COURT FILE NO.: 5943/16
DATE: 20180614
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TOWN OF COBALT
Applicant
– and –
TOWNSHIP OF COLEMAN
Respondent
Michael F. Sirdevan, for the Applicant
Kathryn J. Pirie, for the Respondent
HEARD: March 14, 15 and April 19, 2018
REASONS FOR JUDGMENT
WILCOX, J
INTRODUCTION
[1] The applicant sought a finding that its use of its property in Coleman Township for the extraction of aggregates was permitted under the applicable zoning by-law. For the reasons that follow, I find that it is not permitted.
ORDER SOUGHT
[2] The Applicant sought:
a. declaration that the Applicant's use of the property legally described as PCL 17889 SEC SST; PT LT 11 CON 6 COLEMAN; PT LT 10 CON 6 COLEMAN BEING LOCATION RF121 PT 1 TO 5 54R1287; COLEMAN; DISTRICT OF TIMISKAMING, being all of the lands in PIN 61385-0255 (LT) ("the Cobalt Pit Property") for the extraction of sand and gravel on those lands zoned Development (DE) is a permitted use under the currently applicable Township of Coleman Zoning By-law 06-01;
b. in the alternative, if the Applicant's use of the Cobalt Pit Property for the extraction of sand and gravel on those lands zoned Development (DE) is not a permitted use, a declaration that such use is a legal non-conforming use pursuant to section 34(9) of the Planning Act, R.S.O. 1990, as amended;
c. a declaration that the Applicant's use of the Cobalt Pit Property for the extraction of sand and gravel on those lands zoned Residential Four (R4) is a legal non-conforming use pursuant to section 34(9) of the Planning Act, R.S.O. 1990, as amended; and,
d. its costs of this Application.
[3] The respondent requested the dismissal of the application.
APPLICANT’S POSITION
[4] The applicant submitted that the impugned used is permitted in the DE zone because that use existed prior to the passage of the 2006 zoning by-law. He submitted that the use is permitted in the R4 zone because it was a lawfully existing use under the 1985 zoning by-law, or a legal non-conforming use permitted under section 34(9) of the Planning Act. In the further alternative, he submitted that, if the use is permitted in the DE zone, it is legal across the entire property, even in the part zoned R4.
RESPONDENT’S POSITION
[5] The respondent submitted that there never was a period of time where the property could have been lawfully used for aggregate extraction by the applicant.
[6] Alternatively, if the applicant was able to satisfy the court that the property was lawfully used as a pit at some point, the position of the respondent was that the present commercial use of the property for large scale aggregate extraction does not meet the test for legal non-conforming use under the Planning Act, section 39(4). Absent any non-conforming use, the applicant’s use of the property must be in compliance with the township of Coleman’s official plan, zoning by-law 06-01, and pits and quarries by-law-04-28.
ISSUE
[7] The issue before the court is whether the current use of the property for commercial aggregate extraction is legal, either as a permitted use under the current zoning by-law, or under the status of legal non-conforming use under section 34(9) of the Planning Act.
THE PROPERTY
[8] The property in question is a parcel of land in Coleman Township, in the District of Timiskaming, which parcel is owned by the Town of Cobalt. It is known as the Cobalt pit property or the Sharp Lake Park. It will be referred to herein as “the property”.
[9] It is not significant in the context of this case that the applicant, the Town of Cobalt, is a Municipality. It is simply the owner of the property, just as any person might be.
[10] The property is about 114.67 acres in size. It is in the western shore of Sharpe Lake, and extends west to Highway 11. It is bordered on the north by Greenfish Road which is the boundary line between Coleman Township and Buck Township to the north. On the south side, it is bordered by Clear Lake Road, also known as the West Cobalt Road.
[11] It is bisected by an internal road running approximately north and south. There are 32.21 acres on the east side and 82.46 acres on the west side of the road.
[12] The property was transferred by the Province of Ontario to the Town of Cobalt on July 4, 1972. The letters patent contain the following restriction on the use of the land:
“IT IS A CONDITION of these Letters Patent that the Land shall be used only as a municipal park.”
[13] From 1972 until 1997, the Town of Cobalt operated a municipal park on the land, which was known as the Sharpe Lake Park.
[14] In 2002, the condition restricting the land to use as a municipal park was removed.
[15] The property is currently being use for large scale commercial aggregate extraction.
ZONING BY-LAWS.
[16] The Township of Coleman passed its first zoning by-law, 85-9, in 1985.
[17] On January 25, 2006, the Township passed zoning by-law 06-01, which remains in effect, and repealed zoning by-law 85-9.
DEFINITIONS
[18] In submissions, mention was made variously of pits, quarries and extraction therefrom. Some clarification is required.
[19] Zoning by-law 85-9, at section 3.75, defines “pit”:
Pit means an open excavation or cavity in the natural level of the ground made other than by natural causes by the removal of soil or rock, or both, for the purpose of removing sand, gravel or similar material, which is to be used for road building, construction or manufacturing.
[20] The 2006 zoning by-law at section 2.45 defines “gravel pit” to mean:
Any open excavation made for the removal of any soil, earth, clay, marl, sand, gravel or unconsolidated rock to supply such material for construction, industrial or manufacturing purposes. This definition shall not include:
any excavation incidental to the erection to a building or structure for which a building permit has been issued;
any excavation incidental to the construction of any public works;
any asphalt plant, cement manufacturing plant or concrete batching plant; and
any wayside pit as defined herein.
This is the same as the definition as “pit” in Coleman Township’s pits and quarry’s control by-law of 2004.
[21] The activity that is the focus of this case is the extraction of the sand, gravel and other aggregates from the property.
IS EXTRACTION PERMITTED UNDER THE CURRENT ZONING BY-LAW?
[22] As indicated, the current applicable zoning by-law is 06-01 which was enacted on January 25, 2006 (the 2006 zoning by-law).
[23] The property is zoned shoreline residential (R4) and development (DE) in that by-law. The boundary between the DE and R4 zones appears to fall along the line of the existing internal private road. The DE zone is to the west and the R4 zone is to east of the internal road, between it and Sharpe Lake.
[24] The R4 zone permits specified residential uses. It also permits a non-residential use, being a marine facility. Clearly, it does not permit a pit or quarry. The DE zone permits existing non-residential uses.
THE EVIDENCE
[25] As the applicant’s position depends on the historical use of the property, it is appropriate to review that history.
[26] The parties filed in evidence numerous documents, including third party reports, affidavits, transcripts of cross-examinations thereon, reports, maps, aerial photographs, letters and minutes of meetings between the parties. There was no dispute about the authenticity of any.
[27] Various third party reports were done on the property over the years.
[28] A site review was done in 1970 when Cobalt was interested in purchasing the property for the proposed Sharpe Lake Park. The letter of May 15, 1970 from Canadian Mitchell Associates Limited Consulting Engineers and Town Planners to Cobalt following that site review stated:
a. The lake shoreline is attractive and wooded with steeply rising banks and undulating interior terrain. A forced road follows a generally north/south alignment generally 400 to 600 feet from the lakeshore.
b. Quarrying operation have removed the tree cover from part of the lands close to the Highway but these operations have been terminated.
There was no elaboration on the quarrying operation such as when, by whom and to what extent it was done. There was no mention of any other pits on or extractions from the property.
[29] In a second letter of that date, Canadian Mitchell recommended to Cobalt that the minimum park lands should be those lying between the forced road and the lake. There is no mention of other pits or extraction on the property.
[30] In another letter from Canadian Mitchell to Cobalt, dated June 22, 1970, the property was described as follows:
The topography is undulating and well wooded with a mixture of evergreen and deciduous trees, creating a delightful environment. The shoreline is equally attractive and the bays include small sandy beaches.
[31] There was no mention at all in the second or third letters of extraction activity being found or being an issue.
[32] Next, Knox Martin Kretch Limited, Consulting Engineers, Planners, Landscape Architects provided a report dated June, 1971 to Cobalt regarding the proposed Sharpe Lake Park. A map included in it identified an “unworked gravel pit” at the south end of the property, near where the park entrance was later located.
[33] Cobalt points to these two sources to establish that there were pits on the property, although unworked and terminated as of that time. When they were used, by whom, to what extent they were used and for what purpose are unknown.
[34] Years later, after the park had ceased operating in 1997, the Sharpe Lake Proposal dated July 24, 2001, was produced by the Cobalt Economic Development and Planning Committee regarding the future of the property. It refers to the existing Sharpe Lake Park infrastructure, but makes no mention of a pit being on site. The five phase plan refers to aggregate extraction only in the context of proposing it in “terraforming” the land prior to its redevelopment.
[35] In 2001, Cobalt engaged Kleimaker and Bruse Realty Ltd. Real Estate Appraisers and Consultants to estimate the market value of the property, without consideration of the timber or the gravel deposits which were understood to be present. The report, dated October 9, 2001, says the property was inspected on August 29 and 30, 2001. The park infrastructure is noted. Given the approach and design of the report one could reasonably expect any evidence of pits or extractive activity to be identified, but none are. In this regard, I note the following passage:
To the best of the appraiser’s knowledge and observation the only area of the subject property that has undergone any clearing is the location of the playground common washroom and shower facilities in the campground area. The southeasterly corner of the property which is the location of the park office has no mature vegetation. The inspection of this part of the property indicated the presence of aggregates.
[36] Aerial photos of the property were filed in evidence. These were taken in 1946, 1958, 1970, 1977, 1980, 1989, 1994, 2013 and 2014. I am mindful that there was no expertise provided to assist in their interpretation. The property does appear to be heavily forested from 1946 through 2013. There are two areas noted that Cobalt suggests are pits. They might be but, at least from the early 1970’s, they could also be park infrastructure. There is an obvious change from 2013 to 2014, however. A large area straddling the internal road has been cleared of forest and has taken on the appearance of the pit that is known to be operated on an adjacent property to the north.
[37] A series of maps was submitted. They had been produced over the years from 1960 to 1994 by various government departments. One from 1960 identifies a small “gravel pit” at the south end of the property. However, another from 1962, based on 1951 and 1956 aerial photographs, identified gravel pits elsewhere but not on the property.
[38] Another, from 1964, is unclear. If it shows a pit, it is a small one at the south end of the property.
[39] A 1977 Ministry of Natural Resources (MNR) map identifies a small pit at the south end again.
[40] A 1983 Energy Mines and Resources map derived from 1980 aerial photos does not identify a pit on the property although it does show a park infrastructure. A 1994 map from that source shows campground infrastructure, but no pit, on the property. It does show pits on other properties in the area.
[41] From the maps which show pits, one cannot tell if they are worked or unworked. Also, whereas some show the source of the information, such as aerial photographs, on others such as the 1977 MNR database map the source or currency of the information is not given. The two most recent maps, being the Energy Mines and Resources ones from 1983 and 1994, respectively, do not show pits on the property.
[42] Numerous affidavits were filed by both sides with respect to whether or not the property had been used for extraction. Typically, the deponents said they were elderly, had been long-time residents of the area, had been on the municipal councils of or had worked for either of the parties, and were familiar with the property. Nevertheless, the affidavits were contradictory as to whether there had been a pit on or extraction from the property. What they reveal is that, if any extraction took place, it was small scale, such that some people were not aware of it, and was done for purposes related to the park or for other municipal purposes. Furthermore, I find that the evidence shows that the extraction was done at the south end of the park around the gatehouse and parking area in what is now the R4 zone.
[43] In a letter of December 16, 1999, to the Ministry of Tourism, Steph Palmateer, writing as CAO and Clerk/Treasurer of Cobalt, advised that Cobalt had not operated the park as a tourist camp since 1997 nor done anything with the camp since then, that Cobalt was considering all its options and that it was seriously considering having local residents operate and manage the park on Cobalt’s behalf. There was no mention of any extraction from the property, past present or future.
[44] As previously mentioned, the lands were granted by the crown in right of the Province Ontario to Cobalt in letters patent and registered July 4, 1972. It was an explicit condition of the letters patent that the land should only be used for a municipal park. Section 21 of the Public Lands Act, R.S.O. 1970 provides for such grants with conditions, and further provides for legal proceedings for orders for forfeiting the land to the crown where the land has been or is being used in violation of a condition. There is no evidence that the crown expressed concerns about the use of the property or threatened or began any such proceedings.
[45] Cobalt wrote on November 28, 2000, to the Ministry of Natural Resources with respect to removing the condition, saying that it was considering having the property timbered, using it as a gravel pit to remove the 80 foot drop to the lake, and then rehabilitating it for other uses.
[46] The MNR replied to Cobalt on February 21, 2001 advising about the process for removing the condition. In the interim, it said, Cobalt was limited to removing trees as necessary to develop the property as a municipal park and extracting aggregate to upgrade roads and parking areas on the property as required for a municipal park.
[47] While the process to release the condition was going through, Cobalt communicated by email on September 4, 2002 with the MNR about how to word a request for proposal for selling the property. The email chains shows no intention by Cobalt to use the property for extraction at that time but, rather, an intention to sell the property.
[48] On October 28, 2002, the condition was lifted.
[49] On April 3, 2000, Cobalt wrote to inform Coleman of its intention to change the use of the park, and of its desire to meet to discuss this. That was the beginning of years of meetings and correspondence between them over the use of the property. For example, on November 26, 2001 the two councils met to discuss the Sharpe Lake Proposal. It was agreed that the proposed gravel removal “would not turn out to be another gravel pit”.
[50] In November, 2002, the Town of Cobalt entered into an agreement with Grant Forest Products Inc. to sell to it the timber rights on the property.
[51] By letter of February 27, 2003, legal counsel for Coleman informed Cobalt of the then existing zoning of the property, which limited the uses that may be made of it, thereby flagging the issue of zoning and permitted uses.
[52] That zoning for aggregate extraction was a known issue appears from Cobalt’s request for bids to purchase the property, issued in the spring of 2003, and in Miller Paving Limited’s written refusal of June 20, 2003 to bid for the property because aggregate extraction was not permitted by the zoning.
[53] Only after further correspondence between Cobalt and Coleman about the zoning, in which Coleman indicated that an official plan amendment and zoning change would be required to permit aggregate extraction and that Coleman was opposed to aggregate extraction, did Cobalt inform Coleman by letter of August 23, 2005, that there was an existing pit on the property, that it appeared to be a non-conforming use, and that Cobalt intended to complete the aggregate extraction within one to two years. This appears to be the first time that Cobalt alleged that there was an existing pit and that it qualified as a non-conforming use.
[54] By May, 2013, the Town of Cobalt had entered into an agreement with Miller Paving Ltd. for the latter to extract aggregates from the property.
RE: LEGAL NON-CONFORMING USE
[55] As there is some evidence of at least a minimal amount of historical extraction from lands in the R4 zone, I will deal with the applicant’s contention that the extraction is a legal non-conforming use under the 2006 zoning by-law.
[56] In this regard, the Planning Act provides:
Zoning by-laws
34 (1) Zoning by-laws may be passed by the councils of local municipalities:
Restricting use of land
- For prohibiting the use of land, for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or abutting on any defined highway or part of a highway.
Excepted lands and buildings
(9) No by-law passed under this section applies,
(a) to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose; or
[57] Correspondingly, section 1(2)(c) of the 2006 zoning by-law provides:
Nothing in this By-law shall prevent the use of any land, building or structure for any purpose prohibited by this By-law if such land, building or structure was lawfully used for such purpose on the date of passing this By-law so long as it continues to be used for that purpose.
[58] Applicant’s counsel acknowledged that the applicant had the onus of proof that extraction is such a legal non-conforming use.[^1]
[59] In Feather v. Bradford (Town), 2010 ONCA 440, the Ontario Court of Appeal stated at paragraph 27:
[27] In order to prove a legal nonconforming use, a party must prove that:
the use of the land, building or structure was lawful at the time of the enactment of the relevant zoning restriction; and
the previously lawful use has continued thereafter.
[60] In St-Romuald (City) v. Olivier, 2001 SCC 57, the Supreme Court of Canada approved of permitting increases in the intensity of use so long as the same type of use is continued, but noted that “intensification may be of such a degree as to create a difference in kind”. (p. 912 and 913). The approach to take in deciding this was set out in detail. The law on point was later summarized in The Corporation of the Township of Uxbridge v. Talbot, 2014 ONSC 1276 at para. 51-53:
[51] In order to prove a legal non-conforming use, a party must establish that: a) the use of the land, building or structure was lawful at the time of the enactment of the relevant zoning restrictions; and b) the previously lawful use has continued thereafter: Feather v. Bradford West Gwillimbury (Town), 2010 ONCA 440, 2010 CarswellOnt 3986 (Ont. C.A.) at para. 27: Planning Act, R.S.O. 1990, c.P.13, s. 34(9)(a).
[52] In considering the legal non-conforming use exemption, the court is to look at “[…] the essential purpose for which the property is being used to determine if the change of activities is beyond the scope of that purpose”: Watts v. Benvenuti, 2005 63810 (ON SC), 2005 63810 (Ont. S.C.J.), para. 35, aff’d 2006 17920 (ON CA), 2006 17920 (Ont. C.A.). If a subsequent owner merely expands a pre-existing use or engages in a different activity which is within the generic description of the pre-existing use, the owners protection will not be lost: Glenelg (Township) v. Davis, (1992) CarswellOnt 487 (Ont. C.A.), at para. 13.
[53] The factors that the court should look at in determining whether a party has proven legal non-conforming use were outlined in Saint-Romuald (Ville) v. Olivier, 2001 SCC 57, 2001 S.C.C. 57 at para. 39, and paraphrased by this Court as follows:
a. First characterize the purpose for which the premises were used prior to the new by-law restrictions. Use is a function of the activities actually carried on at the site;
b. If the current use is merely an intensification of the pre-existing activity, the protection will not be lost. When the intensification goes beyond a matter of degree and constitutes, in terms of community impact, a difference in kind, the protection may be lost;
c. To the extent activities are added, altered or modified within the scope of the original use, the court has to balance the landowner’s interest against that of the community;
d. Neighbourhood effects should not be assumed (but) must be established by evidence;
e. The characterization of the acquired right should not be so narrow as to rob the land owner of some flexibility in the reasonable evolution of prior activities;
f. The court is to look at the facts objectively, not subjectively with personal value judgments, when characterizing the acquired right and changes to the original purpose.
[61] Applicant’s counsel acknowledged that this is the test for a legal non-conforming use.
[62] Where there is an argument that a land use is a legal non-conforming use, but there has been an interruption in that use, to continue to qualify as a legal non-conforming use, there must be found:
a. The intention to continue the use, and
b. The continuation of the actual use so far as it is possible in the circumstances.[^2]
[63] Courts have recognised that the use of pits and quarries may be intermittent.[^3]
[64] Applicant’s counsel frankly admitted that there has been an intensification of use. Whereas previously there was extraction by Cobalt for municipal purposes and to give some winter sand to the Township of Coleman, it is now a full scale sand and gravel removal operation, he said. However, he submitted, it is nothing more than an intensification of the pre-existing activity, which had been continuous, even when the park was operating on the property.
ANALYSIS
[65] Assuming without deciding that extraction was lawful at the time of enactment of the current zoning by-law, I turn to the factors to be considered in determining if there is a legal non-conforming use.
[66] As previously noted in reviewing the affidavit evidence in particular, to the extent that there was extraction from the property, it was limited and small scale, and was for municipal purposes. These purposes included servicing the needs of the park. In this regard, I would not count the flattening of the entrance area to provide room for the gatehouse and parking as extraction. Beyond that, small amounts were used for winter sand and on occasion for other municipal purposes outside of the park, such as building a ball diamond and rehabilitating properties after a fire. The area affected was a small part of the whole property, leaving the rest essentially untouched and available for uses such as the park. The use of the property for extraction was secondary and incidental. The essential character of the property was preserved.
[67] By contrast, the present use is for commercial aggregate extraction not limited to municipal purposes. The Ministry of Natural Resources estimated the volume of aggregate available from the property at one million cubic yards. There was reference in the evidence about one proposal for the property to reducing the height of the property near the lake by about 80 feet through “terraforming” by aggregate removal. These give some idea of the large scale of the commercial extraction activity. The 2014 aerial photo shows a large portion of the property, which had previously been forested and used as a park and campground, to have been de-forested and essentially being strip-mined. This use is consuming the property. I find that this is not just an intensification of a pre-existing use. It is a use of a different kind. It is not just a reasonable evolution of a prior activity.
[68] This impacts on the community. There is some affidavit evidence of the diminution of people’s enjoyment of the property and of Sharpe Lake itself.
CONCLUSION
[69] I find that the commercial extraction on the scale that has taken place since about 2013 is not a legal non-conforming use in the R4 zone. In my view, that degree of extraction activity is not just an intensification of the previous small scale secondary, incidental extraction for municipal purposes. The later use is different in kind. Therefore, it is not a permitted use. As for the DE zone, it does not appear that the Town of Cobalt carried on extraction activities there. The evidence of any extraction taken place there is limited, historical and certainly not first hand. Therefore, I do not find extraction to be a pre-existing use which would be permitted under the zoning By-law. Alternatively, if I am wrong about that, I find that the same would be true of the DE zone as is of the R4 zone. The large scale commercial extraction is different in kind and does not qualify as an existing use under the zoning By-law.
[70] Therefore, the large scale commercial extraction is not a permitted use of the property.
COSTS
[71] If the parties are unable to reach agreement as to costs, the respondent may serve and file a bill of costs with written submissions within 30 days. The applicant may serve and file its bill of costs and written submissions within 15 days after that. Submissions shall be limited to three pages, double spaced.
J. A. S. Wilcox
Released: June 14, 2018
COURT FILE NO.: 5943/16
DATE: 20180614
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TOWN OF COBALT
Applicant
– and –
TOWNSHIP OF COLEMAN
Respondent
REASONS FOR JUDGMENT
WILCOX, J
Released: June 14, 2018
[^1]: See: City of Toronto v. San Joaquin Investments Ltd. et al (1978) 1978 1576 (ON SC), 18 O.R. (2d) 730 Ontario HCJ
[^2]: Haldimand-Norfolk (Regional Municipality) v. Fagundes, 2000 20376 (ON SC), [2000] O.J. 207 (ONCA).
[^3]: Rock Solid Holdings Inc. v. Lakehead Rural Planning et al., 2017 ONSC 6564, para. 8