City of Ottawa Site Alteration By-law by Tedd Wood

Tedd Wood is a member of the Carleton Landowners Association (CLA). This article chronicles his participation in the City of Ottawa’s public consultation process during the development of their Site Alteration By-Law. The CLA thanks Tedd for his assistance during the public consultation of this by-law – his knowledge and experience were invaluable in helping us to put forth a property owner view to the City and get a better deal for farmers.

“Site Alteration” means activities such as the removal of Topsoil from land, the placement or dumping of Fill on land, the alteration of the grade of land, or excavation by any means, including the clearing or stripping of vegetation from the land, the compaction of Soil or the creation of impervious surfaces, or any combination of these activities, and “Alter” or “Alteration” has a corresponding meaning. (emphasis added)

How I got involved.

In August 2016 I participated in a consultation session on the proposed By-law with the staff from the city of Ottawa.  I was there as a member of the Lower Ottawa Valley section of the Ontario Woodlot Owners Association. We had offered suggestions as to how the By-law could be improved to encourage better management of private woodlots.  Sadly our suggestions were not adopted by city staff.

We had given up on encouraging woodlot management, but in preparing for the meeting I had read the draft and noted some inconsistencies and unreasonable rules and requirements.  For instance any raised bed higher than 30 cm. (12 inches to us old folks) would fall under the provisions of this By-law even for urbanites; which would require written notice to all neighbours within 500m that is ½ a kilometer!  That rule was dropped on the next draft.

I will not go into all the details but I submitted several versions of comments as a private citizen.  Aside from the inconsistencies, and the subjective nature of the rules, my other great concern was that all of the provisions of this By-law would apply to farming.

Farming was not exempted

I am not a farmer but I did feel that having farming operations come under the review, inspection and possibly prosecution by City by-law enforcement (based on anonymous complaints) was not a good thing. I even went so far as to warn the some folks at the OFA that there was a problem on the horizon.

In my review I mentioned to Goldie Ghamari, the then Carleton PC candidate in the provincial election, my frustration in dealing with City staff.  It was and is my opinion that any comments contrary to their chosen wording were ignored. Ms. Ghamari had a quick look at the By-law and my notes and asked if I had looked at the Farming and Food Production and Protection Act.   Turns out that the act states:

No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.  1998, c. 1, s. 6 (1).

My arguments that the proposed By-law contradicted the Provincial Policy Statement and the City’s Official plan had fallen on deaf ears.  But now the fact that the proposed By-law was not in compliance with an actual provincial statute seemed like a pretty important finding. Thank you Goldie.

ARAC directed changes

So after 300 + hours of my time over some 18 months I had to appear at the Agriculture and Rural Affairs Committee (ARAC) in person to explain why agriculture should be exempt, since staff was unwilling to consider changes.  I should explain that the By-law had already passed Planning Committee with nary a concern.

The By-law used the word prevent instead of restrict.  Does not sound like a big difference staff said, but it meant that all of the relevant provisions and rules applied to farming because such rules would not prevent a farmer from working on the land.  However, it was clear that the application and enforcement of the rules in the By-Law would act as a restriction.  Believe it or not it took two ARAC meetings to convince City staff to make the change. Just so you know I relied on the Oxford dictionary for the definitions of restrict and prevent.

At ARAC we heard that in addition that the proposed by-law was not compliant with provincial statute with respect to farming; the By-Law also gave the General Manager of Planning control over the drainage people.  Perhaps most troubling was that I was explained that the By-law gave powers of entry to City staff without referencing the restrictions in the Municipal Act.

Shirley Dolan raised the flag on the powers of entry provision.  She pointed out that the wording may have exceeded the powers granted in the Municipal Act which requires notice before entering property, and that dwellings were included.  The By-law was changed to include a reference to the Municipal Act. Potential conflict remains in that dwellings are excluded but are not defined, and mobile homes are included.

Shirley also got them to restrict many of the provisions to within one kilometer of the urban boundary.

Of concern was that staff informed Council that By-law had been reviewed by Legal Services; my experience with the federal government was that such inconsistencies would be flagged by the lawyers. I also came to the understanding that consultation with the public as opposed to special interest groups may not yield much in the way of changes.  

If you have concerns with a draft by-law, do your homework, research every relevant document and most importantly explain to your Councilor that you should not have to do this, that is their job. If you do go down this road, document everything and get any explanations from staff in writing.

Conclusion

In the end normal farm practices as outlined in the Farming and Food Production Protection Act are not restricted by this By-law.  Drainage is still under the authority of the Drainage superintendent, many provisions do not apply beyond the one kilometer limit and City staff has to follow the provisions set out in the Municipal Act in terms of entering property.

So what does it all mean?  I am not really sure. Some of the provisions are written in a way that is open to broad and subjective interpretation.  If you run afoul of the City, seeking legal advice may be necessary, but that can get very expensive very fast. Read the By-Law yourself.  The inconsistencies that remain in the By-Law are troubling and difficult to reconcile. Ultimately it is in my opinion that this is a bad law.  It is not clear what problem it is trying to solve. The By-Law comes up for review in two years.

Breaking News

A recently published document that is supposed to explain the By-law to citizens appears to contradict the wording in the Farming and Food Production and Protection Act, and in the revised By-law itself.

They (farmers) do not need to notify anyone or ask for the City’s approval before carrying out normal farming practices, but they do need to follow rules 8 to 10 (use sediment and erosion control where necessary, protect the work area where necessary, and use clean fill).

This wording says that normal farm practices are not exempt but are restricted by this By-law. So what is going on?  What has by-law enforcement been told? Can city staff disregard the direction from ARAC? I promise, I am not making this up and I have no idea what it means.  You may want to contact the City and ask how they can do this. Or better yet contact your rural councilor and ask them to explain this contradiction. I know I will.

I was so happy for Ontarians when I heard that the PCs were in the process of repealing the Green Energy Act and purportedly giving authority back to the Municipalities to disallow the easements, etc., for onerous renewable energy projects.  Unfortunately, unless Bill 34 – Green Energy Repeal Act, 2018 is amended, this may not be the case.