Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 02, 2024

CASE NO(S).: OLT-23-001306

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Jacqueline Westcott

Subject: By-law No. 2023-64

Description: To permit the establishment of a commercial dog kennel

Reference Number: Z10-2022

Property Address: 397531 10th Concession

Municipality/UT: Meaford/Grey

OLT Case No.: OLT-23-001306

OLT Lead Case No.: OLT-23-001306

OLT Case Name: Westcott v. Meaford (Municipality)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Stephan Olschewski

Request for: Request for Directions

Heard: May 9, 2024 by video hearing

APPEARANCES:

Parties	Representative
Jacqueline Westcott	Jeffrey Westcott
Maura Reilly	Stephen Olschewski
Stephen Olschewski	Stephen Olschewski

DECISION DELIVERED BY A. SNOWDON AND JEAN-PIERRE BLAIS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an Appeal filed pursuant to s. 34(19) of the Planning Act, R.S.O. 1990, c. P.13 (“Act”) by Jacqueline Westcott (“Appellant”) regarding the decision of the Municipality of Meaford (“Municipality”) to approve Zoning By-Law Amendment No. 2023-64 (“ZBA”) to allow a commercial dog kennel on the property known municipally as 397531 Concession 10 (“Subject Property”). The Appellant is the owner of lands immediately to the south of the Subject Property.

2Maura Reilly and Stephen Olschewski (“Applicants”) had applied for the ZBA to allow breeding, training, and housing of up to 20 dogs. They made this application when it became apparent that their operations were not in conformity with municipal requirements and land use planning regulations. The ZBA also requested relief from the 100-metre (“m”) interior lot setback on the south side to 11 m. Moreover, the ZBA proposed to increase the size of the building envelope to allow a larger building envelope of 50 x 110 m.

3Concurrently, the Applicants had requested an amendment to the Official Plan of the Municipality (“OPA”). The OPA was not appealed and came into force on April 16, 2024. The approved OPA re-designates the Subject Property from “Rural” to “Rural subject to Special Exception Policy”. Special Policy B2.3.6 allows a kennel on the Property with a minimum setback of 11 m from the south side lot line abutting the Appellant’s lands.

4Pursuant to Policy B2.3.4.3 of the Municipality’s Official Plan (“Municipal OP”) which deals specifically with Commercial Dog Kennels, the Applicants will be required to enter into a site plan agreement in accordance with Policy E1.4 of the Municipal OP. A site plan and site plan agreement have not yet been filed with the Municipality. A draft site plan has been proposed.

NOTICE

5There were no issues raised with service of Notice of the Hearing. The Tribunal was in receipt of the Affidavit of Service sworn on April 12, 2024, which was marked as Exhibit 1.

PARTY AND PARTICIPANT STATUS

6The Tribunal noted at the start of the hearing that the Applicants were not yet Parties to the appeal. Considering s. 34(24.1) and 34(24.2) of the Act and given Maura Reilly’s and Stephen Olschewski’s direct interest in these appeals, as well as the consent of the Appellant, the Tribunal found that there were reasonable grounds to add both Applicants as Parties to the proceedings and so directed.

7Stephen Olschewski acted as Maura Reilly’s representative.

8Two participant status requests were received by the Tribunal. Nick Pedicone and Edward McTaggert submitted statements outlining their concerns for this appeal including increased traffic, roadside litter, and noise. The Tribunal directed that they be added as Participants.

9The Municipality and the County of Grey (“County”) did not appear.

MOTION TO DISMISS

10Prior to the hearing, the Applicants had filed a motion to dismiss the appeal pursuant to s. 17(45) of the Act. Section 17(45) concerns dismissal of an appeal of an Official Plan amendment. Given that the OPA was final and not subject to appeal, the Tribunal rejected the motion to dismiss and focused on considering the appeal of the ZBA.

ISSUE

11On this de novo appeal, the issue for the Tribunal is whether the ZBA had regard to matters of provincial interest set out at s. 2 of the Act, was consistent with the Provincial Policy Statement 2020 (“PPS 2020”) as set out at s. 3(5) of the Act, conformed to the County’s Official Plan (“County OP”) and the Municipal OP as set out in s. 24(1) of the Act.

12The key issue as between the Parties is whether the ZBA conforms to the Municipal OP which specifically requires that “the noise emanating from the kennel will not have an adverse impact on the enjoyment of the neighbouring property” (Policy B2.3.4.3).

ANALYSIS

13At the hearing, the Tribunal heard evidence from the following individuals:

1. Denise McCarl, the Manager of Planning Services for the Municipality, testified under summons by the Applicants. Planner McCarl was qualified by the Tribunal to provide expert opinion evidence with respect to land use planning and provided detailed evidence set out in the staff’s planning report considered by the Municipal Council prior to the adoption of the ZBA. The planning report which recommended, amongst other things, approval of the ZBA was marked as Exhibit 2;

2. Mark Smith, an Occupational Hygienist for GTA Environmental, provided evidence on behalf of the Applicants. Witness Smith was qualified by the Tribunal to provide expert opinion evidence with respect to noise and noise control;

3. Todd Busch, an Acoustic Consultant with Veneklasen Associates, provided evidence on behalf of the Appellant. Witness Busch was qualified by the Tribunal to provide expert opinion evidence with respect to noise and acoustic matters; and,

4. The Appellant provided lay evidence including presenting videos of barking dogs on the Subject Property.

Alignment with Land Use Planning Policy

14In Planner McCarl’s professional opinion, the ZBA had regard to matters of provincial interest in s. 2 of the Act, was consistent with PPS 2020, conformed to the County OP and conformed to the recently amended Municipal OP. The Appellant provided no contrary evidence or expert opinion evidence on land planning issues, except with respect to the noise issue considered below. The Tribunal accepts the evidence of Planner McCarl.

15Submission of a noise study is recommended by the Municipal OP policies. The Applicants submitted a noise study by Witness Smith.

Noise Emanating from the Proposed Kennel

16The Appellant argued that the noise currently emanating from the dog barking is excessive and does not believe that the situation will improve. Three videos, taken by the Appellant, were shown to and heard by the Tribunal. It is the Tribunal’s finding that the noise in the video was not unduly excessive, even in the absence of the noise mitigation measures proposed by the Applicants.

17The Applicants submitted that the noise of the proposed kennel will not be excessive due to the significant mitigation strategies they intend to implement. The Applicants argued that multiple mitigation strategies will be used, some under a site plan agreement and others which may be controlled through kennel licensing. The Applicants intend to use their existing 251 square metre (“m²”) accessory building as a training area for dogs. The proposed new kennel building would be constructed to the north of the training facility (behind the existing dwelling). The previous dog run along the south property line was removed and will be relocated to the area adjacent to the new kennel. The Applicants are also amenable to using the services of an acoustic noise engineer and to follow their recommendations through the site plan agreement process.

18The potential noise mitigation strategies submitted by the Applicants, Witness Smith, and Witness Busch include:

1. Site plan agreement noise mitigation options: i. Moving the kennel building location further north away from the Appellant’s property ii. Rotating the kennel building so that the building acts as a sound barrier iii. Using building materials that reduce sound transmission for indoor enclosures iv. Air conditioning the facilities so that doors and windows can remain closed v. Moving the dog run further north (away from the property south line) vi. Covering the dog run with a roof to attenuate sound transmission

2. Kennel licensing noise mitigation options: i. Limiting hours of operation ii. Limiting pick-up/drop-off times iii. Using bark collars iv. Using muzzles

19The Tribunal focused, for the purpose of this Appeal, on the proposed mitigation measures that would be implemented under the site plan control.

20Witness Smith conducted noise testing on the Subject Property to determine noise levels at distances from the kennel. In their professional opinion, the noise from the barking dogs would be below the threshold established by Environmental Noise Guideline – Stationary and Transportation Sources – Approval and Planning (“NPC-300”).

21Witness Smith opined that the ZBA conforms to the Municipal OP with respect to noise and that the noise emanating from the Subject Property will not have an adverse impact on the enjoyment of the neighbouring property. This conclusion is based on the implementation of the proposed mitigation measures through site plan control.

22Witness Busch also conducted noise testing near the Subject Property. It is Witness Busch’s expert opinion that the noise emanating from the Subject Property will exceed the NPC-300 limits but will not necessarily have an adverse effect on the enjoyment of the neighbouring property. They were not able to definitively state if the suggested mitigation options would keep noise under the NPC-300 limits. Witness Busch had not seen the draft site plan.

23Given the contrary opinions of Witness Smith and Witness Busch, the Tribunal prefers the opinion of Witness Smith. Witness Smith’s evidence is more compelling because it is based on a more in-depth appreciation of the land use mitigation measures proposed by the Applicants to reduce any noise impact on the adjacent neighbours. By contrast, Witness Busch’s evidence focused more on the current use of the Subject Property, including the current location of the exterior dog run and the training hall. Accordingly, the Tribunal is not persuaded that the noise emanating from the proposed configuration of the kennel will have an adverse impact on the enjoyment of the neighbouring properties. The changes proposed to the Subject Property and details that are implemented through site plan control are appropriate to mitigate potential noise issues. The Tribunal finds further support for this conclusion based on restrictions provided in the ZBA itself, which will limit the scale of the commercial kennel activities. The ZBA limits the number of dogs (maximum of 20) and limits the number of non-resident full-time and part-time employees to four and two respectively.

CONCLUSION

24Based on the above, and considering that no planning evidence was called by the Appellant, the Tribunal concludes that the ZBA has regard to matters of provincial interest provided at s. 2 of the Act, is consistent with PPS 2020, and conforms to both the County OP and the Municipal OP (including Policy B2.3.4.3 with respect to noise), constitutes good land use planning and is in the public interest. Accordingly, the appeal should be dismissed.

25The Tribunal notes that, through the site plan agreement process, the Applicants will have to continue to demonstrate that the design and configuration of the site will be such that the noise emanating from the kennel will not have an adverse impact on the enjoyment of the neighbouring properties.

ORDERS

26THE TRIBUNAL ORDERS THAT:

1. The Motion to Dismiss is denied, and

2. The appeal is dismissed.

“A. Snowdon”

A. SNOWDON MEMBER

“Jean-Pierre Blais”

JEAN-PIERRE BLAIS 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.