City of Hamilton v. Aubert, 2024 CanLII 48196

Ontario Land Tribunal

ISSUE DATE: May 22, 2024 CASE NO(S).: OLT-24-000029

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant: Nathan Aubert and Megan Bros Appellant: City of Hamilton Subject: Consent Description: To permit the severance of the existing residential lot containing two dwellings into two parcels Reference Number: FL/B-23:73 Property Address: 2050 Centre Road Municipality/UT: City of Hamilton OLT Case No.: OLT-24-000029 OLT Case Name: The City of Hamilton v. Hamilton (City)

HEARD: April 17, 2024 by Video Hearing

APPEARANCES:

Party	Counsel/Representative*
City of Hamilton	Peter Krysiak
Applicants (Nathan Aubert, Megan Bros)	Self-represented*

MEMORANDUM OF ORAL DECISION DELIVERED BY JACKIE DENYES ON APRIL 17, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This matter comes before the Tribunal regarding an appeal filed by the City of Hamilton (“Appellant”) for relief against the City of Hamilton’s Committee of Adjustment (“CoA”) decision to grant Consent to Sever the Subject Property (“Subject Property”) with conditions pursuant to section 53(19) of the Planning Act (“Act”).

2The Subject Property is located in Flamborough, municipally known as 2050 Centre Road between Mountsberg Road to the north and Concession Road 12 to the south. The Rural Hamilton Official Plan (“RHOP”) designates the property as Rural in Schedule D – Rural Land Use Designations (“Subject Property”).

3The Applicants propose to sever the existing residential lot into two parcels. The severed lands contain an existing dwelling (to remain) and the retained lands contain an existing dwelling and barns (to remain). Each of the retained and severed lands have an existing single detached dwelling and mature vegetation throughout the property. The surrounding neighbourhood consists, generally, of large rural lots with single detached dwellings.

4The Appellant has indicated that the proposal does not conform with the governing Legislation and Policies contained within the Act, the Provincial Policy Statement, 2020 (“PPS”), the RHOP and the Zoning By-law (“ZBL”).

5The Applicant, Mr. Aubert, recited a history of the Subject Lands, indicating they have been in his family since 1928 and were purchased by his grandfather in 1958. In 1989, there was a severance from the parcel originally acquired by the user of the Subject Lands. Mr. Aubert submitted that there was an inadvertent merger of the two addresses registered to the property, being 284 Mountsberg Road and 2050 Centre Road, in 2007 by the City’s Tax Department and not through their consent. Despite the Applicants’ efforts to correct the land title in 2023, they were required to make this application for consent to sever (“Consent to Sever”/ “Application”). The Applicants are prepared to meet the conditions set out by Source Protection Planning regarding a minimum sustainable lot size for the proposed severed lands.

BACKGROUND

6The Application was deemed complete on October 26, 2023 and the CoA approved the Application with conditions on December 7, 2023.

7It is the intent of the Applicants to reinstate the original two lots, and to not develop the property. The Applicants filed correspondence from Braelane Farms, who have farmed the lands located at 2050 Centre Road for the past 40 years and are not in opposition to this Application. The retained and severed lands (retained and proposed uses) have been identified as residential on the submitted application form.

HEARING

8Following an opening statement, the Appellant called one expert witness, Mr. Joe Buordolone, who was qualified by the Tribunal to provide opinion evidence in the field of Land Use Planning. He prepared comments for the CoA meeting and was the reviewing staff member for the Consent to Sever Application and also provided his comments for the consolidated staff report. Mr. Nathan Aubert, on behalf of the Applicants, was affirmed, and made an oral opening statement. Mr. Aubert had filed photos, tax documents and deeds pertaining to the Subject Property with the Tribunal in advance of the Hearing.

9Five Exhibits were received during the Merit Hearing, as follows:

(a) Administrative Notice by the Tribunal dated March 22, 2024;

(b) Affidavit of Joe Buordolone, Planning Technician 1;

(c) City of Hamilton’s Book of Documents;

(d) Parcel Registry (two/2 pages); and,

(e) Applicant’s submission of photos, tax documents and deeds.

LEGISLATIVE FRAMEWORK

10Mr. Buordolone led the Tribunal through the relevant Legislative framework from a Policy context as follows:

Planning Act

11Mr. Buordolone testified that Section 53(12) of the Act states that a consent shall have regard to the matters under section 51(24), which is the criteria in considering a plan of subdivision. He noted that criteria (a) and (c) inter alia in Section 51(24) are applicable to this appeal as follows:

(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2:

(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any[.]

12He further reviewed Section 2 of the Act, that Provincial interest shall have regard to, inter alia:

(b) the protection of the agricultural resources of the Province;

(h) the orderly development of safe and healthy communities;

(p) the appropriate location of growth and development[.]

Provincial Policy Statement

13Mr. Buordolone reviewed Section 1.1.5, which speaks to Rural Land in Municipalities; to Section 1.1.5.2 (c), which outlines the permitted uses on rural lands, residential development, including lot creation, that is locally appropriate; and to Section 2.3.4, which states that lot creation is to be discouraged and states that consents for the purposes of residential uses are not appropriate for lands designated “Rural” within RHOP.

Rural Hamilton Official Plan

14As the Subject Lands are designated Rural within Schedule D. Policies F.1.14.2.1, F.1.14.2.3, D.2.0, D.4.1 and C.5.1.1, among others, are applicable and do not permit lot creation for residential purposes.

F.1.14.2.1 The following policies shall apply to all severances and lot additions, including minor lot line adjustments and boundary adjustments in the Agriculture, Rural, Specialty Crop, and Open Space designations, and designated Rural Settlement Areas, as shown on Schedule D – Rural Land Use Designations: (OPA 18)

a) Severances that create a new lot for the following purposes shall be prohibited:

i) Residential uses except in accordance with:

1. Policies F.1.14.2.1 b) iii) and F.1.14.2.8, where a dwelling may be severed as a result of a farm consolidation; and,

2. Policies F.1.14.2.1 b) iv) and F.1.14.2.4, where a dwelling within a designated Rural Settlement Area may be severed;

b) Severances that create a new lot(s) may be permitted for only the following purposes:

vii) In the “Rural” designation only, non-agricultural uses which may only be permitted in accordance with Sections D.4.1, F.1.14.2.1, and F.1.14.2.3[.]

F.1.14.2.3 In the Rural designation, severances that create a new lot, except surplus farm dwelling severances, may be considered only for agricultural uses, agriculture-related uses, existing rural resource-based commercial uses, existing rural resource-based industrial uses, and existing rural institutional uses, provided all of the relevant conditions of Section D.4.1 and the following conditions are met[.]

C.5.1.1 No draft, conditional, or final approval of development proposals shall be granted by the City for any development in Rural Hamilton that could impact existing private services or involves proposed private services until the development proposal has complied with all of the following: (OPA 23)(OPA 26)

c) The minimum size for a new lot proposed in an application for a severance, lot addition or draft plan of subdivision with an existing or proposed private water system and/or existing or proposed private sewage disposal system shall:

i) be the size required to accommodate the water system and sewage disposal system with acceptable on-site and off-site impacts;

ii) shall include sufficient land for a reserve discharge site or leaching bed, as determined by the requirements in Policies C.5.1.1 a) and b); and,

iii) not be less than 0.4 hectare (one acre) in size. The maximum lot size shall be in accordance with Policy F.1.14.2.1 f). (OPA 26)

D.4.1 Uses permitted in the Rural designation are limited to the uses permitted in Section D.2.0, Agriculture Designation of this Plan, other resource-based rural uses and institutional uses serving the rural community as follows:

D.2.1 Uses permitted in the “Agriculture” designation are limited to agricultural uses, agricultural-related commercial and agricultural-related industrial uses and on-farm secondary uses as set out in the following policies.

15Section D.4.0 states, “While these lands are characterized as having lower capability for agriculture due to a range of factors, the intent of this Plan is to protect and maintain agricultural uses as the primary and predominant land use and to protect farm operations from incompatible forms of development so as to preserve these lands for agricultural use.”

Hamilton Zoning By-Law 05-200

16The Subject Lands are zoned Rural (A2) Conservation/Hazard Land – Rural Zone (P7) and Conservation/Hazard land – Rural Zone (P8). City Staff recommended that the application be denied as it does not conform with the RHOP and the Subject Property meets only four (4) of the 10 criteria used by the City of Hamilton and Ministry of Citizenship and Multiculturalism for determining archaeological potential:

1. Within 300 metres of a primary watercourse or permanent waterbody,

200 metres of a secondary watercourse or seasonal waterbody, or

300 metres of a prehistoric watercourse or permanent waterbody;

2. In the vicinity of distinctive or unusual landforms;

3. In areas of pioneer EuroCanadian settlement; and,

4. Along historic transportation routes.

17When queried by Appellant Counsel regarding his knowledge of mergers of severed lands since 2007 or at any time on the Subject Lands, as suggested by the Applicant, Mr. Buordolone testified that, upon his review, the Parcel Registry shows no merger of lots since 1958. When cross-examined on this point by Mr. Aubert, Mr. Buordolone testified that the scope of his review was based on the Application submitted, which was an application to sever a parcel of land, and stated that he was not an expert regarding tax bills that the City has provided.

18It was Mr. Buordolone’s professional opinion that the Application does not meet the criteria set out in section 2 of the Act, specifically that provincial (“Provincial”) matters shall have regard to the protection of agricultural resources, the orderly development of safe and healthy communities and the appropriate location of growth and development; and regarding the policies of the PPS, which states that lot creation is discouraged and only permitted for, among others, a residence surplus to a farming operation as a result of farm consolidation, the policies of RHOP are not met for a consent as the severance would be allowed for a parcel of land with a residential use that does not result from a farm consolidation or that is within a Rural Settlement Area and should be denied.

19Mr. Aubert, who provided viva voce evidence and was not cross-examined by the Appellant, urged the Tribunal to consider that his oral evidence is supported by the legal deeds and documents he has filed with the Tribunal. He asked the Tribunal to consider not only the PPS but also the housing crisis and impact that this Application will have by taking one house from the inventory to purchase.

FINDINGS

20Land use planning in Ontario is a policy-led system. The Tribunal in making decisions must consider that applications:

(a) have regard to Provincial interest (s. 2)

(b) are consistent with the PPS; and

(c) have regard to criteria set out in s. 51(24) .

21This being a hearing de novo, the Tribunal gave consideration to the Application and to the proposed conditions of Consent to Sever set out by the CoA as well as to the Staff Planning Report, which includes comments respecting policies set out in F.1.14.2.1 and F.1.14.2.3 of RHOP and further comments with respect to Archeological potential, Hamilton Zoning By-Law 05-200, Source Water Protection Planning, Transportation Planning, and Development Engineering.

22The Tribunal finds that this Application for Consent to Sever does not have regard to Provincial interest as set out in s. 2 of the Act as it relates to (b), matters of protection of agricultural resources of the province, (h), the orderly development of safe and healthy communities, nor (p), the appropriate location of growth and development. The retained and severed lands (existing and proposed uses) have been identified as being residential on the submitted application form.

23The Tribunal finds that the proposal is not consistent with Policy 2.3.4. of the PPS regarding the protection of agricultural resources, which states that lot creation is discouraged and only permitted for, inter alia, residence surplus to a farming operation as a result of consolidation. There is no evidence that the Applicants provided any justification for this proposal.

24The Tribunal finds the Application does not conform with the RHOP as the intent of the Rural designation as stated in Section D.4.0. is for land to remain a primary source of agricultural land and to provide for agricultural uses as the primary and predominant land use and, as well, to protect farm operations from incompatible forms of development. While it is acknowledged that Braelane Farms supports the Consent to Sever application (“Application”), the Applicant has not indicated how the granting of consent to sever is to be considered good planning, nor how that acknowledgement protects farm operations from incompatible forms of development in the future.

25Public interest is mandated and to be/must be considered by the Tribunal on every matter. The Tribunal finds that the Application does not have regard to the criteria set out in s. 51(24) of the Act: “(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2;” and, “(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any.”

26The Tribunal finds that to determine whether or not the Parcel Registry for the Subject Lands shows inadvertent or intentional merger of lots would be purely speculatory, since the property has been treated as a single lot since 1958. No witness was produced by either party to explain the discrepancy in Land Titles and tax-related documents filed by the Applicants.

ORDER

27THE TRIBUNAL ORDERS that the appeal is allowed and the provisional Consent is not to be given.

“Jackie Denyes”

JACKIE DENYES

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.