Rainbow

Rainbow

Monday, October 18, 2010

OMB denies application to sever former aggregate pit land zoned agricultural

James Graham wished to create and sever from an existing 50 acre parcel of land a new estate residential lot comprising 1.24 hectares (3 acres).  Council for the Municipality of Middlesex Centre refused his Official Plan Amendment and Zoning By-law Amendment applications in that regard and the Committee of Adjustment denied his severance request. Those decisions were appealed by Mr. Graham to the Ontario Municipal Board (OMB).

The Graham family has owned 50 acres of land on the west side of Komoka Road and south of Glendon Drive in the Municipality since the mid seventies. Up until 1991 these lands were licensed to permit aggregate extraction operations below the water table. This operation resulted in creating an existing land use comprised of a series of large ponds interspersed between fragmented parcels of land. In total, approximately 16.2 hectares (40 acres) of the site consists of open water and the remaining 4.03 hectares (10 acres) of land adjacent to Komoka Road is used for residential purposes having on it a single detached dwelling.

The Applicant, Graham, testified that in or about 1991 the entire parcel was conveyed to his children. He and his wife then moved from the location. However, they wished to return to the area and create a new lot upon which to build a home. In order to effect their objective, the OMB was asked to approve an Official Plan Amendment (“OPA”).  The issue to be determined in the hearing was whether the proposal is consistent with the 2005 Provincial Policy Statement (“PPS”) and whether it conforms to the Middlesex County Official Plan (“County OP”) and the Middlesex Centre Official Plan (“Centre OP”).

The OMB found that the proposed amendment was inconsistent with the Ontario Provincial Policy Statement and the relevant Official Plans.  The Applicant argued that, since the aggregates on the property had been depleted, the land should now be available for expanded residential purposes.  However, the Board member ruled:
The land has been used for permitted agricultural uses for decades. The depletion of aggregate on the property should not, in my opinion, give rise to uses which are not permitted. ... Even if the subject property is considered unique in some respects, that uniqueness does not transcend, in any manner whatsoever, the specific policy prohibitions identified throughout these reasons. These prohibitions are unequivocal in their language and, in my view, decidedly clear in their purpose and direction. Based on all the foregoing therefore, the OPA and ZBA are not approved and Provisional Consent is not granted. Accordingly, the appeals are dismissed.
Read the decision at: Graham v. Middlesex Centre.