Minhal Jaffer v. Grimsby (Town), 2023 CanLII 71699

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 03, 2023

CASE NO(S).: OLT-23-000011

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Minhal Jaffer

Subject: Minor Variance

Description: To permit establishment of hemp processing facility on the subject property

Property Address: 29 Kemp Road E

Municipality/UT: Grimsby/Niagara

Municipal File No.: A47-22

OLT Case No.: OLT-23-000011

OLT Lead Case No.: OLT-23-000011

OLT Case Name: Minhal Jaffer vs. Grimsby (Town)

Heard: July 5-7, 2023 by video hearing

APPEARANCES:

Parties

Counsel

Minhal Jaffer and Canurta Inc.

Russell Cheeseman Stephanie Fleming

Town of Grimsby

Tom Halinski

DECISION DELIVERED BY STEVEN T. MASTORAS AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION AND BACKGROUND

1This matter is before the Tribunal as a three-day Merit Hearing following a Case Management Conference (“CMC”) on April 11, 2023. The matter was commenced as an Appeal pursuant to s. 45(12) of the Planning Act (“Act”) resulting from a denial of a Minor Variance Application (“Application”) by the Committee of Adjustment (“COA”) at 29 Kemp Road East (“Subject Property”) in the Town of Grimsby (“Town”) as submitted by Minhal Jaffer and Canurta Inc. (“Applicants/Appellants”).

2The Applicants/Appellants are seeking the Minor Variance to permit the establishment of a “Hemp Processing Facility” use on the Subject Property. The proposed facility will consist of a 725 square metres (“sq. m”) building, along with a 28-space parking lot according to a site concept plan submitted. Vehicular access to the parking lot will be provided via a single entrance from Kemp Road East.

3A Joint Document Book (“JDB”) was submitted to the Tribunal on June 30, 2023 is identified as Exhibit 1.

The Minor Variance Application

4Following pre-consultation meetings with Town Planning in May of 2022, the Application was submitted on October 25, 2022, seeking a minor variance of the provisions of Section 6.1.1 of Zoning By-law No. 14-45, as amended, in order to vary the “Licenced Cannabis Cultivation Facility” use to permit this “Hemp Processing Facility.”

5The Planning Staff Memorandum (“PSM”) dated December 16, 2022 (JDB pages 86-88) indicated that they had no objections to the approval of the minor variance proposed by the Applicants, and stated, in part, that “Section 6.1.1 of Zoning By-law 14-45, as amended, outlines the permitted uses in the Rural and Agricultural Zones, including the Specialty Crop (“SC”) Zone. A “Licenced Cannabis Cultivation Facility” use is one of the permitted uses in the SC Zone, and a variance for the “Hemp Processing Facility” use is sought. Section 4.37 of Zoning By-law No.14-45, as amended outlines the requirements of a “Licenced Cannabis Cultivation Facility,” and recommends the following conditions:

a. That Site Plan Approval from the Town of Grimsby be obtained prior to construction of the “Hemp Processing Facility” use.

b. No growing of hemp, processing of hemp leaves or growing or processing of cannabis, or cannabis-related products be permitted on the subject lands.

6The COA denied the application despite this favourable PSM on December 20, 2023, and in its decision indicated that the variance does not meet the intent of the Zoning By-law (“ZBL”) and Official Plan (“OP”), that the development is not desirable for the subject lands and is not minor in nature. Subsequently, the Town Council decided to oppose the Appeal to the Tribunal and retained an outside Planning Witness in March 2023 in support of the COA decision for the purposes of this Hearing.

7At the Hearing, there was a concerted effort by the Town to persuade the Tribunal with the Town’s recently obtained Planning Witness Affidavit and oral Witness testimony, asserting that the matter may/should have been more appropriately pursued through a Zoning By-law Amendment Application (“ZBLA”), the Appeal before the Tribunal is a Minor Variance Appeal.

8This was ultimately the Application route the Appellants pursued stemming from pre-consultation meetings with Town Planning in the spring of 2022 and confirmed by correspondence between Planning Staff and the Applicants, as submitted to the Tribunal dated May 26, 2022, marked as Exhibit 5. The email states in part:

• The first application would be a minor variance application to the Town, as the proposal generally aligns with the Official Plan policies, the variance would be to permit the use under Zoning By-law 14-45, as amended…
• Additionally, a site plan application may be required…

9Therefore, the matter before the Tribunal is fundamentally an Appeal to a Minor Variance decision of the COA and the Appellants must meet the legislative tests which capture all of the requirements to be satisfied pursuant to the Act.

LEGISLATIVE FRAMEWORK

10As this is a de novo hearing, Section 45(1) of the Act establishes the ‘four tests’. In other words, to authorize the variance, the Tribunal, in an appeal, must be satisfied that the Variance:

a) Maintains the general intent and purpose of both Official Plans, including the Niagara Official Plan (“NOP”) and the Town of Grimsby Official Plan (“GOP”);

b) Maintains the general intent and purpose of the Zoning By-law ;

c) Is minor in nature; and

d) Is desirable for the appropriate development or use of the land, building or structure

11In addition, section 3(5) of the Act requires the Tribunal's decision to be consistent with policy statements and provincial plans, including the Provincial Policy Statement 2020 (“PPS”), the Growth Plan 2019 (“GP”) and the Greenbelt Plan 2017 (“GBP”). The Tribunal must also have regard to the matters of provincial interest set out in section 2 of the Act, as well as for the decision of the COA and the information considered in the course of making its decision, as set out in section 2.1(1) of the Act.

12Where conditions may be applicable in this matter, the Appeal must also be consistent with s. 45(18) of the Act, which allows the Tribunal to make any decision the COA could have made with conditions in its decision pursuant to s. 45(9) of the Act:

(9) Any authority or permission granted by the committee under subsections (1), (2) and (3) may be for such time and subject to such terms and conditions as the committee considers advisable and as are set out in the decision.

(9.1) If the committee imposes terms and conditions under subsection (9), it may also require the owner of the land to enter into one or more agreements with the municipality dealing with some or all of the terms and conditions, and in that case the requirement shall be set out in the decision.

PARTIES, PARTICIPANT STATUS AND HEARING PLAN

13The Tribunal acknowledges that Parties are identified as noted above, and written Participant Statements were received at the CMC on April 11, 2023. The Tribunal conferred Participant Status at the CMC and the following persons are recognized for the purposes of this Merit Hearing as follows:

• Donna and Dave Latchford
• Marie and Luca Pagnotta
• Mark Adamczyk
• Slobodan Halavanja
• Shameer Khan and Linda Barrantes-Sales

14These Participant Statements raised a number of issues, some of which include the primary issue of permission to grow and process Hemp, noise, traffic and parking, odours from the processing facility, proximity to the Hamlet, building without a permit, archaeological concerns, private septic and well concerns, and zoning issues among others.

15The issues raised in the Participant Statements were addressed by the expert and non-expert witnesses and were taken into consideration by the Tribunal in establishing its findings in the Decision that follows.

16The Parties established a hearing plan, on consent, which included a total of six (6) witnesses who were qualified accordingly by the Tribunal and appeared at the hearing in the following order:

• Akeem Gardner - Canurta Inc. Representative and co-Applicant
• Mahendran Thimmanagare - Ontario Ministry of Agriculture Food and Rural Affairs (“OMAFRA”) Bioproduct Specialist Summoned by the Appellants
• Ted Haney - Canadian Hemp Trade Alliance (“CHTA”) - President and CEO, and Agricultural Business Executive.
• Kent Randall - Professional Planning expert witness for the Appellants.
• Walter Basic – Town of Grimsby, Director of Planning and expert witness Summoned by the Appellants.
• John Ariens – Professional Planning expert witness, consulting for the Town of Grimsby.

HEARING EVIDENCE AND SUBMISSIONS

Licencing and Cultivation Issues

17The Subject Property is currently zoned Specialty Crop (SC) in ZBL No. 14-45, as amended. The definition of “Licenced Cannabis Cultivation Facility” from ZBL No. 14-45, as amended, is below:

Licenced Cannabis Cultivation Facility:

Means any lands, building or structure, including commercial greenhouse, licenced by Health Canada in accordance with the applicable Federal Regulations, as amended from time to time, for the cultivation, processing, packaging, testing, destruction, research and/or shipping of cannabis.

18In this instance the Licence was issued by Health Canada, Exhibit 2 (effective October 28, 2022), which is in accordance with the Cannabis Act and the Industrial Hemp Regulations and permits the cultivation of industrial Hemp for the following forms:

• grain, fibre, flowering heads, leaves, branches

19The Licence states “Authorized Activities and Forms” permits the Licence holder:

• to sell industrial hemp: flowering heads, leaves or branches
• to possess industrial hemp grain for the purpose of cleaning

to possess grain for the purpose of processing it

20The Licence also states the following conditions:

• The licence holder may only sell the flowering heads, leaves, and branches of industrial hemp to a holder of a licence issued under the Cannabis Act in relation to industrial hemp or non-hemp cannabis, AND
• That unless authorized by a licence issued under the Cannabis Act in accordance with the Cannabis Regulations, no person shall produce any derivatives from the flowering heads, leaves, and branches of industrial hemp.

21Mr. Gardner testified that Canurta is an Agri-tech business that has received its Health Canada Licence and is pursuing the redevelopment of the Subject Property. He asserted that in accordance with this Licence, Canurta is limited to the above referenced activities.

22Mr. Gardner also testified that the site was recently issued a Building Permit by the Town’s Building Department for the construction of a shell agricultural building as authorized by building permit, dated January 16, 2023 (JDB p.147). It is noted that this building has been erected and was not subject to Site Plan Application requirements of the Town.

23Mr. Gardner described the scope of the proposed operations, and he attempted to assure the community that the activities on the Subject Property will have a minimal impact on neighbouring property owners, with all the requisite filtration equipment, mitigating any odour from the processing of Hemp, and resulting in minimal traffic impact during the fall/winter months, with some reasonable traffic activity during the busier growing season in common with any agricultural use. He also asserted that there would be no abnormal parking impact, as Canurta was proposing 28 parking spaces on site.

24The Applicants propose that the building will be serviced by a private well and septic system, and that locally grown Hemp will be processed into activated hemp seed powder and hemp extract within the new facility. The Hemp seed powder processing involves washing, setting, drying, and milling, while the extract requires the drying, milling, and excretion of polyphenols from the raw hemp stock. These processes will take place within processing and extraction areas on the first floor of the building and the proposal indicates that the facility will not process hemp leaves, cannabis, or cannabis-related products.

25The Applicants further propose that the building will be used for storage, shipping and receiving, and is expected to employ approximately ten (10) staff members with washrooms/changerooms also provided.

26Mr. Gardner testified that in addition to its pursuit of this minor variance request, Canurta also anticipates ancillary processing of alternate crops, as permitted under the ZBL, that allows for products such as Alfalfa, various other seeds, greens, fruit, and fibre products only, based on seasonal crop rotations from local growers. Canurta is presently growing Soybean on the Subject Property and expressed support of the PSM recommendations except for the first portion of Condition b. No “growing of Hemp” . The Applicants are requesting that this proposed Condition b. read as follows:

b. No processing of hemp leaves or growing or processing of cannabis, or cannabis-related products be permitted on the subject lands.

27Mr. Gardner testified that having the ability to grow Hemp on the Subject Property will provide a local and immediate source for the Hemp processing use requested, while also allowing for other local growers to engage with the proposed facility over time as the operation is established. Mr. Gardner was unable to confirm which local growers might be engaged, as he is awaiting the results from this Appeal to move the activities of the business forward on a more stable footing.

28Mr. Thimmanagari’s testimony provided support for the Application and stated that OMAFRA agrees that industrial Hemp cultivation and processing is permitted by licence, and like other crops, is allowed pursuant to Federal regulation. He added that OMAFRA does not distinguish between these agricultural crops, and generally encourages the growth of the industry.

29Mr. Haney testified on behalf of the CHTA and outlined some informative details related to safe Hemp harvesting methods, the industry’s growth, licencing requirements, transportation criteria and asserted that its cultivation is generally permitted anywhere agricultural growth opportunities are encouraged. Mr. Haney testified the odour levels of Hemp are virtually non-existent and have a minimal impact with the provision of air filtration systems on a site-specific operations basis. He also stated that currently in Ontario, there is very little ongoing seed processing, and that for the purposes of Hemp straw transport, a radius of up to 300km is a reasonable distance, and finally, the demand for Hemp seed is global.

PROVINCIAL POLICY STATEMENT, GROWTH PLAN and GREENBELT PLAN

30Mr. Randall commenced his testimony stating that his Ecovue Planning Brief (“EPB”) is supportive of the variance requested and outlined that:

The subject property is located immediately east of the Kemp & Mountain Road Hamlet, approximately 3.5 kilometres south of Downtown Grimsby in Part of Lot 8, Concession 4. The property is 13 hectares, with 245 metres of frontage on Kemp Road East. The proposed building will be located in the southern portion of the property.

31Mr. Randall opined that the proposed facility is considered an agriculture-related use, which is defined in the PPS (JDB p. 467) as:

…those farm-related commercial and farm-related industrial uses that are directly related to farm operations in the area, support agriculture, benefit from being in close proximity to farm operations, and provide direct products and/or services to farm operations as a primary activity

32Furthermore, regarding the relevant provincial policy statements and provincial plans , Mr. Randall opined that “the PPS, GBP, and the NOP all permit agriculture-related uses within all agricultural areas, including prime agricultural and SC Zone areas.” He further stated, “It is our opinion that Section 3.3.2.8 of the GOP is intended to reflect the policies of the both the Province and the Region, which at the time of the writing of the GOP in 2014, was not as clearly defined.” (JDB p.71)

33Regarding the GP, Mr. Randall generally opined that there was nothing the minor variance did not conform with, and that “although the Growth Plan contains policies related to the Agricultural System (which includes the subject lands) in Section 4.2.6, there are no policies within this section that would apply directly to this application. Therefore, the proposed Minor Variance conforms to the Growth Plan.”

34Regarding the GBP, Mr. Randall’s written, and oral testimony confirmed that:

The subject property is located within the Protected Countryside designation, and more specifically, the Specialty Crop Area – Niagara Tender Fruit and Grape Area, according to Schedule 2 to the Greenbelt Plan. As per Section 3.1.2.2 of the Greenbelt Plan, “a full range of agriculture-related uses…are permitted [in the Specialty Crop Area] based on the provincial Guidelines on Permitted Uses in Ontario’s Prime Agricultural Areas.” As noted above, the proposed hemp production facility is an agriculture-related use that complies with the guidelines of Publication 851.

35Mr. Randall concluded that the Application was consistent with the PPS and conformed with the GP and the GBP.

36In his testimony, Mr. Basic generally concurred with the conclusions of Mr. Randall regarding provincial policy statements and provincial plans and focused most of his testimony around the ‘four tests.’

THE ‘FOUR TESTS’

Maintains The General Intent and Purpose of Both Official Plans including: The NOP and GOP

37Mr. Randall opined that “the subject property is identified within a Specialty Crop Area within the Agricultural System, according to Schedule “F” to the NOP. According to Section 4.1.2.3, “a full range of…agriculture-related uses…are permitted” within the Specialty Crop Areas of the Region. (The definition for agriculture-related uses provided in the NOP is identical to the definition provided in the PPS).”

38Mr. Basic testified that the Application meets the objectives of NOP and confirmed that the Region’s Staff report stated that they had “no objections to the proposed minor variance application” and was fully satisfied that issues relating to provincial and regional policies, allowing that “all types, sizes and intensities of agricultural uses and normal farm practices shall be promoted and protected, and a full range of agricultural uses, agriculture-related uses and on-farm diversified uses are permitted.” He asserted The Region’s report goes on to state that:

Agricultural-related uses are defined as “farm-related commercial and industrial uses that are directly related to farm operations in the area, support agriculture, benefit from being in close proximity to farm operations, and provide direct products and/or services to farm operations as a primary activity”. Based on the Planning Brief submitted with the application, the proposed use on the subject property is a hemp processing facility that intends to produce “activated hemp powder and hemp extract” utilizing locally grown hemp crop grown across the Niagara Region. Under these parametres [sic], the proposed use meets the above definition of an agriculture-related use and is permitted within the Specialty Crop Area.

39Mr. Basic further opined that there was an appropriate level of buffering on site and that there were no issues related to the issuance of a building permit. He asserted that agricultural buildings are exempt from Site Plan control. Mr. Basic also concurred with the Region’s report related to natural heritage, which stated that this was properly addressed through written correspondence from the Applicant (JDB p.81) that confirms a 30 metres (“m”) setback from the Vegetation Protection Zone (“VPZ”) and the Subject Property did not require an Environmental Impact Study (“EIS”).

40Furthermore, regarding the concerns relating to septic and archaeological resources the Region’s report states (JDB p.92):

• Regional Private Sewage Systems (PSS) inspection staff have reviewed the minor variance application. The proposed development will require a new sewage system to be installed meeting all the Ontario Building Code (OBC) requirements; and
• Schedule K of the Niagara Official Plan identifies the subject lands within an area that exhibits a high potential for the discovery of archaeological resources. Regional staff notes that the requirement for an archaeological assessment of the subject property was not identified during the pre-consultation meeting as a requirement for the minor variance application submission. Archaeological resource interests, however, can be addressed at the development stage through the site plan application process for the proposed processing facility. In this regard, a Stage 1 and 2 archaeological assessment and associated archaeological advisory clauses will be requested as part of any future site plan application.

[emphasis added]

41Mr. Basic reiterated in his testimony that the Region did not object to the Application, and it maintains the intent and purpose of the NOP.

42Regarding the GOP, Mr. Randall opined that “the current Provincial and Regional policies also do not require the agriculture-related use to be directly related to the agricultural use on the property, which is required under Section 3.3.2.8 a) of the GOP. It is widely understood that agriculture-related uses can support the greater farming industry, and not just those agricultural uses on the same property. Publication 851: Guidelines for Permitted Use in Ontario’s Prime Agricultural Areas notes that the area to which the use is directly related “is not based on a set distance” but rather a “reasonable travel distance” that accounts for the “bulk of the commodity and the density of agricultural operations”. In this case, the applicant will be receiving Hemp grown from across the Niagara Region, which is, in our opinion, a reasonable distance that directly benefits farmers within the community in which the processing facility is located.” (JDB p.71).

43In summary, Mr. Randall and Mr. Basic testified that the use proposed in the Application conforms with the definition of the SC Zone designation and that it is compatible with other properties in the area, therefore, meeting the general intent of the NOP.

44Furthermore, both Mr. Randall and Mr. Basic concurred that the proposed variance also conforms with the GOP section 3.3.2.8 and 3.3.2.9 and meet the general intent and purpose of the GOP. To reinforce this, Mr. Basic also opined that there was nothing in conflict with the GOP and that both expert witnesses agreed the Application maintains the general intent and purpose of both Official Plans.

Maintains The General Intent and Purpose of The Zoning By-Law;

45Mr. Randall outlined the relevant policy documents in the EPB (JDB p.69) and emphasized they are supported by the Town of Grimsby Zoning By-law 14-45 (“GZBL”):

According to Schedule 17-A to the GZBL, the subject property is zoned the Specialty Crop (SC) Zone. The SC Zone generally applies to prime agricultural areas within the Town where conditions for the growing of specialty crops (e.g. tender fruit) predominate. Although agriculture-related uses are generally permitted within specialty crop areas under the policies of the PPS, Growth Plan, Greenbelt Plan, Niagara Region Official Plan, and Town of Grimsby Official Plan, such uses are not permitted within the SC Zone. Given the overarching Provincial and local policy direction, the applicant is proposing to introduce the proposed agriculture-related use by way of a Minor Variance.

46Mr. Randall opined that the minor variance met the test that it maintains the general intent and purpose of the GZBL and reiterated that all other requirements of the Town, could be satisfied through Site Plan approvals. He also asserted that none of the agencies consulted about the Application expressed any objections to the matter, and further opined that the Application met the general intent and purpose of the GZBL in that agricultural use was permitted without the need for a Zoning By-law Application (“ZBA”).

47More specifically, during cross examination, Mr. Basic asserted that the GZBL had no crop restrictions, and that Site Plan control would ultimately guide any crop production capacity issues and govern any transportation and parking requirements. Furthermore, he asserted that there was no Planning Staff concern relating to odour asserting it “was not a factor,” and referenced the PSM (JDB p. 87) which states that “an Odour Control Study would be required to ensure that no odours are being emitted from the facility.” He also asserted that he was aware of the prospect of other local growers accessing the processing facility with ancillary crops.

48Both Mr. Randall and Mr. Basic concurred that the Application maintained the general intent and purpose of the GZBL.

Is Minor In Nature;

49Mr. Randall referred to his EPB which states:

• Given that there is no numerical variance associated with this application, the determination of “minor” rests with the potential impacts associated with introducing a use that is not otherwise identified in the Zoning By-law. In this case, the proposed processing facility will not negatively impact surrounding land uses or agricultural operations. The proposed use will be similar to the size and scale of other agricultural and agriculture-related uses within the surrounding area. Furthermore, the proposed use will support the agricultural community by providing a facility for processing locally grown hemp.
• Based on the impacts associated with the proposed agriculture-related use, it is our opinion that permitting the use where it is otherwise prohibited by the GZBL will not significantly alter or effect the existing agricultural area or any other potential uses that are permitted within the SC Zone.
• Therefore, it is our opinion that the proposed Minor Variance is minor in nature.

50Mr. Basic testified that specific to this Subject Property, the Hemp use is permitted, and the Regulations would not permit a Cannabis facility and there was no objection to the minor variance application and reiterated this in the PSM as follows:

Planning Staff are of the opinion that the variances proposed to vary from the provisions of Section 6.1.1 of Zoning By-law 14-45, as amended, and to vary the “Licenced Cannabis Cultivation Facility” use to permit a “hemp processing facility” are appropriate and is considered minor in the context of 29 Kemp Road East.

51Both Mr. Randall and Mr. Basic concurred that the Application is minor in nature.

Is Desirable for the Appropriate Development or Use of The Land, Building or Structure

52Mr. Randall testified that the building and land use represent an appropriate development on the Subject Property and within the immediate area, which will be adequately serviced with private septic and well and an adequate level of parking.

53Mr. Randall confirmed that in his opinion, the proposed variance was desirable for the appropriate development of the use of the land, and in his final written and oral evidence, Mr. Randall concluded that “the proposal meets the four tests for a Minor Variance. The proposed use meets the general intent of the Niagara Official Plan, Town of Grimsby Official Plan, and the Town of Grimsby Zoning By-law, is considered minor in nature, and is appropriate and desirable development for the subject lands and surrounding area. Based on the foregoing review of the relevant Planning Act and policy considerations, it is our opinion that the Minor Variances constitutes good planning and is in the public interest.”

54Mr. Basic also confirmed that he had not changed his opinion on the Application since the written PSM in December 2022, which indicated that he had no objections to the approval of the minor variance proposed by the Applicants and recommended the following conditions:

a) That Site Plan Approval from the Town of Grimsby be obtained prior to construction of the “Hemp Processing Facility” use.

b) No growing of hemp, processing of hemp leaves or growing or processing of cannabis, or cannabis-related products shall be permitted on the subject lands.

55Mr. Basic further testified that the Site Plan process can address all the issues of concern including odour control, and septic and well conditions among others, and noted that the parking standard requirements may only require 9 or 10 parking spaces, as opposed to the proposed 28.

56Furthermore, keeping in mind concerns from area residents, there are several additional measures that can be addressed through the Site Plan Application (“SPA”) process including, but not limited to the following:

• A requirement for an Odour Impact Assessment Study and the requisite implementation requirements to the full satisfaction of the Town of Grimsby; and
• The potential need for some restrictions associated with outdoor processing of Hemp products other than delivery, storage and cutting, or anything else that may have an adverse impact such as dust, noise, or undue traffic impact.

57In summary, Mr. Basic opined that the “compatibility vs. desirability” factor matches with agricultural uses anticipated with the land and building as currently constructed and that with the Site Plan condition, he was fully satisfied the Application should be allowed.

58Finally, it is important to note that Mr. Basic opined that he believed “Hemp can be grown on site today” and the request to permit the growing of Hemp, is something that “could be permitted, although he would prefer to defer to legal counsel on that question,” presenting somewhat of a challenge for Counsel for the Town who was present on behalf of Town Council’s opposition to this Appeal. Nonetheless, the Tribunal noted the opinion of Mr. Basic.

Town Planning Evidence (Mr. Ariens)

59Mr. Ariens testified that in early 2023, he was approached by his former client who is currently a homeowner abutting the Subject Property and was asked to review the variance application on this parcel. He asserted that he reviewed the variance application, a preliminary site concept plan, the PSM along with the Decision and Minutes from the COA and arrived at the same conclusion as the COA.

60Mr. Ariens was subsequently retained by the Town in March 2023 and testified that he had previously been involved as a planning consultant in the area, having achieved the successful subdivision of a total of 16 new lots creating the Kemp and Mountain Road Hamlet approximately five years prior to this matter. This new Hamlet consists of a total of 16 new lots, 8 of which were located on the east side of Mountain Road abutting the Subject Property, which he referred to as “the remnant parcel of land” and the subject of this variance request.

61Regarding the Official Plans, Mr. Ariens opined that the GOP (2012) had been updated with several general and site-specific amendments and consolidations and referenced his written opinion evidence (JDB p.120-122), indicating that this matter should not have been the subject of a minor variance application as it did not meet the tests in the GOP and provides the following reference:

3.3.2.8 Agricultural related uses shall only be permitted in the Specialty Crop Areas-Tender Fruit and Grape Lands designation, through site specific rezoning, when it is clearly demonstrated that:

a) The use is small scale, and directly related to and required in close proximity to the farm operation it is servicing;

b) The use cannot reasonably function in a nearby Urban Settlement Area or Hamlet Settlement, or there are no suitable locations within these areas;

c) The proposed water and sewage disposal systems are feasible;

d) The use is compatible with and supportive of the agricultural community;

e) The use is compatible with and does not hinder surrounding agricultural operations; and

f) The use is in compliance with the minimum distance separation formulae.

62Throughout his testimony, Mr. Ariens consistently referred to this position and that the Application did not comply with a), b), c), and f) in this section of GOP, and opined that it did not meet this section pursuant to the GOP.

63Mr. Ariens’ submissions focussed predominantly on the GOP (JDB p. 121) stating the following:

• The above policy clearly allows agriculturally related uses “subject to other policies of the Plan”. Within Section 9 Implementation, the following definition is applicable:
• 9.20.10 Agriculture-related uses means those farm-related commercial and farm related industrial uses that are small scale and directly related to the farm operation and are required in close proximity to the farm operation.

64In his evidence, Mr. Ariens expands on the business model proposed and attempts to raise questions regarding the credibility of the proposal making several assertions that were also reflected in several Participant statements, including some of the following (JDB p. 130-131):

• The applicant has not demonstrated that this processing facility is small scale, as no processing details have been provided. Only ten employees are suggested, yet 28 parking spaces are provided. No hours of operation have been provided and the intensity of the use/facility is not known;
• The applicant has not provided any information on the direct relationship between hemp cultivation and the need to process hemp in this location. The number and location of hemp farms is unknown, as is the total amount of acreage under hemp cultivation. A summary report on agricultural activity published by Statistics Canada and based on census data reveals that during the 2021 census only 2 hemp farms were located in all of Niagara Region and in total hemp cultivation occurred on only 75 acres.
• Based on my research on hemp cultivation and processing it appears as though the hemp seed is harvested by a combine much the same as other seed crops and grains. The seed is then dried by the farmer and transported to a processing facility. I understand that in a dry state, there is no need for immediate processing as the dry seed does not spoil. Accordingly, the dry seed can be transported considerable distances to a processing facility.
• Similarly the hemp stock used for other processing is typically transported in a baled form and is not subject to immediate spoilage.
• The need for this processing facility to be in close proximity to the farms where it is grown has not been established by the applicant through this variance process. The Ecovue letter report mentions that the hemp will be supplied from all of Niagara Region and processed at this location, yet it does not indicate why a rural location is needed, where hemp is currently grown nor why a location proximate to the hemp farms is needed.

65Mr. Ariens further opined that a Hemp processing facility, as proposed, is not a permitted use within the SC Zone, and that the lack of specificity in the Application also did not identify the provisions of the GZBL “from which relief is being sought, nor the section of the Act applicable to this matter” also noting that “ based on the zoning regulations added in September of 2022 through By-law No. 22-63 a Cannabis Cultivation Facility is not a permitted use upon the Subject Lands, as cannabis is not grown thereon.”

66Mr. Ariens also opined that while the “Greenbelt Plan allows these uses more generally the Town has imposed more restrictive policies guiding these uses as it is allowed to do so,” while at the same time asserting that “in my opinion the proposed hemp processing facility could be desirable in principle from a broader Provincial and Regional perspective but without having gone through a more rigorous local zoning application to justify this use in this location it is not possible to determine local desirability with respect to the overall local public interest. Without the benefit of a zoning application, I cannot consider this to be a desirable use and therefore in my opinion the variances are not desirable.”

67Mr. Ariens further opined the Site Plan requirements should not guide the septic analysis, and an EIS, soil and geotechnical studies, and an archaeological study should have been required. He asserted that the COA process is truncated, quicker and less rigorous.

68In cross examination, Mr. Ariens testified that he never asked nor was he provided the details of the pre-consultation meetings that took place with the Town, or the Town Planning Staff to clarify many of these questions.

69Mr. Ariens opined that the Application did not maintain the general intent and purpose of the GOP and GBP. He did not expand on his testimony with any detailed opinion about the NOP and the Region’s comments on the Application, although during cross examination, he did not disagree with the Region’s position related to the natural heritage system and the 30 m setback from the VPZ (JDB p. 91).

70Regarding the GZBL, Mr. Ariens opined that the lot was 13.1 hectares and was a direct result of the subdivision in the Hamlet portion of the original parcel and asserted that a Hemp processing facility as is proposed is not a permitted use withing the SC Zone.

71Mr. Ariens further opines in his written statement that:

• No type of any farm related industrial use is currently permitted on these lands. The intent of the By-law is to prohibit these uses and to control their establishment through the site-specific zoning by-law amendment process. In this manner proper site selection and justification can occur together with the appropriate technical studies to ensure a compatible development is created together with appropriate water supply, septic disposal, and environmental protection, and
• This variance proposing to establish a new use currently not permitted by the Zoning By-law does not maintain the intent or purpose of the Zoning By-law.

72Therefore, Mr. Ariens was firmly of the opinion that the Application did not maintain the general intent and purpose of the GZBL.

73Regarding the test of whether the application is minor in nature, Mr. Ariens opined that “this is not a mathematical or percentage calculation but rather based primarily upon the impact of what is proposed and particularly any adverse impact. If the result of a variance application is major and adverse, then it is not considered to be minor in nature.” In his evidence Mr. Ariens also stated that the size of the building already erected, the 28 parking spaces, truck loading facilities and the general lack of clarity associated with the proposed business operations and the intensity of the use, and odour mitigation efforts, brings into question the overall objectives of the Application.

74Mr. Ariens, therefore, concludes that “given the absence of more detailed information I am not able to confirm if the variance is minor. Accordingly, the variance does not comply with this criterion as insufficient information has been provided to confirm compliance with this test.”

75Finally, regarding the test of whether the application is desirable for the appropriate development or use of the land, building or structure, Mr. Ariens opined that “desirability is not measured from the perspective of the owner or applicant but rather is measured against the greater overall public interest.” Mr. Ariens also states that “the preservation of the land base for agriculture is a critical component of the policy planning regime. Agriculturally related industrial uses are permitted in this designation but are subject to specific and more detailed policy direction.”

76Mr. Ariens asserted that while Provincial and Regional levels of agricultural industrial uses are permitted in some circumstances, “lower tier policy planning direction needs to be added into the overall public interest/desirability analysis and more restrictive policies can be implemented provided that doing so does not conflict with or remains consistent with the Provincial/Regional interests.”

77Mr. Ariens testified that the remaining eight (8) properties in the Hamlet are on the west side of Mountain Road abutting a large site with three large buildings that were formerly chicken barns. While the precise zoning was unknown according to Mr. Ariens, their current use is a combination of auto repair services and parking of vehicles, trailer storage/rentals/sales, and irrigation contracting services which he asserts are “compatible” uses with the Hamlet.

78Mr. Ariens also testified that to the east of the Subject Property, there are a total of 3 lots with 3 dwellings and to the south along Kemp Road East, there are a total of 4 lots with 4 dwellings. Mr. Ariens clarified that the existing use on the north/east corner of the intersection of Mountain Road and Kemp Road East are mixed-use residential/commercial buildings consisting of an adjacent automotive repair shop use, and a single-detached dwelling.

79In summary, Mr. Ariens opined that the Application “is not desirable for the appropriate development or use of the land, building or structure.”

80Finally, during cross-examination Mr. Ariens reiterated that he did not inquire as to whether any additional reports were requested during the pre-consultation meetings with the Applicants, and whether there were any additional study requirements requested by Planning Staff in the lead up to the COA hearing date. Mr. Ariens stated that in his previous experience with the ZBA and subdivision application he was required to provide a series of reports some of which included:

• A Planning Justification Report;
• An Environmental Impact Study; and
• An Archeological, Soil, Geotechnical and Aquifer Studies.

81Mr. Ariens asserts that the “variance application seeks to vary a use which is not permitted on these lands nor does the establishment of this use follow the Grimsby planning framework” as referenced in his oral testimony and written statement. He concludes that the “variances, as presented, are not minor, they are not desirable for the appropriate use of these lands and that the variances do not maintain the intent and purpose of the Official Plan and Zoning By-law” and that “this Variance Appeal be dismissed and denied.”

ANALYSIS AND CONCLUSION

82Based on the entirety of the evidence submitted and the oral testimony of the witnesses, particularly the expert planning witnesses, the Tribunal is persuaded that there are several tools available to the Town through Site Plan review process that can adequately address any outstanding concerns with the ongoing uses on the Subject Property.

83Mr. Basic’s original PSM to the COA and his testimony at the Tribunal, maintains a very credible and consistent position relating to the original Application, in addition to the more recent information received by the Tribunal from the Applicants/Appellants at this de novo hearing. The Tribunal finds that the combined evidence of Mr. Randall and Mr. Basic and their concurrence that the Application meets the ‘four tests’ and all other requirements pursuant to the Act, adequately and very reasonably satisfy and outweigh the evidence of Mr. Ariens.

84The Tribunal reiterates its finding that the Application will continue to be governed effectively by the requisite Site Plan controls when implemented, combined with the effective oversight and enforcement authority of the Town, which can and should address all concerns in evidence at this hearing from the Town and Participant Statements.

85The Tribunal also respects that the assertion that a more restrictive lower tier, GZBL, may be the preference of some, however the Tribunal finds that the guiding Provincial policies and statements, and the substantive Regional analysis and support of the minor variance, in this matter, provide very convincing support for the minor variance Appeal.

DISPOSITION

86The Tribunal finds that just as the neighbouring parcel of land to the west of the Hamlet has varied uses, and other neighbouring area land uses are more of a similar agricultural nature, the variance proposed is in keeping with the general character of the area, and its built form, which is evolving and will be subject to further Site Plan requirements, maintains the intent and purpose of the GZBL and both Official Plans.

87The Tribunal also finds that the impact of a slightly varied agricultural use, and the protections expected to be implemented through Site Plan controls will serve to mitigate impacts such that they will be minor in nature and is, therefore, desirable for the appropriate development or use of the land, building or structure.

88The Town’s position attempts to support the COA decision by arguing the merits of the decision denying the minor variance application on the one hand at a de novo hearing before the Tribunal, yet on the other hand, allows for the argument that predominantly rests with the view that this matter should have proceeded with a different type of application, and appears to discredit the efforts of its very own Planning experts from the start. It became very clear to the Tribunal that Town Planners maintained a very high level of professionalism by conducting pre-consultations meetings, honouring their expert Planning opinions from the beginning of the process with the Applicant, then before the COA with their PSM, and finally at the Tribunal by Subpoena.

89Therefore, the Tribunal prefers the combined evidence of Mr. Basic and Mr. Randall, who have established that the Application meets the ‘Four Tests’ pursuant to the Act, and all other requirements of the Act and therefore, the Appeal shall be allowed.

Growing of Hemp

90The Tribunal finds that while there may be some differences of opinion as to whether this is a permitted use that exists on the Subject Property, Mr. Basic’s evidence was quite clear in that he believed it was a permitted use and the condition excluding the growing of Hemp in the PSM’s original recommendations was in reaction to neighbouring objections several months following the pre-consultation meetings, as opposed to it being the based on a legal/planning analysis. The Tribunal concurs with Mr. Basic’s consistent view that this is a permitted use.

91The Tribunal’s finding is further reinforced by the Licence issued by Health Canada, which will act as a further safeguard and imposes the necessary restrictions defining the scope of business activity on the Subject Property. The day-to-day business operations can be closely regulated and is a matter the Town, no doubt, will pursue further through its pending Site Plan controls, however, the Tribunal will not impose this condition in the Order to follow.

92Finally, it is important to note that the Tribunal has regard for the Application’s new job creation objectives and considers responsible economic growth in the agricultural sector as very important, particularly in this Region and agricultural areas across the province. While the industry is still relatively new, the Tribunal is convinced that the land use proposed is compatible with the surrounding area and the appropriate planning instruments pursuant to Site Plan controls, will guide the implementation phase of the Subject Property accordingly.

93In summary, based on the above analysis, the Tribunal finds that:

• The minor variance has regard for matters of provincial interest pursuant to s. 2 of the Act;
• The minor variance is consistent with the PPS 2020, the GP 2019 and the GBP 2017 pursuant to s. 3(5) of the Act;
• The Application also has regard to and applied in a meaningful way the NOP, the GOP;
• The minor variance maintains the purpose and intent of the GZBL;
• The Application is minor in nature;
• The Application is desirable, and appropriate development or use of the land, building or structure and will result in no undue adverse impacts on existing neighbourhoods; and
• The Application represents good planning, is appropriate and in the public interest.

94The remaining PSM proposed conditions will be adopted with some updated wording in the final Order below.

ORDER

95THE TRIBUNAL ORDERS that the appeal is allowed and the variance to Zoning By-law No. 14-45 as amended, is authorized subject to the following conditions:

a) That Site Plan Approval from the Town of Grimsby shall be obtained prior to the final construction/completion of the “Hemp Processing Facility” use.

b) No processing of Hemp leaves or growing or processing of Cannabis, or Cannabis-related products shall be permitted on the Subject Property.

“Steven T. Mastoras”

STEVEN T. MASTORAS

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.