Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 16, 2024

CASE NO(S).: OLT-23-000275

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: 2794857 Ontario Inc.

Subject: Application to amend the Zoning By-law –Appeal of decision

Description: To facilitate the development of a commercial refuelling station for transport trucks

Reference Number: 350309-0516

Property Address: 13365 Pettit Road

Municipality: Town of Fort Erie

OLT Case No.: OLT-23-000275

OLT Lead Case No.: OLT-23-000275

OLT Case Name: 2794857 Ontario Inc. v. Fort Erie (Town)

Heard: March 26, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

2794857 Ontario Inc.

Michael Cara Justine Reyes

Town of Fort Erie

Tom Halinski Andrea Skinner (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY ON MARCH 26, 2024 AND ORDER OF THE TRIBUNAL

Link to Order

BACKGROUND

12794857 Ontario Inc. (“Appellant”) owns property known municipally as 0-13365 Pettit Road in Fort Erie (“Subject Property”), which is located with indirect access onto the Queen Elizabeth Way (“QEW”) highway using the Pettit/Gilmore Road interchange. The Appellant proposed to develop the Subject Property with a card-locked commercial refuelling station and other improvements. For clarity, a card-locked commercial refuelling station only serves users with activated corporate credit cards linked to the fuel supplier.

2The Subject Property is approximately 11,754 square metres (“sq m”), rectangular in shape, and is currently vacant. The surrounding land uses are generally a mix of industrial and commercial uses, including gas/refuelling stations and convenience stores. There are also large parcels of vacant land surrounding the Subject Property.

3On Friday, December 11, 2020, the Appellant submitted a Zoning By-law Amendment (“ZBA”) application to the Town of Fort Erie (“Town”) to permit a card-locked commercial refuelling station for transport trucks, a gasoline bar for passenger vehicles, and two drive-thru restaurants on the Subject Property. On Friday, January 15, 2021, the ZBA application was deemed complete. On Wednesday, February 17, 2021, a virtual Public Information Open House was convened, and on Monday, March 8, 2021, a Public Meeting was held. There were no members of the public who participated in the Open House or the Public Meeting.

4On Friday, September 10, 2021, the Appellant submitted a revised ZBA application removing the two drive-thru restaurants from the proposal. On Monday, December 12, 2022, Town staff issued a report recommending approval of the revised ZBA application.

5On Monday, February 27, 2023, Town Council refused the revised ZBA application and issued a Notice of Refusal on Thursday, March 9, 2023. The Town’s reasons for refusal noted:

…concerns with movement and queuing resulting from the increase in transport truck traffic in the area and the proposed use was not anticipated to provide significant value from an employment perspective.

The Appellant appealed the Town’s refusal to the Tribunal pursuant to s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”).

6On Wednesday, July 12, 2023, the Tribunal held a Case Management Conference (“CMC”), at which it granted Party status to Molto Bello Investments Inc. In advance of the second CMC held by the Tribunal on Thursday, November 30, 2023, Molto Bello Investments Inc. withdrew its Party status. At the second CMC, the Tribunal scheduled an eight-day Merit Hearing.

7Subsequent to the second CMC, the Appellant and the Town continued to have productive discussions, which resulted in the Appellant revising its development proposal, which was accepted by the Town, in principle, on Monday, December 11, 2023. The Parties entered Minutes of Settlement dated Tuesday, January 30, 2024, and jointly requested that the scheduled eight-day Merit Hearing be converted to a one-day Settlement Hearing.

PROPOSED SETTLEMENT

8Briefly summarized, the revised proposal consists of redeveloping the Subject Property with a card-locked commercial refuelling station consisting of five diesel pumps covered by a canopy with a total area of 179 sq m, 23 truck parking spaces and a convenience store with a total gross floor area of 92.3 sq m and eight dedicated parking spaces (“Proposed Development”). The Proposed Development will be accessed from the west side of the Subject Property, as shown in Appendix A, attached to the Minutes of Settlement.

9The Parties jointly requested that the Tribunal allow the appeal in part and approve the proposed ZBA in principle, which is attached as Attachment 7 to Exhibit 1. During the course of the Settlement Hearing, it was discovered that the proposed ZBA presented to the Tribunal contained one typographical error and one potential omission. The typographical error related to the municipal address and the omission related to the permitted use. Counsel for the Town submitted that he did not foresee any issue with the amended wording that was discussed at the Settlement Hearing relating to the permitted use. However, he would need to seek confirmation from the Town on the proposed amendment. The Parties were directed to submit a revised proposed ZBA on or before Friday, April 5, 2024.

10On Friday, April 5, 2024, the Parties filed a revised proposed ZBA, on consent, for the Tribunal’s review and approval. The revision incorporates the two amendments discussed in the preceding paragraph and is attached as Attachment 1 to this Decision. Briefly summarized, the ZBA, which facilitates the Proposed Development proposes to rezone the Subject Property to C3-758(H) Zone to permit, in addition to other permitted uses, a convenience retail store, card-lock commercial refuelling station, commercial refuelling station, automobile service station, gasoline bar, and buildings and structures accessory thereto (“proposed ZBA”).

HEARING

11As evidence at the Settlement Hearing, the Tribunal received the Affidavit of Claudio Brutto, sworn Thursday, March 21, 2024, which was marked as Exhibit 1. Mr. Brutto is a Registered Professional Planner in the Province of Ontario and a member in good standing of the Canadian Institute of Planners and the Ontario Professional Planners Institute. The Tribunal qualified Mr. Brutto to provide land use planning opinion evidence on consent of the Parties.

12Mr. Brutto provided detailed contextual and land use planning evidence and rationale in support of the Proposed Development. He reviewed the submissions and opined that the proposed ZBA, which will facilitate the Proposed Development, satisfies all requisite legislative tests, and overall, is representative of good planning and urban design and is in the public interest.

13Mr. Brutto testified that the Subject Property is an important site for the movement of goods through the Province, given its close proximity to the Peace Bridge, which connects Canada and the United States of America. He further noted that the Proposed Development fulfils the need for a refuelling station, and the Subject Property is an ideal location for such a use as it is the first interchange off of the QEW after entering Canada from the Peace Bridge.

14Mr. Brutto reviewed relevant policies and opined that the Proposed Development has regard for matters of provincial interest, in particular ss. 2(f), (k), (l) and (p) of the Act as it optimizes the use of existing land and infrastructure. Similarly, the proposed ZBA that facilitates the Proposed Development is consistent with policies 1.1.1, 1.1.3.1 and 1.3.1 of the Provincial Policy Statement, 2020, as it is an efficient use of an existing road network and contributes to the efficient movement of goods.

15Mr. Brutto also reviewed relevant policies in A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020) and noted that the Proposed Development does not conflict with these relevant policies as it will facilitate increased opportunities for cross-border trade while making use of existing land and infrastructure. In addition, he opined that the Proposed Development does not conflict with relevant policies found in the Region of Niagara Official Plan and the Town of Fort Erie Official Plan as the Subject Property is isolated from more sensitive uses and is compatible with other commercial and industrial uses in the area.

16Overall, Mr. Brutto opined that the proposed ZBA, which facilitates the Proposed Development, represents good planning in the public interest, and he recommended that the Tribunal allow the appeal in part and approve the proposed ZBA.

17Mr. Brutto confirmed that the correction of the two minor amendments referred to in paragraph 9 would not change his opinion.

ANALYSIS AND DISPOSITION

18On the strength of the uncontradicted land use planning testimony and sworn Affidavit of Mr. Brutto, the Tribunal is satisfied that the proposed ZBA will assist in facilitating the efficient movement of goods locally, provincially, nationally and internationally.

19The unique location of the Subject Property provides an opportunity to optimize an underutilized site located approximately 6 kilometres from the Peace Bridge. The Tribunal finds that the proposed ZBA, which will facilitate the Proposed Development, provides for the efficient use of existing land and infrastructure to fulfil a need for a refuelling station along a vital trade corridor. The proposed use is similar to and compatible with existing land uses in the area.

20The Tribunal acknowledges and commends the Parties on their cooperation and continued discussions, which ultimately led to the Settlement thereby avoiding a lengthy and costly hearing.

21The Tribunal wholly accepts Mr. Brutto’s opinion that the proposed ZBA satisfies all statutory tests and represents good planning in the public interest. The Tribunal finds that the proposed ZBA is consistent with provincial and regional planning policies and conforms to relevant Town policies.

ORDER

22The Tribunal orders that the appeal is allowed in part and directs the municipality to amend By-law No. 129-90 of the Town of Fort Erie as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the Town of Fort Erie to assign a number to this By-law for record-keeping purposes.

23The Tribunal may be spoken to should any issues arise with respect to the implementation of this Order.

“C. Hardy”

c. hardy

VICE-CHAIR

Ontario Land Tribunal

Website: Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT 1