Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 03, 2022
CASE NO(S).: OLT-21-001328
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Fleurish Cannabis Inc.
Subject: By-law No. 62-21
Municipality: Municipality of North Grenville
OLT Case No.: OLT-21-001328
OLT File No.: OLT-21-001328
OLT Case Name: Fleurish Cannabis Inc. v. North Grenville (Mun.)
Heard: May 4, 2022 by video hearing
APPEARANCES:
Parties
Counsel
Fleurish Cannabis Inc. (“Appellant”)
Jacob Polowin
Municipality of North Grenville (“Municipality”)
Tony Fleming
MEMORANDUM OF ORAL DECISION DELIVERED BY S. MANN AND HUGH S. WILKINS ON MAY 4, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is an Appeal by the Appellant pursuant to s. 34(19) of the Planning Act (“Act”) regarding the passing of Zoning By-law No. 62-21 (“ZBLA”) by the Municipality, which amended the Municipality’s Zoning By-law No. 50-12,. The Appellant’s grounds for appeal are on the basis that the ZBLA is arbitrary, unsupported by adequate study and seeks to overly regulate the Appellant’s business.
2The Appellant is the owner of 2725 Country Road 20 Road, located in the Municipality of Grenville (“Site”), operating cannabis production and processing facilities (“CPPF”). This existing land use is protected as a legal non-conforming use, however, as a result of the ZBLA, as it was enacted by the Municipality, the Appellant is restricted from further expansion of its CPPF on the Site.
3Prior to commencement of this hearing, the parties entered into private settlement talks culminating in Minutes of Settlement being executed on April 25, 2022 (“MOS”). The result of the MOS is the amending of the ZBLA to create a form both parties have agreed to (“Amended ZBLA”). The Municipality and the Appellant jointly request that the Tribunal approve the Amended ZBLA.
THE SETTLEMENT HEARING
4The following materials were received and marked as Exhibits by the Tribunal at the Hearing:
Exhibit 1 – Affidavit of Service by Amy Martin
Exhibit 2 – Book of Documents of the Municipality
5Amy Martin, Director of Planning and Development for the Municipality and Candidate Member of the Ontario Provincial Planners Institute and Canadian Institute of Planning testified at the Hearing in support of the Parties’ settlement and the Parties’ requested Amended ZBLA, appended as Attachment 1 hereto. Ms. Martin was qualified by the Tribunal to provide opinion evidence on land use planning matters.
6Ms. Martin provided land use planning evidence and rationale to the Tribunal regarding the Amended ZBLA, its effect on the Appellant and the terms of the MOS agreed upon by both parties. Ms. Martin’s uncontested planning evidence demonstrated the Amended ZBLA constitutes good planning and conforms to all applicable planning policies.
7The Municipality, following the decriminalization of cannabis by the Federal Government in 2018, created an Interim Control By-law on August 27, 2019 (“ICBL”) in order to prohibit future establishment of CPPFs until the Municipality had time to review the matter. During the period of the ICBL, the Municipality undertook a study to prepare policy as it pertains to new and establishing CPPFs and related facilities. The study led to the creation of the ZBLA, passed on July 27, 2021. Following passage of the ZBLA, an Appeal was filed by the Appellant on August 31, 2021.
8The ZBLA regulates use of land, buildings and structures in the Municipality in order to define and provide zoning provisions in relation to CPPF. The ZBLA amends the Municipality’s existing Comprehensive Zoning By-law No. 50-12 to add in definitions and provisions pertaining to CPPFs and related uses to sensitive lands and finally establishes appropriate locations for CPPFs including establishment of a 150 meter setback from sensitive lands. Further, the ZBLA requires site plan control as a mechanism for regulating CPPF and related facilities.
Minutes of Settlement
9The parties have jointly requested that the Tribunal allow the appeal in part in order enact the Amended ZBLA, which creates site-specific zoning regulations for the Site in order to recognize setbacks to regulate any further expansion. The setbacks established in the MOS allow the Appellant to reasonably expand its CPPF facility on site while placing more onerous setback requirements. In addition, the Amended ZBLA will limit the CPPF related uses on the Site to exclude outdoor growth or storage, while remaining performance standards are not altered.
Planning Analysis
10Ms. Martin opined that the Amended ZBLA has regard for matters of provincial interest as required by s. 2 of the Act. The policies allow for the protection of ecological systems and agricultural resources. In addition, she opined that it is consistent with the Provincial Policy Statement, 2020 (“PPS”) as it allows for efficient development and land use patterns by allowing the established facility on the Site to conform and expand within reason. The CPPF on the Site also creates a diversification of the economic base and employment opportunities within the Municipality. In regard to the United Counties of Leeds Official Plan (“UCLOP”) and the North Grenville Official Plan (“NGOP”), she opined that the Amended ZBLA achieves the goal of economic and employment development for both the County and the Municipality. She said the Site’s operation as a CPPF establishes a new economic and employment source to the area, aided by its proximity to Highway 416.
FINDINGS AND DISPOSITION
11The Tribunal accepts the uncontradicted planning evidence and opinions of Ms. Martin and finds that the Amended ZBL has regard for provincial interest, is consistent with the PPS and conforms to both the UCLOP and NGOP.
ORDER
12The Tribunal Orders that the appeal against By-law No. 62-21 is allowed in part and By-Law No. 50-12, as amended, is amended as set out in Attachment 1 to this Order. In all other respects, the Tribunal orders that the appeal is dismissed.
“S. Mann”
S. MANN
MEMBER
“Hugh S. Wilkins”
HUGH S. WILKINS
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.
ATTACHMENT 1
THE CORPORATION OF THE MUNICIPALITY OF NORTH GRENVILLE
BY-LAW NO. 62-21
A By-Law to Amend By-Law 50-12, as amended,
Being a By-Law to Regulate the Use of Land and Use of Buildings and Structures
Within the Municipality of North Grenville, to Include Definitions and Zoning Provisions Pertaining to Cannabis Processing and Production Facilities Applicable to All Lands Within the Municipality of North Grenville
WHEREAS By-Law 50-12, as amended, regulates the use of land and the use and erection of buildings and structures within the Municipality of North Grenville;
AND WHEREAS the Council of the Municipality of North Grenville deems it advisable to amend its current Zoning By-Law provisions;
AND WHEREAS the Council of the Corporation of the Municipality of North Grenville has determined that the current zoning provisions should be amended with a by-law;
NOW THEREFORE the Council of the Corporation of the Municipality of North Grenville enacts as follows:
That the area affected by this by-law is all lands within the geographic Municipality of North Grenville.
That Section 5 of By-law 50-12, as amended is hereby further amended by adding the following new definitions to Section 5 and renumbering accordingly, as follows:
“AIR TREATMENT CONTROL” shall mean the functional use of an industrial grade multi-stage carbon filtration system, or similar technology, to reduce and/or treat the emission of pollen, dust and odours expelled from a facility and sized accordingly in comparison to the facility it serves as designed by a qualified person.
“CANNABIS” shall mean a genus of flowering plants in the family Cannabaceae. Synonyms include but are not limited to marijuana and marihuana. This definition does not include the industrial or agricultural production of hemp which is a source of food stuffs (i.e. hemp milk, hemp seed, hemp oil etc.), fiber or biofuels.
“CANNABIS, CULTIVATION” means the authorized growing of cannabis plants and harvesting material from those plants as well as those ancillary activities authorized under the Cannabis Act of Canada.
“CANNABIS, MICRO-CULTIVATION” means the authorized growing and harvesting of cannabis up to a maximum plant surface area of 200 square metres of cannabis plants, as well as ancillary activities authorized under the Cannabis Act of Canada
“CANNABIS, MICRO-PRODUCTION” means the manufacturing of cannabis or cannabis products, up to a maximum of 600 kg of dried cannabis in 1 calendar year as permitted by the Cannabis Act of Canada. For clarity, this definition includes a facility used for the cultivation, producing, processing, destroying, packaging, storage, distribution or analytical testing and research of cannabis and cannabis products but does not include the retail sale of cannabis.
“CANNABIS PRODUCTION AND PROCESSING FACILITY” shall mean any land, building or structure used for cultivating, producing, processing, destroying, storing, packaging and/or distribution or analytical testing and research of cannabis. A Cannabis Production and Processing Facility shall not include growth, production and processing of four (4) or less cannabis plants on a lot for personal use and does not include the retailing of cannabis or cannabis products under a retail operator licence issued under the Cannabis Licence Act, 2018. This definition does not include licensed agricultural cultivation in a field or cultivation within a greenhouse-cannabis.
“GREENHOUSE-CANNABIS” shall mean a building whose roof and sides are made largely of glass or other transparent or translucent material for the growing of cannabis plants in which the temperature and humidity can be regulated for the cultivation of cannabis for subsequent processing and sale.
“NURSERY, CANNABIS” means the authorized growing of cannabis plants to produce the starting material (seed and seedlings) and associated activities;
“SENSITIVE LAND USE” shall mean any building, structure, use or associated amenity area (indoor or outdoor) where humans may be adversely affected by adjacent industrial type land uses, including but not limited to residential uses, day care facilities, places of worship, schools or playgrounds.
- That Section 6 of By-law 50-12, as amended is hereby further amended by adding the following provisions and renumbering accordingly, as follows:
CANNABIS PRODUCTION AND PROCESSING FACILITY PROVISIONS:
a) Notwithstanding any other provision of this By-law, cannabis production
and processing shall be subject to the following provisions:
The cultivation and processing of cannabis is not permitted outdoors.
i. No building or structure or portion thereof used for cannabis production and processing purposes that is equipped with air treatment control shall be located within 150 metres from a sensitive land use.
ii. No building or structure or portion thereof used for cannabis production and processing purposes that is not equipped with air treatment control shall be located within 300 metres from a sensitive land use.
iii. A building or structure used for security purposes for cannabis production and processing may be located in the required front yard and does not have to comply with the required minimum front yard, side yard and rear yard setbacks.
iv. Outdoor storage is prohibited on the property on which the cannabis production and processing is located.
v. All development in relation to the establishment of, or expansion to, a cannabis processing and production facility will be subject to Site Plan Control.
CANNABIS MICRO PRODUCTION, MICRO-CULTIVATION AND NURSERY
b) Notwithstanding any other provisions of this By-law, any Cannabis micro-production, cannabis micro-cultivation and cannabis nursery shall be subject to the following provisions:
i. All Cannabis Micro-cultivation, Cannabis Micro-processing and Cannabis Nursery activities must occur within an enclosed building;
ii. No outdoor cultivation, production or storage is permitted;
iii. The minimum lot area for a Cannabis Micro-cultivation, Cannabis Micro-processing and Cannabis Nursery facility is 4,000 square metres; and
iv. All facilities must have an air treatment control system so that any odour associated with the cannabis use cannot be detected beyond the property line of the lot on which the Cannabis Micro-cultivation, Cannabis Micro-processing and Cannabis Nursery is located.
v. No building or structure or portion thereof used for cannabis
production and processing purposes that is equipped with air treatment
control shall be located within 150 metres from a sensitive land use.
vi. No building or structure or portion thereof used for cannabis
production and processing purposes that is not equipped with air treatment control shall be located within 300 metres from a sensitive land use.
vii. Cannabis Micro-cultivation, Cannabis Micro-processing and Cannabis Nursery facilities will be restricted to a maximum of 200 square metres.
viii. All development in relation to the establishment of, or expansion to,
a Cannabis Micro-cultivation, Cannabis Micro-processing and Cannabis Nursery will be subject to Site Plan Control.
CANNABIS CULTIVATION – AGRICULTURE ZONE
c) Notwithstanding any other provisions of the By-law, Cannabis Cultivation on agricultural lands are limited to the Agriculture Zone and are subject to the following conditions:
i. Maximum combined gross floor area of all building(s) associated with Cannabis Cultivation is 1000 square metres;
ii. No building or structure associated with Cannabis Cultivation in the Agriculture Zone shall be located within 100 m of any lot line;
iii. No security fencing greater than 1.2 metres in height may be located within 30 m of any lot line;
iv. Cannabis cultivation is permitted in a Greenhouse – Cannabis.
v. A maximum of four Greenhouses- Cannabis shall be permitted.
vi. No building height shall exceed 10.5 m;
vii. Except for driveways, the perimeter of the lot shall be continuously landscaped with a buffer of non-invasive trees and shrubs, 2 m or more in width and 1.5 m or more in height.
That Section 21.1 of Comprehensive Zoning By-law 50-12 is hereby amended to add Cannabis Production and Processing Facility, Cannabis Micro-Processing. Cannabis Micro-Cultivation and Cannabis Nursery as permitted uses.
That Sections 7.1 and 8.1 of Comprehensive Zoning By-law 50-12 are hereby amended to add Cannabis Cultivation as a permitted use.
That Section 24.4 of By-law 50-12, as amended, is hereby further amended by inserting a new clause as follows:
M-8 (Part of Lot 27, Concession 8, 2725 County Road 20)
(a) Notwithstanding the provisions of Sub-section 24.1 and 24.2 hereof to the contrary, on the lands zoned Industrial –Exception M-8 Zone the following shall apply:
(i) In addition to the permitted uses, a Cannabis Production and Processing Facility is a permitted use.
(ii) The following uses shall be prohibited on the property:
Outdoor Cultivation of Cannabis
Outdoor Storage of Cannabis and Cannabis Products
Greenhouse – Cannabis.
(iii) The following setbacks shall apply to all new buildings and structures, including building additions:
Front Yard Setback (Min) 20 metres
Rear Yard Setback (Min) 12 metres
Exterior Yard Setback (Min) 20 metres
Interior Yard Setback (Min) 15 metres
(iv) A minimum building setback of 30 metres for all new buildings and structures shall be maintained from the rear (north) property line of the property located at 2735 County Road 20.
(v) New generators shall not be permitted to encroach into any yard setback.
(vi) Notwithstanding the minimum required setbacks, parking facilities, stormwater management facilities, loading areas and fencing associated with the use of the property is permitted within the front yard, rear yard, exterior yard and interior yard setbacks.
(vii) Site Plan Control will be required to regulate the expansion of the Cannabis Production and Processing Facility.
That Schedule “A-3” of By-Law 50-12, as amended, is hereby further amended by rezoning the lands shown on Schedule “A” attached hereto from Industrial (M) to Industrial –Exception (M-8) Zone.
That this by-law shall take effect on the date of passing subject to the provisions of the Planning Act R.S.O., 1990, as amended.
The Clerk of the Municipality of North Grenville is hereby authorized to make any minor modifications or corrections of an administrative, numeric, grammatical, semantic or descriptive nature or kind to the by-law and schedule(s) as may be deemed necessary after the passage of this by-law, where such modifications or corrections do not alter the intent of the by-law.
PASSED AND ENACTED
THIS 14TH DAY OF JULY, 2021
NANCY PECKFORD
Mayor
HEATHER BABCOCK-CORMIER
Clerk
THE CORPORATION OF THE MUNICIPALITY OF NORTH GRENVILLE
Schedule “A” to By-Law 62-21
This map forms part of By-Law 62-21
Area to be rezoned from the Industrial (M) zone to Industrial Special Exception (M-8) Zone.