Apr. 21, 2009 Ontario Municipal Board Commission des affaires municipales de l Ontario

Transcription

1 ISSUE DATE: Apr. 21, 2009 Ontario Municipal Board Commission des affaires municipales de l Ontario IN THE MATTER OF subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: Applicant: Albert Gale Agencies Limited Subject: Consent Property Address/Description: 1870 Sixth Line Road Municipality: OMB Case No.: OMB File No.: Municipal No. D /B A P P E A R A N C E S : Parties Albert Gale Agencies Limited Counsel T. Marc M. Labrosse DECISION DELIVERED BY N. JACKSON AND ORDER OF THE BOARD Albert Gale Agencies Limited (hereinafter the Applicant) made application to the Committee of Adjustment of the to seek a severance on its property known municipally as 1870 Sixth Line Road, being part of Lot 18, Concession 7, in the former municipality of Kanata and now in the. The original proposal was to sever off 4.09 hectares, with frontage of 100 metres on Sixth Line Road, leaving a retained parcel of 8.9 hectares with 100 metres on Sixth Line Road. The lot configuration was amended at the Committee of Adjustment to propose a severed lot with frontage of 50 metres and lot area of 2.56 hectares and remainder lot of 150 metres frontage and area of 10.4 hectares. The Ottawa Official Plan and former Kanata Zoning Bylaw require a minimum of 10 hectares to be in the remainder lot and Kanata Zoning By-law required for the remainder lot, minimum frontage of 130 metres and hence the amendments were made to comply.

2 - 2 - The Committee of Adjustment considered the opposition of the planner to what Ottawa considered a second severance and a Grandfathering policy, in granting the Application and allowing the Provisional Consent. That decision was then appealed to this Board by the. There is one ground only in the Notice of Appeal. The Official Plan Policy in place permits only one residential severance from the subject lands. The property has already been the beneficiary of one severance and this is not eligible for another one. At this Appeal hearing, the City called planner Mary Ellen Wood and the Applicant called planner Murray Chown. There is no dispute that the Official Plan designation is General Rural Area and Rural Natural Feature Area and that the residential use proposed is permitted under General Rural. The Conservation Authority had raised section 3.2.4(2) of the Ottawa Plan advising that an Environmental Impact Statement is required to show no adverse impact on the functions of the natural feature if more than one lot is proposed. The City does not advance this as one new lot is now proposed. The City makes it clear in submissions that this appeal is on a very confined issue whether the new lot now proposed is permitted or not by Official Plan Policy 3.7.2(8)(a). The City makes it clear that otherwise, the tests in section 53(1) of the Planning Act that a plan of subdivision is not necessary and in section 51(24) of the Planning Act are met and are not in issue. At the time of decision by the Committee of Adjustment, City of Ottawa Zoning Bylaw had come into effect, zoning the subject property RU (Rural Countryside Zone) and the amended Application conforms to use and regulation provisions of Bylaw Ottawa Official Plan Policy 3.7.2(8)(a) reads: The severance of a single lot for residential purposes will be permitted, subject to the following criteria: (a) Only one lot will be created from any parcel in existence at the date of the adoption of this plan and no further severance will be permitted from either the severed or retained land. The Plan was adopted on May 14, A previous severance application had been made on July 12, 2002, and granted by the Committee of Adjustment on August 20, That Application the City says was finalized August 26, 2003, the date the Secretary Treasurer of the Committee of Adjustment certified the consent was given.

3 - 3 - The City argues that since the Certification date was post the date of the adoption of the Official Plan, that the parcel in existence on the date of adoption included the earlier severance and that the earlier severance is therefore the only severance permitted. The more recent severance filed July 24, 2008, and granted December 10, 2008, the City argues is a second severance after the date of adoption of the Official Plan and contrary to Policy 3.7.2(8)(a). The Applicant s planner concedes that on a strict reading of Policy 3.7.2(8)(a), the first severance was not complete on the date of the adoption of the Official Plan. The Applicant s Counsel and planner drew the Board s attention to the circumstances of the adoption of the Official Plan in 2003 and to instream policies passed by the City in the form of resolutions adopted by the Confirmation Bylaw. The instreaming came about in the public process leading up to the adoption of the 2003 Ottawa Official Plan. At the time of the first severance on the subject property applied for in 2002, there was no limit on the creation of country estate lots in either the Official Plan of the Region of Ottawa Carleton or the Official Plan of Kanata, other than in size. The first draft of the Ottawa Official Plan in June of 2002 proposed no further rural lot development by consent or subdivision (restricted to Villages). As a result of rural input ( an overwhelming majority of rural residents felt that being able to provide a building lot to a family member or as a means to assist in their retirement income should be regarded as a right ), the second draft of the Ottawa Official Plan was changed, permitting one consent while still prohibiting rural subdivisions. Together with this change in the text of the Official Plan, Grandfathering was proposed. At the March 20, 2003 meeting of the Planning and Development Committee, planning staff recommended the adoption of the amended draft plan dated March 2003 and the Grandfathering of Applications that were instream. The explanation was: Just as City Council approved policy for staff to deal with development applications during the preparation of the new Official Plan, policy is required when Council adopts the new Official Plan. This is needed as applications are instream and consistency has to be applied to staff s further processing of these applications. Specifically OP amendments to expand the Urban Boundary or a Village Boundary if received after April 23, 2003, will be evaluated on the basis of the policies of the New Official Plan, all other Official Plan Amendments, zoning bylaw amendments and

4 - 4 - country lot severances if a completed application is received by April 23, 2003, will be processed on the basis of existing policy. The Planning and Environment Committee and then City Council passed this. What is the effect of instreaming country lot severances under the policies of the prior Official Plans (Regional and Kanata)? There is no doubt it allowed such applications if complete before April 23, 2003, to be evaluated under the former Official Plans. That application was filed and complete before April 23, It is clear from the staff report and Committee minutes that the 2002 Severance application was evaluated under the former Official Plans and granted on that basis. The new Policy 3.7.2(8)(a), adopted in 2003, should be read together with the Grandfathering Policy of Council for the following reasons: 1. The Grandfathering was passed as an aide to interpretation of the proposed new Official Plan by the Planning Committee and Council in the same report wherein the new Official Plan was adopted. 2. Although not set out in the Official Plan, the Grandfathering was the result of the public process leading up to the adoption of the new Official Plan. When five concerned residents in the Minutes asked for the inclusion of Grandfathering in the Official Plan the response was that was not necessary. It is now unfair to argue that Policy 3.7.2(8)(a) be read distinctly from the Grandfathering Can the Grandfathering be read so as to protect the 2002 Application and yet count that application as the one severance permitted under Policy 3.7.2(8)(a) since that 2002 severance was not complete until the Certificate of the Secretary on August 26, 2003 or later at registration? To accede to the City s interpretation is to not have regard for the Planning Act itself and Planning practice under that statute. The Planning Act refers to the Consent as being Provisional. Provisional means there can be conditions imposed (subsection 53(41) of the Planning Act), wherein there then is one year after notice to fulfill the conditions. Further, under section 53(43) of the Planning Act the consent will lapse at the expiration of two years from the date of the certificate of the consent unless the transaction takes place. The completion of a Consent Decision can lawfully be years after the decision of the Committee of Adjustment.

5 - 5 - The position of the City to interpret the further processing of the 2002 Application as being incomplete as of the date of adoption in Policy 3.7.2(8)(a) is to ascribe to Official plans the strictness of a statute. The Official Plan is a very important policy but it is not a statute and should not be construed as such. Rather as set out in the Ontario Supreme Court case Bele Himmell Investments v. Mississauga 1983, (13 O.M.B.R. 17) and by this Board in v Ottawa [2001] O.M.B.D. No. 790, Official Plans are to be given a liberal interpretation to further their policy intent. The Board finds the 2002 Severance, granted before the adoption of the new Official Plan, completed after the adoption date to be in accordance with the operation of law in the Planning Act and the City s Grandfathering policy. Such severance is a pending lawful decision before the adoption date of the new Official Plan. It was not the intent to construe the earlier application approved under earlier Official Plan policy as the one and only severance referred to in policy 3.7.2(8)(2). The September 2, 2008 Application is the one and only severance under Policy 3.7.2(8)(2).The Board is satisfied that this September, 2008 Application is consistent with the Provincial Policy Statement and the good planning measures set out in section 51(24) of the Planning Act. No arguments were raised as to the Provincial interest or public interest and the Board is satisfied that they are met. Accordingly, the Board Orders the dismissal of the Appeal of the. The Provisional Consent D /B is to be given subject to the same four conditions imposed by the Committee of Adjustment set out in Exhibit 3, tab 14, pages 39 and 40. The Board so Orders. N. Jackson N. JACKSON MEMBER