Turcotte v. Iroquois Falls (Town), 2024 CanLII 7649

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 02, 2024

CASE NO(S).: OLT-23-000333

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

Applicant/Appellant: Eric Turcotte

Subject: Zoning By-law Amendment Application – refused

Description: To permit a commercial business

Reference Number: 563103001410800

Property Address: 714 Victoria Road

Municipality: Iroquois Falls/Cochrane

OLT Case No.: OLT-23-000333

OLT Lead Case No.: OLT-23-000333

OLT Case Name: Turcotte v. Iroquois Falls (Town)

Heard: January 19, 2024 by video hearing

APPEARANCES:

Parties

Counsel/Representative*

Eric Turcotte

Jonathan Turcotte*

(“Applicant”)

Town of Iroquois Falls

Chantal DeSereville

(“Town”)

DECISION DELIVERED BY JEAN-PIERRE BLAIS AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The Applicant seeks to undertake commercial activities in his garage at 714 Victoria Road in the Town (“Subject Property”). To this end, the Applicant had applied to amend the zoning of the Subject Property from R2 (Residential, Urban Second Density) to C1 (Commercial Business). However, the Town Council denied his application on March 27, 2023. The Appeal was brought pursuant to section 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”).

2The Tribunal held a hearing on the merits of the Applicant’s appeal on January 19, 2024. Jonathan Turcotte, the Applicant’s brother, was his unremunerated representative as permitted pursuant to section 30 of By-law No. 4 adopted by the Law Society of Ontario.

3The Subject Property is in the Urban Service Area of the Town, measures approximately 505 square metres, has a perimeter of approximately 98 metres, a depth of approximately 35 metres and a frontage of approximately 14.6 metres on Victoria Road. The site is currently occupied by a single detached dwelling and an accessory garage. The Subject Property was purchased by the Applicant in 2019 and the garage was built in 2021.

ISSUE

4At the heart of the Applicant’s appeal is whether the proposed zoning by-law amendment (“ZBA”) conforms to the Town’s 1984 Official Plan (“OP”) as is required by section 24(1) of the Act.

EVIDENCE AND ANALYSIS

5The Applicant argued that the Town Council based its decision on wrong and misguided information, and that the rezoning should be allowed. The Applicant also submitted that other commercial activities are being conducted in this residential neighbourhood, and he should be treated equitably.

6The Applicant, who testified as a lay witness, explained that he is an underground miner who works on a shift schedule. He regularly travels a considerable distance for his work, from his residence in the Town to Timmins. However, he hopes to use some of his free time to provide limited automobile repair and maintenance services for a fee, as this added business income would contribute to the financial betterment of his family and his community. He argued that there was a need for this service in the community because other suppliers are not meeting the demand in a vehicle-dependent community.

7Due to his full-time employment in the mining sector, the proposed services would only be available on an appointment basis thus avoiding almost entirely the storage of vehicles in need of work outside the garage. The limited services would include tire rotation and switch-over, minor repairs, wiper blade replacements, oil change and undercoating. He hopes to affix appropriate exterior signage for his new business. He currently uses his garage to provide automobile services free of charge as well as to engage in his classic-car hobby. He demonstrated that his garage is clean both outside and inside, and well equipped, particularly to safely discard used oil and to reduce outside sound. There was no evidence that the present use of the garage resulted in noise violations or traffic problems. Photographs and documents in support of his position were presented by the Applicant and marked as Exhibit 1.

8Steve McArthur, called as a witness by the Town and recognized by the Tribunal as an expert in land use planning, explained that the Subject Property is designated Residential in the Town’s OP and zoned R2 (Residential, Urban Second Density) under the Town’s Zoning By-law No. 2869/04. Other than a variety and type of dwellings, that zoning also permits churches, places of worship, day nursery, fraternal institutions, nursing homes, rooming houses, tourist homes, as well as household occupations and professional offices in a dwelling. In view, the proposed use of the Applicant, for remuneration, would be contrary to the current R2 zoning.

9Mr. McArthur testified that the proposed uses and the ZBA did not conflict with the Growth Plan for Northern Ontario (2011). However, in his opinion, they did not conform with the Provincial Policy Statement (2020) (“PPS”), and did not conform to the Town’s OP. His opinion with respect to matters of provincial interest at section 2 of the Act is best described as vague.

Scope of the Proposed Uses

10The Applicant argued that its proposed uses of the garage will be limited and circumscribed. He testified that his intention was not to grow the business significantly in the short-term because he already has a full-time occupation as a miner. His position was somewhat contradicted by his statements that he might hire a licensed mechanic to provide services that he himself cannot legally provide. He did state that he hoped to demonstrate strong revenues and business potential to an institutional lender for a future business growth. However, he testified that in such a scenario the business would be operated elsewhere than on the Subject Property.

11Even if the Applicant’s position is taken at face value, i.e., he only intends to operate a part-time automotive service business, by appointment only, the Tribunal agrees with the position of the Town, that once the Subject Property is rezoned for commercial use nothing from a land use planning perspective would prevent the Applicant, or another future owner of the Subject Property, to maximize the permitted zoning uses. If the Subject Property could be used as an automobile service garage, nothing would restrict the number of cars that could be serviced, the number of employees that could be hired, and the kind of services that could be provided, including walk-in services.

Other similar businesses

12The Applicant also attempted to demonstrate that other properties in the surrounding residential neighbourhood were operating commercial activities. He provided a list of those businesses, including their addresses.

13Mr. McArthur testified that there are indeed isolated commercial uses in the area around the Subject Property. However, he explained that these isolated commercial uses were either home-based businesses permitted under the Zoning By-law No. 2869/04 (i.e., household occupations or professional offices in a dwelling), or existing commercial uses that existed in 1984 when the Town’s OP was adopted. For him, the C1 and C2 zonings attributed to those properties were appropriate to reflect that historical reality. This was particularly the case for Rondeau’s Collision Centre located close to the Subject Property. In answer to the Tribunal’s hypothetical question, Mr. McArthur opined that the property where Rondeau’s Collision Centre is located could not today be re-zoned C1 or C2 in the absence of that use prior to the 1984 OP.

14For the above reasons, the Tribunal is not persuaded by the Applicant’s arguments based on the operation of similar businesses in the residential neighbourhood.

Incompatibility and Adverse impact

15Mr. McArthur testified that in his professional opinion the proposed use is incompatible with surrounding sensitive residential land uses. Therefore, in his view, the proposal was not consistent with Policy 1.1.1 c) of the PPS and would be non-conforming to the Town’s OP because “the proposed use will detract from the established neighbourhood by introducing increased traffic, noise, fumes and general incompatibility with the residential nature of the immediate area.”

16The allegation that the Applicant’s proposed uses would create added traffic, fumes, and noise, was a matter of considerable concern for the Applicant. The Applicant put significant effort, as best he could, to establish that the submission considered by the Town Council were based on incorrect facts. For the Applicant, there was no evidence of alleged traffic, fumes, and noise except in submissions filed by nine neighbours before the Town Council rendered its negative decision.

17Both in his evidence in chief and on cross-examination, Mr. McArthur claimed that he merely described what neighbours had submitted to the Town Council and did not draw adverse inferences when formulating his opinion. The Tribunal strongly disagrees and does not accept his evidence on this point.

18At paragraphs 31 to 40 of his Witness Statement, which was marked as Exhibit 2, he did factually describe the objections raised by neighbours in their submissions to Council. However, he most certainly relied on those very statements to extrapolate on detrimental nuisances without a proper evidence-based record (paragraphs 73, 75, 79, and 82 of his Witness Statement). A more skilled cross-examiner could have considerably undermined Mr. McArthur.

19There was no expert evidence or studies available on the noise, traffic and environmental concerns alleged by the neighbours. None were brought to the Tribunal’s attention on this de novo consideration of the Applicant’s ZBA request. None of the neighbours sought Participant or Party status. Mr. McArthur admitted in his oral evidence that his expertise was in the field of land use planning, and not in the field of transportation, noise, or environmental issues. Yet, he blamed the Applicant for having failed to provide evidence to address the concern that the proposed land use would cause environmental or public health or safety concerns. Mr. McArthur knew full well that such evidence was never requested by the Town, the Town never had before it a proper land planning report before making its decision (or any other report), and he and the municipality based their conclusions on mere apprehension of adverse impacts by lay neighbours, uncorroborated by any expert studies. The Applicant may not have been a sophisticated player, but he deserved far better treatment on this issue by the Town Council and the Town’s expert witness.

Conformity with OP

20Unfortunately for the Applicant, there are other valid reasons to conclude that the requested ZBA and the proposed uses were in non-conformity with the Town’s OP. Mr. McArthur noted that the Town has adopted a new OP in January 2023 but that it is not yet in force pending approval by the province. In Mr. McArthur’s professional opinion, the Town’s planning context does not contemplate or deem appropriate future commercial growth and development in residential areas. The intent of the OP, particularly Policy 2.3.1(d), is to direct commercial activities, such as those contemplated by the Applicant to non-residential areas. The Subject Property is not designated as an appropriate area for commercial growth. The Town’s expert evidence was not challenged by the Applicant through contradictory expert evidence. Accordingly, the Tribunal accepts the evidence of Mr. McArthur on this point and finds that the Applicant’s proposed uses and the requested ZBA are not in conformity with the Town’s OP, specifically Policy 2.3.1(d).

CONCLUSION

21There can be no doubt that the Applicant has the earnest goal of making a better life for himself and his family through hard work and dedication. However, the Tribunal is a statutory body bound by its legislative jurisdiction. No by-law may be passed by a municipal Council, or the Tribunal on an appeal, if it does not conform to an official plan that is in effect. For the reasons set out above, the Applicant’s proposed ZBA does not conform to the Town’s OP and the appeal must be dismissed.

22The Tribunal notes that no question was raised by the Town as to the continued use of the garage to support the Applicant’s classic-car hobby or to provide minor automobile repair services without a fee being charged.

ORDER

23THE TRIBUNAL ORDERS that the appeal is dismissed.

“Jean-Pierre Blais”

JEAN-PIERRE BLAIS

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.