CITATION: Rock Solid Holdings Inc. v. Lakehead Rural Planning et al., 2017 ONSC 6564
COURT FILE NO.: CV-16-0392
DATE: 2017-11-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ROCK SOLID HOLDINGS INC.
Mssrs. B. Babcock and J. Clark, for the Applicant
Applicant
- and -
LAKEHEAD RURAL PLANNING BOARD and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, as represented by the MINISTER OF NATURAL RESOURCES AND FORESTRY
Ms. R. Evans, for the Respondents
Respondents
HEARD: June 6, 2017, at Thunder Bay, Ontario
Madam Justice H.M. Pierce
Reasons on Application
Introduction
[1] The applicant owns two adjacent lots in the unorganized Township of Gorham that are used for aggregate extraction. The subject of this application is Part of Lot 17, Concession 7 in the Township of Gorham in the District of Thunder Bay. The abutting property, owned by the same owner, is Part of Lot 18 in the same concession.
[2] Because the Township has no municipal government, planning authority devolves to the Lakehead Rural Planning Board. Zoning is provided by ministerial order.
[3] Under current regulations to the Aggregate Resources Act, R.S.O. 1990, c. A.8, as amended, the applicant must obtain a permit for aggregate extraction on Lot 17. As part of the application, the Ministry of Natural Resources (“MNR”) requires proof from the Planning Board that no zoning by-law prohibits Lot 17 from being used for the making, establishment, or operation of pits and quarries.
[4] The Planning Board admits that Lot 18, owned by the applicant, is zoned M2, meaning that aggregate extraction is permitted. However, the Board has taken the position that Lot 17 is zoned RU (Rural), in which aggregate extraction is not permitted.
[5] In order to satisfy the MNR that a permit for aggregate extraction should issue, the applicant applies to the Superior Court of Justice pursuant to s. 12.1(3) of the Aggregate Resources Act for a declaration that no zoning by-law prohibits the making, establishment or operation of pits and quarries on Lot 17. The basis of the applicant’s argument is two-fold:
that the zoning on the subject lands is M2, which permits extraction; or
that Lot 17 is subject to a legal non-conforming use that has not been interrupted.
[6] The Planning Board resists the application, arguing that:
its maps clearly indicate that Lot 17 is zoned Rural;
although there is some evidence of aggregate extraction on Lot 17 before it was prohibited by regulation, extraction was interrupted by forestry activity so that the legal non-conforming use was not continuous;
in the further alternative, any extraction on Lot 17 has intensified, disrupting the status quo necessary for a finding of legal non-conforming use.
The Law
[7] Section 34(9) of the Planning Act, R.S.O. 1990, c. P.13, as amended, provides for an exemption for legal non-conforming uses from the effect of zoning under the Act. To be exempt, the property must have been in lawful use for a certain purpose at the date of the zoning; it must have been in continuous use since that date; and the property must continue to be used for that purpose. Whether the use has been interrupted is a question of fact and intention: O’Sullivan Funeral Home Ltd. v. Sault Ste. Marie (City), 1961 218 (ON SC), [1961] O.R. 413, (H.C.J.), para. 13.
[8] With respect to pits and quarries, the courts have recognized that the use of either may be intermittent. See: Whitchurch (Township) v. McGuffin, 1969 208 (ON SC), [1970] 2 O.R. 181 (H.C.J.), para. 7.
[9] Section 1(1) of the Aggregate Resources Act defines “pit” and “quarry” as follows:
“pit” means land or land under water from which unconsolidated aggregate is being or has been excavated, and that has not been rehabilitated, but does not mean land or land under water excavated for a building or structure on the excavation site or in relation to which an order has been made under subsection (3);
“quarry” means land or land under water from which consolidated aggregate is being or has been excavated, and that has not been rehabilitated, but does not mean land or land under water excavated for a building or structure on the extraction site or in relation to which an order has been made under section (3)…
[10] If the use of the property changes prior to the zoning prohibiting the use, then the exemption from the effect of the zoning is lost: Glenelg (Township) v. Davis, (1992) 8648 (ONCA), at paras. 8, 9, and 12.
[11] However, the continuation of purpose does not mean that the premises must be used for an identical purpose on the relevant date. For example, the court in Toronto (City) v. Potts Pattern Works Ltd., [1943] O.W.N. 615 (H.C.J.), determined at para. 4 that the exemption from the by-law is not lost for the continuation of use as a factory if the nature of the manufacturing changed.
[12] That said, the court may consider whether an intensification of an existing use can terminate an existing legal non-conforming use. See: Saint-Romuald (City) v. Olivier, 2001 SCC 57. At para. 34 of the decision, the court set out the factors to be considered in determining whether there had been an intensification of use sufficient to destroy a legal non-conforming use. A landowner overreaches itself if:
the scale or intensity of the activity can be said to bring about a change in the type of use;
the addition of new activities or modification of old activities is seen by the court as too remote from the former land use to call for protections; or
the new or modified activities create undue additional or aggravated problems for the municipality, the local authorities, or the neighbours, compared to the previous activity.
[13] In Sainte-Romuald, the Supreme Court held that a country music bar, converted to a strip club, did not constitute an intensification of use. In Watts v. Benvenuti, (2005) 2005 63810 (ON SC), 77 O.R. (3d) 386 (S.C.J.), at para. 36, the court determined that the conversion of farm land from growing crops to the purchase, sale, training and exercising of horses did not represent intensification.
[14] The onus is on the party claiming the exemption to prove that a legal non-conforming use applies on a balance of probabilities: Rotstein v. Oro-Medonte (Township), [2002] CarswellOnt 4411, at para. 35. The party must show that there was:
lawful use of any land, building or structure at the time of the enactment of the relevant zoning restriction; and
its continuance after the zoning bylaw came into force.
[15] In Cedarhurst Quarries and Crushing Limited v. Somerville (Township), (1995) 57 A.C.W.S. (3d) 230 at para. 8, leave to appeal to ONCA refused, 65 A.C.W.S. (3d) 858, the court held that where lands adjacent to a quarry operation are held by a common owner for the purpose of future expansion of the quarry, there is no reason to draw a boundary between adjacent lands.
[16] The court concluded that if one property was used for aggregate or resource extraction before the zoning by-law was enacted, both properties gain the status of legal non-conforming use.
Analysis
[17] The thrust of the evidence deals with the issue of whether Lot 17 is subject to a legal non-conforming use. Accordingly, I propose to examine the evidence on this point first.
[18] The Planning Board asserts that zoning for Gorham Township where the subject property is situated began in 1975 when Ontario Regulation 109/75 was passed. However, the Board notes that the regulation was replaced by Ontario Regulation 413/86. In a letter to the applicant dated May 12, 2016, the Planning Board indicated that 1986 was the correct date to establish a legal non-conforming use. However, the factum of the Planning Board focuses on 1975. What was the land use situation at that time?
[19] In this case, the Planning Board has approved the Lot 18, which is adjacent to the subject lands, for extraction. Lot 18 is zoned MU. Does that approval extend the Lot 17, which is adjacent property under control of the same owner? The Planning Board submits that Lot 17 is zoned Rural, where extraction is not permitted.
[20] The Official Plan of the Township of Gorham, dated March 6, 1997, recognizes the importance of local resources in the township. At s. 1.3.6, the Plan states:
The Planning Board shall have regard for the importance of the aggregate industry in Gorham and Ware Townships. These townships represent an important source of aggregate, being the prime source of construction aggregate for the City of Thunder Bay.
[21] The Planning Board concedes that the evidence discloses some level of aggregate extraction on Lot 17 before the passage of the Regulation that prohibited its use. The Board also concedes that pits were used intermittently. I agree. The applicant’s evidence establishes, on a balance of probabilities, that the pit was in use from 1952. See para. 12 of the applicant’s revised factum for a summary of the evidence. The applicant submits that there is no historic record as to whether quarrying was done on the land.
[22] As to the character of the neighbourhood, the applicant’s witnesses also establish that there are four other pits in the area, a use which is consistent with the description in the Official Plan.
[23] However the Planning Board disagrees that there is any evidence that the land was used for a quarry. The definitions of “pit” and “quarry” found in By-law 002-2014 are similar except for the description of whether the aggregate is unconsolidated or consolidated. “Pit” is defined as follows:
Pit shall mean land from which unconsolidated aggregate (gravel, sand, stone, earth, clay, fill or other such material) is being or has been excavated and that has not been rehabilitated but shall not include an excavation incidental to the erection of a building or structure or an excavation incidental to the construction of any public work. This definition includes all activities that are normally associated with the operation of a pit such as crushing, stockpiles, screening, processing, washing, weighing scales, offices and open and enclosed storage, and also includes a wayside pit as defined herein.
[24] The definition of “quarry” is as follows:
Quarry shall mean land from which consolidated aggregate (rock excluding minerals) is being or has been excavated and that has not been rehabilitated but shall not include an excavation incidental to the erection of a building or structure or an excavation incidental to the construction of any public work. This definition includes all activities that are normally associated with the operation of a quarry such as crushing, stockpiles, screening, processing, washing, weighing scales, offices and open and enclosed storage, and also includes a wayside pit as defined herein.
[25] At Part X of the by-law, which deals with an extractive zone, the terms “pit” and “quarry” are undifferentiated. Accordingly, the Planning Board’s argument that no quarrying should be done on Lot 17 is not persuasive. The zoning in Gorham Township as “Extractive” applies to both pits and quarries as defined in the Regulation, unlike in Adams v. McDougall (Municipality), 2008 63196 (ONSC), where there are distinct definitions of “pit,” “commercial pit,” and “quarry.”
[26] The Planning Board also submits that any legal non-conforming use was terminated when a previous owner, Buchanan, built bush roads to accommodate forestry, which the Board argues was the primary use.
[27] Alternatively, the Planning Board submits that Buchanan’s use of pits operated as an accessory to the forestry, rather than as a continuation of the pit use. I do not agree that the Buchanan ownership terminated the existing non-conforming use. Nor can I find that the use of the pit was an accessory to forestry. The evidence of Susan Buchanan establishes that Buchanan Forest products purchased the land from the Tulins in 2001 and that it was transferred to Buchanan Timberlands Inc. in 2009; it was subsequently sold to the applicant in 2010.
[28] Ms. Buchanan deposed that the Buchanan companies built and maintained bush roads on the property and that the aggregate was used for the construction of these roads throughout its ownership. She stated that there was substantial pit activity throughout the period of ownership and in fact the property was sold to the applicant as a working pit. There is no evidence that any owner abandoned the intended use of the land as providing aggregate for use or sale by the owner.
[29] The history of the area, since 1952, shows that it was used for aggregate extraction, among other things, a history reflected in the Official Plan. There is no specific evidence that it was used as a quarry. However, there is evidence that the various owners, over the years, intended to use the land as a source of aggregate.
[30] The applicant’s evidence also shows that, at least as of June 1977, aggregate activity encroached on Lot 17 from the abutting lands, which would include Lot 18, presently owned by the applicant. A witness for the Planning Board conceded in cross-examination that Lot 17 was subject to small aggregate extraction over the years. Sharron Martyn conceded that a map produced by the Planning Board shows an encroachment of industrial-extractive use on Lot 17.
[31] On that basis alone, it would seem that the reasoning in Cedarhurst Quarries should apply: where lands adjacent to a quarry operation are held by a common owner for the purpose of future expansion of a quarry, there is no reason to draw a boundary between adjacent lands.
[32] In the further alternative, the Planning Board submits that quarrying on the land represents an intensification of use. I do not agree. The history of use is that of a pit and quarry that were used continuously for more than fifty years. This use is comparable for planning purposes.
[33] Importantly, there is no evidence that the use to which Lot 17 is put will be any different than the extraction being performed on the adjacent Lot 18.There is already rock crushing being performed on Lot 18 which is undeniably zoned for M2, for industrial extraction. This is not an intensification of activity.
[34] Further, the nature of the activities that are defined and authorized for pits and quarries is the same: crushing, stockpiling, screening, processing, washing, weighing scales, maintaining offices and open and closed storage, and also includes maintaining a wayside pit as defined herein. It is the presentation of the materials as consolidated or unconsolidated aggregate which differentiates a pit from a quarry.
[35] In view of this conclusion it is not necessary to consider the alternative argument about whether the subject land is zoned M2.
Conclusion
[36] I declare that extraction of aggregate on Lot 17, Concession 7, in the Township of Gorham in the District of Thunder Bay, owned by the applicant, constitutes a legal non-conforming use in relation to the applicable zoning regulations. Accordingly, a judgment will issue declaring that no zoning by-law prohibits the site located on portions of Lot 17, Concession 7, in the Township of Gorham, in the District of Thunder Bay, owned by the applicant, from being used for the making, establishment, or operation of pits and quarries.
Costs
[37] In the event that the parties cannot agree on costs, either party may apply to the trial coordinator within 15 days of the release of these reasons for an appointment to argue costs, failing which costs will be deemed to be settled.
_______“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: November 01, 2017
CITATION: Rock Solid Holdings Inc. v. Lakehead Rural Planning et al., 2017 ONSC 6564
COURT FILE NO.: CV-16-0392
DATE: 2017-11-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ROCK SOLID HOLDINGS INC.
Applicant
- and -
LAKEHEAD RURAL PLANNING BOARD and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, as represented by the MINISTER OF NATURAL RESOURCES AND FORESTRY
Respondents
REASONS ON APPLICATION
Pierce J.
Released: November 01, 2017
/sab