Board ruling likely months away on challenge to Mono’s fill bylaw

December 2, 2015   ·   0 Comments

By Tabitha Wells

Ontario’s Normal Farm Practices Protection Board reserved decision last week on a challenge of the Town of Mono’s bylaw regulating landfills and suggested it will be at least two months before it delivers a ruling.

The hearing, which ran all last week in Mono’s council chambers, was sought by Douglas Cox, a farmer who contends the bylaw regulating landfills is restricting his ability to farm properly.

The issue arose last March, when Mr. Cox applied to bring fill in to his farm, but was asked to come back with more information on his request.

He never returned to Council but did make an application to the Board established by the Farming and Food Production Protection Act, 1998, to resolve disputes regarding agricultural operations and to determine what constitutes a normal farm practice.

In performing that function, the board seeks to achieve the stated goal of the legislature in balancing the needs of the agricultural community with provincial health, safety and environ- mental concerns.

At the end of the hearing, the chair of the three-member board indicated they might not meet their 60-day target for delivering a decision because they had such a heavy schedule of hearings just now, all dealing with similar fill applications. One Mono resident who was present throughout the hearings told the Citizen Wednesday that Town lawyer Jeffrey Wilker’s “best line at the hearing was, ‘This is just an end run by a commercial fill dumping business to get around the lawful bylaws of the municipality, and the farmer and the Farm Practices Board are just being used by business to that end.’”

The resident said that in the end, “It was quite the week in the Mono Council chambers. The Board was offered, at local expense, a thorough introduction to Ontario land-use planning, the Planning and Municipal Acts and their caselaw precedents, as they relate to applications for development activities, to standard municipal cost recovery, and to applications for permits under municipal site-alteration by-laws.”

He said the bylaw was, “of course, adopted to implement the Ministry of Environment’s Best Management Practices (BMP) for Soil Management in Ontario. The bylaw requires conformity with the provincial BMP.

Recalling that the applicant’s original submission was a one-page map with an attendant legend, the resident remarked, “Even by the last day of the hearing, the evidence of three professional engineers was in confusion and contradiction about how to read the map, with no evidence offered by the person responsible for the map and legend.”

The estimated cost of the week-long hearing for the Board and municipality, was entered into evidence as $100,000, independent on the private costs of party interventions.

Noting that the Ontario Municipal Board routinely invokes its power to refuse a hearings on the grounds of frivolity, vexation or prematurity, the resident suggested that the Farm Practices board “needs to learn this lesson, to avoid being repetitively ‘used’ by the fill-dumping industry to end-run normal community practices,” adding that the same could be said of Mr. Cox.

“In the end, it was clear to the well-connected audience, that the proponent’s project failed on both ‘process’ and ‘merit,’ and was jaw-droppingly premature.”

He predicted that in the circumstances the board’s decision will be the subject of judicial review by Ontario’s Divisional Court.

The resident’s final comment: “All of this flies in the face of the overriding principle of ‘user pay.’

The major ‘user’ here is the GTA developer who is disposing of development waste without bearing the cost. The secondary ‘user’ is the fill-disposal industry. To have it portrayed in the local arena that the ‘proponent’ and the ‘user’ is the farmer does a great disservice to the farmer.”

Witnesses for the applicant at the Mono hearing included Mr. Cox, Robert Lachetta of Soilcan, a contractor wanting to bring fill to the Cox farm, and Keith Wilson, whose firm is rehabilitating a pit in New Tecumseth.
For the Town, witnesses included Mono Planning Director Mark Early, Gord Feniak of Burnside, agrologist Rob Stovel and local residents Marvin Stevenson and Carmela Marshall.

Mr. Early estimated attendance at the hearing by members of the public at between 20 and 30 each day.

Readers Comments (0)

Please note: Comment moderation is enabled and may delay your comment. There is no need to resubmit your comment.