Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
September 29, 2022
CASE NO(S).:
OLT-22-003789
PROCEEDING COMMENCED UNDER Section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant:
Jackson Harvest Farms Ltd.
Subject:
Application to amend the Zoning By-law – Refusal of application
Description:
A zoning By-law amendment application that proposes to rezone approximately 52ha of the subject property to Zone 14 (Extractive Industrial) to permit a gravel pit operation.
Reference Number:
ZCA-11-19
Property Address:
1894-1922 Witmer Road
Municipality/UT:
Wilmot/Waterloo
OLT Case No:
OLT-22-003789
OLT Lead Case No:
OLT-22-003789
OLT Case Name:
Jackson harvest Farms Ltd. v. Wilmot (Township)
Heard:
September 23, 2022 by video hearing
APPEARANCES:
Parties
Counsel
Jackson Harvest Farms Ltd. (“Applicant/Appellant”)
Al Burton
Jeffery Wilker
Wilmot (“Town”)
Eric Davis
Waterloo (“Region”)
Fiona McCrea
Citizens for Safe Groundwater Inc.
Rodney Northey
Graham Reeder
MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE ON SEPTEMBER 23, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal convened the first Case Management Conference (“CMC”) on an appeal filed by Jackson Harvest Farms Ltd. (“Appellant”) against the Town of Wilmot (“Town”) Council decision, in relation to a Zoning By-law Amendment (“ZBLA”) application concerning 1894- 1922 Witmer Road (“Subject Lands”).
2The purpose and effect of the ZBLA application is to amend the Zoning By-law to rezone approximately 52 hectares (“ha”) of the Subject Lands from Zone 1 (Agricultural) to Zone 14 (Extractive Industrial) to permit a gravel pit operation. The extraction proposed is a Class 3 operation, being extraction above the water table only. The zoning proposed is to include provisions for the importation of concrete and asphalt for recycling.
3The application also proposes to rezone approximately 4.3 ha of the Subject Lands to Zone 11 (Open Space) encompassing the area containing a conifer plantation and wetland/pond complex along with associated buffering.
4Concurrently, the Appellant has also filed a Category 3 – Class A license application with the Ministry of Northern Development, Mines, Natural Resources and Forestry (“MNRF”) for an above water pit.
5The Planning Report recommended approval of the ZBLA application. The Report also recommended the Appellant to enter into an agreement that Witmer Road be reconstructed from Queen Street to West of the proposed pit entrance to the satisfaction of the Township. The Council of Wilmot made the decision to refuse the application in response to significant public concerns with the gravel pit including health impacts from dust and emissions, noise, groundwater and loss of agricultural land.
6The Notice of Affidavit was marked as Exhibit 1.
PARTY STATUS REQUEST
7During the start of the hearing, Counsel Rodney Northey for Citizens for Safe Groundwater Inc. (“CSGW”) requested Party Status. The Tribunal was not in receipt of the Party Status request, however the statutory parties had no objections and consented for CSGW to be a Party since they made submissions to Wilmot Council prior to its decision under appeal and participated in the Aggregate Resources Act (“ARA”) process.
8During the hearing, the Tribunal did receive the Party Status request from CSGW which was incorporated in 2019. Mr. Northey advised that some Participants are members of CSGW however, he did not know which members specifically at this time but ensured the Tribunal that if there is an overlap of interests that those similar interest will not impede the efficiency of the hearing. The Tribunal determined that CSGW had a genuine interest in these proceedings and on consent granted Party Status.
PARTICIPANT STATUS REQUESTS
9The Tribunal also recognized thirty-seven (37) requests for Participant Status. The Tribunal was in receipt and considered the contents of their statements. There were no objections raised by the Parties to the Participant requests.
10The Tribunal determined that the Participants had an interest in these proceedings and granted on consent Participant Status to the thirty-seven (37) individuals.
HEARING
11Al Burton, Counsel for the Appellant provided background of the applications. Mr. Burton stated he has been advised by the MNRF that a referral of his client's application for a license under the ARA was made to the Tribunal in early September. However, no case number or case co-ordinator appears to have been assigned to date. Mr. Burton suggest, when the ARA license matter does get a Tribunal file number, it would be appropriate for that matter to be administratively consolidated with the existing ZBLA matter so that both matters can be heard together during the hearing.
12Mr. Burton foresees a reasonable administrative consolidation of the ZBLA and the MNRF referral. Therefore, due to the number of Parties and studies and reports that have been compiled for this case and the approximately twenty (20) expert witnesses that will be testifying. Mr. Burton proposed a second CMC in either February or March 2023, to finalize the Procedural Order and Issues List. In addition, he requested setting a hearing date for twenty-four (24) days in the fall of 2023.
13Counsel for the Township, Eric Davis, and Counsel for CSGW, Mr. Northey agreed with the reasonable administrative consolidation and timeline as suggested, as this would allow time for all the Parties to provide an Issues List for the Draft Procedural Order.
14Counsel for the Region, Fiona McCrea, informed the consolidation of the matters would be appropriate and the Region has reviewed the Site Plan and agrees with the proposed timeline.
15The intent of the Parties is to set a second CMC no earlier than February or March 2023 and a twenty-four (24) day hearing in the Fall of 2023 period. As noted above, according to the Parties, this proposed timeframe will allow for possible consolidation of the MNRF referral, the Draft Procedural and Issues List, along with continued negotiations considering there are now four Parties with each of their respective witnesses and experts.
16The Tribunal conferred with the Tribunal scheduling co-ordinator, which had a conflict for two (2) days therefore, the hearing will be scheduled for twenty-two (22) days.
Mediation
17The Tribunal inquired about the need for Tribunal-led mediation. Mr. Burton informed that he received Issues Lists on 22 September 2022, from the Township. He advised it is too early to consider mediation at this point, however, mediation may be considered in the future dependent on the consultations with the Parties and his client.
18Mr. Davis and Ms. McCrea both agreed with Mr. Burton’s submissions and appreciated the Tribunal for suggesting it. Mr. Northey advised mediation was premature at this point.
DRAFT PROCEDURAL ORDER AND ISSUES LIST
19The Tribunal directs a draft Procedural Order and Issues List on consent to be submitted to the Case Coordinator on or before end of day Wednesday, February 22, 2023 (one week before the second CMC). Mr. Burton as Appellant counsel will coordinate the draft Procedural Order.
CMC ANd Hearing dATEs
20The Tribunal directs that a second CMC (1 day) will be held by video hearing commencing on Wednesday, March 1, 2023, at 10 a.m.
21Furthermore, the Tribunal directs that a twenty-two (22) day hearing will be held by video hearing commencing on Monday, October 30, 2023, at 10 a.m.
22The hearings are scheduled to proceed by video as follows:
Wednesday, March 1, 2023 at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/719383509
Access code: 719-383-509 Audio-only telephone line: (647) 497-9373 or Toll Free 1-888-299-1889 Audio-only access code: 719-383-509 Monday, October 30, 2023 at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/979388733
Access code: 979-388-733 Audio-only line: (647) 497-9373 or Toll Free 1-888-299-1889 Audio-only access code: 979-388-733
23Parties 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 at: https://app.gotomeeting.com/home.html
24Persons 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 provided above.
25Individuals 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.
26No further notice will be given.
27The Tribunal Member is not seized but may be spoken to for case management purposes subject to the availability of the Tribunal’s calendar.
28The directions in this Decision are so ordered.
“Eric S. Crowe”
ERIC S. CROWE
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.