2594092 Ontario Inc. v. West Lincoln (Township), 2024 CanLII 33163

Ontario Land Tribunal

ISSUE DATE: April 12, 2024

CASE NO(S).: OLT-24-000030

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

Applicant and Appellant: Mirza Chaudhary (2594092 Ontario Inc.)

Subject: Minor Variance

Description: To permit the development of a gas station and convenience store Z-31-18

Reference Number: A15/2023WL

Property Address: 2173 Highway 20

Municipality/UT: West Lincoln/Niagara

OLT Case No.: OLT-24-000030

OLT Lead Case No.: OLT-24-000030

OLT Case Name: 2594092 Ontario Inc. v. West Lincoln (Township)

Heard: March 15, 2024 by Video Hearing

Parties and Counsel

2594092 Ontario, (Mirza Chaudhary) ("Appellant/Applicant") Counsel: Michael Cook, Narmada Gunawardana

Township of West Lincoln ("Township") Counsel: Tom Richardson

MEMORANDUM OF ORAL DECISION DELIVERED BY GREGORY J. INGRAM ON MARCH 15, 2024 AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal is an appeal filed by Mirza Chaudhary, 2594092 Ontario (the "Applicant/Appellant") under s. 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended, ("Act") against a decision of the Township of West Lincoln ("Township") Committee of Adjustment ("COA") that refused an Application for Minor Variance ("Application"). The Application affects the land known as 2173 Highway 20, West Lincoln ("Subject Property").

2The Application seeks to permit a gas station and retail space (convenience store) in an area that is designated as Good General Agricultural Lands and zoned Service Commercial 'C3' and beyond the variances requested complies with the zoning requirements ("Proposed Development").

3The Application sought six minor variances due to the "irregular shape of the property and the existing constraints" according to a report provided to the COA on November 29, 2023 ("Report"), by Township Planning Staff.

4The variances request relief from Part 7 and Part 3 of the Township's Zoning By-law No. 2017-70 ("ZBL"). The requested variances from the minimums required in Table 17, Part 7 are:

a. Front yard setback of 1 metre ("m") whereas 9 m is required;

b. Interior side yard setbacks of 1 m and 3.5 m whereas 6 m is required;

5The requested variances from Part 3 of the ZBL are:

a. A planting strip of 0.6m whereas the minimum width required is 1.5 m;

b. A single-way traffic driveway of 6 m whereas a minimum width of 3 m to a maximum width of 4.5 m is required;

c. Six parking spaces whereas a minimum of seven are required.

6The Subject Property is near three Hamlets in West Lincoln and the surrounding lands are actively farmed and include several small rural residential properties. It is currently vacant and previously used as a commercial garage, repair shop and dwelling.

7The Report to the COA supported the Application and indicated that it meets the four tests from the Act that are to be applied to a minor variance application.

8Briefly summarized, the Report indicated that the Application is consistent with the Township's Official Plan ("TOP") as the proposed gas station will serve the needs of residents in the surrounding area and those commuting to their place of employment. The Application also maintains the intent of the ZBL as the proposed variances allow for the use to function well on the uniquely shaped property while not causing any adverse impact on neighbouring properties which in their opinion, "makes the variances minor in nature." Regarding the desirability of the proposal, the Report noted that Official Plan Amendment 62 expands the Hamlet boundary of Bismark which is expected to result in increased residential growth for the area and therefore will be better served by the Proposed Development.

9Regional staff guided the site plan design related to traffic flow and supported the driveway configuration for the Proposed Development.

10The Report recommended one condition of approval:

1. That the applicant provide documentation indicating compliance with Part 8 (Sewage Systems) of the Ontario Building Code, to the satisfaction of the Township's Septic Inspector and Building Department.

11Two members of the public, who live west/northwest of the Proposed Development, attended the COA meeting and expressed concerns about potential issues with increased traffic, noise and lighting due to the proposed development.

12The COA denied the application indicating that it does not meet the four tests as set out in s. 45(1) of the Act.

13On February 27, 2024, the Tribunal was notified that a settlement had been reached between the Parties and the Minutes of Settlement were received at which time it was requested that the Settlement Proposal be heard at the scheduled CMC.

14In accordance with Rule 12 of the Tribunal's Rules of Practice and Procedure, the Tribunal converted these proceedings to consider the variances on the terms of the Settlement Proposal.

SETTLEMENT PROPOSAL

15The Settlement Proposal permits the requested variances as noted in paragraphs four and five, the condition from paragraph ten along with two additional conditions listed here:

1. That prior to the issuance of a building permit, Site Plan approval be received as per the Township's Site Plan Control By-law; and

2. The applicant shall address, as part of site plan approval, (amongst other items) lighting, noise and traffic concerns noted by the neighbours to the satisfaction of the appropriate approval authority and staff expertise as part of site plan approval.

16The Settlement resolves the Appeal launched by 2594092 Ontario and is supported by the uncontested sworn Affidavit in land use planning evidence of Brian Treble, Director of Planning and Building with the Township and Michael Gagnon who are both Registered Professional Planners and members of the Canadian Institute of Planners.

LEGISLATIVE REQUIREMENTS

17The Tribunal, when considering an appeal of an Application for Minor Variance, must be satisfied that the requested variances meet the four tests as set out in s. 45(1) of the Act, namely:

a. Does the Application request maintain the general intent and purpose of the official plan?

b. Does the Application request maintain the general intent and purpose of the zoning by-law?

c. Is the requested variance minor in nature?

d. Is the Application request desirable for the appropriate development or use of the land, building or structure?

16The Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Act and the information and materials that the Township received concerning the matters under s. 2.1(2) of the Act.

HEARING AND FINDINGS

17With the support of the Appellant, the Municipality brought forward a land use planning witness from their planning department to provide lead evidence in this matter.

18Mr. Treble was qualified by the Tribunal to provide land use planning opinion evidence and delivered a comprehensive contextual and planning rationale supporting the Application and the Minutes of Settlement. In addition, the Tribunal received a comprehensive written Affidavit from Mr. Gagnon, on behalf of the Appellant, which also supported the Settlement Proposal.

19As evidence in the Hearing, four documents were marked as exhibits:

1. Exhibit 1: Notice of Hearing

2. Exhibit 2: Affidavit of Brian Treble

3. Exhibit 3: Affidavit of Michael Gagnon

4. Exhibit 4: Minutes of Settlement

20Mr. Treble, to summarize his testimony, opined that the Conceptual Site Plan/Proposed Development included within Exhibit 4 is a practical design that makes appropriate use of a property that complies with the TOP and ZBL and all relevant provincial land use policies. He also proffered that each variance is best considered as part of the complete proposal as it requires each variance to make the best use of the property for the already permitted use of a gas station and convenience store.

21Mr. Treble opined that the proposal is good planning and will have no impact on the properties adjacent to it as they include a hydro corridor, an unopened road allowance and agricultural land.

22Mr. Treble testified that the concerns related to noise, traffic and excess lighting can be addressed through site plan control and an additional condition has been added to specifically address these concerns.

23The Tribunal finds that the variances are minor in nature and desirable for the reasons provided by Mr. Treble and in the written affidavit of Mr. Gagnon. The property will be used for a permitted use, is appropriate in scale and provides added services to local residents and commuters in an area whose population is expected to grow in the coming years.

24Regarding the concerns related to traffic, noise and lighting, the Tribunal concurs with Mr. Treble's recommendation that they be addressed through site plan control. The Tribunal finds that the variances requested do not increase the impact of lighting, noise or traffic given that the proposed use is already permitted in the ZBL, and the variances merely request using more of the property for a permitted use.

25The Tribunal, having reviewed all the materials submitted, heard, and considered the comprehensive and uncontested land use planning evidence of Brian Treble, received the uncontested land use planning evidence of Michael Gagnon, approved the Appeal in part and provided an Oral Decision on this matter based on the merits of the planning evidence before it.

ORDER

26THE TRIBUNAL ORDERS that the appeal is allowed in part, and in accordance with the Oral Decision given at the Hearing, and the variances to Township of West Lincoln's Comprehensive Zoning By-law No. 2017-70, as amended, are authorized, subject to the following conditions;

1. That the Applicant provide documentation indicating compliance with Part 8 (Sewage Systems) of the Ontario Building Code, to the satisfaction of the Township's Septic Inspector and Building Department;

2. That prior to the issuance of a building permit, Site Plan approval be received as per the Township's Site Plan Control By-law; and

3. The Applicant shall address, as part of site plan approval, (amongst other items) lighting, noise and traffic concerns to the satisfaction of the appropriate approval authority and staff expertise as part of site plan approval.

27THE TRIBUNAL ORDERS that, under Rule 24.3 of the Tribunal's Rules of Practice and Procedure, notwithstanding the eventual date of the formal issuance of this Order, it shall be, and was, effective as of March 15, 2024, which is the date that the Tribunal received, considered, and determined the request for the Final Order in this proceeding.

28THE TRIBUNAL FURTHER ORDERS that it may be spoken to concerning issues arising from the implementation of this Order.

"Gregory J. Ingram"

GREGORY J. 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.