Jaworski v. Norfolk (County), 2023 CanLII 30836

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 13, 2023

CASE NO(S).: OLT-22-002873 (Formerly PL210190)

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

Appellant: Stan Jaworski

Applicant: Livingston Excavating Trucking Inc.

Subject: Zoning By-law

Description: By-Law 2-Z-2021

Reference Number: ZNPL2019253

Property Address: 259 Windham East 1/4 Line Road

Municipality/UT: Norfolk

OLT Case No: OLT-22-002873

Legacy Case No: PL210190

OLT Lead Case No: OLT-22-002873

Legacy Lead Case No: PL210190

OLT Case Name: Jaworski v. Norfolk (County.)

PROCEEDING COMMENCED UNDER section 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.10

Subject: Aggregate Resources Act

Description: to replace the existing Category 7, Class B licence with a Category 1, Class A licence

Reference Number: ARA #626458

Property Address: Part Lots 5 and 6 Concession 13 (Delhi)

Municipality/UT: Norfolk/Norfolk

OLT Case No: OLT-22-004087

OLT Lead Case No: OLT-22-002873

Legacy Lead Case No: PL210190

Heard: March 8, 2023 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Stan Jaworski ("Appellant")	Self-Represented*
Livingston Excavation & Trucking Inc. ("Applicant")	Jennifer Meader
Norfolk Township	David Steele

DECISION DELIVERED BY STEVEN T. MASTORAS AND S. deBOER ON MARCH 8, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter is before the Tribunal is in respect of appeals from Stan Jaworski (the "Appellant") pursuant to s. 34(19) of the Planning Act ("Act") and s. 11(5) of the Aggregate Resources Act (the "ARA") against the County of Norfolk's (the "County") decision to approve the Zoning By-law Amendment application by Livingston Excavating and Trucking Inc. (the "Applicant").

2An Affidavit of service relating to the Hearing, dated February 1, 2023, was submitted as Exhibit 1.

3All additional Exhibits are identified and referenced in the List of Exhibits Schedule.

BACKGROUND AND AREA CONTEXT

4The Subject Lands are municipally known as 259 Windham East 1/4 Line Rd, Township of Windham. The Subject Lands are 36 hectares ("ha") in size with an aggregate extraction area of 25.9 ha.

5The Applicant has applied to the Ministry of Natural Resources and Forestry ("MNRF") to allow the extraction to occur below the waterline on site. The Applicant applied for a Class A, Category 1, (Pit Below the Water Table) licence ("Licence") at the above noted location on July 12, 2019. The proposed Licenced area is 36 ha, with an extraction area of 25.9 ha. The maximum number of tonnes of aggregate to be removed is 150,000 tonnes in any calendar year.

6The effect of the two instruments under appeal is to permit a rezoning of the Subject Lands from Agricultural Zone (A) and Hazard Lands (HL) to Extractive Industrial Zone (MX) to permit the establishment of a sand and gravel pit.

7Notification and consultation for this application has been carried out in accordance with the ARA and the Aggregate Resources of Ontario Provincial Standards ("AROPS"), which commenced on February 18, 2020.

8Four separate objections were received during the 45-day notification and consultation period from agencies and the public. On March 17, 2022, the Applicant submitted all the required information under section 4.3.4 of the AROPS and confirmed that the Appellant in this matter is the last objector to the ARA process.

9The Applicant has been unsuccessful in resolving the outstanding objection during the resolution of issues stage of this process. The list of unresolved issues included concerns and issues related to noise, dust and truck traffic.

10Consequently, in accordance with the ARA, the Ministry referred the application as per subsection 11(5) of the ARA to the Tribunal to determine whether a licence should be issued for the subject Site ("Site") as per Section 11(8) of the ARA.

HEARING ISSUES LIST AND PROCEDURE

11The Parties established an agreed-upon a list of issues including:

1. Are there any unacceptable adverse noise implications because of the Applications?
2. Are there any unacceptable adverse air quality (dust) implications because of the Applications?
3. Are there any unacceptable adverse truck traffic implications because of the Applications?

12The Parties also agreed that the hearing should proceed first with evidence and submissions from the Applicant, followed by the County, and finally by the Appellant who was self-represented.

APPLICANT'S PLANNING WITNESS TESTIMONY

13Brian Zeman appeared before the Tribunal as a prospective witness and the Tribunal proceeded to evaluate his land use planning and aggregate resources planning qualifications, in addition to being advised of the fact that Mr. Zeman has appeared before the Tribunal on numerous occasions. After careful review, the Tribunal qualified Mr. Zeman as an expert in land use planning and aggregate resource operations. Mr. Zeman testified in relation to both the ZBA and ARA matters before the Tribunal.

ARA Licence

14Regarding the ARA licence application, Mr. Zeman opined that the site is a Class B Pit, near Highways 3 and 24, with a total area of 36.6 ha and with a licenced area of extraction of 23.1 ha, and entry and exit to and from the Site is located at the south-easterly frontage along Fourteenth Street West (a collector road). Mr. Zeman testified that the Appellant's property abuts the site at the lower south-east corner.

15Mr. Zeman opined that all regulations and all requirements of the ARA have been met in accordance with s. 12(1) of the ARA, and that all provincial standards have been met including:

(a) the effect of the operation of the pit or quarry on the environment;

(b) the effect of the operation of the pit or quarry on nearby communities;

(c) any comments provided by a municipality in which the site is located;

(d) the suitability of the progressive rehabilitation and final rehabilitation plans for the site;

(e) any possible effects on ground and surface water resources including on drinking water sources;

(f) any possible effects of the operation of the pit or quarry on agricultural resources;

(g) any planning and land use considerations;

(h) the main haulage routes and proposed truck traffic to and from the site;

(i) the quality and quantity of the aggregate on the site;

(j) the applicant's history of compliance with this Act and the regulations, if a licence or permit has previously been issued to the applicant under this Act or a predecessor of this Act;...

16Mr. Zeman further testified that there are also neighbouring residential and commercial uses just across the road at the south end of the Site, and that there were several other licenced aggregate sites within the immediate area that operated as existing below waterline pits, including the Jaworski site (licence 3813), and licence 3796, in close proximity to the Site.

17Mr. Zeman also testified that no Official Plan amendment was required with this Application, but that a ZBA approval from the County was a requirement, and that it must be a component of the ARA licence application process as referred to in s.12(1)(g) above.

18Mr. Zeman concluded that it was his opinion that the application has appropriate regard for matters outlined in Section 12 (1) of the ARA. Furthermore, all the technical recommendations to ensure the site will be operated to minimize impacts on surrounding land uses are included on the ARA Site Plans dated November 18, 2021.

Land Use Planning

19Regarding the relevant land use planning matters before the Tribunal, Mr. Zeman opined that the application for a ZBA met all the necessary tests for approval by the County, and proceeded to outline the following:

20That the Application met the requirements in accordance with s. 2 of the Act, and the Application achieved the necessary objectives that are of provincial interest in meeting the initial tests of the Act.

21That the Application met the objectives set out in the Provincial Policy Statements of years 2014 and 2020 ("PPS") respectively and emphasized that the Application was consistent with these policy guidelines adhering to provincial standards.

22Additionally, the Application met the objectives of the Norfolk County Official Plan ("NCOP"), and that because an OPA was also not required, that the evidence supports the ZBA dated February 23, 2021, as amended, and conforms with the NCOP.

Issues List

23Regarding Issue 1 relating to noise emanating from the Site, Mr. Zeman testified that the combined 30-metre ("m") minimum setback requirement, a commitment to increase an already generous proposed 4-m berm to 8-m by the Applicant and an adherence to municipal requirements relating to sound level limits, hours of operation, restrictions and shielding, would all have an acceptable impact on noise levels at the Site. Furthermore, the witness alluded to a commitment to update the Site plan showing the 8-m berm replacing the 4-m proposed berm in the south-east corner abutting the Appellant's property, following the hearing.

24Mr. Zeman also opined that with the implementation of the mitigation measures outlined in the noise impact assessment and included on the ARA Site Plans, the noise impact assessment concluded that sound exposures from the proposed Emerson Pit would be in compliance with provincial noise guidelines for all surrounding sensitive land uses, including the Jaworski residence.

25Regarding Issue 2 relating to dust and air quality, Mr. Zeman opined that the Applicant is required to install and maintain a cedar tree screen, along with additional plantings, running in a north/south fashion at the south-east section of the Site, and along the front property line of the Site. Mr. Zeman testified that the cedar tree screen height minimum and with the implementation of the mitigation measures outlined in the ARA provincial standards and the ARA Site Plans for the proposed Emerson Pit, air quality impacts will be minimized and mitigated in accordance with provincial standards.

26Regarding Issue 3 relating to truck traffic, Mr. Zeman opined that the Applicant is required to seek the quickest and most efficient route an arterial roadway, and that in this case, the closest arterial roadway is Highway 24 via Fourteenth Street West at the existing entry and exit point in the south-east section of the Site.

27Mr. Zeman further testified that at peak periods there would be a maximum of 8 truck movements per hour, and that in the Applicant's Traffic Study, no further issues of concern were identified. Additionally, Mr. Zeman opined that the enhanced 8-m berm, would have an important impact on the visual and noise impact of these truck movements once implemented according to County standards.

COUNTY'S PLANNING WITNESS TESTIMONY

28Mohammad Alam, who is employed by the County in his capacity as a Principal Planner, deals primarily with all large ZBA/OPA and Site Plan applications and is a registered and qualified land use planner. After careful review, the Tribunal qualified Mr. Alam as an expert in land use planning.

29Mr. Alam testified that he assumed the file in June 2020, and the first statutory public meeting was held in December 2020. Mr. Alam referenced his witness statement (Ex.6) and did not alter any of his opinions in his testimony before the Tribunal.

30Mr. Alam corroborated the evidence submitted by Mr. Zeman regarding all 3 of the issues identified in the Procedural Order and supplemented the evidence through his testimony noting that neither the County's planning department, nor the County's engineering department's Environmental Infrastructure Services ("EIS") had any concerns with the Application.

31Mr. Alam confirmed the NCOP did not factor into the Application as the Site met all the NCOP criteria. Therefore, the matter became exclusively a ZBA withing the jurisdiction of the County.

32Mr. Alam opined that there were no traffic concerns, which paralleled testimony from Mr. Zeman, and that tree planting was encouraged by the County ensuring a focus on screening at the south-east corner of the Site, abutting the Appellant's property. Mr. Alam clarified that the 1.2-m tree height minimum should exist along the south property line, and the south-east corner of the Site.

33During cross examination from the Appellant, Mr. Alam testified that 2 locations of archeological significance existed on the Site, and that they were properly addressed in the Site plan conditions. In both cases the identified locations would be subject to a 20-m setback and perimeter fencing as required of the Applicant by the County. Mr. Alam opined that these locations would be assessed further over time but were not an impediment to the Application and its approval.

34Mr. Alam was also asked during cross-examination about the feasibility of requiring the Applicant to install concrete or stone barriers along the frontage of the Appellant's property, but testified that this was not feasible, as there were several constraints to this being a reasonable alternative to truck noise. Some of these constraints included issues with height, length, and setback conditions along Fourteenth Street West, and challenges associated to the area within the property line of the Appellant.

APPELLANT'S TESTIMONY

35The Appellant testified that his family has owned the property since the 1960s, and a large portion of the farm was sold to an aggregate licence owner in the 1970s by his mother. The Appellant also testified that he and his wife built a new home on the reduced lot in the early 1980s, located adjacent to the south-east corner of the Site.

36The Appellant asserted that he believed the referenced three Issues were of serious concern to him, and that the Applicant had only addressed these three Issues in a limited fashion.

37The Appellant further testified that they would be adversely impacted by noise associated with increased truck movements and that any suggestion to the contrary was not realistic, and that the proposed 4 m berm, was inadequate in addressing this concern.

38The Appellant also testified that air quality would be adversely affected by increased dust resulting from high winds, and increased traffic, and that notwithstanding the cedar tree and other plantings in the south-east corner of the Site and along the Site's frontage, this would have a minimal impact on mitigation of dust.

39Finally, the Appellant asserted that the expected increase in truck movements would adversely impact the value of the property and ultimately make living in the home very challenging.

40In conclusion, the Appellant testified that he has had several direct discussions with the Applicant and the result has been a commitment to enhance the proposed 4 m berm to 8 m, with the appropriate cedar tree minimum height commitment of 1.2 m from the Applicant, and some potential for private discussions to help mitigate concerns over these issues on the Appellant's private property.

ANALYSIS AND DISPOSITION

41The final ARA approval requirements of this Application are contingent on the Tribunal's evaluation of the ZBA as approved by the County. It is quite clear that the Licence application to a Class A, below water-line Pit request, is contingent on the ZBA. Therefore, it is important for the Tribunal to address the site-specific issues related to land use of the Site.

42The uncontroverted testimony and submissions of both expert planners identified that the 3 outstanding Issues were carefully addressed during the public consultation and meeting process, leading up to the County's ZBA approval. This was further evidenced during the testimony of both expert planners, and arguments to the contrary by the Appellant were not substantiated by any expert testimony or submissions to the Tribunal.

43Mr. Zeman's and Mr. Alam's testimony confirmed the Applicant met s. 2 requirements of the Act, achieved the PPS 2014 and PPS 2020 guideline objectives of the province, and provided evidence the Application was consistent with the NCOP.

44While there may be some site plan related modifications required by the County, specifically focused on the south-east corner of the Site abutting the Appellant's property, the Tribunal notes that these issues will be resolved in the final site plan analysis and consideration by the County and is not within the jurisdiction of the Tribunal.

45Therefore, the Tribunal is satisfied the Application meets the land use planning objectives required under s. 2 of the Act, the PPS, and the NCOP, and shall order the appeal dismissed, and the ZBA amendment decision upheld.

46The Tribunal is also satisfied the conditions of the ARA have been met, noting the ZBA forms an essential part of this licensing process, and is the remaining issue to be dealt with, facilitating the issuance of the ARA licence. Therefore, the Tribunal has no objection and pursuant to s. 11(8) of the ARA, the Minister of Natural Resources and Forestry be directed to issue the ARA Licence.

ORDER

47THE TRIBUNAL ORDERS that the appeal against By-law No. 2-Z-2021 of the County of Norfolk is dismissed.

48THE TRIBUNAL DIRECTS the Minister of Natural Resources and Forestry to issue the Category 1, Class A License to Livingstone Excavating and Trucking Inc. subject to the prescribed conditions in the revised site plan set out as Attachment 1 to this order.

"Steven T. Mastoras"

STEVEN T. MASTORAS

MEMBER

"S. deBoer"

S. deBOER

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.