Feb. 22, 2008 PL Ontario Municipal Board Commission des affaires municipales de l Ontario

Transcription

1 ISSUE DATE: Feb. 22, 2008 PL Ontario Municipal Board Commission des affaires municipales de l Ontario IN THE MATTER OF subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended Appellant: Subject: Municipality: OMB Case No.: OMB File No.: John Mista and Butch Mista By-law No Z340 Town of Lincoln PL R APPEARANCES: Parties John Mista and Butch Mista Town of Lincoln Caroline and Ed Hughes Counsel*/Agent John Crossingham* Derek Witlib Peter Janzen* DECISION OF THE BOARD DELIVERED BY R. ROSSI AND ORDER OF THE BOARD Caroline and Ed Hughes (the Applicants) seek an amendment to the Zoning Bylaw in order to establish an estate winery on the subject lands in the Town of Lincoln. The lands are located on a parcel of land on the south side of Greenlane Road. The Applicants are seeking a Zoning By-law Amendment to rezone the subject lands from an Agricultural (A) Zone to an Agricultural (A-67) Zone (H) to permit an estate winery and to establish special provisions in respect of the gross floor area of the winery and for the gross floor area of the retail/hospitality area within the winery. The Board notes that the Zoning By-law Amendment rezones the lands with the (H) holding provision to ensure that the lands cannot be developed until the (H) is removed by by-law. The (H) will not be removed until the Applicants have satisfied the Town that all on-site and off-site development concerns and constraints have been addressed adequately in respect of the proposed winery operation.

2 - 2 - PL Neighbours John and Butch Mista (the Appellants) expressed concerns that noise and dust will arise from the proposed winery operation adjacent to John Mista s property since a new proposed driveway will run along the shared property line and that location would exacerbate a drainage problem affecting all the farm lands in this area as the proposed driveway would be located next to the drain. The Appellants request that the setback from the property line be increased from the Town s minimum standard of 15 metres to a distance that puts it into the agricultural setting of the property. The Board notes that the proposed buildings exceed substantially the Town s minimum setback standard from the property line. John Mista was a witness and he told the Board that he and his brother oppose the proposed by-law amendment. While not opposing an estate winery operation, they object to the location of the proposed driveway next to John Mista s property line and its proximity to the drainage ditch separating the two properties. Mr. Mista was concerned that visitors to the winery might mistake his driveway for the winery entrance and he is concerned with the increased traffic in proximity to his lands. However, the Applicants counsel Mr. Janzen noted that virtually all wineries have clear signage posted at their driveway entrances and often display arrows showing the direction. While Mr. Mista expressed concern with the issue of spray drift, Mr. Hughes noted that he has never used spray so it is not an issue. Mr. Mista said he will need to use bird bangers for his grapes and he would have to set these farther back from the optimal areas, making them less effective in chasing away birds. He also believed that the new driveway would increase the rate of water collection and add to an already existing problem of ponding in the flat lands of the Town. Exhibit 1 Tab T provides visual evidence of drainage problems and the flooding that occurs once every four to five years. He also expressed concern with snow removal and whether it would be located close to the drainage ditch. The Appellants want the proposed winery buildings and the driveway set back farther away from the Mista property line than what is proposed. Mr. Mista told the Board that there is more than enough room for the Applicants to shift the operation farther away from John Mista s property line. The Town s Senior Planner, Derek Witlib, was qualified to provide his expert land use planning evidence in support of the proposed by-law amendment. He advised the Board that the subject lands are designated Unique Agriculture in the Town of Lincoln Official Plan, Schedule A Land Use Plan at Exhibit 4. The lands are designated

3 - 3 - PL Agricultural Zone in the Town of Lincoln Zoning By-law No Z1, Schedule A Land Use Plan at Exhibit 5. He provided an aerial photo (Exhibit 6) of the lands with an overlay to depict the proposed winery buildings. Mr. Witlib reviewed the Official Plan s Wine policies and Official Plan Amendment No. 22 (Exhibit 6), approved by the Regional Municipality of Niagara in 2001, provides the detailed policies related to wineries. The corresponding Zoning Bylaw Amendment Z208 (Exhibit 8) was passed at the same time as OPA 22. He noted that the matter of setback is addressed in the aforementioned zoning by-law whereby the Town established building setbacks of 15 metres for farm and estate wineries (Exhibit 1 Tab B, p.60). He told the Board that the Applicants proposed a 150-foot (45 metres) setback from the road allowance and 75 feet (23 metres) for the winery building from the Mista property line. The Appellants counsel John Crossingham outlined his clients concerns for approval of the winery in a letter to the Town (Exhibit 1 Tab D, Requested Conditions of Approval ). Mr. Witlib noted that the first condition that the zoning contain a holding provision pending the approval and registration of a Site Plan had been met. In respect of the second condition that our clients be consulted as part of the Site Plan approval process, Mr. Witlib outlined the Town s public consultation process and noted that there are sufficient provisions for the Appellants to participate to the extent procedurally allowed. The Town s consultative process is virtually identical to that of most other Ontario municipalities and the condition would be met. It is worth mentioning that this is a zoning by-law amendment application and the Appellants concerns related largely to site plan illustrations although no detailed site plan has yet been submitted. As for the third condition that the entrance way to the winery be 300 feet from the easterly property boundary, Mr. Witlib told the Board that the proposed building setbacks already exceed the Town s minimum zoning setbacks. He noted that there is some existing visual screening along the proposed driveway and more is proposed. Mr. Witlib concurred with the Appellants that Town planning staff had some concerns with the proposed driveway entrance into the winery being located close to the common property line so Public Works said the driveway must be offset somewhat from the drainage ditch so that there will not be an increase of flow off that driveway into the drainage ditch. Thus, Town planning staff wants at least 3 metres between the Mista and the proposed driveways. Mr. Witlib said that in his opinion, a buffer or space to

4 - 4 - PL provide features like fencing, landscaping or drainage function would be useful. While there are no provisions for buffers for driveway strips for wineries in the Zoning By-law, the Town staff has applied an acceptable standard found elsewhere in the Town s planning instruments. Mr. Witlib detailed the differences between farm and estate wineries. A farm winery is a permitted as of right use in the Agricultural (A) Zone but subject to site plan approval and a minimum setback of 15 metres. An estate winery triggers the zoning bylaw amendment and must be dealt with via this site-specific amendment. As for condition 4, that a minimum set back of 250 feet be maintained for the winery operation including parking, Mr. Witlib only advised that from a site design standpoint, shifting the parking lot away from the Mista property would be appropriate if it were found that more room were needed for the existing drainage feature but this was still at the zoning by-law amendment application stage and no detailed site plan had been submitted. He reiterated the fact that the Appellants did not oppose a winery but rather that their concerns are with design and those matters were more appropriately dealt with at the site plan stage. Conditions 5 and 6 have been waived as no restaurant operation will now occur at the proposed winery. Condition 7 regarding a storm water management plan would be met as the Town would expect detailed documents to be submitted for the proposed winery operation. As for the last condition regarding parking and access, Mr. Witlib expressed no concern with a proposed parking lot and he was not concerned that it would impact the Mista property from either an enjoyment or agricultural perspective. He emphasized that farm wineries are already permitted on the property subject to site plan control and from a planning perspective, the concern is the impact difference between a farm winery and an estate winery on the site not the impact of a winery versus no winery. Mr. Witlib reviewed the difference in square metres between what is permitted as of right (a 500-square-metre cap with 200 square metres for retail) and what is proposed (a proposed 665-square-metre cap with 307 square metres for retail) and opined that this shows no significant difference and thus the Town supported the proposed amendment.

5 - 5 - PL Mr. Witlib noted that the Town verified that there is no flood plain in this area. He noted that ponding occurs but the phenomenon is fairly common in Lincoln where the land is relatively flat. He noted that the Town will require of the Applicants a detailed grading and drainage plan to ensure the proposed development does not aggravate any existing condition on the lands. He cautioned that the Town would not use a sitespecific development application to solve a broader problem. Accordingly, the Town would not ask the Applicants to alter or eliminate forever the ponding phenomenon; only that there is an assurance that the proposals does not aggravate the existing ponding condition. Mr. Witlib noted that there are some 36 estate and farming wineries in the Town of Lincoln with more covered by the jurisdiction of the Niagara Escarpment Commission (NEC) to which the Town is a commenting agency. Moreover, the NEC regularly adopts the Town s standards and policies for use in regulating wineries within NEC jurisdiction. While Mr. Crossingham referred to several components of Official Plan policies (a) and (b) in respect of the proposed site design, Mr. Witlib noted that these assist in explaining why an 8-hectare minimum size is required for estate wineries (which the Applicants lands meet) as well as to emphasize the main use will be agricultural and an estate winery will be a secondary use. Mr. Witlib agreed with Mr. Crossingham s argument that the buildings could be located elsewhere than where proposed but no site plan has yet been submitted. Both Mr. Mista and Mr. Hughes detailed their experiences with the soil on the subject lands and in the area and the impact of dense soil and the invasive root systems of willow trees on grape vines. However, the Board received professional scientific evidence from Dr. Andrew Reynolds of Brock University who spoke in support of the application. Dr. Reynolds is a Professor of Biological Sciences and Viticulture and he was qualified as an expert in soil analysis for the purposes of this hearing. His report (Exhibit 1 Tab S) observed the health of the Applicants vines, the site topography, the soil types and it confirmed the veracity of the statements made by the Respondents. His report, his finding and his professional opinion were unchallenged. His report supports the Applicants position that locating the winery in the proposed area is appropriate as the soil has very high bulk density and is located near willow trees that have shaded the vines and destroyed the drain tiles every five years with invasive roots. He also noted that the siting of the winery in the northeast corner of the property will

6 - 6 - PL result in the least percentage of the property used for driveway and other nonagricultural uses, thus allowing the maximum percentage of the land for grape growing. Dr. Reynolds also opined that normal and responsible farm practices can be carried out notwithstanding the location of the building. He also suggested that appropriate plantings along the mutual property line boundary and in the buffer area would assist in ensuring the Appellants enjoyment of their property and privacy were not affected. Applicant Ed Hughes explained his difficulties with the land and soil along the mutual property line with Mr. Mista and his efforts to replace drainage tiles in this area. Mr. Hughes dug an irrigation pond in 2006 and was specifically located to take advantage of water supply. He confirmed that the issue of spray drift as raised by Mr. Mista is a valid one but a practice he finds unacceptable. As lambrusca grapes cannot tolerate this activity, he does not spray and accordingly, he will not be spraying. Mr. Hughes added that trees such as those growing along the mutual property line cannot serve as an appropriate buffer as they attract birds and reduce airflow and shade is an enemy of grapes. Grape vines are planted in wide rows so as to minimize shadows. There are trees along the Mista property line and Mr. Mista has planted several more trees along his property line. While the Appellants argue that the issue of impact has not been addressed, the more relevant matters related to the application have been professionally assessed by the Town s planning staff and a professional scientific witness. From both perspectives, the only two professional witnesses opined that the application is appropriate and the academic witnesses report confirmed for the Appellants that their proposed siting of the winery buildings is appropriate given existing soil conditions as tested. Mr. Crossingham s arguments in respect of the Town s Official Plan policies not being properly considered are assigned no weight. It is clear that Town planning staff conducted a comprehensive and professional assessment of all the relevant planning policies in considering the application and made a fully supported and rationalized determination that the application could be supported. Mr. Witlib went so far in his oral evidence to address Mr. Crossingham s concerns and the Board preferred his evidence to the arguments of the Appellants counsel. Mr. Crossingham s reading of the agricultural policies of the Town in the context of this application and his argument that the siting of the buildings undermines those

7 - 7 - PL policies were of little value to the Board. The Board reiterates that no site plan is before it as none as yet been submitted to the Town and the planning witness responded appropriately and persuasively to his concerns. That professional planning evidence must be assigned the greatest weight in the Board s determination, buoyed by the fact that the Appellants did not raise any legitimate planning issues or evidence. As for Mr. Crossingham s argument that since Dr. Reynolds had only concerned himself in his report with the northeast corner of the Appellants lands and not with the site of the proposed winery buildings, his report is unhelpful in finding a more appropriate location for the winery, the Board assigns no weight to this argument. As previously mentioned, Mr. Reynolds evidence was unchallenged in questioning; he was, logically, not asked to undertake a report for the Appellants but then identify some other location for his clients proposed buildings; and as Mr. Witlib correctly stated, the Applicants have yet to submit a detailed site plan proposal and there is a public consultative process that will receive comments from interested persons. For these reasons, and given the fact that these matters deal only with the appropriateness of a zoning by-law amendment application, the Board prefers the only professional planning evidence of Derek Witlib and the unchallenged scientific evidence of Dr. Andrew Reynolds to that of the Appellant witness and his counsel for the reasons stated. Accordingly, the Board accepts as persuasive the Town s minimum setback standards for estate wineries and that these are in compliance with the relevant Official Plan policy provisions. Having considered all of the evidence, the Board dismisses the appeal and orders that Zoning By-law No Z1, as amended, of the Town of Lincoln, be amended in accordance with the Zoning By-law Amendment found in Exhibit 1 Tab N to permit the establishment of the estate winery on the Applicants lands. So orders the Board. R. Rossi R. ROSSI MEMBER