Greenwood and Gardiner v. Oro-Medonte (Township), 2021 CanLII 135942

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 16, 2021

CASE NO(S).: PL200165

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: John Greenwood and Ashley Gardiner

Subject: Request to amend the Official Plan - Refusal of request by Township of Oro-Medonte

Existing Designation: Agricultural

Proposed Designated: Agricultural with Special Provision

Purpose: To permit the development of a Home Industry, specifically a Contractors’ yard with storage of motor vehicles on a portion of the subject lands

Property Address/Description: 3750 Line 10 North

Municipality: Township of Oro-Medonte

Approval Authority File No.: 2019 - OPA - 01

OLT Case No.: PL200165

OLT File No.: PL200165

OLT Case Name: Greenwood and Gardiner v. Oro-Medonte (Township)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: John/Ashley Greenwood/Gardiner

Subject: Application amend Zoning By-law No. 2019-ZBA-14 - Refusal of Application by Township of Oro Medonte

Existing Zoning: Agricultural/Rural (A/RU) Zone

Proposed Zoning: Agricultural/Rural Exemption (A/RU*) Zone

Purpose: To permit the development of a Home Industry, specifically a Contractors’ yard with storage of motor vehicles on a portion of the subject lands

Property Address/Description: 3750 Line 10 North

Municipality: Township of Oro-Medonte

Municipality File No.: 2019-ZBA-14

OLT Case No.: PL200165

OLT File No.: PL200166

Heard: October 18, 2021 by video hearing (“VH”)

APPEARANCES:

Parties	Counsel/Agent*
John Greenwood and Ashley Gardiner	Sarah Hahn
Township of Oro-Medonte	Christopher Williams and Laura Dean

DECISION DELIVERED BY K.R. ANDREWS AND ORDER OF THE TRIBUNAL

Introduction

1This is a hearing of appeals by Ashley Gardiner and John Greenwood (the “Applicants”) of a decision by Council for the Township of Oro-Medonte (the “Township”) to refuse Applications to amend the Township’s Official Plan and Zoning By-law (the “Applications”) to permit a “Contractor’s Yard with storage of motor vehicles” on a portion of the property known municipally as 3750 Line 10 North (the “Subject Property”), which is located in a Prime Agricultural Area.

2It is an uncontested fact that the Applicants relocated at least some aspects of an excavation business, KJ Excavating, from an industrial site in the Town of Innisfil to the Subject Property sometime during or since 2018, and have been operating the business at the site despite it not being a permitted use. The undisputed evidence shows that the Applicants developed a portion of their agricultural property (approximately 1 hectare (2.47 acres) in size or slightly larger) to accommodate operations of their excavation business sometime in 2018. The development cluster includes a wide driveway with berms on each side, a large gravel parking/staging area for the company’s equipment, a building with large roll-up doors and bays large enough to house the company’s tri-axel trucks, and parking for approximately eight employees of the business.

3The Applications essentially seek to legalize the existing and ongoing use of the Subject Property to carry out the operations of KJ Excavating.

4The Applications request:

a. An amendment to the Township’s Official Plan to permit the development of a Home Industry, specifically a contractor’s Yard with storage of motor vehicles (to serve the operations of KJ Excavating) on a portion of the Subject Property; and

b. An amendment to the Township’s Zoning By-law to change the zoning designation on the Subject Property from Agricultural/Rural (A/RU) Zone to Agricultural/Rural Exemption 310 (A/RU *310) Zone to permit the development of a Home Industry, specifically a Contractor’s Yard with storage of motor vehicles (to serve the operations of KJ Excavating) on a portion of the Subject Property.

5For the reasons that follow, the Tribunal dismisses the appeals.

EVIDENCE AND ANALYSIS

Witnesses and Participant

6The Applicants relied on the testimony of their Land Use Planning witness, Darren Vella, as well as Derek Witlib, a land use planner employed by the Township who testified under summons. Both were qualified on consent as experts in land use planning.

7The Township principally relied on the testimony of their Land Use Planning witness, Michael Barton, who was also qualified on consent as an expert in land use planning. Additionally, the Township called on Sharon Lawlor as a witness, who resides on Line 10 North (the same road as where the Subject Property is located), to provide contextual evidence about the ongoing nature of the Applicants business being carried on at the Subject Property and its impact on area neighbours.

8The Tribunal was also in receipt of a statement and attachments provided by Allan Baker, who was granted Participant status and opposes the appeal. In accordance with section 17 of the Ontario Land Tribunal Act, the Tribunal considered his written statement only.

The Property and History of the Applications

9Mr. Vella testified that the Subject Property is located on the west side of Line 10 North, approximately 1.5 kilometers north of Horseshoe Valley Road. The lands are generally flat in nature. Several agricultural fields comprise the majority of the Subject Property, which are rented to a local farmer for hay production. A portion of the property is tree covered, including a large wooded area at the rear of the property, as well as mature vegetation along the perimeter of the property and treelines between the agricultural fields. A watercourse also traverses the property.

10Mr. Vella testified that a single detached dwelling is located at the north-eastern area of the Subject Property, along with a cluster of structures which are used for the owner’s horses and/or other personal uses. A newly constructed horse barn is located within the cluster, including a 200 by 250 foot paddock. A common access driveway serves this area of the property. The dwelling is serviced by a private well and septic system.

11It is noteworthy that, while the Applicants submitted that their keeping of horses constitutes a part of the property’s agricultural activity, the Tribunal received no evidence to support the notion that this activity is anything more than a hobby. For the purpose of this decision, therefore, the Tribunal finds that the Appellant’s keeping of horses does not contribute to, nor constitute a part of, the property’s agricultural uses, as defined in the PPS.

12The uncontested evidence of the parties shows that the surrounding land uses are:

• North: Agricultural/Rural lands including tree covered lands, agriculture fields and single detached dwellings.
• South: Agricultural/Rural lands including tree covered lands, agriculture fields and single detached dwellings. Approximately 1.5 kilometers south is the community of Jarratt.
• East: Agricultural/Rural lands including tree covered lands, agriculture fields and single detached dwellings.
• West: Agricultural/Rural lands including tree covered lands, agriculture fields and single detached dwellings.

13It is an uncontested fact that the Subject Property is identified as “prime agricultural land” according to the OMAFRA Agricultural System agricultural land base map and is in a “prime agricultural area” pursuant to the PPS.

14Furthermore, the Subject Property is designated “agricultural” in the County of Simcoe Official Plan, Schedule 5.1 Land Use Designations, is designated ‘”agricultural” in the Township’s Official Plan, Schedule A, and is zoned “Agricultural / Rural” (A / RU) Zone in the Township’s Zoning By-law, Schedule A21.

15Mr. Vella confirmed that the aforementioned development cluster used by KJ Excavating on the subject property was constructed sometime in 2018. The building located within the cluster is approximately 50 feet by 100 feet in size, and photographs show that it features five roll-up doors and four bays which appear large enough to house the Applicants’ tri-axel trucks. The site is located away from the property’s house and barns cluster, to the south, and includes a large gravel staging/parking area used by the business. Photographs show that the site is accessed by a dedicated wide driveway with berms on each side to screen the operations. A refuse dumpster and fuel tank are located outside the building. Earlier versions of the subject Applications indicate that the area that was developed for the excavation business is approximately 1 hectare (2.47 acres) in size or slightly larger.

16Mr. Vella also confirmed that the above described storage building, driveway, berms and staging/parking area were all originally constructed without first obtaining the requisite permits from the municipality. However, since then, the construction permits were approved retroactively by the municipality upon the Applicants’ characterization of the construction as being for agricultural purposes. Despite this assertion, the Tribunal received no compelling evidence to show that any of the development has ever actually been used for agricultural purposes, nor is it likely to be used for such purposes in the future. As noted previously, the horse-keeping activities of the Applicants are found to be non-agricultural in nature, and the uncontroverted evidence of the parties shows that the only agricultural activities taking place on the property are those conducted by a tenant farmer who, according to the evidence, has no use of the storage building, driveway, berms or staging/parking area located within the subject development cluster.

17Mr. Vella acknowledged that the current use of the Subject Property for the excavation business is in contravention of the Township’s Zoning By-law. The approach being taken by the Applicants to remedy the situation is to seek the current OPA and ZBA, to permit an on-farm diversified use in the form of a contractor’s yard with storage of motor vehicles. As will be discussed in greater detail below, this case largely turns on whether or not the existing/proposed use of the property, as currently being carried out by KJ Excavating, can fit within the definition of an “on-farm diversified use”.

18The Tribunal notes that the Applicants commenced their Applications with an earlier proposal in 2019 which purported to designate 1.4 hectares (3.5 acres) of the subject agricultural lands for the purported on-farm diversified use. The original Applications included all of the aforementioned developed cluster area containing the storage building, driveway, berms and staging/parking area, plus some excess on each side.

19The below images show the original proposed area, with the shaded area of the first image showing the area containing the storage building, driveway, berms and staging/parking area (the remainder of the property is delineated by the hatched line):

20A Township Staff Report recommended that the OPA and ZBA be denied as proposed above due to the fact that the proposed area exceeds the 1.0 hectare (2.47 acres) maximum size for an on-farm diversified use (according to the report). The site area was subsequently revised to 1.0 hectare (2.47 acres) by trimming some of the side areas from the calculations. The Township considered and denied the revised proposal.

21The Applicants then further revised their proposal by excluding the areas containing the storage building, driveway, berms and a large portion of the staging/parking area, which purported to further reduce the area associated with the proposed on-farm diversified use to 0.12 hectares (0.30 acres), as illustrated below:

The new proposal purports to dedicate the areas excluded from the originally refused proposal for agricultural uses (although, again, no evidence was provided to demonstrate a need or likely use for said areas for such purposes).

22Upon these revisions, Township Staff recommended approval of both the OPA and ZBA. Despite the Staff recommendation, the Township again denied the Applications.

23For the sake of clarity, the Tribunal notes that the uncontroverted evidence of the parties shows that the smaller “L” shape area shown above in red basically surrounds the storage building on two sides, and it occupies only one corner of the existing developed cluster occupied by the storage building, driveway, berms and staging/parking area that was built for the excavation business. The Tribunal received no account from the Applicants to explain how their excavation business would no longer occupy the entire area originally proposed, or how operations will or have materially changed to only require use of the much smaller area illustrated above. Furthermore, the Township’s expressed concern about the obvious difficulty in monitoring or enforcing the proposed limited use of the developed cluster was not addressed by the Applicants in any meaningful way.

24The Tribunal further notes that it received no account to explain how the excavation business would access Line 10 North without travelling across practically all of the originally proposed area on a daily basis. The Tribunal therefore finds it obvious that all of the originally proposed area, including the driveway, berms and all of the gravel staging/parking area will, more likely than not, be used by KJ Excavating on a daily basis, even if the storage building is not used by the business. Furthermore, given that said building was purposely built for use by the excavation business, and the Tribunal received no convincing evidence to suggest that it will be used for any other purpose, the Tribunal further finds that the building will, more likely than not, also be used by the business.

25Accordingly, the Tribunal finds it very unconvincing that the areas excluded from the original application will actually be for used for any purposes other than that of the excavation business. Similarly, the Tribunal is unconvinced that those areas will be used for any genuine agricultural purposes.

KJ Excavating

26Before moving its operations, sometime during or since 2018, KJ Excavating stored and staged its equipment and vehicles at an industrial property in the Town of Innisfil. According to the testimony of Mr. Vella, all of the business’ equipment is now stored and staged at the Subject Property while the company’s head office, where dispatching takes place, is located elsewhere.

27The original Planning Justification Report overseen by Mr. Vella, dated June 2019, states that KJ Excavating has 5 tri-axle trucks, 1 float truck, 2 excavators, 1 loader and 2 Skid Steer loaders, all of which are now stored and staged at the Subject Property. The testimony of Ms. Lawlor and her photographs is consistent with this list, showing KJ Excavating’s equipment travelling past her residence on Line 10 North.

28The evidence shows, and the Tribunal finds, that the proposed number of employee parking spaces at the subject site indicates that there will be at least 8 employee-vehicles travelling to and from the Subject Property on a daily basis, in addition to the transportation of the above listed equipment. The Tribunal accordingly finds that KJ Excavating’s operations, as located at the Subject Property, is characteristic of a full-scale industrial operation which generates regular employee and business traffic on the surrounding roadways within a prime agricultural area.

Consistency with the PPS

29The PPS outlines the policies for managing and directing land use to achieve effective and efficient development and land use patterns. The PPS clearly considers and prioritizes the preservation of agricultural lands and enhancement of agricultural uses as one of its key goals. There are limited exceptions; however, such exceptions are clearly intended to complement rather than encumber agricultural uses of the area, and any loss of agricultural lands for non-agricultural purposes is to be minimized.

30Section 2.3 of the PPS relates to Agriculture, with section 2.3.3.1 stating the permitted uses in the prime agricultural areas:

In prime agricultural areas, permitted uses and activities are: agricultural uses, agriculture-related uses and on-farm diversified uses. Proposed agriculture-related uses and on-farm diversified uses shall be compatible with, and shall not hinder, surrounding agricultural operations. Criteria for these uses may be based on OMAFRA Guidelines developed by the Province or municipal approaches, as set out in municipal planning documents, which achieve the same objectives.

31The Appellant’s expert in land use planning, Mr. Vella, testified that the allowance of on-farm diversified uses, as stated in s. 2.3.3.1, provides opportunities in addition to existing agricultural operations. He also cited section 2.3.3.2 of the PPS in apparent reference to the small scale or low intensity agricultural activity which currently takes place on the Subject lands:

In prime agricultural areas, all types, sizes and intensities of agricultural uses and normal farm practices shall be promoted and protected in accordance with provincial standards.

32The Tribunal notes that the OMAFRA Guidelines on Permitted Uses in Ontario’s Prime Agricultural Areas (“OMAFRA Guidelines”) are designed to help municipalities, decision-makers, farmers and others interpret policies in the PPS on uses that are permitted in prime agricultural areas. The Tribunal confirms that it has considered these OMAFRA Guidelines in assessing the consistency of the proposed OPA and ZBA with the PPS. As it relates to permitted uses in the prime agricultural areas according to the PPS, section 1.4 of the OMAFRA Guidelines sets out the principles of permitted uses as follows:

1.4 Principles of Permitted Uses

The intent of the PPS and these OMAFRA Guidelines is to allow uses in prime agricultural areas that ensure settlement areas remain the focus of growth and development and:

• agriculture remains the principal use in prime agricultural areas;
• prime agricultural areas are protected for future generations;
• land taken out of agricultural production, if any, is minimal;
• regard is given to the long-term (multi-generational) impact on prime agricultural areas;
• normal farm practices are able to continue unhindered;
• agricultural and rural character and heritage are maintained as much as possible;
• uses are compatible with agricultural uses;
• they make a positive contribution to the agricultural industry, either directly or indirectly; and
• servicing requirements (e.g., water and wastewater, road access, fire services, policing) fit with the agricultural context.

33The PPS defines an “on-farm diversified use” as:

…uses that are secondary to the principal agricultural use of the property, and are limited in area. On-farm diversified uses include, but are not limited to, home occupations, home industries, agritourism uses, and uses that produce value added agricultural products.

34Section 2.3.1 of the OMAFRA Guidelines sets out the PPS criteria for on farm diversified uses as follows:

2.3.1 PPS Criteria for On-Farm Diversified Uses

All of the following criteria must be met to qualify as on-farm diversified uses, in accordance with the PPS.

1. Located on a farm;
2. Secondary to the principal agricultural use of the property;
3. Limited in area;
4. Includes, but is not limited to, home occupations, home industries, agri-tourism uses and uses that produce value-added agricultural products; and
5. Shall be compatible with, and shall not hinder, surrounding agricultural operations.

35In reference to the above policy and OMAFRA Guidelines, the Applicants submitted that the PPS clearly contemplates and permits “on-farm diversified uses” as a home industry on prime agricultural lands. The Applicants correctly noted that a “Home Industry” is, by definition, an industrial use.

36As it relates to the requirement of an “on-farm diversified use” to be “limited in area”, Mr. Vella opined that KJ Excavating’s operations on the Subject Property qualify as an “on-farm diversified use” and “Home Industry” pursuant to the PPS, by being sufficiently “small-scale” so as to be permitted on Prime Agricultural lands. Mr. Vella testified that the Applicants’ revised proposal involves an area of only 0.3% of the entire parcel, whereas the OMAFRA Guidelines indicate that an on-farm diversified use may assume up to 2% of the land area.

37As it relates to the requirement of an “on-farm diversified use” to be secondary to the principal agricultural use of the property, Mr. Vella opined that the purported agricultural uses of the Subject Lands include agricultural crop farming, which occupies a substantial majority of the land area, and a “horse farm” which also represents an agricultural use in his opinion. Furthermore, he opined that the existing/proposed contractor’s yard is secondary to the crop farming and is not in contravention with sections 2.3.3.1 or 2.3.3.2.

38As stated previously, the Tribunal finds that the horse-keeping activities of the Applicants do not constitute a part of the agricultural operations on the property. The evidence shows that the only agricultural activities on the property are those conducted by the Applicants’ tenant, who grows hay on the property.

39Contrary to Mr. Vella’s opinion, Mr. Barton opined that that KJ Excavating’s existing/proposed use of the Subject Property does not qualify for the limited exceptions in the PPS that would permit a non-agricultural use in a prime agricultural area, as it does not satisfy the criteria for “on-farm diversified use”. While acknowledging that the area dedicated for this use is/proposed to be limited in area relative to the overall lot area, he opined that it is not secondary to the agricultural uses on the Subject Property.

40Mr. Barton opined the subject excavation business is properly characterized as a full-scale industrial use and, given the scale and intensity of its operations relative to the agricultural operations conducted by the Applicants’ tenant farmer, it cannot be considered secondary to the agricultural uses on the Subject Property so as to qualify as a diversified on-farm use or home industry according to the PPS. The Tribunal accepts Mr. Barton’s evidence and opinion insofar as the operations of KJ Excavating at the Subject Property are properly characterized as a full-scale industrial use.

41The Applicants did not contend, nor did the evidence show, that their excavation business is directly or indirectly connected to an agricultural operation, nor does it serve to support and build upon rural character or leverage rural amenities and assets. They submitted that this is not necessary to still qualify as a diversified on-farm use.

42The Tribunal notes that this position of the Applicants conflicts with the direction provided in the OMAFRA Guidelines, which expressly states that “[t]he intent of the PPS and these OMAFRA Guidelines is to allow uses in prime agricultural areas that ensure settlement areas remain the focus of growth and development and […] they make a positive contribution to the agricultural industry, either directly or indirectly [emphasis added]”.

43The Tribunal accordingly finds that a full-scale industrial operation, such as KJ Excavating, cannot be appropriately located in a prime agricultural area (as an on-farm diversified use) unless it makes a positive contribution to the area’s agricultural industry, either directly or indirectly. To adopt Mr. Barton’s words, the Tribunal finds that this means it must support and build upon rural character and leverage rural amenities and assets. In the context of an on-farm diversified use, as per the definition, it must also be secondary to the principal agricultural use of the property and be limited in area.

44Based on the evidence provided by the parties regarding the scope and intensity of the tenant’s agricultural operations, which was limited to hay production involving one or two cuts a year, the Tribunal finds that these activities are relatively small in scale despite involving a relatively large land base.

45On this point, the Tribunal notes the Applicants’ submissions insofar as a perennial hay crop is actively growing all year round and should not be assessed solely on the basis that it does not involve daily human-driven activities. The Tribunal generally agrees; however, compared to other types of farming, and in contrast with most crop cultivation in particular, there is no dispute that perennial hay production is a distinctly low-intensity crop associated with very little impact on surrounding lands and low activity in general.

46For example, in comparison to KJ Excavating’s operations, the Applicants’ did not suggest nor provide any evidence to show that the tenant’s hay crop involved similarly intensive activities, employee coming-and-going, economics, or impact in general on surrounding lands. To put it succinctly, the Tribunal finds that the primary activity and function of the Subject Property, viewed from any reasonable perspective, will be (and is currently) associated with the activities of KJ Excavating, not the growing of hay.

47Mr. Barton further testified and opined as it relates to the fourth and fifth criterion listed above within section 2.3.1 of the OMAFRA Guidelines. He stated that, due to the scale and intensity of the Applicants’ excavation business operations at the Subject Property, it cannot be considered a home industry, and the proposed/existing industrial uses will/are adversely impacting the agricultural and rural character of the area. The Tribunal agrees while noting that this case dose not necessary turn on this point given the Tribunal’s finding that the proposed/existing excavation business clearly constitutes the primary activity on the property, contrary to the second criterion of the OMAFRA Guidelines at section 2.3.1.

48It should be noted that the goals of the PPS are not only to preserve individually allotted agricultural lands within prime agricultural areas, it also aims to preserve the continuity of agricultural lands and uses within such areas. The reason being is that a patchwork of non-agricultural uses within prime agricultural areas, with potential to conflict with agricultural uses, will have a cumulative effect of restricting agricultural uses and normal farm practices on a broader scale. This is clearly contrary to the PPS.

49Mr. Barton also drew the Tribunal’s attention to section 2.3.3 of the OMAFRA Guidelines, where it lists examples of uses that would typically not qualify as on-farm diversified uses. While the Tribunal recognizes that context is always critical when conducting this type of assessment, the list notably includes “trucking yards” as typically not qualifying as an on-farm diversified use. While the proposed/existing “Contractor’s Yard with the storage of motor vehicles” is not the same thing as a trucking yard per se, the Tribunal finds that it is close in the sense that KJ Excavating uses the Subject Property to store tri-axel trucks and excavation equipment. Section 2.3.3 is therefore instructive and provides additional clarity of the PPS’s intent to discourage the type of uses contemplated by the present Applications on the Subject Property.

50The Tribunal notes that Mr. Barton also considered the policies set out in section 2.3.6 of the PPS which deals with criteria associated with non-agricultural uses in prime agricultural areas. However, as correctly pointed out by the Applicants, this section of the PPS is not relevant in the present case because the Applicants are not proposing that the requested OPA and ZBA should be granted on the basis of satisfying these particular criteria.

51As a final comment regarding the PPS, the Tribunal notes that the PPS clearly recognizes the preservation of agricultural lands as a priority of its policy. This principle is consistent throughout the PPS. In the present case, the Applicants unequivocally sacrificed at least 1.0 hectares (2.47 acres) of productive agricultural land to build a storage building, driveway, berms and staging/parking area for the purpose of operating their excavation business in a prime agricultural area. While it is true that the Township previously decided to retroactively approve permits to allow construction of the building and grading of the subject area, under the pretense that the development would serve agricultural purposes, this Tribunal will not similarly sanction this development as part of the present appeals. This development was clearly carried out in contravention of the PPS’s policies to preserve agricultural lands. Notwithstanding the fact that the Tribunal finds the proposal inconsistent with the PPS for the reasons stated above, the Tribunal also finds that any decision which has the effect of sanctioning the Applicants’ already-completed development, which sacrificed productive agricultural lands in a prime agricultural area, would be inconsistent with the PPS’s policies designed to preserve such lands and, accordingly, contravene section 3(5) of the Planning Act.

52For the reasons stated above the Tribunal finds that the Applications are clearly inconsistent with the PPS.

Planning Act

53For the same reasons described above, the Tribunal finds the Applications do not have sufficient regard for section 2 of the Planning Act, and subsection 2(b), “the protection of the agricultural resources of the Province”, in particular.

Growth Plan for the Greater Golden Horseshoe, 2020

54The policies within the Growth Plan provide direction on where growth should be distributed and how it should occur regarding development, population growth and employment. Section 4.2.6 of the Growth Plan provides policies directed towards Agricultural Systems.

55Mr. Vella opined, in support of the Applicants’ position, that the subject Applications conform to the Growth Plan, specifically (purportedly) with respect to sections 4.2.6.2 and 4.2.6.3:

2. Prime agricultural areas, including specialty crop areas, will be designated in accordance with mapping identified by the Province and these areas will be protected for long-term use for agriculture.

3. Where agricultural uses and non-agricultural uses interface outside of settlement areas, land use compatibility will be achieved by avoiding or where avoidance is not possible, minimizing and mitigating adverse impacts on the Agricultural System. Where mitigation is required, measures should be incorporated as part of the non-agricultural uses, as appropriate, within the area being developed. Where appropriate, this should be based on an agricultural impact assessment.

56The Township staff report concerning this matter concurred with Mr. Vella’s opinion, albeit presuming that the Applicants’ activities qualify as on-farm diversified uses.

57Contrary to these conclusions, Mr. Barton opined that the Applications fail to conform with the Growth Plan and policy 4.2.6.2 in particular. As stated earlier in this decision, he takes the position, which the Tribunal has already accepted, that the Applicants’ excavation business does not constitute an on-farm diversified use. As it relates to the Growth Plan, Mr. Barton further testified that the Applications do not conform to the Growth Plan since the proposed Contractor’s Yard supports an existing industrial use rather than supporting an existing agricultural or agriculture-related use. He opined that the purpose of the Applications would effectively result in a standalone industrial use operating in a prime agricultural area.

58The Tribunal accepts the evidence and opinion of Mr. Barton and accordingly finds that the Applications do not conform with the Growth Plan.

County of Simcoe Official Plan

59There is no dispute that the Subject Lands are designated “Agricultural” in the County OP Land use Schedule 5.123 and are identified as “prime agricultural land” on the OMAFRA Agricultural System agricultural land base map. In accordance with section 3.6.5, the parties concur that prime agricultural lands, as identified by the agricultural designation in Schedule 5.1, should be protected for long-term agricultural use. Section 3.6.10 directs development on Agricultural lands “wherever possible” to be sited on a property so as to minimize adverse impacts on agriculture, natural heritage, and cultural heritage.

60The Applicants purport to rely on section 3.6.6 of the County OP, which identifies “on-farm diversified uses” as permitted within areas designated as Agricultural. As it relates to this section of the policy, Mr. Vella again proposed that a contractor’s yard, as an on-farm diversified use, would not negatively impact the surrounding agricultural, natural heritage, or cultural features. He characterized the developed area for the “contractor’s yard” as “pre-existing” which, he claimed, would not consequently remove any agricultural lands from production or impact current agricultural operations or facilities on the subject lands. Following this reasoning, Mr. Vella concluded that the Applications conform to the intent and purpose of the County OP. The same conclusion was reached in the Township planning staff report regarding this matter.

61The Tribunal rejects these opinions for two primary reasons. First, to repeat earlier findings, the Tribunal does not find that KJ Excavating’s business operations qualify as an “on-farm diversified use”. Secondly, the Tribunal does not accept that the area developed for the “Contractor’s Yard with storage of motor vehicles” does not (or, more accurately, did not) remove any lands from agricultural production.

62The evidence clearly shows that the lands beneath the new storage building, driveway, berms and gravel staging/parking area, where KJ Excavating now operates, were being farmed before the Applicants developed the lands. To characterize the completed development of these lands as being “pre-existing” is to turn a blind eye to what the Applicants did without prior approval and contrary to the relevant planning policies.

63The Tribunal finds that the Applicants buried a relatively significant area of productive agricultural lands within a prime agricultural area for uses that are not permitted. The Tribunal does not find that the Township’s earlier approval of the Applicants’ building/grading permits, on a retroactive basis, has any bearing on the present case before the Tribunal. As stated previously, this Tribunal will not similarly sanction the Applicants’ prior unapproved development actions.

64In support of the Township’s position, Mr. Barton testified that the County OP separates agricultural uses from industrial uses and specifies permitted uses in each of these designations. Among other reasons, this is done to achieve compatibility among uses and protection of agricultural uses, lands and character. Accordingly, Mr. Barton opined that the subject Applications are contrary to the County OP by proposing to allow a clearly defined industrial use in an area planned and designated for agricultural uses.

65The Tribunal accepts Mr. Barton’s opinion and, together with the Tribunal’s findings described above, finds that the Applications fail to conform with the County OP.

Township of Oro-Medonte Official Plan

66There was no dispute that the Subject Property is designated “Agricultural” on Schedule A of the Township Official Plan.

67Section C1.227 of the Township OP outlines the permitted uses on Agricultural lands. Agriculture is to be the primary or principal land use, while permission may be granted for specified other uses, including a home industry. The Applicants submitted that KJ Excavating’s business operations at the subject site constitute a home industry pursuant to the Township’s OP.

68Section C1.3.328 provides policy direction regarding home industries. The Township OP defines home industries as small-scale industrial uses that are accessory and do not detract from primary agricultural or residential uses on the property.

69The Applicants acknowledge that “[T]he repair, storage or sale of motor vehicles is not considered to be a home industry” under this policy. The Applicants explained that it is because of this policy that an OPA is being sought to allow for the storage of motor vehicles; specifically, six tri-axel trucks that will park at the proposed contractor’s yard.

70Section C1.3.3 provides a list of criteria to be satisfied in order for a home industry to be permitted, subject to re-zoning. The relevant criteria include:

a) the building housing the home industry is located within the existing farm-building cluster, if located on a farm property;

e) the type and level of traffic generated by the use is compatible with the character of the area and the function of adjacent roads;

g) all machinery and equipment, with the exception of motor vehicles, required for the home industry is located within enclosed buildings; and

i) the home industry has a limited number of employees.

71As it relates to the definition of home industry, the Tribunal accepts the evidence and opinion of Mr. Barton, insofar as KJ Excavating’s business operations at the subject site do not constitute a home industry because it is not a small-scale industrial operation, it is not “accessory” to the primary agricultural uses on the property, and, instead, it detracts from primary agricultural uses on the property.

72As it relates to the above criteria, the Tribunal further accepts the evidence and opinion of Mr. Barton, as follows:

• Contrary to criterion a), the storage building and parking/staging area are not located within the existing farm-building cluster.
• Contrary to criterion e), there will be at least 8 employee vehicles travelling to and from the Subject Property on a daily basis (based on the number of parking spaces proposed for employee parking), in addition to the daily transportation of the business’ heavy vehicles and trailers. This is not compatible with the surrounding community which is characterized by agricultural uses and single detached dwellings used for residential purposes;
• Contrary to criterion g), the Applicants’ proposal does not require all machinery and equipment to be located within enclosed buildings. In fact, in an effort to shrink the relative size of the area proposed for the OPA and ZBA, the Applicant specifically excluded the only building capable of housing the business’ machinery and equipment within the subject development cluster; and
• Contrary to criterion i), 8 full-time employees is more than “a limited number of employees”, especially given that this is substantially more than the number of people required to manage the present agricultural operations.

73The Tribunal rejects Mr. Vella’s opinion that the proposed contractor’s yard will not impact or remove agricultural lands from production because, as stated above, the development has already removed at least 1 hectare (2.47 acres) of agricultural lands from production.

74For the reasons stated above, the Tribunal also rejects the conclusions of the Township Planning Staff Reports insofar as it found that the proposed OPA and ZBA “meet the goals and objectives of the Agricultural Designation and also meets the intentions proposed for Home industry”.

75In summary, for the reasons stated above, the Tribunal finds that the Applications fail to conform with the Township OP.

Township of Oro-Medonte Zoning By-law

76Section 6.0 of the Township’s Zoning By-Law provides that “Contractors Yard means an area of land where equipment and materials used by a building and/or excavating contractor are stored and/or where a contractor performs shop or assembly work.”

77Table A3 of the Township’s Zoning By-Law indicates that a Contractor’s Yard is considered an Industrial use that is permitted in the Township’s Rural Industrial (IR) and Economic Development (ED) zones.

78Mr. Barton opined that, while a Contractor’s Yard is a permitted use in certain zones within the Township, it is clear that the Township’s Zoning By-law does not contemplate a “Contractor’s Yard with the storage of motor vehicles” as a permitted use in the Agricultura/Rural (A/RU) area. The Tribunal finds same.

Summary and Conclusions

79In summary, the Tribunal finds in favour of the Township and accepts the evidence and opinion of its expert in land use planning, Mr. Barton, insofar as the Tribunal finds that proposed/existing “Contractor’s Yard with the storage of motor vehicles”, operating as KJ Excavating on the Subject Property since 2018 or shortly thereafter, does not qualify as an “on-farm diversified use” or “home industry” pursuant to the PPS and applicable policy plans. The proposed/existing use is therefore not appropriate on the Subject Property being in a prime agricultural area. The Tribunal finds that the incompatible impact of this use has already been documented by local residents.

80The Tribunal further finds that these Applications are an attempt to exploit a limited exception in the applicable agricultural protection policies to legitimize the actions of the Applicants insofar as they have relocated an existing industrial operation, previously and appropriately located in an industrial area, to a prime agricultural area.

81In conclusion, the Tribunal finds that the Applications are not consistent with the PPS, as informed by the intent of the OMAFRA Guidelines, and similarly do not have appropriate regard for matters of provincial interest. In addition, the Applications do not conform to the Growth Plan, the County’s Official Plan nor the Township’s Official Plan with respect to the permitted uses in prime agricultural areas. In short, the Applications represent bad planning and are not in the public interest. Lastly, the Tribunal notes that, in coming to its decision, it has had due regard for the Township’s decision to twice refuse these and similar Applications by the Applicants.

ORDER

82THE TRIBUNAL ORDERS that:

1. the appeal pursuant to s. 22(7) of the Planning Act is dismissed and the requested amendment to the Official Plan for the Township of Oro-Medonte is refused.

2. the appeal pursuant to s. 34(11) of the Planning Act is dismissed and the requested amendment to By-law No. 97-95 is refused.

“K.R. Andrews”

K.R. ANDREWS

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 Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.