Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 17, 2023
CASE NO(S).: OLT-22-003789
PROCEEDING COMMENCED UNDER subsection 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 52 ha 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)
PROCEEDING COMMENCED UNDER subsection 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.10
Applicant: Jackson Harvest Farms Ltd.
Objector: Alexandre Falagitis and Susan Kneller-Falagitis
Objector: Alyssa, Anne and Kevin Gosse
Objector: Angela Baden and others
Reference Number: ARA #626443
Property Address: Part Lot 10, Concession South of Bleams Road
Municipality/UT: Wilmot/Waterloo
OLT Case No.: OLT-22-004379
OLT Lead Case No: OLT-22-003789
Heard: April 25, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
Jackson Harvest Farms Ltd. (“Applicant/Appellant”)
A. Burton J. Wilker (in absentia)
The Corporation of the Township of Wilmot (“Township”)
E. Davis
The Regional Municipality of Waterloo (“Region”)
F. McCrea
Citizens for Safe Groundwater Inc.
R. Northey
MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE ON APRIL 25, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal held a third Case Management Conference (“CMC”) on April 25, 2023 regarding appeal proceedings brought by Jackson Harvest Farms Ltd. (“Applicant/Appellant”) under the Planning Act for the refusal by the Township of Wilmot (“Township”) to permit a Zoning By-law Amendment (“ZBA”) application. Also before the Tribunal was an appeal by the Appellant under the Aggregate Resources Act to grant a Class A (Category 3) Licence to permit the operation of an above water table pit. The appeals all relate to the properties located on Part Lot 10, Concession South of Bleams Road, municipally known as 1894 – 1922 Witmer Road (“Subject Lands”).
The Subject Lands are currently zoned Zone 1 (Agricultural) and this application proposes to rezone approximately 57.3 hectares (“ha”) of the lands to Zone 14 (Extractive Industrial). The extraction proposed is a Class 3 operation – being extraction above the water table only. The zoning also proposes to include the importation of concrete and asphalt for recycling as a use accessory to the gravel pit. The 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.
2The first CMC in this matter was held on September 23, 2022. Draft Issues Lists were provided on behalf of the Township and Citizens for Safe Groundwater Inc. (“CSGW”). The Region advised that it had no issues at that time but wanted to be advised of any changes to the Applications.
3In the second CMC on March 1, 2023, the The Minister of the Ministry of Natural Resources and Forestry (“MNRF”) withdrew itself as a Party to the proceedings and referred the licence application and a list of Objectors to the Tribunal, pursuant to s. 11(5) of the ARA. On the referral of an ARA application to the Tribunal, the Objectors to the ARA application are Parties in the Tribunal proceeding(s). The Tribunal formally consolidated the ARA licence application referral matter with the ZBA appeal.
5During the second CMC, the Applicant/Appellant indicated that it had entered into Minutes of Settlement (“MOS”) with the Township and the Region of Waterloo (“Region”). At that time the Tribunal decided to consider the MOS at the next CMC to ensure procedural fairness issues to all the parties.
PARTICIPANT STATUS REQUESTS
6Upon commencement of the CMC, the Tribunal received three requests for Participant status from Objector status. The Tribunal granted the following Participant status to the following individuals:
(1) Cheryl & David Prong
(2) Mary & Ron & Graham Deitner
(3) Linda Kress
7The Tribunal confirms Mr. David Lubell withdrew his Participant status in these proceedings.
8The Tribunal canvassed the Parties to determine if any Objectors or Participants were members of the CSGW. Rodney Northey counsel for CSGW, advised he would determine this and advise the Tribunal accordingly.
9At the current CMC, the Tribunal explained the expectations and responsibilities of a party in a hearing before the Tribunal, including that a party is required to attend on each day of the hearing, and that a party is expected to tender evidence to support the issues it intends to raise at the hearing. The Tribunal also explained that a party may be subject to a cost award. This is particularly necessary in this case since the Region, Township and the Appellant have reached a settlement.
10The Parties confirmed that a final Procedural Order (“PO”) has been set with fixed dates and there are no Objectors that have filed to have expert witnesses to be called for the October 30, 2023 (seven-day Hearing).
FINAL PROCEDURAL ORDER
11The Parties advised that an omission had been made with the final PO which did not name the Region as a Party. The Tribunal noted this and added the Region administratively to the final PO with no objections.
MOTION DATE
12Al Burton counsel for the Applicant/Appellant, requested a Motion Hearing date to possibly exclude two witnesses, the Agricultural Impact witness and the Hydrogeologist witness of the CSGW, who in his opinion have not addressed any of the four remaining Issues within the Final PO.
13Mr. Northey submits he has no comment on a request for a Motion Hearing date from the Applicant/Appellant, however, did state the Parties’ experts have met as prescribed in the PO and the exchange of witness statements scheduled for May 26, 2023 within the PO should address any concerns of issues.
14The Tribunal directs that a Motion Hearing date (one day) will be held by video hearing commencing on Wednesday, July 12, 2023, at 10 a.m.
15Parties and Participants are asked to log into the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections:
https://global.gotomeeting.com/join/914098901
Access code: 914-098-901
16Parties 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
17Persons 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: +1 (647) 497-9373 or Toll Free 1-888-299-1889. The access code is as indicated above.
18Individuals 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.
MEDIATION
19The Applicant/Appellant and CSGW acknowledge future discussions may result in agreement or narrowing of the Issues List and possibly an Agreed Statement of Facts.
20The Parties were reminded that they may contact the Tribunal Case Coordinator at any time to make a request for Tribunal-assisted mediation.
MINUTES OF SETTLEMENT
21Upon the commencement of the CMC, Mr. Burton advised the Tribunal that the Applicant/Appellant, Region and the Township have agreed to a comprehensive resolution of the Appeal pursuant to terms of Minutes of Settlement dated February 23, 2023 (filed and marked as Exhibit 2) and that the three Parties wished to allow factual information to be heard by the Tribunal at the current CMC.
22Mr. Northey advised that he will consent to hearing factual information of the MOS but no opinion evidence of the witness, registered planner David Sisco. Mr. Northey submits it is his understanding the current CMC involves presenting the MOS, however it is not a comprehensive Settlement Hearing. According to Mr. Northey the final PO outlines the Hearing of the merits of this appeal, which is already scheduled to begin October 30, 2023, for seven days.
23The Tribunal considered the wording in the final PO (Para. 4) which states “A CMC (which may include a partial or complete settlement hearing) is scheduled for one day on Tuesday April 25, 2023,…” and also notes the CMC order dated March 1, 2023 (Para. 4) which states, “The Settlement hearing will be considered by the Tribunal during the subsequent CMC.”
24The Tribunal heard submissions from all Parties on whether to hear partial information on the MOS and determined only factual information of the MOS was to be heard at the current CMC.
25Therefore, the Tribunal allows to hear only factual information of the MOS at the current CMC without making any determinative decision on the merits of the case. To allow for procedural fairness to all Parties, the merits of the case will be heard as previously scheduled on October 30, 2023.
26The Tribunal received and marked the following documents as Exhibits:
Exhibit 2: Minutes of Settlement dated February 15, 2023
Exhibit 3: Affidavit of David Sisco dated April 13, 2023
FACTUAL INFORMATION OF THE MOS
Brief Chronology of the Applications
27Mr. Sisco advised on February 20, 2018, he was retained by the Applicant/Appellant to assist with the rezoning and ARA applications (“Applications”) to permit a gravel pit operation (“Hallman Pit”), including the recycling of concrete and asphalt. In support of the Applications, he prepared a Planning Justification Report (“PJR”) to provide government review agencies with the necessary information for evaluation and approval, and to the public to provide an overall understanding of the Applications.
28Mr. Sisco advised the Grand River Conservation Authority (“GRCA”) requested additional ecological protection of the Schindelsteddle South Wetland Complex (“SSWC”), which is located centrally on the eastern limit of the Subject Lands. Accordingly, the Applicant has requested for 4.3 ha of the Subject Lands, which lie within the SSWC, to be rezoned from Z1 (Agriculture) to Z11 (Open Space).
29As required by Official Plan Policy 7.2.4.2, a pre-submission consultation meeting was held on November 29, 2018, which included staff from the Region, GRCA, Township, Applicant and consultants retained by the Applicant.
30Mr. Sisco detailed the studies completed namely, Agricultural Impact Assessment; Archaeological Assessment; Hydrogeological Assessment; Environmental Impact Statement/Natural Environment Report; Noise Impact Assessment; Traffic Impact Assessment; and Geotechnical Assessment of the Haul Route.
31Mr. Sisco advised all of the studies were completed, appended to the PJR dated October 11, 2019, and submitted to the Township in support of the rezoning application. These studies were also submitted concurrently to the MNRF in support of the ARA license application.
32Mr. Sisco explained, to address Region Official Plan (ROP) Policy 9.C.4 with respect to potential cumulative impacts due to the existence of seven pits within the vicinity of the proposed Hallman Pit, he prepared the PJR Addendum dated October 21, 2020 and submitted it to the Region in further support of the rezoning application.
33According to Mr. Sisco after completing its review of the Applications, the Region provided its comments to the Township and MNRF. The Region stated it has no objection to either application.
34On April 4, 2022, Township staff prepared a report to Council recommending approval of the rezoning application, together with a draft amending zoning-bylaw.
35Despite recommendation to Council by Township staff, Township Council declined the rezoning application. The Applicant appealed the rezoning application to the Tribunal on May 3, 2022.
36The first CMC in this matter was held on September 23, 2022. Draft Issues Lists were provided on behalf of the Township and CSGW. The Region advised that it had no issues at that time but wanted to be advised of any changes to the Applications.
37On February 23, 2023, the Applicant, the Township and the Region entered into MOS with respect to the Applications following discussions after the CMC.
Subject Lands and Surrounding Area
38Mr. Sisco advised the Subject Lands are located in the southeastern portion of the Township and have frontage onto the north side of Witmer Road as well as a farm-lane frontage onto Bleams Road.
39North of the Subject Lands is the Shingletown Rural Settlement Area, which consists of residential homes along Bleams Road.
40East of the Subject Lands is predominantly farmland for annual row crops. There are several non-farm residences along the Witmer Road frontage.
41South of the Subject Lands are seven licensed pits. With the exception of one pit, very little extraction activity has been observed in the balance of the pits over the past numerous years.
42Southwest of the Subject Lands is additional agricultural lands which include a poultry operation.
43West of the Subject Lands is additional farmland which extends to Sandhills Road.
Recommendations from Region and Township
44Mr. Sisco advised that recommendations from the Region and Township were addressed including one recommendation from a CSGW consultant on a geotechnical peer review concerning clay in the ground.
45Mr. Sisco advised the Appellant and the Township also have a Witmer Road Reconstruction Agreement. The Appellant has entered into a written agreement with the Township requiring the Appellant to reconstruct Witmer Road from Queen Street to just west of the proposed pit entrance, to the satisfaction of the Township, and at no cost to the Township, prior to the commencement of aggregate extraction operations (save and except for extraction activities required to source materials solely for use in the reconstruction of Witmer Road), subject to the approval of the MNRF, if required.
46Mr. Sisco advised the recommendations from the Township and the ARA Application were addressed through the Site Plan. Prior to commencement of shipping activities, the pit entrance shall be paved from the limit of asphalt on Witmer Road to, at a minimum, the weigh scale and that the weigh scale shall include a grizzly screen at its approach. Pit traffic will not be permitted west of the entrance on Witmer Road, save and except for delivery to Witmer Rd. The farm-type gated access from Bleams Road (Shingleton) shall be limited to farm access only with access for pit operations prohibited save and except for access by motor vehicles with a vehicle registration weight of less than 4,500 kilograms entering the site for the sole purpose of monitoring, engineering activities, and data collection required as part of the license. Hours of operation were also listed in relation to noise for Site Preparation, Excavation/Processing and Shipping hours.
47Mr. Sisco also advised of the Township ZBLA No. 83-38 and draft By-law which the Subject Lands are requesting be removed from Zone 1 (Agricultural) and placed within Zone 1 (Agricultural), Zone 11 (Open Space) and Zone 14 (Extractive Industrial).
ORDER
48The Tribunal orders that a Motion Hearing will commence by video hearing on Wednesday, July 12, 2023, at 10 a.m.
49There will be no further notice.
50The Member is seized of both the Motion Hearing date July 12, 2023 and Hearing dates commencing October 30, 2023 (seven days).
“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.