Kafieh v. Haldimand (County), 2024 CanLII 11531

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 12, 2024

CASE NO(S).: OLT-23-000050

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

Applicant and Appellant: Robert Kafieh

Subject: Minor Variance

Description: To permit an establishment of a dog kennel on the subject property

Reference Number: PLA-2022-171

Property Address: 750 Haldimand Road 53

Municipality/UT: Haldimand/Haldimand

OLT Case No.: OLT-23-000050

OLT Lead Case No.: OLT-23-000050

OLT Case Name: Kafieh v. Haldimand (County)

Heard: October 13, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

Robert Kafieh

M. Rutledge

County of Haldimand

S. Premi

decision DELIVERED BY S. GOPIKRISHNA AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Appeal results from the refusal of an Application submitted by Robert Kafieh (the “Appellant”), to the Committee of Adjustment (“COA”) of the County of Haldimand (the “County”), which was heard on December 20, 2022, under s.45(12) of the Planning Act (“Act”), for the construction of a kennel located on the Appellant’s property, located on the east side of Haldimand Road 53, south of Concession 4 Walpole, and north of Concession Road 4, in the community of Selkirk, Haldimand County (“Subject Property”).

2The Appellant appealed the COA’s refusal of the Application to the Ontario Land Tribunal (the “Tribunal”) on January 5, 2023, which scheduled an electronic hearing of the Appeal on October 13, 2023.

3The County and the Appellant reached a Settlement on September 29, 2023, as a result of which the Hearing that was scheduled for October 13, 2023, was instead converted into a Settlement Hearing. As a result of the Settlement, the Appellant requested that the Tribunal approve the following revised variance (“variance”):

• An Animal Kennel will be permitted within 1.40 metres (“m”) from any lot line, whereas ZBL No. HC 1-2020 does not allow for an Animal Kennel to be permitted within 3.50 m from any lot line.

EVIDENCE

4Counsel for the Appellants addressed the revised variance resulting from the Settlement and emphasized that there was no further need for further Notice under s. 45.18.1.1 of the Act because the changes to the revised variance were minor. The County concurred and the Tribunal ruled that the changes were minor, and that there was no need for new notice under s. 45.18.1.1 of the Act, and that the Settlement Hearing could proceed.

5At the Hearing completed on October 13, 2023, Mr. Evan Sugden, a land use planner, was qualified to give land use planning evidence on behalf of the Appellant, and was qualified as an Expert in the discipline of land use planning. In support of the Settlement, the Parties relied on an Affidavit sworn by Mr. Sugden on October 10, 2023.

6As Mr. Sugden opined, the Settlement arrived at by the Parties:

(a) Is consistent with the planning documents affecting this matter which includes s. 2 of the Act; the Provincial Policy Statement, 2020 (“PPS”); and A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020, as amended (“Growth Plan”);

(b) Facilitate the compliance of a land use which is permitted in both the OP and ZBL for the County, confirming that the Subject Property is a suitable location for an animal kennel; and

(c) Requires the Appellant to undertake the measures recited at Paragraph [16] of this Decision to address potential issues related to land use compatibility that can arise with the construction of animal kennels.

7Mr. Sugden addressed the relationship between the Policy Regulatory Framework and Planning Analysis, with respect to the PPS, and the Growth Plan, before addressing the how the variance(s) requested under the Settlement satisfy the four tests under s. 45.1 of the Act.

8Mr. Sugden stated that according to definitions provided in the PPS, the Subject Property is located within a rural area, which includes “rural settlement areas, rural lands, prime agricultural areas, natural heritage features and areas, and resource areas”. Rural lands are located outside Settlement areas and outside of prime agricultural areas. He focused on how s. 2.0 of the PPS establishes the policy framework for the wise use and management of resources in Ontario, with s. 2.3 specifically setting out the policies for agriculture. He noted that lands located within Prime Agricultural Areas are protected for agricultural uses generally, though there are exceptions.

9Mr. Sugden highlighted how the Site is not a “restricted speciality crop area, as discussed in Policy 2.3.6.1 of the PPS, and is therefore exempt from the minimum distance separation formulae” of the Ministry of Agriculture, before discussing how the use of an animal kennel is already permitted in the County’s Official Plan (“OP”) and Zoning By-law. Additionally, he discussed how the Subject Property was created by severing a surplus farm dwelling from the surrounding agricultural lot, which the County determined to be surplus to an existing farming operation. He added that the severance process included a requirement to prohibit the construction of new residential dwellings on the retained farm parcel in the future. However, because the animal kennels are permitted as-of-right in the OP, and will “not reduce the size or continued use of the existing agricultural operation”, Mr. Sugden concluded that the animal kennel will not negatively impact surrounding agricultural operations, as specified in s.2.3.6.2 of the PPS, and that the variance is consistent with the PPS.

10Speaking to the relationship between the variances, and the Growth Plan, Mr. Sugden discussed how the latter is visualized by the Government of Ontario as the matrix to plan for growth and development while promoting economic prosperity, environmental protection, and a high quality of life, and establish the framework for the region's long-term growth, applicable to the whole of Haldimand County, including the Site. Mr. Sugden relied on s. 2 of the Growth Plan, and Policy 2.2.9.3 in particular, which provides that development outside of settlement areas, can take place on rural lands for uses, which:

(i) Are compatible with the rural landscape and surrounding local land uses;

(ii) Will be sustained by rural service levels; and

(iii) Will not adversely affect the protection of agricultural uses and other resource-based uses such as mineral aggregate operations.

11Mr. Sugden expanded on how the animal kennel would facilitate an already otherwise permitted rural land use, and discussed how the rural lot fabric provides adequate separation distances from nearby sensitive land uses, because the nearest residential home is more than 125 m from the nearest part of the kennel on the Subject Property. On the basis of this evidence, Mr. Sudgen concluded that the requested variances conform to the Growth Plan.

12Mr. Sugden addressed the relationship between the OP and the requested variances. He said that the Subject Property is designated Agriculture as per Schedule A.2 of the OP, and provided commentary on how s.3.A.1) of the OP advises that agricultural lands be developed. Mr. Sugden relied on Policy 3.A.1.5 to discuss how this policy allows for the development of secondary land uses compatible with agriculture on Agricultural lands, including animal kennels and forestry uses, in addition to agricultural uses themselves. Mr. Sugden then discussed how Policy 3.A.1.15 establishes the importance of separation between Agricultural Lands and sensitive uses, exemplified by residential housing, with respect to noise, odour, and dust. He reiterated how the separation of the kennel from the nearest neighbouring property was more than 125 m, and expressed satisfaction with how the Subject Property satisfied both Policies 3.A.1.5 and 3.A.1.15 in the OP, before concluding that the variances maintained the intent and purpose of the OP of the County.

13Mr. Sugden then addressed the relationship between the requested variance, and the Haldimand County Zoning By-law (“ZBL"). The Subject Property is zoned Agricultural (A) in the ZBL with site-specific zone exception No. HAL36.369, which provides two provisions related to the Subject Property, and the neighbouring remnant agricultural property to the east. The first provision states that in addition to the existing regulations in the ZBL, the regulations for Surplus Farm Dwelling Severances also apply, taking precedence over any conflicting section of the By-law. The second provision states that for accessory buildings already in existence at the time of passing the By-law on the Subject Property, the minimum interior side yard setback should be 1.17 m for accessory structures, regardless of the ”usual Surplus Farm Dwelling Severance regulations”, before reiterating the first provision.

14Mr. Sugden then summarized the key provisions for Surplus Farm Dwelling Severances, as recited below:

a. No single detached dwelling or home-based business is allowed on the remaining agricultural parcel after the surplus farm dwelling severance;

b. Buildings on either the severed or retained parcels cannot be used for certain agricultural purposes unless they comply with specific regulations;

c. Existing accessory buildings on the residential parcel can keep their current height, floor area, and lot coverage;

d. Existing residential dwellings on the residential parcel can maintain their current setbacks, even if they don't comply with the By-law;

e. If the Surplus Farm Dwelling Severance creates new zoning issues, they must be resolved through a minor variance Application; and

f. A special provision will be added to the Agriculture (A) Zone in the Zoning By-law to reference these rules for affected lands. This can be done without further public notice.

15Mr. Sugden detailed the list of all permitted uses in the (A) Zone, as listed in s.11.2 of the ZBL, which includes animal kennels as a permitted use, subject to s. 4.33, which is not applicable to this Appeal, because it was adopted by the County of Haldimand Council on March 27, 2023, after the Application had been heard by the COA.

16Based on this information, Mr. Sugden concluded that the requested variances reinforced the use of animal kennels in the (A) Zone, and consequently maintained the intent, and purpose of the Haldimand County ZBL.

17Speaking to the relationship between the requested variances, and the test of appropriate development, Mr. Sugden said that if approved, this Appeal will bring the existing animal kennel structures into compliance with a specific zoning regulation on a rural property in Haldimand County, “one of the most fitting locations for an animal kennel, far from the densely populated portions of the County”. Mr. Sugden opined that the conditions contemplated in the Minutes of Settlement represent reasonable steps to promote land use compatibility and demonstrate consideration for the needs of

neighbours, and “make the revised variance not merely appropriate, but essential”, on the basis of which he concluded that the test of appropriate development was fulfilled.

18Mr. Sugden then addressed the test of minor, and highlighted how the ZBL limited severed parcels, including the Subject Property to less than 0.6 hectares, and how locating a structure to house such a kennel physically on such severed parcels faced challenges, because of their being subjected to a requirement about 30 m separation from lot lines. He then explained how the revised variance before the Tribunal helped increase the “flexibility in determining the placement of the animal kennel”, while “facilitating maximum separation from the residential unit”. He asserted that the positioning of the animal kennel structures “nearer to the rear and side yards”, as contemplated by the revised variance, will not create any future compatibility issues, “as the neighbouring farm parcels to the north, and east will remain exclusively agricultural indefinitely”. On the basis of this evidence, Mr. Sugden concluded that the revised variance satisfied the test of minor.

19Mr. Sugden commended the variance to the Tribunal, and asked that the variance be approved, subject to the imposition of conditions that had been agreed to by the County and the Appellant. He also discussed a number of measures, that the Appellant would take to minimize the impact of the kennel on the neighbours, which are recited below:

a. Building a fully enclosed and sound-insulated structure for overnight boarding and designated daytime hours.

b. Orienting the three-walled outdoor kennel structures eastward, ensuring that noise from barking dogs will be directed toward the expansive farm field rather than nearby residences.

c. Locating the kennel structures as close to the rear property lines of the Subject Site as practically possible, maximizing the separation distance from the nearest neighbouring residential dwellings.

d. Imposing restrictions on the use of the outdoor play area, limiting it to specific hours of the day to align with typical working hours.

e. Implementing limits on the total number of dogs allowed on the Subject Property,

f. Capping it at twenty-five (25) dogs in total (comprising 20 boarded dogs and up to 5 personal dogs) at any given time.

g. Enforcing restrictions on the types of services the kennel can offer, including the exclusion of rescued dogs from being boarded on the Subject Property.

20Ms. Shannon VanDalen, a land use planner, and the Manager of Planning for the County, was then sworn in, and qualified as an Expert in the area of land use planning. She prefaced her evidence by stating that she would speak solely to the conditions agreed to by the Parties in the Settlement, which are as follows:

1. A maximum of twenty-five (25) dogs shall be permitted on the Subject Property at any given time, including up to five (5) personal dogs of the property owner.

2. All dogs at the Subject Property, except the five (5) personal dogs, are subject to the following requirements:

a) Subject to 2b) and 2c) below and transitioning between structures, all dogs shall at all times be kept in one of the following kennel use structures: enclosed outdoor play area, the open outdoor kennels, or the fully-enclosed sound-insulated structure;

b) All dogs shall be kept within the fully-enclosed sound-insulated structure, meeting the requirements of 3(c) below, from the hours of 7 P.M. to 7A.M. Notwithstanding the foregoing, the property owner shall be permitted to temporarily remove a single dog at a time from the fully-enclosed sound insulated structure between the hours of 7 P.M. to 7 A.M, but only for the purpose of allowing the single dog to relieve itself;

c) A maximum of 15 dogs shall be permitted to be outside of the fully-enclosed sound-insulated structure between the hours of 7 AM and 7 PM; and

d) Events or training sessions are only permitted in the enclosed outdoor play area, open outdoor kennels, or a fully-enclosed sound-insulated structure.

3. The following requirements apply to the kennel use structures:

a) The dog kennel structures shall be generally in the locations identified in the concept site plan dated September 26, 2023, attached as Schedule “A” hereto;

b) Any openings of the open outdoor kennels are required to face east away from Haldimand Road #53 towards the rear lot line;

c) The outdoor play area must be fully enclosed on four (4) sides and the siding of the outdoor play area must be constructed with a solid material having a minimum face density of 20kg/m2 and have a minimum height of 1.85 m; and

d) The fully-enclosed sound-insulated structure shall be of a solid construction with a minimum composite STC of 30 and any ventilation or openings in the structures must provide sound mitigation.

4. No Rescue Dogs shall be kept on the Subject Property. “Rescue Dogs” means dogs which do not have a legal owner, or dogs which have been seized from their legal owner, that are hosted for sanctuary or rescue purposes.

21Ms. VanDalen added that the conditions recited above, were negotiated with input from noise consultants, to minimize potential for land use conflict, and adverse impacts. She pointed out that as part of the discussions resulting in the Settlement of the Appeal, when the Appellant updated the survey for the Subject Property, it was noted that the proposed dog use kennel structure is closer to the lot lines, than the 3.5 m separation originally reflected in the Application, as detailed below:

a) The fenced play area is 1.4 m from the lot line;

b) The north facing dog kennel is 1.1 m from the lot line;

c) The fully enclosed sound insulated structure is 1.8 m from the lot line.

22Ms. VanDalen said that she had reviewed this change, and supported the modifications to the Application to recognize the existing conditions. She reiterated her support for the approval of the variance, because it satisfied the four tests under s. 45.1 of the Act, and advised that the aforementioned conditions should be imposed on the approval.

ANALYSIS AND FINDINGS

23The Tribunal notes at the Hearing completed on October 13, 2023, the County’s Witness spoke solely to the conditions resulting from the Settlement between the Parties, while the actual evidence supporting the Settlement was provided by the Appellant’s evidence. Notwithstanding the Parties focusing on different aspects of the Settlement, the corpus of evidence was mutually consistent, and corroborative, and supported the approval of the single variance before the Tribunal.

24The Tribunal agrees with the Parties that under s. 45.18.1.1 of the Act, no further notice is required because all the concerned Parties have reached a Settlement resulting in changes to the variance that are minor.

25The Tribunal finds that the evidence given by the Appellant demonstrates that the Settlement proposal is consistent with the PPS because it helps implement the policy framework “for the wise use and management of resources in Ontario”, as stated in s 2.0 of the PPS. The consistency between the variance, and the PPS is also supported by the kennel not interfering, nor detracting from the continued agricultural use of the land, as contemplated in the latter. The Tribunal finds that the evidence demonstrates that the requested variance helps satisfy s.2.2.9.3 of the Growth Plan, because it highlights how the proposed animal kennel facilitates an already permitted rural land use.

26The Appellant’s uncontested evidence demonstrated that the variance satisfies Policies 3.A.1.5 of the OP through facilitating the development of secondary land uses compatible with agricultural uses, on Agricultural lands, which includes animal kennels. The evidence demonstrated satisfactorily that the separation between the kennel and the nearest neighbouring property exceeded 125 m, which satisfies the OP’s policies related to separation between the Subject Property and sensitive uses. Based on this evidence, the Tribunal finds that the revised variance satisfies the intent and purpose of the County of Haldimand’s OP.

27The evidence clearly demonstrated that kennels are listed as a permitted use in list of all permitted uses in the (A) Zone, as listed in s. 11.2 of the County’s ZBL, subject to restrictions resulting from s. 4.33 of the same document. The Tribunal accepts the Appellant’s contention that s. 4.33 is not applicable, because it was adopted by the County Council on March 27, 2023, after the Application had been filed before the County’s COA. As such, the variance before the Tribunal aims to reduce the distance from the kennel structures to the rear and side yard lot lines, which allows for the kennel structures to be positioned as far as possible from the nearest residential uses, which helps facilitate appreciable separations between the kennel and sensitive uses, including residential uses on neighbouring properties. Given that the variance helps satisfy the need for maximal separation from the kennel, and the nearest residential property, the Tribunal finds that the revised variance satisfies the intent and purpose of the County ZBL.

28With reference to the test of appropriate development, the evidence demonstrated that the variance brings about the legalization of a use that is already permitted in both the OP and ZBL for the County, reaffirming the suitability of the Subject Property for an animal kennel. The Tribunal finds that the revised variance is desirable since animal kennel uses are compatible with agricultural lands, and the proposed conditions ensure the animal kennel use at the Subject Property will be in an optimal location that minimizes adverse impacts on nearby properties.

29The Tribunal finds that the revised variance satisfies the test of minor because there is no unacceptable adverse impact on the property itself, nor any neighbouring property, because of the separation distance.

30Since the variance satisfies the four tests under s. 45.1 of the Act, the Tribunal allows the Appeal, sets aside the decision of the Committee of Adjustment dated December 20, 2022, and approves the variance. All the conditions agreed to by the Parties as a result of the Settlement, are imposed on the approval of the variance.

ORDER

31THE TRIBUNAL ORDERS that:

1. The amendment to the original application is minor and no further notice is required pursuant to s. 45(18.1.1) of the Planning Act;

2. The appeal is allowed in part, and the Revised Variance to Haldimand County Zoning By-law No. HC 1-2020 is authorized, subject to the conditions listed in Attachment 1 to this Order; and

3. Pursuant to s. 45(9.1) and 45(9.2) of the Planning Act, the owners of the Subject Property will enter into an agreement with the County of Haldimand setting out the conditions for the animal kennel use at the Subject Property and such agreement shall be registered on title of the Subject Property.

“S. Gopikrishna”

S. GOPIKRISHNA

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.

ATTACHMENT 1

1. A maximum of twenty-five (25) dogs shall be permitted at 750 Haldimand Road 53 (the "Subject Property") at any given time, including up to five (5) personal dogs of the property owner.

2. All dogs at the Subject Property as part of the animal kennel use, except the five (5) personal dogs of the property owner, are subject to the following requirements:

a. Subject to 2b) and 2c) below and transitioning between structures, all dogs shall at all times be kept in one of the following kennel use structures: the enclosed outdoor play area, the open outdoor kennels, or the fully-enclosed sound-insulated structure;

b. All dogs shall be kept within the fully-enclosed sound-insulated structure, meeting the requirements of 3(d) below, from the hours of 7:00 PM to 7:00 AM. Notwithstanding the foregoing, the property owner shall be permitted to temporarily remove a single dog at a time from the fully-enclosed sound-insulated structure between the hours of 7:00 PM to 7:00 AM, but only for the purpose of allowing the single dog to relieve itself;

c. A maximum of 15 dogs shall be permitted to be outside of the fully-enclosed sound-insulated structure between the hours of 7:00 AM and 7:00 PM; and

d. Events or training sessions are only permitted in the enclosed outdoor play area, open outdoor kennels, or a fully-enclosed sound-insulated structure.

3. The following requirements apply to the animal kennel use structures:

a. The dog kennel structures shall be generally in the locations identified in the concept site plan dated September 26, 2023, attached as Schedule "A" hereto.

b. Any openings of the open outdoor kennels are required to face east away from Haldimand Road #53 towards the rear lot line;

c. The outdoor play area must be fully enclosed on four (4) sides and the siding of the outdoor play area must be constructed with a solid material having a minimum face density of 20 kg/m2 and have a minimum height of 1.85m; and

d. The fully-enclosed sound-insulated structure shall be of a solid construction with a minimum composite STC of 30 and any ventilation or openings in the structures must provide sound mitigation.

4. No Rescue Dogs shall be kept on the Subject Property. "Rescue Dogs" means dogs which do not have a legal owner, or dogs which have been seized from their legal owner, that are hosted for sanctuary or rescue purposes.