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2010-145 Amend Zoning - Leigh 2009-ZBA-13THE CORPORATION OF THE TOWNSHIP OF ORO- MEDONTE BY- LAW NO. 2010 -145 A By -law to amend the zoning provisions which apply to lands within Part West Half of Lot 24, Concession 7(Former Township of Oro); Part Lot 25, Concession 7 (Former Township of Oro) as in RO662159; Except Part 1, 51 R -6080, Oro - Medonte and Except Part 1, 51 R- 37419, Save and Except Part 1 & 2, 51 R- 37365, Ridge Road West (Leigh 2009- ZBA -13) WHEREAS the Council of the Corporation of the Township of Oro - Medonte is empowered to pass By -laws to regulate the use of land pursuant to Section 34 of the Planning Act, R.S.O. 1990, c.P.13; AND WHEREAS Council deems it appropriate to rezone the lands to prohibit the development of residential uses, in accordance with Section C1.3 of the Official Plan; NOW THEREFORE the Council of the Township of Oro - Medonte hereby enacts as follows: Schedule `A4' to Zoning By -law 97 -95, as amended, is hereby further amended by changing the zone symbol applying to the lands located in Part West Half of Lot 24, Concession 7 (Former Township of Oro); Part Lot 25, Concession 7 (Former Township of Oro) as in RO662159; Except Part 1, 51R-6080, Oro - Medonte and Except Part 1, 51R-37419, Save and Except Part 1 & 2, 51R-37365, Ridge Road West, Township of Oro - Medonte, from the Agricultural /Rural (A/RU) Zone to the Agricultural /Rural Exception 201 (A /RU *201) Zone as shown on Schedule 'A' attached hereto and forming part of this By -law. 2. Section 7 — Exceptions of Zoning By -law 97 -95 as amended is hereby further amended by adding the following subsection: 7.201 *201 — Part West Half of Lot 24, Concession 7 (Former Township of Oro); Part Lot 25, Concession 7 (Former Township of Oro) as in RO662159; Except Part 1, 51 R -6080, Oro - Medonte and Except Part 1, 51 R- 37419, Save and Except Part 1 & 2, 51 R- 37365, Ridge Road West Notwithstanding "Table Al — Permitted Uses ", a single detached dwelling is not permitted on the lands denoted by the symbol *201 on the schedule to this By -law." 3. This By -law shall come into effect upon the date of passage hereof, subject to the provisions of the Planning Act, as amended. BY -LAW RE- INSTATED PER OMB ORDER ISSUED MAY 15, 2012 OMB CASE NO. PL111083 Schedule `A' to By -law No. 2010 -145 This is Schedule 'A' to By -Law 2010 -145 passed the 10`h day of August, 2010. BY -LAW RE- INSTATED PER OMB ORDER ISSUED MAY 15, 2012 OMB CASE NO. PL111083 TOWNSHIP OF ORO- MEDONTE (FILE 2009- ZBA -13) ISSUE DATE: ® MAY 1 8 2012 May 15, 2012 PL111083 Ontario Ontario Municipal Board Commission des affaires municipales de I'Ontario IN THE MATTER OF subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: County of Simcoe Subject: By -law No. 2011 -138 Municipality: Township of Oro - Medonte OMB Case No.: PL111083 OMB File No.: PL111083 APPEARANCES: Parties Counsel* /Agent County of Simcoe Marshall Green* Barry Leigh Elizabeth Woronka DECISION DELIVERED BY R. ROSSI AND ORDER OF THE BOARD The appellant in this case, the County of Simcoe (County) is appealing the decision of the Committee of Adjustment (Committee) of the Township of Oro - Medonte (Township) that approved an application by Barry Leigh (Applicant) to allow the rezoning of the Applicant's property to allow for a residential use to occur on a specialized agricultural lot. The Committee passed By -law 2011 -38 in 2011 to facilitate the rezoning, replacing By -law 2010 -145, which allowed the specialized agricultural use (which the Applicant had also previously applied for in 2009) but denied a residential use. Counsel Marshall Green represented the County and provided two witnesses who opposed the application: County Planner Rachelle Hamelin and former Township Planner Steven Farquharson. The Applicant provided no planning evidence and relied instead on family friend Elizabeth Woronka to be his agent. Ms. Woronka offered minimal anecdotal background information regarding the Applicant's motivation for seeking the amendment. - 2 - PL111083 Ms. Hamelin provided contextual evidence as well as application- specific planning evidence and she presented her expert opinion in opposition to the by -law amendment. The Applicant's property has 209 metres of frontage on Ridge Road West (County Road 20), is 5.3 hectares (13.26 acres) in size and is situated west of the Oro Station Settlement Area. The County of Simcoe Official Plan designates this property as "Agricultural, Soil Class 1 to 3" and the Township of Oro - Medonte Official Plan designates it "Agricultural ". The subject property is vacant today. It was the subject of a consent application that the Applicant filed in 2009 and was hived off from the larger farm to serve as a "specialty agricultural use ". The smaller severed subject property was then used for a market garden use and community- shared agricultural use. Ms. Hamelin advised the Board that the County did not object to the 2009 severance application for the specialty agricultural use as long as no residential use would be permitted as the property abuts a County road. The property was thus zoned in August 2010 with the residential prohibition included in By -law 2010 -145. A subsequent application by the Applicant to permit a residential use was next submitted to the Township in May 2011. Despite the recommendations of both County and Township staff not to approve the addition of a residential use permission, the Township approved the use in August 2011. Provincial Policy Statement, 2005 (PPS) The planner reviewed the broad direction and vision statements of the PPS and opined that the proposed by -law amendment offends this instrument's objectives for planning in the province and especially those related to agriculture. The PPS designates this land as "Prime Agricultural Area The proposed use runs counter to the province's stated intention to protect agricultural lands for long -term use. The Board notes that the theme of proper management of the land and resources of the province is a consistent theme running through this planning instrument. Supporting the planner's opinion was a RE /MAX Trends Report, Farm Edition 2011 (Exhibit 1, Tab 26), wherein the report observes that permitting a residential use on a small piece of land like the subject property increases the value of the land and does not protect it for agricultural use. She opined that there exists the potential to turn the subject land into a residential estate, adding that once a home is placed on the property -3- PL111083 with its associate landscaping and amenities added, the land under those uses is then taken out of agricultural operations. This does not preserve the agricultural lands for long -term agricultural use as the PPS directs. It could also impact adjacent lands that might not be compatible with the use. The planner also included in her evidence the Farm Credit Canada "Spring 2012 Farmland Values Report — Ontario" (Tab 27), that noted the creeping gentrification of the province's agricultural lands: "Commuters continued to purchase small farms north of the Greater Toronto Area (GTA) for rural residential purposes, as the GO Transit system recently expanded to those areas. This has created greater demand for farmland in this region." In terms of the PPS, the direction of this instrument in terms of managing agricultural land is to preserve it, and large parcels are the most conducive way to achieve this. While no particular farm size is identified in the PPS, local municipalities are free to determine farm sizes in their respective official plans. However, section 4.6 of the PPS points out that its policies are minimum standards and they do not prevent planning authorities from going beyond the minimum standards established in specific policies, unless doing so would conflict with any policy of the PPS. In Ms. Hamelin's opinion, the application does not preserve agricultural lands for long term uses and needs, thereby reducing the amount of land available for such uses. It does not protect the agricultural resource and would actually increase the cost of the land, prohibiting other operators from acquiring it and impeding the proposed specialized agricultural use for which the lot was created. With no opposing viewpoint or evidence before it, the Board determines that the policies and directives of the PPS are offended by this proposal. County of Simcoe Official Plan (County Plan) In the context of the County of Simcoe Official Plan, Ms. Hamelin opined that the subject proposal does not minimize land use conflicts, which is an objective of the County Plan. She noted that the County Plan directs that Prime Agricultural Areas will be protected for agriculture and compatible uses (Tab 23). She opined that had the Applicant made a request for a residential use at the time of the 2009 severance application, the County and the Township staff would have required additional justification for the residential use. She added that new residential lots are not permitted on a County road in any case. The County Plan also directs that applications such as this should minimize'adverse impacts on agricultural uses. The planner opined that this PL111083 proposal does not do so for many of the same reasons espoused in her analysis of the PPS policies. With no opposing viewpoint or evidence before it, the Board determines that the policies and directives of the County Plan are offended by this proposal. Township of Oro - Medonte Official Plan (Township Plan) Ms. Hamelin also reviewed the policies of this Township Plan and noted that these are more restrictive than those of the County Plan. The latter directs (Policy 3.4.1) that where the policies of local municipal official plans are considered more restrictive than the policies of the County Plan, the more restrictive policies shall apply. As part of its stated community vision and through its official plan, the Township views agricultural areas of the municipality as "an important component of what makes up the character of the community" (Tab 22): "It is the goal of this Plan to preserve areas demonstrating high capability for agricultural production for that purpose ". In Section C1- Agricultural of the Township Plan, the Township's objectives are to preserve agricultural uses that support the local economy; to maintain and preserve the agricultural resource base of the Township; to promote the agricultural industry and associated activities and enhance their capacity to contribute to the economy of the Township; and to preserve and promote the agricultural character of the Township and the maintenance of the open countryside (Tab 22, page 65). In the planner's opinion, a residential use on these lands would increase the cost of the lands, which is not a cost - effective approach to the protection of or accessibility to agricultural uses over the long term. It would be better, in her opinion, to integrate the vacant parcel into an adjacent farm and agricultural use, which the residential use would not facilitate. As the Township Plan explains in its Development Policies section, for the creation of new lots for agricultural purposes, certain criteria must be met. It also states that the rezoning of a property to permit a residential use is strongly discouraged by the Township Plan as development of a residence would have an impact on either the rural character of the area and /or the viability of agricultural operations in the area. Ms. Hamelin explained that while the Applicant's 2009 severance application for a specialized agricultural use was assessed against the policies of this section of the Township Plan, the proposed new residential use does not meet these criteria. - 5 - PL111083 What was also noteworthy of mention is section C1.3.2 that states in part: "In accordance with the intent of this Plan to protect land suitable for agriculture... the creation of new lots'in the Agricultural designation for non - agricultural purposes is not permitted." With no opposing viewpoint or evidence before it, the Board determines that the policies and directives of the Township of Oro - Medonte Official Plan are offended by this proposal. Planner Steven Farquharson is a former planner with the Township (currently a development planner with the City of Barrie) who was responsible for the planning report that was originally filed in this matter. He was also the planner for the severance application and the rezoning for the specialized agricultural use and the subsequent application for a residential use. He appeared at this hearing under summons and like Ms. Hamelin, he was qualified to provide his expert opinion and professional land use planning evidence. Mr. Farquharson agreed with and adopted Ms. Hamelin's planning evidence and expert opinion and he opposed the zoning by -law amendment to permit a residential use. It was precisely this concern that prompted planning staff in 2009 to direct the Applicant to provide a business plan and an agricultural impact assessment report as per the requirements of the Township's Plan. Also, as part of the Township's provisional approval of consent, the Applicant was directed to apply for rezoning that would prohibit the residential use. Mr. Farquharson told the Board that the same concern was echoed not only by the Committee of Adjustment but by members of the public as well. The Applicant's representative at that Committee meeting explained that the proposed severance would not have a residential use and on that basis, the severance was approved with the residential use component removed from the normally permitted uses in the zone. This planner expressed his concern that the application seeks to reinstitute the residential use which, in his expert opinion, does not maintain the intent of the by -law that council passed and he reiterated several of the same PPS, County and Township Plans' policies that Ms. Hamelin had cited in her evidence. Ms. Woronka was unable to provide the Board with any planning evidence to support the Applicant's request for an amendment to the zoning by -law. She referenced a 2009 M PL111083 decision of the Committee of Adjustment that had approved a residential use on a parcel of land in 2009 in the agricultural area but the Board noted with Mr. Green's assistance, that the use was approved for the operator of a residential care home on these lands and the use was deemed not to have any impact on adjacent agricultural operations. While Ms. Woronka was unable to proffer any planning evidence to support the Applicant's requested amendment to the by -law to permit the residential use, she was able to explain the reason for his request. The Applicant and his wife wanted to move from the more labour- intensive dairy farming operation to a more manageable market garden use on the subject property. Following the passing of his wife, Mr. Leigh has since focused on his commercial market garden. Ms. Woronka told the Board that the amendment will mean the commercial driveway entrance, which supports the commercial market garden use, would be downgraded to a residential driveway entrance. Ms. Woronka opined that the commercial driveway entrance impacts the County road more than any traffic that the residential use would generate. Interested participant Bruce Wiggins, a long -time friend of the Applicant, made the same argument in support of the use. The Board recognizes, however, that this is not an either /or proposition. The Applicant is not seeking to replace the commercial market garden use with a residential use; rather, he seeks to add a residential use component that is not permitted in any of the planning documents. Thus, the statements made by Ms. Woronka and Mr. Wiggins regarding less traffic generated by a residential use versus the commercial use is assigned little weight by the Board because both uses would operate simultaneously. Local resident Robert Blackmore made one statement to the Board opposing the application as he feared the subject property could be turned into a residential subdivision. The Applicant also told the Board that he wants the option of being able to build a residence on the subject property. He is as yet unsure whether he would do so. In arriving at its determination, the Board had regard to the decision of the Township to approve the use last summer. Despite the overwhelming factual evidence that the type of use this Applicant proposes is not encouraged and in fact is prohibited in policies that direct the long -term protection and preservation of agricultural lands in all of the local, regional and provincial planning instruments, the Township decided that the residential - 7 - PL111083 use should be permitted. Mr. Green offered a most reasonable submission on this point at the end of the hearing. In recognizing the Applicant as a citizen of good character and longstanding member of this community, in all likelihood the Township assisted the Applicant with his "specialized agricultural use" application in 2009 by guiding him through the Township Plan and explaining the types of documents that had to be submitted. The Board finds this submission to be persuasive. Yet, it also finds Mr. Green's submissions persuasive that the policy regime regarding agricultural uses is expressly restrictive — pointedly so — and the Board places significant weight on the policies of the PPS and the lower -tier instruments, which all seek to preserve and protect agricultural lands from impacts caused by the intrusion of residential uses. As the County's counsel submitted, the emergence of retirement farms along County roads all over the province in the past few decades has resulted in the PPS including its restrictive language and suggesting that the assembly of such lots into larger agricultural lands is the best way to protect and preserve the use. As Mr. Green pointed out, the Applicant's possible desire to semi- retire.to a residential use on the severed subject property is precisely the type of problem that municipalities are facing. Echoing the aforementioned Farm Trends Report, these lots tend to hinder larger agricultural operations, which are deemed by the province and municipalities to be the more economical and effective approach to ensuring agricultural lands can continue to produce foods for the people of Ontario. Unless these lands comprise special soils or special operations, they tend to end up as residences for urban dwellers who dream of being country landowners, maintaining small operations and building large homes, which come with septic systems, swimming pools and landscaping plans. The Board finds persuasive Mr. Green's submission that this amendment should be refused in order to protect the province's and the municipality's agricultural lands for the future. Having considered the only planning evidence in this case — all of which is not supportive of the addition of a residential lot in an agricultural area — the BOARD ORDERS that the appeal is dismissed and the proposed zoning by -law amendment to permit a residential use on agricultural lands is not approved. I:IN So Orders the Board. "R. Rossi" R. ROSSI MEMBER PL111083 THE CORPORATION OF THE TOWNSHIP OF ORO- MEDONTE BY- LAW NO. 2010 -145 A By -law to amend the zoning provisions which apply to lands within Part West Half of Lot 24, Concession 7(Former Township of Oro); Part Lot 25, Concession 7 (Former Township of Oro) as in RO662159; Except Part 1, 51 R -6080, Oro - Medonte and Except Part 1, 51 R- 37419, Save and Except Part 1 & 2, 51 R- 37365, Ridge Road West (Leigh 2009- ZBA -13) WHEREAS the Council of the Corporation of the Township of Oro - Medonte is empowered to pass By -laws to regulate the use of land pursuant to Section 34 of the Planning Act, R.S.O. 1990, c.P.13; AND WHEREAS Council deems it appropriate to rezone the lands to prohibit the development of residential uses, in accordance with Section C1.3 of the Official Plan; NOW THEREFORE the Council of the Township of Oro - Medonte hereby enacts as follows: 1. Schedule `A4' to Zoning By -law 97 -95, as amended, is hereby further amended by changing the zone symbol applying to the lands located in Part West Half of Lot 24, Concession 7 (Former Township of Oro); Part Lot 25, Concession 7 (Former Township of Oro) as in RO662159; Except Part 1, 51 R -6080, Oro - Medonte and Except Part 1, 51 R- 37419, Save and Except Part 1 & 2, 51 R- 37365, Ridge Road West, Township of Oro - Medonte, from the Agricultural /Rural (A/RU) Zone to the Agricultural /Rural Exception 201 (A/RU *201) Zone as shown on Schedule `A' attached hereto and forming part of this By -law. 2. Section 7 — Exceptions of Zoning By -law 97 -95 as amended is hereby further amended by adding the following subsection: "7.201 *201 — Part West Half of Lot 24, Concession 7 (Former Township of Oro); Part Lot 25, Concession 7 (Former Township of Oro) as in RO662159; Except Part 1, 51 R -6080, Oro - Medonte and Except Part 1, 51 R- 37419, Save and Except Part 1 & 2, 51 R- 37365, Ridge Road West Notwithstanding "Table Al — Permitted Uses ", a single detached dwelling is not permitted on the lands denoted by the symbol *201 on the schedule to this By -law." 3. This By -law shall come into effect upon the date of passage hereof, subject to the provisions of the Planning Act, as amended. BY -LAW READ A FIRST, SECOND AND THIRD TIME, AND PASSED THIS 10TH DAY OF AUGUST, 2010. THE CORPORATION OF THE TOWNSHIP OF ORO- MEDONTE Mayor, H.S. ughes ei'k. JFDoddlas Irwin Schedule `A' to By -law No. 2010 -145 This is Schedule 'A' to By -Law 2010 -145 passed the 10" day of August, 2010. Ma, Cie TOWNSHIP OF ORO- MEDONTE (FILE 2009- ZBA -13)