Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 22, 2021
CASE NO(S).: PL190106, PL161306
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: MJJJ Developments Inc.
Subject: Request to amend the Official Plan - Refusal of request by Town of Caledon
Existing Designation: Prestige Industrial
Proposed Designated: Prestige Industrial Exception
Purpose: To permit an unenclosed hot mix Asphalt plant Accessory Open Storage
Property Address/Description: Part of Lot 3, Concession 6
Municipality: Town of Caledon
Approval Authority File No.: POPA 19-02
OLT Case No.: PL190106
OLT File No.: PL190106
OLT Case Name: MJJJ Developments Inc. v. Caledon (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: MJJJ Developments Inc.
Subject: Application amend Zoning By-law No. 2006-50 - Refusal of Application by Town of Caledon
Existing Zoning: Agricultural (A1)
Proposed Zoning: Site specific Prestige Industrial (MP-X)
Purpose: To permit an unenclosed Asphalt plant and Accessory Open Storage
Property Address/Description: Part of Lot 3, Concession 6
Municipality: Town of Caledon
Municipality File No.: RZ 18-04
OLT Case No.: PL190106
OLT File No.: PL190107
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Dig-Con International Limited
Subject: By-law No. 2016-100
Municipality: Town of Caledon
OLT Case No.: PL161306
OLT File No.: PL161306
OLT Case Name: Dig-Con International Limited v. Caledon (Town)
Heard: February 3–5, 8-12, 16-19, 22-26 and March 1-4, 2021 by video hearing (“VH”)
Final Written submissions received by March 30, 2021
APPEARANCES:
Parties
Counsel
MJJJ Developments Inc. Dig-Con International Limited
J. Meader
Town of Caledon
C. Barnett and E. Barz
Mars Canada Inc.
S. Rosenthal and J. Cole
Ontari Holdings Ltd. BoltCol Holdings South Inc. BoltCol Holdings North Inc.
J. P. Patterson, P. Morley and L. English
DECISION DELIVERED BY M. ARPINO WITH AN ORDER AND INTERIM ORDER OF THE TRIBUNAL
1MJJJ Developments Inc. (“MJJJ”) ”) appealed the decision of the Town of Caledon (“Town”) to refuse MJJJ’s applications to amend the Town Official Plan (“OP”) and Town Zoning By-law No. 2006-50, as amended (“ZBL”).
2MJJJ seeks to construct a hot mix asphalt plant (“HMA Plant”) on the property known municipally as 12415 Coleraine Drive (“Subject Site”). The ZBL stipulates that hot mix asphalt plants are not permitted in the Town. The OP policies designate the Subject Site for Prestige Industrial uses. Hot mix asphalt plants are not identified as a permitted use in lands designated Prestige Industrial. MJJJ submitted applications for an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”)
3The Town denied the applications. MJJJ appealed the Town’s decision to the Tribunal (“Appeals”). A related Site Plan application was not before the Tribunal.
4At the first Case Management Conference (“CMC”), the Tribunal granted Party status to Mars Canada Inc. (“Mars”). Party status was granted to Ontari Holdings Ltd., BoltCol Holdings South Inc., BoltCol Holdings North Inc. ( herein collectively referred to as “Ontari/BoltCol”) and the Regional Municipality of Peel (“Region”). Mars and Ontari/BoltCol are opposed to the HMA Plant. The Region has since withdrawn from the proceedings. The Tribunal granted participant status to nine interested persons.
5PL161306 is a related appeal to the Tribunal. The Town passed Zoning By-law No. 2016-100 which amended the ZBL. Dig-Con International Limited (“Dig-Con”) submitted a site-specific appeal related to the Subject Site. The Tribunal approved By-law No. 2016-100 subject to the site-specific appeal by Dig-Con. The approval of this amending by-law was without prejudice to a future application for the development of a hot mix asphalt plant. MJJJ and Dig-Con are collectively referred to as “MJJJ”. At a subsequent CMC, the Tribunal ordered the consolidation of Tribunal Case Files: PL190106 and PL161306.
Description of Property and Context
6The Subject Site is located on the east side of Coleraine Drive, south of George Bolton Parkway in the South Simpson Industrial Secondary Plan area (“SSISP”). It extends between Coleraine Drive and Simpson Road. It is approximately 2.78 hectares in size, with 60 metres (“m”) of frontage on Coleraine Drive and a similar frontage along Simpson Road. It is 459 m deep extending from Coleraine Drive to Simpson Road. There is currently a dwelling on the Subject Site it is proposed to be demolished to accommodate the subject proposal, the remainder of the Subject Site is vacant.
7The property to the north contains a construction business. The property to the south contains a landscaping business with outdoor storage, and the property further to the south at 12315 is a facility in which some of Mars’ products are stored and co-packed (“Mars Facility”). The lands to the east of the Subject Site are also owned by MJJJ. The lands to the west are owned by Ontari/BoltCol and are being developed with several large warehouse buildings.
8A few residential dwellings remain in the area which are designated and zoned industrial and have legal non-conforming status.
Proposed Development/Applications
9The proposal for the Subject Site consists of a two-storey office building fronting on Coleraine Drive (“Office Building”) and the HMA Plant on the eastern two-thirds with frontage on Simpson Road.
10Originally the OPA application sought to amend the OP to add an HMA Plant as a permitted use of land designated Prestige Industrial; the application was revised. The OPA before the Tribunal is a request to change the land use designation of the easterly two-thirds of the Subject Site (approximately) to General Industrial. The designation of the westerly one third of the Subject Site would remain Prestige Industrial.
11The ZBL permits the Office Building but does not permit the HMA Plant. The ZBA proposes a site-specific amendment to the ZBL to permit the eastern two-thirds of the Subject Site to be used as an HMA Plant with accessory open storage.
12The ZBL includes setbacks for the overall HMA Plant and specific setbacks for the accessory open storage areas and the asphalt plant core equipment. The distance from Coleraine Drive to the area that will be used for the overall HMA plant operation is proposed to be161 m. There is a proposed area to house the HMA plant equipment and the setbacks proposed are as follows: From Coleraine Drive to the silos is proposed to be 290 m.; The Setback from Simpson Road is proposed to be 60 m; From the north lot line, 12 m. and; From the south lot line, 15 m.
13Access to the Office Building is proposed to be from Coleraine Drive. Trucks making deliveries or pick-ups associated with the HMA plant would access the HMA plant from Simpson Road. A security fence and sliding access gate would be located between the Office Building and the HMA to restrict access within the Subject Site.
14The HMA Plant consists of several components, including bins, conveyors, tanks, the rotary drum dryer/mixer and silos. The HMA plant essentially combines three main input materials: aggregate materials, Recycled Asphalt and Liquid Asphalt Cement, to produce the HMA product. The processing operation is not enclosed within a building. Raw aggregate materials and Reclaimed Asphalt Pavement (“RAP”) are proposed to be stored outside. A seasonal field office near Simpson Road is also proposed.
15The Tribunal issued a Procedural Order including an Issues list on January 25, 2021. The Tribunal received:
a. Agreed Statement of Facts - Noise -January 21, 2021
b. Agreed Statement of Facts - Air Quality - January 22, 2021
c. Agreed Statement of Facts - Transportation -. January 22, 2021
d. Agreed Statement of Facts - Hydrogeology -January 22, 2021.
16The Parties presented, on consent, draft planning instruments for consideration of the Tribunal (“Draft Instruments”). The Town, Mars and Ontari/BoltCol remained opposed to the proposed development. However, they made submissions including amendments regarding the Draft Instruments.
LEGISLATIVE TESTS AND POLICY REGIME
17In making a decision under the Planning Act (“Act”) with respect to the Appeals, the Tribunal must have regard to matters of provincial interest as set out in s. 2 of the Act. The OPA and ZBA must be consistent with the Provincial Policy Statement, 2020 (“PPS”) and must conform with purpose and intent of the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). In addition, they must conform with the Peel Region Official Plan and the Town OP the proposal must represent good planning in the public interest. The Tribunal must have regard to the decision of Town Council, and the information considered by Town Council.
ISSUES
18The Tribunal was informed that issues regarding Transportation, Noise, Air Quality (save for odour), vibration, and hydrogeology have been withdrawn.
19There are two (2) core issues for the Tribunal to adjudicate.
Conformity with the OP
Is the HMA Plant permitted on land designated for General Industrial use?
Should the easterly 2/3 of the Subject site be designated for General Industrial use?
Does the HMA Plant conform to the OP Urban Design policies?
Will the HMA Plant negatively impact economic development of the Town?
Does the HMA Plant conform to the Policy Regime provisions regarding sensitive uses?
Compatibility with the Mars Facility
Is the operation at the Mars Facility a sensitive use?
Would the HMA Plant adversely affect the Mars Facility?
EVIDENCE
20Each of the Parties tendered professional evidence through qualified experts. 83 Exhibits, approximately 8,000 pages were entered into evidence. The Parties submitted written Closing Statements. MJJJ also provided Reply Closing Submissions.
21Without objection from any Party, the Tribunal qualified each of the professional witnesses to provide opinion evidence in their field of expertise noted below.
MJJJ:
Paul Lowes – Land Use Planning
Catherine Jay- - Urban Design
Oliden Herrera - Food Safety (legislation, licenses, and regulations)
Craig Ferguson- Economic Development
Nicholas Williams–Sylvestre – Acoustics, noise, vibration
Bridget Mills - Air Quality
Town:
Nick McDonald– Land Use Planning
Chris Pereira,- Urban Design
Ben Roberts – Economic Development
Mars:
Maria Gatzios – Land Use Planning
Elliot Sigal. – Toxicology
Brian Sulley - Air Quality
Ontari/BoltCol:
- Glen Broll - Land Use Planning
CONFORMITY WITH THE OP
Does re-designation of the eastern two-thirds of the Subject Site to General Industrial maintain the general intent and purpose of the OP?
22The Prestige Industrial land use designation permits a range of uses including manufacturing, fabricating, processing, assembling. Mr. Lowes submitted uncontested testimony that many of the permitted uses in the Prestige Industrial designation overlap with those permitted in the General Industrial designation, two main differences between the uses in the two designations are that the Prestige Industrial designation requires uses to be in enclosed buildings with limited outdoor storage and the General Industrial designation permits unenclosed uses with unlimited outdoor storage.
23Mr. Lowes opined that the proposed split land use designation conforms to the general intent and purpose of the OP. In support of this opinion he referred to s. 7.9.3 of the OP which provides:
The South Simpson Industrial Secondary Plan provides for prestige industrial and general industrial uses. Within the Prestige Industrial Areas, which generally abut major roads, limited open storage is permitted, except on lands adjacent to Coleraine Drive and Mayfield Road, where open storage shall not be permitted. Interior lands within the Secondary Plan boundaries are planned for general industrial uses with provisions for open storage.
24The OP does not include a definition of the word adjacent; the witnesses did not have a common definition of the word.
25Mr. McDonald testified that the Subject Site is adjacent to Coleraine Drive and as such does not conform to OP 7.9.3. He drew a distinction between the terms “adjacent” and “abut” but did not explain the difference in relation to OP s. 7.9.3, this testimony was not helpful to the Tribunal. Ms. Gatzios testified that there is no difference between in the words adjacent and abut.
26Mr. Broll testified that adjacency means the whole legal parcel of land under single ownership regardless of how far the property extends from the major road. In cross-examination he testified that if the easterly portion of the Subject Site were severed it would no longer be adjacent to Coleraine Drive and it could be used for outdoor storage.
27Mr. Lowes opined that adjacency relates specifically to land. It was his professional opinion that easterly two-thirds of the Subject Site is not adjacent to Coleraine Drive, Mayfield Road or George Bolton Parkway and its use for outdoor storage conforms to the OP.
28The Tribunal noted that OP s. 7.9.3 does not refer to ownership and that Mr. McDonald and Ms. Gatzios do not agree. The Tribunal prefers the opinion of Mr. Lowes that adjacency applies to the use of the land.
29Mr. Lowes opined that the proposed split land use designation for the Subject Site is appropriate. He stated that it is consistent with the land south of the Subject Site and on the west side of Coleraine Drive. Mr. Lowes was referring to an out-dated land use designation map. The Tribunal was provided a current land use designation map. Counsel for MJJJ submitted that the corrected Schedule C-5 is consistent with Mr. Lowes’ opinion that the Subject Site is an anomaly and that the proposed split land use designation conforms to the OP.
30Mr. Lowes provided uncontested testimony that the Town recently enacted site-specific zoning by-laws for property designated Prestige Industrial to facilitate open storage and other unenclosed uses, including contractors’ yards. He testified that land on Coleraine Drive Corridor and Simpson Road are currently being used for outdoor storage and that the Subject Site is in an area with diverse land uses.
31Mr. Lowes testified that in his opinion the easterly two-thirds of the Subject Site is not adjacent to or abutting Coleraine Drive. The Draft ZBA stipulates that open storage must be setback 161 m from Coleraine Drive. He stated that lands designated Prestige Industrial often abut land which is designated General Industrial which supports his opinion that the two designations are compatible.
32Mr. McDonald said policy 7.9.5.5.2 is intended to direct visual design. He stated that the Prestige Industrial designation is to attract more employment to the Town. He acknowledged that the proposed split classification is “very similar” to other properties in the SSISP area.
33The Tribunal was informed that the OP does not stipulate that lands which are designated for Prestige Industrial uses cannot be located next to land which is designated for General Industrial use.
34Ms. Gatzios stated that an area designated for Prestige Industrial uses is characterized as clean industry, outdoor storage is not permitted. The site design and built form would ideally screen parking, loading and other functions from view.
35The planners for Ontari/BoltCol, the Town and Mars agreed that the planned function of Prestige Industrial lands requires clean industry uses which are enclosed, on landscaped lots in a park-like setting, that are encouraged to occupy prominent locations along major roads, and that have no outside storage.
36The Tribunal took note of the uncontested evidence that the Town recently approved site-specific zoning applications which permit outside storage in the vicinity of the Subject Site.
37It is significant that permitted uses in the General Industrial and Prestige Industrial designations overlap. It is also significant that the OP policies make reference to interior land within the SSIP being used for General Industrial purposes. The Tribunal determined that the designation of the eastern two-thirds of the Subject Site for General Industrial use conforms with the Town OP. 7.7.9.3 of the OP which provides:
The South Simpson Industrial Secondary Plan provides for prestige industrial and general industrial uses…Interior lands within the Secondary Plan boundaries are planned for general industrial uses with provisions for open storage.
38The Tribunal also noted that the OPA would not change the land use designation of the westerly one third of the Subject Site which abuts Coleraine Drive, and the evidence that split land use designations on a single parcel of land is not novel in the SSISP area, the Tribunal determined that re-designating the eastern two-thirds of the Subject site for General Industrial land use, conforms with the OP.
Is the HMA Plant permitted in the General Industrial land use designation?
39MJJJ asserted that the General Industrial land use designation permits the HMA Plant and related outdoor facilities.
40Mr. Broll, Mr. McDonald and Ms. Gatzios testified that the Town’s express identification of asphalt plants as a permitted use in the Extractive Industrial designation, and the Town-wide prohibition of asphalt plants in the ZBL, indicates that the HMA Plant is only permitted on land which is designated Extractive Industrial, (through site-specific zoning).
41It was Ms. Gatzios’ opinion that the height restrictions in the ZBL provide further evidence of the Town’s intent regarding permitted locations for an asphalt plant. The maximum height of 25 m in the MX zone, corresponding to the Extractive Industrial designation, would allow for uses such as the HMA Plant to be developed. Such a use could not be developed in the MS zone, which corresponds to the General Industrial designation, under its height restrictions of 12.2 m. The Tribunal reviewed the written evidence and the testimony of the land use planners in the context of the OP the Region OP, the PPS, and the Growth Plan. It and does not find merit in the notion that the maximum height of structures is determinative of appropriate land use designation: this theory is without policy basis in the policy regime.
42In cross-examination Mr. McDonald was asked if in his opinion an asphalt plant would be permitted in the General Industrial Designation if it were not specifically permitted in the Extractive Designation, he responded that “perhaps” it would.
43Mr. Lowes’ opined that certain manufacturing uses specifically asphalt plants, are expressly listed in the Extractive Industrial designation because that is the only way of allowing specific uses in the designation while prohibiting all other manufacturing uses. He opined that the HMA plant is permitted in the General Industrial designation because it is a “manufacturing” use. which is a permitted use in the General Industrial. designation. Mr. Lowes’ testified that in his opinion the Town-wide prohibition of asphalt plants in the Zoning By-law is intended to ensure that any proposal for an asphalt plant would require a rezoning application, to ensure that the HMA Plant would be assessed on its merits.
44Mr. Lowes testified that the OP policies regarding land designated for Industrial show that the Town intended to accommodate a broad range of manufacturing, including asphalt plants, to be in the General Industrial designation.
45Mr. McDonald and Mr. Broll testified that the fact that asphalt plants are specifically permitted in the Extractive Industrial designation (subject to re-zoning) which reflects an intention to preclude the use of land in any other land use designation.
46In cross-examination Mr. Broll was directed to the OP policies regarding the Local Commercial designation which permits “convenience variety stores, dry cleaners and beauty/barber shop”. Mr. Broll acknowledged that the permissive references to uses in specific land use designations does not preclude the mentioned uses from being permitted in other designations. Mr. Broll did not clearly explain why this was not consistent with his opinion regarding the permission granted to asphalt plants in the Extraction Industrial land use designation.
47The Tribunal determined that the permissive reference to CBPs in the General Industrial Designation does not reflect whether asphalt plants are permitted.
48It was common ground that an asphalt plant is a manufacturing use. The Tribunal accepts the opinion of Mr. Lowes that the express reference to asphalt plants in the Extractive Industrial Designation is not a directive that asphalt plants are prohibited in any other land use designation.
49A determination of whether the HMA facility is permitted in the General Industrial designation is a planning issue based on facts and policy to be assessed based on the evidence before the Tribunal, including the planning opinions provided by expert witnesses. Based on the aforenoted, theTribunal determined that the HMA plant is a permitted use in the General Industrial land use designation, subject to rezoning.
50The Tribunal is satisfied that the OPA and ZBA maintain the general intent and purpose of the OP polices regarding Prestige Industrial designation and the General Industrial designation.
Compatibility Between Industrial Facilities and Sensitive Land Uses?
51The planners agreed that the residences and daycare operations are sensitive land uses as defined in the PPS and Growth Plan. There was common ground that the HMA Plant is a manufacturing use.
52It was submitted that the OPA and ZBA do not conform to OP because the HMA Plant on the Subject Site would not meet the 300-m minimum separation distance to the nearest residential sensitive receptor as required by the D-6 Guideline, Compatibility Between Industrial Facilities and Sensitive Land Uses Guideline (“D-6 - 4 - Guideline”). The 300-m minimum separation distance is incorporated by reference into the OP.
53The Town asserted that the HMA plant is a Class III facility and must maintain a minimum separation distance from sensitive uses of 300-m which must be measured from the edge of the Subject Site to property line of a sensitive receptor.
54Ms. Mills testified that separation distances are measured from different points and must be determined in context. She was firm in her opinion that it is appropriate to measure the separation distance from the actual facility not the property line.
55During cross-examination Ms. Mills was directed to Exhibit 37 and asked to calculate the minimum separation distance required from the HMA plant to the closest residential receptor. Ms. Mills was firm in her testimony that the minimum separation distance is measured from the sensitive use which she asserted was the home or rear lawn, not the property line. She stated that the area behind the rear yard is used for agricultural purposes which is not a sensitive use. This method of calculation was consistent with her Reply Witness Statement.
56In cross examination Mr. Sulley acknowledged that he has taken the same approach as Ms. Mills to measuring the separation distance from the facility to the sensitive receptor, not the property line.
57Based on the testimony of Ms. Mills and Mr. Sulley, the Tribunal determined that it is appropriate that the distances be measured from the operational activity that has the potential to result in an offsite adverse effect to the receptor, not the respective property lines. Consequently, the HMA Plant satisfies the 300-m minimum separation distance to the nearest residential sensitive receptor, The Tribunal determined that the HMA Plant conforms to the OP, PPS, and Growth Plan regarding minimum separation distances from Class II and Class III Industrial uses.
Is the Mars Facility a Sensitive land use?
58The definition of “sensitive land uses” in both the PPS and Growth Plan is as follows: Buildings, amenity areas, or outdoor spaces where routine or normal activities occurring at reasonably expected times would experience one or more adverse effects from contaminant discharges generated by nearby major facilities. Sensitive land uses may be a part of the natural or built environment. Examples may include, but are not limited to residences, day care centres, and educational and health facilities
59Mars warehouses and distributes raw and packaged food for humans and pets, including raw materials supporting the manufacturing of chocolate, gum, rice, and pet food products at the Mars Facility.
60The Land Use planning experts agreed that deeming an industrial use to be a sensitive land use is unusual.
61The Parties opposing the HMA Plant submitted that the Mars Facility is a Sensitive land use. They asserted that the the HMA Plant does not conform to s. 5.5.5.4 of the OP which requires new industrial uses to be buffered from existing sensitive land uses.
62Mr. McDonald stated that permission to construct the HMA Plant is a significant “ask”. In these circumstances he opined, the operation at the Mars Facility can be both a sensitive land use and an industrial land use. He also suggested that Mars, is a significant industrial operation in the Town, and its complaints should be given high regard.
63Mr. McDonald testified that an industrial use can be deemed a sensitive land use, if the industrial use expresses that there is a possible risk of adverse effect. During cross-examination Mr. McDonald acknowledged that something more than a concern must be raised.
64Mars submitted the decision of the Ontario Court of Justice regarding the case R. v. Ingram Asphalt Inc., 2019 CarswellOnt 21843 (“Ingram”) for consideration by the Tribunal. Ingram is a case involving a hot mix asphalt facility which operated pursuant to Environmental Compliance Approval (“ECA”) issued by the Ministry of the Environment and Climate Change (“Ministry”). Nearby businesses and a residential user had complained about the operation. The ECA was amended to address concerns about air emissions. In Ingram, the Court determined that the operator had failed to comply with the conditions of the ECA. The Ingram case involved the determination of compliance with the ECA, it did not address matters relative to determinative factors of a sensitive land use. The Ingram decision was not helpful to the Tribunal.
65Mr. Sulley testified that he was informed that the operations at the Mars Facility is a sensitive use.
66The Tribunal was provided with the decision in Battiston v. Smiths Construction Company 2017, CanLII 77336 (“Battiston”) which is a decision of The Small Claims Court. Battiston is a case regarding a civil action for damages for nuisance resulting from a hot mix asphalt plant. In Battiston the plaintiffs had made repeated complaints regarding the defendants’ hot mix operation. The Battiston case is civil suit regarding a nuisance claim, distinguishable from the matter before the Tribunal
67Ms. Gatzios testified the HMA Plant is a distinctly different land use than the Mars Facility. She testified that the disparity of the uses results in the operations at the Mars Facility being a Sensitive Land Use.
68Mr. Sulley testified that Mars is a sensitive land use. He testified that as a sensitive land use Mars is sensitive to odours. He asserted that asphalt odours could result in raw materials or products being rejected or destroyed.
69The Tribunal did not receive compelling evidence to substantiate the assertions that Mars is a sensitive use. Having considered the submissions of the expert witnesses and the cases provided, the Tribunal determined that the operations at the Mars Facility is not a Sensitive Land Use.
Will the HMA Plant have an Adverse Effect on the Mars Facility?
70The PPS, the Growth Plan and the OP preclude the introduction of a new use which may have an adverse effect on existing uses. Mars submitted that odour emissions from the HMA Plant may have an adverse effect on the Mars Facility.
71Mr. Sulley and Ms. Mills agreed that 1 OU/m³ reflects an odour concentration that is detectable by 50% of average population and when 50% cannot. (“Benchmark”).
72BCX Environmental Consulting “(BCX”) completed an air quality Study of the HMA Plant operations (“BCX Study”). The purpose of the BCX Study was to assess the potential for air quality impacts, including odour.
73The BCX Study was subject to Peer review by the Parties. Wood Environment & Infrastructure Solutions (“Wood”) conducted a technical peer review of the BCX study. Wood and the Region submitted comments and questions about the BCX Study. BCX responded to requests for further information. BCX also updated its modelling assessment in response to some of the comments.
74Mr. Sulley testified that if the HMA Plant were built and operated in accordance with the updated modelling assessment conducted by BCX and with appropriate controls, the predicted odour levels would exceed the Benchmark at air intakes on the Mars Facility (“Odour Exceedances”).
75Mr. Sulley confirmed that his conclusions were based on the HMA Plant operating at a production rate of 400 tons per hour, 24 hours per day, seven (7) days per week, ten (10) months per year (“Maximum Operating Scenario”).
76In cross-examination Mr. Sulley acknowledged that the HMA Plant will not operate at Maximum Operating Scenario. In its closing submissions at paragraph 42(f) Mars submitted:
While the HMA facility will not operate at the maximum hourly rate for an entire year, it can certainly operate at the maximum rate for hours, days and/or weeks, dependent on demand.
77Ms. Mills provided extensive testimony regarding the potential production rate of the HMA Plant. She was absolute in her testimony that notwithstanding the potential, the HMA Plant could not operate at the Maximum Operating Scenario. She stated that Mr. Sulley’s conclusion is faulty because it is based on the assumption that the HMA Plant would operate at a production rate of 400 tonnes per hour, 24 hours per day, seven days per week, for ten months of the year, which equates to 3,000,000 tonnes per year It was her opinion that the maximum operating scenario is not the appropriate basis for measuring the predicted odour levels related to the operation of the HMA Plant. She testified that Odour Exceedances would not occur while the HMA Plan operates at typical productions rate.
78The Tribunal noted Mr. Sulley’s testimony that the hourly rate of production is critical to determining the level of odour emission. It is significant that he acknowledged that the HMA Plant would not operate at Maximum Operating Scenario and that this was confirmed in Mars’ Closing Submissions.
79Ms. Mills has worked on over 100 plants. Mr. Sulley has provided air quality assessments at six sites in Ontario. Ms. Mills demonstrated exceptional knowledge of the operation and air quality issues related to asphalt plants. As such the Tribunal prefers the evidence of Ms. Mills that it is not appropriate to use the Maximum Operating Scenario as a basis to analyze potential Odour Exceedances.
80Ms. Gatzios testified that the HMA Plant could have two types of adverse effects on the Mars Facility:
a. loss of enjoyment of normal use of property if food or packaging becomes adulterated.
b. interference with the normal conduct of business arising from asphalt odour or perceived concern because of the view of the HMA Plant.
Adverse Effect if food or packaging becomes adulterated
81The Tribunal heard evidence from Mr. Sigal that he directed a study of the probability for chemicals to move from air onto food and food packaging, and potential contamination and adulteration. The results of the study indicated that chemicals could transfer from the air resulting in possible contamination and adulteration of food or food packaging.
82Mr. Sigal testified that chemicals can adsorb onto the foods tested, being rice, pet food and chocolate, and onto the chocolate food packaging. Furthermore, chemicals migrated through the wrappers of chocolate bars and adsorbed onto the chocolate and other food products. The study also indicated that chemical levels in the food increase over time.
83The Tribunal noted that Mr. Sigal’s testimony that the analysis was done at a higher concentration than what was expected to be emitted from the HMA Plant Mr. Sigal’s study was based on information provided by Mr. Sulley regarding Odour Exceedances.
84The Tribunals thoroughly considered the testimony of Mr. Sigal and Mr. Sulley and determined that it cannot conclude that odour emissions from the HMA Plant will result in adulteration of food or food packaging at the Mars Facility.
Interference with the normal conduct of business due to odour or perceived concern because of the view of the HMA Plant.
85Ms. Mills informed the Tribunal that the HMA Plant would not include a crusher, it would receive pre-crushed RAP She stated that the HMA Plant is designed to include features which recapture air from the top of the silos and on the “way-up”. A fan at the drum and another closer to the top. There would be an additional capture of air filters when the tanks are filled which pushes air back into the facility.
86Mars asserted that the smell of asphalt might have adverse effect which could interfere with its normal business at the Mars Facility. Mr. Sulley stated that people may become apprehensive if they see plumes being emitted from silos.
87Ms. Gatzios testified that a Canadian Food Inspection Agency investigator or a certificate auditor could require additional testing because of the proximity of the Mars Facility to the HMA Plant. Such testing may in her opinion have an adverse effect on Mars.
88Ms. Gatzios testified that she was advised by the Mars Canadian Regional Quality and Food Safety Manager that If there is adulteration or the product smells abnormally, the product must be tested, facility would be shut down while product is removed.
89The Tribunal also heard from Mr. Herrera who was qualified to provide expert opinion evidence regarding food safety as it relates to certification, licenses, and regulation. He stated that the obligation to ensure the safety of the food stored at the Mars Facility lies with Mars. Mr. Herrera acknowledged that if food products at the Mars Facility became adulterated, they would have to be discarded.
90Although It was submitted that some people may find the smell of asphalt to be offensive, the Tribunal did not receive evidence to support that assertion. Industrial and manufacturing operations are in the vicinity of the HMA Plant. The Tribunal accepted Ms. Mills’ evidence that ambient odours and plumes from silos are common in industrial and manufacturing neighbourhoods.
91Regarding adverse effects resulting from visibility of the HMA Plant, the Tribunal was provided extensive evidence regarding the proposed height of the silos and fences around the HMA Plant.
92The Tribunal was informed that MJJJ has proposed landscaping and buffering which would hide all the HMA Plant facility except the silos, elevators, and conveyors. Mr. Lowes testified that the HMA Plant and storage is proposed to be internal to the Subject Site and not visually prominent from Coleraine Drive.
93Mr. Broll stated that the HMA Plant is a noxious industrial use which in his opinion has the potential to create a nuisance and the need for avoidance.
94Mr. Lowes testified that that potential adverse visual effect would be avoided due to the physical distance, landscaping, and physical structures such as buildings and fences. He opined that the Draft ZBA includes detailed restrictions regarding setbacks, prohibited uses, setbacks and restrictions which will avoid adverse effect causing loss of enjoyment of normal use of property. He added that other matters which could result in adverse effect will be addressed through the site plan approval process. It was his professional opinion that the HMA Plant will not result in loss of enjoyment of normal use of property.
95Mr. Lowes opined that the HMA Plant and office building have been planned and designed to address any potential adverse effect. He noted that concerns regarding noise, dust and traffic have been resolved. The Tribunal is satisfied that there would not be adverse effect resulting from the view of the HMA Plant. The Tribunal determined that the view of the HMA Plant will not result in adverse effect on the Mars Facility.
96The Tribunal considered the Supreme Court of Canada decision in R. v. Castonguay Blasting Ltd. 2011., ONCA 292, (“Castonguay”) . The Court considered the interpretation of the term adverse effect and determined that an adverse effect could be considered, provided the effect is more than trivial or minimal. Based on the aforenoted conclusions the Tribunal determined that MJJJ has satisfied its burden of proof that the HMA Plant would not result in adverse effects on the Mars Facility.
Conformity with the OP policies regarding Planned Function
97Mr. McDonald testified that that the Subject Site intended to function as a part of the gateway into the Bolton employment area. In his opinion, the HMA Plant on the Subject Site is not in keeping with the planned function.
98Mr. Roberts admitted that the Town has made a deliberate decision to attract higher order uses and the associated types of jobs to this gateway location. He asserted that the development of the HMA on the Subject Site is contrary to the deliberate employment structure established by the Town. Mr. Roberts testified that the Town is evolving its industrial planning for the Coleraine Drive corridor and has made a deliberate decision to attract higher order uses and the associated types of jobs to this gateway location. He stated that the OP policies reflect an attempt to move away from the earlier encouragement of contractor’s yards and other unenclosed operations.
99Mr. Broll, Ms. Gatzios and Mr. McDonald testified that the HMA Plant does not fit within the industrial pattern and planned framework for the area because it would be an unenclosed, heavy industrial use, with significant outdoor storage, located on lands with visual exposure to two major roads.which is to be used for clean industry in a park-like setting.
100Mr. Lowes acknowledged that OP s. 5.5.3.2.1 refers to “clean industry”. He asserted that the HMA Plant will operate cleanly and as such, it conforms with s. 5.5.3.2.1. He testified that the OP policies are intended to create a prestige visage on major roads. It was his opinion that the proposed site design of the HMA Plant and Office Building incorporates significant design features which result in conformity to the OP polices regarding the planned function for the Subject Site.
Conformity with the OP policies regarding Urban Design
101Mr. Pereira testified that the Urban Design Policies in the OP (“Urban Design Policies”) encourage a high standard of site design on the Subject Site to create a neighbourhood identity including a corridor with edge buildings. His perception was that this visibility would be “unattractive” and “unappealing”. Mr. Pereira testified that the asphalt plant and outdoor storage would be highly visible and that a fence around the perimeter of the Subject Site is not appropriate from an urban design perspective. It was his opinion that the HMA Plant would not conform to the Urban Design Policies.
102Ms. Jay testified that the current view of the Subject Site is “messy” this testimony was uncontested. She opined that the HMA Plant and Office Building would be an improvement to the neighbourhood.
103Ms. Jay and Mr. Lowes both testified that the HMA Plant would be barely visible from Coleraine Drive or from the buildings on the West side of Coleraine Drive. Mr. McDonald testified that the silos “may” and “might” be visible.
104Ms. Jay stated that mere visibility of portions of the HMA Plant does not in itself represent non-conformity with the Urban Design Policies. She stated that due to the design features and the physical separation one would have to look for the HMA Plant to see it from George Bolton Parkway. She asserted that the speed at which vehicles travel on George Bolton Parkway diminishes the opportunity to view the HMA Plant.
105She testified that the Office Building and HMA Plant respond to the Urban Design Polices by incorporating landscaping and fences. Ms. Jay stated that some Urban Design details such as the location of parking will be addressed through the site plan approval process. She opined that the location of the Office Building on the westerly third of the Subject Site adds to the ” building corridor” and conforms to the OP. Ms. Jay testified that the location of the HMA Plant and open storage on the Subject Site, together with the proposed noise attenuation and landscaping, is appropriate and meets the intent and purpose of the Urban Design Policies.
106It was her opinion that the site design and urban design elements, including the building and parking location, landscape design, access and screening and dual frontage design are fully developed and based on design best practice and good urban design principles are not premature.
107In cross-examination Ms. Jay testified that she supported the first submission design for the HMA Plant even though she thought improvements could be made to some of the features, including the fence. She stated that the first submission represented the basis of a good plan which would be refined through the site plan process. Her support of the first submission design did not undermine her credibility regarding conformity of the ZBA or OPA. The Tribunal accepts her explanation that it is common practise for proponents to submit a strong development package with the expectation that it will evolve through the development process.
108Paragraph 1.5 of his witness statement Mr. Pereira indicated that he had appeared before the Tribunal on numerous occasions and has been qualified as an expert witness. In cross-examination Mr. Pereira when asked to provide details regarding his experience as a witness before the Tribunal, he indicated that he had been qualified in four matters, two were contested and the remaining two settled. Mr. Pereira indicated that he had been involved in other matters but was not qualified to provide expert testimony.
109The Tribunal was informed that Ms. Jay had not been to the Subject Site and that Mr. Pereira prepared his witness statement two (2) years after he was there. In cross-examination Mr. Pereira acknowledged that the built form had “probably” changed since 2018. Having considered the submissions regarding the assistance of technology and support from their colleagues the Tribunal was satisfied that both Mr. Pereira and Ms. Jay had taken necessary steps and made the enquiries required to inform themselves about the matter before the Tribunal.
110The Tribunal prefers the professional opinion of Ms. Jay regarding the conformity of the HMA Plant to the Urban Design Policies.
111The Tribunal is satisfied that the OPA and ZBA, meet the intent of the Urban Design Policies and contributes to the overall community design.
112It was submitted that the HMA Plant represents under-utilization of existing infrastructure which does not assist the Town in achieving the established density targets and therefore does not conform with the Policy Regime. The Tribunal accepts Mr. Lowes’ opinion that density targets are not to be applied on a site-specific basis and that it is appropriate to consider the buildings and the HMA Plant when calculating lot coverage. The Tribunal determined that the proposed development of the office building and HMA Plant do not represent under-utilization of land and infrastructure.
113Len Gardiner is a Supervisor of Road Operations for the Region. Mr. Gardiner testified that he is responsible for road maintenance and that it would be beneficial for the Region if the HMA Plant were constructed on the Subject Site.
114MJJJ submitted that there are no Provincial or Official Plan policies that require the proponent of an asphalt plant to explore alternative locations.
115Regarding lot coverage, McDonald stated that there is no policy or regulation regarding lot coverage on the Subject Site in the OP or in the ZBL.
Will the HMA Plant adversely Affect the Towns’ ability to attract/retain high quality uses?
116The Parties opposed to the HMA Plant submitted that it does not conform to the Policy Regime because it would negatively impact the existing prestige industrial businesses to the extent that they might move from the area. They asserted that the HMA Plant would detract from the Town’s ability to attract new high-quality businesses.
117Mr. McDonald and Mr. Broll each testified that the HMA Plant will negatively impact the Town’s ability to attract and maintain high quality industrial uses. Neither of them provided compelling evidence to support their assertions.
118Ms. Gatzios stated that Mars and other businesses, have indicated that they will consider whether to stay in the area proximate to the HMA Plant. She submitted that Mars is normally a very private operation, and the fact that Mars chose to participate in a public hearing is indicative of the gravity of its concerns.
119She testified that the HMA Plant is a noxious use which will degrade the desirability of the proximate industrial businesses. Consequently, it will negatively impact the Town’s ability to retain and attract high quality Prestige Industrial businesses.
120Mr. Lowes opined that the HMA Plant would not impair the Town from attracting and maintaining high quality employment and industrial uses to the Coleraine Drive corridor. He testified that the HMA Plant is compatible with the existing mix of industrial uses including, trucking firms, contractor yards, large warehouses, some with outdoor storage, in proximity to the Subject Site.
121Mr. Ferguson agreed with Mr. Lowes that the HMA Plant would not harm the long-term viability of the existing prestige industrial business in the vicinity of the Subject Site because there is a great variety of business operations in the Coleraine Drive. He also stated that many of the existing businesses manufacture products used in the construction sector which in his opinion is compatible with the HMA Plant.
122Mr. Roberts testified that he has had conversations with people who expressed concerns that the HMA Plant would harm their business. Having regard of the critical comments he received, Mr. Roberts provided his professional opinion that the HMA Plant has the potential to negatively impact the Town’s ability to attract and retain high quality businesses along the Coleraine Drive corridor.
123Mr. Ferguson testified that at least one development application was submitted for a new industrial building along the Coleraine corridor since it became public knowledge that the HMA Plant was proposed for the Subject Site. Mr. Ferguson acknowledged that he did not know if the HMA Plant had dissuaded potential developers from locating near the Subject Site.
124Mr. Ferguson was unwavering in his opinion that the ongoing economic activity around the Subject Site since the public became aware of the HMA Plant is evidence that the HMA Plant proposal, will not detract from the Town’s ability to attract maintain Prestige Industrial uses in proximity to the HMA Plant.
125Mr. Ferguson testified that in addition to the new land development projects and leases, his opinion was informed by his analysis of the types of businesses located in the vicinity of 24 hot mix asphalt plants in the Greater Toronto Area.
126The Tribunal prefers the evidence of Mr. Ferguson over that of Mr. McDonald, Mr. Broll, Ms. Gatzios and Mr. Roberts. Mr. Ferguson’s evidence was based on actual observation which was verifiable.
127Merely advising the Tribunal that business operators said that they are concerned about the HMA Plant and might move their operations is not compelling evidence that the HMA Plant will negatively impact the viability of existing operations or the Town’s ability to attract new high quality industrial businesses.
128The Tribunal accepts Mr. Ferguson’s testimony regarding new leases and development applications for land in the vicinity of the HMA Plant. This is compelling evidence that the HMA Plant conforms with the policy regime policies which direct that new development cannot impair the Town’s ability to attract and maintain high quality employment and industrial uses and tenants.
129After the commencement of the hearing, the Parties informed the Tribunal that they would not be calling any noise evidence. Mr. Sylvestre-Williams testified that the proposal will not cause any adverse noise impacts, his evidence was uncontested. He informed the Tribunal that a Noise Study is required for an ECA and in his opinion a ZBA should be conditional on MJJJ acquiring an ECA.
130The Tribunal granted Participant Status to nine interested persons. They raised various concerns about the HMA Plant including impact on air quality, noise, odour, increased traffic volume. The Participants were also opposed to the HMA Plant because of potential environmental impact including, tree removal or degradation. They were apprehensive about the impact that the HMA Plant could have on the economic success of the community and potential for future development of employment and residential lands in the vicinity of the Subject Site. The Participants also expressed concern about the visual impact of the HMA Plant and how it might change the character of the neighbourhood. Although the Participant Statements are not evidence, as they have not been sworn or tested through cross-examination, the stated concerns were addressed during the proceedings through the evidence of the Parties and expert witnesses.
DRAFT ZBA
131A draft ZBA was submitted and is appended as Attachment 1 to this decision (“Draft ZBA”). It includes a definition of Asphalt Plant which provides all of the components and the operation including storage of bulk materials used to produce asphalt paving materials. The Draft ZBA also includes maximum height restrictions regarding outdoor storage and the height of the HMA Plant. It specifically prohibits a portable crusher from the Subject Site and provides for minimum setbacks which addresses the recommendations and concerns expressed by the expert witnesses.
132The Draft ZBA stipulates that it will be subject to a holding provision which will not be removed until certain conditions have been satisfied. Mr. Lowes provided his professional opinion in support of the Draft Documents.
133None of the Parties commented on the preconditions to removal of the holding provision.
134The Town submitted that if the Tribunal is determined to allow the Appeals, the Tribunal will withhold its decision which was supported by Mars and Ontari/BoltCol and consented to by MJJJ.
135Based on the aforenoted, the Tribunal finds that the proposed Official Plan Amendment and Zoning By-law Amendment each have regard to matters of provincial interest as set out in s. 2 of the Act. The OPA and ZBA are consistent with the Provincial PPS and conform with purpose and intent of the Growth Plan and conform with the Region Official Plan and the Town OP. The OPA and ZBA each represent good planning in the public interest.
ORDER
136THE TRIBUNAL ORDERS that the appeal is allowed, and the Official Plan for the Town of Caledon is amended as set out in Attachment 2 to this Decision.
137THE TRIBUNAL FURTHER ORDERS that the Town By-law No. 2006-50, (as amended), is further amended, as set out in Attachment 1 to this Decision, on an interim basis, subject to the completion of the following:
a. an Environmental Compliance Approval has been issued for noise and air for the HMA Plant,
b. final planning instruments planning instruments are submitted to the Tribunal on consent, for final approval., and
c. MJJJ has submitted a Site Plan application as per s. 41 of the Planning Act in a form that is satisfactory to the Town.
138The Tribunal approved By-law No. 2016-100 subject to the site-specific appeal by Dig-Con. The approval of this amending by-law was without prejudice to a future application for the development of a hot mix asphalt plant.
139THE TRIBUNAL FURTHER ORDERS that the site specific appeal to By-law No. 2016-100 is allowed, on an interim basis, and the Tribunal directs the Town to amend the By-law and supply the amended version of the By-law to the Tribunal for final approval.
140THE TRIBUNAL may be spoken to if difficulties arise in implementing the Tribunal’s Decision and Order.
141This Member may be spoken to, through the case coordinator. .
“M. Arpino”
M. ARPINO
MEMBER
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontari Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontari Municipal Board is deemed to be a reference to the Tribunal.
