Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 03, 2021
CASE NO(S).: PL200617
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: David Ysselstein
Subject: Application to amend Zoning By-law (No# 07-2003-Z) - Refusal of Application by Township of Norwich
Existing Zoning: Special Limited Agricultural Zone (A1-11)
Proposed Zoning: Amended Special Limited Agricultural Zone (A1-11)
Purpose: To permit the construction of one new veal barn on subject lands and to increase the number of veal permitted as part of the existing livestock operation
Property Address/Description: 465065 Curries Road
Municipality: Township of Norwich
Municipality File No.: ZN3-20-14
OLT Case No.: PL200617
OLT File No.: PL200617
OLT Case Name: Ysselstein v. Norwich (Township)
Heard: August 30, 2021 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| David Ysselstein ("Applicant") | R. Scriven |
| Township of Norwich ("Township") | A. Ciccone |
MEMORANDUM OF ORAL DECISION DELIVERED BY BLAIR S. TAYLOR ON AUGUST 30, 2021 AND ORDER OF THE TRIBUNAL
1The appeal before the Tribunal deals with a refusal by the Township to amend its Zoning By-law in accordance with an approval from the Ministry of Agriculture, Food and Rural Affairs ("OMAFRA") for an increase in nutrient units to 233.3 for the property known municipally as 465065 Curries Road ("Subject Lands").
DECISION
2For the reasons set out below, the Tribunal allowed the appeal and directed the Township to amend the site specific Zoning By-law for the Subject Lands to increase the number of nutrient units to 233.3.
BACKGROUND
3The Applicant is one of the owners of the Subject Lands along with his parents. The Subject Lands are about 28 acres in size, designated as Agricultural Reserve in the County of Oxford Official Plan, and currently zoned Special Limited Agricultural Zone (A1-11) with 170 nutrient units.
4The Zoning By-law Amendment ("ZBA") application sought to increase the number of nutrient units to 233.3 in order to facilitate the construction of a new veal barn.
PARTICIPANT REQUEST
5As a preliminary matter, it was brought to the attention of the Tribunal that David and Susan Start who own an adjacent farm, had filed a Participant Request Form with the Tribunal on or about April 16, 2021 before the Tribunal's Case Management Conference ("CMC") of May 3, 2021. Regrettably, for some unknown reason, that Participant Request was not dealt with at the CMC.
6When it came to the attention of this Member, the Case Coordinator was directed to circulate the Participant Request Form to counsel and copy Mr. and Mrs. Start and to advise counsel and Mr. and Mrs. Start that the request for participant status would be dealt with at the commencement of the hearing.
7The Tribunal raised the matter with the parties and with their consent, the Tribunal granted participant status to Mr. and Mrs. Start and marked their Participant Status Request Form and its attached letter expressing opposition to the appeal, as Exhibit 1.
MOTION ON SUMMONS
8The next procedural matter dealt with by the Tribunal was an oral motion by the Township to quash a summons that had been issued by the Tribunal compelling the attendance of Jim Palmer, a Councillor of the Township and the mover of the motion to refuse the ZBA application.
9Counsel for the Township submitted that it was not proper for the Tribunal to have issued a summons for Mr. Palmer as Township Council can only "speak" by way of resolution or by-law and not through one member of the council body.
10Counsel for the Applicant submitted that the reason for the summons was for "context" and that the refusal of the application was not on planning grounds and only with a fleeting reference to a reason to refuse.
11There is a long established principle of the Ontario Land Tribunal and its predecessors (the Ontario Municipal Board and the Local Planning Appeal Tribunal) that municipal councils "speak" by way of resolutions and by-laws.
12In this case as the counsel for the Applicant had also summoned the County planner who wrote the staff report and would testify as to the planning matters, and that the Township had retained an independent land use planner, the Tribunal found no good reason to depart from the established principle and practice, and quashed the summons.
CONTEXT
13There have been two prior ZBAs for the Subject Lands.
14It is important to note that the Township Zoning By-law allows one nutrient unit per acre of agricultural land.
15As the Subject Lands are about 28 acres in area, the Applicant in 2016, sought to build a chicken barn. He had applied to the OMAFRA and obtained approval of 100 nutrient units for the chicken barn.
16Heather St. Clair was the land use planner for the County of Oxford on that matter, and she had prepared the land use planning report that recommended approval to the Township that it amend its Zoning By-law to provide for 100 nutrient units, which the Township did.
17Subsequently in 2017, the Applicant had sought and obtained OMAFRA approval for an increase in the nutrient units to 170 to facilitate the construction of a veal barn. That ZBA application was recommended for approval by another member of the County planning staff and the Township passed that amendment.
18All of which lead the Tribunal to this application seeking to add a third barn to the Subject Lands and to increase the nutrient units to 233.3.
19The photographs in Exhibit 6 Tab 4 depict three existing structures on the Subject Lands: the Applicant's residence, the chicken barn, and the veal barn. Both barns are located toward the rear of the property and the proposed third barn would be located east of the existing veal barn and also at the rear of the property.
20A portion of the Subject Lands are impacted by the Upper Thames River Conservation Authority's regulation limit, due to some municipal drains, but no development is proposed there.
21The approved Nutrient Management Strategy includes 100 nutrient units for the chickens, and 133.3 units for the existing and proposed veal with all the manure generated by the farm removed and transferred off-site through an existing Broker Agreement.
22The Minimum Distance Separation Formula II (MDS II") calculations indicate that a separation distance of 218 metres will need to be maintained to the nearest sensitive land uses, which appear to be the three non-farm residences on Curries Road and this is not contested.
DECISION
23In arriving at this Decision, the Tribunal has considered the oral evidence provided at the hearing, the submissions of counsel, the decision of the Township Council, the information and materials that were before the Township Council and all the exhibits filed with the Tribunal including the Participant Statement found at Exhibit 1.
24In terms of the County's Official Plan, the Subject lands are undersized as being about 28 acres in area, but they are designated Agricultural Reserve and they are zoned Special Limited Agriculture (A1-11) with 170 nutrient units.
25The ZBA application before the Tribunal is to increase the number of nutrient units to 233.3, in order to allow the construction of a new veal barn east of the existing veal barn.
26Ms. Sinclair, the planner for the County, testified that she circulated the ZBA application to an expanded list of commenting agencies and departments including but not limited to: OMAFRA, the Ministry of Environment, Conservation and Parks (MECP"), the Upper Thames River Conservation Authority ("CA"), and the Township Building Department.
27There were no commenting agency objections: there was compliance with MDS II requirements, OMAFRA had approved the Nutrient Management Strategy for 233.3 units, MECP had received no complaints with regard to the Subject lands and the CA had no objections. A concern however was raised by the Township that there was manure storage on a transfer pad at the rear of the existing veal barn utilizing some concrete blocks. (The viva voce evidence of the Applicant was that they were piles of wet sawdust and two (2) cinder blocks located on the transfer pad, and as soon as he was aware of the concern, the cinder blocks were removed.)
28Ms. Sinclair's report had recommended to Township Council that the ZBA for 233.3 nutrient units be generally supported but the decision deferred to address the above referenced manure storage issue.
29Township Council however, refused the ZBA on the basis that: "The Applicant had promised no further buildings would be constructed."
30During the course of the hearing the Tribunal heard evidence from Ms. Sinclair who was summoned to the hearing, the Applicant, and Robert Stovel an independent land use planner retained on behalf of the Township.
31At no time during the course of the hearing was any evidence adduced in support of the Township Council's stated rationale to refuse the ZBA, notwithstanding the fact that the Applicant himself testified and was cross-examined by counsel for the Township.
32In fact, it was the Applicant's viva voce evidence that "calmed" many of the concerns of the Township's expert witness with regard to inter alia, the removal of the tile drainage on the Subject Lands, and the saw dust (not manure) on the transfer pad.
33Another concern of Mr. Stovel was with regard to the alleged failure of the Nutrient Management Plan to discuss a catchbasin on the Subject Lands. Through cross-examination, this concern was found to be in error as the Township's own Exhibit 6 at Tab 14 (page 165) makes specific reference to the catchbasin.
34Land use planning in Ontario is a top-down policy led system.
35For agricultural matters, the Province enacted the Nutrient Management Act in or about 2002, which OMAFRA administers.
36OMAFRA has approved 233.3 nutrient units for the Subject Lands.
37However, the Township has a Zoning By-law with regulations that predate the Nutrient Management Act, and the Zoning By-law allows one nutrient unit per acre, and hence this application.
38The matters of Provincial Interest in s. 2 of the Planning Act ("PA") include the protection of agricultural resources, and the resolution of planning conflicts.
39The Provincial Policy Statement ("PPS") in s. 1.7(c) provides that long term economic prosperity should be supported by optimizing the long-term availability and use of land and (i) by sustaining and enhancing the viability of the agricultural system through protecting agricultural resources and minimizing land use conflicts.
40The County Official Plan deals specifically with Existing Undersized Agricultural Parcels between 1 hectare ("ha") and 16 ha or about 2.5 to 40 acres.
41S. 3.1.4.3 provides that one of the Official Plan objectives for Under-Sized Agricultural Parcels is to ensure that the primary function of existing undersized parcels is for agricultural purposes.
42In the same section the Official Plan carries on providing the policy intent:
- It is recognized that there are numerous small agricultural land holdings in the agricultural designations. It is the intent of this Plan that such parcels will primarily be utilized for agricultural pursuits and as such do not constitute sites for non-agriculturally related development.
43This is exactly what has occurred with regard to the Subject Lands: in 2016 this undersized parcel had its nutrient management plan approved and the chicken barn built; in 2017 it had its second nutrient management plan approved and the veal barn built, all with the required approvals from OMAFRA, and with MDS II compliance.
44Now the Tribunal has this application and appeal which comes with the same approach: OMAFRA approval, no concerns by MECP, no objections from the CA and MDS II compliance.
45During the course of the hearing concerns were raised by the Township with regard to alleged overdevelopment of the Subject Lands, resulting in land use conflicts now and in the future. (The Tribunal clearly has no jurisdiction with regard to whatever applications might be made in the future: it only has jurisdiction with what it before it now).
46Turning to the appeal at hand, the Tribunal would firstly observe that "concerns", no matter how sincerely held, are simply that: concerns.
47A proceeding before the Tribunal is a litigious matter that requires evidence: i.e. proof or corroboration that substantiates a belief or concern.
48In this proceeding the Tribunal has in the Tribunal exhibits and through the oral evidence, the positions of OMAFRA, the MECP, the CA and the land use planning report and recommendation from the County of Oxford. In contrast, the Tribunal was provided with no substantive report or study or any concrete evidence to corroborate the concerns of the Township that this approval would constitute overdevelopment of the Subject Lands, and result in land use conflicts.
49Moreover, the Tribunal notes that when issues of compliance were raised in the past by the Township, the evidence reveals that the Applicant took immediate steps to resolve the issue whether it be with the grazing of cattle at the front of the Subject Lands (not allowed due to the nutrient restriction) or the removal from the transfer pad of the two cinder blocks (that could be construed as a "structure" on the transfer pad).
50The Tribunal in these circumstances clearly prefers the evidence of Ms. Sinclair and the Applicant and finds that:
- All matters of Provincial Interest in s. 2 of the PA have been appropriately considered;
- That the ZBA is consistent with the PPS;
- That the ZBA conforms to the County Official Plan; and
- That the proposed expansion of the agricultural use of the Subject Lands represents good land use planning, does not constitute overdevelopment, but rather is an appropriate expansion that comes through a thorough and vetted land use planning process.
51Accordingly, the Tribunal will allow the appeal and hereby directs the Township to amends its Zoning By-law for the Subject Lands and allow for 233.3 nutrient units.
52While costs were requested in counsel for the Applicant's Opening Statement, the Tribunal makes no award and should the Applicant seek costs, counsel may follow the Tribunal's Rules of Practice and Procedure to seek same.
53This is the Order of the Tribunal.
"Blair S. Taylor"
BLAIR S. TAYLOR 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.