Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 22, 2024
CASE NO(S).: OLT-23-001248
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Margaret Thompson Subject: By-law No. 78-23 Description: To permit the rezoning of 25 acres of land, to satisfy condition 10 of Draft Plan. Reference Number: ZBA23-12 Property Address: 4701 Stirling Marmora Road Concession 9, Part of lot 13 Municipality/UT: Stirling-Rawdon/Hastings County OLT Case No.: OLT-23-001248 OLT Lead Case No.: OLT-23-001248 OLT Case Name: Thompson v. Stirling-Rawdon (Town)
PROCEEDING COMMENCED UNDER subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Township of Stirling-Rawdon Request for: Request for Dismissal Heard: April 12, 2024, by Video Hearing (“VH”)
APPEARANCES:
| Parties | Counsel/Agent* |
|---|---|
| George Thompson and Margaret Thompson (“Appellants”) | George Thompson* representing both himself and Margaret Thompson |
| 26937773 Ontario Inc. (“Applicant”) | Did not Participate |
| Township of Stirling-Rawdon (“Township”) | Jennifer Savini |
MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON April 12, 2024 AND ORDER OF THE TRIBUNAL
Motion to dismiss
1This is a Motion brought by the Township to dismiss the Appeal. The basis of the Motion is the contention that the Notice of Appeal does not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the Appeal, pursuant to s. 34(25) of the Planning Act (“Act”).
2The Appeal arises following the passing of Zoning By-law No. 78-23 (“ZBA”), which purports to permit the rezoning of 25 acres of land Municipally known as 4701 Stirling Marmora Road (the “Subject Lands”) to satisfy a condition of an approved Draft Plan of Subdivision. This Subdivision is planned to accommodate 13 residential lots.
3The Appellants’ appeal the passing of the ZBA out of a concern for its impact on their dairy farm operation, and, in particular, potential conflicts (i.e., nuisance complaints) between their farm operation and the new residences proposed to be located across the road. The Appellants have listed non-compliance with Minimum Distance Separation (“MDS”) requirements between their existing dairy barn and the proposed development, as well as similar concerns respecting planned future construction of a new dairy barn on their property, as grounds for their Appeal.
4In bringing their Motion, the Township contends that MDS considerations do not apply because the proposed development is entirely within the Springbrook Hamlet Designation (“Hamlet Designation”) of the Hastings County Official Plan (“County OP”). Consequently, based upon such a contention, the Township submits that the Notice of Appeal does not disclose the requisite land use planning grounds.
5Jason Budd, Senior Planner with the County of Hastings, was duly qualified and provided evidence in support of the Motion. It was his opinion that the Subject Lands are entirely within the boundary of the Hamlet Designation, therefore MDS I and MDS II considerations do not apply. It is noteworthy that he also acknowledged that the Subject Lands do in fact fall within the Appellants’ MDS calculation-radius and, as a result, MDS issues could arise but for the Hamlet Designation of the Subject Lands.
6In coming to his conclusion that MDS issues do not apply, Mr. Budd cited s. 5.36 of the Township’s Zoning By-law No. 320-03, which states that “Lands within the Urban and Hamlet land use designations of the Hastings County Official Plan are exempt from the MDS I formula from existing facilities”. He also cited policies 1.8.2 and 2.5.3.4 of the County OP as informing his opinion about the boundary of the Hamlet Designation.
7Regarding MDS II considerations, Mr. Budd testified that approval of the requested ZBA makes no difference from a MDS standpoint, because the Appellants will have to appropriately distance any new livestock facilities from the Hamlet Designation boundary, regardless of an approval of the ZBA. In other words, the Applicant is not proposing to expand the Hamlet Designation, from which the MDS II measurements are calculated, so the subject ZBA has no bearing on the Appellants’ future plans to build a new livestock facility.
8Through the above-described testimony, the Tribunal finds that the question of whether or not the Subject Lands fall entirely within the Hamlet Designation is a critical fact to determine the present Motion – given that the application/non-application of both MDS I and MDS II considerations are dependant upon the location of the Hamlet Designation boundary limits.
9Despite Mr. Budd’s professed certainty about the inclusion of the entire Subject Lands within the boundary of the Hamlet Designation, the Appellant elicited evidence that suggests such a conclusion is a matter of interpretation. Through cross-examination of Mr. Budd, the Appellant drew the Tribunal’s attention to the mapping of the County OP, including illustration of the boundaries of the Hamlet Designation. The Tribunal finds, upon looking at the mapping, that the boundaries are less clear than what was stated by Mr. Budd. In fact, the Tribunal finds, the Hamlet Designation boundary on the mapping appears to bisect the Subject Property.
10Mr. Budd nevertheless remained steadfast that the entirety of the Subject Lands should be considered within the intended Hamlet Designated area, again citing policies 1.8.2 and 2.5.3.4 of the County OP in support of his conclusion (which, he opined, directs that Hamlet Designation boundaries should follow property lines, despite what the maps may show). He explained that he reached his conclusion because the map shows that most of the Subject Lands fall within the Hamlet Designation.
11On this point, the Tribunal was not shown any policy which expressly states that the entire lands of any particular parcel shall fall completely within a Hamlet Designation if part or most of it falls within it. The Tribunal therefore queried Mr. Budd if policy 1.8.2 and 2.5.3.4 of the County OP could have the opposite effect – to exclude an entire parcel of land from the Hamlet Designation if part of it falls outside the area’s boundaries. The question was asked in the context of considering the wording of policy 1.1.3.8 of the Provincial Policy Statement (“PPS”), which states:
A planning authority may identify a settlement area or allow the expansion of a settlement area boundary only at the time of a comprehensive review and only where it has been demonstrated that:
d) the new or expanding settlement area is in compliance with the minimum distance separation formulae;
12In response, Mr. Budd confirmed that an entire parcel could be excluded from an area designation if part of it falls outside the designation boundaries – at least in theory. However, he nevertheless opined that this is not the situation in the present case.
MOTION FINDINGS AND CONCLUSION
13Upon Mr. Budd’s evidence, and despite him remaining adamant that the Subject Lands should be treated as being entirely within the Hamlet Designation, and therefore MDS I and/or MDS II considerations do not apply, the Tribunal finds that there remains a legitimately contested threshold question for the Tribunal to decide; namely, whether the Subject Lands are entirely, partly, or not at all within the Hamlet Designation of the County OP.
14While the Tribunal was provided extensive evidence from Mr. Budd on this question, as part of the present motion, the present Motion to Dismiss is not supposed to act as a mini-Hearing on this issue. The question to decide presently, is whether the Notice of Appeal discloses any apparent land use planning ground upon which the Tribunal could allow all or part of the Appeal. Given the relative uncertainty with respect to the boundaries of the Hamlet Designation, the Tribunal finds that the Notice of Appeal does disclose the requisite planning grounds.
15Additionally, while the stated grounds of Appeal are clearly focused on MDS considerations, the Tribunal finds that such grounds also naturally raise issues about more general policy considerations respecting agriculture and the protection of agricultural resources. While such general policy considerations were not expressly raised by the Appellants in their Notice of Appeal, the Tribunal finds that such considerations are inferred, and may conceivably form part of an Issues List, given the Appellants’ obvious stated concern about the potential negative impacts of the proposed development on their present and future farm operations.
Case Management matters
16With this being the first Hearing for the matter, the Tribunal was obliged to deal with some Case Management responsibilities. This includes review of the service of the Notice of the Hearing, which the Tribunal finds is adequate. The Tribunal also confirmed that no one attended the Hearing seeking either Party or Participant status.
Scheduling of a CASE MANAGEMENT CONFERENCE
17Given the above findings, and consequential outcome that the Appeal is allowed to proceed, the Tribunal elects to set a Case Management Conference (“CMC”). The Tribunal also finds a CMC necessary because the Appellants indicated that they expect to seek Counsel to assist them with the remainder of the proceedings. The Tribunal finds that such Counsel will need to participate in the production of a draft Procedural Order, and confirm availability for hearing dates, so a CMC is necessary to provide Counsel with an opportunity to coordinate such matters with opposing Counsel and, eventually, the Tribunal.
18Upon request of the Parties, the Tribunal set a CMC Hearing commencing on Tuesday, May 28, 2023, at 10 a.m. by Video Hearing. No further Notice is required.
19Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
GoToMeeting: https://global.gotomeeting.com/join/927921077
Access Code: 927-921-077
20Parties are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html
21Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll-Free) 1-888-299-1889 or +1 (647) 497-9391. The access code is as indicated above.
22Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the Hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
Order
23The Tribunal Orders that:
- the Town’s Motion to dismiss the Appeal, on the basis that the notice of appeal does not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal, is dismissed; and
- the date and particulars of a subsequent Case Management Conference are set out above.
24The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.
“K.R. Andrews”
K.R. ANDREWS 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.