Kozub v. Ontario (Niagara Escarpment Commission), 2019 CanLII 18857

Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE: March 07, 2019

CASE NO.: 18-053

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

Appellant: Ronald Scott Kozub (File No. 18-053)

Appellant: Julie Kozub (File No. 18-054)

Applicant: Marv Junkin

Respondent: Niagara Escarpment Commission

Subject of appeal: Approval of a Development Permit Application to construct a greenhouse, and convert a portion of a building previously used as a dairy barn for an annual herb operation, on the section of a farm comprised of two parcels, which also supports a dwelling and five other accessory buildings

Reference No.: N/A/2015-2016/331

Property Address/Description: Part Lot 8, Concession 2 and 3

Municipality: Town of Pelham

Upper Tier: Region of Niagara

NEHO Case No.: 18-053

NEHO Case Name: Kozub v. Ontario (Niagara Escarpment Commission)

Heard: February 26, 2019 by telephone conference call

APPEARANCES:

Parties Representative

Julie Kozub and Ronald Scott Kozub Julie Kozub

Niagara Escarpment Commission John Stuart

Trevor Adams Self-represented

ORDER DELIVERED BY MARLENE CASHIN AND GRAHAM REMPE

REASONS

Background

1Marvin Junkin (“Applicant”) submitted a development permit application to the Niagara Escarpment Commission (”NEC”) on January 22, 2016, seeking permission to construct a greenhouse, and convert a portion of an existing building previously used as a dairy barn for an annual herb operation, on the section of a farm comprised of two parcels, which also supports a dwelling, and five other accessory buildings. The property is located at Part Lot 8, Concession 2 and 3, in the Town of Pelham, Region of Niagara. The Niagara Escarpment Plan (“NEP”) land use designation applicable to the property is Escarpment Rural Area.

2Between January 22, 2016 and September 11, 2018, several changes to the original development permit application occurred; the Applicant was asked to provide more information regarding the application, and did so; and at least two revisions to the application were made.

3The NEC conditionally approved the application (N/A/2015-2016/331) subject to conditions attached to the Notice of Decision dated September 26, 2018.

4On October 10, 2018, Ronald Scott Kozub and Julie Kozub (“Appellants”) appealed the decision of the NEC to approve the application for a development permit under s. 25(8) of the Niagara Escarpment Planning and Development Act (“NEPDA”).

5A Pre-hearing Conference (“PHC”) regarding the appeal was held by telephone conference call on February 26, 2019. The NEC Planner, John Stuart attended, as did Ms. Kozub, on behalf of the Appellants. Two other residents in the area, Trevor Adams, and Jen Boyce (on behalf of herself and Kevin Boyce) also attended. Mr. Adams requested party status in the proceeding, while Ms. Boyce advised that she and Mr. Boyce wish to remain observers only.

6The Applicant did not attend the PHC, although he was duly notified of its date, and of the fact that the PHC is peremptory and, as a result, would proceed in his absence if he did not attend.

7At the PHC, the Hearing Officers granted party status to Mr. Adams, and provided procedural directions regarding scheduling of the hearing and steps leading up to the hearing. These are the reasons for those decisions.

Issues

8The issues at the PHC were:

a. whether Mr. Adams’ request for party status should be granted; and

b. procedural directions regarding the schedule for the hearing.

Relevant Legislation and Rules

9The relevant Rules of Practice of the Environmental Review Tribunal (“ERT Rules”) which also apply to hearings of the NEHO are as follows:

Naming of a Party

62. The following persons are Parties for the purpose of the Rules:

(a) persons specified as Parties by or under the statute under which the proceeding arises;

(b) persons otherwise entitled by law to be Parties to the proceeding; and

(c) persons who request Party status and are so specified by the Tribunal as Parties for all or part of the proceeding, and on such conditions as the Tribunal considers appropriate.

63. In deciding whether to name a person as a Party to the proceeding, the Tribunal may consider relevant matters including whether:

(a) a person's interests may be directly and substantially affected by the Hearing or its result;

(b) a person has a genuine interest, whether public or private, in the subject matter of the proceeding; and

(c) a person is likely to make a relevant contribution to the Tribunal's understanding of the issues in the proceeding.

Role of a Party

64. A Party to the proceeding before the Tribunal may:

(a) bring motions;

(b) be a witness at the Hearing;

(c) be questioned by the Parties;

(d) call witnesses at the Hearing;

(e) cross-examine witnesses;

(f) make submissions to the Tribunal, including final argument;

(g) receive copies of all documents exchanged or filed by the Parties;

(h) participate in a mediation;

(i) attend site visits; and

(j) claim costs or be liable to pay costs where permitted by law.

In proceedings other than those under section 142.1 of the Environmental Protection Act, a person granted Party status under Rule 62(c) may raise an issue that has not already been raised by persons referred to in Rule 62(a) and (b) with the permission of the Tribunal.

Discussion, Analysis and Findings

Issue No. 1: Whether Mr. Adams Should be Granted Party Status

10Mr. Adams attended the PHC and expressed interest in having status at the hearing. He advised the Hearing Officers that his property abuts the Applicant’s property to the south. Like the Appellants, he is concerned about light impacts, as well as the potential that the Applicant would grow cannabis in the facility, and what impacts that may have on him. Mr. Adams indicated that he was away when the Notice of Decision was served, or he would have appealed. He also indicated that he would want to ask questions of the Applicant in the hearing.

11The Appellants had no objection to Mr. Adams’ request for party status.

12The Hearing Officers find that Mr. Adams satisfies the requirements of Rule 63 of the ERT Rules, which governs the considerations that are relevant to a granting of party status. Mr. Adams has a genuine, direct, and substantial interest in the application and the appeal, and the Hearing Officers find that he is likely to make a relevant contribution to the Hearing Officers’ understanding of the issues.

Issue No. 2: Scheduling and Procedural issues

13A timetable was set as specified below, for the exchange among the parties of all relevant documents, and for the subsequent exchange, and filing with the Hearing Office, of all witness statements and documents to be relied upon at the hearing.

14Parties should refer to ERT Rules 162-188 regarding hearing procedure, particularly Rule 170-171, regarding witness statements.

Issues for the Appeal

15A preliminary discussion regarding the issues for the appeal took place at the PHC. Generally, the issues discussed can be characterized as follows:

a. the potential that cannabis cultivation will take place, and the potential adverse effects associated with that, such as odours; and

b. the potential for light pollution and its impacts, regardless of the crops being cultivated.

16Both Mr. Adams and Ms. Kozub expressed concern about their property values. The Hearing Officers indicated that property values are not a part of the NEPDA planning scheme and could not be considered as an issue in these proceedings.

17The Parties indicated that a meeting is currently being planned to facilitate discussions between the Applicant, the Appellants, Mr. Adams, and the NEC to clearly identify the issues for the hearing or if a settlement might be reached. Mr. Stuart has undertaken to update the Hearing Office regarding the outcome of this meeting.

ORDER

18Trevor Adams is granted party status.

19The following schedule shall apply to this appeal unless revised by the Hearing Officers:

a. March 12, 2019 – Parties to provide all documents relevant to the proceeding and in their possession, control or power to the other parties;

b. March 26, 2019 – Parties to exchange all witness statements and any documents upon which they intend to rely at the hearing, and to file copies with the Hearing Office;

c. May 10, 2019 – Hearing of the appeal commencing at 10 a.m. in:

Council Chambers Town of Pelham 20 Pelham Town Square Fonthill, Ontario

Request for Party Status Granted

Procedural Directions Ordered

“Marlene Cashin”

MARLENE CASHIN

HEARING OFFICER

“Graham Rempe”

GRAHAM REMPE

HEARING OFFICER

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