Ontario Land Tribunal

Tribunal ontarien de l'aménagement du territoire

ISSUE DATE: May 16, 2023 CASE NO(S).: OLT-22-004384

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

Applicant: Ian Ferris & Cinzia Arcuri Appellant: Alisha & David Hirsch Subject: Zoning By-law Amendment Description: To permit the development of 3 cabins Reference Number: Z.12.2022 Property Address: 687139 Sideroad 19 Municipality/UT: City of Grey Highlands/ County of Grey OLT Case No.: OLT-22-004384 OLT Lead Case No.: OLT-22-004384 OLT Case Name: Hirsch v. Grey Highlands (City)

Heard: April 27-28, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Ian Ferris and Cinzia Arcuri ("Applicants")	Victor Vandergust
David and Alisha Hirsch ("Appellants")	Carly Emmett
Grey Highlands ("Municipality")	Edward Veldboom

MEMORANDUM OF DECISION DELIVERED BY ERIC S. CROWE AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened a Hearing on an appeal filed by David and Alisha Hirsch ("Appellants") against the Municipality of Grey Highlands ("Municipality") regarding Council's approval of Zoning By-law No. 2022-070 ("ZBLA") application concerning 687139 Sideroad 19 ("Subject Lands").

2The purpose of the ZBLA application is to amend the Zoning By-law No. 2004-50 ("ZBL") to permit a maximum of three (3) cabins (less than 10 square meters ("m²")) for overnight short-term accommodation purposes on the Subject Lands.

3The effect of this ZBLA is to rezone a portion of the Subject Lands from Agricultural (A1) to A1-448 site specific. The A1 zone permits the proposed use. The A1- 448 exception will limit the number of permitted cabins to a total of three (3).

BRIEF CHRONOLOGY OF THE APPLICATION

4On February 11, 2022 the application was made to facilitate the establishment of three cabins for overnight and short term accommodation use to be placed on the property

5The submission included the signed and commissioned Application. The purpose of the application was, "to permit the use of a portion of the subject lands, being 687139 Sideroad 19, for Resource Based Recreation Use with such use being comprised of up to 5 (tiny) (less than 10 m²) cabins for over-night or short-term accommodation purposes;". The proposed zoning is to the Agricultural (A1-Site Specific) to Open Space (OS-Site Specific) zone.

6The submission also included a Planning Justification Report submitted by David Finbow dated February 8, 2022.

7A Notice of Public Meeting was issued on April 27, 2022. Notice of Public Meeting purpose and effect are as follows:

• The purpose of Zoning By-law Amendment Z12.2022: To amend the Municipality of Grey Highlands Comprehensive Zoning By-law 2004-50 to permit a maximum of 3 tiny cabins (less than 10 m²) for overnight or short-term accommodation purposes on the subject property.
• The effect of this By-law is to rezone a portion of the subject lands from Agricultural (A1) to Open Space (OS-448). The Open Space zone permits the proposed use. The 488 exception will limit the number of permitted cabins to a total of 3.
• On May 30, 2022, a statutory public meeting (virtual) was held. A municipal staff report was provided at this meeting.

8Following the statutory public meeting and the application review process, the proposed use was redefined from a Resource Based Recreational Use to an On-Farm Diversified Use ("OFDU"). No new Notice was issued to reflect this change.

9On July 6, 2022, the application was presented to Council, including an updated Staff Report dated July 6, 2022 which recommended approval of the application. The updated Staff Report provided commentary from the May 30, 2022 Public meeting. Council subsequently deferred the application pending receipt of additional information.

10On August 3, 2022, the application again is brought before Council. A Staff Report was presented at this meeting with additional information related to subject matter as requested by Council at the July 6, 2022, Council meeting. Council recommended approval.

11The Council approved ZBLA 2022-070 on August 3, 2022 on recommendations from Planning staff. The adopted ZBL rezones a portion of the land to Agricultural (A1-448) Zone.

• 16.448 Notwithstanding any other provisions of this by-law to the contrary, on the portion of the lands known municipally as 687139 Side Road 19 and located in the A1-448 one, a maximum of 3 cabins for accommodation purposes, and uses accessory thereto, to support the agri-tourism use of the lands, are permitted subject to the following: to permit a maximum of three (3) cabins for accommodation purposes and uses accessory, to support the agri-tourism use of the lands subject to the following provisions; i. No building or structure forming part of or associated with the agri- tourism use of the lands shall be located within 10.0 m of the west property line. ii. The agri-tourism use will be treated as "hosted" wherein the property owners will be present on the property while the cabins are rented. iii. Site Plan Approval in accordance with section 41 of the Planning Act shall apply.

12The Appellants who are adjacent neighbours to the Applicant and Subject Lands filed their appeal on September 2, 2022 noting the proposal does not have regard to the Planning Act, is not consistent with the Provincial Policy Statement ("PPS"), does not conform with the County of Grey Official Plan (2019) and Municipality of Grey Highlands Official Plan (2017). Finally, the proposal does not meet the general intent and purpose of the Municipality of Grey Highlands ZBL No. 2004-50 as amended.

WITNESSES

13At the commencement of the Hearing Counsel for the Municipality, Edward Velboom, requested to formally remove the Municipality as a Party. Mr. Veldboom advised the Municipality would not be calling any expert witnesses and only wanted to be involved as a Party before the hearing commenced in case any issues arose that directly involved the Municipality before the hearing. The Tribunal granted this request.

14In opposition of the proposal and as a witness, Kristine Loft who was qualified on consent by the Tribunal to give expert opinion evidence in the area of Land Use Planning. Ms. Loft was also former senior planner for the County of Grey and author of the Municipality OP and ZBL in 2015.

15In support of the proposal and as a witness for the Applicant/Appellant, Ian Ferris the Applicant himself and owner of the Subject Lands was a lay witness. Michael Benner was qualified on consent by the Tribunal to give expert opinion evidence in the area of Land Use Planning. Mr. Benner was previously employed by the Municipality as the Director of Building and Planning Services at the time when the subject amendment was processed by the municipality. He is the author of the two planning reports (PL.22.63 and PL.22.95), associated with the subject amendment, and was present during the May 30, 2022, Public Meeting associated with the amendment. David Finbow was qualified by the Tribunal to give expert opinion evidence involving the Building Code Act and opinion evidence in the area of Multi Distance Separation ("MDS").

16Rebecca Hillyer, a Planner for the County of Grey appeared under summons and was qualified on consent to provide land use planning opinion evidence.

17The Tribunal received and marked the following documents as Exhibits to the Hearing:

Exhibit 2: Joint Document Book Exhibit 3: Policy Document Book Exhibit 4: Amendment to ZBL 2022-070

LEGISLATIVE TEST

18In making a decision with respect to a ZBLA, the Tribunal must consider s. 2 and s. 3 (5) of the Planning Act ("Act") which requires that the Tribunal have regard to matters of Provincial interest, and consistency with the PPS and conformity with Provincial Plans. In addition, with s. 24(1) of the "Act". Despite any other general or special Act, where an Official Plan is in effect, no public work shall be undertaken and, except as provided in subsections (2) and (4), no by-law shall be passed for any purpose that does not conform therewith.

SUBJECT LANDS

19The Subject Lands are located on the north side of Side Road 19, and on the west of Grey Road 13.

20The Subject Lands are composed of two separate lots. One parcel is 11.4 hectares ("ha") in size fronting on Sideroad 19 containing a dwelling, barn, shed and workshop. The other parcel is 20 ha in size with no frontage or structures abutting the first parcel at its northwest corner of the lot.

21The Subject Lands are designated Agricultural and Niagara Escarpment Plan (Development Control) on Schedule A Land Use in the Official Plan of Municipality of Grey Highlands.

22The Subject Lands are currently zoned Agricultural (A1) in the Municipality Comprehensive ZBL No. 2004-50.

AGREED STATEMENT OF FACTS (ASF)

23The Parties planners presented a ASF which outlines the following:

1. Kristine Loft and Michael Benner discussed the applications and the Issues List during the expert planners' meetings on February 23, 2023 as well as by circulation of this Statement.
2. It was agreed that the municipality held a statutory public meeting on May 30, 2022 and has been made aware of public comments. Following the public meeting, the file was presented to the Committee of the Whole on July 6, 2022 and Council on August 3, 2022.
3. It was agreed that the proposed zoning bylaw amendment is to rezone a portion of the lands to permit three cabins (10 square metres per cabin) for overnight / short term accommodation use.
4. It was agreed that the Planning Application as applied for was originally submitted to rezone a portion of the lands to the Open Space (OS) zone and as result of agency comments the rezoning was amended to an Agricultural – Site Specific (A1-448) zone.
5. It was agreed that the lands are designated Agricultural and Hazard in the County of Grey Official Plan and the Municipality of Grey Highlands Official Plan.
6. The lands are also partially within the Niagara Escarpment Plan Area. It is agreed that the development proposal is not within the Niagara Escarpment Plan Area.
7. It was agreed that the lands are zoned Agricultural (A1) in the Municipality of Grey Highlands Zoning Bylaw 2004-50.
8. It is agreed that Policy 4.1.2(d) of the Grey Highlands Official Plan indicates that Minimum Distance Separation I (MDS I) is required for on-farm diversified uses.

PLANNING EVIDENCE

[PLANNING ACT](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

24Kristine Loft, highlights section 2 (b) of the Planning Act ("Act") which requires the protection of the agricultural resources of the province and the subject lands are identified as Prime Agricultural Lands and as being within a Prime Agricultural Area. The application proposes three cabins for short term and overnight accommodation, described by the applicant as a recreational based use, on prime agricultural lands and within a prime agricultural area which are protected by provincial policy for long term agricultural use by generally restricting uses to those that have an agricultural base.

25In Ms. Loft's opinion, the lands are within a Prime Agricultural Area, and that the proposed use does not meet the policies for an OFDU and therefore does not conform to s. 2(b) of the Act.

26Furthermore, she opines that sufficient and accurate information required under Section 34(12) of the Act was not provided to the public so that they may have a general understanding of the application that was being considered and the potential impacts on the agricultural community that surrounds the Subject Lands. Therefore, in her opinion, the proposal does not meet the requirements of the Act.

27Michael Benner's witness statement stated the Subject Lands could not be considered to be Prime Agricultural Lands as the Subject Lands are classified as Class 6 soils in accordance with the Canadian Lands Inventory Soils Capability for Agriculture. The 2020 Provincial Policy Statement ("PPS") defines Prime Agricultural Lands as:

Prime agricultural land: means specialty crop areas and/or Canada Land Inventory Class 1, 2, and 3 lands, as amended from time to time, in this order of priority for protection.

28Under Cross examination, Mr. Benner conceded that the Subject Lands were considered Prime agricultural land under Class 1 as pointed out in Ms. Loft's testimony.

29Mr. Benner testified the agricultural portions of the Subject Lands are currently, and have historically, been used for the production of forage crops and grains. The proposed use will be located in a cluster in close proximity to the existing on-site dwelling and ancillary structures. The loss of agricultural lands will, therefore, be minimized. Agricultural operations (tilling, seeding and harvesting) are part of the agri-tourism experience and will continue to harmoniously operate in concert with cabins rentals.

30Mr. Benner opines those agricultural resources on the Subject Lands are being protected and the application meets the Act requirements and represents good planning.

Initial Application and Notice

31Ms. Loft highlighted that the original application proposed five cabins then it was revised to three cabins and it was resource-based recreational use and revised to agri-tourism and OFDU. However, the submission by the Applicant, Notice of Public Meeting and Notice of Decision all refer to the proposed use as Resource Based Recreational Use and refers to the Open Space (OS) zone.

32Furthermore, Ms. Loft opines the tests and criteria for an OFDU were not taken into consideration through the ZBLA process, nor were the Guidelines that are specifically meant to aid Planners and Council in the determination of Permitted Uses within a Prime Agricultural Area.

33Ms. Hillyer testified that it was normal practice for the upper tier in this case the County of Grey review applications and make comments and or recommendations to the lower tier Municipality. In this case, Ms. Hillyer advised she reviewed the application with the Applicant and proposed reducing the number of cabins from five to three cabins to ensure it was not out of scale for a small agri-tourism use and consolidate the cabins to reduce MDS radius with barn operations and recognize scale to Bed and Breakfast establishment.

34In addition, Ms. Hillyer testified the recommendation from the County to the Municipality that staff consider revising the proposed zoning amendment to a site-specific re-zoning of the A1 zone, to permit 'Limited Accommodation (maximum of 3 tiny cabins) to support an Agri-tourism use' in order to facilitate alignment with the County's OP (rather than a Resource Based Recreation Use).

35In regard to the Notice that referred to the resource-based use instead of the OFDU, and the rezoning, Ms. Hillyer testified that it is common for the terminology to change and in this case, there was no change of the intention of the application and only change of terminology on the planning side to have correct labels.

36Ms. Hillyer acknowledged that agri-tourism and OFDU policies have come into effect within the PPS have accelerated in the past twenty years and explained the rationale for OFDU are due to the challenges of a younger generation of farmers with high real estate prices and concerns there are not enough farms or farmers. These new policies speak to assisting farmers including certain provisions in the County OP.

37Mr. Benner testified that the circulation of the Notice had the indication of rezoning from A1 to OS- 448 exception. Mr. Benner advised the technical changes of five to three cabins and agri-tourism use from resource based recreational use were all captured in his Planning Justification Report ("PJR") which was attached to the Staff Report presented to Council.

38In regard to missing pages 5, 6 and 7 of the application as noted by the Appellant's counsel, Mr. Benner explained, when a proposal comes forward it is common practice the Municipality does not receive all pages back. In this case, page 5 and 7 are instructional pages and page 6 deals with MDS calculations which was not applicable.

39The consolidated reply statement from the Applicant advised that in respect of s. 34 of the Act respecting notification requirements for public meetings, was this is not an area cited as a reason for the appeal to the Tribunal. Furthermore, it is noted that this is contrary to the submissions of the Municipality staff who at the Statutory Public Meeting confirmed that proper notice was given. Further, planning applications are frequently revised in response to comments from the public and commenting agencies post the Statutory Public Meeting.

40Evidence showed the Appellants provided written correspondence dated May 27, 2022 for the May 30, 2022 statutory public meeting and also participated in the Committee of the Whole (CoW) meeting on 6 July, 2022.

Analysis

41The Tribunal has considered all the evidence in regard to Notice and finds that proper Notice was served for the statutory public meeting on May 30, 2022 and there were no procedural errors that occurred involving this application. Staff advised Council that there was proper Notice and the Appellant's provided written correspondence for the statutory public meeting and participated in the CoW meeting.

42In regard to the change of zoning and resource recreational based use to OFDU, the Tribunal agrees with Ms. Hillyer that there was no change on the intention of the application and only change of terminology on the planning side.

43Mr. Benner also explained through his testimony that revisions to the planning application in response to public and agency comments during the course of the processing of the application is common, including post a statutory public meeting, especially in the instance where the revisions constitute lowering or mitigating impacts.

PROVINCIAL POLICY STATEMENT 2020

44Ms. Loft highlighted several sections of the PPS. In regard to S 1.1.1 Healthy livable safe communities, Ms. Loft contends the proposed use does not constitute efficient development and does not promote land use patterns which will sustain the well being of the Province and municipalities over the long term.

45In regard to development in rural areas, Ms. Loft submits the proposed use is not related to and does not support an agricultural operation. The introduction of potentially conflicting uses to an agricultural area does not build upon rural character. The use does not diversify the economic base of an agricultural use. The use at this location may not be considered to contribute to sustainable and diversified tourism.

46Ms. Loft highlights s. 2.3.2 which provides for Examples of OFDU which include agri- tourism uses, bed and breakfasts and on farm suites. She notes that the Guidelines indicate that examples of on-farm diversified uses provided all PPS criteria are met.

47Ms. Loft contends s. 2.4 provides that categorizing a use as an agricultural related use or OFDU depends on a number of considerations. In her opinion the proposed use is not agricultural and is not an agricultural related use. The proposed use is not an OFDU as it is not secondary to the principal agricultural use of the property and does not meet all of the criteria as outlined in s. 2.3.1.

48Ms. Loft submits the proposed three cabins does not meet the criteria of an OFDU as outlined in the Guidelines. The lands are not located on a farm operation where the use supports the agricultural operation, the use is not secondary to the principal agricultural use of the property, the use is not a permitted use as it is not related to the agricultural operation and the use is not compatible as it does not meet Minimum Distance Separation ("MDS") I.

49Ms. Loft highlighted s. 2.3.3.3 which requires that new land uses in prime agricultural uses comply with the MDS Formulae. MDS I is not met, nor does the planning justification report or municipal staff reports calculate MDS I.

50Therefore, in Ms. Loft's opinion the proposal is not consistent with the PPS.

51In regard to PPS provisions for healthy, integrated and viable rural areas, Mr. Benner proffered, the proposed use will not have a negative impact on rural land uses as the use is very minor in nature and located within an agricultural land use. The proposed use can be considered an OFDU compatible with the existing agricultural uses on the property and will not detract from the long-term protection of this use.

52In Mr. Benner's opinion, the application is consistent with the PPS.

COUNTY OF GREY OFFICIAL PLAN (CGOP)

53The Subject Lands are designated as "Agricultural" on CGOP 2019. Ms. Loft highlighted s. 1.4.1 5 which recognizes the importance of agriculture to the County's economy and identifies the Ministry of Agriculture, Food and Rural Affairs Guidelines on Permitted Uses in Ontario's Prime Agricultural Areas ("Guidelines") as an important resource to determine the appropriate types of development within the Countryside, offering opportunities for farmers to diversify their income by developing agricultural-related uses and on-farm diversified uses.

54Ms. Loft explained s. 5.2.1 identifies a range of uses that are permitted within the Agricultural land use type including 5.2.1 c) on-farm diversified uses which are defined as:

uses that are secondary to the principal agricultural use of the property and are limited to the sizes listed in Table 8 of this Plan. Examples of on-farm diversified uses include, but are not limited to, home occupations, home industries, agri- tourism uses, and uses that produce value-added agricultural products.

Ms. Loft opines the proposed use does not meet the definition of OFDU given that the primary use of the property is not agriculture, the proposed use is not supplementing the income of a farm operation and the use is not related to or provide any agricultural experience.

55Ms. Loft concludes, the proposed use is within close proximity to the adjacent residence and barn, the use does not meet MDS I, the scale of the operation is not secondary to the active agricultural use on the farm property, there is not time limitations or duration discussed throughout the planning review to determine if the use would hinder agricultural operations. Therefore, in her opinion, this criteria was not taken into consideration and is not met.

56In Ms. Loft's opinion the proposal does not conform to the CGOP.

57Mr. Benner testified that s 5.2.1.2 of the CGOP notes that municipalities may require a ZBL for OFDU and other uses. A ZBLA, subject of this appeal, was requested to recognize the proposed use.

58In Mr. Benner's opinion, the application conforms to the CGOP.

OFFICIAL PLAN OF THE MUNCIPALITY OF GREY HIGHLANDS (OP)

59The Subject Lands are designated Agricultural within Schedule A of the OP.

60Ms. Loft contends the proposed use is not considered a permitted use under Section 4.1.1, Table 1. The use is not an agri-tourism use with respect to any of the examples provided including a farm vacation suite or bed and breakfast. The use has been continuously presented as a resource based recreational use and is not offered as part of an agricultural experience.

61Section 4.1.2 (e) requires that new agricultural related uses and on-farm diversified uses and recreational and institutional development will require an amendment to the implementing ZBL and may be subject to site plan control approval.

62In Ms. Loft's opinion, the proposed Amendment is not in conformity with the OP.

63Mr. Benner testified that s. 4.1.1. of the OP lists OFDU as a permitted use in An Agricultural Designation. The use as proposed would be permitted under this policy.

64Mr. Benner highlighted s. 4.1.2.(e) which notes that new OFDU will require an amendment to the ZBL and may be subject to site plan control. Additionally, new OFDU will not be permitted on lands under 20 ha in size. According to Mr. Benner, the subject ZBLA implements this policy.

65Mr. Benner also highlighted s. 6.1.6 which notes that all of Grey Highlands is subject to site plan control with the exception of land used for agriculture, single detached or two-unit dwellings except for the purpose of fulfilling policies related to the natural environment and at the discretion of Council. The subject amendment does specify that use is subject to site plan control as requested by Council.

66In Mr. Benner's opinion, the application conforms to the OP.

On Farm Diversified Use ("OFDU")

67Ms. Loft submits the proposed use does not meet the definition of an OFDU under Section 4.1.2 (d). The use is not secondary to the principal agricultural use of the property. The use is not an agri-tourism use.

68Ms. Loft contends the owners of the property and operators of the proposed rental business of three cabins are not engaged in an agricultural operation. The proposed use does not meet the definition of OFDU use given that the primary use of the property is not agriculture, the proposed use is not supplementing the income of a farm operation and the use is not related to or provide any agricultural experience.

69The PPS defines an OFDU as follows:

means uses that are secondary to the principal agricultural use of the property, and are limited in area. On-farm diversified uses include, but are not limited to, home occupations, home industries, agri-tourism uses, and uses that produce value added agricultural products.

70The Guidelines in s. 2.3.1 provides for specific criteria that must be met to qualify as an OFDU, as follows:

1. Located on a Farm.
2. Secondary to the principal agricultural use of the property.
3. Limited in Area.
4. Includes but is not limited to, home occupations, home industries, agri-tourism and uses that produce value added agricultural products.
5. Shall be compatible with, and shall not hinder, surrounding agricultural operations.

71The OFDU include agri-tourism uses. Agri-tourism uses are also defined in the PPS as: Agri-tourism uses:

means those farm-related tourism uses, including limited accommodation such as a bed and breakfast and farm vacation suites that promote the enjoyment, education or activities related to the farm operation.

72Section 5.2.2.15 of the County OP - provides guidance for calculating the size of an OFDU and that an implementing ZBA generally will be required to permit unless otherwise permitted right. Table 8 provides OFDU size criteria for 20 ha or greater being the lesser of 2% of the total size of the property or a maximum combined area of the use of 8000 m².

73Mr. Benner advised subsection 2.3.1.2 of the Guidelines notes that the OFDU must also be secondary to the principal agricultural use. The guidelines note that this is measured in spatial and temporal terms. Spatially the proposed uses represents less that 2% of the total property size. Temporally, the uses cannot interfere with cropping cycles or other agricultural uses. Agricultural operations (tilling, seeding and harvesting) are part of the agri-tourism experience and will continue to harmoniously operate in concert with cabins rentals.

74Mr. Benner advised s. 2.3.1 of the Guidelines provides further guidance for OFDU under the PPS. Section 2.3.1.1. of the guideline notes that;

On farm diversified uses must be located on a farm property that is actively in agricultural use. The on-farm diversified uses provisions in the PPS do not apply to small residential lots in the prime agricultural area.

75Mr. Benner contends the Subject Lands total 31.8 ha with approximately 15.8 ha in active agricultural production.

76The County OP under Table 7 note Permitted Use Examples in Agricultural and Rural Land Use Types includes – (under the heading of OFDU) "Agri-tourism and recreational uses"; (e.g. farm vacation suite, bed and breakfasts, hay rides, petting zoo, farm-themed playground, horse trail rides, corn maze, seasonal events, horse/pony events, wine tasting).

77Mr. Benner testified the subject ZBLA, if approved, would permit the development of three cabins for overnight or short-term accommodations. This use for "limited accommodation" is consistent with the definition for agri-tourism uses contained in the PPS if the Subject Lands can be considered a farm. However, the PPS does not provide a definition of what a "farm" is.

78Mr. Benner advised the PPS and the OP do not provide a definition of a "farm" which would provide further guidance for when an "On-farm" use could be established. However, the Guidelines does provide direction for determining what constitutes a farm.

79This guideline notes that OFDU must be located on "a farm property that is actively in agricultural use". Further, the GCOP defines Agricultural Land Use types as "large pockets of prime quality farmland, where agricultural land uses such as livestock, cash crop, and local food farming are the predominant uses".

80Mr. Benner opines, given that the Subject Lands are large, actively farmed as the primary land use, and are designated Agricultural in both the County and Municipal OP's, it can be concluded that the Subject Lands are considered to be a farm. Accordingly, OFDU are allowed.

81Ian Ferris testified that he and his wife purchased his farm in September 2020 with an intent to farm the land and to diversify and supplement our farm income by way of the introduction of on-farm diversified uses, specifically agri-tourism related uses. He advised that approximately 16.4 ha of the Subject Lands are utilized for agricultural purposes. The balance of the lands is comprised of woodlands and the Beaver River.

82Mr. Ferris testified that his farm business on the Subject Lands is registered with Agricorp, an agency of the Government of Ontario, with his Farm Business Registration ("FBR") Number. He explained he has to confirm his revenue with gross product sales to be registered with Agricorp.

83Mr. Ferris testified that if he makes over 7,000 thousand dollars while farming, he has to report this and crop product to the Canada Revenue Agency ("CRA") which he does on his T4 Income and he has an HST number from the CRA. His farm name is listed as Ian Ferris and his wife Cinzia Arcuri. Mr. Ferris advised his other source of income is his Trucking and Excavation business.

84Mr. Ferris advised the proposal to incorporate two further cabins, in addition to the one existing municipally licensed cabin, for overnight accommodation will enable them to diversify and supplement their farm income.

85Mr. Ferris testified that him and his wife's vision for the Subject Lands is to leverage the use, natural beauty and amenities, specifically the agricultural use and operations, as well as the Beaver River and surrounding woodlands, to provide guests with opportunity to enjoy, learn about and experience normal farm activities conducted on the subject and surrounding agricultural area lands and offer overnight accommodation within 3 "tiny" cabins.

86Mr. Ferris explained the activities offered to guests will include learning about trees, plants and crops native to Ontario and the related on-farm cultivation activities; participating in the planting, cultivating/growing, harvesting and drying/sorting of herbs; Christmas tree planting and harvesting; tapping maple trees, collecting sap and the processing and filtering/grading of syrup; tutorials on the operations of farm equipment; hayrides; sleigh rides; night sky watching/observations; and nature walks. In addition, front and central to the experience will be the opportunity for guests to enjoy the lands and surrounding agricultural area and the related promotion of local business and farm products. The intent is to provide guests with the full farm experience for their enjoyment and education.

87Mr. Ferris highlighted his vision with his farm is consistent with the Province's vision as set out in Section 2.3 of the Guidelines on Permitted Uses in Ontario's Prime Agricultural Areas –

On-farm diversified uses should be related to agriculture, supportive of agriculture or able to co-exist with agriculture without conflict. On-farm diversified uses are intended to enable farm operators to diversify and supplement their farm income, as well as to accommodate value-added and agri-tourism uses in prime agricultural areas.

88Mr. Ferris also highlighted the Guidelines which contain an example, specifically "Example 2: Medium Sized Farm (30 ha parcel) at page 54, which includes "three 65 m² cabins for overnight farm stays", which he advised is significantly larger than what they are proposing.

89Mr. Ferris advised they currently have a municipally licensed short term accommodation cabin on the Subject Lands with a License Number, which was issued by the Municipality in 2021. The proposal entails the introduction of two additional cabins with these cabins being situated to the east of the existing licensed cabin.

90Mr. Ferris explained the existing cabin is 10.0 m² in area and is approximately 155 m from the farm dwelling located on the Appellant's property and is visually buffered from the farm dwelling by a farm building. He advised the two proposed cabins will be located further distant from the Appellant's property. The closest farm building on the Appellant property is a non-livestock barn and it is located approximately 90 m from the mutual property line separating his property from the Appellant's property.

91Mr. Ferris advised as part of the ZBLA application public process, he provided responses to the issues raised by proposing additional mitigating measures including fencing along the west property line, enhancing the tree buffer along the west property line and a new tree buffer immediately to the east of the laneway giving access to the proposed cabin location.

92Mr. Ferris testified the ZBL includes a requirement for Site Plan Approval in accordance with Section 41 of the PA and understands that the reason for the inclusion of this provision was to ensure that the additional mitigating measures referenced above would be implemented.

93Mr. Ferris testified that the first year (2021) hay was growing on the farm. In 2022 he grew corn and in 2023 he is planning to grow soyabeans. He testified in the summer of 2021 he injured his hand while farming which required two surgeries. At this time, he relies on other farmers to assist him in the farming operations.

Analysis

94The Tribunal has considered all of the evidence and finds that the Applicant is a farmer and lives on a farm and is engaged in an agricultural operation which can be described as farming.

95Furthermore, the Tribunal finds that the application is defined agri-tourism and OFDU meets the definition as per the guidelines contained in the PPS and the Guidelines and is secondary to the principal agricultural use.

96The Tribunal relies on the evidence of Mr. Ferris who described himself as a farmer living on a farm engaged in an agricultural operation. Mr. Ferris outlined his designation as a farmer through Agri corp membership and his HST designation with the CRA. In addition, he described his various crops the past several years and his vision to include Christmas trees and pumpkin patches to the various activities to his OFDU.

97As counsel for the Applicant aptly described in his closing submissions, "Does the Applicant need a picture of himself on a tractor wearing a straw hat, coveralls and rubber boots to prove he is a farmer?"

98The Tribunal also relies on the evidence of Ms. Hillyer and Mr. Benner when asked if there was a surge in agri-tourism to support farmers. Both witnesses advised that approximately in the last twenty years or so policies regarding agri-tourism and OFDU are more commonplace to ensure that farmers can supplement their income to their core farming operations.

Minimum Distance Separation I ("MDS I")

99Ms. Loft advised s. 4.1.2 (d) and (j) provides that MDS I is applicable with regard to OFDU. The proposed use does not meet MDS I formulae under Section 4.1.2 (d) and (j).

100Ms. Hillyer testified that County recommendation to the Municipality was that MDS be considered in relation to the proposed cabins.

101Section 5.2.2.(5)(e) of the County OP indicates:

MDS I will generally not be required for on-farm diversified uses, except where a municipality has required MDS to apply in their municipal official plan or zoning by- law. For the purposes of MDS, on-farm diversified uses should be considered a Type A land use.

102Under the MDS Implementation Guidelines it states:

For these reasons, and in keeping with the intent of this MDS Document, municipalities may choose to require an MDS I setback for proposals, including lot creation, to permit certain types of agriculture-related uses or on- farm diversified uses. In these circumstances, agriculture-related uses and on-farm diversified uses shall be considered as Type A land uses. Municipalities shall include specific provisions in their comprehensive zoning by-law to clearly indicate the types of agriculture-related uses and on-farm diversified uses that will be required to meet MDS I setbacks, including provisions related to the measurement of MDS I setbacks from existing livestock facilities and anaerobic digesters. Otherwise, MDS I setbacks will NOT be required for these types of uses. (emphasis added).

103The MDS Document further indicates at pages 94, 95 and 96:

Within the various Implementation Guidelines contained in s. 4 of the MDS Document, there are five options available to municipalities that should be incorporated into the appropriate local planning document — either the comprehensive zoning by-law or the official plan. In order to achieve a transparent and consistent approach to processing files, municipalities are urged to address these options on a proactive and comprehensive basis. If the relevant planning document does not expressly address the options, then the default approaches outlined in the corresponding Implementation Guidelines shall apply. (emphasis added).

104Mr. Benner testified that Staff usually conduct a cursory review of applications for any triggers of MDS calculations. In this case Staff looked at the lands and there were two farming operations including a barn on the Appellant's property that appeared not to be used for Agricultural purposes such as housing livestock. Mr. Benner explained the other Barns were further South and to the East from the Subject Lands and were too far away to be considered.

105Mr. Benner testified the application did not require MDS calculations but he did consider MDS in any event.

106Mr. Finbow testified that MDS was applied to the OP and PPS utilizing the MDS guidelines in this proposal however, it did not apply.

107Mr. Finbow contends as the proposed use constitutes new development, MDS I applies however, Section 5.30 a) ii) indicates MDS I does not apply to lots existing as of the date of passing of this ZBL. As the lot in question existed as of the date of passing of the ZBL, MDS I does not apply.

108In addition, Mr. Finbow highlighted the Municipality did not include specific provisions in their comprehensive ZBL to clearly indicate the types of agriculture-related uses and OFDU that will be required to meet MDS I setbacks, therefore, as the guidelines notes; Otherwise, MDS I setbacks will NOT be required for these types of uses.

109Mr. Finbow clarified his explanation in testimony advising that MDS I was applied but it was not required since the Municipality did not include specific provisions in their comprehensive ZBL as required by the Guidelines.

110Mr. Finbow added, the applicable section of the Municipalities' ZBL that provides for regulations related to MDS does not specify the types of OFDU that are to be regulated and until the Municipality updates its ZBL to specify the desired approach for specific types of OFDU that are required to meet MDS I, MDS I will not apply.

111On cross examination, Mr. Finbow clarified that MDS does apply to unoccupied barns concerning livestock contrary to Mr. Benner's testimony which he implied MDS did not apply to unoccupied barns which had livestock in the past. Mr. Finbow commented that in his years of experience no barn would be structurally sound that would meet the building code and structural alterations would be required.

112During cross examination, Mr. Finbow advised the Appellant's barn was within the 750 m zone of the Subject Lands therefore, he made inquiries of the surrounding barns and agreed the Appellant's barn even though unoccupied by definition of the MDS it would be problematic. Mr. Finbow confirmed the onus is on the Applicant to satisfy the definition or canvass the area to form a fulsome report with qualified MDS calculations. However, in this proposal it was not necessary and no official MDS calculations were done by him. In any event, according to Mr. Finbow if MDS I did apply, it would fail at the Building Code stage for structural modifications.

Analysis

113The Tribunal agrees with the Appellant's counsel and did not put any weight to the testimony of Mr. Finbow with regard to the fact the Appellant's barn or any unoccupied barn could not meet provisions of the Building Code without structural repairs without first conducting a thorough personal review of the said barn.

114In any event, the Tribunal has considered all the evidence in regard to MDS and finds that MDS I was applied and considered but was not required for this proposal. Ms. Hillyer and Mr. Benner both testified MDS was considered and Mr. Finbow testified it was applied. The Tribunal relies on the clear wording of the MDS Guidelines;

Municipalities shall include specific provisions in their comprehensive zoning by-law to clearly indicate the types of agriculture-related uses and on-farm diversified uses that will be required to meet MDS I setbacks, including provisions related to the measurement of MDS I setbacks from existing livestock facilities and anaerobic digesters. Otherwise, MDS I setbacks will NOT be required for these types of uses.

115The Municipality has not included provisions in their ZBL the types of uses including OFDU, therefore MDS will not be required for the OFDU.

ZONING BY-LAW 2004-50

116Ms. Loft submits the proposed ZBL does not appropriately regulate the use of the land. The subject lands are 32 ha in lot area, the proposed zoned location of the proposed use is within 10 m of the closest neighbour. There is no proposed vegetative buffer or fencing. There is a direct visual between the cabins and the Hirsch residence. There is no limitation for visitors, no seasonal or time limitations and no defining barrier between the proposed zoned area and the neighbouring lands.

117Therefore, in Ms. Loft's opinion the proposal does not meet the intent of the ZBL and is not considered good planning and is not in the public interest.

118Mr. Benner testified the existing cabin had a licence from the Municipality under a Short-Term Accommodation ("STA") licence which two additional cabins would not be permitted under a STA licence. According to Mr. Benner he proposed to the Applicant a ZBLA application to permit the use of other cabins.

119Mr. Benner confirmed in his opinion, ZBL -No. 2022-070 does provide adequate means to accommodate an OFDU. However, Mr. Benner acknowledged that ZBL No. 2022-070 could be stronger with additional information added to it. Mr. Benner added, the critical piece in his opinion, is the Site Plan which will provide detailed use such as physical buffering and defining the use.

120Counsel for the Applicant through Mr. Benner proved the Tribunal an amended ZBL No. 2022-070 to clearly regulate such items as the size of the cabins, restriction of people, parking spaces and to clarify more clearly the agri-tourism purpose.

BUIDLIING CODE

121Mr. Finbow testified the existing and proposed cabins will have a maximum area of 10 m² and do not meet the definition of a building and, as such, the Building Code does not apply.

122Mr. Finbow explained the existing and proposed cabins will be provided with potable water, i.e. cistern(s), 5 gallon water jugs, bottled water from one of the 3 wells on-site. In addition, a yard hydrant complete with a hose will be centrally provided to provide additional access to potable water and for fire safety and, sanitary conveniences are proposed within an outhouse equipped with a composting toilet, being a toilet that does not require a water or sewer connection with waste being recycled into safe usable soil or, by way of a Class 1 sewage system designed and constructed in accordance with the Ontario Building Code. In addition, sanitary conveniences are available for the cabin guests in the main dwelling, much like an in-house bed and breakfast operation.

Book of Authorities

123The Tribunal has reviewed the Book of Authorities provided to the Tribunal by both Parties. The Tribunal will only highlight those cases it finds relevant. The Appellant provided Roque v. Hamilton (City) 2022 CarswellOnt 17031. The Tribunal notes this case was in regard to facilitate the construction of a 2-storey "Agri-tourism Facility" and the main issue was the size and definitions of agri-tourism and OFDU.

124Counsel for the Appellant highlighted in para 73 "The proposal is permitted by the Greenbelt Plan and is reliant upon the existing farm operation." The Tribunal also notes the preceding paragraph 72 which states. "Further, it was Mr. Wood's opinion that the Proposed Development is a type of on-farm diversified use dependent on the agricultural operations of Paradise Fields which demonstrates consistency with prime agricultural uses.

125The Tribunal finds this case has similar facts in regard to agri-tourism and OFDU however, cannot restrict OFDU to being dependent or reliant upon the existing farm operation to the present case. Each case is viewed on it own merits and own facts. There are varying definitions of agri-tourism and OFDU that each Municipality incorporates into their own OP's and ZBL's. There are varying other Growth Plans that have to be also considered such as in this case the Green Plan which is not relevant to the present case.

126In any event, the Tribunal finds there is an existing farm operation in the present case, however, it does not have to be dependent or reliant upon the existing farm operation as in this case. There is nothing in either the agri-tourism definition or OFDU definition that suggest this and nothing in the GCOP, OP or ZBL definitions that agri-tourism or OFDU has to be dependent or reliant upon the existing farm operation. The Tribunal will note in this case according to s. 2.3 of the Guidelines on Permitted Uses in Ontario's Prime Agricultural Areas – "On-farm diversified uses should be related to agriculture, supportive of agriculture or able to co-exist with agriculture without conflict (emphasis added) which this proposed OFDU does in this case.

127The Tribunal also reviewed the Appellants submitted case of Greenwood and Gardiner v. Oro-Medonte (Township) 2021 CarswellOnt 19458. This case involved a OPA and ZBLA to permit a "Contractor's Yard with storage of motor vehicles" (excavation business) on a portion of the property which is located in a Prime Agricultural Area. This case involved a OFDU as a home industry on prime agricultural lands.

128The Appellant's counsel in this case highlighted several paragraphs in relation to whether an excavating business can fit within the definition of an OFDU, and whether the activities of the farming operation constitute a part of the agricultural operations as per the PPS. Paragraph 38 states:

As stated previously, the Tribunal finds that the horse-keeping activities of the Applicants do not constitute a part of the agricultural operations on the property. The evidence shows that the only agricultural activities on the property are those conducted by the Applicants' tenant, who grows hay on the property.

129In Gardiner v. Oro-Medonte, in regard to agricultural uses, the Tribunal Member noted in Paragraph 11, it "received no evidence to support the notion that this activity is anything more than a hobby". The present case can be distinguished from this case where the Tribunal received ample evidence of a farm operation. In paragraph 25 in regard to the excavation business being proposed the Tribunal found it is "unconvinced that those areas will be used for any genuine agricultural purposes." The present case can be distinguished again from this case for the fact the Tribunal found evidence that the activities of the OFDU are consistent with the PPS and would be secondary to the principle agricultural use of the property.

130In Gardiner v. Oro-Medonte there is discussion on a hay crop which the Member described as a "low intensity crop associated with very little impact on surrounding lands and low key in general." The Tribunal member goes on in detail regarding non-agricultural uses in prime agricultural areas with the potential to conflict with agricultural uses. Finally, the Member comments on the large excavation business where it "sacrificed at least 1.0 ha of productive agricultural land to build a storage building, driveway, berms and staging/parking area for the purpose of operating their excavation business in a prime agricultural area."

131Again, the Tribunal will note this case is distinguished from Gardiner v. Oro-Medonte on many different facts and issues. In the present case, the proposal is for two cabins which shall not exceed 10.0 m² each,compared to a large excavation business taking up at least 1.0 ha of land and whether that business makes a positive contribution to the agricultural industry, either directly or indirectly as per the Guidelines.

132In addition, in Gardiner v. Oro-Medonte hay crop was compared to the intensive activities of the excavation business, in paragraph 46 the Member states;

…in comparison to KJ Excavating's operations, the Applicants' did not suggest nor provide any evidence to show that the tenant's hay crop involved similarly intensive activities, employee coming-and-going, economics, or impact in general on surrounding lands. To put it succinctly, the Tribunal finds that the primary activity and function of the Subject Property, viewed from any reasonable perspective, will be (and is currently) associated with the activities of KJ Excavating, not the growing of hay.

133The present case can be distinguished from Gardiner v. Oro-Medonte for the fact that the Tribunal heard ample evidence from Mr. Ferris who described his various farming operation including crops, and the primary function of his farm on the Subject Property. Mr. Ferris described his trucking and excavation business however, the Tribunal found in this case the primary activity and function of the Subject Property is his farming operation of his crops. The Tribunal finds in this case there is no conflict with agricultural uses as was found in Gardiner v. Oro-Medonte which viewed the excavation business as the primary function and activity on the Subject Property with its size of 1 ha compared to a 10 m² cabin in this case.

FINDINGS AND DISPOSITION

134In determining this matter, the Tribunal accepts and adopts the planning evidence and expert opinion provided by Mr. Benner, Land use planning evidence of Ms. Hillyer, and Mr. Finbow's expert opinion evidence of the Building Code and opinion evidence of MDS. Mr. Ferris's testimony was also accepted and adopted in regard to his farm and OFDU evidence. The Tribunal is persuaded by the evidence that the proposal promotes good land use planning and is in the public interest and is satisfied that the application conforms to the CGOP, Municipality OP and is consistent with the PPS.

135The Tribunal finds the proposed use is the subject of a ZBLA that has undergone public consultation through a formal Public Meeting and a CoW meeting and has received comments and support from various Departments including the Grey Sauble Conservation Authority, leading to approval from the Council.

136The Tribunal finds that although there were competing expert testimony on various issues, the main issues from the Appellant's position were somewhat technical in nature and not substantial or detrimental for the proposed application and this appeal.

137Although Ms. Loft's opinion evidence on land use planning was forthright and thorough, it lacked perspective on a few issues such as whether the Subject Lands were on a farm where the use supports the agricultural operation or whether there was any evidence presented to Council on the activities of the OFDU which was clearly evident in the PJR contained in the Municipal record.

138Although Ms. Loft's evidence was persuasive in some respects especially considering her background and experience, the Tribunal finds it was not as persuasive on all the issues as compared to the other three witnesses.

139However, Ms. Loft did provide persuasive evidence in relation to the ZBL No. 2022-070, which the Appellant's counsel and Mr. Benner acknowledged and provided a refined ZBLA for the Tribunal to consider from the submissions made by Ms. Loft. The Tribunal views these revisions technical in nature and after consideration has amended ZBL. No. 2022-070 as noted in Attachment 1 to this Order.

140The Tribunal notes that item #2 in the refined ZBLA included "Each cabin in shall be restricted to an occupant load of 2 persons." The Tribunal recognizes this restriction from the Parties, however, holds no position in regard to occupancy.

141In summary, to suggest the County and Municipality were "trying to fit a square peg in a round hole" as eloquently described by the Appellant's counsel, with this application, the Tribunal views this in the alternative. In regard to this proposal both the County and Municipality should be commended (which is not always the case) for working with the Applicant on their application to ensure it is consistent with the PPS and conforms to the various OP's and ZBL's. The Tribunal finds this a collaborative approach and does not interfere with any procedural fairness issues for either the Applicant or the Appellant.

ORDER

142THE TRIBUNAL ORDERS that the appeal against By-law No. 2022-070 of the Municipality of Grey Highlands is allowed in part, and the By-law No. 2022-070 is amended as set out in Attachment 1 to this order.

"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.

ATTACHMENT 1

The Corporation of the Municipality of Grey Highlands By-law No. 2022-070

Being a By-law to amend the Municipality of Grey Highlands Comprehensive Zoning By-law No. 2004-50 related to application Z12.2022

Whereas, the Council of the Corporation of the Municipality of Grey Highlands deems it in the public interest to pass a By-law to amend By- law No. 2004-50; and

Whereas, pursuant to the provisions of Section 34 of the Planning Act, R.S.O. 1990, as amended, By-laws may be amended by Councils of Municipalities;

Now Therefore the Council of the Municipality of Grey Highlands hereby enacts as follows:

1. That By-law No. 2004-50 is hereby amended by affecting the lands described as PT LT 20 CON 2 EUPHRASIA AS IN R97480 EXCEPT THE EASEMENT THEREIN SECONDLY DESCRIBED; PT LT 19 CON 1 EUPHRASIA AS IN R97480; T/W R97480 FIRSTLY DESCRIBED; PT LT 20 CON 1 EUPHRASIA BEING PT 2, 16R3706; SUBJECT TO AN EASEMENT IN GROSS OVER PT 1 PL 16R10588 AS IN GY108373; GREY HIGHLANDS shown on Schedule "A" attached hereto.
2. That Schedule "A-3" be hereby amended to rezone a portion of the subject lands to Agricultural (A1-448).
3. Section 16 is hereby amended by adding the following:

16.448 Notwithstanding any other provisions of this by-law to the contrary, on the portion of the lands known municipally as 687139 Sideroad 19 and located in the A1-448 Zone, a maximum of 3 cabins for agri-tourism purposes, and uses accessory thereto, to support the agri-tourism use of the lands, are permitted subject to the following:

1. No cabin shall exceed a gross floor area of 10.0 square metres.

2. Each cabin shall be provided with 1 parking space.

3. No building or structure forming part of or associated with the agri-tourism use of the lands shall be located within 10.0 metres of the west property line.

4. The agri-tourism use of the cabins must be "hosted" wherein the property owners shall be present on the property while the cabins are rented.

5. Site Plan Approval in accordance with Section 41 of the Planning Act shall apply.

6. Schedule "A" and all other notations thereon are hereby declared to form part of this By-law.

This By-law in the form of Attachment 2, attached, shall come into effect upon the date of issuance of this corrigendum to the decision of the Tribunal dated the 16th of May, 2023.

In all other respect, the Tribunal orders that the appeal is dismissed.

The Corporation of the Municipality of Grey Highlands

Mayor

Municipal Clerk

ATTACHMENT 2