Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 07, 2023
CASE NO(S).: OLT-21-001690 (Formerly PL180383)
PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Coco Properties Corporation
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: to permit expansion of a quarry
Reference Number: D14-104-2014
Property Address: 2357-2363 and 2489-2505 Unity Road
Municipality/UT: Kingston/Frontenac
OLT Case No: OLT-21-001690
Legacy Case No: PL180383
OLT Lead Case No: OLT-21-001690
Legacy Lead Case No: PL180383
OLT Case Name: Coco Properties Corporation v. Kingston (City.)
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: to permit expansion of a quarry
Reference Number: D-09-025-2014
Property Address: 2357-2363 and 2489-2505 Unity Road
Municipality/UT: Kingston/Frontenac
OLT Case No: OLT-22-004036
Legacy Case No: PL180384
OLT Lead Case No: OLT-21-001690
Legacy Lead Case No: PL180383
PROCEEDING COMMENCED UNDER section 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.10.
Subject: Application for aggregate extraction Class A License for existing quarry
Description: to permit a Category 2, Class A licence to excavate aggregate from a 73.8 hectare quarry
Reference Number: 626239
Property Address: Part of Lots 12-13, Concession 5
Municipality/UT: Kingston/Frontenac
OLT Case No: OLT-21-001519
OLT Lead Case No: OLT-21-001690
Heard: May 31, 2023 by video hearing
APPEARANCES:
Parties
Counsel
Coco Properties Corporation
Kim Mullin and Eugenia Bashura
City of Kingston
Spencer Putman
MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE ON MAY 31, 2023 AND FINAL ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1The Tribunal convened a Hearing on an appeal filed by Coco Properties Corporation against the City of Kingston (“City”) regarding Council’s non-decision of Official Plan Amendment (“OPA”) and Zoning By-law Amendment No. 76-26 (“ZBA”) and Aggregate Resources Act (“ARA”) applications concerning 2357 Unity Road and 2489-2505 Unity Road (“Subject Lands”).
2The Appellants have applied to extend the Elginburg Quarry on lands located directly to the west of the existing Elginburg Quarry. The proposed Extension is located at Part Lots 12 to 13, Concession 5, of the City. The proposed Extension is 66.2 hectares (“ha”).
3The proposed Extension includes approximately 52 million tonnes of a high-quality mineral aggregate resource. The Extension is proposed to be operated in conjunction with the existing Elginburg Quarry (Aggregate Resources Act Licence No. 2901) and to utilize infrastructure from the existing Elginburg Quarry including the existing entrance/exit. The existing Elginburg Quarry is permitted to ship a maximum of 500,000 tonnes of aggregate per annum and the proposed combined tonnage limit for the existing Elginburg Quarry and Extension is 1 million tonnes of aggregate per annum.
4The existing Elginburg Quarry includes two (2) extraction phases, and the proposed Extension includes three (3) extraction phases, with extraction commencing south of the pipeline easement. The Extension is proposed to be rehabilitated in conjunction with the existing Elginburg Quarry to a natural heritage end use consisting of two (2) lakes and wildlife habitat that will naturally succeed to a woodland.
BRIEF CHRONOLOGY OF THE APPLICATION
5This appeal involved three Case Management Conferences (“CMC”). The Applicant submitted an application to the Ministry of Natural Resources and Forests (“MNRF”) to obtain approval for an expansion of the existing Elginburg Quarry. The Elginburg Quarry operates under a Class A Licence approved under the ARA.
6The Minister of the MNRF referred the licence application and a list of Objectors to the Tribunal, pursuant to s. 11(5) of the ARA. On the referral of an ARA application to the Tribunal, the Objectors to the ARA application are parties in the Tribunal proceeding(s).
7At the first CMC on February 14, 2020, the Tribunal consolidated the ARA licence application referral matter with the OPA and ZBA appeals, and as requested, conferred Participant status to all of the Objectors in attendance.
8A second CMC was held on August 26, 2022. Following from discussions at that CMC, the Tribunal granted requests by Dave Munroe, Mark Taylor, Michael and Lisa Drewniak, Ronald and Sandra Murphy, Mary Rahmel, Jack Walker, and Angela Allison to change their status back to party. Mr. Munroe agreed to act as the lead spokesperson on behalf of the Objector parties.
9On November 3, 2022, the City and the Appellant reached a settlement in regard to the OPA, ZBA and ARA appeals.
10At the third CMC on November 30, 2022 the Tribunal received separate email correspondence from Mr. Munroe and each of the named Objector parties, all requesting to revert back to Participant status. The Tribunal granted these requests.
HEARING
11Upon the commencement of the hearing, Kim Mullen, Counsel for the Appellant, advised of a settlement reached between the Appellant and the City. In addition, Ms. Mullen advised on April 22, 2022, Coco Properties Corporation and GFL Infrastructure Group Inc. and its subsidiaries combined under Green Infrastructure Partners Inc. (“GIP”) the new owners (“Appellants”) who has assumed all rights and responsibilities associated with the properties including that of the outstanding appeals. For the purposes of this Hearing, the Tribunal notes the formal substituting of Coco Properties Corp. to GIP.
12GIP Properties Corp. and the City (collectively, the “Parties”) have agreed to a comprehensive resolution of the Appeal and wish to reflect their agreement in Minutes of Settlement (“MOS”) and Revised Plans (see Schedule A (OPA), B (ZBLA), C (Extension Site Plan), D Existing Quarry Site Plan Amendment) attached) and agree to place the proposed settlement herein before the Tribunal for an issuance of approval.
WITNESS
13Evidence in support of the proposed applications was provided by the Appellant’s witness, Brian Zeman, who was qualified on consent by the Tribunal to give opinion evidence in the area of Land Use Planning. The Tribunal also notes the extensive experience in ARA applications (over 100) in which Mr. Zeman has been involved.
14The Tribunal received and marked the following new documents as Exhibits to the Hearing:
Exhibit 2: Minutes of Settlement dated 3 November 2022
Exhibit 3: Affidavit of Brain Zeman
THE SUBJECT LANDS AND SITE CONTEXT
15The proposed Extension is predominantly designated “Rural Lands” in the City OP. These rural lands also include a protected “Aggregate – Bedrock Reserve Area”.
16The proposed extraction area for the Extension is 53.6 ha and is predominantly forested with some open field located in the northwest corner along Unity Road. A Hydro One Corridor diagonally bisects the northern portion of the proposed Extension site, and a corridor containing Enbridge and TransCanada gas pipelines crosses the northern third of the site.
17The City OP requires consideration of land uses within 500 metres (“m”) of the proposed Extension. Within 500 m of the proposed Extension there are rural residential uses and a KOA campground, which are considered sensitive land uses.
[PLANNING ACT](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) (“Act”)
18Mr. Zeman advised the proposed Extension has regard to provincial interests in a number of areas. The proposed Extension protects ecological systems, including natural areas, features and functions. The proposed Extension conserves significant cultural heritage resources. In addition, the proposed Extension makes available a close to market source of aggregate, which will contribute to lessened greenhouse gas emissions as a result of shorter truck trips. The proposed Extension is required to operate in accordance with Ministry of Environment, Conservation and Parks (“MECP”) permits to ensure the supply, efficient use and conservation of water.
19According to Mr. Zeman, the proposed Extension represents the efficient use of transportation systems. The proposed ARA site plans for the Extension include the permission to recycle aggregate to assist with waste management. The proposed Extension does not impact communication, sewage and water services.
20Mr. Zeman testified the proposed Extension is located within the rural area of the City and is an identified aggregate reserve area in the City OP. Mineral aggregate operations are a rural land use and the proposed Elginburg Quarry Extension has been designed to minimize impacts on the surrounding community.
21The City, MNRF, agencies, utilities and peer reviewers have no outstanding concerns with the proposed Extension. The City has entered into MOS confirming that their concerns with the applications have been addressed.
22In Mr. Zeman opinion, which the Tribunal agrees, the proposed applications have appropriate regard for matters of provincial interest, as outlined in section 2 of the Act.
PROVINCIAL POLICY STATEMENT (2020)
23Mr. Zeman testified the proposed Extension is located in the rural area of the City in a location that will not prevent the efficient expansion of settlement areas. The Extension is adjacent to an established mineral aggregate operation and the Extension lands are a protected “Aggregate – Bedrock Reserve Area”. The operation has been designed to avoid environmental, public health and safety concerns in accordance with provincial guidelines, standards and procedures.
24Mr. Zeman advised the proposed Extension site is located on rural lands in the City and the management and use of mineral aggregate resources is a permitted use in the rural area.
25Mr. Zeman contends the proposed Extension has been designed and buffered to mitigate adverse effects on surrounding sensitive land uses in accordance with provincial guidelines, standards and procedures.
26In regard to transportation and systems, Mr. Zeman advised the proposed Extension represents an efficient use of existing infrastructure by utilizing an existing aggregate haul route on Arterial Roads in an area where aggregate extraction is an established use.
27In regard to water, Mr. Zeman advised mitigative measures have been included in the design of the operation and rehabilitation plan to protect, improve or restore sensitive surface water features, sensitive ground water features and their hydrologic functions.
28Mr. Zeman advised rehabilitation will be progressive and the site will be rehabilitated to a natural heritage end use consisting of two (2) lakes and wildlife habitat that will naturally succeed to a woodland. This landform is an appropriate rural land use that will compliment adjacent rural lands and natural heritage areas.
29In regard to Cultural Heritage and Archaeology provisions of the PPS, Mr. Zeman advised there are no significant built heritage resources or significant cultural heritage landscapes within the proposed extraction area and adjacent features will be conserved. Mr. Zeman advised the proposed ZBLA includes a site-specific Open Space Zone on the additional lands owned by the Appellant which provides requirements for the conservation of the three (3) significant archaeological sites.
30In regard to Hazardous Site provisions in the PPS, Mr. Zeman contends the City OP identifies the majority of the City’s “Aggregate – Bedrock Reserve Area” including the proposed Extension as “inferred” unstable bedrock (potential karst topography), which would be considered a hazardous site in the context of the PPS. This identification does not preclude the development of a quarry. The quarry will result in the removal of the inferred unstable bedrock area and does not represent development on top on the bedrock that would represent a public health or safety risk.
31In Mr. Zeman opinion, which the Tribunal agrees, the proposed applications are consistent with the PPS.
City of Kingston Official Plan (“City OP”)
32The proposed Extension is located within the City and is subject to the policies of the City OP. The proposed Extension is predominantly designated “Rural Lands” in the City OP with a small portion identified as “Environmental Protection Area”. The proposed Extension is also identified as a protected “Aggregate – Bedrock Reserve Area”.
33The City OPA proposes to amend five (5) Schedules of the City OP. The effect of the OPA is to permit the proposed Extension, correct natural heritage areas, realign the Rideau Trail on the Extension lands and additional lands owned by the Applicant, and housekeeping mapping updates on the existing Elginburg Quarry. The OPA is consistent with the version included in the MOS between GIP and the City.
34Mr. Zeman advised the proposed Extension will continue to be used for forestry, conservation and passive recreational until the lands are required for extraction based on the proposed phasing plan. The application does not include any sensitive land uses that would inhibit removal of the resource from the site in the future.
35Mr. Zeman testified the proposed Extension is an identified aggregate reserve area in the City OP and is protected for future resource use. The technical studies completed have considered existing and planned uses within 500 m and the Extension has been designed to minimize impacts on the surrounding community in accordance with Provincial and City requirements.
36In regard to transportation, Mr. Zeman highlighted the proposed Extension will utilize the existing entrance/exit of the Elginburg Quarry and the existing haul route. A Traffic Impact Study was completed, and reviewed by the City, which confirmed the suitability of the surrounding road network to support truck traffic from the quarry. Increased approach and departure tapers lanes will be implemented in the westbound direction on Unity Road, which will further improve conditions for the existing Elginburg Quarry.
37Mr. Zeman advised a Natural Environment Technical Report was completed and recommended mitigation measures to prevent negative impacts to natural heritage features and areas. In addition, Archaeological Assessments were completed for the proposed Extension in accordance with provincial requirements and a Hydrogeological Impact Assessment was completed for the Extension which demonstrated that the quantity and quality of the groundwater and surface water and the natural drainage in the area, can be adequately protected through the ZBL and will not be adversely affected.
38In regard to Land Use Compatibility Matters, Mr. Zeman contends there are no shadowing impacts as a result of the proposed Extension. The proposed Extension includes berms and extraction setbacks adjacent to neighbouring properties. The Extension has been designed to meet provincial guidelines, standards and procedures for noise, odour, dust and vibration, and the Extension is only permitted to operate from 7 a.m. to 7 p.m. to prevent light pollution. A Natural Environment Technical Report was completed and recommended mitigation measures to prevent negative impacts to natural heritage features and areas.
39Mr. Zeman submits the proposed Extension will not interfere with normal farm practices in the surrounding area and will utilize the existing haul route which is identified as an arterial road which is intended to carry high volumes of traffic including truck traffic.
40In Mr. Zeman opinion, which the Tribunal agrees, the proposed applications conform to the City OP.
CITY’S ZONING BY-LAW AMENDMENT (“ZBL”)
41The proposed Extension is predominantly zoned “General Rural Area (RU)”, with a small portion zoned “Environmental Protection Area (EPA)” in the City ZBL (2022-62).
42A City ZBLA is required to re-zone the proposed Extension site to a “Mineral Resource and Extraction Zone (MX1)” to permit a mineral aggregate operation with an Exception Overlay. The Exception Overlay addresses permitted uses, setback requirements, berming, and landscaping requirements.
43The proposed ZBLA will also have the effect of introducing a “Protected Open Space Zone” with an Exception Overlay on the additional lands owned by the Applicant to conserve three (3) archaeological sites and natural heritage areas.
44The proposed ZBLA also proposes to correct the boundary of the existing Elginburg Quarry in the City ZBL and remove the existing Elginburg Quarry lands from the “Legacy Exception (L422) Overlay” and place them into a new Exception Overlay. The Exception Overlay addresses permitted uses and the setback requirements.
45In Mr. Zeman opinion, which the Tribunal agrees, the proposed ZBLA application conforms to the City OP.
AGGREGATE RESOURCES ACT (“ARA”)
46Mr. Zeman advised the operation has been designed to protect groundwater and surface water resources and private wells. There are no municipal drinking water sources in the area. The operation has been designed in accordance with provincial requirements related to effects on the environment and on nearby communities.
47Mr. Zeman advised the Aggregate Resource Assessment completed identified approximately 12 million tonnes of concrete stone sources and approximately 40 million tonnes of granular “A” resource at the proposed Extension. This represents an important high quality mineral aggregate resource that is located in close proximity to urban area of the City. This aggregate is suitable for a wide range of construction and infrastructure projects to help build and maintain the local community.
48Mr. Zeman testified GIP operates several ARA licensed sites in Ontario. Mr. Zeman confirmed with GIP that these licences have never been suspended or revoked for lack of compliance with the ARA and the associated regulations. If a compliance issue is identified based on the required annual Compliance Assessment Report or by MNRF, GIP works with MNRF to address the compliance item in accordance with the required timelines.
49In Mr. Zeman opinion, which the Tribunal agrees, the proposed Extension has appropriate regard for the matters outlined in Section 12.1 of the ARA.
PUBLIC COMMENTS AND ISSUES
50Mr. Zeman outlined several Issues and concerns from the Public. In regard to the opportunity for the Public to submit comments Mr. Zeman explained the City held four (4) public meetings in relation to the proposed Extension and adequate information and materials were available in accordance with the Planning Act requirements. The Appellant also posted all of the technical reports and site plans on their website to make them available to the public during the public review period. Public comments were provided to Council in advance of the matter being considered and these comments were considered by City Staff and Council.
51In regard whether the proposed Extension complies with the City Noise, Site Alteration and Restricted Area Zoning By-laws, Mr. Zeman testified the above noted By-laws do not apply to activities authorized under the ARA. In accordance with section 124(3) of the Municipal Act, a municipal by-law regulating pits or quarries does not apply to a pit or quarry located in a part of Ontario designated in a regulation under section 5(2) of the ARA. The City is an area designated under section 5(2) of the ARA. Therefore, City By-laws dealing with noise and site alteration do not apply to pits and quarries licensed under the ARA.
52Mr. Zeman concludes, overall, public consultation for the Extension application has exceeded the requirements under the ARA and Planning Act. When the City and MNRF made their decisions on the applications they were aware of the public concerns and were satisfied that the public concerns have been addressed based on the technical assessments and the requirement to operate in accordance with the provisions of the ARA site plans for the Extension and to implement the MOS with the City.
FINDINGS AND DISPOSITION
53In determining this matter, the Tribunal accepts and adopts the uncontroverted planning evidence and expert opinion provided by Mr. Zeman. 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 OP and is consistent with the PPS.
54The Tribunal notes the lengthy process and the extensive studies and reports completed. The Planning Act applications commenced in 2014 and the ARA application in 2017. As part of the Planning Act and ARA applications, there were reviews of the application completed by MNRF, the MECP, Cataraqui Region Conservation Authority, Enbridge Pipelines Inc., Hydro One Networks Inc., the Ministry of Transportation, the Ministry of Agriculture, Food and Rural Affairs, TransCanada Pipelines Limited, the County of Frontenac, and the City, including peer reviews completed on behalf of the City related to blasting (Explotech) and noise (Jade Acoustics). As a result of these reviews, there are no outstanding concerns from the agencies, utility corporations and peer reviewers.
55The Tribunal also acknowledges the cooperation between the Parties to reach a Settlement in these proceedings.
ORDER
56THE TRIBUNAL ORDERS that the Appeal is allowed in part thereby approving an amendment to the Official Plan of the City of Kingston in the form attached to this Order as Schedule “A”;
Approving an amendment to Zoning By-law 2022-062 in the form attached to this Order as Schedule “B”;
Directs the MNRF to issue the Extension License under the Aggregate Resources Act to approve the extension Site Plan dated October 2022, as amended by those amendments listed in Schedule “C”;
Directs the Owner to submit an application for a Site Plan Amendment for the Existing Quarry in accordance with Schedule “D” within 10 days of the issuance of the Tribunal’s order referred in paragraphs above.
“Eric S. Crowe”
ERIC S. CROWE
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.