Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 03, 2022
CASE NO(S).: OLT-22-004118
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Gail Kassie and Neil Matin
Subject: Minor Variance
Description: Proposed addition of two steel containers for the processing of dog food and treats and sales to customers of the existing kennel operation.
Reference Number: 34-A-22
Property Address: 16200 Highway 27
Municipality/UT: King/York
OLT Case No.: OLT-22-004118
OLT Lead Case No.: OLT-22-004118
OLT Case Name: Kassie v. King (Township)
Heard: October 21, 2022 via Video Hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Gail Kassie and Neil Matin (collectively, the “Applicant” or the “Appellant”) | self-represented |
| Township of King (the “Township”) | Andrea Skinner* and Jasmine Fraser* |
DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL
1. BACKGROUND
1The Applicant has appealed the decision of the Township's Committee of Adjustment ("Committee") denying the application under s. 45(2)(b) of the Planning Act ("Act") a dog food production facility use at the property municipally known as 16200 Highway 27 ("Subject Property"). The Appellant operates a dog kennel on the property, which is a permitted use and wishes to continue to manufacture dog food on the property under s. 45(2)(b) of the Act. The Appellant proposes installing two steel containers on the property to house the dog food production operation.
2The Staff Report prepared for the Committee recommended against permitting the accessory use application for dog food production under s. 45(2)(b) of the Act ("Staff Report"). The Committee denied the application and the Applicant filed an appeal with the Ontario Land Tribunal.
3This is a hearing de novo of the s. 45(2)(b) application by the Tribunal.
It is required to have regard to the Committee Decision and Staff Report but to hear the evidence and submissions of the Parties regarding this application and decide the case by applying the applicable legal tests.
4A hearing was held on October 21, 2022. The Applicant was self-represented and testified on her own behalf. The Township was represented and Gaspare Ritacca, the Manager of Planning and Development ("Mr. Ritacca" or the "Township Planner") was qualified and testified as an expert witness in the field of land use planning. His testimony was clear, concise, forthright, and uncontroverted.
2. PLANNING EVIDENCE
5Mr. Ritacca started his evidence by giving general background regarding the application under s. 45(2)(b). The Appellant operates a dog kennel on the property, a dog food and dog treat processing and sales business ("Dog Food Processing Business"). The Dog Food Processing Business supplies dog food to dogs housed at the kennel, kennel customers, customers who purchase from its website and to other dog food retailers under the brand name RAWGANIC.
6The Township's Zoning By-law ("ZB") zones the Subject Property Rural General ("RU1") and permits the operation of kennels and accessory uses to kennels. The operation of a pet food production use is not identified as a specific permitted use in the RU1 zone.
7The ZB permits food processing plants for humans and pets, exclusively in the General Industrial (M2) Zone. It is not specifically permitted in other Zone categories.
8The Dog Food Processing Business has been operating from the Subject Property since 2016 and in 2021, the Township took enforcement action against the Appellants based on the position that the Dog Food Processing Business is not a permitted use.
A notice of violation has been issued and the Appellants engaged a planner to try to determine ways of legalizing the Dog Food Processing Business. A rezoning application was considered and abandoned in favour of an application under s. 45(2)(b) of the Act.
3. ACCESSORY USE ISSUE
9The key issue, in this case, is whether the Appellant's Dog Food Processing Business use is an accessory use to the principal kennel use and thus, permitted by the RU1 zoning of the property.
10The ZB permits the Subject Property to be used for kennel use and accessory uses.
Accessory Use is defined in s. 3.2 of the ZB as follows:
Accessory Use: means a use naturally and normally incidental to, subordinate to or exclusively devoted to a principal use and located on the same lot therewith.
11Exhaustive definitions of the terms "incidental to, subordinate to and exclusively devoted to the principal use" were given in evidence by the planning witness. Essentially, the subordinate use must always be dependent on the principal use and can never operate on its own as an independent use. If it operates on its own as a separate use it is independent of the principal use and thus, not accessory in nature. In the instant case, the evidence presented identified that the Dog Food Processing Business operated on the Subject Property under the brand name, Rawganic supplies. Internet customers unassociated with the kennel business (“Bow Wow Country Club”), walk-in customers and retail stores operated in different municipalities. Due to these activities, the Dog Food Processing Business is independent of the kennel use and would continue to operate if the kennel use ceases on the property.
12The evidence also indicated that the Rawganic business also supplies the kennel business customers with dog food, while the dogs are boarded at the Bow Wow Country Club and dog food orders are picked up by customers with dogs departing from the kennel. In response to questions from the Tribunal, the Township Planner advised that, in his view, these restricted dog food supply activities would be considered to be an accessory use to the kennel business. They are clearly linked and dependent upon it.
4. APPLICATION OF SECTION 45(2)(B)
13The issue of whether s. 45(2)(b) of the Act applies at all, in this case, is also an important issue to resolve. This subsection states:
(2) In addition to its powers under subsection (1), the committee, upon any such application,
(b) where the uses of land, buildings or structures permitted in the by-law are defined in general terms, may permit the use of any land, building or structure for any purpose that, in the opinion of the committee, conforms with the uses permitted in the by-law.
14The first question to be resolved is whether the ZB defines either "kennel use" or "accessory use" in general terms. Both these terms have the following very specific definitions in the ZB:
Kennel: means a building or structure where animals, birds, or other livestock intended or used as domestic household pets are kept or boarded and the operation is registered by the Canadian Kennel Club
Accessory Use: means a use naturally and normally incidental to, subordinate to or exclusively devoted to a principal use and located on the same lot therewith.
15The planning evidence was that these terms are defined specifically and thus, s. 45(2)(b) is not engaged.
16The second element of the test is whether the proposed uses conform with the uses permitted by the ZB. The planning evidence was clear that the Dog Food Processing Business for broad resale is independent of the kennel use and does not conform to either the kennel use or the accessory use. It is a very different use.
5. APPLICATION OF SECTION 45(1)
17The Appellant's evidence and submissions all related to s. 45(1) of the Act. She urged the Tribunal to treat the appeal as a de novo minor variance application. The original application to the Municipality was under s. 45(2) and the planning evidence was that all the submissions of the Appellant and the evidence presented by the Appellant relative to s. 45(1) are irrelevant.
18The Tribunal finds Mr. Ritacca's planning evidence to be persuasive and uncontroverted by that of another planner. The Dog Food Processing Business operated by the Appellant is not an accessory use to the principal kennel use on the property. Section 45(2) does not apply to the Dog Food Processing Business since both the kennel use and accessory use are defined under the Act in specific terms and the Dog Food Processing Business use conforms with none of these uses. Section 45(1) has no relevance to the current application since the original application was made under s. 45(2)(b)
19Under, the Tribunal’s Rules of Practice and Procedure the appeal of the original Committee decision can not succeed.
6. ORDER
20THE TRIBUNAL ORDERS that:
(a) the appeal is dismissed and the pet food processing use is not permitted.
“A. Cornacchia”
A. CORNACCHIA
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.