Ontario Local Planning Appeal Tribunal Decisions (f/k/a Ontario Municipal Board)
Ontario Municipal Board
Panel: J.P. Atcheson, Member
Decision: July 23, 2009.
No. PL070944, O.M.B. File No. M070098
 O.M.B.D. No. 616 | 45 C.E.L.R. (3d) 80 | 2009 CarswellOnt 4622
The Minister of Natural Resources has referred to the Ontario Municipal Board under subsection 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.8. as amended, an application for Category 2 licence (quarry below water) to operate a quarry from lands in part of Lot 16, Concession 10, Geographic Township of Belmont, Township of Havelock-Belmont-Methuen, County of Peterborough
Drain Bros. Excavating Ltd.: D. White, counsel.
Ministry of Natural Resources: C. Verschuren, agent.
Township of Havelock-Belmont-Methuen: J. Ewart, counsel.
DECISION DELIVERED BY J.P. ATCHESON
AND ORDER OF THE BOARD
1 This was a hearing of the Board in the matter of an application for an Aggregate Removal Licence by Drain Bros. Excavating Ltd. (Drain Bros.), for a property located at Part Lot 16, Concession 10, in the Township of Havelock-Belmont-Methuen.
2 The Minister of Natural Resources referred the application to the Board as a result of objections filed by local residents and unresolved issues raised by the Ministry of Environment, the Ministry of Natural Resources, Fisheries and Oceans Canada and the Township of Havelock-Belmont-Methuen. The extraction licence is proposed to cover 71.72 ha. of the subject property. Close to 30,000,000 tonnes of aggregate are available for extraction in the proposed licenced area. The licence sought would permit the taking of more than 20,000 metric tonnes in any calendar year.
3 Counsel for the parties at the commencement of the hearing advised that the Municipality had entered into Minutes of Settlement with Drain Bros. Excavating Ltd. and based upon these Minutes of Settlement (Exhibit 1, Tab 1), the Township no longer had any concerns with the aggregate licence application. The Board was advised that the Site Plan (Exhibit 3c, Plan 3 of 5,) had been amended and was to be considered as Schedule “A” in the Minutes of Settlement.
4 The Board was also advised that the Ministry of Natural Resources concerns regarding the protection of Butternut trees on the property had been resolved as Drain Bros. had submitted an application under the Endangered Species Act and had received a permit from the Minister, which would permit removal of some of these trees on the site. The Minister issued a permit dated June 3, 2009, under subsection 17(2) (c) of the Endangered Species Act. A copy of the Minister’s permit is found at Exhibit 1, Tab 3. The Board was also advised that the issues raised by the Ministry of Culture, Fisheries and Oceans Canada, Canadian Pacific Railways and the County of Peterborough had been resolved as confirmed in their clearance letters found at Exhibit 10.
5 The remaining Appellant was Mrs. Ketola. There were also several individuals who were given participant status that wished to address the Board regarding their concerns with the licence application.
6 The Board, with the consent and in the presence of Counsel for the Ketolas and Drain Bros., undertook a site inspection during the afternoon of the first day of the hearing of the quarry site and the Ketolas’ aviary operation. The Ketolas’ property is located on 115 acres of land situated in Part of Lots 18 and 19, Concession 11 of the geographic Township of Belmont known municipally as 2286 Concession 10, R. R. #2, Havelock, Ontario.
7 Mr. Gillespie, during the course of the hearing, and at the commencement of final oral argument, requested that a verbatim reporter be available during this part of the hearing. The other parties consented to the verbatim reporter. The Board granted Mr. Gillespie’s request to have a qualified verbatim reporter present during the final oral argument portion of the hearing pursuant to Rules 94 and 95 of the Board’s Rules of Practice and Procedure. The Board will require a copy of any transcript ordered by any party.
8 The applicant, Drain Bros. Excavating Ltd., is seeking a Category 2, Below Water, and Class “A” Quarry Licence to extract limestone from its property at Lot 16, Concession 10, in the geographic Township of Belmont. The property is generally flat with the limestone face being exposed at the northeast corner of the property. The southwest corner of the property is generally a wetland area and is outside the area for which the Quarry Licence is being sought. The property is bounded on three sides by municipal roads. The 10th Concession Road bounds the property on the west, Church Road on the south and County Road No. 44 on the east. An active CPR rail line abuts the east boundary of the proposed area to be licenced. Several residential homes exist along the south side of Church Road opposite the subject property. There are as well several scattered homes along County Road No. 44 and on the 10th Concession Road. Vacant bush and pasture lands abut the property to the north all of which are shown on a site plan forming part of the Site Plan (Exhibit 3a, Plan 1 of 5). The property itself is currently about 80% covered with mixed deciduous forest. The proposed main access road to the quarry with weigh scales is to be from County Road No. 44 as agreed to with the Township. One service access road is being proposed from each of Church Road and the 10th Concession all of which are shown on the Site Plan (Exhibit 3c, Plan 3 of 5).
9 The Drain Bros. property is designated as “Aggregate Resources” by the Official Plan for the Township of Havelock-Belmont-Methuen, a designation carried forward from the Official Plan of the former Township of Belmont-Methuen. Zoning By-law 1995-42 of the Municipality zones the subject property M-2 “Extractive Industrial” which would permit the quarry operation. The lands abutting the Drain Bros. property are all zoned Rural (RU).
10 The Board, during the course of the hearing, heard from the following witnesses:
11 The Board also heard from the following participants all of whom own property in the immediate area; Dianna Ashford, Larry Rosati, David Scott McDowell, Lyle Ellis and Mrs. Sherry McQuestion spoke on behalf of herself and the Havelock Belmont Anti-Quarry Association. All the participants spoke in opposition to the application.
12 The participants raised a long list of concerns regarding the quarry. However, in the Board’s finding, the salient concerns expressed by the residents to be addressed may be summarized as follows:
13 The Board will give as a summary what it perceives to be the key evidentiary components provided by the key witnesses, before it makes the requisite findings on the matter. This will form the basis of the findings that the Board makes beginning on page 19 of this decision. These components are somewhat detailed as the varying concepts and opinions placed before the Board by the various witnesses, are significant and important. The reader of this decision must therefore focus on both areas of the decision (THE EVIDENCE, and FINDINGS AND CONCLUSIONS). This is done for the sake of the ease of readability so that the findings of the Board can be easily discerned.
14 Mr. Fuhrmann confirmed that he had done a peer review of the work submitted by Drain Bros. in support of their application for the licence now before the Board. His evidence to the Board was that the application was complete and met all the requirements for submissions as set out by the Ministry of Natural Resources in its guideline “The Provincial Standards for Licence Applications”. He further opined that requirements set out in Section 12(1) of the Aggregate Resources Act, had been met.
15 He advised the Board that the subject property had been previously licenced under the Pits and Quarry Control Act but that no extraction had taken place and that this licence had been revoked.
16 He proffered from his review of the material submitted by Drain Bros. that there is a good quantity and quality of limestone on the site and that none of the review agencies have expressed any concerns with the application as a result of the settlements reached and presented to the Board.
17 He noted that with respect to the Minutes of Settlement between the Township and Drain Bros., that Clause 3 and 4 were beyond the geographic area of the Licence Application and dealt with the main entrance from the quarry to County Road No. 44 and as such, were reasonable and did not conflict with the Aggregate Resources Act.
18 He freely admitted under cross-examination that he had not undertaken any independent work beyond his peer review and was only vaguely familiar with the location and activities carried out on the Ketolas’ property. He confirmed that he had never been on their property but agreed under cross-examination that their property would be considered as part of the “environment” and “nearby communities” contemplated by subsection 12(1) (a) and (b) of the Aggregate Resources Act and could be viewed as “such matters as are considered appropriate” as set out in subsection 12(1) (k) of the same Act.
19 He confirmed that a number of the bullet points in Clause 2 of the Minutes of Settlement between the Municipality and Drain Bros., had been included verbatim in the notes on the Site Plan (Exhibit 3c, Plan 3 of 5) and freely admitted that the requirement to notify area residents 24 hours in advance of the blast time, did not clearly list those individuals who should be notified and further, that the condition to secure a Permit to Take Water and a Certificate of Approval for Discharge from the Ministry of the Environment, were not public processes.
20 Mr. Verschuren confirmed for the Board that with the Minister’s issuing of a permit pursuant to subsection 17(2) (c) of theEndangered Species Act (Exhibit 1, Tab 3), that the Ministry’s issues with respect to the Butternut trees on the site had been resolved. He proffered no evidence with respect to the Ketolas’ property, nor did he provide any opinion on the merits of the licence application now before the Board.
21 Mr. Verschuren, on questioning from the Board, confirmed that the Ministry had not developed its processes regarding the integration of its licence under the Aggregate Resources Act and its permitting process under the Endangered Species Act. He suggested that for clarity, in the event the Board were to find in favour of the application for an Aggregate Removal Licence by Drain Bros., that the Board in its finding direct that the permit dated June 3, 2009, granted under the Endangered Species Act, be incorporated in the licence approval by the Minister.
22 Mr. Tighe confirmed the Official Plan designations and the Zoning By-law designations covering the property and confirmed that in his opinion, the quarry use was permitted by these documents. He confirmed under cross-examination that Section 18.104.22.168 of the Zoning By-law required a 150-metre setback from the quarry operation to residential zones and that this requirement could affect the setbacks from the four homes on Church Road. In this regard, he opined that the setback requirements shown on the Site Plan (Exhibit 3c, Plan 3 of 5), would meet or exceed the setbacks established by the Zoning By-law.
23 Dr. Williamson was retained by Drain Bros. in 2004 to undertake an acoustical study in support of their Quarry Licence. He initially identified 12 receptors in the vicinity of the proposed quarry, which ranged in distance from 200 to 750 metres from the quarry as set out in his report of May 20, 2004. Dr. Williamson at that time, was not aware of the aviary on the Ketolas’ property and did not consider it in his original study. He subsequently provided addendum reports to reflect changes in the phasing of the quarry proposal related to the timing for the construction of the berms shown on the site plan. He confirmed that he undertook his original noise studies in accordance with Ministry of the Environment Guidelines for Rural Areas, which allows for daytime dBA readings at a receptor of 45 dBA and night time readings of 40 dBA and concluded that subject to the mitigation techniques he recommended such as berming, the location of equipment in the quarry, and the restriction on the hours of operation, that the quarry could be operated within the noise guidelines established by the Ministry of the Environment for the 12 receptor properties he originally studied. He confirmed that his mitigation measures had been included in the notes found on the Site Plan at Exhibit 3c, Plan 3 of 5. He confirmed under cross-examination that the phasing of the construction of the berms in relation to the development of the quarry was appropriate and that he would not change any of his conclusions or recommendations in this regard.
24 He confirmed on questioning from the Board, that the type of equipment he monitored at other Drain Bros. operations would be similar to the equipment to be used at this site and would not result in any changes to his mitigation measures. He confirmed on questioning from the Board that the site plan conditions did not contain any restrictions on the type of equipment that could be used in the proposed quarry.
25 Dr. Williamson subsequently conducted a noise prediction study (Exhibit 1, Tab 11), in which he assumed a separation distance of 1250 metres between the quarry operation and the Ketolas’ property. He predicted, using the Ministry of the Environment guidelines for a Class 3 (Rural) Area a daytime dBA worse case conditions during the various phases of the quarry operation to range between 40.3 to 41.3 dBA, all well within the Ministry of the Environment sound level limit for Class 3 (Rural) Areas of 45 dBA. He also took readings on a quiet day, May 12, 2009, at the cul-de-sac on Concession Road 10, somewhat south of the Ketola property and observed at that time, a background reading of 35 dBA with individual readings as high as 55 to 70 dBA when vehicles used the cul-de-sac to turn around.
26 Dr. Williamson also provided the Board and those present with a sound demonstration from a recording he took of a blast at the Rideau Quarry in which his equipment was 700 metres away directly in front of and within line of site of the blast. He then reduced the blast noise recorded by 6 dBA to reflect the 1250-metre separation distance being used for the Ketolas’ property. Under these circumstances he predicted a worse case noise level of 72 dBA from the blast at the Ketola property. This reading made no allowance for intervening trees and assumed a clear line of sight to the blast. He proffered no evidence of the predicted noise level coming from the back of a blast at the proposed quarry on the Ketolas’ property, other than to say that in his opinion, it would be lower than 72 dBA.
27 Dr. Williamson on questioning from the Board freely admitted that he could not predict the noise level from blasts at the proposed quarry at aviaries located on the Ketolas’ property, as he had no empirical data available for this specific case. He confirmed to the Board that he had not been permitted on the Ketolas’ property.
28 Mr. Rene Morin was retained by Drain Bros. in 2002 to do a blast impact analysis for the proposed quarry. In his report, he proposed a blasting regime for the Drain Bros. quarry that would meet or exceed the Ministry of the Environment guidelines (NPC119) beginning (ground) vibration limits of 12.5 mm/sec and an over pressure limit (air vibrations) of 128 dB at the nearest receptor. He advised the Board that these guideline limits were set such that no damage would result to nearby structures from a blast. In his report, he proposed various blasting regimes and clearly indicated that drill hole and blast patterns within 300 metres of a receptor would have to be specifically designed to meet Ministry guidelines. He further recommended that no blasting be permitted within 175 metres of any receptor. It was also his recommendation that the first six blasts be monitored to obtain site-specific data to ensure that the Ministry’s guidelines are met and to assist in designing subsequent blasting at the site based upon this observed data. He confirmed that his recommendations were included on the notes on the Quarry Licence Site Plan (Exhibit 3c, Plan 3 of 5).
29 Mr. Morin’s firm subsequently undertook an analysis of the impact of a typical blast on the Ketolas’ property. They estimate an induced (ground) vibration of 1 mm/sec, which he contended was well below the ambient occupancy induced vibrations associated with human traffic in a home, which they proffered can often exceed 70 mm/sec. He also advised the Board that he would predict a “worse case” over pressure limit at the Ketolas’ property of 110 dB, which in his opinion, would be similar to 10 kilometre wind gusts.
30 He confirmed under cross-examination that the (NPC119) guidelines do not require or set standards to measure noise that might result from a quarry blast. He also freely admitted that an over pressure limit of 115 dB would be felt by people, and that humans would also be aware of a ground vibration of 2 mm/sec. He also freely admitted that he had no experience or knowledge as to the levels of over pressure or ground vibration that would startle birds in captivity.
31 Mr. Morin provided a demonstration of the vibrations one might experience from walking by a seismograph and the dropping of a coin next to the device. The vibrations recorded by the demonstration at the hearing were 0.76 mm/sec and 1.4 mm/sec respectively.
32 The Board then heard from Dr. Kiger. He does not substantially disagree with the methodology used by Mr. Morin although he suggests the (ground) vibration felt at the Ketolas’ property could range from 3.84 mm/sec to 4.2 mm/sec and not the 1.0 mm/sec predicted by Mr. Morin’s firm. Mr. Cyr in reply, advised the Board that using the Dade County method employed by Dr. Kiger that accounted for the entire data set instead of the 95% confidence level used by Mr. Morin, that he calculated a ground vibration from Explotech’s data set for limestone quarries in Eastern Ontario of 1.01mm/sec at the Ketolas’ property. The engineers generally agreed that people would notice a ground vibration in the range of 0.25 to 0.84 mm/sec and that a ground vibration of 2.0 to 2.54 mm/sec would be strongly perceptible by humans.
33 Dr. Kiger proffered that a ground vibration of 1 mm/sec would likely be amplified due to the nature of construction of the aviaries to a peak of 4 mm/sec to 10 mm/sec, which was more than an order of magnitude above the perceptible level for humans and at this level, would be disturbing in his opinion to the captive birds.
34 Dr. Kiger provided the Board with a very different perspective and opinion on the impacts resulting from the (ground) vibration and over pressure (air vibration) effects predicted for the Ketolas’ property and in particular, their aviary structures. It was his evidence that the impact from the (ground) vibration and over pressure effect while it would not damage the aviary structures, would however cause the metal parts of the structures to shake. He proffered that an over pressure load of 110 dB to 115 dB while equivalent to a 10 kilometre wind gust, should be viewed as a dynamic load which would double the impact of a 10 kilometre wind gust. It was his evidence that a natural wind gust should be viewed more as a static load on the aviary structures thus having a lesser effect than the over pressure (air vibration) effects from an explosive blast. Mr. Cyr in reply, proffered that a doubling of the dynamic load would be the equivalent of a 15 to 20-kilometre natural wind gust.
35 Dr. Kiger originally proffered that there were no mitigating measures to stop the ground vibration and over pressure effects on the aviaries but under cross-examination, agreed that barriers placed in proximity to the aviaries could reduce the over pressure impact and that the aviary structures could be strengthened to reduce the vibration effect. However, he could not proffer any specific mitigating measures to the Board.
36 Dr. Kiger also admitted under cross-examination that he had no specific experience with respect to the blasting of limestone in Ontario or Ontario’s regulations regarding blasting and that he had formulated his opinion based upon a description of the aviaries which he confirmed with a site visit upon arriving in Canada and the formulas used in a Dade County study. He admitted under cross-examination that the Dade County results tended to be high and that according to the study it should not be applied in other venues and was not applicable to limestone quarries in Ontario.
37 He further opined that any ground vibration effect over 0.25 mm/sec should not be allowed or in the alternative, the aviary structures should be moved to a different location to avoid such an impact.
38 The Board then heard from a panel consisting of Dr. Bird and Ms Carole Precious. Their complete witness statements are found in Exhibit 4 together with significant number of scientific papers on the impact of blasting on various avian species in the wild. The evidence of the panel is based in part on the conclusions of Dr. Kiger of the impact resulting from the blasting on the Ketolas’ aviaries, the noise demonstration conducted at the hearing and their own many years of experience in caring for and the breeding of captive birds. Their uncontradicted evidence to the Board is that birds in captivity are extremely sensitive to noise or to what Dr. Bird termed “startling effects”, which he sees in this case being the combination of noise, ground vibration and the blast over pressure effect. The panel opined that these “startling effects” can cause the captive birds to flush from their nest and due to the confined quarters of the aviary, they can injure themselves, destroy their eggs and often kill their young or become so stressed that they refuse to eat, breed, and in many cases, succumb to illness and often die. It was their opinion that if the effects suggested by Dr. Kiger and the noise they heard during the demonstration were to occur, they would have serious impacts on the very successful breeding operation of the Ketolas. They both confirmed that there was nothing unusual about the design of the Ketolas’ aviaries and in Ms Precious’ opinion; their design was state of the art.
39 Both Dr. Bird and Ms Precious freely admitted that there was significant scientific literature on the effects of blasting and setbacks for many species of birds in the wild, but that they were not aware of any documented literature for the level of noise, or other startling conditions that may be tolerated by birds in captivity. They freely admitted the impacts from ‘startling effects” can vary according to the species being kept. It was their evidence that birds being kept at the Ketolas’ property (Exhibit 7), would be sensitive to noise and the vibration effects coming from the proposed blasting.
40 Dr. Bird proffered under cross-examination that natural “startling effects” such as thunderstorms or high wind gusts, were usually tolerated by captive birds due to the open roof nature of the aviaries and the bird’s ability to sense upcoming natural events and that these natural events were not the same as sudden man-made events.
41 Both Dr. Bird and Ms Precious in their witness statements recommended that if the Board were to find and direct the issuing of the Quarry Licence, that the following mitigation measures be enacted:
42 Dr. Bureau endorsed the evidence of Dr. Bird and Ms Precious with the exception that he sees no benefit from restricting the blasting at the quarry from January 1 to August 31 each year. He confirmed that he had supplied injured birds to the Ketolas in the past and that part of his business was the supplying of birds and animals to zoos throughout the world. He provided the Board with a long list of the trauma and medical complications that can result from captive birds being startled.
43 In his opinion the blasting from the proposed quarry, as he understands, will
“Effectively end the Centre’s involvement with birds of prey, as a result of a combination of injuries, loss of breeding, loss of young and rampant infections, all of which will be the cause of the death of a majority of the birds at the Centre.”
44 The Board then heard from the Ketolas as a panel.
45 Mrs. Ketola, with her son and grandson, have owned and operated “The Centre for the Conservation of Specialized Species (the Centre), at the Havelock location since November of 1987. The Centre in 2001 was designated as a not for profit charity dedicated to the propagation of threatened or endangered species, particularly raptures. The Ketolas indicated that at the present time, they have about 60 birds on site and that this number can rise to over 100 birds depending upon the breeding success in any given year. The list of species kept at the Centre is set out at Exhibit 7. All mature birds at the Centre are out of Province birds that have been injured and rehabilitated but due to their injuries, cannot be returned to the wild. The newly bred birds are provided to zoological facilities throughout the world at cost. The Ketolas have trained a few selected birds to be used in an educational outreach program. Mrs. Ketola estimated that in the last school year they did forty presentations with their birds to over 5,000 school children and that this programme would be lost if they were forced to close the Centre as a result of the quarry operation. The panel confirmed that they were licenced by the Ministry of Natural Resources as Falconers but that the Ministry of Natural Resources had no specific licence for their aviary or breeding activities. That being said, they also confirmed that the Ministry had inspected the birds under their care and ownership and were satisfied with the nature and form of their operation. They confirmed as well, the design, size, location and construction of the aviaries as shown at Exhibit 4, pages 422 and 423, a design that they have perfected over the years. They also confirmed that they had secured a no fly zone within 1 nautical mile radius of their property and 1,000 feet elevation around the Centre from National Defence Canada in order to protect the birds from aircraft over flight noise, and that they have developed other measures with their neighbours to reduce startling effects from noise in proximity to their operation.
46 They confirmed that during the breeding season, Mr. Christopher Ketola is the only person permitted to enter the aviary for the purpose of feeding and maintaining the birds. Mrs. Ketola at Exhibit 7 indicated that the majority of the birds under their care were raptors; many of which were classified as an endangered species in Ontario and other parts of Canada. She advised the Board that due to the wide variety of avians located at the Centre, that the breeding season can stretch from January to the end of September. She advised the Board that any maintenance on the aviary must be done during the months of October and November, as the birds require a minimum of 15 days of no disturbance prior to the onset of courtship, which she advised commences on or about December 21 in any given year.
47 The Ketolas provided first hand anecdotal evidence of the impacts on birds under their care when they become stressed and by their accounts, these effects can be long-term and a significant detriment to the birds’ well-being.
48 They firmly believe from their experience that if the impacts described by Dr. Kiger resulting from blasting at the proposed quarry and the noise level demonstrated at the hearing were to occur, that irrevocable harm would be done to the birds under their care which would result in them having to close the Centre. It was their opinion that the proposed quarry was an incompatible land use with their operation unless and until they can be assured that sufficient mitigation measures can be enacted to ensure that their interest, the interest of the Centre, and the birds under their care, are protected.
49 Dr. April Romagnano told the Board of her experiences in the incubation and raising psittacine (parrot) eggs at the Avicultural Breeding and Research Centre (ABRC) at Loxahatchee, Florida, the second largest facility of its kind in the world. She opined that in her experience, the necessary care required to successfully hatch eggs through artificial incubation would be similar to the care necessary for the Ketola’s birds. She confirmed for the Board that the critical periods of development for bird eggs are the first few days after being placed in an incubator and the time from the initial pip until hatching. It was her evidence that if eggs were subjected to vibrations or adverse handling during this period, it could result in mortality rates as high as 99%. She also expressed concern that in the Ketolas’ situation, female birds after losing eggs would reclutch (lay new eggs) and that this reclutching activity could cause medical harm to the female birds. She reviewed in some detail the trauma and processes that can result from vibration to both embryonic eggs and to birds in captivity. It was her opinion from her years of experience in the field that iatrogenic (man-made) vibrations as predicted from the quarry blasting by Dr. Kiger, would seriously harm the Ketolas’ operation.
50 She maintained under cross-examination the opinion that conditions impacting birds in the wild and mitigative measures proposed in those circumstances cannot be applied to similar birds in captivity.
51 She freely admitted under cross-examination that in arriving at her opinion, she relied in part on the evidence of Dr. Kiger regarding the vibrations that could occur from the blasting. She confirmed under questioning from the Board that she was not aware of any empirical studies that had set standards for noise or vibrations that might be tolerated by raptors in captivity such as those at the Ketolas’ aviary. She noted that in her opinion the success rate or hatchability achieved at the Ketolas’ aviary was in the 99% range, which was better than the rates observed in the wild (89% to 90% in the wild) and from this she proffered that the Ketolas’ birds are happy, content, well cared for by experienced avian specialists and that the current environment of the aviaries would contribute to this success.
52 Mr. Zatorsky testified that as a result of his studies, the quarry would have no negative impacts on the adjacent road system, which would continue to operate at a service level “C”. On questioning from the Board, he confirmed that in his opinion the new entrance shown on the Site Plan (Exhibit 3c, Plan 3 of 5), was safe and appropriate. When questioned as to whether a new stop sign should be installed at Church Road and County Road 44, he was ambivalent as to its need and suggested that this was a matter for the County of Peterborough to determine. He sees no transportation impacts resulting from the proposed Quarry Licence and its proposed operation.
53 Mrs. Gorrell provided the Board with an overview of her hydrogeological and geological investigations as set out at Exhibit 12, Tab 8. She confirmed the geology of the site indicated that the Bobcaygeon formation and the subsequent Gull River formation found on the site were good quality limestone for aggregate purposes. She reviewed the result of the test wells drilled on the site and proffered that in her opinion, the quarry operation and the subsequent dewatering would not affect neighbouring property wells due to the dense character of the rock and the limited groundwater found at the interface between the various limestone formations. She confirmed that the results from test well T4 located near the wetland indicated that a perched wetland condition existed at the southwest corner of the property and that the underlying bedrock was impervious and as such, this wetland area would not be affected by the Quarry Licence as proposed. On questioning from the Board, she confirmed that the conditions set out by the Ministry of the Environment in a Memorandum dated May 22, 2009 (Exhibit 12, Tab14), were not included in the notes on the Quarry Licence Site Plan (Exhibit 3c, Plan 3 of 5). She opined that these conditions dealt primarily with the second lift, which might not occur for some 30 years but freely admitted from a notification viewpoint these conditions could be added to the notes on the Site Plan.
54 The conditions recommended by the Ministry of the Environment are as follows:
55 She also opined to the Board that the licence should not be restricted to the first phase as it was important to identify and protect this valuable aggregate resource.
56 Mr. Nichol reviewed for the Board his findings with respect to his investigations regarding the natural environment which date back to 2002. He confirmed that his investigations had been undertaken in accordance with Ministry guidelines. He confirmed that with the exception of the Butternut tree, no endangered species were found on the site and that his initial investigations had been updated as a result of a peer review. He further opined to the Board that due to the limit amount of ground water anticipated from the dewatering process and the separation distance of the settling pond to Belphorine Creek, that no impacts were anticipated for this watercourse. He further confirmed that concerns of Fisheries and Oceans Canada had been resolved as indicated in their letter found at Exhibit 10 and that the wetlands found at the southwest corner would be protected under the current Site Plan for the Quarry Licence.
57 He agreed on questioning from the Board that a condition requiring that none of the vegetation be removed between the berms of the quarry and the abutting road allowances, would be an appropriate addition to the Site Plan notes.
58 Ms Patterson, the planner retained by Drain Bros., opined that in her review of the Zoning By-law and in particular the setback of 150 metres as set out in Section 22.214.171.124, that this setback would only apply to the Residential Type 1 Zone (R1), Residential Type 2 Zone (R2), Residential Type 3 Zone (R3), Estate Residential Zone (ER), Seasonal Residential Zone (SR), and Island Residential Zone (IR), and the Residential Mobile Home Park Zone (RMH). In these zones, permitted uses are restricted to dwellings and parks or, in the case of the RMH, mobile homes, a management office and accessory uses.
59 She noted that the zoning map for the area Exhibit 15, zoned all the adjacent properties as Rural Zone (RU) and in her opinion, Section 126.96.36.199 would not apply.
60 Mr. McNamara confirmed that the 150 metre setbacks shown on the Site Plan (Exhibit 3c, Plan 3 of 5), were agreed to by Drain Bros. as proposed by the Township (Exhibit 20). He further estimated that the first phase (Stage 1) area shown on the Site Plan at current anticipated rates of consumption would last for about 32 years. He anticipated that the quarry would operate from April to November depending upon contracts and that much of the aggregate would be used in the production of asphalt.
61 In response to a Board question, he indicated that it would not be feasible to limit blasting to the period from September to December as suggested by the Ketolas and some of the other witnesses. It was his opinion that to stockpile material over the winter would allow too much moisture into the rock, which would negatively impact the screening process. He proffered that blasting during the April to November period would be based upon contractual need and that he could not predict the precise number of blasts that might be required in any given year, although he believed that the number of blasts could range from 5 to 10 in any given year.
FINDINGS AND CONCLUSIONS
62 The Board, after carefully reviewing the evidence, the exhibits filed and the submissions made by the parties and the participants, makes the following findings.
63 Due to the length and nature of this hearing, the Board will deal with its findings in two parts so that the parties and the participants can understand the Board’s reasoning and conclusions reached.
THE PARTICIPANTS’ CONCERNS
64 The Board in the first instance will deal with the concerns raised by the participants. The Board understands the concerns raised by the participants, their apprehensions concerning the quarry operation, and the length of time they have been involved with this issue, but mere apprehensions must be substantiated by facts or compelling evidence of real impacts.
65 It is clear to the Board that the use of this site for a quarry had been identified in the municipal planning documents for some time and that the Official Plan of the Municipality has clearly recognized this use at this site and requires mitigation measures to be imposed with respect to surrounding land use and directs that the new development not compatible with the quarry use, should not be permitted in the immediate area. This policy is clearly set out as well in the County of Peterborough Official Plan (Exhibit 13).
66 Further, the Board finds that the Township has requested and secured from Drain Bros. setbacks in excess of the zoning requirement of Section 188.8.131.52 of its Zoning By-law for a number of properties in the immediate area. In this regard, the Board prefers and accepts the uncontradicted evidence of the Planner, Ms Patterson that Section 184.108.40.206 of Zoning By-law 1995-42, would not apply to the Rural (RU) zoning designation and that the Quarry Licence application is in full compliance with the Zoning By-law of the Municipality. That being said, the Board finds that the increased setbacks shown on the Site Plan (Exhibit 3c, Plan 3 of 5) to be appropriate and should be maintained as shown.
67 The Board also finds the quarry use to be in conformity with the approved planning documents of the County and the Township and is consistent with applicable Provincial Planning Policies as set out in the Planning Review Report dated July 25, 2007 (Exhibit 9). It is the Board’s finding that any reasonable person reviewing these documents would have or should have known that the potential for an aggregate operation was contemplated for the Drain Bros. site and that a moratorium suggested by one of the participants is not warranted. Nor was any compelling evidence filed with the Board that there has been, or will be, a negative impact on property values. The potential for a quarry at this site has been known for a long time and its potential impacts if any on property values should have been factored into property purchase decisions.
68 The Board notes that the vast majority of the lands between the proposed berms shown on the Site Plan (Exhibit 3c, Plan 3 of 5), and the abutting road allowances, are in mixed forest or wetlands. The Board finds that it would be prudent to amend the Site Plan notes to ensure that this area was left in its natural state and that no tree cutting be permitted in this area. This would provide an additional buffer between the quarry operation and the surrounding area. This change has been agreed to by Drain Bros. in Exhibit 21 as an additional condition to be added to the Site Plan notes.
69 The Board has reviewed the reports and considered the uncontradicted evidence of Mrs. Gorrell and is satisfied that the quarry operation will not negatively impact adjacent water wells. The Board also prefers this witnesses’ evidence that the addition of the conditions of the Ministry of the Environment found at Exhibit 12, Tab 14 and identified earlier in this decision, should be included in the notes on the Site Plan (Exhibit 3c, Plan 3 of 5).
70 It was alleged by some of the participants that some endangered species of birds, sedges and grasses, had not been identified in the studies conducted by Mr. Nichol. The Board after reviewing these reports, the peer review and the Minister’s permit under subsection 17(2) (c) of the Endangered Species Act, together with the viva voce evidence of Mr. Nichol, is satisfied that these allegations are without foundation and do not constitute a legitimate reason to withhold the Quarry Licence.
71 Similarly, the Board prefers the uncontradicted evidence of Mr. Nichol and Mrs. Gorrell that the dewatering required will not adversely impact Belphorine Creek or abutting private wells. In considering this concern, the Board would direct that the notes on the Site Plan (Exhibit 3c, Plan 3 of 5), be amended to include the Ministry of the Environment conditions for the installation of “sentinel monitoring wells”, to ensure proper monitoring of groundwater conditions.
72 The Board, after considering the evidence of Dr. Williamson and Mr. Morin and after reviewing the notes on the Site Plan (Exhibit 3c, Plan 3 of 5), accepts that with respect to the 12 receptors they originally monitored, that noise and dust resulting from the quarry operation will be within the standards established by the Ministry and that the conditions noted on the Site Plan are appropriate to secure compliance. The Board notes that the only opening of the quarry to the north is the 50-metre entrance and that all subsequent work and crushing and screening equipment on the site, are to be located behind the quarry face. Drain Bros. in Exhibit 21 and in response to Board questions to Dr. Williamson, have consented to a revised note being placed on the Site Plan (Exhibit 3c, Plan 3 of 5) that:
Prior to operating any equipment which is new to the site, the noise source level for the new equipment shall be investigated by a qualified acoustical consultant to ensure that the Ministry of the Environment sound level limits are met at all receptors.
73 This will ensure that no new equipment is installed in the quarry that will not meet or exceed Ministry noise standards for the quarry operation in a rural area.
74 The Board has reviewed the Minutes of Settlement between Drain Bros. and the municipality and would note that the weigh scales and main haul route from the quarry are beyond the Quarry Licence area. These activities can create noise and dust and in the Board’s finding would be more appropriately regulated if placed within the Quarry Licence area. On questioning from the Board, Counsel for Drain Bros. did not disagree with the Board’s concern regarding the expansion of the Quarry Licence area.
75 Accordingly, the Board would direct that the area between the CPR rail line and County Road 44, be included within the area of the Quarry Licence and that the Site Plan (Exhibit 3c, Plan 3 of 5), be so amended. This would include within the licenced area the weigh scales and the main entrance route together with the area to be left in its natural vegetative state.
76 The Board heard no evidence that the burning of slash material after tree cutting on the quarry property would not be in compliance with Local or Provincial regulations. The Board finds that no change is required in this matter.
77 The Board is also satisfied that the conditions on the Site Plan (Exhibit 3c, Plan 3 of 5), are appropriate to control dust from the quarry consistent with Ministry guidelines and that no changes are required.
78 The Board finds and accepts the concerns raised by the participants that the notification note on the Site Plan (Exhibit 3c, Plan 3 of 5) of blasting is unclear and should be amended to read:
Adjacent/area residents within 1250 metres of the quarry property shall be notified of any blast times at least 24 hours prior to each detonation.
The Board with respect to the blasting notes agrees and accepts the modifications and addition to the notes put forward by Drain Bros. in Exhibit 21, namely, that the Site Plan notes be amended to read:
79 It is the Board’s finding that with these changes the quarry can operate without any serious negative impact on the abutting participant’s property and in full compliance with Ministry guidelines.
THE KETOLAS’ APPEAL
80 The Board will now turn to the issues and concerns raised by the Ketolas in their submissions.
81 It is clear to the Board that the Ketolas’ concerns are legitimate and in no way reflect what is commonly known as the NIMBY syndrome. The Board finds their concern to be sincere, real and not vexatious or for the purpose of delay.
82 The dilemma facing the Board is that both the quarry use and the Ketolas’ activity are sanctioned and permitted by the existing local planning policies. There is no evidence that the Ketolas are operating outside of any Provincial or Municipal laws or regulations. By all accounts, their operation must be viewed as a success, particularly when one considered the breeding rate success the Ketolas have achieved over the years. The Ketolas’ successful breeding of many endangered species is providing a valuable service and resource which is in the public interest, in the same way that the Drain Bros. quarry if licenced, would provide a valuable and needed resource to the Community.
83 It is clear to the Board that there are no empirical standards in place to impartially determine the effect of the quarry operation on the Ketolas’ aviary operation. It is the Board’s finding that subsections 12(1) (a) (b) (k) of the Aggregate Resources Act, would apply in this particular situation and are matters the Board must consider in making its directions to the Minister. The wording of these sections in the Board’s findings provides for a broad interpretation of the potential effect of quarry operations and not the narrower interpretation suggested by counsel for Drain Bros. in his submissions.
84 The Board for clarity will reproduce the application section of the Aggregate Resources Act.
Matters to be considered by Minister
85 Counsel for Drain Bros. referred the Board to Section 2(d) of the Aggregate Resources Act, noting that the test to be applied is not “no adverse impact” from an aggregate operation but instead the test is “to minimize adverse impacts” on the environment in respect to aggregate operations. In this regard, he suggests that Drain Bros. have met all the guidelines for noise and blasting set out in Ministry guidelines, and that all other aspects of the licence application have been met, and further, that as a result of settlements, no approval agency has expressed any concerns with their application.
86 He suggests that for a very specialized use as that of the Ketolas, there are no recognized standards for his clients to meet. Nor have any standards regarding levels of noise, ground and air vibration been put forward by the Ketolas that might address their concerns.
87 He contended that his clients have predicted a “worse case condition” at the Ketolas’ property of a blast noise of 72 dB, ground vibration of 1.0 mm/sec, an over pressure limit of 110 dB to115 dB and a background noise from quarry operations below the 45 dBA guideline for rural areas and that by meeting these conditions all provincial guidelines are satisfied. He contended to the Board that if these standards are not satisfactory to the Ketolas, then there is an onus on the Ketolas to suggest either new standards or other mitigative measures to ensure the protection of their use.
88 It has been held by the Board in many of its decisions that there is an onus on an appellant to disclose real planning grounds and not mere apprehension of negative impacts. It is not sufficient to simply raise apprehensions as Members McLoughlin and Lee state in City of Toronto vs. East Beach Community Association:
The Board is entitled to examine the reasons stated to see whether they constitute genuine, legitimate and authentic planning reasons.
89 The Board is satisfied that the Ketolas in this case have met this test. It is equally clear that the Aggregate Resources Act places a burden on the applicant to satisfy the Minister and in this case the Board, that the effects of its proposal on the environment and the surrounding community, have been minimized.
90 Counsel for Drain Bros. advised the Board that his client had been denied access to the Ketolas’ property to gather background data in order to establish the nature of the existing conditions that the birds on the site now tolerate. He freely conceded that his client had not sought a remedy prior to the hearing to gain access to the Ketolas’ property to conduct this monitoring.
91 He encourages the Board to accept the view that the Aggregate Resources Act merely requires that adverse impacts be minimized but not eliminated and that based upon the evidence of his witnesses, they have met all known guidelines and regulations and as such, the Quarry Licence should be approved. He further submitted that his clients were willing, at their expense, to install permanent monitoring equipment on the Ketolas’ property to ensure compliance with Ministry guidelines.
92 The Board finds the evidence of the Ketolas and their witnesses to be forthright and compelling in that if the “startling effect” suggested by Dr. Bird were to occur in the manner suggested by Dr. Kiger and demonstrated during the course of the hearing, that the result would cause irrevocable harm to the Ketolas’ work and the birds under their care to a point where their operation in all likelihood would cease to exist.
93 The reality before the Board is that no witness was able to accurately predict in any empirical way the exact or potential “startling effects” that might be tolerated by the birds at the Ketolas’ aviary as a result of the blasting proposed at the quarry and whether these startling effects could be minimized such that no harm would result to the birds under the Ketolas’ care.
94 The evidence of the impacts of “Startling Effects” on birds in captivity while experiential is in the Board’s finding compelling and uncontradicted. The Board heard no compelling evidence of mitigation techniques that might reasonably be applied that would ensure the protection of the birds at the Ketolas’ aviary under the conditions predicted by Drain Bros. witnesses. Nor was any compelling evidence proffered that these startling effects on the birds would not occur. The Board heard no compelling evidence as to what levels the birds might tolerate with respect to the effects coming from the quarry operation. This work needs to be done.
95 The Board notes that the potential mitigating measure suggested by some of the witnesses that might be employed was to restrict the times of year when blasting might occur. The Board is not satisfied from the conflicting evidence adduced at the hearing that this is realistic from the Ketolas’ perspective or practical when considering the operational needs of Drain Bros. as expressed by Mr. McNamara.
96 Similarly, the Board heard no compelling evidence that the parties had in any serious way considered the option of relocating the Centre’s operation and in particular, the aviaries to a location where the “startling effects” identified during the course of this hearing, would be minimized to a level that could be tolerated by the birds.
97 It is unfortunate that these options were not explored by the parties prior to this hearing.
98 The purpose of the Quarry Licence and the review process required by the Aggregate Resources Act, is to ensure that the proposed quarry can operate in a safe and non intrusive manner with respect to existing surrounding land uses and that those adverse impacts resulting from this very intensive land use are minimized bearing in mind the importance of the aggregate resource to the community and the Province.
99 It is clear to the Board that the adverse effects of the quarry operation have and can be minimized by Drain Bros. as they might affect the human condition in the surrounding communities in compliance with Ministry guidelines, regulations and the requirements of the Aggregate Resources Act.
100 However, in the Ketola situation, two important and specialized uses (the Ketolas’ aviary and the proposed quarry) are located in proximity to one another and in the Board’s finding, constitute the matters to be considered as set out in subsection 12(1) (a) (b) and (k) of the Aggregate Resources Act.
101 Unfortunately, no guidelines or protocols exist to determine standards to be employed to minimize the impact on the Ketolas’ land use and the compelling evidence before the Board is that the “worse case conditions” predicted by Drain Bros. experts, will cause irrevocable harm to the Ketolas’ operation and the birds under their care and would not be in the public interest.
102 If standards can be developed to protect birds in the wild from the impact of blasting, surely measures can be developed to minimize the effect of the proposed quarry on the Ketolas’ Centre to a level that can be tolerated by the birds under their care.
103 It is the Board’s finding that further work is required to show that these two important land uses can co-exist as contemplated by subsection 12(1) of the Aggregate Resources Act.
104 There is an onus on both parties to work toward this end bearing in mind their individual interests and the public good resulting from both uses operating successfully.
105 It is the Board’s finding that the negative effects of the Drain Bros. proposed quarry have not been minimized as required by the Aggregate Resources Act with respect to the Ketolas’ property and their aviaries and that until the impacts of blasting at the quarry on the Ketolas’ aviary and birds is known and it can be established that no serious “startling effects” would be induced to the birds, that the Quarry Licence should not be issued.
106 If and when it can be determined that mitigative measures or modifications to minimize the “startling impacts” that can occur from the quarry, would be tolerated by the birds under the Ketolas’ care, the Quarry Licence should be issued together with the other changes identified in the Board’s decision.
107 In this event, the changes directed by the Board are as follows:
Adjacent/area residents within 1250 metres of the quarry property shall be notified of any blast times at least 24 hours prior to each detonation.
CONCLUSION AND DIRECTION
108 The Board, for the reasons contained in this decision, respectfully directs the Honourable Minister of Natural Resources not to issue to Drain Bros. Excavating Ltd. (Drain Bros.) a Category 2, Below Water, and Class “A” Quarry Licence to extract limestone from its property at Lot 16, Concession 10, in the geographic Township of Belmont.
109 So Orders the Board.
End of Documen