Kozlowski v. Ontario (Niagara Escarpment Commission), 2016 CanLII 86123

Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE:

December 08, 2016

CASE NO.:

16-071

PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended

Appellant:

Elizabeth Kozlowski (File No. 16-071)

Appellant:

Jason Tuin (File No. 16-072)

Applicant:

Barbara Irek

Respondent:

Niagara Escarpment Commission

Subject of appeal:

Approval of a Development Permit Application to construct a dug pond for agricultural purposes, with water to be sourced from the existing adjacent pond through a connecting culvert

Reference No.:

N/A/2014-2015/256

Property Address/Description:

Part Lots 5 and 6, Concession 6

Municipality:

Town of Pelham

Upper Tier:

Regional Municipality of Niagara

NEHO Case No.:

16-071

NEHO Case Name:

Kozlowski v. Ontario (Niagara Escarpment Commission)

Heard:

November 2, 2016 in Fonthill, Ontario

APPEARANCES:

Parties

Representative

Elizabeth Kozlowski and Jason Tuin

Self-represented

Barbara Irek

Self-represented

Niagara Escarpment Commission

Martin Kilian

ORDER DELIVERED BY MAUREEN CARTER-WHITNEY

REASONS

Background

1This Order deals with an adjournment request.

2Barbara Irek (“Applicant”) submitted development permit application N/A/2014-2015/256 (“Development Permit Application”) to the Niagara Escarpment Commission (“NEC”) on January 14, 2015, seeking permission to construct a 0.2 hectare (“ha”) dug pond for agricultural purposes, to be sourced by the existing adjacent pond through a connecting culvert. The pond is proposed to have a maximum depth of 3.05 metres (“m”), maximum bank height of 1.8 m and maximum bank width of 9.1 m. The proposed pond would be located on an existing 10.8 ha lot located on Part Lot 5 & 6, Concession 6 (1760 Effingham Street) in the Town of Pelham, Region of Niagara (“Subject Property”).

3On June 7, 2016, the NEC conditionally approved the Development Permit Application. Elizabeth Kozlowski and Jason Tuin (“Appellants”), who live near the Subject Property, submitted an appeal of that decision to the Niagara Escarpment Hearing Office (“NEHO”) under s. 25(8) of the Niagara Escarpment Planning and Development Act, on June 21, 2016. In outlining the reasons for their appeal, the Appellants stated that they were concerned about impacts on their well water, alleging that the proposed pond would support additional dwellings for cannabis growth, which they do not support.

4During a pre-hearing conference (“PHC”) held by teleconference call (“TCC”) on September 13, 2016, the parties agreed on a date for the exchange of documents. Subsequently, a hearing was scheduled for November 2, 2016. The parties further agreed that the main issue in the hearing would be the impact of the proposed activity in the Development Permit Application on the Appellants’ water supply.

5The following parties appeared at the hearing: the Appellants and the Applicant, all self-represented; and Martin Kilian, a NEC planner representing the NEC.

6At the commencement of the hearing, the Appellants requested that the hearing be adjourned due to new information that an additional development permit application has been made to the NEC for a greenhouse expansion on the Subject Property. The Applicant did not consent to an adjournment and the NEC took no position.

7After hearing and considering submissions from the parties, as set out below, the Hearing Officer granted the adjournment request on November 2, 2016, with reasons to follow. These are the reasons for the Hearing Officer’s decision.

Relevant Rules

8The relevant Rules of Practice of the Environmental Review Tribunal (“Rules”) that apply to the NEHO in this circumstance are:

105. In deciding whether or not to grant a request for an adjournment, the Tribunal may consider:

(a) the interests of the Parties in a full and fair Hearing;

(b) the interests of others potentially affected by the matters before the Tribunal who, after notification of the Hearing, may have arranged their affairs in the expectation of observing or participating in the Hearing;

(c) the integrity of the Tribunal’s process;

(d) the circumstances giving rise to the need for an adjournment;

(e) the timeliness of the request for the adjournment;

(f) the position of the other Parties on the adjournment request;

(g) whether an adjournment will cause or contribute to any existing or potential risk of environmental harm;

(h) the consequences of an adjournment, including expenses to other Parties;

(i) the effect of an adjournment on Participants and Presenters;

(j) the public interest in the delivery of the Tribunal’s services in a just, timely and cost effective manner; and

(k) whether the proceeding before the Tribunal is an appeal of a renewable energy approval under section 142.1 of the Environmental Protection Act.

173. If two or more proceedings before a Tribunal involve the same or similar questions of fact, law or policy, the Tribunal may:

(a) combine the proceedings or any part of them, with the consent of the Parties;

(b) hear the proceedings at the same time, with the consent of the Parties;

(c) hear the proceedings one immediately after the other; or

(d) stay one or more of the proceedings until after the determination of another one of them.

Issue

9The issue is whether the Appellants’ request for an adjournment of the hearing of the appeals should be granted.

Submissions

10The Appellants submitted that the proposed pond at issue in this appeal is for agricultural purposes and therefore linked to the application for the proposed greenhouse expansion. They said that the two applications should be addressed in one hearing.

11The Applicant submitted that the two applications should be dealt with separately and said that the addition to the greenhouse had nothing to do with the pond. She stated that it had taken some time to schedule this hearing and she did not wish to further delay the hearing as the parties were all present and had been provided with enough time to address the issue of the pond. The Applicant said that a decision to deal with these applications together should have been made some time ago to avoid a waste of time.

12Mr. Kilian provided background concerning the circumstances that led the adjournment request. He stated that, when the application for the proposed pond was received, the NEC understood that its purposes would be for agricultural uses, primarily in relation to the greenhouse operation on the Subject Property, and to appreciate nature by attracting wildlife to the area. Noting the submission of the greenhouse expansion application, Mr. Kilian advised that the NEC had only recently become aware, when the Appellants filed their appeal of the subject application, that the crop grown in the greenhouse operation had been switched from vegetables to medical marijuana in 2014. Mr. Kilian said that the NEC was not advised of what was being grown in the greenhouse operation at the time the greenhouse expansion application was received, nor was that known during the circulation of each of these two applications to commenting agencies. He noted that the NEC has since learned that the appropriate federal licensing has been obtained and security measures implemented on the site to carry on this operation.

13Mr. Killian further advised that the NEC took the position in approximately 2014 that it did not consider the cultivation of medical marijuana to be an agricultural use and that it was, therefore, not permitted in the land use designations that apply to the Subject Property. He said that the NEC decided on this position after requesting and receiving from NEC staff a policy interpretation as to whether or not medical marijuana operations should be deemed to be agricultural uses. Mr. Kilian stated that, once he learned of the medical marijuana operation, he prepared a staff report to the NEC that recommended, consistent with the NEC’s 2014 position, that the greenhouse expansion not be approved because it was for medical marijuana. He noted, however, that the policy interpretation paper upon which the NEC’s 2014 position was based did not anticipate that medical marijuana would be grown in greenhouses.

14Mr. Kilian advised that the NEC decided to approve the greenhouse expansion application and the NEC stated that, in this case, where it is grown within a greenhouse, medical marijuana is considered an agricultural use. He added that the NEC also directed staff to revisit the 2014 policy interpretation with respect to medical marijuana operations. Mr. Kilian further advised that, on the day prior to this hearing, the NEC received an appeal of the decision to approve the greenhouse expansion from a different person than the Appellants in this matter. He stated that, therefore, the NEC’s decision on the greenhouse expansion is not final and will be subject to the NEHO appeal process.

15Regarding the adjournment request, Mr. Kilian submitted that there is some merit to considering an adjournment given these circumstances. While maintaining that the NEC took no position on the adjournment, Mr. Kilian acknowledged that it would be difficult to go forward with the hearing given that the stated purpose of the proposed pond is, at least in part, to support the medical marijuana operation on the Subject Property, and that a final decision has not been made as to whether or not growing medical marijuana is a permitted use under the Niagara Escarpment Plan.

Discussion, Analysis and Findings

16In determining whether to grant an adjournment, the Hearing Officer may consider the criteria set out in Rule 105, reproduced above. Having considered these criteria, the Hearing Officer has determined that an adjournment is necessary in the circumstances to ensure a full and fair hearing. Mr. Kilian confirmed that the NEC was not aware of the nature of Applicant’s agricultural use in relation to the proposed pond until it received the Appellant’s appeal, and that use was not considered in the NEC’s decision to approve the application. Furthermore, the information concerning the NEC’s policy interpretation on medical marijuana was not disclosed to the Appellants in advance of the scheduled hearing date. As noted above, Mr. Kilian acknowledged the difficulty in proceeding with the hearing under these circumstances. The Hearing Officer finds that it would not be fair to the Appellants to proceed without that information. An adjournment is required to ensure that the parties have received all of the relevant information before the hearing and have had an opportunity to fully prepare.

17The Applicant did not consent to the adjournment request and objected to the additional delay in this proceeding. The Hearing Officer finds that any prejudice to the Applicant due to a further delay in this matter is outweighed by the need to provide the Appellants with an opportunity to review and respond to the new information. The Hearing Officer observes that there were no counsel or expert witnesses in attendance at the hearing, which will limit any expenses to the parties as a result of the adjournment.

18As a result of the appeal of the additional development permit, the Appellants have the raised the question of whether these two applications should be addressed in the same hearing. Under Rule 173, two proceedings may be combined or heard at the same time, with the consent of the parties, if they involve the same or similar questions of fact, law or policy. If the parties do not consent to combining the matters or hearing them at the same time, Rule 173 permits the Hearing Officer to hear the proceedings one immediately after the other, or to stay one of the proceedings until after another is determined.

19In the present case, it may be the most efficient course of action to hear the appeals of these two applications together. This will be determined during a status update TCC to take place following the PHC that the NEHO will schedule with respect to appeal of the new development application.

20To conclude, after balancing the applicable factors in Rule 105, the Hearing Officer finds that it is reasonable and appropriate to grant the adjournment request.

ORDER

21The hearing in this matter is adjourned.

22The NEHO Case Coordinator will contact the parties to schedule a status update TCC in order to determine next steps.

Hearing Adjourned

Status Update Telephone Conference Call to be Scheduled by Case Coordinator

“Maureen Carter-Whitney”

MAUREEN CARTER-WHITNEY

HEARING OFFICER

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Environmental Review Tribunal

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