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HomeMy WebLinkAboutPD-151-93 UNFINISHED BUSINESS THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON DN: SOIL.GPA UPO Meetirig General Purpose and Administration Committee File l. Date Monday, November 1, 1993 Ftes ;P f ieport fi PD-151-93-_ Bile t� PLN 17. 16 By-km, 1 ______ `oubleet TOPSOIL REMOVAL Recommendations: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report PD-151-93 be received; 2 . THAT due to numerous exemptions within the Topsoil Preservation Act and the difficulty of enforcing a Topsoil Removal By-law, a Topsoil Removal By-law not be passed. 1 BACKGROUND 1. 1 In the past, incidents have occurred where topsoil was removed from private lands. Lands that have had topsoil removed cannot be used for agricultural purposes as the fertile portions of the soil have been stripped away. Removal of topsoil results in the elimination of vegetation and ground cover exposing the surface to the erosional processes of wind and water. 1. 2 Presently there is no by-law in place whereby this Municipality can regulate the removal of topsoil. On February 8, 1993 , this issue was raised by Council and the following resolution was endorsed requesting staff to: "investigate and report to the General Purpose and Administration Committee on the implementation of a by-law to regulate topsoil removal in rural areas. " Since that time, Staff have reviewed the "Topsoil Preservation Act" and gathered information from a number of municipalities which have passed Topsoil Removal by-laws. These municipalities have included the City of Mississauga, City of Waterloo, Town of Innisfil, Town mi i irru ute«ruiuireo-n REPORT NO. PD-151-93 PAGE 2 of Aurora, and Township of Manvers. However, none of the municipalities within the Region of Durham has passed a Topsoil Removal By-law under the provisions of this Act. Discussions have also been had with the Ministry of Agriculture and Food, who administers the "Topsoil Preservation Act" , whereby the merits and drawbacks of passing a topsoil removal by-law was discussed. 2 TOPSOIL PRESERVATION ACT 2 . 1 The legislative authority for regulating top soil removal is contained in the "Topsoil Preservation Act" . This Act would help to protect topsoil as a natural resource. In addition to providing the municipality the power to regulate or prohibit removal of topsoil, the Act also provides a municipality with the ability to issue permits for removal of topsoil and formulate standards and procedures for rehabilitation on lands where topsoil has been removed. 2 . 2 Notwithstanding the above, the Act provides numerous exemptions and in fact, the exemptions form the bulk of the Act. These exemptions include the following: • removal of topsoil as part of a normal agricultural practice including sod-farming, greenhouse operations and nurseries for horticultural products • removal of topsoil as part of drain construction under the "Drainage Act" or the "Tile Drainage Act" • removal of topsoil as part of an aggregate operation authorized under the "Aggregate Resources Act" • removal of topsoil by a Crown agency or Ontario Hydro • removal of topsoil by the Region • removal of topsoil as part of any construction under the "Ontario Energy Board Act" • removal of topsoil as part of construction of underground services where the topsoil is held for subsequent replacement . . . 3 57 REPORT NO. PD-151-93 PAGE 3 • removal of topsoil as part of the construction of a public highway • removal of topsoil where the quantity of topsoil removed in a lot does not, in any consecutive three-month period, exceed five cubic metres • if the by-law passed is inconsistent with the terms of any approval or agreement under the "Planning Act" • or if it would prevent the construction of any building, structure, driveway, loading or parking facilities permitted or required on a lot pursuant to; a by-law passed under Section 34 of the "Planning Act" an order made by the Minister of Municipal Affairs pursuant to Section 47 of the "Planning Act" 3. COMMENTS Staff have given a lot of thought to this matter and arrive at the conclusion that there are several difficulties related to the drafting and enforcement of a Topsoil Removal By-law. These difficulties are: 3 . 1 Content of By-law To the extent, the Topsoil Preservation Act provides numerous exemptions to certain types of land use activities, it may be necessary to identify in the by-law those lands that fall within the exemptions. To carry out such an exercise requires a significant amount of staff time to examine every rural land parcel within this 230 square miles municipality in order to generate an inventory of lands falling under the exemptions. Further, such an inventory must be updated regularly. Staff respectfully submit that the lack of available manpower and other priorities within the Planning Department have made it impossible for staff to take on this task at this time. Alternatively, the municipality could take a "quick-fix" approach by passing a topsoil removal by-law covering the entire . . . 4 528 REPORT NO. PD-151-93 PAGE 4 municipality with all exemptions specified as per the Act. Such an approach could leave the by-law vulnerable to challenge and pose subsequent problem in the determination of exemptions and enforcement. 3 . 2 Enforcement The issue of enforcement or the difficulty related thereof is the major reason that prompted staff not to recommend the passage of a Topsoil Removal By-law. In all instances, where a topsoil removal occurrence is reported, a detailed investigation must be carried out to determine whether or not the occurrence of topsoil removal falls within one of the exemptions provided for in the Topsoil Preservation Act. The burden of proof rests with the By-law Enforcement Officer who must examine each exemption to determine any by-law infraction. Due to the nature of the exemptions, proof of by-law infraction is difficult to establish. For example, if topsoil is stripped from a farm, the By-law Officer cannot lay charges immediately and must allow reasonable time to lapse after the occurrence just to make sure the topsoil is not removed under the exemptions provided. The obvious problem therefore, lies with the fact that topsoil removal is not necessarily an offence which can only be determined by a subsequent action after the occurrence of the incidence. This, plus the fact that there are so many exemptions provided for in the Act that one has to question how effective such a by-law would be. Of the Municipalities that have passed Topsoil Removal By-laws, they have apparently experienced several problems in the area of enforcement. For instance, one Municipality found they are having difficulties applying the by-law retroactive to those lands which were disturbed prior to the passage of a Topsoil Removal By-law. There were instances of interpretation problems related to the exemptions. At least one municipality has found it almost impossible to prove that topsoil was removed contrary to the by- law. Another concern stated was the length of time required for . . .5 5 �9 REPORT NO. PD-151-93 PAGE 5 investigation of each topsoil removal occurence since proof cannot be established immediately and this necessitates follow-up investigation. As of yet, none of the Municipalities that were contacted have had their by-laws challenged in Court or have prosecuted under the provisions of the By-law. As the Ministry of Agriculture and Food admits, contravention to a Topsoil Removal By-law is very difficult to prove as the "offender" could state that they were removing topsoil under any of the 11 exemptions identified within the "Topsoil Preservation Act" . As such, burden of proof becomes very difficult to resolve, resulting in exhausting staff resources and time investigating whether the exemptions apply. 3 . 3 Administration of By-law As the Act provides for the Municipality to also issue permits for topsoil removal as well as to provide regulations for rehabilitation, this requires staff time be dedicated to the overall administration of such a by-law. To take on this additional by-law would place extra workload to the By-law Enforcement Officers who can barely cope with the existing workload. 4 . CONCLUSION 4 . 1 Staff recognize that the stripping of topsoil is damaging to the environment but we are equally concerned that a Topsoil Removal By- law would not be effective due to the numerous exemptions within the "Topsoil Preservation Act" and the related difficulty in enforcement. The amount of Staff time required to prepare a proper by-law, administer and enforcement of such is also of concern. For the reasons stated in this Report, Staff respectfully recommend a Topsoil Removal By-law not be passed. 4 . 2 However, if Council decided to pass a Topsoil Removal By-law, direction should be provided to Staff to draft such a By-law to . . . 6 530 REPORT NO. PD-151-93 PAGE 6 provide general blanket coverage for the entire municipality with all exemptions so stated and that the municipality not involve itself in the issuance of permits for topsoil removal or provide regulation for rehabilitation at this time. Further, it would be prudent that public notice be placed in all local newspapers to advise the general public prior to passage of the by-law. Respectfully submitted, Recommended for presentation to the Committee, Franklin Wu, M.C. I. . M a ano, Acting Director of Planning Chief Administrative Officer and Development PattVL'. Bar e C-1 k HB*FW*cc 25 October 1993 it 531