De Bock v. Norwich (Township), 2021 CanLII 80827

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 25, 2021 CASE NO(S).: PL200397

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Gary De Bock Appellant: Kim and Karen Malcolm Subject: By-law No. 07-2003-Z Municipality: Township of Norwich OLT Case No.: PL200397 OLT File No.: PL200397 OLT Case Name: De Bock v. Norwich (Township)

Heard: May 17, 2021 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Kim & Karen Malcolm (“Appellant”)	Self-represented
Gary De Bock (“Appellant”)	Self-represented
Mary & Mosie Miller (“Applicants”)	Peter Pickfield
Township of Norwich	Peter Pickfield

DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL

1The Local Planning Appeal Tribunal (“Tribunal”) convened this Video Hearing on May 17, 2021 to consider the appeal by Kim and Karen Malcolm, and Gary De Bock (“Appellants”) of the decision of the Township of Norwich (“Township”) authorization of an amendment to Zoning By-law No. 07-2003-Z, sought by Mary and Mosie Miller (“Applicants”) under s. 34(19) of the Planning Act, R.S.O 1990, c. P. 13.

2The Subject Lands are described as South A½ Lot 7, Concession 12 (South Norwich), in the Township. The Subject Lands are located at the northeast corner of Summerville Line and Mall Road, lying between Highway 59 and Middletown Line and are municipally known as 771960 Summerville Line, in the Township.

3The Subject Lands are designated ‘General Agricultural Zone (A2)’ in the Zoning By-law. The eastern portion is located within the Long Point Region Conservation Authority’s (“LPRCA”) Regulated Flood/Fill Limit.

4The Subject Lands are currently in agricultural production (cash crops) and contains two municipal drains, being the Rosehart Drain and the Singer Drain, as well as an open ditch that traverses the southern portion of the property.

5The purpose of the application is to rezone the Subject Lands from 'General Agricultural Zone (A2)' to 'Special General Agricultural Zone (A2-sp)' to recognize an existing mobile dwelling, which currently serves as a residence accessory to the farm, as well as an existing agricultural storage building, and to allow for the construction of a new hog barn with manure storage with a reduced Minimum Distance Separation (“MDS”) setback to the nearest neighbouring dwelling of 371.9 metres (“m”) (1,220.1 feet (“ft”)) from the required 430 m (1,410.8 ft).

6The Applicants propose to locate a double-wide mobile home on the Subject Lands to use as their accessory dwelling unit. They have requested relief for the use of the mobile home as an accessory residence. The Applicants have also requested relief from the required exterior side yard setback of 15 m (49.2 ft) for the purposes of this mobile home and a storage trailer, specifically, a reduced setback of 7.6 m (24.9 ft) for the mobile home and 10 m (32.8 ft) for the storage trailer.

7The Applicants’ proposed barn and the associated manure storage area will be located in the northwest corner of the subject property, setback about 82.3 m (270 ft) from Base Line and about 50.3 m (165 ft) from a watercourse to the south. The barn and manure storage area is approximately 19.8 m (65 ft) wide and approximately 97.5 m (320 ft) long for a total approximate area of 1,930.5 square metres (“sq m”) (20,800 square feet (“sq. ft.”). Manure generated from the operation will be stored in a new covered manure storage area measuring approximately 19.8 m (65 ft) wide and approximately 9 m (30 ft) long for a total area of approximately 178.2 sq m (1,950 sq. ft.).

8The surrounding land uses are generally other agricultural farm properties with accessory dwellings and farm buildings. There are three residences on the abutting lands to the west, north, and east of the Subject Lands, respectively. All three of these residences are an accessory to agricultural operations on those respective properties.

Planning Evidence

9The Tribunal heard from two planners, both qualified to give expert opinion planning evidence at this Hearing. Heather St. Clair and David Roe both tendered evidence in support of the proposed relief sought.

10The Tribunal heard from the two Appellants who each provided non-expert, witness-based evidence.

11The issue for the Tribunal is whether the proposed development will be consistent with the Provincial Policy Statement 2020 (“PPS”). The Tribunal is required to carefully consider the applied amendment against the MDS II setbacks in the guidelines, which are there to prevent conflicts from arising due to the proposed use with the existing uses in an agricultural area.

12Peter Pickfield reviewed the chronology of the matter, which includes the timing around the initial submission of the Application and informed the Tribunal that Mr. Roe would speak to questions regarding the livestock operations with Ms. St. Clair speaking to the MDS calculations and general planning matters. The Application was circulated to public agencies on January 21, 2020 and Notice of Complete Application was circulated on February 3, 2020.

13Ms. St. Clair provided testimony that she was tasked with the application review, agency circulation including Ontario Ministry of Agriculture, Food and Rural Affairs (“OMAFRA”), Oxford County and Township Public Works departments; reviewing and confirming the MDS and obtaining comments from the LPRCA pertaining to their regulated area of the property.

14Ms. St. Clair confirmed a Public Meeting was held on February 3, 2020, after which public concerns were received from the Appellants.

Provincial Policy Statement 2020

15Ms. St. Clair opined that the key policies under the PPS 2020 that are relevant and applicable to the subject Application are the natural heritage and agriculture, s. 2.1 and s. 2.3 of the PPS 2020, respectively.

16Section 2.1.1 of the PPS 2020 directs that “Natural Features and areas shall be protected for the long term” and provides prescriptive policies for the protection of the ecological function and biodiversity of natural features and natural heritage systems.

17She informed the Tribunal that there are a number of natural features, located on the east side of the Subject Lands consisting of Significant Valley Lands and Erosion Hazard Lands, as identified in the County Official Plan, as well as Significantly Ecologically Important Woodlands and Significant Valley Lands, as identified in the draft Oxford Natural Heritage Systems Study and lands identified as Provincial Significant Wetlands.

18Section 2.1 of the PPS 2014 provides that: development and site alteration “shall not be permitted in significant wetlands” (in Ecoregions 5E, 6E and 7E, applicable in this case), and “shall not be permitted in… significant woodlands or significant valleylands unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions”.

19Further development or site alteration “shall not be permitted on adjacent lands” to these natural heritage features “unless the ecological function of the adjacent lands has been evaluated and it has been demonstrated that there will be no negative impacts on the natural features or on their ecological functions. Adjacent lands are defined in the PPS to mean “those lands contiguous to a specific natural heritage feature or area where it is likely that development or site alteration would have a negative impact on the feature or area.”

20She opined that in this case, no development or site alteration is proposed in, adjacent to, or in the immediate vicinity of the identified environmental features on the subject property. Specifically, the site sketch submitted by the Applicant, indicated that the proposed livestock barn will be setback 68.3 m (224 ft) to the south of the centerline of the ditch of the Rosehart Drain and approximately 320 m (1,050 ft) to the west of the regulation limit for the Singer Drain, which is also identified as a Significant Valleyland in the Oxford County Official Plan, as well as a Significantly Ecologically Important Woodland (draft), and a Significant Valley Land (draft) in the Oxford Natural Heritage Systems Study. Portions of this natural heritage feature also contain a Provincially Significant Wetland and Non-Provincially Significant Wetlands (draft), are located approximately 527.9 m (1,732 ft) to the southeast of the proposed livestock barn.

21The proposed livestock barn will be setback significantly from the identified natural heritage features, with setbacks that meet all zoning setback requirements for such development and located outside of the Regulation Limit for the LPRCA, as will the existing mobile home and storage shed, which are located on the west side of the Subject Lands. Given these setbacks, it was her opinion that the Application meets the policy direction in s. 2.1 of the PPS 2020, with respect to the protection of the existing natural heritage features and their functions on the Subject Lands. Based on this, her opinion was, consistency with s. 2.1 of the PPS 2020 would be achieved if the Application was approved.

22Section 2.3 of the PPS directs that prime agricultural areas shall be protected for long term agricultural use. Prime agricultural areas are defined in s. 6 of the PPS 2020 to mean “areas where prime agricultural lands predominate” and includes areas of prime agricultural lands and associated Canada Land Inventory Class 4 through 7 lands, and additional areas where there is a local concentration of farms which exhibit characteristics of ongoing agriculture.

23Under this definition, Ms. St. Clair explained, Prime agricultural areas may also be identified by the OMAFRA using guidelines developed by the Province and may also be identified through an alternative agricultural land evaluation system approved by the Province. “Prime agricultural land” is defined under s. 6.0 to mean “specialty crop areas and/or Canada Land Inventory Class 1, 2 and 3 lands, as amended from time to time, in this order of priority for protection.”

24She opined that the Subject Lands are comprised of Canada Land Inventory Class 2 soils and are, therefore, considered to be “prime agricultural land” as per the PPS, as are the surrounding lands, which are also predominantly prime agricultural land. The Subject Lands are therefore located within an area where prime agricultural lands predominate and are therefore located within a Prime Agricultural Area as defined by the PPS and subject to the policies of s. 2.3 of the PPS.

25Citing s. 2.3.3.1 of the PPS, she opined permitted uses and activities in prime agricultural areas are “agricultural uses, agricultural-related uses and on-farm diversified uses.” Section 2.3.3.2 states that, in prime agricultural areas, all types, sizes and intensities of agricultural uses shall be promoted in accordance with provincial standards. In her opinion, the rezoning is consistent with the direction of the PPS as the intended use of the Subject Lands will be for agricultural purposes, which is in keeping with the direction of the PPS to protect and promote agricultural land uses on prime agricultural lands. In her expert opinion, the proposed zoning by-law amendment facilitates the establishment of a new livestock barn, which supports the viability of an existing agricultural operation within a prime agricultural area, which is consistent with the policy direction provided in s. 2.3.

26Ms. St. Clair drew the Tribunal’s attention to the PPS, which provides in s. 2.3.3.3 that new land uses in prime agricultural areas, including the creation of new lots and new or expanding livestock facilities, shall comply with the MDS formulae.

27She testified that the relief sought proposes to permit a reduction to the required MDS II setback between the nearest neighbouring dwellings to the immediate west, which is located approximately 371.9 m (1,220.1 ft) from the proposed livestock barn, as well as the neighbouring dwelling to the immediate north, which is located approximately 414.1 m (1,358.6 ft) from the proposed livestock barn. The calculated MDS setback to these dwellings is 430 m. The proposed reductions would permit the construction of a hog barn, which will consist of 1,000 swine feeders, as well as six horses (medium framed) and 100 chickens (layer hens), for a total of 197.2 nutrient units. The proposed liquid manure storage will be inside, and underneath a slatted floor, which results in a very low storage odor potential.

28Ms. St. Clair informed the Tribunal that the MDS setbacks are a tool for dealing with nuisance issues related to odour and are not intended to address other nuisance issues such as noise, dust, light, smoke, vibration or flies. She went on to say that MDS Guidelines are intended to address odour generated from livestock facilities and anaerobic digesters and are not intended to address nuisance issues related to odour from the land application of manure or digestate.

29Implementation Guideline No. 2 of the MDS Guidelines states that MDS II setback distances shall be met prior to the approval of the building permit application for a first or altered livestock facility occupying an area greater than 10 sq m and defines a livestock facility to mean all livestock barns and manure storage structures on a lot, as well as all unoccupied livestock barns and unused manure storage structures on a lot.

30Implementation Guideline No. 43 of the MDS Guidelines states that MDS II setbacks should not be reduced except in limited site-specific circumstances that meet the intent of the MDS Guidelines.

31Ms. St. Clair stated that MDS II reductions are typically done through a minor variance but may be done through a rezoning.

32She referred to s. 8.2 of the MDS Guidelines, which provides guidance on reductions to MDS setbacks. Included in these are various circumstances where a Planning Act application or construction requiring a building permit may meet the intent of the MDS Guidelines, but not the precise setback required by MDS II. To assess which circumstances are appropriate, s. 8.2 directs that the test for minor variance as established under the Planning Act be considered. Specifically, s. 8.2 states: “It is appropriate to consider the tests for a minor variance as a mechanism to assess specific situations and potential reductions to MDS setbacks.”

33The four minor variance tests to be applied are summarized, in s. 8.2 of the MDS Guidelines as follows:

1. Does the reduction in the MDS setback keep with the intent of the Official Plan?
2. Does the reduction in the MDS setback keep with the intent of the Zoning bylaw?
3. Is the reduction in the MDS setback desirable and appropriate for the area?
4. Is the reduction in the MDS setback minor in nature?

Official Plan

34It was Ms. St. Clair’s opinion that MDS reductions allow for the locating of the proposed livestock barn on the subject property through a relatively minor reduction in the calculated MDS II setback. This supports the agricultural use on the subject property, which is the intended primary use for lands within the Agricultural Reserve designation and conform to the Oxford County Official Plan, including the Goal for the Agricultural Policies, as stated in the Agricultural Land Resource policies of s. 3.1, the policies of s. 3.1.5.1, respecting permitted uses in the Agricultural Reserve designation.

Zoning By-Law

35Ms. St. Clair explained that the Subject Lands are zoned as ‘General Agricultural Zone (A2)’, which is the only zone within the Township Zoning By-law that permits the establishment of a Regulated Farm, which is the intended use by the Applicants for the Subject Lands. The location of the proposed livestock facility complies with all other setback requirements of the Township Zoning By-law, including the required setbacks to the municipal drain and will provide appropriate separation from the regulated and unregulated natural heritage features present on the property.

36She further informed the Tribunal of the approval to utilize a mobile home as a single detached dwelling to be used as a residence accessory to a farm, which requires a zoning by-law amendment given that the definition of a single detached dwelling in the zoning by-law does not include mobile homes.

Desirable and appropriate for the area

37Ms. St. Clair explained that the MDS Guideline Document further directs:

Deciding if a minor reduction to an MDS setback is desirable and appropriate for an area, should involve consideration of several specific aspects, such as:

• Is the MDS setback reduction really necessary or should another suitable alternative location be considered;
• Is the reduced setback going to impact the type, size or intensity of agricultural uses in the surrounding area;
• Is the reduced setback going to impact flexibility for existing or future agricultural operations, including their ability to expand if desired?
• If this reduced setback is allowed, will it set a precedent for others in the local community?

38It was Ms. St. Clair’s opinion that, in this instance, the MDS setback reduction is necessary, and no other suitable alternative location is available given the presence of the existing sensitive land uses to the immediate north, west and east. Further, the proposed location was selected in an effort to maintain the maximum setback between all three of these existing sensitive land uses, while taking the presence of the existing municipal drain and natural heritage features on the east side of the property into consideration.

39She further opined, the establishment of a livestock barn, at this location, will have no impact on the ability of surrounding lands to establish or expand existing agricultural operations, which are not subject to MDS II setbacks to other agricultural buildings; are not applicable to nearby agricultural structures and as such, the proposed development is not anticipated to impact the flexibility of neighbouring farm operations to accommodate a change in agricultural operation or expansion in the future.

40It was her opinion that approval of this Application will not create an undesirable precedent as any application seeking reduced setbacks are reviewed based on site specific factors, including the type of animal production and agricultural operation, as well as the size of the barn and manure storage and other site-specific considerations including topography, practices of the farm operators and the presence of any natural heritage features.

41She also pointed out no concerns were raised by any resident who would be impacted by the reduction in the calculated MDS II setback. No property owners or residents with dwellings located within the calculated MDS II setback area raised concerns with respect to the Application. The owner of the closest neighbouring dwelling to the livestock barn indicated support for the Application.

MDS Variations

42Ms. St. Clair commented that the proposal represents a minor variation from the provisions of the MDS II setback calculation. Based on the MDS II calculation, as provided by the Township Building Department, the proposed livestock facility is required to be setback a minimum of 430 m (1,410.7 ft) from the nearest neighbouring dwelling. The Subject Lands are surrounded on all sides by agricultural uses, together with their accessory residential uses, with the closest sensitive land use being located to the immediate west of the Subject Lands, which is 371.9 m (1,229.9 ft) from the proposed livestock facility, which represents a 13.5% reduction to the required setback.

43Ms. St. Clair spoke to the MDS minimum setback and informed the Tribunal that Kim Malcolm’s property falls outside of the 430 m radius, which was confirmed in cross-examination.

44Mr. Roe provided the Tribunal with information that the mobile home was purchased by the Applicant from another Amish family, with a copy of the file sent to the Buildings Department to ensure specifications meet the Building Code. He further explained that staff worked on the location of the barn to ensure that sensitive areas and all drain concerns were considered when siting the barn.

45Mr. Roe further informed the Tribunal that he concurs with Ms. St. Clair’s MDS evaluation and that the rezoning balances the impact on the natural features, mitigates the negative impact on residential and provides for a residence and farming operation in the proposed livestock barn, which will establish a new livestock facility on the Subject Lands of which is the prime intent of the Agricultural Reserve.

46Questions of Ms. St. Clair and Mr. Roe, by the Appellants, included the mobility of the mobile home, complaints regarding contamination of ground water through oversaturation of nutrient application, means of odour complaints registration and the impact on the value of their properties.

47Mr. Roe clarified for the Appellants that the mobile home has its running gear removed, is secured to the ground, and functions in the same way as a single detached dwelling on the Subject Lands.

48Mr. Malcolm testified that the MDS variations sought are not minor, and that the hog and chicken operation will smell terribly. He cited that his home will be adversely affected by the odour from the operation as well as the spread of nutrients on surrounding fields. He was particularly concerned about the location of the barn and manure storage facility on the subject property and the impact of the facility on the neighbouring lots.

49He further raised concerns regarding his property values; contamination of the aquifer; an increase in the population of flies, rodents and mosquitoes and limited use of outdoor activities.

50Mr. Malcolm stated his concern for the oversaturation of nutrients due to the overproduction of nutrients with 1,000 hogs on site and directed the Tribunal to the PPS s. 2.2.2:

Development and site alteration shall be restricted in or near sensitive surface water features and sensitive ground water features such that these features and their related hydrologic functions will be protected, improved or restored. Mitigative measures and/or alternative development approaches may be required in order to protect, improve or restore sensitive surface water features, sensitive ground water features, and their hydrologic functions.

51Ms. St. Clair addressed the concerns of the Appellants by stating that the regulation of the nutrients falls under the Nutrient Management Act and that any complaints would be investigated by Ministry of Environment, Conservation and Parks (“MECP”) directly. She further stated that all water/drain features had been thoroughly examined through the planning process.

52Mr. Roe addressed the odour issue by informing the Appellants that the barn will be monitored to ensure ventilation is properly achieved to the standards set by both OMAFRA and the Township Buildings department. Reassuring the Appellants, Mr. Roe cited that there are stringent regulations on nutrient tanks that are inspected prior to utilization by both engineers and building officials.

ANALYSIS AND FINDINGS

53The Tribunal agrees with the opinion evidence of Ms. St. Clair, in all respects and finds that the proposed MDS variations do not dominate the natural environmental features because of the creation of sufficient buffers from the LPRCA lands and the municipal drains, nor is the use of the mobile home as a residence in the proposed location precedent setting.

54The Tribunal is satisfied based on the uncontradicted evidence (which withstood the Appellants’ cross-examination) before it that the variations to the MDS should be allowed and authorized for the reasons that follow.

55The proposed MDS variations have regard for the matters of provincial interest as set out in s. 2 of the Planning Act in particular 2(b) the protection of the agricultural resources of the Province and 2(h) the orderly development of safe and healthy communities.

56The proposal is consistent with the policies of the PPS, noting s. 2.3.3.2 states that 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.

57The proposal maintains the intent of the MDS II guidelines on the minimum distance separation between proposed new, expanding or remodelled livestock barns, manure storages and/or anaerobic digesters and existing or approved development. The MDS Formulae are based on five factors: the type of livestock housed; the potential number of livestock housed (based on barn capacity or lot size); the percentage increase in the size of the operation; the type of manure system, storage and the type of encroaching land use. The Tribunal is satisfied this Formulae has been applied and all factors have been adhered to through the planning process and are found to be appropriately applied in this given circumstance.

58The proposal conforms with the Oxford County Official Plan - Agricultural Land Resource policies of s. 3.1, the policies of s. 3.1.5.1, respecting the permitted uses in the Agricultural Reserve designation.

59The proposed MDS variations are suitable for the appropriate development of the land as they will result in more agricultural activity in the Township. The subject property is within a prime agricultural area where the proposed land use of a livestock and manure storage facility is a common and permitted agricultural use.

60The proposed barn and manure storage facility is located in the optimal location considering the topography and wind directions, hence, minimizing the impact. The proposed development is appropriate for the subject property.

61The Tribunal is satisfied that the zoning by-law amendment to recognize a mobile home as a single detached dwelling to be used as a residence accessory to a farm will not result in a precedent setting as it is a site-specific allowance and that the reduced setback of 7.6 m (24.9 ft) for the mobile home and 10 m (32.8 ft) for the storage trailer is minor.

62The Tribunal is satisfied that the setback reductions present modest reductions from setback requirements in the Township Zoning By-laws and the calculated MDS.

63The Tribunal is satisfied that the use and development of the subject property is appropriate.

ORDER

64THE BOARD ORDERS that the appeal against By-law No. 07-2003-Z of the Township of Norwich is dismissed.

“D. Chipman”

D. CHIPMAN 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.