ISSUE DATE: December 19, 2024
CASE NO(S).: OLT-24-000850
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: Eugene Bauman
Subject: Minor Variance
Description: To allow the development of a residential dwelling with a reduced Minimum Distance Separation (MDS) from neighbouring properties
Reference Number: A08/2024
Property Address: 6449 Middlebrook Road
Municipality/UT: Township of Woolwich
OLT Case No.: OLT-24-000850
OLT Lead Case No.: OLT-24-000850
OLT Case Name: Bauman v. Woolwich (Township)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: Eugene Bauman
Subject: Minor Variance
Description: To allow the development of a residential dwelling with a reduced Minimum Distance Separation (MDS) from neighbouring properties
Reference Number: A09/2024
Property Address: 6449 Middlebrook Road
Municipality/UT: Township of Woolwich
OLT Case No.: OLT-24-000851
OLT Lead Case No.: OLT-24-000850
Heard: November 19, 2024 by Video Hearing
Parties
Counsel
Eugene Bauman
Mark de Jong
Jennifer Meader (in absentia)
Township of Woolwich
Kevin M. Thompson
Giovanni Giuga
MEMORANDUM OF ORAL DECISION DELIVERED BY YASNA FAGHANI ON NOVEMBER 19, 2024 AND ORDER OF THE TRIBUNAL
Link to the Order
INTRODUCTION AND BACKGROUND
1The matter before the Tribunal is an appeal filed by Eugene and Lorne Bauman (“Applicants/Appellants”) under s. 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended, (“Act”) against a decision of the Township of Woolwich’s (“Township”) Committee of Adjustment (“COA”) that refused two Applications for Minor Variance (“Applications”). The Applications affects the land known as 6449 Middlebrook Road, West Montrose, in the Township (“Subject Property”).
2The Subject Property is four hectares in size and is regulated by the Grand River Conservation Authority (“GRCA”). The Applications seek to construct a new residential dwelling on the vacant land that is zoned Agricultural.
3To the south of the Subject Property, at 6359 Middlebrook Road, is an active pig farm with an existing livestock facility and liquid manure storage. Across the street from the Subject Property, at 6452 Middlebrook Road, is an active dairy/beef farming operation with an existing livestock facility and liquid manure storage.
4The Applications seek the following relief from the Zoning By-law (“ZBL”) as it relates to the Minimum Distance Separation (“MDS”) setback from a livestock facility, manure storage or anaerobic digestor:
MDS setback reduction to 204 metres between the proposed new dwelling and an existing livestock facility located at 6359 Middlebrook Road, whereas a minimum distance of 331 metres is required by the ZBL;
MDS setback reduction to 171 metres between the proposed new dwelling and an existing livestock facility located at 6452 Middlebrook Road, whereas a minimum distance of 279 metres is required under the ZBL; and,
MDS setback reduction to 187 metres between the proposed new dwelling and an existing manure storage facility located at 6452 Middlebrook Road, whereas a minimum distance of 352 metres is required under the ZBL.
5The Report to the COA dated July 8, 2024, did not support the Applications as they did not meet the test required by the Act regarding minor variance. In addition, the COA heard from the owner of the neighbouring farm in support of the Applications.
6On August 1, 2024, the Applicants filed an Appeal before this Tribunal. There were no issues raised regarding the Administrative Notice of this Hearing dated October 11, 2024, and marked as Exhibit 1.
7The Tribunal did not receive any Party or Participant Status requests, and no one appeared at the Hearing requesting Party of Participant Status.
8For the reasons that follow, the Tribunal allows the appeals and the minor variance is authorized with the conditions as discussed below.
HEARING
9The Tribunal acknowledged the Minutes of Settlement filed by the Applicants prior to the Hearing. The Township confirmed the settlement documents and it agreed to the settlement of the minor variance, with conditions, discussed later in this Decision.
10The Tribunal heard uncontroverted viva voce evidence from Andrew Head of Dryden, Smith & Head Planning Consultants Ltd., who was qualified as an expert in land use planning. His curriculum vitae and acknowledgement of expert’s duty, along with his affidavit are marked as Exhibit 2.
LEGISLATIVE TEST
11With respect to minor variances, s. 45(1) of the Act, the Tribunal must be satisfied that the requested variances:
a. maintain the general intent and purpose of the Regional Official Plan (“OP”) and the Township’s OP;
b. maintain the general intent and purpose of the ZBL;
c. are minor in nature; and,
d. are desirable for the appropriate development or use of the land, building or structure.
12Further, the Tribunal must be satisfied that the variance is also consistent with the Provincial Planning Statement, 2024 (“PPS”) and have regard to matters of provincial interest under s. 2 of the Act, as well as for the decision of the approval authority and the information that was before it.
ANALYSIS AND FINDINGS
Intent and Purpose of the ZBL and OP
13Mr. Head testified that the both the ZBL and OP allow for residential uses on the Subject Property given the property is not suitable for Agricultural use. However, the proposed new dwelling deviates from the MDS found in the ZBL. The intent of the MDS is to minimize nuisance complaints associated with livestock facilities due to odour. Mr. Head testified that the MDS has an impact on where residences can be located in relation to barn and manure operations.
14Mr. Head advised that the Applicants/Appellants are Old Order Mennonites. He and his family live and work within livestock environments much like many of the Old Order Mennonites, who are the neighbours. Furthermore, Old Order Mennonites rarely sell their farms and tend to pass down properties through generations. In Mr. Head’s opinion, neither the Applicants/Appellants nor the neighbours are prone to complaining about odours.
Minor in Nature
15Mr. Head testified that the reductions required, while numerically significant, are minor in the overall property size, surrounding agricultural landscape and unique constraints of the property. The majority of the property contains slopes and valleys and is unsuitable for viable farming or livestock operations. The proposed new dwelling will be located on a small portion of the property. The Grand River Conservation Authority (“GRCA”) who regulates the property has no objection to the location of the dwelling and the proposal does not take away land that could be used for future agriculture expansion.
Desirable for Appropriate Development
16Mr. Head opined that the proposed new dwelling strikes a balance between the need for rural residential development and agricultural preservation. It creates a viable dwelling for residents whose occupation means working on farms and who will unlikely be bothered by odours from adjacent properties.
Provincial Planning Statement, 2024 (“PPS”)
17Mr. Head submitted that the new proposed dwelling is in line with adding to the housing supply without taking away from agricultural uses since the Subject Property is not suitable for farming. He opined that the proposal is consistent with the PPS and meets policy interest under s. 2 of the Act.
PROPOSED CONDITIONS TO APPLICATIONS
18In the Minutes of Settlement, two conditions were proposed, one relates to a development agreement being registered on tile of the Subject Property and the other condition is the requirement for both neighbouring property owners to execute a written acknowledgement regarding the location of the proposed new residential dwelling and the impact it will have on existing agricultural expansions.
19Mr. Head testified that he had reviewed all of the conditions and agreed to same.
20Counsel for the Applicants/Appellants submitted that the condition relating to the written acknowledgement has been fulfilled and included in the Affidavit of Mr. Head.
Finding
21The Tribunal is satisfied by the evidence provided by Mr. Head, through his uncontroverted testimony, that all of the minor variances, individually and collectively, have satisfied the four tests outlined in s. 45 of the Act, and that the proposal has proper regard for matters of Provincial interest under s. 2 of the Act and is consistent with the PPS. The Tribunal finds that the totality of evidence before the Tribunal supports the authorization of the minor variance.
ORDER
22THE TRIBUNAL ORDERS that the appeals are allowed in part, and the minor variance to the Township of Woolwich Zoning By-law No. 26-2024 as amended, are authorized, subject to the following conditions:
that a development agreement with an odour warning clause shall be registered on title against the Subject Property to inform future purchasers of nearby odour producing sources due, in part, to the reduced Minimum Distance Separation setbacks from the neighbouring property owners’ agricultural operations;
that both neighbouring farm property owners for 6452 Middlebrook Road, , and 6359 Middlebrook Road, execute a written acknowledgement, in a form satisfactory to the Township, confirming that each property owner understands that if and when a residential dwelling is constructed on the Subject Property, its location will preclude certain expansion of the existing agricultural operations because of the dwelling’s effect on Minimum Distance Separation Two calculations (the “Acknowledgments”).
“Yasna Faghani”
YASNA FAGHANI
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.