Municipal Board upholds County decision to refuse surplus farm dwelling severances

Better Farming has a report on an Ontario Municipal Board (OMB) decision backing Perth County's policy against severances of surplus farm dwellings (click here).  Two Perth municipalities - the Municipality of West Perth and the Township of Perth South - had appealed County council's refusal to amend the Perth Official Plan to allow severances under certain conditions.  The OMB dismissed the appeal, finding that the County's policy was not unreasonable:

The Board finds that the SSFDs [severance of surplus farm dwellings] are permitted in many of the surrounding agricultural focused municipalities through their official plans. However, in the case of the County of Perth, the upper tier municipality with a single county-wide official plan covering all the lower tier municipalities, the Board finds that the refusal to approve an OPA to permit the SSFDs is not unreasonable. The PPS [Provincial Policy Statement] makes the SSFDs permissive, it also allows the municipality to go beyond the minimum requirements in the PPS. Therefore, it is the County’s prerogative to implement a strict prohibition on the SSFDs. The Board finds this acceptable because it is permitted to do so and their position does not conflict with other PPS policies. In fact, the PPS recognizes the importance of agriculture and strongly discourages lot creation on agricultural lands and directs settlement activities to designated settlement areas. The Board finds that the COP [County of Perth Official Plan] does just that, when looking at the County as a whole, there are sufficiently designated settlement areas and the policies of the PPS are being maintained. The Board notes that it is Mr. Hanly’s evidence that an individual can still apply for a site specific OPA [official plan amendment] for a SSFD.

Read the OMB decision at: County of Perth.

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.

OMB upholds Huron County decision to allow storage of "processed organic non-agricultural source material" at farm

The Ontario Municipal Board (OMB) has dismissed an appeal of a zoning decision by the Municipality of Huron East which allowed for the storage of "processed organic material" in existing farm buildings on a farm property.  The material to be stored by Ontario Greenways Inc. near Monkton, Ontario is a "biosolid" from the Cargill Better Beef meat processing plant and contains beef tissue residues.  The "biosolid" would then be spread on land as a fertilizer.

Neighbours of the proposed operation appealed the Municipality's approval of the zoning changes required on the basis that the proposed use is not an agriculturally related use but a waste transfer facility that is not consistent with the Provincial Policy Statement (PPS), does not conform to the County of Huron and Municipality of Huron East Official Plans and does not represent good planning.  Besides concerns about non-agricultural aspects of the project, neighbours were worried about the odour problem that would be created.  Neighbours' residences are located as close as 440 metres from the proposed storage site.

In the end, the OMB found that the proposed use was related to agriculture and consistent with the PPS that encourages waste products to be diverted away from landfill sites and encourages agricultural uses.  As far as odour concerns go, the OMB said that the project would require a Certificate of Approval (CofA) from the Ministry of the Environment (MOE) and that odour could be addressed in that process. 

Of note, the OMB did say the following about the Municipality's approach to the zoning change:

The Board notes that the Municipality's rush to make a decision in case of comments made to the MOE and the finalizing of the rezoning gave the Appellants the feeling that their concners about odour and other environmental impacts were not given adequate consideration.

Perhaps this is a slap on the wrist for the Municipality.

Read the decision at: Rastorfer et al. v. Municipality of Huron East.

OMB refuses severance of farm land in Sarnia area

In a decision issued January 5, 2010, the Ontario Municipal Board has dismissed an appeal of the County of Lambton's refusal of an Official Plan Amendment. The amendment would have allowed Dario and Janet Maola to create three non-farm residential lots out of their 10.8 acre property within the City of Sarnia. The current land use designation for the property in the City of Sarnia Official Plan was Rural. OMB Member S. J. Stefanko accepted the submissions of the County of Lambton in finding that the proposed amendment to allow agricultural lands to be severed for residential lots would not be consistent with the 2005 Provincial Policy Statement (agricultural areas shall be "protected by directing non-related development to areas where it will not constrain [agricultural] uses") and would not conform with either the County or the City Official Plan.

The decision can be viewed at: https://www.omb.gov.on.ca/e-decisions/pl090330-jan-05-2010.pdf