Betrand v. Ontario (NEC), 2025 CanLII 2776

ISSUE DATE:

January 15, 2025

CASE NO(S).:

OLT-24-000576

PROCEEDING COMMENCED UNDER subsection 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N. 2

Appellant:

Daniel and Katie Bertrand

Appellant:

Hidden Bench Vineyard and Winery Inc.

Description:

The purposes of establishing an agri-tourism use on the Subject Lands

Reference Number:

N/C/2022-2023/523

Property Address:

4254 Lincoln Avenue

Municipality/UT:

Lincoln/Niagara

OLT Case No.:

OLT-24-000576

OLT Lead Case No.:

OLT-24-000576

OLT Case Name:

Betrand v. Ontario (NEC)

Heard:

August 8, 2024 by Video Hearing

Parties

Counsel

Hidden Bench Vineyard and

Marc Kemerer

Winery Inc. (“Applicant”)

REPORT DELIVERED BY JEAN-PiERRE BLAIS AND ORDER OF THE HEARING OFFICE

Link to the Order

INTRODUCTION

1A Tribunal Member constitutes a Hearing Officer for appeals under the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N. 2 (“NEPDA”).

2This matter was originally scheduled as a Case Management Conference (“CMC”) before the NEHO with respect to an appeal under section 25(5.1) of the NEPDA by the Applicant. The CMC was converted into a Merit Hearing at the request of the Applicant.

3The Applicant is appealing the conditions imposed with respect to the approval of a Development Permit by the Niagara Escarpment Commission (“NEC”). The Applicant wishes to develop a property known municipally as 4254 Lincoln Avenue, in the Town of Lincoln (“Subject Site”), to support agri-tourism activities. Specifically, the Applicant seeks to convert an existing turkey barn into an on-farm accommodation with eight to ten rooms, a farm-to-table bistro, a multi-purpose training space, a staff facility, a bar, a kitchen, and a demonstration space. The Applicant also intends to develop parking and driveway amenities, and to demolish an accessory storage building.

4The NEC approved the proposed development subject to conditions. The Applicant only has issues with the conditions imposed for the issuance of the Development Permit. The Applicant proposes conditions that would replace the conditions of approval imposed by the NEC (“Revised Conditions”).

5Daniel and Katie Bertrand withdrew their appeal on July 12, 2024. No other person sought Party or Participant status.

6The NEC informed the NEHO that it would not be participating in the proceeding. At the time, the NEC was aware of the Revised Conditions, which would be proposed by the Applicant.

7Accordingly, only the Applicant was before the NEHO.

8Notice of the CMC was sent administratively on June 10, 2024. No further notice was required.

Unavailability of the Applicant’s Expert Witness

9Shortly before the CMC, Counsel for the Applicant informed the NEHO that Patrick Robson, the Applicant’s proposed expert witness, had taken ill and would not be available to provide viva voce evidence for the foreseeable future. The Applicant requested that the NEHO consider the merits of the matter based on the Witness Statement signed by Mr. Robson on July 30, 2024, including the documents referred to in the Document Book. The Witness Statement and the Document Book were marked respectively as Exhibit 1 and Exhibit 2.

10Considering Rule 12(2) of the Ontario Land Tribunal Act, S.O. 2021, and given that no other person other than the Applicant appeared before the NEHO, the NEHO proceeded in the manner requested by Counsel for the Applicant. The NEC was advised in advance of the Revised Conditions that the Applicant was proposing at the Hearing and chose not to attend. In these unique circumstances, the NEHO finds that proceeding based on the Witness Statement will result in a fair, just, and expeditious resolution of this matter. Moreover, the Tribunal notes that Mr. Robson has over 35 years of planning experience and filed with the Tribunal a duly signed Acknowledgement of Expert’s Duty.

Are the Revised Conditions Appropriate?

11Marc Kemerer, Counsel for the Applicant, argued that the many of the conditions imposed by the NEC were inappropriate because the conditions:

• are attached to the ‘user’ and not the ‘use’;

• are subject to the entire property to an archeological assessment when the development related disturbance of the Subject Site is confined to a small area of the property;

• require an ‘agricultural planting plan’ prepared by someone other than the Applicant (who is also a farmer of record) when the planting has already been undertaken;

• require signage details when no such signage is proposed; and,

• encroach on or duplicate the jurisdiction of the Town to approve construction plans.

12The NEHO accepts the arguments of the Applicant and finds that the Revised Conditions are more appropriate, constitute good planning and are in the public interest. The NEHO notes that many of the Revised Conditions are identical to the ones imposed by the NEC but are otherwise modified to address the issues noted above. The Revised Conditions are feasible, will assure an orderly development, and uphold the objectives of the NEC and align with the purpose of the NEPDA.

13If the decision of the NEC to issue the Development Permit had included the Revised Conditions, then the decision would have been correct and would not otherwise need to be changed.

14The Applicant is the sole Party who appeared at the Hearing for the purposes of s. 25(12.1) of the NEPDA.

ORDER

15THE HEARING OFFICER CONCLUDES THAT the Niagara Escarpment Commission decision to issue a Development Permit, with the addition of the agreed terms and conditions set out in this Report in Attachment A, is correct and should not be changed. The Niagara Escarpment Commission’s decision is deemed to be confirmed with the addition of those terms and conditions, pursuant to s. 25(12.1) of the Niagara Escarpment Planning and Development Act. The appeal is dismissed.

“Jean-Pierre Blais”

JEAN-PIERRE BLAIS

HEARING OFFICER

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.

Attachment A

Conditions

Revised Conditions of Approval in support of Niagara Escarpment Commission’s Approval of Development Permit Application No. N/C/2022-2023/523

(Hidden Bench) Conditions of Approval N/C/2022-2023/523

1. Development shall occur in accordance with the Terms and Conditions of the Development Permit.

2. The Development Permit shall expire three (3) years from the date it has been issued or once the development has been completed in accordance with the Development Permit.

3. No site alteration of the existing contours of the property including the placement or stockpiling of fill (i.e., excess or imported soil) on the property is permitted with the exception of that identified within the development envelope in accordance with the Final Site Plan.

4. No vegetation shall be cut or removed from the development envelope except for that identified within the development envelope in accordance with the Final Site Plan.

5. If development has commenced under this Development Permit, any/all disturbed areas of land or soil shall be re-vegetated and stabilized to the satisfaction of the Niagara Escarpment Commission on or before the date of expiry of the Development Permit.

6. Prior to the commencement of any development, erosion, and sediment control measures (e.g., fencing, blankets, rip-rap), and/or vegetation protection fencing shall be implemented and maintained as shown on the Final Site Plan until all disturbed areas are stabilized. It is the responsibility of the landowner to implement, monitor and maintain all erosion and sedimentation control measures and vegetation protection fencing in good condition until vegetative cover has been successfully established and the development is completed.

7. Site preparation and vegetation removal shall not occur between May 31 and July 31, inclusive, of any given year, to ensure protection of habitat within bird breeding season.

8. All exterior lighting shall be designed to be minimal, subdued, of low height, and downward facing. Any signs shall not be internally illuminated.

9. All waste materials generated from the demolition shall be completely removed from the property and taken to an authorized receiving site (e.g., municipal landfill site, salvage / reclamation facility, re-used / recycled elsewhere) and not stored or buried on-site. All disturbed areas shall be immediately stabilized / rehabilitated as per the Final Site Plan.

10. The applicant shall advise the Niagara Escarpment Commission in writing if the bistro, on-farm accommodation, and program and training use is discontinued.

11. Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, an accurate and detailed Final Site Plan shall be submitted for Niagara Escarpment Commission approval.

12. Prior to the Issuance of a Development Permit by the Niagara Escarpment Commission, the Town of Lincoln Building Department shall advise the Commission that the applicant’s final building plans are in accordance with the Ontario Building Code, that the final building plans are consistent with this Development Permit approval, and that the Town is prepared to issue the requisite Building Permit.

13. Prior to the Issuance of a Development Permit by the Niagara Escarpment Commission, the Town of Lincoln shall inform that Commission that it is satisfied that its traffic requirements have been met by the Applicant.

14. Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, the landowner shall submit a Functional Servicing Brief to the satisfaction of the Town of Lincoln and that the Town shall inform the Commission accordingly.

15. Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, an Archaeological Assessment shall be carried out by a qualified and licensed professional archaeologist on the subject property. The Archeological Assessment shall be restricted to the area to be disturbed by the proposed development as defined in Development Permit N/C/2022-2023/523. The proponent shall mitigate, through conservation in place or resource removal and documentation, adverse impacts to any significant archaeological resources found. No ground disturbing activities, including but not limited, demolition, grading, landscaping, construction staging, stockpiling, shall take place on the subject property prior to the approval of the Niagara Escarpment Commission confirming that all archaeological resource concerns have met conservation requirements.

16. If previously undocumented archaeological resources are discovered, this may be an archaeological site, subject to Section 48(1) of the Ontario Heritage Act (“OHA”). Work altering the site must cease immediately and a licensed consultant archaeologist engaged to carry out an archaeological assessment to comply with Section 48(1) of the OHA. You may contact the Ministry of Citizenship and Multiculturalism (“MCM”) for guidance (at archaeology@ontario.ca).

The Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c.33 (“FBCSA”) requires that any person discovering human remains must cease all activities immediately and notify the police, and if the coroner does not suspect foul play, they shall notify the Registrar, Ontario Ministry of Public and Business Service Delivery about the burial site for its administration under the FBCSA. If the human remains are associated with archaeological resources, as above the MCM should also be notified (at archaeology@ontario.ca) to ensure compliance with the OHA.

17. Conditions 11-15 are to be fulfilled within twenty-four (24) months from the date of confirmation of the Conditions by the Minister. A reasonable request by the landowner for an extension of this deadline to a maximum of eighteen (18) months will be granted by the Niagara Escarpment Commission. Should Conditions 11-15 not be fulfilled within these timelines this conditional approval will lapse and a Development Permit will not be issued.

Advisory Notes:

a) A Development Permit does not relieve the permit holder of any other permission (e.g., Ontario Building Code, Conservation Authorities Act, Endangered Species Act, Utility Installation Permit, etc.). A Niagara Escarpment Commission Development Permit is required prior to the issuance of any other permission.

b) It is acknowledged by the applicant, as well as their successors and assigns, that any proposal that would alter the development on site as otherwise authorized in this Development Permit would require a separate Development Permit Application to the Niagara Escarpment Commission.

c) The Niagara Escarpment Commission supports the protection of the night sky from excessive lighting and recommends the applicant obtain information on the use and operation of appropriate lighting fixtures in keeping with dark sky approaches.