HomeMy WebLinkAbout09 111 Amendment to Restricted Area Zoning By-Law 82-08 (Eli Albrecht) By-Law
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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.
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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
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SUBJECT PROPERTY
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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
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MAYOR
CLERK
FilE: Z-104-08,21
APPLlCANl' Eli Albrecht
DATE: February 2009
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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
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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
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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:
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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.
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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.
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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.
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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.
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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
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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.
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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
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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
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SCHEDULE 'A'
~
Lot 28, Concession 5,
Municipality of Kincardine(geographic Township of Kincardine)
31.2 Concession 5
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W~ LANDS TO BE ZONED 'A 1..,b, GENERAL AGRICULTURE SPECIAl'
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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
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SCHEDULE 'A'
lot 28, Concession 5,
Municipality of Kincardine(geographic Township of Kincardine)
312 Concession 5
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/;/'~ 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
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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
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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
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