Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE:
May 4, 2017
CASE NO.:
16-106
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant:
Michael Zwiep (File No. 16-106)
Appellant:
Elizabeth Kozlowski (File No. 16-107) (Closed)
Appellant:
Jason Tuin (File No. 16-108) (Closed)
Applicant:
Richard Redekop
Respondent:
Niagara Escarpment Commission
Subject of appeal:
Approval of a Development Permit Application to construct three additions onto an existing greenhouse complex
Reference No.:
N/A/2015-2016/370
Property Address/Description:
Part Lots 5 and 6, Concession 6
Municipality:
Town of Pelham
Upper Tier:
Region of Niagara
NEHO Case No.:
16-106
NEHO Case Name:
Zwiep v. Ontario (Niagara Escarpment Commission)
Heard:
April 6 and 13, 2017 by telephone conference call
APPEARANCES:
Parties
Representative
Michael Zwiep
Self-represented
Richard Redekop
Barbara Irek
Niagara Escarpment Commission
John Stuart
Elizabeth Kozlowski
Self-represented*
Jason Tuin**
Jason Tuin
Self-represented
H. Willard Bradley
Self-represented
*April 6, 2017 only
**April 13, 2017 only
REPORT DELIVERED BY MAUREEN CARTER-WHITNEY
REASONS
Background
1On February 9, 2016, Richard Redekop (“Applicant”) submitted development permit application N/A/2015-2016/370 (“Development Permit Application”) to the Niagara Escarpment Commission (“NEC”) seeking permission to construct a 929 square metre (“sq m”) accessory storage building and three additions, totaling 832.8 sq m, onto an existing 1,311 sq m agricultural greenhouse complex on a 10.93 hectare (“ha”) lot located on Part Lots 5 & 6, Concession 6 (1760 Effingham Street) in the Town of Pelham, Regional Municipality of Niagara (“Subject Property”). In addition to the existing greenhouse, the Subject Property also supports a single dwelling, two barns, a storage pavilion and a storage trailer (to be removed upon completion of the proposed additions). Barbara Irek is the owner of the Subject Property.
2On August 5, 2016, the Applicant revised the Development Permit Application to eliminate the proposal for an accessory storage building.
3On October 24, 2016, the NEC conditionally approved the Development Permit Application for the three additions to the greenhouse.
4On November 1, 2016, Michael Zwiep (“Appellant”), a nearby property owner, submitted an appeal of the conditional approval of the Development Permit Application to the Niagara Escarpment Hearing Office (“NEHO”) under s. 25(8) of the Niagara Escarpment Planning and Development Act (“NEPDA”) (“Zwiep matter”). Elizabeth Kozlowski and Jason Tuin, also nearby property owners, submitted a Notice of Appeal of the conditional approval of the Development Permit Application, which was received after the deadline to appeal.
5By an order of the NEHO issued on December 23, 2016, the appeals by Ms. Kozlowski and Mr. Tuin were dismissed for lack of jurisdiction.
6Earlier in the year, on June 21, 2016, Ms. Kozlowski and Mr. Tuin also appealed a June 7, 2016 decision by the NEC to conditionally approve development permit application N/A/2014-2015/256 submitted by Ms. Irek, seeking permission to construct a 0.2 ha dug pond for agricultural purposes on the Subject Property (NEHO Case No. 16-071; “Kozlowski matter”). At the request of Ms. Kozlowski and Mr. Tuin, the Kozlowski matter was adjourned at the start of the hearing on November 2, 2016 due to the related Zwiep matter. At that time, Ms. Kozlowski and Mr. Tuin also raised the question of whether the appeals of the two related development permit applications should be addressed together.
7The Pre-hearing Conference (“PHC”) in this matter began on February 17, 2017 by telephone conference call (“TCC”) and was continued by TCCs on March 1 and April 6 and 13, 2017.
8At the February 17, 2017 PHC, the Hearing Officer granted Party status in this matter to Ms. Kozlowski, Mr. Tuin and H. Willard Bradley. The Parties discussed with the Hearing Officer the issues to be determined in this matter. The issues related to the Niagara Escarpment Plan (“NEP”) that the Parties raised were as follows:
Whether a medical marijuana facility is permitted as an agricultural use in the Escarpment Protection Area of the NEP;
Whether there will be adverse impacts from light emissions from the proposed development;
Whether increased water consumption as a result of the proposed development will result in adverse impacts to groundwater quantity, affecting surrounding drilled wells and water table levels; and
Whether there will be adverse odour impacts as a result of the proposed development.
9At the March 1, 2017 PHC, the Hearing Officer: scheduled the proceedings in the Zwiep and Kozlowski matters to be heard one immediately after the other from May 8 to 19, 2017; addressed matters relating to requests with respect to the Zwiep and Kozlowski matters pursuant to the Freedom of Information and Protection of Privacy Act; directed a schedule for the disclosure of documents; and scheduled a continuation of the PHC on April 6, 2017 to further address any disclosure issues and to determine the order in which the appeals would be heard.
10Additional information concerning the first two PHCs in this matter is found in the Hearing Officer’s order issued on March 8, 2017.
11At the April 6, 2017 PHC, the Parties advised the Hearing Officer that they were engaged in settlement discussions. The Hearing Officer also addressed issues that had arisen in relation to disclosure, and adjourned the PHC to April 13, 2017.
12At the April 13, 2017 PHC, the Hearing Officer was advised that Ms. Irek had undertaken to withdraw the development permit application for the proposed dug pond (N/A/2014-2015/256) in the Kozlowski matter. Mr. Zwiep undertook to advise the NEHO by April 21, 2017 concerning whether he wished to withdraw his appeal in the Zwiep matter or proceed to a hearing.
13On April 21, 2017, Mr. Stuart from the NEC provided the NEHO with a copy of an agreement between the Parties in the Kozlowski matter regarding the withdrawal of Ms. Irek’s application.
14In emails dated April 21 and 24, 2017, Mr. Zwiep provided the NEHO with written notice of the withdrawal of his appeal in this matter.
Issue
15The issue is whether the NEC’s decision to conditionally approve the Development Permit Application should be deemed to be confirmed.
Relevant Legislation and Rule
16The relevant provisions of the Niagara Escarpment Planning and Development Act (“NEPDA”) and the Environmental Review Tribunal’s Rules of Practice (“Rules”) that apply to this proceeding are:
Niagara Escarpment Planning and Development Act
25(10.2) If the persons who appealed the decision withdraw their appeals or fail to appear at the hearing, the decision of the delegate shall be deemed to be confirmed.
Tribunal Rule
- If the Appellant withdraws his or her appeal of a development permit, or fails to appear at the Hearing, the decision of the Niagara Escarpment Commission is automatically confirmed pursuant to section 25(10.2) of the Niagara Escarpment Planning and Development Act.
Discussion, Analysis and Findings
17Section 25(10.2) of the NEPDA provides that the withdrawal of an appeal results in a confirmation of the NEC decision. That section is reflected in Rule 205 of the Rules, which apply to the NEHO. The Hearing Officer is satisfied that s. 25(10.2) of the NEPDA applies in this matter. Therefore, the NEC’s decision to conditionally approve the Development Permit Application is deemed to be confirmed.
DECISION
18As the appeal in this matter has been withdrawn, the NEC’s decision to conditionally approve the Development Permit Application by Richard Redekop for a development permit (N/A/2015-2016/370) is deemed to be confirmed pursuant to s. 25(10.2) of the NEPDA.
19The hearing in this matter, scheduled for May 8 to 19, 2017, is cancelled.
Appeal Withdrawn
NEC Decision Confirmed
Hearing Dates Cancelled
“Maureen Carter-Whitney”
MAUREEN CARTER-WHITNEY
HEARING OFFICER
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Environmental Review Tribunal
A constituent tribunal of Environment and Land Tribunals Ontario
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248