Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 01, 2024
CASE NO(S).: OLT-23-000660
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Thornbury Acres Holding Inc.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit a 37-unit residential farm co-operative
Reference Number: P3266
Property Address: Concession 8, Part Lot 27, 16R-11537, Parts 2 and 3; Concession 8, East Part Lot 27
Municipality/UT: Town of Blue Mountains / County of Grey
OLT Case No.: OLT-23-000660
OLT Lead Case No.: OLT-23-000660
OLT Case Name: Thornbury Acres Holding Inc. v. Blue Mountains (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Thornbury Acres Holding Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit a 37-unit residential farm co-operative
Reference Number: P3266
Property Address: Concession 8, Part Lot 27, 16R-11537, Parts 2 and 3; Concession 8, East Part Lot 27
Municipality/UT: Town of Blue Mountains / County of Grey
OLT Case No.: OLT-23-000661
OLT Lead Case No.: OLT-23-000660
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Thornbury Acres Holding Inc.
Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description: To permit a 37-unit residential farm co-operative
Reference Number: 42CDM-2022-11
Property Address: Concession 8, Part Lot 27, 16R-11537, Parts 2 and 3; Concession 8, East Part Lot 27
Municipality/UT: Town of Blue Mountains / County of Grey
OLT Case No.: OLT-23-000662
OLT Lead Case No.: OLT-23-000660
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Corporation of the County of Grey
Request for: Request for Directions
Heard: January 17, 2024 via video hearing
APPEARANCES:
Parties
Counsel
County of Grey
Erroll Teslan
Town of Blue Mountain
Bruce Engell
Thornbury Acres Holdings Inc.
Paul DeMelo
DECISION DELIVERED BY SHARYN VINCENT AND ORDER OF THE TRIBUNAL
1A Motion was brought by the County of Grey (“County”) seeking a determination that an amendment to the Official Plan of the County is required in order to permit the development proposed by Thornbury Acres Holdings. Inc. (“TAHI”), which is seeking approval of amendments to the Official Plan and Zoning By-law of the Town of Blue Mountain (“Town”), together with an application for a proposed vacant land condominium, in order to permit a 37-unit residential farm cooperative.
2All Parties agree that a residential farm cooperative is specifically a permitted land use within the Rural designation in the County Official Plan. However, the term is not defined, and because the TAHI proposed to implement and operate the proposed development pursuant to site specific Planning Act instruments, together with a declaration, binding the residential and agricultural uses, created pursuant to the Condominium Act as a vacant land condominium, the County and Town have separately but similarly taken the position that the use is not a bona fide co-operative, and therefore, requires an amendment to the County Official Plan in order to be permitted within the Rural designation.
3The County and Town contend that the Condominium Act and Co-operative Corporations Act respectively deal with very distinct forms of tenure, and that because the Regulations passed pursuant to each stipulate how and when the term co-operative or condominium is to be used when registering the creation of a corporation pursuant to either statute, the proposal subject of the Motion cannot be a cooperative if it is a vacant land condominium, and therefore, cannot proceed without first seeking an amendment to the County Official Plan.
4TAHI dispute the contentions of the County and Town and argue that both are improperly conflating and importing the requirements of the Co-operative Corporations Act (and Regulations) to fill the gaps in the Official Plan which incorporates no definition or reference to the Co-operative Corporations Act anywhere in the approved Official Plan, and certainly nowhere in s. 5.4.2 of the Official Plan which set out the policies to be considered when reviewing permitted uses pursuant to s. 5.4.1, which specifically lists a residential farm cooperative as being permitted in the Rural designation.
5The County, with the support of the Town, is therefore seeking an Order from the Tribunal granting the Motion on a finding that an amendment to the County Official Plan is required, and therefore, the Hearing scheduled for Monday, August 12, 2024, to hear the appeals filed as a result of the failure of the Town to make decisions with respect to the applications amend the Official Plan and Zoning By-law, and vacant land condominium, be adjourned.
FINDINGS
6The Tribunal, having heard the oral submissions and reviewed all of the materials filed, is not persuaded by the position or the arguments advanced by the County or the Town, and therefore orders that the Motion be dismissed.
7The evidence before the Tribunal from the County draws the Tribunal to the provision of s. 5.4.2 8) which states:
Innovative forms of rural development including residential farm cooperatives, agri-miniums, resource based recreational uses, recreation or tourist based rural clusters (e.g.) cottages, campgrounds, or a similar form of development under common ownership on large lots which would meet the Ontario Building Code and servicing requirements, may be considered for approval subject to the following criteria
8Throughout the clause, a number of terms are expressed in italics, which is a typical practice adopted to assist the reader of planning documents, and which universally indicates that such a term is defined within the document. Residential farm cooperatives is not one of the uses italicized, perhaps not surprisingly as it is considered by the authors to be a desirable, innovative form of development not previously existing within the land use permissions of the County Official Plan.
9The cited subsection similarly specifically references the Ontario Building Code as the governing provincial jurisdiction establishing minimum lot size for residential development on private servicing in rural areas, which is instructive in a land use planning document as it in fact stipulates a minimum lot area, which is regulated through a provision in a zoning by-law.
10TAHI, citing Niagara River Coalition v. Niagara-on-the-Lake (Town), 2010 ONCA 173 contend that in the absence of a similar reference to the Co-operative Corporation Act, a defacto requirement cannot now be read into the land use permissions. There is no stipulation on the face of the document requiring a residential farm cooperative to be constituted pursuant to the Co-operative Corporations Act, and in any event, the Tribunal agrees with the submissions of TAHI that the Co-operative Corporations Act regulates governance, not land use, the regulation of which is the purpose and function of an official plan.
11All Parties, when asked by the Tribunal as to what authority is conferred to the approval authorities, or the Tribunal standing in their stead, under the Co-operative Corporations Act, agreed that there is no jurisdiction at any level to intervene in the constitution, regulation or registration of the co-op itself, other than through the tools provided pursuant to the Planning Act, which in this instance, TAHI is advancing as a vacant land condominium.
12All other references drawn by the County rely upon development criteria or approval processes set out in the Official Plan. Challenges to the applicability or interpretation of these provisions are all matters appropriately the subject of a merit hearing before the Tribunal.
13Therefore, the Tribunal is not persuaded by the apprehensions of the County in its capacity as a regulator of land uses, when in fact TAHI has voluntarily applied to be subject to a level of control held by the County through the vacant land condominium approval and registration processes which they otherwise, in their own admission, would not and could not secure under the Co-operatives Corporation Act.
ORDER
14THE TRIBUNAL THEREFORE makes a finding that no amendment to the Official Plan is required to permit the proposed residential farm cooperative and that the Motion brought by the County, and supported by the Town of Blue Mountain, is dismissed.
“Sharyn Vincent”
SHARYN VINCENT
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.