HomeMy WebLinkAboutLGL-004-11~I1DgC0Il REPORT
LEGAL DEPARTMENT
Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
Date: March 21, 2011 Resolution#: ~i~'87a-11 By-law#: N/A
Report: LGL-004-1t File#:
Subject: CLARINGTON ATS. ST. MARY'S CEMENT
COURT FILE NO: 09-CV-375276
RECOMMENDATION:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council the following:
THAT Report LGL-004-11 be received for information.
Submitted by:
ACA/jb
s
An rew C. Allis n
Municipal Solicitor
Reviewed by: -~'~-~
anklin Wu,
d~-o~ Chief Administrative Officer
I
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T 905-623-3379
LGL-004-11
1.0 BACKGROUND
2
1.1 In March 2009, St. Mary's Cement Inc. commenced an application seeking an
interpretation of Zoning By-law 84-63. It specifically sought a declaration that its
proposed "Demonstration Project" (burning alternative fuel derived from post-
composting and post-recycling residual materials) is a permitted use at its
cement manufacturing plant in Clarington.
1.2 The application was heard on December 7 and 8, 2010.
2.0 COURT DECISION
2.1 Attached to this report is the decision of the Superior Court dated March 11,
2011. The decision is self-explanatory. The Municipality's position was accepted
by the Court.
2.2 Much of the credit for the result goes to Faye Langmaid whose planning
evidence provided the basis for the decision.
2.3 We believe that Mr. Justice Stinson's decision is well-reasoned and accurate with
one exception -the Municipality never took the position that it was opposed to
the Demonstration Project. We did, however, feel that if the alternative fuels
demonstration project is to proceed, it should go through a rezoning process.
2.4 If anyone has any questions, please contact either Ms. Langmaid or me.
Attachment 1: Superior Court Decision dated March 11, 2011
t1RR-11x2011 10:00 From:
ATTACHMENT NO. 1 TO
REPORT LGL-004-11
CITATION: St. Mary's Cement v.Claringtoa, 2011 ONSC 1533
COiJR"1` FILE NO.: 09-CV-375276
DATE: 201 l U3 t l
ON'fAR10
Si1NERIOR ('OURT OF.TLIS'.['1CE
BETWEEN:
5'I'. MARY'S CEMENT 1NC.
1lpplicant
-and
THE MLTNTCIYALITY Op CLAR1NCrTON
)
}
) Mirha~! J ttlcQuaicf, ~Lf'., for ttic applicant
}
Tarr Coa`frey and Jart ,5mithen, for the
respondent
RCS1Nmdelrt
STINSON .T.
HF.AItI): December 7 and $, 2010
[1 f Tn this application St. Maty's Cement lne. ("SMC"') seeks tai interpretation o1' 7..oning
By-law 84-63 of the Municipality of Claringtar ("Glaringtun") and a dec;laratiott that certain
proposed activity is not a land use controlled by the by-law, or in the alternative is an
accessory use permitted udder the by-law.
[2] ltt a nutshell, the application has ila origin in a proposed by SMC to burn alternative
I'ucl derived from post-composting and post-recycling residua! materials in its cement plant.
!n lam, this gives rise to the question whether this activity equates to operating a waste
disposal area, which is not z permitted use at the site in question.
factual Axclteronnd
[3~ Claringtun is a so-called "'lower tier" municipal gOVernment located within the upper
tier Regional Municipality of llurhatn. Roth Clarington anti Durham hove Official Plans that
outline the goals and patterns of expected growth and developtncnt for the region. Municipal
zoning by-laws have been enacted in conformity with Q1ese plans. Clarington's7.oning By-
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law R4-63 was passed pursuant to section 34(1) of the Plrrntaing Act, R.SA_ 1990, e P_13
("PlunninK Aca"), and was amended by 13y-law 85-47 to its current form.
j4j Sinec approximately 1968 SMC has operated a cement manufacturing plant in
Clazington, on a large plot of land vn the north shore of Lake Onlariu, south of Highway 4(11.
The SMC si le enctnnpasses 321 hectares of land, and 15 subject to 13y-law 84-63. The rile is
divided into two parcels of land, both of which arc zoned as "Extractive Industrial (h43)
Lone" (M3}. The 31 hectatre parcel of land housing the cement plant is subject to a specific
site exception: the M3-I Zone. 'this exception permits the land to he used Ibr a cement
manufuulurin~ plant
[5] The Claringlon coning by-law defines a "Waste 1)lsposal Area" as meaning "a place
where garbage, refuse or domestic or industrial waste is dumped, destroyed, ar stored in
suitable containers." The M3-1 zouing for the cement plant wile does not mention waste
disposal or a waste disposal area.
[6] fo achieve the very high temperatures required in the cement manufacturing process,
SMC: burns in its cement kiln a fuel lurown as petcoke (petroleum coke), a by-product of the
crude oil relining process. SMC's supply of petcoke is delivered to its site primarily by lake
freighters, and in smaller amounts by truck u~ansport.
[7] 5MC is proposing In conduct what it describes as a "Demonstration Project" utilizing
three energy-rich materials to substitute for a. portion of the currently utilized fuel. '1'hc
proposed substitute materials arc post-composting residual plastic film from a composting
plant; post-recycling paper bio-solids; and post-recycling residual materials from a paper
plant ("Ma.terials"). Conduct of the short-term Demonstration Project will enable SMC to
determine the leasihilily of the Materials as alternative fuels for ifs manufacturing process. !f
they are I'easihlc, it is anticipated that SMC' will begin to use the Materials a1 a regular basis.
The Matorials would be delivered to the site by truck transport exclusively.
[8J The T'rovince of Ontario has established a rigorous regulatory process to control the
use of various materials that may be used as fuels Of particular relevance is R.R.O.1990,
ReK. 347, enacted under the Brtvirortnrenta! Protection Act, R,S.O. 1990, c. E.19 ("L:PA"}.
This regulation contains a dettrile~l defnilion ollmaterials that arc dclined as "waste" in order
to subject the management of these materials to review by the Minisu}' of the F..nvinmment
("MOE"). Before anyone may use as a heel any combustible material which is a hy-product
of a manufacturing process (except for a few exempted materials) that is defined as "waste"
under O, Reg. 347, an approval under s. 27 0l' EPA must he obtained. petcoke is already
approved under s. 9 of the L'PA. The use of the Materials as fuel requires a s. 27 approval,
which SMC has sought.
[9] C.larington has informed SMC that it considers the incineration o'1' the Materials at
SMC's cement plant is not a permitted use under the zoning by-law, because it is tantamount
to the operation of a waste disposal area. Caarington has raised a series of planning-naatcd
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issucs and amccnts that, in its submission, justify its opposition to the Demonstration Project.
SMC disagreesand has broughethis application to have the court resolve the disputes
The Issues
[lUj 13eiirrc listing the issucs raised on the application, it is worthwhile rccitinb the issucs
not raised or properly before the court. To he clear, the focus of this case is on land usc, not
euvironmcntal regulation. it is not my Puncli«n to pass an the cnvit'onmental suitability ur
otherwise of the Materials as a first sc~mce. L^'nvironmental consideratiotu are the
rcspotlsibilily of the MOE under the EFA and I do not h~lend to usurp,this impol'ftml
regulatory' Junction. As a result, this is not an application that entails the consideration of any
environmental issucs related to the burning of alterna,live firsts or waste in a cement kiln. The
decision 1 stn required to make is whether the use of the Materials at the SMC site as titcl in
the cement kiln would constitute a permissible usc from perspective of the reining by-law.
X11] The interpretation of 13y-law K4-G3 in the present context requires consideration of
several issues:
a. Are the Materials proposed by SMC properly characterised as "waste" nr htel
for the purposes of the zoning by-law'?
b. Does fhc burning ol'the Materials introduce a land use that is not permitted by
the zoning by-law?
c.
if the prnpuscd activity is outside of the scope of the uses permitted under the
terms of the zoning by-law, ca.n the conduct he properly characterised as an
accessory use, thereby permitting the activity?
The Positions of the Yartica
[12] It 15 the lxisitiott oh SMC' that the zoning by-law permits a specific usc of land - a
cement manuiacturing plant -and as long as this "usc" continues, the user is compliant with
the by-law, SMC subntils that the horning of iltel in the plant is not a discreet hand usc and
thus the burning of new altemativc fuels dots not constitute a change in land use.
Alternatively, if the burning of altemativc fuels is deemed a land use by this court, the use is
permitted as an "accessory use" according to sectio„ 3 of >3y-law K4-63, since it is
customarily incidental or subordinate to, and exclusively devoted to the main use of the site.
[13~ C'larington submits that the Materials fall within the definition of waste under the.
EI'.~t, a definition that is iucurporatcd by reference in the Chvingum and Durham Of'licial
"'•°-: "^'' 'i•• ' ' Isu applicable tq the zoning by-taw. 1'he disposal o£ waste, by burning or
otherwise, for whatever purpose. means that SM(."a laird would be used tiir a waste disposal
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area, which is not permitted under the by-law. As a result, the pn,posed activity is not
permissible, absent an amendment to the coning by-law.
I,csal Areumcnts and Analysis
Interpretive Approach
[14] It is well recognized that ronutg by-laws arc authorized to control the use of land,
regulate the ereclio,,, location, and use of buildings and help prevent development oh
unsuitable ur mntamiuttted lands, which includes the right to prohibit imc or mare uses nn
specific parcels uC land. The parties disagree, however, on the approach to take in interpreting
the Clarington zoning by-law. While neither explicitly characterized their approach as such,
the position of SIvIC reflects a plain mcatting approach favuwing a practical interpretauun
where the continuation of the pe,mittcd use and purpose of the land is paramount (See Ruth
Sullivan, Slatufay Interpretation, 2t1 cd (Toronto: lrwin Law loc., 2007) al 29-48), SMC
relies on the text ot'thc by-law and, while recognizing their applicability in other contexts,
rejecis any consideration of Ollicial Plans ur the. ISPA.
[IS] Ry contrast, Clarington subscribes to Driedger's modern principle articulated by
lacobucci ,1_ in Re Kizzv ck Rizzo Shoes t.td., [1998} 1 S.C.H.. 27 (See Sullivan, supra, at 29-
48). Generally, this holistic, contextual approach looks W the intent oi' the drafters ol'the. by-
law in resolving ambiguities or interpretive isriucs. the focus is on whether all activities that
occur on the land an,litrnt to the permitted usage. Claringtvn therefore relies nn municipal
documents that Pomud the basis lire the creation of the by-law and associated legislation.
[Ifi~ Genera! principles appropriate li>r statutory inurprctatiun. arc also applicable to
municipal by-laws (~>rfuntrerrl (I%ille) v. 1917_t3G!> ~)art:hec Inc., 2005 SCC G2, [2U(IS] 3
S.C.R. 141 at parts. Ill). In my view, the Court must approach intcrpretiution of the by-law by
cunsidcving the text of the by-law', the intent of Com,cil and the purpose and scheme of the
by-law' as a whole. (Sec Neighbourhoods of W;nc!/fields hinritecl !'artncrclrip v. Uealh, ~2UU8]
O..I. No. 3298 at para. 43 (Sup Ct), af} d 2009 ONCA 277, (cave to appeal to SCC dismissed
~2UU9] S.C'.C'.A. Na. 2.53).
[17] Both the Clarington OI'ticiai Plan and the Durham Of#icial Plau are relcvattt in
determining the citcutnstaners and intent pursuant to which the zoning by-law was et'eated. [n
addition, s. 8 of the A~trrnicapal Ac{ 2(1(11, S-O. 2(lUl, c. 25, provides that "powers el' a
municipality under this or arty other Act shall be interpreted broadly so as to confer broad
authority nn the tunicipality to enable the municipality to govern its afluirs as it considers
appk,priatc and to enhance the municipality's ability to respond io municipal issues" (Aon
loc. v. f'crterbnrnugh (City) (1999j, 96 O.T.C. 34, [1999) U.J. No- 1225 at para. i 8 (CTen Div).
[18~ SM.C submits, however, that the Ut;'iciai Plans are oat law and thus have nu bearing
au the matter. SMC tiles ,Niubura liiver Cau/iliurt v. Niu);urn-nn-the-Lerke {Town), 2UlU
ONC'A 173, 12010] O.J. No. 937 at para. 42 [Nicr,~arn], li,r the proposition that `ol'licial plans
are not statutes and should not hr construed as such." C'larington concedes that Oilieial I'lan.s
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arr. not law. 1-Iowevcr, Clarin~;tun submits -and 1 agree -that Niagar•u does not preclude
consideration of Official Plans lu provide context Cur a by-law in detertnining the intent of the
text As the Court ul'Aplxal itsell'said in 7itr°nntn (C'ily!) v. Gold(ist Prn~rertrvs Inc. (2003), G7
OIL (3d) 441 (at para. 49:
Li It is imporlanl to l.,car in mind that the purpose of an official plan is to set out a
&amcwork of "goals, objectives and policies" to shape and discipline specific
apcrative planning decisions- An official plan rises above the level ul• detailed
regulation and establishes the broad principles that are to govern the
municipality's land use pl.•uttting generally.
Waste versus' Fuel
[]9] 'lhcrc is no definition of•`waste" in the Clarington zoning by-law. SIvIC maintains tlklt
this is not problematic. The issue is the cunlinued use of the land and whether changing the
fuel in d,e ccmcut-producing process impacts the previously pcrntissible use. Clarington
cmphacires the importance of locating such a definition in propi:rly interpreting the by-law.
[2UJ 'the Durham Official Plan defines waste to include "industrial waste... and such other
waste as designated under the Envlrvnmen(u! Prnrc:etion Acl." The Clarington Official Ylan is
less specific, referring to "material defined as waste by applicable provincial legislation." In
my view, both Official Plans reflect an intention to adopt the GPd detiniliun5 of "waste".
[21 I SMC. acknowlctlgcs (as it must} that, for F,PA purposes, the Materials fall under that
statute's definition of waste 5MC argues, however that its application under s. 27 of the G!'.A
doers not equate to an achltowledgment of t11e Material as waste for Toning purposes. Rather,
the FPA approval application merely reflects SMC's adherence to environmental regulation-
It is the position of SMC that the definitions within the Official Plans are without legal force,
not relevant, and thus do not provide any mesns with which to connect the F.P~ definition of
waste to the Rv-law.
[22] SMC: stresses that the Materials arr. being used to produce energy for the manufacture
tsf ecntcnt and thus arc fuel. Thc. Materials arc reported to have reasonable heat value and
coniparablc lacy fuel characteristics when weighed abainst petcoke. Moreover, the Materials
are ah•eady utilized as loci sources it, parts of the iJnitcd Stases and Europe, tlu,ugh not yet in
Canada.
[2.i] In C'nrtadian &tavirorxtncnnr! Law dssoc•icrtiott E+a ill. and Pirurcr (Ite) {1979), 26 O,Ii.
(2d) 4R$ at 4I$ (l)iv Cl)) ~Plturu], a case decided under the former F_nvirorxnrer7lul Yrotecfion
Rc•r, 1 X71, S.O. 1971, c. 8b, the C'outt eot,unenled oft the transi lion of waste U? fuel:
"While the PCBs were waste at some time, they wc~rx; no longer waste
when they arrived al the St. Lawrence Cement Computy to be used as
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fuel. Ry then they had undergone extensive treatment and processing.
They had been blended and filtered And had been converted into a valuable
fuel and manufacturing resource. Shell fluids could no longer be described
as waste as that term is used in the F'+tvirnttmenlal Protec7iun f1 G, 1971."
5MC submits that this reasoning is applicable to this case.
[24~ Clarington argues that Pilura is distinguishable in that the legislative scheme under
the. current F,1'A is entirely difrerent than the statute tha[ was is in plan. 4U years ago.
Morcovei', no real pre-prnccsshig occurs with the Materials: they are simply dried prior to
transfer. in contrast, the PCBs considered in P/lz~ra underwent extensive pntcessing.
X25] In my view, whether the Materials are nr are not pre-processed cannot abet the nature
of the undenaking that SMC proposes and the underlying reality of its submission: the use of
airy material, whatever its source, as a fuel in the cement kiln does not alter the land use. If
that is so, Clarington notes, the door is openad to the transport, sWrage, and use in the cement
kiln nn d,e SMC. site of any number of potentially offensive energy-producing produl~ts, such
as used fires, processed sewage, animal meat c» bone meal.
[2G] 1'he continuum of processing required for a material to become a furl when it was
formerly a waste is an interesting discussiat but one that is beyond ll,e scope of this
application. '1'hr qurstiat remains whether the Materials cottstitulr waste as that tern, is used
in the by-law. In light of the adoption of the Ei'Pd definiGnn of waste in both the Durham and
Clarington Ohi[ial Plaits, in my view the only logical way to interpret the term "industrial
waste" as found in the Clarington zoning by-law is to apply that stahitory definition. Since the
Materials fall within the LI'A definition, i hold that fix purposes of the zoning by-law they
Waste Dispa.cn/ Area
[27~ It is common ground that the current zoning for Ott SMC site flocs nu[ permit Lhe
operation of ,t waste disposal aria. SM(: submits that because: the plot ul' laird is being used
fur the same purpose - to m~nultleture cement - it; activity, including fuel use, continues to be
permitted under the by-law. Moreover, since the Materials atE being used us a fiteL a waste
< alyd. Clarington submits that the site will transition to a waste
disposal area under both the F.Pn and the by-law i f these materials arc burned tilt fuel.
[28~ SMC relies on casts involving legal non-conlin~ming uses for the proposition that
changing one of the activities carried nn al this site, such as the type of fuel used, does not
fundamentally change the use of land and the buildings (See Wutrs v. BenvcHUli (2U(15), 77
O.R. (3d) 38G, [2005 O..T. No. 3254 (Sup Ct). al'I'd in part (2(lU6), RQ O.R. (3d) 721 [K'arr.~~~)-
tiMC' suKgesls thus the lacWrs outlined in aair+f-Ron'rG7eld v, O1lVigr, 2UU1 SCC 57, [24171 ~ 2
5.C'.R. SDK st 920-21 [.Barret-Roman&1~ arc helpful in determining whether a change of use has
occurred in this case: the purpose oP the pre-rxistitts use and activities that were carried out
there; whether the new use is simply an intensification of the old use; how remote the change
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is frorn the earlier activity; the extent to which the activity is within the original scope of
usage; the neighbourhood effects; and consideration of the proper balance in the
characterization ofthe legal non-corilorming use.
fZyl Claringlon asserts that this is not a case of a legal non-conforming use as in Watts or
Salnl-Rt;ntauld. !-;lack's l,aw Dictionary defines legal non-conforming use as "a use which
dots not comply with present zoning provisions but which existed lawfully and was created in
^^'t F ~*!:,:. ,: t: the _„~ ~^.'.ent of the zoning provision.° (Bloc'k's Irrw Dicliurrary, 6th ed,
soh verhn "nonconforming use"). In this case, the, same zoning restrictions exist before and
alter the proposed changes The change in "1'ucl" is the modification, not the by-law.
13(lJ While 1 agree that SMC's use of the site for the manufacturing of cement will continue
to be a permitted use under the Demonstrttion Project, i do not agree that the substitution of a
new fuel is permissible under the doctrine of legal nou-conforming use. Rather, in my view,
through the introduction of a fitcl that falls within the EP.~ definition of waste, SMC is
introducing a new and additional use on tlae site, because it rill he. disposing of industrial
waste. As such, SMC will be operating a waste disposal area on the site.
Accessory Use
[31] Clarington's Loning By-law 84-63 also includes provision for "accessory use" oP
land, which is defined as " a use established during; or after the establishment ol'the main use
which is customarily ineidenltd hod suhnrdinate to, and exclusively devoted to, the main use
of the Int, and located on the same lot as such main use." SMC submits that a plain reading of
this text suppotKS a finding that the use of alternative materials as fuel is an accessory use to
the main use of the site as a cement manufacturing plant.
[32~ 1'he orms is on SMC to show that the activity is an accessory use (Becker Milk C'u.
Ltcf and C'dty of London (1984}, 44 C1.R. (2d) 385 (liC) at 5, afl'd [1985] 0..1. No. 2745 (Div
Ct). P'or an activity to he "customarily incidental" to the main use it most b¢ common within
the municipality nr province in issue (Re Cnnvenierx•e Services Ltcf v. City ofSaulC,~Ste. Marie
e! al. (19130), 30 U.R. (2d) 66(1 [1980] O.J. No. 3802 at paras. 2-5 (1TC'); 1413107 Ontario Inc.
v. Woodstock (C'ityJ (2001), 200 D.L.R. (4th) 1'75, [2001 ] O.J. No. 1330 al para. 36 (Sup Ct)).
[33] The evidence does not support the conclusion that the proposed use is common or
customary within [he Municipality of Durham or the 1'rovincc of Ontario. According to
Environment Manager, "llcspitc the potential benefits, none al' the
alternative energy sources [which utclude the Matcri~ls] are utilized within the cement
manufacturing sector in the province of Ontario." !t follows tltat although these materials are
used extensively in the United States and Pngland, their use is not typical or customary in
Ontario.
[34J 1 therefore conclude that the use of the Materials as fuel does not !'all within the scope
of the concept of accessory use,
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Conclusion and Disnositiun
To: Heenan Blaikie P.9~10
[35] For these reasons, 1 conclude that the proposed 17emunslration Ptesject invulvirig the
use of'the Materials by SMC. as an alternative fool in its cement kiln is not a permissible use
on the SMC site under Clarington 7_nning By-law A4-fi3• The application is therefore
dismissed. If the patKit are tenable to agree on costs, they may make brief wriltCn
submissions (no more than three pages plus a costs outline}, within the next 30 days.
~.
Stinson J.
Released: March 11.2011
MAR-11-2011 10:02 From: To:Heenan Blaikie P.10~10
CITAITDN: St. MAry's Cement v.Clarington, 2011 DNSC 1533
COUH'1' F1LIJ NO.: 09-CV-37527G
DATF,: 20110311
DN1'A1210
S[1PERiOR COI?RT OF JUSTICE
RF.TWF.F,N:
51'. MARY'S CGb~f;N'1' INC.
Applicant
-and -
TH)r Ml]NICTYAL,ITY UP CLARINGTON
ResnonJenl
REASONS FOR .TLJDGMENT
SI1n5!)11 J.
Released: 117.arch 11, 2011