Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 18, 2024
CASE NO(S).: OLT-23-000362
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Dunsdon Group Ltd
Subject: Application to amend the Zoning By-law – Refusal of application
Description: To permit a retail store as an additional permitted use for the subject property
Reference Number: ZA-22-01
Property Address: Part of Lot 26, Concession 10 North Elmsley
Municipality: Township of Drummond/ North Elmsley
OLT Case No.: OLT-23-000362
OLT Lead Case No.: OLT-23-000362
OLT Case Name: Dunsdon Group Ltd v. Drummond/North Elmsley (Township)
Heard: March 26, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Dunsdon Group Ltd | Self-Represented* |
| Township of Drummond/North Elmsley | Emma Blanchard |
| Leena Rahusaar | Self-Represented* |
MEMORANDUM OF ORAL DECISION DELIVERED BY JENNIFER GOLD ON MARCH 26, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Tribunal convened a Settlement Hearing with respect to an appeal under s. 34(11) of the Planning Act by Dunsdon Group Ltd. (“Applicant”). The Applicant seeks a site-specific Zoning By-law Amendment (“ZBLA”) to permit the development of a retail store as an additional permitted use at the property described as Part of Lot 26, Concession 10, North Elmsley (“Subject Property”). Additionally, the ZBLA would require a minimum of 5 metre (“m”) interior side yard width from the north side lot line. The application proposes to rezone the property from Rural (RU) to Rural Exception (RU-X). The Council for the Township of Drummond/North Elmsley (“Township”) refused the application on March 28, 2023 and the Applicant filed an appeal of the refusal of the application to this Tribunal on April 18, 2023.
2At a Case Management Conference (“CMC”) on August 4, 2023, Leena Rahusaar, the owner of a neighbouring property, was added as a Party. The Tribunal also received the Participant Statement Form of Heidi Bedor of Lanark County Support Services who was granted Participant status at the CMC. After the CMC, the Parties attended Tribunal-led mediation and resolved this appeal. The Parties entered into a Minutes of Settlement that set out the terms of the resolution. The Tribunal received the Minutes of Settlement signed by all Parties and a Draft Order. In support of the Settlement, the Tribunal received the Affidavit of Tracy Zander sworn January 25, 2024 in advance of the Settlement Hearing. She provided oral evidence at the Settlement Hearing. Based on her Affidavit sworn January 25, 2024 and oral evidence, the Tribunal confirmed that Ms. Zander was qualified an expert in the field of land use planning. Her Affidavit was entered into evidence as Exhibit 1, and the Minutes of Settlement were entered into evidence as Exhibit 2.
OFFICIAL PLAN
3The Subject Property falls within the Rural designation on Schedule A of the Official Plan (“OP”) for the Township. This designation permits a range of commercial land uses in the rural areas of the Township, including retail stores, as described in s. 4.3.6 of the OP. Those commercial uses are encouraged to be located on a higher-level road such as a County Road. The proposed site-specific zone sought by the Applicant would permit a commercial-type business, designed to include the needs of an identified organization. Ms. Zander confirmed that the Subject Property is appropriately located for this use. The entrance to the Subject Property has been approved by the County Roads Department, and the anticipated traffic impacts have been evaluated by BTE Engineering.
4The zone that is proposed on the Subject Property which includes oversized setbacks, landscaping, and other site-specific performance standards, has been developed in conjunction with the abutting residential property owner and the Township Staff to ensure compatibility has been fully considered, and meets the intent of the OP. The Minutes of Settlement notes that Site Plan Control will be required for the future commercial development on the Subject Property. The site-specific zone that has been proposed for the Subject Property meets the intent of the policies in the OP.
DRUMMOND/NORTH ELMSLEY ZONING BY-LAW No. 2012-060
5The Subject Property falls under the Rural (RU) zone of Zoning By-law No. 2012-060 (“ZBL”) for the Township. This zone permits a single detached dwelling as well as a number of non-residential uses including agricultural uses. The proposed retail store use is not permitted, and therefore the Applicant seeks a site-specific zone to add a retail store as a permitted use.
6The proposed RU-exception zone retains a number of non-residential uses that are already permitted on the Subject Property, including conservation, general agriculture private parks, and adds a retail store with a refined definition as a permitted use.
7In order to minimize the potential for conflicts with abutting residential use, the retail store use would include serving an identified organization. In addition, the Minutes of Settlement notes that the hours of delivery for truck traffic will be limited between 6 a.m. and 9 p.m., to be implemented through the Site Plan control Agreement. In addition, a vegetated strip or privacy fence is also required.
8Ms. Zander’s Affidavit also set out several site-specific performance standards that are included in the ZBLA which also serve to enhance the compatibility with the abutting residential use. In order to reduce the impact of vehicles moving and parking in close proximity to the abutting residential lot, a site-specific provision has been included that would require a minimum setback of 6 m. from the parking area to the north side of the lot. This exceeds the minimum setback between a commercial parking lot and a residential use that is included in s. 4.18.1 of the ZBL.
9In order to ensure that a significant part of the Subject Property remains in a natural state, the Parties have agreed to a minimum landscaped open space of 25%. It is intended to ensure that there are natural areas on the Subject Property to maintain the rural character. The Rural Zone in which the Subject Property falls does not have this performance standard.
10Based on the evidence of Ms. Zander, the Tribunal finds that the proposed zone with specific performance standards represents good planning.
2020 Provincial Policy Statement
11Ms. Zander reviewed the relevant policies of the 2020 Provincial Policy Statement (“PPS”) which must be considered when planning Decisions are made in Ontario. The Settlement conforms with s.1.0 (Building Strong Healthy Communities), 1.1.5 (Rural Lands), 2.0 (Wise Use and Management of Resources), and 3.0 (Promoting Public Health and Safety) of the PPS.
12Ms. Zander’s uncontroverted evidence was that the requested ZBLA represents good planning, is consistent with the policies in the PPS, and meets the intent of the policies in the OP and ZBL. Furthermore, the specific performance standards outlined in the ZBLA will provide the required level of protection to minimize the potential for impacts from the proposed retail store use on the abutting residential property. The Subject Property will also be subject to a Site Plan Control Application at the time of development. The proposed use is an appropriate one in this rural setting with the implementation of performance measures.
ORDER
13THE TRIBUNAL ORDERS THAT:
The appeal is allowed in part, and the Township of Drummond/North Elmsley’s Comprehensive Zoning By-law No. 2012-060 is amended in accordance with Schedule A attached hereto below.
The Municipal Clerk to format, as may be necessary, and assign a number to this instrument for record keeping purposes.
Each Party shall bear its own costs of the appeal.
“Jennifer Gold”
JENNIFER GOLD
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 A