Monck v. Dutton Dunwich/Elgin (Town), 2024 CanLII 48179

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 22, 2024

CASE NO(S).: OLT-24-000124

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

Applicant and Appellant: Greg Monck

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the change of rezoning from “Hamlet Residential with Exception (HR-1) Zone” to “Hamlet Residential with Exception” (HR-6) to allow agricultural uses on subject lands.

Reference Number: ZBA 11/23

Property Address: 9347 Currie Road

Municipality/UT: Dutton Dunwich/Elgin

OLT Case No.: OLT-24-000124

OLT Lead Case No.: OLT-24-000124

OLT Case Name: Monck v. Dutton Dunwich/Elgin (Town)

Heard: May 7, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel / Representative*

Cynthia and Gregory Monck Municipality of Dutton Dunwich

Gregory Monck Amy Dale*

MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID BROWN AND CARRIE HARDY ON MAY 7, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1The Tribunal convened a Case Management Conference (“CMC”) in respect of an appeal filed by Cynthia and Gregory Monck (the “Appellant”) pursuant to s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended ( “Act”), against the refusal of an application to Amend the Zoning By-law (“ZBA”) by the Municipality of Dutton Dunwich (“Municipality”). The ZBA sought to permit agricultural uses in addition to the residential uses currently permitted on the lands located a 9347 Currie Road (“Subject Lands”).

2An Affidavit of Service sworn by Tara Kretschmer on March 8, 2024, attesting to the giving of notice for this proceeding as directed by the Tribunal, was filed with the Tribunal and marked as Exhibit 1.

3Mr. Monck explained that the Municipality does not recognize the legal non- conforming rights that he submits apply to the Subject Property. The Municipality recommended that he rezone the Subject Property and that process would address the requested use and respond to concerns raised by the neighbours. Mr. Monck filed the ZBA as recommended by the Municipality. Subsequently, the Council of the Municipality considered and refused the requested ZBA on January 10, 2024. Mr. Monck filed an Appeal of the Municipality’s decision on January 17, 2024.

4Mr. Monck advised that he purchased the Subject Property in 1996 after having met with municipal staff of the then Township of Dunwich (the “Township”). He confirmed that the only use permitted on the Subject Property at that time was an agricultural use. He advised that he had further confirmed with Township staff that livestock are permitted subject to the Provincial Guidelines restricting the number of “head per acre”. The lands were the subject of an H, Holding zone designation applying to the zoning, which Mr. Monck explained he had been told was in place to ensure that any development of the land conformed to the policy direction of the Township. The Subject Property has been used since the purchase as a tree farm and Mr. Monck explained that he grows trees from seedlings and sells the trees to customers once the trees reach between six feet and 12 feet in height. The operation includes the delivering and planting of the trees at customers’ property.

5Mr. Monck confirmed that the H, Holding zone has been removed from the property, explaining that he is building a house on the Subject Property and was required to remove the H, Holding zone to allow for the residential use provisions to apply which, in turn, permit a dwelling on the property.

6Ms. Dale noted that the Subject Property is located within a Hamlet Residential zone which includes a provision that requires a minimum setback of 85 metres for a residential dwelling from a livestock barn. At the time of Mr. Monck’s application to build his new home, the barn structure on the Subject Property was not being used as a livestock barn and therefore the setback was not applied.

7In response to a question from the Tribunal, the Municipality’s Planner advised that the Subject Lands are designated Hamlet in the Official Plan and are located within a Settlement Area and that, as a result, the Minimum Distance Separation requirements of the Ontario Ministry of Agriculture, Food and Rural Affairs do not apply in this instance.

8After a discussion with respect to Mr. Monck’s position that the Subject Property has legal non-conforming status, the Tribunal suggested that Mr. Monck would be well served to engage Legal Counsel to address the issue with the Municipality. The Tribunal explained that its authority does not include the determination of legal non-conforming status. This matter is addressed in the Act and where differences of opinion cannot be resolved at the local level, being the Municipality in this instance, it may be a matter appropriately dealt with by the Courts. Legal Counsel would be beneficial to Mr. Monck should he wish to pursue that course of action.

PARTICIPANT STATUS REQUESTS

9The Tribunal received five requests for Participant Status, which were marked as Exhibits as set out below:

1. Participant Status Request Form from Mike Maginn (Exhibit 2);
2. Participant Status Request Form from Zoe der Kinderen (Exhibit 3);
3. Participant Status Request Form from Rick Schnarr (Exhibit 4);
4. Participant Status Request Form from Deborah and Alexander Milne (Exhibit 5);
5. Participant Status Request Form from Terri Tofflemire (Exhibit 6).

10Mr. Monck objected to the requests for Participant Status, submitting that the requestors collaborated in the preparation of their statements which are intended as a form of intimidation. He contends that the statements proffered do not offer any legal grounds on which the Tribunal could base a decision.

11The Municipality had no objections to the requests for Participant Status.

12The Tribunal, having reviewed the Participant Status Request Forms and the Statements contained therein, is satisfied that the requestors have an interest in these proceedings and raise issues that warrant consideration by the Tribunal with respect to the Appeal. The Tribunal grants the five requests for Participant Status.

SETTLEMENT OPPORTUNITIES

13The Tribunal explained that, going forward, Mr. Monck should address any correspondence with the Municipality to Ms. Dale, the Municipality’s Solicitor. Further, as the two Parties negotiate an Issues List (“IL”) for inclusion in a draft Procedural Order (“PO”), the Tribunal encouraged the Parties to explore opportunities for Settlement.

PROCEDURAL ORDER

14The Tribunal reviewed the PO and identified paragraph 18 as being non-typical of the Tribunal’s recommended PO. Ms. Dale explained that there was uncertainty with the Issues identified by Mr. Monck and that paragraph 18 had been revised as a place holder until the IL is finalized. She advised that paragraph 18 will be revised as per the Tribunal recommended PO.

15In consideration of the IL, the Tribunal explained that issues are to be framed in a neutral context. The Tribunal expects that opposing Parties are capable of answering the question posed in an issue in a manner that supports their position and may challenge the opposing position. Further, Issues must be matters that are within the Tribunal’s jurisdiction to adjudicate.

16The Tribunal suggested that the Issues identified by Mr. Monck may be relevant in setting context for the consideration of the Appeal; however, many of the issues he has listed are not matters that the Tribunal can determine. Mr. Monck was directed to work with the Municipality to negotiate an appropriate IL.

17In reviewing the Issues proposed by the Municipality, the Tribunal characterized the Issues as being very broad in nature and requested that the Municipality narrow the scope of the Issues by referencing specific policies or provisions rather than the entire policy document. With respect to Issue 6 on the Municipality’s IL, relating to legal non-conforming status, the Tribunal reiterated that this matter is not within the Tribunal’s jurisdiction to adjudicate and it is not a proper issue for an IL.

18It was explained that, with the finalization of the IL, the Parties will then understand what type of evidence will be required to address the Issues and the qualification of the witnesses to be put forward before the Tribunal.

19The Tribunal directed that the Parties work together to create a final IL and that a further CMC be scheduled to review and approve the IL and PO.

20The Tribunal scheduled a further CMC to be held on Monday, August 19, 2024, at 10 a.m., by videoconference.

21Parties and Participants are asked to log in to the Hearing by video at least 15 minutes before the start of the event to test their video and audio connections:

GoTo Meeting: https://global.gotomeeting.com/join/687587165

Access Code: 687-587-165

22Parties and Participants 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.

23Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling in to an audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is 687-587-165.

24Individuals 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 event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

25The Parties were directed to submit a draft PO including the IL at least 10 days prior to the CMC.

26Participants were advised that, should they wish to submit a Participant Statement other than that already included with the Participant Status Request Form, the PO will provide a date for submission. Participants were encouraged to work together to provide a single Participant Statement that focusses on the matters within the Tribunal’s purview, and Participants were also advised that it is not the quantity of Participant Statements received but the quality of the content of a Participant Statement that the Tribunal considers.

27The Panel is not seized of this matter, however, if necessary, may be available for Case Management, subject to availability in the Tribunal’s calendar.

ORDER

28THE TRIBUNAL ORDERS that the following requestors are granted Participant status in these proceedings:

1. Mike Maginn;
2. Zoe der Kinderen;
3. Rick Schnarr;
4. Deborah and Alexander Milne;
5. Terri Tofflemire.

29THE TRIBUNAL FURTHER ORDERS the Parties to submit a draft Procedural Order including the Issues List at least 10 days prior to the Case Management Conference scheduled to proceed Monday, August 19, 2024.

30The Tribunal Orders the directions set out in this Decision.

“David Brown”

DAVID BROWN

MEMBER

“Carrie Hardy”

CARRIE HARDY

VICE-CHAIR

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.