Empty barn not enough to trigger MDS to prevent neighbours' severance

Landowners had applied to their municipality to sever a 0.84 acre parcel from their existing 30-acre lot.  County planning staff determined that the proposed severance complied with MDS requirements and that the County had no objection to the proposal.  However, a neighbour did object to the severance, suggesting that the new lot would breach MDS provisions because it would come too close to his 1860-era barn.  Although the barn was vacant, the neighbour was considering returning the barn to livestock use.  He asked that the proposed severed parcel be moved to a different location on the applicants' property.

The municipality went ahead and approved the severance, so the neighbour appealed to the Ontario Municipal Board ("OMB").  The only issue on the appeal was the application of MDS to the severance, and the OMB ruled that MDS did not apply.  Although the OMB took issue with some aspects of the municipality's methodology for considering required setbacks, the OMB concluded that the neighbour's barn did not correspond to the definition of a "livestock facility" within the governing Provincial documents.  MDS had no application in this case.

As the OMB noted:

The fundamental problem with this appeal, however, pertains to the barn itself, and whether it even constitutes a "livestock facility", as understood in the Provincial documents. The Board was not persuaded for the following reasons.

The Provincial documents are unequivocal: to qualify as a "livestock facility", it is not enough for a building to be "structurally sound"; it must also be "reasonably capable of housing livestock." The two criteria are not synonymous. Although the neighbour insisted that the structure would not actually fall over, he offered essentially no evidence it could meet any other expectations.

Indeed, the Board was not shown how the existing structure could be much more than a "shade shelter" (which is specifically excluded from consideration as a "livestock facility"). Although there was no "comprehensive building analysis", it did not take a comprehensive analysis to discern that the structure had no insulation, electricity, ventilation, stalls, hay storage, manure storage, or livestock equipment. It also had planks visibly missing from its siding in various places. None of the observations by the CBO were contradicted. The structure is a shell, and not even one that is impervious to the elements.

Whether or not the structure was considered appropriate for livestock by 1860 standards, the Province would not have published its detailed instructions for "determining when a barn is a livestock facility", if such a primitive structure could qualify. The Board is satisfied that if this structure were subjected to even the most elementary agricultural standards today, substantial remodeling would be essential.

That is where the neighbour encounters a second problem. The Guidelines specify that MDS II also applies to "remodeled livestock facilities.”

The CBO apparently concluded that no remodeling under MDS II would be feasible – not because the barn was too close to the proposed severed parcel, but rather because it was too close to Ms. [S]'s existing dwelling across the road. The Board heard no evidence to contradict that position.

Therefore, notwithstanding the eloquence of the [O] brothers and their expert, the Board was not shown how the barn could now trigger the MDS process – or that it ever could.

Read the decision at: O’Brien v Laronde.

OMB agrees to reduce minimum setbacks for residence - finds residence an "agricultural use" under Official Plan

Greyda Plains Poultry Ltd. appealed the March 2, 2010 decision of the Committee of Adjustment of the Township of Enniskillen refusing its application for two minor variances. The first minor variance was from the top-of-bank setback provisions and the second was from the minimum distance separation provisions of the Township of Enniskillen Zoning By-law 17 of 2009.  Greyda Plains Poultry Ltd. (“Greyda”) has proposed to develop approximately 38 ha. (94 acres) as a working farm with a farm house and storage barn. The subject lands are located at the southeast corner of the intersection of Oil Heritage Road and LaSalle Line, in the Township of Enniskillen. Greyda currently farms approximately 80 ha. in the vicinity.

Section 5.2(a) of Township of Enniskillen Zoning By-law 17 of 2009 (“By-law”) provides for a 15-metre minimum setback from the top-of-bank of a watercourse.  Greyda proposes a 6-metre setback.  Section 3.17.1 of the By-law requires a minimum distance separation of 627 metres between any manure storage facility and any residence. Greyda proposes a separation distance of 420 metres. Section 3.17.1 also requires a minimum separation distance of 533 metres between a hog operation and a residence. Greyda proposes a separation distance of 373 metres.  The minimum separation distances in the By-law mirror those in the MDS Implementation Guidelines published by the Ministry of Agriculture, Food and Rural Affairs.

With respect to the MDS setback, the OMB found the proposed residence is an “agricultural use” under the provisions of the Township Official Plan since the Greyda operations clearly qualify as a family farm. It found too that a family farm is a 24/7 operation requiring on-site living accommodations.

After consideration of all the evidence, the OMB found that the proposed Greyda farm residence conforms to the general intent and purpose of both the Township of Enniskillen Official Plan and By-law as well as the County of Lambton Official Plan. It also found that the proposed farm residence is desirable for the appropriate development of the subject lands and that the proposed minor variance from both the top-of-bank as well as the minimum distance separation provisions in the By-law is minor in nature. No evidence was advanced by the municipality that there would be any adverse impact on any neighbouring lands as a result of the proposed development.

Read the decision at: Greyda Plains Poultry Ltd.