1314102 Ontario Ltd. v. Niagara-on-the-Lake (Town), 2022 CanLII 63792

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 15, 2022

CASE NO(S).: OLT-21-001325

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

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit a kitchen as a secondary use in association with an Estate Winery

Reference Number: ZBA-05-2021

Property Address: 963 Queenston Road

Municipality/UT: Niagara-on-the-Lake/Niagara

OLT Case No: OLT-21-001325

OLT Lead Case No: OLT-21-001325

OLT Case Name: 1314102 Ontario Ltd. v. Niagara-on-the-Lake (Town)

Heard: June 28, 2022 by Video Hearing

APPEARANCES:

Parties

Counsel

1314102 Ontario Ltd.

Steven O’Melia

Niagara-on-the-Lake

Robert Di Lallo

Greg and Joanne Morandin

Thomas Richardson

DECISION DELIVERED BY C. HARDY AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened a settlement hearing related to an appeal filed by 1314102 Ontario Ltd. (“Applicant”) against the Town of Niagara-on-the-Lake (“Town”) relating to a non-decision on a site specific Zoning By-law Amendment (“ZBA”) application. These proceedings were commenced under s. 34(11) of the Planning Act (the “Act”) and relate to a proposal for the property known municipally as 963 Queenston Road, in the Town (“Subject Property”).

2The appeal relates to a ZBA application to amend the text of the Town’s Site-Specific Zoning By-law 500XJ-19 (“Site Specific ZBL”). The Subject Property is currently operating as the Queenston Mile Vineyard Estate Winery (“Winery”). Presently existing on the Subject Property are planted vineyards, the winery building, outdoor storage shed, gravel parking area and a pond.

3The Affidavit of Service sworn April 27, 2022, was marked as Exhibit 1.

SITE CONTEXT

4The Subject Property can be described as an irregularly shaped parcel containing a total area of approximately 21 hectares. It has a frontage of approximately 17.7 metres along Queenston Road and frontage of approximately 288 metres along Concession 6 Road. There is an existing municipal drain located along the eastern portion of the Subject Property. Driveway access to the Winery is from Queenston Road.

5The Subject Property is largely agricultural and contains planted vines on approximately 14 hectares. It also contains a winery building with a production area, hospitality areas (both inside and outside on the first and second floors), food preparation area, storage areas, retail area for the sale of wine, washrooms, an office, a meeting room and 32 parking spaces.

6The surrounding lands are primarily used for rural residential and agricultural purposes.

7The Subject Property is within the agricultural area of the Town and is part of the Tender Fruit and Grape Lands which have been identified provincially, regionally and locally. The Greenbelt Plan 2017 (“Greenbelt Plan”) designates the Subject Property as Niagara Peninsula Tender Fruit and Grape Area which permits all types, sizes and intensities of agricultural uses and supports agriculture-related uses and on-farm diversified uses.

8The upper tier Niagara Region Official Plan (“NROP”) designates the Subject Property as Protected Countryside, which is further refined in Schedule B as Unique Agricultural Area. The NROP policies identify these lands as high priority for preservation and support agriculture-related and on-farm diversified uses such as wineries and uses associated with wineries including retail areas, food preparation and commercial cooking equipment.

9The lower tier Town of Niagara-on-the-Lake Official Plan (“OP”) designates the majority of the Subject Property as Agricultural with a small portion of the driveway along Queenston Road as Non-Farm Rural. Permitted uses within the Agricultural designation include Estate Wineries with permitted associated secondary uses to the winery, subject to a site-specific zoning by-law.

10The Town of Niagara-on-the-Lake Zoning By-law (“ZBL”) currently zones the Subject Property as Rural (A) Site Specific Zone, permitting the use as an Estate Winery.

BACKGROUND AND PROPOSAL

11The Applicant proposes to amend the text to the Site Specific ZBL, as modified by By-law 500XJ(1)-21, to permit commercial cooking equipment in association with the existing approved retail area, hospitality area and agricultural market. The amendment will enable the Applicant to prepare food on site to support its economic activities (“Proposal”). The Applicant is not proposing the use of a restaurant, rather the use of commercial cooking equipment on site to support hospitality areas, which is an approved use, pursuant to the Site Specific ZBL.

12The Subject Property has had relevant past applications both before the Town and the Local Planning Appeal Tribunal (“LPAT”).

13The designation of the Subject Property as Rural under the ZBL permits a Farm Winery as of right. In August 2018, the Applicant received approval of a Site Plan Agreement enabling them to re-purpose the existing agricultural barn into a Farm Winery building.

14In October 2019, Town Council adopted the Site Specific ZBL permitting the conversion of the existing Farm Winery to an Estate Winery, subject to the removal of the Holding (“H”) Symbol pertaining to approval of a Site Plan Agreement.

15In September 2020, the Applicant filed an appeal to LPAT for failure to approve the Site Plan. In February 2021, LPAT issued a decision approving a Site Plan and Site Plan Agreement which satisfied the condition to remove the “H” Symbol from the Site Specific ZBL.

16The current Proposal was submitted to the Town on March 19, 2021 and deemed complete on April 6, 2021. The Applicant appealed the Town’s failure to make a decision within statutory timeframes to this Tribunal on July 23, 2021.

17The requirement for the ZBA is two-fold:

(1) It is first triggered by a provision found in the Site Specific ZBL which limits secondary uses to an Estate Winery to the retail sale of wine, hospitality areas and an agricultural market. As such, the Applicant requires an addition to the list of permitted secondary uses of “iv. Kitchen (including commercial cooking equipment)”.

(2) The second reason the Applicant requires a ZBA stems from the wording of the definition of Hospitality Area in the Site Specific ZBL. It is currently defined as:

Hospitality Area shall mean part of a building such as indoor and outdoor areas (balcony and covered patio) where wine and food from the Estate Winery is served. The use of commercial cooking equipment on site for the preparation of food is prohibited.

The Applicant proposes to delete the second sentence of the definition and replace it with:

The use of commercial cooking equipment on site in the preparation of food is permitted in the designated kitchen. Such uses shall remain ancillary to the main Estate Winery Use.

18The commercial cooking equipment will be located in the defined space within the winery building for food preparation. There will not be any increase in floor area for food preparation.

HEARING

Party Requests

19There are two parties of record regarding this matter, and both were represented at the hearing. The Applicant is represented by Steven O’Melia and the Town is represented by Robert Di Lallo.

20The Tribunal received four requests for Party Status in advance of the hearing. The requests were made from the following residents: Paul Harber; Maria Mavridis; Rob and Marion Hassebroek; and Greg and Joanne Morandin (“Residents”), their collective Party Status Request form is marked as Exhibit 2. Thomas Richardson addressed the Tribunal on behalf of the Residents as their legal representative.

21After a request for clarification from the Tribunal, Mr. Richardson advised that the Residents could be divided into two common interest classes pursuant to Rule 8.4 of the Tribunal’s Rules of Practice and Procedure. He submitted that the Hassebroeks and the Morandins have a common interest as neighbours and will testify about the impacts that they anticipate will occur from the additional use. Mr. Harber and Ms. Mavridis are business owners and are concerned that the Winery is not operating as an Estate Winery as is alleged by the Applicant.

22Mr. Richardson and Mr. O’Melia provided lengthy oral submissions to the Tribunal regarding whether the Residents satisfy the test to be granted Party Status. The Town advised that they were not taking a position on Party Status and had no submissions.

23Mr. Richardson submitted that the Residents participated in the Town’s public consultation process and would have appealed to the Tribunal had the Town approved the Application. The Town failed to make a decision within statutory timeframes which left the Residents without an opportunity to appeal under s.34(11) of the Act. As such, the Residents were limited to requesting Party Status.

24Mr. Richardson noted that the Residents had been working with the Town to coordinate evidence. The Residents intended to provide factual evidence and the Town was intending to engage a planner to provide expert opinion evidence to the Tribunal. Mr. Richardson submitted that the Residents would have engaged their own planner had they known that the Town was going to enter into a settlement with the Applicant. In addition, once the Residents became aware of the settlement, they did not have enough time to engage a planner to provide opinion evidence to the Tribunal. Mr. Richardson submitted that they do intend to call factual evidence and cross-examine the Applicant’s Planner, all of which will assist the Tribunal in adjudicating the matter effectively and completely.

25Mr. Richardson submitted that Mr. Harber will provide evidence that the Applicant is not operating an Estate Winery and as such, the foundation for the ZBA application is faulty.

26Mr. Richardson submitted that the Hassbroecks and the Morandins will provide evidence that the increase in traffic which will result from the ZBA will exacerbate the impacts that they are already experiencing. He further argued that the Residents’ evidence will demonstrate that the planning foundation of the Application is faulty as the Winery is not operating as an Estate Winery.

27The Applicant objected to the Party Status requests of the Residents. Mr. O’Melia submitted that the Residents are raising issues of compliance, which is outside of the jurisdiction of the Tribunal.

28Mr. O’Melia reviewed the witness outlines of the Residents with the Tribunal and submitted that Party Status should be denied as they were not intending to call any planning evidence to assist the Tribunal. He argued that Mr. Harber and Ms. Mavridis do not reside in close proximity to the Subject Property and were not purporting to lead evidence relating to the appeal before the Tribunal. He submitted that the Hassebroeks do not meet the Party Status test as they are not abutting neighbours and would not be calling any expert evidence to assist the Tribunal. Mr. O’Melia conceded that the Morandins’ property did abut the driveway of the Subject Property, however, reiterated that they were not intending to lead any planning evidence.

29Mr. O’Melia cited Aryeh Construction Limited v. Markham (City), 2021 CanLII 34348 for the premise that the test set out in Rule 8.2 of the Tribunal’s Rules of Practice and Procedure is a high one. A Party’s presence must be necessary to enable the Tribunal to adjudicate effectively. In that case, the Tribunal determined that the onus was on the individual requesting Party Status and concluded that no planning basis had been provided for the concerns related to that appeal. Mr. O’Melia submitted that similarly, the Residents do not purport to lead any land use planning evidence, just personal opinions, and that the grounds which they are relying upon do not relate to the appeal which is before the Tribunal.

30After careful consideration of the written and oral submissions, the Tribunal is not satisfied by either the information contained in the Party Status Request Form or the submissions made by Mr. Richardson that Party Status is necessary or warranted for Mr. Harber, Ms. Mavridis or the Hassebroeks. The Tribunal will grant Party Status to the Morandins as they directly abut the Subject Property and meet the test for Party Status.

31Parties have obligations that go beyond identifying issues and voicing concerns. Parties are expected to substantiate germane planning issues with relevant evidence related to such planning issues and those issues must have a direct correlation to the appeal before the Tribunal. To rely upon others to bring planning evidence is a risky venture as there are many variables leading up to a merit hearing that can impact the outcome, including settlement.

32Mr. Harber, Ms. Mavridis and the Hassebroeks did not identify any legitimate land use planning issues and were not calling any land use planning evidence. The Morandins are directly impacted by the outcome of the Appeal and raised an issue that was directly related to the ZBA. The Tribunal noted that in the absence of the Town calling a case, evidence from the Morandins would provide a more complete picture and assist the Tribunal in adjudicating the matter effectively and completely.

Settlement Hearing

33After hearing submissions from Counsel relating to the Party Status requests, the Tribunal directed that the Parties limit submissions during the settlement hearing to the ZBA that is before the Tribunal. The Tribunal cautioned that it will not hear evidence or argument relating to whether the Winery is operating as an Estate Winery. These are not proper planning issues, rather, they are matters of compliance and policing which lie outside of the jurisdiction of the Tribunal.

34The Tribunal received and marked the following Exhibits at the hearing:

(1) Exhibit 1 – Affidavit of Service of Dawn M. Shuh

(2) Exhibit 2 – Party Status Request Form of the Residents

(3) Exhibit 3 – Applicant’s Document Book

(4) Exhibit 4A – Witness Outline of Rob and Marion Hassebroek

(5) Exhibit 4B – Witness Outline of Greg and Joanne Morandin

(6) Exhibit 4C – Witness Outline of Paul Harber

(7) Exhibit 4D – Witness Outline of Robert Kempf and Bob Nichols

(8) Exhibit 5 – Minutes of Settlement

(9) Exhibit 6A – CV of Mary Lou Tanner

(10) Exhibit 6B – Acknowledgement of Expert’s Duty of Mary Lou Tanner

(11) Exhibit 7 – Applicant’s Visual Exhibits

35The Tribunal noted that it has no authority to approve Minutes of Settlement and that was not what was being asked of the Tribunal. The Tribunal reminded the Parties that Minutes of Settlement are private agreements between Parties which the Tribunal will take note of, however, has no authority to approve, amend nor enforce. Mr. O’Melia submitted that the Town will ensure that the Applicant adheres to the conditions that are contained in the Minutes of Settlement, being:

a) QMV (the Winery) agrees to implement the noise mitigation fencing measures identified in the Valcoustics Report;

b) QMV agrees not to permit amplified music outside of its building after 11:00 pm at any time;

c) QMV agrees not to operate its cooking exhaust fans after 10:00 pm;

d) QMV agrees to have a maximum of 4 larger (150 or more guests) events per week and a maximum of 80 such larger events per year; and

e) QMV shall post signage on the fence to be erected on the west side of its driveway to Queenston Road advising that parking should not take place at that location.

36Mr. O’Melia noted that there was a typographical error in subsection e) and clarified that the signage would be posted on the east side as opposed to the west side and he undertook to make that change to the Minutes of Settlement.

37The Tribunal had the benefit of oral testimony from one expert witness and one lay witness. The Applicant called Mary Lou Tanner to provide expert opinion evidence and the Residents called Joanne Morandin to provide factual evidence to the Tribunal.

38Planning evidence and opinion to support the ZBA was provided by Ms. Tanner who is a Registered Professional Planner and a full member of the Canadian Institute of Planners and the Ontario Professional Planners Institute. Ms. Tanner was qualified without objection by the Tribunal to provide independent expert land use planning evidence.

39Ms. Tanner reviewed the Minutes of Settlement and the proposed ZBA, attached as Schedule “A” to this Decision. It is Ms. Tanner’s professional opinion that the ZBA constitutes good planning and conforms to all appliable planning policies.

Policy Framework

40Ms. Tanner opined that overall, the Proposal is consistent with the Act, the Provincial Policy Statement, 2020 (“PPS”), the Greenbelt Plan, NROP, OP and ZBL. The Proposal is supportive of policies for the economic viability of farms and supports agri-tourism and the agri-food network.

Planning Act

41Ms. Tanner reviewed s.2 and s.3(5) of the Act noting that the Proposal has regard for these provisions. The Proposal will permit commercial cooking equipment within an existing winery building in an existing food preparation area. Ms. Tanner noted that her evidence will show that the Proposal is consistent with the PPS and conforms to provincial plans.

42Ms. Tanner’s evidence with respect to the Act was not challenged and the Tribunal accepts her evidence and finds that the ZBA has appropriate regard of s.2 and s.3(5) of the Act.

Provincial Policy Statement, 2020

43The PPS establishes land use policy requirements for communities and decisions under the Act must conform to the PPS. Ms. Tanner noted that the Subject Property is identified as Prime Agricultural Lands and are Speciality Crop Lands. Ms. Tanner opined that the addition of commercial cooking equipment is consistent with Sections 1.1.4, 1.7, 2.3 and 2.3.3 of the PPS. She testified that the Proposal is an agriculture-related and on-farm diversified use and is directly related to farm operations that will assist economic viability of the Winery that is located on prime agricultural lands.

44Ms. Tanner stressed that the existing vineyard and agricultural uses will be maintained and there will be no expansion of the winery building to accommodate the addition of commercial cooking equipment. The commercial cooking equipment will only be permitted in the approved food preparation area, as such, the scale of the on-farm diversified uses are not proposed to be increased as a result of the ZBA.

45Ms. Tanner testified that the sewage and water policies found in section 1.6 of the PPS are implemented through the Proposal. The Subject Property is already equipped with an existing septic system and is serviced by municipal water. Ms. Tanner testified that the septic system has been reviewed through all of the previous and current planning applications and that the filed documentation supports the appropriateness of the system. She further noted that the Niagara Region Conservation Authority is satisfied that it is appropriate.

46Ms. Tanner opined that the ZBA is consistent with the PPS and the Tribunal agrees.

The Greenbelt Plan

47The Greenbelt Plan addresses the significance of Southern Ontario’s farmland and contains agricultural policies to protect and enhance these lands. The Greenbelt Plan identifies the Subject Property as Niagara Peninsula Tender Grape and Fruit Area. The focus of the Greenbelt Plan is the protection of agriculture, and it discourages any non-agricultural uses of land.

48Ms. Tanner took the Tribunal to Policies 3.1.2(a) and 3.1.3(1) which state that a range of uses are permitted, providing they are agricultural uses, agriculture-related uses and on-farm diversified uses. Ms. Tanner opined that the Proposal conforms to these policies. Wine tasting is an agriculture-related and on-farm diversified use. The addition of commercial cooking equipment will allow the Winery to provide food pairing as part of this experience without hindering any surrounding farm operations.

49Ms. Tanner took the Tribunal to other policies within the Greenbelt Plan that speak to agricultural system connections. She opined that these connections will be strengthened by the ZBA as the Winery will collaborate with local farms to source produce and ingredients for food pairing preparation. In addition, she noted that the existing use as an Estate Winery is permitted, and the policies encourage Municipalities to promote and retain existing agricultural uses.

50Ms. Tanner is of the opinion that the ZBA conforms to the Greenbelt Plan and the Tribunal agrees with her conclusion.

Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) Guidelines on Permitted Uses In Ontario’s Prime Agricultural Areas – Publication 851 (“OMAFRA Guidelines”)

51Stemming from the PPS, the OMAFRA Guidelines were developed to outline the range of uses permitted in prime agricultural areas. These guidelines provide further context and explanation for the agricultural policies in the PPS.

52Ms. Tanner spent considerable time and effort reviewing the OMAFRA Guidelines for the Tribunal. Permitted uses in agricultural areas are set out in Section 2.4 and the current permitted uses at the Winery are both Agriculture-Related Use and On-Farm Diversified Use. Wine tasting is one of the activities at the Winery and the addition of commercial cooking equipment will enable on site food preparation to compliment wine tastings.

53Ms. Tanner’s Planning Justification Report found at Exhibit 3 Tab J details how the addition of commercial cooking equipment can be considered an agriculture-related use. In that Report, in addition to discussing the pairing of food with wine tastings, she opines that the equipment will be located within the existing winery building. She also noted that the Proposal will support agriculture such as grape growing, wine production, wine retailing and hospitality.

54In her oral testimony, Ms. Tanner detailed how the Proposal is consistent with on-farm diversified uses. She testified that the use is located on a farm, is secondary to the main use of agriculture and is limited in area. There will be no land taken out of production nor are there any anticipated off-site impacts which will result from the addition of commercial cooking equipment. The ZBA will not hinder the surrounding agricultural operations as the commercial cooking equipment will be located in the existing winery building in the approved food preparation area.

55Ms. Tanner noted that the Proposal is appropriate in size and scale. The Subject Property is approximately 21 hectares in total size and the OMAFRA Guidelines allow a maximum of 2% for on-farm diversified activities. In this case 2% would amount to approximately 4,200 m2. The gross floor area maximum is 20%, of which 2% would be approximately 840 m2. The on-farm diversified uses at the Winery amount to approximately 395.21 m2 and the commercial cooking equipment will amount to approximately 50 m2. Ms. Tanner testified that all of these calculations demonstrate that the Proposal is very modest in size and scale considering the total size of the Subject Property.

56Ms. Tanner opined that the ZBA is consistent with the OMAFRA Guidelines, and the Tribunal agrees.

A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”)

57The Growth Plan builds on the policies set out in the PPS and recognizes the importance of rural and agricultural lands in the Greater Golden Horseshoe.

58Ms. Tanner briefly reviewed the Growth Plan and specifically referred to Policies 4.2.3 and 4.2.4 which address Provincial Natural Heritage Systems. Ms. Tanner noted that there is a drainage feature located on the property which falls within the Natural Heritage System. She stressed that there is no structure proposed to be located in this area nor is there any change proposed in this area of the Subject Property. Consequently, Ms. Tanner was of the opinion that the Proposal conforms to the Growth Plan and the Tribunal would agree with this assessment.

Region of Niagara Official Plan (“NROP”)

59The policy framework of the NROP ensures that most new development in the Niagara Region is directed towards settlement areas, which in turn further protects agricultural areas. The NROP designates the Subject Property as Unique Agricultural Area and Objective 5.A.1 states that these areas which are suitable for tender fruit and grapes have the highest priority for preservation.

60Ms. Tanner highlighted Objective 5.A.8 which states that its purpose is:

to encourage a wide range of farm diversification uses in appropriate locations and at a scale suitable to the farm and the agricultural area where they contribute to profitable and economically sustainable agriculture.

61Ms. Tanner opined that the Proposal conforms with this objective. She testified that it is appropriate in scale when one considers the total floor area of the Winery as was discussed above. She noted that it is also in a suitable location given that the commercial cooking equipment will be located in the existing food preparation area. The Proposal will contribute to the economic viability of the Winery by allowing for economically sustainable agricultural practices on site.

62Policy 5.B.18 speaks to economic sustainability and viability of the farm operations. Ms. Tanner testified that the hospitality use is an approved use in the existing zoning and that food is currently being served to Winery patrons. She noted that the ZBA is simply about adding commercial cooking equipment to the winery building so that food can be prepared on site.

63Ms. Tanner reviewed Policy 5.B.21 which sets out criteria to consider when determining if diversification uses should be permitted. She provided comments on how the Proposal meets these criteria as follows:

(1) The Proposal is related to the service of food which compliments the agricultural activity of the Winery. As such, the commercial cooking equipment is not more appropriately located in a nearby settlement area or Rural Area as it is required on site to provide food to Winery patrons.

(2) The Proposal is compatible with the existing agricultural use by creating a food tasting experience from wines made from the vineyard, as such it supports the agricultural activity.

(3) The use contemplated in the Proposal is an established use in many wineries in the Town and has been deemed compatible throughout the Speciality Crop Area.

(4) The scale is appropriate to the site. As stated above, the commercial cooking equipment will occupy approximately 50 m2 of the Subject Property, which is approximately 21 hectares in total size.

(5) The commercial cooking equipment will be contained in the existing winery building. There will be no change to the footprint of the winery building and the agricultural uses will be maintained.

(6) The Proposal will not generate any conflicting off-site impacts. The Applicant and the Town have agreed that the Applicant will implement noise mitigation measures to alleviate any noise generated by the exhaust fan.

(7) The Proposal can be accommodated with the municipal water service which already exists and services the Subject Property. In addition, the existing septic system has been reviewed on multiple occasions and has been deemed acceptable.

(8) The Proposal does not require any improvements to infrastructure.

(9) The Proposal complies with the NROP.

64Ms. Tanner went into further detail with respect to Policy 5.B.21(f) relating to off-site impacts and noise generated by exhaust fans from the commercial cooking equipment, as this was a concern noted by neighbours. Ms. Tanner noted that a noise study was completed, and a noise barrier was recommended as a noise mitigation measure which the Applicant will be implementing.

65Ms. Morandin testified that she was concerned about noise that would be heard on her property from the commercial cooking equipment ventilation. She also noted her concern about noise and traffic resulting from outdoor events that would be held in the hospitality areas. She testified that she was already experiencing adverse impacts from the current operations of the Winery and was concerned that the addition of commercial cooking equipment would increase these impacts.

66Under cross-examination, Mr. Richardson questioned Ms. Tanner whether it was appropriate to have the noise barrier installed prior to the installation and usage of the commercial cooking equipment. Ms. Tanner answered that she understood that to be the intent but did note the reality of the global supply chain challenges being faced amid the Covid-19 pandemic. She testified that the Applicant is sincere in their intent to implement the noise mitigation measures, but was not sure on the exact timing that the noise barrier would be installed.

67A further concern Mr. Richardson raised during cross-examination related to dust suppression. He asked why dust suppression was not addressed in the ZBA or the Minutes of Settlement? Ms. Tanner noted that dust suppression is outside of the ZBA being considered. Mr. Richardson asked whether paving the driveway would help mitigate the dust issue. Ms. Tanner disagreed noting that paving would increase run-off into the natural heritage feature adjacent to the parking lot. She further testified that pervious surfaces were better for communities as such surfaces avoid ponding/flooding in the yards of adjacent properties. Ms. Tanner did concede that some form of dust suppression measures would benefit the Winery and the neighbours.

68Ms. Tanner returned to the importance of the scale of the commercial cooking equipment numerous times during her testimony. Policy 5.B.22 of the NROP speaks to scale and provides that:

farm diversification uses are small scale in relation to the principal farming operation. Preference is given to defining scale on the basis of size of the facilities and relationship to other uses rather than less enforceable criteria such as number of employees or value of product purchased. The appropriate scale for diversification uses may vary depending on the type of use and whether the activities are located in the Speciality Crop Areas (Tender Fruit or Grape Areas) or in the other Prime Agricultural Areas (Good General Agricultural Areas).

69Ms. Tanner reiterated that the commercial cooking equipment will occupy a small component of the winery building and under the ZBA will be limited to the designated kitchen. It amounts to a very modest amount of space in relation to the farming operations on the Subject Property.

70Ms. Tanner opined that the ZBA conforms with the general intent and policies of the NROP and the Tribunal agrees.

Town of Niagara-On-The-Lake Official Plan

71Some of the goals of the OP policies include the preservation of prime agricultural lands for farming, giving the highest priority to Good Tender Fruit / Grape lands, and prohibiting uses that are not related to the agricultural industry.

72Policy 7.3.1 of the OP permits Estate Wineries on lands designated as Agricultural. Policy 7.4 sets out Secondary Use Policies for Estate Wineries and Ms. Tanner went through each of the policies to demonstrate that the Proposal complies with and conforms to the OP. In summary, the Winery produces wine from locally grown fruit, it has direct access to a roadway (Queenston Road) and the majority of the Subject Property is planted in vineyards. The Winery received site-specific zoning approval to permit the Estate Winery on site and consequently the hospitality areas are permitted as of right as an accessory use to the Estate Winery.

73Ms. Tanner opined that the Proposal which will be implemented by the ZBA complies with all of the OP policies and conforms to the OP and the Tribunal agrees.

Zoning By-law

74Ms. Tanner explained that the Town divides wineries into one of two classes: Farm Winery and Estate Winery. Farm Wineries are permitted as of right in the Agricultural zone. Estate Wineries are larger with a broader range of agricultural uses that may be permitted. Estate Wineries are not permitted as of right but rather require site-specific zoning.

75The Town has two Zoning By-laws, one for Urban Areas and one for Rural/Agricultural Areas. Ms. Tanner testified that one important difference between the two Zoning By-laws that is relevant to this Proposal relates to outdoor special events. The Subject Property falls within the Rural/Agricultural Zoning By-law which prohibits outdoor special events. Ms. Tanner noted that the concern of neighbours that the Proposal will enable the Winery to host outdoor events is unfounded as it is prohibited by the Zoning By-law in the Rural/Agricultural Area.

76Ms. Tanner opined that there is a broad policy base recognizing the importance of supporting the viability of farms and on-farm diversified uses. She testified that the ZBA is appropriate as food and wine service is currently permitted, the OP supports hospitality uses in wineries to support the economic viability of farms and the existing parking conforms with the Town’s ZBA requirements.

77Under cross-examination, Ms. Tanner conceded that the approval of the Site Plan Agreement in 2018 was an unappealable decision. There was not a planning process to determine the location of the farm winery next to the existing housing as it was permitted as of right. She agreed with Mr. Richardson that local residents were unable to appeal that decision.

78In his submissions, Mr. Richardson suggested that the conditions which the Applicant has agreed to in the Minutes of Settlement set out in paragraph 35 above should be added to the ZBA and the Tribunal’s Order should include these conditions. Mr. O’Melia argued that there was no evidence put forward by Mr. Richardson to support this suggestion. He further noted that Mr. Richardson did not put this suggestion to Ms. Tanner to obtain a planning opinion on the inclusion of these types of conditions within the ZBA.

FINDINGS AND DISPOSITION

79The Tribunal heard the evidence from one qualified land use planner and from one lay witness. The ZBA proposes a text amendment to enable the Applicant to install commercial cooking equipment into an existing food preparation area to enable food preparation to support wine tastings, which are permitted. The Tribunal has reviewed and noted the existence of the conditions and stringent obligations of the Applicant in paragraph 35 above which will coexist with the planning instrument. Change and growth are an ongoing challenge, however, the Proposal is in keeping with established practices in many of the wineries in the Town. The Tribunal prefers the evidence of the Applicant and the opinions put forward by Ms. Tanner.

80For the reasons herein, the Tribunal finds that the ZBA represents good planning and is in the public interest. It has appropriate regard for s.2 of the Act, is consistent with the PPS as supported by the OMAFRA Guidelines and is in conformity with the Greenbelt Plan, Growth Plan, NROP and OP.

81The Tribunal finds that the Town has a well-established planning policy for the area surrounding the Subject Property. The Tribunal also notes that although it did not have the benefit of evidence from the Town planner, the Town Planning Reports are part of the record provided to the Tribunal in Exhibit 3 and are relevant and carry weight in this matter. Town Planning Staff followed a careful, complete, and comprehensive planning review of the ZBA and with this analysis recommended approval to the Town Council.

82The ZBA is a minor text amendment to permit commercial cooking equipment within the existing winery building in association with the permitted retail area, hospitality area and agricultural market.

83The Tribunal finds that the ZBA supports the agriculture-related and on-farm diversified uses at the Winery and is supportive of the agricultural and tourism sectors that are unique to the Niagara Region and the Town. The Subject Property is predominantly used for agricultural purposes and the Proposal supports this. There are no physical changes proposed to the winery building and the floor area for secondary uses remains the same. Agricultural activities will remain the predominant activity on the Subject Property. The addition of commercial cooking equipment will enable the Winery to prepare food for wine pairings which supports the economic viability of the agricultural activity.

84The Tribunal finds that the evidence presented at the hearing by the Morandins was not sufficient to demonstrate concrete adverse impacts resulting from the Proposal which will be facilitated by the ZBA, and governed by the stipulated conditions in the Minutes of Settlement. The anticipation of additional noise caused by larger gatherings and exhaust fans is not tangible evidence upon which the Tribunal can rely. In addition, the suggestion to add conditions in the ZBA similar to those found in the Minutes of Settlement had no evidentiary basis and is unnecessary. Mr. Richardson failed to lead evidence on this suggestion and failed to put it to Ms. Tanner to obtain a planning opinion on the appropriateness of doing so.

ORDER

85THE TRIBUNAL ORDERS that the appeal is allowed and By-law 500XJ-19 is hereby amended as set out in Schedule “A” to this Order. The Tribunal authorizes the Municipal Clerk of the Town of Niagara-on-the-Lake to assign a number to this By-law for record keeping purposes.

“C. Hardy”

c. hardy

MEMBER

Ontario Land Tribunal

Website: 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 “A”

AMENDMENT

THE CORPORATION

OF THE

TOWN OF NIAGARA-ON-THE-LAKE

BY-LAW NO. 500##-21

963 Queenston Road

Roll 2627 020 019 03950

A BY-LAW PURSUANT TO SECTION 34 OF THE ONTARIO PLANNING ACT TO AMEND BY-LAW 500A-74, AS AMENDED, ENTITLED A BY-LAW TO REGULATE THE USE OF LAND AND THE CHARACTER, LOCATION AND USE OF BUILDINGS AND STRUCTURES THEREON.

WHEREAS the Town of Niagara-on-the-Lake Council is empowered to enact this By-law by virtue of the provisions of Section 34 of the Planning Act, R.S.O. 1990, c. P.13, as amended;

AND WHEREAS this By-law conforms to the Town of Niagara-on-the-Lake Official Plan.

NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE TOWN OF NIAGARA-ON-THE-LAKE enacts as follows:

1. That By-law 500XJ-19, Paragraph 2 (Special Exceptions for 963 Queenston Road), is amended by adding the following under Section 1 b) Secondary Uses to an Estate Winery:

iv. Kitchen (including commercial cooking equipment)

2. That By-law 500XJ-19, Paragraph 2 (Special Exceptions for 963 Queenston Road), is amended by deleting the last sentence in the definition of Hospitality Area in Section 4 and replacing it with the following text:

The use of commercial cooking equipment on site in the preparation of food is permitted in the designated kitchen. Such uses shall remain ancillary to the main Estate Winery Use.

3. That the effective date of this By-law shall be the date of approval thereof.

APPROVED BY THE ONTARIO LAND TRIBUNAL THIS ## DAY OF ####, 2022.