Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
June 23, 2023
CASE NO(S).:
OLT-22-003534
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant
Debbie Woods
Subject:
Zoning By-law
Description:
The purpose and effect of the proposed zoning by-law amendment is to change the zoning of an approx. 15.37-acre existing lot from the Rural Residential (RR) zone to the Rural (RU) zone.
Reference Number:
BL 2022-15
Property Address:
946 Moneymore Road
Municipality/UT:
Tweed/Hastings
OLT Case No:
OLT-22-003534
OLT Lead Case No:
OLT-22-003534
OLT Case Name:
Woods v. Tweed (Municipality)
Heard:
September 27, 2022 by video hearing
APPEARANCES:
Parties
Counsel/Representative*
Ronald Mitts
Self-represented*
Municipality of Tweed
John Mastorakos
Mark Pedersen
Debbie and Jim Woods
Self-represented*
MEMORANDUM OF ORAL DECISION DELIVERED BY M.A SILLS ON SEPTEMBER 27, 2022 AND FINAL ORDER OF THE TRIBUNAL
Link to Final Order
1The matter before the Tribunal was an appeal by Debbie Woods (the “Appellant”) from the passing of Zoning By-law Amendment No. 2022-15 (“ZBA 2022-15”) pertaining to the property described as Part of Lot 9, Concession 1, Part 2 RP 21R11048 and municipally known as 946 Moneymore Road, Township of Hungerford in the Municipality of Tweed (the subject “property”/“lands”).
Background to the Application
2The subject property is owned by Ronald Mitts (the “Applicant”) and comprises an area of approximately 6.2 hectares (“ha”) (15.37 acres) with 91.44 metres (“m”) of frontage onto Moneymore Road. The northern portion of the property is occupied with a single detached dwelling, a barn which is currently being used for storage, a garage and garage/apartment. The southern portion of the property is well-treed and is a regulated wetland area.
3The surrounding area contains a mix of rural residential uses, agricultural uses and wetland areas. The section of Moneymore Road within the vicinity of the subject property generally consists of lots fifteen (15) acres or larger in area, with smaller lots of one (1) to two (2) acres in area being located to the northeast and west.
4The subject property was created by Consent in 1988. At that time it was recognized that the subject lands had a significant area and met the minimum standards for the Rural (RU) Zone under the comprehensive zoning by-law for the Township of Hungerford. Consequently, the rezoning of the subject lands as a condition of Consent approval was not necessary.
5During the course of the consolidation of the Municipality of Tweed (“Municipality”) historical zoning by-laws into Comprehensive Zoning By-law No. 2012-30, attempts were made to more efficiently identify land parcels less than 15 acres and place those lands in the Rural Residential (RR) Zone. Despite best efforts, and a conscious effort by the Municipality to ensure that any portion of a property zoned Environmental Protection (EP) Zone was included in the lot area for a parcel, some properties that were larger than 15 acres were inadvertently placed in the Rural Residential (RR) Zone. This generally occurred where there was more than one zone present on the property, as the computer technology of the day treated each zone as a separate lot, resulting in artificially smaller lot areas. Such was the case with the subject lands which are split-zoned.
6The northern portion of the subject lands is zoned Rural Residential (RR) Zone and the southern portion is zoned Environmental Protection (EP) Zone by the Municipality’s comprehensive Zoning By-law No. 2012-30 (“ZBL”), as amended.
7The purpose and effect of ZBA 2022-15 is to rezone the northern portion of the subject lands from Rural Residential (RR) Zone to Rural (RU) Zone in order to recognize the lot area of the subject lands and facilitate the construction of a new livestock facility (barn). The portion of the subject lands zoned Environmental Protection (EP) Zone is unaffected.
8The subject lands are designated Rural, and Waterfront and Environmental Protection on Schedule OP-A (South) Land Use Designations in the County of Hastings Official Plan 2018 (“COP”). The southern portion of the property is identified as Significant Woodlands on Schedule OP-B (South) Natural Heritage Features and Areas of the COP. The area identified as Significant Woodlands relates to the treed wetland area on the southern portion of the property.
Submissions by the Appellant
9Debbie and Jim Woods own and reside at 928 Moneymore Road, the property adjacent to the subject lands. They, along with other neighbours who have signed a petition, are opposed to the rezoning of the subject lands.
10In review of the correspondence filed by, or on behalf of the Appellant, and her oral submissions at the hearing it is apparent that they are generally opposed to the housing of horses on the property, and by extension, the proposed siting of a new barn on the property. The Appeal Form (A1) identifies concerns about odour and the potential impact to neighbouring wells on either side of the subject property.
11Ms. Woods told the Tribunal that neighbours within the vicinity of the subject lands have genuine concerns about the proposed rezoning, including the potential contamination of their well water from manure and the potential for neighbouring wells on either side of the subject property to run out of water. In that regard, she said that neighbouring properties have run out of water for the last few years, which has led them to conclude that there is a likelihood the water table in this area cannot handle more use on the water system. Ms. Woods also provided several photos, one of which she claims illustrates the presence of hoof prints on the weeping bed in their backyard. A second photo, taken the following day, depicts three horses in their front yard which Ms. Woods said came through the back of their property.
Planning Evidence
12Justin Harrow is the Director of Planning and Development for the County of Hastings. He is a Registered Professional Planner and Full Member of the Canadian Institute of Planners and the Ontario Provincial Planners Institute with more that 17 years of experience as a land use planner. Mr. Harrow provided contextual and land use planning evidence and opinion to support his conclusions and recommendations.
Provincial Policy Statement, 2020
13The subject lands are located in a Rural Area as defined by s. 1.1.4 of the Provincial Policy Statement, 2020 (“PPS”). Section 1.1.5, ‘Rural Lands in Municipalities’, is also applicable to the subject lands. Section 1.1.5 d) permits “agricultural uses, and agricultural-related uses”. Mr. Harrow submits that the proposed rezoning of the subject lands to Rural (RU) Zone is consistent with this section of the PPS.
14The PPS also states that “Development that is compatible with the rural landscape and can be sustained by rural service levels should be promoted” (s. 1.1.5.4.) The subject lands and surrounding areas are characterized by agricultural uses, rural uses, and some rural residential uses. The proposed zoning would permit development that is compatible with the surrounding area and is consistent with this policy of the PPS. The subject property exceeds the minimum lot area requirement of 15 acres (”ac”) for rural and agricultural uses as established by the COP and the municipality’s comprehensive ZBL. The proposed zoning will permit uses that can be sustained by rural service levels.
15Policy 1.1.5.8 requires that all new or expanding livestock facilities comply with the Minimum Distance Separation (“MDS”) formulae. In part, the purpose of the MDS formulae is to address and minimize incompatibility issues such as odour between livestock facilities and other sensitive land uses. The Applicant has submitted an MDS ll calculation in support of the application which establishes the required setbacks for the livestock facility. Mr. Harrow noted that based on the setbacks identified it appears there is ample room to construct a livestock facility on the property that complies with the MDS requirements. Notably, MDS II setbacks are not applicable or relevant at the ZBA stage.
16Mr. Harrow also pointed out that the Municipality’s comprehensive zoning by-law already requires new development, including some livestock facilities, to comply with the MDS formula. As such, in the event ZBA 2022-15 is approved any future development on the subject lands, including the construction of a livestock facility, will need to demonstrate compliance with the MDS prior to the issuance of a building permit.
17In regard to the southern portion of the subject property, the PPS prohibits development and site alteration on lands identified as Significant Woodlands unless it can be demonstrated that there will be no resulting negative impacts (policy 2.1.5 b)). In this case the portion of the subject lands identified a Significant Woodlands is already protected from development under the Environmental Protection (EP) Zone category, which will not be changed if the appeal is dismissed.
18The subject lands are further protected by Ontario Regulation 319/09 (Development interference with wetlands and alterations to shorelines and watercourses). Any potential development would be subject to review by the Quinte Conservation Authority (“QCA”), thereby, providing another level of protection and further supporting the conclusion that ZBA 2022-15 is consistent with s. 2.1 of the PPS.
County Official Plan
19The subject lands are designated Rural and Waterfront, and Environmental Protection, and are identified as Significant Woodlands. The COP permits a variety of rural related uses, including agricultural uses (s. 5.4.2.1). ZBA 2022-15 will permit a variety of rural uses that conform to this policy. The COP requires rural lots to be generally six (6) ha (14.8 acres) or greater in area. The subject lands are 6.2 ha (15.34 ac) in area, and therefore, is in conformity with this policy.
20The southern portion of the subject lands is designated Environmental Protection. Section 5.4.2.1 i) of the COP requires new development to comply with the MDS formula, and as previously indicated compliance with the MDS requirement will be addressed at the building permit stage.
21Furthermore, the rezoning application was submitted to the QCA for review and comment and in a report dated July 30, 2021, the QCA confirmed it had no objection to the proposed rezoning provided that any development will be setback a minimum of 30 m from the wetland boundary. Mr. Harrow confirmed that there is no new development or zoning changes being proposed on the lands within the Environmental Protection (EP) Zone, and the Significant Woodlands will not be negatively impacted.
22Overall, it is Mr. Harrow’s professional opinion that ZBA 2022-15 is consistent with the PPS, conforms to the policies of the COP, meets the intent of the Municipality of Tweed Comprehensive Zoning By-law No. 2012-30, is appropriate for the subject lands, and constitutes good land use planning. He recommended that OPA 2022-15 be approved.
Analysis and Disposition
23In arriving at this disposition the Tribunal accepts and adopts the uncontested expert planning evidence and opinions of Mr. Yarrow to find that ZBA 2022-15 is consistent with the policies of the PPS, conforms to the policies of the COP, and aligns with the principles of good land use planning. In effect, the proposed rezoning of the subject property serves to restore the intended zoning and permitted uses of the subject property.
24The Tribunal acknowledges and appreciates the concerns that have been raised by the Appellant and neighbouring property owners. However, it is to be expected that odour will be prevalent in areas designated for rural purposes, including the keeping of farm animals. Moreover, there is no evidence before the Tribunal to sustain the concern expressed about well water supply and/or the contamination of neighbouring wells. The Tribunal is further satisfied that there are appropriate safeguards in place to protect the environmental integrity of the subject lands.
ORDER
25THE TRIBUNAL ORDERS that the appeal against Zoning By-law No. 2022-15 of the Municipality of Tweed is dismissed.
“M.A. Sills”
M.A. SILLS
VICE-CHAIR
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.