Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 24, 2023
CASE NO(S).: OLT-22-003897
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Victor and Deborah Anber
Subject: Application to amend the Zoning By-law – Refusal of application
Description: To allow for the storage of fireworks
Reference Number: By-law 2149
Property Address: 6954 6th Concession Road
Municipality/UT: Essex/Essex
OLT Case No: OLT-22-003897
OLT Lead Case No: OLT-22-003897
OLT Case Name: Anber v. Essex (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Subject: Application to amend the Zoning By-law – Refusal of application
Reference Number: By-law 2151
Property Address: 6954 6th Concession Road
Municipality/UT: Essex/Essex
OLT Case No: OLT-22-003898
OLT Lead Case No: OLT-22-003897
Heard: April 4 - 5, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
Victor and Deborah Anber
Town of Essex
Analee Baroudi
Jeffrey Hewitt
DECISION DELIVERED BY DAVID BROWN and S. Dixon AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matters before the Tribunal are two appeals filed by Victor and Deborah Anber (the “Appellant”) pursuant to s. 34(11) of the Planning Act, R.S.O. c. P.13, as amended (the “Act”), against the Town of Essex (the “Town”) decision which refused two proposed amendments to the Town’s Comprehensive Zoning By-law No. 1037 (the “ZBL”). The lands that are the subject of the appeals are municipally known as 6954 6th Concession Road (the “Subject Lands”).
2The Appellant filed an application for a Zoning By-law Amendment (“ZBA”) on February 24, 2022, requesting an amendment to the ZBL to permit the use of the Subject Lands for the storage of fireworks (the “Application”).
3A Report to Council prepared by the Planning Division of the Development Services Department of the Town, dated April 19, 2022 (the “Staff Report”), recommended approval of two amending by-laws (the “Amendments”), which were supported by the Appellant. The first by-law proposes to amend the ZBL with a site-specific zoning to permit the storage of professional display fireworks in a maximum of 12 storage containers (“BL-2149”). The second by-law proposes to amend the ZBL for a temporary period of one year to permit the use of the Subject Lands for the storage of consumer fireworks in 10 existing storage containers (“BL-2151”).
4Town Council considered the Application and the Staff Report at their meeting on April 19, 2022. Town Council refused the Application and in their Notice of Decision indicated that the Council felt that the use is incompatible with the surrounding land uses.
5The Tribunal, having considered the evidence and submissions put forward by the Parties, denies the appeals and for the reasons set out as follows, the Application is refused.
BACKGROUND AND CONTEXT
6The Subject Lands have a site area of approximately 20.99 hectares (“ha”) with frontage on the northerly side of 6th Concession Road west of Arner Townline. Access to the Subject Lands is provided by a gravel driveway along the easterly side of the property and controlled with a locked gate.
7The Subject Lands are currently occupied by 29 storage containers (former sea containers) which occupy approximately 0.356 ha. A woodlot along the westerly side of the Subject Lands occupies approximately 2.8 ha, 14.16 ha are farmed under a crop sharing agreement, and the remaining 3.678 ha are used for the access driveway, internal driveways, and a berm.
8The Appellant owns and operates K&H Distributing (882865 Ontario Ltd.), which sells consumer-grade and professional-grade fireworks. The Appellant has a retail outlet located in the Town of Tecumseh and a storage facility located on the Subject Lands.
9In 2019, the Appellant was granted a temporary site-specific ZBA to allow for the storage of fireworks on the Subject Lands for a three-year period. That approval expired on May 6, 2022. The cited purpose of the temporary approval was to provide the Appellant sufficient time to find an alternative location for the fireworks storage use and to remove the use from the Subject Lands.
10The Appellant has been using the Subject Lands for the storage of fireworks since acquiring the property in 2012.
11The manufacture, testing, acquisition, possession, sale, storage, transportation, importation, and exportation of explosives and the use of fireworks is regulated under the Explosives Act administered by the Explosives Regulatory Division of Natural Resources Canada (“NRC”). The Subject Lands are currently licensed by NRC for the uses and activities that occur in connection with the fireworks storage, assembly, and testing operations (“NRC License”).
12The Subject Lands are located within a “prime agricultural area” as defined in the Provincial Policy Statement, 2020 (the “PPS”) and are located outside of a Settlement Area.
13The Subject Lands are designated Agricultural in the County of Essex (“County”) Official Plan (“COP”) and are designated Agricultural on Schedule A-3 in the Town Official Plan (“TOP”). The Subject Lands are also subject to a Natural Heritage designation applying to the woodlot area. The Natural Heritage designation does not identify the woodlot as an area of natural and scientific interest or as a significant woodland designated for protection or preservation.
14The Subject Lands are zoned Agricultural District 1.1 (A1.1) on Map 12 in the ZBL and the permitted uses include agricultural and farm production support activities.
LEGISLATIVE FRAMEWORK
15When considering an appeal under s. 34(11) of the Act, where an application was refused, the Tribunal shall have regard to matters of provincial interest as set out in s. 2 of the Act. Further, as set out in s. 2.1(1) of the Act, the Tribunal shall have regard to the decision of the Township and the information it considered in making its decision.
16The Tribunal must be satisfied that the Application is consistent with the PPS and conforms to the COP and the TOP.
17In consideration of the above statutory requirements, the Tribunal must be satisfied that the Application represents good planning and is in the public interest.
SUBMISSIONS
18At the Case Management Conference held for this matter on September 16, 2022, the Tribunal granted Participant Status to 11 Participants. Each of the Participants submitted Participant Statements to the Tribunal, which were all reviewed and considered by the Tribunal.
19The Tribunal qualified Tracey Pillon-Abbs, a Registered Professional Planner (“RPP”), to provide expert opinion evidence in the area of Land Use Planning for the Appellant.
20The Tribunal qualified Thomas Storey, an RPP, to provide expert opinion evidence in the area of Land Use Planning for the Town.
21The Tribunal qualified Rita Jabbour, an RPP, to provide expert opinion evidence in the area of Land Use Planning. Ms. Jabbour is currently the Manager of Planning Services with the Town and the author of the Staff Report. She appeared before the Tribunal under summons.
22The Parties filed a Joint Document Book (the “JDB”) with the Tribunal, marked as Exhibit 1.
23Tab 1 of the JDB included an Agreed Statement of Facts (“ASF”) and the Parties confirmed that the ASF was prepared by Ms. Pillon-Abbs and Mr. Storey. At the hearing, Ms. Jabbour confirmed that she concurred with the ASF.
24The Tribunal heard testimony from Mr. Anber, the Appellant and owner of K&H Distributors. He explained that his company sells two types of fireworks: consumer fireworks and professional fireworks. The professional fireworks are sold to event organizers such as municipalities, golf courses, and wedding venues. He advised that he has operated a retail outlet with on-site storage in the Town of Tecumseh dating back to the early 1990s. Much of the storage component was relocated to the Subject Lands when he purchased the Subject Lands in 2012.
25Mr. Anber confirmed that all staff are based out of the Tecumseh location and all retail sales are conducted at that location. There are no staff or staffing facilities located at the Subject Lands. The public is not allowed to access the Subject Lands and any deliveries to the Subject Lands are conducted by his staff, all of whom are federally licensed and trained in the safe handling of explosives and always follow strict safety protocols.
26There are 29 storage containers located on the Subject Lands and Mr. Anber reviewed the on-site operations and various safety protocols in place. He explained that the NRC licenses the use of the property for storage and handling of the fireworks and the NRC License is reviewed annually. The NRC License restricts the quantity of fireworks, determined by weight, allowed at the Subject Lands, and establishes setbacks for the storage containers both between containers and from surrounding structures and residences. Mr. Anber noted that all storage containers are double locked and there are security cameras located around the property.
27Mr. Anber advised the Tribunal that, for the past three years, he has been searching for a new site in the County and in the surrounding Counties to accommodate the storage use without success. He advised that with limited exception, he has not been able to locate a suitable or safe property that meets the NRC guidelines. It was noted that there were some suitable sites, however, Mr. Anber confirmed that the price of those properties was significant and not attainable. Mr. Anber further explained that the COVID pandemic has impacted his business and the ability to reduce the inventory of fireworks being stored at the site, as there were restrictions imposed that prevented outdoor gatherings where fireworks would normally be included.
28Mr. Anber confirmed that he was aware that a rezoning would be required for the use of the Subject Lands when he purchased the property in 2012. He was in discussions with the Town staff concerning the rezoning when a family tragedy occurred in 2013. As a result, Mr. Anber advised that he did not pursue a rezoning application until 2018 when he applied for a ZBA and was granted the three-year approval in 2019.
29The evidence of the Planners focussed on the four issues identified on the Issues List contained within the Procedural Order in effect for these proceedings. The four issues are summarized as:
Is the Application consistent with the PPS, Section 1.0 Building Strong Healthy Communities, and in particular clause 1.1.1 c)?
Is the Application consistent with the PPS, Section 2.3.6 Non-Agricultural Uses in Prime Agricultural Areas, and in particular clause 2.3.6.1 b), and have the conditions for approval in items 2.3.6.1 b) 3. and 2.3.6.1 b) 4. been met?
Does the Application conform with the TOP, specifically Section 4.2, Planning Principles, and in particular Principle 4.2 g)? and
Does the Application conform with the TOP, specifically Section 5.4, Lands Designated Agricultural, and in particular the Goals under 5.4 a) and 5.4 c) and the Permitted Uses under clause 5.4 k)?
30In consideration of the COP, the Tribunal heard uncontroverted testimony from Ms. Pillon-Abbs that the Subject Lands are designated Agricultural in the COP and further, that under Section 3.3.3.1 of the COP, the permitted uses within the Agricultural designation include: agricultural uses, secondary uses, and agricultural-related uses. Ms. Pillon-Abbs directed the Tribunal to Section 3.3.3.2 which addresses secondary uses and states that local municipal Official Plans shall contain criteria for the establishment of secondary uses.
Issue 1
31The first issue addresses Section 1.0 of the PPS, Building Strong Healthy Communities. The evidence focussed on Policy 1.1.1 c), which states:
1.1.1 Healthy, liveable and safe communities are sustained by:
c) avoiding development and land use patterns which may cause environmental or public health and safety concerns.
32Ms. Pillon-Abbs testified that the use of the Subject Lands is regulated by the NRC. A fire safety plan has been prepared and approved by the Town Fire Department and further, she noted there are no ignition sources or other combustible materials permitted on the Subject Lands. She continued that all storage containers are locked and further advised that the woodlot on the Subject Lands is not a hazardous forest as defined in the PPS. For these reasons, Ms. Pillon-Abbs opined that the storage of fireworks on the Subject Lands does not cause any environmental or public health and safety concerns.
33Ms. Jabbour opined that the NRC License requirements, including the minimum setbacks to adjacent dwellings and structures, mitigate safety concerns.
34Mr. Storey, in his testimony, acknowledged that the Appellant’s company, K&H Distributors, has operated safely for many years and meets the NRC License and operating requirements. Mr. Storey proffered that while the risk of accidents is low, they can happen, noting that human involvement brings a risk such that safety cannot be assured. He cited an example of a fireworks explosion that occurred in 2013 in Quebec. The Quebec explosion occurred under the same regulatory environment that applies to the subject operation.
35Mr. Storey advised that the NRC does not consult with the local municipality in consideration of the NRC License application review and there is no public consultation associated with the establishment of the use. He opined that there is no discernable community interest being served, only the business interest of the Appellant’s company.
36Mr. Storey stated that PPS Policy 1.1.1 c) is clear that development which may cause safety concerns should be avoided. He concluded that the proposed use may cause a safety concern and therefore is not consistent with PPS.
Issue 2
37Issue 2 addresses the Non-Agricultural Uses in Prime Agricultural Areas policies in Section 2.3.6 of the PPS. The submissions focussed on Policy 2.3.6.1, which states:
2.3.6.1 Planning authorities may only permit non-agricultural uses in prime agricultural areas for:
a) extraction of minerals, petroleum resources and mineral aggregate resources; or
b) limited non-residential uses, provided that all of the following are demonstrated:
the land does not comprise a specialty crop area;
the proposed use complies with the minimum distance separation formulae;
there is an identified need within the planning horizon provided for in policy 1.1.2 for additional land to accommodate the proposed use; and
alternative locations have been evaluated, and
i. there are no reasonable alternative locations which avoid prime agricultural areas; and
ii. there are no reasonable alternative locations in prime agricultural areas with lower priority agricultural lands.
38The Planners agreed that the Subject Lands are within a prime agricultural area as defined by the PPS, that the Subject Lands do not comprise a specialty crop area and that the minimum distance separation formulae do not apply in this matter.
39Part III of the PPS, under the heading Guidance Material, states:
Guidance material and technical criteria may be issued from time to time to assist planning authorities and decision makers with implementing the policies of the Provincial Policy Statement. Information, technical criteria and approaches outlined in guidance material are meant to support but not add to or detract from the policies of the Provincial Policy Statement.
40The Tribunal was directed to the Ministry of Agriculture, Food and Rural Affairs (“OMAFRA”) Publication 851, Guidelines on Permitted Uses in Ontario’s Prime Agricultural Areas (“Publication 851”). Publication 851 specifically addresses the policies in Section 2.3.6 of the PPS and the Planners agreed that these guidelines can assist in the implementation of the policies set out in Section 2.3.6.1 of the PPS.
41Section 3.2 of Publication 851 addresses Limited Non-Agricultural Uses in Prime Agricultural Areas. Section 3.2.1 is titled Preliminary Assessment and the section concludes with the following paragraphs to which the Tribunal was referred:
The assessment of need and evaluation of alternative locations for non-agricultural uses are geographically-based and depend on the type of use and the region from which customers are drawn. Part III of the PPS indicates that policies apply at a range of geographic scales. Policies need to be considered in the context of the municipality or planning area as a whole. This issue is further discussed in Alternative Locations (Section 3.2.3).
Rigorous assessment of need, evaluation of alternative locations and mitigation of impacts should be required by municipalities as part of a complete application for non-agricultural uses in the prime agricultural area.
42Section 3.2.2 of Publication 851 provides guidance in assessing need as referenced in Policy 2.3.6.1 b) 3. of the PPS. Paragraph 2 of Section 3.2.2 states:
Identification of need for a proposed limited non-agricultural use requires appropriate justification which is usually provided through a planning report and justification study. The scope of this study depends on the proposed use and starts by identifying the specific geographic market or service area for the proposed use. It usually includes information on and analysis of:
the demand for the product or service
an inventory of current suppliers/competitors
how much of the current and future projected demand is met within a given market or service area
distance to markets or clients
economic impacts of the proposed use
a preliminary assessment of the potential impacts on agricultural operations in the area
43Section 3.2.3 of Publication 851 provides direction with respect to the assessment of alternative locations. Section 3.2.3 states:
Under Policy 2.3.6.1 b) of the PPS, evaluation of reasonable alternative locations for limited non-agricultural uses is mandatory. Based on PPS policy 2.3.6.1 b), applicants must first look to lands outside prime agricultural areas.
The geographic area within which to identify alternative sites varies with the use. Alternative sites must be considered within the entire market area/service area for the use.
44Paragraph 3 of Section 3.2.3 is highlighted and reads:
Arguing that applicants own only one site, or that sites in settlement areas are unaffordable for the proposed use, are insufficient reasons and should not be considered adequate justification.
45In respect to Policy 2.3.6.1 b) 3. of the PPS, Ms. Pillon-Abbs opined that there is a need to accommodate the proposed use which serves southwestern Ontario, explaining that firework displays form part of many community events thus meeting a social need. The providers of such services require lands to accommodate their businesses. She further opined that there is a need for additional industrial lands in the Town and therefore there are not sufficient lands in the current planning horizon to meet the need for the proposed use.
46Ms. Pillon-Abbs proffered that a thorough review of alternative locations was undertaken by Town Staff as outlined in the Staff Report. The Town accepted the Application without a Planning Justification Report and all Town requirements were addressed in their consideration of the ZBA. This review constitutes a rigorous evaluation in the opinion of Ms. Pillon-Abbs.
47Ms. Jabbour opined that a further assessment of need for additional lands is not required as the need for additional employment lands has been identified as part of a Settlement Area Boundary review undertaken by the Town. The Appellant provided the Town with a list of alternative sites that were considered and concluded that most all of the alternative sites considered did not meet the NRC criteria. Ms. Jabbour confirmed that affordability was a consideration for some of the sites identified, including a site that could accommodate the NRC criteria for the proposed use.
48Mr. Storey countered that there has been no support provided by the Appellant to substantiate their claims that there are no appropriate alternative lands available in the market area to accommodate the proposed use. The market area of the Appellant’s business has not been identified, the list of alternative locations provided by the Appellant contained insufficient contextual information for adequate evaluation purposes, and no independent evaluation of same was undertaken by the Town or by a qualified individual on behalf of the Town.
49Mr. Storey opined that the Town’s assessment of need required by the PPS is not the rigorous assessment contemplated by Publication 851. In his opinion, the establishment of a fireworks storage facility requires a thorough review by Town staff, public consultation and the submission of appropriate reports for consideration by the Town, and that this has not occurred. A proposal of this nature should have been supported by a Planning Justification Report that would address the need within the defined planning horizon and would include a more thorough evaluation of alternative locations.
Issue 3
50Principle 4.2 g) of the TOP is:
To protect prime agricultural areas for agricultural, agricultural-related and supportive land uses, in areas designated “Agricultural”.
51Ms. Pillon-Abbs submitted that the portion of the Subject Lands occupied by the fireworks storage is comprised of lower-priority agricultural lands as the storage containers are located partially within a disturbed area of the property that is not suitable for farming and partially within the woodlot area that cannot be farmed.
52In Ms. Pillon-Abbs’ opinion, the amount of land devoted to the storage use is limited in proportion to the principal farming use of the Subject Lands, such that the storage use is clearly secondary to the principal use and does not impact the 14.16 ha of the Subject Lands being farmed, nor the agricultural character of the area. The proposed storage use is appropriately set back from nearby dwellings in accordance with the requirements of the NRC License, and the use is screened from the road. For these reasons, it is her opinion that the Amendments protect the prime agricultural areas.
53Ms. Jabbour opined that the Amendments conform to Principle 4.2 g) as the proposed use does not displace an existing farming operation and protects the prime agricultural lands. The approval of the proposed temporary use by-law will free up additional lands outside of the woodlot area of the Subject Lands upon its expiration.
54Mr. Storey provided no opinion with respect to Issue 3.
Issue 4
55Section 5.4 of the TOP is titled Lands Designated “Agricultural” and includes both Goals and Policies. Goals 5.4 a) and 5.4 c) are:
a) to preserve prime agricultural land for agricultural purposes;
c) to restrict the type and amount of non-farm development;
56The Policies of Section 5.4 are divided into Permitted Uses and Provisions. Policy 5.4 k) under Permitted Uses states:
k) an existing dry industry which is inappropriate within a settlement area and is to be relocated as part of a municipal initiative, to be permitted by site-specific Zoning By-law amendment. A dry industry is defined as a use that does not require water for cooling, washing and processing and whose subsurface sewage disposal systems are used solely for the domestic waste generated by employees. Such uses will be encouraged to locate along main roads and if possible on less productive agricultural land; …
57In consideration of Policy 5.4 k) of the TOP, Ms. Pillon-Abbs proffered that the proposed use is an existing dry industry that is not appropriate within a settlement area, as the proposed use must comply with minimum setbacks set out by the NRC. In her opinion, lands within settlement areas are not appropriate as they cannot accommodate the NRC minimum setback requirements. She opined that a rural area is better suited for the proposed use and that the NRC License ensures that safety protocols are in place to mitigate impacts on neighbouring properties. She noted that there are three dwellings on abutting lands that impact the operation of the proposed use, and that the proposed use complies with the minimum required setbacks from each dwelling as set out by the NRC License.
58Ms. Pillon-Abbs further proffered that the proposed use relocated from the Town of Tecumseh as the use could no longer comply with the NRC requirements resulting from surrounding development activity, including that of a new school. In her opinion, the development of a school in Tecumseh satisfies the meaning of a municipal initiative referred to in Policy 5.4 k) of the TOP.
59Ms. Pillon-Abbs advised that while 6th Concession Road is not a main road, the proposed use does not require a main road as traffic generated by the proposed use is limited.
60Ms. Jabbour opined that the proposed use will not impact the primary use of the Subject Lands, being a prime agricultural use. The proposed use occupies a limited area of the Subject Lands and the Amendments will restrict the additional use of the Subject Lands to an area that is not currently being farmed.
61Ms. Jabbour agreed with the opinion of Ms. Pillon-Abbs that the “municipal initiative” referred to in the TOP could be interpreted as an initiative of a municipality other than the Town, such as the Town of Tecumseh in this instance.
62Mr. Storey acknowledged that the proposed use can be considered an existing dry industry. He challenged the assertions that the use is not appropriate in a Settlement Area as neither the Appellant’s Planner nor the Town’s Planner undertook any evaluation of available sites within surrounding settlement areas. He submitted that no evidence as to why the use would not be appropriate in a settlement area has been proffered.
63Mr. Storey further challenged the submission that permitting the use on the Subject Lands is part of a municipal initiative as contemplated within the TOP. He proffered that the municipal initiative referred to in the TOP should reasonably be understood to mean an initiative by the Town, and that the Town should not be compelled to rezone a property within their boundary as a result of an action of another municipality. The NRC requirements are the compelling issue in this instance and not any action or initiative on the part of the Town.
64Mr. Storey concluded that in his opinion, the proposed use does not conform to the provisions of Policy 5.4 k) in the TOP and that the use should not be permitted by way of a site-specific ZBA.
Summary Opinions
65Ms. Pillon-Abbs concluded by opining that the Amendments have had regard for matters of provincial interest as set out in s.2 of the Act and are consistent with the PPS as the proposed use does not cause any environmental or public health and safety concerns. Further, the proposed use will not impact the existing farming use on the Subject Lands as the storage of fireworks within storage containers is located within the woodlot and lands not currently being farmed. She continued that the Amendments conform with the COP and the TOP as the proposed use protects the primary agricultural use of the property and satisfies the criteria to permit a dry industry, which is not appropriate to be located within a settlement area, as set out in the TOP. Ms. Pillon-Abbs opined that the proposed use represents good planning.
66Ms. Jabbour opined that the location of the proposed use, away from a settlement area, will ensure no impact on settlement area expansion and growth and that the Subject Lands represent a good location for the proposed use. Ms. Jabbour submitted that the Amendments are consistent with the PPS, conform to the COP and the TOP, are in the public interest, and represent good planning.
67Mr. Storey concluded that he is of the opinion that the Amendments do not represent good planning. He submitted that the use was established without the proper approvals and without a proper and thorough review. Mr. Storey opined that the Amendments are not consistent with the PPS as there has been no demonstration of need provided.
68Concerning the TOP, Mr. Storey opined that the Amendments do not conform to the TOP as there has been no Town initiative that would permit the consideration of the Amendments within lands designated Agricultural.
ANALYSIS AND FINDINGS
69The Appellant submitted a ZBA requesting the use of the Subject Lands for the storage of fireworks. The Staff Report recommended that two amending by-laws distinguishing between the type of fireworks to be stored be considered. The Tribunal notes that the distinction between the type of fireworks is a determination made by the NRC through their licensing process. The NRC License is not dependent on any municipal approval and the Tribunal finds that including a provision in a ZBL that makes a distinction in the type of fireworks may not be within the authority of the Town to discern nor enforce and therefore may make the by-law ultra-vires as it relates to the nature of the fireworks. The Tribunal makes this observation to clarify that it does not consider the nature of the fireworks relevant or germane to its consideration of the Application.
70The Tribunal, in consideration of the submissions, the evidence presented, and the opinions proffered, finds that the Application is not consistent with the PPS and does not conform to the TOP.
71The Tribunal is satisfied that the public safety issues of Policy 1.1.1.c of the PPS have been addressed through the NRC Licensing requirements.
72The planners, in the ASF, concurred that the Subject Lands are located in an agricultural area where the predominant land uses are agricultural and agricultural-related. It was the evidence of each of the Planners that the PPS defines the Subject Lands as “prime agricultural areas”. The PPS states that prime agricultural areas are areas where prime agricultural lands predominate. PPS Policy 2.3.1 states that prime agricultural areas shall be protected for long-term use for agriculture.
73The PPS makes provisions for non-agricultural uses in prime agricultural areas subject to the provisions of Policy 2.3.6. To assist in the interpretation and application of the policy direction provided in Policy 2.3.6, OMAFRA issued Publication 851.
74The Tribunal finds that the direction provided in PPS Policy 2.3.6.1, wherein the policy states, “Planning authorities may only permit non-agricultural uses in prime agricultural areas for: …” (bold text added for emphasis), clearly anticipates that there are very specific circumstances in which a non-agricultural use may be permitted in a prime agricultural area. The Tribunal is satisfied, based on the testimony of the planners, that Policies 2.3.6.1 a), 2.3.6.1 b) 1., and 2.3.6.1 b) 2. do not apply in the context of the Application. Policies 2.3.6.1 b) 3. and 2.3.6.1 b) 4. are applicable to the consideration of the Application and the Tribunal considered submissions in response to these two policies from each of the Planners.
75In consideration of Policy 2.3.6.1 b) 3., the Tribunal also considered Publication 851 and the additional direction for the interpretation of this Policy. Publication 851 sets out in Section 3.2.2 that, “identification of need…requires appropriate justification which is usually provided through a planning report and justification study.” Publication 851 sets out the usual considerations in such a report to include: the demand for the product, an inventory of current supplies, how much of the current demand is met within the market area, economic impacts of the proposed use, and assessment of potential impacts on agricultural operations. The Tribunal concurs with the position of Mr. Storey wherein he proffered that no such assessment was undertaken. The Tribunal was not presented with any evidence that a rigorous assessment of need was submitted in support of the Application.
76Policy 2.3.6.1 b) 4. requires that alternative locations have been evaluated. The policy requires that the evaluation considers that there are no reasonable alternative locations which avoid prime agricultural lands and that there are no reasonable alternative locations in prime agricultural areas with lower priority agricultural lands. The Appellant provided the Town with a list of other locations in the County that were considered for the relocation of the proposed use and the reason that they were not considered appropriate.
77The Tribunal concurs with Mr. Storey in his assessment of the list of properties provided by the Appellant, in that it provides little detail apart from the address and a brief statement as to why it was not deemed appropriate. Section 3.2.3 of Publication 851 states, “Evaluation of reasonable alternative locations for limited non-agricultural use is mandatory.” Publication 851 provides further guidance addressing market area considerations, the direction to consider settlement areas first, and the consideration of lower priority agricultural lands. The Appellant’s list of alternative sites does not address these items. The Appellant did indicate that there was at least one site that he determined was appropriate, however, the purchase price was not attainable. This issue is specifically identified in Publication 851 as an insufficient reason or justification for not considering an alternative location.
78Publication 851 recommends that a “Rigorous assessment of need, evaluation of alternative locations and mitigation of impacts should be required by municipalities as part of a complete application for non-agricultural uses in the prime agricultural area.” The Tribunal finds that neither the Appellant nor Town Staff provided a rigorous assessment of need or a comprehensive evaluation of alternative locations. Publication 851 provides very instructive direction to the Town on the matters to be considered in such an evaluation and these matters were not addressed in the evidence or submissions proffered by the Appellant. The Tribunal finds that the Appellant has not demonstrated there is an identified need within the planning horizon for additional land to accommodate the proposed use. The Tribunal further finds that evaluation of the alternative locations does not demonstrate there are no reasonable alternative locations within the market area for the proposed use that avoid prime agricultural areas or that are located in prime agricultural areas with lower priority agricultural lands.
79The Tribunal concludes that the PPS makes provisions for non-agricultural uses in prime agricultural areas only when it can be demonstrated that the policies in Policy 2.3.6 can be addressed. Otherwise, as stated in Policy 2.3.1, prime agricultural areas shall be protected for long-term use for agriculture.
80In consideration of the COP, the Tribunal accepts the uncontroverted evidence of Ms. Pillon-Abs, being that the COP permits secondary uses within the Agricultural designation and that the local Official Plan shall contain criteria for the establishment of such uses. Otherwise, no issues of conformity with the COP were raised to the Tribunal.
81The TOP contains Principles, Goals, and Policies for lands designated Agricultural. The Tribunal considered the principle and the two goals addressed by the Planners and with that perspective considered the submissions concerning the Permitted Uses within the Agricultural designation. The Tribunal summarizes the perspective and goals as “the Town will protect and preserve prime agricultural lands and areas for agricultural purposes and will restrict the type and amount of non-farm development in these areas.”
82The TOP permits the use of a site-specific ZBA within an Agricultural designation to permit an existing dry industry use on two conditions.
83The first condition is that the use is “inappropriate within a settlement area.” The Tribunal heard evidence that the Appellant was unable to find a property that could accommodate the NRC setback guidelines within a settlement area. The Tribunal acknowledges that the NRC requirements would require a large parcel of land to accommodate the proposed use in its current form and configuration. No evidence was proffered that the use was not appropriate within a settlement area should the applicable NRC requirements be met. The Tribunal was advised that a similar, albeit much smaller scale, use did exist in the neighbouring Town of Tecumseh as part of the Appellant's retail operation until surrounding development impacted their ability to meet the NRC requirements.
84The Tribunal finds that the evaluation undertaken by the Appellant did not provide sufficient detail to determine which settlement areas, if any, within the market area were considered. The Tribunal notes that Publication 851 assists in determining the appropriate criteria for conducting such an evaluation, including identifying a market area. The Tribunal heard evidence that additional employment lands are necessary for the Town to meet the forecasted needs and that these employment lands, should they be available, could be appropriate for the proposed use. The Tribunal finds that this supports the position of the Town that the use is not explicitly inappropriate within a settlement area.
85The second condition is “that the existing use is to be relocated as part of a municipal initiative.” The Tribunal heard conflicting evidence on this matter which included that the municipal initiative could be an initiative of a municipality other than the Town. The Tribunal does not find this interpretation credible as it implies that the action of another municipality would somehow compel the Town to grant a ZBA permitting a use in the Town’s prime agricultural area. It was also not made clear to the Tribunal if this interpretation should be limited to neighbouring municipalities or if it includes any other municipality in the Province.
86The Tribunal relies on the evidence of Mr. Storey as he interprets a municipal initiative as an action on the part of the Town to achieve some form of change within the Town’s municipal boundaries. The development of a property adjacent or near to the property where the Appellant’s business is located, in a neighbouring municipality, which impacts the Appellant’s ability to comply with federal licensing requirements does not constitute a municipal initiative in the Tribunal’s opinion.
87The Tribunal finds that the intent of the clause permitting a site-specific ZBA to permit an existing dry industry within a prime agricultural area was included in the TOP to provide the Town with the ability to assist an existing business in the Town, presumably operating in compliance with the ZBL, to relocate so that the Town can achieve strategic goals for the long-term planning and growth of the Town. The proposed ZBA does not achieve this purpose in the Tribunal’s determination.
88The TOP continues setting out that such relocated uses will be encouraged to locate along main roads and, if possible, on less productive agricultural land. The Tribunal was advised that 6th Concession Road is not a main road and that a portion of the Subject Lands was a woodlot and therefore not productive farmland. The Tribunal acknowledges that testimony was proffered that the nature of the use does not generate significant traffic volumes that would be more appropriately accommodated on a main road, and that the area of the property proposed to be utilized for long-term storage is not productive farmland. These considerations do not impact the Tribunal's review of the two policy conditions identified above.
89The Tribunal finds that the Application does not conform to the TOP. The goals of the TOP are to protect and preserve prime agricultural lands and areas for agricultural purposes and to restrict the type and amount of non-farm development. The Tribunal finds that the Application does not protect prime agricultural lands. The TOP policy permitting the relocation of a dry industry includes conditions which restrict non-farm development and protect and preserve prime agricultural lands. The conditions, in this instance, were not met in the Tribunal’s determination and thus did not achieve the purpose of preserving prime agricultural lands for agricultural uses.
90The Tribunal was requested to grant a temporary use by-law for one year to allow for the Appellant to reduce inventory and relocate the storage of consumer-grade fireworks from the Subject Lands, and to grant a ZBA to permit the storage of professional-grade fireworks permanently. The Appellant's Planner indicated that should the Tribunal not grant a permanent approval for the storage of professional-grade fireworks, the Appellant would require time to wind down the operation at the Subject Lands and that a second temporary use by-law would assist in this effort.
91The Appellant’s testimony was that the use was established on the Subject Lands in 2012 without approval from the Town. The Town Council did not grant a rezoning of the Subject Lands in 2019, but instead granted a temporary use by-law wherein the Appellant was granted three years to find an alternative location and relocate the business. While the Appellant provided reasons for the establishment of the use, the delay in seeking approvals, and the inaction to relocate the use during the three-year term granted by the Town, the Tribunal heard no compelling evidence that the Appellant intends to cease the use of the Subject Lands for the storage of fireworks.
92The Appellant has not demonstrated regard for the municipal approval process as no approvals were sought when the business was established and the Appellant continues to operate from the Subject Lands despite the direction of the Town Council arising from the 2019 approval of a temporary use by-law. The Tribunal is not satisfied that granting a further temporary use by-law to provide additional time for the Appellant to “wind down” the use will result in a more concerted effort by the Appellant to comply with Council’s direction.
93The Tribunal considered the Application in the context of the PPS, the COP, and the TOP and finds that the use is not in conformity with the TOP and is not consistent with the PPS as set out above. The Tribunal had regard for the matters of provincial interest set out in s. 2 of the Act and finds that the Application does not represent the appropriate location for the proposed development, being the use of the Subject Lands for non-agricultural uses.
94In consideration of the above, the Tribunal is not satisfied that the Application represents good planning.
ORDER
95THE TRIBUNAL ORDERS that the appeals are denied and the Application to Amend the Town of Essex Zoning By-law 1037 is refused.
“David Brown”
DAVID BROWN
MEMBER
“S. Dixon”
S. DIXOn
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.