Normal Farm Practices Protection Board

Commission de protection des pratiques agricoles normales

1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433 Fax: (519) 826-4232 Email: NFPPB@ontario.ca

1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433 Téléc.: (519) 826-4232 Courriel: NFPPB@ontario.ca

CITATION : Boucher v Central Huron

FILE NO.: 005Boucher23

DATE: 2024/05/03

2024ONNFPPB01

IN THE MATTER OF the Farming and Food Production Protection Act, 1998.

AND IN THE MATTER OF an application to the Board under Section 6 of the Farming and Food Production Protection Act, 1998 for a determination as to whether municipal by-laws are restricting a normal farm practice.

AND IN THE MATTER OF a written motion held pursuant to Rule 8(1)(e) of the Board’s Rules of Procedure.

BETWEEN:

Christopher Boucher Applicant

– and –

Municipality of Central Huron Respondent

Self-Represented

Represented by Nicholas Van Allen

Heard in Writing

Before: Christine Greydanus, Vice-Chair, Rod de Wolde, Member, John Lohuis, Member

MOTION ORDER

Background

1On October 11, 2023, an Application was brought by Christopher Boucher under Section 6 of the Farming and Food Production Protection Act, 1998 SO 1998, c.1 (“FFPPA”) alleging that Municipality of Central Huron’s use of their By-Law 13 - 2009 Property Standards was preventing him from carrying on his normal farm practices.

2A Pre-hearing Conference was held on November 28, 2023. At that time, the Municipality expressed their concern that the Board did not have jurisdiction on this matter, as a result, they were advised to bring a jurisdictional motion on this matter, on or before January 31, 2024.

3The Municipality brought the current motion on January 30, 2024 seeking the dismissal of the Application without a hearing or, in the alternative, a stay of proceedings. The motion was heard in writing.

The Municipality of Central Huron’s case

4The Municipality argues that the Application made by Mr. Boucher is outside the jurisdiction of the Board insofar as a) any remedy obtained by Mr. Boucher would indirectly grant relief from the use provisions of the Central Huron Zoning Bylaw, and b) Mr. Boucher is not a “farmer” within the meaning of the legislation.

5The Municipality argues that the Court of Appeal in Oakville (Town) v. Read, 2011 ONCA 22, determined that the Board “has no jurisdiction to grant relief from the use provisions of a zoning bylaw” (as cited in Boucher v. Central Huron, 2022 ONNFPPB 9 (“Boucher v. Central Huron, 2022”) at para 44).

6The Municipality argues that any remedy the Board might offer in the herein application would be tantamount to allowing Mr. Boucher to engage in farming and that this would run directly counter to the Zoning Bylaw, the Boucher v. Central Huron, 2022 decision, and the decision in Oakville (Town) v. Read.

7The Municipality argues that the Board is limited to hearing Applications made by farmers. Subsection 6(3) of the FFPPA solely allows Applications to be made by “farmers who are directly affected by a municipal bylaw that may have the effect of restricting a normal farm practice in connection with an agricultural operation”.

8Subsection 1(1) of the FFPPA defines “farmer” as an owner of an agricultural operation, meaning, an “agricultural ... operation that is carried on with the expectation of gain or reward.” Central Huron argues that an expectation of gain or reward must be a reasonable expectation.

9They argue that the Board, in Boucher v Central Huron, 2022 held that the Zoning Bylaw for Central Huron prohibited the act of “farming” by Mr. Boucher on his property. Since Mr. Boucher is prohibited from farming on the subject property, he additionally cannot have a reasonable expectation of gain or reward from any agricultural operation that exists upon it.

10Included in the evidence given by the Municipality is an affidavit by Bruce Brockelbank, a Central Huron Municipal Law Enforcement Officer (“MLEO”). Mr. Brockelbank visited Mr. Boucher’s property on September 21, 2023. At that visit, which was the second of the year, the MLEO found the property to be not in compliance with the Municipal Property Standards Bylaw, 13-2009 and issued a Property Standards Order under s. 15.2(2) of the Building Code Act.

11The Property Standards Order required Mr. Boucher to take the following steps:

a. Remove all rubbish and debris from the property, including but not limited to: building materials, skids, steel beams, steel sheathing, tires, steel racking, milk crates, and an old oil tank use for burning.

b. Remove all unlicensed vehicles from the property.

c. Remove all building materials, including walls from dismantled buildings, partially constructed structures which are not currently under construction, and the transport trailer that was previously part of a building.

12The Order was made pursuant to subsections 2.1(1), 2.1(2) and 2(5) of the Property Standards Bylaw. The Order required Mr. Boucher to correct the issues noted by October 11, 2023, or to send a Notice of Appeal to the Municipality by that date.

13Prior to the above Order, Mr. Boucher and the Municipality were engaged in previous Provincial Offences Act matters which ended in a conviction on December 5, 2022. Mr. Boucher was convicted of: a) erecting structures on his lands which were not in compliance with section 4 of the Central Huron Zoning By-law, 40-2010, and b) erecting buildings on his lands without a building permit, contrary to section 8 of the Building Code Act.

14As a result of those convictions, Mr. Boucher was Ordered by the court to remove certain structures from his property by June 6, 2023. The same Order Prohibited Mr. Boucher from using the same property for the erection or use of any building or structure contrary to the Municipality’s Zoning Bylaw.

15According to the MLEO and the images obtained by the MLEO at his visits to Mr. Boucher’s property, the building materials which currently exist on the property and “partially constructed structures” are the same materials and structures that were named in the Prohibition Order.

16A site visit report was also completed by Central Huron building officials from their attendance at the property in June, 2023. The report references Mr. Boucher’s dismantling work and construction activities and the origins of the debris referred to in the property standards Order.

17Mr. Boucher and the Municipality previously appeared before the Normal Farm Practices Protection Board, in Boucher v. Central Huron, 2022. The Board dismissed the proceedings brought by Mr. Boucher on the basis that Mr. Boucher was seeking relief from the use provision of the Zoning Bylaw, which the Board concluded was outside of its jurisdiction.

18According to material gathered by the MLEO in the investigation of the property in 2023, Mr. Boucher’s property remains the same 0.73-acre triangle of land.

19The Municipality indicated to Mr. Boucher via letter in 2022 how he could bring his property into compliance with the Zoning bylaw via a rezoning application. The letter had been in response to Mr. Boucher’s application to obtain a building permit for a mobile home. There was no evidence that Mr. Boucher engaged in the rezoning process.

20Despite Mr. Boucher’s land being zoned AG1 where agriculture is generally permitted, the zoning by-law prohibits agricultural uses on this property because of its small size, the inability to meet set-backs, and the lack of public road access. Central Huron maintains that Mr. Boucher’s property is non-compliant with the Zoning Bylaw, despite the above-mentioned Prohibition Order, insofar as there still are numerous structures on the property. As such, the Municipality has charged Mr. Boucher with several offences for having structures which do not conform with the Building Code Act or its regulations.

Christopher Boucher’s case

21Mr. Boucher argues that the motion to dismiss his application without a hearing, or in the alternative to stay the proceedings before the Board, should be dismissed.

22Mr. Boucher argues that the Board has the jurisdiction to review Municipal Bylaws that restrict a normal farm practice. Section 6 of the FFPPA provides as follows:

Normal farm practice preserved

6 (1) No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.

Dispute resolution

(2) A person described in subsection (3) or a municipality may apply to the Board, in a form acceptable to it, for a determination as to whether a practice is a normal farm practice for purposes of the non-application of a municipal by-law.

Applications

(3) An application may be made by,

(a) farmers who are directly affected by a municipal by-law that may have the effect of restricting a normal farm practice in connection with an agricultural operation; and

(b) persons who want to engage in a normal farm practice as part of an agricultural operation on land in the municipality and have demonstrable plans for it.

23Mr. Boucher argues that he is a farmer who is being directly affected by a municipal by-law that has the effect of restricting his normal farm practices on his farm and that as such, he has standing pursuant to section 6(3) of FFPPA. Mr. Boucher argued that the issues raised in his application concern the determination of whether the practices used on his farm are normal farm practices, and the determination of the extent to which the Property Standards By-Laws of the Municipality of Central Huron interfere with his normal farm practices, which is consistent with the Board’s jurisdiction under Section 6(2) of the FFPPA. As such, Mr. Boucher argues that this application should proceed to a final hearing, as it is explicitly within the Normal Farm Practices Production Board’s jurisdiction.

24Mr. Boucher indicates that the structures, materials, tools, and machinery are all used for the farm business. In the summer of 2022, the Ontario Building Code increased the allowable ‘non-permit’ size for structures built to 161.45 square feet (15 square meters).

25There are 9 structures located on the property; they are as follows:

a. outdoor kitchen (144 square feet), where he prepares stewing tomatoes and tomato soup. It holds a fridge to store produce and eggs.

b. garden shed storage (159 square feet), where garlic is dried on strings hung from the rafters.

c. garden shed storage (159 square feet), where a lot of his garden supplies are stored.

d. Outhouse (15 square feet)

e. storage for garden tools (36 square feet). This holds more of his garden tools/essentials.

f. utility/hydro shed (157 square feet). The property is small and off grid. The utility shed holds the power supply to pump water and to keep the fridges and freezers running.

g. son’s shed (76 square feet) for his son’s farming activity, such as pots, soil and small tools.

h. bunky (80 square feet) to rest during long/hot days.

26Mr. Boucher argues that he is a farmer as defined in the FFPPA and that his agricultural operation is a horticultural operation that is carried on in the expectation of gain or reward and that his agricultural operation consists of the cultivation of land, raising livestock, producing bees for honey, the production of eggs, and the production of other crops such as in tobacco and trees. Mr. Boucher states that he operates agricultural machinery and equipment to apply fertilizer to condition the soil, as well as for the storage of organic waste used to enrich the soil at the farm.

27Mr. Boucher argues that the Municipality is using the their Property Standards By-Law # 13-2009, Section 2.1 (1), 2.1 (2) and 2.1 (5) against him to force him to take everything off his property and that as such the Municipality is interfering with his normal farm practice; for example, he asserts that building materials are essential to have on hand on the farm; skids are commonly used to put materials on or for storing/moving large items; steel beams / sheeting are used to place material on in order to raise from the ground; spare steel sheeting to have on hand when maintenance may be required; spare tires for machinery, trailers and vehicles; milk crates for gathering produce and carrying materials in and the transport trailer is used to store and dry large quantities of tobacco and cannabis.

28Mr. Boucher states that the Municipality of Central Huron’s Property Standards By-Law #13-2009, Section 2.1(2) requires the removal of “wrecked, dismantled or abandoned machinery, vehicles, trailers, boats, etc. unless it is necessary for the operation of a business enterprise lawfully situated on the property”. He asserts that this is an agricultural operation, and the transport trailer is necessary for the operation of the business.

29He also argues that the Board had already concluded that the farm is an agricultural operation under the FFPPA in Boucher v Central Huron, 2022 at para. 37.

30Mr. Boucher argues that the Municipality has falsely stated that in Boucher v Central Huron, 2022 he was prohibited from farming on his farm, but that the Board in that decision decided that his farm is an agricultural operation, and that the application before the Board at that time was dismissed because the issues that were raised were in relation to land use planning, rather than normal farm practices. (Boucher v Central Huron, 2022 at para 50.)

31Mr. Boucher argues that in the present application, the issues being raised are not related to land use planning but rather they are related to the property standards by-law that is restricting his ability to use normal farming techniques to operate his business.

32Mr. Boucher argues that the Municipality’s assertion that his property is “too small” to be used for farming is incorrect and that his property is not too small to farm. Mr. Boucher identified three parcels of land in close proximity to him, which are smaller than his, zoned AG4 and are entitled to limited agricultural use.

33Mr. Boucher argues that the Municipality’s reference to the five charges that have been laid against him, four relate to Municipal Zoning By-Laws and one relates to the Building Code Act; none to the issues that he is arguing before the Board.

34Mr. Boucher argues that there is no prejudice to the Municipality in proceeding with his application before the Board to address the property standards by-law that they are using against him as this by-law is not part of any other current or previous legal proceeding. Further he states that the Municipality in its Official Plan at Section 3.2 Goals, has adopted many relevant policies, but he asserts that they are not following or promoting them in his case. They are as follows;

a. To ensure maximum flexibility for farm operators to engage in differing types, sizes and intensities of agricultural operations.

b. To encourage management practices that protect and enhance natural environmental features.

c. To relate to the development in Agricultural areas to the needs of agriculture and respect the farmer’s ability to farm.

d. To support farm operations through the provision of value added on-farm businesses, such as home occupations.

35Mr. Boucher cites the Central Huron Official Plan at 3.3.1 (ii) Farm Practices, where it states “Normal farm practices, as defined in the FFPPA, as amended will be promoted, and protected.” [sic] and the County’s Official Plan at section 2.2 Vision of Agriculture where it states “in developing a vision of agricultural, the goal of the community is to protect agriculture, the Farmers’ ability to farm, prime agricultural land and the quality of life for future generations. A healthy agricultural and rural economy in Huron County is dependent upon the activities and businesses which support agriculture. Food security and the availability of local foods have been identified as important. Production of food for local consumption will be encouraged.”

36Mr. Boucher also cites the County of Huron Official Plan, at section 2.3(2) Community Policies and Actions where it states “the continued diversification of Huron’s agricultural industry will be encouraged. Local Official Plans will support all types, sizes and intensities of agriculture. This includes normal farm practices in the FFPPA.”

37Mr. Boucher affirmed that on his land he produces crops such as corn, celery, garlic, honey, raspberries, apples, strawberries, rhubarb and jalapeno peppers, as well as raising pigs and chickens. This activity he references as the Business. All the produce is sold locally to business and members of the public, friends and family. In 2022, the Business made $4,300 in selling crops.

38Mr. Boucher stated that a Prohibition Order was issued on December 5, 2022. In the Order structures were defined as the “Dwelling” and the “Sea Can Building” and the structures were to be removed within 6 months of the date of the order and that he was not to erect any new structures that conflict with existing zoning by-laws.

39Mr. Boucher affirmed that on or around December 6, 2022, he submitted a building permit application to Central Huron seeking a building permit, in order to obtain approval to keep the dwelling on his property. On December 15, 2022, Central Huron advised Mr. Boucher that his building permit application was denied. He states that on or about April 11, 2023 he removed the Sea Can building and on or about May 15, 2023 he removed the dwelling.

40Mr. Boucher states that his property has very rich sandy loam soil that is good for horticulture and that the property is zoned AG1 with the main use being an agriculture operation. The property is 100% off grid resulting in extra work to sustain being off grid. Mr. Boucher claims that his approach to living off grid is to be as environmentally friendly as possible and to use available resources as they may be available.

41Mr. Boucher stated that he had received an Order from the Municipality of Central Huron on September 21, 2023 citing property standard By-law defects and the required repair. Mr. Boucher stated that he took measures to appeal the Order, but was denied. He received correspondence from Central Huron dated December 22, 2023 with a list of defects. Mr. Boucher states that there are items listed as defects are part of his normal farm practice and therefore, Central Huron’s Property Standards By-law is interfering with his normal farm practices.

Issues

42The Board must decide whether or not to dismiss or stay the application of Mr. Boucher based on the assertions of the Municipality of Central Huron that any remedy would indirectly grant relief from the use provisions of the zoning by-law and that Mr. Boucher is not a farmer within the meaning of the FFPPA.

Analysis and Findings

43The Municipality challenged sections of Mr. Boucher’s evidence as irrelevant and prejudicial. The Board agrees with the Municipality and does not rely on the sections of the Boucher affidavit that were identified, specifically paragraphs 16, 17, 10 and Exhibit KK. The Board accepts the remainder of Mr. Boucher’s evidence.

44The Board accepts the evidence of the Municipality.

45The Board must determine if it has the jurisdiction to provide the relief sought by Mr. Boucher. In determining this question, the Board must first determine if Mr. Boucher is operating an agricultural operation on the subject property as it is currently zoned.

46If Mr. Boucher is not operating an agricultural operation on the subject property, the Board will not have the authority to provide the type of relief sought by Mr. Boucher.

47The Board is given authority under section 6 of the FFPPA to determine if a municipal bylaw is restricting a normal farm practice carried on as part of an agricultural farm operation.

48After considering the submissions, the evidence and the jurisprudence, the Board largely agrees with Central Huron and dismisses this application.

49While the Board recognizes that in Boucher v. Central Huron, 2022 the Board found that Mr. Boucher’s farm was an “agricultural operation” as defined in the FFPPA, that finding was made despite the Board finding that it did not have the jurisdiction to consider the use provisions of the zoning by-law, and thus was obiter, and it was made prior to the enforcement actions taken. The facts and circumstances that have unfolded since the first application to the Board are such that it is clear that farming is not permitted on this property and this farm has no legitimate prospect of gain or reward.

50In particular, the Court prohibition order prohibits, among other things, the use of any building or structure contrary to the zoning by-law, which in turn prohibits agricultural uses on the property.

51Given the order of the Court and the use provisions of the zoning by-law, as well the steps taken by the municipality to enforce its by-laws as outlined in its submissions and the affidavits of Mr. Brockelbank and Ms. Cawston, farming on this property is not permitted unless and until rezoning occurs. Any remedy for Mr. Boucher under the FFPPA with respect to the property standards by-law would be tantamount to granting relief from the use provisions of the by-law and the Court order. The Board lacks the jurisdiction to grant such relief.

52The Board finds that the appeal decision in Oakville (Town) v. Read applies in this case. Section 6 applications may not deal with land uses. The Board may only consider the applicability of by-laws to normal farm practices carried out on lands where agriculture is permitted. The FFPPA cannot be used to circumvent the land use planning by-laws of a municipality and, in effect, make a prohibited use permitted.

53Where agriculture is prohibited, there is no reasonable prospect of legitimate gain or reward from the operation. Furthermore, seeking to have the use provisions of a zoning by-law ruled to be non-applicable conflates the phrases “agricultural operation” and “normal farm practices”.

54The Board notes that a property standards by-law could apply to restrict normal farm practices in some cases, and that the storage of some materials considered by some to be debris may in fact be the storage of materials in accordance with normal farm practices in an appropriate case. However, agriculture would have to be permitted before the Board could consider whether a property standards by-law is restricting normal farm practices.

ORDER

55For these reasons, the motion is allowed and the application of Mr. Boucher is dismissed.