbol should not be applied where servicing capacity does not exist or the potential for future capacity has not been approved by the City.

Prior to passing a by-law to remove a Holding Symbol, the City shall ensure that:

• the development is consistent with the orderly development of the municipality;

• adequate municipal services are available for the proposed development;

• the owner or applicant has satisfied all requirements identified by the municipality and any agreements necessary to address municipal concerns and servicing requirements have been entered into;

• the Owner has satisfied the requirements of the municipality or any other agency, having jurisdiction and having identified concerns, that the lands or the proposed uses are, or can be adequately protected from any physical hazard or environmental degradation by methods that are consistent with accepted engineering, environmental management or resource management practices; and

• the Owner has satisfied any requirements of the City with respect to use or access to municipal roads or facilities and has entered into any agreements or obtained any necessary permits in that regard.

21Instrumental to the Tribunal’s findings on the proposed holding provisions in the Revised ZBAs is Re Toronto (City) Official Plan Amendment 333, 1986 CarswellOnt 3656 (O.M.B.) (“Re Toronto”), submitted by both the Appellant and the City as part of their respective Books of Authorities for this Hearing.

22In Re Toronto, the Ontario Municipal Board found, at Paragraph 113, that the following principles should be regarded in determining the appropriateness of the use of holding symbols enacted pursuant to s. 36 of the Act:

a) the need for the holding policies and provisions should be demonstrated;

b) policies relating to the use of the holding symbol must be contained in the official plan;

c) the by-law in which the holding symbol is to be employed should be sufficiently complete so as to represent appropriate zoning controls for the lands when the holding symbol is removed; and

d) the permitted uses and regulations contained in the zoning by-law in which the holding symbol is to be employed should be shown to be consistent with proper principles of community planning. In this regard, it should be demonstrated that potential use impacts, conflict problems and servicing deficiencies relating to the proposal have been identified, and that such problems are either addressed in the by-law or are capable of resolution through feasible measures within the powers of council under s. [36], s. [41] and other applicable legislation, if any.

Issue 1a: Improvements to Old Mill Road

Appellant’s Revised ZBA

23The Appellant’s Revised ZBA includes the following transportation-related requirements for the removal of the (H1) holding symbol associated with the Religious Education Centre and meditation huts:

a. Submission of a transportation impact study inclusive of investigation of any required road improvements to Old Mill Road along the frontage of 344 Old Mill Road up to the northernmost site entrance of the proposed development on Old Mill Road;

d. Execution of an agreement for any required road improvements demonstrated as necessary for development of 344 Old Mill Road in the transportation impact study required in 10.4(tt)(II)(a) and any phasing, if required.

24The Appellant’s Revised ZBA also includes the following transportation-related requirement for the removal of the (H2) holding symbol associated with the Place of Worship:

a. Completion of any required road upgrades required to accommodate a Place of Worship, if required and in accordance with the executed agreement described in 10.4(tt)(II)(d);

City’s Revised ZBA

25Perhaps the most contentious issue at this Hearing was the following requirement for the removal of the (H1) holding symbol associated with the use of existing structures, including the six meditation huts, in the Adopted ZBA:

a) City approval of a road design to include road improvements to widen and raise Old Mill Road from Pigeon Creek Road to the property entrance inclusive of a municipal turn around as required, entrance design and location, cost estimates, and posting of full road reconstruction securities;

26That provision has notably been struck from the City’s Revised ZBA and replaced with the following:

a) Submission of a transportation [impact] study that includes an investigation of any required road improvements to Old Mill Road, from Pigeon Creek Road to the northernmost site entrance of the proposed development on Old Mill Road to the satisfaction of the City. The investigation is to include a functional analysis for vehicle access for expected Site related vehicles and City maintenance vehicles on Old Mill Road, including the hammerhead at the northernmost site entrance of the proposed development on Old Mill Road and the Site’s driveways;

27The City’s Revised ZBA also requires a “Proposed phasing plan for road improvements” for the removal of the (H1) holding symbol and, “Completing required road upgrades to the satisfaction of the City” for the removal of each of the (H2) and (H3) holding symbols associated with the Religious Education Centre and the Place of Worship, respectively.

Submissions and Analysis

28The Tribunal notes that the transportation-related holding provisions in the two Revised ZBAs are similar. However, the Appellant’s Revised ZBA does not require:

a) The investigation of required road improvements south to Pigeon Creek Road, beyond the frontage of the Subject Lands;

b) The express inclusion of a functional analysis for vehicle access for expected site-related vehicles and City maintenance vehicles on Old Mill Road, including the hammerhead at the northernmost site entrance of the Subject Lands; or

c) The completion of any required road upgrades to accommodate the Religious Education Centre.

29Both Messrs. Im and Angelakis agree that in its current condition, Old Mill Road is a gravel, two-lane municipal rural local road that generally ranges in width from approximately 5.2 metres (“m”) just north of Pigeon Creek Road to approximately 4.2 m at the northern boundary of the Subject Lands. The uncontested visual evidence submitted to the Tribunal and marked as Exhibit 2 shows that most of that section of Old Mill Road is approximately 4.6 m wide.

30From a transportation planning perspective, it is Mr. Im’s opinion that there is enough existing capacity along Old Mill Road to accommodate the Appellant’s proposed uses, which he proffered should only result in limited increases to traffic during day-long, weekend-long, and week-long retreats. It is his further opinion that because the retreats are only intended to occur during the summer months, the average traffic throughout the year – or Annual Average Daily Traffic (“AADT”) – will remain low, representing an increased forecast of only three additional daily vehicles on an average annual basis.

31While the increase in AADT resulting from the proposed programing may indeed be low, it strikes the Tribunal that in this instance, relying on AADT alone may not be a dependable measure of the potential traffic impacts from the proposed development. This was supported by the evidence of Mr. Angelakis, who proffered that the reliance on AADT, and the assertion that it will only result in an average of three additional vehicles per day, dilutes the impacts of the proposed development.

32Firstly, there is nothing in either of the ZBAs or Revised ZBAs to prevent the Appellant from expanding their programing beyond the summer months, nor is the Tribunal suggesting that there should be. However, if an increase to the currently anticipated program frequency were to occur, the AADT would likewise increase.

33Secondly, the evidence before the Tribunal is that the Subject Lands are intended to accommodate sleeping space for 45 to 55 people at full buildout, and up to 60 participants plus three to four visiting teachers may need to access the Subject Lands for day-long programs (Exhibit 1, Vol. 4, pp. 150 and 178). The very nature of the retreat-based programing suggests that in most cases, all vehicles associated with the proposed uses will be arriving at and departing from the Subject Lands at generally the same time. That was confirmed by both Messrs. Im and Angelakis.

34With that finding, the Tribunal turns to and relies on the expert opinion evidence proffered by Mr. Angelakis, the only witness at the Hearing qualified to provide expert opinion evidence in the areas of transportation engineering (including the design of roads) and transportation safety.

35Mr. Angelakis proffered that road surface widths, or “platform widths”, are typically comprised of (1) a travelled way, which is the width that vehicles travel on, and (2) the shoulders, which are typically used for emergency services. In a rural context, shoulders often provide a buffer between the travelled way and ditches on either side of the road. However, Old Mill Road does not contain any shoulders north of Pigeon Creek Road.

36Mr. Angelakis further proffered that, according to the Transportation Association of Canada’s Geometric Design Guide for Canadian Roads, the minimum practical lower limit lane width for rural roads is 2.7 m, resulting in a two-lane travelled way width of 5.4 m. However, the “minimum tolerable surface width” identified in the City’s Road Needs Study Report, 2021 (“RNS”), based on Ministry of Transportation of Ontario guidelines, is 5.0 m. Under either guideline, certain road improvements are needed along Old Mill Road north of Pigeon Creek Road to ensure safe access to and from the Subject Lands.

37To demonstrate this need, Mr. Angelakis provided the Tribunal with several examples of average vehicle widths based on the most popular vehicles by sales. He proffered that the average width of sedans and medium-sized SUVs, including sideview mirrors, is 1.996 m. Large SUVs and trucks have an average width of 2.478 m. The combined passing width of these average vehicles, assuming their mirrors touch as they pass, is therefore 4.0 m to 5.0 m.

38It was Mr. Im’s evidence that a variety of vehicles may deliver people and services to the Subject Lands, including maintenance and construction vehicles, school buses, pickup trucks, minibuses, large vans, and passenger vehicles. A typical school bus, proffered Mr. Angelakis, is 2.64 m wide. Two passing school buses would therefore require a minimum platform width of 5.3 m. Fire engines, he proffered, typically range between 3.0 m to 3.5 m wide.

39Both Messrs. Im and Angelakis agreed that during peak hour periods, it is reasonable to assume that there will be inbound and outbound vehicle trips occurring at the same time, resulting in the need for vehicles to pass each other on Old Mill Road. Accordingly, it is Mr. Angelakis’ opinion that the existing widths of Old Mill Road north of Pigeon Creek Road are not functional for existing traffic, will not allow many of the most common vehicles to pass each other safely, and will become more problematic with any increase in traffic, thereby increasing the likelihood of collisions and/or vehicles swerving into the roadside ditches to avoid oncoming traffic. This, in his opinion, would be exacerbated during foul weather or winter conditions. It is therefore his opinion that a minimum width of at least 5.0 m – and preferably 6.0 m to 7.0 m – is required to mitigate these concerns.

40It is also the opinion of Mr. Angelakis that the current “pseudo-hammerhead” at the north site entrance of the Subject Lands is substandard and cannot adequately accommodate municipal maintenance vehicles or the types of vehicles described above.

Findings

41The Tribunal finds the requirement in the City’s Revised ZBA for the transportation impact study to include an investigation of the functional analysis for vehicle access for expected site-related and City maintenance vehicles on Old Mill Road, including the hammerhead at the northernmost site entrance of the proposed development on Old Mill Road and the access driveways to the Subject Lands, to be necessary, contemplated by s. 34.6 of the COP, and consistent with proper principles of community planning. Such an investigation as part of the transportation impact study will provide both Parties with an understanding of the required improvements to Old Mill Road to ensure that the Subject Lands can be accessed effectively and safely by the traffic that will be generated by each phase of the proposed development.

42The Tribunal further finds that the requirement in the City’s Revised ZBA for the transportation impact study to include an investigation of any required road improvements to Old Mill Road from Pigeon Creek Road to the northernmost site entrance of the Subject Lands is necessary, contemplated by s. 34.6 of the COP, and consistent with proper principles of community planning. Simply put, the only way to access the Subject Lands in a vehicle is to drive north along Old Mill Road from Pigeon Creek Road. To only identify required improvements to Old Mill Road immediately adjacent to the Subject Lands would be to ignore this reality. If the Subject Lands are to be accessed by the types and range of vehicles described by Mr. Im, it is in the public interest that they be able to do so safely, which requires safe access to and from Pigeon Creek Road.

43Finally, the Tribunal finds that the requirement in the City’s Revised ZBA for the completion of any required road upgrades to accommodate the Religious Education Centre, similar to the requirement in the Appellant’s Revised ZBA for the Place of Worship, is necessary, contemplated by the policies of s. 34.6 of the COP, and is consistent with proper principles of community planning. Namely, that all vehicles accessing the Subject Lands for the purposes of utilising the Religious Education Centre are able to do so safely and without compromising the public interest.

44On a related note, it was the Appellant’s submission that the City has an obligation to maintain its roads to the minimum standards established in the RNS. The Tribunal does not disagree. Old Mill Road is currently substandard to serve existing uses and City vehicles, and it is not the Appellant’s responsibility to improve Old Mill Road for the sole benefit of the City. However, it was submitted to the Tribunal, and the Tribunal accepts, that the RNS is a screening tool used to identify and prioritise road improvements throughout the City. The City does not have an obligation to prioritise improvements to Old Mill Road to accommodate the Appellant’s development proposal or timelines, nor to improve the condition of Old Mill Road beyond minimum standards to accommodate certain vehicle types that will only travel this section of Old Mill Road because of the proposed development.

45In considering the above, the Tribunal finds that the requirement in the Appellant’s Revised ZBA for the execution of an agreement for any required road improvements demonstrated to be necessary for the development of the Subject Lands through the transportation impact study is necessary and will assist the Parties in determining the appropriate timing, funding, responsibility, and phasing of any required improvements to Old Mill Road.

Issue 1b: Site Servicing

Appellant’s Revised ZBA

46The Appellant’s Revised ZBA contains the addition of holding provisions requiring the submission of functional servicing reports for the use and functioning of all uses, buildings and structures associated with both the (H1) holding symbol (for the Religious Education Centre and meditation huts) and the (H2) holding symbol (for the Place of Worship), to the satisfaction of the City.

City’s Revised ZBA

47The City’s Revised ZBA requires the submission of the following studies and reports related to site servicing for all three phases of development prior to the removal of the first (H1) holding symbol for the intended use of the existing structures and meditation huts: (1) an updated functional servicing report; (2) a business or operational plan; (3) full architectural/structural drawings and floor plans; and (4) an updated hydrogeological assessment.

48The City’s Revised ZBA further requires confirmation of detailed servicing design and building occupancies prior to the removal of each of the subsequent (H2) and (H3) holding symbols for the Religious Education Centre and Place of Worship, respectively.

Submissions and Analysis

49The Appellant’s position is that the use of the existing residential dwelling and its accessory structure for anything other than their originally intended uses, including the proposed education and retreat-based uses, will require a change of use permit, a septic permit, and an occupancy certificate (all issued pursuant to the Building Code Act), which together will require an assessment of the current structures and septic system against the anticipated building occupancies for any proposed new uses. It was Ms. Evola’s submission, supported by the opinion of Mr. Theodore, that septic design for the Religious Education Centre and Place of Worship will be evaluated through the subsequent site plan approval processes. It is therefore the Appellant’s position that adequate servicing can and will be secured for all three phases of development without the need for the City’s proposed holding provisions.

50Mr. Theodore directed the Tribunal to s. 3.01 of the City’s Site Plan By-law, which requires the submission of plans showing the location of all buildings and structures to be erected and all facilities and works to be provided in conjunction with same. In his opinion, any site plan application related to development of the Religious Education Centre or Place of Worship will be required to show site servicing as “facilities and works”. Further, the Appellant will be required to provide updated servicing reports at each phase of development to ensure the proper evaluation of same.

51In Mr. Theodore’s opinion, the requirement to provide servicing design relating to full build out of the Subject Lands, prior to the removal of the first (H1) holding symbol, to allow the Appellant to use the existing buildings and meditation huts for retreat-based uses, “[…] poses an insurmountable requirement contrary to section 34.6 of the Official Plan.”

52The City submits that Phase 1 of the proposed development includes the construction of a new main septic system that will be used for multiple phases of development. It is therefore the City’s position that there is a need for the Appellant to confirm servicing design for the whole of the development, including the existing buildings, as a condition of the (H1) holding provision.

53Mr. LaHay proffered that the requirement for a business or operation plan has resulted from the City’s review of the Applications, in which it was noted by the City’s Building Division Sewage Program that confirmation of the maximum allowable participants on the Subject Lands is required to ensure that accurate total daily sewage flows can be captured. The full architectural/structural drawings and floor plans, he proffered, are required to confirm that stormwater management designs for the Subject Lands will result in no negative impacts on surrounding properties.

54With respect to the requirement for an updated hydrogeological assessment, it was noted by both Messrs. Theodore and LaHay that additional hydrogeological work may be required prior to development of the proposed uses on the Subject Lands. However, both planners proffered that submission of a new hydrogeological study could be requested by the City during the site plan approval process.

Findings

55The Tribunal is satisfied that the holding provisions pertaining to servicing in the City’s Revised ZBA fall within the scope of potential holding provisions contemplated by s. 34.6 of the COP. However, the Tribunal finds that requiring a comprehensive servicing plan inclusive of a business or operational plan, full architectural/structural drawings and floor plans, and an updated hydrogeological assessment for all phases of development prior to the use of the existing structures may ultimately prove to be a futile exercise undertaken at considerable expense to the Appellant.

56OPA 24 and the Revised ZBAs permit the Religious Education Centre and Place of Worship on the Subject Lands, subject to their respective holding provisions. However, the Appellant is not obligated to ever construct those uses. Should the Appellant ultimately decide not to build the Religious Education Centre or Place of Worship, elect to construct either building smaller than the permitted maximums, or seek to connect each building to its own independent septic system, the servicing requirements for the Subject Lands will likely change. It is at the Appellant’s own peril should they underestimate their future servicing requirements in the initial phases of development.

57Further, the Tribunal does not find that the need for the City’s holding provision has been adequately demonstrated. In the first phase of development, the Appellant is required by the Building Code Act to confirm that the change in use, servicing, and occupancy of the existing buildings are appropriate and sufficient. The Appellant’s Revised ZBA then requires the submission of functional servicing reports for each subsequent phase of development. Detailed servicing design, building occupancies, full architectural/structural drawings and floor plans, and updated hydrogeological assessments are either required by or can be requested through the Site Plan Application process.

58The Tribunal therefore prefers the holding provisions for servicing requirements in the Appellant’s Revised ZBA and finds that they meet the tests set out in Paragraph [21] of this Decision.

Issue 1c: Existing Structures

Appellant’s Revised ZBA

59The Appellant’s Revised ZBA does not contain any holding provisions for, nor does it speak to in any capacity, the use of existing structures on the Subject Lands. However, section “ss” of the Appellant’s Revised ZBA does state that land zoned “A1-S45” may be used for a Religious Educational Centre, a Place of Worship, and retreat-based uses. Holding provisions are then applied in section “tt” of the Appellant’s Revised ZBA for lands zoned “A1-S45(H1)(H2)” for a Religious Education Centre (H1) and a Place of Worship (H2). Only section “tt” contains provisions for the maximum floor area and number of bedrooms for overnight accommodation.

60Presumably, it is the intent of the Appellant’s Revised ZBA that the existing structures can be used for any of the uses listed in section “ss”, and that only new structures are subject to the holding provisions of section “tt”. However, the Appellant’s Revised ZBA is unclear in that regard.

City’s Revised ZBA

61The City maintains that the use of the existing single detached dwelling and accessory dwelling in the existing garage for “educational and retreat based uses” should be subject to holding provisions. Accordingly, the City’s Revised ZBA requires the submission of the aforementioned transportation impact study (including functional analysis for vehicle access) and the four aforementioned studies and reports related to site servicing as a condition of removal of the (H1) holding symbol.

62The City’s Revised ZBA also requires that the Appellant enter into a secured site plan agreement with the City for the use of existing structures prior to the removal of the (H1) holding symbol.

Submissions and Analysis: Holding Provisions for Existing Structures

63As noted in Paragraph [49] of this Decision, Ms. Evola submitted that the use of the existing residential dwelling and its accessory structure for anything other than their originally intended uses will require a change of use permit, a septic permit, and an occupancy certificate pursuant to the Building Code Act. It is therefore her submission that the holding symbol associated with the existing uses is not appropriate or necessary.

64Ms. Evola directed the Tribunal to Waterloo West Community Assoc. v. Waterloo (City), 2020 CarswellOnt 8763 (L.P.A.T.) (“Waterloo West”), in which the by-law in question permitted the use of the existing buildings on the proponent’s site for spiritual purposes right away, while the proponent took additional time to marshal resources to fund a new and expanded development on the site. In Ms. Evola’s submission, that Decision exemplifies a more reasonable and appropriate approach to site-specific planning that thoughtfully balances the principles of expedient development with the orderly synchronisation of new, expanded uses.

65In Mr. Theodore’s opinion, s. 34.6 of the COP connects the use of a holding provision to development, and not to the use or reuse of existing buildings. It is therefore his opinion that no holding provisions should apply to the existing buildings.

66At Paragraphs 6.30 and 6.31 of his Witness Statement, Mr. Theodore provides his opinion that the Adopted ZBA errs in applying holding provisions to educational and retreat-based uses within the existing structures – and is likewise not in conformity with the COP – because OPA 24 contains specific provisions for the Religious Education Centre and Place of Worship, “but does not seek the same restrictions on the existing buildings.” He states that, “The Zoning By-law is identified in the Official Plan Amendment 24 as being the implementing instrument, but only for the purposes of the Mediation [sic] Huts, Education Centre and Temple.”

67The Tribunal notes that OPA 24 does not actually identify the zoning by-law as the implementing instrument for any of the permitted uses, nor does it need to. It is a well-established tenet of the Act – and trite to say – that zoning by-laws are indeed the implementing instruments for land use policies in an official plan. It has long been held by the Tribunal and Courts that official plans do not have the effect of implementing their own policies.

68In response to Mr. Theodore’s assertion that s. 34.6 of the COP connects the use of a holding provision to development, and not to the use or reuse of existing buildings, Mr. LaHay directed the Tribunal to the definition of “Development” in s. 30 of the COP, which states (emphasis added):

Development:

means the creation of a new lot, a change in land use, or the construction of buildings and structures, requiring approval under the Planning Act; but does not include activities that create or maintain infrastructure authorized under an Environmental Assessment process; or works subject to the Drainage Act.

69It is therefore Mr. LaHay’s opinion that the reuse of the existing buildings for educational or retreat-based uses constitutes development in the COP, and the use of holding provisions for same is appropriate.

70It was Ms. Biggar’s submission that s. 36(1) of the Act permits the City to pass a zoning by-law with holding provisions to delay the use of lands, buildings, or structures – not the built form associated with the use – until the holding symbol(s) is removed. In other words, the fact that buildings exist on the site is irrelevant, as it is the use of said buildings that is governed by the holding provision by-law.

71In response to Ms. Evola’s submission on Waterloo West, Ms. Biggar noted that there is no indication in that Decision as to whether there were outstanding issues or unanswered questions related to the intended use of the existing buildings. There are, however, outstanding issues in the case currently before the Tribunal.

Submissions and Analysis: Site Plan Agreements for Existing Structures

72The Tribunal was directed to the following subsections of s. 41 of the Act:

Site plan control area

41 (1) In this section,

“development” means the construction, erection or placing of one or more buildings or structures on land or the making of an addition or alteration to a building or structure that has the effect of substantially increasing the size or usability thereof […]

Establishment of site plan control area

(2) Where in an official plan an area is shown or described as a proposed site plan control area, the council of the local municipality in which the proposed area is situate may, by by-law, designate the whole or any part of such area as a site plan control area. R.S.O. 1990, c. P.13, s. 41 (2).

Approval of plans or drawings

(4) No person shall undertake any development in an area designated under subsection (2) unless the authorized person […] has approved one or both […] of the following:

1. Plans showing the location of all buildings and structures to be erected and showing the location of all facilities and works to be provided in conjunction therewith […]

2. Drawings showing plan, elevation and cross-section views for each building to be erected […]

73The Tribunal was also directed to s. 34.7 of the COP, which states, in part:

34.7. SITE PLAN CONTROL

The Council of the City of Kawartha Lakes hereby establishes the entire City as a Site Plan Control Area. It may be applied to all uses except agricultural, aggregate extraction, forestry, open space and single detached residential lots.

The by law may contain provisions limiting the Site Plan Control Area to specific uses within a land use designation.

Council may in a site-specific zoning by-law amendment determine that site plan control shall apply in order to ensure certain facilities and services are provided in keeping with the requirements of the Planning Act. […]

74It is Mr. Theodore’s opinion that, according to the COP and the City’s Site Plan By-law No. 2016-069, the Subject Lands – which are currently zoned for agricultural uses – are not subject to Site Plan Control by default. Rather, they must be designated as such through a site-specific zoning by-law amendment.

75Both Messrs. Theodore and LaHay agree that Site Plan Control is appropriate for the meditation huts (which are existing structures but were constructed without a building permit), the Religious Education Centre, and the Place of Worship. The Tribunal deduces from this that, while the Subject Lands may not be subject to Site Plan Control by default, the experts agree that they are in fact appropriately made subject to Site Plan Control through the site-specific ZBAs in accordance with s. 34.7 of the COP. Where the experts disagree is whether Site Plan Control should apply to the existing single detached house and accessory dwelling in the existing garage.

76The City’s requirement for a secure site plan agreement for the use of the existing buildings seems to rest on the assertion that the City is unclear whether upgrades and expansion to the existing buildings may be required. To that end, it is Mr. LaHay’s opinion that a holding provision for site plan approval should remain as a condition of removal of the (H1) holding symbol, “if existing buildings are anticipated to be upgraded or expanded, as this constitutes development where site plan control would apply.”

77It is Mr. LaHay’s further opinion that the definition of “development” in the COP (transcribed in Paragraph [68], above) includes a change in land use, and therefore all phases of development on the Subject Lands should be subject to Site Plan Control.

78Mr. Theodore proffered that it is the intent of the Appellant to maintain the existing structures in their current state, and no renovations, additions, or alterations to same are planned. It is therefore the Appellant’s position that it is not appropriate to include a holding provision requiring the Appellant to enter into a secured site plan agreement with the City for the reuse of the existing structures, as doing so does not constitute development for the purposes of s. 41 of the Act.

Findings

79With respect to the use of holding provisions for new uses in existing structures, the Tribunal agrees with the submissions of the City and finds that same is permitted by both the COP and the Act.

80OPA 24 states that specific provisions for the “Education Centre and temple” (i.e., Religious Education Centre and Place of Worship), including the size of buildings and number of rooms, shall be outlined in the implementing zoning by-law. The size of the existing dwelling and garage is known, as is the number of rooms in each. It is therefore reasonable that OPA 24 does not specifically require the implementing zoning by-law to include similar provisions for those structures. However, that should not be interpreted to suggest that no other zoning provisions may apply to any of the permitted uses. To the contrary, both Revised ZBAs include a cumulative size for the meditation huts and other provisions unrelated to built form that are not explicitly required by OPA 24.

81As previously noted in this Decision, the evidence before the Tribunal is that even for day-long programs, up to 60 participants plus three to four visiting teachers may need to access the Subject Lands via individual cars, carpools, vans and/or buses. By their very nature, day-long programs will not require overnight accommodations, so its plausible that the existing structures could be used for that purpose. Indeed, both Revised ZBAs permit “retreat-based uses” in the existing structures.

82It also occurs to the Tribunal that the intended use of the existing structures for “educational and retreat-based uses” will effectively establish the existing structures as a Religious Education Centre, which is defined in each of the Revised ZBAs as, “a building or part thereof in which facilities are provided for such purposes as meeting for educational, religious, social, or recreational purposes and may include a kitchen, dining area, meeting areas, offices, washroom facilities and bedroom accommodations”.

83Accordingly, the Tribunal finds that the following provisions pertaining to improvements to Old Mill Road, as determined to be appropriate in Paragraphs [41] to [45] of this Decision, are necessary prior to the removal of the (H1) holding symbol for the use of the existing detached house and accessory dwelling unit in the existing garage for retreat-based uses:

a) Submission of a transportation impact study that includes an investigation of any required road improvements to Old Mill Road, from Pigeon Creek Road to the northernmost site entrance of the proposed development on Old Mill Road, to the satisfaction of the City. The investigation is to include a functional analysis for vehicle access for expected Site related vehicles and City maintenance vehicles on Old Mill Road, including the hammerhead at the northernmost site entrance of the proposed development on Old Mill Road and the Site’s driveways;

b) Execution of an agreement for any required road improvements demonstrated as necessary for development of 344 Old Mill Road in the transportation impact study required in 10.4(tt)(II)(a) and any phasing, if required.

84With respect to the proposed requirement for a secured site plan agreement for the use of existing structures on the Subject Lands, the Act is clear that the approval of plans or drawings required under s. 41(4) of the Act in relation to Site Plan Control only applies to development as defined in that section. In that regard, the Tribunal accepts the submissions of the Appellant that the proposed use of the existing buildings does not meet that definition. The Tribunal therefore finds that a holding provision requiring a secured site plan agreement for the existing structures is unnecessary and counter to the intent of the Act.

Issue 2: Maximum Floor Area of Religious Education Centre

Revised ZBAs

85The Appellant’s Revised ZBA permits a maximum floor area of 1,143 m² for the Religious Education Centre. The City’s Revised ZBA permits a maximum floor area of 550 m².

Submissions and Analysis

86The Appellant’s applications initially sought to permit a Religious Education Centre with a maximum floor area of 1,145 m² and a maximum number of 25 rooms for accommodation. The applications were then revised to reduce the maximum floor area to 550 m² with a maximum number of 15 rooms for accommodation, before being revised again to reflect the initial maximum floor area of 1,145 m², but with no increase to the maximum number of 15 rooms for accommodation. The maximum floor area indicated in the Appellant’s Revised ZBA is a slightly modified 1,143 m².

87In Mr. Theodore’s opinion, 1,143 m² is the appropriate size for the Religious Education Centre, which will provide enough space for the existing membership while accommodating planned growth, thereby allowing the facility to operate over the long term. He further opined that the holding provisions for the Religious Education Centre requiring servicing upgrades and site plan approval will ensure capacity is available to support the development.

88Mr. LaHay proffered that the smaller floor area of 550 m² permitted by the Adopted ZBA (which has been carried forward in the City’s Revised ZBA) is intended to, “[…] appropriately limit the scale or density of the development to align with the available information submitted with respect to servicing capacity and design.” He proffered that a smaller permitted floor area will limit the occupancy of the habitable space, thereby limiting the required servicing.

Findings

89It strikes the Tribunal that limiting the permitted size of the Religious Education Centre for the sole purpose of controlling private servicing capacity is unnecessary, particularly given the proposed holding provisions pertaining to servicing in the Appellant’s Revised ZBA, which will ensure that adequate servicing is provided by requiring (1) the submission of a functional servicing report for the use and function of all uses, buildings and structures associated with the Religious Education Centre, and (2) the execution of a site plan agreement, which will confirm the detailed servicing plans required for same.

90The Tribunal therefore finds that the maximum floor area of 1,143 m² for the Religious Education Centre is appropriate and reasonable.

Issue 3: Non-Permitted Uses

Appellant’s Revised ZBA

91The Appellant’s Revised ZBA includes a provision that lists the following non-permitted uses on the Subject Lands:

Uses not accessory to educational, religious and retreat based uses or uses permitted in subsection 10.1.

City’s Revised ZBA

92The City’s Revised ZBA lists the following non-permitted uses:

a) A wedding facility; or

b) Hosting of outside events not accessory to the otherwise permitted educational and retreat based uses.

Submissions and Analysis

93The Appellant’s position is that the terms “wedding facility” and “outside event” are vague and uncertain, the meaning or application of which could not be ascertained by a reasonably intelligent reader or well-intentioned citizen. To that end, it is Mr. Theodore’s opinion that the non-permitted uses listed in the Adopted ZBA are vague, overly broad, and do not represent good planning.

94Mr. Theodore proffered that neither “wedding facility” nor “outside events” are defined terms in the ZBL, neither term is included in the list of permitted uses in the Rural General (A1) Zone (therefore there is no need to explicitly list them as non-permitted uses), and that, in his opinion, the inclusion of either term as a non-permitted use could unduly restrict the uses permitted through OPA 24 by preventing outdoor events for retreat-based uses and/or wedding ceremonies, which in his opinion are accessory to the permitted uses on the Subject Lands.

95The City’s position is that neither the accessory function nor primary use of the Subject Lands for weddings was considered during the application review process.

96Mr. LaHay supported this position and proffered that it is not intended that the Subject Lands be established as a wedding facility or event venue, nor should it be implied that the Subject Lands can be rented out or used for services outside of the intended retreat events. He clarified that, in his opinion, a wedding facility relates to the primary use of a property, and that permitting same on the Subject Lands would result in the need for additional onsite water and sanitary services.

97In response to Mr. Theodore’s concerns regarding the broad interpretation of “outside events”, Mr. LaHay supports the addition of the words, “not accessory to the otherwise permitted educational and retreat based uses”, which is reflected in the City’s Revised ZBA, as indicated above.

Findings

98The Tribunal accepts that the Subject Lands are not intended to serve a primary function as a wedding or event venue and is satisfied that neither of the Revised ZBAs, nor the underlying Rural General (A1) Zone, include permissions to that effect. However, both Revised ZBAs do permit a Religious Education Centre and a Place of Worship.

99A Religious Education Centre, defined in both Revised ZBAs, is intended to accommodate, among other things, meetings for religious, social, or recreational purposes. One might define a wedding in a similar manner. A Place of Worship, defined in the ZBL, includes, among other things, synagogues, church halls, and church auditoriums. One would certainly expect weddings to occur in such buildings.

100In that regard, the Tribunal finds that it is a reasonable expectation that weddings be permitted to take place accessory to the permitted uses on the Subject Lands. To that end, the Tribunal agrees with the submissions of the Appellant and the opinion of Mr. Theodore that the term “wedding facility” is vague and uncertain, and may ultimately prevent appropriate and reasonable accessory functions of the permitted uses from taking place. It should therefore not be listed as a non-permitted use.

101The Tribunal also finds the term “outside events” – even with the addition of “not accessory to the otherwise permitted educational and retreat based uses” – to be vague and uncertain. One interpretation could mean events taking place outdoors. Another could mean events held by “outside” organisations (e.g., a corporate retreat).

102The Tribunal gathers from the City’s submissions that while they are not opposed to outdoor events occurring in conjunction with the permitted uses, they are concerned with the potential for the Subject Lands to be used by anyone other than the Appellant for anything other than the Appellant’s intended purpose (i.e., Buddhist retreats). In this regard, it strikes the Tribunal that the City’s efforts to restrict uses on the Subject Lands – including weddings – have veered into the realm of attempting to zone for the user, and not the use.

103While the Appellant is a Tibetan Buddhist society, the permitted uses in both OPA 24 and the Revised ZBAs must be read independent of that fact. The permissions for a Religious Education Centre and Place of Worship – both defined terms – do not imply that the users of same must be Buddhist, nor should they. Similarly, a plain reading of “retreat-based use” – itself an ambiguous term – by a reasonably intelligent reader does not invoke the interpretation that said uses are somehow restricted to those of a religious nature or by a particular religious group.

104The Tribunal therefore prefers the Appellant’s approach to non-permitted uses, being those not accessory to the uses permitted on the Subject Lands. However, the Tribunal finds that the language in the Appellant’s Revised ZBA, being “uses not accessory to educational, religious and retreat based uses […]” to also be vague and uncertain, and not accurately reflective of the uses permitted by OPA 24 (which do not include broad permissions for “educational” or “religious” uses). Further, the Tribunal finds merit in the City’s submissions that the Subject Lands are not intended to be rented for events that are not accessory to the permitted uses.

105The Tribunal therefore directs that the non-permitted uses in the Revised ZBAs be deleted and replaced with the following:

Events not accessory to the otherwise permitted uses.

Summary of Findings

106In accordance with the findings in Paragraphs [41], [42], [43], [45], [58], [83], [84], [90], [100], and [105] of this Decision, the Tribunal directs that:

a) The use of the existing single detached dwelling, accessory dwelling unit in the existing garage, and meditation huts for retreat-based uses shall be permitted subject to the removal of the (H1) holding symbol;

b) The removal of the (H1) holding symbol shall be subject to fulfillment of the conditions listed in Paragraph [83] of this Decision;

c) A Religious Education Centre, as defined in the Appellant’s Revised ZBA, shall be permitted subject to the removal of the (H2) holding symbol;

d) The maximum permitted floor area of the Religious Education Centre shall be 1,143 m²;

e) The removal of the (H2) holding symbol shall be subject to fulfillment of the following conditions:

i. Completion of any required road upgrades required to accommodate a Religious Education Centre, if required and in accordance with the executed agreement described in Paragraph [83] of this Decision;

ii. Submission of a functional servicing report for the use and functioning of all uses, buildings and structures associated with the (H2) holding symbol, to the satisfaction of the City;

iii. Execution of a site plan agreement.

f) A Place of Worship shall be permitted subject to the removal of the (H3) holding symbol;

g) The removal of the (H3) holding symbol shall be subject to fulfillment of the following conditions:

i. Completion of any required road upgrades required to accommodate a Place of Worship, if required and in accordance with the executed agreement described in Paragraph [83] of this Decision;

ii. Submission of a functional servicing report for the use and functioning of all uses, buildings and structures associated with the (H3) holding symbol, to the satisfaction of the City;

iii. Execution of a site plan agreement.

h) Only the following uses shall be listed as Non-Permitted Uses:

i. Events not accessory to the otherwise permitted uses.

107For greater clarity, the Tribunal does not find it necessary that the removal of the (H3) holding symbol be contingent on the prior removal of the (H2) holding symbol.

108The Tribunal further directs that the uncontested provisions listed in Paragraph [10] of this Decision shall continue to apply.

CONCLUSION

109The Tribunal finds that in principle, a zoning by-law amendment inclusive of the modifications summarised in Paragraph [106] of this Decision, to permit the use of the Subject Lands for retreat-based uses, a Religious Education Centre and a Place of Worship, will have appropriate regard for matters of provincial interest as set out in s. 2 of the Act, be consistent with the PPS 2020, conform to the Growth Plan and the COP, represent good planning and be in the public interest.

INTERIM ORDER

110THE TRIBUNAL ORDERS that the appeal of the Riwoche Society is allowed in part and Zoning By-law No. 87-06 for the Town of Manvers in the City of Kawartha Lakes is to be modified in accordance with the findings of this Decision.

111THE TRIBUNAL ORDERS that final approval of the Zoning By-law Amendment shall be withheld by the Tribunal until:

a) The delivery by counsel for the City of a final revised version of the Zoning By-law Amendment reflecting all modifications described in Paragraph [106] of this Decision (“Final ZBA”) within 30 days of the date of this Interim Order; and

b) The written confirmation by counsel for the City of Kawartha Lakes and the Riwoche Society that they agree with the Final ZBA.

112The Tribunal may be spoken to in the event the Parties require the Tribunal’s assistance with respect to the Interim Orders described above and/or regarding the issuance of an Order approving the Final Version.

113This Member is seized.

“S. Dixon”

S. DIXON

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.

SCHEDULE 1