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HomeMy WebLinkAbout09 111 Amendment to Restricted Area Zoning By-Law 82-08 (Eli Albrecht) By-Law e e e e THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE BY-LAW No. 2009 -111 BEING A BY-LAW TO AMEND ZONING BY-LAW NO. 82-08, BEING THE RESTRICTED AREA ZONING BY-LAW FOR THE FORMER TOWNSHIP OF KINCARDINE Eli Albrecht Lot 28, Concession 5, Municipality of Kincardine (former Township of Kincardine) WHEREAS Section 34 of the Planning Act, R.S.O 1990, Chapter 13 authorizes the Councils of Municipalities to enact and amend zoning by-laws which comply with an approved official plan; AND WHEREAS the Council of the Corporation of the Township of Kincardine has enacted By-law 82-08, a zoning by-law enacted under Section 34 of the said Planning Act; AND WHEREAS the Corporation of the Township of Kincardine has restructured to now be a part of the Corporation of the Municipality of Kincardine; AND WHEREAS the Council of the Corporation of the Municipality of Kincardine desires to amend By-law 82-08; NOW THEREFORE the Council of the Corporation of the Municipality of Kincardine ENACTS as follows: 1. Schedule 'A' to By-law No. 82-08 as amended, is hereby further amended by changing thereon from 'A l' to 'A 1-82' the zoning designation of those lands described as Lot 28, Concession 5, Municipality of Kincardine (former Township of Kincardine) which are outlined on the attached Schedule 'A'. 2. By-law No. 82-08, as amended, being the Restricted Area Zoning By-law for the former Township of Kincardine, is hereby further amended by adding the following paragraph to subsection 9.3 thereof: 9.3.66 (a) Notwithstanding their 'A1' zoning designation, those lands delineated as 'A 1-82' on Schedule 'A' to this By-law may be used for 'Farm Lot' purposes in compliance with the 'A1' zone provisions contained in this By-law, excepting however, that: (i) Notwithstanding Section 8.1 of By-law 82-08 as amended, a second 'Accessory Detached Dwelling' is permitted; and (ii) The second 'Accessory Detached Dwelling' shall be constructed/located within 30 metres (100 feet) of the other buildings as they existed on the date of passage of this By- law; and (Hi) The second 'Accessory Detached Dwelling' shall be exclusively for the use of person's employed/working on the subject lands. e e e e Page 2 By-law No. 2009 - 111 Amendment to Restricted Area Zoning By-law (Eli Albrecht) 3. This By-law takes effect from the date of passage by Council and comes into force and effect pursuant to the provisions of the Planning Act, RS.O. 1990. 4. This By-law may be cited as the "Amendment to Restricted Area Zoning By-law 82-08, (Eli Albrecht), By-law". APPROVED BY Ontario Municipal Board Decision! Order No. 0018; dated June 18, 2009. READ a FIRST and SECOND TIME this 21st day of January, 2009 Mayor Clerk READ a THIRD TIME and FINALLY PASSED this 21st day of January, 2009. Mayor Clerk SCHEDULE 'A' Lot 28, Concession 5, Municipality of Kincardine(geographic Township of Kincardine) 312 Concession 5 // /!v /ff/ i~ /~ ,/1' /Qj' / / 1/ co!}; 6' / / , ~7 ~7 co!}; 0" " () " '" ~'~~ ,,~ ."'''' ~''''~"-,.,,, '~""".<,.,,, ~...., ~,~, ~'''''' "....., .,~'"~:::::",,.,~~ "'.~'.. ~7 '" " '-"", ", "'", ""... .""""-c":-,,.,.... :O~c~"'" '~S'i'>' "l.J/j :{"''- N + 100 50 0 100 Meters -- .-----, '-_____1 SUBJECT PROPERTY l/#M LANDS TO BE ZONED 'A1-82, GENERAL AGRICULTURE SPECIAL' THIS IS SCHEDULE 'A' TO THE ZONING BY-LAW AMENDMENT NO. &009- 1\\ PASSED THIS DAY OF e MAYOR CLERK FilE: Z-104-08,21 APPLlCANl' Eli Albrecht DATE: February 2009 . , . ' ~ ~ Ontario Ontario Municipal Board Commission des aflaires municipales de l'Ontario Eli Albrecht and Israel Albrecht have appealed to the Ontario Municipal Soard under subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended, from Council's refusal or neglect to enact a proposed amendment to Zoning By-laws 2003-25 and 82-08 of the Municipality of Kincardine to rezone lands composed of Lot 28, Concession 5 from A1 -- General AgricuHure to A1-eb -- Generai Agriculture Special to permit a second residence exclusively for the use of persons employed/working on the property OMS Case No. PL090158 OMS File No. PL090158 ISSUE DATE: JUNE 18, 2009 JL'N :1 ~ c 20bs QI?OEe "0. 001'6 PL090158 APPEARANCES: Parties Counsel*/Aaent D. Scott Eli and Israel Albrecht Municipality of Kincardine G. Magwood" DECISION DELIVERED BY J. E. SNIEZEK AND ORDER OF THE BOARD Introduction Eli and Israel Albrecht (the Appellants) applied to rezone their property from A1 (General Agriculture) to A1-eb General Agriculture Special to permit a second residence exclusively for the use of persons employed on the property. The application was refused by Council notwithstanding that the Official Plan permits a second dwelling and the fact that the Planning Department recommended approval. The. Beard heard from five witnesses, Bruce Stickney, County Planner and author of the planning report who appeared under the power of subpoena, Don Scott, planner and agent for the Appellants, Israel Albrecht, one of the Appellants, Elmer Kuepfer, father-In-law of one of the appellants and George 8alango, planning consultant retained by the municipality. The Appellants jointly own a 40 hectare (100 acre) farm with 403 metres of frontage on the north side of Concession 5 and is legally described as Lot 28. The Appellants wish to develop an animal husbandry operation consisting of beef cattle, pigs, sheep, goats and chickens. At the time of the application Eli Albrecht was living . . I. I I -2- PL090158 with his parents. The parent's farm is approximately one and a half kilometres away. He has since been married and lives in a rental property. The Albrechts are Amish farmers who eschew the use of mechanized farm equipment. The land base is sufficient to support a productive agricultural operation. The Appellants consulted with the local planner a number of times before filing their application. Mr. Stickney reviewed their application and recommended it to the local municipality who refused it. There were no members of the public or consulting agencies who provided negative comments. Background The application tums on the interpretation of the 2005 Provincial Policy Statement (PPS), and the County of Bruce Official Plan (CBOP) because the local Kincardine Official Plan only has policies that deal with the settlement areas and the local zoning by-laws. The CBOP designates the subject lands "Agricultural" as opposed to "Rural". Zoning By-law 2003-25 zones the subject lands A 1. The PPS sets out a number of policies and definitions that are important to this case: Policy 2.3.1 Prime Agricultural areas shall be protected for long-term use for agriculture. Policy 2.3.3:1 In prime. agricultural areas,permitted uses and activities are: agricultural uses, secondary uses and agricultural related uses. Policy 2.3.3.2 In prime agricultural areas, all types, sizes and intensities of agricultural uses and normal farm practises shall be promoted and protected in accordance with provincial standards. Agricultural uses: means the growing of crops, including nursery and horticultural crops; raising of livestock; raising of other animals for food, fur, or fibre, including poultry and fish; aquaculture; apiaries; agro-forestry; maple syrup production; and associated on- farm buildings and structures, including accommodation for full-time farm labour when the size and nature of the operation requires additional employment. The CBOP includes two policies that impact the subject application: . . . - 3 - PL090158 5.5.2 Permitted Uses .. ...Permitted uses also include the primary and secondary farm residence on the same iot as part of the farm unit, forestry, public conservation, public open space, passive recreation, farm vacations, and occasional agricultural demonstration events such as a plowing match.... 5.5.9 Accessory Farm Dwellings A second dwelling on a farm may be permitted for an employee or family member who works on the farm. Such dweliing must be located in close proximity to the farm buildings, and should not be considered for future severance from the farm operation. Such dwellings may be regulated through the Zoning By-law, and may include a semi-detached dwelling or duplex dwelling. Kincardine Zoning By-law 2003-25 provides restrictions on the number of dwellings permitted on any agricultural/farm lot. Section 8.1 reads as follows: 8.1 Dwelling Units In any Agricultural Zone, a maximum of one "Accessory Detached Dwelling" or "Residential Non-Farm Detached Dwelling" may be erected on a lot. 4. An "Accessory Detached Dwelling" or a "Residential Non-Farm Detached Dwelling" shall conform to all yare! provisions of the Agricultural Zone. Evidence Mr. Stickney, the author of the planning report, is a planner with limited experience and this was his debut as a witness in a Board proceeding. Mr. Stickney is not a recent,graduate but has been employed by a university for a number of years as a researcher. Mr. Stickney prepared his planning report after consulting with.the Appellants and review agencies. It was his evidence that he had reviewed the Minimum Distance Separation (MDS) formula and had determined that the proposed residence would not infringe upon other agricultural operations in the area. He noted that the MDS did not apply to the proposed residence because on-site residences are exempt. - 4- PL090158 Mr. Stickney testified that Policy 2.3.3.1 of the PPS raises the possibility of a second farm residence for on farm labour. The definition of agricultural uses in the PPS provides for full-time farm labour accommodations. Mr. Stickney went on to state that the County of Bruce Official Plan (CBOP) Section 5.5.2 provides for primary and secondary farm residences as permitted uses. Section 5.5.9 of the CBOP indicates that accessory residences are to be in close proximity to the farm operation and the second residence would not qualify for a future severance. Mr. Stickney indicated that a draft by-law was then prepared permitting the second residence subject to the condition that the residence be constructed within 30 m of the other buildings on the site and the second residence was only to be occupied by persons employed/working on the farm. The only agency comments received were . -- those of the Saugeen Valley-COnservafloilAUlfionty {SVCA)"that noted that a regulated watercourse flows through the property and that if construction occurred nearby, permits may be required. Mr. Stickney asserted that the location of the second residence would not require a permit from the SVCA. Mr Stickney affirmed that no person appeared at the statutory public meeting to express any concern. In cross-examination, Mr. Stickney admitted that primary and secondary houses when used in the context of residential uses were the first and second residences and there was no hierarchy of residential use intended. Mr. Stickney, in response to questioning from the Board, admitted that he was of the opinion that the application represented good planning and that the appeal should be allowed. . Mr. Israel Albrecht indicated that his farm.operation now consisted of 30 acres of pastureland. The mixed animal operation would eventually involve the complete 100 acres of land. Now a portion of the land is rented out. Mr. Albrecht testified that the proposed location for the second residence for his brother was in well drained soil away from the trees that provided privacy around his existing home. Mr. Albrecht affirmed that the farm operation was based upon hand labour and no mechanized farm implements wOJJJrLgenerally be used. He admitted that sometimes contracted mechanical implements would be used in emergency situations. . . - 5- PL090158 Mr, Elmer Kuepfer, the father-in-law of the Appellant, stated that their families work to develop sustainable agriculture for their families and communities, is based upon this concept. Mr. Kuepfer noted that the existing home has a problem with basement drainage and the new home would be in a location devoid of such problems because of the drainage and topography, Donald Scott, the consulting planner and agent for the Appellants, testified that he had visited the site and surveyed the surrounding land uses, He noted that the subject lands were serviced with a municipal road, well and sewage system, Mr, Scott opined that the new dwelling would need a new sewage system and possibly a new well. He indicated that the new dwelling would be located 30 m west of the existing dwelling. Mr. Scott reviewed the provincial interests as set out in Section 2 and 3 of the Planning Act. - - - -'--Mr.-Scott 'Stated thiiflfie"subJeCllailaswefe'oSSigriifteO'Wgricultoral" as opposed to "Rural" in the CBOP and were "Prime Agricultural Area" as opposed to "Rural" in terms of the 2005 PPS. The proposed joint operation of the farm by the two brothers was more effective and efficient given the means of agricultural production (by non- mechanized machinery) and the nature of the organically grown/raised products adds to the viability of the proposed venture. Mr. Scott concluded (there was no contrary opinion) that the MDS formula did not apply to the proposed residence. Mr. Scott was of the opinion that Policies,2.3.3.1 (prime agricultural areas), 2.3.3.2 (all types of uses), and 2.3.3.3 (MDS), were consistent with the PPS 2005 policies. Mr. Scott concluded that the PPS policies were matched by the CBOP policies. As far as the CBOP, Mr. Scott pointed to the fact that there were no constraints on the property according to the Plan, that the Plan strengthens the role of agriculture in the County, and the Plan allows a second residence subject to a rezoning. Mr. Scott concluded his testimony by informing the Board that the application before it represented good planning, preserved the agricultural base, conformed to the CBOP, was consistent with the 2005 PPS and consistent with a similar application . approved in 2005. Mr. Scott admitted in cross-examination that approximately 14 of an . acre would be removed from agricultural production. . . I 1. I ! - 6- PL090158 George Salango, consulting planner, retained by the municipality, reviewed the site characteristics and surrounding land uses. He stated that 100 acre (40 ha) farms dominated the area. There are livestock, dairy and mixed farms in the area. The subject lands are 11 kms from the municipal office. Mr. Balango's interpretation of the PPS is that the PPS requires full-time employment on the farm and Mr. Eli Albecht was living and working at his father's farm at the time of the application. Mr. Balango felt that the proposed location of the residence 30 m from the existing farm complex was too remote. Mr. Salango calculated that if 700 farms in the area all added a second residence, that 350 ha of land would be removed from agricultural production. Mr. Balango felt that the farm operation had not matured to the point where full- time employment was possible and that the proposed by-law did not restrict secondary "permitted usesoflheresidences'Tor liome-occIfiYa:tion ancfbed'al1d -bretlkfast uses;-Mr. Salango was of the opinion that the proposed residence was in no way secondary to the primary residence. He maintained that Mr. Stickney's planning report was not consistent with the PPS and not in conformity with the esop. He stated that in his view, the proposed residence did not represent good planning and council's view of the application was more balanced and that the appeal should not be allowed. Conclusions and Findings The Albrecht brothers joint ownership of the land is of no consequence in this proceeding. The nature of the proposed enterprise, organic animal husbandry, will take time to get established and this effort will be enhanced if the two brothers are located on the same property. The Amish way of life should not be hindered in that land use policies that promote agriculture of "all types, sizes and intensities" (Policy 2.3.3.2): The term Agricultural use is a defined term that includes the phrase "including accommodation for full-time farm labour when the size and nature of the farm operation requires additional employment." The term normal farm practises means: a practise, as defined in the Farming and Food Production Protection Act, 1998, that is conducted in a manner consistent with proper and acceptable customs and standards. as established and followed by' similar agricultural operations under similar circumstances; or makes use of innovative technology In a manne~_~onsiste.nt \Nit~l1roper advance~ farm management practices. Normal -7- PL090158 farm practices shall be consistent with the Nutrient Management Act, 2002, and the regulations made under that Act." There is no evidence before the Board to indicate that the practises proposed by the Albrechts' are not normal farm practices and once the farm is established, both brothers will be working full-time on the farm and may be able to expand the farm. The PPS promotes the development of strong communities and the Amish community would be diminished if it could not operate their farms in a non-mechanized manner. The Board finds the evidence of Mr. Scott and Mr. Stickney compelling. The Board is not moved by the municipality's position that the addition of non-agricultural uses such as two home occupations, or two bed and breakfast operations, would develop on the property or be a threat to the agricultural landscape. ... ---. --...- __.___ <__...n .__________ __h_.....____..__.._____... ._.._.. ... The Board finds that the proposed By-laws (Exhibit 3, Appendix 3), are consistent with PPS policies and conform with both the County's and local official plans. They also represent good planning, promote the development of agriculture and the maintenance of the Amish farming community. THE BOARD ORDERS that the appeal is allowed and By-laws 2003-25 and 82- 08, are amended as set out in Attachment "1" (Exhibit 3, Appendix 3) to this Order. So Orders the Board. "J. E. Sniezek" J. E:SNIEZEK MEMBER . . . PL090158 ATTACHMENT "1" No. 2009- BEING A BY-LAW TO AMEND ZONING BY.LAW NO. 2003-25, BEING THE COMPREHENSIVE ZONING BY-LAW FOR THE MUNICIPALITY OF KINCARDINE Eli Albrecht Lot 28, Concession 5, Municipality of Kincardine (former Township of Kincardine) WHEREAS Section 34 of the Planning Act, R.S.O. 1990, Chapter 13 authorizes -..-- the Coum:tls-ofMurricipalitias-m-erra-ct,md--ameml70nln-g-iry::Jawswhrch COmply' with an approved official plan; AND WHEREAS the Council of the Corporation of the Municipality of Kincardine has enacted By-law 2003-25, a zoning by-law enacted under Section 34 of the said Planning Act; AND WHEREAS the Council of the Municipality of Kincardine desires to amend By-law 2003-25; NOW THEREFORE the Council of the Corporation of the Municipality of Kincardine ENACTS as follows: 1. Schedule 'A' to By-law No. 2003-25 as amended, is hereby further amended by changing thereon from 'Ai' to 'A1-eb' the zoning designation of those lands described as Lot 28, Concession 5, Municipality of Kincardine (former Township of Kincardine) which are outlined on the attached Schedule 'A'. ,. 2. By-law No. 2003-25, as amended, being the Comprehensive Zoning By- law for the Municipality of Kincardine, is hereby further amended by adding the following paragraph to subsection 9.3 thereof: 9.3.125 (a) Notwithstanding their 'Ai' zoning designation, those lands delineated as 'A1-eb' on Schedule 'A' to this By-law may be used for 'Farm Lot' purposes in compliance with the 'Ai' zone provisions contained in this By-law, excepting however, that: (I) Notwithstanding Section 8.1 of By-law 2003-24 as amended, a second 'AccessoiYDetached Dwelling' is permitted; and . . (ii) (iii) The second 'Accessory Detached Dwelling' shall be exclusively for the use of person's employed/working on the subject lands. 3. This By-law takes effect from the date of passage by Council and comes into force and effect pursuant to the provisions of the Planning Act, R.S.O. 1990. . 4. This By-law may be cited as the "Amendment to Comprehensive Zoning By-law 2003-25 (Lot 28, Concession 5, Municipality of Kincardine (former Township of Kincardine)) By-law". Read a FIRST, SECOND and a THIRD time and FINAllY PASSED this day of 2009. Mayor Clerk !!::. I I i . SCHEDULE 'A' ~ Lot 28, Concession 5, Municipality of Kincardine(geographic Township of Kincardine) 31.2 Concession 5 -, ___r- I'. 'd "'OA, 'V 6' -17 <6' -17 C: ;? /' 01' s n._. _. "._n I <9 I . I ,.q7 ,]0 N + <8 100 so 0 10DMeteill -- -l1li_--, t _ _ _ _ oJ SUBJECT PROPERTY W~ LANDS TO BE ZONED 'A 1..,b, GENERAL AGRICULTURE SPECIAl' . I , r THIS IS SCHEDULE 'A' TO THE ZONING BY-LAW AMENDMENT NO. PASSED THIS DAY OF MAYOR CLERK FILE:Z-104-08.21 APPLICANT: Ell Albrecht DATE: February 2009 . No. 2009 - BEING A BY-LAW TO AMEND ZONING BY-LAW NO. 82-08, BEING THE RESTRICTED AREA ZONING BY-LAW FOR THE FORMER TOWNSHIP OF KINCARDINE Eli Albrecht Lot 28, Concession 5, Municipality of Kincardine (former Township of Kincardine) WHEREAS Section 34 of the Planning Act, R.S.O. 1990, Chapter 13 authorizes the Councils of Municipalities to enact and amend zoning by-laws which comply with an approved official plan; , .---------. --- _..~~ ~----~,_..- -"-'-.'-". --- --.-.-. . AND WHEREAS the Council of the Corporation of the Township of Kincardine has enacted By-law 82-08, a zoning by-law enacted under Section 34 of the said Pianning Act; AND WHEREAS the Council of the Municipality of Kincardine desires to amend By-law 82-08; NOW THEREFORE the Council of the Corporation of the Municipality of Kincardine ENACTS as follows: 1. Schedule 'A' to By-law No. 82-08 as amended, is hereby further amended by changing thereon from 'Ai' to 'A1-82' the zoning designation of those lands described as Lot 28, Concession 5, Municipality of Kincardine (former Township of Kincardine) which are outlined on the attached Schedule 'A'. 2. By-law No. 82-08, as amended, being the Comprehensive Zoning By-law for the Municipality of Kincardine, is hereby further amended by adding the following paragraph to subsection 9.3 thereof: 9.3.66 (a) Notwithstanding their 'Ai' zoning designation, those lands delineated as 'A 1-82' on Schedule 'A' to this By-law may be used for 'Farm Lot' purposes in compliance with the 'Ai' zone provisions contained in this By-law, excepting however, that: \'; . (i) Notwithstanding Section 8.1 of By-law 82-08 as amended, a second 'Accessory Detached Dwelling' is permitted; and (II) The second 'Accessory Detached Dwelling' shall be constructed/located within 30 metres (100 feet) of the other buildings as they existed on the date of passage of this By-law and behind the building line of the existing accessory detached dwelling; and (Hi) The second 'Accessory Detached Dwelling' shall be exclusively for the use of person's employed/working on the subject lands. 3. This By-law takes effect from the date of passage by Council and comes into force and effect 'pursuant to the provisions of the Planning Act, RS.O. 1990. . I 4. This By-law may be cited as the "Amendment to Restricted Area Zoning By-law 2003-25 (Lot.28.,.Concession 5, Municipality of Kincardine (former Township of Kincardine)) By-law". Read a FIRST, SECOND and a THIRD time and FINALLY PASSED this day of 2009. Mayor Clerk . . I I , i I I. . , ' SCHEDULE 'A' lot 28, Concession 5, Municipality of Kincardine(geographic Township of Kincardine) 312 Concession 5 ~, C\ <(? '0 I'Ve ~7 ~7 "':",t:;'I 'v <;> 30 N + 28 100 50 0 100 Meiers -- .-----, . . SUBJECT PROPERTY ....---. /;/'~ LANDS TO BE ZONED 'A1-82, GENERAL AGRICULTURE SPECiAl' , THIS IS SCHEDULE 'A' TO THE ZONING BY-LAW AMENDMENT NO. PASSED THIS DAY OF MAYOR CLERK FILE:Z.104-QS,21 APPLICANT: Ell Albrecht DATE: February 2009 Ontario Municipal Board:: E-Status Page 1 of 1 FRANQAIS ltl .,~., -- Home> E-Status Search for: 'e QUICK LINKS E-Status # Frequently Asked Questions . Information Sheets ill' Contact Information :0 OMS Appeal Forms .. Other Forms o Publications :0 Glossary E-Status Case Details PROPERTY ADDRESS Lot 28, Concession 5 Eli Albrecht Hearing and Decision Information CASE DESCRIPTION STATUS CASE NUMBER PL090158 Closed e SERVICES HEARING ST ART HEARING START TYPE DATE STATUS TIME 11:00 AM HEARING LOCATION Municipal Building (Kincardine), Council Chambers, 1475 Conc. 5 RR5 Kincardine ON N2Z 19Z DECISION DECISION TYPE NUMBER . :0 E-Decislons :0 E-Status :0 Feedback 26 Hearing May 2009 Decision 20090018 and Order Individuals should appear at the s tart time of the proceedings. To view the full text of the Decision, please click on the Decision number. OMB Contact: Andy Dawang, Planning Assistant (416) 326-6794 . toP.ofp.l;!ge.1 m.aLI)JJJ~yigalLcm ~ l.....rm t> Ontario This site is maintaine~ by the Government of Ontario, Canada. External Links Disclaimer I ~ Copyright information: @Queen's Printer for Ontario 2008 http://www.omb.gov.on.calenglishleStatusleStatus.html 2009-07-22