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HomeMy WebLinkAboutADMIN-12-95 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON THKXX=0(lXXX 0 1(tJWWQ(l(" XX REPORT Meeting: General Purpose and Administration Committee File# 0' Date: April 18 1995 Res. Report#:___AOM14"-- 4_2-FyTJ#: Ry-Law# Subject: Mosport Park Limited Recommendations: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. That Administrator's Report ADMIN. 12-95 be received; 2 . That the Municipality' of Clarington make every effort to continue to enforce its existing by-laws in connection with the operations of Mosport Park Limited; 3 . That there be no further negotiations pertaining to a "side agreement" between the Municipality and Mosport Park at this time; and 4 . That a copy of Administrator's Report ADMIN. 12 - 95 be sent to members of the North Clarington Ratepayers Association. REPORT: At a meeting held on January 30, 1995, Council passed the following resolution: "That the correspondence dated January 25, 1995, from C. R. Taylor, President, North Clarington Ratepayers Association Inc . , regarding the Municipality's appeal over the Mosport rock concert issue, be received and referred to the Chief Administrative Officer to convene a meeting with the North Clarington Ratepayers Association Inc . , and all interested parties . " E On February 22, 1995, the writer chaired a public meeting to receive comments pertaining to the issue of Mosport Park as directed by Council. HECYCL o PAPER t+EcvciE R14S B PR1IliED 4RECYCLED P—A This meeting was advertised by placing notices in newspapers covering the Clarington area. The public meeting commenced with the Municipality's solicitor making a presentation which advised the attendees of the history of the Mosport Park site, as well as giving details on the recent legal proceedings . The solicitor was followed by a presentation made by Mr. Bernard Kamin, Q. C. on behalf of Mosport who not only presented Mosport's interpretation of the historical facts, but also gave an indication of their future use of the site. The meeting then heard from representatives of the North Clarington Ratepayers Association who presented a written brief which we have enclosed herewith. Five presenters read the brief on behalf of the Association and then the meeting heard from Cathy Gucciardi, an Oshawa Solicitor representing the Ratepayers group. Over and above the presentations of the Ratepayers, the meeting heard from Mr. Dave Weber and Mr. Gary Majesky regarding the matter. At the end of the evening, the writer stated that the comments received by the Ratepayers Association were to be forwarded to the Municipal solicitor for review and once his comments were on hand, a further report would be forwarded to Council bringing them up to date as to the details of the public meeting. I In order to ensure that the North Clarington Ratepayers Association would have time to review the said report prior to appearing in front of Council by way of a delegation, it was agreed that the report would be forwarded to the Ratepayers Association in a timely manner to allow the Association members an opportunity to prepare for a further deputation to Council. We have now received the Municipal solicitor's comments pertaining to the North Clarington Ratepayers Association's presentation and we have enclosed same for the information of Council. On reviewing these comments, it should be noted that they cover a number of legal issues but not all of the policy points made by the Ratepayers ' presentation. The overall gist of the solicitor's comments is that he has a fundamental disagreement with the Ratepayer's position, being that the Municipality is in a position to stop further "musical events" at Mosport by simply enforcing the by-laws that the Municipality now has in place. Clearly, the Municipality is enforcing its by-laws resulting in the previous legal proceedings recently dealt with by the courts . I We now understand that the principal members of Mosport Park Limited are having ongoing discussions with Cathy Gucciardi who represents the North Clarington Ratepayers Association Inc. Although these discussions may very well lead Mosport to agree to certain restrictions in their future presentations, the writer is of the opinion that, at this point in time, there is no basis for an agreement between Mosport and the Municipality that would result in satisfying the concerns of the North Clarington Ratepayers Association. It should be kept in mind that during 1994 there were two agreements negotiated between Municipal staff and Mosport that did not meet with approval of the Ratepayers and eventually of the Municipal Council. Respectfully submitted, W. H. Stockwell, Chief Administrative Officer WHS:nof enc . NORTH CLARINGTON RATEPAYERS ASSOCIATION INC P.O. Box 346, Orono, Ontario, LOB 1 MO. Presentation made February 22,_1996 in the Municipal Council Chambers. PRESENTATION: The North Clarington Ratepayers Association is here today to discuss some of the issues regarding concerts that Mosport Park Inc. is proposing to hold on its property. We wish to present the concerns and comments of its members and other residents of the Municipality of Clarington who will be affected by the concerts, to ensure that the issues are clearly understood by the Municipality, as well as the various agencies which have either a regulatory or support role if concerts are held, Fundamentally the Association contends that any event held at Mosport should in no way affect any other property owner's right to the normal use and enjoyment of their land. The Association believes that the by-laws of the Municipality coupled with Provincial and Federal law, provided they are rigorously enforced, are sufficient to provide the protection required by the property owners. The Association does submit however, that the municipality must accept the responsibility of ensuring that the interests of its residents are taken into account and are protected from any actions that the municipality undertakes or engages in, including the issuing of special event licenses. For this reason we are pleased to participate in today's discussions. NOISE: Of paramount importance to the North Clarington Ratepayers Association is the amount of and level of noise that will emanate from a concert event at Mosport. The source of noise will not only be amplified music but also the voices, based on Mosports statements in the Spring of 1994, of potentially fifty thousand people per day. The Town's by-law no. 89-184 deals with noise, and noise likely to disturb the inhabitants of the Town. In general it states no person shall cause or permit noises likely to disturb the in habitants of the Town. Mosport has an exemption under the bylaw, however the exemption is specific to automobile and motorcycle racing, and in no way does this exemption apply to concerts. Flow does Mosport intend to control the noise produced within its property and prevent it from disturbing neighbouring properties? What does the town consider a sufficient level of noise to disturb the inhabitants? The bylaw states: that the bylaw shall not prevent the use in a reasonable manner of any apparatus or mechanism for the amplification of the human voice or music in a public place within the limits of the Corporation". However the same bylaw under section 2 says-, "the following noises are hereby deemed to be noises likely to disturb the inhabitants of the Town of Newcastle." and goes on to say in section g.: "any noise which may be heard beyond the lot upon which it is made at sufficient volume to disturb persons beyond such lot". We believe that this says that if a noise is deemed to be objectionable by the person outside of the lot from which the noise is originating, it is solely their judgement that is the determining factor, and if requested the Municipality must invoke the noise bylaw on the persons creating the noise, Who does the person lodging the complaint contact, in the Municipality, on a 24 hour, seven day a week basis, for immediate handling of the complaint ? Any suggestion that we contact a hot line located at Mosport and manned by their employees, as was suggested last spring, is simply ludicrous! The Ministry of the Environment specifically deals with noise in the Environmental Protection Act and considers noise emissions in excess of levels prescribed by the regulations contained within the act to be a violation of section 14 of the Act. The North Clarington Ratepayers Association contends that Mosport's change in use of their lands by having stand alone concerts, falls under section 9, certificates of approval (air), of the Environmental Protection Act. It is logical to assume that concerts at Mosport will result in air contamination and that the point of impingement standard limit will be breached. Pursuant to these concerns it behooves the town to require that Mosport submit an environmental assessment report and approval certificates from the Ministry of the Environment prior to granting a special events license as per by-law no.91-56 2 Will the town ensure that all requirements of the Environmental Protection Act are met prior to granting a special events license? LICENSING: The January 25th / 95 issue of Clarington This Week reports Mayor Hamre as saying court action to prevent rock concerts at Mosport Park was a failure. Mayor Harnre obviously does not understand the decision that the Courts have handed down ! Last year Mosport contended that the Municipality of Clarington's licensing by-law 91-56 and special events by-law 78-50 were invalid and they should not be required to comply with them. In the decision handed down by Mr. Justice Southey, Mosport has obtained the interpretation that their zoning enables them to hold concerts, however their challenge of the validity of these by-laws was dismissed with the statement that similar challenges to municipal licensing by-laws have been heard by the Court of Appeal on two previous occasions and the bylaws have been upheld. He concluded by saying the validity has now been determined in favour of the municipalities. The importance of by-laws 91-56 and 78-50 cannot be overstated! The court's validation of the Municipality's licensing bylaws has now plated them with gold 1 These by-laws put into place a series of safeguards that are designed to ensure the security of both public and private property, as well as ensure that adequate police , fire , health protection and other services are maintained. The North Clarington Ratepayers Association wants the assurance of the Municipality that under no circumstances will any section of by-laws 91-56 or 78-50 be relaxed or circumvented when granting Mosport a special events license. Will the municipality give us their assurance that no change in zoning will be granted that would permit overnight camping in conjunction with licenses granted for concerts? Will the municipality give us their assurance that each individual concert will be licensed as an individual event and that any requests made by Mosport to obtain a special events license to cover a series of concerts be denied? Because of the impact and magnitude that a special event at Mosport has on the neighbouring community the North Clarington Ratepayers Association would request that the municipality forward to the Association a copy of all correspondence related to any application by Mosport under by-law 91-56. This would allow the Association to keep its membership apprised of events and ensure them that all regulations are being met. Can the municipality accommodate us on this request? 3 U6 Traffic: In the Spring of 1994 Mosport Park Inc, applied to the Municipality for a temporary rezoning to permit them have concerts with an attendance of 50,000 people a day. Since they stated in the council meetings, at that time, that they required this size of crowd to be financially viable, we assume that they hope to attract attendance of this size for future concerts, For the last two summers they have been having stock car racing on Saturday nights, We have been told that their typical attendance at these races is 5000 people or less. I'm sure the Mosport management will probably wish to comment on this number, However, it is a fact based on our observation over the last two summers that it takes between I and 1 1/2 hours for the traffic moving west on Durham Regional Road # 20 to clear the area. It is a fair assumption that this represents 80% of the traffic leaving Mosport Park. Of this about 10% turns South on Regional Road # 14, which leads to Liberty Street. This leaves 72% exiting # 20 on to Regional Road # 57. A simple experiment showed that taking due caution, it required 8 seconds to clear the stop sign. For sake of argument lets say the Mosport traffic takes 5 seconds on average. A simple calculation shows that 720 cars per hour would clear this intersection, which with the previous assumptions would relate to 1000 cars per hour leaving Mosport, With 4 people per car this translates to 4000 people per hour. Now I'm sure Mosport will say some of these assumptions are not accurate, however they are reasonable close to the facts. However, it begs the question - Flow long will it take to move 50,000 people over what is a 1 road access to Mosport. Simple division suggests (50,000/4000 per hour) = 12 1/2 hours. Suppose its only half the time would a concert ending at 11 P.M. still be clearing traffic at 5 A.M.? This little exercise is to simply make the point that the roads servicing Mosport are inadequate to handle large crowds, and when they have attempted large events in the past, disastrous results have occurred. Anyone living anywhere near Mosport ,and in fact many miles away, during previous large events knows that the roads simply become bumper to bumper for hours on end. So much so that the Police, Fire, Ambulance and the residents themselvesfindit extremely difficult to travel in the area. The residents require that the emergency services are in no way impacted by Mosport having concerts. What is the Municipality going to do to ensure that this happens? 4 What is the Municipality going to do to ensure that the taxpay."n residents are able to carry on with the peaceful enjoyment of their lives while Mosport is having their money making event? Speaking of taxpaying residents, isn't it ironic indeed, that while this presentation is taking place, Mosport Park Inc., which portrays itself as a " good corporate citizen has not paid its property taxes since 1992, and as of this Monday owed the Municipality $204,866.09 in back taxes. We believe no special events licences should be issued to Mosport Park Inc. by the Municipality until these taxes are paid in full 1 Parking: We understand that the Municipal Zoning By-law 84--63 does not permit agricultural land to be used or rented for public parking, although this did occur, apparently illegally, when Mosport had a concert in 1980. We recall Mosport stating last spring that all parking would be handled on its own property. While they may have had large numbers of vehicles parked on the property in the past, we now live in an era of environmental concern, with new legislation in force. Presentation on behalf of S.T.O.R.M.: A representative of the Coalition of STORM would have liked to have been here tonight to voice these concerns, however, they were unable to attend due to a previously scheduled meeting on watershed management. The environmental concerns in having a concert with 50,000 people attending are many. The number of portable toilets needed to adequately service this huge a partying crowd is astronomical and the tremendous amount of water required for these "port-o-potties" to function, properly, would be a fearful drain on local water resources. Run-off from human waste when people do not use the facilities will contaminate the existing ground water, What water sources will be available and how can we be assured that they will be able to service, or pump out the toilets, if the roads are jammed with traffic ? Where will this volume of effluent be disposed of ? The amount of garbage produced will be appalling. Not only will adequate garbage disposal be difficult to maintain during the concert, but also after the throng have left their garbage in "our" backyard, the neighbouring countryside will have to be cleaned up. Even though 5 A Mosport must provide the money to cover this as one of the licensing requirements, it will take the Municipality's Works Crews many days to accomplish the task, in place of their normal responsibilities. The concentrated parking of thousands of vehicles on the moraine will compact the soil and reduce it's ability to recharge the ground water source. Rain must be able to infiltrate the soil for the recharge function of the moraine to work. Vehicles being repeatedly parked in the same area will pack down the ground so much that this percolating ability will be threatened. Parking cars also disturbs the thin layer of top soil overlaying the sand and gravel of the moraine. This, combined with compaction, will lead to severe water run-off and extremely detrimental erosion in a very short time. If camping were to be permitted, especially in the realm of of many thousands of people, nearby trees will haphazardly be cut down for firewood. The wooded areas on and adjacent to Mosport become tinder dry in the summer, and accidently set forest fire is a real threat. This would cause devastating soil erosion. The Oak Ridges Moraine is a very sensitive ecosystem. It is clear that a concert attracting upwards of 50,000 people to one localized area on it will be an environmental nightmare. We need to be sure that adequate safeguards are in place and that dedicated people are responsible. It is always easier to prevent environmental disasters than it is to try to repair the damage once it has occurred. Will an environmental assessment be done to assess the damage to the Oakridges Moraine due to large numbers of vehicles being parked, prior to any permits being issued ? 6 Police Pro ection: We are well aware that security is Mosport's responsibility on its own property, and that they and/or the promoters must deposit by certified cheque, the amount of money Durham Regional Police will expend to provide increased levels of police services in order to cope with the movement of these crowds through the Municipality. However we are also aware that the level of police protection proved to be woefully inadequate at the three concerts Mosport permitted to take place on its property, starting with Strawberry Fields in 1970, and the two subsequent concerts in 1978 and 1980. Moreover we are aware that the cost incurred by the police forces during these events was born by taxpayers, as Mosport claimed they were only renting out the property, and subsequently the promoters couldn't be found. Therefore it is of great concern to the North Clarington Ratepayers Association that the police staffing be adequate to prevent the chaos that has occurred in the past, even if the size of the concert has tqobwith control on the access roads at a distance which would make it impossible to hike in to the concert. In 1980 the police blocked Regional Road # 20 at 57, a distance of 4 1/2 miles, and still a steady stream of people walked overland, trespassing all the way. What assurance have we that this will not occur again? We feel it is unjust for people to have to live these weekends in fear - afraid to leave their property because of potential trespassing, theft and property damage. Who will pay for the property damage incurred as a direct result of such a large concert being held ? By-law 91-56 in sub- section " ii " states:" that a certified cheque payable to the municipality in the amount that in the opinion of the Director of Public Works of the Municipality will be sufficient to reimburse the owners of lands located within 160 meters......provided that the aforesaid amount shall not exceed $30,000....... used on previous concerts the entire municipality is at risk, and the amount of money required from Mosport is ludicrous ! What is the Municipality going to do to protect its taxpayers ? It should not be the individual's insurance policies which have to pay for damage, with the probability of subsequent premiums being increased I It appears that the Municipality has generously protected itself in by-law 91-56 subsections 4. k and I by requiring liability insurance be provided by Mosport naming the municipality as an insured party in a minimum amount of $10,000,000 covered its own concerns, but has left the taxpayers out in the cold 1 - 7 I-low can appropriate response times be ensured, and how will problems in policing be addressed on the days of the event ? It will not be sufficient to deal with complaints 2 hours later, or the next day if an uncooperative group is attempting to set up camp on your front lawn right now ! How will the extra policing staff ( who will not be familiar with the area ) be coordinated. Will Durham Regional Police set up a mobile command post staffed around the clock to handle these concerts. The ratepayers want to be able to contact the Municipality and the Police while trouble is occurring 1 Not an employee of Mosport I Unfortunately we live in a fearful time, but it is terrifying to think that sufficient policing will not be in place and able to respond given the rural nature of the area to be protected, the limited capacity of the roads leading to Mosport and the vast numbers of people converging into the area. EMERGENCY SERVICES AT MOSPORT: One of the directors of the North Clarington Ratepayer Association has been an ambulance attendant on duty at Mosport. He has a severe medical problem that prevents him from presenting the following in person: " As an Ambulance Attendant for the Ministry of Health Ambulance Services Branch I frequently worked at Mosport special events. Part of my duties I instructed Advanced first aid classes. Some of the students I was forced to fail I later observed as paid employees of Mosport providing first aid services. This was brought to the attention of Mosport management and ignored by them. This leads me to conclude that Mosport inadequately screened their employees to be sure that they were adequately trained to perform their duties, Mosport in the past has offered a "Hot Line" which they would staff to dispatch the necessary emergency services to area residents having problems. I must ask the question: Does Mosport have a "Qualified Dispatcher" to handle emergency calls ? Has Mosport consulted with Police, Ambulance and Fire authorities to determine if they are willing to relinquish control of their staff and equipment to Mosport employees. My information is they have not 1 8 Can the emergency services even obtain enough additional staff to handle concerts ? Do they have the additional equipment required, without increasing the risks to the inhabitants of the municipality ? Is Bowmanville Memorial Hospital capable of handling the influx of patients and types of cases inherent with the numbers, and types of persons attracted to the events Mosport wants to hold ? According to newspaper articles reporting the 1970 concert the hospital spent $37,000 treating patients suffering from drug overdoses and other ailments, and were unable to find anyone to pick up the bill. Drug use certainly has not decreased in the meantime, and accidents are bound to happen. Has the Medical Officer of Health for Durham Region been consulted as to the requirements necessary to satisfy their on site health concerns ? Does Mosport propose to have its own staff clean up private property and along the roadside of human waste ? This has been a problem in the past and one that Mosport has ignored. CAML:IINQ- .-I Mosport Park Inc. has contended that camping is recognized as an ancillary event associated with motor-racing at Mosport. The North Clarington Ratepayers Association submits that camping associated with concerts violates Mosports zoning. In the judgement handed down by the Divisional Court with respect to Mosports zoning ( A & A 21) , permitted uses in an Agricultural Zone (By-Law 94663 ) are listed and do not include campiM. This point has been discussed with Mr. L. Taylor of the Municipal Planning Department, who has stated that Mosport does not have a zoning that permits camping! However we assume that Mosport Park Inc. will attempt to obtain the right to have public camping either by a second request for a zoning by-law amendment or an appeal to the courts based on prior usage. Therefore we would like to make the following comments based on their request last spring to have the zoning changed (and denied by vote of council ) to permit camping for 25,000 people per day: Would a municipal or regional government consider the creation of a town of 25,000 people without first assessing the requirements, the impact on local resources, the support 9 infrastructure, Most likely there would be a myriad of planning requirements, reports that would evaluate everything from access to sewage to water to environmental issues. There would be extended zoning requirements, a full environmental assessment, permits by the score, a mountain of paper that would decimate a forest to print. Yet here within the Municipality of Clarington there is consideration of doing exactly that, creating a temporary town on property that is not zoned for campgrounds, and which certainly does not have the necessary facilities to accommodate the second largest town in the region. It is our understanding that this would be in direct conflict with the Province of Ontario's Oakridges Moraine Legislation, which sits in the Minister of Natural Resources office, awaiting submission to the Legislature. It most certainly contravenes the Regional Municipality of Durham Official Plan which has been approved by the Ontario Municipal Board. And it is directly in conflict with the Municipality of Clarington's Draft Official Plan which is in the approval process. What would 25,000 campers do to the ecology of the Oak Ridges Moraine? Now would the sewage requirement of 25,000 people be dealt with? Now would the water be provided for 25,000 people? What health issues would be created with 25,000 people. What considerations for safety from errant camp fires have been considered? Let us assume for a moment that the vast majority of the campers are peaceful citizens who will follow guide lines and are not likely to participate in activities that would not be of concern, other than noise, to the immediate neighbours. However lets also assume that a very small minority of these 25,000 people, lets say for argument 1%,or 250 people have other things on their mind. Now do the property owners adjacent to Mosport deal with trespassers looking for fire wood and who knows what else. Would there be adequate round the clock police patrols in the surrounding country side? During previous events many incidents have occurred miles away. We heard during presentations to Council last spring about the penchant of some these concert goers to wander and misbehave. Mosport assured us that there was no need for concern since all issues raised were from events up to 30 years ago. Assurances were 10 made that the handling of outdoor concerts had evolved and that these kinds of issues and concerns were no longer valid. Then last year there was Woodstock 2, a $30,000,000 undertaking with security advertised as the current state of the art. Nothing has changed, the same issues exist. The gate crashing, the drugs, the rowdyism, the destruction of private property. How are we to have any confidence that Mosport has answers and solutions that are unknown in the rest of the civilized world. I-low do they control events not occurring on their property ? The answer is they don't and they can't 1 (They have no jurisdiction beyond their property 1 ) Andbasedon oast events neither can the police 1 You may consider that 250 people is a large number, but after looking at the history of other large outdoor concerts, specifically the Woodstock 2, the likelihood is that the percentage would be closer to 10%. That's 2,500 people fundamentally unconcerned for other peoples property rights and only motivated by their own desires. Mosport will attempt to demonstrate that they have had camping before. This camping has been fundamentally for racing support crews and is measured in perhaps hundreds not tens of thousands. We will vigorously oppose any attempt by Mosport Park Inc. to obtain the right to have camping on their property 1 Conclusion: These concerns must be resolved before any licences are issued I We will be available for consultation with the Council of the Municipality of Clarington or its representatives to ensure that these issues are resolved adequately with the interests of the Municipality and its taxpayers foremost in our mind. However-,J if these issues can not be regiolvqd, then it isPmLp-oqRiQa that the Municipality mu—st dy n y an go i L c ation fQr-"S ecial went ® cense 1 Shibley I ighton Btirrlsters & Solicitors RICHARD B,SHINLUV,Q-C, RUPHKI'F,R1011TON,O.C. HAROLD H.RLLIOTT,U,(' DRNNIK C.HFPFBRON DHNNIS C,IIHMZFIRON DONALD K.ROBINSON,Q.C. LESLIE S.MASON BARRY S.WORTZMAN,O.C. DRZ VANDI.."MANN JOHN P.BELL DI1 K.7IJNR(416)214•W1 MICHARL FnZPNI'KICK,QC. OBUKOR CORN V.ROW MORRISON LINDA S,))OHNRN MICHAEL U.BIRIXY 1`1 91131%C.VOLUAMF 416 PAX. '114•$418 PAUL IL MvINNIS M711IR O,NRI(SON CLIFFORD 1.WIZ ( ) JONATHAN H.FLANPURS UHARIMS SIMCU THOMAS A.STVJ?ANIK WII I.IAM L,NORTHCaM JAMES R')S.SITHR III3WER M.TRAVAS" PVIUk V.RAYTrX J.JAY RUDOI,PH CYNTHIA J,UUNN _ MARTIN J.HENDERSON NIC.HOLA$A MACOS WARRBN S.RAPOPORT " RICIIARD B,MIPS ALl3XANDER F.TO.(K)V CILARLbS M,OASTIZ PHILIP F.HRAT-W CHARiM O.T.WIRRR J.PAULA.HOWARD IWx 83•461 BAY S VIRT WADR D.JAMIESON IF.ONAKU D,ROPNS S, SANDRA R.DAWE TORONTO,CANADA LINDA J.OObR►, JAMS R INGRAM CHRISTINE M.SII,VRRSIDBS MSH 17.1 SALVATORII O-P,PRIRINA THOMAS MCRAR JAMRR W,BUSSIN KAR13N 1.MOM,011IR CRAKJA,IJMS JRNNIVER L.PRRRY WIIJJAM A,CHALMNkS RIJZABB11i U,MARTIN KHNO CHAN KRVIN D,71CI3 MARTIN I.O'BRIBN,0,C,,OOVNKw.DARNV n.1.lPSON,O-(, SurniIK* THti FIMPFON TOWER March 23, 1995 File No,: 9000636 Mr. W,H, Stockwell Chief Administrative Officer Municipality of Clarington 40 Temperance Street Bowmanville, Ontario LIC 3A6 Dear Mr. Stockwell: Re: Mosport Park: Submissions of North Clarington Ratepayers Association On February 22, 1995 you'convened a meeting at the Municipality's Administrative Centre with representatives of Mosport Park Limited and the North Clarington Ratepayers Association (the "Ratepayers") to hear their views on a number of issues respecting concerts that the company is preparing to hold at Mosport. Park. The meeting followed the release of the decision of the Ontario Court of.Appeal dismissing both Mosport Park Limited's and the Municipality's applications for leave to appeal from the decision of the Ontario Divisional Court in MosPort Park Limiter: v.. laringtg1b (1994) 21 M.P,L.R. (2d) 132. The Ratepayers' fundamental principle expressed in the Association's sut)mi;cions is that "any event held at Mosport should in no way affect any other property owner'.I right to the formal use and enjoyment of `heir land." l'hey believe that "the by-laws of the Municipality coupled with Provincial and Federal law, provided they are rigorously enforced are sufficient to provide the protection required by the property owners." The Municipality's policy is to rigorously enforce its by-laws, However, as a legal matter the enforcement of Provincial and Federal laws relevant to the submissions is the responsibility of the Provincial and Federal authorities ooncerned and not that of the Municipality. I Shibley Righton -2- The Ratepayers' submissions raise a number of policy, enforcement and legal issues. My comments in this letter will be limited to certain of the legal issues related to the Municipality's by-laws which are relevant io the consideration of the Ratepayers'submissions by Council. The Ratepayers conclude their submissions by stating their position to be that their concerns must be resolved before any special events licences are issued. I have to advise that once; Mosport Park Limited or any other applicant has complied with the requirements of By-law No. 78-50, as amended or By-law No. 91-56, whichever is applicable to the special event in question and the event is not otherwise prohibited by law, the applicant will be entit i ed to the issuance of a. licence. If the licence is refused, the applicant may be able to obtain an order from the Court. compelling the issuance of the licence in question. Further, whether or not a particular by-lav could he successfully enforced in specific circumstances will depend on the evidence available to the Court. Until a specific case occurs, it is not possible to express an opinion as to the probability of successfully enforcing a particular by-law against any person. Not all of the legal issues raised in the Ratepayers' submissions are addressed in this letter. My silence on a particular legal issue should not be taken to express either my agreement or my disagreement with the statement contained in the Ratepayers' submissions in that regard. For convenience of reference, my comments on the legal issues follow the same order and headings used in the Ratepayers' submissions. Noise The Municipality's Noise By-law (By-law No. 89-184, as amended) was passed pursuant to delegated authority contained in Section 2110, 138 of the Municipal pct, R.S.O. 1990 c.M.45. Section 1 of the Noise. By-law provides that "no person shall in the Town of Newcastle ring any bell, blow any horn, shout or make any unusual noise, or noise likely to disturb the inhabitants of the Town of Newcastle." Sectior. 2(f) deems "any noise which may be heard beyond the lot upon which it is made at sufficient volume to disturb persons beyond such lot" to be a noise likely to disturb the- inhabitants of the Municipality. Section 3(a) exempts from the prohibition contained in Section 1 "the use in a reasonable manner cf any apparatus or mechanism for the amplification of the human voice or of music in a public place within the limits of the Corporation." Although it would be fair to describe the Noise By-law as one which imposes qualitative (rather than quantitative) standards and rules, in my opinion, in determining whether a noise is likely to disturb the inhabitants an objective standard will be applied by the Court because of the language of the exemption provision (see R. v. Highland Packers Ltd. (1978), 5 M.P.L.R. 171). Accordingly, I do not agree with the Ratepayers' submission that as a matter of law "if a noise is deemed to be objectionable by the person outside of Shibley Righton -3- the lot from which the noise is originating, it is solely their judgment that is the determining factor" for the Court in deciding whether or not the by-law has been violated. In the final analysis, the Court will make its decision on the evidence in the particular case dealing with the reasonableness of the use of the amplification apparatus or mechanism in the circumstances. The Noise By-law in effect requires the balancing of the interests of the reasonable inhabitant not to be disturbed with the reasonable use of an amplification apparatus or mechanism. Whether the use of amplification systems that may be employed at Mosport Parkin connection with a concert All be determined by the Court to be reasonable, in my opinion, depends on the reasonableness of the volume of amplification, the extent of amplification (i.e. days and hours of operation) and possibly the types of sounds which are amplified. The Noise By-law was passed under the Municipal Act. Additionally, Section 178 of the Environmental Protection Act, R.S.O. 1990, c.E.19 delegates to municipalities power to pass by-laws to prohibit or regulate the emission of noise through the use of quantitative (rather than qualitative) standards and rules. Section 178 of the latter Act provides: '(1) The councils of local municipalities may, subject to the approval of the Minister, pass by-laws, (a) regulating or prohibiting the emission of sounds or vibrations; (b) providing for the licensing of persons, equipment and premises, or nay of them, with respect to the emission of sounds or vibrations; (c) prescribing maximum permissible levels of sounds or vibrations that may be emitted; (d) prescribing procedures for determining the levels of sounds or vibrations that are emitted, and such a by-law may make different provisions for different areas of a local municipality and may make provision for exempting any person, equipment or premises from any provision of the by-law for such period of time and subject to such terms and conditions as may be set out or provided for in the by-law. (2) A by-law passed by the council of a local municipality pursuant to subsection (1) may adopt by reference, in whole or in part, with such changes Shibley Righton -4- as the council considers necessary, any code, formula, standard or procedure, and may require compliance with any code, standard or procedure so adopted. (3) Part XIX of the Municipal Act applies to by-laws, passed under this section." The Municipality of Clarington has not passed a by-law under Section 178 of the Environmental Protection Act. If Council decided to do so, in order to prepare such a by-law either the Municipality would have to incur significant costs in developing technical standards of its own for inclusion in the by-law, or it would have to use the model by-law prepared by the Ministry of Environment and .Energy. In either case, the enforcement of such a by-law would be costly, require the Municipality to use special measuring equipment and to provide training to staff to operate the equipment. The Environmental Protection Act prohibits the discharge of"contaminants" into the natural environment. Sections 6(1) and 14(1) of the Act provide: 116(1) No person shall discharge into the natural environment any contaminant, and no person responsible for a source of contaminant shall permit the discharge into the natural environment of any contaminant from the source of contaminant, in an amount, concentration or level in excess of that prescribed by the regulations." "14(1) Notwithstanding any other provision of this Act or the regulations, no person shall discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment that causes or is likely to cause an adverse effect." Section 1 of the Act defines "contaminant" to include a sound and a vibration resulting directly or indirectly from human activities that may cause an "adverse effect". "Adverse effect"is defined to include "harm or material discomfort to any person", "impairment of the quality of the natural environment for any 'use that can be made of :t", "wl adverse effect on the health of any person", "impairment of the safety of any person", "rendering any property unfit for use by inan", "ioss of enjoyment of normal use of property", arld "interference with the normal conduct of business". The Ratepayers have submitted that noise emissions in excess of levels prescribed by the Regulations to the Environmental Protection Act are a violation of the Act and that a change in use by having stand alone concerts at Mosport Park requires a certificate of approval from the Ministry of Environment and Energy. The Environmental Protection Act does not require Regulations respecting noise emissions to be promulgated by the Lieutenant Governor in Council, rather Section 176 of the Act is permissive in this regard. In fact, although the Ministry has published noise "guidelines", Regulations regarding noise Shibley Righton -S- have not been promulgated to date. As will be indicated below "guidelines" do not have the legal effect of Regulations. Nevertheless noise emissions may be considered to be a"contaminant"under the Act. However, for such noise emissions to be either a violation of the Act or to require the issuance of a certificate of approval before an emission occurs, an"adverse effect"within the meaning of the Act must be established. That depends on the evidence which is .,vailable in the particular case. The meaning of "adverse effect" was considered in R. v. Commander Business Furniture Inc., (1992) 9 C.E.L. R. (N.S.) 185. The Court decided that only one ground of adverse effect need be proved to establish a violation of the Environmental Protection Act. The Court stated that: "The character of the neighbourhood may be relevant in determining what use can be made of the natural environment in that particular area. It seems probable to consider that a discharge in a heavy industrial park may not have the same use impact as it would in a remote, pristine rural setting. Local neighbourhood conditions may also be relevant in objectively testing if a discomfort caused by a discharge is material to the individual complaining. In some circumstances, for example, a discharge may cause a material discomfort when it occurs in a residential area, but it may not be material if it occurs in the middle of an industrial area. Finally, if the particular adverse effect at issue is loss of enjoyment of normal property use, normal use may also be affected by the character of the local neighbourhood." The Court in this case also quoted from Morden J.'s decision in Walker v. Pioneer Construction, (1975) 8 O.R. (2d) 35 respecting noise as follows: However, in my view the night-time and early morning operations of the defendant should be considered separately. In my opinion they have amounted to a material, undue and unreasonable interference of the plaintiffs' enjoyment of their property. In complaining of the noise at night and, with a greater relevance on the evidence with respect to recent operations, in the early morning, I do not think the plaintiffs are giving vent to any abnormal sensitivity or delicacy. I do not think that 'the law of give and take' obliges them to absorb this interference without some form of redress. The character of the neighbourhood is not such that the defendant can reasonably expect to indulge itself during normal sleeping hours as it does during the balance of the day." In respect of "material discomfort", the Court in the Commander case determined that the test is both subjective and objective. It involves two considerations. First, did the i 9 i S h.ibley Righton -6- complainants subjectively suffer a material discomfort. Second, was the discomfort objectively material to him or her. In'testing materiality both subjectively and objectively, factors such as the length and repetition of the discomfort, the consequences of the discomfort and the characteristics of the affected neighbourhood are all factors to consider. In this case the Court found that normal use of property in a residential area must include the full use of yards and community parks. The evidence in the case indicated that residents were frequently forced indoors by odour which caused them material discomfort. In order to determine whether loss of enjoyment of normal use occurs evidence must be presented or, the frequency, nature and duration of these experiences. In the result, the Court convicted the defendants of the offence of violating this provision of the Environmental Protection Act. Unless the Municipality passes a Noise By-law under Section 178 of the Environmental Protection Act, it does not have jurisdiction to prohibit noise emissions under the Act. This jurisdiction is solely vested in the Ministry of Environment and Energy which, if a violation occurs, may issue (1) a control order pursuant to Section 7, or (2) a stop order pursuant to Section 8 if the level of contamination constitutes an immediate danger to human life or to the health of any person or to property. Certificates of approval are provided for in Section 9(1) of the Environmental Protection Act which reads as follows: "9(1) No person shall, except under and in accordance with a certificate of approval issued by the Director, (a) construct, alter, extend or replace any plant, structure, equipment, apparatus, mechanism or thing that may discharge or from which may be discharged a contaminant into any part of the natural environment other than water; or (b) alter a process or rate of production with the result that a contaminant may be discharged into any part of the natural environment other than water or the rate or manner of discharge of a contaminant into any part of the natural, environment other than water may be altered." If a certificate of approval has been issued under Section 9(1) and the terms of the certificate including any conditions subject to which it was issued have been complied with, a person charged with the offence of contravening Sections 6(1) or 9(1) of the Environmental Protection Act will have a good defence. However, it is up to the person whose actions may 12 Shibley Righton -7- contravene Section 9(1) to apply for a certificate of approval under that section. The Municipality does not have legal authority to require any person to apply for a certificate of approval under Section 9(1) of the Act. As was noted above, the Lieutenant Governor in Council is delegated broad Regulation making power under the Environmental Protection Act. Violation of Regulations is prohibited by Section 6(1) of the Act. Although sometime ago the Minister of the Environment'and Energy prepared noise "guidelines" which contain qualitative standards, they have not been promulgated.as Regulations. "Guidelines" as a matter of law do not have the legal effect of Regulations. Regulations are subordinate legislation with the same legal effect as the Act itself. The result is that contravention of any of the guidelines is not prohibited by Section 6(1) of the Act since they are not "Regulations". Licensing The Ratepayers ask the Municipality to assure them that"each individual concert will be licensed as an individual event and that any requests made by Mosport Park Limited to obtain a special events licence to cover a series of concerts will be denied." For motor vehicle events Mosport Park Limited is required to comply with By-law No. 78-50, as amended and for a concert with By-law No. 91-56. Both by-laws require a licence to be issued before the particular event can be undertaken lawfully. Neither by-law precludes an applicant from applying at any one time for licences for one or more special events. Once the applicant has fully complied either with By-law No. 78-50, as amended, or with By-law No. 91-56, whichever is applicable, the applicant would have a legal right to the issuance of a licence or licences to undertake the event or events to which the application relates. Change in Zoning to Prevent Overnight Camping With respect to a change in zoning to prevent overnight camping in conjunction with licences granted, the Municipality is subject to the due process provisions of the Planning Act, R.S.O. 1990 c.P.13. In my opinion, as a matter of law the Municipality cannot give the assurance requested that no change in zoning to prevent overnight camping be granted. Access to Information The Ratepayers ask that the Municipality forward to the Association a copy oil all correspondence related to any application by Mosport Park Limited under By-law No. 91-56. Section 4(1) of the Municipal Freedom of Information and Protection of Privacy.Act, R.S.O. 1990 c.M.56 provides that "every person has a right of access to a record or part of a record in the custody or under the control of an institution unless the record or part falls under one of the exemptions under Sections 6 to 15." Certain of the exemptions from the general Shibley Righton -8- requirement of disclosure relating to the protection of privacy are permissive; others are mandatory. All of the exemptions are designed to protect the privacy of the individual or the public interest. The Municipality is subject to the Municipal Freedom of Information and Protection of Privacy Act and must comply with its provisions. Therefore, in my opinion, it would not be appropriate; for the Municipality to undertake to forward to the Ratepayers all of the correspondence requested. The Clerk should continue to be in a position to make aAecision as to disclosure of particular correspondence having regard to the provisions o.f the Act. Taxes The Ratepayers have suggested that a special event licence should not be issued to Mosport Park Limited by the Municipality until arrears of taxes are paid in full. In my opinion, the Municipality cannot refuse to issue a licence on the basis of a criterion which is not set out in By-law Nos. 78-50 or 91-56. Payment of taxes is not a criterion specified in either by-law which must be satisfied before a licence for a special event can be issued. Paring The Zoning By-law(By-law No. 84-63, as amended) does not permit Agricultural (A) lands to be used for public parking purposes as a primary use. However, Section 6.1(b) of the Zoning By-law does permit the use of Mosport Park as a public fairground. The Divisional Court has determined that the scope of a public fairground use is sufficiently broad to include the undertaking of musical concerts. Section 3.14 of the Zoning By-law requires, where the use is that of an assembly hall, auction room, auditorium, arena, a community centre, place of entertainment, place of worship, private club or other similar places of assembly not otherwise specified herein, the greater of (a) one parking space per five fixed seats or 3 metres of bench seating or portion thereof; ... or (c) one parking space for each four persons that may be legally accommodated at any one time must be provided. Depending on the evidence presented to the Court, it is possible that parking in conjunction with a public fairground use could be held to be a permitted accessory use under the Zoning By-law that "is customarily incidental and subordinate to, and exclusively devoted to, the main use of the lot, and located on the same lot as such main use", assuming that the main use is a public fairground use. Adequate Water and Sanitation The issues of adequate water supply and run-off from human waste were raised. Section 40) of By-Law No. 91-56 requires that the <:pplicant provide "a letter signed by the Region's Medical Officer of Health certifying that he is of the opinion that all public health and sanitation requirements in connection with the exhibition held for hire or gain are likely to be satisfied." S hibley Righton -9- The Region's Medical Officer of Health has jurisdiction in this regard. The Oak Ridges Moraine Mosport Park is located on the Oak Ridges Moraine. The sensitivity and importance of the Moraine and its ecology have been recognized by the Province which has declared its interest in the Moraine and established the Oak Ridges Moraine Technical Working Committee. The Region of Durham is represented on the Committee. The Committee has published studies on a wide range of issues. It is possible as the Ratepayers suggest that the Provincial Government in the future may enact legislation with respect to the Moraine. However, to date such legislation has not been introduced or enacted. Consequently, at this time it is not possible for me to advise as to the responsibility of the Municipality, if any, if such legislation is introduced and enacted. At present there is no general legislation or by-law which requires an environmental assessment to be undertaken before a special events licence is issued respecting Mosport Park. Such an assessment is not a criterion which is required to be satisfied before a special event licence can be issued under either By-law No. 78-58, as amended or By-law No. 91-56. Fire Protection With respect to fire protection, I note that By-law No. 91-56 requires that before a permit is issued by the Clerk for a concert, the Fire Chief must first certify in writing that he has approved a fire safety plan under the Ontario Fire Code in respect of the proposed concert. Police Protection Section 4(d) of By-law No. 91-56 requires that the applicant submit "a letter signed by the Chief of Police of the Region's Police Service certifying that in his opinion adequate police protection will be available during the exhibition for hire or gain. Section.4(e) of By- law No. 91-56 requires "a certified cheque payable to the Region in an amount equal to the estimated cost of adequate police protection". Camping The Zoning By-law permits camping as a primary use either on lands zoned for the purposes of a camping establishment or for the purposes of a trailer camp or park. 'these uses are not permitted as primary uses in either an Agricultural (A) Zone (on which agricultural and public fairground uses arc. permitted), or in an Agricultural Exception (A- 21) Zone (in which motor vehicle race track uses are permitted). Mosport Park is zoned A and A-21. I i Shibley Righton -10- Camping would be permitted under the Zoning By-law if camping is accessory to the permitted primary A or A-21 use to which Mosport Park would be put. If camping is not accessory to the particular primary use undertaken at Mosport Park, nevertheless it is possible that evidence could be adduced to establish camping as a lawful non-conforming use of Mosport Park. In such a case, camping could be undertaken as of legal right. I will not be able to express a concluded ' ew on the issues of camping either as an accessory use or a non-conforming use until I am able to consider the evidence available in respect of a specific event. Yours very truly, SHIBLEY RIGHTON r Dennis Hefferon DH/bg G:\467\TO W N-NEW\MOS PORT\M'OCKWEL.LT4 14 i