Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 1, 2023

CASE NO(S).: OLT-22-004687

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Mary Ann Muizelaar

Subject: By-law No. 84-63

Description: To permit a special events venue and culinary-related activities as on-farm diversified uses

Reference Number: ZBA2022-0005

Property Address: 3582 Morgans Road

Municipality/UT: Municipality of Clarington/Region of Durham

OLT Case No.: OLT-22-004687

OLT Lead Case No: OLT-22-004687

OLT Case Name: Muizelaar v. Clarington

Heard: July 10, 2023 by video hearing

APPEARANCES:

Parties

Counsel

Mary-Ann Muizelaar

Marc Kemerer

Deborah and Oswin Mathias

Cameron Cotton-O’Brien David Donnelly

Municipality of Clarington

Robert Maciver

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON JULY 10, 2023 AND FINAL ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1Mary-Ann Muizelaar (“Appellant”) appealed the approval by the Municipality of Clarington (“Municipality”) of a Zoning By-law Amendment (“ZBA”) sought by Deborah and Oswin Mathias (“Applicants”) pertaining to lands known municipally as 3582 Morgans Road in the Municipality (“Subject Site”). The ZBA is required to permit a proposed Special Events Use through site specific exceptions on the Subject Site.

2As this was the first and only Hearing event, the Tribunal confirmed that there was no issue with the service of the Notice. The Hearing for this matter had originally been scheduled to take place on April 4, 2023. However, the Parties requested an adjournment as they were engaged in settlement discussions, and the adjournment was granted. The Affidavit of Service regarding the original Hearing date, sworn by Michelle Chambers on February 3, 2023, was marked as Exhibit 1, and confirms that Notice was duly served with respect to this matter before the Tribunal. The Affidavit of Service regarding the new Hearing date of July 10, 2023, sworn by Robert Maciver on July 3, 2023, was marked as Exhibit 2, and confirms that Notice was duly served with respect to this new Hearing date.

3In response to the Notice regarding the original Hearing date, the Tribunal received Participant Status requests from the following:

a. Susanne and Sylvain Gagnon

b. Melanie and Shayn Ballagh

c. Beth Meszaros

d. Nellie Vanderstarre

e. Ken Rowe

f. Glen and Donna Middleton

g. Gord and Pam Werry

h. Rhomi Mann

i. Steve Weykamp

j. Marie and Lou Speziale

4Collectively, these individuals raised concerns about the proposal, including but not limited to: the undefined, unlimited, and unregulated nature of the event use; the events use would become the dominant use on the Subject Site rather than secondary to the farm; traffic and road safety issues; trespass from event patrons onto other properties in the area; noise impacts from the events; potential negative impacts to wells in the area; general incompatibility with the rural area; and the lack of a monitoring or enforcement framework to ensure that events complied with the required regulations and by-laws. The Tribunal found that these individuals had an interest in the matter and would assist the Tribunal in understanding the potential impacts of the ZBA on the local community. Moreover, the Parties did not object to these requests. As such, the Tribunal granted Participant Status to those listed above.

5The Tribunal received no further requests for status, and none were received subsequent to the service of the Notice for the July 10, 2023, Hearing date.

6The Parties reached a settlement with revisions to the ZBA, attached as Schedule A to this Decision, which they presented to the Tribunal for consideration. The Appellant’s counsel, Mr. Marc Kemerer, also represents all of the Participants, and confirmed that their concerns were taken into consideration and addressed by the proposed settlement as well.

BACKGROUND

7In 2015, the Applicants submitted an Official Plan Amendment (“OPA”) and ZBA application seeking permission for agri-tourism uses related to the processing and marketing of grass-fed beef and lamb and occasionally goats, hogs, eggs, and chickens. The proposal also included the holding of special events (“Special Events Use”) that would benefit from the location adjacent to the livestock operation and the natural setting afforded by the features of the Subject Site, such as Graham Creek which runs diagonally across the north-east part of the Subject Site. The OPA to permit the Special Event Use was denied by Council and the Zoning By-law amendment, as approved on January 16, 2017, did not include the Special Event Use.

8The Applicants appealed Council’s decision and the case (entitled “PL170178”) went before the Ontario Municipal Board, as this Tribunal was then known, wherein the meat processing operation was approved. In the decision issued on July 25, 2018 (“PL170178 Decision”), the Chair of the Hearing approved the meat-processing use, but refused “the request for a zoning change to permit the seasonal special event venue accessory to a farm on the Site” (paragraph [1] of the PL170178 Decision), commenting that the zoning provisions for the Special Events Use required further detail and needed to be “appropriately defined and scoped” (paragraph [68] of the PL170178 Decision). Moreover, it was determined that an OPA approval to allow the Special On-farm Event Venue was not required, as the Municipality had amended the Municipal Official Plan to permit this use.

9Subsequently, the Applicants prepared further details to support the Special Events Use, including the preparation of supportive updated studies, namely:

a. Planning Justification Report and Addendum Report;

b. Hydrogeological Assessment Report and Opinion Letter;

c. Minimum Distance Separation Assessment;

d. Preliminary Noise Assessment;

e. Sight Distance Review;

f. Site Screening Questionnaire; and

g. Stage I and II Archaeological Assessment.

10In addition, a series of Municipal actions have been undertaken and approved, since the previous Hearing, to provide the regulations and details referred to by the Hearing Chair, including a Licensing By-law for Special On-farm Events and the inclusion of Special On-farm Events in the Municipal Site Plan Process.

11After the preparation of the supportive studies and the changes enacted by the Municipality, the Applicants submitted a new ZBA application and Site Plan Approval to recognize the agri-tourism uses, which they had previously sought, including the Special Events Use at the Subject Site. The Municipality approved the ZBA. The Appellant filed an appeal of this approval, due to a number of concerns, which have been addressed and resolved by the settlement agreement between the Parties.

SUBJECT SITE AND PROPOSAL

12The Subject Site is approximately 16.2 hectares in size and fronts onto Morgans Road in the south-eastern portion of the Municipality, north of Highway 401. Existing land uses on the Subject Site include a livestock operation breeding/raising cows and sheep, farm sales of frozen meat, hay production, and a residential use. The farm currently raises beef and lamb, on a relatively small scale, and occasionally goats, hogs, eggs, and chickens. Animals are raised on site and sent to an abattoir for slaughter and processing. Meat is frozen and sold from the farm. There are two barns on the farm, used for associated agricultural uses.

13To the south of the Subject Site is an existing agricultural field and rural residential dwellings. To the north is Graham Creek and an extensive wooded area, and beyond that a rural residential dwelling. An existing agricultural field abuts to the west. To the east, across Morgans Road, are Graham Creek and a wooded area, an existing rural residential dwelling, and an existing auto wrecking facility located about 250 metres (“m”) from the Subject Site on Cowanville Road.

14The Municipality’s Zoning By-law No. 84-63 (“ZBL”) zones the Subject Site as Agricultural {A) and Environmental Protection {EP) adjacent to the watercourse, and a special exception, A-91, was approved for the Subject Site to permit "meat processing accessory to a farm but not including an abattoir” subject to regulations.

15The proposed land uses include continuation of farm sales of frozen meat from animals grown on farm (butchered off site) and a continuation of farm tours, as well as seasonal Special Events Use, which will include hosting weddings, company events, and family reunions. The special events are proposed to take place in the existing farm building and the natural outdoor setting in the valley. Food preparation and cooking facilities are to be provided on site using temporary mobile culinary facilities. Meat from the farm and other locally sourced produce is to be the main menu items. At this time, no permanent washroom facilities are proposed for the special events. Enhanced mobile washroom facilities are to be brought to the site as needed for events and maintained on the premises as necessary. Provision has been made for a septic tile field, which has been included in the calculation of area devoted to the Special Events Use.

16A Site Plan Approval Application has been submitted and its approval is subject to the approval of the proposed ZBA. Any required lighting will be addressed through Site Plan Approval. As grading is to be kept to a minimum, the Site Plan will show existing grades and any minor changes proposed. Details for parking areas showing space sizes and space count are also required at the Site Plan Approval phase. At this time, no new buildings are proposed as existing structures will be utilized. Any building improvements that require building permits must meet the building code and be accessible. At that time, a plan will be required to identify if plumbing is required.

HEARING

17The Tribunal received written and oral evidence from Robert Clark and oral evidence from Sarah Parish, both Registered Professional Planners, whom the Tribunal qualified, on consent, to provide opinion evidence in land use planning.

18Mr. Clark, presented by the Applicant and involved in this matter since 2015, explained that, since the Hearing that took place in 2018, the Special Events Use is now subject to a ZBA as well as approval of a Site Plan for the Special Events Use Venue and the Licensing of all events. The approval of the ZBA is only the initial approval required to establish this land use. The addition of Site Plan Control and Licensing By-law specific to Special On-Farm Events addresses the concerns of the Hearing Chair who previously considered this matter in the PL170178 Decision, and ensures that these events will be conducted in the manner expected by Council.

19Mr. Clark further explained that a settlement had been reached between the Parties and the following changes were made to the proposed ZBA, which addressed the concerns raised by the Appellant and the Participants:

a. The addition of a limit on the floor area of temporary structures to 10.5 square metres;

b. A provision to limit hours of operation from 11:00 a.m. to 12:00 a.m.;

c. The restriction on amplified sound equipment after 11:00 p.m.; and

d. The clarification that the Holding (H) provision will only be removed by the approval of a Site Plan.

20Mr. Clark referenced a Conceptual Site Plan, attached as Schedule B to this Decision, which indicated the details of the proposed use, the areas to be used for the Special Events, as well as how those are to be used. This Conceptual Site Plan forms part of the settlement agreement between the Parties.

21The planning documents affecting the proposed ZBA include: s. 2 of the Planning Act; the Provincial Policy Statement, 2020 (“PPS”); A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019, as amended (“Growth Plan”); Greenbelt Plan 2017; the Regional Municipality of Durham Official Plan; Municipality of Clarington Official Plan (including the now approved OPA 107); the ZBL; and the Municipality’s Licensing By-law. According to Mr. Clark, existing regional and local policy when developed did not specifically consider this proposed land use, and therefore did not provide clear policy directives for these agri-tourism uses. However, the Municipality’s OPA 107, adopted after the initial application was submitted, includes policy for active or low intensity recreation uses and on-farm diversified uses, as is proposed here.

22Mr. Clark testified that the proposed ZBA, as modified by the settlement, addresses all policy requirements at the provincial, regional, and municipal levels. Moreover, the land use, facilitated by the ZBA, would be appropriate at this location. Thus, Mr. Clark stated his opinion that the ZBA represents sound land use planning.

23As Mr. Clark testified, the PPS includes policy with respect to agri-tourism-related land uses to foster diversity and economic development in Rural Areas of the Province. Paramount to the proposed ZBA is that the Subject Site is not located in the Prime Agricultural Area, and therefore Section 1.1.4 that contains policy related to Rural Areas in Municipalities is applicable. The proposed land uses meet these policies as they build upon rural character while leveraging rural amenities and assets. These uses provide diversification of the rural economic base, utilize local goods and services, and provide local seasonal employment opportunities. They reflect the intent of the PPS for land uses in the rural areas of Municipalities.

24With respect to the Growth Plan, Mr. Clark opined that its basic policies mirror PPS policies related to supporting agriculture and development in rural areas. Section 4.2.6 of the Growth Plan sets out policy for an Agricultural System. As mentioned, the Subject Site is not designated as a Prime Agricultural Area but is identified on the current mapping as a candidate for Prime Agricultural or Rural designation. Specifically, Item 3 allows agricultural uses and non-agricultural uses to interface outside Settlement Areas provided mitigation, if required, is incorporated as part of the non-agricultural use. The Special Events Use would not preclude agricultural uses on the Subject Site or on adjacent lands. In fact, it would use locally produced food and would promote the use of local food. The Special Events Use would occur seasonally while livestock is on pasture and the facility is not required for storage. Mr. Clark added that the review of the proposed Site Plan did not identify any mitigative measures required beyond the site layout illustrated in the supporting documentation. Thus, he opined that the proposed Special Events Use would comply with the requirements of the Growth Plan.

25Mr. Clark stated that the proposed land use meets the objectives of the Greenbelt Plan, and specifically those policies set out in Section 3 related to the Protected Countryside. The Subject Site is considered within the Rural Area identified as lands outside of Settlement Areas which are not part of a Prime Agricultural Area and which are generally designated as Rural or Open Space within Municipal Official Plans. Rural Areas are typically characterized by a mixture of agricultural lands, natural features, and recreational and historic rural land uses. The General Policies of the Protected Countryside in Section 4.1 specifically provide for a range of commercial, industrial, and institutional uses serving the rural resource and agricultural sectors in the Rural Areas. These areas are also intended to support a range of recreation and tourism uses such as trails, parks, golf courses, bed and breakfasts and other tourism-based accommodation, farm-related agri-tourism, serviced playing fields and campgrounds, ski hills, and resorts. On this basis, Mr. Clark opined that the proposal conforms to the Greenbelt Plan.

26The Regional Municipality of Durham Official Plan designates the Subject Site as part of a Major Open Space Area (“MOSA”), with applicable policies set out in Subsection 10.A. Section 10.A.2.1 details the predominant use of lands as conservation as well as a range of agricultural, agricultural-related, and secondary uses. In addition, this section allows the establishment of non-agricultural uses, including agri-business, major recreational uses, commercial kennels, and landscape industry uses. Mr. Clark testified that the Special Events Use is an agri-tourism use, which is similar to the uses listed in this section. Despite identifying the proposed use as agri-tourism and agricultural related, Mr. Clark also reviewed Sections 10.A.2.4 and 10.A.2.5, which outline criteria to evaluate non-agricultural uses in MOSAs, and found that the proposed uses meet all of these criteria.

27In the Municipality’s Official Plan (“OP”), the Subject Site is designated Rural and the lands adjacent to Graham Creek as Environmental Protection (in Schedule A – Map A1); part of the Natural Heritage Systems with the presence of a watercourse (in Schedule D – Map D3); and containing a floodplain surrounding the watercourse (in Schedule F – Map F2). Mr. Clark stated that the ZBA, as modified by the settlement proposal, conforms to the criteria outlined in the OP. Namely, he explained that the proposed use: is located on the farm, and is secondary (providing vitality and economic viability) to the main agricultural use; is limited temporally and spatially to no more than 2% of the total area of the farm; and is compatible with and well-suited to the existing uses and surrounding area uses, since it is dependent upon being located on a farm and does not disrupt farming practices on-site or on adjacent farms. Moreover, the proposed land use does not produce any odour or other nuisances and the potential noise and traffic have been assessed as reasonable and compatible with the surrounding land use. The proposed use qualifies as an on-farm diversified use and agricultural-related uses have already been permitted by the OP as an exception to the agricultural use. The on-farm diversified and agriculture-related uses are supportive of the agricultural uses on the property as well as regionally, and thus, this proposal ensures the continued use and support of agriculture on appropriately designated lands in the Municipality. Mr. Clark added that this proposal conforms to policy 3.4.33, pertaining to Lake Iroquois Beach, as only minimal modifications of the Subject Site are proposed (for the parking area) and no new buildings or structures are proposed. The natural form and character of the landscape will be maintained or enhanced through the development of the proposed land use. In short, the proposal conforms to the Municipality’s OP.

28Mr. Clark went through the additional studies that were prepared, listed at paragraph [9] of this Decision, and explained how each provides support for the proposed use and the ZBA. Moreover, he explained that the Agricultural Advisory Committee of Clarington had determined that the proposed Seasonal Events Use is a non-agricultural land use permitted in a designated Rural Area of the Municipality. He also listed a number of organizations who supported this proposed ZBA.

29Mr. Clark concluded by providing his opinion that the approval of the ZBA, as modified by the settlement, would be consistent with all provincial, regional, and municipal policies, and would represent sound land use planning. He summarized that the proposed land use would be appropriate at this location, and that servicing the Special Events Use would be feasible. Lastly, the Subject Site provides an opportunity for the development of a rural agri-tourism land use that complements the existing land use on the property, and would be compatible with adjacent lands. Mr. Clark indicated that, in order to ensure that the zoning regulations and the Site Plan provisions are enforced, the Municipality has adopted a Licensing By-law specifically directed to On-farm Special Events. This will provide a direct regulation of these events.

30The Appellant and the Municipality agreed with Mr. Clark’s testimony and recommendations.

31The Municipality called Ms. Parish to testify. Ms. Parish also supported the proposed ZBA, as modified by the settlement, and agreed with Mr. Clark’s testimony and recommendations. She added that further studies may be required, which would be identified through the Site Plan Approval process. Ms. Parish also detailed the municipal process that this application had gone through, and indicated that the Municipality had attempted to address, in this settlement amongst the Parties, concerns raised at the public meeting.

FINDINGS

32The Tribunal accepts the uncontested evidence of Mr. Clark and Ms. Parish, and finds that the requested ZBA, as revised by the settlement proposal: has due regard for matters of provincial interest in s. 2 of the Planning Act; is consistent with provincial policies; and conforms with applicable regional and local policies. It is a suitable amendment within the policies and provisions of the ZBL, and thus, represents good planning in the public interest.

ORDER

33THE TRIBUNAL ORDERS that the appeal is allowed in part and the Municipality of Clarington’s Zoning By-law No. 84-63 is hereby amended as set out in Schedule A to this Order. The Tribunal authorizes the municipal clerk of the Municipality of Clarington to assign a number to this By-law for record keeping purposes.

“Bita M. Rajaee”

bita M. rajaee

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.

Schedule A

Schedule B