The URL can be used to link to this page

2017-167 A By-Law to allow Temporary Uses on lands (Burl's Creek)PL151011 -Attachment 1 THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE BY-LAW NO. 2017- 167 A By-law to allow Temporary Uses on lands described as follows: Part of Lots 21 & 22, Concession 8, as in RO850934, s/t ORO16808; Part of Lot 22, Concession 9, as in R01 326331, Except PT 1, 51R31499; Part of Lot 22, Concession 8, as in R01 116954; Part of Lot 22, Concession 8, being Part 1 on 51 R-3247; Part of Lot 23, Concession 9 being Part 1 on 51 R-31789; Part of Lot 21, Concession 8, ORO as in RO504892, Except Part 4 51 R-2707, Part of Lot 22, Concession 8, being Part 1 on 51R-35062; and Part of Lot 21, Concession 8, ORO, designated as Parts 1, 2 & 3, 51R20880 all in the Township of Oro Medonte, County of Simcoe under Sections 34 and 39 of the Planning Act, R.S.O. 1990, c.P.13, as amended. 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, as amended; AND WHEREAS Section 39 of the Planning Act, in accordance with Section 34 of the Planning Act, provides the authority to establish temporary uses; AND WHEREAS an application has been submitted to the Township of Oro-Medonte to establish a Temporary Use on the subject lands; AND WHEREAS that application has been appealed to the Ontario Municipal Board such that the Ontario Municipal Board is now the approval authority for the proposed Temporary Use; AND WHEREAS the Ontario Municipal Board deems it appropriate to grant a Temporary Use in accordance with Section E1.3 of the Official Plan; NOW THEREFORE the Township of Oro-Medonte Zoning By-law 97-95, as amended, is hereby amended as follows: 1. Notwithstanding the permitted uses of By-law 97-95, as amended, as they apply to lands described as Part of Lots 21 & 22, Concession 8, as in RO850934, s/t ORO16808; Part of Lot 22, Concession 9, as in RO1326331, Except PT 1, 51 R31499; Part of Lot 22, Concession 8, as in R01 116954; Part of Lot 22, Concession 8, being Part 1 on 51R-3247; Part of Lot 23, Concession 9 being Part 1 on 51R-31789; Part of Lot 21, Concession 8, ORO as in RO504892, Except Part 4 51 R-2707, Part of Lot 22, Concession 8, being Part 1 on 51R-35062; and Part of Lot 21, Concession 8, ORO, designated as Parts 1, 2 & 3, 51R20880 all in the Township of Oro Medonte, County of Simcoe as shown on Schedule "A" attached hereto, these lands are permitted the following uses: -2- 1.1 Permitted Uses a. Overnight Camping, in conjunction with, and accessory to, a special event on the lands zoned PR *30 and PR *31 b. Overnight Parking, in conjunction with, and accessory to, a special event on the lands zoned PR *30 and PR *31 C. Concession Booths, in conjunction with, and accessory to, a special event on the lands zoned PR *30 and PR *31 d. Recreational Soccer Fields and associated day parking e. Existing Uses as of the date of the passing of this By -Law 1.2 Duration and number of permitted special events For the duration of the temporary use bylaw, permitted uses shall not run for more than five (5) consecutive days and any permitted use event which runs for more than (two) 2 consecutive days shall be followed by two (2) consecutive days where no permitted use shall take place on the lands covered by this temporary use bylaw. Recreational Soccer Fields, Overnight Camping, Overnight Parking and Concession Booths in accordance with Section 1.1 shall not be permitted for more than twenty seven (27) days in any calendar year on the lands covered by this temporary use bylaw. 2. Schedule "A" attached hereto forms part of this By-law. 3. This By-law is hereby repealed on December 31 st, 2018. Enacted Pursuant to Ontario Municipal Board Decision for Case No. PL161011 Issued on July 14, 2017 JanAte Teeter, Deputy Clerk PL151011 - Attachment 2 - to By -Law No. 2017-167 3�s g O� e. 5 3 NF- E a% / p a4$OW W yF {y p m Q ca .10MR 11 (pW� �fi V £$ YYY s ie 5�t'd-4L-Wmm 9tl �q a W �— . Wgaamu. J WdMin CL OR g z @ i� aSX39 z9 g ---------------- Issued on July 14, 2017 Janefte Teeter, Deputy Clerk W O Lu F— LU J LU Z U U) H Z 0 O ry O LL O Z O H Ontario Municipal Board Commission des affaires municipales de I'Ontario ISSUE DATE: July 14, 2017 CASE NO(S).: PL151011 PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended Applicant and Appellant: Subject: Existing Zoning: Proposed Zoning: Purpose: Property Address/Description: Municipality: Municipality File No.: OMB Case No.: OMB File No.: OMB Case Name: Burl's Creek Events Grounds Inc. Et AI Application to amend Zoning By-law No. 97-95 - Refusal or neglect of Township of Oro-Medonte to make a decision Agricultural/Rural (A/RU), Agricultural/Rural Exception 32 (A/RU*32), Rural Residential Two (RUR2), Private Recreational Exception 30 (PR*30), Private Recreational Exception 31 (PR*31) and Environmental Protection (EP) To be determined To permit a temporary use by-law for the subject lands that would permit Special Events for a period of three years Part Of Lots 22&23, Con 9, Pt Of Lots 21 &22, Con Township of Oro-Medonte 2015-ZBA-02 PL151011 PL151011 Burl's Creek Events Grounds Inc. v. Oro-Medonte (Township) Heard: May 24-27, May 31, June 1, October 25-28, November 8, 2016 and January 19, 2017 in Oro- Medonte, Ontario 2 PL151011 APPEARANCES: Parties Counsel*/Representative Burl's Creek Event Grounds Inc. Nicholas T. Macos* ("Appellant") J. Lancaster and D. lonico (Students -at -Law) The Corporation of the Township Christopher Williams* of Oro-Medonte ("Township") Andrea Skinner* Save Oro and West Oro David Donnelly* Ratepayer's Association Inc. A. Sabourin* K. Matveev (Student -at -Law) Friends of Burl's Creek Inc. David S. White* Montagnais Metis First Nation Grand Chief Keith Doxsee DECISION DELIVERED BY R. G. M. MAKUCH AND DAVID L. LANTHIER AND ORDER OF THE BOARD INTRODUCTION [1] In April of 2015, the Appellant ("Burl's Creek") filed an application for a temporary use by-law ("TUBL") to amend the Township's Zoning By-law ("Township ZBL"). The TUBL was requested to permit the temporary use of a collection of lands ("TUBL Lands") surrounding and abutting the existing Burl's Creek concert and entertainment grounds ("Entertainment Venue") as an area for camping, parking and concession booths. The TUBL would also allow for the use of part of the lands for recreational soccer fields and related parking. [2] The TUBL is temporary in two respects. First, as a temporary planning measure, the proposed TUBL will be in effect for a period of not more than three years and would then terminate. Second, the uses proposed by the Appellant are also temporary in that the camping, parking and concession booth ("camping and parking") uses will only 3 PL151011 occur for limited temporary periods not exceeding five days in conjunction with weekend festivals or events ("Event" or "Events") and then the uses will end. The TUBL also provides that there be at least two days between Events. The use of the lands for the soccer fields is also for a temporary period to coincide with the local soccer season and annual tournament. [3] The Township Council did not render a decision and the Appellant appealed pursuant to s. 34(11) of the Planning Act ("Act"). In the time period that has ensued since the filing of the appeal and leading to this hearing, the Township has secured significantly more information relating to the proposed TUBL and the Appellant has satisfied a number of requirements such that the Township now supports the Appellant in this appeal. [4] Despite the fact that the Board is only now issuing its decision, Burl's Creek has hosted events and used the TUBL Lands for the intended purposes, and in the manner proposed under the TUBL, both before the hearing, and during the intervening periods between the segments of the hearing during the period May to October 2016. The primary events that have occurred are the Wayhome Music and Arts Festival ("Wayhome"), the Boots and Hearts Country Music Festival ("Boots and Hearts") and the Barrie Automotive Flee Markets ("BAFM"). The matter and relevance of the non- compliant use of the TUBL Lands is addressed herein, and any enforcement proceedings and issues relating to Events occurring in the absence of the required planning approvals, are not matters that are before this Board. [5] The appeal has been a contentious matter within the local community drawing strong broad support from the community but also resulting in focused opposition to the use of the TUBL Lands which was led by Save Oro and the West Oro Ratepayers' Association (collectively "Save OroiWORA"), incorporated and mobilized to participate in this Appeal. They were also supported by a number of the Participants. GI PL151011 [6] The Appellant and the Township are supported in their position in this appeal by the Friends of Burl's Creek Inc. as well as a number of individuals who were granted Participant status including David McKee, who assisted in the creation of a website, saveburlscreek.com. [7] Montagnais Metis First Nation was also granted party status and primarily advanced the interests and concerns relating to the protection of Cultural Heritage interests and uses on the TUBL Lands and with respect to the required archaeological assessments. Due to the manner in which the hearing unfolded for the course of nine months, additional and updated evidence relating to these archaeological and Cultural Heritage matters was received months after the hearing began and assisted the Board in its consideration of these issues. [8] Upon the extensive evidence provided to the Board over the 11 days of hearings, and based upon the analysis and the various findings set out in this Decision, the Board concludes that it is appropriate that the Township ZBL be amended to provide for the temporary uses in the form provided for herein and that the appeal be allowed. 6I3I1*9 [9] Due to the significance of the agricultural issues relating to this appeal, the Board has collected and analyzed these matters separately including as to how they are interrelated to the various planning issues. The Board has also addressed related matters of noise, traffic and other issues of impact within the analysis of the agricultural issues. The remaining issues to be addressed by the Board are those relating to: satisfaction of the planning requirements for a TUBL under the Township Official Plan ("OP"); Cultural Heritage and Archaeological Resources; environmental issues, and economics. COMPLIANCE WITH PLANNING REQUIREMENTS FOR TUBL 5 PL151011 [10] The Board can confirm that it has received evidence with respect to the TUBL's conformity with the Growth Plan and there is no issue in this regard and the Board finds accordingly. In the analysis that follows, the Board has fully addressed aspects of the evidence as it relates to the policy requirements of section W1.3 of the Township OP that must be met in regards to the passing of a TUBL. For the purposes of such compliance, and for clarity, the Board can confirm that it has heard planning evidence from all of the planners and finds that the Appellant has complied with these specific policy requirements as follows: (a) The proposed uses must be temporary, require no major construction or investments such that the owner would experience undue hardship in reverting to the original use of the lands after the termination of the TUBL. The Board finds that the proposed uses are temporary and findings relating to the temporary nature of the uses are discussed in more detail below. The evidence before the Board is that the temporary uses do not entail any major construction or investment. (b) The proposed use must also be compatible with adjacent land uses and the character of the surrounding neighbourhood. Issues of compatibility are reviewed herein and the Board has found that there are no concerns relating to incompatibility. (c) The proposed use must not require the extension or expansion of existing municipal services. The evidence confirms that this is the case. (d) The proposed use must not create any traffic circulation problems or adversely affect road use. This issue, and the evidence before the Board is fully reviewed below and the Board finds, supported by the expert planning evidence from Ms. Andria Leigh and Mr. Darren Vella, that although there are indeed increases in traffic volumes, it is satisfied, that there are no traffic circulation problems or adverse effects upon volume. 11 PL151011 (e) Parking facilities required for the proposed use must be entirely on site. The evidence before the Board is that this requirement has been satisfied. (f) The proposed use must not require road improvements during the term of use. The evidence before the Board is that this is not a concern. (g) The proposed use shall generally be beneficial to the neighbourhood or the community below. This requirement is also fully canvassed by the Board below and the Board, upon all of the evidence before it, does find that the proposed uses of the TUBL Lands are generally beneficial to the neighbourhood and the community as a whole. PRESENCE AND PROTECTION OF ARCHAELOGICAL RESOURCES [11 ] The issues related to the presence and protection of any archaeological resources on the proposed TUBL Lands were important issues to the Township and other parties. The Township had required Burl's Creek to prepare a Stage 1 Archaeological Assessment Report in support of the application. Golder Associates Ltd. was commissioned to complete this report for the Burl's Creek Lands, including the TUBL Lands, which was reviewed by the Ministry of Tourism Culture and Sport ("MTCS") and entered into the Ontario Public Register of Archaeological Reports ("Register"), in accordance with correspondence dated April 5, 2016 from MTCS to Ms. Jaime Lemon, Burl's Creek's archeological expert. [12] The Stage 1 Report had recommended that a number of areas on the TUBL Lands be subject to a Stage 2 Archaeological Assessment report. [13] There was no disagreement among the archaeological experts about the substance of the Stage 1 Report, but there was disagreement among the experts (Ms. Lemon on behalf of Burl's Creek, and Mr. Paul Racher on behalf of the Montagnais Il PL151011 Metis) about whether the activities proposed under the TUBL constitute "ground disturbance" and whether it was necessary for the Stage 2 Report to be completed prior to any approval of the TUBL. Various interests, including the MTCS, also weighed in on this issue by way of written correspondence. [14] Ultimately, the issue of whether the proposed temporary uses constitute ground disturbance, or could constitute ground disturbance, became a moot issue for the Board given that the hearing was adjourned on June 1, 2016 until its continuation on October 25, 2016. [15] It is noted that the Board had refused to grant a prohibition order restraining the 2016 summer events from proceeding and that the MTCS was also petitioned to take prohibitory action against the 2016 Events but did not do so. [16] Upon resumption of the hearing on October 25, 2016, a Stage 2 Archaeological Assessment Report had been completed by Michael Henry (Amick Consultants Limited) ("Amick") and accepted by MTCS into the Register on October 21, 2016. The Stage 2 Report had concluded that there are no archaeological resources on the TUBL Lands. [17] Subsequently, according to correspondence dated December 16, 2016 from Mr. Racher to Grand Chief Doxsee, it was discovered that a 3.2 acre parcel of land that was recommended for Stage 2 test pit survey by the Stage 1 Report, had been overlooked in the Amick Report and required further study. Consequently, the MTCS pulled the Stage 2 Report from the Register on January 11, 2017, pending submission of a revised Report that would resolve this issue. [18] During his testimony, Mr. Henry advised the Board that he had updated the Stage 2 Report to exclude the 3.2 acre parcel. In due course, Mr. Henry indicated that the 3.2 acre parcel would be investigated and reported upon. He also indicated that Schedule "A" to the proposed TUBL marked as Exhibit 67 excludes the 3.2 acre parcel from the proposed temporary use permissions. e PL151011 [19] Mr. Racher, who was recalled by the Montagnais Metis to provide evidence with respect to the Stage 2 Report, including the comments in his December 16th letter with respect to same, acknowledged that the sorts of mistakes his letter points out are ones that he has made dozens of times, are not particularly concerning or significant, and that the Ministry has a process for addressing same. Ms. Meaghan Brooks (an archeology review officer at MTCS who appeared under summons) acknowledged that a "missed parcel" is not unusual and also confirmed that there is a process for addressing same. [20] Mr. Racher summed up his testimony before the Board by expressing that the prior site disturbance/site alteration of the TUBL Lands was the primary reason he volunteered to testify in this proceeding. [21] Ms. Leigh, the Township's planner, had indicated in her testimony to the Board that in arriving at her opinion in respect of the foregoing, it was the Township's practice to rely on peer reviewers, as necessary, and various other public agencies, including the MTCS with respect to their authority to review archaeological assessments and issue "clearance" letters as the Township does not have an archeologist on staff. [22] Based on the foregoing, the Board is satisfied that this issue has been adequately addressed and is not a bar to the approval of the TUBL subject to the MTCS accepting the Stage 2 Archaeological Assessment Report, prepared by Mr. Michael Henry of Amick into the Registry, confirming that the work completed by Mr. Henry as it relates to the TUBL lands is compliant with the MTCS standards and guidelines. [23] The Board notes that Montagnais Metis First Nation has, in its Submissions, included extensive submissions regarding issues of First Nations consultation, failures to adequately satisfy the duty to consult, and relatedly, Charter rights. As was indicated on a number of occasions in the course of the hearing, and as was clearly determined during the Pre -Hearing Conferences, and motion, First Nations consultation was not an 9 PL151011 issue before the Board in this hearing. The Board accordingly, will not respond to these submissions relating to issues that were not before the Board in this appeal. AGRICULTURAL ISSUES, EVIDENCE AND ANALYSIS Issues, Position of the Parties and Expert Evidence [24] The primary issue identified in this appeal relates to what impact the proposed TUBL may have upon agriculture and whether it is consistent with, or conforms to, planning policies relating to agricultural uses as set out in the applicable planning policies, and specifically the Provincial Policy Statement, 2014 ("PPS"), and the Township and County OPs. There are a number of interrelated sub -issues as identified below. [25] Save Oro/WORA oppose the non-agricultural use of the lands as being inconsistent with the PPS, and submit that the TUBL effectively removes the TUBL Lands from a prime agricultural area. They further assert that the TUBL is incompatible with surrounding agricultural lands and does not conform to the Township or County OP. The Township and the Appellant, with the support of Friends of Burl's Creek Inc., take the position that the agricultural use of the TUBL Lands continues between the limited duration entertainment events that will occur during the term of the TUBL and that with the benefit of the Adaptive Management Plan ("AMP"), the soils will not be adversely impacted when the limited term of the TUBL ends. As well, the TUBL will conform to, or be consistent with, all relevant agricultural planning policies and will not adversely impact any nearby agricultural lands or the character of the surrounding area in the Township. The Appellant and Township disagree in all respects with such arguments. [26] The following specific agricultural issues are extracted from the Issues List prepared for this hearing, based upon the evidence presented to the Board: 10 PL151011 (a) For the purposes of considering the policies of the PPS and the County and Township OPs relating to preservation and use of agricultural lands there are two issues: (i) to what extent will there be continued use of the TUBL Lands for agricultural purposes under the provisions of the proposed TUBL and conversely to what extent are the TUBL Lands being removed from Prime Agricultural Areas; (ii) are the non-agricultural uses of the TUBL Lands permitted uses under the provisions of the OPs; (b) Will the permitted uses of the TUBL Lands for camping and parking during the effective period of the TUBL be compatible with: (i) surrounding agricultural lands under the applicable planning policies; and (ii) specifically, provincial Minimum Distance Separation ("MDS") Guidelines. This latter issue of compatibility is directly affected by the necessary determination of whether the uses under the TUBL are classified as a Type A use or a Type B use; (c) After the TUBL is no longer in effect, (i) can the lands and soils be remediated and returned to their previous condition with the implementation of an AMP; and (ii) will there be any adverse impacts upon the agricultural condition or value of the TUBL Lands as a result of the TUBL. [27] In addition to the evidence of local witnesses and the Participants, the Board heard evidence relating to agricultural matters from the following experts: 11 PL151011 (a) Mr. Dave Hodgson with DBH Soil Services Inc. was called by the Appellant and qualified as an expert on agrology; (b) Mr. Robert Clark was called by Save Oro/WORA and qualified as an expert in the areas of land use planning, land economy and agrology; (c) Mr. Arthur Churchyard, employed by the Ontario Ministry of Agriculture, Food and Rural Affairs ("OMAFRA"), attended under summons and was qualified as a land use planner with a focus on agriculture; (d) On the interrelated planning issues of agricultural use and status, the Board heard from qualified planners, Mr. Vella, Ms. Leigh and Brandon Flewwelling. (e) The Township also proffered evidence on agricultural issues through the introduction of an agrology peer review prepared by Mr. Michael Hoffman of AgPlan Limited (Exhibit 45). Policy Context Classifications and Designations [28] There were no fundamental disagreements regarding the planning status and agricultural character of the TUBL Lands or adjacent and nearby lands. The TUBL Lands are: designated as "Rural and Agricultural' in the County OP; primarily designated as "Agricultural' in the Township OP (with some smaller segments having special policy designations); and zoned primarily as "Agriculture/Rural' and "Agricultural/Rural Exception" in the Township ZBL (with other sections zoned General Commercial, Rural Residential Two, and Environmental Protection). For the purposes of the PPS, the TUBL Lands, as well as much of the area of the Township, are considered to be 'Rural Area". Excluding those portions of the disturbed soils within the 12 PL151011 TUBL Lands which were not rated due to their character as watercourses, berms or internal roads, all of the soils within the boundaries of the Lands are either Class 2 or 3 soils and accordingly, the TUBL Lands qualify as "prime agricultural lands" in a "prime agricultural area" under the PPS and are lands worthy of preservation for agriculture under the Province's soil classification system (as determined by OMAFRA). Provincial Policy Statement [29] In addition to the broader relevant policy statements provided for within the PPS as they relate to matters such as compatibility, efficient development and land use patterns the PPS, in s. 1.1.4.1(i), states that: Healthy, integrated and viable rural areas should be supported by providing opportunities for economic activities in prime agricultural areas in accordance with policy 2.3. [30] Section 1.1.5 of the PPS provides for a number of policies relating to development in Rural Lands in Municipalities which are to be taken as a whole with other provisions of the PPS, and includes direction in s. 1.1.5.7 that "Recreational, tourism and other economic opportunities should be promoted" and that "Opportunities to support a diversified rural economy should be promoted by protecting agricultural.... uses and directing non -related development to areas where it will minimize constraints on these uses." Section 1.1.5.8 provides that agricultural uses, agricultural related uses should be "promoted and protected in accordance with provincial standards". [31] The PPS directs as follows with respect to land use compatibility: 1.2.6 Land Use Compatibility 1.2.6.1 Major facilities and sensitive land uses should be planned to ensure they are appropriately designed, buffered and/or separated from each other to prevent or mitigate adverse effects from odour, noise and other contaminants, minimize risk to public health and safety, and to ensure the long-term viability of major facilities. 13 PL151011 [32] The primary applicable portions of s. 2.3 of the PPS, relating to Agriculture, are as follow: 2.3 Agriculture 2.3.1 Prime agricultural areas shall be protected for long-term use for agriculture. Prime agricultural areas are areas where prime agricultural lands predominate. Specialty crop areas shall be given the highest priority for protection, followed by Canada Land Inventory Class 1, 2, and 3 lands, and any associated Class 4 through 7 lands within the prime agricultural area, in this order of priority. 2.3.2 Planning authorities shall designate prime agricultural areas and specialty crop areas in accordance with guidelines developed by the Province, as amended from time to time. 2.3.3 Permitted Uses 2.3.3.1 In prime agricultural areas, permitted uses and activities are: agricultural uses, agriculture -related uses and on-farm diversified uses. Proposed agriculture -related uses and on-farm diversified uses shall be compatible with, and shall not hinder, surrounding agricultural operations. Criteria for these uses may be based on guidelines developed by the Province or municipal approaches, as set out in municipal planning documents, which achieve the same objectives. 2.3.3.2 In prime agricultural areas, all types, sizes and intensities of agricultural uses and normal farm practices shall be promoted and protected in accordance with provincial standards. 2.3.3.3 New land uses, including the creation of lots, and new or expanding livestock facilities shall comply with the minimum distance separation formulae. 2.3.5 Removal of Land from Prime Agricultural Areas 2.3.5.1 Planning authorities may only exclude land from prime agricultural areas for expansions of or identification of settlement areas in accordance with policy 1.1.3.8. 2.3.6 Non -Agricultural Uses in Prime Agricultural Areas 2.3.6.1 Planning authorities may only permit non-agricultural uses in prime agricultural areas for: a) extraction of minerals, petroleum resources and mineral aggregate resources, in accordance with policies 2.4 and 2.5; or 14 b) limited non-residential uses, provided that all of the following are demonstrated: 1. the land does not comprise a specialty crop area; 2. the proposed use complies with the minimum distance separation formulae; 3. there is an identified need within the planning horizon provided for in policy 1.1.2 for additional land to be designated to accommodate the proposed use; and 4. alternative locations have been evaluated, and i. there are no reasonable alternative locations which avoid prime agricultural areas; and ii. there are no reasonable alternative locations in prime agricultural areas with lower priority agricultural lands. 2.3.6.2 Impacts from any new or expanding non-agricultural uses on surrounding agricultural operations and lands are to be mitigated to the extent feasible. County Official Plan PL151011 [33] The County of Simcoe OP contains the following policies relating to agriculture: Section 3.3 General Subdivision and Development Policies 3.3.13 All new land uses, including the creation of lots and new or expanding livestock facilities, will comply with the Minimum Distance Separation Formulae as prepared by the Province and decisions on the location and form of subdivision and development should be made with an objective of protecting agricultural areas for agriculture and minimizing land use conflicts between agriculture and other uses. 3.6 Rural and Agricultural Objectives 3.6.1 To enable the agricultural industry to function effectively in prime agricultural areas by minimizing conflicting and competing uses while accommodating uses and facilities which support the agricultural industry in accordance with the Farm Practices Protection Act and its successors. 3.6.2 To provide in non -prime agricultural areas for rural uses such as resource activity, recreation and limited residential, subject to the other policies of this Plan including Section 3.6.6, while protecting the rural character and the viability of existing agricultural operations. 15 3.6.3 To encourage maintenance and restoration of natural heritage areas where appropriate and to have regard for the resource of built heritage and cultural heritage landscapes associated with rural and agricultural areas. 3.6.4 In the Rural and Agricultural Designation, local municipalities shall determine and map areas considered prime agricultural areas in their Official Plans. The mapping of the prime agricultural areas shall be subject to the agreement of the County of Simcoe and shall be based on Canada Land Inventory (Schedule 5.2.4) soil classifications 1 to 3 inclusive and specialty crop lands. Prime agricultural areas may also be identified through an alternative land evaluation system agreed to by the County and local municipality, and approved by the Province. 3.6.5 Until such time as a local municipal official plan maps prime agricultural areas, the land use policies for prime agricultural areas shall apply throughout the Rural and Agricultural Designation in that municipality. 3.6.6 Prime agricultural areas will be protected for agriculture and compatible uses. Permitted uses are agriculture, agriculture related uses, secondary uses, natural heritage conservation and forestry, aggregate developments subject to Section 4.4, processing of agricultural products, and agricultural produce sales outlets generally relating to production in the local area. Subject to Section 4.10.1, lots may be created for an agricultural use, a farm retirement lot, a residence surplus to a farming operation and residential infilling. New lots for agricultural uses should generally not be less than 35 hectares or the original survey lot size, whichever is lesser, or 4 hectares on organic soils used for specialty crops. Township Official Plan PL151011 [34] The relevant portions of the Township of Oro Medonte OP relating to Agriculture are as follows: SECTION C1 -AGRICULTURAL C1.1 OBJECTIVES (a) To maintain and preserve the agricultural resource base of the Township. (b) To protect land suitable for agricultural production from development and land uses unrelated to agriculture. (c) To promote the agricultural industry and associated activities and enhance their capacity to contribute to the economy of the Township. 16 (d) To preserve and promote the agricultural character of the Township and the maintenance of the open countryside. C1.2 PERMITTED USES The principal use of land in the Agricultural designation as shown on the schedules to this Plan shall be agriculture. Other permitted uses include single detached dwellings, bed and breakfast establishments, home occupations, home industries, commercial dog kennels, forestry, resource management uses, farm implement dealers and feed and fertilizer distribution facilities, storage facilities for agricultural products, greenhouses, agricultural research and training establishments, farm related tourism establishments, agriculturally -related commercial uses, commercial uses on farm properties and seasonal home grown produce stands. Wayside pits and portable asphalt plants are also permitted. All existing commercial and industrial uses are also permitted. The designation also permits existing tourist commercial uses such as private parks, trailer or recreational vehicle parks, mobile home parks, rental cabin establishments and private campgrounds and accessory recreational and commercial facilities and existing recreational uses such as golf courses. The development of new tourist commercial and recreational uses in the Agricultural designation is not contemplated by this Plan. Preliminary Findings of Fact — Operations and Use Patterns PL151011 [35] The Board heard extensive evidence from the parties relating to the specifics of the operations undertaken by the Appellant on the TUBL Lands. As indicated at the outset, notwithstanding the absence of a final determination of the issues in this appeal, the Appellant has been holding Events and using the TUBL Lands in the manner proposed under the TUBL for some time. [36] Matters relating to the propriety of the premature use of the TUBL Lands by the Appellant or enforcement of such actions are of no relevance to the determination of the issues before the Board in this Appeal save and except to the extent that there has obviously been a de facto use of the TUBL Lands. Without condoning this premature commencement of uses, the details of the practical and real-time use of the TUBL Lands by the Appellant upon the assumed application of the TUBL forms part of the evidentiary record before the Board in consideration of the various issues, including 17 PL151011 those relating to agriculture and permits a more practical consideration of the planning and use issues for the TUBL Lands. [37] For the purposes of the analysis of the evidence relating to the agricultural issues, it is first necessary to set out a number of basic underlying factual findings relating to these operations, many of which are not disputed. In addition to other findings relating to the evidence elsewhere in this decision, the Board makes the following findings of fact: (a) The TUBL Lands surround the existing, and legally conforming Entertainment Venue which has been operated as a permitted use by the Appellant, and its predecessors, for some time as a concert and entertainment venue. Parking and concession areas already exist within the Entertainment Venue. (b) The proposed uses of the TUBL Lands under the TUBL are camping, parking and associated concession stands. A portion of the TUBL Lands is also for use as playing fields and related parking for youth recreational soccer for a total of 11 of the 27 days each calendar year. Noise levels from the local soccer activities on the TUBL Lands are clearly well below the noise levels that emanate when the areas are occupied by attendees to the Events for camping and parking. (c) Prior to, and in the course of, this hearing the Appellant has hosted three primary extended weekend events each year: WayHome (a three day event held in July), Boots and Hearts (a four day event held in August), and the BAFM (three days event held in June and September). Each of the Events has necessitated the use of the TUBL Lands for camping and/or parking for the duration of each of the Events. The Board heard evidence from various witnesses relating to the logistics of the camping and parking, traffic management, movements into, and out of the TUBL m PL151011 Lands, and the spatial placement of camping, RV's, vehicles, concession stands and the activities of the attendees during the Events. (d) The Appellant has also donated the use of the TUBL Lands for the children's soccer league and tournament each year where a number of soccer fields are laid out with accompanying parking areas. (e) The practice thus far (and what is provided for under the TUBL) is that each of the Events and the soccer tournament run over the course of only a few days. With respect to the number of event days in which the TUBL Lands will be used for the Events: the total number of Event days cannot exceed 27 in a single calendar year; no single Event can exceed five consecutive days; and Events must be separated by at least two full days. (f) As to the selection of the TUBL Lands as the appropriate location for the camping and parking uses provided for in the TUBL, the foremost, and very logical reason as to why no reasonable alternative location exists outside of the selected lands is the fact that the Entertainment Venue now owned by the Appellant has existed in its current location for over two decades. The proposed temporary uses of the TUBL Lands are practically linked directly to the current permitted use of the Entertainment Venue by virtue of both their proximity and their viability as accessible temporary parking and camping areas that do not relatively require substantial disruption of the lands (such as permanent site preparation that might include paving, permanent servicing infrastructure, or the construction of buildings, structures or hardscape elements to create the defined parking or camping areas or concession stands). (g) There is no persuasive evidence before the Board to challenge the conclusions reached in the report secured by the Appellant from UrbanMetrics, which concludes that there is also no reasonable alternative 19 PL151011 location either within Simcoe County or elsewhere which has such proximity to an existing venue such as the one that exists, adjacent to a major highway such as Highway 11 with two interchanges, that is within relatively easy driving distance to the southern Ontario and northeastern US population densities and other potential attendees to the west, north and east. (h) The panel members were able to benefit from a site visit to view the TUBL Lands and their proximity and relationship to the Entertainment Venue and also viewed the TUBL Lands from different vantage points on the surrounding Township road during the extended course of the hearing. The TUBL Lands when unoccupied were open and expansive, covered in various lengths of rye grass, aesthetically pleasing and pastoral in character and appearance. But for the knowledge of the activities that had occurred on the TUBL Lands during the Events (when the Board was not present) the vast majority of the TUBL Lands present as open fields used for agricultural purposes. The internal roads leading to the various camping and parking areas are not that numerous and are significantly spaced. (i) The primary source of light and elevated noise emanating outwards to surrounding areas beyond the TUBL Lands originates from the stages, music and performers located in the Entertainment Venues during Events and not from the TUBL Lands. Additional secondary noise does escape from the campgrounds and parking areas from the presence of attendees during the Events. The Board heard from a number of residents who complained about the noise and most, if not all, such incidents of noise leading to voiced complaints were with respect to the noise from the Entertainment Venues and not the TUBL Lands. 20 PL151011 Q) In between the Events, after clean-up, and for the other approximate 330 days of the year, the TUBL Lands have been used by the Appellant for rye grass hay farming to support his livestock farming operations. In 2015 this farming operation provided a yield of two feed crops for the contracted user Mr. Henry Regelink. The uncontradicted evidence as to these farming operations undertaken on the TUBL Lands is outlined below. (k) The Appellant's haying operation contracted to Mr. Regelink for the bartered benefit of securing quality feed for his horse farm operation, effectively represents an exchange of value. The Appellant receives the valued benefit of an operational cost as the camping and parking areas are groomed for the limited periods when Events are scheduled. Mr. Regelink, in turn, is able to work around such Events to grow, harvest and use the hay feed crop, made easily accessible by the network of internal roads. (1) It bears repeating, and warrants emphasis, to state that this arrangement, and the dual reversionary use of the TUBL Lands for both uses, results in both agricultural and non-agricultural uses being temporary under the TUBL in two different respects: 1. The non-agricultural use is temporary in nature under the proposed TUBL because when the term of the TUBL ends, the non- agricultural use will also end. The form and type of agricultural use is temporary in the sense that the agricultural use will, with the benefit of an AMP, be converted to continued and other agricultural use of the lands and soils when the term of the TUBL ends. 2. During the duration of the TUBL, the agricultural and non- agricultural uses are also temporary in that they are alternating for consecutive temporary periods. The TUBL Lands are temporarily 21 PL151011 used for non-agricultural purposes during the limited 27 days that the Events and soccer activities occur, and occur in intermittent blocks of time not exceeding five days. During the intervening periods between Events during the growing season, the TUBL Lands are temporarily used for agricultural purposes to permit the growing and harvesting of a rye-grass feed crop for livestock use. (m) Only the TUBL is before the Board in this appeal. On a number of occasions during the hearing, witnesses referred to the already initiated application for a permanent zoning by-law amendment and OP amendments and appeals. These planning processes are not relevant to any of the issues before the Board in this appeal save and except that the temporary nature of uses set out in sub -item (I)1 above will not apply to any subsequent application for a permanent zoning by-law. The temporary nature of the land uses set out in item (1)2 might continue to apply if the same alternating reversionary character of agricultural and non-agricultural/tourism related uses was to continue under a permanent zoning by-law amendment. That remains to be considered on another day. (n) The specifics of the layout, form and manner of the campground and parking areas when used during the Events are not disputed. There are no permanent buildings or structures being placed within the TUBL Lands. All permanent structures are located at the Entertainment Venue. Aside from the limited number of internal roads leading to different assigned sections, attendees travel across the open fields. Attendees to Events are thus directed via temporary routes to designated spots to park their vehicle and locate their trailer or tent. The areas used for the camping and parking are, and remain, open space fields. Save and except for the internal roads the Board finds that there has been no other significant alteration of the soil or topography in the occupied camping and parking 22 PL151011 areas. Aerial photographs reveal that the vehicles and camping areas are spread over the extensive acreage that makes up the TUBL Lands during the temporary use, and thereafter revert back to undisturbed open space fields and countryside. (o) The evidence as a whole leads the Board to conclude that the logistics and organization of all Events, and the management of the uses of the TUBL Lands for those Events that have occurred, have been extremely successful and have resulted in a substantial economic benefit for the community. The manner in which the Events have been planned, the adjustments that have been made to processes, the conduct of public meetings, the liaisons with agencies, the Township and the Ontario Provincial Police ("OPP"), the communication processes including hotlines, traffic management plans and the commitment of staff and resources leads the Board to conclude, and concur with a number of the witnesses, that despite some early wrinkles, and minor disruptions the Events have been successfully managed and the use of the TUBL Lands has been structured, and measures employed, to allow for the mitigation of most issues arising from the use of the TUBL Lands. (p) Some specific analysis and findings relating to the voiced objections of some residents is dealt with below but generally, in the totality of the evidence, the negative comments regarding the Events and the uses of the TUBL Lands seem to reflect a measure of intolerance by a limited number of persons of unavoidable, but short-term activities related to the TUBL uses and the concerts at the Entertainment Venue. Such negativity as a whole, seems to be an expression of the minority which is disproportionate to the positive endorsement of the benefits gained by the community and the rather significant and positive support expressed by others in the Township, who were not only tolerant, but more so, embrace the activities and Events. P& PL151011 (q) The Board finds that the negativity voiced by some witnesses and participants does not appear to represent the opinions and consensus of many others in the Township, including representatives of the Township itself. The Board finds that much of this negativity expressed by complainants has unfortunately been conveyed in generalities, with sweeping statements made without substantial factual evidence to support them would be considered unreasonable and inflammatory, rather than reasonable, and objectively reasoned. This is reviewed in more detail below. [38] Although some aspects of the above summarized evidence and findings outlined above relate to other issues before the Board, these circumstances are of importance when considering the issues relating to agriculture. Agricultural or Non -Agricultural Use and Status of the TUBL Lands [39] One of the narrowest issues before the Board is exactly what the continuing uses of the TUBL Lands are, and will be under the TUBL, and whether these lands will, or will not, be used for agricultural purposes or have been removed from a prime agricultural area. [40] The Township and the Appellant submit that the TUBL Lands will continue to be farmed and that under the specifics of the alternating use arrangements for the TUBL Lands, except for the limited temporary use of the identified areas for parking and camping and soccer activities, which cannot exceed 27 days in total, the TUBL Lands will, under the PPS, remain as prime agricultural lands located within a prime agricultural area in the Township. [41 ] Save OroNVORA submit that the TUBL Lands are not being used for agricultural purposes because (a) for those specified 27 days each year the uses are clearly for 24 last -11111 camping and parking and recreational activities which are secondary to the Entertainment Venue and, although for a limited period during the year, they are nevertheless non-agricultural uses; (b) during the remainder of the year the use is not truly agricultural given the nature of the farming operations; (c) given the limited nature of the grass feed -crop, and lack of any significant agricultural revenue derived from the crop, the hay crops that are being taken from the TUBL Lands by Mr. Regelink do not constitute real farming operations and is really a means to mow the lawns created for the Events; and (d) due to the substantial revenues gained from the use of the TUBL Lands to support the parking and camping required for the Events, the entertainment operations are really the primary use and agricultural use is thus only secondary and therefore not the true "use" of the TUBL Lands; and (e) ultimately the TUBL Lands are being removed from the inventory of prime agricultural lands in the Province. [42] The Board does not accept these arguments as advanced by Save Oro/WORA and finds that the position of the Appellants and the Township, as supported by Friends of Burl's Creek Inc. is correct and substantiated by the facts and the governing agricultural and planning policies. [43] The very first witness appearing before the Board in this hearing was Mr. Regelink, a local long-time farmer for some 40 years in the Township who, in a forthright manner, testified as to his arrangement with the Appellant. Mr. Regelink describes the farming operations he conducts whereby he accesses the various segments of the TUBL Lands through the internal access road system to sow, grow and remove an animal feed hay crop. Mr. Regelink explains that the rye grass planted on the TUBL Lands has been cut and removed prior to and after the scheduled Events, leaving the TUBL Lands available for the designated parking and camping and concession areas, and soccer fields during the designated periods. The harvesting arrangements have been continuing for approximately seven years with the Appellant and the prior owners. [44] Mr. Regelink testifies that the rye grass crop, in his view, represents an excellent, high quality, feed source for his five farms which include his agricultural tourism 25 PL151011 operations "Big Curve Acres Farm". This operation includes the breeding, care and leasing of approximately 200 horses and he has observed that the younger animals like the fine tender grass. Mr. Regelink indicates that he has completed his work on the fields both before and after the Events, "working around them" without any difficulty and has been able to harvest the grass on an ongoing basis as it is ready without necessarily waiting for a complete, grown, ripened crop. Mr. Regelink indicates that in the last season he recovered approximately one tonne of feed per acre in part due to the dense seeding, care and fertilization of the fields and he removed two crops of hay feed in 2015. [45] Mr. Regelink is of the opinion that the internal roads that are laid out to accommodate access to the field routes leading to the parking and camping are an advantage in efficiently accessing and loading the grass as it is removed. [46] Quite obviously, the timed removal of the rye grass from the TUBL Lands thus creates the grassed camping and parking areas for the purposes of supporting the Events which then, following each Event, reverts back to the agricultural use. On cross- examination by Save OroNVORA, it was suggested to Mr. Regelink that a "smart farmer" would not farm in such a manner using the lands for such a limited period, with constrained sustainable yields and only minimal crop revenues. Mr. Regelink's pointed response was to clarify that he was the livestock farmer and the Appellant was the hay crop farmer and that, in his view, it was a "smart farmer" that could rent the land out for only 27 days of the year so successfully and still get two hay crops off of it during the rest of the year. [47] The Board accepts Mr. Regelink's evidence in its entirety and though the agricultural character and status of his farming of the TUBL Lands was the subject of dispute in this hearing, the details of the practical farming operations conducted by the Appellant, as undertaken by Mr. Regelink through the arrangement are uncontradicted. Although Mr. Regelink's explanation of this agricultural operation was met with some derision by a number of the Participants and Save Oro/WORA, the Board finds that it is PL151011 not persuasively contradicted by any other witness, and is in fact supported by the expert witnesses qualified to provide agrology and planning opinion evidence. [48] Mr. Hodgson is of the view that the rye grass cropping represents a continuing agricultural use of the TUBL Lands and that this agricultural use has continued, and would continue, on the TUBL Lands during the term of the TUBL, notwithstanding the fact that the area was also utilized for camping and parking purposes during Events. Mr. Hodgson was also of the opinion that because of the time-limited nature of the TUBL and this temporary alternating use of the lands, whereby the lands revert back to farming operations between Events they are not, in his view, being removed from the inventory of Prime Agricultural Lands. [49] Although Mr. Clark, the agrologist for Save Oro/WORA is of the opinion that there are better forms of grass to be used for hay fed to horses, he concedes that inclusion of rye grass in horse feed is not objectionable. When Mr. Regelink's view that the younger horses liked the tender rye grass removed from the TUBL Lands was put to Mr. Clark, he also conceded that he would have no reason to doubt that. Mr. Clark pointedly confirmed, in the debate as to whether the reversionary use of harvesting rye grass hay between events was truly agricultural use, that it was indeed a continuing agricultural use on the TUBL Lands. [50] Upon this evidence the Board finds that, under the TUBL, for so long as the TUBL Lands might be used for camping and parking during the limited duration intervals in each calendar year, they will also be concurrently used for the agricultural purposes, and in the manner described by Mr. Regelink. At its very simplest, the ongoing arrangements between the Appellant and Mr. Regelink are such that during seasonal periods within the significant majority of approximately 330 days out of 365 days in each year, the TUBL Lands have been, and will be, used for the agriculture uses of seeding, cultivating, and harvesting, of rye grass crops. 27 PL151011 [51 ] The evidence before the Board effectively reveals circumstances whereby the agricultural uses and the temporary camping and parking uses of the TUBL Lands, somewhat unusually, complement each other. The Board finds that this "shared" use of the lands for two purposes gives rise to a "reversionary" character for the TUBL Lands, which permits them to be actively used for agricultural purposes but temporarily revert to non-agricultural use, at intervals totalling not more than 27 days, with subsequent reversions back to agricultural use. [52] This reversionary character of use can be clearly distinguished from circumstances where permanent camping grounds and parking lots were established on the TUBL Lands. In such circumstances the use of land for camping and parking, once established, would permanently remain and would not be subject to the type of supplementary and complementary agricultural use occurring during the remainder of the year. The lands would, in that case, also be truly "removed" as prime agricultural lands. Based on the evidence before the Board that is not what has been occurring and this is not what will occur under the TUBL. Agricultural Land Use and the PPS [53] From a planning perspective both Mr. Vella and Ms. Leigh adopt an expansive view of the PPS as it relates to agricultural policy. Mr. Vella directed the Board to the provisions of the PPS relating generally to Rural Lands and Agricultural Lands, and in particular s. 1.1.4.1(a), (f) and (g) in support of his opinion that the PPS encourage a diversity of uses and benefits within Rural Lands. In Mr. Vella's opinion the PPS clearly directs that healthy, integrated and viable rural areas should be supported by a diversification of the economic base and provide opportunities for sustainable diversified tourism as well as agriculture. [54] Mr. Vella is also of the opinion that the PPS clearly permits non-agricultural uses in prime agricultural areas under s. 2.3.6, where the requirements are met, and it is his view that the requirements are, in this case, easily met due to the realities of the W PL151011 alternating uses of the TUBL Lands during the term of the TUBL and the relatively limited and only temporary nature of the 27 days of non-agricultural use of the TUBL Lands. [55] Mr. Vella was specifically of the opinion that the limited use of the TUBL Lands for non-agricultural purposes in this prime agricultural area, during the intermittent periods, is expressly permitted under s. 2.3.6.1(b) and s. 2.3.6.2 of the PPS. Mr. Vella concludes that: the use is non-residential; the use does not comprise a specialty crop area; there is no issue of identified need within the planning horizon stipulated in the PPS for additional lands to be designated to accommodate the proposed camping and parking uses (since the use is, and will be, temporary under the TUBL); there are no reasonable alternative locations for the proposed use which avoid prime agricultural areas or which are lower priority agricultural lands; the proposed use complies with the MDS formulae; and finally there are no impacts of the proposed non-agricultural use on surrounding agricultural area, and what potential impacts do exist are fully mitigated to the extent feasible. Given that the proposed use meets the requirements in the PPS, it is Mr. Vella's opinion that the use of the TUBL Lands in this area, under the terms of the TUBL, is permitted. [56] Ms. Leigh provided her planning opinion fully supporting Mr. Vella's opinion that the TUBL provides for continuing agricultural use of the TUBL Lands. As to the appropriateness of the temporary and intermittent periods of non-agricultural use which was consistent with the PPS, Ms. Leigh also relies upon the provisions of the PPS recognizing the importance of balancing the agricultural use in the Township with the opportunity for other economic development, noting that Burl's Creek, as a long-time entertainment venue in the Township, has become an ingrained part of the character of the community. [57] Mr. Hoffman did not testify but his peer review report was presented and reviewed as part of the evidence. Mr. Hoffman concurs and opines that the TUBL Lands are not being permanently converted out of agricultural use because of the only IWO PL151011 temporary non-agricultural use that occurs and the fact that the soils and lands will revert back to full agricultural use upon the termination of the TUBL. Mr. Hoffman also concludes that there is no distinction, in his view, between permanent and temporary uses in the PPS and therefore it is reasonable to conclude that the PPS's concern for permanent removal of lands from prime agricultural use reasonably means that temporary non-agricultural uses are permitted in the sense that after the TUBL ceases to have effect the TUBL Lands can be returned to agricultural production with the use of an AMP. [58] As an aside, Mr. Hoffman did not provide the related opinion as to whether the "other" temporary character of the non-agricultural use, i.e. the alternating uses which permit the lands to revert back to agricultural uses after they are used for the purposes of supporting the Events, also can be interpreted under the PPS to mean that such temporary non-agricultural uses of the lands are permitted on the TUBL Lands. Mr. Vella and Ms. Leigh did opine that this temporary nature of the non-agricultural use, and the otherwise continuing dynamic agricultural use also represents a non -offending use under the agricultural policies of the PPS. [59] Although Mr. Clark, Mr. Flewwelling and Mr. Churchyard acknowledge the agricultural use being made of the TUBL Lands by Mr. Regelink during the balance of the year, they nevertheless interpret the PPS to mean that any interference with agricultural use, where prime agricultural lands are being used for any purpose other than agriculture, and any removal of lands from a prime agricultural area for non- agricultural purposes, offends the PPS and is objectionable. Mr. Churchyard's rather restrictive policy approach to the PPS supported his view (based on the assumption that agriculture was not continuing on the TUBL Lands) that no encroachment of agricultural lands should occur unless a need could be established for the Events such that there were no qualifying lands elsewhere in Ontario. [60] Under all of the circumstances, the Board prefers the planning evidence of the Township and the Appellant as to the agricultural status and nature of the TUBL Lands 30 PL151011 under the PPS to that of Save Oro/WORA. The approach of Save OroMORA's planning witnesses, including Mr. Churchyard, is unduly restrictive by failing to recognize that the reversionary character of the alternating use of the TUBL Lands essentially allows for agricultural use to continue for all but 27 days of the year (and such other minimal time allowed for clean-up and preparatory work) such that the lands have not been permanently removed from Prime Agricultural Lands and that agricultural use continues. [61] The evidence proffered by Save Oro/WORA's experts also imports an unsupported qualitative prejudice that is dismissive of the continuing agricultural use on the TUBL Lands in part because it relates to a low -yield feed crop that is not a "real" hay crop and generates relatively little income, when compared to the revenues flowing from non-agricultural uses of Event visitor camping and parking. They therefore conclude that the primary use of the TUBL Lands under the TUBL is thus secondary to the greater revenue -earning non-agricultural use of the TUBL Lands, and is not a farming use that would be employed by a "smart farmer". [62] Mr. Clark's distinction of primary and secondary uses was something that had not been contained in his witness statement and was raised only during the hearing. Mr. Clark concedes that this distinction between primary and secondary uses of land for the purposes of identifying true agricultural uses is not supported within any of the planning policies or guidelines. Although the PPS does provide for "prime" agricultural lands and areas, it does not differentiate, qualify or grade agricultural uses that then occur within, or upon, such prime agricultural areas and lands. The PPS policies that address agricultural lands do not provide such a restrictive or judgmental approach to agricultural use of lands and the Board does not find this approach to be reasonable or supported by the broad policies of the PPS. [63] The experts who have testified on behalf of the Appellant and the Township conclude that the PPS supports the preservation and protection of agricultural uses and the concurrent goal of promoting diversified non-agricultural uses within Rural Lands. 31 PL151011 The Board accepts their opinion testimony that the proposed use of the TUBL Lands under the TUBL will achieve both objectives because both uses will be undertaken upon the Lands for a temporary period. [64] At the end of the day the Board ultimately finds that Mr. Regelink's description of the Appellant as a "smart farmer' may not be misplaced, and quite correct since, from the Board's perspective, the Appellant has prudently allowed for both continued agricultural uses on the TUBL Lands to benefit the farming operation operated by Mr. Regelink and the Appellant's operations, while concurrently promoting economic diversity in the Township through the successful growth of a successful tourism -based economic activity. Both uses are not incompatible with each other, or inconsistent with the PPS which promotes both uses within rural and agricultural lands, and the preservation of prime agricultural lands. The Board finds that these policies have been achieved through the proposed TUBL. [65] For all the reasons indicated, the Board finds that the temporary and reversionary use of the TUBL Lands for non-agricultural uses, while other agricultural uses continue, thereafter will not effectively result in the loss or removal of prime agricultural lands from a prime agricultural area. With the ability to have continued agricultural use of the TUBL Lands and the eventual return of the TUBL Lands to other agricultural uses when the term of the TUBL ends, the proposed TUBL is consistent with the PPS. Agricultural Land Use and Permitted Uses under the County OP [66] The Board also accepts the opinion evidence of Mr. Vella and Ms. Leigh and finds that for the same reasons, since agricultural use of the lands will continue and there will be no removal or conversion of lands from the prime agricultural area, the non-agricultural use of the TUBL Lands under the TUBL, including those portions which are prime agricultural lands, will still conform to the stated objectives under the County OP. With respect to the use of the TUBL Lands under the TUBL for the identified camping, parking, concession and soccer field uses, both Mr. Vella and Ms. Leigh were 32 PL151011 of the opinion that such uses were permitted uses in the agricultural areas designated in the County OP — the 1999 County OP confirmed by them as the in force version as of the date that the application was complete in April of 2015 [67] Mr. Flewwelling's planning opinion regarding conformity to the County OP was somewhat off course as he admitted in the course of his testimony that he had considered the wrong County OP. Again, in the Board's view Mr. Flewwelling's entrenched position that the TUBL Lands were no longer used for agricultural purposes — a position that the Board does not accept — leads the Board to prefer the evidence of Ms. Leigh and Mr. Vella in regards to conformity with the County OP. The Board's analysis of other aspects of Mr. Flewwelling's opinion evidence, as outlined below in the context of compatibility, are also considered in the Board's preference of the Township's and Appellant's planning evidence. Agricultural Land Use and the Township OP [68] With respect to agricultural matters contained within the Township OP as the applicable provisions of the Plan indicate, the Township's clear objective under its OP is to maintain and protect the municipality's agricultural resource base and preserve and promote its agricultural character. The Township OP contains provisions relating to other permitted uses in lands designated as Agricultural which do not include the uses proposed under the TUBL but which do permit existing identified tourism and commercial uses. [69] Both Ms. Leigh and Mr. Vella are of the view that the TUBL would conform to the policies of the Township OP. [70] Ms. Leigh testifies that she has been a planner with the Township for almost 25 years and has some considerable familiarity with the municipality's planning policies and land uses within the Township. Ms. Leigh states that in her view, the Township OP clearly identifies policies which balance the significant agricultural heritage and farming 33 PL151011 activities within the municipality with the goal of promoting other economic activities including recreation and tourism. This, for her, is demonstrated by the fact that in addition to other commercial and non-agricultural operations within the municipality, there are three ski resorts, a mountain bike venue, the Entertainment Venue operated by the Appellant and its predecessors for many years, and, as well, a number of annual festivals and special events which contribute to the Township's economy. Ms. Leigh states that in her view she was satisfied that the TUBL uses were compatible with the surrounding area given its diversity. [71] Both Ms. Leigh and Mr. Vella concur that with these land uses and activities being promoted within the Township, and the fact that the TUBL Lands will continue to be used principally for agricultural purposes while contributing to this aspect of the economy, the TUBL will conform to the Township OP's agricultural objectives and policies. [72] Based on this planning evidence the Appellant and the Township submit that the TUBL application (and the alternating, and reversionary, nature of the uses that will occur) will protect the availability and sustainability of the agricultural lands for long term use while positively contributing to the Township's economy through the enhanced promotion and use of the existing Entertainment Venue. The Events require large tracts of land to allow for this enhanced use but only for short periods of time which means that the agricultural capability of the TUBL Lands is not compromised. This, the Appellant and Township submit, allows the agricultural community to continue to function effectively since the uses are not conflicting or completing, but are complementary as the use reverts back and forth for the limited periods of non- agricultural use in conformance with the Township's OP (and consistent with the PPS). The Board agrees with this approach. [73] The Board also received evidence in the course of the hearing relating to the Ministry's Guidelines on Permitted Uses in Ontario's Prime Agricultural Areas which Ms. Leigh and Mr. Vella pointed to in support of their opinions. Mr. Clark was inclined to 34 PL151011 dismiss the Guidelines as influential in his opinion based on his qualifying approach to the matter of agricultural use on the TUBL Lands which the Board has some difficulty accepting. Of note is the provision within those Guidelines which indicate that temporary use by-laws are an effective way to deal with event -type uses such as concerts, rodeos and farm shows where there are no permanent buildings structures or physical changes to the site — circumstances which the Board has found certainly exist in this case. [74] Save OroM/ORA also submits that the Board should not accept the Township's suggestion as expressed by Ms. Leigh in her evidence that a TUBL serves as a valuable "test drive" of the proposed uses for a future permanent amendment application under the Township OP and cites a number of decisions in support of this submission. It is the Board's view, after considering those decisions, that where the TUBL would intend to permit a use that is otherwise prohibited by the OP, then indeed, the Board would be required to exercise caution in allowing a "test drive" of a prohibited use. That is not the case here where the Board accepts the planning evidence as indicated and finds that the uses as proposed under the TUBL do conform to both OPs and the PPS. [75] Given the circumstances and facts as they have been presented, the Board acknowledges the benefits to be gained from evaluating and "testing" this dual, reversionary agricultural and non-agricultural use from a planning perspective during the effective operation of the TUBL and prior to the Township's consideration of permanent amendments to the Township's OP and ZBL. This approach has been endorsed by the Board in the past and in this case, given the findings of the Board as to the planning policies, it will ultimately be of value to continue to assess this alternating use arrangement for the TUBL Lands in the context of a TUBL before consideration is given to a permanent endorsement of the shared reversionary uses of the TUBL Lands provided for in the TUBL. 35 PL151011 Compatibility of the TUBL Lands with Surrounding Uses under the TUBL [76] There is both a general and specific issue of compatibility before the Board. First, the Board must determine whether the proposed reversionary nature of uses alternating between the agricultural uses, and the temporary parking and camping uses related to the Entertainment Venue, are, and will be, compatible with the surrounding agricultural lands and agricultural character and open countryside, as required under the PPS and both the County OP and Township OP. [77] Section 3.6.1 of the County OP requires that the Board consider that conflicting or competing uses will be minimized and that the proposed TUBL uses will enable the existing agricultural industry to function effectively. Mr. Vella and Ms. Leigh concluded that there were no concerns in this regard. The use of the TUBL Lands is certainly not competing with other agricultural uses and the Board finds that neither is there any evidence of real conflict with nearby agricultural operations (which is to be distinguished from residential uses of nearby farm owners) or that other agricultural uses or operations have in any way failed to function. [78] The County OP and the Township OP, as indicated, outline with more specificity, the nature of the required compatibility. First, the Township OP requires that the TUBL uses do not conflict with the objective of preserving the agricultural and open countryside character of the Township. Under s. E1.3(b), the Township OP also requires that the uses under the TUBL be compatible with adjacent land uses which, in this case, includes adjacent agricultural uses. [79] The County OP objectives also address the issue of compatibility and require that the Board be satisfied that in approving the TUBL, the Appellant's operations "will be compatible with adjacent land uses" and this necessitates consideration of whether that compatibility exists in regards to adjacent agricultural land uses as well as the other uses. 36 PL151011 [80] Save Oro/WORA submits that the activities occurring on the TUBL Lands are contrary to the agricultural character of the Township and the maintenance of the open countryside and are not compatible with adjacent agricultural uses. [81] First, given the findings of the Board with respect to the continuing agricultural use of the TUBL Lands, the Board cannot find that the TUBL uses would in any way conflict with the object of preserving the agricultural and open countryside character of the Township and accepts the opinions of the experts and submissions proffered by the Appellants and Township on this point. The totality of the evidence does not support a finding that the overall agricultural character and open countryside character of the TUBL Lands or the surrounding area during the 330 days or more that the TUBL Lands remain unused for any purpose other than agriculture or seasonal dormancy. As noted, the Board panel had the opportunity to observe the TUBL Lands on a number of occasions during the extended hearing dates and the observed character of the TUBL Lands is consistent with the evidence before the Board and the agricultural character identified in the OPs. [82] The opinions of the experts on the question of general compatibility of the proposed uses with adjacent agricultural land uses, not surprisingly, were varied. [83] Mr. Clark provided what can be described as a conceptual opinion that the primary use of the TUBL Lands for parking, camping and concessions in support of the Events results in incompatibility with agricultural uses but confirms that he has not undertaken any systematic analysis of adjacent farming operations, interviews or assessments of topographical separations between the TUBL Lands and adjacent farms (such as that of Josephine Martensson-Hemsted which is immediately adjacent to the TUBL Lands) in coming to that conclusion. Mr. Clark was only able to generally note that there might be issues for nearby farmers moving equipment around during events but provided no evidence to support that generalized concern and no specific examples to contradict the evidence provided by the OPP, Ms. Martensson-Hemsted or 37 PL151011 other witnesses. The Board was provided with no real example of incompatibility based upon traffic issues raised by Save OroMORA. [84] Mr. Clark also expresses a concern that vehicle traffic on the TUBL Lands might result in excessive compaction which could adversely affect any continued growth of the hay on the TUBL Lands but admits that he did not attend to the site to inspect the fields following any of the Events, and admits that the type of rye grass was specifically chosen to survive such levels of impact. In his testimony, Mr. Clark did not provide any compelling opinion, supported by evidence, that there was, under the policies of either the County or Township OPs, any incompatibility of the TUBL uses with adjacent farm uses or any real adverse impact on the agricultural character or open countryside nature of areas around the TUBL Lands. As indicated, when put to him on cross- examination Mr. Clark also admitted, that he had, in fact, also examined the wrong County OP when preparing for the hearing. [85] Mr. Flewwelling's opinions relating to matters of general compatibility were again based upon his rather fixed conclusion that the approval of the TUBL would result in the "removal" of the TUBL Lands from a prime agricultural area and that the use of the lands for camping and parking, and the soccer fields represents a primary use that overshadows any "secondary" agricultural uses relating to a low -yield rye grass feed crop. This unfortunately directly impacts upon the weight to be given to Mr. Flewwelling's opinions as to matters of compatibility. Mr. Flewwelling, in his testimony did not really identify any significant issue of incompatibility save and except for a general concern relating to impacts of traffic, which again was not, in the Board's view, borne out by the evidence as a whole. [86] The Board has difficulty accepting Mr. Flewwelling's opinions which are predicated on this view that is contrary to the factual finding of the Board that agricultural uses continue on the TUBL Lands and that no lands are essentially being "removed" from the inventory of prime agricultural lands in the Township. 38 PL151011 [87] Mr. Vella and Ms. Leigh, in providing their opinions as to the general compatibility of the proposed uses under the TUBL with adjacent land uses and the agricultural and rural character of the surrounding lands point to the fact that an examination of compatibility had to take into account the compatibility of the TUBL Lands with the already -existing Entertainment Venue which has been used for events without issue or concern. They noted that the character of the area included the long-time use of the event grounds within the Township and the absence of any example of adverse impact of the TUBL Lands on other adjacent lands. In regards to the proposed use, Mr. Vella and Ms. Leigh both opined that the absence of any permanent buildings or structures, and the only limited period of use for camping and parking meant that there was no negative impact upon adjacent land uses. They also reviewed the numerous mitigating measures taken by the Appellant to minimize any potential impact which, despite the negative views of Save Oro/WORA and their supporters, they viewed as being substantially positive — a view supported by nearby residents who were conducting farming operations. [88] The Board prefers the opinions and evidence of the Appellant, the Township and the Friends of Burl's Creek Inc. in relation to the issues of compatibility with the adjacent land uses in the immediate areas of the Township and impacts upon the character of the surrounding lands and finds that there is, in this regard, conformance with both the County and Township OPs. This is also based on the evidence from the local residents and Participants. Compatibility with Agricultural Uses and Character - Evidence of the Participants, Neighbours and Township Residents [89] The witnesses and Participants who spoke to these issues of conflict and compatibility in many cases opposed the TUBL based on quite generalized concerns: that there would be a loss of farmland; that the spirit of the agricultural community had been "wounded"; that movement of farm equipment on fair-weather days during cultivation, planting or harvesting conflicted with traffic to the campground and parking areas on the TUBL Lands or created concerns of safety. 39 PL151011 [90] The Board has carefully considered the evidence provided by those witnesses and Participants who might be considered to be adjacent to the TUBL Lands, and who voiced their concerns relating to issues of compatibility with agricultural uses, and the historic use of the TUBL Lands or adjacent lands including Mr. Bruce Wiggins and Mr. Bernard Pope on behalf of the Simcoe County Federation of Agriculture, Mrs. Wendy McKay, Dr. Ron Golden, Ms. Krista Pain, and Dr. Klaus Kuch. [91] The Board found that many of the concerns relating to compatibility expressed by these witnesses and Participants were unrelated to adjacent agricultural uses and more to generalized issues of noise, debris, and the conduct of patrons and the history of the land use. Interestingly, many of the comments from the objectors were nostalgic comments on the prior historical use of the lands for farming purposes and the perceived "loss" or "destruction" of prime farmland which, in their presentation, clearly rejected the plausibility that the hay feed crop removed by the Appellant through Mr. Regelink's efforts represented a "real" agricultural use when the TUBL Lands were being used in the intervening periods between Events. [92] The Board has made its finding in this regard and for this reason, finds such subjective and dismissive opinions as to whether the Appellant's (and Mr. Regelink's) farming is genuine, and such objections that the land is not being farmed, and therefore "lost", to be without substance or relevance to the issue of compatibility or supportive of the agricultural character of the area as addressed in the County and Township OPs. The Board also heard that in the case of Mr. Wiggins, during cross-examination, his opposition to the use of agricultural lands for parking may have been somewhat disingenuous and selective, as the Oro-Medonte Agricultural Society, of which Mr. Wiggins was a member, has supported the use of agricultural lands for parking for the Tough Mudder endurance race event. [93] Objections relating to the adverse effect of noise on livestock were limited, vague and were not supported by any corroborating evidence that there was any actual impact 40 PL151011 upon livestock operations. Given that the evidence establishes that the noise levels that are objected to by Save OroMORA emanate from the Entertainment Venue and not the TUBL Lands used under the TUBL for camping and parking, this impact is irrelevant to consideration of the TUBL. Certainly the Board cannot conclude, in the absence of any evidence of any kind, that noise originating from the TUBL Lands while in use during the limited number of days in the calendar year have any adverse impact on livestock farming operations. [94] The Board also heard evidence relating to those recommendations and mitigation measures stemming from the reports requisitioned by the Appellant, which addressed matters relating to back-up beepers, generator noise and camper related noise. With these measures and additional regulatory measures in place within the Township the Board does not find that noise impact from the TUBL Lands is such that it would consider this to be sufficient to prevent the approval of the TUBL. [95] As to the matter of traffic, Sergeant Pileggi of the OPP testified and was very familiar with the Burl's Creek Events and had been involved in operations during the Boots and Hearts and Wayhome Events in 2015. Sergeant Pileggi stated that after adjustments had been made to the traffic plans, the traffic management had went very well for the limited periods that traffic flowed to and from the Events, and although there were some issues and delays the comments regarding traffic were generally positive and he disagreed that the Events had been poorly run. He confirmed that there had been no accidents and only brief road closures necessary to clear the backlog onto Highway 11. [96] This evidence was corroborated by a number of other Participants who testified including Mr. David McKee, who had taken the time to drive the surrounding roads during Events and found that it was smooth driving with no difficulties worth mentioning. Ms. Martenssen-Hemstead's evidence on traffic issues is outlined below and is also persuasive to the Board. 41 PL151011 [97] The Board is of the view that taking into account the limited period of time that traffic volumes are increased during the festivals and the limited number of days that the cultivation, planting or harvesting periods related to the farming operations might coincide with the high traffic patterns into, and leaving, the Event, the movement of traffic related to the use of the TUBL Lands does not amount to circumstances of incompatibility or conflict. [98] Mrs. McKay was the primary witness and representative of Save Oro/WORA and being in close proximity to the TUBL Lands (immediately across the road from the main gate), voiced strong objections to the conduct of the attendees occupying that portion of the campgrounds closest to her residence. Again, much of Mrs. McKay's objections related to the loud music and generators emanating from the Entertainment Venue or from music sources in the campgrounds and, speak to the use of the lands prior to the legal enactment of the TUBL and the "illegality" of the concerts that had created such noise. Mrs. McKay also objected to the spotlights that affected her ability to sleep in their residence and the offensive and vulgar conduct of campers. Mrs. McKay relayed information provided to her by a number of other residents, all of which related to impact of Event noise upon their personal use of their residences, litter, traffic, foul music, foul language and errant attendees and campers straying from the camping areas. [99] Without exception, all of this evidence is unrelated to incompatibility with adjacent agricultural uses or preservation of the agricultural character and open countryside and instead, speak to personal objections to the noise, intrusions and nuisance emanating from the Entertainment Venue and the attendees on the TUBL Lands as it impacted upon their residential uses. Most, if not all, of such complaints related to the limited number of days that the Boots and Hearts and Wayhome Events had occurred. [100] The Board also heard from other Participants in the Township, such as Mr. Greg Groen, Mr. McKee and Ms. Martensson-Hemsted who voiced personal opinions that were contrary to those of Save Oro/WORA or their supporters. Those who spoke in favour of the Burl's Creek operations on the TUBL Lands considered the very positive 42 PL151011 uses of the TUBL Lands in relation to the soccer fields which should not be ignored, considering that they will represent 11 of the 27 days of permitted uses under the TUBL. What is noted is that this "soccer component" of the 27 days of use is, on the evidence, fully compatible with any use of lands adjacent to the TUBL Lands and in no way can be considered contrary to the agricultural and open countryside character of the Township lands. Using arithmetic this leaves 16 days of potential incompatibility related to the other TUBL uses related to the events. [101] The Board found the evidence of Ms. Martensson-Hemsted, who resides with her husband adjacent to the Burl's Creek property, on an active 98 acre farm property the 8th Line, to be very forthright and particularly relevant to the issue of compatibility of the TUBL uses with adjacent farm operations. Their farm is an active farm raising livestock, bees, as well as pasture lands and vegetables and Ms. Martensson-Hemsted explained that initially they did have concerns about the impact that the campgrounds, parking lots and heavy traffic might have on their operations. This was particularly important since there was travel required between their sheep located on two different locations. This active farm operator and proximate resident found that with the Appellants invitation of neighbours to the public meetings, good solutions had been found for issues relating to farm equipment on the road and adjacent haying operations and she was impressed as to the manner in which problems had been solved. This evidence indicates that practically, where there might have been conflicts with adjacent agricultural operations, there were none. Ms. Martensson-Hemsted also disclosed another interesting facet of agricultural compatibility as she and her husband participated in, and benefited from, the farmer's markets that were held at the Boots and Hearts and Wayhome Events. [102] The Board must be cautious about giving too much weight to Exhibit 30, which was a detailed summary of public input from the public placed onto a specially created web site, saveBurlsCreek.com initiated by Mr. McKee and other supporters of Burl's Creek. The many postings in Exhibit 30 include comments from numerous local residents living in close proximity to the Burl's Creek Entertainment Venue and the TUBL Lands. The veracity of such input cannot be tested, but the Board does 43 PL151011 recognize that the totality of the written record of such input supports the submission of Friends of Burl's Creek Inc. and supporters such as Mr. McKee, that the dire predictions of significant negative impacts upon the residents of the Township from Save Oro/WORA have not been borne out and that, to the contrary, input suggests that many residents within close proximity to the TUBL Lands have experienced no adverse impact nor raised issues which would suggest any measure of incompatibility, agricultural or otherwise, nor any protests about changes to the character of the local area. [103] While the Board found all of the evidence of the local objectors and residents (some quite distant from the TUBL Lands) to be genuine to their individual tolerance levels, and would accept and sympathize that some measure of disruption was caused by the presence of attendees in the campgrounds, the Board does not find that these objections to the intermittent and limited use of the TUBL Lands during the Events to be sufficient evidence to conclude that the non-agricultural uses of the TUBL Lands amounts to incompatibility with agricultural operations. The Board, for the same reasons, cannot conclude that these personal objections to the 16 days of use of the TUBL Lands under the TUBL, within the context of the entirety of the calendar year, negatively impact upon the agricultural or open space countryside character of the TUBL Lands, the adjacent Entertainment Venue lands or upon any adjacent lands. Minimum Distance Separation — Type A or Type B Land Use Classification [104] The PPS imposes, as a requirement for any proposed non-agricultural use of land in a Prime Agricultural Area, that a proponent confirm that the proposed use complies with the MDS formulae. The MDS formulae are set out within Implementation Guidelines provided by OMAFRA. [105] In a case such as this proposed use involving the re -zoning or re -designation of agricultural land, the Guidelines require that a preliminary determination be made as to whether the proposed use on the TUBL Lands is a "Type A" or "Type B" land use. This M PL151011 determination then directs the MDS that must exist between the proposed use and nearby livestock operations. The Board has received conflicting opinion evidence on this question. [106] The Board has been provided with, and has considered, the MDS Guidelines delineating Type A and Type B land uses. Type A land uses are typically characterized by uses that have a lower density of human occupancy, habitation or activity and includes applications to re -zone or re -designate agricultural lands for agricultural -related or recreational use involving "low intensity" purposes. Type B land uses are typically characterized by uses that have a higher density of human occupancy, habitation or activity and includes applications to re -zone or re -designate agricultural lands for recreational use involving "high intensity", commercial or settlement area purposes. [107] Type A land use (low intensity) requires an MDS radius of 1,000 metres ("m"). Type B land use (high intensity) requires an MDS radius of 2,000 m. The Guidelines define low intensity and high intensity recreational use as follows: Recreational use — high intensity — Recreational use that usually includes buildings and/or a higher density or concentration of human activity such as golf courses, sports fields, trailer parks, campgrounds and conservation areas with facilities. Recreational use — low intensity — Recreational use that usually does not require buildings, does not alter the soil or topography, and/or has a lower density or concentration of human activity such as open space and environmental areas. [108] It is Mr. Hodgson's opinion, as the author of the Agricultural Impact Study ("AIS") that the use of the TUBL Lands is a Type A use since there are no permanent buildings, and the activities are occurring in wide open areas on a temporary basis related to the time-limited Events. Otherwise, as Mr. Hodgson testified, the use is temporary because the lands continue to be used for agricultural purposes before and after the Events, and continue to be available for agricultural use upon the termination of the TUBL. This opinion is shared by Mr. Vella who agrees that the absence of any structures, the temporary nature of the use and the wide areas in which the time-limited parking and 45 PL151011 camping (and concession stands and soccer fields) occurring during Events is to be distinguished from the types of permanent facilities and buildings, including campgrounds, that are identified in the definition of Type B land uses. [109] Mr. Hoffman, in his peer review on behalf of the Township, is also firmly of the view that the proposed use represented a Type A use. He too indicates that his opinion is based upon the absence of any buildings and, in the Board's view, reasonably considers the fact that during the Events there would be a higher intensity of human occupation in the camping and parking areas, which might therefore suggest a Type B land use. However, taking into account the contrary factor that the subject uses are of a short duration within the calendar year, Mr. Hoffman is of the opinion that the application of the Type A use in the MDS calculation is more reasonable and appropriate, thus requiring a 1,000 m arc/radius between nearby lands that might be used for agricultural purposes (that might give rise to odors). [110] Of some relevance is the evidence before the Board that due to the nature of the conflict of opinions arising in the local area, the Appellant's experts and representatives were unable to attend to a number of the surrounding properties to assess the nearby uses for the purposes of determining MDS requirements. The Appellant therefore completed and calculated the MDS distances, on a worse -case basis. Mr. Hoffman, in his initial Peer Review, initially confirmed that he completed the distance calculations for the layout of the campground, parking and entrance areas and determined then, that the MDS arcs were insufficient. The Appellant has provided uncontradicted evidence in the form of the revised mapping completed following Mr. Hoffman's peer review, which demonstrates that the layouts for uses on the TUBL Lands have since been modified and located to maintain the required separation arcs required for a Type A use. [111] Ms. Leigh is also of the view that the uses of the TUBL Lands are Type A uses and bases her opinion, in part, upon Mr. Hoffman's peer review. She again notes that of the 27 days of use, 11 days are allocated for the recreational soccer tournament U" PL151011 where extended camping does not occur and there would be, in fact, a fairly low and widely dispersed character for attendees to the TUBL Lands. [112] Mr. Clark, on behalf of the Save OroMORA is of the opposite opinion and in his view the use of the TUBL Lands are a Type B land use. Mr. Clark's opinion in this regard, is again based on his qualitative assessment of the two alternating uses as indicated above which leads him to conclude that because the camping and parking uses are related to the significant revenue generating activities and the agricultural uses, by comparison, relate to the cropping of lesser quality rye grass in a limited yield farming operation, the non-agricultural use is the "primary use". On this basis, as it relates to the classification of the land use, Mr. Clark opines that this is not a low intensity use. The difficulty the Board again has with this approach is that it is predicated on a relative "grading" of the farming operations and the entertainment/tourism operations as either primary or secondary as connected to the revenues generated from the operations. These are factors that are not found in the MDS Guidelines or in the PPS. Through reliance on this analysis Mr. Clark does not appear to have considered the factors considered by the other experts which are directly related to the Guidelines, and in particular the definitions of low intensity and high intensity use reproduced above. [113] Similarly, Mr. Churchyard's testimony is narrowly focused on the references to "campgrounds and sports fields" in the definition of Type B high intensity without regard for the temporary nature of the TUBL uses, the absence of permanent buildings and the manner in which the lands are used for widely spaced temporary camping, parking and soccer games which always revert back to vacant fields and agricultural use thereafter. [114] The Board has also taken into account the uncertainty of whether the types of incompatible circumstances and "ills" that are intended to be addressed by the separation distances imposed under the MDS Guidelines (that is, livestock facilities and their related manure odours) actually exist. As well, the Board concludes that the definitions do speak to distinctions between permanent and temporary uses and the 47 PL151011 differences in the intensity of human occupation that occur between such permanent and temporary uses. Since the Board has concluded that the non-agricultural land uses are indeed temporary and number no more than 27 days (or 16 days excluding the soccer activities), Mr. Hodgson's and Mr. Hoffman's consideration of the practical implications of such temporary use on intensity is reasonable and should be taken into account in considering the assignment of land use classification under the MDS Guidelines. [115] For these reasons, the Board does not find the opinions expressed by Mr. Clark and Mr. Churchyard and Mr. Flewwelling to be persuasive on this issue and prefers the analysis and opinions of Mr. Hodgson, Mr. Hoffman, Mr. Vella and Ms. Leigh. The Board accordingly finds that the land uses to occur under the TUBL represent Type A uses under the MDS Guidelines and with the revised layout schematics for the camping, parking, entrances and sports fields, the Board thus finds that the Appellant will comply with the required MDS arcs. [116] The Board finds that the intended land uses under the TUBL, for the purposes of compliance the MDS formulae, are consistent with the PPS and the MDS Guidelines. To the extent that such matters also relate to the requirements for compatibility as provided for in the Township and County OPs, the Board also finds that the TUBL Lands, as they will be used pursuant to the TUBL conform to those OPs. Return of the Lands to Agricultural Use — The Adaptive Management Plan [117] There was general consensus that the Township OP requires the Board to find that the TUBL, if approved, will eventually allow for the reversion of the lands governed by the TUBL to the original use. In that regard, the Board must be satisfied that at the end of the term of the TUBL there will be no adverse impact upon the soils of the agricultural lands which would result in any deterioration in their condition, value, or status as Class 2 and 3 soils. Notwithstanding the finding that the TUBL Lands will predominantly retain status as lands used for agricultural purposes, it is nevertheless 48 PL151011 additionally necessary to determine the nature and extent of any impact the limited non- agricultural use periods may have on the TUBL Lands or the agricultural functions of the lands after the TUBL is no longer in effect [118] Mr. Hodgson undertook the completion of the AIS and the AMP on behalf of the Appellant. Mr. Hodgson concluded (as did everyone) that the use of the TUBL Lands for camping and parking would result in some degree of soil compaction over time. This, it was suggested, has no substantial impact on the ability of the rye grass to regenerate and to continue to provide a harvestable crop in between events. [119] Essentially Mr. Hodgson concluded that with the appropriate AMP, there was no reason that the soils on the TUBL Lands (other than the roads) could not be fully remediated and that they would retain their status and viability as prime agricultural lands when the TUBL was no longer in force and effect. With respect to the internal roads, Mr. Hodgson also concluded that if certain of the roads were no longer desired for the purposes of access to the agricultural lands, the road materials could be easily removed and soils returned under the AMP. [120] Mr. Hodgson's AMP was subjected to peer review by Mr. Hoffman who concluded that, given the continuing agricultural uses, there was "no doubt" that the lands could be returned to agricultural uses. By implementing the standard processes of aeration and fertilization, and the other proposed safeguards implemented through the AMP, Mr. Hoffman was of the opinion that the soils could be fully remediated and returned to agricultural use that would be the equivalent of the Class 2 and Class 3 soils. Mr. Vella and Ms. Leigh relied upon this evidence in support of their planning opinions that the requirements under the County OP had been, and would be, fully met with the standard safeguards in place to implement the AMP. [121] The Board does not find that the opinions of Mr. Clark, Mr. Churchyard or Mr Flewwelling on the matters of remediation and the AMP, effectively alter the Board's acceptance of the Appellant's and Township's evidence relating to remediation through M PL151011 the AMP. There is no persuasive evidence before the Board to suggest that the soils are not capable of remediation. Mr. Clark conceded that any concerns that he might have as to the proper implementation and use of the AMP are concerns that can be easily addressed at the end of the TUBL. Mr. Churchyard did not have the opportunity to review the draft of the AMP, as the matter of soils was outside his area of expertise. [122] The Board prefers the opinions expressed by Mr. Hodgson, Mr. Vella, Ms. Leigh and Mr. Hoffman in regards to the certainty that the TUBL Lands can be fully restored to their pre-TUBL condition with the implementation of the AMP. Summary of Findings on the Agriculture Issues [123] For all the reasons given, the Board accordingly finds that: (a) Under the policies of the PPS and the County and Township OPs relating to preservation and use of agricultural lands there be continued use of the TUBL Lands for agricultural purposes under the provisions of the proposed TUBL and there are no portions of the TUBL Lands that are being removed from prime agricultural areas. (b) Given the facts before it, and in considering all of the various planning evidence presented in this appeal, the agricultural and non-agricultural uses of the TUBL Lands that will occur under the provisions of the TUBL are permitted uses under the provisions of the PPS and the OPs and there is consistency and conformity in this regard. (c) The permitted uses of the TUBL Lands for camping, parking, concession stands and soccer field during the effective period of the TUBL will be compatible with surrounding agricultural lands and all adjacent uses under the applicable planning policies. 50 PL151011 (d) The uses which will occur under the TUBL are Type A uses and based upon the modified spatial plans presented to the Board, and the identified separation arcs with the closest lands that might necessitate such separation distances, the proposed uses under the TUBL will comply with the provincial MDS Guidelines and the PPS. (e) After the TUBL is no longer in effect, with the implementation of an AMP, the lands and soils can be fully remediated and returned to their previous condition such that there will be no adverse impact upon the classed soils on the TUBL Lands. For these reasons, there will be no adverse impacts upon the agricultural condition or value of the TUBL Lands as a result of the TUBL. [124] For all of these reasons, and upon these findings, the Board concludes that insofar as the proposed TUBL must specifically comply with all relevant planning policies and regulations pertaining to agricultural uses and the stated objectives relating to the protection and preservation of agricultural lands and uses, and issues of compatibility with agricultural and farming uses, the TUBL represents good planning. [125] Ultimately, given the circumstances relating to the dual and reversionary uses proposed for the TUBL Lands, and the various references to the attributes of a "smart farmer" that the Board heard in the course of this hearing, the Board would conclude that for the duration of the TUBL, the local community will benefit from what can reasonably be described as a harmony of uses. The Township will see the preservation of the continuing agricultural character and agricultural uses on the TUBL Lands and will concurrently benefit from the compatible, time-limited uses permitted under the TUBL which relate to tourism and recreational operations which, as reviewed herein, result in significant economic benefits for the local community. Excepting the limited number of days when the public is drawn to Burl's Creek for the very successful Events held by the Appellant, the overall agricultural and countryside character in the area of the TUBL Lands within the Township is undiminished and remains. 51 ECONOMIC BENEFITS PL151011 [126] Save Oro/WORA take the position that the economic benefits of this proposed TUBL are vastly overstated and results in a net loss to the Township when one considers the negative effects of the use on the Township according to Peter Tomlinson, the economist who provided evidence on this issue. He concluded that the economic impact from camping and parking revenues would be negligible absent the associated entertainment attraction. This is in contrast to the testimony of various witnesses including individuals and businesses, who explained that they have experienced substantial increases in revenues as a result of the Events associated with Burl's Creek Event Ground and have come to rely on these. [127] The Board also heard Mr. Peter Thoma's evidence as to the benefits to be gained from a recurring and well understood event product such as the multi -day Events. Mr. Thoma testified that the Province is supporting the live music industry and in his view, the camping aspect of the Appellant's entertainment Events and the strong social interaction that comes from the camping opportunity, is what has distinguishes the Appellant's concert events and accounts for the success of the Events and the economic benefits being realized by the Township and the surrounding area. ENVIRONMENTAL ISSUES [128] Save OroANORA maintain that there are significant environmental impacts to be suffered from the TUBL, notwithstanding that the Lake Simcoe Region Conservation Authority ("LSRCA") has indicated that it is satisfied that their concerns have been adequately addressed by the Township in its review of the application in relation to the Lake Simcoe Protection Plan ("LSPP"). As noted earlier in this decision, the Township relies on peer reviewers, government departments and other agencies to assist it in its evaluation of such applications. 52 PL151011 [129] Save Oro/WORA rely on the testimony of Gord Miller, a former Environmental Commissioner for the Province of Ontario, who was critical of the Environmental Impact Study (EIS) submitted by Mr. Jeffrey Warren, Mr. Austin Adams and Dan Reeves on behalf of the Appellant, and in support of the application. He maintains that the EIS is inadequate since it does not include a consideration of the impacts of the proposed TUBL uses (camping, parking, concession booths and soccer) on the soil and habitat on TUBL lands. The magnitude of this impact of 40,000 attendees on the environment differs from the agricultural uses currently permitted should have been assessed according to Mr. Miller. [130] Mr. Miller also maintains that the uses will disrupt the connectivity function served by the TUBL lands on the broader landscape within the Lake Simcoe Watershed Area. Mr. Miller did however say that he had full faith and confidence in the LSRCA to properly review the EIS and that the LSRCA had signed off on the EIS. It is noted that the LSRCA was at one point, a party to this proceeding and its issues were ultimately resolved and LSRCA withdrew as a party. [131] The Board received the evidence of Mr. Warren, an expert ecologist who, with Messrs. Adams and Reeves, prepared the EIS on behalf of the Appellant. LSRCA reviewed and accepted the EIS which was completed for the purposes of evaluating any impacts that the operations on the TUBL lands might have upon Natural Heritage Features. Relatively minor issues relating to drainage culverts and some vegetative buffers were noted during the processes and were to be improved by the Appellant, and mitigation measures that were outlines, as directed by LSRCA. Since the areas to be used for the concession booths and soccer fields are wholly contained within the TUBL Lands, and since the majority of the TUBL Lands are to be used for both agriculture (as they have previously been used) and the additional permitted uses relating to camping and parking, Mr. Warren confirmed that there are no uses occurring within the identified Natural Heritage Feature areas or any identified buffers. All of this has been reviewed and approved by LSRCA. 53 PL151011 [132] The Board accepts the evidence provided by Mr. Warren on behalf of the Appellant and finds that the issues associated with the environmental features have been adequately addressed by the Appellant, as reviewed by the Township and ultimately by LSRCA. On the whole of the evidence relating to Natural Heritage matters, the Board does not accept the submissions of Save Oro/WORA as to inadequacies of the EIS or disruptions to connectivity and prefers the evidence of Mr. Warren who testifies that there has been no appreciable change to the Natural Heritage connectivity to the TUBL lands or adjacent lands as a result of the activities occurring under the TUBL. As well, Mr. Warren emphasizes that the proposed uses under the TUBL are limited to the agricultural fields where, as the Board has found, agricultural uses will continue here under the TUBL. [133] On this basis the Board finds that all environmental issues have been adequately addressed and there is reason to believe that LSRCA's review and acceptance of the Appellant's EIS, and mitigation measures, results in any outstanding matter that would warrant a refusal of the TUBL. The TUBL Lands have been fully scoped to ensure Natural Heritage areas are not impacted, there is no opposition to the TUBL from LSRCA, and the proposed temporary uses under the TUBL are consistent with the PPS and conform to the LSPP and both Official Plans. 6191L,IJ,/dC77_1ZIaxe]Va]=1 7 [134] The Board has considered the contingency conditions proposed by the Township and based on the evidence, relating to the acceptance of the Stage 2 Archaeological Assessment Report and the AMP, the Board finds that these conditions are appropriate. [135] Accordingly, the appeal is allowed and the Township's Zoning By-law is hereby amended in accordance with Attachment I" (modified Exhibit 53 —Temporary Use By - Law) and Attachment "2" (Exhibit 67 - Schedule "A" to the said Temporary Use By-law). [136] The Board will withhold issuance of its order until such time as: 54 PL151011 (a) It is advised that the MTCS has accepted the Stage 2 Archaeological Assessment Report prepared by Mr. Michael Henry of Amick into the Registry, thereby indicating that the work completed by Mr. Henry, as it relates to the TUBL Lands, is compliant with the MTCS standards and guidelines; and (b) It is advised by the Township that an agreement with respect to the implementation of an AMP, satisfactory to the Township, and securities with respect to same, has been entered into between the Township and Burl's Creek Event Grounds Inc. and registered on title to the TUBL Lands. "R. G. M. Makuch" R. G. M. MAKUCH VICE -CHAIR "David L. Lanthi&' DAVID L. LANTHIER MEMBER If there is an attachment referred to in this document, please visit www.elto.gov.on.ca to view the attachment in PDF format. Ontario Municipal Board A constituent tribunal of Environment and Land Tribunals Ontario Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248 PL151011 - Attachment 1 THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE BY-LAW NO. 2016 - A By-law to allow Temporary Uses on lands described as follows: Part of Lots 21 & 22, Concession 8, as in RO850934, s/t ORO16808; Part of Lot 22, Concession 9, as in R01326331, Except PT 1, 51R31499; Part of Lot 22, Concession 8, as in R01116954; Part of Lot 22, Concession 8, being Part 1 on 51 R-3247; Part of Lot 23, Concession 9 being Part 1 on 51R-31789; Part of Lot 21, Concession 8, ORO as in RO504892, Except Part 4 51 R-2707, Part of Lot 22, Concession 8, being Part 1 on 51R-35062; and Part of Lot 21, Concession 8, ORO, designated as Parts 1, 2 & 3, 51R20880 all in the Township of Oro Medonte, County of Simcoe under Sections 34 and 39 of the Planning Act, R.S.O. 1990, c.P.13, as amended. WHEREAS the Council of the Corporation of the Township of Ora-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, as amended; AND WHEREAS Section 39 of the Planning Act, in accordance with Section 34 of the Planning Act, provides the authority to establish temporary uses; AND WHEREAS an application has been submitted to the Township of Oro-Medonte to establish a Temporary Use on the subject lands; AND WHEREAS that application has been appealed to the Ontario Municipal Board such that the Ontario Municipal Board is now the approval authority for the proposed Temporary Use; AND WHEREAS the Ontario Municipal Board deems it appropriate to grant a Temporary Use in accordance with Section E1.3 of the Official Plan; NOW THEREFORE the Township of Oro-Medonte Zoning By-law 97-95, as amended, is hereby amended as follows: 1. Notwithstanding the permitted uses of By-law 97-95, as amended, as they apply to lands described as Part of Lots 21 & 22, Concession 8, as in R0850934, s/t ORO16808; Part of Lot 22, Concession 9, as in R01326331, Except PT 1, 51R31499; Part of Lot 22, Concession 8, as in R01116954; Part of Lot 22, Concession 8, being Part 1 on 51R-3247; Part of Lot 23, Concession 9 being Part 1 on 51R-31789; Part of Lot 21, Concession 8, ORO as in RO504892, Except Part 4 51 R-2707, Part of Lot 22, Concession 8, being Part 1 on 51R-35062; and Part of Lot 21, Concession 8, ORO, designated as Parts 1, 2 & 3, 51R20880 all in the Township of Oro Medonte, County of Simcoe as shown on Schedule "A" attached hereto, these lands are permitted the following uses: -2- 1.1 Permitted Uses a. Overnight Camping, in conjunction with, and accessory to, a special event on the lands zoned PR *30 and PR *31 b. Overnight Parking, in conjunction with, and accessory to, a special event on the lands zoned PR *30 and PR *31 C. Concession Booths, in conjunction with, and accessory to, a special event on the lands zoned PR *30 and PR *31 Recreational Soccer Fields and associated day parking e. Existing Uses as of the date of the passing of this By -Law 1.2 Duration and number of permitted special events For the duration of the temporary use bylaw, permitted uses shall not run for more than five (5) consecutive days and any permitted use event which runs for more than (two) 2 consecutive days shall be followed by two (2) consecutive days where no permitted use shall take place on the lands covered by this temporary use bylaw. Recreational Soccer Fields, Overnight Camping, Overnight Parking and Concession Booths in accordance with Section 1.1 shall not be permitted for more than twenty seven (27) days in any calendar year on the lands covered by this temporary use bylaw. Schedule "A" attached hereto forms part of this By-law. This By-law is hereby repealed on December 31st, 2018. PG 51011 -a!!rh_nt2 c w U) D � ƒ O 0- � w F- « w -i D O w r �