Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 19, 2024

CASE NO(S).: OLT-23-000617

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Erik Kowal and Kim Kowal

Subject: By-Law No. 2023-080

Description: Proposed Rural Residential Lot

Reference Number: C05-2023

Property Address: Concession 9, Lots 13 and 14, geographic Township of Percy

Municipality/UT: Trent Hills / Northumberland County

OLT Case No.: OLT-23-000617

OLT Lead Case No.: OLT-23-000617

OLT Case Name: Kowal v. Trent Hills

Heard: November 16, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Erik Kowal, Kim Kowal	Self-represented*
James Orr, Township of Trent Hills	Self-represented*, Jennifer Savini

DECISION DELIVERED BY S. GOPIKRISHNA AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1This Appeal results from the Approval of the Zoning By-Law Amendment (“ZBA”) No. 23-0080, by the Township of Trent Hills (“Township”), on the basis of an Appeal submitted by Erik Kowal and Kim Kowal (“Appellants”), against the approval of an Application submitted by James Orr (“Applicant”) to rezone the retained portion resulting from the severance of a lot of agricultural land owned by him. It is important to note that the Applicant submitted a separate application to the Township to sever the existing plot of land (“Consent”), identified as Concession 9, Lots 13 and 14, geographic Town of Percy (“Site” or “Subject Lands”), in conjunction with the ZBA Application, that is now being appealed to the Ontario Land Tribunal (“Tribunal”). The Municipal Council (“Council”) of the Township approved both the Consent Application and the ZBA, numbered B06-2023, and C05-2023, on May 9, 2023, and May 23, 2023, respectively.

2The Parties involved in this Proceeding include the Township, in addition to the Applicant, and the Appellants.

3The Appellants completed an application to summons Cristal Laanstra, Manager of Planning for the Township, and Jim Peters, the Director of Planning for the Township on September 10, 2023. On November 10, 2023, the Tribunal approved the application to summons Cristal Laanstra and refused the application to summons Jim Peters.

4At the Hearing completed on November 16, 2023, the Applicant, and the Appellants represented themselves, while the Township was represented by Ms. Jennifer Savini, a lawyer.

ZONING BY-LAW AMENDMENT

Zoning By-law Amendment Application No. 23-0080

5The ZBA seeks to rezone the severed portion from Severance Consent Application B06/2023 to the Rural Residential (RR) Zone and Environmentally Sensitive (ES) Zone. The current zoning of the Subject Lands is Rural (RU) Zone, Environmentally Sensitive (ES) Zone and Environmental Protection (EP) Zone. The proposed zoning for the severed portion of the lands would be the Rural Residential (RR) Zone. The zoning for the retained portion would remain in the Rural (RU) Zone, Environmentally Sensitive (ES) Zone and the Environmental Protection (EP) Zone. All Environmental Protection (EP) Zoning would remain in place.

LEGISLATION

6When adjudicating a ZBA appeal, the Tribunal must determine whether the proposed instrument:

• is consistent with policy statements issued by the Minister, which in this case are the Provincial Policy Statement, 2020 (“PPS”);

• conforms with provincial plans, which, in this case, includes the Growth Plan for Golden Horseshoe, 2019 (“Growth Plan”);

• conforms with applicable Official Plans, which, in this case, include the Trent Hills Official Plan (“THOP”), and the County of Northumberland Official Plan (“COP”);

• represents good planning.

EVIDENCE AND SUBMISSIONS

7The Tribunal heard evidence from the Applicant, the Appellants, and the Township. The Applicant spoke briefly about why he submitted the Applications for the Consent, and the ZBA to the Township. He said that the reason for the Consent was his desire to gift property to his daughter, and her family, so that they could live next to his property, and raise a family. The Applicant explained that facilitating the transfer of land to his daughter’s family required a Consent application, as well as a ZBA application because the retained portion, which is classified as Rural (RU) would continue to be used for agricultural purposes. On the other hand, the severed portion, presently classified as RU, cannot be used for residential purposes, resulting in the need for a ZBA for reclassification of the land as Residential Rural (RR) in order for an existing house to remain on the severed land, which would house his daughter’s family.

8The Appellants explained that the reason for their appealing the decisions made by the Council to the Tribunal is that Section 5.4.2 c (i) of the THOP limits the number of severances of any lot of land to a maximum of two. Mr. Kowal stated that the Subject Lands had previously been the subject of two different severance applications in 2016, both of which were successful, and asserted that the land could not be further subdivided, because the Applicant had exhausted the number of severances allowed under the THOP. He also questioned the “precedent” being set regarding the use of agricultural land, as a result of approving the Consent and ZBA and wondered if more agricultural land would be lost to residential housing, if the Tribunal refused his Appeal.

9Ms. Laanstra, the Manager of Planning for the Township, was affirmed, and qualified to provide opinion evidence in the discipline of land use planning. She recounted the history of the Applications pertaining to the Subject Lands, and how the Council approved both of them, notwithstanding the recommendation from planning staff for the refusal of both. She provided details of the Consent Application B06/2023, which proposed to create one (1) new parcel being approximately 1.11 hectares (2.75 acres) of vacant land for residential building purposes with approximately 250 feet of frontage onto Heath Drive.

10Ms. Laanstra added that the purpose and effect of the ZBA C05-2023 was to rezone the severed portion. She emphasized that the Site is simultaneously zoned Rural (RU), Environmentally Sensitive (ES), as well as Environmental Protection (EP), and added that the proposed zoning for the severed portion would change to the Rural Residential (RR) Zone. Ms. Laanstra clarified that the retained portion, consisting of 114.92 hectares (283.97 acres) of vacant land, will be simultaneously zoned Rural (RU), and Environmental Protection (EP).

11Speaking to the relationship between the Applications and the PPS, Ms. Laanstra prefaced her comments by explaining the purpose of the PPS, and spoke to how it encourages healthy, livable and safe communities through promotion, and sustenance of efficient development and land use patterns, which sustain the financial well-being of the Province and municipalities over the long term.

12Ms. Laanstra pointed out that the Site is designated Rural (RU) within the OP, and is located in an area identified as Rural Areas by the PPS. She explained that within this identification, Section 1.1.4.1 of the PPS promotes the healthy and viable uses, which leverage rural amenities and assets, through accommodating new housing in rural settlement areas, while promoting redevelopment of existing housing stock on rural lands. She expanded on how Section 1.1.5.2 (c) of the PPS permits residential development, including lot creation that is locally appropriate. Expanding on the expression “locally appropriate”, Ms. Laanstra explained that this use is further defined and refined within each individual municipality, and that the objectives of the PPS are implemented locally through the COP, and the THOP.

13Ms. Laanstra pointed out that the Site is located within the Rural Area of the COP, and that the creation of lots permitted in this designation is determined by what the intent and purpose for the lands are, as specified in the COP. She explained that as a result of the Site not being designated for residential development changes resulting in a residential use of the Site are not recommended. She concluded that as a result of the Subject Lands being designated for agricultural purposes, as opposed to the residential purposes requested in the ZBA, the Application does not conform to the COP.

14Ms. Laanstra then spoke to the relationship between the Site and the THOP. She prefaced her remarks by reiterating that the THOP designates the Site as Rural (RU), and that Section 5.4.2(c) of the THOP restricts the creation of rural residential lots, to a limited number specified in the THOP. She described how consideration is to be given to the proposed use and the topography and the general pattern of development in the area surrounding the Site, to determine the appropriateness of the creation of new lots.

15Ms. Laanstra emphasized that the THOP limits the number of successful Consent applications resulting from any lot to a maximum of two. She then stated that the Council had already approved two consents from the original lot, both of which were approved in 2016, in the form of Applications B26/2016 and B27/2016, and that these consents have been completed. Ms. Laanstra concluded that the existing Consent exceeds the permitted number of rural residential lots from an original land holding, as a result of which it does not conform to the THOP.

16Speaking to the relationship between the ZBA and the ZBL, Ms. Laanstra spoke to the impacts of lot creation, and opined that while perspectives on the impacts of lot creation can vary, depending on whether or not cumulative impacts are considered, she preferred to focus on the latter. Speaking to the cumulative impact of successive creations of lots, Ms. Laanstra said that in this case, the impact would be to detract from small hamlet and settlement area investments, necessary for the maintenance of viable rural communities. Ms. Laanstra explained that the placement of additional restrictions on agricultural practices, including rezoning lands for residential uses, would increase the lands removed for rural land uses. She described how such development typically costs municipalities extra money by way of rural servicing in the form of emergency services, road maintenance expectations, school bussing numbers and waste management, and how these costs more than offset any increase to the additional revenue contributions to the municipal tax base.

17Ms. Laanstra opined that while one additional lot on a single land holding within the Municipality may seem minor, the cumulative impact of multiple additions is comparable to a “snowball impact”, when one takes into account the thousands of land holdings in the Township within the Rural (RU) designation. She said that the Township has policies in place to create a primary threshold for lot creation before cumulative impacts need to be even considered, and that this Application did not meet that primary threshold, which resulted in her recommending the refusal of the Consent application, which meant that the ZBA Application should also be refused, because the latter is a consequence of the former.

18Ms. Laanstra added that while the Applicant’s intention may be to use the newly created lot for agricultural purposes, her conclusion, based on her experiences of working with similar applications, was that the lot size of the severed lot, precluded further agricultural use, which “further supported the Township staff’s recommendation for refusal of the Applications”.

19As a result, Ms. Laanstra concluded that the ZBA must be repealed.

20In response to a question from the Tribunal asking Ms. Laanstra to confirm that the Appeal was restricted to the ZBA, Ms. Laanstra pointed that one of the conditions that had been imposed on the approval of the Consent was the requirement of a ZBA pertaining to the severed lot. The Tribunal understood Ms. Laanstra’s evidence to mean that refusing the ZBA would result in a nullification of the Consent, because the conditions imposed on the latter had not been fulfilled.

21Ms. Savini asked Ms. Laanstra if a residential house could be permitted under the existing zoning for the Site, to which the answer was in the affirmative. Ms. Savini then asked whether a resident dwelling is permitted as-of-right in the Environmental Protection (EP), and Environmentally Sensitive (ES) zones (which would be the zoning governing the Site if the ZBA were approved) to which Ms. Laanstra again replied in the affirmative. Ms. Laanstra also confirmed that the contemplated change in zoning would not impact the existing house at the Site.

22Ms. Savini asked Ms. Laanstra if there was any reference in the PPS to the zoning governing any site, which was answered in the negative. The next question focused on whether the Council’s approval of the Consent to sever was “provisional, including the rezoning”, which was answered in the affirmative.

23Ms. Savini asked Ms. Laanstra a hypothetical question where if the consent did not result in the creation of the smaller lot with an existing house, would it be reasonable for a lot, with an area of 2.75 acres, to be classified as Rural Residential (RR), which was answered in the affirmative.

ANALYSIS AND FINDINGS

24In response to a question from the Tribunal, the Parties agreed that the only matter before the Tribunal is the ZBA appeal, to the exclusion of the severance application. The Tribunal did not hear the Appeal of the Severance Application.

25The Tribunal acknowledges the evidence from the Applicant, which focused on how the requested ZBA would make it possible for his extended family to live in proximity to each other, as well as the evidence of the Appellant, which objected primarily to the consent application. While it acknowledges these perspectives, it accords little weight to this evidence because the former does not speak to the planning merits of the ZBA, while the latter focuses on the severance application, which is not before the Tribunal.

26The Tribunal notes that Ms. Laanstra was the only witness to speak to the planning aspect of the ZBA. The Tribunal thanks Ms. Laanstra for her thorough and thoughtful evidence throughout the Proceeding, recognizes that her evidence is uncontroverted, and consequently, accords weight to her planning evidence.

27Ms. Laanstra’s evidence spoke to how both the COP and THOP speak to how agricultural uses need to be sustained and promoted on lands designated Rural Lands, and RU respectively, both of which include the Subject Site. The Tribunal finds that the purpose of the ZBA is to rezone the severed lot as Rural Residential (RR), and it accepts the planning evidence about how such a reclassification would interfere with the Subject Site’s further utilization for agricultural purposes. On this basis, the Tribunal finds that the ZBA does not conform to the applicable Official Plans.

28The uncontroverted evidence from the Planning Witness demonstrated how both the PPS, and Growth Plan emphasize the preservation of agricultural land for agricultural purposes. Given that an approval of the proposed ZBA would result in the conversion of agricultural land to residential uses, and the consequent loss of agricultural land, the Tribunal finds that the Application is not consistent with the PPS and the Growth Plan.

29Given the findings about the proposed ZBA’s lack of ability to be consistent with the PPS, conform with the Growth Plan, and conform to the applicable OPs, the Tribunal thinks it appropriate to examine the impact of repealing the ZBA on what currently exists at the Subject Site. The Tribunal notes that the Township’s questions asked to Ms. Laanstra focused on what the zoning for a small lot, of 2.75 acres with a house, would be under various scenarios. The evidence demonstrated that the existing agricultural uses would not be impeded were there no change to existing zoning. The evidence also established how a residence is permitted under the existing zoning, including the Rural (RU), Environmentally Sensitive (ES) and Environmental Protection (EP) zoning. As a result, the Tribunal finds that repealing the ZBA would result in the preservation of the agricultural uses, as well as the continued use of the residence at the Subject Site. In other words, there are no negative impacts from a usage perspective if the ZBA were repealed.

30On the basis of the above analysis and findings, the Tribunal finds that the ZBA application should be repealed.

DECISION AND ORDER

31THE TRIBUNAL ORDERS THAT the Appeal is allowed, and that the Zoning By-law Amendment is repealed.

“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.