Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 26, 2024
CASE NO(S).: OLT-23-001030
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Glen Irish
Subject: Application to Amend the Zoning By-law – Refusal of Application
Description: Zoning By-law Amendment application for a Temporary Use By-law to permit a fire training academy on a portion of the subject lands
Reference Number: 2021-ZBA-04
Property Address: 1420 Newton Street
Municipality/UT: Tay Township- County of Simcoe
OLT Case No.: OLT-23-001030
OLT Case Name: Irish vs. Tay (Township)
Heard: January 19, 2024 by Video Hearing
APPEARANCES:
Parties
Counsel/Representative
Glen Irish
J. E. Biggar
Township of Tay
Karen Johns (Representative)
DECISION DELIVERED BY S. GOPIKRISHNA AND INTERIM ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION AND BACKGROUND
1Glen Irish (“Appellant”) is the owner of 1420 Newton Street (“Site”) located in the Township of Tay (“Township”) in the County of Simcoe (“County”). The Appellant applied to the Township’s Municipal Council (“Council”) for a temporary Zoning By-law Amendment (“ZBA”) to the Township’s Zoning By-Law 2000-57 (“ZBL”) to permit a fire training academy on a portion of the Site for a period of three years.
2On September 29, 2023, the Council discussed the application and refused the same by a 3-3 vote. The Appellant appealed the Township’s decision to the Ontario Land Tribunal (“Tribunal”) on October 17, 2023. Bryan Ritchie, Wayne Hill, Karen Gianetti, Jason Honan, Chris Hyde, and Steve Jones (together “Participants”) were granted Participant status; each of these individuals stated that they would be impacted negatively by the proposed development because they live, or own property close to the Site.
3The Tribunal held a Video Hearing, (“Hearing”) on January 19, 2024. At the Hearing, the Appellant was represented by Ms. Jennifer E. Biggar. The Township elected not to participate in the Hearing.
LEGISLATIVE FRAMEWORK
4When adjudicating a ZBA, the Tribunal must determine whether the proposed instrument:
i. is consistent with policy statements issued by the Minister, which in this case is the Provincial Policy Statement, 2020, and conforms with the Growth Plan for the Greater Golden Horseshoe 2019.
ii. Conforms with applicable Official Plans which in this case, include the Region of Simcoe Official Plan 2014, and the Township of Tay’s Official Plan 1999.
iii. Conforms with the City’s Zoning By-law 2000-57.
iv. Represents good planning.
5In making a determination about the Appeal, the Tribunal must also have regard for matters of Provincial interest set out in section 2 of the Act, and have regard to information and materials that the Council received in relation to the matters under section 2.1(2) of the Act.
EVIDENCE
6At the commencement of the Hearing held on January 19, 2024, Ms. Biggar, Counsel for the Appellant, stated that while no formal settlement had been reached with the Township, the latter had informed her it would not be participating in the Hearing before the Tribunal.
7The Appellant called Mr. Jamie Robinson, a Registered Professional Planner, to provide evidence in support of the ZBA. After being affirmed and recognized as an Expert in the discipline of land use planning, Mr. Robinson briefly described the history of the proposal, and how its refusal by the Council resulted in the Appeal presently before the Tribunal.
8Mr. Robinson described the layout of the Site, and said that it is located on Newton Street, south of the Victoria Harbour Settlement Area, in the Township of Tay. The Official Plans governing the Site are the Township of Tay Official Plan, 1999 (“OP”), which designates the Site as “Agricultural”, as well as the 2013 County of Simcoe Official Plan (“Simcoe Official Plan”) which designates the Site as “Greenland’s and Agricultural”. The Applicable ZBL 2000-57 (“ZBL”) also zones the Subject Lands as “Agricultural”. Mr. Robinson added that the Site has a lot area of 36 hectares (“ha”), with a lot frontage of 611.2 metres (“m”) facing Newton Street.
9Mr. Robinson noted that the proposal before the Tribunal looks to utilize approximately 1.49 ha of the Subject Lands as a site for fire training, which includes a gravel area that is 4900 square metres (“sq. m”), and a pond of 16700 sq. m. The proposed fire training at the Site will manifest itself in the form of drone training for search and rescue, water and ice rescue, pumper truck training (where water is pumped out of the pond, and then back into the same) and smoke training in a sea container. The frequency of the training will be “4-6 times/month for up to 20 people at a time with 1-2 fire trucks”. He emphasized that “night training would be rare”.
10Mr. Robinson reiterated that the proposed use is temporary in nature, does not limit agricultural use in the future, and that a permit from the Ministry of Environment Conservation, and Parks (“MECP”) will be required to use the water in the ponds for fire-fighting exercise, where needed, and that the Appellant had no plans to utilize the water from the pond for the planned fire-fighting exercise. He concluded that the proposal has regard for matters of provincial interest, and “does not offend” the same.
11Mr. Robinson discussed the relationship between the proposal, and the Provincial Policy Statement, 2020 (“PPS”), and distinguished between permitted uses listed under section 2.3.1 of the PPS, and non-permitted uses discussed under section 2.3.6 of the PPS. He opined that section 2.3.1 would be the operative policy because the proposed land use in temporary. After reviewing the Natural Heritage policies in section 2.1 as well as the Water policies in section 2.2 of the PPS, he concluded that the proposal was “consistent with the policies”.
12Discussing the relationship between the Growth Plan for the Golden Horseshoe, 2019 (“Growth Plan”) and the proposed ZBA, Mr. Robinson pointed out that the Site is located on lands designated as “Prime Agricultural Area”, where permitted uses are limited to “agricultural uses, on-farm diversified uses and agricultural related uses”, before stating that the intent of the Growth Plan policies pertaining to prime agricultural areas is to ensure that they are protected for the long-term use for agricultural uses. He then explained how the temporary nature of the change, did not preclude long term agricultural use and interpreted the lack of preclusion of the long term use to conclude that the proposed ZBA conformed to the Growth Plan.
13Based on the above discussion, Mr. Robinson concluded that the proposed ZBA was consistent with, and conformed to the higher level Provincial Policies.
14Discussing the relationship between the proposal, and the applicable Official Plans, Mr. Robinson reiterated that the Simcoe Official Plan classified the Site as “Green lands and Agricultural”. He referenced section 3.6.5 of the Simcoe Official Plan, which indicates that “prime agricultural areas are to be protected for the long-term use of agriculture”. Mr. Robinson then explained how the temporary proposed use helps maintain the intent of section 3.6.5., through focusing on long term use. He described how any gravel, and topsoil that need to be removed to facilitate the use of the Site as a fire prevention training ground can be replaced at a later date, such that the Site can be returned to its present state and used for agricultural purposes. Mr. Robinson interpreted the reconversion of the Site from the temporary use of the land, to “Agricultural uses” to mean that the requested ZBA maintains the intent and purpose of section 3.6.5. of the Simcoe Official Plan. He then referenced section 3.6.12 of the Simcoe Official Plan which discusses non-agricultural uses, and analogized them to section 3.6 of the PPS discussed earlier in his evidence, which discusses both agricultural and non-agricultural uses. Mr. Robinson concluded that the operative part of the Simcoe Official Plan was section 3.6.5, as opposed to section 3.6.12, before adding that the latter section did not have to be dwelt upon, because of its inapplicability.
15Mr. Robinson discussed the relationship between the proposed ZBA and the OP. He reiterated that the OP designates the Site as “Agricultural”, and reviewed section 4.4.2 of the OP, which sets out the permitted uses, before concluding that the proposed use of firefighting is not listed as a permitted use. He then focused on how section 7.3.1 of the OP is the operative policy, because it recognizes permissible temporary uses, and specifically identifies which temporary uses are permissible in the Township, as well as sets out specific criteria to test the temporariness in the change of the use of land. Mr. Robinson reviewed the tests for temporariness, such as the feasibility of the change of use back to agricultural uses, computability of temporary use with adjacent uses, the lack of need for extra services, screening, maintenance of significant distances from neighbouring properties, and demonstrated how the proposed ZBA satisfied each of these criteria. Mr. Robinson emphasized that the proposed change did not interfere with neighbouring properties, because of the separation between the Site and its neighbours. He also reiterated that the proposed land use change is temporary, and that no further services were required at the Site to facilitate the proposed ZBA, or its being returned to its original use. Lastly, he noted that there would there be no need for the Township to provide them extra services as a result of the proposed change.
16Based on this discussion, Mr. Robinson concluded that the proposed ZBA maintained the intent, and purpose of the Simcoe Official Plan, as well as the OP.
17Mr. Robinson discussed the relationship between the proposed ZBA, and the Township’s ZBL. He discussed how the Zoning for the Site did not explicitly list “Fire training” as an authorized use, and noted that the intended long-term agricultural use of the land would not be impacted by the proposed temporary change. He pointed out that because there were no plans to construct permanent buildings, the reconversion back to the permitted use of agricultural land was a straightforward basis. He highlighted language in the ZBA which explicitly stated that the requested use would be restricted to the designated area of the Site, and that the lands can be converted back to farmland once the proposed new use ceases, or the three year term expires, depending on what occurs earlier.
18Mr. Robinson emphasized that the Township’s Noise By-law would be complied with, and that there would be no negative impact on the agricultural uses on neighbouring properties, before discussing how minimal the impact of the proposed fire training would be on the Site itself, because the training would not last more than 15 days at a time.
19Based on the above evidence, Mr. Robinson concluded that the proposed ZBA fulfilled the intent, and purpose of the ZBL. He recommended that the Temporary ZBA be approved, because it had satisfied the statutory tests set out in the Planning Act.
20The concerns and objections expressed by Participants are classifiable into fire and smoke issues, run off and water drainage issues, increase in traffic, and the need for a MECP permit. The salient features of each of the aforementioned issues are recited below:
Fire and Smoke issues: Since the Site will be used for fire drills, there was a significant concern that any fire started on the Site, will spread to neighbouring properties, resulting in significant losses, and pollution issues.
Run off, and water drainage issues: Since water from the pond will have to be used to put out fires as part of the training, there would be an increase in run-off, resulting in drainage issues on the agricultural land on neighbouring properties.
Increase in traffic: There would be a significant increase in traffic because the Site would be used by firetrucks for up to 15 days in a month.
MECP permission: The Applicant had not obtained permission from the MECP (Ministry of Environmental Conservation Parks) for the suggested non-agricultural uses.
21Mr. Robinson addressed each of the concerns listed above and his responses are recited in the same order as the concerns in the previous paragraph.
Fire and Smoke issues: There are no plans for live fires on the Site if the proposal were to be approved, which eliminates concerns regarding fire and smoke related pollution. He also pointed out that there are no natural heritage features on the Site, and added that the Appellant would ensure that all burn activities would occur only in the shipping containers, which resulted in the “fire being similar to a personal fire.”
Run off, water drainage, water issues, and the need for MECP permission: He pointed out that the MECP would be required only if water usage were required to complete the fire-fighting exercise. Per the updated proposal in front of the Tribunal, there are no plans to use water or foam as part of the fire-fighting operations. As a consequence, there are no concerns with respect to run off and drainage issues, and the issue of obtaining MECP permission is redundant.
Increase in Traffic: There would be no increase in traffic because the Site is accessible from three different roads, namely Vasey Road, Highway 12, and Newton Street, which would not result in an appreciable increase on Newton Street.
Mr. Robinson reassured the Participants repeatedly that the proposed use was temporary, and covered a three year period, after which the Site could be used for agricultural purposes. He reiterated his earlier recommendation for the approval of the ZBA.
22The Tribunal notes that communication was received from some of the Participants after the completion of the Hearing of January 19, 2024, and addresses the issue of this communication in the following Analysis and Reasons Section.
ANALYSIS AND REASONS
23The Tribunal notes that for the purposes of making findings, it has relied significantly on the evidence of Mr. Robinson, the Registered Professional Planner acting for the Appellant, who was recognized as an Expert Witness in the discipline of land use planning. It emphasizes that the Expert evidence is uncontroverted as a result of the lack of opposing planning opinion.
24A very important difference between the perspectives of the Appellant, and the Participants, is whether or not the proposed change to land use, resulting from the proposed ZBA is temporary or permanent. Through a review of the Participant Statements, it is evident that they posit that the proposed change will become permanent instead of reverting to agricultural use, based on their beliefs, and experiences with other sites, extrapolated into assumptions about the Site. The Appellant, on the other hand, emphasized how the change is temporary, with a clear time horizon of three years, as way of evidence of the temporary nature of the proposed ZBA, a position that is acceptable to the Tribunal,
25The Tribunal prefers the evidence of the Appellant on this issue, because of the volume of information made available to demonstrate that the contemplated change is temporary. This volume of information is in stark contrast to the information of the Participants in opposition, which relies on conjecture, and unverifiable assumptions, without any evidence to support the same. In other words, the Tribunal finds that the contemplated change is temporary, with a three year time frame from the time the ZBA is authorized.
26Before the Tribunal can allow the appeal, it is important that the evidence demonstrate that the proposed instrument conform to the higher level Provincial Policies, and maintain the intent and purpose of all applicable Official Plans, as well as applicable Zoning By-laws. On the basis of the finding that the proposed changes to the land are temporary, the Tribunal finds that the operative section in the PPS is section 2.3.1 and the Tribunal accepts the Appellant’s evidence that the proposed ZBA is consistent with the Natural Heritage policies in section 2.1, and the policies in section 2.2 of the PPS, on the basis of which it finds that the requested ZBA is consistent with PPS.
27The Tribunal finds that the proposed ZBA is consistent with the Growth Plan because the proposed change is temporary, and does not detract from the intended long term use of the Site for agricultural purposes.
28The Tribunal finds that the proposed ZBA maintains the intent and purpose of section 3.6.5 of the Simcoe Official Plan, which indicates that “prime agricultural areas are to be protected for the long-term use of agriculture”. The Tribunal accepts the Appellant’s evidence about how the Site can be returned to agricultural uses through restoration of the gravel and top-soil, and finds that the proposal maintains the intent and purpose of the Simcoe Official Plan.
29When reviewing the relationship between the proposal, and the OP, the Tribunal determines that Policy 7.3.1 is operative because it recognizes “temporary needs”, while ensuring that the land reverts to the agricultural uses that the land is meant to be used for. Since the evidence demonstrated that the Site passes all the applicable tests to demonstrate temporariness under Policy 7.3.1, the Tribunal finds that the proposed ZBA maintains the intent and purpose of the OP.
30On the basis of the evidence with respect to the ZBA’s ability to maintain the purpose and intent of the ZBL, the Tribunal notes that because training related to firefighting is not a permitted use, per the ZBL, there is a need for a temporary Zoning By-law, authorizing the requested use. The Tribunal notes that the ZBL permits amendments permitting temporary uses, and is persuaded by the evidence that the requested temporary use will not interfere with the long term agricultural use of the Site. As a result, it finds that the requested temporary ZBA maintains the intent and purpose of the ZBL.
31While the Tribunal acknowledges the communication from Mr. Bryan Ritchie, dated Jan 29, 2024, it has not reviewed these submissions, nor has it taken them into consideration for the purpose of making findings. The communication in question was submitted after the completion of argument, and was not sent to the Appellant, both of which preclude the prospect of the latter responding to the communication, which effectively prejudices their case.
32Since the requested ZBA satisfies all the relevant tests under the higher level Provincial Policies, maintains the intent and purpose of applicable Official Plans, as well as that of the By-law, the Tribunal finds that it should be provisionally approved for a three year period, starting on the date the Council approves the ZBA.
33The Tribunal allows the Appeal on an interim basis, and will issue a Final Order after it receives the ZBA in its final form, and is satisfied that all concerned departments of the Township have reviewed the same, and have not objected to the final form of the ZBA.
INTERIM ORDER
34THE TRIBUNAL ORDERS THAT the Appeal is allowed, on an interim basis, contingent upon confirmation, satisfaction or receipt of the pre-requisite matters identified in paragraph [35] below, and the Zoning By-law Amendment set out in Attachment 1 to this Interim Order, is hereby approved in principle.
35The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the Township Solicitor of the following pre-requisite matters:
a. The Tribunal has received, and approved, the Zoning By-law Amendment submitted in a final form, confirmed to be satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor;
b. The Tribunal is advised that the Appellant has addressed all of the comments in any Memoranda from Engineering and Construction Services, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services.
36The Appellant is given time until October 31, 2024 to submit the final form of the Zoning By-Law Amendment. If the Appellant does not submit the final form of the Zoning By-law Amendment , and provide confirmation that the contingent pre-requisites to the issuance of the Final Order, set out in paragraph [35], have been satisfied, and do not request the issuance of the Final Order, by October 31, 2024, then the Appellant shall provide a written status report to the Tribunal by that date as to the timing of the expected confirmation and submission of the final form of the Zoning By-law Amendment(s) and request for issuance of the Final Order by the Tribunal. In the event the Tribunal fails to receive the required status report, and/or in the event that the contingent pre-requisites are not satisfied by the date indicated above, or by such other deadline as the Tribunal may impose, then the Tribunal may then dismiss the Appeal.
37The Panel Member will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-Law Amendment and the issuance of the Final Order.
“S.Gopikrishna”
S. GOPIKRISHNA
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.
ATTACHMENT 1
THE CORPORATION OF THE TOWNSHIP OF TAY
BY-LAW NUMBER 2024-08-OLT
Being a By-law to permit the temporary use of lands described as
Part East Half Lot 4, Concession 6, Township of
Tay Southwest Fire Academy
Whereas By-law No. 2000-57 is the General Zoning By-law of the Corporation of the Township of Tay; and
Whereas the Council of the Corporation of the Township of Tay have received an Application for a Temporary Use By-law and has approved the Application; and
Whereas authority is granted pursuant to Sections 34 and 39 of the Planning Act, R.S.O. 1990 to enact such amendments;
Now Therefore the Ontario Land Tribunal hereby enacts as follows:
- That Section 25.4 of Zoning By-law 2000-57 be amended by adding a new temporary site specific zone exception 4 to permit a fire training academy on a temporary basis for a period of three years from the date of the passing of this by-law (subject to extensions) as follows:
A-4(T) Zone
a) On lands identified as A-4(T) that a fire training academy be permitted.
b) A fire training academy shall mean an area for conducting fire and emergency personnel training.
Schedule ‘E’ to By-law 2000-57, as amended, is hereby amended by indicating the lands identified on Schedule ‘A’ to this By-law being Part of Lot 4, Concession 6, municipally known as 1420 Newton Street in the Township of Tay as being in the A-4(T) Zone.
Schedule ‘A’ attached hereto is hereby made part of this By-law.
This By-law shall take effect and come into force pursuant to the provisions and regulations made under the Planning Act, R.S.O. 1990.
Note to the By-law: That the Corporation of the Township of Tay shall enter into an agreement with the Owner and/or the Southwest Fire Academy on behalf of the Owner to facilitate a “fire training academy” on a portion of the lands described as Part of Lot 4, Concession 6, municipally known as 1420 Newton Street in the Township of Tay.
THE CORPORATION OF THE TOWNSHIP OF TAY
Approved by OLT Order No.
Schedule A