ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 698/14
DATE: December 3, 2014
BETWEEN:
DAG MILITKY and ALLISON MILITKY
Applicants
– and –
THE CORPORATION OF THE TOWNSHIP OF DRUMMOND/NORTH ELMSLEY
Respondent
Michael S. Polowin and Roberto D. Aburto, for the Applicants
Janet Bradley, for the Respondent
HEARD: November 21, 2014, at Perth
RULING ON APPLICATION
PEDLAR, J
[1] In this matter, the Applicants make application for:
(a) a determination of the Applicants’ rights, pursuant to Rule 14.05(3)(d) of the Rules of Civil Procedure, RRO 1990, Reg 194, under Zoning By-Law 2012-060 of the Township of Drummond/North Elmsley (the “By-Law”) that a paintball facility is a permitted use under the “rural” designation of the By-Law;
(b) a declaration, pursuant to Rule 14.05(3)(g) of the Rules of Civil Procedure, RRO 1990, Reg 194, that the Applicants’ proposed use of the property, located at 13259 Highway 7 (the “subject property”) currently zoned “rural” under the By-Law, as a paintball facility, is a permitted use under the “rural” zoning designation of the By-Law;
(c) the costs of this proceeding, plus all applicable taxes; and
(d) such further and other relief this court may seem just.
[2] Tab 2 of the Application Record contains an Agreed Statement of Facts. The property in question was purchased by the Applicants in May of 2014. The Applicants were informed by the Respondent that the use of the subject property as a paintball facility named, “Marked Paintball”, required a rezoning of the land in order to conform to the existing zoning by-law.
[3] On or about June 6, 2014, counsel for the Applicants communicated to the Respondent that the subject property, in their opinion, did not require rezoning to operate a paintball facility.
[4] The use of the subject property as a proposed paintball facility will include equipment rentals, facility rental, snacks for purchase, and entrance donations for a charitable purpose, rather than an entrance fee paid to the operators. The Applicants have informed the Respondent that they have no plans to remove trees from the subject property or alter the features of the existing landscape in any significant way.
[5] The Respondent has refused to recognize the proposed use of a paintball facility as a permitted use under the by-law and the Applicants and Respondent disagree on the interpretations of by-laws’ permitted uses under the “rural” designation.
[6] At all material times, the property was zoned “rural” under zoning by-law 2012-060 of the Township (the “ZBL”). A “rural” zone permits uses including general agriculture, intensive agriculture, a hunting and fishing camp and a private park. The ZBL defines each of the above uses as follows:
Agriculture, General: Means the use of land, buildings and/or structures for the growing, harvesting and storing of field crops, fruits, vegetables, trees, flowers, bushes and/or for the keeping, breeding, raising and grazing of livestock and/or poultry, and may include an agricultural products outlet where products grown on the farm are sold.
Agriculture, Intensive: Means use of land, buildings and/or structures for feedlots and other similar enterprises, mushroom farms, and greenhouses, and may include an agricultural produce outlet where products grown on the farm are sold.
Hunting or Fishing Camp: Means a building or structure, with a maximum area of 50 square metres, which is occupied for limited times during the year as a base for hunting, fishing and similar outdoor activities but which is not a single detached dwelling or a seasonal dwelling as defined herein.
Park, Private: Means a recreational area other than a public park.
[7] The definition of public park is as follows:
Park, Public: Means a recreational area consisting largely of open space, which may include a playground, swimming pool, arena, playfield, or similar use, owned or controlled by the Corporation, or by any Ministry, Board, Commission or Authority established under any statute of Ontario or Canada and includes a community centre as herein defined.
[8] For the purposes of this application, the parties agree that the key issue is whether the subject property is a “Private Park” within the meaning of the zoning by-law.
[9] One of the issues raised by the Applicants is that this subject property, at some point in the past, was used as an equestrian centre. The Agreed Statement of Facts refers to a number of activities that are listed on a website relating to the former equestrian park. The Agreed Statement of Facts indicate that the Respondent does not agree with the information set out in paragraphs 2 through 7 of the Agreed Statement of Facts, but neither does it deny them as it had little information about the former use. The subject property was listed as being used for a variety of purposes expected from an equestrian park, such as boarding of horses, riding lessons, hosting competitions, etc. There is reference to selling a small variety of snacks and concessions and also to something described as a “cozy country kitchen” and “elegant dining room”. The hours of operation are listed and there is an indication there were summer day camps for children. The subject property currently contains nine open fields suitable for grazing and riding, two sand rings and five kilometres of trail cut through the wooded forest on the property. There is a full barn and a fabric covered structure, described by the Applicants as a “mega dome”, which would likely have been used as an indoor riding ring.
[10] The Respondent takes the position that they were not aware that the subject property was being used as an equestrian park and never had any complaints about it and had no occasion to research the nature of that facility.
[11] In my view, given the definition of General Agriculture, which includes “the keeping, breeding, raising and grazing of livestock….”, the equestrian centre would fall within that definition as it was focused on the promotion of those activities, as well as a range of related uses of the facility which have not been fully defined in this hearing.
[12] Under the circumstances of this application, with the Respondent not being aware of the equestrian centre’s range of activities and my finding that it falls within the permitted uses of the land, buildings and structures as General Agriculture, and is consistent with the intentions of the Official Plan of the Respondent, by keeping the land in use for tradition or rural activities in maintaining the character of the Township, I find the existence of the equestrian centre and the use of this subject property for that purpose, was not only permitted by the existing zoning by-law, but is irrelevant to this application because of the lack of knowledge by the Respondent, of its existence and no complaints received and, therefore, no assessment of the land use being conducted by the Respondent. The Respondent could not have acquiesced or approved of such use under those circumstances.
[13] The Respondent is of the view that the only permitted use in the Township that supports the proposed use is that of Place of Recreation, defined in the zoning by-law as follows:
Place of Recreation: Means a lot, building or structure in which various forms of recreation are provided for a fee, including amusement parks, mini-golf courses, billiard or pool room, bowling alley, curling rink, ice or roller rink, and arcades, but does not include any place of entertainment, commercial sports and recreation centre, public parks or private parks.
[14] The Applicants, at the direction of the Township, made an application to rezone the subject property for Marked Paintball, laser tag and soft uses and this application is pending.
[15] For further clarity, the uses spelled out above, in paragraph 4, will include:
Marked Paintball will charge fees and offer rentals and will charge fees for the following activities:
(a) Rentals: the facility will offer rental equipment inclusive of helmets, markers, paint pellets and safety padding.
(b) Facility rental: the facility will have options for group rentals to allow larger parties to control the field during their designated period. In these instances, the field will continue to be observed and controlled by trained referees.
(c) Snacks: owners of Marked Paintball will sell a small variety of snacks and concessions to its customers.
(d) Marked Paintball does not intend to charge an entry fee, requesting that patrons instead make charitable donations.
[16] The former grazing and riding fields will be used for five to ten paintball fields of varying terrain. The plan is to highlight the natural features of the property to assist with strategic game play.
[17] Marked Paintball will have hours of operation. The play spaces will further be monitored by referees to ensure the safety of the participants and ensure controlled start and stop times. The hours of operation at opening will be as follows: (subject to future reasonable adjustment):
a. Monday to Friday – 9:00 to 5:00 by reservation only
b. Saturday and Sunday – 9:00 to 5:00 for walk-on’s and reservations, (summer months may extend to later hours (dusk) based on request)
[18] The existing barn will be maintained and utilized as a staging facility. Further, the existing “mega dome” will be used as an indoor paintball/laser tag arena, subject to any upgrades required by the Ontario Building Code.
[19] The proposed facility will further operate all year round, transitioning to a wholly indoor facility during the winter months.
[20] The facility’s rental equipment will accommodate approximately 60 people. The Applicants state this will ensure controlled volume on the course at all times.
[21] The parties agree on the principles of law to be applied on this application. They agree that the modern principles of statutory interpretation apply equally to the interpretation of the Municipal By-Laws and Statutes. They also agree that the interpretation of the by-law involves consideration of the text of the by-law, the intent of municipal counsel, and the purposes and scheme of the by-law as a whole.
[22] Both parties rely on the case filed at Tab 3 of the Applicants’ Book of Authorities being Rostein v. Oro-Medonte (Township), 2002 CarswellOnt 4411, 34 M.P.L.R. (3d) 266 (ON SC). In that case, under the heading of “Zoning Interpretation”, the presiding justice stated as follows:
[21] Counsel on both sides raised the issue generally regarding the proper approach to interpretation of zoning by-laws. Arguments were raised favouring a more balanced approach recognizing zoning issues as expressions of community interest and those favouring an approach which saw zoning more adversarially as impinging on private rights, to be interpreted in the landowner’s favour where there is doubt. I accept applicants’ counsel’s submission that interpretation of zoning by-laws is no longer simply one of interpreting strictly in favour of the landowner. In 1996, Browne J. in Vanhie v. London (City) (Ont. Gen. Div.) was faced with arguments and authority urging upon him either a restrictive approach or a liberal one. Browne J. took a middle course by deriving from the plain wording in the by-law as a whole the municipality’s intent and concluding that interpretation of the relevant provisions should be approached with a view toward accomplishing the municipality’s intent.
[22] In 1999, in Aon Inc. v. Peterborough (City), 1 M.P.L.R. (3d) 225 (Ont. Gen. Div.), I had occasion to consider arguments over the proper approach interpretation of municipal zoning by-laws. In my view, Browne J. is correct in no longer following the conflicting or out-of-date rules in past authorities. The law in this area has become a more principled and consistent one aimed at a balance between private and community interests. However, it is important to understand that zoning by-laws do not stand isolated. They are the end product in law of a planning process legislated in The Planning Act. In Aon, the following was stated in this regard:
…while certainly normal rules of statutory construction are properly held to apply to zoning bylaws, they are a somewhat unusual type of law in their statutorily required inter-relationship with an Official Plan. A proper contextual approach to their interpretation requires that zoning by-laws should be interpreted in their ordinary and plan meaning in light of the by-law as a whole and its policy derivation and basis within the Official Plan. However, it must be borne in mind that it is the zoning by-law which is the applicable law to be applied. Both Official Plans and zoning by-laws rely for their creation and life on the provisions of the Planning Act, and it clearly provides the power to municipalities to enact zoning by-laws as the effective law governing land use and buildings and structures. It is therefore a zoning by-law which must implement or convert the Official Plan into a body of law regulating the use of land and it does so only to the extent that it actually sets forth in its provisions, interpreted in their ordinary sense in light of the policy framework of the Official Plan and the context of the by-law as a whole….
[23] The difference between a Public Park and a Private Park as defined by the by-law is that a Public Park is limited to property owned by a public entity, such as the Respondent or another public institution, established under any Statute of Ontario or Canada. The purpose of zoning by-laws is not to control ownership. They are, rather, directed at the use of property, with the purpose of benefiting both the community at large, as well as the owner of the property by balancing those interests.
[24] The definition of Public Park refers to “a recreational area consisting largely of open space”. There is no definition of “recreational area” in the by-law itself. The definition of Public Park goes on to include a list of uses permitted on park property owned by a public institution. That list is not exhaustive, but includes a “playground, swimming pool, arena, playfield or similar use”.
[25] If one simply incorporates those uses as also permitted in a Private Park, it is very easy to see a potential conflict that could occur “in light of the policy framework of the Official Plan and the context of the by-law as a whole”.
[26] For instance, the private owner of a piece of property zoned as “rural” in the Respondent Township would then be at liberty to obtain a franchise to a national hockey league team and build a large arena facility, with no need to seek zoning approval from the Township, if that submission is accepted. The same could happen if the intended use of the property was a “playfield” aimed at a Canadian Football League franchise or a major league baseball franchise.
[27] If one simply adopts the listed permitted uses for a Public Park and applies them indiscriminately to a Private Park, the results are clearly contrary to the intentions of the zoning by-law in question and the Official Plan of this Township.
[28] The Official Plan of the Respondent Township dated 2012 was filed as Schedule B and contains the following references to the policy and framework of that Official Plan:
2.3 OBJECTIVES OF THE PLAN
Within the context of implementing the Provincial Policy Statement, the objectives of this Plan are:
2.3.2 To protect the natural resources and natural heritage features of the Township, such as prime agricultural lands, wetlands, forestry resources, aggregate resources, sensitive waterfront areas, and other identified environmental features which have contributed to the natural character of the Township;
2.3.3 To protect existing land uses from the impacts of incompatible development;
2.3.4 To protect the rural character of the Township by requiring rural non-farm development to be appropriately located and designed;
2.3.5 To enhance the aesthetic quality of the built and natural environment;
3.16 RURAL CHARACTER
The Township is comprised primarily of rural land on which traditional rural land uses are located, notably agricultural uses, but also including forestry uses, pit and quarry operations, etc. This Plan is intended to recognize these traditional uses as being an integral part of the rural character of the Township. In this regard, future developers and residents of the Township should be aware that there are certain activities associated with these use which result in noise, odour, traffic, hours or seasons of operations, etc., which may be viewed as being incompatible with other uses, particularly rural non-farm residential uses. It must be recognized, however, that these associated activities also form part of the rural character of the Township and must of necessity continue, so that those who may seek to develop or reside in the Township can expect to continue to encounter such activities.
4.3 RURAL
4.3.1 Intent of Designation
The Rural designation is placed on all areas of the Township which have not otherwise been designated for a particular purpose under another land use designation. The Rural designation is intended to protect traditional rural activities such as agriculture and forestry, and to permit a broad range of other uses which are appropriate in a rural setting. It is recognized that the majority of the Township’s existing, as well as future, residential development will be located in the Rural designation. Other permitted uses will be carefully controlled in order to protect existing uses and the rural character of the Township, and to ensure that the Township’s financial resources keep pace with development activity.
[29] I find that the most reasonable interpretation is that proposed by the Respondent. It contends that Private Park uses are intended to provide a passive open space amenity area, similar to a conservation area but available for the recreational pursuits of a local client base, including subdivision residents. As such, a Private Park would usually be planned within a larger context of a newer existing community and, as a result, unlike a new commercial, is permitted within the rural area without the need for a zoning or a site plan process to evaluate compatibility and mitigation of potential impacts.
[30] The most reasonable interpretation is that a Private Park would not, in terms of use, involve an invitation to the public at large to use the property, such as is contemplated by the Applicants herein. Use of a Private Park would be limited to persons with an ownership interest in the property, in order to give an ordinary and plain meaning to the word “private”, used in the text of the Zoning By-Law, in light of the By-Law as a whole and its policy derivation and basis within the Official Plan.
[31] In view of the fact that “recreational area” is not a defined term in the zoning by-law, I agree with the Respondent Township that the definition of a Public Park merely provides a starting point for outlining a range of uses typically found in public or municipal parks, which are designed for public recreation and play.
[32] I also agree with the Respondent Township’s position that a commercial paintball operation is more similar to the range of commercial uses permitted as a “Place of Recreation” such as an amusement park, or in the case of a proposed indoor paintball or laser tag uses, an arcade or roller rink, where the primary consideration is that recreation is being “provided for a fee”. Place of Recreation is defined in the zoning by-law and referred to, at paragraph 13, above.
[33] The Respondent submits in its factum, although not contained in the Agreed Statement of Facts, that there are private parks in existence in the Township, which have been created by the owners of estate lot subdivisions to provide a common open space amenity for all those who reside in the subdivision. They submit a private park constituting an open air passive amenity space is appropriate in the rural context, and I agree.
[34] The Applicants take the position that they have searched and found no such private parks in residential areas in the Township. Again, there is nothing about that in the Agreed Statement of Facts and they object to the position of the Respondent, as stated above, that these private parks do exist in connection with estate lot subdivisions. Rather than have a trial of an issue over that, I will accept the Respondent’s information even though I do not feel it is critical to my findings herein.
[35] Although the Applicants’ proposal does not involve additions to any existing buildings or the construction of any new buildings, it does, in my view, involve a new commercial use of this property. The Applicants are quite correct that there is no evidence before me that the use of this property abuts residential uses, as referred to in Section 4.3.6(6) of the Official Plan. That may or may not be the situation. I do find, however, that it is a new commercial use and pursuant to Section 4.3.6(7), “New commercial uses shall only be permitted by an Amendment to the Zoning By-law.
[36] I do, therefore, find that the Applicants’ proposed use of the subject property is not as a Private Park but is, in fact, a new commercial use within the meaning of the Township’s Official Plan and requires an amendment to the existing Zoning By-law. I make no comment whatsoever on the merits of that application. It may very well be that they will be successful in obtaining such a zoning amendment.
[37] It is clear, in my view, that the interests of the community, as represented by the Respondent Township, must have a voice in the process to discuss the implications for the broader community for the proposed use of their property by the Applicants, in order to arrive at a more balanced approach, recognizing zoning issues as expressions of community interest. The process must be principled and consultative, consistent with the existing Planning Act, Official Plan and Zoning By-law, all of which have been arrived at through an established democratic process.
[38] The application is therefore denied. If the parties are unable to agree on costs, I will receive written submissions from any party seeking costs within 30 days with a 10 day right of apply. Thank you to counsel for their submissions in this very interesting matter.
The Hon. Mr. Justice K.E. Pedlar
Released: December 3, 2014
of Drummond/North Elmsley, 2014 ONSC 6997
COURT FILE NO.: 698/14
DATE: December 3, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DAG MILITKY and ALLISON MILITKY
Applicants
– and –
THE CORPORATION OF THE TOWNSHIP OF
DRUMMOND/NORTH ELMSLEY
Respondent
RULING ON application
Pedlar, J.
Released: December 3, 2014