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HomeMy WebLinkAboutPSD-063-08 ClYlilJglon REPORT PLANNING SERVICES Date: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE ~e'SdlJ--\iCY\ o:{l- -GPA-3'7B-08 Monday, June 16, 2008 Meeting: Report #: PSD-063-08 File #: ZBA2006-0021 By-law #: Subject: OMB DECISION ON MOTION TO DISMISS APPEAL OF ZONING BY-LAW AMENDMENT APPLICATION ZBA2006-0021 APPLICANT: JAMES TOSSWILL RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report PSD-063-08 be received for information. Submitted by: David rome, M.C.I.P., R.P.P. Director of Planning Services Reviewed by: d ~-=- ~ Franklin Wu, Chief Administrative Officer SAlCPIDJC/df/av June 9, 2008 CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T (905)623-3379 F (905)623-0830 REPORT NO.: PSD-063-08 PAGE 2 1. On July 7, 2006, the applicant/owner submitted an application to the Municipality of Clarington to rezone the subject lot at 7254 Langstaff Road to permit the keeping of horses on the property. The applicant intends to have pasture/corral for grazing horses, and at this time does not intend to construct a barn or any other agricultural type building. 2. A decision was made by Clarington Council on June 25, 2007 to approve the application. On July 25, 2007 a neighbouring property owner, Mr. Paul Fitze appealed the decision of Council to the Ontario Municipal Board. 3. The property owners, James Tosswill and Emily Wilson brought a motion before the Ontario Municipal Board to dismiss the appeal made by their neighbour without holding a full hearing. The OMB heard the motion on March 18, 2008. Municipal Staff were not subpoenaed to appear. The property owners relied in large part on the planning rationale in the Planning Staff Report for their argument. The OMB issued their decision on May 21, 2008 and it is contained in its entirety in Attachment 2. 4. Ontario Municipal Board granted the motion and dismissed the appeal by Mr. Fitze. The Board found that the issues raised by the appellant have no established legitimate planning grounds for the appeal. The Board found the proposed use to be consistent with surrounding land uses, in conformity with both the Regional and Clarington Official Plans, and with provincial policies. Further, any planning issues regarding this matter were addressed by the applicants and the Municipality in the approval process for this application. 5. This report and the attached decision of the Ontario Municipal Board is provided for information. Attachments: Attachment 1 - Key Map Attachment 2 - OMB Decision I I I -1 ! I ~I o i3 9 sl <=: ft rn Jil i ii!1 . 0 -.., .... ~ II I I I 46.42m 11054'30"W I I I m x ~ ::J <C o :E (l) :i <C ~~ N16039'20.W 74.51m tg :z ::.. ~ 3' d C> c..3 o . m I I N16032'20.W 15.27m ~ N73026'30"E N73026'30.E 9.33m 1.39m N16"32'20.W 115.23m ] \;73026'30.E C 32,31m LANGSTAFF ROAD Attachment 1 For Report PSD-063-08 z ~ ~ o en o Ci o ni IV o v.> o IV 3 ~ -0 ~ 0 N "0 .. 0 0 ~ :e ~ .... ::J Z 0 jD (;)N <> :'! D]CJ:l a 0" me.. -<)> " 3 I>> 'N 5: -.3 >10 01 -jD "0 '<Ul :E~ :E-l ,. >, 0 =0 a:Q ~ (IlUl 3 OUl mQ .. ~:e z~ ~ (') 0 iii" I>> a: ~ = m ~ Q. Z ~ -l "0 .;... \ ';"" I' I I I ~!......... Ontario MO~~i~ipal Board ts~,.:.:' Commission des affaires municipales de l'Ontario ISSUE DATE: MAY 21,2008 Attachment 2 For Report PSD-063-08 r::"-~ II' PL070654 H . i ..~ Paul Fitze has appealed to the Ontario Municipal Board under subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended, against Zoning By-law 2007-152 of the City of Municipality of Clarington OMB File No. R070178 James Toswill and Emily Wilson has brought a motion before the Ontario Municipal Board under subsection 34(25) of the Planning Act, R.S.O. 1990, c. P.13, as amended, to dismiss the appeal without holding a full hearing APPEARANCES: Parties J. Tosswill and E. Wilson P. Fitze DECISION DELIVERED BY C. CONTI AND ORDER OF THE BOARD Background James Tosswill and Emily Wilson applied to the Municipality of Clarington for an amendment to Municipal Zoning By-law 84-63 in order to allow agricultural use of a portion of the property at 7254 Langstaff Road, Part Lot 5, Concession 7 in Clarington. The Municipality approved By-law Amendment 2007-152 which zones the western portion of the applicants' property agricultural so that horses can be pastured on this portion of the lands. Paul Fitze, who owns property immediately to the south, has appealed the By- law Amendment, claiming that the use of the land for keeping livestock will impact the proposed residential use of his land. - 2- PL070654 Mr. Toswill and Ms Wilson brought forward a motion to dismiss on the grounds that the appeal is vexatious and antagonistic, and does not have a legitimate and substantial factual basis. The Proposal The applicants own the 2.74 ha parcel at 7254 Langstaff Road. There currently is a dwelling located in the south-central portion of the property. Langstaff Road runs north to south at the eastern limit of the lands, and properties fronting on this section of Langstaff are zoned for residential use. A large land locked agricultural property, owned by Mr. Fitze's father abuts the west boundary of many of the residential properties fronting on Langstaff, including the subject lands. The current zoning of the property is Rural Cluster 2 (RC-2), with the eastern portion including a watercourse and small wetland zoned Environmental Protection (EP). By-law Amendment 2007-152 proposes to change the zoning to Agricultural for approximately the western half of the lands. The change will permit only use of these lands as pasture, and does not permit buildings or structures to house livestock. The EP zoning will not be affected by the proposed Amendment. The applicants intend to use the western portion of the lands to pasture horses, only during summer and part of the spring and fall. They own another property where the horses are kept the rest of the year. They contend that they do not need to build a shelter on the property for their intended use, and therefore are proposing no new construction in conjunction with the rezoning. Basis of the Motion The basis for the applicants' motion is essentially that the grounds for the appeal are vexatious and lack substance necessary for the appeal to be successful. The appellant's reasons for the appeal include, nuisance from flies, odours, noise caused by the horses whinnying, concerns for nutrient management, and concern about the welfare of the horses. The applicants contend that all of these matters have been either addressed during the process of the By-law Amendment approval, or they are non- issues. - 3- PL070654 They note that much of the area surrounding the subject property is zoned agricultural and used for agricultural purposes. The property to the west owned by the appellant's father is in agricultural use and contained livestock as recently as 2001. Livestock are currently kept on the property to the east of the subject lands on the other side of Langstaff Road. There are two commercial riding stables within 1 km of the property. The agricultural use of the surrounding area is widespread. Therefore the applicants contend that the nuisance issues identified by the appellant are part of the surrounding agricultural use. They maintain that their proposal will not be adding significantly to any issue. The applicants maintain that noise disturbance from whinnying is not a legitimate issue. They contend noise created by vehicles and machinery in the surrounding area far outweigh the noise created by the horses. The applicants submit that there is no issue regarding nutrient management since they are proposing no. buildings to house the horses. They contend that the Nutrient Management Act and the requirements for Minimum Distance Separation apply only when buildings are proposed. Regarding the welfare of the horses, the Board notes information from the applicants' veterinarian, indicating that they have a history of providing proper care for their horses. The applicants also provided an inspection report from the OSPCA which stated that the horses on the subject property were well cared for and there were no concerns. Appellant's Response The appellant relied upon the filings (Exhibit 2) of the applicants for his response, and provided no submissions on his own behalf. While he did not serve a notice of response to the applicants' motion, since he did not rely upon responding materials, did not use an affidavit as evidence and did not call witnesses, his response to the motion complies with section 36 of the Board's rules of Practice and Procedure. The appellant maintains that pasturing horses on the applicants' property will affect the uses of his lands. He is proposing to build a dwelling on the property to the - 4- PL070654 south of the applicants, and the proximity of the horses will cause an increase in flies, odours and other nuisances. Furthermore, he contends that the pasture area is too small to care for the number of horses that will be there. He claims that the applicants have pastured as many as seven horses in the field in the past. The area is not large enough to provide for the nutritional needs of that number of horses. The Municipality created the rural cluster in this section of Langstaff Road a number of years ago, and the residential use should be protected. To introduce agricultural uses into the area will impact his property and others in the area. Findings Section 34(25) of the Planning Act sets out a number of grounds whereby the Board can dismiss an appeal without a hearing. In part, this section states, "...the Municipal Board may dismiss all or part of an appeal without holding a hearing, on its own initiative or on the motion of any party, if, (a) it is of the opinion that, (I) the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Board could allow all or part of the appeal, (ii) the appeal is not made in good faith or is frivolous or vexatious, (Iii) the appeal is made only for the purpose of delay, (iv) the appellant has persistently and without reasonable grounds commenced before the Board proceedings that constitute an abuse of process...." The Board is not convinced by the applicants' claim that the appeal is vexatious. However, the Board is concerned about the lack of apparent planning grounds upon which this appeal could be allowed. This in itself can be a reason to dismiss an appeal. - 5 - PL070654 A number of Board decisions (notably East Beach Community Association v. the City of Toronto, 1996) have found that appellants must do more than simply raise apprehensions of potential problems. They must establish legitimate plannirigllrounds upon which an appeal could be allowed in order for it to move forward to a hearing. In reviewing the argument of the parties and the submissions on this motion, the Board finds that the following are the critical and decisive points. Surrounding Land Uses While some residential use has been established along Langstaff Road, agricultural uses are also well established in the area. Other properties, including that owned by the appellant's father, which abut his lands, are used for agricultural purposes and could be used for livestock grazing. The evidence is that the appellant supports the agricultural use of these other properties, but is opposed to the proposed use by the applicants. The Board understands that he assists in the farming operation on his father's property. These agricultural uses are in close proximity to the appellant's lands and the other lands zoned for residential use. The Board concurs with the applicants' submissions, that the same types of nuisance issues raised by the appellant could occur on these other properties, and it is unlikely that the proposed use will add significantly to any existing nuisance. Designation of the Lands The submissions provided by the applicants indicate that the subject lands are designated for agricultural use in both the Region of Durham and the Municipality of Clarington Official Plans. In the Regional Plan it is designated Prime Agricultural Area. The Planning Staff report on the rezoning (Exhibit 2, Tab E) notes that while the Municipality attempted to reflect the residential zoning in the Clarington Official Plan designation, the Region as the approval authority would not permit it. Consequently, the lands that are zoned Rural Cluster (RC-2) are designated as General Agricultural and Environmental Protection in the Clarington Plan. - 6 - PL070654 The Greenbelt Plan recognizes the wetland as a natural heritage feature on the property. However, the evidence provided to the Board is that the natural heritage feature will not be impacted by the proposal. The designations clearly reflect the priorities of both Durham and Clarington to maintain the agricultural use of this property. The Board finds that the proposed zoning conforms more closely to the Official Plan designations than does the Rural Cluster zoning. In view of the designations and of provincial policies supporting the protection of agricultural lands, it is unlikely that planning evidence provided at a hearing would find a residential designation to be appropriate. Nutrient Management and Minimum Distance Separation No convincing evidence was presented that the proposed agricultural use falls under the Nutrient Management Act and that it would require the use of Minimum Distance Separation (MDS). The applicants maintain that the Act and MDS only apply if a structure is to be constructed to house the horses. This is also the position of Town Planning Staff in their report on the rezoning (Exhibit 2, Tab E). The MDS Implementation Guidelines clearly state that MDS does not apply to pastures. Section 11 of Ontario Regulation 267/03 of the Nutrient Management Act indicates that it is not necessary to comply with various provisions of the Act if no building is proposed and if there is no proposal for a permanent nutrient storage facility. No evidence has been presented that either of these are proposed in conjunction with the agricultural use of the subject lands. Furthermore, the By-law Amendment specifically prohibits the construction of buildings to house livestock. The appellant has not demonstrated grounds upon which the appeal could be successful on the basis of requirements of the Nutrient Management Act and Minimum Distance Separation. Conclusion The Board's main concerns in this matter are the proposed land use, whether it fits in with the surrounding land uses, if it conforms to the relevant Official Plans and provincial policies, and if it could have any significant negative impact. The applicants -7 - PL070654 appear to have the capacity and experience to care for their animals properly, although that is not a planning issue. In view of the above, the Board finds that the issues raised by the appellant have not established legitimate planning grounds for the appeal. The proposed use is consistent with surrounding land uses and conforms to Official Plan designations and provincial policies. Any planning issues regarding this matter have been addressed by the applicants and the Municipality in the approval process for the application. Therefore, the motion of the applicants is allowed and the appeal is dismissed. Order UPON APPEAL to this Board by Paul Fitze of the approval by the Municipality of Clarington of By-law Amendment 2007-152; AND UPON MOTION to this Board by James Tosswill and Emily Wilson for an Order dismissing the appeal under subsection 34(25) of the Planning Act, and after hearing the motion; THE BOARD ORDERS that the motion is granted and the appeal by Paul Fitze is dismissed. "C. Conti" C. CONTI MEMBER