Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 04, 2023 CASE NO(S).: OLT-23-000426

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

Applicants/Appellants: Linda and James Fazekas Subject: Minor Variance Description: To reduce the minimum distance separation to facilitate the creation of a new lot Reference Number: A02-23 Property Address: Third Line, Part Lot 29, Concession 3 East Municipality/Upper Tier: Erin/Wellington OLT Case No.: OLT-23-000426 OLT Lead Case No.: OLT-23-000426 OLT Case Name: Fazekas v. Erin (Town)

Heard: September 12, 2023 by Video Hearing

APPEARANCES:

Parties Linda and James Fazekas

Counsel Scott Galajda

MEMORANDUM OF ORAL DECISION DELIVERED BY G.A. CROSER ON SEPTEMBER 12, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This appeal was brought after the Town of Erin Committee of Adjustment (“COA”) denied a minor variance application (the “Application”) for the property known legally as Third Line, Part Lot 29, Concession 3 East.

2The Tribunal heard testimony in support of the Appellants’ position from John Cox, who was qualified by the Tribunal to provide expert opinion evidence in the area of land use planning. The Town of Erin (“Town”) did not attend the Merit Hearing and took no position with respect to the Appellants’ appeal. There were no requests for Party or Participant status.

BACKGROUND

3The Appellants own a vacant agricultural parcel of land of approximately 20.3 hectares (“Vacant Parcel”) with frontage along Third Line. On the other side of Third Line are agricultural operations. The Appellants had previously applied to the Wellington County Land Division Committee (“LDC”) for consent to sever a 0.80-hectare parcel with a frontage of 50 metres and a depth of 160 metes from the Vacant Parcel (the “Proposed Lot”). Provisional consent was granted in September 2022 and there were no appeals of the application.

4One of the conditions of the LDC’s severance approval was that the Minimum Distance Separation (“MDS”) requirement under Formula I (“MDS I”) be met for the Proposed Lot.

5The Application to the COA was for a reduction of the MDS I distance requirement for the Proposed Lot from 268 metres to 154 metres. This was denied by the COA.

Minimum Distance Separation

6The MDS formulae are land use planning tools established by the Ministry of Agriculture, Food and Rural Affairs (“Ministry”) to determine setback distances between livestock barns, manure storage, and surrounding land use. MDS I is utilized for new lot creation and is measured from the closest existing livestock barn to the closest lot line of the severed parcel.

7In this case, the front lot line of the Proposed Lot is the closest lot line to existing livestock facilities located on the other side of Third Line.

Original Application to the Committee of Adjustment

8The original Application to the COA requesting a variance of the MDS I requirements was based on calculations from a Farm Data Sheet provided by the adjacent farm operation on Third Line (“Sharpe Farm”). The Application went to the COA on March 15, 2023, by which time Sharpe Farm had noted its objection to the Application for two reasons. Firstly, it was considering expanding its operation, and secondly that there was an existing heifer barn (“Heifer Barn”) that was closer to the Proposed Lot line than the agricultural building used in the Appellants’ original application. The latter point required an amendment to the Appellants’ MDS I calculation. The COA deferred the Application to allow further consideration of the Sharpe Farm concerns.

Second Application to the Committee of Adjustment

9The Appellants undertook additional survey work (“Survey”) that established the distance from the front lot line of the Proposed Lot to the existing Heifer Barn as 154 metres. As such, the Application before the COA on April 19, 2023 was for a greater variance from the MDS I requirement than the original application.

10The Survey also calculated the distance from the front lot line of the Proposed Lot to the proposed barn expansion at Sharpe Farm to be 217 metres.

11Sharpe Farm provided an MDS II calculation based on its proposed barn expansion and manure storage plans. MDS II provides the minimum separation distances between new, expanding, or remodelled livestock barns, manure storages and/or anaerobic digesters and existing or approved development. It is noteworthy that MDS II measures the distance from existing/approved dwellings to the expanded livestock barn rather than the distance from the property lot line to the existing livestock barn, as utilized by MDS I calculations.

12The Appellants, after discussions with the Town of Erin Planning staff, agreed to increase the front yard setback (“FYS”) for the Proposed Lot from the normal zoning requirement of 10.5 metres to 42 metres.

13Once the increased FYS was factored into the calculations, the MDS II setbacks were met for the Sharpe Farm barn expansion and for the proposed manure storage, which was to be located to the rear of the proposed new barn. Therefore, by increasing the FYS, the Appellant’s future dwelling on the Proposed Lot would not impinge on Sharpe Farm’s ability to expand its operations.

14The Application before the COA on April 19, 2023 requested relief from the MDS I requirement from 268 metres to 154 metres (the distance to the Heifer Barn). The Appellants also agreed to the Town’s Planning Staff condition to increase the FYS for the Proposed Lot from the 10.5 metres required in the Town’s Zoning By-law No. 07-67 (“ZBL”) to 42 metres, to ensure that the neighbouring farm could expand as planned. The Application was supported by the Town’s Planning Staff.

LEGISLATIVE FRAMEWORK

15An appeal pursuant to s.45 of the Planning Act (“Act”) is a hearing de novo, and the Appellants bear the onus of demonstrating that the four tests in s.45(1) have been met – namely, that the variance sought:

a. maintains the general intent and purpose of the Official Plan;

b. maintains the general intent and purpose of the Zoning By-law;

c. is desirable for the appropriate development or use of the land, building or structure; and

d. is minor in nature.

16Additionally, the variance must be consistent with the Provincial Policy Statement (“PPS”) and conform to any applicable Provincial Plan. The Tribunal must also have regard to matters of Provincial Interest and to the decision made by the Committee, as well as to the information and material considered by it in the course of making its decision.

PLANNING EVIDENCE

17Mr. Cox provided contextual and land use planning rationale to support the minor variance and he reviewed the Application against the relevant Legislative framework. As the requested variance is local in nature, Mr. Cox’s testimony focused on the four-part minor variance test as set out in s.45(1) of the Planning Act (“Act”). However, he did briefly note that, in his professional opinion, the variance had regard for matters of Provincial Interest.

18Mr. Cox explained that the Minimum Distance Separation Document from the Ministry sets out in Section 8.2 the guidelines for reducing MDS setbacks. It states, “… it is appropriate to consider the tests for a minor variance as a mechanism to assess specific situations..." Therefore, he opined, when considering relief from MDS I requirements, it is appropriate to consider using the minor variance tests as set out in the Act as the frame of reference.

19Mr. Cox also stated that the Application was not asking for a variance from the MDS II requirement. He explained that the inclusion of the MDS II data was to be considered as part of the review of the Application but that the actual variance required was based upon the MDS I calculations which are utilized for the creation of a new lot.

Minor Variance Tests

Maintains the General Intent and Purpose of the Applicable Official Plans

20In Mr. Cox’s view, the general intent and purpose of the County of Wellington Official Plan (“WCOP”) and the Town Of Erin Official Plan (“Town OP”) are maintained by the Application. He explained that the Proposed Lot is wholly located within the Secondary Agricultural designation of both the WOP and TOP.

21The Secondary Agricultural Areas designation is defined at s.4.2.3 of the TOP as “lands within the rural area that are determined to be non-prime farmland”. Agricultural use is the primary use within this designation; however, rural residential lots are also permitted. Section 6.5.6 of the WCOP states that lot creation shall be subject to MDS requirements. Section 4.2.3 of the TOP also states that an MDS II calculation can be made to consider the potential for expansion for a neighbouring farm property, and to be considered as part of the review of the application.

22Mr. Cox opined that the second Application put before the COA had taken into consideration the potential for expansion of the Sharpe Farm and had accommodated this by agreeing to increase the minimum FYS required by the ZBL. He reminded the Tribunal that MDS II calculations are made from the dwelling to the agricultural building. The expansion of the ZBL minimum FYS of 10.5 metres to 42 metres ensures that the adjacent farm operation can expand as planned by creating a greater separation to the future dwelling planned for the Proposed Lot. Thus, maintaining the general intent and purpose of the WOP and TOP.

Maintains the General Intent and Purpose of the Zoning By-law

23The Vacant Lot is zoned Agricultural (A) in the ZBL. A detached dwelling is permitted within the A zone, and s.4.22 of the ZBL requires new non-agricultural use to comply with the MDS I calculations using the formulas established by the Ministry. To comply with the general intent and purpose of the ZBL, the Appellants have requested a reduction of the required setback.

24With respect to the ZBL, Mr. Cox considered what would happen if the severance was not granted due to the failure of the Application. He noted that if the severance did not take place, the ZBL would then apply to the entire Vacant Lot. As the Vacant Lot existed prior to 2007, the MDS requirements would not apply. As such, the entire lot would only require a FYS of 10.5 metres which may impede Sharpe Farm’s ability to expand its operations in the direction of Third Line.

25Mr. Cox’s view was that by not granting the minor variance which is required for the severance there could be a greater impact on adjacent agricultural operations. Mr. Cox opined that the condition of increasing the FYS from 10.5 metres to 42 metres which exceeds the ZBL requirement of the Proposed Lot secured Sharpe Farm’s ability to expand operations in the direction of Third Line.

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

26Mr. Cox’s view was that the minor variance was desirable as it was compatible with the character of the surrounding area, in which the land uses are agricultural and rural residential dwellings. Mr. Cox opined that the Application would result in an appropriate development of the land.

Minor in Nature

27The purpose of the MDS setback is to mitigate potential odour impacts between livestock operations and more sensitive land uses. Mr. Cox opined that the variance was minor, as it was in keeping with the intent of the Official Plans and did not adversely impact existing farm operations or the future expansion plans of Sharpe Farm or the character of the area.

28In summary, Mr. Cox recommended that the Tribunal approve the requested variance as, in his opinion, it met the four tests under s.45(1) of the Act, had appropriate regard for matters of Provincial Interest and, in general, constituted good planning land use planning.

FINDINGS

29The Tribunal has considered the totality of the evidence before it and it accepts the uncontroverted land use planning evidence and opinions of Mr. Cox. The Tribunal is satisfied that the proposed variance has due regard for matters of Provincial Interest, is consistent with the PPS, and meets the legislative four-part test set out in s.45(1) of the Act.

30The Tribunal notes that a residential use is a permitted in a Secondary Agricultural Areas and that the condition of increasing the front yard setback for the Proposed Lot provides adjacent agricultural operations with room to expand in the direction of Third Line, if required. In general, this is an appropriate development of the land which maintains the character of the area, meets the general intent of the applicable Official Plans, and represents good land use planning.

ORDER

31THE TRIBUNAL ORDERS that the appeal is allowed and the variance to By-law No. 06 -67 is authorized subject to the following condition,

a. that the Front Yard Setback for the Proposed Lot is increased from 10.5 metres to 42 metres.

“G.A. Croser”

G.A.croser

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.