Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 16, 2022

CASE NO(S).: OLT-22-003450 (Formerly) PL061177

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act (Bill 20) Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Lafarge Canada Inc.

Appellant: Ontario Stone, Sand & Gravel Association

Appellant: Walker Industries/Georgian Aggregates & Construction

Subject: By-law No. 06-54

Municipality: Township of Clearview

OLT Case No.: OLT-22-003450

Legacy Case No.: PL061177

OLT Lead Case No.: OLT-22-003450

Legacy Lead Case No.: PL061177

OLT Case Name: Lafarge Canada Inc v. Clearview (Township)

Heard: July 15, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Lafarge Canada Inc., Ontario Stone, Sand & Gravel Association, Walker Industries/Georgian Aggregates & Construction	Wayne Fairbrother
Township of Clearview	Harold Elston

MEMORANDUM OF ORAL DECISION DELIVERED BY S. BOBKA ON JULY 15, 2022 AND ORDER OF THE TRIBUNAL

1The matters before the Tribunal are appeals filed by Lafarge Canada Inc. (“Lafarge”), Ontario Stone, Sand & Gravel Association (“OSSGA”) and Walker Industries/Georgian Aggregates Construction (“Walker”) (together the “Appellants”) pursuant to s. 34(19) of the Planning Act (“Act”) resulting from the Township of Clearview’s (“Township”) approval of Comprehensive Zoning By-law No. 06-54 (“ZBL”) in 2006.

2The current appeals were adjourned sine die in a Decision by the Ontario Municipal Board (“OMB”) on February 1, 2008 (“OMB Decision”), which recognized that an understanding had been reached with the Appellants that the Township would undertake a comprehensive review of the aggregate provisions in the ZBL and propose amendments. The Parties notified the Tribunal in May of 2022 that a settlement had been reached and requested that the scheduled Case Management Conference be converted to a one-day settlement hearing.

3The Tribunal was advised at the hearing that counsel for the County of Simcoe would not be appearing.

CONTEXT

4In the February 1, 2008 OMB decision, it states:

The Township of Clearview resulted from the amalgamation of four smaller municipalities and the ZBL was the new municipality’s first attempt to consolidate all of the former municipal zoning by-laws into one comprehensive by-law.

The intent of the ZBL was to regulate the use of land and the character, location and use of buildings and structures on lands within the Township.

LEGISLATIVE TESTS

5In making a decision on the Zoning By-law Amendment (“ZBA”) (found in Attachment 1 appended hereto) presently before it, the Tribunal must be satisfied that it is consistent with the Provincial Policy Statement (“PPS”), that it conforms to/does not conflict with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”) and that it conforms to the applicable official plans. In addition to the foregoing, the Tribunal must have regard to the matters of Provincial interest in s. 2 of the Act and in general, be satisfied that the proposed ZBA represents good planning and is in the public interest.

HEARING

6Planning evidence and opinion to support the proposed ZBA was given by Mara Burton, Director of Community Services for the Township, a Registered Professional Planner and a Full Member of the Canadian Institute of Planners. She was qualified by the Tribunal to provide opinion evidence in land use planning.

7The Tribunal received and marked:

Exhibit 1: Settlement Brief Final 1.0

8In support of the proposed settlement, Ms. Burton provided detailed land use planning and contextual evidence through her Affidavit and testimony. She reviewed the proposed ZBA and in her opinion, it constitutes good planning and conforms to all applicable planning policies.

9Ms. Burton testified that the “purpose of the [ZBA] … is to zone the properties under appeal, or portions thereof, to the Extractive Industrial (EX) Zone … [in the ZBL]”.

10Ms. Burton highlighted to the Tribunal that the appeals date back to 2006 and the properties were used for aggregate extraction prior to the passing of the ZBL in 2006 and prior to the passing of the former By-laws from the former Townships. It was her opinion that:

With the exception of some minor mapping anomalies, all of the subject properties proposed to be zoned Extractive Industrial were zoned Extractive Industrial (M3) by …either the former Township of Nottawasaga Zoning By-law 10-93 or by the former Township of Sunnidale Zoning By-law 1553; both of which are now in the Township of Clearview by way of amalgamation, in 1994… Having examined the air photos, all of the subject properties were historically used for aggregate extraction and as such, were zoned by By-law 06-54 to the Extractive Industrial – Above the Water Table (EX1) Zone to recognize aggregate extraction. The Amendment does not change any of the zone boundaries of the subject lands of By-law 06-54 that was before the Board in 2006.

11The regulations related to elevation of extraction of aggregate and the water table were not appropriate for a local municipal zoning by-law in Ms. Burton’s opinion, as the water table elevation fluctuates throughout the Township. She opined that it was not appropriate to have the zoning dictated by an arbitrary standard which was not based on the unique characteristics of a property. In addition, she opined that “the depth and level of extraction of aggregate is regulated by the Province through its licensing powers under the Aggregate Resources Act”.

12Ms. Burton testified that the ZBA has regard to s. 2 of the Act involving Provincial interests. In particular, she highlighted s. 2(c) “the conservation and management of natural resources and the mineral resource base”.

13Ms. Burton was of the opinion that the ZBA is consistent with the PPS and stated that the ZBA:

…protects the long-term resource supply of aggregates and permits the use of recycling facilities; recognizes the existing mineral aggregate operations within the Township of Clearview; and, recognizes that only processes under the Aggregate Resources Act shall address the depth of extraction of mineral aggregate operations.

14Regarding the GP, Ms. Burton opined that to her “knowledge, the applications under the Aggregate Resources Act for the properties subject to this Amendment were made before 2017 and therefore section 4.2.8 of the Growth Plan does not apply to these existing zoned aggregate operations.”

15It was the witness’ opinion that the ZBA conforms to the County of Simcoe’s Official Plan (“COP”) as it “protects the mineral aggregate resource areas close to markets for long-term use; permits the existing mineral aggregate operations to continue; and that the County Official Plan schedule recognizes the existing properties as high potential mineral aggregate resources.”

16Ms. Burton opined that the “lands subject to the Amendment recognize the historic existing aggregate operations; protects the mineral aggregate resources on these lands; and conform to the policies of the Township Official Plan” (“OP”).

17It was Ms. Burton’s overall opinion that the proposed ZBA has regard for matters of s. 2 of the Act, is consistent with the PPS, is in conformity with the GP, conforms with the COP and the Township OP and represents good planning.

FINDINGS

18The Tribunal accepts the uncontroverted planning evidence and opinions of Ms. Burton and is satisfied that the ZBA is consistent with the PPS, is in conformity with the GP and conforms to the policy intents of the COP and the Township OP. The ZBA also represents good planning in the public interest, has appropriate regard for matters of Provincial interest and warrants approval.

ORDER

19THE TRIBUNAL ORDERS that the appeals are allowed in part, and By-law No. 06-54 is hereby amended as set out in Attachment 1 to this Order. The Tribunal authorizes the Municipal Clerk of the Township of Clearview to assign a number to this by-law for record keeping purposes.

“S. Bobka”

s. bobka

MEMBER

Ontario Land Tribunal

Website: www.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.

OLT-22-003450 – Attachment 1