Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
April 05, 2022
CASE NO(S).:
OLT-22-002091
(Formerly PL120217 et al)
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Bromont Homes Inc.
Appellant:
Kerry L.W. Doughty
Appellant:
Ferma Aggregates Inc.
Appellant:
Jennifer Graham; and others
Subject:
Official Plan
Municipality:
City of Kawartha Lakes
OLT Case No.:
OLT-22-002091
Legacy Case No.:
PL120217
OLT File No.:
OLT-22-002091
Legacy File No.:
PL120217
OLT Case Name:
Graham v. Ontario (Municipal Affairs and Housing)
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Catherine Gravely
Appellant:
J.Stollar Construction Limited
Appellant:
Ministry of Municipal Affairs and Housing
Subject:
Proposed Official Plan Amendment No. 15
Municipality:
City of Kawartha Lakes
OLT Case No.:
OLT-22-002091
Legacy Case No.:
PL151086
OLT File No.:
OLT-22-002091
Legacy File No.:
PL151086
OLT Case Name:
Gravely v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Catherine Gravely
Appellant:
J.Stollar Construction Limited
Appellant:
Ministry of Municipal Affairs and Housing
Subject:
Proposed Official Plan Amendment No. 15
Municipality:
City of Kawartha Lakes
OLT Case No.:
OLT-22-002091
Legacy Case No.:
PL151086
OLT File No.:
OLT-22-002091
Legacy File No.:
PL151086
OLT Case Name:
Gravely v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Catherine Gravely
Appellant:
J. Stollar Construction Limited
Appellant:
Ministry of Municipal Affairs and Housing
Subject:
Proposed Official Plan Amendment No. 17
Municipality:
City of Kawartha Lakes
OLT Case No.:
OLT-22-002091
Legacy Case No.:
PL160076
OLT File No.:
OLT-22-002091
Legacy File No.:
PL160076
OLT Case Name:
Gravely v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
2358493 Ontario Inc
Appellant:
BARMMAR Investments Ltd. & BMMB Investments Ltd.
Appellant:
Bromont Homes Inc.
Appellant:
Comhold Investments Ltd.; and others
Subject:
Proposed Official Plan Amendment No. OPA 13
Municipality:
City of Kawartha Lakes
OLT Case No.:
OLT-22-002091
Legacy Case No.:
PL171407
OLT File No.:
OLT-22-002091
Legacy File No.:
PL171407
OLT Case Name:
Gravely v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Comhold Investments Ltd.
Appellant:
Catherine Gravely
Appellant:
J. Stollar Construction Limited
Appellant:
William Westcott
Subject:
Proposed Official Plan Amendment No. OPA 14
Municipality:
City of Kawartha Lakes
OLT Case No.:
OLT-22-002091
Legacy Case No.:
PL171408
OLT File No.:
OLT-22-002091
Legacy File No.:
PL171408
OLT Case Name:
Gravely v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
2358493 Ontario Inc
Appellant:
BARMMAR Investments Ltd. & BMMB Investments Ltd.
Appellant:
Bromont Homes Inc.
Appellant:
Catherine Gravely; and others
Subject:
Proposed Official Plan Amendment No. 16
Municipality:
City of Kawartha Lakes
OLT Case No.:
OLT-22-002091
Legacy Case No.:
PL171409
OLT File No.:
OLT-22-002091
Legacy File No.:
PL171409
OLT Case Name:
Gravely v. Kawartha Lakes (City)
Heard:
March 21, 2022 by video hearing
APPEARANCES:
Parties
Counsel
City of Kawartha Lakes (“City”)
Denitza Koev
Flato Lindsay Community Inc. (“Flato”)
Katarzyna Sliwa
Tom Halinski
Diana Betlej
DECISION DELIVERED BY T. PREVEDEL AND STEVEN COOKE AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The purpose of this Hearing is to deal with the remaining Phase 2 Issues between the City and Flato, namely Issues 40-N and 41-N, listed as follows:
Issue 40-N: How was the “Prime Agricultural” designation assigned to the lands (when other lands bordering Lindsay received Rural designations) in the absence of a LEAR study.
Issue 41-N: Is the “Prime Agricultural” designation of the lands appropriate for the use of the site over the 20- and 30-year planning horizon? Or is the Rural designation more appropriate given the location of the parcel, the surrounding uses/parcel fabric, and the composition of the soils (per the Agricultural Land Evaluation)
The Hearing
2The Tribunal heard from three (3) witnesses on behalf of the Parties. All witnesses were qualified to provide expert evidence in their respective fields, as follows:
Flato Witnesses
Matthew Cory – land use planning
Robert Clark – Agrologist
City’s Witness
Rory Baksh – land use planning
3The Joint Document Book dated January 11, 2021 was submitted as Exhibit 1. The Flato Joint Document dated March 23, 2022 was submitted as Exhibit 2, with the exception of Tab 5 which contained the Witness Statement of Michael Testaguzza as he was not present to be cross-examined. Witness Statements for Rory Baksh dated November 6, 2020, and January 21, 2022, as well as a Witness Statement for Robert Clark were also submitted as subsequent Exhibits.
Planning Evidence
Matthew Cory
4Mr. Cory described the subject property for the Tribunal as being a 50.26-hectare (“ha”) parcel in total on the eastern boundary of the Lindsay settlement area with frontage on the east side of Highway 36 (Verulam Road North) and on the north side of Pigeon Lake Road.
5He explained that the property is divided into two sections, which are separated by an existing north-south drainage swale. The western portion, having direct frontage on Highway 36, consists of 7.3 ha and is currently designated Highway Commercial in the City of Kawartha Lakes’ Official Plan (“CKLOP”). This western portion of land will be dealt with at Phase 4 of this Hearing and is not at issue currently.
6Mr. Cory further explained that the eastern portion of the Flato lands consists of the remaining 42.95 ha . This will be referred to as the subject property, it is currently designated as “Prime Agricultural” in the CKLOP, and this designation is what is under appeal at this Hearing.
7Mr. Cory then took the Tribunal to the original Township of Ops Official Plan (“OP”), which designated the subject lands as “Highway Commercial” along Highway 36 and “Agriculture” for the remainder of the lands, as illustrated in the following excerpt from the OP document:
8He further explained that, during the most recent Official Plan Review for the City of Kawartha Lakes, the City then designated the subject lands (eastern portion) as “Prime Agricultural”, while retaining the “Highway Commercial” designation for the western portion.
9Mr. Cory then submitted that the City Council endorsed Official Plan Amendment No. 13 (“OPA 13”) in December 2015, which added a dual designation to the subject lands by means of a “Future Development Area” (“FDA”) overlay and retained the “Highway Commercial” designation on the western portion. Mr. Cory opined that the proposed FDA indicated an intent by City staff that these lands were envisioned to be developed at a future date. The Ministry of Municipal Affairs and Housing (“MMAH”) appealed OPA 13 on the grounds that the FDA was an inappropriate designation.
10The Tribunal notes that, during cross examination, Mr. Cory agreed that the FDA designation was removed by order of the Tribunal in order to resolve the MMAH appeal.
11Mr. Cory also reminded the Tribunal that a Minister’s Zoning Order (“MZO”) was issued on January 21, 2022, which included a significant portion of the subject lands, providing for a range of urban residential densities subject to a future Development Agreement and planning process.
12Mr. Cory then spoke to the heart of the issue, that being how or why the City made the decision to designate the eastern portion of the subject lands as “Prime Agricultural” without the benefit of a Land Evaluation and Area Review (“LEAR”) study.
13Mr. Cory referred to the Agricultural Land Evaluation (“ALE”) undertaken by Robert Clark, an Expert in the field of Agrology, and opined that the conclusions of this ALE clearly indicated that the subject lands are not prime agricultural due to a number of constraints that restrict expansion of agricultural activities, such as soils, topography and drainage constraints.
14Mr. Cory, from a policy context, provided the Tribunal with an overview of the policies contained within the Provincial Policy Statement (“PPS”) and the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”).
15With respect to the PPS, Mr. Cory informed the Tribunal about Policy 2.3.2, which directs:
planning authorities to designate prime agricultural areas and specialty crop areas in accordance with guidelines developed by the province, as amended from time to time.” The same policy encourages planning authorities to “use an agricultural system approach to maintain and enhance the geographic continuity of the agricultural land base and the functional and economic connections to the agri-food network.
16Mr. Cory stated that s. 4.2.6.8 and 4.2.6.9 of the Growth Plan, which provides that municipalities may conduct further refinement of provincial mapping of the agricultural land base based on implementation guidance issued by the province.
17Mr. Cory informed the Tribunal that the most current provincial guideline regarding the implementation procedures of refining agricultural land mapping, called the “Implementation Procedures for the Agricultural System in Ontario’s Greater Golden Horseshoe” (“Provincial Implementation Procedures”), which was issued by the Ministry of Agriculture, Food and Rural Affairs (“OMAFRA”) in March 2020. Section 3.3.2.1 of the Provincial Implementation Procedures provides that the municipality may refine prime agricultural areas under certain specific circumstances; one of the circumstances includes making minor technical adjustments to the mapping of prime agricultural areas.
18Mr. Cory submitted that the other lands located south of the urban settlement boundary for Lindsay have been designated as Rural in the Official Plan review, however the attributes of these lands such as soil capabilities, proximity to urban uses and investments in non-agricultural uses closely resemble the subject lands.
19Mr. Cory opined that designating the subject lands as prime agricultural has not been properly justified by the City and in order to maintain consistency, the subject lands should not be designated as prime agricultural.
20Mr. Cory submitted that Prime Agricultural Areas as defined by the PPS includes Prime Agricultural lands as well as associated Canada Land Inventory Class 4 through 7 lands. The definition also provides that Prime Agricultural areas may be identified through an alternative agricultural lands evaluation system approved by the Province. There were, however, no specific policies from the Province that required a LEAR Study in order to designate lands “Prime Agricultural” in the PPS 2020, Growth Plan 2019 or the Provincial Implementation Procedures.
21He also told the Tribunal that, given that municipalities do not need to conduct a LEAR Study in order to designate Prime Agricultural lands, the ALE conducted by Mr. Clark provides the most appropriate justification for the designation of the Subject Property. He opined that the Subject Property, based on Mr. Clark’s analysis, is not suitable for the “Prime Agricultural” designation due to its low soil quality and capability, as well as the contextual constraints around the site preventing expansion of additional agricultural activities.
Rory Baksh
22Mr. Baksh submitted that the “Prime Agricultural” designation for the subject lands has been in force since the Ministry approved the CKLOP in 2012. He also explained that OPA 13 was a general amendment, intended to provide umbrella policies for the five community secondary plans. He explained that, even though an FDA overlay was applied to the subject lands, the underlying designation was still “Prime Agricultural”
23Mr. Baksh submitted that OPA 13 did not examine or speak to either rural or agricultural designations, and further confirmed that the FDA overlay was removed by order of the Tribunal.
24Mr. Baksh then provided the Tribunal with a historical overview of how he assumed the “Prime Agricultural” designation came to be applied to the CKLOP 2012. He took the Tribunal to the Victoria County Official Plan (“VCOP”), specifically Policy 6.1.1.1 which indicated that the existing Official Plans for the Town of Lindsay and the Township of Ops were to be considered Subsidiary Plans to the VCOP.
25He then opined that the authors of the CKLOP turned their attention from the VCOP to the Township of Ops OP, where the subject lands were designated and zoned as “Agriculture”. Although Mr. Baksh stated that he was not personally involved throughout the development of the CKLOP, he provided the Tribunal with his opinion that he “thought” that was how the “Prime Agricultural” designation came to be.
26Mr. Baksh made particular reference to the MZO on a portion of the subject lands which provides for a full range of residential and commercial uses. He opined that re-designating the subject lands to “Rural” would create a conflict with the MZO. He also pointed out that there is no development proposal accompanying the request for re-designation.
27Mr. Baksh stated that the City is intending to embark on a Municipal Comprehensive Review to bring their OP into compliance with the new Growth Plan targets for the year 2051. He opined that this review process would be the appropriate vehicle to consider any re-designations.
28With respect to the ALE report prepared by Mr. Clark, Mr. Baksh opined that this report would form a valuable input to the MCR process.
29Mr. Baksh concluded by stating, in his professional opinion, maintaining the “Prime Agricultural” designation on the subject lands is appropriate, and considering a re-designation to “Rural” is premature at this time.
30Under cross examination, Mr. Baksh agreed that, apart from a review of the VCOP and the Township of Ops OP and zoning, there was no further effort made by the City to inform the transmutation from an “Agriculture” to a “Prime Agricultural” designation in the CKLOP.
31Mr. Baksh also agreed that the ALE undertaken by Mr. Clark was, in fact, the first and only effort to study the agricultural designations.
The Agricultural Land Evaluation
Both of the land use planners were in agreement that the ALE prepared by Mr. Clark in 2016 was the only study undertaken to review the agricultural attributes of the subject lands.
32Mr. Clark took the Tribunal to his ALE, which he was retained to undertake in the absence of a formal LEAR study by the City. He provided the Tribunal with a thorough and comprehensive overview of the technical analysis and field work which was undertaken during his review of the subject property.
33He explained that, in preparing the ALE, he undertook a policy review, reviewed available mapping, examined aerial photography of a larger area with a one-kilometre radius, reviewed potential conflicts related to Minimum Distance Separation for livestock operations, researched active farm tax rebates in the area and conducted one test pit for every five (5)-acre segment of the subject lands.
34As noted above, Mr. Clark explained that a ground-level land use survey of the subject lands was undertaken, including agricultural uses, within a 1,000-metre area around the subject lands. The purpose of the survey was to identify active and vacant farmland, active livestock operations, vacant or empty livestock barns, cropland utilization, areas of pastureland, local investment in farming including buildings, woodlot management and field management.
35Mr. Clark also conducted a field survey, which consisted of a series of shovel test pits and an interview with Less Davidson, who has farmed the lands for the past ten years. In accordance with OMAFRA guidelines for soil surveys, test pits were dug to a minimum depth of 20 inches or until refusal to confirm the soil type and characteristics. Visual observations of the soil strata, texture, stoniness was recorded as well as the land use characteristics of the immediate area, with particular attention to those criteria which determines soil capabilities such as slope, stoniness, drainage and variability.
36Mr. Clark told the Tribunal that Mr. Davidson described the lands as challenging to farm primarily due to the wetness and persistent surface water in the low-lying areas. He stated that spring planting was often delayed and harvesting could be challenging. Mr. Davidson also provided data showing the recorded yields for the past five years, indicating a persistent lower than average yield for corresponding crops in Victoria County.
37Mr. Clark explained that he had reviewed the original Victoria County soil survey map, and noticed some irregularities in the mapping with respect to “Prime Agricultural” areas. He also reviewed the available OMAFRA agricultural mapping, but explained that this mapping is very high level and needs to be refined at the site specific level.
38Mr. Clark also referred to the PPS definition of “Prime Agricultural” areas, noting that generally they consist of Class 1-3 soils, not Class 4 and above. He referred to Policy 2.31.
39Mr. Clark’s technical review concluded that most of the subject property was Class 4 farmland, with some minor areas of Class 5.
40Mr. Clark also offered his professional opinion that, although not mandated by provincial policy, a “Prime Agricultural” area should be a minimum of 250 ha in order to be effective.
41He opined that “you will know it’s a prime agricultural area when you drive through it”
42Mr. Clark concluded by offering his professional opinion that the subject lands should not be considered as “Prime Agricultural” and a more suitable designation would be “Rural”.
Analysis and Disposition
43From a policy context, the issues before the Tribunal require the general determinations of whether the proposed re-designation of the subject lands has sufficient regard to the provincial interests listed in s. 2 of the Planning Act, is consistent with the Provincial Policy Statement 2020, conforms to the Growth Plan for the Greater Golden Horseshoe and in general represents good planning and is in the public interest.
44During the course of this Phase 2 Hearing, it was confirmed that the existing designation for the subject lands is “Prime Agricultural”.
45However, the Tribunal prefers the evidence of Mr. Cory, in that there was no clear justification to support the transmutation of the original “Agriculture” designation in the Township of Ops OP to the “Prime Agricultural” designation which is now enshrined in the CKLOP 2012.
46The Tribunal notes that Policy 2.3.1 of the PPS states that:
Prime agricultural areas shall be protected for long-term use for agriculture. Prime agricultural areas are areas where prime agricultural lands predominate. Specialty crop areas shall be given the highest priority for protection, followed by Canada Land Inventory Class 1, 2, and 3 lands, and any associated Class 4 through 7 lands within the prime agricultural area, in this order of priority.
47Furthermore, the Tribunal finds that the ALE undertaken by Mr. Clark, combined with his oral and written testimony at this Hearing, sufficiently confirms that the subject lands should not be considered as “Prime Agricultural” lands.
48Over and above the technical analysis, the Tribunal notes that Mr. Davidson, who has actively farmed the subject land, has stated that spring plantings are delayed, harvesting is challenging, and the crop yields are well below average.
49On the basis of the uncontested evidence presented by Mr. Clark, the Tribunal finds that the appropriate designation for the subject lands should be “Rural”.
ORDER
50The Tribunal Orders that the Appeal is allowed, and that the subject lands are to be re-designated as “Rural”, and that Schedule A-3 of OPA 13 be revised accordingly.
“T. Prevedel”
T. PREVEDEL
MEMBER
“Steven Cooke”
STEVEN COOKE
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.