Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 24, 2023 CASE NO(S).: OLT-21-001172
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 1025343 Ontario Inc. Subject: Application to amend Zoning By-law No. 52-2006 – Refusal or neglect of the Municipality of Huron East to make a decision Existing Zoning: IND (Industrial Zone) Proposed Zoning: IND-11 (Industrial Special Zone) Purpose: To permit a cannabis production facility Property Address/Description: 40 1st Avenue Municipality: Huron East Municipality File No.: Z04-21 OLT Case No.: OLT-21-001172 OLT Lead Case No.: OLT-21-001172 OLT Case Name: 1025343 Ontario Inc. v. Huron East (Municipality)
Heard: November 10, 2022 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 1025343 Ontario Inc. | Terra Duchene |
| Municipality of Huron East | Greg Stewart |
MEMORANDUM OF ORAL DECISION DELIVERED S. BOBKA ON NOVEMBER 10, 2022 AND ORDER OF THE TRIBUNAL
1This was the first Case Management Conference (“CMC”) regarding an appeal by 1025343 Ontario Inc. (“Applicant/Appellant”) pursuant to s. 34(11) of the Planning Act (“Act”) for the denial of an application for a Zoning By-law Amendment (“ZBA”) by the Municipality of Huron East (“Municipality”) for the property municipally known as 40 1st Avenue (“Subject Property”).
2The Tribunal confirmed that proper Notice was given and marked the Affidavit of Service as Exhibit 1. In response to the Notice, no written requests for Party or Participant status were received and no individuals appeared at the CMC seeking status.
3The Tribunal was advised, prior to the CMC, that the Parties had reached a settlement. Pursuant to Rule 19.6 of the Tribunal’s Rules of Practice and Procedure, the Tribunal converted the CMC to a settlement hearing.
SUBJECT PROPERTY
4The Subject Property:
a) contains an existing building which is to be used for a Cannabis Production Facility;
b) is 0.78 acres in area;
c) is identified as “Settlement Areas” on the Settlement Areas Map in the County of Huron Official Plan (“COP”);
d) is designated Commercial/Industrial, in the Huron East Official Plan (“OP”);
e) is subject to site plan control;
f) is approximately 30 metres (“m”) from the municipally owned Curling Club, located on the neighbouring Community Facility Zoned property; and,
g) is located 115 m from a dwelling unit, located to the east.
LEGISLATIVE TESTS
5In making a decision on the ZBA before it, the Tribunal must be satisfied that it is consistent with the Provincial Policy Statement (“PPS”) and that it conforms to the applicable Official Plans. In addition, the Tribunal must have regard to the matters of provincial interest in s. 2 of the Act and in general, regard for the related decisions of the municipality, and be satisfied that the proposed ZBA represents good planning and is in the public interest.
HEARING
6The Tribunal received and marked the following:
Exhibit 1 – Affidavit of Service
Exhibit 2 – Settlement Document Brief
7The Tribunal had the benefit of the oral testimony and sworn Affidavit of Caroline Baker, a Land Use Planner retained by the Municipality. Upon review of her Curriculum Vitae and Acknowledgement of Expert’s Duty, the Tribunal qualified Ms. Baker to provide opinion evidence in land use planning.
8Ms. Baker provided the Tribunal with a history of the proposal. The Application was initially submitted on March 8, 2021, to permit the construction of a Cannabis Production Facility, which is a permitted use on the Subject Property.
9The Application would provide for the following site-specific provisions:
a) To permit a minimum setback from a Cannabis Production Facility to a Community Facility of 30 metres, whereas 150 metres is required.
b) To permit a minimum setback from a Cannabis Production Facility to any residential dwelling of 115 metres. (Exhibit 2, paragraph 7)
10In response to comments received at the Statutory Public Meeting, the Applicant submitted an updated Odour Management Plan (“Plan”), which outlined that in order to reduce fugitive emissions, the proposed building would be kept at negative pressure and would direct and process the air using dry scrubbing technology to remove odour. The Plan outlines the maintenance and monitoring requirements of the proposed facility, the process for receiving and reviewing complaints and the proposed Contingency and Emergency Plans. The Plan also identifies the maximum odour emission rate of 0.48 odour units per cubic metre (known as the Odour Detection Threshold) from the carbon scrubber.
11The Staff Report recommended approval of the Application. The Council of the Municipality refused the Application on June 10, 2021. The Applicant appealed the refusal to this Tribunal on June 28, 2021.
12Following this, the Municipality retained Baker Planning Group and PG Compliance Management Inc. (“PG”) to do a peer review and provide recommendations regarding the Appeal. PG provided an analysis and proposed conditions to provide greater clarity and certainty that the conclusions and recommendations of the Plan were sufficient and were implemented appropriately.
13The Applicant and the Municipality then entered into Minutes of Settlement (“MOS”) in which the Applicant agreed to additional measures to ensure the Plan’s conclusions were followed and appropriate protocols established to address any issues or complaints. By entering into the settlement, the Applicant has agreed to:
on-going compliance monitoring, reporting and the development of a system to address substantiated complaints that may be received regarding odour. These supplementary conditions are further documented; but do not form part of the Settlement requested to be included in the Tribunal Order. (Exhibit 2, paragraph 18)
14The MOS include a revised ZBA (sought to be approved by the Tribunal) that adds a Holding Provision to the site-specific zone (Industrial Special Zone IND-11). Before the Holding Provision can be lifted, the following is required:
The Cannabis Production Facility shall prepare and submit to Huron East for peer review, an Emission Summary and Dispersion Modelling (ESDM) report following the applicable Ministry of the Environment, Conservation and Parks guidelines. Air contaminants (chemicals) and odour released from the facility are the contaminants of concern. The ESDM is to be signed by the Proponent and by a qualified Professional Engineer licensed in the Province of Ontario in good standing with the Professional Engineers of Ontario. The ESDM must include a signed statement by the Engineer that in their opinion, cannabis odour from the Cannabis Facility will not adversely impact the surrounding community. The ESDM is to include the maximum number of cannabis plants that will be situated within the Facility. The ESDM must be completed prior to occupancy of the building by a cannabis facility. (Exhibit 2, page 37)
PLANNING EVIDENCE
15Regarding s. 2 of the Act, Ms. Baker opined that the application has had regard to matters of provincial interest, including, but not limited to:
h) the orderly development of safe and healthy communities;
k) the adequate provision of employment opportunities;
n) the resolution of planning conflicts involving public and private interests;
o) the protection of public health and safety; and
p) the appropriate location of growth and development.
16In terms of the PPS, Ms. Baker cited s. 1.1.3.1 and s. 1.1.3.2 which focus growth and development to settlement areas based on densities and a mix of land uses, including but not limited to:
a) efficient land and resource use;
b) appropriate and efficient use of infrastructure and public service facilities; and
c) minimizing negative impacts to air quality and climate change, while promoting energy efficiency.
17It was her opinion that the Subject Property is within a settlement area and efficiently uses an existing industrial property and building for an industrial use that is permitted.
18Regarding compatibility between land uses, Ms. Baker highlighted s. 1.2.6.1 of the PPS, which identifies that industries and sensitive land uses should be “designed, buffered and/or separated from each other to prevent or mitigate adverse effects from odour … minimize risk to public health and safety, and to ensure the long term viability of major facilities.” She opined that the Plan and additional conditions of the Settlement ensure on-going compliance and management regarding matters of public health and safety.
19Ms. Baker stated that s. 1.7 of the PPS provides policies to support long-term economic prosperity and that the proposed development will re-use an existing industrial property to support a local business and create employment.
20Ms. Baker identified s. 4.3 of the COP that provides community values, policies and directions for economic development (as well as other sectors) which seek to provide a mix of employment opportunities and sites for employment, to provide the required infrastructure, to promote efficient, mixed-use development supporting liveable and resilient communities and to preserve and protect employment areas now and in the future.
21She highlighted that s. 7 directs that growth and development will be primarily directed to Settlement Areas with full municipal services and further directs in s. 7.3.6 that industrial and commercial uses will be:
designed, buffered and/or separated from sensitive land uses … to prevent or mitigate adverse effects from odour, noise and other contaminants,
minimize risk to public health and safety, and to ensure the long-term viability of major facilities. (Exhibit 2, paragraph 41)
22It was Ms. Baker’s professional opinion that the application supports employment uses within a Settlement Area while ensuring the appropriate controls regarding the protection of the surrounding sensitive land uses from odour impacts and that the proposal has regard for the policies of the COP.
23With regard to the OP, Ms. Baker stated that s. 6.5.3.2.1 identifies that industrial uses are intended to include those compliant with servicing capacity and Provincial emission standards. It was her opinion that the application and proposed settlement conform to the OP as “an industrial use with supporting documentation demonstrating compliance to the standards from the MECP.”
24Regarding Zoning By-law No. 52-2006, Ms. Baker opined that the proposed use is permitted, subject to compliance with s. 3.52 of the By-law. The proposal features a smaller setback than required in s. 3.52, which resulted in the request to reduce the setbacks to both the adjacent community facility and residential area. It was Ms. Baker’s opinion that the application and settlement maintain the intent of the separation, expressed in s. 3.52, by demonstrating no adverse negative odour impacts to surrounding land uses.
25In conclusion, Ms. Baker was of the opinion that the proposal, with the Holding Provision and on-going compliance monitoring as provided in the Settlement (as jointly requested by all Parties), is appropriate and representative of good land use planning and is in the public interest.
26It was Ms. Baker’s professional opinion that the ZBA application has regard to matters of provincial interest found in s. 2 of the Act, is consistent with the PPS and conforms with both the COP and the OP.
FINDINGS
27The Tribunal accepts the uncontroverted evidence and testimony of Ms. Baker.
28The Tribunal is satisfied that the proposed ZBA is consistent with the PPS and conforms to the applicable Official Plans. The Tribunal has had regard to the matters of provincial interest in s. 2 of the Act and in general, regard for the related decision of the municipality, and is satisfied that the proposed ZBA represents good planning and is in the public interest, specifically as it will encourage employment on land that is designated for industrial use while protecting against adverse impacts on surrounding sensitive land uses.
29Further, the Tribunal finds that the issue of odour emissions as well as the implementation of measures to contain odour will be satisfactorily addressed through the proposed ZBA (including the Holding Provision) and the conditions outlined in the MOS.
30As a result of the foregoing, the Tribunal will approve the proposed ZBA.
ORDER
31THE TRIBUNAL ORDERS that the Appeal is allowed, in part, and By-law No. 52-2006 of the Municipality of Huron East is hereby amended as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the Municipality of Huron East 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.
ATTACHMENT 1
ZONING BY-LAW AMENDMENT
This by-law shall apply to Plan 133, Part Lot 40, Tuckersmith Ward, Municipality of Huron East, Assessment Roll Number 4040 160 031 25401 and is comprised of the attached Schedules.
Section 32.5 Special Zones of Zoning By-law 52-2006 is hereby amended by the addition of the following:
32.5 IND-11
Notwithstanding the provisions of Section 3.52 (Cannabis Production Facility) to the contrary, on the lands zoned IND-11, a Cannabis Production Facility equipped with air treatment control and is permitted to be setback a minimum 30 metres to the main building on the abutting Community Facility Zoned property and setback a minimum of 115 metres to any residential dwelling. This property and the existing building are subject to site plan control and subject to a holding zone.
The Holding Zone will remain in effect until the following is completed to the satisfaction of the Municipality:
The Cannabis Production Facility shall prepare and submit to Huron East for peer review, an Emission Summary and Dispersion Modelling (ESDM) report following the applicable Ministry of the Environment, Conservation and Parks guidelines. Air contaminants (chemicals) and odour released from the facility are the contaminants of concern. The ESDM is to be signed by the Proponent and by a qualified Professional Engineer licensed in the Province of Ontario in good standing with Professional Engineers of Ontario. The ESDM must include a signed statement by the Engineer that in their opinion, cannabis odour from the Cannabis Facility will not adversely impact the surrounding community. The ESDM is to include the maximum number of cannabis plants that will be situated within the Facility. The ESDM must be completed prior to occupancy of the building by a cannabis facility.
All other provisions of By-law 52-2006 shall continue to apply.
This by-law affects Zone Map 38 of By-law 52-2006, attached as Schedule A.