Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 20, 2024
CASE NO(S).: OLT-24-000549
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: George E. Fridgen
Subject: Consent
Description: To separate a parcel of land to be added to abutting property as two lot additions
Reference Number: B-27-24
Property Address: 10457 Galop Lane
Municipality/UT: South Dundas/ United Counties of Stormont, Dundas and Glengarry
OLT Case No.: OLT-24-000549
OLT Lead Case No.: OLT-24-000549
OLT Case Name: Fridgen v. United Counties of Stormont, Dundas and Glengarry
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: George E. Fridgen
Subject: Consent
Description: To separate a parcel of land to be added to abutting property as two lot additions
Reference Number: B-28-24
Property Address: 10457 Galop Lane
Municipality/UT: South Dundas/ United Counties of Stormont, Dundas and Glengarry
OLT Case No.: OLT-24-000550
OLT Lead Case No.: OLT-24-000549
Heard: July 31, 2024
APPEARANCES:
Parties
Counsel/Representative*
George Fridgen and Lynda Turner
Lynda Turner*
Peter Fridgen
Self-Represented*
Cornwall Gravel Co. Ltd.
Malini Vijaykumar
United Counties of Stormont, Dundas and Glengarry
Peter Young*
DECISION DELIVERED BY ERIC S. CROWE AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1The matter before the Tribunal is Appeals by George Fridgen and Lynda Turner (“Applicants”) of Condition 3 of the Decisions for Consent Applications for the property at 10457 Galop Lane (“Subject Property”), in the Township of South Dundas (“Township”).
2The Applicants submitted concurrent Consent Applications to the United Counties of Stormont, Dundas and Glengarry (“United Counties”) to add land to the two adjacent lots.
3The severed and retained lots are currently zoned Residential Waterfront in the Municipality of South Dundas Zoning By-law 2010-48 (“ZBL”), while the benefitting lots are zoned Residential Waterfront Exception 10 (RW-10).
4The RW-10 zone states that:
RW-10 (Part Lot 29, Concession 1, Range 1) Matilda
Notwithstanding Section 5.8(2) to the contrary, for the lands zoned RW-10, the maximum setback for the rear wall of a dwelling or a well shall be 60 metres from Galop Lane.
5The Subject Property is designated Rural District on Schedule A2 of the 2018 United Counties Official Plan (“OP”) and are within 500 metres (“m”) of lands designated Extractive Resources Lands-Licenced Pit or Quarry. Additionally, the Subject Property and lands to the north are also within a Bedrock Resource area in the OP.
6The existing lot to be severed is designated as a Rural District and zoned as RW-10. The United Counties approved the Consent Applications on April 19, 2024 with the following conditions:
That the Applicants provide sufficient land for road widening purposes on Galop Lane for the retained lot (if necessary – 10 m from centreline to property line). The Township will clear the condition with the Land Division Coordinator.
That the owner and proposed transferee(s) acknowledge being advised that any well on the proposed severed parcel shall be a minimum depth of 30 m above sea level. The Township and Cornwall Gravel Co. Ltd. (“Cornwall Gravel”) will clear the condition with the Land Division Coordinator.
That the Township advises the Planning Secretary that a Zoning By-law amendment on the proposed severed lot has been applied for, and approved, which specifies a maximum setback of 60 m from Galop Lane for the construction of a dwelling and well. The setback is to be measured from the rear of the dwelling and/or well. The Township and Cornwall Gravel will clear the condition with the Land Division Coordinator.
The Applicants provide South Nation Conservation with a signed letter stating that all private sewage systems are at least 3 meters from the proposed property lines. South Nation Conservation will clear the condition with the Land Division Coordinator.
That the owners provide a signed acknowledgement recognizing they understand that the United Counties will not permit new and/or additional entrances onto County Road 2 from the severed and retained portions. The United Counties’ engineer will clear the condition with the Land Division Coordinator.
That the land being severed by this Consent shall be conveyed as an addition to abutting property and shall be held in identical ownership as said abutting property, and the Land Division Coordinator shall be provided with a copy of the abutting property owner's deed for verification. The provisions of subsections 3 or 5 of Section 50 of the Planning Act, R.S.O. 1990, c. P.13, as amended, shall apply to any subsequent conveyance relating to the said lot.
That the Land Division Coordinator be provided with a description of the land to be conveyed that is consistent with the Consent Applications and sufficient and equal to that required for the registration of a deed or other conveyance of land under the provisions of the Registry Act. A digital copy in PDF format of the new deeds for the severed parcel is to be provided to the Land Division Coordinator for the issuance of the certificate of the Secretary, and the stamping fee of $255.00 must accompany the deeds. A digital copy in PDF format of the Deposited Reference Plan must also be submitted to the Land Division Coordinator.
7The Applicants and Peter Fridgen are the executors of their late father, William G. Fridgen’s, estate, which owns the severed parcel, as well as the Applicants of the benefitting parcels for the lot additions. The above noted 60 m setback is enforced under the existing zoning of the benefitting parcels, RW-10, per the Township’s comprehensive ZBL.
8The Applicants are contesting Condition 3 on the basis that the existing RW-10 zoning implemented on their parcels of Consent Applications did not provide adequate rationale for the 60 m setback and limits the location of a residence on the new severed lots.
BRIEF CHRONOLOGY OF THE APPLICATIONS
9In 1994, the Applicants’ father, William G. Fridgen, contested the, at the time, new Zoning By-law No. 93-94 (“new ZBL”) with the Township of Matilda, which is now the Township. In this case the change of zoning from Rural in the Township’s old Zoning By-law No. 80-4 to Residential Waterfront in the new comprehensive ZBL and separation distance from the Cornwall Gravel Iroquois Quarry (“Quarry”) from his lands.
10The new ZBL established separation distances from a “Quarry”. As described in the January 27, 1994, letter from J.L. Richards planning consultants on behalf of the Township of Matilda (Exhibit 2):
the approach taken in the new comprehensive Zoning by-law is intended to be less discretionary and confusing by ensuring that a ‘zone boundary’ not ‘an excavation’ is the reference point for measurement. This assists the Municipality in more consistently administering its Zoning By-law.
11In 1995, the Applicants’ father appealed the Township’s decision on a new comprehensive Zoning By-law 93-34 (“ZBL 93-34”) to the then Ontario Municipal Board (“OMB”). The new provisions prohibit new dwellings within 210 m of land zoned Mineral Aggregate-Quarry.
12On March 4, 1997, the OMB issued its decision (Fridgen v. Cornwall Gravel Co., 1997 CarswellOnt 7929 (OMB)). The Member approved ZBL 93-34, as amended, with the exception of section 3.18(d) as it related to the Fridgen lands. In this decision the amended ZBL 93-34 is to read as follows:
[Notwithstanding any provisions of this By-law to the contrary, new dwellings will be prohibited in the following locations;] 3.18(d) within 210 meters of the extraction limit contained in the aggregate license for any quarry.
13At the time the Member was clear in her Order that the appeal in front of her was the separation distance provisions and that she had no jurisdiction to deal with the zoning of either the Quarry or the waterfront lands.
14In 2012, the Applicants’ father came to an agreement with Cornwall Gravel and the Township with respect to applications for consent of B61-10 and B62-10 (the retained lands in the new Consent Applications). The existing RW-10 zoning implemented on their parcels per Condition 2 of those Consent Applications B61-10 and B-62-10 (consents which created the lots benefitting from B-27-24 and B-28-24, respectively) which the Applicants claim did not provide adequate rationale for the 60 m setback.
15The Applicants claim that their father came into agreement with Cornwall Gravel and the Township to agree to the Consent with a condition of a 60 m setback under “duress”. In this case, Tracy Zander, a land use planner, on behalf of Cornwall Gravel submitted in a letter dated June 15, 2010 (Exhibit 11) that William Fridgen had not submitted any supporting studies or reports that consider reciprocal impacts of the proposed residential lots and the adjacent aggregate operations as required under section 5.06.4.2 of the OP. The Township deferred the two Consent Applications pending an assessment of the reciprocal impacts.
16Subsequently, the Applicants’ father and son, Peter Fridgen, provided a report written by Dr. Anthony West, a Senior Geo-Environmental Engineer of Morrison Hershfield, on the assessment of reciprocal impacts between the Subject Property and the extractive resource lands dated April 5, 2012 (“Report”) (Exhibit 5).
17In Dr. West’s summary and conclusions of his Report, he concluded that future quarry-related impacts at the two proposed lots is unlikely, and that the creation of the two proposed lots would not negatively affect the potential for mineral resource extraction north of Highway 2.
18Dr. West supported his findings by highlighting the following:
The two proposed lots are naturally protected from groundwater-impacts by their proximity to the St. Lawrence;
The two proposed lots are naturally protected from noise and dust impacts by the band of mature trees at their immediate rear;
The geology of the area and the existing licenses suggests that, zoning notwithstanding, aggregate extraction closer than approximately 400 m from the two proposed lots is unlikely; and
The quarries and the 11 existing residences are coexisting without significant impacts to date, and the two proposed lots would be among the best protected in the area from quarry-related impacts.
19Based on the Report, a meeting took place on May 18, 2012, which included the Quarry owner, Quarry owner’s planner, United Counties’ planner and Applicant, at that time. Following the meeting, the United Counties approved the Consent Applications with condition of approval requiring a 60 m maximum setback from Galop Lane. Both Consents, and the associated Zoning By-law 2012-72 (“ZBL 2012-72”)to create RW-10 zone were approved without appeals.
20In the present case, the RW-10 zone was a condition of Consent Applications B-61-10 and B-62-10 when the benefitting lots were originally created. The Condition states:
That the Township of South Dundas advises the Planning Secretary that a Zoning By-law amendment on the proposed severed lot has been applied for, and approved, which specifies a maximum setback of 60 metres from Galop Lane, for the construction of a dwelling and well. The setback is to be measured from the rear of the dwelling and/or well.
21On April 19, 2024, both Consent Applications were provisionally approved, subject to seven conditions of approval.
22Condition 3 from both decisions is subject of the Appeals and requires the severed lots to be rezoned to RW-10 to match the zoning for the benefitting lots.
PARTY STATUS REQUEST
23The Tribunal granted Party status to Peter Fridgen and Travis Mitchell (Cornwall Gravel) with no objections from United Counties at the commencement of the Hearing, as they have a substantial interest in this matter and had evidence to offer, which was necessary for the adjudication of this matter by the Tribunal.
SITE CONTEXT
24The Subject Property is located south of Highway 2 and fronts onto the St. Lawrence River, and is north of Galop Lane. North of Highway 2 is the Quarry. Also located near, and on the Subject Property, are black walnut trees and evergreen trees.
LEGISLATIVE FRAMEWORK
25In making a decision under the Planning Act (“Act”) with respect to these Consents, the Tribunal must have regard to matters of provincial interest as set out in s. 2. Under s. 2.1(1) of the Act, the Tribunal must also have regard to any decision of the Township made under the Act that relates to the same planning matter, and the information considered by the Township in making those decisions.
26Under s. 3(5) of the Act, the Tribunal’s decision must be consistent with the provincial interests expressed in policy statements, being the provincial policy statement (“PPS”) in effect at the date of this decision.
27Per s. 53(1) of the Act, consents may be considered if a plan of subdivision is not necessary to achieve proper and orderly development. Under s. 53(12), due regard is required to the provisions of s. 51(24), including official plan conformity. Conditions may be imposed under s. 51(25) if provisional consent is given.
PLANNING EVIDENCE
28Evidence in support of the Consent Applications was provided by the Applicants, while evidence against the Consent Applications was provided by Peter Young, for the United Counties, who was duly qualified on consent to provide opinion evidence in land use planning. Travis Mitchell was a lay witness for Cornwall Gravel.
29Mrs. Turner provided substantial evidence of her father’s previous Consent Applications B-61-10 and B 62-10 and the eventual agreement with Cornwall Gravel and the United Counties in 2012. She contends that her father was under duress to make that agreement with the condition requiring a 60 m maximum setback from Galop Lane, and although he received the Consents, he was still not satisfied with that specific condition.
30Mrs. Turner highlighted her father’s appeal of the County’s new comprehensive ZBL 93-34 in 1997 to the then OMB. As noted previously, the OMB decided:
[Notwithstanding any provisions of this By-law to the contrary, new dwellings will be prohibited in the following locations;] 3.18 (d) within 210 meters of the extraction limit contained in the aggregate license for any quarry.
31Mrs. Turner relies on the Report in 2012, highlighting that there would be no groundwater impacts due to the St. Lawrence River, no vibration, noise, and dust impacts due to the mature trees currently on the Subject Property, and there are 11 existing residences which are co-existing without significant impacts to date. Therefore, the future quarry-related impacts at the two proposed lots are unlikely.
32Travis Mitchell, a Geoscientist and project manager for Cornwall Gravel testified, that he was involved in the original meeting with the late William Fridgen on May 18, 2012. Following that meeting, the County approved the Consent Applications with a condition of approval requiring a 60 m maximum setback from Gallop Lane. Both Consents and the associated ZBL 2012-72 to create the RW-10 zone were approved without appeals.
33With respect to the allegation that William Fridgen was under duress, Mr. Mitchell recalled that the meeting was “friendly” and that Cornwall Gravel and him got along “pretty well” as neighbours.
34Mr. Mitchell testified the agreement with William Fridgen in 2012 with the 60 m setback satisfied the concerns of Cornwall Gravel and the United Counties. According to Mr. Mitchell, the 60 m setback was determined based on it being 500 m from the excavation boundary of the Quarry on the site plans, in accordance with the setback requirements in the PPS.
35Mr. Mitchell advised that there were no new studies for these new Consent Applications and that the Report in 2012 relied upon by the Applicants was more of an observational report than a technical report that is required by the Aggregate Resources Act (“ARA”).
36Mr. Mitchell advised that the Report does not correspond to the new Consent Applications and there is no technical memorandum on hydrogeology, noise, blasting vibration, traffic studies, and planning studies that are required as part of the ARA application impacts.
37In response to the Applicants’ assertions that the Report identifies that the mature trees will form an effective noise and dust barrier, Mr. Mitchell advised the ARA requires berms to be built for an acoustic barrier and that trees are not considered an acoustic barrier.
38Mr. Mitchell emphasized that the 2012 agreement and Consent Applications of having a condition of a 60 m setback was not appealed.
Planning Act
39Mr. Young, a land use planner and Director of Planning and Economic Development Services for the United Counties, advised the Consent Applications have had regard to s. 51(24) of the Act. According to Mr. Young, the most applicable criteria include:
a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in s. 2 of the Act, including the conservation and management of natural resources and the mineral resource base, the orderly development of safe and healthy communities; and the protection of public health and safety;
c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any; and
g) the restrictions or proposed restrictions, if any, on the land proposed to be, or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land.
40The Tribunal notes that the other criteria of s. 51(24) of the Act were all duly considered; however, it was found that the other criteria were not contested or applicable to the contested issues of the present case.
Provincial Policy Statement
41Mr. Young informed the Tribunal that Part IV of the PPS (2020) provides the overall vision for Ontario’s land use planning system, stating that:
It is equally important to protect the overall health and safety of the population, including preparing for the impacts of a changing climate. The Provincial Policy Statement directs development away from areas of natural and human-made hazards. This preventative approach supports provincial and municipal financial well-being over the long term, protects public health and safety, and minimizes cost, risk and social disruption.
42Mr. Young also highlighted section 2.5.2.4 of the PPS (2020) which states that:
Mineral aggregate operations shall be protected from development and activities that would preclude or hinder their expansion or continued use or which would be incompatible for reasons of public health, public safety or environmental impact.
43According to Mr. Young, the proposed development would enlarge the benefitting lots and potentially permit dwellings and wells within the influence area of the Quarry on the newly enlarged lots, and closer to the Quarry than the current RW-10 zoning allows for the benefiting lots.
44Mr. Young contends that Condition 3 requires that the severed lands meet the setbacks for wells and dwellings as the benefitting lots, in accordance with the setbacks considered when the lots were originally approved.
45Therefore, in Mr. Young’s opinion, Condition 3 is consistent with the PPS (2020).
United Counties Official Plan 2018
46Mr. Young advised the Subject Property is designated Rural District on Schedule A2 of the OP and are within 500 m of lands designated Extractive Resource Lands – Licenced Pit or Quarry. Additionally, the Subject Property and lands to the north are also within a Bedrock Resource area identified in Schedule B5 of the OP, and section 5.4 of the OP provides the overall policy direction for development within and adjacent to extractive resources and extractive operations.
47Mr. Young advised that table 5.4.2 of the OP states that the influence area for bedrock resources is 500 m, which is consistent with the ARA. Additionally, section 5.4.2 of the OP states that: “Measurement of the separation distances shall be from the boundary of the Extractive Resource Lands designation shown on the Land Use Schedules.”
FINDINGS
48In determining this matter, the Tribunal prefers the land use planning evidence and expert opinion provided by Mr. Young, and the evidence of lay witness Mr. Mitchell. The Tribunal is persuaded by the evidence that Condition 3, to have a maximum setback of 60 m from Galop Lane for the construction of a dwelling and well, has regard to the criteria established in s. 51(24) of the Planning Act.
49Section 5.4.2 of the OP states that:
When reviewing applications for non-mineral development within an influence area for a pit, quarry, or mineral aggregate reserve, the proponent must provide supporting information and/or technical studies to demonstrate:
That the proposed development will not preclude or hinder existing mineral aggregate operations or the establishment of new operations; and
That impacts such as noise, dust, vibration can be mitigated through design. Where residential and other sensitive land uses are proposed adjacent to a pit or quarry, the applicant shall demonstrate that the quality and quantity of groundwater is suitable.
50The Tribunal finds that the Report that the Applicants relied upon in this Hearing, is outdated and does not reference the new provincial policies or standards. The Tribunal agrees with Mr. Young and Mr. Mitchell, the Report also does not have technical information such as noise, dust, and vibration studies required to demonstrate impacts, and does not include an evaluation of the proposed lot additions. The Tribunal also agrees that trees alone are not considered an acoustic barrier for the purposes of the ARA.
51The Tribunal finds the RW-10 zone Condition 3 is consistent with the PPS (2020), reflects the objectives of the OP, has regard for the matters under s. 51(24) of the Act, and constitutes good planning.
52Section 6.2.2 of the OP includes policies on zoning near aggregate operations which states:
The zoning By-law of a Local municipality shall prohibit residential development within a prescribed minimum separation distance from a licensed pit or quarry or from a mineral aggregate reserve, except on existing lots of record (subject to Section 3.5.7) and as an accessory use to a permitted agricultural use.
53The Tribunal agrees with Mr. Young that Condition 3 implements the above sections of the OP by applying the RW-10 zone from the benefitting lot consistently to the enlarged parcel, and Condition 3 conforms to the OP.
54The Tribunal finds regard was had to ss. 51(24)(a) and (c) of the applicable policies of the Province of Ontario related to development near mineral aggregate resources which were considered for Condition 3. Additionally, for s. 51 (24)(g), Condition 3 is appropriate to have consistent zoning on the entire parcel, rather than having a parcel with multiple zones and setbacks that conflict.
55In regard to the Applicants’ arguments on the influence area between a quarry and a dwelling of 500 m, and the extraction limit of 250 m, the Tribunal recognizes the J.L. Richards letter dated January 27, 1994 (Exhibit 2) in reference to the then Township of Matilda ZBL 93-34, whereby the planning consultants highlighted section 3.18(d) and stated:
it is preferable for the Municipality to retain unto itself a power to regulate from zones which it establishes rather than regulating from a boundary which provincial licensing officials can change from time to time. The approach which you suggest would leave the Municipality and its landowners in a state of uncertainty as to the lands ultimately affected by the separation distance.
56The Tribunal acknowledges that the Applicants have been described as good and excellent neighbours to the Cornwall Gravel throughout the years. As noted in the Hearing, Mrs. Turner and Peter Fridgen presented their case professionally as self-represented litigants. As noted by Mr. Young and Mr. Mitchell, there is less concern with the Fridgens than with the future lots and residents that may have an impact on the Quarry. This is one of the reasons why the ZBL was implemented and the 60 m setback was added as a Condition to the current Consent Applications.
57As noted in the 1997 OMB case, in reference to only having the separation distance provisions in front of the presiding Member, similarly, this Member only has Consent Applications, with one Condition being appealed to be decided upon. The Tribunal is not lost on the fact that this decision will have similar feelings of their late father as bittersweet, with satisfaction of getting two lots but being somewhat restricted on those lots.
58The Tribunal agrees with Mr. Young that legislation, polices, official plans, and zoning by-laws change over time. The former polices and objectives are informative, but not determinative. Original lots of record have different standards from new lots of record. In this case, new lots require 500 m influence area from the Quarry.
59The Tribunal agrees with Counsel of Cornwall Gravel, in her closing submission, that there is reassurance to ensure general intent and purpose of the OP and ZBL are respected, and to prevent possible future reciprocal impacts from the operation of the Quarry.
60The Tribunal finds in this case Condition 3 of the 60 m setback of the Consent Applications are consistent with the current PPS and reflect the overall policy direction and objectives of the OP and has regard for the matters under s. 51(24) of the Act, and constitutes good planning.
ORDER
61THE TRIBUNAL ORDERS THAT the Appeals are dismissed and the Conditions imposed on the provisional consent by the decision of United Counties of Stormont, Dundas, and Glengarry Council, dated April 19, 2024, remains in effect.
“Eric S. Crowe”
ERIC S. CROWE
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.