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HomeMy WebLinkAboutLGS-016-24Staff Report If this information is required in an alternate accessible format, please contact the Accessibility Coordinator at 905-623-3379 ext. 2131. Report To: General Government Committee Date of Meeting: April 8, 2024 Report Number: LGS-016-24 Submitted By: Rob Maciver, Deputy CAO/Solicitor Reviewed By: Mary-Anne Dempster, CAO Resolution#: GG-185-23, GG-062-24 Authored by: Rob Maciver, Deputy CAO/Solicitor File Number: L1000-11 By-law Number: 2008-114, 2024-017 Report Subject: Site Alteration By-law Update Recommendations: 1.That Report LGS-016-24, and any related delegations or communication items, be received; 2.That the Site Alteration By-law included as Attachment 2 to Report LGS-016-24, be enacted; and 3.That all interested parties listed in Report LGS-016-24, and any delegations, be advised of Council’s decision. Municipality of Clarington Page 2 Report LGS-016-24 Report Overview Following a period of public consultation, and in response to a variety of factors, including changes to provincial regulation, enforcement challenges, and administrative obsolescenc e, this report recommends the enactment of a new Site Alteration By-law. 1. Background Council Direction 1.1 Report LGS-031-23 explained that, due to a variety of factors, including changes to Provincial regulation, enforcement challenges, and administrative obsolescence, the Clarington Site Alteration By-law 2008-114 requires updating. 1.2 Accordingly, at the November 6, 2023 General Government Committee meeting, Resolution #GG-185-23 was passed: That Report LGS-031-23, and any related delegations or communication items, be received; That Staff in the Legislative Services and Planning and Infrastructure Services Departments conduct a public consultation on proposed changes to the Clarington Site Alteration By-law, and report back to Council with a new draft by- law to replace the existing by-law; and That all interested parties listed in Report LGS-031-23, and any delegations be advised of Council’s decision. Municipality of Clarington Page 3 Report LGS-016-24 Legislative Authority and Changes 1.3 The legislative authority for the Municipality to regulate site alteration is found in s ection 142 of the Municipal Act, 2001, which provides that a municipality may: (a) prohibit or regulate the placing or dumping of fill; (b) prohibit or regulate the removal of topsoil; (c) prohibit or regulate the alteration of the grade of the land; (d) require that a permit be obtained for the placing or dumping of f ill, the removal of topsoil or the alteration of the grade of the land; and (e) impose conditions to a permit, including requiring the preparation of plans acceptable to the municipality relating to grading, filling or dumping, the removal of topsoil and the rehabilitation of the site. 1.4 On January 1, 2023, the On-Site and Excess Soil Management regulation came into effect. The regulation establishes standards for soil quality imported or exported from a site, and also enables municipalities to incorporate these standards into their regulatory by-laws. Existing By-law 1.5 By-law 2008-114 was approved arising out of Report EGD-022-08 and Report EGD- 030-08. At the time, there was concerns for materials being placed on properties, concentrated heavy traffic, volume of fill, environmentally protected areas, and agricultural areas. 1.6 The intent of the original by-law was to “to control significant excavation and/or filling of property by requiring that a Permit be applied for which outlines and identifies information which, in turn, will allow the Director to "assess the impact of the fill or alteration on the area affected." The by-law provides for a comprehensive list of exceptions to the by-law provisions. 1.7 The 2008 by-law has been amended once, through By-law 2012-022, arising out of Report EGD-010-12, in order to add sections related to public meetings, permit fees, permit time limits, restrictions on source sites, new definitions, and a reduction in hours of operation. Municipality of Clarington Page 4 Report LGS-016-24 2. Consultation Process 2.1 In December 2023, Clarington initiated a public consultation process regarding proposed changes to the Site Alteration By-law. This process entailed the following activities:  notice published on the Clarington website on both a dedicated page and on the site alteration information page;  Public Information Centre on January 25, 2024;  a social media campaign;  notice in the Orono Weekly Times; and  inclusion on online Durham Region News. 2.2 The input received from the consultation process has been summarised in the Public Consultation Comment Matrix included as Attachment 1 to this Report. 2.3 Some of the recurrent themes of the input received are also summarized in the section below. 3. Public Input Public Input 3.1 Concerns were expressed that tracking and monitoring of site alteration across the Municipality must be closely followed and that material outside of Clarington should not be permitted. 3.2 Input was provided to request that tipping fees associated with site alteration in Clarington should be consistent with adjacent municipalities. 3.3 Oral and written comments were submitted on the theme of appropriate monetary f ine amounts, and that these fine amounts should be clearly identified in the By-law. 3.4 Some commentators emphasized the importance of the role of the Qualified Person and the need for this person to provide unbiased advice that includes a thorough analysis of concerns as well as detailed instructions and records about soil testing. 3.5 Fears were expressed that applicants would not abide by approved haul routes and schedules. There is a need for diligence in the approval and monitoring of these details, Municipality of Clarington Page 5 Report LGS-016-24 and consequences for any infractions. Also, that limits should be imposed on the number of trucks per day, as well as start and end times. 3.6 Comments were received that applicants should be required to use mitigation measures to reduce unwanted noise, dust, and other negative impacts. Local Landscaping and Excavation Business Input 3.7 Requests were submitted that the By-law should be carefully tailored to eliminate the potential for unforeseen and unintended application of exemptions. 3.8 Additional comments were provided to suggest that at the completion of the site alteration work, the source site should receive a final inspection to confirm compliance with the approved Grading Plan provided with the permit. Other Input 3.9 Regulation of site alteration commonly involves cooperation with the conservation authority, especially when the area affected is also regulated under the Conservation Authorities Act. Staff have therefore consulted with and received input from CLOCA to ensure that their specific concerns are addressed. 4. Proposed By-law Changes 4.1 The objectives of the proposed By-law are:  to protect the environment;  to recognize the Municipality’s responsibility to support responsible development;  to recognize a landowner’s right to alter land to prepare it for development;  to protect the natural environment and human health;  to align Municipal requirements with the Provincial excess soil regulations and industry best practices;  to limit adverse impacts to the local community and to Municipal infrastructure; and  to effectively monitor and enforce its provisions and to achieved high levels of compliance. Municipality of Clarington Page 6 Report LGS-016-24 4.2 Below is a summary of the key proposed changes to the By-law, based on the needs identified by Staff, together with the input received during the consultation process. 4.3 The Ontario government introduced Ontario Regulation 406/19 On-Site and Excess Soil Management to reduce the amount of soil going into landfills and to further regulate excess soil management. The regulation includes new requirements for documentation and soil tracking. Consistent with the regulation, the proposed By-law requires that a Qualified Professional certify the application to confirm that it meets all conditions set forth in the regulation for on-site and excess soil management. 4.4 Another key provision is the elimination of the blanket exemption from the permit requirement for site alteration in connection with the issuance of a building permit. The proposed By-law provides for a much more scoped opportunity for exemption at the discretion of the Deputy CAO/Planning and Infrastructure Services, which will curtail any opportunity for abuse. 4.5 The blanket exemption for contractor’s yards has also been eliminated in favour of a more tailored approach. 4.6 The proposed By-law introduces additional limits on temporary stockpiles of fill to ensure that they do not become excessive. 4.7 Much more detail has been included in the proposed By-law to enhance and clarify the permit application requirements and owners’ responsibilities. This will provide for much greater control and certainty about permitted site alteration activiti es, including more fulsome background information, and avoidance of disturbances to the surrounding community. 4.8 The proposed By-law would introduce a limited ability to permit the importation of topsoil or fill from source sites outside of Clarington in circumstances where a local source is not available. All imported material would be subject to stringent screening requirements. 4.9 The proposed By-law provides for increased permit fees and tipping fees to provide a measure of cost recovery for Staff time involved in the permitting and enforcement aspects of the regulation. 5. Enhancements to Enforcement 5.1 An important component of the effectiveness of regulation is an appropriate financial deterrent in the form of fines. Municipality of Clarington Page 7 Report LGS-016-24 5.2 Important concerns were expressed by members of the public that the fine amounts in the current by-law may not adequately reflect the severity of some of the more serious offences. 5.3 To reassure Council and residents that the fine amounts will be proportionate, Staff can indicate that the new by-law has been updated to include the maximum permissible fine amounts under the Provincial Offences Act. While every offence will warrant the maximum penalty, it is important that the Municipality have this option available for the worst offenders. 5.4 Issuance of fines can be a cumbersome task, which in some cases requires Court approval. As a result, enforcement can sometimes be delayed due to these requirements. To curb the effect of delays, Staff have also included a provision for set fines in the new by-law. Set fines are pre-determined fine amounts that are authorized in advance by the Ministry of the Attorney General. The introduction of set fines will simplify the process for Municipal Law Enforcement Officers to issue notices of offence, and Staff are optimistic that this will create a greater deterrence against illegal activity. 6.Public Awareness 6.1 During the public consultation process, the Municipality received valuable input on the need for publicity surrounding the new by-law. 6.2 Staff routinely discuss site alteration regulations with the Agricultural Advisory Committee, but further efforts may be needed to raise awareness outside of the agricultural community. 6.3 To enhance this awareness, Staff are proposing to include messages about site alteration in the Municipal Law Enforcement communications plan that is currently under development. 6.4 It is further proposed that as part of our communications, Staff would advertise a “tip line” that residents can call to report suspicious activity related to the importation or removal of fill material. In this way we would hope to encourage residents to contact the Municipality when they witness unusual activity, and to simplify the process for doing so. Municipality of Clarington Page 8 Report LGS-016-24 7. Financial Considerations The revenue implications of the proposed By-law have been discussed with Financial Services Staff who are supportive of the changes. Additional accounting updates have been made to enhance reporting ability on site alteration activities in the Municipality. 8. Concurrence This report has been reviewed by the Director of Planning and Infrastructure Services who concurs with the recommendations. 9. Conclusion It is respectfully recommended that Council approve the proposed new Site Alteration By-law attached to this report, to better position the Municipality to effectively respond to the growing challenges associated with the regulation of site alteration. Staff Contact: Rob Maciver, Deputy CAO/Solicitor, 905-623-3379 or rmaciver@clarington.net. Attachments: Attachment 1 – Public Consultation Comment Matrix Attachment 2 – Draft Site Alteration By-law Interested Parties: The following interested parties will be notified of Council's decision: List of Interested Parties available from Department. #Source Comment Response Change required 1 The presentation mentioned exceptions to not allowing fill from outside Clarington. I still think there should be no exceptions. But if necessary the exception should be severely monitored and controlled. And the penalty for exceeding the exception should be very severe. I'm not sure that Clarington can effectively manage an exception given it is unable to monitor/police what's going on today. Why allow an exception that can't be controlled? Just asking for trouble. Current regulations require the movement of fill be uploaded on the registry and the Municipality will be requiring electronic tracking system.Acknowledged. Will be addressed in by-law update. You need to advertise that this by-law exists and its purpose. I didn't know about it before. There are many important by-laws in Clarington - maybe look at including a brief summary of a different by-law each time a tax bill is sent out. Everyone reads their tax bill. Acknowledged - Develop Communication Plan How do you determine if someone is moving fill without a permit? This would include getting a permit but moving more or different fill than permitted. Perhaps offer a small reward upon conviction.... maybe free admission to something The Municipality relies on residents to report movement of fill, typical for any by-law. Staff follow up when they witness movement. The fines should be aligned with how much fill has been moved and is it a company or an individual..or both. Fines will continue to be assessed in accordance with the severity of the violation, however the addition of set fines will allow officers to issue immediate offense notices in appropriate circumstances Monitoring is going to be tough...particularly with gravel pits as it might be easy to "hide" fill deep in the pit The Municipality will need to be vigilent in order to detect illegal filling before it causes environmental damage Will this bylaw use RPRA to assist in tracking and monitoring?Acknowledged. Will be addressed in by-law update. Also publicize Clarington's target to complete the permitting The By-law will updated in 2024. 2 The qualified person 1) needs to be unbiased 2) should not be on the contractor’s payroll but provided by an outside agency paid for by the applicant 3) strict instructions on how often soil and water are tested (What goes into the soil is reflected in our water. If our water becomes contaminated it is next to impossible to remediate) 4) immediate stop if any contaminated soil is found and removal of that soil to a proper site for remediation 5) astronomically high fines for bringing any contaminated soil into Clarington. We are talking about peoples’ lives being affected for generations if our soil and water are not kept clean The QP will meet the requirements of the Regulation. qualified person” means, (a) subject to clause (b), a qualified person within the meaning of section 5 of Ontario Regulation 153/04, and (b) for the purposes of subsections 5 (2) to (5), 6 (4), paragraph 7 of subsection 19 (4), section 20 and section 13 of Schedule 1, a qualified person within the meaning of section 5 or 6 of Ontario Regulation 153/04; (“personne compétente”) Acknowledged. Will be addressed in by-law update. 3 At this time soil moved in Clarington needs to originate in Clarington. If this is changed the Municipality will need to be even more diligent in monitoring where the soil is coming from. This requires enforcement that happens immediately when a concern is raised. Perhaps expanding it to originate only in Durham Region. We need to make sure soil being moved from another jurisdiction’s dumpsite is not dumped in Clarington. This is what happened with the Morgans Road large fill site. This soil came from Front Street in Toronto. This should never, ever happen again. Current regulations require the movement of fill be uploaded on the registry and the Municipality will be requiring electronic tracking system.Acknowlegded. Will be addressed in by-law update. 4 There was talk of exemptions. But no clear picture on how this would work, who qualities, what amount of soil would be allowed. Exemptions will be fully articulated when the by-law is drafted Acknowlegded. Will be addressed in by-law update. 5 At this time when a complaint is made through the online procedure there is no guarantee that some one is going to attend to this matter immediately. How is this going to be addressed? How are complaints going to be dealt with during off hours i.e. weekends, after 5 p.m. and late at night. By-law complaints are investigated in priority to the risks posed to safety and human health. Site alteration complaints receive high priorty for response. If illegal filling is suspected outside of regular hours, officers will be placed on duty to investigate and respond. 6 Fines for illegal dumping need to extremely high as hauling fill is a very, very lucrative business and unless the fines are high, contractors just eat the cost of the fine and carry on. Fine amounts are not insignificant, and it is also open to the Municipality to pursue restoration of the property. Acknowlegded. Will be addressed in by-law update. 7 Hauling schedules and routes need to be clearly outlined and adhered to by the applicant. Also, the number of trucks per hour, day, start and end times. Things like dust and noise (tailgate banging) need to be kept at a Minium. These concerns will be addressed under the requirement for a Fill Control Plan Acknowlegded. Will be addressed in by-law update. 11 The trucks doing the hauling need to be road worthy and all drivers qualified. I realize this does not fall under the Municipalities jurisdiction but it cannot hurt for it to be known that Clarington will request random inspections. This issue is governed by the Highway Traffic Act. 12 The source site and destination site need to closely monitored. If fill is coming from a remediation site documentation of where this soil was removed from in the first place and how long it had been on site for remediation before being trucked to its final destination. Currently required under the MECP for brownfield sites. Contaminated fill must be directed to an appropriate disposal site outside of Clarington. Attachment 1 to Report LGS-016-24 13 Tipping fees need to be consistent with neighbouring communities.Acknowlegded. Will be addressed in by-law update. 14 Grading to the plan presented with the original application must be fulfilled. Consider a reimbursable fee that is returned once the grading is completed and inspected and signed off by a qualified inspector. This fee needs to high enough that if the grading has not been done as planned then Clarington can hire the necessary people to do this grading and pay for it out of these funds. Acknowlegded. Will be addressed in by-law update. 16 This note is with regard to the proposed revisions to Clarington’s Site Alteration By-Law. In addition to the refinements being considered we feel it is important that additional measures be incorporated which allows for the pre-servicing of development sites in advance of having a final subdivision / site plan agreement. This has been common practice in many municipalities which is most beneficial in servicing sites in a timely manner bringing more housing supply to the marketplace. It would be understood that this option would have requirements related to securities, level of engineering approval etc., however, given the significant amount of restrictions governing the construction period and the challenges of dealing with weather conditions the ability to be more flexible and allow servicing to proceed sooner has far reaching positive benefits. I anticipate that this request will be given careful consideration and I would be pleased to discuss at your convenience Issues of pre-servicing are regulated within the context of land development legislation and by-laws, and are not wthin the scope of the proposed Site Alteration By-law. 17 18 Item 1.3 (a) – I think this wording needs to be reviewed by an environmental consultant, my understanding was that based on the new regs soil movement was to be easier and new tables were introduced to facilitate this. This would be the responsibility of the QP to determine that the Regulation is being adhered to and provide supporting documentation. Acknowlegded. Will be addressed in by-law update. 19 Item 1.9.1 – Would the municipality consider including the volume that considers a large fill operation?Most tipping fees to not apply to development sites. 20 Item 5.2 (b) – would the municipality consider removing the $1 cu.m fee for large fill operations? What is the intent of this? It is proposed that fees would increase, not decrease. Appropriate exemptions are provided for large scale development related activity. 21 22 What a surprise to learn that this bylaw, protecting our land from the contaminated soil from outside the municipality, is undergoing amendment. Why is this amendment even being considered? The current bylaw was fought for long and hard and has served us well. How is this amendment even close to being consistent with a municipal approach to greener living? I have read the various feedback articles, but I still feel the best approach is to just say NO To this proposal To increased truck travel on our roads, To risking the health and safety of our citizens To the import of contaminated material To the noise and air pollution To jeopardizing the health of our soil and water Municipalities outside Clarington need to take responsibility for their own contaminated landfill. Just say NO The by-law requires updating to meet the current regulations and strengthen the ability of enforcement, to require electronic tracking, and to ensure the material is coming from the source site outlined in the permit. Saying no to this update will compromise the Municipality's ability to respond to the challenges of illegal filling. 23 Attachment 2 to Report LGS-016-24 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NUMBER 2024-XXX Being a by-law to regulate the placing or dumping of fill, removal of topsoil, and the alteration of the grade of land WHEREAS subsection 142(2) of the Municipal Act, 2001, S.O. 2001, c.25, as amended, authorizes the Municipality of Clarington to prohibit or regulate the placing or dumping of fill, the removal of topsoil, or the alteration of the grade of land; AND WHEREAS subsection 142(2) of the Municipal Act, 2001, S.O. 2001, c.25, as amended, further authorizes the Municipality of Clarington to require that a permit be obtained for the placing or dumping of fill, the removal of topsoil, or the alteration of the grade of land; AND WHEREAS the Municipal Council has adopted the recommendations contained in staff report LGS-XXX-XX; NOW THEREFORE the Council of the Corporation of the Municipality of Clarington enacts as follows: DEFINITIONS 1. In this By-law: “Adversely Effect” has a meaning that includes, but is not limited to: a) impairment of the quality of the natural environment for any use that can be made of it; b) injury or damage to Property or to plant or animal life; c) harm or material discomfort to any person; d) detriment to human health; e) impairment of the safety of any person; f) rendering any Property or plant or animal life unfit for human use; g) loss of enjoyment of normal use of Property; or h) interference with the normal conduct of business; Attachment 2 to Report LGS-016-24 “Aggregate" means a collective term for the mineral materials such as sand, gravel and crushed stone that can be used with a binding medium to form compounds such as concrete; “Applicant” means the Owner of a Property and includes a Person authorized in writing to act on behalf of the Owner to apply for a Permit; "Application" means a written submission to request or amend a Permit; “Chief Building Official” means the Chief Building Official appointed by the Municipality under the Building Code Act, 1992; “Compost” means a mixture of various decaying organic substances such as dead leaves or manure; “Condition(s)” means the mandatory performance requirements outlined in a Permit or Order and may include the requirement for monetary deposits or securities in connection with the Application; “Conservation Authority” means the Central Lake Ontario Conservation Authority, the Ganaraska Region Conservation Authority, the Kawartha Lakes Conservation Authority, or the Otonabee Region Conservation Authority as the context requires; “Contamination” means any substance or material in a concentration that exceeds the limits established under any applicable legislation; “Deputy CAO” means the Deputy CAO of Planning and Infrastructure Services for the Municipality, or designate, or equivalent; “Dump" means activity that includes, but is not limited to, stripping, removing, moving, transporting, importing, exporting or placing of any Fill or Topsoil into, out of or upon lands within any single or adjacent properties within the Municipality; “Enforcement Officer” means an individual whose duties include the enforcement of this By-law; "Fill" means any type of material removed from or Placed on lands and includes, but is not limited to: a) Aggregate; b) concrete; c) Compost; Attachment 2 to Report LGS-016-24 d) Flock; e) sod; or f) Soil; "Finished Grade" means the elevation of the ground surface of land upon which Fill has been Placed or Dumped or after alteration of the Grade has occurred; “Flock" means an aggregation of one or more naturally occurring minerals that is 2 millimetres or larger in size or that does not permeate the US No. 10 sieve; "Grade" means the elevation of an existing ground surface, except where the Placing or Dumping of Fill or the alteration of the then existing ground surface has occurred in contravention of this By-law in which case Grade means the elevation of the ground surface as it existed prior to the occurrence of such Placing or Dumping of Fill on or alteration of the existing ground surface; “Guidelines” means the Application, supporting documentation and Conditions applicable to a Permit, as determined by the Deputy CAO, to be used for the purpose of administrating this By-Iaw; “Inspector'' means the Deputy CAO, or an Enforcement Officer; “Large Fill Operation” means an operation that involves Placing, Dumping, or removing more than 500 cubic metres of Fill; “Liquid Soil” means Soil that has a slump of more than 150 millimetres using the Test Method for the Determination of “Liquid Waste" (slump test) set out in Schedule 9 of the Waste Management Regulation, R.R.O. 1990, Reg. 347; “Minor Fill Operation” means an operation that involves Placing, Dumping, or removing less than 100 cubic metres of Fill; “Municipality” means The Corporation of the Municipality of Clarington, or its geographical area, as the context requires; “Owner” means the registered owner of a Property; “Permit” means a formal written authorization issued by the Municipality pursuant to this By-law; “Person” means an individual or a corporation; Attachment 2 to Report LGS-016-24 "Place" means the distribution of Fill on lands to establish a Finished Grade higher or lower than the Existing Grade and “Placement”, "Placing", and "Placed" in relation to Fill have the same meaning; “Property” means land including any building or structures appurtenant thereto; “Proposed Grade” means the proposed elevation of the ground surface of land upon which any Fill is proposed to be Placed; “Qualified Person” has the same meaning as found in the Ontario Environmental Protection Act, R.S.O. 1990, c. E.19; “Retaining Wall” means a wall designed to contain and support Fill which has a Finished Grade higher or lower than that of adjacent lands; “Site Alteration” means alteration of the existing Grade of a Property through the removal, Placement, relocation, or movement of Fill; “Small Fill Operation” means an operation that involves Placing, Dumping or removing between 100 and 500 cubic metres of Fill; "Soil" means unconsolidated naturally occurring mineral particles and other naturally occurring materials resulting from the natural breakdown of rock or organic matter by physical, chemical or biological processes that are smaller than 2 millimetres in size or that permeate the US No. 10 sieve; “Swale" means a shallow depression in the ground sloping to a place for disposal for the purpose of providing a method of drainage of surface water; “Topsoil” means those horizons in a Soil profile, commonly known as the "O" and the "A" horizons, containing organic material and includes deposits of partially decomposed organic matter such as peat; “User Fee By-law” means the Clarington User Fee By-law 2023-044, as amended, or its successor; “Watercourse” means a natural or man-made channel or swale in which a flow of water occurs, either continuously or intermittently with some degree of regularity; and "Zoning By-law" means any applicable by-law passed by the Municipality pursuant to section 34 of the Planning Act. Attachment 2 to Report LGS-016-24 APPLICATION 2. This By-law applies to all Property within the geographical boundaries of the Municipality, unless otherwise specified in this By-law. PROHIBITIONS 3. No Person shall Place or Dump Fill or Topsoil, or cause or permit Fill or Topsoil to be Placed or Dumped, except in accordance with a Permit issued under this By-law. 4. No Person shall Place or Dump Fill or Topsoil, or cause or permit Fill or Topsoil to be Placed or Dumped, if the Fill or Topsoil originates from outside the boundaries of the Municipality, except in accordance with a Permit issued under this By-law that expressly provides for the importation of such Fill or Topsoil. 5. No Person shall remove Soil, or cause or permit the removal of Soil, except in accordance with a Permit issued under this By-law. 6. No Person shall make an alteration to the Grade of land, or cause or permit the alteration to the Grade of land, except in accordance with a Permit issued under this By-law. 7. No Person shall fail to comply with the terms and conditions of a Permit. EXEMPTIONS 8. This By-law does not apply to: (a) activities or matters undertaken by the Municipality or a local board of the Municipality; (b) the Placing or Dumping of Fill, removal of Topsoil, or alteration of the Grade of land imposed after December 31, 2002 as a condition to the approval of a site plan, a plan of subdivision or a consent under section 41, 51, or 53 respectively, of the Planning Act or as a requirement of a site plan agreement or a subdivision agreement executed and in good standing entered into under those sections; (c) the Placing or Dumping of Fill, removal of Topsoil, or alteration of the Grade of land imposed after December 31, 2002 as a condition to a development permit authorized by regulation made under section 70.2 of the Planning Act or as a requirement of an agreement entered into under that regulation; (d) the Placing or Dumping of Fill, removal of Topsoil, or alteration of the Grade of land undertaken by transmitter or distributor, as those terms are defined in Attachment 2 to Report LGS-016-24 section 2 of the Electricity Act, 1998, for the purpose of constructing and maintaining a transmission system or a distribution system, as those terms are defined in that section; (e) the Placing or Dumping of Fill, removal of Topsoil, or alteration of the Grade of land undertaken on land described in a license for a pit or quarry or a permit for a wayside pit or wayside quarry issued under the Aggregate Resources Act; (f) the Placing or Dumping of Fill, removal of Topsoil, or alteration of the Grade of land undertaken on land in order to lawfully establish and ope rate or enlarge any pit or quarry on land, (i) that has not been designated under the Aggregate Resources Act or a predecessor of that Act, and (ii) on which a pit or quarry is a permitted land use under a by-law passed under section 34 of the Planning Act; (g) the Placing or Dumping of Fill, removal of Topsoil, or alteration of the Grade of land undertaken as an incidental part of drain construction under the Drainage Act or the Tile Drainage Act; (h) the Placing or Dumping of Fill, removal of Topsoil, or alteration of the Grade of land undertaken in accordance with an order issued pursuant to the Municipality's Property Standards By-law; (i) the Placing or Dumping of Fill, removal of Topsoil, or alteration of the Grade of land undertaken for the purpose of lawn dressing, landscaping, adding to flower beds or vegetable gardens, provided that: (i) there is no change in the location, direction, or elevation of any natural or artificial watercourse, open channel, Swale or ditch used to drain land; and (ii) the functionality of any drainage infrastructure is not impeded; 9. Notwithstanding any other provision of the By-law, the Deputy CAO may, in their sole discretion, exempt an Applicant/Owner from the requirement for a Permit if there is a concurrent building permit application for the same Property, and if they are satisfied that the objectives of this By-law would not be unduly compromised; Attachment 2 to Report LGS-016-24 10. Notwithstanding any other provision of this By-law, the temporary storage of Fill at business locations such as a garden center, contractors’ yard, aggregate distribution yard, or Fill storage yard, or similar facility may be exempted from the requirement for a Permit at the sole discretion of the Deputy CAO provided the following conditions are satisfied: (a) the exemption is in writing from the Deputy CAO, which exemption may at any time be revoked by the Deputy CAO, acting reasonably; (b) there are no Adverse Effects; (c) the business is authorized pursuant to the relevant zoning regulations; (d) there is no permanent alteration to the existing Grade; (e) the period of temporary storage is reasonable in relation to the business activities; (f) regular movement of Fill is actively occurring; (g) Soil is not being processed on site; (h) the Fill is not comprised of Liquid Soil; (i) the activities comply with Ontario Regulation 406/19 On -Site and Excess Soil Management; (j) A site plan is provided that illustrates storage pile locations, type of material, and volumes; and (k) Storage piles do not exceed 4 metres in height. 11. This By-law does not apply to the removal of Topsoil as an incidental part of a normal agricultural practice including such removal as an incidental part of sod- farming, greenhouse operations, and nurseries for horticultural products provided it does not include the removal of Topsoil for sale, exchange or other disposition. DELEGATION 12. The Deputy CAO is authorized to approve all policies, procedures, forms and other documents and to make such decisions and approvals, and to exercise such discretion on behalf of the Municipality as necessary to administer this By- law. Attachment 2 to Report LGS-016-24 PERMITS 13. An Owner, or an authorized agent for an Owner, may apply to the Municipality for a Permit for activities that would otherwise be prohibited by this By-law by submitting a completed Application in a form required by the Deputy CAO. 14. An Applicant for a Permit under this By-law is subject to the fees contained in the User Fee By-law. The Deputy CAO is authorized to waive the fees if, in their sole discretion, it is appropriate and in the public interest to do so. 15. In addition to any other requirement of this By-law, the Deputy CAO may require an Applicant to submit with an Application, any information, or materials reasonably required to evaluate the Application, including but not limited to: (a) details of the Proposed Grade and drainage system to be used upon completion of the work; (b) a description of the proposed Fill, including its source location; (c) geotechnical reports as to content and quality of the proposed Fill, prepared and certified by a Qualified Person in compliance with the requirements of Ontario Regulation 406/19 On-Site and Excess Soil Management; (d) a written statement from a Qualified Person certifying that the Fill contains no Contamination; (e) such other studies and reports as are necessary to properly assess the application, including studies and reports required under the Clarington Official Plan and the Oak Ridges Moraine Conservation Plan, and fees to cover the peer review of such studies and reports; (f) details as to the species, Grade at base, height, and diameter, of any shrubs, trees and hedges in the vicinity of the subject Property together with a tree preservation plan; (g) an identification and description of any natural heritage features, hydrologically sensitive features, or related vegetation protection zones, or lands designated as Environmental Protection situated on the subject Property; (h) proof of Conservation Authority approval, if applicable; (i) a plan showing the design details to proper scale of any Retaining Wall that may be required and the dimensions of any materials to be used in construction of such Retaining Wall; or Attachment 2 to Report LGS-016-24 (j) financial security in an amount reasonably required to ensure the Site Alteration and all work required as a condition of Permit issuance including erosion and sediment control, signage, mud cleanup, dust control and road damage, is undertaken in accordance with the requirements of the Permit. 16. In addition to any other requirement of this By-law, the Deputy CAO may require an Applicant to submit a Fill control plan that is satisfactory to the Deputy CAO and that shall include, but not necessarily be limited to, the following: (a) a key map showing the location of the proposed work, including the nearest major intersection and north arrow; (b) the area and dimensions of the subject Property; (c) information to confirm the existing and proposed land uses of the subject Property, and the location and use of buildings and other structures on the subject property or an adjacent property; (d) the location, dimensions and use of any building and other structures existing or proposed to be erected on the subject Property; (e) the location of any lakes, streams, wetlands, channels, ditches, or other watercourses or bodies of water situated on or near the subject Property; (f) information to confirm the location of any areas regulated under the Conservation Authorities Act; (g) the location and identification of the predominant existing Soil types in the vicinity of the subject Property; (h) the location and dimensions of any existing and proposed storm water drainage systems and natural drainage patterns in the vicinity of the subject Property; (i) the location and dimensions of utilities, structures, roads, highways and paving located in the vicinity of the subject Property; (j) the existing topography in the vicinity of the subject Property; (k) details of the Proposed Grade; (l) the location and dimensions of all proposed land disturbance activities, including construction of access roads; Attachment 2 to Report LGS-016-24 (m)the location, dimensions, design details and design calculations of all construction site erosion control measures that may be necessary to minimize the impact of the proposal; (n) the anticipated starting and completion dates of each land disturbance or land development activity; (o) provisions for the maintenance of the construction site, erosion control, vegetation retention or restoration, and dust control measures during and after construction, as required; (p) a plan of proposed external haul routes and daily schedule for hauling, including a plan showing signage; (q) the scale of drawing, ranging from 1:250 to 1:1000 as deemed appropriate (each drawing control plan to be in metres); (r) an indication on the drawing of directions of overland water flow and overland flow route; or (s) any information, plans or studies required by Ontario Regulation 140/02. 17. For greater clarity, the Deputy CAO shall refuse any Application in any of the following circumstances: (a) the Owner of the subject Property has not consented in writing to the Placing or Dumping of Fill or to the removal of Topsoil or to alteration of the Grade; (b) the Placing or Dumping of Fill is in contravention of any Federal, Provincial or Municipal laws, by-laws, notices, regulations, permits or agreements; (c) the Placing or Dumping of Fill or alteration of the Grade will result in a change to any Grade established by a grading and drainage plan approved by the Deputy CAO including, without limitation, a grading and drainage plan in relation to any subdivision, re-zoning, site plan or building permit approval; (d) where reasonable grounds exist to believe that the work would result in any Adverse Effects, including any possible negative impact to Municipal pavement, ditches, culverts, sidewalks, facilities or other infrastructure or services; or (e) the Fill includes demolition materials, toxic or hazardous materials, glass, raw sewage, Contamination, or construction refuse or debris. Attachment 2 to Report LGS-016-24 18. An Application may be deemed abandoned and closed in the sole discretion of the Deputy CAO, if within 90 days from the date it was submitted to the Municipality, the Applicant has failed to provide any required information or materials. 19. A Permit shall expire 90 days after the day on which it is issued pursuant to this By-law, unless otherwise specified within a Permit. 20. A Permit may be renewed at any time prior to its expiry for an additional 90 day period subject to payment of the renewal fee in accordance with the User Fee By-law, provided that no other details of the Application are modified. 21. The Deputy CAO has the discretion to revoke a Permit in circumstances in which they deem it to be appropriate, including but not limited to: (a) a Permit obtained on mistaken, false or incorrect information; (b) a Permit issued in error; (c) a request for revocation in writing from the Applicant; or (d) non-compliance with any terms or conditions of the Permit or of this By- law. 22. The Deputy CAO may attach to any Permit such terms and conditions as considered by the Deputy CAO to be necessary and appropriate. 23. Without limiting the generality of other Sections of this By-law, as a condition of issuing a Permit, the Deputy CAO may, in their sole discretion, require an Applicant to enter into an agreement with the Municipality to ensure that the Site Alteration is done in accordance with the objectives of this By-law, and the Deputy CAO is authorized to execute such agreements on behalf of the Municipality. ENFORCEMENT 24. Where any Person contravenes any provision of this By-law, an Enforcement Officer may direct such Person to comply with this By-law and every Person so directed shall comply with such direction without delay. 25. Where an Enforcement Officer has reasonable grounds to believe that an offence has been committed by a Person, the Enforcement Officer may require the name, address, and proof of identity of that Person, and the Person shall s upply the required information. Attachment 2 to Report LGS-016-24 26. If an Enforcement Officer is satisfied that a contravention of this By-law has occurred, the Enforcement Officer may make an order requiring the person who contravened the By-law or who caused or permitted the contravention or the owner or occupier of the land on which the contravention occurred to discontinue the contravening activity, and any person who contravenes an order under this section is guilty of an offence. 27. If an Enforcement Officer is satisfied that a contravention of this By-law has occurred, the Enforcement Officer may make an order requiring the person who contravened the By-law or who caused or permitted the contravention or the owner or occupier of the land on which the contravention occurred to do work to correct the contravention, and any person who contravenes an order under this section is guilty of an offence. 28. An order may be served; (a) personally to whom it is directed; (b) by regular mail to the last known address of the Person; (c) by registered mail to the last known address of the Person; or (d) by placarding the Order at the pertinent Property. 29. If an order is served personally or by way of placarding at the Property, service is deemed to have occurred on the date of the personal service or the placarding. 30. If an order is served via regular or registered mail service is deemed to have occurred 3 business days after the day it was sent. 31. No Person shall fail to comply with an order issued under this By-law. 32. If a Person is directed or required by the Municipality to do a matter or thing pursuant to the authority of this By-law, in default of it being done by the Person directed or required to do it, the matter or thing shall be done at the Person’s expense. PRESUMPTION 33. W here any Site Alteration occurs, is undertaken, caused or permitted on any Property, the Owner of the Property is presumed to have undertaken, caused, or permitted the Site Alteration to occur, which presumption may be rebutted by evidence to the contrary on a balance of probabilities. Attachment 2 to Report LGS-016-24 POWERS OF ENTRY 34. An Enforcement Officer, whether alone or accompanied by an individual possessing special or expert knowledge or skills, may enter on land that is subject to this By-law at any reasonable time for the purpose of carrying out an inspection to determine whether or not the following are being complied with: (a) this By-law; (b) a direction or order of the Municipality made under the Municipal Act, 2001, S.O. 2001, c. 25 or this By-law; or (c) an order made under section 431 of the Municipal Act, 2001, S.O. 2001, c. 25. 35. For the purposes of an inspection under this By-law, an Inspector may: (a) require the production for inspection of documents or things relevant to the inspection; (b) inspect and remove documents or things relevant to the inspection for the purpose of making copies or extracts; (c) require information from any person concerning a matter related to the inspection; and (d) alone or in conjunction with a person possessing special or expert knowledge, make examinations or take tests, samples or photographs necessary for the purposes of the inspection. 36. In addition to any other provision of this By-law, and subject to the provisions of the Municipal Act, 2001, S.O. 2001, c. 25, a provincial judge or justice of the peace may issue an order authorizing the Municipality to enter on land, including a room or place actually being used as a dwelling, for the purpose of carrying out an inspection to determine whether or not the following are being complied with: (a) this By-law; (b) a direction or order of the Municipality made under the Municipal Act, 2001, S.O. 2001, c. 25 or this By-law; or (c) an order made under section 431 of the Municipal Act, 2001, S.O. 2001, c. 25. Attachment 2 to Report LGS-016-24 OBSTRUCTION 37. No person shall hinder or obstruct, nor attempt to hinder or obstruct, either directly or indirectly, an Enforcement Officer, employee and/or agent of the Municipality in the lawful exercise of a power or duty under this by-law. OFFENCES 38. Every person who contravenes any provision of this By-law is guilty of an offence and upon conviction is liable to a fine as provided for by the Provincial Offences Act, R.S.O. 1990, Chapter P.33, as amended. 39. Pursuant to the authority established in section 429(2) of the Municipal Act, 2001, S.O. 2001, c. 25, every person who contravenes any provision of this By-law is guilty of an offence and upon conviction pursuant to Part III of the Provincial Offences Act, R.S.O. 1990, Chapter P.33, as amended, shall be subject to the following penalties: (a) Upon a first conviction is liable to a fine of not more than $25,000; and (b) Upon subsequent conviction(s) is liable to a fine of not more than $100,000. 40. Each day on which a person contravenes any provision of this By-law shall be deemed to constitute a separate offence under this bylaw as provided for in section 429(2) of the Municipal Act, S.O. 2001, c. 25. 41. If any Person is in contravention of any provision of this By-law, and the contravention has not been corrected, the contravention of the provision shall be deemed to be a continuing offence for each day or part of a day that the contravention remains uncorrected. 42. Where any Person contravenes any provision of this By-law, such Person shall be responsible for all costs incurred by the Municipality directly related to the contravention. SEVERABILITY 43. If any section or sections of this By-law, or parts thereof are found by any court of competent jurisdiction to be illegal or beyond the power of the Municipal Council to enact, such section or sections or parts thereof shall be deemed to be severable from this By-law and all remaining sections or parts of this By-law shall be deemed to be separate and independent therefrom and to be properly enacted and to be of full force and effect. Attachment 2 to Report LGS-016-24 CONFLICT 44. In the event of a conflict between any provision of this By-law and any applicable Act or regulation, the provision that is the most restrictive prevails. SCHEDULES 45. The following Schedules are attached to and form an integral part of this By-law: Schedule “A” – Set Fines SHORT TITLE 46. This By-law may be referred to as the “Site Alteration By-law”. REPEAL 47. By-law 2008-114, as amended, is repealed on the date this By-law comes into force and effect. EFFECTIVE DATE 48. This By-law shall come into force and take effect on the date it is enacted. Passed in Open Session this day of , 2024 _________________________ Mayor Adrian Foster ________________________ June Gallagher Municipal Clerk Attachment 2 to Report LGS-016-24 Schedule “A” – Set Fines Attachment 2 to Report LGS-016-24 Municipality of Clarington PART I Provincial Offences Act By-law #2024-XXX: Site Alteration By-law Page 1 of 1 Item Column 1 Short Form Wording Column 2 Provision creating or defining Offence Column 3 Set Fine 1 Place or Dump Fill/Topsoil not in accordance with a Permit s. 3. $ 500.00 2 Cause or permit Fill/Topsoil to be Placed or Dumped not in accordance with a Permit s. 3. $ 500.00 3 Place or Dump Fill/Topsoil originating from outside the boundaries of the Municipality not in accordance with a Permit s. 4. $ 500.00 4 Cause or permit Fill/Topsoil to be Placed or Dumped originating from outside the boundaries of the Municipality not in accordance with a Permit s. 4. $ 500.00 5 Remove Soil not in accordance with a Permit s. 5. $ 500.00 6 Cause or permit the removal of Soil not in accordance with a Permit s. 5. $ 500.00 7 Make alteration to the Grade of land not in accordance with a Permit s. 6. $ 500.00 8 Cause or permit alteration to the Grade of land not in accordance with a Permit s. 6. $ 500.00 9 Fail to comply with terms and conditions of a Permit s. 7. $ 500.00 10 Fail to comply with order s. 31. $ 500.00 11 Hinder or obstruct/Attempt to Hinder or obstruct Enforcement Officer/employee/agent s. 37. $ 500.00 “NOTE: The general penalty provision for the offences listed above is section 38 of By-law 2024-XX, a certified copy of which has been filed.”