Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 17, 2021
CASE NO(S).: PL200637
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Erin McGrath
Applicant: Kyle Henderson, Lori Henderson
Subject: Consent
Property Address/Description: 42440 Hydro Line Road
Municipality: Municipality of Huron East
Municipal File No.: C58-2020
OLT Lead Case No.: PL200637
OLT Case No.: PL200637
OLT Case Name: McGrath v. Huron East (Municipality)
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Erin McGrath
Applicant: Kyle Henderson, Lori Henderson
Subject: Consent
Property Address/Description: 42440 Hydro Line Road
Municipality: Municipality of Huron East
Municipal File No.: C59-2020
OLT Lead Case No.: PL200637
OLT Case No.: PL200638
Heard: July 20, 2021 by video hearing
APPEARANCES:
Parties
Counsel
Erin McGrath (“Appellant”)
Analee Baroudi
Kyle and Lori Henderson (“Applicants”)
Paula Lombardi
County of Huron (“County”)
Greg Stewart
DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL
1This is a hearing of the appeal submitted pursuant to s. 53 (19) of the Planning Act (the “Act”) on December 1, 2020 by Erin McGrath, Greg McGrath, Marian Van Dooren, John Van Dooren, Jeff Watson and Connie Watson on an application for two consent applications filed by Kyle and Lori Henderson to sever lots located at 42440 Hydro Line Road, in the Municipality of Huron East (“Huron East”), Community of Seaforth (the “Subject Property”).
2The two consent applications have the intent to re-orient the existing two parcels of land (individually owned, respectively, by Lori Henderson and Kyle Henderson) and create three non-farm, residential lots in an Agricultural designation. Two legally conveyable parcels exist today, currently separated by a Huron East-owned road allowance, and the applications propose to create new lot lines with the condition of the closure and conveyance of the road allowance by Huron East.
3The existing lot configuration is the result of the original Registered Plan 296 for the Township of McKillop. The Registered Plan consisted of 33 lots and a public road in a “U” shape. The Plan was intended to be part of the Village of Roxboro which historically did not expand far beyond the intersection of Hydro Line Road and Roxboro Road. The lands owned by Huron East for a public road were not assumed. On March 6, 1990, Registered Plan 296 was deemed by the Municipality not to be a plan of subdivision prior to the amalgamation of the former McKillop Township into the Municipality of Huron East in 2001.
4Mr. Henderson owns lands to the west, north and east of the unopened road allowance. Ms. Henderson owns the lands south, west and east of the unopened road allowance. Each of the two lots and the unopened road allowance have a distinctive P.I.N. and registered in Land Titles.
5The consent applications are intended to result in lots:
Lot 1 – lot frontage 60 metres (“m”); lot area 0.67 hectares (“ha”).
Lot 2 – Lot frontage 92 m; lot area 1.27 ha.
Lot 3 – Lot frontage 92 m; lot area 1.22 ha.
6Each lot backs onto the South Maitland River and is subject to Maitland Valley Conservation Authority (the “MVCA” or “Conservation Authority”) flood regulations requiring setback from the flood line and top of bank.
7The Subject Property is a parallelogram shape, with slightly different depths and widths at either ends, a frontage of approximately 98.22 m and approximately 183 m in depth. The total lot area is 17,735.28 square metres. The land is currently occupied by two single detached residential dwellings with accessory structures in the form of an aluminum storage structure and a brick and frame barn, which are used in conjunction with a landscaping business.
8The Subject Lands are zoned General Agriculture (AG1), Natural Environment-Full Protection (NE1) Zone and Natural Environment – Limited Protection (NE2) Zone in the Huron East McKillop Ward. The middle portion of the property is within the MVCA regulated floodplain and does not permit development.
9The applications submitted included the following:
a. Kyle Henderson lands;
i. Area Severed – 0.99 acres
ii. Area Retained – 0.94 acres
b. Lori Henderson lands;
i. Area Severed – 2.19 acres
ii. Area Retained – 3.16 acres
The Hearing
10The Tribunal received the benefit of a Joint Document Book that was made Exhibit 1 to the Hearing.
11William Pol, a planner retained by the Applicants, was qualified by the Tribunal to provide expert land use planning evidence. Laura Simpson from Planning Services for the County appeared under summons by the Appellants and was also qualified by the Tribunal as a land use planner. Ms. Simpson’s Acknowledgement of Expert’s Duty was received dated July 13, 2021, marked as Exhibit 2. Mr. Pol’s curriculum vitae and executed Acknowledgement of Expert’s Duty were received and marked as Exhibit 3. Mr. Pol’s Witness Statement was marked as Exhibit 3.
12The Applicant, Mr. Henderson provided brief factual evidence and some background to the applications.
13The Tribunal acknowledged the receipt of Participant Status requests from: Alexis Wilbee; Katrina Merner; Tracy Eckert; Marg Van Bakel and Jim Van Bakel, all of which were in favour of the applications. The Tribunal advised that the comments received would be weighed accordingly in this decision.
ISSUE
14The issue before the Tribunal is whether the severances and the conveyance of the Huron East-owned road allowance resulting in the creation of three lots as applied for in the consent to sever application meets the general requirements set out in the applicable provincial planning legislation, municipal planning policies, the specific criteria of s. 53 (19) of the Act and represents good planning. The proposed consents must meet the requirements of the applicable policies of the applicable official plans (“OP”) and the zoning by-law.
15The Tribunal shall also have regard for matters of provincial interests and to information and material that the Council considered in making its decision.
PLANNING EVIDENCE
16Ms. Simpson provided a brief chronology of the applications through the planning process. She stated the applications were subject to a pre-consultation meeting in 2018, which was followed by the Applicants appearing before Council in 2019 as a delegation seeking input on the possibility of the having the roads (Scott Street, William Street and James Street) closed and conveyed to them. Throughout the planning process, it was made clear to the Applicants that planning staff would not support the applications.
17On August 26, 2020, the consent to sever applications were considered and completed by the Municipality. The applications were submitted with a completed Stage 1 and 2 Archaeological Assessment and Nitrate Study.
18On November 4, 2020, although the staff recommended the applications be denied, the applications were approved by County Council.
19The Applicants maintain that each lot has sufficient lot area, lot frontage and a residential building envelope area outside of the required building setbacks to construct a residential dwelling.
20The consent applications divide the two parcels into three portions; merge a portion owned by Mr. Henderson, Ms. Henderson and an unopened road allowance to create a new lot fabric in the form of three lot areas. The intent of the reconfiguration as explained by the Applicants is to address the technical layout of the unopened road allowance and two private properties into three regular shaped lots.
21An examination of Hydro Line Road illustrates that the lot sizes on this street are substantially larger, with greater frontages and depths than the more conventional subdivisions to the west.
Provincial Policy Statement, 2020 (PPS, 2020)
22It was the submission of Ms. Simpson through her reports dated September 16, 2020 and October 1, 2020 that the applications do not meet the PPS, 2020. She opined section 2.3.4.1 states that lot creation in prime agricultural areas is discouraged and may only be permitted for: agricultural uses, agriculture-related uses, a residence surplus to a farming operation and infrastructure. She also added that the applications conflict with section 2.3.4.3, which explicitly prohibits the creation of new residential lots in prime agricultural areas unless they are a residence surplus to a farming operation.
23She opined that section 2.3.7 discourages lot creation in prime agricultural areas and only permits severances for agricultural purposes, commercial and industrial uses directly related to agriculture, a residence surplus to a farming operation, infrastructure and public service utilities that cannot otherwise be accommodated, and minor lot adjustments subject to the local OP.
24Mr. Pol concurred with Ms. Simpson’s analysis of the relevant PPS sections but added three separate lots exist, and three separate lots will result from the consents and mergers. He opined no lands are being taken out of agricultural use because none of the lots function independently as an agricultural use.
25Mr. Pol maintained that none of the lots proposed include any of the three components associated with an agricultural use being: agricultural land, accessory dwelling and farm buildings. He informed the Tribunal that neither of the two existing lots currently function as an agricultural use.
26He stated the lot configurations, lot area, location and condition of accessory farm buildings do not support modern commercial farm business models.
27The Tribunal prefers the planning opinion of Ms. Simpson. The PPS, 2020 provides clear direction on discouraging the use of agricultural lands in the province for non-farming associated purposes. The Tribunal disagrees with Mr. Pol’s suggestion that the current non-farming practices on the lots owned by the Applicants should be enough to qualify adding a third non-farming residential lot. The Tribunal agrees with Ms. Simpson that the current lots could potentially be utilized in a niche agricultural manner.
Huron County Official Plan
28Ms. Simpson stated that the Huron County Official Plan (“HCOP”) section 2.3.1 recognizes Huron County as a prime agricultural area, which includes the Subject Property. Non-farm related development is directed to settlement areas where future development land has been identified and municipal investments in infrastructure has been made.
29She directed the Tribunal to section 2.3.7 which discourages lot creation in prime agricultural areas and only permits severances for agricultural purposes, commercial and industrial uses directly related to agriculture, a residence surplus to a farming operation, infrastructure and public service utilities that cannot otherwise be accommodated, and minor lot adjustments subject to the local Huron East Official Plan (“HEOP”).
30She opined the proposed lots are to be residential in use and remove agricultural land from the prime agricultural area, which conflicts with the intent of policies.
31Mr. Pol opined no additional lands are being removed from agricultural use because each lot cannot function as a farm.
32He stated the HCOP is silent on lot adjustments where no new lots are created. He stated that based on a review of the HCOP, the approved lot adjustments conform to the HCOP policies because they do not further restrict normal farm practices on lands in the area.
33After hearing the testimony of both planners, the Tribunal accepts the interpretation of the HCOP by Ms. Simpson. The applications before the Tribunal clearly indicate the creation of three lots with the merger and consents requested. The Tribunal recognizes HCOP places significant emphasis on Huron County as leading all counties and regions in Ontario in total value agriculture production. The Tribunal also recognizes the emphasis placed on the continued health of agriculture in the HCOP and notes the HCOP speaks to this focus as playing an important part not only from an agricultural perspective, but also from a broader community and economic perspective. With this focus in mind, the HCOP states development should be directed to urban areas, unless it is an agricultural related use.
Huron East Official Plan
34Ms. Simpson referred to section 10.3.1.6, specifically the Agriculture Land Division subsection, where it states consents will not be allowed which have the effect of creating lots for non-farm residential uses. She emphasized creation of non-farm residential lots will not be permitted.
35She opined these policies emphasize protecting farmland and maintaining its use for agricultural operations. Section 4.4.9 in the HEOP titled Protection of Agriculture Land states that agriculture land as designated on the schedules and maps shall be protected and non-agricultural development shall be directed to the settlement areas. Further, section 4.3 identifies that goals of the HEOP and land planning in Huron East are for development occurring in an agricultural area relate to agriculture and the preservation of agricultural land for agricultural uses.
36Section 4.4.6 states that lot sizes in the agriculture designation shall be based on the long-term needs of agriculture, respecting the farmers’ ability to farm. It was her expert opinion that the size of the lots would sustain agricultural uses based on the total area of 7 acres (excluding the residential area) being substantial enough for a commercial scale niche farm such as an orchard, winery or market garden.
37Mr. Pol opined the Subject Lands are designated Agriculture and Natural Environment on Schedule B Land Use to the Official Plan.
38He stated section 4.4.3 titled Lots of Record / Residences in Agricultural Areas recognizes that lots which are vacant and smaller than the minimum lot area may be permitted for residential uses subject to the applicable criteria.
39He stated that the purpose of this section is provide for limited use of existing lots of record and maintain the predominant agricultural use of the area.
40He referred to section 4.4.3 c) allows single detached dwellings on lots less than 4 ha. Each of the existing lots of record are less than 4 ha and are vacant.
41It was Mr. Pol’s opinion that the existing building on lands owned by Mr. Henderson is not habitable and the size and configuration of the farmland is inefficient to work and deter farmers from consolidating the land into their operation. These lands would not meet the policy criteria for a surplus farm dwelling.
42He explained that the existing AG1 zone is intended to permit agricultural use which function efficiently at the scale normally found in the Municipality with minimum lot area of 38 ha and lot frontage of 150 m. The existing lots cannot function independently as modern agricultural operations due to the lot area and configuration. The lots cannot be merged with abutting parcels to create a farm parcel. The existing lot frontages are significantly less than intended by the zoning by-law for Lots 1 and 3. The existing lot areas are significantly less than intended for all three lots.
43In accordance with section 10.3.1, Agriculture 6 prohibits the creation of vacant residential building lots. The severances and mergers conform to this policy because the vacant residential lots exist, and no new lots are being created. It was Mr. Pol opinion that the requested consents and conditions conform to the HEOP.
44The Tribunal having heard the evidence prefers that of Ms. Simpson with regards to the HEOP. Mr. Pol’s interpretation of section 4.4.3 c) Residences in Agricultural Areas, existing lots less than 4 ha explanation is preceded by the general intent of the Plan which states that:
It is recognized that there are lots in the agricultural designation which are both vacant and smaller than the minimum lot are requirements of this Plan. It is the general intent of this Plan that such lots be developed and used for farming uses or other uses permitted in agricultural designation.
45The Tribunal recognizes the intention set out in the HEOP as uses, in an agricultural designation, as that been proffered by Ms. Simpson. Further, her identification of Mr. Henderson’s land would lend to having the ability to accommodate a home and outbuildings provided that livestock was not the main intention.
Zoning By-law
46Ms. Simpson stated the zoning of the Subject Property zoned General Agriculture (AG1) and Natural Environment (NE1 and NE2). Any changes as suggested by the Applicants to the Agricultural Small Lot Holding Zone (AG4) would need a rezoning. When questioned by the counsel, Ms. Simpson stated that the Applicants when filing the applications were clear that no agriculture is intended for the lots. The Planning Reports were prepared and based on this instance.
47It was Mr. Pol’s opinion that the existing AG1 zone is intended to permit agricultural use which function efficiently at the scale normally found in the Municipality with minimum lot area of 38 ha and lot frontage of 150 m. The existing lots cannot function independently as modern agricultural operations due to the lot area and configuration.
48Mr. Pol explained it would be appropriate in the circumstances to consider changing the zoning of the existing lots to the Agricultural Small Lot Holding Zone (AG4) zone to better comply with the lot sizes. It is possible to permit a residential dwelling in compliance with the AG4 zone minimum lot area; minimum lot frontage; minimum front, side and rear yard setbacks and maximum lot coverage on each of the three existing lots.
49When these lots are compared to the proposed Agricultural Small Holding Zone (AG4), each of the three proposed lots fulfill the permitted use, minimum lot frontage and minimum lot area required by the proposed zoning and will be keeping with the intent and purpose for each of the proposed lots. An existing property zoned AG4 abuts the Subject Lands to the west and recognizes two non-farm residential properties located at the intersections of Hydro Line Road and Roxboro Road, west of the Subject Lands.
50The Tribunal is cognisant that based on this decision, the rezoning of the Subject Property would be a logical next step on the Applicants’ path; however, taking away the agricultural use of the lands is contrary to the policies as set out in the planning hierarchy. Having a solely residential use eliminates any association to agricultural uses.
Represent Good Planning
51Ms. Simpson maintained the severance of agricultural parcels to create three residential non-farm parcels in an agricultural area does not meet the policies of the PPS, nor the County OP or the local HEOP. It was her opinion they are in conflict with the policies that recognize the importance of and protection of agricultural lands for agriculture uses. She stated that members of the public expressed concern over the removal of agriculture use and the precedent it would set on neighbouring farmland. It was also her opinion that the severances are not mere lot line adjustments which would be minor, that in fact a third lot would be created, albeit by de facto of the conveyance of the road allowance.
52Mr. Pol indicated that the conveyance opportunity would increase the municipal tax base and remove the roadway from the municipal tax rolls. He informed the Tribunal it was his belief that the lot adjustment was appropriate as it made efficient use of the lands and furthered that, he did not believe niche farm use would be appropriate as the lot frontages were deficient.
53The Tribunal agrees with Ms. Simpson. The intention as set out for these lands throughout the HCOP, HEOP and zoning is to maintain an agricultural related base. Speaking specifically to the conveyance of the road allowance, although this property is still under the ownership and care of the Municipality, the direction as set out in both the HCOP and HEOP would have this land return to an agricultural related use. Simply by stating that the tax base would increase and provide the Township with the opportunity to relieve this parcel from the tax roll provides insufficient evidence to the Tribunal that moving forward, the objectives of both OPs will be met.
Analysis and Findings
54The Tribunal has reviewed the Municipal Record, the application and the documents filed in the appeals, the Minutes of County decision and the Participant statements.
55This proposed development is located in an agricultural area and subject to policies applicable to such areas. This consent to sever applications will have the effect of creating severed and retained parcels on which lots, with single detached dwellings are not permitted without an association with agricultural uses.
56The PPS directive discourages lot creation in prime agricultural areas and only permits severances for agricultural purposes, commercial and industrial uses directly related to agriculture, a residence surplus to a farming operation, infrastructure and public service utilities that cannot otherwise be accommodated, and minor lot adjustments subject to the local OP. This application does not meet the minor lot adjustments threshold nor is the intended use associated with agricultural purposes.
57The Tribunal finds that the consent applications do not represent good planning and is not in the public interest as identified by area residents through the public meeting process.
58These applications fail to meet the relevant criteria set out in s. 51(24) of the Act. Accordingly, the consent to sever the Subject Property and merge with the municipal road allowance to create three new residential lots on the Subject Property as proposed should not be authorized.
ORDER
59THE BOARD ORDERS that the appeals are dismissed, and the provisional consent is not to be given.
“D. Chipman”
D. CHIPMAN
MEMBER
Ontario Land Tribunal
Website: www.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.