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Erin residents have had their fill of towns site alteration bylaw

by Mike Robinson

ERIN - There are more than a few residents who have had their fill of Erin’s site alteration bylaw.

What was scheduled as a two-hour meeting on Sept. 27 lasted nearly three, and then only because comments from residents were cut to allow staff and council to speak.

Many of the chairs were filled by the meeting’s start, with a few latecomers straggling in. Many were from the Trafalgar Road area or the Fifth Line, south of Erin village.

Town planner Sally Stull provided background on the fill issue and the town’s regulations. She said when there was a lot of development in the GTA, fill was used to create much of the parkland along the waterfront.

That is no longer possible and much of the excess material from urban areas goes out to areas such as Erin, Caledon, Guelph-Eramosa and north to Dufferin. MOE guidelines determine where materials can be placed and a provincial rule determines if fill is clean.

Stull said, “I will advise that these bylaws in many municipalities are on their third or fourth set of changes as municipalities try to deal with the onslaught.” She said now it is a local issue, and she added there are several exceptions that state municipalities may pass a bylaw.

Under the town’s current bylaw, it is allowed to regulate fill coming in, but not in areas regulated under the Grand River Conservation Authority or Credit Valley Conservation -  which Stull said constitutes almost half the municipality.

CVC planning director Gary Murphy said his group was first approached by Erin early last year, to provide consistency of fill placement.

Murphy said at the time, the CVC did not regulate the quality of fill, did not do tests and did not require records of the materials’ origin. Since then, it has a procedure requiring soil tests and records, and surveys prior and after fill is brought in. The CVC wants Erin to have input to avoid surprises.

Its procedural guidelines, passed last March, remain untested because the CVC has not received any applications.

GRCA supervisor of resource planning Fred Natolochny considered fill a recent problem.

“About a year ago, we had these fill operations moving into the Grand River watershed as well,” Natolochny said.

The GRCA guidelines are similar to those of the CVC.

“One of the issues is that there are limitations as to what we can address under the Conservation Authorities Act,” said Natolochny. “They refer to interference with wetlands, water course and mainly the effect on the environment.”

Stull gave examples of where and when the bylaw could take effect, then sought public suggestions. Those, she said, would help council make a decision. She said most think of filling as a large site with hundreds of trucks going in. But, with current site alteration bylaws, smaller projects are affected.

Citizens were concerned with the size of a project before regulations come into effect, if qualified inspectors should be hired, regulations to require productive agricultural land or top soil, or outright prohibitions of fill on agricultural or all lands in the municipality.

Types of projects ranged from a sand ring needing 76,000 cubic metres of fill to a large driveway with 2,000 cubic metres. For the larger project, Stull said it would mean 7,600 truckloads of fill.

She tried to keep the projects generic as examples, but the audience wanted to know the properties being discussed.

Stull said the location is not what the exercise was about - since the bylaw would deal with the whole municipality.

She asked people to consider what size of project should require a public meeting or notifying adjacent landowners.

“I would think 76,000 cubic metres of fill would warrant a public meeting.”

Stull said the public wanted “it be written in stone when these public meetings or notifications would happen.”

On a big project, there would never be a single source site to provide all the material so permits might be limited to 3,000 cubic metres if tests are done on known source materials. A soil engineer could be hired to conduct random testing - and would become part of the fees.

“That is something we cannot do in house and would have to pay a consultant.”

As for proposed requirements projects on agricultural lands have productive topsoil back to cover the property to a specific depth, Stull said it  brings up other issues, especially if the proponent is not intending to return the property to farmland - and wants a sand ring or building.

Council could have an outright prohibition of fill, like Halton Hills, in which any exemption is at council’s discretion or, it could have an outright ban.

Mayor Lou Maieron said the town developed the early fill bylaw in response to a specific application and he had concerns with that bylaw. He suggested restrictions be based on project size.

“I don’t think anyone has (major) concerns when Farmer John brings in 20 loads of fill in a day and smooths it over.”

Stull was asked what small, medium and large sites are.

Maieron said a small site could be less than 100 loads and medium would be between 100 to 500 (one load equals about 10 cubic metres of fill).

Stull cited the issue of  crossover between conservation and municipal authority and asked if the permit for the municipal portion should be separate from conservation authority regulated lands.

“I’m sure the residents don’t see this as a boundary difference. They just see as lot of trucks going in there.”

As for topsoil replacement, Stull asked if council is seeking replacement or enhancement of agricultural sites.

While council might want to consider outright prohibition, there would still be areas where an adjacent conservation authority has allowed fill.

An example of  a small project ruled by the bylaw would be a driveway with a lot of fill.

Stull said in the current bylaw, anything over 10 loads is affected. Building permits for the property would be held up until the requirements of the site alteration are met - because proponents would be unable to get on the property. An outright prohibition means the proponent could not install a driveway to access.

Councillor Barb Tocher asked about fill and aggregate from a company for a driveway.

Stull said if the own buys 200 loads from a gravel pit, he would not need soil analysis.

She said if people have a choice of 200 free loads of fill or buying it from a gravel pit, “obviously you’re going to take the free loads.”

Maieron asked what would happen if the property owner has a mound of dirt on the site and wants to use that.

“If you go by the wording of the bylaw ‘Yes’, because the grades are being altered.”

Stull said the main concern is the source of material is confirmed and it is free of contaminants - “and that you’re not messing up your neighbour’s grading.”

Resident Ed McKelvey, had wondered if the night’s meeting would make any progress.

“But I now feel that council is seriously looking at making revision to the fill bylaw - in our view it is needed desperately.”

He said trucks rolled passed his place again that day. That fill, he said, is being placed on top of a field of alfalfa and he finds that distressing. He has a pilot’s license and periodically looks around. “Just last week, I went over the site to have a look. I saw beautiful fields of soybeans, corn, swampy areas, wood areas and then in the centre of it I saw this great gob of dirt. From an agricultural or conservation point of view, what benefit is this?”

He said those benefitting are from the GTA “who desperately want to get rid of some fill and are paying huge amounts of money to get rid of it.”

Interrupting from the audience, someone asked if McKelvey was jealous.

“Am I jealous?” McKelvey asked. “Not the least bit. I have no issue with people who want to make money legally.”

At that point, the heckler left the meeting.

McKelvey said, “I simply do not believe any member of council, or members of the two conservation authorities want to see farmland destroyed. It makes no sense.”

He did not want to see small projects caught up in the issue.

“But when we start talking about 8,000  or 10,000 loads of fill, that is suspect.”

He said control is essential and it will cost the municipality and the taxpayers to enforce it.

Lawrence Ryan said his 22-acre property is part of a farming operation.

“We wanted to build a barn for the sole purpose of putting horses there so people could learn to drive a carriage or to have trails.”

But it would go in the centre of the property, and requires fill in a hole to make it level. The bylaw as it stands would exempt his proposal because the intent is to have a building over the area to be filled. But, the hole is three acres and about 12 feet deep, and would require 76,000 loads to level the land.

“We’re putting in engineered fill, so that it can act as a building foundation.”

As for soil analysis, Ryan said the town should have an idea of what it is looking for, rather than just meeting MOE requirements.

He said he was looking for the right dirt to begin with because he intends to build, but without knowing the requirements, he might have been fooled with other soil reports.

“If at the end of the day, you have an example of what a soil report should say, that is what I need to show people who are trying to sell me dirt.”

One of his concerns is the soil cited in a soil analysis report is not the same material arriving at his property. He agrees with site inspections and recommended filling only be allowed in thin layers. “If there is garbage there, you’ll see it.”

Dr. Marieke Wevers and her husband have a property on County Road 125 in the most southerly portion of Erin. 

“We’ve had the unique experience of seeing the issue from both sides.”

Across from their property is one of the first fill sites. It is closed, in cooperation with the GRCA, because work began to encroach on a riverbed. 

“Recently, we had the opportunity to have fill brought onto our property. We were being offered $20 a load, and were told based on the property it would be worth about $450,000 by the time the area was flattened.”

They looked into the town’s fill bylaw and into types of soil that would be brought in. 

Her occupation involves the study of numbers, statistics and health risks. “There are places designated as sample safe sites that have three or four samples taken out of 100 acres. That doesn’t guarantee to me that those sites are contaminant free.”

Her second worry, is how she would be able to monitor materials coming in.

“We have quite a few friends who are toxicologists and experts in similar fields who said there is no way you are going to be able to regulate those trucks coming in ... And who carries the burden once the site is closed?”

She said even with a township bylaw, “The final buck stops with the property owner and there is no homeowner who could afford a cleanup if a site is determined to be contaminated.”

Erin is part of the  headwaters for two watersheds and Wever said, “We have a duty to protect our water - and it is your responsibility as council to ensure that happens.” 

With a high potential for contaminated loads, she said the municipality has no means to regulate it short of installing cameras on all sites, putting tracking systems on trucks, and significantly more core sample tests at the source and the sites.

Her husband Tom Carroll agreed.

“The problem is that in the end, it is the landowner who gets stuck with this. When that truck pulls away - it’s yours. If anything comes up 10 years from now or 20 years from now and you want to sell, someone’s going to say, that place was used for fill. And if someone believes their well is contaminated, it becomes the property owner’s issue.”

When Loretta Bender interrupted to state that the town gets a $10,000 deposit to fix any problems, Wevers said that won’t help for clean-up costs if there is a $1 million rehabilitation project. 

Maieron contended, “If you totally ban it, then there would be an underground trucking of fill. You can’t put surveillance cameras everywhere.”

Wevers argued if the town doe not start putting cameras up, residents will. 

Carroll added, “It’s pretty hard to sneak by 30,000 loads [of fill].”

Maieron said he had been talking five or ten loads being brought in, not 30,000.

Resident Dan McNiven asked what options the town has if fill is discovered to be contaminated.

Council’s solicitor suggested the municipality does not have the expertise or tools to regulate it.  To properly regulate the issue, the town would need additional staff or a consultant. Further, council was told once soil is deemed contaminated, it may be classified as hazardous waste and dealt with accordingly.

Stull said council has the option of collapsing its bylaw, but then would have no control.

“Council at the time felt the issue was completely out of control and tried to come up with something. But if there are no regulations, the municipality could not be held accountable.”

McKelvey later recommended council stop issuing permits for projects over a certain size until it had a good manageable bylaw in place.

Councillor John Brennan said there appears to be a number of insurmountable problems. On the issue of policing this, he said “We can’t. We don’t have the resources and will never have the resources. To police this properly, your taxes are going to skyrocket - and that’s not what we want.

“Once you get contaminated fill, the problems escalate wildly. I don’t believe we can require a security deposit big enough to remedy the problem.”

He added even if council places a full ban, the municipality has no control over what happens on conservation authority regulated lands.  Even the idea of filling aggregate pits, must deal with the issue of them being close to the water table, he said.

“Policing would be even more important - ’cause that would screw things for everybody.”

Tocher  said, “We are all concerned about the same things.”

Tocher suggested that between the planner, chief building official, and solicitor, a draft bylaw be prepared.

She said council needs to see the pros, the cons and what is being recommended, and what options are available.

Councillor Josie Wintersinger said Places to Grow also makes a big impact.

“If you think of Toronto putting in a new subway ... where is all that dirt going to go? It’s going to keep coming up this way.”

She believes the last few years are only the start.

Councillor Deb Callghan said enforcement is what council will need to focus on, but costs may be huge.

Maieron said he would love to see the responsibility moved to the provincial level.

He explained, “It is the province directing the growth and intensification, and this issue is being downloaded to municipalities and conservation authorities.”

He said it is provincial policies that are creating a humungous amount of fill.



October 7, 2011


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