Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 17, 2023
CASE NO(S).: OLT-23-000348
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: L241 Mersea Holdings Inc.
Subject: Minor Variance
Description: To permit construction of new warehouse
Property Address: South Side of Mersea Road 4 (no address assigned)
Municipality/UT: Leamington/Essex
Municipal File No.: A-04-23
OLT Case No.: OLT-23-000348
OLT Lead Case No.: OLT-23-000348
OLT Case Name: L241 Mersea Holdings Inc. v. Leamington (Municipality)
Heard: September 5, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| L241 Mersea Holdings Inc. ("Appellant") | James Cooke |
| Municipality of Leamington ("Leamington") | Not Present |
MEMORANDUM OF ORAL DECISION DELIVERED BY A. SAUVE ON SEPTEMBER 5, 2023 AND FINAL ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This matter had been scheduled for a three-day Hearing; however, the Parties informed the Tribunal that only one day was necessary as Leamington would not be participating at the Hearing. Leamington advised the Tribunal that while they are not consenting to the Appeal, they are not opposing it. The only Party to attend the Hearing was the Appellant.
2This Appeal concerns one of five abutting farm properties that are all part of a single greenhouse operation. It had been divided into five separate properties to accommodate a septic system; however, the Appellant is in the process of creating an on-site wastewater treatment facility to accommodate the greenhouse operation and the on-site migrant housing. The properties will be joined, eliminating the interior lot lines, once that system is installed. The Appellant informed the Tribunal that they are one-and-a-half years into that process and expect construction to begin in a few months. This Decision will then become moot as the setbacks being asked for in this Minor Variance Appeal ("MVA") all concern the interior lot lines.
3The Appellant asserts that they are in critical need of the new warehouse as the current operation continues to grow and the current facilities are not being used at their capacity. The warehouse being proposed would be comprised of a reconfiguration of the existing warehouses and greenhouses. There will be no intensification. The reconfiguration will also allow for greater separation of the truck traffic and pedestrian walkways from the migrant lodging facilities to the greenhouses.
4The requested minor variance will allow for a new warehouse on unnumbered lands behind 824 Mersea Rd 4. The subject lands are comprised of unnumbered Parcel E, 824, 828- 836, and 834 Mersea Rd 4 ("Subject Lands"). These lands underwent a recent Zoning By-Law Amendment (ZBA) under By-Law 63-22 that rezoned all of the Subject Lands to a site specific 'Agricultural General Zone (A1-34)'.
5Currently, greenhouses in the 'Agriculture (A1)' zone requires a 15 metre ("m") setback from an interior lot for a warehouse/shipping facility of a greenhouse. The Appellant is seeking a minor variance under the 'Agriculture (A1)' zone, section 22.1.4, for a variance of 11.7 m for the warehouse component and a variance of 11.9 m for the loading bay component to allow for 3.3 m setback for the warehouse/shipping facility from the north lot line.
6The requested MVA was recommended by Town staff but was refused by the Committee of Adjustment on April 5, 2023.
7The Tribunal had not received any requests for Party or Participant status prior to the Hearing and did not receive any such requests at the Hearing either.
LEGISLATIVE TEST
8When reviewing a minor variance for relief from the current Zoning By-Law, the Planning Act specifies that the following four tests are to be considered:
- The variance is to meet the general intent of the Official Plan;
- The variance meets the general intent of the Zoning By-Law;
- The variance is desirable for appropriate development or use of the property; and,
- The variance is minor in nature.
EVIDENCE
9The Appellant called one witness, Jackie Lassaline. The Tribunal found that Ms. Lassaline was properly qualified to provide expert testimony in the field of land use planning. The Tribunal found her evidence to be clear and comprehensive. As only one Party attended the Hearing, there was no cross examination. The Tribunal adopts the evidence of Ms. Lassaline in its entirety.
10The Document Book of the Appellant was entered as Exhibit 1.
The Variance is to Meet the General Intent of the Leamington Official Plan
11The Tribunal finds that the minor variance meets the general intent of the Leamington Official Plan ("OP"):
3.1.2 Policies
The following policies shall apply to those lands designated "Agricultural" on Schedule "A" of this Plan:
a) the predominant use of land shall be agricultural. Associated uses will be permitted which include the growing of crops and raising livestock, tree farms, aqua-culture farming and forestry and conservation uses;
b) greenhouse farming including packing and shipping facilities and on-site housing are permitted in the "Agricultural" designation and the agricultural zones of the Zoning By-law. The aforementioned uses, buildings, and structures are subject to site plan control pursuant to Section 7.4 of this Plan.
12Subject Lands are designated 'Agricultural' on Schedule A of the OP and the greenhouse is considered a permitted use under the policies of the OP. The variance will support the establishment of a new warehouse that is needed for storage and shipping as an accessory structure to the existing greenhouse. The Tribunal finds that the requested minor variance supports the continuation of a permitted land use; therefore, the variance conforms with the relevant policies of the 'Agricultural' designation of the OP.
The Variance Meets the General Intent of the Zoning By-Law
13The Subject Lands are zoned 'Agricultural General Exception 34 (A1-34)' ("(A1-34)"), which allows for agricultural greenhouses as a permitted use on site. The new site specific (A1-34) was established to recognize the consolidation of all five parcels of land. The consolidation will happen with the establishment of the waste treatment facility. The consolidation will remove the interior lot lines and will also remove the need for the interior side yard setback requirement of the warehouse.
14The minor variance will reduce the setback of the needed warehouse from an interior lot line shared by the same owner. The minor variance will support the location of a necessary warehouse and shipping facility, to be located closer to the greenhouse facility it serves. The Tribunal finds that the requested minor variance does comply with the intent of the (A1-34) zone, which allows for the continuation of the existing greenhouse and the allowance of a critical warehouse component for the permitted greenhouse use.
The Variance is Desirable for Appropriate Development or Use of the Property
15The Tribunal finds that the adjacent lands owned by the same property owner as a separate parcel will not be negatively impacted by the minor variance requested for the warehouse. There are no neighbours that will be impacted by the requested minor variance; therefore, there will not be any neighbourhood impact.
16In addition, the warehouse functions (storage, shipping and receiving) are presently occurring within different locations in the greenhouse lands. These locations are constrained due to size and location. With the new warehouse, the shipping and receiving being located in one building will support efficient and effective operations for the greenhouse. Further, the one location of the warehouse to the rear of the building will provide for health and safety of the workers by separating the pedestrian walkways from the shipping/truck transportation locations.
The Variance is Minor in Nature
17The Tribunal finds that the requested variance can be considered minor as the variance will allow for relief from an interior lot line setback for an accessory structure as the lot line is shared with the same owner and the same greenhouse operation. Additionally, with the expected installation of waste treatment system, the consolidation of the property and the resultant elimination of all interior lot lines, the requested variance will be redundant and unnecessary.
ORDER
18THE TRIBUNAL ORDERS that the Appeal is allowed and the minor variance to Zoning By-Law 890-09, as amended, of the Town of Leamington is granted under 'Agriculture (A1)' zone, for a variance of 11.7 metres for the warehouse component and a minor variance of 11.9 metres for the loading bay component to allow for a 3.3 metre setback for the warehouse/shipping facility from the north lot line.
"A. Sauve"
A. SAUVE 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.