The Ontario Land Tribunal (OLT) renders decisions which greatly impact the community. The OLT can green-light a project which was turned down by the council of the municipality. What can be the basis of a decision of the OLT?
The law setting up the OLT gives to the Tribunal the authority to “determine all questions of fact and law with respect to all matters within its jurisdiction, unless limited by this or any other act”. The only limitation in the OLT Act to these rather extensive powers is the requirement that the OLT decision “offer a fair, just and expeditious resolution of the merits of the proceedings.”
The Ontario Planning Act provides at Section 24(1) that “despite any other general or special Act, where an official plan is in effect, no public work shall be undertaken and, … no by-law shall be passed for any purpose that does not conform therewith.” (author’s emphasis) So, how can two recent decisions of the OLT come up with two totally different approaches and decisions in what are quite similar situations?
Fort Erie and Niagara-on-the-Lake are two Ontario towns with striking similarities. They are both on the Niagara River, both on one of the Great Lakes. Both have a proud place in Canadian history. Both towns cherish their traditions and culture. Both are development oriented and ready to meet the new building unit goals of the province.
Fort Erie has a population of 31,000 in an area of 166.27 square km. The population density is 184.7 per square km. NOTL has a population of 21,000 in an area of 132.81 square km. The population density is 131.8 per square km.
Both towns have adopted an official plan and a comprehensive zoning bylaw which set out the vision for the present and future development of the town. Both towns have a duly elected mayor. Both have a town council: NOTL has eight councillors, Fort Erie has seven.
Both town councils are fully aware of the need for new housing units in the province and both have developed a plan to ensure that their towns meet the requirements of Ontario law in this regard. Fort Erie has a lakefront area designated by the town as the Waterfront Residential Zone. The official plan of Fort Erie considers the Waterfront Zone as a special provision residential zone.
Old Town is one of the five urban areas of NOTL. It is the largest and most populated of the urban areas and it is the one which attracts most tourist. Old Town is recognized by the NOTL official plan as a special area where “a desire to preserve the existing character of the area, have resulted in the Plan not proposing major expansions for growth for this portion of Niagara-on-the-Lake.”
The NOTL official plan and zoning bylaw set out the intensification areas and the proposed development is not in these areas. NOTL has adopted and is implementing a Glendale Niagara District Plan to “develop an exciting urban vision for an area that has been identified to accommodate high density, mixed use urban growth”. This plan provides for a large number of new units in apartment buildings, and for a community setting for the new residents.
Both towns are subject to the Ontario Planning Act and the Ontario Land Tribunals Act.
On April 26, 2024, the Ontario Land Tribunal (K.R. Andrews member) rendered its decision in the matter of Butler’s Garden Development Inc., (OLT case number 23-001106) in which it allowed the appeal of the developer and, consequently, the proposed project can proceed.
On April 29, 2024, the Ontario Land Tribunal (Kurtis Smith member) rendered its decision in the matter of Crystal Bay Cottages Inc, (OLT case number 23-000311) in which it dismissed the appeal of the developer, and therefore, the proposed project cannot go forward.
Like the two towns, the two cases have very much in common except for the most crucial part, the end result.
As set out in the Fort Erie decision, the developer asked the council for permission to build “eight new units, two single detached units fronting onto Erie Road, three townhouse units in the mid section of the property and three additional single detached units near the Lake House…”.
The Waterfront area is almost exclusively zoned in a waterfront related residential zone. Most dwellings in the area are seasonal cottages or secondary holiday homes. The proposed development has a net density of 16 units per hectare, “which is lower than the allowable density of the waterfront residential Zone.” The only amendment requested by the developer was to change the zoning…there were no requests to amend either the Official Plan or the Zoning By-Law to allow any derogations from the requirements of these laws.
As set out in the NOTL decision, the developer asked council for permission to build a three-storey 17-unit apartment building in a single family residential zone. The building will have three stories while all dwellings within the neighbourhood are single family with one or two stories. In addition, four amendments (set out below) to the Official Plan were requested by the developer and approved by the Tribunal.
The Fort Erie decision rejecting the project can be summed up in the following passage of the decision: “…the proposed form of development is not reflective, does not compliment, and ultimately does not conform to the Town OP or the CSPP (Crystal Beach Secondary Plan) which is the most up-to-date document depicting the vision of the waterfront lands and provides directions as to where infilling is to be considered in Crystal Beach”.
The NOTL decision, the Tribunal stated that “the case rests on whether the proposed development is sufficiently compatible with the surrounding neighbourhood”. There is no law which mentions, let alone defines, “sufficiently compatible”. Nevertheless, the Tribunal held that “the Application are sufficiently consistent/conform with the applicable provincial and municipal policies, contemplate matters of provincial interest set out in s. 2 of the act, and otherwise constitute good planning.” (author’s emphasis)
The decision in the NOTL case sets out the relevant section of the Planning Act which “dictates that no By-Law (including the present proposed ZBA) shall be approved by the tribunal that does not conform with an applicable municipal official plan (in the present case, this includes the Town and Region OPs)”.
However, notwithstanding this applicable prohibition, the decision orders the amendment to 4 specific requirements of the NOTL official plan: 1) raising the allowable density to almost double the prescribed density, 2) allowing an apartment building to have its sole entrance from a local street, 3) allowing the building not to have its front entrance facing the street and 4) allowing the parking to be in the front and on the side of the building, and not in the rear.
With respect to the allowable density, the NOTL decision states that the expert “opined that the proposed density of development is appropriate as there are no anticipated adverse impacts to cultural heritage resources…”. What about adverse impacts to the residents of the neighbourhood of an apartment building that will more than double the population on the bloc?
So, how does this decision conform with the official plan? Just as pertinent, how is the protection provided to NOTL Old Town in its official plan any different from the protection provided by the Fort Erie official plan to its waterfront? Is an eight-unit town house project in Fort Erie less “sufficiently compatible” in a waterfront environment than a 17 unit apartment building in a neighbourhood of single family dwellings?
We acknowledge the intent of provincial law to build as many dwelling units as possible. This is why municipalities are under pressure to speed up the building permit application process. However, the fate of a neighbourhood should not depend on whether one tribunal gives effect to the wording and the spirit of the official plan and another tribunal sets aside the official plan and makes its decision solely the most flexible criterion of “sufficiently compatible” and “sufficiently consistent” and totally disregards the town’s official plan.
The official Plan of Fort Erie is alive and well and respected; the official Plan of NOTL is, for all intents and purposes, unofficially dead.
Endre Mecs
Niagara-on-the-Lake
