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Bender site alteration appeal failed to gain any ground at Erin council

by Mike Robinson

ERIN - It appears a request by Loretto and Phillip Bender to resume fill operations on their property is gaining no ground.

On Oct. 18, Erin council denied their request to reconsider a site alteration permit for 5243 Trafalgar Road that was denied late last year. What was supposed to be a 10 to 15 minute discussion dragged on for close to an hour about the town’s fill bylaw and materials brought to the site in the past.

Loretto Bender spoke to council a few weeks ago about the town’s site alteration and fill bylaw. Many of her concerns were the same in the appeal.

“We want to finish the project we started in 2009. We cannot understand the refusal to reinstate or issue a new permit since the security deposit was returned. Returning the deposit of $10,000 indicates that the town was satisfied that the work was done in compliance with the bylaw,” Bender said.

She added if the town has concerns, the money should have been used to address them.

Bender said the bylaw gave applicants a year to address issues unless work is stopped, and the decision to deny the extension effectively forces them to abandon filling operations. In 2010, the renewal was denied because “detrimental effects have occurred and the site has not been rehabilitated to a better condition than it was prior to the site alteration.”

The town document said the agricultural capability of the site was not enhanced or maintained with fill brought there. Bender said the land is in better condition without big holes, boulders, or apple trees.

“The land can be tilled, where previously it could not.”

She said the evaluation was made before they finished the project. The work affects 83 acres, but had reached only the end of two of five phases when the permit to continue was denied.

She claimed no prior notice and was unaware of problems. “As it is, the areas we filled are seeded and growing well.”

The staging area where trucks entered has no top soil because it was to be done at the end of the project, she said.

Bender said by issuing the original permit, the town became the final inspector and received payment based on the amount of fill brought in.

The town’s letter said a new permit would not be allowed based on past performance, site deficiencies and importing of materials other than the source materials approved for the site.

“There is no substance or proof that materials brought on site were other than those approved,” Bender said. “We were very careful about the type of fill that went onto the property.”

Bender was ready to have an independent soil analysis to verify it did not exceed the maximum contaminant levels as set out in the Environmental Protection Act, “although we feel this is unnecessary since the security deposit was returned in full, we feel this would address the town’s concerns and allow us to continue with the project.”

Because of the costs for such a test, she asked for written confirmation that if the tests show the soil is acceptable, the town would reinstate the permit to allow the project’s completion.

Councillor John Brennan asked, “Are you saying there is no construction debris, asphalt or other garbage in the fill?”

Bender said, “No. We cleaned that up. When fill comes in, there is a little bit of debris that comes up. As site manager, I made sure that little bit was cleared up because we  wanted to seed the property.”

Brennan replied, “I know there was garbage there, because every time it was inspected, garbage was found.”

Bender said, “We couldn’t have seeded it if there was garbage, because the plow would have been wrecked.”

Brennan asked why the Benders would seed the site, if the slopes are still wrong.

Bender said if the slopes were not right, “then we should have had a year from August 2010 to August 2011 to alter the angles.”

Brennan asked why the Benders would incur the cost to seed the land, and then correct the slope later.

She said she kept trying to get planner Sally Stull to the site to issue a final approval.

“They came and saw it four times, and every time it was deficient. That is why they finally said ‘no’ we’re not doing this anymore,” Brennan said.

Bender again asked why the $10,000 deposit was refunded.

Councillor Barb Tocher replied the site was stabilized, there was no known hazard to the public and it was unlikely the town would be required to undertake site work.

Bender said if there were deficiencies, the deposit should have covered that work.

Tocher said, “The $10,000 deposit would not have covered the deficiencies.”

Bender said under the bylaw, she should have had until August to fix it.

The first order to stop accepting fill was on March 30, 2010. Bender argued if there was a problem, the town should have informed her.

Tocher said, “The town informed you on four difference occasions. Copies of the letters are available.”

Bender said the former mayor indicated the bylaw “was a work in progress and [the municipality] would be willing to work with us. What we are left with, is a farm we can’t do anything with.”

They have 83 acres, but the fill area involves about 15.

Mayor Lou Maieron asked if the Benders are asking the permit be reinstated to finish the phase that was stopped - or for the entire site. Bender replied they want the whole property.

Maieron said if the tests are positive, he could see allowing the second phase to be completed. But they might need to reapply for phases three to five.

He said, “I don’t want to grandfather you in under the provisions of the old bylaw.” The new bylaw may include new standards.

If the town allows the second phase after soil tests, it would still be looking at revising the existing bylaw.

Maieron said some of the information gathered for the initial application could be used in a new one.

Bender sought assurance  from council the next phases could go ahead if the soil tests are acceptable. “We’ve always done things according to the law.”

Tocher said the letter of deficiencies was issued Oct. 4 and the property was inspected on Oct. 18 and 28, 2010 and there were no substantial changes.

“We’re going a bit around the bush here,” councillor Josie Wintersinger said. “It is not about the $10,000. It is about the quality of the fill.”

Bender said she offered to have soil samples done to prove there is nothing wrong with the quality of fill.

Wintersinger asked, “So why then, have you had to remove what you have?”

Councillors cited numerous items discovered in the fill, including concrete blocks, rebar, wire tie-rod ends,  mesh and asphalt.

Tocher said, “We are not talking about the soil samples, but the debris in the soil.”

Wintersinger added council has photos of the debris found.

Planner Sally Stull cited photos from a Nov. 18 site visit that showed asphalt pulled out of the area that was seeded.

Stull also had photos of fill pushed into the fence lines and tree lines not respected. Others showed the size of asphalt blocks brought onto the property and materials that would not meet standards in the soil analysis.

Stull added, “There is steel mesh, foil, plastic containers, concrete, and slopes which exceeded 8%”

Wintersinger asked what happened to that debris because it is considered contaminated material.

Bender asked a definition of contaminated material.

Stull said, “The site alteration bylaw does not allow you to accept any garbage at all.”

Bender asked why the town gave back the deposit, but Tocher said that did not mean anything. “We did not tell you everything was fine,” she said.

She explained that “$10,000 would be woefully insufficient [to undertake that work] ... not because it was perfect.”

Brennan said, “When this started, you got caught up in that we didn’t have a bylaw in place. Which is why we cut you some slack. We tried to work with you ... and you brought garbage in. Now you sit here and tell us to trust you again. How do we do that? I can’t.”

Stull said the soil analysis provided to the municipality was that of clean material. “From the photos, and from every load that I saw, there was a variety of construction waste and other materials.”

She said the first two phases were completed identically “and are basically of no agricultural value.”

Bender said, “The bottom line is we can’t leave it as is.”

Maieron said, “We’ve heard in our fill discussions that sometimes people sneak in a load of stuff.”

He said to bring in more topsoil and do the grading would require a permit from the town - so it would comply to the original plan.

Maieron said allowing the Benders to complete the second section “might be in the best interests of the Benders and the town.”

He asked Stull about the comments made by the Benders who stated they would be willing to have the soil tested to prove that it did not exceed the maximum contaminant levels set out in the Environmental Protection Act.

“That is not exactly what the bylaw says,” Stull stated.  “If we were to do soil tests, they would show that the soil did not come from the sites they said it would be coming from.”

Bender asked, “What soil analysis is this?” .

“The ones you submitted,” Stull said.

She said the municipality could easily determine the material accepted at the site “was not from where you were going to accept it from. The soil analysis would show it would not come anywhere near it.”

Bender said if she was offering to show that there is no toxic materials and it doesn’t contravene the EPA, “why can I not just continue to make my farm better.”

Brennan said Bender wasn’t listening to Stull’s explanation.

“You gave us something that said what you were bringing in; you didn’t do that.”

Bender said the town has no proof of that.

Brennan said the document outlined where the soil was to come from and what its chemical composition was.

Bender maintained independent soil tests would determine if the material is acceptable under the Environmental Protection Act.

Stull asked if she believes it was okay to accept material from sites other than what was agreed to.

Maieron said he did not like leaving projects half completed and then handcuffing the proponents. He was ready to consider finishing off the second phase of fill on the site, providing it meets the town’s criteria - if the soil analysis complies. He was uncertain if an arrangement could be made to finish the site.

Brennan suggested, “They need to apply all over again. You need a new soil analysis. The soil may be from somewhere else. It would be starting all over again.”

Bender said “the soil did not all come from the same place every day,” but there were reports where that material originated.

Stull said, “In your permit, you said you were only accepting material from two sites. I can guarantee the soil analysis will not match what is written here.”

Tocher asked for the resolution that “council supports the town planner’s position that no further site alteration shall be permitted at  5243 Trafalgar Road.”

Maieron said, “I think we’ve had our fill of discussion - no pun intended,”

Council carried the resolution.


November 4, 2011


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