Southbridge Heath Care GP v. Shelburne (Township)
On October 12, 2021, the Ontario Land Tribunal (the “Tribunal”) allowed the appeal of Southbridge Health Care GP Inc. (“Southbridge”), pursuant to the Planning Act, arising from the Town of Shelburne’s (the “Town”) failure to render a decision on a Zoning By-law Amendment Application (“ZBA”) and a Site Plan Application (“SPA”) submitted by Southbridge in 2019.
Southbridge submitted the ZBA and SPA to Town Council in order to facilitate the construction of 17 surface parking spaces (the “Parking Area”) and a landscaped memorial garden (the “Garden”), which was to be located on vacant land with frontage onto the Subject Property. The Subject Property is directed and regulated by a series of municipal policies, plans and by-laws (collectively, the “Planning Regime”). The Subject Property is designated as an Urban Settlement Area as well as Mixed-Use and Residential by certain plans in the Planning Regime and by the Town’s Zoning By-law.
The Parking Area was intended to accommodate the overflow parking demand of the Shelburne Long Term Care and Retirement Home (“Shelburne LTC”), a long term care and retirement home previously located on the Subject Property and since relocated nearby. The purpose and effect of the ZBA was to rezone the Subject Property, thereby allowing the Subject Property to be used for the Parking Area and Garden.
While the ZBA was given first and second reading in August 2019, the third and final reading was deferred until the Site Plan was approved by Town Council; however, a motion to approve the Site Plan in September 2019 ended in a tie vote. Consequently, the ZBA did not receive a third reading, and no decision was ultimately rendered regarding the SPA. Southbridge would subsequently appeal this non-decision to the Tribunal.
In determining whether the ZBA was consistent with the Planning Regime, the Tribunal was faced with two core issues. First, would the construction of the Parking Area and Garden accord with the provisions of the Planning Regime, having regard to intensification and infrastructure management? Second, would the Parking Area and Garden conform to the policies regarding permitted uses for land designated as Residential and Mixed Use, Urban Design and Active Transportation?
After hearing all of the evidence presented, which included the expert testimony of three land use planners, the Tribunal found that the ZBA was consistent with the Planning Regime and represented good planning in the public interest. As a result, the Tribunal ultimately allowed the appeal; it ordered the Town to amend certain aspects of the Town’s Zoning By-law in accordance with the ZBA, and approved the SPA.
Eric Davis (Municipal, Land Use, Planning) represented Southbridge in this appeal.