Grass v. Kawartha Lakes (City), 2023 CanLII 48560

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 01, 2023

CASE NO(S).: OLT-22-004350

PROCEEDING COMMENCED UNDER subsection 22 (7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: William Grass

Subject: Request to amend the Official Plan – Refusal of request

Description: To permit a trailer sales and storage use on the subject property.

Reference Number: D01-2020-009

Property Address: 689 Cottingham Road

Municipality/UT: Kawartha Lakes/Kawartha Lakes

OLT Case No: OLT-22-004350

OLT Lead Case No: OLT-22-004350

OLT Case Name: Grass v. Kawartha Lakes (City)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: William Grass

Subject: Application to amend the Zoning By-law – Refusal of application

Reference Number: D06-2020-028

Property Address: 689 Cottingham Road

Municipality/UT: Kawartha Lakes/Kawartha Lakes

OLT Case No: OLT-22-004351

OLT Lead Case No: OLT-22-004350

Heard: May 01, 2023 via Video Hearing

APPEARANCES:

Parties

Counsel

William Grass

John Ewart

City of Kawartha Lakes

Jennifer Biggar

Darlene and William Callan

Kathleen Kinch, Jenna Khoury-Hanna

DECISION DELIVERED BY S. deBOER AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal was an appeal by William Grass (the “Appellant”) due to the refusal of the Official Plan Amendment (the “OPA”) and the Zoning By-law Amendment (the “ZBA”) applications by the City of Kawartha Lakes (the “City”).

2The purpose of the applications is to permit the storage and sales of 32 trailers on a portion of the Subject Property municipally known as 689 Cottingham Road, City of Kawartha Lakes (“SP”).

3To facilitate the proposed use, an OPA and ZBA is necessary in order for a portion of the Subject Property to be rezoned from Agricultural (A1) Zoning to Agricultural Exception (A1-X) Zoning.

SITE DESCRIPTION

4The Subject Property is approximately 39.8 hectares in size with a frontage on Cottingham Road of approximately 149 metres. The Subject Property currently has one dwelling, covering an area of approximately of 284 square metres and an agricultural storage building with an area of 283 square metres. Current farming uses include hay, maple syrup and honey production. The hay production covers an area of approximately 10.11 hectares. The Subject Property is currently zoned with the aforementioned Agricultural designation, an Environment designation and a Rural designation for portions of the property.

5The Subject Property is located within a rural and agricultural area. The surrounding properties are used for mostly agricultural purposes with a combination of crops and livestock.

6The proposal as presented would cover an area of approximately 2,000 square metres located on the western boundary of the property and located behind the existing agricultural storage building. The existing driveway would be used to access the area that is to store the trailers.

7The Trans Canada Trail extends across the existing driveway of the Subject Property and Cottingham Road. In other words, the Trans Canada Trail is located between Cottingham Road and the Subject Property.

8The applications were submitted to the City Staff in September of 2020. Along with the applications the following reports were submitted with the applications:

a. Planning Justification Report

b. Grading Plan

c. Traffic Impact Brief

d. Entrance Permit Review Confirmation Letter

e. Existing Septic System Assessment.

12After City Staff reviewed the application, they requested that an Agricultural Impact Assessment report to be added as additional information to the applications. After this assessment had been received by City Staff, the application was deemed complete on December 15, 2020.

13Following the completion of the applications, a Statutory Public Meeting was held by the City’s Planning Advisory Committee (PAC) on January 13, 2021.

14City Staff then retained RJ Burnside to complete a peer-review of the Traffic Impact Brief. After the peer-review was completed, both the traffic expert for the Applicant and the traffic expert for the City reviewed and discussed each other’s issues and concerns. A finalized and agreed upon Traffic Impact Brief was presented to the PAC in August 2021.

15Staff bought forth a draft of the OPA and ZBA to the regular meeting of the PAC on June 8, 2022. City Staff recommended that the OPA and ZBA be adopted and approved. Through its analysis, the PAC recommended to Council that the applications be denied.

16At the regular council meeting of June 21, 2022, Council voted to refuse the applications.

17The Applicant appealed the decision of council to the Ontario Land Tribunal on July 22, 2022.

DAY OF HEARING

Planner in Support of the Applicant

18In support of the applications the Applicants presented two witnesses, the first being Kent Randall, the Principle Planner for EcoVue Consulting Services Inc. Mr. Randall was the planner who represented the Applicant through the application process in this matter. Mr. Randall is a registered Professional Planner in the Province of Ontario and is a Professional Planner in good standing with the Canadian Institute of Planners. Mr. Randall was affirmed and qualified without refute to give expert opinion evidence in the area of land use planning.

19Mr. Randall gave the Tribunal a background into the application process and a description of the Subject Property. Mr. Randall indicated that the applications are to allow for an on-farm diversified use (“ODFU”) to allow for a trailer sales business to be conducted as the diversified use. The trailer sales business would include outdoor storage of non-motorized recreational and livestock trailers on the designated portion of the property. It would be anticipated that a maximum of 32 trailers would be stored on the property at any one time. The portion of the ODFU would encompass approximately 2,000 square metres of the Subject Property of just under 1% of the property itself.

20Mr. Randall gave evidence through his witness statement that the Subject Property currently has three designations in the City of Kawartha Lakes Official Plan, that of the Prime Agricultural, Rural and Environmental Protection.

21Mr. Randall gave evidence that the Township of Emily Zoning By-law (the “ZBL”) has the Subject Property zoned as Agricultural (A-1) and Environmental Protection (EP). Since the proposed OFDU is proposed to take place in the “Rural” designation under the CKLOP and to take place in the A1 Agricultural Zone, both an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”) are needed to conform to the existing plans.

Issues

(A) Is the Proposed Use an “OFDU” Based of s. 2.3.3.1 of the Provincial Policy Statement (the “PPS”), the CKLOP and the ZBL?

22In Mr. Randall’s opinion, the Applications are to be considered in the “rural” portion of the property and as such, s. 1.1.5 of the PPS applies. Specifically, s. 1.1.5.2(d) permits on rural lands:

(d) Agricultural uses, agriculture-related uses, on-farm diversified uses and normal farm practices, in accordance with provincial standards.

23Further to this, Mr. Randall gave opinion that s. 2.3.3.1 of the PPS states:

“…on-farm diversified uses shall be compatible with, and shall not hinder, surrounding agricultural operations. Criteria for these uses may be based on guidelines developed by the Province or municipal approaches, as set out in municipal planning documents, which achieve the same objectives.”

24Mr. Randall opined that the applications meet the guidelines of an OFDU according to the 2016 Publication 851: Guidelines on Permitted Uses in Ontario’s Prime Agricultural Areas (“Publication 851”). This Publication is to be used in conjunction with the PPS as additional criteria related to OFDUs. The guidelines promote secondary uses that:

(a) Directly relate to agriculture;

(b) Are supportive of agriculture or;

25In Mr. Randall’s opinion, an OFDU can be numerous types of uses as long as the criteria in the Publication can be met. The specific scope and type of OFDUs are intentionally left vague in order to provide the most flexible opportunity to the farming community to diversify their income opportunities. The criteria needed to qualify as an OFDU are as follows:

Located on a Farm

Mr. Randall stated that approximately 25 acres of the SP are farmed, mostly for hay. Other farm uses include maple syrup and honey through beehives that are located on the SP. In Mr. Randall’s opinion, this meets the farm qualification.

Secondary to the Principle Agricultural Use of the Property

Mr. Randall gave opinion that the area that would be dedicated for use as an OFDU would occupy approximately 2,500 square metres. The area to be used by the OFDU is significantly less in term of both spatial and temporal terms. No further buildings would be needed for the use and it is expected that a maximum of four to five potential customers would be on the property at any one time. Overall, this would meet the use as secondary to the agricultural use of the property. Mr. Randall noted that the size requested has changed from 2,000 square metres to 2500 square metres but is still significantly less that the total of 2% of the total lands of the property.

Limited in Area

As noted above, Mr. Randall gave opinion once again that the size and scope of the OFDU do meet the Guidelines of less than 2% of the total property size. Only a small portion of the property would be removed from the Agricultural use of the property.

Includes, but is not limited to, home occupations, home industries, agri-tourism and uses that provide value-added agricultural products.

Mr. Randall gave opinion that applications meet the Guidelines stated below:

“…beyond these examples, other uses may be suitable, subject to meeting all PPS criteria.”

“…these (OFDU) operations must be at a reasonable scale as discussed under the ‘secondary to’…and ‘limited in area’ criteria”.

Shall be compatible with, and shall not hinder, surrounding agricultural operations.

In Mr. Randall’s opinion, the proposed ODFU will remain compatible with the agricultural and rural character of the area. No new structures are needed or proposed, the exiting agricultural operation will not be hindered in any way. The applications meet the minimum distance separation (“MDS”) guidelines and the outdoor storage of the trailers will be limited in area. The location of the trailers will be out of site from the road and from users of the walking trail.

In Mr. Randall’s opinion, the Traffic Impact Brief demonstrates that the proposed use will generate a low volume of traffic, will not impact the current use of Cottingham Road. The site entrance meets the standards of the OP entrance By-law and from the peer review, the existing entrance will not create any safety issues with Cottingham Road or the Trans Canada Trail.

26In his opinion, Mr. Randall stated that the OFDU meets all five of the criteria listed above as per Publication 851 and meets the criteria of an OFDU as per s. 2.3.3.1 of the PPS. The applications are consistent with s. 1.1.5 of the PPS as the proposal will create an economic opportunity for the Applicant to help support the agricultural operation that is currently existing on the SP. The proposal will meet the MDS setbacks as calculated in the Agricultural Impact Brief that was submitted with the applications.

(B) If the ODFU is Involved with Assessing this Application:

i. What are the applicable criteria and guidelines to assess this application?

27Mr. Randall gave opinion that s. 16.1 and s. 16.2 of the CKLOP are the most applicable sections to use to evaluate the proposed since the CKLOP does not contain any specific criteria pertaining to OFDUs. Mr. Randall opined that s. 16.1 states that the primary goal of the “Rural” designation is to protect and promote the agricultural sector and protecting the rural character of the City. The proposed OPA would permit the sale and storage of the trailers within the rural portion of the SP, thus, conforming to the CKLOP.

28As for s. 16.2, Mr. Randall gave opinion that one of the objectives of the “Rural” designation is:

16.2 (b) To protect and strengthen the agricultural community while permitting uses that would support the agricultural community and would not conflict with them.

The proposal would not impact the existing farming on the SP. Only a small portion of the rural lands would be used for the OFDU uses as proposed. The OFDU is to help the Applicant generate a supplemental income other that the primary farm use of the SP. Mr. Randall is of the opinion that the OFDU would conform to 16.2 as the OFDU would not conflict with the existing agricultural uses of the SP.

ii. Does the Proposed meet the Policy Requirements for an OFDU?

29Mr. Randall’s opinion is that the proposed use meets the policy requirements for the proposed OFDU.

iii. Is the Scale and Intensity of the Proposed Use Appropriate as an OFDU?

30In Mr. Randall’s opinion, the scale and intensity of the application has been looked at in great detail. The proposed limited scale and size of the OFDU is an appropriate use of the SP.

iv. Do the OPA and ZBA Appropriately Limit the Scale and Intensity to Ensure Consistency with the PPS, Compatibility with Neighbouring Land Uses and Compatibility with the Character of the Surrounding Lands?

31In Mr. Randall’s opinion, the enactment of a “holding” provision in the ZBA to rezone the property to an “Agricultural Exception Forty-Holding (A1-40(H)) to allow for the trailer sales and storage subject to the following provisions:

A maximum of 32 trailers to be kept for storage or retail at any one time.
Retail and installation of trailer accessories may be permitted as an accessory use.
The gross area of the trailer sales and storage establishment shall not exceed 2,500 square metres.
Section 3.13.1, as it pertains to Multiple Zones on a lot, shall not apply to the A1-40 Zone.

32The holding provision can only be lifted when a site plan agreement has been entered into with the City of Kawartha Lakes (as per s. 36 of the Planning Act). The site plan agreement will provide additional enforcement or control to the City concerning the maintenance of the site for the OFDU usage. Mr. Randall is of the opinion that the limiting of the total of 32 trailers is excessive and he recommends that the lifting of the limit of trailers since the total area to be permitted is no more than 2,500 square metres.

v. Does the Application Adequately Address Potential Soil Contamination or Hazardous Waste Storage Arising from the Proposed Repair Service of Vehicles?

33Mr. Randall gave opinion that the proposal does not have any uses that would require the storage of any hazardous materials, as such, this issue does not apply to the applications.

(C) Is the Intersection of the Site Entrance with Cottingham Road adequate to Ensure the Orderly Development of Safe Communities and to Sustain the Proposed Use?

(D) Is the Existing Road Adequate to Service the Proposed Development as well as the Utilization of the road and Adjacent Area by Agricultural Property Owners/farmers and Users of the Trans-Canada Trail?

34To both of these issues, Mr. Randall is of the opinion that the proposal will utilize the existing entrance from Cottingham Road. The entrance meets the requirements by the City and the use will not interfere with the road use by any neighbours or farms. The proposed use does not create any traffic safety issues as submitted through the TIB. The proposal does not create any safety issues with the adjacent Trans-Canada Trail or the use of the Trail.

35Mr. Randall was questioned by Kathleen Kinch as to the Applicant selling BBQ pellets from his current garage. Mr. Randall was not aware of the pellet sales and could not provide comment as to the verification of the current state of the possible selling of the pellets.

Conclusionary Opinion

36It is Mr. Randall’s opinion that the proposal does meet the requirements of an OFDU, is consistent with the PPS and the guidelines of Publication 851. The proposal will conform to the CKLOP and the ZBL. The proposal constitutes good land use planning and is in the public interest.

Planner in Support of the City’s Decision

37The City presented Jamie Robinson in support of the City’s denial of the applications. Mr. Robinson is a Registered Planner and partner at MHBC Planning Limited. He is a full member of the Canadian Institute of Planners and a full member of the Ontario Professional Planners Institute. He was affirmed and qualified without refute to give expert opinion evidence in the are of land use planning.

38Mr. Robinson was retained by the City to review the applications, the staff report submitted to the PAC and the final decision of Council in this matter.

39Mr. Robinson gave opinion through his witness statement in the applications that were presented before council but were not sufficient to limit the scale of the proposed OFDU and ensure consistency and conformity with the PPS, CKLOP and ZBL.

40It was Mr. Robinson’s opinion that if modifications to the OPA and ZBA were completed, then he may be in a position to support the applications as long as the changes met the following criteria:

(a) The revised Applications would permit the trailer sales as an OFDU only;

(b) The revised Applications would limit the scale of the OFDU; and

41Mr. Robinson gave opinion that the applications before the Tribunal do not demonstrate the correct size of the area being requested to be used as an OFDU. A further study of the applications showed that the actual size for the OFDU is approximately 6,100 square metres or three times the size of the original OFDU area requested. This corrected sizing can be seen on Exhibit 3 – Evidence Aid Materials. The area for the OFDU not only is three times the initial size applied for, the OFDU also encompasses a small area of the Environmental Zone (EP), which again can be seen on Exhibit 3. It must be noted that this opinion by Mr. Robinson demonstrating the actual size of the OFDU request was not refuted by the other land planning witnesses.

42Mr. Robinson opined that he does agree that the area that is being requested as a part of the original 2,000 square metres for the OFDU is in fact, in the Rural designated area. However, in light of the new size being 6,100 square metres and that the area being requested does intrude (albeit minor in nature) on the environmentally protected area, in his opinion, the OFDU is not suitable for the Subject Property.

43Mr. Robinson gave opinion that if the farming operation were to stop, the trailer sales operation could continue independently aside from the farming business. In his opinion, this does not qualify the requested use as an OFDU. In his opinion, Council made the correct decision, to deny the applications that were presented before it.

(A) Is the Proposed Use an “OFDU” Based of s. 2.3.3.1 of the Provincial Policy Statement (the “PPS”), the CKLOP and the ZBL?

44In Mr. Robinson’s opinion, an OFDU is permitted on the rural lands as per the Growth Plan and can exist as long as they meet the provincial standards through Publication 851.

(B) If the ODFU is Involved with Assessing this Application:

i. What are the applicable criteria and guidelines to assess this application?

45In Mr. Robinson’s opinion, the applications that were considered by Council do not meet the provincial requirements of an OFDU as the original applications for trailer sales can be done independently of the farming operation. The OFDU does not qualify as it does not directly relate or support agriculture, even though the trailer sales could coexist with the current agricultural use.

ii. Does the Proposed meet the Policy Requirements for an OFDU?

46Mr. Robinson referred back to the section of Publication 851 that shows the requirements for an OFDU, specifically subsection 4:

Includes, but is not limited to, home occupations, home industries, agri-tourism uses and uses that produce value-added agricultural products.

Mr. Robinson noted that other uses may be permitted on a case-by-case basis. However, due to the proposed use not being in the agricultural industry, and that the proposed OFDU could be operated if the farm operation were to cease, Mr. Robinson is of the opinion that the proposal does not meet the OFDU criteria.

iii. Is the Scale and Intensity of the Proposed Use Appropriate as an OFDU?

47It was Mr. Robinson’s opinion that the proposal before Council did not limit the scale of the use, however, did limit the size of the area that could be zoned for the OFDU. Mr. Robinson noted that the size proposed is not triple the size of the original proposal and as such, is not appropriate for the Subject Property.

48As in his answer above, Mr. Robinson is of the opinion that the proposal that was before Council did not limit the scale and intensity in a manner that would be deemed as consistent with the PPS. Mr. Robinson is of the opinion that due to a lack of a limit on the amount of trailers that could be put on the OFDU in the original OPA application, the applications cannot be deemed to be compatible with the neighbouring land uses. Mr. Robinson did agree that the ZBA did put a limit on the amount of trailers that could be on the Subject Property at any one time.

v. Does the Application Adequately Address Potential Soil Contamination or Hazardous Waste Storage Arising from the Proposed Repair Service of Vehicles?

49Mr. Robinson did not have an opinion on this particular issue of the applications.

(C) Is the Intersection of the Site Entrance with Cottingham Road adequate to Ensure the Orderly Development of Safe Communities and to Sustain the Proposed Use?

50In consideration of both of these issues, Mr. Robinson gave opinion that the traffic professionals were of an opinion that the traffic and intersection considerations can be addressed on the site plan level.

Conclusionary Opinion

51Mr. Robinson’s conclusionary opinion was that the applications that were presented to council were not consistent with the PPS, are not in the public interest and are not suitable land use planning instruments. As for the OPA and ZBA as presented, Mr. Robinson’s opinion was that the applications did not meet the qualifications of an OFDU as there were not sufficient limitations of scale and the proposed use will not be compatible with the surrounding land uses including agricultural operations. The OFDU could operate independently of the current agricultural use and thus does not meet the requirements of an OFDU.

Planner in Support of the Callan Party

52Through Ms. Kinch, Darlene Callan and William Callan presented Kevin Duguay in support of the position that the applications should be denied by the Tribunal. Mr. Duguay is a full member of the Canadian Institute of Planners, a full member of the Ontario Professional Planners Institute. He was affirmed and qualified without refute to give expert opinion evidence in the area of land use planning.

53Mr. Duguay gave opinion that the applications as presented to Council did not have any OFDU uses as apart of ZBA. Mr. Duguay opined that the applications did not provide adequate land use policies to ensure the use would be used as an OFDU. Mr. Duguay was of the opinion that was similar to Mr. Robinson, that the trailer sales may not be an OFDU, as the trailer sales could operate if the agricultural operation was to stop. The proposed OFDU could operate entirely independently whether farming or agriculture occurs on the Subject Lands or not.

54Mr. Duguay opined that the proposed use of trailer sales is more indicative of a permitted Highway Commercial land use. Cottingham Road is a rural secondary road which is not normally used for such retail establishments such as trailer sales. Even though this type of trailer traffic is permitted on Cottingham Road, it has been a normal land planning practice to have such establishments located on a primary road or highway.

55In Mr. Duguay’s opinion, the current agricultural uses surrounding the Subject Lands and the adjacency of the Trans-Canada Trail would make traffic a challenge on the best of days.

(A) Is the Proposed Use an “OFDU” Based of s. 2.3.3.1 of the Provincial Policy Statement (the “PPS”), the CKLOP and the ZBL?

56In Mr. Duguay’s opinion, the OFDU is not a secondary use as it can operate independently of the agricultural operation. The OPA and ZBA as presented to Council did not meet the criteria of a home occupation, home industry or Agri-Tourism nor does the use produce any value-added agricultural products.

(B) If the ODFU is Involved with Assessing this Application:

i. What are the applicable criteria and guidelines to assess this application?

57Mr. Duguay was of the opinion that the applications do not meet the criteria of being an OFDU. The applications should be considered under a permitted Highway commercial use. The applications cannot be considered an OFDU since the proposed use can operate independently of the primary agricultural use.

ii. Does the Proposed meet the Policy Requirements for an OFDU?

58In Mr. Duguay’s opinion, the OFDU does not meet the requirements of an OFDU as explained above. The proposed use can operate independently of the primary agricultural use and does not provide any tertiary agricultural uses. The proposed is indicative of a commercial highway use.

iii. Is the Scale and Intensity of the Proposed Use Appropriate as an OFDU?

59In Mr. Duguay’s opinion, the scale and intensity is not an appropriate use of the Subject Lands.

60Mr. Duguay gave opinion that the applications do not appropriately limit the scale and intensity as the applications should not be recognized as an OFDU issue. In Mr. Duguay’s opinion, the applications are not consistent with the PPS and are not compatible with the surrounding lands due to the use not meeting the criteria of an OFDU.

v. Does the Application Adequately Address Potential Soil Contamination or Hazardous Waste Storage Arising from the Proposed Repair Service of Vehicles?

61Mr. Duguay was of the opinion that this issue should not be in consideration since he believes the OFDU is not appropriate for the Subject Lands.

(C) Is the Intersection of the Site Entrance with Cottingham Road adequate to Ensure the Orderly Development of Safe Communities and to Sustain the Proposed Use?

62In Mr. Duguay’s opinion, the applications may generate limited vehicular traffic, however, the non-agricultural use is not considered to be apart of the uses of this secondary or rural road. Mr. Duguay opined that the Highway Commercial designation would be more appropriate for the applications. The Subject Lands are adjacent to Highway 7 which would be considered to be a more appropriate location to ensure proper access and egress from such an establishment.

Conclusionary Opinion

63In Mr. Duguay’s opinion, the applications are not consistent with the PPS as the OFDU does not meet the guidelines of an OFDU use. The applications do not conform with the CKLOP or the Township of Emily Zoning By-law.

64Mr. Duguay opined that the applications are not an appropriate use for a rural road such as Cottingham Road. The applications are more of a “Commercial Highway” use due to the types and size of trailers that would be for sale. The applications are not in keeping with the general intent and purpose of the CKLOP and the Township of Emily Zoning By-law.

Traffic Experts

65The Tribunal heard from three traffic experts. Anil Seegobin from Trans-plan representing the Appellant, Michael Cullip from Tatham Engineering representing the City and Martin Asurza from Asurza Engineers, representing the Callans. All three were affirmed and qualified to give expert opinion evidence in the areas of traffic engineering and traffic safety.

(C) Is the Intersection of the Site Entrance with Cottingham Road adequate to Ensure the Orderly Development of Safe Communities and to Sustain the Proposed Use?

66Concerning the issue of the Subject Property entrance to Cottingham Road, all three experts agreed that this issue can be addressed and finalized through the site plan process to ensure the proper design can accommodate the vehicles entering and leaving the Subject Property.

67All three experts agreed that due to the predicted low level of traffic volumes that are expected with the trailer sales business, that Cottingham Road would be able to accommodate the extra traffic volumes.

68All three experts agreed that there would not be any concerns with the sight lines leading into the entrance of the Subject Property. The sight lines are considered appropriate for the intended use of the Subject Property.

69The traffic experts all agreed that Cottingham Road will be able to service the projected traffic from the OFDU. During peak periods of use on the Trans-Canada Trail, on-street parking does occur on Cottingham Road in proximity of the Trail crossing Cottingham Road. The experts gave opinion that these conditions are not the responsibility of the Appellant, but of the Municipality to address.

70The experts agreed that the municipality could consider implementing extra safety measures such at “Trail Crossing” signs, enforce the restriction of on-street parking and/or provide other areas to be used for off-street parking in the vicinity of the Trail.

Darlene Callan

71Ms. Callan was affirmed to give personal testimony as her family is in the agricultural industry. Her concerns were based to the current road usages with farming equipment and users of the Trans-Canada Trail. Ms. Callan stated that Cottingham Road near the Trans-Canada trail is already a traffic choking point, which is hampering the current use of farming equipment. Peak trail use times of the year (specifically spring and fall) are the same peak times that farmers need to use large equipment to plant or take off crops. It is often a small window of opportunity for the farmers to plant and harvest to get the maximum yield. Weather conditions need to be ideal for planting, sometimes these opportunities have been missed due to vehicles being parked on the side of the road for trail use during these peak agricultural times. The current challenge of vehicular traffic would only be worsened by allowing the delivery or sale of the travel trailers. The impact of the Trans-Canada Trail use has hampered farmers to be agile in planting or harvesting since there can be a large amount of cars parked on an already narrow secondary or ‘rural’ road. Cottingham Road was not created to handle the current amount of traffic, let alone existing farm use traffic. Adding another use to the Subject Lands would only cause further unneeded congestion to a road that was not aimed to handle the large trailers coming back and forth off the property.

72Ms. Callan stated that this OFDU will only inhibit traffic flow in the area and off much greater opportunities for a large accident to occur. She believes that the Municipality does not have an intent to widen the road in the area around the Subject Property and until these on-going traffic concerns can be rectified, the OFDU should not be allowed.

73Ms. Callan stated that the Appellant is already using his property for a use that is not an approved OFDU use. She stated that the Appellant is an authorized BBQ pellet distributor and sells the pre-packed bags of pellets from his property now. The Appellant has been promoting this business since 2020. The proof of this business being operated is apart of Exhibit 4 to the hearing.

ANALYSIS AND FINDINGS

74In arriving at this Decision, the Tribunal has reviewed the material evidence provided, considered the expert evidence and opinions of the witnesses. The Tribunal has given regard to the materials that were presented to Council and the decision thereof.

75In reviewing the evidence of the expert land use planners, the Tribunal prefers the evidence of Mr. Robinson and Mr. Duguay. The Tribunal agrees with Mr. Robinson and Mr. Duguay that the trailer sales do not qualify as an OFDU as the trailer sales can operate independently of any farming operation on the Subject Property.

76The Tribunal finds that the trailer sales do not provide any agricultural benefit or agricultural use to the Subject Property. Mr. Robinson’s expert opinion evidence demonstrated that the applications as presented to the Tribunal will actually be three times the size of the original application if approved. The Tribunal finds that the OFDU area does encroach on what is considered to be environmentally protected lands on the Subject Property.

76The Tribunal finds that the location of the OFDU is more of a commercial highway activity and the use of Cottingham Road as the access point is not appropriate for the requested OFDU use.

77The Tribunal acknowledges that the traffic experts agree on the fact that the trailer traffic to and from the Subject Property is predicted to be light. However, Cottingham Road is a secondary or ‘rural’ road and is not currently designed for retail operations that can be deemed to be of a ‘Commercial Highway’ activity.

78The Tribunal finds that the applications are not consistent with the PPS as the applications do not meet the criteria of an ODFU as established in Publication 851. As such, the Applications do not conform with the CKLOP and do not conform with the Township of Emily Zoning By-law 1996-30.

78The Tribunal finds that the decision taken by Council concerning the applications was appropriate and in the public’s interest.

ORDER

79THE TRIBUNAL ORDERS that the appeal is dismissed and the requested amendment to the Official Plan for the City of Kawartha Lakes is refused.

80THE TRIBUNAL ORDERS that the appeal against the Town of Emily Zoning By-law 1996-30 is dismissed.

“S. deBoer"

s. deboer

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.