Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 24, 2025

CASE NO(S).: OLT-23-000213

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

Appellant: Angelo Pompilio

Subject: By-law No. 2023-012

Description: To amend the Zoning By-law for the Schomberg and Kind City Urban Areas

Reference Number: Z-2022-17

Property Address: Town Wide

Municipality: Township of King

OLT Case No.: OLT-23-000213

OLT Lead Case No.: OLT-23-000213

OLT Case Name: Pompilio v. King (Township)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Angelo Pompilio

Request for: Request for Directions

Heard: September 4, 2024 by Written Hearing

APPEARANCES:

Parties

Counsel

Angelo Pompilio

Steven Ferri

Township of King

Tom Halinski Jasmine C.M. Fraser

DECISION DELIVERED BY S. Dixon AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

Background

1This Decision and Order arises from a Motion for Directions (“Motion”) filed by the Township of King (“Township”) in response to an appeal by Angelo Pompilio (“Appellant”) pursuant to s. 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Planning Act”), concerning the Township’s passing of Zoning By-law No. 2023-012 (“By-law 12”).

2By-law 12 amends Township Zoning By-law No. 2017-066 (“By-law 66”) for the Schomberg and King City Urban Areas of the Township.

3The Appellant claims that the Township did not have jurisdiction to pass By-law 12 because it amounts to a form of conditional zoning, which is not authorised by the Planning Act. The Appellant further asserts that By-law 12 is an attempt by the Township to circumvent amendments to the Planning Act introduced through the More Homes Built Faster Act, 2022, S.O. 2022, c. 21 (“Bill 23”), which generally removed the Township’s ability to impose site plan control on residential developments with 10 or fewer units.

4At the first Case Management Conference held for these proceedings, the Parties agreed that the jurisdictional question raised by the Appellant ought to be determined prior to the matter proceeding further.

5Accordingly, the Motion was filed by the Township seeking a determination by the Tribunal that Council for the Township had jurisdiction to pass By-law 12 pursuant to s. 34 of the Planning Act. In the alternative, the Motion seeks direction from the Tribunal as to how the mandatory directions in s. 7(1) of the Oak Ridges Moraine Conservation Act, 2001, S.O. 2001, c. 31, as amended (“ORMCA”) and s. 7 of the Oak Ridges Moraine Conservation Plan, 2017 (“ORMCP”) are to be implemented under the Planning Act, if not pursuant to a by-law adopted under s. 34 of the Planning Act.

6On November 2, 2023, the Motion was heard by a differently constituted panel of the Tribunal and a written Decision and Order was issued on March 13, 2024 (“Prior Decision”).

Rehearing Ordered

7Following the issuance of the Prior Decision, the Appellant submitted a Request for Review pursuant to s. 23 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6, as amended, and Rule 25 of the Tribunal’s Rules of Practice and Procedure.

8Pursuant to the Tribunal’s disposition letter dated July 12, 2024, the Chair of the Tribunal ordered a rehearing of the Township’s Motion. A subsequent Order implementing the Chair’s disposition was issued on August 21, 2024, ordering that:

a) The Prior Decision be set aside and rescinded;

b) The Motion be reheard in writing by a differently constituted panel; and

c) Said written hearing is to be on the basis of the materials already filed by the Parties, with the exception that the Appellant may file a sur-reply.

Exhibits

9In accordance with the August 21, 2024 Order of the Tribunal, the following materials have been relied on in consideration of the Motion by this panel of the Tribunal and, where noted, are hereby marked as exhibits to this proceeding as follows:

• Exhibit 1: Affidavit of Service of Cailey Budd, sworn September 20, 2023;

• Exhibit 2: Motion Record of the Township, dated September 19, 2023;

• Brief of Authorities of the Township, dated September 19, 2023;

• Exhibit 3: Responding Motion Record of the Appellant, dated October 10, 2023 (“Response”);

• Book of Authorities of the Appellant, dated October 10, 2023;

• Exhibit 4: Reply Motion Record of the Township, dated October 27, 2023 (“Reply”);

• Reply Brief of Authorities of the Township, dated October 27, 2023;

• Exhibit 5: Sur-Reply Motion Record of the Appellant, dated August 26, 2024 (“Sur-Reply”); and

• Sur-Reply Brief of Authorities of the Appellant, dated August 26, 2024.

10In support of the Township’s position, the Township’s Motion and Reply each include a sworn affidavit from Kristen Harrison. Ms. Harrison is the Manager of Policy Planning at the Township and a Registered Professional Planner.

11In support of the Appellant’s position, the Appellant’s Response and Sur-Reply each include a sworn affidavit from Sally Campbell. Ms. Campbell is a Planner with the Municipal, Land Use Planning and Development practice group at Loopstra Nixon LLP and a Registered Professional Planner.

12As the matter before the Tribunal is a jurisdictional question, the affidavits are not intended, nor required, to provide expert land use opinion evidence to the Tribunal.

13Notwithstanding the above expectation, the Tribunal is sympathetic to the complex nature of the matter at hand and understands that, at times, the information provided by the affiants may veer – or even perceive to veer – into the territory of professional opinion evidence. The Tribunal has examined all case materials with this understanding and has reached its conclusions based on the factual information and legal submissions before it, and not on any submission that may verily or seemingly amount to the opinion evidence of either planner.

ISSUE

14The core issue before the Tribunal in this Motion is straightforward: Did the Township have the jurisdiction to pass By-law 12 under s. 34 of the Planning Act?

15That issue is clearly stated in paragraph 1 of the Township’s Reply:

1. The Township’s motion seeks direction with respect to the following, focused legal question: Did the Township have the jurisdiction to pass [By-law 12] under section 34 of the Planning Act? The question is a purely legal one. While the motion seeks additional direction in the alternative, the need for that direction would be engaged only if the answer to the jurisdictional question was adverse to the Township.

(p. 5, Exhibit 4)

16Notwithstanding the Township’s characterisation of the issue above, the Township’s initial Motion frames the issue somewhat differently – though not inconsistently, as follows:

4. This motion is about whether the Planning Act authorizes a municipality to pass a zoning by-law which implements the direction in the ORMCP to ensure that the creation of a single dwelling would not adversely affect the ecological integrity of the ORMCP Area.

(p. 3, Exhibit 2)

17Interestingly, there does not appear to be much dispute between the Parties on the general principle articulated in paragraph 4 of the Motion, above (i.e., as to whether the Planning Act authorises a municipality to implement the direction in the ORMCP by way of zoning by-law amendment). Rather, where the Parties disagree is whether the Township’s approach to implementing the direction in the ORMCP through the adoption of By-law 12 is in contravention of the Township’s authority pursuant to s. 34 of the Planning Act.

18That nuance is best articulated at paragraph 4 of the Appellant’s Response, which states, in part, that:

4. This motion is about:

(a) Whether the Township has the authority pursuant to the Planning Act to pass a zoning by-law which includes [provisions] which provide use permissions and regulations respecting the erection, location, extension, and construction of buildings and structures, and site alteration on lands, that are contingent upon a condition being met, in this case being the demonstration by a property owner that the permitted (and in many circumstances existing) use does not adversely affect the ecological integrity of the [ORMCP] Area; […]

(original emphasis, p. 6, Exhibit 3)

19Therein lies the crux of the matter before the Tribunal: Is By-law 12 a form of conditional zoning (inadvertent or otherwise) pursuant to s. 34(16) of the Planning Act?

20Subsidiary to that question is whether By-law 12 is an attempt by the Township to exercise the site plan approval authority that was removed by Bill 23 outside of the site plan approval process. That issue is stated by the Appellant at paragraph 6 of their Response:

6. […] It is the position of the Responding Party that By-law 12’s real purpose is to exercise authority pursuant to section 34(16) of the Planning Act and/or an attempt to exercise the authority it previously exercised through its site plan control powers which were removed by Bill 23 […] and as such is beyond its authority provided by the Planning Act.

(emphasis added, p. 5, Exhibit 3)

SUMMARY FINDINGS

21For the reasons set out below, the Tribunal finds that, while By-law 12 is an attempt by the Township to uphold its responsibilities pursuant to the ORMCA and the ORMCP, the passage of By-law 12 by the Township contravened the Township’s legislative authority pursuant to the Planning Act and is therefore found to be ultra vires, invalid and illegal.

ANALYSIS

By-law 12

22By-law 12 repeals and replaces s. 3.21 of By-law 66, which contains special zoning provisions for the ORMCP Area. Attached to the Township’s Reply at pages 24 and 25 is a schedule identifying amendments to three subsections of s. 3.21 that are at issue between the Parties: (1) Development in Accordance with the Official Plan (Settlement Areas); (2) Previously Authorized Single Detached Dwellings; and (3) Expansion of Existing Buildings and Structures. That schedule has been attached to this Decision and Order as Schedule 1, for reference.

23Also at issue between the Parties are amendments to subsection 3.21.2 a) pertaining to Areas of Influence. Those amendments are not included in the attached schedules to, nor are they referenced in, the Township’s Reply. Nevertheless, attached to the Affidavit of Ms. Harrison is a certified copy of By-law 12 (pp. 167-175, Exhibit 2). Attached to the Affidavit of Ms. Campbell is a copy of By-law 66 without the By-law 12 amendments (pp. 103-167, Exhibit 3). Through comparison, the Tribunal discerns that the revisions to s. 3.21.2 a) of By-law 66 introduced through By-law 12 are as follows:

3.21.2 Area of Influence (Schedule “C1”)

a) No developmentconstruction of a building or structure, creation of a new lot, site alteration or change of use shall take place within the Area of Influence boundaries shown on Schedule “C1” unless it is in accordance with a site plan prepared under Section 41 of the Planning Act and approved by Councilthe applicant demonstrates, to the extent possible, that the construction, lot creation, site alteration or change of use will not adversely affect the ecological integrity of the Oak Ridges Moraine Conservation Plan Area. Any such site planconstruction, lot creation, site alteration or change of use shall conform with the minimum vegetation protection zone requirements of the applicable Our King Official Plan of the Township of King, or its successor, and Part III of the Oak Ridges Moraine Conservation Plan.

24Together, the amended subsections referenced above read as follows:

3.21.1 General, Transition and Existing Uses

Development in Accordance with the Official Plan (Settlement Areas)

a) Nothing in this By-law applies to prevent a use or the erection or location of a building or structure within an Oak Ridges Moraine Settlement Area as designated in the Our King Official Plan or its successor, provided:

i) The use, building or structure would have been permitted by the applicable zoning by-law on November 15, 2001 and complies with the permitted uses and performance standards of the applicable zone in this By-law.

ii) The use, building or structure complies with subsections 3.21.4 (areas of high aquifer vulnerability) and 3.21.5 (wellhead protection areas) of this By-law.

iii) The applicant demonstrates, to the extent possible, that the use, erection, and location will not adversely affect the ecological integrity of the Oak Ridges Moraine Conservation Plan Area if the use, building, or structure is proposed within an Environmental Protection (EP) zone or the Area of Influence or comprises major development.

iv) Where the land is within a landform conservation area, a Landform Conservation Plan, prepared in accordance [with] the policies of the Our King Official Plan or its successor shall be submitted for approval in advance of Building Permit issuance.

Previously Authorized Single Detached Dwellings

b) On lands located within the area defined as Oak Ridges Moraine Conservation Plan Area nothing in this By-law shall prevent the use, erection or location of a single detached dwelling and accessory buildings thereto provided:

i) The use, erection and location would have been permitted by the applicable zoning by-law on November 15, 2001.

ii) Where any portion of the lot is within a Residential zone, the performance standards of the applicable Residential zone shall apply to all uses, buildings and structures. Where the entire lot is zoned EP, the performance standards of the R1 zone shall apply to all uses, buildings and structures. The minimum lot area and minimum lot frontage shall be as they legally existed on November 15, 2001.

iii) The applicant demonstrates, to the extent possible, that the use, erection, and location will not adversely affect the ecological integrity of the Oak Ridges Moraine Conservation Plan Area if the use, building or structure proposed comprises major development, or is within an EP zone, the Area of Influence, or a landform conservation area.

Expansion of Existing Buildings and Structures

d) Nothing in this By-law applies to prevent the expansion of an existing building or structure on the same lot within the Oak Ridges Moraine Conservation Plan Area, provided:

i) The performance standards for the applicable zone are met.

ii) There is no change in use.

iii) The applicant demonstrates, to the extent possible, that the expansion will not adversely affect the ecological integrity of the Oak Ridges Moraine Conservation Plan Area if the expansion proposed comprises major development, or is within an EP zone, the Area of Influence, or a landform conservation area.

iv) In accordance with Section 3.21.3, where the land is within a landform conservation area in a Settlement Area, a Landform Conservation Plan, prepared in accordance with the Our King Official Plan or its successor shall be submitted for approval in advance of Building Permit issuance.

3.21.2 Area of Influence (Schedule “C1”)

a) No construction of a building or structure, creation of a new lot, site alteration or change of use shall take place within the Area of Influence boundaries shown on Schedule "C1" unless the applicant demonstrates, to the extent possible, that the construction, lot creation, site alteration or change of use will not adversely affect the ecological integrity of the Oak Ridges Moraine Conservation Plan Area. Any such construction, lot creation, site alteration or change of use shall conform with the minimum vegetation protection zone requirements of the Our King Official Plan, or its successor, and Part ill of the Oak Ridges Moraine Conservation Plan.

25The Tribunal notes that subsection 3.21.1 h) of By-law 12, pertaining to Existing Institutional Uses, contains similar amendments to the subsections listed above, but was not addressed by either Party in their motion materials:

Existing Institutional Uses

h) Nothing in this By-law applies to prevent the expansion of an existing Institutional use within the Oak Ridges Moraine Conservation Plan Area, provided:

i) The performance standards set out in the applicable zone are met.

ii) There is no change in use.

iii) The applicant demonstrates, to the extent possible, that the expansion will not adversely affect the ecological integrity of the Oak Ridges Moraine Conservation Plan Area if the expansion proposed comprises major development, or is within an EP zone, the Area of Influence, a wellhead protection area, an area of high aquifer vulnerability or a landform conservation area.

iv) Where the land is within a landform conservation area, a Landform Conservation Plan, prepared in accordance with Our King Official Plan or its successor shall be submitted for approval in advance of Building Permit issuance.

v) For the avoidance of doubt, in this clause h), the expansion of an existing institutional use means that there shall be no change in use. Such expansions shall be subject to the zone provisions.

Conditional Zoning

26The Planning Act contains provisions pertaining to conditional zoning beginning at s. 34(16):

Conditions

(16) If the official plan in effect in a municipality contains policies relating to zoning with conditions, the council of the municipality may, in a by-law passed under this section, permit a use of land or the erection, location or use of buildings or structures and impose one or more prescribed conditions on the use, erection or location.

Same

(16.1) The prescribed conditions referred to in subsection (16) may be made subject to such limitations as may be prescribed.

Same

(16.2) When a prescribed condition is imposed under subsection (16),

(a) the municipality may require an owner of land to which the by-law applies to enter into an agreement with the municipality relating to the condition;

(b) the agreement may be registered against the land to which it applies; and

(c) the municipality may enforce the agreement against the owner and, subject to the Registry Act and the Land Titles Act, any and all subsequent owners of the land.

27Notably, no conditions have been prescribed by regulation and subsections 34(16), (16.1), and (16.2) of the Planning Act are therefore not operative. Accordingly, as noted on the Environmental Registry of Ontario website (referenced on page 20 of Exhibit 3), “[…] municipalities do not have the authority to impose conditions when passing zoning by-laws.”

Site Plan Control

28Section 41 of the Planning Act sets out legislation for site plan control areas, including requirements for the submission of information and materials (including plans or drawings) for development applications in a designated site plan control area.

29The definition of “development” is described in subsection (1):

Site plan control area

41(1) In this section,

“development” means the construction, erection or placing of one or more buildings or structures on land or the making of an addition or alteration to a building or structure that has the effect of substantially increasing the size or usability thereof, or the laying out and establishment of a commercial parking lot or of sites for the location of three or more trailers as defined in subsection 164 (4) of the Municipal Act, 2001 or subsection 3 (1) of the City of Toronto Act, 2006, as the case may be, or of sites for the location of three or more mobile homes as defined in subsection 46 (1) of this Act or of sites for the construction, erection or location of three or more land lease community homes as defined in subsection 46 (1) of this Act.

30Bill 23 introduced the following exception to the above definition of “development” for the purposes of s. 41 of the Planning Act:

Same

(1.2) Subject to subsection (1.3), the definition of “development” in subsection (1) does not include the construction, erection or placing of a building or structure for residential purposes on a parcel of land if that parcel of land will contain no more than 10 residential units, unless the parcel of land includes any land in a prescribed area.

31“Prescribed areas” for the purposes of subsection (1.2), above, are defined in Ontario Regulation 254/23 as follows:

Prescribed Areas

1.(1) The following areas are prescribed for the purposes of subsection 41(1.2) of the Act:

1. Any area that is within 300 metres of a railway line other than a railway line set out in subsection (2).

2. Any area that is within 120 metres of,

i. a wetland,

ii. the shoreline of the Great Lakes-St. Lawrence River System,

iii. an inland lake, or

iv. a river or stream valley that has depressional features associated with a river or stream, whether or not it contains a watercourse.

(3) Subsection (1) does not apply in respect of any development for which a building permit has been issued on or before August 9, 2023.

32The general effect of the above provisions and regulations of the Planning Act is to permit local planning authorities to exercise site plan control powers for all proposed development within a site plan control area, save and except for residential developments that will contain no more than 10 residential units. However, if the residential development proposal is within one of the prescribed areas as set out above, then the definition of development in s. 41(1) of the Planning Act applies regardless of the number of units.

The Township’s Position

Overview

33The Township’s position can be summarised as follows:

1. Section 7 of the ORMCA requires that: (1) a decision made by a municipal council or the Tribunal under the Planning Act shall conform with the ORMCP; and (2) no municipality shall pass a by-law for any purpose that conflicts with the ORMCP:

Effect of Plan

7(1) A decision that is made under the Planning Act or the Condominium Act, 1998 or in relation to a prescribed matter, by a municipal council, local board, municipal planning authority, minister of the Crown or ministry, board, commission or agency of the Government of Ontario, including the Ontario Land Tribunal, shall conform with the Oak Ridges Moraine Conservation Plan.

(2) Despite any other Act, no municipality or municipal planning authority shall, within the area to which the Plan applies,

(a) undertake any public work, improvement of a structural nature or other undertaking that conflicts with the Plan; or

(b) pass a by-law for any purpose that conflicts with the Plan.

2. Section 7 of the ORMCP permits the use, erection, or location of a single dwelling on the Oak Ridges Moraine (“Moraine”), provided the applicant demonstrates that there will be no adverse effects on the ecological integrity of the ORMCP Area:

Previously authorized single dwelling

7. Nothing in this Plan applies to prevent the use, erection or location of a single dwelling if,

(a) the use, erection and location would have been permitted by the applicable zoning by-law on November 15, 2001; and

(b) the applicant demonstrates, to the extent possible, that the use, erection and location will not adversely affect the ecological integrity of the Plan Area.

3. The onus to demonstrate conformity with subsection 7(b) of the ORMCP rests on the applicant. Accordingly, it is the Township’s position that it must have a process to ensure that this (i.e., an application) occurs.

4. That application process was previously enabled by the Township’s site plan control by-law, which provided a mechanism for the submission of materials by an applicant to demonstrate conformity with subsection 7(b) of the ORMCP.

5. Bill 23 removed the ability for the Township to require site plan approval for single dwellings but did not remove – nor intend to affect – the direction to conform with the ORMCP.

6. Therefore, the Township undertook revisions to its planning regulatory framework by removing provisions pertaining to s. 7 of the ORMCP from its site plan control by-law and adding them to its zoning by-law (i.e., By-law 66) to continue to fulfill its responsibility pursuant to s. 7 of the ORMCP, leading to the passage of By-law 12.

34The Township submits that s. 8(1) of the ORMCA provides that the ORMCP prevails in the case of a conflict between the ORMCP and an official plan, zoning by-law, or policy statement issued under s. 3 of the Planning Act. Therefore, in the Township’s submission, the ORMCP is the prevailing planning authority and planning instruments of all local planning authorities must conform thereto.

35The Township further submits that s. 34(1) of the Planning Act confers broad authority on municipalities to control land use, location, and building construction based on local circumstances. This includes the Township’s authority to pass a by-law to restrict or prohibit the use of land and/or the erecting, locating, or using of buildings or structures.

36The Township asserts that it is inconceivable that the Province intended to strip municipalities of the ability to address the protection of the Moraine through site plan control and simultaneously to eliminate the ability of municipalities to use zoning as a tool in this regard. The conclusion of such an approach, the Township submits, would leave a gap in the regulatory regime because there would be no way to implement the direction in the ORMCA and the ORMCP.

The Intent of By-law 12

37At paragraph 60 of the Township’s Motion, the Township submits that By-law 12 imports subsection 7(b) of the ORMCP as a restriction (or prohibition) on the use of lands, buildings, and structures within the Moraine. Accordingly, it is the Township’s position that By-law 12 is a prohibition on the use of land, as permitted by s. 34(1) of the Planning Act.

38That position is articulated by Ms. Harrison at paragraph 31 of her affidavit, in which she states that By-law 12 replaces the previous zoning by-law provisions requiring site plan approval for lands within the Moraine “[…] with a provision that prohibits the use of land, buildings and structures within the Oak Ridges Moraine unless that use is demonstrated not to adversely affect the ecological integrity of the Oak Ridges Moraine” (emphasis added, p. 32, Exhibit 2).

39Notwithstanding the Township’s assertion that By-law 12 is a prohibition on uses within the Moraine, paragraph 61 of the Township’s Motion suggests to the Tribunal that the effect of By-law 12 is twofold, both permitting and not permitting existing uses within the Moraine:

61. In effect, By-law 12 stipulates that an existing use is permitted within the Oak Ridges Moraine, but an existing use that adversely affects the ecological integrity of the Moraine is not permitted.

(p. 19, Exhibit 2)

40This duality is reiterated at paragraph 6 of the Township’s Reply, in which it states that, “Contrary to the Appellant’s characterization, [By-law 12] is intended to permit uses, which would otherwise not be permitted under the [ORMCP] […]” (emphasis added, p. 6, Exhibit 4).

41Whether By-law 12 permits or prohibits existing uses, buildings, or structures within the Moraine is contingent on whether a proponent can demonstrate that there will be no adverse impacts on the ecological integrity of same, which is determined by the Township as part of its zoning review process, discussed below.

The Oak Ridges Moraine Conformity Review Process

42At paragraphs 33 and 34 of Ms. Harrison’s affidavit, she states that to ensure the Township is meeting its obligation to ensure previously authorised single dwellings will not adversely affect the ecological integrity of the ORMCP Area, the Township has introduced a new Oak Ridges Moraine conformity review process (“Conformity Review”) that occurs through the Township’s current zoning review process.

43The Conformity Review, Ms. Harrison proffers, requires an applicant to demonstrate that, to the extent possible, the use, erection and location of a proposed previously authorised dwelling will not adversely affect the ecological integrity of the ORMCP Area.

44Attached to Ms. Harrison’s affidavit as Exhibit “Q” is a copy of the Township’s Conformity Review form, titled, Submission for Review for Residential – Oak Ridges Moraine Conservation Plan Conformity, which begins with the following statements:

The attached form is to be used for submissions regarding Oak Ridges Moraine Conservation Plan conformity review.

This Guide has been prepared by the Township of King Planning Division to provide a general outline of the procedures involved in the processing and review of a submission for review for Oak Ridges Moraine Conservation Plan conformity for residential.

ORMCP Conformity Review is required for residential and accessory uses, buildings and structures under the Township’s Zoning By-laws.

(p. 242, Exhibit 2)

45The Conformity Review form goes on to state that the following are requirements of the Conformity Review submission:

• Any background reports and/or technical documentation determined through a pre-submission consultation with the Township;

• Plans and drawings (listed at pp. 252-255 of Exhibit 2), including site plan drawings, servicing and grading plans and drawings, cut and fill analysis, landscape plans and drawings, and elevation drawings – all to be prepared by qualified professionals (e.g., engineers, architects, landscape architects, etc.); and

• A natural heritage/hydrological evaluation, where applicable.

46At page 244 of Exhibit 2, the Conformity Review form states the following:

If a pre-consultation meeting has not been held, or if any of the prescribed information and/or processing fee(s) is not provided, King Township Planning Division may return the submission, or refuse to consider it, until such time as the above noted information has been provided.

Other Township By-laws and Provisions

47The Township proffers that the broad powers under s. 34(1) of the Planning Act have always contemplated that certain uses may be permitted, subject to various, specified restrictions. To that end, the Township directs the Tribunal to provisions in the Township’s zoning by-laws for other uses, such as “automobile service stations” and “bed and breakfasts”, and notes that special provisions exist (e.g., minimum lot frontages and depth, setbacks, driveway width and location requirements, limitations on the intensity of use, operating requirements, and parking provisions) that must be met – or relief from the provisions must be provided, in order for the use to be permitted.

48The Township equates the above provisions of the Township’s zoning by-laws to the requirement in By-law 12 for the demonstration of no adverse ecological impacts on the Moraine. In other words, permitting a particular use only if it is set back a certain distance from the nearest property line is, in the Township’s submission, akin to permitting a use on the Moraine only if no adverse ecological impacts can first be demonstrated.

Other Municipal By-laws

49Beginning at page 11 of the Township’s Reply, the Township directs the Tribunal to examples of by-laws in other jurisdictions, including the Towns of Whitchurch-Stouffville, East Gwillimbury and Aurora, and proffers that each by-law is an example of other municipalities taking a similar approach to By-law 12:

• Whitchurch-Stouffville By-law 2010-001-ZO provides that nothing in the by-law shall prevent the conversion of an existing or similar use, or the use, erection and location of a single detached dwelling in the Moraine, provided an applicant demonstrates, based on a Natural Heritage Evaluation and/or a Hydrological Evaluation, that there will be no adverse effects on the ecological integrity of the ORMCP Area.

• East Gwillimbury Zoning By-law No. 2018-043 provides that dwelling units, accessory buildings, and agricultural buildings are permitted, subject to site plan approval in accordance with s. 41 of the Planning Act, whereby the resulting site plan application shall demonstrate no adverse effects to the ORMCP Area.

• Aurora Zoning By-law No. 6000-17 provides that new single residential dwellings and accessory uses on existing lots in the Moraine will only be permitted through an application for minor variance or rezoning, to be completed to ensure compliance with the Aurora Official Plan. The Aurora Official Plan, in turn, requires that prior to the issuance of a building permit, the applicant demonstrates that the use, erection and location will not adversely affect the ecological integrity of the Moraine. The Township submits that Aurora’s approach is more stringent than the Township’s, noting that:

27. As an alternative to the approach in By-law 2023-012, it would be entirely lawful for the municipality to prohibit the uses in issue and to require an applicant to apply for a rezoning through which they would have to demonstrate that the use will not adversely affect the ecological integrity of the Moraine, similar to the approach taken in the Aurora By-law.

(p. 14, Exhibit 4)

Conditional Zoning

50The Township asserts that the Appellant’s central argument – that By-law 12 amounts to conditional zoning – misunderstands what conditional zoning is and misrepresents what By-law 12 is intended to do. To that end, the Township argues that there is a fundamental difference between conditional zoning and what By-law 12 aims to do.

51In the Township’s submission, the onus of an applicant to demonstrate that a use, erection or location will not adversely affect the ecological integrity of the Moraine is a requirement of By-law 12 (i.e., a restriction authorised by s. 34(1) of the Planning Act and required by the ORMCP) and not a condition as that term is used by the Planning Act.

52In the Township’s view, conditional zoning under s. 34(16) of the Planning Act provides that a use may be approved and conditions placed on its operation after approval, whereas By-law 12 “[…] requires that an applicant demonstrate – beforehand and in order to be a permitted use – that the proposal does not adversely affect the ecological integrity of the Moraine” (p. 9, Exhibit 4).

53The Township further submits that conditional zoning can be described as a municipality imposing conditions in exchange for passing a zoning by-law amendment and requiring, in some circumstances, owners to enter into agreements to secure the delivery of the matters specified in the conditions, akin to a site plan agreement.

The Appellant’s Position

Overview

54The Appellant submits that what the Township is seeking to accomplish through By-law 12 is, “[…] in pith and substance, to exercise its powers pursuant to section 34(16) of the Planning Act, and/or to attempt to re-establish site plan control powers for residential dwellings which were removed by Bill 23 [...]” (p. 22, Exhibit 3).

55Specifically, the Appellant takes issue with provisions 3.21.1(a)(iii), 3.21.1(a)(iv), 3.21.1(b)(iii), 3.21.1(d)(iii), and 3.21.2(a) of By-law 12 (together, “Impugned Provisions”).

56By including the Impugned Provisions in By-law 12, the Appellant submits that the Township is attempting to accomplish conditional zoning and/or the continuation of site plan control (for lands or developments with less than ten residential units) on all lands to which the Impugned Provisions apply through its powers pursuant to s. 34(1), which is an attempt to accomplish by indirect means an object beyond the Township’s authority. That is:

• the passing of a conditional by-law that would be permitted by s. 34(16) of the Planning Act if the Legislature had prescribed conditions, which it has not; and/or

• the re-establishment of site plan control powers previously permitted by s. 41 of the Planning Act for those residential developments that are considered small in scale with less than 10 residential units.

57The Appellant submits that a municipality must always act within the constraints that the provincial legislature has imposed upon it. For a by-law to be valid, it must have a purpose for which provincial law authorises the municipality to act. A by-law is ultra vires if it falls outside the jurisdiction of the municipality or the by-laws themselves are inconsistent with or conflict with provisions of a provincial enactment, or infringe upon a right conferred by a provincial statute.

58While the Appellant agrees with the Township’s submission that s. 34(1) of the Planning Act grants municipalities with the express authority to regulate the use, erection, and location of buildings and structures, the Appellant does not agree that s. 34(1) allows a municipality to include a condition in a zoning by-law that, if met, grants use, erection and location permissions without an amendment to the zoning by-law.

59Accordingly, in the Appellant’s submission, for the Township’s characterisation of By-law 12 as a prohibition of uses to be true, the uses must indeed be prohibited, with the only way to change such a prohibition being through an amendment to the zoning by-law pursuant to s. 34(10) of the Planning Act.

60To that end, the Appellant submits that nothing in s. 34 of the Planning Act provides authorisation for the Township to require owners or users of land to submit to a non-statutory process outside of the Planning Act prior to the granting of zoning permissions. Rather, development applications made pursuant to the Planning Act allow for administrative fairness by ensuring that there is an appeal mechanism respecting decisions made by the Township.

The Effect of By-law 12

61The Appellant submits that the Impugned Provisions, which include language such as “provided […] the applicant demonstrates” and “unless the applicant demonstrates”, have the effect of creating a situation in which a use that is otherwise permitted by the zoning by-law (i.e., By-law 66) is not actually permitted unless and until certain conditions have been met – in this case, the demonstration by a landowner that there are no adverse ecological impacts on the Moraine.

62If a proponent succeeds in demonstrating no adverse ecological impacts, then the use, erection, and/or location is automatically permitted by By-law 12, with no requirement for a zoning by-law amendment, minor variance, or other approval pursuant to the Planning Act.

63If a proponent fails in demonstrating no adverse ecological impacts, then the use, erection, and/or location is not permitted by By-law 12 or may be permitted subject to the implementation of mitigation measures approved by the Township and further subject to the proponent entering into a development agreement with the Township prior to the issuance of a building permit.

64The Appellant notes that there is nothing provided in By-law 12 that specifies how the Township would determine whether the requirements of the Conformity Review have been met, or how an applicant is expected to demonstrate same. Accordingly, there is no way to know whether a landowner or prospective development conforms to By-law 12 without first completing the non-statutory Conformity Review process; the outcome of which is determined by the Township with no recourse for appeal to the Tribunal, as it is not tied to a statutory application under the Planning Act. The uses permitted by By-law 12 are therefore only permitted on the condition that the Conformity Review is successfully completed to the satisfaction of the Township.

65In effect, the Appellant submits, By-law 12 requires a building permit application to crystalize use, erection or location permissions, as By-law 12 on its own does not provide clarity as to whether a proposed use, erection or location is permitted.

66By requiring the Conformity Review as part of a building permit application, and not an application made pursuant to the Planning Act, the Appellant submits that the Township has averted the rights and protections of an applicant enshrined in the Planning Act respecting applications made thereunder.

67The Appellant proffers that the above outcomes result in the enactment of a zoning by-law (i.e., By-law 12) requiring an owner of land to which the by-law applies to meet certain conditions in order to receive zoning permissions or development rights, and which may require an owner of land to enter into an agreement with the municipality relating to the condition(s). That, in the Appellant’s submission, is exactly what is referred to by s. 34(16) of the Planning Act as conditional zoning, which is beyond the Township’s authority to include in a by-law.

Conditional Zoning

68At paragraph 17 of the Township’s Reply, the Township directs the Tribunal to s. 11:12 of the publication Annotated Land Development Agreements by J. Mascarin and P. De Francesca¹ and quotes the following excerpt in support of the Township’s position that By-law 12 does not amount to conditional zoning:

Conditional zoning […] provides that the prescribed conditions that are imposed may be fulfilled after the zoning by-law is in full force and effect. A zoning by-law that imposes conditions is a standard by-law under s. 34 that creates, upon its enactment, a legal use of land (which would permit, if all other requirements under subs. 8(2) of the Building Code Act, 1992 are fulfilled, the issuance of a building permit to construct buildings and structures).

69The Appellant notes that the above quote immediately follows a discussion on holding by-laws enacted under s. 36 of the Planning Act and is intended to differentiate a holding by-law (being a by-law that sets out requirements as “pre-conditions” to the enactment of an operable zoning by-law through an amendment thereto) from conditional zoning (a zoning by-law that imposes conditions to be fulfilled after the zoning by-law is in full force and effect, without the need for an amendment thereto):

Historically, except for the use of “holding” or “H-symbol” by-laws under s. 36 of the Planning Act, municipalities were not authorized to impose any types of conditions upon the enactment of a zoning by-law. As noted above, holding by-laws are not really a form of “conditional” zoning as the requirements are all “pre-conditions” to the enactment of an operable zoning by-law (meaning that the conditions to remove the H-symbol must all be completed prior to the zoning by-law permitting the use of land). Unlike a zoning by-law with authorized prescribed conditions, a by-law enacted under s. 36 with a holding symbol does not provide full zoning rights. The use of land is not permitted until the holding symbol is lifted which means, for example, that a landowner could not obtain a building permit to authorize construction of any buildings or structures until the requirements of the H-symbol were fulfilled or completed.

Conditional zoning, on the other hand, provides that the prescribed conditions that are imposed may be fulfilled after the zoning by-law is in full force and effect. A zoning by-law that imposes conditions is a standard by-law under s. 34 that creates, upon its enactment, a legal use of land (which would permit, if all other requirements under subs. 8(2) of the Building Code Act, 1992 are fulfilled, the issuance of a building permit to construct buildings and structures).

70In the Appellant’s submission, the Impugned Provisions of By-law 12 do precisely what is described above by Mascarin and De Francesca as conditional zoning. That is, providing that the prescribed conditions that are imposed (i.e., the demonstration of no negative ecological impacts or the entering into a development agreement regarding appropriate mitigation measures) may be fulfilled after the zoning by-law (i.e., By-law 12) is in full force and effect.

71The Appellant further directs the Tribunal to Unger v. Onondaga (Township) Committee of Adjustment, [1990] O.M.B.D. No. 2138, in which Member Howden of the Ontario Municipal Board (as it was then known) notes the following:

18. […] Apparently, the insertion of conditions in zoning by-laws has been something of a custom in this Township. The Planning Act authorizes municipalities to regulate the use of land but not to enact conditional zoning regulation whose efficacy is contingent on matters which should properly be satisfied before the suitability and appropriateness of the zone change are demonstrated. There is nothing wrong with making the decision to rezone contingent on fulfilling certain conditions precedent, and when they are fulfilled, the by-law containing the new zoning regulation can be passed. However, such conditions contained in the body of a zoning by-law itself will probably result in a meaningless hodge-podge of such matters over time and a reduced ability to enforce the by-law if and when it is tested.

72The Appellant submits that, on a plain reading of the excerpt above, Member Howden finds that there is nothing wrong with a decision made by a municipal council that establishes a condition precedent to the passing of a zoning by-law. Specifically, “[…] when [the conditions precedent] are fulfilled, the by-law containing the new zoning regulation can be passed” (emphasis added). In other words, a municipality may issue a decision that states a zoning by-law will be passed upon the fulfilment of certain conditions, before the zoning by-law is passed, similar to a holding provision.

73In the case at hand, the Appellant submits that if a single dwelling in the Moraine is not permitted in the Township’s zoning by-law, but would be by operation of s. 7 of the ORMCP, then a landowner could apply for a zoning by-law amendment and, by operation of s. 7 of the ORMCP, would be entitled to the amendment so long as the provisions of subsections 7(a) and 7(b), and any other applicable legislative requirements, are met.

74The Appellant further submits that the provisions of s. 7 of the ORMCP requiring an applicant to demonstrate, to the extent possible, that the use, erection or location will not adversely affect the ecological integrity of the ORMCP Area must be satisfied prior to a zoning by-law being enacted. A municipality cannot, in the Appellant’s submission, pass a by-law in which use permissions are contingent upon conditions being met after the passing of the by-law.

75In the Appellant’s submission, this is the precise outcome of the Impugned Provisions, which contain a condition in the zoning by-law itself, establishing a use permission but requiring an applicant to demonstrate that the condition has been met after the by-law is in full force and effect – falling squarely within the definition of conditional zoning.

76Unlike zoning standards (e.g., building height, minimum lot frontage and lot depth, setback, driveway width, and location requirements), which apply to regulate permitted uses and which are specifically authorised pursuant to s. 34(1)(4) of the Planning Act, the Appellant submits that the effect of the Impugned Provisions is to prohibit an otherwise permitted use unless and until the Conformity Review is passed. Accordingly, the underlying use permission is not actually in effect and is contingent upon a condition being satisfied.

77The Appellant further directs the Tribunal to paragraph 34 of Ms. Harrison’s affidavit, in which she states that, “The implementation of any mitigation or compensation measures identified through the [Conformity Review] process may be addressed through a development agreement with the Township” (p. 33, Exhibit 2). That, in the Appellant’s submission, is further evidence that the Township is attempting to afford itself conditional zoning powers pursuant to s. 34(16) of the Planning Act by indirect means, and particularly those powers pursuant to s. 34(16.2), which states, in part:

Same

(16.2) When a prescribed condition is imposed under subsection (16),

(a) the municipality may require an owner of land to which the by-law applies to enter into an agreement with the municipality relating to the condition;

78The Appellant notes that the authority provided by s. 34(16.2) of the Planning Act, above, is akin to the authority of municipalities to require agreements as part of the site plan control process pursuant to subsections 41(7)(c) and 41(7)(c.1) of the Planning Act. That, they submit, supports the Appellant’s secondary position that the provisions of By-law 12 are an attempt by the Township to use zoning, rather than site plan control, to achieve the same end previously achieved through its site plan control by-law.

Site Plan Control

79Noting the multiple references in the Township’s Motion regarding the Township’s inability to use the site plan control process to ensure conformity with the ORMCP, the Appellant proffers that the required materials a landowner must submit as part of the Township’s Conformity Review, set out in Exhibit “Q” to Ms. Harrison’s affidavit, are all materials required for site plan applications as set out in s. 41(4) of the Planning Act.

80That, the Appellant submits, is further evidence that By-law 12 is an attempt by the Township to accomplish by indirect means – through its powers pursuant to s. 34(1) of the Planning Act – an object that is beyond the scope of the Township’s authority, being the continuation of site plan control on lands that contain less than ten residential units or where a proposal for development of such lands contains less than ten residential units.

81The Appellant admits that Bill 23 did not amend the ORMCA, nor the general direction to conform to the ORMCP. However, Bill 23 “[…] clearly removes the jurisdiction to exercise site plan control powers for those residential developments that are considered small in scall and less than 10 residential units” (p. 26, Exhibit 3). By attempting to use By-law 12 and the Conformity Review as a means to maintain site plan control powers for small-scale developments in the Moraine, the Appellant submits that the Township has offended the policy underlying the operative statutes implemented through Bill 23, has acted beyond the powers of a municipality, and By-law 12 is therefore invalid and illegal.

FINDINGS

General

82Paragraph 1 of the Township’s Reply frames the matter before the Tribunal as a focused legal question: Did the Township have the jurisdiction to pass By-law 12 under s. 34 of the Planning Act.

83As submitted by the Township, s. 34(1) of the Planning Act confers broad authority on municipalities to control land use, location, and building construction based on local circumstances. Indeed, the Tribunal agrees that said authority extends to passing a by-law to restrict or prohibit the use of land and/or the erecting, locating, or using of buildings or structures.

84However, on its own, By-law 12 does not have the effect of prohibiting the use, location, or erection of buildings or structures pursuant to s. 34(1) of the Planning Act. That function has been deferred to the Township’s Conformity Review as part of the Township’s building permit application process pursuant to the Building Code Act, 1992, S.O. 1992, c. 23, as amended (“Building Code Act”).

85As stated by the Appellant, By-law 12 requires a building permit application to crystalize use permissions. In other words, the permissiveness of By-law 12 is entirely dependent on the Conformity Review. The Tribunal agrees. If the Conformity Review demonstrates that there are no adverse effects on the Moraine, then By-law 12 is permissive without the need for amendment to the by-law. If the Conformity Review demonstrates that there are adverse effects, then By-law 12 is prohibitive, again without the need for amendment to the by-law.

86The Conformity Review is an operational necessity of By-law 12. Without first completing the same, there is no way to discern whether a use – even an existing use – is permitted or prohibited by the Township, and therefore no way to accurately interpret or apply the by-law. That, the Tribunal finds, is decidedly different from typical zoning standards that apply to regulate established permitted uses.

The Effect of By-law 12

87While the Township has attempted to characterise By-law 12 as a prohibition against the use of land, buildings or structures within the Moraine unless that use is demonstrated not to adversely affect the ecological integrity of the Moraine, the converse is also true: By-law 12 permits the use of land, buildings or structures within the Moraine provided that an applicant demonstrates no adverse ecological impacts (or enters into a development agreement regarding appropriate mitigation measures where adverse impacts exist).

By-law 12 as a Prohibition

88The Township submits at paragraph 16 of their Reply that, “[By-law 12] requires that an applicant demonstrate – beforehand and in order to be a permitted use – that the proposal does not adversely affect the ecological integrity of the Moraine” (emphasis added, p. 9, Exhibit 4). A plain reading of “in order to be a permitted use” suggests to the Tribunal that the use is not permitted as of right, but will be permitted upon a condition precedent being met (i.e., demonstration of no adverse ecological impacts on the Moraine).

89The requirement to demonstrate no adverse ecological impacts “in order to be a permitted use” further suggests that By-law 12 does not afford full zoning rights: the use of land is not permitted, and an owner of land cannot obtain a building permit to authorise the construction of any buildings or structures, until the requirements of the by-law are fulfilled or completed. Functionally, that aligns with Mascarin and De Francesca’s description of a holding provision by-law, whereby the completion of the Conformity Review is a “pre-condition” that must be completed prior to By-law 12 permitting the use of land:

Unlike a zoning by-law with authorized prescribed conditions, a by-law enacted under s. 36 with a holding symbol does not provide full zoning rights. The use of land is not permitted until the holding symbol is lifted which means, for example, that a landowner could not obtain a building permit […]

(Annotated Land Development Agreements, § 11:12)

90Of course, By-law 12 has not been structured as a holding provision by-law, despite requiring an applicant to demonstrate no adverse ecological effects “beforehand and in order to be a permitted use”. Had the Township exercised its powers pursuant to s. 36 of the Planning Act by using a holding symbol, the removal of same would necessitate an amendment to the by-law prior to By-law 12 permitting the use of land, buildings or structures. As was the finding of Member Howden in Unger v. Onondaga (Township), there is nothing wrong with making the decision to rezone contingent on fulfilling certain conditions precedent, and when they are fulfilled, the by-law containing the new zoning regulation can be passed.

91The Tribunal notes that the requirement for a zoning by-law amendment to remove a holding symbol pertaining to the demonstration of no adverse ecological effects on the Moraine would:

a) create an application (and therefore an applicant) in accordance with s. 7 of the ORMCP;

b) clearly establish the required information and materials to be submitted pursuant to subsections 34(10.1) and (10.2) of the Planning Act; and

c) provide an avenue for appeal to the Tribunal pursuant to s. 34(11) of the Planning Act should the Township refuse or neglect to make a decision on the application.

By-law 12 as a Permission

92Notwithstanding the Township’s submissions that By-law 12 is a prohibition on the use of lands, buildings or structures within the Moraine, the Township submits at paragraph 6 of its Reply that, “[By-law 12] is intended to permit uses, which would otherwise not be permitted under the [ORMCP]” (p. 6, Exhibit 4). Indeed, the Impugned Provisions of By-law 12 state that nothing in the by-law applies to prevent a use or the erection or location of a building or structure within the Moraine provided an applicant demonstrates, to the extent possible, that the use, erection, and location will not adversely affect the ecological integrity of the ORMCP Area.

93The language “nothing applies to prevent” contained in By-law 12 is, in effect, permissive. However, said permission is provided only on a condition (i.e., “provided an applicant demonstrates”) to be fulfilled after By-law 12’s enactment. That, as described by Mascarin and De Francesca, is conditional zoning, whereby a condition has been imposed to be fulfilled after the zoning by-law is in full force and effect.

94As no amendment is needed following the demonstration of no adverse impacts, By-law 12 also fits Mascarin and De Francesca’s further description of conditional zoning as a standard by-law under s. 34 of the Planning Act that creates, upon its enactment, a legal use of land that would permit the issuance of a building permit to construct buildings and structures.

95As was the finding of Member Howden in Unger v. Onondaga (Township), the Planning Act authorises municipalities to regulate the use of land, but not to enact conditional zoning regulation whose efficacy is contingent on matters which should properly be satisfied before the suitability and appropriateness of the zone change are demonstrated.

96The efficacy of By-law 12 is contingent on the outcome of the Conformity Review, which must be satisfied before the appropriateness of a proposed use, erection or location in the Moraine can be demonstrated. If the Tribunal is to accept the Township’s submission that By-law 12 is intended to permit uses that would otherwise not be permitted under the ORMCP, then the suitability of such uses ought to have been determined by the Township before By-law 12 was enacted.

Site Plan Control Requirements

97As submitted by Ms. Harrison, the previous provisions of the Township’s zoning by-law requiring site plan control for small-scale residential developments on lands within the Moraine were replaced with provisions in By-law 12 that, ultimately, require the completion of the Conformity Review.

98The Conformity Review requires the submission of plans and drawings including, but not limited to, site plan drawings, servicing and grading plans and drawings, cut and fill analysis, landscape plans and drawings, and elevation drawings – all to be prepared by qualified professionals, akin to the site plan application requirements contained in s. 41 of the Planning Act. In some instances, owners must also enter into agreements with the Township dealing with and ensuring the provision of any or all matters specified as an outcome of the Conformity Review, similarly akin to the requirements of s. 41.

99Effectively, the Township has shifted its application requirements for site plan control for small-scale residential developments from its zoning and site plan control by-laws to the non-statutory Conformity Review. As stated in the Township’s Conformity Review form, “ORMCP Conformity Review is required for residential and accessory uses, buildings and structures under the Township’s Zoning By-laws” (emphasis added, p. 242, Exhibit 2). That, the Tribunal finds, is an attempt by the Township to accomplish by indirect means that which it was previously authorised to accomplish pursuant to s. 41 of the Planning Act, but which it is no longer authorised to accomplish in accordance with subsection 41(1.2) of the Planning Act.

Procedural Fairness

100As stated in the opening paragraphs of same, the Conformity Review form is a guide prepared by the Township’s Planning Division. Accordingly, it is an extra-statutory document that is subject to review, amendment or deletion at the sole discretion of the Township.

101As an extra-statutory guideline, it is imperative that the contents of same do not rise to the status of a policy or regulation that would otherwise be approved through, and subject to, the established legislative rigors. In other words, guidelines must remain as just that: guiding documents that provide insight and clarity regarding a policy or regulation without becoming an extension of the policy or regulation themselves. Whereas a guideline may demonstrate ways in which a policy or regulation can be achieved, they are not intended to be a demonstration of how a policy or regulation must be achieved.

102In the case at hand, the Conformity Review form sets out a list of requirements and materials – including the aforementioned reports, studies, plans, and drawings – that must be completed prior to the Township deciding the effect of By-law 12 for a proposed use, erection or location, going so far as to provide the Township Planning Division with the authority to “refuse to consider” a submission should an applicant:

• not attend a pre-consultation meeting (which the Tribunal notes is not a mandatory requirement of the Planning Act);

• not provide “the prescribed information” (which the Tribunal notes is not prescribed by legislation in this instance); and/or

• not provide a processing fee for the Conformity Review.

103Collectively, the Tribunal finds that the above requirements of the Conformity Review are, in effect, an attempt by the Township to create a Planning Act application, akin to a zoning by-law amendment, minor variance, or site plan application, outside of the legislative framework provided to do so. That, the Tribunal finds, is beyond the jurisdiction of the Township, conflicts with the provisions of the Planning Act by requiring both a pre-consultation meeting and the submission of information that has not been prescribed by legislation, and infringes upon the rights conferred by the Planning Act by averting the rights to appeal contained in subsections 34(11), 41(4.2), (12), and (12.0.1), and/or 45(12) of same.

104The Tribunal notes that, under the Building Code Act, an applicant may appeal the non-issuance of a building permit to the Superior Court of Justice. However, the Tribunal finds that reliance on an appeal mechanism under the Building Code Act to determine the land use permissions of a zoning by-law passed pursuant to the Planning Act runs counter to the long-established tenets of the Planning Act that applications made pursuant to same can be challenged and tested before the Tribunal on an evidentiary basis.

Alternative Relief Requested

105Paragraph 4 of the Township’s initial Motion asks whether the Planning Act authorises a municipality to pass a zoning by-law that implements the direction in the ORMCP. In the alternative to a determination that Township Council had jurisdiction to pass By-law 12, the Motion requests that the Tribunal provide direction as to how the mandatory directions in s. 7(1) of the ORMCA and s. 7 of the ORMCP are to be implemented if not pursuant to a by-law adopted under s. 34 of the Planning Act.

106To that end, the Township asserts that it is inconceivable that the Province intended to strip municipalities of their ability to address the protection of the Moraine through both site plan control and zoning.

107The Tribunal agrees with the above assertion, and notes that the Township itself has provided an example that seemingly demonstrates how the Planning Act authorises a municipality to pass a zoning by-law under s. 34 of the Planning Act to implement the mandatory directions in s. 7(1) of the ORMCA and s. 7 of the ORMCP. As noted in paragraph [49] of this Decision, the Township submitted to the Tribunal that, similar to the Town of Aurora’s zoning by-law, it would be entirely lawful for the Township to pass a zoning by-law prohibiting the use, location or erection of buildings or structures in the Moraine and to require an applicant to apply for a rezoning to demonstrate that the use will not adversely affect the ecological integrity of the Moraine.

108The Appellant seemingly agrees, noting – as discussed in paragraph [73] of this Decision – that if a single dwelling in the Moraine is not permitted in the Township’s zoning by-law, but would be by operation of s. 7 of the ORMCP, then a landowner could apply for a zoning by-law amendment and, by operation of s. 7 of the ORMCP, would be entitled to the amendment so long as the provisions of subsections 7(a) and (b) are met (and any other applicable legislation).

109The Tribunal notes that the above example is referenced only as a singular option that both the Township and the Appellant seem to agree would strike an appropriate balance between meeting the Township’s obligations pursuant to the ORMCA without contravening its jurisdictional limitations pursuant to the Planning Act. There may be several other appropriate approaches available to the Township. The Tribunal is not advocating for the Town of Aurora’s approach, nor is it within the Tribunal’s mandate to coach the Township on how best to implement the directions of the ORMCA.

Conclusion

110The efficacy of By-law 12 is contingent on the fulfillment of a condition that, ultimately, requires the submission of application materials that are extra-statutory to those authorised by the Planning Act.

111That condition can be viewed through one lens as a condition precedent, requiring a positive outcome of the Conformity Review prior to use, location or erection permissions being granted. Through another lens, the condition can be viewed as a form of conditional zoning, relying on a positive outcome of the Conformity Review to give efficacy to an otherwise established permission. Viewed through either lens, the Tribunal finds that the Township acted outside of its jurisdiction by attempting to accomplish by indirect means that which is beyond its authority. Specifically:

• An attempt to introduce conditional zoning pursuant to s. 34(16) of the Planning Act despite the lack of regulation prescribing authorised conditions, as required by that section;

• An attempt to utilise the powers pursuant to s. 36 of the Planning Act to establish a condition precedent without the use of a holding symbol, as required by that section; and/or

• An attempt to reinstate site plan control powers pursuant to s. 41 of the Planning Act for proposals that do not meet the definition of “development” prescribed by subsection 41(1), and therefore are not subject to the provisions of that section.

112The Tribunal further finds that the attempt by the Township to use a process that is extra-statutory to the Planning Act to require the submission of application materials prior to the Township determining land use, location, or erection permissions, without an available recourse for appeal to the Tribunal, is procedurally unfair, runs counter to the spirit and intent of the Planning Act, and is likewise beyond the jurisdiction of the Township.

113For the above reasons, the Tribunal finds that the Township did not have the authority pursuant to the Planning Act to pass By-law 12.

NEXT STEPS

114The Tribunal recognises that the findings above may render a hearing on the merits of By-law 12 unnecessary. Indeed, the Appellant made such a submission at paragraph 116 of their Sur-Reply, stating:

116. This is a pure legal question of jurisdiction, and it would be moot to require a full hearing of the merits of By-law 12 if it is determined that the Township did not have the authority pursuant to the Planning Act to pass a zoning by-law which includes the Impugned Provisions.

(p. 21, Exhibit 5)

115Notwithstanding the above submission, the Tribunal also recognises that By-law 12 is intended to repeal and replace the entirety of s. 3.21 of By-law 66, which contains numerous provisions unrelated to the scope of the Motion discussed in this Decision. To that end, the Appellant’s appeal letter raises issues beyond the jurisdictional question discussed herein, including but not limited to issues regarding matters of provincial interest, consistency with the Provincial Planning Statement, and conformity with both the Region of York and Township official plans. It is unclear to the Tribunal at this time whether those issues extend to the entirety of By-law 12 or pertain only to the Impugned Provisions.

116Further, the Tribunal notes that the Appellant’s submission at paragraph 117 of the Sur-Reply specifically states that, in this matter, neither the Township nor the appellant have requested that By-law 12 be quashed for illegality (which is a power reserved for the courts in Ontario), but that “[…] both parties have merely requested that the Tribunal make a determination as to whether the Township has jurisdiction” to pass a zoning by-law which includes the Impugned Provisions (p. 21, Exhibit 5).

117Accordingly, the Tribunal directs the Parties to discuss proposed next steps, including any further relief to be sought in light of the Tribunal’s findings, and to provide an update to the Tribunal within 60 days of the issuance of this Decision and Order. Should the Parties determine that a Case Management Conference would be of assistance in this regard, they are encouraged to request same from the Case Coordinator having carriage of this matter at the earliest opportunity.

ORDER

118THE TRIBUNAL ORDERS that the Township of King did not have authority pursuant to the Planning Act to pass By-law No. 2023-012.

119THE TRIBUNAL ORDERS that the Parties are to provide an update to the Tribunal outlining the proposed next steps in these proceedings, including any additional relief being sought in light of the Tribunal’s findings in this Decision, by no later than 60 days following the issuance of this Order.

120This Member is not seized.

“S. Dixon”

S. DIXON

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 1

Footnotes

1. 1Mascarin, John & De Francesca, Paul, Annotated Land Development Agreements, looseleaf (Toronto: Thomson Reuters Canada Limited, 2023) at § 11:12.