2728839 Ontario Limited v. Adjala-Tosorontio (Township), 2024 CanLII 33129

Ontario Land Tribunal

Issue Date: April 09, 2024

Case No(s).: OLT-23-000883

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: 2728839 Ontario Limited Subject: Request to amend the Official Plan – Refusal of request Description: To permit the construction of a manufacturing and fabricating farm related industrial facility Reference Number: 0/01/23 Property Address: 4632 County Road 50 Municipality/UT: Adjala-Tosorontio/Simcoe OLT Case No: OLT-23-000883 OLT Lead Case No: OLT-23-000883 OLT Case Name: 2728839 Ontario Limited v. Adjala-Tosorontio (Township)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: 2728839 Ontario Limited Subject: Application to amend the Zoning By-law – Refusal of application Description: To permit the construction of a manufacturing and fabricating farm related industrial facility Reference Number: Z/14/23 Property Address: 4632 County Road 50 Municipality/UT: Adjala-Tosorontio/Simcoe OLT Case No: OLT-23-000884 OLT Lead Case No: OLT-23-000883

Heard: March 25, 2024 by Video Hearing

Appearances

Parties 2728839 Ontario Limited

Counsel R. Cheeseman S. A. Fleming

Parties Township of Adjala-Tosorontio

Counsel J. Feehely

Memorandum of Oral Decision Delivered by Steven T. Mastoras on March 25, 2024 and Order of the Tribunal

Introduction

1The matter before the Tribunal was originally scheduled for a three-day Merit Hearing. Recently, the matter was converted to a Proposed Settlement (“Settlement”) relating to Appeals pursuant to s. 22(7) and s. 34(11) of the Planning Act from the refusal of the Township of Adjala-Tosorontio (“Township”) in Simcoe County (“County”) to allow an Official Plan Amendment and Zoning By-law Amendment, respectively (“Applications”).

2The Appeal has been filed by 2728839 Ontario Limited (“Appellant”), and the purpose of the Applications is to facilitate the construction of a manufacturing and fabricating farm-related industrial facility to carry out agricultural-related parts manufacturing and repair work. The approximate total floor area is 1900 square metres (“m²”) with outdoor storage as an additional permitted use within the Agricultural (“A”) Zone located at 4632 County Road 50 (“Subject Property”).

Legislative Framework

3The Tribunal must be satisfied that the Settlement: has sufficient regard for provincial interests as set out in s. 2 of the Act; is consistent with the Provincial Policy Statement, 2020 (“PPS”); conforms/does not conflict with A Place to Grow: Growth Plan for the Greater Golden Horseshoe 2019 (“GP”); and conforms/does not conflict with the Township Official Plan 2000 (consolidated November 2020) (“TOP”); and the County Official Plan 2016 (Office Consolidations February 2023) (“COP”).

4The Tribunal must also have regard to the decision of the Township and the information considered by it in the course of making that decision, and the Settlement must be representative of good planning and in the public interest.

Exhibits

5The Notice of Hearing relating to the first Case Management Conference on December 7, 2023, was noted as Exhibit 1. Additional Exhibits for the purposes of the Settlement include the following;

• Exhibit 2 – Witness Affidavit of Lanny Dennis, dated March 21, 2024.
• Exhibit 3 – Joint Document Book (“JDB”), dated March 20, 2024.
• Exhibit 4 – Revised Draft OPA (Attachment ‘1’) and Revised Draft ZBA (Attachment ‘2’), received March 22, 2024.

Land Use Planning Evidence

6Mr. Dennis, President of Lanny D. Planning consulting, was qualified by the Tribunal to provide opinion evidence in areas of land use planning, and has had carriage of the Applications since 2020, but was formally retained for the purposes of these Appeals in August 2023. In addition to his own Planning Justification Report (“PJR”), Mr. Dennis relied on the following professional studies, including:

• Agricultural Impact Assessment (“AIA”) - Colville Consulting (May 2023);
• Hydrogeological Assessment Report (“HAR”) – GHD (October 2022);
• Scoped Environmental Impact Study (“EIS”) – FriCorp (May 2022);
• Archeological Resource Assessment (“ARA”) – Woodland Heritage Northeast Limited (May 2022);
• NVCA Stormwater Management Study (“NVCA-SMS”) – Pinestone Engineering (October 2022); and,
• Traffic Study (“TS”). – JD Northcote Engineering Inc. (December 2021).

Relevant Background

7Mr. Dennis outlined that the Subject Property is approximately 38.8 hectares (“ha”), with 584 metres (“m”) of frontage on Adjala Side Road 30, 533 m of frontage along County Road 50, and is presently vacant.

8Comprehensive Zoning By-law No. 03-57 (“CZBL”) currently designates the Subject Property as Agricultural (A) and Open Space Conservation (OSC), with an overlay identified as the Nottawasaga Valley Conservation Authority (“NVCA”) fill area. The proposed development envelope was relocated outside of the NVCA-regulated lands.

9The surrounding area predominantly consists of agricultural uses, along with the institutional uses consisting of the Township offices to the east of the Subject Property.

10The Tribunal noted that Township planning staff, departments, and agencies were generally supportive of the Applications, although they were refused on August 9, 2023. Since that decision, Counsel for the Township informed the Tribunal that Township Council endorsed Settlement efforts in December 2023, and instructed Counsel to appear at the Hearing in support of the Applications.

Settlement Proposal

11Through his detailed witness statement (Exhibit 2) and testimony, Mr. Dennis provided the Tribunal with the Site-Specific Settlement details, including the following:

a) The ZBA would retain the existing (A) designation with an Exception to permit an agricultural-related repair machining facility, including outside storage.

b) The machine business is expected to refurbish/repair existing broken parts, or build new parts for agricultural vehicles and machinery and is appropriately considered an agriculturally-related use;

c) The maximum size of all buildings/structures used in connection with the farm equipment repair facility would be 1,900 m², and outside open storage would allow for a maximum area of 8,150 m². This outdoor designation would accommodate the intended movement and location of typically large machinery in need of repair or waiting to be picked up, while also allowing enough area for the prospect of future business growth;

d) The Applicants will be required to enter into a Site Plan Agreement (“SPA”), not yet submitted to the Township, which is expected to guide the development related to the proposal and regulate matters specific to noise, landscaping, lighting, design, and vehicular access, which is expected to be from Adjala Side Road 30, among other requirements.

Section 2 of the Planning Act (“Act”)

12Mr. Dennis opined that the Settlement has regard to Section 2 of the Act and applied the following relevant principles below, including:

• Section 2a) “the protection of ecological systems, including natural areas and features of functions,” noting that the Applications do not contemplate development in natural areas;
• Section 2b) “the protection of the agricultural resources of the Province,” because the intended use will cover only 2.5% of the Subject Property and represents a related agricultural use;
• Section 2d) “the conservation of features of significant architectural, cultural, historical, archaeological, or scientific interest,” is appropriately addressed through the related studies by various disciplines referenced above;
• Section 2k) “the adequate provision of employment opportunities,” which is reinforced with the creation of an anticipated 40 new, full-time employment opportunities and other economic benefits.

Provincial Policy Statement 2020 (”PPS”)

13Mr. Dennis opined that the Settlement is consistent with the PPS and testified to the following areas in his detailed witness statement (Exhibit 2, paras 27-36), including: Sections 1.1.5.2; 1.1.5.3); 1.1.5.4); 2.3.3; 2.3.3.1; and section 3, and that based on this analysis, he was able to provide the following conclusions that the proposed development:

i. Is not located in the Greenlands designation under the Simcoe County Official Plan; ii. Is limited in its disturbance and protection of the remaining agricultural land as only about 2.5% of the overall lot will be disturbed; iii. Anticipate[s] that there will be 40 new employees and construction jobs, new residents, [an] increase [to] the tax base, [and] a local labour market will entice people to stay in the area and continue to farm; iv. Will [result in] spin-off spending; v. Is compatible with the surrounding agricultural area; vi. Is accessed via an existing year-round municipally maintained public road; no new municipal road is required; vii. Intended use was confirmed to be agricultural related as noted in the Colville Consulting, Agricultural Impact Assessment; viii. [Area] is outside of the Nottawasaga Conservation Authority regulated lands; [and] ix. Reports prepared by the professional disciplines indicated there were no impacts on section 2 or 3 of the PPS.

Places to Grow – Growth Plan for Greater Golden Horseshoe 2019 (“GP”)

14Mr. Dennis opined that based on his review of relevant sections, including: 2.2.9 Rural Areas; 4.2.6 Agricultural System; 4.2.6.7 regional agri-food strategies, he was able to conclude that similar to the Settlement’s consistency with the PPS, it also conforms with the GP in the following respects:

i. It will allow for “other rural land uses;” ii. It is compatible with the agricultural character; iii. It is a large lot that can quite comfortably accommodate the intended development; iv. It is near the market it will serve and has excellent transportation corridors being very close to County Road 50 for convenient access for distributors and other parts of Simcoe County; v. It supports long term agriculture sustainability; [and] vi. There will be a long-term economic spinoff that will serve the needs of the rural residents and area businesses. This was reinforced by the Colville Consulting, Agricultural Impact Assessment.

Simcoe County Official Plan 2016 (“COP”)

15Mr. Dennis expanded at some length in his witness statement (Exhibit 2, paras 43-52) on this question and noted that the Sections that were particularly relevant were: 3.6.2 prime agricultural areas; 3.6.3 agricultural related uses; 3.6.4 agricultural related business and sustainability; 3.6.6 processing, diversification, conservation and natural heritage, and produce sales and marketing; and 3.6.12 permitted non-agricultural uses; he was able to conclude that the related studies, including the AIA (Exhibit 3, pg. 37), and the Settlement conforms with the COP.

Township of Adjala-Tosorontio Official Plan 2000 (“TOP”)

16Mr. Dennis generally opined that although agricultural related uses are not clearly defined in the TOP, which he stated required updating, the Settlement is consistent with and conforms to the provincial guidelines such as the PPS and GP, which provide direction related to this proposed development.

17Mr. Dennis did note that accessory uses that exist in conjunction with agricultural uses, included the following;

• A single detached residential dwelling for the farm operator;
• Residential accommodation for farm help employed full time in the farming operation provided that such accommodation is an integral part of the farm operation and cannot be severed;
• Residential accommodation for farm help employed full or part time in the farming operation or for the accommodation of elderly parents;
• Storage facilities for agricultural products, greenhouses and seasonal home grown produce stands;
• Agricultural repair facilities;
• Small scale home businesses in farm dwellings;
• Small scale home industries in separate buildings;
• Minor institutional uses when agricultural operations are included\ in the program;
• Bed and breakfast establishments and rooming or boarding houses; and
• Animal hospitals, veterinary offices and dog kennels.

18Mr. Dennis summarized his opinion that the Settlement, therefore, conforms with the TOP in that it only represents 2.5 percent of the Subject Property, which is a farm related-use, accessible, and supportive of the local agricultural community by being geographically close, consistent with the character of the area with no adverse cost impact on the Township, and ultimately creates new employment and important economic benefit to the community.

19Finally, Mr. Dennis concluded in his overall testimony that the Settlement accordingly meets all of the legislative framework and requirements previously referenced, and the Site-Specific OPA/ZBA as submitted to the Tribunal represents good land use planning and warrants the Tribunal’s concurrence.

Analysis and Findings

20The Tribunal was aware that discussions were ongoing dating back to the CMC in early December 2023, and after the Hearing date was scheduled, those discussions resulted in a reasonable Settlement of the matter. One of the most important issues addressed earlier in the process was the Applicant’s response to concerns about the original location of the development area, and after its relocation, the Applicant was able to successfully avoid any conflict with NVCA-regulated lands.

21Efforts were also made between the Parties to ensure that the nature of the proposed land use was compatible with surrounding agricultural uses. The Settlement’s instruments properly characterize that land use, allowing a reasonable degree of space for future growth of the business operation. This is achieved with the Site-Specific OPA/ZBA elements describing the farm equipment operational requirements with a facility of 1,900 m² in area and outdoor open storage allowing for a maximum area of 8,150 m², and is expected to result in added economic benefit to the community.

22Furthermore, combined with the additional requirement that the Applicants must also submit an SPA as the appropriate next step, the Tribunal concurs that appropriate safeguards have been established in the Settlement.

23Based on the uncontroverted evidence and opinion of the Applicant witness, along with submissions from Counsel on behalf of the Township and the Applicant during the Hearing, the Tribunal finds that the Settlement, which supports the OPA and ZBA Applications respectively: are consistent with the PPS; conform to the GP; and conform to the COP and the TOP. Therefore, the Tribunal allows the Appeals, and authorizes the revised draft OPA and ZBA instruments, as referenced in the Order below.

Order

24THE TRIBUNAL ORDERS that the Appeals under s. 22(7) and s. 34(11) of the Planning Act R.S.O. 1990, c. P. 13, as amended by 2728839 Ontario Limited are allowed; and

25THE TRIBUNAL FURTHER ORDERS that:

a) Official Plan Amendment No. 25 of the Township of Adjala-Tosorontio, appended below as Attachment ‘1’ is authorized; and,

b) The amendment to Comprehensive Zoning By-law Amendment No. 03-57 of the Township of Adjala-Tosorontio, appended below as Attachment ‘2’ is authorized.

26The Member will remain seized and may be spoken to through the Tribunal’s Case Coordinator should any issues arise with respect to the implementation of this Order.

“Steven T. Mastoras”

STEVEN T. MASTORAS 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.