Mels v. Southwold (Township), 2022 CanLII 13983

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 25, 2022

CASE NO(S).: OLT-21-001472

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

Applicant and Appellant: Michael Mels

Subject: Minor Variance

Property Address/Description: 35246 Fourth Line

Variance from By-law: 2011-14

Municipality: Township of Southwold

Municipal File No.: MV 2021-06

OLT Lead Case No.: OLT-21-001472

OLT Case No.: OLT-21-001472

OLT Case Name: Mels v. Southwold (Township)

Heard: in writing

APPEARANCES:

Parties	Counsel
John Fife, Brad Fife and Fife Farms Ltd.	Paula Lombardi
Michael Mels	Self-Represented

DECISION DELIVERED BY R.G.M. MAKUCH AND ORDER OF THE TRIBUNAL

BACKGROUND

1Michael Mels (“Applicant/Appellant”) made an application for the authorization of a minor variance providing relief from Section 3.2 of the Township of Southwold (“Township”) Zoning By-law No. 2011-14 to permit the construction of a single detached dwelling having a footprint area of 276 square metres (2,970 square feet) with a reduced Minimum Distance Separation (“MDS1”) of 300 metres (984.3 feet) from the minimum required 537.24 metres (1,762.6 feet).

2The application was refused and subsequently appealed to this Tribunal.

3The Tribunal scheduled a one-day hearing to occur Tuesday, March 8, 2022.

4Counsel for John Fife, Brad Fife and Fife Farms Ltd. (“Fife Farms”) requested that they be granted party status respecting this appeal and also requested that the above hearing be adjourned on the grounds that counsel was not available on that date. The request for an adjournment was denied because consent was not obtained from the Applicant/Appellant. The Tribunal then directed that the motion be heard in writing.

MOTION

5The materials before the Tribunal on this Motion consist of the following:

1. Fife Farms Motion Record dated February 14, 2022, including the Affidavit of Andrea Edward, sworn February 14, 2022;
2. Appellant’s Response to Motion dated February 18, 2022;
3. Fife Farms Reply dated February 22, 2022 to a Response by Applicant/Appellant; and,
4. Fife Farms Book of Authorities dated February 22, 2022.

6The Motion is for an Order of the Tribunal:

a) adjourning the hearing scheduled to commence on March 8, 2022; b) abridging the time for serving and filing this motion; and c) granting John Fife, Brad Fife and Fife Farms Ltd. party status in this matter.

Party Status

7Fife Farms maintains that it made a request for party status in this matter on February 14, 2022, in accordance with the Tribunal’s Rules of Practice and Procedure (“Rules”) and meets its requirements for being granted status in that it:

a) Has a genuine interest in the appeal as it is the abutting adjacent property owner to the Applicant/Appellant’s property subject to the minor variance application; b) the application for minor variance, specifically, the reduction in the MDS requirements, directly impacts Fife Farms and its agricultural operations; c) Fife Farms has retained legal counsel and intends to bring forward the evidence of a professional land use planner to provide expert opinion evidence respecting the impacts arising from the request for a reduction in the MDS requirements; d) Fife Farms interest would not otherwise be protected through participant status; and, e) the Township may not be participating in the hearing resulting in the possibility that the hearing would be uncontested without the participation of Fife Farms. This presents a real and significant risk that any concerns with respect to the impacts of the minor variance and reduction of the MDS standards on Fife Farms would not be brought before or presented to the Tribunal.

8The Applicant/Appellant does not oppose Fife Farm’s request for party status.

Adjournment

9On December 16, 2021, Fife Farms retained Paula Lombardi as legal counsel in order to seek party status in the hearing relating to this matter.

10Fife Farms owns and operates an agricultural farming operation located at 35360 Fourth Line Road and regularly engages in normal farm practices including the maintenance and operation of a nutrient management pond that is situated on its property. The Fife Farms’ property is located immediately adjacent to the subject property.

11Fife Farms and its representatives made submissions before the Committee of Adjustment opposing the Applicant/Appellant’s application for authorization of a minor variance due to what it alleges will be negative impacts associated with the proposed reduction to the Minimum Distance Separation (”MDS”) standards from the proposed single detached dwelling to the Fife Farms’ property and barns. The MDS formulae are the land use planning tools implemented by the Ontario Ministry of Agriculture, Food and Rural Affairs (“OMAFRA”) and used to determine the appropriate set back distances between various farming activities and surrounding land uses including residential land uses.

12The objective of the MDS is to minimize land use conflicts from incompatible land uses and mitigate nuisance complaints relating to any normal farm practices engaged in at the Fife Farms.

13Fife Farms has a party interest in the appeal as any deviation, alteration or reduction to the required MDS separation distances results in impacts on the existing farming operation and potentially may result in the neighboring land uses being incompatible with the existing farming operation and the Applicant/Appellant’s proposed construction of a single detached dwelling

14Fife Farms maintains that it would be significantly prejudiced if the requested short adjournment is not granted as Fife Farms would not be represented by legal counsel.

15Counsel maintains that this motion is being brought in accordance with the Tribunal’s Rules and is made more than 15 days in advance of the date set for the hearing. Counsel further maintains that the prejudice to Fife Farms if the hearing is not adjourned for a short period of time far exceeds and outweighs the prejudice to the Applicant/Appellant.

16The Applicant/Appellant does not consent to an adjournment or rescheduling or any delay in this matter because he maintains that any adjournment would put undue financial stress on him as it had purchased this property with the intent of building his retirement home. He states that he paid “building lot price” and not “farm land price” for the property and has been paying mortgage interest ever since and that every month that goes by more interest is paid with no assurance that he will ever be able to build or recoup his costs.

ANALYSIS AND FINDINGS

17The Tribunal notes that the Applicant/Appellant did not object to Fife Farms’ request for party status and finds that Fife Farms meet the criteria for being granted party status in this matter.

18The Tribunal has carefully considered the submissions of counsel for Fife Farms as well as those from the Applicant/Appellant and finds that there are sufficient and appropriate reasons to grant the short adjournment requested for the reasons that follow.

19In considering a request for adjournment, the Tribunal must consider:

1. any serious consequences or prejudice if their request is not granted;
2. the timeliness of the request;
3. the length of the proposed adjournment; and
4. any previous adjournment requests.

20In this case, the Tribunal finds that it is in the public interest to grant this short adjournment request. While there is always some prejudice to a proponent for development flowing from any adjournment of a hearing, the Tribunal finds in this case that the prejudice to Fife Farms exceeds or outweighs any prejudice to the Applicant/Appellant. Fife Farms raises some serious issues for adjudication by the Tribunal relating to potential negative impacts on the Fife Farms property and business, which may not be raised if the adjournment is not granted.

21There is no certainty that the municipality will participate in the hearing. Fife Farms has indicated that it intends to present a credible challenge to the application in order to defend its interests. The Tribunal finds that it should have that evidence in order to conduct a proper adjudication of the issues in this case.

22The request for the adjournment has been made in a timely manner, with the request being made expeditiously as soon as the scheduling conflict was identified, and is brought in compliance with the Tribunal’s Rules.

23The length of the adjournment is quite short and will minimize any prejudice to the Applicant/Appellant.

24The Tribunal finds that it is in the public interest to grant the adjournment.

ORDER

25The Tribunal orders that:

1. John Fife, Brad Fife and Fife Farms Ltd. be granted party status to this matter; and
2. The hearing be adjourned to Wednesday, March 23, 2022 by video.
3. Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/709076365

Access code: 709-076-365

Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line:+1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is 709-076-365.

Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

26There will not be any further notice.

“R.G.M. Makuch”

R.G.M. MAKUCH VICE-CHAIR

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.