| Purpose of Training Manual | Acknowledgments & Disclaimer |

| Transitioning | Model MDS Comprehensive Zoning By-law |
| MDS - Using Minor Variances | Schematics for MDS Implementation |
| Blank MDS I & II Data Sheets | Barn Identification | Manure Storage Identification |
| Determining When a Barn is a Livestock Facility |
| Estimating Livestock Housing Capacity |
| Technical Support Materials for MDS Software |
| Additional Resources | Contact Us |

3.1 Introduction

This section of the training manual outlines a sample by-law framework to assist municipalities to incorporate the Minimum Distance Separation (MDS) formulae into their local comprehensive zoning by-laws. Section 3.2 outlines the sample by-law. Section 3.3 provides a commentary to outline potential issues and options related to the sample by-law. Municipalities may tailor this sample by-law to reflect local circumstances, and the layout and format of their existing comprehensive zoning by-law. However, the key components of the sample by-law with respect to the implementation of the MDS formulae should be maintained.

The Ministry of Agriculture, Food and Rural Affairs has prepared this sample by-law to assist municipalities, and it is intended to help users of the MDS formulae. Municipalities are responsible for making local decisions, including compliance with any applicable statutes or regulations. As this document deals in a summary fashion with complex matters and reflects legislation, policies and practices that are subject to change, the material in this sample by-law should not be relied upon as a substitute for specialized legal or professional advice in connection with any particular matter. The material in this sample by-law should not be construed as legal advice and the user is solely responsible for any use or application of the material in this document.

Although the material in this sample by-law has been carefully prepared, the Ministry does not accept any legal responsibility for the contents of the document or for any consequences, including direct or indirect liability, arising from its use. The Ministry is not responsible for errors due to inaccurate or incorrect data or information; mistakes in calculation; errors arising out of modification to this information, or errors arising out of incorrect use of this information.

3.2 Sample By-law to incorporate the Minimum Distance Separation (MDS) Formulae into the Comprehensive Zoning By-law

Being a by-law to amend zoning by-law no. ________________ of the Corporation of the Municipality of ___________.

Whereas the Corporation of the Municipality of ______________________may pass a by-law pursuant to Section 34 of the Planning Act, R.S.O. 1990, as amended, to restrict the use of land and for restricting the erecting, locating or use of buildings except for such purposes as may be set out in the by-law within the municipality or within any defined area of the municipality;

And whereas, the Council of the Corporation of the Municipality of ____________ deems it advisable to amend By-law to provide for the establishment of minimum distance separations between agricultural activities involving livestock operations and non-agricultural uses in order to ensure agricultural activities are spatially separated from incompatible uses and non-farm uses to not adversely affect farm operations.

Now therefore, be it resolved that the Corporation of the Municipality of _____________ hereby enacts the following:

 

Section 1 is intended for the definitions section of the By-law

1. Part ( ) of Zoning By-law ___________ as amended, is hereby further amended by adding thereto the following new definitions in alphabetical order:

 

Agricultural use:

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.

 

Agricultural-related uses:

Those farm-related commercial and farm-related industrial uses that are small scale and directly related to the farm operation and are required in close proximity to the farm operation. Examples of this use include animal husbandry services, produce or grain storage facilities, and seed dealers.

 

Anaerobic digester:

An enclosed vessel in which micro-organisms break down organic materials (e.g. manure and other organic materials), in the absence of oxygen, resulting in the production of biogases, consisting primarily of methane and carbon dioxide. The Minimum Distance Separation Formulae is to be applied to on-farm anaerobic digesters, which utilize manure as an input. An on-farm anaerobic digester may include a co-substrate input tank fitted with a tight cover, in which permitted off-farm nonagricultural source materials are temporarily stored before feeding into the anaerobic digester.

 

Catastrophe:

An unanticipated, disastrous loss of part, or all, of a livestock facility due to fire, collapse, flood, wind, or other such event.

 

Commercial use:

The use of land, building or structure for the purpose of buying and/or selling commodities and supplying services, such as automotive service stations, car washes, convenience retails shops, hotels or motels, shopping centres and supermarkets.

 

CO-substrate input tank (CSIT):

Storage for containing permitted nonagricultural wastes that will be blended with manure in an on-farm anaerobic digester in order to increase biogas production.

 

Digestate:

End product from the anaerobic digestion of manure (and permitted CO-substrate input tank materials) that has a significant reduction in pathogens and odour.

 

Dwelling:

Any building that is used or designed for use as a domestic establishment in which one or more persons may sleep and prepare and serve meals.

 

Empty livestock facility:

A livestock facility that does not currently contain any manure, house any livestock, or contain organic material used for anaerobic digesters.

 

Existing livestock facility:

A livestock facility, or a portion of a livestock facility, intended for keeping or housing of livestock and containing one or more barns or structures. Includes manure or material storages, whether associated with a livestock facility or not, and anaerobic digesters, which have already been constructed.

 

Expanded livestock facility:

Any building activity to construct or expand a livestock facility that requires a building permit and results in an increase, or decrease, in Nutrient Unit capacity on a lot, where there already was some existing Nutrient Unit capacity.

 

First livestock facility:

Any building activity to construct a livestock facility that requires a building permit and results in an increase in Nutrient Unit capacity on a lot, where there was no existing Nutrient Unit capacity.

 

Housing capacity:

Maximum livestock capacity for all facilities on a lot at any time, even if currently empty but able to house livestock.

 

Industrial use:

The use of land, building or structures for the purpose of manufacturing, processing, fabricating or assembly of raw materials or goods, warehousing or bulk storage of goods, and related accessory uses.

 

Institutional use:

The use of land, buildings or structures for public or social purposes, including religious, governmental, educational, charitable, health, or other non-commercial uses, and may include cemeteries, places of worship, municipal buildings, police and fire stations, schools, hospitals, and seniors complexes.

 

Livestock:

Includes dairy, beef, swine, poultry, horses, goats, sheep, ratites, fur-bearing animals, deer & elk, game animals, birds, and other animals identified in Table 1 of the Minimum Distance Separation formulae.

 

Livestock facility:

One or more barns or permanent structures with livestock-occupied portions, intended for keeping or housing of livestock. A livestock facility also includes all manure or material storages and anaerobic digesters.

 

Livestock occupied portion:

Those parts of livestock facilities where livestock spend the majority of their time, allowing substantial amounts of manure to accumulate, but does not include feed preparation rooms, milking centres, offices, washrooms, riding arenas, livestock loading chutes, or livestock assembly areas.

 

Lot(s):

A parcel or tract of land, within a registered plan of subdivision or described in a deed or other legal document, that is capable of being legally conveyed.

 

Manure or material storage:

Permanent storages, which may or may not be associated with a livestock facility containing liquid manure (< 18% dry matter), solid manure (³ 18% dry matter), or digestate. Permanent storages may come in a variety of:

 

Multiple residential:

Three or more residential units in the same structure.

 

Nutrient Unit (NU):

An amount of nutrients that give a fertilizer replacement value of the lower of 43 kilograms of nitrogen, or 55 kilograms of phosphate as nutrient (as defined in Ontario Regulation 267/03 made under the Nutrient Management Act, 2002).

 

Recreational use - high intensity:

Recreational use that usually includes buildings and/or a higher density or concentration of human activity such as golf courses, sports fields, trailer parks, campgrounds and conservation areas with facilities.

 

Recreational use - low intensity:

Recreational use that usually does not require buildings, does not alter the soil or topography, and/or has a lower density or concentration of human activity such as open space and environmental areas.

 

Residential use:

The use of land, buildings or structures for human habitation.

 

Rural residential cluster:

Four, or more, adjacent rural lots, generally one hectare or less in size, sharing a common contiguous boundary. Lots located directly across a road from one another shall be considered as having a common boundary.

Rural residential clusters are not considered Settlement Areas, unless designated as such in a municipal official plan.

 

Settlement areas:

Urban areas and rural settlement areas within municipalities (such as cities, towns, villages and hamlets) that are:

 

Storage Capacity:

Maximum storage volume (measured as cubic feet or cubic metres) of all storages for manure, or digestate treated through an anaerobic digester, on a lot at any time, even if currently empty but able to store these materials.

 

Tillable hectares:

Land, including pasture that can be worked or cultivated to grow crops.

 

Section 2 is intended for the general provisions section of the By-law. Section 2A deals with MDS I. Section 2B deals with MDS II.

2A. Part ( ) of Zoning By-law __________ as amended, is hereby further amended by adding thereto the following new subsection:

Notwithstanding any other provisions of this By-law to the contrary, lands to be rezoned from a(n) (Agricultural or Rural Zone) to a (specify the specific zone names) Zone, to permit a residential, institutional, commercial, industrial or recreational use, will not contravene the MDS I formula developed by the Ontario Ministry of Agriculture, Food and Rural Affairs as calculated using "Appendix A" to this By-law.

Municipal Options for Minimum Distance Separation I (MDS I):

 

Option A: Application of MDS I to Existing Lots of Record

Notwithstanding any other provisions of this By-law to the contrary, a (specify the types of uses or 'development') to be located upon an existing lot of record and permitted by a (specify the specific zone names) Zone, will not contravene the MDS I developed by the Ontario Ministry of Agriculture, Food and Rural Affairs as calculated using "Appendix A" to this By-law.

 

Option B: Application of MDS I after a Catastrophe

Notwithstanding any other provisions of this By-law to the contrary, where a dwelling is destroyed in whole, or in part, by a catastrophe, MDS I will not be applied when the dwelling is rebuilt, provided it is built no closer to livestock facilities than before the catastrophe.

2B. Part ( ) of Zoning By-law __________ as amended, is hereby further amended by adding thereto the following new subsection:

Notwithstanding any other provisions of this By-law to the contrary, a first or expanding livestock facility permitted by a(n) (specify the specific zone names) Zone, will not contravene the MDS II formula developed by the Ontario Ministry of Agriculture, Food and Rural Affairs as calculated using "Appendix A" to this By-law.

Municipal Option for Minimum Distance Separation II (MDS II):

 

Option A: Application of MDS II within settlement areas

Notwithstanding any other provisions of this By-law to the contrary, a first or expanding livestock facility permitted by a(n) (specify the specific zone names, located within the settlement area) Zone, will not contravene the MDS II formula developed by the Ontario Ministry of Agriculture, Food and Rural Affairs as calculated using "Appendix A" to this By-law.

 

Option B: Application of MDS II after a catastrophe

Notwithstanding any other provisions of this By-law to the contrary, where a livestock facility is destroyed in whole, or in part, by a catastrophe, MDS II will not be applied when the livestock facility is rebuilt, provided it is built no closer to surrounding land uses and lot lines than before the catastrophe, and the values of Factor A, B and/or D have not been increased for the livestock facility.

 

Option C: Application of MDS II to cemeteries

Notwithstanding any other provision of this By-law to the contrary, for the purposes of calculating MDS II for a first or expanding livestock facility permitted by a(n) (specify the specific zone names) Zone, cemeteries located within a(n) (specify the specific zone names) Zone shall be treated as a Type A land use.

 

Section 3 is intended for an Appendix to the By-law.

3. By-law _________is hereby further amended by the addition of "Appendix A" - MDS Formulae (including Implementation Guidelines, Calculation Forms and Factor Tables).

Read a first time this _____ day of _______________, 200___.

Read a second time this _____ day of _______________, 200___.

Read a third time and passed this _____ day of ____________, 200___.

The Corporation of the Municipality of ____________________________.

Note: The above-noted Appendix represents the Minimum Distance Separation Formulae. To order a copy of the Minimum Distance Separation Formulae Implementation Guidelines, including the MDS software, please contact the OMAFRA Publication Order Desk by calling (519) 826-3700 or 1-888-466-2372 or the Agricultural Information Contact Centre 1-877-424-1300.

3.3 Commentary and Suggestions Related to the Sample By-law

 

Section 1 - Definitions

The definitions outlined in the section are taken from the definitions found in the MDS formulae. In some instances, these definitions are taken from other sources, such as the Provincial Policy Statement, 2005 (PPS 2005). As this sample by-law is not a stand alone document, but is intended to be incorporated into a comprehensive zoning by-law, many of these terms and definitions may already appear in a similar, but slightly different format in an existing by-law. In this case, there is an opportunity for a municipality to tailor the definitions list to suit their local circumstances, provided that in so doing they do not conflict with the MDS formulae. For example, a municipality may have an existing definition of 'dwelling' or 'lot', which differs slightly from that found in the sample by-law. In most cases, use of the municipality's existing definition will be appropriate.

In other cases, opportunities may exist to refine definitions to reflect more specific land uses. For example, this document uses a definition of 'agriculture-related use' similar to that found in the PPS 2005. In many circumstances, municipalities will have developed slightly different terminology, with a more specific or limiting definition for these types of land uses in their local zoning by-law. In these cases, it would be appropriate to use the definition developed by the municipality. In other instances, a municipality may have an existing definition in their zoning by-law, which is inappropriate, or would conflict with the MDS formulae. In these instances, the definition found in the sample by-law should be used. For example, a definition which limited the size of a livestock facility would be inappropriate, and would conflict with the MDS formulae.

 

Section 2A - MDS I

As written, this policy provision implements MDS I in the local zoning by-law, and makes it a requirement for obtaining a re-zoning to change the land use from agriculture or rural to another land use. In addition to incorporating the MDS I policy provision noted above, municipalities have the option, to alter the application of MDS I with respect to four issues: application of MDS I to development on existing lots of record (Guideline # 7); application of MDS I to surplus farm dwelling severances (Guideline # 8); application of MDS I after a catastrophe (Guideline # 11); and, application of MDS I within settlement areas (Guideline # 37).

 

Option A:

Municipalities are not required, but are strongly encouraged to apply MDS I to development proposed through building permits on existing lots of record (Guideline # 7). There are numerous measures and variations that a municipality could employ in applying MDS I to development proposed by building permit on existing lots of records. The municipality could only require MDS I for residential or non-residential development. The municipality could require that MDS I be meant for development on existing lots over a threshold size determined by the municipality. There are a number of potential options. Option A provides the most straight-forward example of requiring MDS I to be met by all types of development proposed by building permit on all existing lots of record. If a municipality is requiring the application of MDS I to development proposed by building permit on existing lots of record, it should consider addressing issues related to catastrophe. If a municipality is considering requiring the application of MDS I within settlement areas and addressing this issue in its Official Plan for zoning amendments, lot creation, etc., it may also wish to address the issue of applying MDS I to development proposed by building permit on existing lots of record within settlement area.

 

Option B:

Option B illustrates the issue of catastrophe. Where municipalities apply MDS I to buildings and structures proposed by building permit on existing lots of record, municipalities have the option to not apply MDS I to the construction of a new dwelling that is replacing a dwelling destroyed in whole, or in part, by a catastrophe, provided that the new dwelling is located no closer to a livestock facility than prior to the catastrophe. A municipality that chooses not to implement Option A would not need to implement Option B in its zoning by-law.

 

Other Options Not Addressed in Zoning By-law

Guideline # 8 deals with the application of MDS I with respect to consent applications, and specifically applications to create a surplus farm dwelling severance. Municipalities are not required, but have the option of, applying MDS I from a neighbouring livestock facility to a proposed lot with an existing dwelling. This issue is not directly addressed through zoning, therefore, the Municipality should provide clarity on implementing this optional application of MDS I in its Official Plan.

The MDS formulae do not require the application of MDS I within settlement areas (Guideline # 37). However, in some instances, a municipality may choose to apply MDS I in a settlement area, especially where livestock facilities are a permitted use within the settlement area, or MDS I was not applied at the time the boundaries of the settlement area were delineated, or the municipality wishes to offer increased protection to existing livestock facilities. This issue is not directly addressed through zoning, therefore the Municipality should provide clarity on implementing this optional application of MDS I in its Official Plan. If applying MDS I to an application under the Planning Act within a settlement area, the municipality may want to address the issue of applying MDS I to development proposed by building permit on existing lots of record within a settlement area.

 

Section 2B - MDS II

As written, this policy provision implements MDS II in the local zoning by-law, and makes it a requirement for obtaining a building permit to built a first livestock facility or expand an existing livestock facility. In addition to incorporating the MDS II policy provision noted above, municipalities have the option to alter the application of MDS II with respect to three issues: application of MDS II within settlement areas (Guideline # 37); application of MDS II after a catastrophe (Guideline # 11); and, application of MDS II to closed cemeteries or cemeteries which receive a low level of visitation (Guideline # 38).

 

Option A:

Where municipalities choose to permit first or expanded livestock facilities within an approved settlement area, they are strongly encouraged to apply MDS II. Typically, municipalities do not permit livestock facilities in settlement areas. However, in circumstances where livestock facilities are permitted MDS II should be applied. This is addressed in Option A.

 

Option B:

Option B illustrates the issue of catastrophe. Municipalities have the option not to apply MDS II to the construction of a livestock facility that is replacing a former livestock facility destroyed by a catastrophe, provided that the new livestock facility does not result in increases for the values of Factor A, B or D, compared to what existed at the livestock facility prior to the catastrophe (i.e. there is no switch to a livestock type with a higher odour potential, there is no increase in the number of nutrient units housed, there is no switch to a manure system type with a higher odour potential) (Guideline # 11).

 

Option C:

Generally, MDS treats cemeteries as a Type B land use (Guideline # 38). However, in some instances where a cemetery is closed and receives low levels of visitation, it may be treated by the municipality as a Type A land use for the purposes of MDS II. These cemeteries should be clearly identified in the municipality's planning documents. Option C illustrates including this optional component of MDS.

 

Section 3 - Implementation Guidelines, Calculation Forms and Tables

The Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) recommends that the implementation guidelines, calculation forms, and tables from the Minimum Distance Separation formulae be included in an appendix to the comprehensive zoning by-law. Other options may exist for the inclusion of the Minimum Distance Separation formulae into the by-law.

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