Roque v. Hamilton (City), 2022 CanLII 112744

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 23, 2022

CASE NO(S).: OLT-21-001085

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Mario Roque Subject: Request to amend the Official Plan - Failure of City of Hamilton to adopt the requested amendment Existing Designation: Agriculture Proposed Designated: Agriculture Purpose: To permit a 2-storey Agri-tourism Facility Property Address/Description: 3355 Golf Club Road Municipality: City of Hamilton Approval Authority File No.: RHOPA-19-007 OLT Lead Case No.: OLT-21-001085 OLT Case No.: OLT-21-001085 OLT Case Name: Roque v. Hamilton (City)

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

Applicant and Appellant: Mario Roque Subject: Application to amend Zoning By-law No. 05-200 - Refusal or neglect of City of Hamilton to make a decision Existing Zoning: Agriculture (A1), Conservation/Hazard Land (P7), and Conservation/Hazard Land (P8) Proposed Zoning: Site Specific (To be determined) Purpose: To permit a 2-storey Agri-tourism Facility Property Address/Description: 3355 Golf Club Road Municipality: City of Hamilton Approval Authority File No.: ZAC-19-028 OLT Lead Case No.: OLT-21-001085 OLT Case No.: OLT-21-001086

Heard: September 26 – October 12, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Mario Roque	Russell Cheeseman Stephanie Fleming
City of Hamilton	Patrick MacDonald Rachel McVean

DECISION DELIVERED BY C. HARDY AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION

1The appeal before the Tribunal arises from the failure of the City of Hamilton (“City”) to make decisions within the prescribed timelines specified in the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Act”) on an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”). Mario Roque (“Appellant”) appealed the City’s failure to make decisions to the Tribunal pursuant to s. 22(7) and s. 34(11) of the Act.

2The applications were submitted by the Appellant to facilitate the construction of a 2-storey “Agri-tourism Facility” on the property municipally known as 3355 Golf Club Road, in the City (“Subject Property”).

SUBJECT PROPERTY

3The Subject Property is approximately 27 hectares and is located on the south side of Golf Club Road, west of Highway 56 and east of Fletcher Road. It is flag shaped with approximately 10 metres of frontage on Golf Club Road. There is a hydro corridor and watercourse bisecting the Subject Property.

4The Subject Property is known as Paradise Fields and is currently an active organic farm operation. It contains significant woodland and wetland areas, a number of greenhouses and other agricultural outbuildings and a retail store used to sell products grown on site to the public.

5The Subject Property is surrounded on all sides by rural lands with active agricultural operations, including farming structures, natural heritage systems and some single-family dwellings.

6It is important to note that the City has two Official Plans, one for urban areas and one for agricultural / rural areas. The Subject Property is designated Agriculture on Schedule D – Rural Land Use Designations in Volume 1 of the Rural Hamilton Official Plan (“RHOP”). Schedule B of the RHOP identifies the Subject Property as containing Core Area, Greenbelt Protected Countryside and Greenbelt Natural Heritage Systems. It is uncontested that Core Areas associated with the RHOP Natural Heritage System identified within the Subject Property include Significant Woodlands, Provincially Significant Wetlands (“PSW”), Watercourses, Significant Wildlife Habitat and Habitat for Species at Risk.

7The Subject Property includes Class 1, 3 and 4 Soil Capability for Agriculture under the Canada Land Inventory and based on these soil types are considered Prime Agricultural Lands as defined in the Provincial Policy Statement, 2020 (“PPS”).

8The Subject Property is located within the Greenbelt Natural Heritage System of the Protected Countryside area under the Greenbelt Plan, 2017 (“Greenbelt Plan”).

9The majority of the Subject Property is currently zoned A1 – Agriculture Zone pursuant to the City’s Zoning By-law 05-200 (“ZBL”). The Significant Woodlands and their Vegetation Protection Zone (“VPZ”) are currently zoned Conservation / Hazard Lands – Rural (P7) Zone pursuant to the ZBL. The PSW and its associated VPZ is currently zoned as Conservation / Hazard Land – Rural (P8) Zone pursuant to the ZBL. It is agreed amongst the parties that both should remain in these Zones.

10The Subject Property is also located within the boundaries of the Niagara Peninsula Conservation Authority (“NPCA”) and includes areas regulated by the NPCA.

PROPOSED DEVELOPMENT AND APPLICATIONS

11The development proposal before the Tribunal (“Proposed Development”) is for an “Agri-tourism Retreat” to be located on the south-west portion of the Subject Property. The proposal includes a 2-storey building with a footprint of approximately 1500 square metres and gross floor area of approximately 3000 square metres. The building will contain up to 12 guest rooms to accommodate overnight guests, washrooms, kitchens, meeting spaces and classrooms. The Proposed Development will include 2 parking areas.

12The existing gravel driveway will provide access to the Proposed Development from Golf Club Road. Water will be provided from a future well and sewage will be managed through either a septic tank or a disposal bed. Stormwater management will be addressed by matching existing grades and collection of rainfall from the roof of the proposed building and the parking lots.

13The Appellant submitted that the Subject Property currently operates as an organic farm, and this is not in dispute. The purpose of the Proposed Development is to educate the public about the benefits of organic farming and provide guests with the tools required to carry out organic farming successfully.

14The Appellant submitted applications for an OPA and ZBA which were deemed complete by the City on October 21, 2019. The Appellant appealed the non-decision of the City to the Tribunal on May 27, 2021.

15Throughout the course of the Hearing, the OPA and ZBA were amended to reflect both concerns raised by the City and the evidence that was presented to the Tribunal. The amended OPA (“Amended OPA”) was entered as Exhibit 15A and the amended ZBA (“Amended ZBA”) was entered as Exhibit 16A, collectively referred to as the “Amended Instruments”. For clarity, it is the Amended Instruments that are before the Tribunal in this Hearing.

16The Amended OPA which is currently before the Tribunal and attached as Schedule 1 will create a Site Specific Policy Area in the Agriculture designation to allow an “Agri-tourism Retreat” which includes an:

on-farm healthy living agri-tourism facility which use acts as an on-farm diversified use and is located in a secondary on-farm building, that provides education, tourist opportunities and other agri-tourism uses to experience organic agriculture but at the same time offers accommodations and meals for guests (sic), up to a maximum of 12 guest rooms, but shall not mean a hotel nor a medical clinic.

17The Amended ZBA which is currently before the Tribunal and attached as Schedule 2 will amend the zoning to a modified Agriculture (A1) Zone that will allow an “Agri-tourism Retreat” defined as an:

on-farm healthy living agri-tourism facility which use acts as an on-farm diversified use and is located in a secondary on-farm building, that provides education, tourist opportunities and other agri-tourism uses to experience organic agriculture but at the same time offers accommodations and meals for guests (sic), up to a maximum of 12 guest rooms, but shall not mean a hotel nor a medical clinic

18The proposed regulations included in the Amended ZBA will increase the maximum building size for an on-farm diversified use to a gross floor area of 3000 square metres with a maximum ground floor area of 1500 square metres, establish a maximum lot coverage for on-farm diversified uses of 3.2%, and establish a minimum parking space requirement of 1 space / guest room. The Amended ZBA contains a Holding Provision relating to satisfactory completion of an archeological assessment and a hydrogeological report. Prior to the Hearing, the parties worked together to draft the Holding Provision which was submitted to the Tribunal on consent.

HEARING

19This matter was previously the subject of 2 Case Management Conferences (“CMC”) and has been governed by a Procedural Order (“PO”) and Issues List.

20Three Participants were granted status at the first CMC, however, none filed the required Participant Statement in accordance with the PO. The Tribunal heard similar concerns from Counsel that the Participants did not abide by the deadline to file statements as set out in the PO and as a result, the expert witnesses were unable to review and comment on the concerns raised by the Participants. Both Counsel submitted that the status granted to the Participants should be revoked due to their failure to comply with the requirements and deadlines set out in the PO.

21The Tribunal agreed with Counsel and found that the Participants did not comply with the PO and submit a statement for review and consideration. In addition, the Tribunal notes that one Participant notified the Tribunal and Counsel via email prior to the commencement of the Hearing that he was withdrawing himself from the hearing. Although not a requirement, the Tribunal did observe that neither of the remaining 2 Participants were present at the Hearing. The Tribunal determined that the Participant status granted to each of Andrea Power, Dale Phillips and Troy Smillie at the CMC is revoked due to failure to comply with the requirements and obligations set out in the PO.

22This decision includes oral testimony and material found in the various expert witness statements and reply witness statements located in the Joint Document Book (Exhibit 2). The Tribunal had the benefit of testimony from the following five experts:

1. Nick Wood for the Appellant in the area of Land Use Planning;
2. Jessica Linton for the Appellant in the area of Environmental Impact Statements;
3. Paul Neals for the Appellant in the area of Agrology and Farming;
4. Charlie Toman for the City in the area of Land Use Planning; and
5. Melissa Kiddie for the City in the area of Natural Heritage Planning.

23All five experts were duly affirmed and qualified by the Tribunal without objection to give expert opinions in their respective specializations. All five experts executed an Acknowledgement of Expert’s Duty which are found appended to their respective witness statements.

24The Tribunal was in receipt of an agreed statement of facts relating to land use planning matters executed by Mr. Wood and Mr. Toman (Exhibit 4). In addition, the Tribunal was in receipt of an agreed statement of facts relating to natural heritage executed by Ms. Linton and Ms. Kiddie (Exhibit 5).

25The parties listed twelve issues on the Issues List. At the commencement of the hearing, Counsel confirmed that Issues 8 – 11 on the Issues List concerning Water and Servicing have been addressed by the inclusion of a Holding Provision in the Amended ZBA.

26Based on the evidence and submissions, the Tribunal found that the primary questions to address at the Hearing were what the proposed use is, whether that use is permissible and whether the size and scale of the Proposed Development is appropriate. These questions were addressed in relation to the remaining eight issues on the Issues List, which are analyzed below.

Legislative Regime

27The parties agreed that the Proposed Development is a unique concept and is not contemplated by the PPS nor is it recognized in the RHOP or ZBL. The parties further agreed that due to the unique nature of the Proposed Development, relevant case law could not be proffered for review or guidance. The Appellant submitted that the proposal is not a new use but is proposing a novel idea that is a new way of doing something already permitted.

28Counsel for the Appellant emphasized that there is no change being requested regarding the designation of the Subject Property as Agricultural. The Subject Property is currently designated Agricultural and will remain within that designation.

29The City submitted that the Subject Property is located on prime agricultural lands which undergo higher scrutiny than lands located in urban or settlement areas. The City noted that there are restrictions regarding development and proposed uses within prime agricultural lands. The City argued that prior to considering whether the scale is appropriate and the uses permitted, the proposal must be clear. The proposed uses are vague and the City argued that this makes it challenging, if not impossible, to evaluate the proposed use appropriately.

30The Amended Instruments which will facilitate the Proposed Development are subject to several relevant Provincial and Municipal planning policies. The Tribunal must be satisfied with all aspects of the planning documents in rendering its decision. Whether the Proposed Development, including the proposed uses, have appropriate regard for, are consistent with and conform to Provincial and Municipal planning policy is a paramount consideration.

31The Issues List appended to the PO sets out twelve issues, eight of which identified specific policies and sections of the relevant planning documents that were thoroughly adjudicated throughout the Hearing. As noted above, four of the issues on the Issues List were addressed through the inclusion of the Holding Provision set out in the Amended ZBA.

The Planning Act

32In making a decision under the Act with respect to the appeal, the Tribunal must have regard to matters of provincial interest as set out in s. 2 of the Act. Under s. 3(5), the Tribunal’s decision must conform with or not conflict with any applicable provincial plans in effect at the date of the decision. Further, the Tribunal’s decision must be consistent with the provincial interests expressed in policy statements in effect at the date of the decision.

Provincial Policy Statement, 2020

33The PPS sets the policy foundation for regulating the development and use of land. Section 3 of the Act mandates that decisions pertaining to planning matters in Ontario must be consistent with the PPS. Analysis of the PPS deals with Issues 1, 2 and 3 in the Issues List, being:

Issue 1. Is the development proposal consistent with the growth policies within the Provincial Policy Statement, 2020, particularly with respect to policy 1.1.3.1?

Issue 2. Is the development proposal consistent with the agricultural-related uses and on-farm diversified use policies within the Provincial Policy Statement, 2020 particularly with respect to policies 2.3.2 and 2.3.3.1?

Issue 3. Does the development proposal comply with the Guidelines on Permitted Uses in Ontario’s Prime Agricultural Areas, particularly with respect to Sections 2.3.1 and 2.3.1.3 which establish recommended area calculations for On-Farm Diversified Uses?

34For ease of reference, the following definitions are set out in the PPS:

Agri-tourism is defined as “…those farm-related tourism uses, including limited accommodation such as a bed and breakfast, that promote the enjoyment, education or activities related to the farm operation.”

On-farm diversified uses is defined as “…uses that are secondary to the principal agricultural use of the property, and are limited in area. On-farm diversified uses include, but are not limited to, home occupations, home industries, agri-tourism uses, and uses that produce value-added agricultural products. Ground-mounted solar facilities are permitted in prime agricultural areas, including speciality crop areas, only as on-farm diversified uses.”

35There was consensus in the agreed statement of facts that the PPS definition of agri-tourism includes limited accommodation (such as a bed and breakfast) and education or activities related to the farm operation.

36Mr. Wood opined that the Proposed Development is consistent with and conforms to the PPS for several reasons, including the following:

1. Policy 1.1.3.1 directs growth and development to settlement areas, however, Mr. Wood testified that the Proposed Development cannot be located within a settlement area since the premise of the proposal requires it to be located on an active agricultural operation;
2. The location of the Proposed Development at the rear of the Subject Property fully surrounded by an enhanced natural heritage system will promote an efficient land use pattern;
3. The Proposed Development will rely entirely on private infrastructure and servicing, including a well and septic system;
4. The proposed mitigation measures including VPZs, a restoration plan, native plantings and naturalized grading measures will ensure that the diversity and natural features connectivity will be maintained, and the natural habitat will not be adversely affected;
5. The proposed building will be located on the lowest class of soils found on the Subject Property;
6. The Proposed Development will incorporate sustainable design features and Low Impact Development measures such as rainwater catch basins; and
7. The existing woodlot will separate the farming operation from the Proposed Development which will mitigate potential impacts.

37Mr. Wood opined that the proposed use is consistent with the PPS definitions of agri-tourism and on-farm diversified uses because it is located on an existing active farm, is secondary to the principal use of agriculture, is dependent on the surrounding farm operations and will provide education to guests. He testified that the use being proposed is reliant upon the successful operation of Paradise Fields which demonstrates the consistency with the policies of the PPS.

38In contrast, Mr. Toman opined that the Subject Property is not located within a settlement area, which is where the policies direct growth and development. In addition, Mr. Toman testified that the size and use of the Proposed Development, which is located on prime agricultural land, is not consistent with PPS policies.

39Mr. Toman testified that the PPS does not provide a definition for either “bed and breakfast” or “retreat”. As such, Mr. Toman reviewed the Proposed Development which includes overnight accommodation against the definitions for “on-farm diversified use” and “agri-tourism use” of the PPS. It is Mr. Toman’s opinion that upon reviewing the Proposed Development against these permitted uses, it is not consistent with the PPS as further outlined below.

40In each of their evidence, Mr. Wood and Mr. Toman explained that the Ministry of Agriculture, Food and Rural Affairs prepared Guidelines on Permitted Uses In Ontario’s Prime Agricultural Areas (2016) (“Guidelines”) to help guide development in Ontario’s rural and prime agricultural areas. The Guidelines are intended to compliment, be consistent with and explain the intent of the PPS policies by assisting with the interpretation of the PPS policies and permitted uses in prime agricultural areas.

41Mr. Toman testified that the Guidelines help guide development and opined that it represents good planning to apply the guidelines to the Proposed Development. He testified that the Guidelines are reviewed by planners prior to making an informed planning opinion to ensure that the intent of the policies are being applied correctly.

42Mr. Wood testified that the specific criteria for agricultural, agriculture-related and on-farm diversified uses are set out in s.1.3 of the Guidelines. The Appellant’s position is that the Proposed Development is an on-farm diversified use and Mr. Toman agreed. Extra detail on how to apply the on-farm diversified use criteria are set out in s. 2.3.1 of the Guidelines, all of which must be met to qualify as on-farm diversified use. The criteria for on-farm diversified uses are:

1. Located on a farm;
2. Secondary to the principal agricultural use of the property;
3. Limited in area;
4. Includes, but is not limited to, home occupations, home industries, agri-tourism uses and uses that produce value-added agricultural products; and
5. Compatible.

43The parties were in agreement that the Subject Property is located on a farm and as such, s. 2.3.1.1 is satisfied. Mr. Wood testified that the majority of the Subject Property is devoted to organic farming with produce grown for sale on site and in some grocery stores.

44It was Mr. Wood’s opinion that s. 2.3.1.2 is satisfied. The Proposed Development footprint would remove approximately 3.15% (as opposed to 0.6% set out in his witness statement) of the Subject Property out of agricultural production and be located at the rear of the property thereby screening it from view. Mr. Wood clarified the footprint in his oral evidence explaining that it is difficult to establish an estimate based on a conceptual design. He noted that this is typical at the zoning stage since footprint and design would be finalized through the site plan approval process.

45Mr. Toman testified that with respect to agricultural properties, it is not as simple as finding that a use less than 50% is conclusive that it is secondary to agriculture. Mr. Toman noted that the Subject Property is an undersized agricultural lot with limited frontage due to its flag shape and the size of the Proposed Development is too large on such an undersized lot. The calculations regarding use are analyzed when looking at “limited in area”, however, the City submitted that the use is intended to be year-round which includes times outside of agricultural production.

46Mr. Neals disagreed with Mr. Toman and testified that organic farming is carried out on small lots due to the cost associated with the practice. Further, organic farming does not use large-scale machinery typically used in traditional farming which makes smaller lots necessary in organic farm production. The Appellant responded to the City’s argument that the Proposed Development would be used during months when there is no agricultural production. The Appellant submitted that organic farming on the Subject Property operates year-round. Outside of the “normal” growing seasons, the greenhouses on site were used to continue the organic farming operation.

47The Tribunal heard significant testimony about what is considered “limited in area”. When analyzing s.2.3.1.3, Mr. Wood noted that “limited in area” is relative to the whole size of the farm, not just the portion in agricultural use. The Guidelines recommend that an acceptable standard for “limited in area” is up to 2% of the farm. In cross examination, Mr. Wood agreed that the Proposed Development would exceed this recommendation as it would remove 3.15% of the Subject Property out of agricultural production. The Guidelines further recommend that the GFA of buildings used for on-farm diversified uses be limited to 20%. In cross examination, Mr. Wood also agreed that approximately 35% would be devoted to the GFA of the proposed building. However, Mr. Wood maintained that the Guideline criteria are recommendations, and, in his opinion, the Proposed Development meets the intent of “limited in area”.

48Mr. Toman opined that s.2.3.1.3 of the Guidelines recommend calculations for on-farm diversified uses to ensure that they are limited in area. The intent is to minimize the amount of land taken out of agricultural production, ensure agriculture remains the main land use and limit off-site impacts. In Mr. Toman’s opinion, this is the focus of what is limited in area. He reviewed the policy and what should be included in the area calculations for on-farm diversified uses.

49There was disagreement amongst the planners regarding the amount of the Subject Property proposed to be taken out of agricultural production and whether this amount was limited in area. As per Mr. Wood’s testimony, he concluded that approximately 3.15% of the Subject Property would be taken out of agricultural production. Mr. Toman testified that it was unclear if Mr. Wood’s calculation included services such as septic area, and if not, then the number would increase. Mr. Toman opined that even at 3.15%, based on the total area of the Subject Property, the Guidelines limit the on-farm diversified use to 2% and the Proposed Development does not meet the Guidelines in terms of size.

50Mr. Toman also testified that the Guidelines cap the GFA of buildings used for on-farm diversified uses to 20% of the 2%. With respect to the Proposed Development, the GFA of the proposed building is 3000 square metres, which Mr. Toman calculated to be approximately 35%. Mr. Toman concluded that both the amount of land proposed to be removed from agricultural production and the size of the proposed building exceed the limits set out in the Guidelines.

51Mr. Wood testified that the Proposed Development would provide agri-tourism opportunities, which is an example of an on-farm diversified use and satisfies s. 2.3.1.4. Further, he noted that value-added agricultural products will result both from the produce grown and cultivated by guests and the “product” produced through the education of guests. Mr. Toman did not specifically speak to s.2.3.1.4.

52Mr. Wood testified that the Proposed Development is compatible and satisfies s. 2.3.1.5. Limiting the number of guests to 12 guest suites, providing one means of access to the facility via the existing gravel drive and locating the facility to the rear of the Subject Property will ensure its compatibility with surrounding operations. In addition, the proposed enhanced natural heritage system which will provide screening and limit any noise and smell impacts, along with private servicing, all work together to satisfy s. 2.3.1.5 of the Guidelines.

53Mr. Wood opined that the Proposed Development meets all the criteria set out in s. 2.3.1 as an on-farm diversified use. Mr. Toman disagreed that all criteria were satisfied, and he opined that the Proposed Development did not meet s.2.3.1.2 and s.2.3.1.3.

54Mr. Neals expanded upon Mr. Wood’s evidence and opined that the Proposed Development meets the criteria for on-farm diversified use. In summary, he testified that it is located on a farm, is secondary to the organic food production, supports agricultural uses on the farm and the surrounding uses, affects a limited area of the Subject Property, is an agri-tourism value added use and is compatible with the surrounding agricultural operations. He looked at the benefits of the Proposed Development and opined that the educational and agricultural benefits outweigh the fact that it does not comply with the Guidelines in terms of the amount of land being removed from agricultural production.

55Mr. Wood testified that s.2.3.2 provides examples of uses that could be classified as on-farm diversified uses providing that all PPS criteria are met. The parties repeatedly referred to the Agri-tourism image set out in s.2.3.2 of the Guidelines, which has been reproduced below for ease of reference:

56Mr. Wood opined that several of the examples set out in s. 2.3.2 would require overnight accommodation, such as bed and breakfast and farm vacation suite. Mr. Wood’s opinion is that the Proposed Development is comparable to a bed and breakfast, which is a specific example of an on-farm diversified use set out in the Guidelines.

57The City submitted that despite the Appellant maintaining that the use will not be a hotel, the Proposed Development will house overnight guests, they will pay to stay, it will be utilized year-round and there will be meals and meeting spaces provided. The City argued that these elements in conjunction with the proposed scale make the use similar to a hotel or motel which is not the type of limited accommodation intended in the on-farm diversified use category. During cross examination, Mr. Wood agreed that the scale of the proposed building is not dissimilar to a motel, however, he maintained that the function was more akin to a bed and breakfast.

58Mr. Toman testified that the Proposed Development cannot reasonably be considered limited accommodation that is akin to a bed and breakfast due to the number of guests proposed. Further, he noted that generally a bed and breakfast is owner occupied in contrast to the Proposed Development which does not contain a principal dwelling on site, nor does the owner reside on the Subject Property. Mr. Toman noted that the Proposed Development is a purpose-built large argi-tourism facility which is more akin to a hotel or motel and neither of these are considered on-farm diversified uses.

59Mr. Neals reviewed the Guidelines as a whole and emphasized that the Guidelines assist farmers in identifying opportunities on their farms that will not interfere with the agricultural functions on their farms or adjacent farms. He reiterated that organic farming is often undertaken on a smaller scale than traditional farming because of the time that it takes to cultivate organic farm products. He testified that the Proposed Development would educate guests in organic farming. The guests can use what they learned to start their own organic farm operations for personal consumption or to sell at local markets in order to earn additional income.

60It was Mr. Neals’ opinion that the Proposed Development is unique and is not contemplated by the Guidelines because it was not envisioned when the Guidelines were prepared. However, it is within the spirit and objectives of the Guidelines to promote agriculture and provide a secondary income for both Paradise Fields and potentially guests who will become educated at the proposed facility.

61The Appellant submitted that Mr. Neals was the only agrologist that the Tribunal heard opinion evidence from during the hearing and he is well qualified with lengthy experience in his field. In Mr. Neals’ opinion, the Proposed Development was “better” than other types of agri-tourism uses such as playgrounds and hayrides. In contrast to these uses, the Proposed Development would promote agriculture through the education of the public and other farmers on the benefits associated with organic farming.

62Mr. Toman disagreed with Mr. Neals’ assertion that the Proposed Development was not contemplated by the Guidelines. He testified that it is envisioned, and the Guidelines provide clear criteria to determine whether proposals are consistent with the PPS. In this case, Mr. Toman opined that the proposed building is significantly larger than what is envisioned in the policies. The use of a bed and breakfast in the PPS as an example of limited overnight accommodation does not apply in this case as the number of guests proposed is not limited as envisioned in the policies.

63The Appellant disagreed with Mr. Toman and argued that the Guidelines are not policy, they are guidelines. Based on the Guidelines, agri-tourism is an on-farm diversified use. Also based on the Guidelines, the limited in area criteria has been met through the use of the site-specific definition of “Agritourism Retreat” in the Amended OPA and Amended ZBA. The Appellant acknowledges that the Proposed Development exceeds the suggested maximum of 2% of land being devoted to on-farm diversified uses. However, Mr. Neals opined that this scale of development is not outside the norm of other farm properties in Ontario. Further, the Guidelines provide guidance and are not performance standards that must be adhered to.

64The Appellant submitted that the idea of overnight accommodation is permitted as of right, however, it appears to be the scale that is of concern to Mr. Toman. The Appellant argued that a specific definition is being proposed in the Amended OPA and Amended ZBA to provide clarity with respect to scale and this will allow the future site plan process to progress without confusion.

65The experts provided detailed testimony to the Tribunal in reviewing policies set out in the PPS and the Guidelines. The Tribunal agrees that the amount of land removed from agricultural production by the Proposed Development exceeds the recommendations. The Tribunal prefers the evidence of the Appellant and agrees that the objectives of the PPS and Guidelines are satisfied. The Proposed Development does constitute limited development located outside of a settlement area as it relies on the successful operation of the active farm. It promotes PPS policies relating to healthy, integrated and viable rural areas as it will provide opportunities for diversified tourism and economic activities in a prime agricultural area.

66The Tribunal accepts the evidence of Mr. Wood and Mr. Neals that the Proposed Development satisfies the on-farm diversified use criteria. Mr. Toman’s assertion that the Proposed Development is too large and if permitted will become the principal use of the property was not supported by the evidence. Further, as set out in paragraph 78 below, Mr. Toman agreed during cross examination that the primary use of the property would remain Agriculture if the appeal were allowed by the Tribunal. The Tribunal agrees with the Appellant that the Proposed Development is a unique concept not contemplated by the Guidelines. The evidence demonstrated that the significant work and thought that the Appellant put into its proposal resulted in a Proposed Development that meets the objectives of the Guidelines. The Amended Instruments have been drafted to restrict the use of the Proposed Development and the Amended ZBA has been drafted to place specific regulations to restrict the maximum building gross floor area, maximum ground floor area and maximum lot coverage. Based on the evidence presented, the Tribunal finds that the Amended Instruments meet the intent of the PPS and Guidelines. Further, the evidence has not demonstrated that allowing the appeal will alter the principal agricultural use of the property or result in off-site impacts.

67Mr. Neals explained that by its very nature, organic farming is undertaken on smaller agricultural parcels than traditional farming. He opined that the Proposed Development is a “better” way to promote agriculture than other agri-tourism uses such as corn mazes. The Tribunal agrees with Mr. Neals’ assessment and further agrees that there are significant educational and agricultural benefits that will flow from the Proposed Development.

68With respect to overnight accommodation, the Tribunal prefers the evidence of the Appellant. Overnight accommodation is permitted as of right. The Tribunal is not making a finding on whether the Proposed Development is considered a bed and breakfast, hotel or motel. This is a unique concept that has been identified by the Appellant as an opportunity to educate the public and diversify its economic viability which will not interfere with the agricultural functions of Paradise Fields or adjacent farms. The Tribunal finds that the intent and objectives of the PPS and Guidelines have been met through the Amended Instruments which will facilitate the Proposed Development.

Greenbelt Plan (2017)

69The Greenbelt Plan permanently protects certain land for the promotion of agricultural and related agricultural operations and ecological functions while also promoting tourism and recreational uses. It builds on the policies of the PPS and provides additional more specific land use planning policies to address issues facing specific geographic areas in Ontario. Analysis of the Greenbelt Plan focused on Issue 4 of the Issues List, being:

Issue 4. Is the development proposal consistent with the prime agricultural uses within the Greenbelt Plan, 2017, particularly with respect to policy 3.1.3.1?

70Mr. Toman reviewed policy 3.1.3.1 and policy 3.1.3.3 of the Greenbelt Plan noting that on-farm diversified uses are permitted on the Subject Property providing they are compatible and do not hinder agricultural operations. Similar to the PPS, Mr. Toman noted that the Greenbelt Plan does not provide a definition of a “bed and breakfast” or a “hotel” that could provide additional guidance.

71Mr. Toman opined that the size and scale of the Proposed Development is too large to be considered an on-farm diversified use and as such is inconsistent with policy 3.1.3. He noted that the scale and size is more akin to a hotel and the policies set out that this type of use should be directed towards Settlement Areas. In cross examination, Mr. Toman agreed that agri-tourism is an on-farm diversified use permitted under the Greenbelt Plan and the RHOP.

72Mr. Wood opined that an agri-tourism facility is consistent with and conforms to the policies set out in the Greenbelt Plan. The Proposed Development will be constructed away from the agricultural practices on the Subject Property which will reduce any impacts. Further, it was Mr. Wood’s opinion that the Proposed Development is a type of on-farm diversified use dependent on the agricultural operations of Paradise Fields which demonstrates consistency with prime agricultural uses. The proposal will maintain the existing farm operations while supporting the agri-food network by promoting organic farming.

73The Tribunal prefers the evidence of Mr. Wood and agrees that the Proposed Development is consistent with and conforms to the policies of the Greenbelt Plan. The proposal is permitted by the Greenbelt Plan and is reliant upon the existing farm operation. It will provide valuable experiences and education to guests in organic farming and support the agri-food network. The Tribunal reiterates its finding above that the Amended Instruments restrict the size and use of the Proposed Development to sufficiently ensure agricultural operations will not be hindered.

Rural Hamilton Official Plan

74The Subject Property is designated “Agriculture” in the RHOP and is identified with “Key Natural Heritage Feature Significant Woodlands”, “Key Natural Heritage and Key Hydrologic Feature Wetlands” and “Key Hydrologic Feature Streams”.

75The analysis that the experts reviewed relating to the RHOP addressed Issues 5, 6 and 7 of the Issues List, being:

Issue 5. Does the development, including the proposed use and size for overnight accommodation, conform to the “Agricultural” policies of the Rural Hamilton Official Plan, including but not limited to 2.1, 2.1.2 and 2.1.3?

Issue 6. Does the development conform to Rural Hamilton Official Plan policy 2.2.3?

Issue 7. Has the Applicant’s Environmental Impact Study demonstrated that the features and ecological functions of the Core Areas will not be negatively impacted as required under the Rural Hamilton Official Plan policies policy C.2.3.3?

76Mr. Toman opined that policy D.2.1.2 provides additional policy direction on agricultural-related uses, which do not apply to the Proposed Development.

77Mr. Toman testified that policy D.2.1.3 provides additional policy direction regarding on-farm secondary uses. He noted that the RHOP does not provide a definition of agri-tourism, so he deferred to the definition set out in the PPS and Guidelines when reviewing the applications. He went through policy D.2.1.3 which states that “on-farm secondary uses shall be permitted provided the following conditions are met in all cases:

a. The use shall be clearly secondary to the primary agricultural use maintained on the lot;

b. Any buildings or structures associated with an on farm secondary use shall allow for ease of conversion to a future agricultural use and be located to form an integral part of the primary farm cluster;

c. Appropriate development standards shall be established in the Zoning By-law regarding the maximum floor area for such uses, access, parking, outside storage, and any other requirements; and

d. Site plan approval may be required.

78The parties agreed that both (c) and (d) of policy D.2.1.3 are met by the Proposed Development.

79Mr. Toman opined that the Proposed Development does not conform with (a) of policy D.2.1.3. The size of the Proposed Development is significantly larger than what is contemplated in the PPS and Guidelines and does not meet the intent of the RHOP as a secondary use. In cross examination, Mr. Toman agreed that secondary uses are permitted and encouraged and that the primary use of the Subject Property is agriculture. When questioned during cross examination, Mr. Toman acknowledged that the Proposed Development does in fact meet (a) and that if the appeal is allowed, the primary use of the Subject Property would not change to agri-tourism but would continue to be agriculture as it is today.

80Mr. Wood testified that the Proposed Development is secondary to the primary agricultural use as it will be relegated to a small portion of the Subject Property. Further, it was Mr. Wood’s opinion that the premise of the proposal relies on foods grown and cultivated on site by and for guests which is further evidence that the Proposed Development is a secondary use.

81Mr. Toman opined that the Proposed Development does not conform with (b) of policy D.2.1.3. He noted that the location of the proposed building at the rear of the Subject Property is removed from the primary farm cluster. In cross examination, Mr. Toman agreed that decisions on what is required for a farming operation and where to locate these facilities is left to the farmer. As such, Mr. Toman acknowledged that if the Appellant wanted to build a barn where the proposed building will be located, he would be permitted to do so as of right.

82Mr. Toman testified that based on the concept plan, the proposed building cannot be easily converted to another agricultural use as required pursuant to (b) of policy D.2.1.3. The proposed building is purpose-built and not easily adaptable to other tangential uses without further planning approvals. It was Mr. Toman’s opinion that the ease of conversion requirement envisioned in the policy is not met if further planning approvals would be required. In cross examination, Mr. Toman acknowledged that he is not an architect and as such is not qualified to opine on whether the proposed building could be easily converted to other agricultural uses.

83The City submitted that there was no evidence presented to the Tribunal demonstrating that the proposed building is capable of being converted to agricultural uses. Interior plans have not been provided by the Appellant, which makes it difficult to draw conclusions about the adaptability of the proposed building.

84In reviewing policy D.2.1.3, Mr. Woods opined that the proposed building will be designed to be easily converted to a future agricultural use if the Proposed Development ceases to operate. In cross examination, Mr. Wood noted that interior layouts have not been prepared as these details would be worked out during site plan approval. He testified that it is envisioned that the building could be converted, however he agreed in cross examination that more information was required in order to make determinations on adaptive reuse.

85The Tribunal prefers the evidence of the Appellant and is satisfied that the Proposed Development meets the criteria for on-farm secondary uses. The experts were generally in agreement that these criteria were met, except for the criteria relating to ease of conversion of the proposed building. The Tribunal was presented with a number of examples of potential conversions of the proposed facility that would support agricultural functions. That said, the Tribunal finds that determining what the proposed building could be converted to is not a relevant consideration in assessing on-farm secondary use criteria. What is a relevant consideration is if a proposed building could be converted. Based on the evidence, the Tribunal is satisfied that at the site plan approval stage, qualified professionals can design a building that could be converted to a future use supportive of agricultural functions.

86Mr. Wood emphasized that a bed and breakfast is a permitted use and reiterated his opinion that it is an appropriate comparison to use given the similarities to the Proposed Development. Mr. Wood testified that eliminating overnight accommodation would negatively impact the education component of the Proposed Development and thereby dilute knowledge gained relating to organic farming. The intent is for guests to be fully immersed in organic farming which requires them to remain on the Subject Property for the entire experience.

87Mr. Toman maintained his disagreement that a bed and breakfast is an appropriate comparison. He reviewed the definition of “bed and breakfast” in the RHOP and opined that the Proposed Development does not fit within this definition as it is not a residential dwelling and the owners of the Subject Property do not reside on the Subject Property.

88Overall, Mr. Wood opined that the Proposed Development requires site-specific amendments to conform with the policies and intent of the RHOP and that those amendments are minor and should be approved.

89The Tribunal reiterates its findings set out in paragraph 68 above that overnight accommodation is permitted as of right and the Tribunal is not making a finding on whether the Proposed Development is considered to be a bed and breakfast, hotel or motel. Overnight accommodation is permitted as of right and this is a unique concept that has been specifically defined in the Amended Instruments which will facilitate the Proposed Development.

90Ms. Linton testified that policy C.2.2.3 of the RHOP addresses the boundaries of the Core Areas and through Schedule B of the RHOP identifies these Core Areas (Significant Woodland, streams and PSW) on the Subject Property. Ms. Kiddie testified that the applications themselves required that the Core Area boundaries (Significant Woodlands and PSW) be delineated through an Environmental Impact Study (“EIS”). It is relevant to note that Cathy Plosz was the Natural Heritage Planner for the City during the application process and when the Appellant filed the appeal. Ms. Plosz has since retired and was not present at the Hearing. Ms. Kiddie became responsible for the matter upon Ms. Plosz’s retirement.

91Ms. Linton’s initial EIS dated October 2019 was updated in October 2020 as part of the Appellant’s second submission to respond to comments received by the City and commenting agencies. Finally, Ms. Linton prepared an Addendum in August 2021 updating the October 2020 EIS.

92Ms. Linton comprehensively reviewed the EISs that she prepared in support of the Proposed Development. She explained that the maps appended to the RHOP are large scale and one is able to make generalizations from those maps, but the EIS is required to delineate the natural boundaries. Ms. Linton further explained that the presence of the natural heritage features on the Subject Property triggered the need for the EIS and in order to comply with the Greenbelt Plan and RHOP it must be demonstrated that there will be no negative impacts on the key natural heritage features or their ecological functions as a result of the Proposed Development (“no negative impact test”).

93Ms. Linton testified that she visited the Subject Property a number of times during the preparation of the EISs and confirmed a number of natural heritage features and habitats for significant wildlife on site. The wetland in the southern portion of the Subject Property is part of the Upper Twenty Mile Creek PSW complex which is regulated by the NPCA. The White Spruce Coniferous Plantation and the deciduous hedgerows on the Subject Property are identified as Significant Woodlands in the RHOP. Ms. Linton recommended a restoration plan which includes setbacks from natural features and VPZs.

94Ms. Kiddie testified that the EIS does not provide a complete analysis of the policies in the RHOP as there are critical features and functions missing such as watercourses, fish habitat and wildlife habitat. She opined that the missing information makes it difficult to review and determine no negative impacts because there is not a clear understanding of the features and functions on the Subject Property. In Ms. Kiddie’s opinion an EIS that relies on some features, rather than all features, does not “tell the whole story” of the natural heritage system on the Subject Property.

95It is Ms. Linton’s opinion that the boundaries of the Core Areas identified in the EIS are accurate and conform to the RHOP. It was determined that the existing mapping by the Ministry of Natural Resources and Forestry (“MNRF”) was accurate and therefore the 30 metre VPZ (described below) was measured from that boundary. There was some debate during the hearing regarding the plotting of the boundaries, in particular the parking area to the north of the proposed building was not contemplated when Ms. Linton and City staff conducted a site visit in August 2019. As such, Ms. Linton received approval from Ms. Plosz, to use aerial photography to delineate the dripline to the north of the proposed building. It was agreed that this would be sufficient for the zoning approval and that this area could be surveyed on site during the site plan approval stage. Ms. Linton confirmed that in her opinion this was sufficient for the OPA and ZBA since there would be a further site plan process which would enable on site delineation of this area.

96In Ms. Kiddie’s opinion, the Proposed Development does not conform to policy C.2.2.3 of the RHOP because the boundaries of the Core Areas were not delineated in a manner consistent with the principles set out in the City’s EIS Guidelines and methods identified in the approved EIS Terms of Reference. In particular, she testified that the natural features are to be staked with staff from the City and from MNRF and/or NPCA to help determine the design of the development and the location of the VPZs. Ms. Kiddie opined that delineation of the Significant Woodlands and PSWs were not properly carried out for a number of reasons, including the failure to include the entire forest and the use of 2 different methods to delineate the Significant Woodlands (in field and aerial photos).

97In cross examination, Ms. Kiddie acknowledged that Ms. Plosz agreed to the use of aerial photos to delineate part of the Significant Woodlands and that staking in the field would take place during the site plan process. However, she maintained that it is difficult to change the boundaries of a zone at the site plan stage unless further planning applications are undertaken, such as minor variances. She agreed that further applications were possible and would be a risk that the Appellant was assuming, not the City.

98In considering all of the testimony, the Tribunal prefers the evidence of Ms. Linton. Ms. Linton was involved in the matter from the beginning and through her testimony demonstrated to the Tribunal that the EISs were prepared properly and thoroughly. The fact that Ms. Kiddie would have preferred Ms. Linton to have used different methods in conducting the EISs does not lead to the conclusion that they were completed in a manner inconsistent with the City’s EIS Guidelines. The evidence presented showed that the EISs were completed and submitted to the satisfaction of the City, through Ms. Plosz, and any discrepancies with boundary delineation can be addressed during the site plan approval process.

99There was considerable evidence heard relating to the recommended VPZs set out in the EIS. It was agreed that VPZs are required for natural heritage features to protect their form and function from impacts during and after development. Pursuant to s. C.2.4.11 of the RHOP, the City requires the following minimum VPZs to be evaluated and addressed by the EIS:

1. 30 metre for all wetlands;
2. 30 metre on either side of the top bank of all permanent and intermittent watercourses;
3. 30 metre from the dripline of trees at all Significant Woodland edges; and
4. 15 metre from the dripline of trees at all non-Significant Woodland edges.

100The EIS recommended the following VPZs in the area of the Proposed Development:

1. 30 metre for the PSW;
2. 30 metre on either side of the top bank of all permanent and intermittent watercourses; and
3. 15 metre from the dripline of all trees within all plantation woodlands.

101Ms. Linton explained that the recommendation for a reduced VPZ from the plantation woodlands (which are Significant Woodlands) results from the fact that they are anthropogenic in origin and are characterized by common species. Further, they are surrounded by land used for agricultural purposes, meaning that they are currently farmed. The root zones of the plantation woodlands have been subjected to annual tilling for years and any VPZ would be an improvement to protect the form and function of the woodland, including protecting the root zones of the trees. The proposed VPZ will restore and/or enhance the Core Area through a restoration plan to naturalize the plantation with native species plantings. The restoration plan will also thin out the existing trees in accordance with good forestry practices to allow more light into the plantation resulting in healthier trees.

102Ms. Linton emphasized that although the plantation woodlands are considered Significant Woodlands in the policy, they are made up of densely planted trees that are largely one common species (white spruce) and have been mismanaged to date. The result is that this plantation woodland does not realize its potential in providing wildlife habitat nor a proper woodland function.

103In cross examination, Ms. Linton agreed that s.3.2.5.4 of the Greenbelt Plan requires a minimum 30 metre VPZ from Significant Woodlands and that the policies in the Greenbelt Plan apply to the Subject Property. However, she noted that s.3.2.5.5 states that for new development within 120 metres of a Significant Woodland, an EIS is required to establish the sufficient width of a VPZ. Ms. Linton testified that the EIS was done, and the sufficient width was determined to be 15 metres, not 30 metres.

104Ms. Linton opined that s.C.2.4.11 of the RHOP could be interpreted to mean that the minimum 30 metres VPZ would require an evaluation. Through her discussions with Ms. Plosz, Ms. Linton testified that it was agreed in principle that the 30 metre requirement could be varied. Ms. Linton referred to a separate application concerning the Subject Property (not before the Tribunal) relating to construction of additional Greenhouses (“Greenhouse Application”). The City approved the Greenhouse Application which did not conform to the minimum 30 metre VPZ requirement. Ms. Linton testified that the logical inference from the Greenhouse Application approval by the City was that the 30 metre VPZ could be varied in certain circumstances.

105Ms. Kiddie brought the Tribunal to s. C.2.4.2 of the RHOP which prohibits new development within natural heritage features and their associated VPZ. She testified that the EIS proposed locating part of the parking lot within the VPZ but did not address the impacts of this, including salt management in winter months. Further, there was discussion about storm water management and sewage treatment, but it was unclear where these will be located and whether there will be impacts to the natural heritage features and functions.

106Ms. Kiddie opined that VPZs are one of the most effective measures to mitigate impacts on features and functions, before, during and after a proposed change of use and associated activities. Ms. Kiddie’s evidence was that a VPZ of 30 metres was required and cannot be reduced as a result of recommendations flowing from an EIS. Ms. Kiddie opined that the proposed reduction of the VPZ for the Significant Woodlands to 15 metres was not adequately evaluated and does not respect the intention of the VPZ.

107In cross examination, Ms. Kiddie acknowledged that she became involved in the matter in February 2022 and has not visited the Subject Property. With respect to the reduced VPZ for the Significant Woodlands, in cross examination, Ms. Kiddie agreed that the plantation woodlands as they exist today have been disturbed to the edge of the treeline. It was also agreed that the VPZ would be an improvement over what exists today, however, Ms. Kiddie maintained that the VPZ is inappropriate.

108In cross examination, Ms. Kiddie noted that she was unaware of instances where the City approved an EIS recommending less than a 30 metre VPZ adjacent to a Significant Woodland because it would not comply with the RHOP. She agreed that the City could not approve something that is not in compliance with the RHOP. The Appellant put to Ms. Kiddie that the Greenhouse Application was approved by the City without any VPZ, despite its location adjacent to a Significant Woodland. The Appellant noted that the EIS that was cleared by the City in approving the Greenhouse Application on the Subject Property used the same data as the EIS relating to the OPA and ZBA applications which are the subject of this Hearing. Ms. Kiddie conceded that she was not aware of the Greenhouse Application which was approved by the City without requiring a VPZ adjacent to a Significant Woodland.

109The City submitted that Ms. Kiddie did not work on the Greenhouse Application. The City further submitted that the Appellant did not present any witnesses or testimony from an expert who did work on the Greenhouse Application. The City notes that the context of the Greenhouse Application approval is unknown and there is no evidence before the Tribunal to establish whether the Greenhouse Application was similar to what is before the Tribunal in this Hearing. The City submitted that no conclusions can be properly drawn by the Tribunal relating to the Greenhouse Application.

110The Tribunal agrees with the City that little weight can be given to the Greenhouse Application without additional background information. The Tribunal finds that it is relevant that Ms. Plosz agreed in principle that the 30 metre VPZ could be varied. The Tribunal prefers Ms. Linton’s evidence and opinions that 15 metres is appropriate in this circumstance. After conducting an in-depth analysis, Ms. Linton concluded that 15 metres is appropriate for a number of reasons that she detailed in her testimony. She noted that the species of tree in the plantation woodland is common, it is not currently providing a proper woodland function and there is no VPZ currently in place. The Tribunal was persuaded by Ms. Linton’s evidence that the plantation woodland and the root zones of the trees will be enhanced and sufficiently protected with the implementation of a 15 metre VPZ.

111Ms. Linton concluded that the features and ecological functions of the Core Areas will not be negatively impacted by the Proposed Development and that the “no negative impact test” set out in the RHOP has been satisfied through the recommendations in the EIS. It was Ms. Linton’s opinion that the recommendations made in the EIS will result in an overall improvement to the Core Areas and their ecological functions through plantation management and invasive species management. In the end, she opined that there will be no negative impacts on the Subject Property as a result of the Proposed Development.

112The City argued that the EIS was inadequate in terms of its policy review, assessment of potential impacts from construction and use and mitigation measures. As such, the “no negative impact test” has not been satisfied because negative impacts cannot be adequately assessed.

113The Appellant argued that the City has not demonstrated that there would be negative impacts on the Core Areas while the opinion evidence of Ms. Linton did demonstrate that there would not be any negative impacts on these areas.

114Overall, with respect to the natural heritage evidence the Tribunal prefers the evidence of the Appellant. The Tribunal finds that the EIS process was carried out in a manner that was agreed to by the City’s former natural heritage planner. After hearing all of the evidence, the Tribunal agrees with the Appellant that the recommendations in the EIS will result in an overall improvement and that the Proposed Development will not result in any negative impacts on the Subject Property. Ms. Kiddie agreed in cross examination that any VPZ would be an improvement over what exists currently and further, the City did not present any cogent evidence to the Tribunal to contradict the Appellant’s evidence demonstrating that there would be no negative impacts.

City of Hamilton Comprehensive Zoning By-law No. 05-200

115The Subject Property is zoned “A1 – Agriculture”, “P7 – Conservation / Hazard Land” and “P8 – Conservation / Hazard Land” in the ZBL. The experts reviewed the ZBL and addressed Issue 12 of the Issues List, being:

12. Should the use of providing overnight accommodation for up to 25 guests be considered a Bed and Breakfast as defined in Zoning By-law 05-200?

116For ease of reference, the following definitions are set out in the ZBL:

1. Agritourism is defined as:

…a Secondary Use to an Agricultural operation on the same lot that provides educational and active opportunities to experience the agricultural way of life in Rural Hamilton. Such activities may include, for example, farm machinery and equipment exhibitions, farm-tours, petting zoos, corn mazes, hay rides, sleigh rides, processing demonstrations, pick your own produce/products, farm theme playground for children, and educational facilities that focus on farming instruction, and which may include accessory retail, but shall not include a Restaurant or Conference or Convention Centre.

2. Hotel is defined as:

…a commercial establishment used for temporary rental sleeping accommodation for travelers (sic) and which may offer other facilities such as personal service establishments, restaurants, retail stores, conference or convention facilities, exhibition facilities, commercial entertainment or commercial recreation, but shall not include a Casino, and for the purposes of this By-law a motel, motor hotel or an apartment hotel shall be deemed to be a “hotel”

3. Bed and Breakfast Establishment is defined as:

…an establishment operated as an accessory use to a detached or semi-detached dwelling unit where guestrooms are made available for the temporary accommodation of the travelling public and where meals may be offered to the occupants of the guestrooms.

117Mr. Wood reviewed the definitions of “Agritourism” and “Hotel” set out in the ZBL and opined that the Proposed Development does not fit into either definition. He testified that the definition of Agritourism has some features that relate to the Proposed Development but does not speak to overnight guests. Similarly, he testified that the definition of Hotel has some similarities to the Proposed Development but is too broad and does not fit the scale and function of the proposed agri-tourism facility. Mr. Wood testified that the proposed use requires guests to have an immersive experience thereby requiring overnight accommodation. Mr. Wood concluded that the agri-tourism facility proposed is unique and warrants a separate definition, which has been set out in the Amended Instruments.

118Mr. Toman raised concerns about the definition in the OPA and ZBA not providing clarity on what organic agriculture and holistic living meant. In response to these concerns, the Amended Instruments were presented during the hearing which, among other changes, also eliminated reference to holistic living. Mr. Toman remained concerned that the definition in the Amended Instruments could still allow medical services to be provided. During cross examination, Mr. Toman did agree that during his site visit to the Subject Property, he did not see any medical clinics or medical services being offered or provided.

119The City submitted that the risk is not solely on the Appellant in ensuring that uses do not cross over into medical services. The burden will be on the City to enforce and regulate the uses permitted in the Amended Instruments. The City argued that the evidence has demonstrated that there will be health professionals on site and it was submitted that whether the function of these professionals crosses over to medical services will depend on individual interactions. The City argued that the uncertainty and confusion arising from the presence of health professionals makes enforcement difficult, if not impossible.

120As noted previously in this Decision, the Tribunal agrees with Mr. Wood that the proposal warrants a unique definition. The. City’s argument regarding uncertainty making enforcement difficult is unfounded and based on apprehensions about what may happen. There was no compelling land use planning evidence proffered to support the arguments that medical services could be performed on site if the Tribunal allows the appeal.

Amended OPA and Amended ZBA

121As noted above, the original OPA and ZBA were amended during the course of the Hearing to respond to concerns raised by the City and the evidence that was presented to the Tribunal. It became apparent that the opportunity to amend the OPA and ZBA was not available prior to the Hearing because Mr. Toman and Ms. Kiddie became involved in the matter after the appeals had been filed. Mr. Toman explained during cross-examination that he did not communicate his concerns with the OPA and ZBA to the Appellant because once an appeal has been filed any communications must be made through Counsel. As such, he did not have the opportunity to voice his concerns to the Appellant prior to the Hearing.

122Mr. Wood reviewed the changes that were made to the Amended OPA and Amended ZBA and he recommended approval of the Amended Instruments to the Tribunal. Mr. Wood noted that prior to the commencement of the hearing, the Parties had agreed to the wording of the Holding Provision which is included in the Amended ZBA. Mr. Toman agreed that in his opinion the Holding Provision in the Amended ZBA is appropriate.

123Mr. Toman testified that the changes to the Amended OPA and Amended ZBA were improvements, however, the Proposed Development has not changed. In his opinion, 12 guest suites is not limited accommodation under the PPS, Greenbelt Plan and RHOP policies and as such, does not represent good planning.

124Mr. Toman also testified that the proposed definition is “brand new” and has not been tested so he remains concerned that uses may be introduced that are not related to agriculture. In cross examination, Mr. Toman agreed that the City has enforcement mechanisms which can be implemented if a use that is not permitted is occurring on a property and that the risk is on the Appellant.

125The City submitted that the Amended OPA and Amended ZBA provide a clearer definition of “Agri-tourism Retreat”, however, there remains a level of confusion. The concern also remains that naturopathic or medical clinic / health professional uses will be made available to guests.

126Mr. Toman testified that if the Tribunal allowed the appeal and approved the Amended OPA and Amended ZBA, City staff would need to review the Amended Instruments to ensure proper form and language was used. In closing submissions, the City submitted that if the Tribunal allowed the appeal the definition of “Agri-tourism Retreat” should be further amended to not include any services from health professionals.

127The Appellant agreed with Mr. Toman and requested that the Tribunal allow the appeal in principle and provide the opportunity for City staff to review the Amended Instruments. However, the Appellant disagreed with the City’s suggestion to further amend the definition of “Agri-tourism Retreat” as this would add confusion in terms of the interpretation of what constitutes a “service” from a health professional. The Appellant submitted that the Amended Instruments as they are before the Tribunal are clear and concise.

128For reasons set out throughout this decision, the Tribunal has found that the use is clearly defined in the Amended Instruments. The City’s suggestion for further refinement was made during closing arguments after all evidence had been tendered. The Tribunal finds that further amending the definition of “Agri-tourism Retreat” does not add clarity to the use. The Amended Instruments were tested against relevant policies during the Hearing and found by the Tribunal to be consistent with and conform to those policies.

FINDINGS

129As agreed by the parties, the Proposed Development is a unique concept and consequently, the parties, nor this Tribunal, could look to case law for guidance on how similar proposals have been treated. The Tribunal agrees with the Appellant that a new use is not being proposed by the Appellant, but rather the Proposed Development is a new way of doing something that is already permitted.

130The Tribunal prefers the Appellant’s submissions and evidence in finding that the Proposed Development may be approved in principle and that final versions of the OPA and ZBA will be prepared following a review by City staff.

131In determining this matter, the Tribunal prefers the land use planning evidence and opinions provided by the Appellant’s experts. The Tribunal was not persuaded by the evidence and opinions provided by the City’s experts. In providing professional expert opinions, the Tribunal found that the Appellant’s experts were considerably more familiar and knowledgeable with the matter and policies. The Tribunal finds that the City did not proffer conclusive evidence that would support the Tribunal denying the appeal.

132The Tribunal agrees with the City that there needs to be specificity regarding the proposed uses and how they are defined. During the course of the Hearing the changes made to the definition and regulations contained in both the Amended OPA and Amended ZBA clarified the proposed use and allowed the Tribunal to gauge the evidence against their consistency and conformity to the relevant planning policies. In doing so, the Tribunal finds that the proposed use is clear and permissible and finds that the Amended Instruments that will facilitate the Proposed Development have appropriate regard for, are consistent with and conform to relevant planning policies and represent good planning in the public interest.

133The Tribunal acknowledges that the Subject Property is located on prime agricultural lands which undergo higher scrutiny during the planning process. With this framework in mind, the Tribunal finds that the Proposed Development is consistent with prime agricultural uses as it will maintain the existing farm operation while at the same time promote organic farming. The Tribunal finds that the size and scale of the Proposed Development conforms with the policy framework and that the primary use of agriculture of the Subject Property will not change if the appeal is allowed. It is noteworthy that Mr. Toman agreed with this statement under cross examination.

134The agritourism use is permitted as of right, the parties were in agreement on this point. The use also has similarities to a hotel/motel and a bed and breakfast. However, as conceded by all parties, this is a unique proposal and does not “fit” the existing definitions in the policy documents. The Tribunal finds that the definition proposed by the Appellant in the Amended Instruments constitutes limited accommodation. The apprehensions about the number of overnight guests and the potential for the provision of medical services has not been demonstrated. The Tribunal did not hear any evidence that medical services were currently being offered or performed on the Subject Property.

135Mr. Toman’s apprehensions about how the new “Agri-tourism Retreat” definition will be interpreted by zoning staff do not amount to planning evidence or opinions. The Tribunal must determine an appeal based on facts and evidence and apprehensions or concerns are not sufficient reasons to deny the appeal. Further, concerns relating to how the building will be laid out and room size will be managed at the site plan approval and building permit stages. The Tribunal recognizes that mere apprehensions are not sufficient for an OPA and ZBA to fail.

136It is of importance to recognize that approval of the OPA and ZBA are not the end of the approvals process. As was correctly pointed out during the course of the Hearing, the Appellant must undergo a site plan approval process with the City prior to any development occurring on the Subject Property. The Tribunal finds that the structure of the Proposed Development is sound, and the majority of the issues can be addressed with further detailed design and minor modifications at the site plan approval stage.

INTERIM ORDER

137The Tribunal orders that the Participant Status granted to each of Andrea Power, Dale Phillips and Troy Smillie is revoked.

138The Tribunal orders that the appeal is allowed in part, on an interim basis, and the Official Plan Amendment and Zoning By-law Amendment set out in Schedules 1 and 2 to this Interim Order are hereby approved in principle.

139The Tribunal will withhold the issuance of its Final Order contingent upon transmission to the Tribunal by the City Solicitor of the final forms of the amendments to the City of Hamilton Official Plan and Zoning By-law No. 05-200. The Tribunal will withhold the issuance of its Final Order to allow the City an opportunity to review and format the final forms of the amendments generally in accordance with Schedules 1 and 2 to this Interim Order.

140If the Parties do not request the issuance of the Final Order within 60 days of the issuance of this Interim Order, the Appellant and the City shall provide a written status report to the Tribunal by that date, as to the timing of the expected submission of the final form of the draft Official Plan Amendment and Zoning By-law Amendment for the issuance of the Final Order by the Tribunal. In the event the Tribunal fails to receive the required status report, the Tribunal may then dismiss the appeal.

141The Tribunal may, as necessary, arrange the further attendance of the parties by Telephone Conference Call to determine the additional timelines and deadlines for the submission of the final form of the instruments and the issuance of the Final Order.

142The Tribunal Member is not seized but will remain available for case management.

“C. Hardy”

C. Hardy

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.

Schedule 1

Schedule 2