Terpstra Drying Inc. v. North Perth (Town), 2021 CanLII 83547

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 31, 2021

CASE NO(S).: PL200461

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

Applicant and Appellant: Terpstra Drying Inc.

Subject: Application amend Zoning By-law No. 6-ZB-1999 - Refusal of Application by Town of North Perth

Existing Zoning: Agricultural Zone (A)

Proposed Zoning: A-1 Zone & A-62 Zone

Purpose: To permit a surplus farm dwelling on a severed parcel

Property Address/Description: Part Lot 28 Concession 9 (5400 Perth Line)

Municipality: Town of North Perth

Municipality File No.: 127-2020

LPAT Case No.: PL200461

LPAT File No.: PL200461

LPAT Case Name: Terpstra Drying Inc. v. North Perth (Town)

Heard: July 29, 2021 by video hearing

APPEARANCES:

Parties

Counsel

Municipality of North Perth

Steven O’Melia

Terpstra Drying Inc.

Kevin Thompson

MEMORANDUM OF ORAL DECISION DELIVERED BY N.P. ROBINSON ON JULY 29, 2021 AND ORDER OF THE TRIBUNAL

1The Applicant and Appellant, Terpstra Drying Inc. (“Applicant”), seeks to sever surplus land with a farm dwelling from a consolidated agricultural property in the Municipality of North Perth (“Municipality”). This required consent approval from the County of Perth Land Division Committee, and a Zoning By-law Amendment (“ZBLA”) from the Municipality.

2While the Consent approval was conditionally granted by the County, the ZBLA application was initially refused by the Municipality. After the Applicant commenced an appeal at the Ontario Land Tribunal (“Tribunal”), the Applicant and Municipality entered into Minutes of Settlement to resolve the appeal. The Municipality agreed to approve the Zone Change with a reduced area for the severed land (“Revised ZBLA”). The parties filed the Affidavit of Caroline Baker, a Land Use Planner, in support of the Settlement.

3The Revised ZBLA was orally approved by the Tribunal on July 29, 2021 for the reasons that follow.

BACKGROUND

4The Application relates to land municipally known as 5400 Perth Line 72, Atwood, Ontario, and legally described as Lot 28, Concession 9, County of Perth (the “Site”). The Site is 34.70 hectares (“Ha”) (85.74 acres) in size, and is located in a predominately agricultural area. The Applicant has owned the Site since February 2017.

5The Applicant’s farming operation consists of three (3) farm properties, which contain two (2) farm dwellings. The Applicant resides in one of the two (2) farm dwellings. The second farm dwelling is situated on land that is surplus to the Applicant’s consolidated farming needs.

6The Applicant seeks to sever the surplus land from the Site (the “Severed Parcel”). Initially, the Applicant sought to sever 0.97 ha (2.4 acres). The remaining land (the “Retained Land”) was initially proposed to comprise 34 ha (84 acres).

7Severing the Site is contingent on a consent approval from the County of Perth (the “County”) and, as one of the conditions of the provisional consent, a Zone Change Application approval from the Municipality.

8The Consent approval was recommended to the County pursuant to a County Staff Report. However, the recommendation stipulated that the Severed Parcel be reduced to 0.6 ha (1.5 acres). The reduction would have excluded: i) a driveshed; and ii) a cultivated area from the initially proposed area of the Severed Parcel.

9The County’s Land Division Committee granted the provisional Consent with nine (9) conditions on July 27, 2020. While the reduced area excluded the cultivated area, it included the driveshed. However, the Consent was conditional on confirmation that the Municipality has implemented the required amendment to its Zoning By-law.

10The ZBLA is required to implement the severance. Namely, the Municipality would need to approve an amendment to Zoning By-law No. 6-ZB-1999 as follows to fulfil the condition of consent:

a. To rezone the Severed Parcel from “Agricultural (A) Zone” to “Agricultural (A-1)” Zone to limit the permitted uses to one (1) single detached residential dwelling and accessory uses.

b. To rezone the Retained Parcel from “Agricultural (A) Zone” to “Agricultural (A-62) Zone” to prohibit the establishment of a new residential dwelling on the property.

11The Municipality received a Staff Report recommending approval of the ZBLA Application. However, Council refused to approve the ZBLA Application pursuant to Resolution No. 492.09/20. The Applicant appealed this refusal to the Tribunal on October 8, 2020.

12The Applicant and Municipality subsequently entered Minutes of Settlement, dated July 21, 2021, in relation to the ZBLA Application appeal (the “Settlement Agreement”). The Applicant agreed to further reduce the severed area and the Municipality agreed to approve the Zone Change with a reduced area of 0.65 ha (1.6 acres). The driveshed is now proposed to be excluded from the final Severed Parcel.

13On June 28, 2021, the County modified its conditional Consent approval upon request from the Applicant to reflect the revised, reduced area of the proposed severed parcel.

ISSUES AND ANALYSIS

14In accordance with the Planning Act, R.S.O. 1990, c. P.13 (the “Act”), approval of the Revised ZBLA as set out in the Settlement Agreement is contingent on whether such:

1. Has regard to matters of provincial interest in accordance with section 2 of the Act;

2. Is consistent with the Provincial Policy Statement, 2020;

3. Conforms with the County of Perth Official Plan, 1997; and

4. Constitutes good planning and is in the public interest.

The Provincial Interest

15Section 2 of the Act provides that “the Minister, the council of a municipality, a local board, a planning board and the Municipal Board, in carrying out their responsibilities under this Act shall have regard to, among other matters, matters of provincial interest.” The Act proceeds to enumerate various ‘matters of provincial interest.’

16The Zone Change as set out in the Settlement Agreement has regard to ‘matters of provincial interest’; it fosters “[t]he protection of the agricultural resources of the Province.” Such is an enumerated ‘matte[r] of provincial interest’ in subsection 2(b).

17In accordance with s. 2.1(1) of the Act, the Tribunal must have regard to: (1) the Municipality’s decision to approve the Zoning. Change Application pursuant to the Minutes of Settlement; and (2) the information and material that the Municipality considered in making the decision to approve the Zone Change Application. Such weighs in favour of approving the Zone Change in accordance with the Settlement Agreement.

Provincial Policy Statement, 2020

18The Provincial Policy Statement, 2020 (the “PPS”) provides province-wide direction on land use planning in Ontario. The relevant section of the PPS is s. 2.3, which relates to ‘prime agricultural areas,’ including the Site. Two provisions of note illustrate the consistency of the Zone Change as set out in the Settlement Agreement with section 2.3:

1. Subsection 2.3.3.2 provides that all types, sizes and intensities of agricultural uses and normal farm practices shall be promoted and protected in prime agricultural areas. ‘Normal farm practices’ are those “conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances; or makes use of innovative technology in a manner consistent with proper advanced farm management practices.”

2. Subsection 2.3.4.1(c) relates to residence surplus lot creation in prime agricultural areas as a result of farm consolidation. Such is only permitted provided that:

3. the new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services; and

4. the planning authority ensures that new residential dwellings are prohibited on any remnant parcel of farmland created by the severance. The approach used to ensure that no new residential dwellings are permitted on the remnant parcel may be recommended by the Province or based on municipal approaches which achieve the same objectives.

19The Severed Parcel is limited to only the size required for the residence and its supporting functions and provides site-specific provisions to prohibit any new residential dwellings on the Retained Parcel. Further, the Retained Parcel is of a suitable size for long-term agricultural viability. Accordingly, the Zone Change as set out in the Settlement Agreement conforms with the relevant provisions of the PPS: i.e., the section 2.3 regime.

County of Perth Official Plan, 1997

20The County of Perth Official Plan, 1997 designates the Site as “Agriculture” and “Natural Resources/Environment in the Official Plan.

21Section 5 of the Official Plan sets out the general policies and goals in relation to the use and development of Agricultural lands. Subsection 5.4 sets out lawful uses in relation to Agricultural lands, which are to be used and developed for farming uses of all types. Section 5.4 provides a non-exhaustive list of such types of farming uses.

22Section 5 also provides commentary with respect to severing farmlands. While s. 5.5.2 discourages splitting original farm units (e.g. 40.5 hectares) into smaller farm parcels, s. 5.6.3.1 creates a ‘surplus farm dwelling severance’ regime.

23The Zone Change and the associated severance conform with the Official Plan. In addition to restricting the size of the Severed Parcel to the minimum area required to support the farm dwelling, the Zone Change satisfies the ‘surplus farm dwelling severance’ regime as follows:

a. The land on which the surplus farm dwelling is situated is currently operated as part of the Applicant’s consolidated farm operation. It contains three (3) farms with two (2) existing farm residences. One of these residences is surplus the Applicant’s consolidated farming needs.

b. The land on which the surplus farm dwelling is situated and the land to which the consolidated farm operation to which the farm dwelling has become surplus are located within the County of Perth.

c. As there are no livestock facilities on the Retained Parcel, the minimum distance separation requirements are satisfied.

d. The surplus farm dwelling is greater than ten (10) years old as of the date of the application for consent.

e. The 0.65-hectare surplus farm dwelling is limited to the area required for the residential use, and to accommodate the appropriate sewage and water services.

f. The Applicant has a Farm Business Registration Number that is registered on all three (3) farm properties.

g. The prohibition on livestock housing structures is satisfied. While the Retained Parcel contains an existing driveshed, such is not of sufficient in size or design to accommodate livestock.

h. In accordance with the terms of the proposed Zone Change, the Severed Parcel will only be used for residential purposes.

i. In accordance with the proposed Zone Change, rezoning will occur to prohibit any new permanent residential dwellings on the Retained Parcel.

j. The Zone Change and associated severance also conform with Section 16.3, which provides further policies and enumerated requirements for Consent Applications. Specifically, the Severed Parcel conforms to the section 16.3 regime because it complies with the applicable zoning provisions, has access to a public road, has existing suitable services, and does not contain any natural features. Additionally, no physical changes or construction is proposed as a result of the severance.

k. Section 11 of the Official Plan also applies to the Site. However, such applies only to the woodlot based on its designation as “Natural Resources/Environment.” There is no development proposed within the woodlot area of the Site.

Municipality of North Perth Zoning By-law No. 6-ZB-1999

24The Municipality’s Zoning By-law No. 6-ZB-1999 zones the Site as “Agricultural Zone (A)”, “Natural Resources/Environment Two Zone (NRE2)” and “Adjacent Land Area Overlay (AL)”. The A Zone relates to farming uses. The NRE2 Zone applies to the woodlot.

25Section 6.3 of Zoning By-law No. 6-ZB-1999 provides requirements with respect to minimum lot area, lot frontage, lot coverage and building height in the A Zone. The Severed and Retained Parcels comply with these requirements.

26As required, the Zone Change Application proposes to implement site specific rezoning to change the Severed Parcel and Retained Parcel from Zone A to: (i) Zone A-1, and (ii) Zone A-62, respectively. This is required to satisfy the conditions of the County’s provisional consent and to conform to the County’s Official Plan requirements for surplus farm severances.

Good Planning and Public Interest

27As opined by Caroline Baker, a duly qualified Land Use Planner in both her Affidavit and in oral testimony on July 29, 2021, the Revised ZBLA as set out in the Settlement Agreement represents good land use planning and is in the public interest.

28The ZBLA will provide the community with an additional farm dwelling on the Severed Parcel, while retaining the maximized productivity of the Retained Parcel. Such productivity will be ensured due to the minimal size of the Severed Parcel, and the prohibition on the construction of new residential dwellings on the Retained Parcel. The severance will also support the community and the continued viability of agricultural operations by minimizing the cost and risk associated with existing residences that are uninhabited and create safety and liability concerns.

29The County has provided provisional approval to the Consent. The Municipality has agreed to the Revised ZBLA pursuant to the Settlement Agreement. The Tribunal’s approval is required for the Revised ZBLA.

30The Tribunal’s approval of the ZBLA as set out in the Settlement Agreement is supported by the fact that the proposed Zone Change: (i) has regard to matters of provincial interest in accordance with s. 2 of the Act; (ii) is consistent with the PPS; (iii) conforms with the County’s Official Plan; and (iv) constitutes good planning and is in the public interest.

31The Tribunal’s approval of the zone change, as set out in the Settlement Agreement, will create a minimally sized Severed Parcel while retaining the maximized productivity of the Retained Parcel.

ORDER

32THE TRIBUNAL ORDERS that the appeal is allowed in part and By-law No. 6-ZB-1999 is amended in accordance with Attachment A appended hereto with the balance of the appeal being dismissed.

“N.P. Robinson”

N.P. ROBINSON

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.