Poulakakis v. Ontario (Niagara Escarpment Commission), 2019 CanLII 120205

Ministry of Natural Resources and Forestry

Ministère des Richesses naturelles et des Forêts

Office of the Minister

Bureau du ministre

Room 6630, Whitney Block 99 Wellesley Street West Toronto ON M7A 1W3 Tel: 416-314-2301

Édifice Whitney, bureau 6630 99, rue Wellesley Ouest Toronto (Ontario) M7A 1W3 Tél. : 416-314-2301

VIA EMAIL AND REGULAR MAIL

Dec 10 2019

Louise Engel David Johnson 3678 Victoria Avenue Vineland, ON L0R 2C0 louise.engel@featherstonewinery.ca

NOTICE OF DECISION

made under the provisions of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2

Niagara Escarpment Hearing Office Case No. 18-029 NEC File No.: N/R/2016-2017/339

Dear Ms. Engel and Mr. Johnson,

Re: Christine and Matthew Poulakakis, appellants against Niagara Escarpment Commission’s refusal of a Development Permit Application to demolish 4 accessory use structures and construct a 2-storey single dwelling, a 2-storey detached garage, driveway, and associated parking area on a property located at Part Lot 19, Concession 5, in Town of Lincoln, Regional Municipality of Niagara

Pursuant to s. 25 of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended, the Hearing Officers have inquired into the merits of the decision of the Niagara Escarpment Commission (“NEC”) to refuse the development proposal and advised me of their opinion of the decision.

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Page 2

Ms. Engel and Mr. Johnson

I have reviewed the decision of the NEC and after reviewing the Hearing Officers’ Recommendation (copy attached), I issue conditional approval and direct the NEC to issue a Development Permit subject to the attached modified conditions.

Sincerely,

Minister of Natural Resources and Forestry

Attachments: Niagara Escarpment Hearing Office Report Case # 18-023 Conditions of Approval

c: Christine and Matthew Poulakakis (appellants) Debbie Ramsay, Manager, Niagara Escarpment Commission John Stuart, Senior Planner, Niagara Escarpment Commission Patrick Maloney (via email) Chris Mullet Koop (via email) Albert Wittereen (via email) Will Stoneman (via email) Hugh Fraser (via email) Jim Morrison (via email) Paul Koop (via regular mail)

Conditions for Conditional Approval of Development Permit Poulakakis

1. Development shall occur in accordance with the final Site Plan, Development Permit Application and Conditions as approved.

2. The Development Permit shall expire three years from its date of issuance unless the development has been completed in accordance with the Development Permit.

3. The landowner shall advise the Niagara Escarpment Commission (NEC) in writing of the start and the completion date of the development. This notice shall be provided to the NEC 48 hours prior to the commencement of development, and within 14 days upon completion.

4. No site alteration of the existing contours of the property including the placement or stockpiling of fill on the property is permitted, with the exception of that identified within the development envelope in accordance with the approved Site Plan.

5. No vegetation shall be cut or removed from the development envelope except for that identified within the development envelope in accordance with the approved Site Plan.

6. All disturbed areas shall be re-vegetated and stabilized, in accordance with the approved Site Plan, by the end of the first growing season following the completion of site grading and building construction. All trees, shrubs and nursery stock shall be native to Ontario. Only in extenuating circumstances will non-native species be considered. Native plant material should be sourced from local plant nurseries when available; bush dug plant material is not acceptable.

7. The accessory building shall be used for the purposes of a detached garage only and shall not be used for human habitation (i.e., living space), as a dwelling or apartment unit, or for commercial, institutional, home business, industrial or livestock purposes.

8. Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, an addendum to the Environmental Impact Study (EIS) shall be prepared by a qualified professional, to the satisfaction of the Niagara Escarpment Commission, to address modifications associated with the additional development setbacks required from the wooded area and impact mitigation measures. Recommendations from the EIS shall be included on the final site plan referred to in conditions #1 and 9.

9. Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, an accurate and detailed Final Site Plan shall be submitted for Niagara Escarpment Commission approval. The Plan shall include but not be limited to the following:

a) All drawings submitted must be drawn to scale (bar scale shown), reference the application number and address of the proposal, be dated (revisions as well) and denote the relevant consultant;

b) An accurate delineation of the approved development envelope with temporary fencing;

c) The accurate location of all structures, sewage disposal system and driveway within the development envelope showing setbacks from the property lines, ANSI/woodland;

d) Extent of all disturbed areas;

e) Extent and amount of fill removal or placement. Grading and drainage design including the areas of excavation and temporary or permanent fill placement. Any grading or filling to be conducted must be designed to maintain existing overland flow patterns to help avoid impacts to the woodland. The type, quantity, quality and source location of any imported fill material must be accurately identified. Any fill material approved for importation under this Permit shall conform to the definition of “inert fill” per Ontario Regulation 347 and Table 1 of the Soil, Groundwater and Sediment Standards for use per Part XV.1 of the Environmental Protection Act, dated March 9, 2004;

f) Erosion and sediment control measures;

g) Surveyed location and inventory of vegetation to be preserved and removed as well as all protection measures;

h) A planting plan for vegetative buffer areas (associated with ANSI/Woodland and mitigation for odour control), prepared by an agronomist or landscape architect to the satisfaction of the NEC must be submitted, and relevant details must be included in the Final Site Plan.

i) Final building design to be consistent with the information and drawings provided with the application and any modifications required by the Niagara Escarpment Commission. This would include, but not be limited to height to the peak of roof, area/square meters, architectural treatment, lighting and fenestration.

The approved Final Site Plan shall form the Site Plan referred to in Condition #1 and development shall proceed in accordance with the details of the approved Final Site Plan.

10. Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, a Final Landscape Plan shall be prepared by a qualified person, for Niagara Escarpment Commission approval. The Plan shall address all planting, screening requirements associated with screening and mitigation as well as amenity areas, details and any recommendations in the EIS (October 2017) and the addendum report. Stipulations:

a) All new tree and shrub species shall be native to Ontario. Only in extenuating circumstances will non-native species be considered. Plant material shall be sourced from local plant nurseries; bush dug plant material is not acceptable.

b) Planting and the rehabilitation of all disturbed areas shall be completed, by the end first growing season following the completion of site grading, servicing and building construction to the satisfaction of the Niagara Escarpment Commission.

c) All plant material shall be guaranteed for 24 months following installation. All plant material found during this time to be dead or dying must be replaced with a size and species to the satisfaction of the Niagara Escarpment Commission.

d) Subsequent to the completion of the works a letter certifying the work has been completed in accordance with the approved plan shall be provided to the Niagara Escarpment Commission by a qualified person.

The approved Final Landscape Plan shall form part of the Site Plan referred to in Condition # 1 and development shall proceed in accordance with the details of the Final Landscape Plan.

11. Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, the applicant shall complete and submit an archaeological assessment for those portions of the property where development is planned (i.e. areas where the ground would be disturbed). The assessment shall be completed prior the approval of the final site plan and prior to issuance of the development permit by the NEC. This assessment must be submitted to the Ontario Ministry of Tourism and Culture and Sport for review. An acknowledgement letter from the Ministry must be provided to the NEC and Regional Municipality of Niagara prior to any site alteration.

12. Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, the applicant shall submit for the approval of the Niagara Escarpment Commission, final construction details for the dwelling, the accessory building, including exterior elevations, floor area, height above existing, external lighting and proposed grades and the number of stories. Upon approval, these plans will be stamped “NEC Approved” and shall form part of the Development Permit referred to in Condition # 1. The lighting plan shall form part of the final site plan referred to in condition #1.

13. Prior to the commencement of any development, appropriate erosion/sediment control measures shall be implemented and maintained as shown on the approved Site Plan until all disturbed areas are stabilized. The landowner shall confirm the installation of the erosion/sediment control measures through the submission of photographs to the Niagara Escarpment Commission. It is the responsibility of the landowner to implement, monitor and maintain all erosion/sedimentation control structures until vegetative cover has been successfully established. Any deficiencies shall be addressed immediately.

14. All waste materials generated from the demolition shall be completely removed from the property (e.g., taken to an approved landfill site, salvage/reclamation facility, re-used/recycled elsewhere) and not otherwise stored or buried on-site. All disturbed areas shall be immediately stabilized / rehabilitated as per the approved Site Plan (Condition # 1).

15. Demolition activities shall be limited to occur between October 31 and March 30 inclusive, of any given year, in accordance with Section 8.0 of the EIS (October 2017) to prevent impacts to wildlife that may be periodically utilizing the structures.

16. Vegetation removal and site clearing shall not occur between March 15 and August 31 inclusive, of any given year, within the breeding bird period.

Agreement on Title:

17. Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, the Landowner shall enter into an Agreement under Section 24(2.1) of the Niagara Escarpment Planning and Development Act, in a form acceptable to the Niagara Escarpment Commission. The agreement shall be registered on title for the lands subject to the application at the Landowner’s expense. The scope will include location and maintenance of vegetative plantings for mitigation, warning clause on title, warning of odours associated with the agricultural operation on adjacent lands to the south. The Landowner shall provide proof satisfactory to the Niagara Escarpment Commission that the development agreement has been registered against the lands [i.e., copy of the parcel registry extract and a letter from the Landowner’s solicitor that the registration is complete], and that the Landowner under this Development Permit is the Landowner of the lands at the time of registration.

Notes:

a) This Development Permit does not relieve the applicant of the requirements of any other approval, licence or certificate under any statute (e.g., Ontario Building Code, Conservation Authorities Act, Endangered Species Act, etc.). The issuance of a Niagara Escarpment Commission Development Permit is required prior to the issuance of any other applicable approval, licence or certificate.

b) The Niagara Escarpment Commission supports the protection of the night sky from excessive residential lighting and recommends that the applicant obtain information on shielding the night sky through the use and operation of appropriate lighting fixtures. This information is available at www.darksky.org

c) Should archaeological materials be found on the property during site alteration and development, the Ontario Ministry of Tourism and Culture and Sport should be notified immediately (416-212-8886 or archaeology@ontario.ca).

In the event that human remains are encountered during construction, the proponent should immediately contact the appropriate authorities (police or coroner) and all soil disturbance must stop to allow the authorities to investigate and the Registrar of Cemeteries to be consulted. The Ministry of Tourism, Culture and Sport should be notified immediately.

Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE:

January 22, 2019

CASE NO.:

18-029

PROCEEDING COMMENCED UNDER s. 25(12) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended

Appellants:

Christine Poulakakis (File No. 18-029) Matthew Poulakakis (File No. 18-030)

Applicants:

Louise Engel David Johnson

Respondent:

Niagara Escarpment Commission

Subject of appeal:

Refusal of a Development Permit Application to demolish 4 accessory use structures and construct a 2-storey single dwelling, a 2-storey detached garage, driveway, and associated parking area

Reference No.:

N/R/2016-2017/339

Property Address/Description:

Part Lot 19, Concession 5

Municipality:

Town of Lincoln

Upper Tier:

Regional Municipality of Niagara

NEHO Case No.:

18-029

NEHO Case Name:

Poulakakis v. Ontario (Niagara Escarpment Commission)

Heard:

August 21, 2018 by telephone conference call and November 26, 2018 in Beamsville, Ontario

APPEARANCES:

Parties

Counsel/Representative+

Niagara Escarpment Commission

John Stuart+

Christine and Matthew Poulakakis

Patrick Maloney

REPORT DELIVERED BY MARLENE CASHIN AND GRAHAM REMPE

REASONS

Background

1Christine and Matthew Poulakakis (“Appellants”) own a property on Part Lot 19, Concession 5 in the Town of Lincoln, Ontario (“Subject Property”). Louise Engel and David Johnson (“Applicants”), have a conditional Agreement of purchase and sale for the Subject Property with the Appellants. The Applicants applied to the Niagara Escarpment Commission (“NEC”) for a Development Permit (“Application”) to demolish four accessory use structures and construct a two-storey single dwelling, a two-storey detached garage, driveway, and an associated parking area. The NEC refused the Application on April 27, 2018.

2The NEC refusal was based on the potential for land use conflict based on odour issues. The Subject Property is adjacent to a large chicken farm (“Elmwood Farm”), and the Application must comply with the Minimum Distance Separation (“MDS”) formulae prescribed by the Province of Ontario. The NEC concluded that the Application did not comply with Part 2.8.2 of the Niagara Escarpment Plan (“NEP”), or with section 2.3.3.3 of the Provincial Policy Statement, 2014 (“PPS”); and the requested reduction to the MDS was not considered minor in nature.

3The Appellants appealed the NEC’s refusal decision on May 11, 2018.

4A Pre-hearing Conference (“PHC”) was held on August 21, 2018, by telephone conference call. The PHC was attended by one of the Appellants, Matthew Poulakakis, and his counsel Patrick Maloney. Also present were John Stuart, a Senior Planner for the NEC, who indicated that he would seek to provide expert evidence at the upcoming hearing, and Chris Mullet Koop who operates Elmwood Farm next door to the Subject Property. Mr. Mullet Koop indicated that he was not seeking status as a Party, Participant or Presenter, but that he would like to maintain observer status at the hearing. There were no other requests for status. The Applicants did not appear at the PHC or participate in the proceeding.

5A two-day hearing was scheduled for November 26 and 27, 2018 in Beamsville, Ontario. The hearing was completed on November 26, 2018.

Issue

6The Hearing Officers must decide whether the decision of the NEC to refuse the Application was “correct and should not be changed”, as specified in s. 25(12)(a) of the Niagara Escarpment Planning and Development Act (“NEPDA”). The issues relevant to that decision in this appeal are:

1. whether the Application conforms to the MDS between agricultural and residential uses as required by the NEP and the PPS;

2. whether a minor variance is available in the circumstances of this Application; and,

3. whether a reduced setback is appropriate in this case.

Discussion, Analysis and Findings

Evidence of the NEC (John Stuart)

7The NEC was not represented by counsel. John Stuart, a Senior Planner with the NEC, attended to provide planning evidence to assist the Hearing Officers. Mr. Stuart was qualified by the Hearing Officers as an expert witness, to give opinion evidence on land use planning, particularly with respect to the NEP. Mr. Stuart’s participation was focused on providing expert evidence. He did not seek to act as an advocate on behalf of NEC.

8Mr. Stuart testified that the Subject Property was partly within an Escarpment Natural Area (“ENA”) designation under the NEP, and partly under an Escarpment Protection Area (“EPA”) designation. He noted that there were four cabins located on the property that had historically been used to house migrant workers, but were not considered dwellings for the purposes of the NEP. He testified that the location of the proposed residence was within the EPA designation, where a single family dwelling is a permitted use.

9Mr. Stuart testified that the NEC had required an Environmental Impact Study (“EIS”) in this case, because of the proximity to the ENA area, which is also an Area of Natural and Scientific Interest (“ANSI”). Following negotiations between the Applicants and NEC staff, it was agreed that the proposed residence would be located 10 metres (“m”) further from the edge of the ANSI than originally planned (i.e. from 6 m to 16 m).

10Mr. Stuart indicated that the principal concern with the Application was its non-compliance with the MDS requirements as set out in s. 2.8.2 of the NEP, as well as s. 2.3.3.3 of the PPS 2014, both of which require compliance with the MDS formulae.

11He testified that the NEP defines the MDS formulae as: “[f]ormulae and guidelines developed by the Province, as amended from time to time, to separate uses so as to reduce incompatibility concerns about odour from livestock facilities (Provincial Policy Statement, 2014)”. Mr. Stuart noted that the current MDS document, Publication 853, was promulgated after the Application was submitted. At that time, the less stringent requirements of the earlier MDS Guideline, Publication 707, were in place.

12Mr. Stuart testified that the separation distance between the closest point of the Elmwood Farm chicken barn on the property to the immediate south, and the proposed residence on the Subject Property, was stated as 180 m at the time of the Application (As discussed further below, the Appellants provided evidence of a reconfigured location for the proposed residence that would increase the separation distance to 203 m).

13Mr. Stuart noted that there had been five calculations of the MDS formulae prepared in relation to the Subject Property. The first, prepared by staff at the Town of Lincoln in 2014 calculated an MDS of 206 m. The second, also prepared by Town of Lincoln staff in 2017, calculated an MDS of 226 m. Mr. Stuart testified that he had concern about the accuracy of these numbers, based in part on communications from Mr. Mullet Koop. Mr. Stuart indicated that he had sought and relied on MDS analyses subsequently calculated by James Dyck, an employee of the Ontario Ministry of Agriculture Food and Rural Affairs (“OMAFRA”).

14Mr. Dyck’s three calculations resulted in three different MDS figures: 292 m, 244 m and 226 m. Mr. Stuart indicated that the 292 m figure was not relied upon by NEC as it was calculated using Publication 853 of the current Guidelines applicable to the MDS formula. Mr. Stuart noted that the current Guidelines applicable to the MDS formula (Publication 853) contain a “grandfather” provision in s. 2.4, which specifies that Publication 853 only applies to Planning Act applications received after the date of its publication.

15It was Mr. Stuart’s opinion that the same principle should apply to applications subject to the NEPDA, even though the publication does not specifically refer to them. As the Application was received before Publication 853 was published, it was Mr. Stuart’s opinion that the applicable numerical Guidelines would be those contained in Publication 707, which are less restrictive. The remaining MDS distances were calculated by Mr. Dyck using Publication 707. Mr. Stuart testified that Publication 853 was, however, helpful to assist with issues such as definitions and other guidelines.

16Mr. Dyck’s calculation of 229 m was provided on March 7, 2018 and was based on his estimate of the design capacity of the Elmwood Farm barn. Mr. Dyck’s further calculation of 244 m was provided on March 13, 2018 and was based on the Elmwood Farm barn operating at its design capacity with reconfiguration of existing capacity.

17Mr. Stuart testified that the Elmwood Farm barn had been designed to allow for the incorporation of an additional tier of cages. Mr. Stuart noted that “design capacity” is defined in Publication 853 as: “[t]he maximum number of livestock that can be reasonably housed in ALL of the livestock barns on the lot…” Accordingly, Mr. Dyck had made his March 13, 2018 calculation based on the theoretical maximum design capacity for the Elmwood Farm barn.

18Mr. Stuart’s opinion was that the MDS should be 244 m based on that design capacity.

19Mr. Stuart noted that the maximum setback based on the revised site plan was 203 m, whereas the MDS required, in his opinion, a setback of 244 m. Accordingly, it was his opinion that the Application, even with the amended site plan, would be non-compliant with s. 2.8.2 of NEP and s. 2.3.3.3 of the PPS, 2014.

20Mr. Stuart then reviewed s. 8.2 of Publication 853, entitled “Reducing MDS Setbacks”, noting that OMAFRA does not generally support MDS reductions, especially for new development, and that the stated intent of the MDS policies is to minimize nuisance complaints and reduce land use conflicts.

21Mr. Stuart then went on to consider the applicability of a minor variance, based on s. 45 of the Planning Act, as a tool for considering whether an MDS reduction is appropriate in the circumstances. Mr. Stuart testified that the minor variance process under the Planning Act was the only tool available to consider whether or not a variance is minor. Mr. Stuart’s opinion was that, although s. 45 makes no reference to NEPDA, it would be reasonable to extend those provisions to apply to NEC matters.

22Mr. Stuart then reviewed the test applicable to minor variances. It was his opinion that the variance required was not minor in nature because it did not meet Part 2.8.2 of the NEP. He testified that, based on a 185 m setback and a 244 m MDS, a reduction of 24% would be required. Mr. Stuart’s opinion was that this was not minor, particularly where new construction was being proposed which had the potential to introduce a new conflict to an existing agricultural use, which is a qualitative, not quantitative consideration.

23Mr. Stuart briefly reviewed the mitigation measures proposed by the Appellants: vegetative buffering and the use of an agreement registered on title pursuant to s. 24(2.1) of NEPDA. He testified that he had no experience with vegetative buffers but noted that the document filed by the Appellant would, in his opinion, be inapplicable as it is premised on buffer measures being implemented on the agricultural lands themselves (i.e. on Elmwood farm in this case) rather than the Subject Property. He testified that he had no real familiarity with s. 24 agreements (which he referred to as “indemnity agreements”) being used in relation to odours. Mr. Stuart gave no indication that these proposed mitigative measures would alter his opinion that the requested variance was minor or should be permitted.

24Mr. Stuart was cross-examined by Mr. Maloney, counsel for the Appellants. During cross-examination, Mr. Stuart indicated that he relied on OMAFRA staff regarding the calculation of the MDS setback. He also agreed that the 16 m setback that had been imposed because of the EIS was in place to protect the Escarpment ANSI.

25Mr. Stuart agreed that the Application meets the general intent and purpose of Part 1 of the NEP Land Use Policies. He also agreed that, except for the MDS requirements in s. 2.8.2 of NEP, the Application met all setbacks and other requirements of Part 2 of the NEP Development Criteria.

26Mr. Stuart agreed that the subdivision located to the north of the Subject Property would be more of a limiting factor on any expansion of the Elmwood Farm barn than the development proposed under the Application.

27Mr. Stuart agreed that OMAFRA’s expertise should be relied upon in calculating the MDS. On reviewing Mr. Dyck’s MDS Reports, he agreed that both calculations of theoretical capacity (i.e. 229 m and 224 m) were based on the construction of a new fourth tier of cages in the Elmwood Farm barn.

28Mr. Maloney reviewed email correspondence between Mr. Dyck and Mr. Stuart, noting that the March 7, 2018 MDS calculation had been based on an “enriched” or “non-cage” standard of chicken housing. Mr. Stuart agreed that Elmwood Farm currently had enriched status, for which they receive a premium price for their eggs. He also noted that all new construction after April 2017, must meet the enriched standard. Mr. Maloney drew Mr. Stuart to Mr. Dyck’s conclusion that he was “comfortable” with an MDS based on an enriched density (i.e. 229 m).

29Mr. Maloney then took Mr. Stuart to the March 13, 2018 email from Mr. Dyck to Mr. Stuart. Mr. Stuart indicated he had followed up with Mr. Dyck and requested further review of the MDS. In his email of March 13, 2018, Mr. Dyck stated that Mr. Stuart had requested the “worst case” scenario. Mr. Dyck recalculated the density by assuming that the existing three tiers of cages would be reconfigured from enriched density to the higher density that is still permitted on existing construction. This re-calculation resulted in the 244 m figure. Mr. Dyck stated in his memo that the lower density (the 229 m MDS) was a “much more likely scenario”.

30Mr. Dyck noted that the higher density was less likely because Elmwood Farm would lose its premium status on three tiers. Further, as the fourth tier is new construction and would have to be built at the lower density, the eggs would have to be collected separately. Finally, the higher density would require a 62% increase in the Elmwood Farm quota, which Mr. Dyck noted “costs a lot of money”. Ultimately, Mr. Dyck reiterated his view that an MDS of 229 was a “reasonable scenario”. The 244 m MDS was, in his view, “the outside absolute max”.

31Mr. Maloney asked Mr. Stuart why, if he was reliant on OMAFRA expertise, had he apparently rejected Mr. Dyck’s conclusion that the density generating a 229 m figure was “much more likely”, and instead, stated in his report that the higher density leading to the 244 m MDS was a “very real possibility”. Mr. Stuart said that the limitations on the bird density were a matter of market forces, not land use considerations. Nonetheless, he conceded that the consideration of the limitations on higher density suggested by Mr. Dyck could be factored into the decision.

32Mr. Stuart confirmed that the possible MDS setback had been reduced because of the 16 m setback from the Escarpment. He noted that this setback would always be required regardless of the livestock facility.

33Mr. Maloney took Mr. Stuart to the requirements of Publication 853, particularly s. 8.2 “Reducing MDS Setbacks”. Mr. Stuart agreed that the earlier Publication 707 included the possibility of MDS reductions on a site-specific basis. He agreed that although the minor variance process discussed in Publication 853 refers to applications under the Planning Act, the same principles should be applied in considering minor variances from NEC permit requirements.

34Specifically, Mr. Stuart reviewed the four considerations for a minor variance, as set out in Publication 853, namely, whether the MDS setback:

a) meets the intent of an official plan;

b) meets the intent of the zoning by-law;

c) is desirable and appropriate for the area; and

d) is minor in nature.

35Mr. Stuart agreed that a) and b) are not applicable given that this is not a Planning Act application.

36Mr. Stuart was then taken to p. 100 of Publication 853, which discusses the consideration of what is “desirable and appropriate for the area” for c) above. He agreed that there was no alternative location that could be considered on the Subject Property, and agreed that a minor variance to setback would not impact the type, size or intensity of the agricultural uses in the area, specifically, on Elmwood Farm.

37Mr. Stuart also agreed that a variation to the MDS setback in this situation would not set a precedent for other such applications, as the NEC must consider each application on its specific facts.

38Finally, Mr. Maloney drew Mr. Stuart’s attention to p. 101 of the Publication which states:

It is only appropriate to consider reductions to…setbacks when reasonable alternative locations are limited, and where there is an attempt to reduce potential odour conflicts while balancing against other potential concerns, such as environmental impacts…

39Mr. Stuart agreed that no reasonable alternatives were available; however, he indicated apprehension about mitigative measures, as he could not assess whether they would be implemented.

40When questioned further about the vegetative environmental buffer (“VEB”) tool-kit document submitted by the Appellants (Exhibit 2, Tab 20), Mr. Stuart expressed concern about its applicability because the exhibit was intended to apply to the land of the farmer, rather than the farmer’s neighbour, as in this case. Also, the document applied to conditions in Delaware, which differ from conditions in Ontario. Further, no design plan had been provided. In summary, Mr. Stuart testified that he could not say whether the VEB proposal would work, as there was no track record for this in Ontario.

41Mr. Stuart was asked whether a development agreement, required as a condition of approval and registered on title of the Subject Property, could serve as a warning that would assure that future owners of the Subject Property were aware of the potential for land use conflicts. Mr. Stuart testified that he was not confident that such a clause could protect against complaints from future landowners. He agreed that notice on title of a potential nuisance would alter the way that complaints were handled by NEC staff.

42Mr. Maloney took Mr. Stuart to the discussion of the minor variance test contained in the staff report to the NEC. Specifically, he reviewed Mr. Stuart’s analysis of the four-part test for a minor variance set out above.

43Mr. Stuart confirmed that, subject to conditions, the Application complies with the general purpose and intent of the NEP except for the MDS setback. Further, he agreed that single family dwelling use was a permitted use, and therefore an appropriate and desirable land use. Mr. Stuart conceded that if the MDS was less than the 24% reduction calculated in his report, it would be better. He further noted that there is always some “wiggle room” with these matters. He testified that, as a rule, and in this case, his concern was based on qualitative rather than quantitative considerations.

44Mr. Stuart testified that if a development permit was to be issued, there would be certain conditions required, including revised site plan requirements, an archaeological assessment, an updated EIS to include vegetative design for the 16 m ANSI buffer, and possibly the mitigation measures proposed (i.e. VEB design and a development agreement registered on title) by the Applicants. Mr. Stuart indicated that the ANSI buffer and the VEB buffer work could be done by the same agrologist or landscape architect.

45Finally, Mr. Stuart testified that s. 24(2)1 of the NEPDA allows for the registration of development agreements on title. He testified that these agreements are intended to protect against litigation; however, he confirmed that in this case the agreement would serve as a warning to any potential new owner.

Evidence of the Appellants

Brett Espensen

46The Appellants called Brett Espensen of Colville Consulting Inc. (“Colville”). Mr. Espensen reviewed his credentials including five years of experience as an environmental and agricultural consultant, as well as his experience calculating MDS formulae in over 25 assessments. Mr. Espensen was qualified by the Hearing Officers as an expert entitled to provide opinion evidence on agrology and MDS setback calculations.

47Mr. Espensen testified that Colville had conducted the EIS that was submitted in support of the Application. Mr. Espensen said that he became involved when the Town of Lincoln had calculated an MDS of 206 m. Accepting that figure, and based on a 6 m setback from the ANSI, he testified that the initial assessment indicated that the MDS setback could be met.

48Mr. Espensen testified that the more recent MDS Guideline (Publication 853) generally imposed larger setback requirements than the older Guideline (Publication 707). He agreed with Mr. Stuart that the older Guideline should apply in this case, because the application predated Publication 853. He noted that Mr. Dyck of OMAFRA had stated that the existing capacity of Elmwood Farm at the time of the Application would have resulted in an MDS of 212 m.

49Mr. Espensen testified that it is his understanding that Elmwood Farm receives a premium price of an extra 10 cents per dozen eggs because of a lower density enriched status (the chickens have more living space per bird). He noted that the industry is moving in this direction.

50Mr. Espensen testified that the MDS calculation should be based on a reasonable maximum capacity. It was his opinion that the March 7, 2018 calculation for capacity, and the resulting MDS of 229 m was reasonable in the circumstances.

51Mr. Espensen reviewed the factors set out in Mr. Dyck’s email of March 13, 2018 as to the appropriate density and agreed with Mr. Dyck’s conclusion that the higher density (and higher MDS as a result) was not likely. He testified that the enriched status (and therefore the 10-cent premium), would be lost for the existing three tiers of hens. In addition, he stated that the increased capacity would require the purchase of additional egg quota at a cost of over one million dollars, as well as additional costs to separately handle premium and non-premium eggs. For these reasons, he concluded that the higher density configuration, leading to the 244 m MDS was unreasonable, noting that, while it could be achieved, it would require an investment that would not be reasonable in his opinion.

52Mr. Espensen testified it was his view that expansion of the Elm Farm operation would be constrained by the presence of the subdivision to the north before the Subject Property would ever become a constraint. He filed a constraints analysis report to support this (Exhibit 2, Tab 11).

53Mr. Espensen testified that in his experience, MDS setbacks may be subject to minor variance where odour concerns are an issue. It was his opinion that a VEB would work, as it dissipates and mixes the air and would be the most effective form of mitigation based on constraints on the Subject Property. He noted that it would be better to have the VEB located as close as possible to the Elmwood Farm barn.

54Mr. Espensen considered the discussion of MDS variances in Publication 853, noting that it contemplates variances in certain circumstances. It was his opinion that the reduction was desirable and appropriate in the current situation. Specifically, he noted that there were no other locations possible for development on the Subject Property. Further, he stated that the Application would have no adverse impact on Elmwood Farm, nor would it constrain any expansion of Elmwood Farm (as the subdivision already constrained it). Finally, it was his opinion that a setback here would not create a precedent as the NEC must consider each application on its own merits.

55Mr. Espensen also reviewed the factors to be considered in relation to an MDS variance. He testified that the Application would result in a land use that would be similar to surrounding land uses, although he noted that it would be the closest residential land use to Elmwood Farm. He noted that the available setback had been decreased because of an increase to the ANSI setback. For that reason, he concluded that the MDS reduction would permit the Applicant to “meet some other regulatory setback” (i.e. the ANSI setback) as noted in Publication 853.

56It was Mr. Espensen’s concluding opinion that there were enough reasons in this case, that a variance should be considered.

Heather Sewell

57The Appellants next called Heather Sewell, a Land Use Planner with 11 years of professional experience. Ms. Sewell was qualified by the Hearing Officers as an expert entitled to provide opinion evidence in land use planning.

58Ms. Sewell testified that she has had some experience with MDS calculations. She indicated that she had reviewed the Application and various supporting documents as well as the NEP and PPS 2014 policies, and the applicable Official Plan and Zoning requirements of the local and regional municipalities. It was her opinion that the variance requested was both minor and appropriate.

59Ms. Sewell related her understanding of the agreement of purchase and sale between the Applicants (purchasers) and the Appellants (vendors) and the proposal of the Applicants to use the subject lands to farm hops in addition to the residential use. She conceded that the Application did not refer to, or create any obligation with respect to this proposed agricultural use.

60Ms. Sewell reviewed the elements of the minor variance test as set out in s. 45(1) of the Planning Act (Exhibit 4, pp. 17-20). She testified that there had been some residential use for seasonal farm workers on the Subject Property in the past. She gave the opinion that the proposed residential use would not constrain expansion of the agricultural use at Elmwood Farm, nor would it restrict enjoyment of the Elmwood Farm property. For these reasons, it was her opinion that the proposed variance was minor.

61Ms. Sewell further provided her opinion that the proposed use was desirable, as it complied with the NEP, the PPS, 2014, and the local and regional plans. Further, it would be desirable, in her opinion, to reintroduce an agricultural land use to the Subject Property.

62Ms. Sewell testified that minor variances require a balancing of interests. She testified that the proposed development included residential and agricultural uses, both of which are permitted. Further, the ANSI is protected by a 16 m setback and is compatible with the Elmwood Farm land use. It was her opinion that mitigation measures could be used to reduce adverse impacts. Ms. Sewell testified that a balancing of these various factors led her to a conclusion that a reduction to the MDS setback should be granted in this case.

Submissions of the Appellants

63Mr. Maloney made submissions on behalf of the Appellants. He noted that the revised site plan submitted at the outset of the hearing demonstrated that the residence as previously proposed would achieve an MDS of 189 m, rather than the 185 m in the NEC report, as the setback distance should not have included the porch. Alternatively he submitted, the residence, if relocated closer to the ANSI could achieve an MDS of 203 m while still respecting the ANSI buffer of 16 m.

64Mr. Maloney submitted that except for the MDS issue, the Application could meet all of the requirements set out in Parts I and II of the NEP, as well as the relevant provisions of the PPS 2014. He further submitted that the Applicants were “ideal purchasers” as they intend to restore the Subject Property to incorporate an agricultural use.

65Mr. Maloney submitted that NEPDA requires compliance with the MDS formulae as set out in the Guidelines. He noted that, although NEPDA itself makes no mention of variances, the Guidelines explicitly allow for minor variances. Accordingly, in his submission, a variance could be granted, and the provisions of the applicable Guidelines would still be met. Mr. Maloney submitted that the Application presents a “perfect example” of the balancing exercise built into the process. In this case, because the ANSI is protected, the MDS must be reduced.

66Mr. Maloney noted that Mr. Espensen concluded that a 229 m MDS was more reasonable than the 244 m MDS upon which Mr. Stuart relied. While the capacity of the Elmwood Farm operation could be increased, it was more reasonable to rely on the lower numbers. That, Mr. Maloney submitted, was consistent with the Mr. Dyck’s assessment that 229 m was a more reasonable MDS. Mr. Maloney was critical of NEC’s conclusion on this issue, as Mr. Stuart had indicated that NEC relied on OMAFRA’s expertise, yet ultimately rejected it in establishing an MDS in this case. Mr. Maloney submitted that the lower, 229 m figure was more reasonable.

67Further, based on the revised site plan, Mr. Maloney submitted that any gap between the appropriate MDS and the achievable setback on the Subject Property has been significantly reduced.

68Mr. Maloney submitted that Ms. Sewell’s evidence also supported the variance based on: the recognition of natural features; the lack of impact on the Elmwood Farm operation; the mitigative measures proposed; and the desirability of reintroducing an agricultural use on the Subject Property.

69It was Mr. Maloney’s submission that a minor variance in this case was appropriate, and consistent with the NEP and PPS policies.

70Mr. Maloney submitted that the development permit should be issued with conditions. Those conditions, he said, could include:

• Applicant to submit a plan for the vegetative buffers on the ANSI setback and as a mitigative measure for odour control. These plans to be prepared by an agronomist or a landscape architect to the satisfaction of the NEC.

• A development agreement to be entered into pursuant to s. 24(2) of the NEPDA to the satisfaction of NEC providing for:

­ A warning clause regarding odours on title;

­ Owner to include a notice clause in any agreement of purchase and sale; and

­ Other conditions NEC staff consider necessary (such as archaeological assessment, updated EIS, updated site plan, etc).

Issue 1 – whether the Application conforms to the Minimum Distance Separation between agricultural and residential uses as required by the NEP and the PPS

71Both the NEP (Part 2.8.2) and the PPS which defines MDS, require compliance with the MDS formulae. Part 2.8.2 of the NEP states: “[d]evelopment, including the creation of lots and livestock facilities, shall comply with the minimum distance separation formulae”.

72Several MDS setback calculations were made. The Application was based on the Town of Lincoln calculation of 206 m. NEC staff requested a recalculation of that value by OMAFRA staff, as they were entitled to. This recalculation yielded a setback requirement of 229 m, based on theoretical capacity at the enriched density level, or, a setback of 244 m based on theoretical capacity at a mixture of enriched and higher density habitation. The OMAFRA technician noted that the current actual capacity of the barn yielded a calculation of 212 m.

73Initially the Applicants indicated that they could achieve a setback of 185 m; however, at the Hearing, a site plan was filed which achieved a setback of 189 m based primarily on recalculating the distance from the edge of the house, rather than the edge of the porch. A further Site Plan was filed indicating that the house could be located closer to the ANSI, achieving a setback of 203 m, while still meeting the 16 m ANSI setback.

74The NEC staff report recommended rejecting the Application based on an encroachment into the MDS I arc of 24%. If the Appellant’s revised site plan is accepted, the deviation is 17%, if based on a 244 m MDS, and 11% if based on a 229 m MDS.

75Under either scenario, the Hearing Officers find that there is no dispute that the setback that can be achieved on the Subject Property does not meet the calculated MDS setback requirements mandated by the NEP and the PPS.

Issue 2 – whether a minor variance is available in the circumstances of this Application

76Both the NEP and the PPS require compliance with the MDS formulae. These formulae are established within the relevant guidelines, specifically, Ontario Publication 707, as replaced in 2017 by Publication 853.

77However, both publications provide for a process to permit reduction of MDS setbacks based on site-specific conditions in some circumstances. These are further discussed below.

78These minor variances provisions are stated to be for the use of municipalities in applications under the Planning Act. Both Mr. Stuart and Mr. Espensen, however, testified that the same process should be applied to applications under the NEP. In fact, Publication 853 states at p. 99 that minor variances “may be appropriate for a municipality or other approval authority to consider” (emphasis added).

79Although the Hearing Officers do not specifically have an application for a minor variance before them, based on the language of Publication 853 which recognizes that a reduced setback may be appropriate in certain circumstances, the Hearing Officers find that an analysis of a reduced setback in the context of a development permit application would be appropriate using the tests that would normally be applicable in an application for a minor variance under s. 45(1) of the Planning Act, tailored to the specific circumstances of a development permit applied for under the NEPDA.

80The Hearing Officers conclude that the minor variance process as discussed in Publication 853 is available for consideration in this case.

Issue 3 – whether a reduced setback is appropriate in this case

81As explained through the testimony of the expert witnesses, the four considerations in the planning context for a minor variance are:

• Is the application in keeping with the general purpose and intent of the Official Plan?

• Is the application in keeping with the general intent and purpose of the Zoning By-Law?

• Is the application appropriate and desirable for the use of the lands?

• Is the application minor in nature?

82Mr. Espensen and Mr. Stuart agreed that it is the NEP that governs consideration one above, and that consideration two is not relevant, as the local Zoning By-law is not engaged in the context of the development permit application. Further, both agreed that the intent of both Part I, and Part II (subject to conditions) of the NEP can be met by the Application, with the exception of the issue of the MDS setback. The Hearing Officers agree.

83Regarding whether or not the application is appropriate and desirable for the use of the lands, Publication 853 of the Guidelines discusses aspects that should be considered. Mr. Stuart agreed that there were no alternative locations on the Subject Property, the reduced setback would have no impact on agricultural uses in the area, and the reduced setback would not limit the ability for future agricultural growth on Elmwood farm, as this is already constrained by subdivisions to the north.

84The Appellants submit that these tend to support rather than refute the request for a development permit with a reduced MDS setback.

85In both Mr. Espensen’s and Ms. Sewell’s opinion, the reduced MDS setback would be desirable and appropriate. In presenting their evidence, they both referred to various documents prepared by the Applicants, and which were filed in the Appellants’ book of documents. Although the Applicants did not appear as witnesses, it did not appear to be in dispute that the Applicants are local farmers and that they intend to put part of the Subject Property into agricultural use to grow hops. All the expert witnesses agreed that the reintroduction of active agricultural use to the Subject Property would be a desirable result. The Hearing Officers agree, but note that the Application deals only with the proposed residential use and creates no obligation for further agricultural use on the Subject Property.

86The fourth consideration deals with whether the reduced setback proposed is “minor”. As noted above, the NEC rejected the Application on an encroachment into the MDS I arc of 24%. Given the reconfiguration of the site plan as filed at the hearing, and depending on the number used as the required setback distance, the actual encroachment could be between 11% and 17%.

87Whether the encroachment into the required setback area is 11% or 17% depends on the design capacity of the Elmwood Farm facility. Publication 853 defines “Design capacity” as “the maximum number of livestock that can be reasonably housed in all of the livestock barns on a lot…” (underlining added).

88The OMAFRA technician who calculated the MDS values for NEC staff originally calculated an MDS of 229 m, based on his view that the use of enriched density housing would apply. He also noted that the current capacity of the barns at the time would require a setback of 212 m.

89After discussion with NEC staff and the adjacent farmer (Mr. Mullet Koop), the OMAFRA technician provided a further email dated March 13, 2018 which provided updated MDS calculations, at the request of NEC staff, based on higher density housing in the barns. Mr. Dyck repeated his conclusion of March 7, 2018 that a maximum number of livestock based on the current enriched status was, in his view, ‘a much more likely scenario”, and “a reasonable scenario”. In the same memo, he referred to the higher density re-calculation requested by NEC staff after as the “worst case” scenario, and “the outside absolute max”.

90Mr. Espensen’s opinion was that the lower density enriched status was the appropriate housing density in calculating a design capacity based on what could reasonably be housed in the existing barns. He confirmed the reservations expressed in the OMAFRA memo of March 13, 2018, that is, that the loss of the enriched premium combined with the increased costs of segregated collection systems and additional egg quota requirements made the higher density unlikely.

91The Hearing Officers conclude that the best evidence of what setback is reasonable is to be found in the calculations and correspondence from the OMAFRA technician. It is evident from the correspondence filed that Mr. Dyck saw the 229 m figure as based on a “reasonable” design capacity. Further, it was clear that, in his view, the 244 m design capacity was not likely to be achieved. The Hearing Officers agree, and find that the 229 m figure should be the one used for MDS calculations in this circumstance, in accordance with the Guidelines’ requirement that design capacity be based on what can reasonably be housed in available space.

92Using the figures set out above, the proposed reduced setback would therefore shrink from a 24% encroachment to an 11% encroachment into the MDS setback area. But is that enough to make the reduction “minor”?

93Mr. Stuart’s emphasis was on qualitative effects, rather than quantitative effects. Indeed, the MDS Guidelines point out that circumstances will dictate whether a setback reduction is minor, noting that in some cases, a significant reduction may be minor, while in other cases the opposite is true.

94Guideline 853 provides further guidance on the reduction of MDS setbacks. That document refers to Guideline 43 from the MDS document (which was not itself made available to the Hearing Officers) and sets out at p. 100:

MDS setbacks should not be reduced except in limited site-specific circumstances that meet the intent of this MDS Document. Examples may include circumstances that mitigate environmental or public health and safety impacts or avoid natural or human-made hazards…OMAFRA does not generally support or encourage reductions to MDS I distances, especially for new development. The intent of MDS I is to minimize nuisance complaints associated with livestock facilities…due to odour and thereby reduce potential land use conflicts.

95The Guideline continues at p. 101:

It is only appropriate to consider reductions to…setbacks where reasonable alternative locations are limited, and where there is an attempt to reduce potential odour conflicts while balancing or mitigating against other potential concerns such as environmental impacts…or natural…hazards.

96Finally, the Guideline states the following under the heading “Practicality”, “Does the proposed reduction to the…setback permit the new development or building to meet some other regulatory setback requirement?”

97The Subject Property has no “reasonable alternative locations” to construct a residential dwelling, and there was no dispute on this point.

98The Application resulted in a negotiated setback from the ANSI of 16 m, as discussed above. The Hearing Officers conclude that the 16 m setback is intended “to meet some other regulatory setback requirement”, the ANSI setback.

99The Appellants have proposed several measures intended to reduce the potential odour conflicts which are stated to be at the heart of the MDS setback rationale. The Appellants propose that a vegetative buffer be required as a condition of approval. Mr. Espensen, who has experience with such buffers, provided his opinion that this would be an effective mitigation measure. Mr. Stuart expressed concern that this was not an approach that had been proven in Ontario to his knowledge; however, he conceded that he has had no experience with vegetative buffers.

100The Appellants also propose that a condition of a development permit could be to register an agreement on title under s. 24(2) of the NEPDA providing for a warning respecting potential odour impacts as well as a requirement of notice to any future purchasers. Mr. Stuart has testified that having such agreements registered on title would affect the way that any complaints would be dealt with by the NEC.

101The reservations expressed by NEC staff appear ultimately to be based on the interpretation that new land uses which may lead to conflict are to be avoided. While that is clearly the intent of the MDS Guidelines, there is explicit recognition that variances may be appropriate in site-specific circumstances.

102In this case, it is agreed that there are no alternative sites for the proposed development on the Subject Property. The required setback distance from the ANSI has been accommodated for in the planning. Attempts have been made to reduce potential odour conflicts by locating the dwelling as far away from Elmwood farm as possible, while allowing for the 16 m setback from the ANSI. The Hearing Officers conclude that in these specific circumstances a reduced setback is justified and will be “minor”. The variance process is intended to balance factors such as odour mitigation and mitigation against other concerns (such as the ANSI setback in this case). The Hearing Officers conclude that they should not simply reject these factors based on the potential for land use conflicts. If that were the correct approach, then the Guidelines would not have provided for a minor variance process.

103The Hearing Officers find that, the Application (as revised, and subject to conditions specified below) meets the minor variance requirements of the Guidelines and is therefore consistent with the MDS Guidelines. For that reason, the Hearings Officers conclude that the NEC decision to reject the Application was not a correct decision.

RECOMMENDATION

104In light of the findings above, the Hearing Officers conclude that the decision of the NEC dated April 27, 2018 to refuse to issue a development permit for Application N/R/2016-2017/339, is not correct and should be changed. The NEC’s decision is, therefore, not confirmed pursuant to s. 25(12) of the NEPDA. The Hearing Officers recommend the issuance of a development permit to demolish four accessory use structures and construct a two-storey single dwelling, a two-storey detached garage, driveway, and an associated parking area at Part Lot 19, Concession 5, in the Town of Lincoln, Ontario, as shown on the updated plan submitted by the Appellants (Exhibit 2, Tab 1), subject to the conditions contained in Appendix 1 of this Report.

NEC Decision Not Confirmed

Conditions of Approval Recommended

“Marlene Cashin”

MARLENE CASHIN

HEARING OFFICER

“Graham Rempe”

GRAHAM REMPE

HEARING OFFICER

Appendix 1 – Recommended Conditions of the Conditional Approval - N/R/2016-2017/339

If there is an attachment referred to in this document,

please visit www.elto.gov.on.ca to view the attachment in PDF format.

Niagara Escarpment Hearing Office

Environmental Review Tribunal

A constituent tribunal of Tribunals Ontario - Environment and Land Division

Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

Appendix 1

Recommended Conditions of the Conditional Approval - N/R/2016-2017/339

• Applicant to submit a plan for the vegetative buffers on the ANSI setback and as a mitigative measure for odour control. These plans to be prepared by an agronomist or a landscape architect to the satisfaction of the NEC.

• A development agreement to be entered into pursuant to s. 24(2) of the NEPDA to the satisfaction of NEC providing for:

• A warning clause regarding odours on title

• Owner to include a notice clause in any agreement of purchase and sale.

• Other conditions NEC staff consider necessary (such as archaeological assessment, updated EIS, updated site plan, etc).