ONTARIO
NORMAL FARM PRACTICES PROTECTION BOARD
Kocsis v Town of Lincoln
2001 ONNFPPB 15
DATE OF DECISION:
2001-11-14
2011-04
STATUTE:
Farming and Food Production Protection Act 1998
HEARING:
BETWEEN:
Steve Kocsis -- Applicants
and
Corporation of the Town of Lincoln -- Respondents
THIS MOTION, Made by the Respondent for
a. an order determining that the Normal Farm Practices Protection Board does not have jurisdiction to adjudicate the Applicant's application;
b. an order dismissing the Applicant's application herein;
c. the Responding Party's costs of this motion; and
d. such further and other relief as counsel may advise and this honourable Board may permit; was heard on the October 23rd , 2001 at the Municipal Building of the Town of Lincoln. The motion was heard orally.
BACKGROUND
The property which is the subject matter of this Application is a 5.14 acre property located at 4016 Mountain Street, being Part of Lot 17 and 18, Concession 4, in the former Township of Clinton, now in the Town of Lincoln, and is owned by the Applicant, Steve Kocsis, whose business is registered as 1071025 Ontario Inc. (the "Property").
The Property contains a single detached residential dwelling and a barn in which a winery is operated by the Applicant.
The Property is designated "Residential" in the Town of Lincoln's current Official Plan (the "Official Plan") and is zoned "Residential Development (RD)" under Zoning By-law No. 93-14-Z 1, as amended (the "Zoning By law").
As applied to the Property, the RD zoning permits the existing single detached dwelling and any other uses which were lawfully established prior to the enactment of the Zoning By-law. The winery located in the barn was established in 1999, after the enactment of the Zoning By-law, and therefore is not permitted use.
The By-law, which was passed pursuant to section 34(1) of the Planning Act R. S. O. 1990 (the "Planning Act"), governs and regulates the land uses and the use of buildings and structures within the Town of Lincoln.
The Applicant submitted an application for a minor variance from the provisions of the By-law to the Committee of Adjustments primarily for the purpose of converting 449 square feet of the basement floor of the residential dwelling into a retail wine shop, in order to allow for the establishment of a retail use upon the Property. The Committee of Adjustment application was refused.
The Applicant submitted a Temporary Use Application for the purpose of authorizing a Temporary Use By-law which would allow the Applicant to establish a retail use upon the Property. The application was granted on October 11th , 2001.
On July 17th, 2001 the Applicant filed an application with the Board under Section 6 of the FFPPA for a determination as to whether a practice is a normal farm practice for purposes of the non-application of a municipal bylaw, namely By-law 93-14-Z1, of the Corporation of the Town of Lincoln.
On July 24th , 2001 Mr G. Edward Oldfield the then Chair of the NFPPB ordered that a pre-hearing conference be held to determine the issues and to clarify other matters relating to a hearing.
A pre-hearing conference was held on August 31st, 2001 at the Municipal Building of the Town of Lincoln and issues relating to a hearing were determined.
On October 16th, 2001, the Respondent served a notice of this motion returnable on October 23rd , 2001.
ISSUE FOR DETERMINATION
The issue requiring determination on this motion is whether the Board has jurisdiction to adjudicate the application of the Applicant.
POSITION OF THE PARTIES
APPLICANT
The Applicant submits that:
The establishment of a retail wine outlet in the basement of the residence on the Property is a normal farm practice.
Section 6 of the FFPPA gives to the Board authority to adjudicate issues involving municipal by-laws that restrict a normal farm practice.
The Board, therefore has jurisdiction to adjudicate the Applicant's application.
RESPONDENT
The Respondent submits that:
The ability to regulate the uses of land falls within the jurisdiction of the Town of Lincoln under Section 34 of the Planning Act.
A Zoning By-law which prohibits the establishment of a retail wine store on a property which is zoned for Residential purposes does not fall within the jurisdiction of Section 6(1) of the FFPPA. Establishing a retail use is a land use matter and Section 6(1) of the FFPPA does not and cannot prohibit a municipality from exercising its legitimate control over land use matters.
The Board therefore has no jurisdiction to adjudicate the application of the Applicant.
REASONS FOR DECISION
The purpose of the Farming and Food Production Protection Act is to protect farming and food production carried on as normal farm practices. However, it is not every normal farm practice that is protected by Section 6(1)of the Act from municipal by-laws that would restrict those practices.
Section 6(1) states:
"No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation."
The only normal farm practices protected are those carried on as part of an
"agricultural operation." (emphasis mine)
The application of the Applicant to the Board is for a determination whether the establishment of a retail wine outlet on the Property is a normal farm practice for the purposes of the non-application of the Corporation of the Town of Lincoln municipal By-law 93-14-Z 1.
In order for this Board to have jurisdiction to challenge a municipal by-law that restricts the Applicant's ability to establish a retail use as part of a normal farm practice on the Property it is first necessary to show that such retail use is an "agricultural operation" as defined by Section 1(2) of the Farming and Food Production Protection Act.
Section 1(2) of the Farming and Food Production Protection Act sets out in considerable detail those farm practices which are to be considered "agricultural operations". Included in the definition are such obvious practices as "the production of agricultural crops" and the "growing, producing and raising of livestock." The definition does not include the sale at retail of products produced by an agricultural operation, nor is there any part of the definition which would even suggest that retailing was to be an included activity.
Section 1(2)(j) includes
"activities that are a necessary but ancillary part of an agricultural operation such as the movement of transport vehicles for the purposes of the agricultural operation";
The "necessary but ancillary" activities referred to in Section 1(2)(j) must be confined to the activities enumerated from 1(2)(a) to 1(2)(i). It would not be appropriate to include in the definition of "agricultural operation" those activities which we may feel should have been included but are not.
Section 6 (1) of the Farming and Food Production Protection Act cannot be used to challenge a municipal by-law that purports to regulate the sale of the products of an agricultural operation at retail because as previously stated retailing is not an included activity in the definition of an "agricultural operation".
ORDER
A. The Normal Farm Practice Protection Board does not have jurisdiction to adjudicate the Applicants' application to the Board under Section 6 of the Farming and Food Production Protection Act for a determination whether a practice is a normal farm practice for purposes of the non-application of The Town of Lincoln Zoning By-law Number 93-14-Z1, as amended.
B. The Applicant's application herein is dismissed for want of jurisdiction by the Board.
Dated at St Marys, Ontario this 14th Day of November, 2001.
Robert G Stephens - Chair