Nicholson Walden Inc. v. North Middlesex (Municipality), 2022 CanLII 112760

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

du territoire

November 22, 2022

OLT-22-003861

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant:

Nicholson Walden Inc.

Subject:

Minor Variance

Description:

To reduce MDS I setback from an abutting livestock operation in order to construct a single detached dwelling on an existing lot of record.

Reference Number:

MV-03-2022

Property Address

2095 Mount Carmel Drive

Municipality/UT:

North Middlesex/Middlesex

OLT Case No.:

OLT-22-003861

OLT Lead Case No.:

OLT-22-003861

OLT Case Name:

Nicholson Walden Inc. v. North Middlesex (Municipality)

Heard:

18 October, 2022 by Video Hearing

Parties

Counsel

Nicholson Walden Inc.

(the “Applicant/Appellant”)

Kenneth Strong

Municipality of North Middlesex

1The matter before the Tribunal is an appeal filed by Nicholson Walden Inc. (“Applicant”) against the decision of the Municipality of North Middlesex (“Municipality”) Committee of Adjustment’s (“COA”) decision to deny an application for Minor Variances (“MV”) from Zoning By-law No. 35/2004 (“ZBL”) concerning 2095 Mount Carmel Drive (“subject property”/“subject site”).

2The Tribunal has been advised by the Parties that a settlement has been reached.

LOCATION SITE AND CONTEXT

3The subject site is a vacant lot of record and is the retained portion of the Consent application B308/75 (Excerpt 8) in the County of Middlesex where 2,868 square metres (“m²”) was conveyed from the original lot. A building permit was issued for a mobile home in September 1976, and it was built at 2091 Mount Carmel Dr. The original farmhouse was located on the retained lands. There is no record of when the dwelling on the subject property was demolished. The subject site has 37 metres (“m”) of frontage along Mount Carmel Drive.

4The subject property abuts a single detached dwelling to the west, a cash crop farm to the south and to the east. On the north side of Mount Carmel Drive in the Municipality of South Huron, Huron County, it abuts another cash crop farm. The farm to the east has a single detached dwelling and a barn with an approximate floor area of 706 m². The use of the barn appears to be for storage of recreational vehicles. There is no evidence of livestock in the barn.

STATUS REQUEST

5Prior to the Hearing, the Tribunal has received Party Status requests from David Hodgins and his daughter Emily Hodgins. Mr. Hodgins owns the abutting property with the barn and has raised concerns that the proposed development might hinder his farm operations. When questioned by the Tribunal, Mr. and Ms. Hodgins confirmed that they do not intent to call any expert witnesses at the hearing.

6Given that the Hodgins family will not be calling any witnesses, the Party status request is denied. Alternatively, the Tribunal will grant them the Participant status and will take into the consideration a written statement of Mr. Hodgins, marked as Exhibit 2.

DEVELOPMENT PROPOSAL

7The Applicant is proposing to construct a single detached dwelling on a vacant lot of record and is requesting the Tribunal to authorize a MV to permit a reduction of the Minimum Distance Separation I (“MDS”) from the barn on the abutting farm. The Applicant is requesting to reduce the MDS I to 90 m, whereas 243 m is required.

HEARING

8William Pol, a Registered Professional Planner, was qualified by the Tribunal to provide land use planning opinion evidence in relation to the matter under appeal. Mr. Pol delivered a detailed contextual and land use planning rationale in support of the settlement. In his opinion, due to its size, the subject property is not big enough to be used for farming operations. Thus, the proposed development, will be appropriate use of the subject site.

9Mr. Hodgins owns the abutting property at 2119 Mount Carmel with an area of 40 hectares (“ha”), lot depth of 1007 m, road access to both Mount Carmel Drive and County Road 81, and a vacant existing barn used for recreational vehicle storage.

10Mr. Pol explained that the purpose of MDS I is to minimize the nuisance complaints associated with livestock facilities, particularly the odor. He stated that during his visit to the subject site in August 2022 he did not observe any livestock to be present in the barn of the abutting property.

11In his testimony Mr. Pol considered a few scenarios if Mr. Hodgins were to use the barn to raise livestock. In his witness testimony Mr. Pol stated:

In accordance with the Agricultural A1 Zone, the vacant livestock facility could allow 190 head in the existing 706 m² barns without the need for a planning application. The proposed 90 m setback allows a barn addition of 85 m² and 17 head of cattle. Construction of a new barn with greater capacity or new forms of livestock using contemporary intensive livestock practices would likely be setback a significant distance from the road and the Subject Lands, to reduce the risk of biohazards and contamination from off-farm activities. Based on the existing barns and lot area and depth, the property at 2119 Mount Carmel Drive has sufficient area and depth to locate a variety of intensive livestock types in compliance with the MDS II requirements and approval of the requested variance will not impact future livestock intensive agricultural.

12Mr. Pol has addressed the concern raised by Mr. Hodgins (Exhibit 2), if the assumed covered barn area is 975 m2 for the proposed livestock, the MDS II will apply. He calculated that the required setback for the MDS II would be 86 m (Exhibit 4), within the requested MV.

13Thus, in the opinion of Mr. Pol, the proposed development will not have any negative impact on Mr. Hodgins’ farm operations.

14Mr. Pol took the Tribunal through the applicable planning instruments and four required tests of s. 45(12) of the Planning Act (“Act”). Mr. Pol concluded that the requested MV:

Is consistent with the Provincial Policy Statement 2020;
Is minor in nature as it will not impact the future use of the vacant existing livestock facility nor have a significant impact on new livestock barns;
Is in keeping with the general intent and purpose of the County of Middlesex and Municipality of North Middlesex Official Plans which allows the recognition of existing uses in the zoning by-law;
Is in keeping with the general intent and purpose of the Municipality of North Middlesex Zoning By-law Restricted Agriculture (A2) zone provisions which allows the use of existing lots of record for a single detached dwelling; and
Is appropriate for the development of the lot which has sufficient lot frontage, lot area and municipal services for the development of a single detached dwelling.

15Given that it is a Settlement hearing, the Tribunal notes that the planning evidence in support of the MV, could be found on pages 3 – 15 of Exhibit 3.

ANALYSIS AND FINDINGS

16In its Decision, the Tribunal has taken into consideration the Municipal records, the matters before Council, the Participant statement of Mr. Hodgins and has accepted the uncontested land use planning evidence of Mr. Pol. Based on the Minutes of Settlement and the planning evidence presented by Mr. Pol, the Tribunal finds that the variance is appropriate, is minor in nature and will not have undue impacts on the surrounding properties and meet all four of the tests under s. 45(1) of the Act.

ORDER

17THE TRIBUNAL ORDERS that the appeal is allowed and the variances to By-law No. 35 of 2004, as amended, is authorized subject to the following conditions:

a. That the single detached residential dwelling be constructed no closer than 14 metres (46 ft) from the shared lot line between 2119 Mount Carmel Drive and 2095 Mount Carmel Drive;

b. That the single detached dwelling at 2095 Mount Carmel be constructed with an air conditioning system;

c. That a strip of not less than 1.8 metre wide consisting of a continuous, unpierced hedgerow of evergreens and shrubs, not less than 1.2 metres high at the time of planting shall be required along the shared lot line between 2119 Mount Carmel Drive and 2095 Mount Carmel Drive; and,

d. If Nicholson constructs a single detached dwelling on the Subject Land and offers to sell the Subject Land, then Nicholson shall include the following warning clause in the Agreement of Purchase and Sale before any purchaser is bound thereby:

e. The prospective purchaser is advised that the property is situated in an existing agricultural area and adjacent to a farming operation located at 2119 Mount Carmel Drive that may include livestock and the storage of nutrient on the 2119 Mount Carmel Drive property, which might cause odor and other nuisance impacts from time to time associated with a normal farming operation. The prospective purchaser is also advised that the single detached dwelling does not meet the required minimum distance separation requirements (the MDS I) from the agricultural buildings located at 2119 Mount Carmel Drive in 2022, as recommended by the Ontario Ministry of Agricultural Food and Rural Affairs.

f. If Nicholson finds an abandoned well on the Subject Land then such abandoned well shall be decommissioned.

“P. Tomilin”

P. Tomilin

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.