The Ontario Municipal Board (OMB) hearing about a proposed quarry near Rockwood came to a screeching halt last week before it picked up any momentum at all.
The hearing was set to run for five to seven weeks, with proponent James Dick Construction Ltd. (JDCL) seeking zoning and licensing approval for a quarry at Highway 7 and 6th Line in Guelph-Eramosa, just east of Rockwood and west of Acton.
Also taking part in the hearing are opponents, the Concerned Residents Coalition (CRC), the Region of Halton and Town of Halton Hills.
However, when the hearing opened on Sept. 27, CRC lawyer Chris Barnett threw a wrench in the proceedings, claiming a new Guelph-Eramosa comprehensive bylaw passed this summer could mean the quarry application is now invalid.
Barnett argued there is no bylaw for the OMB to amend because the rezoning application was filed under the 1999 bylaw, which no longer exists.
OMB vice chair Steve Stefanko asked lawyers to return on Sept. 28 with possible solutions.
Barnett then argued that under the new bylaw the quarry application would also likely be subject to Official Plan amendments with Wellington County.
JDCL lawyer David White countered by saying the OMB appeal was actually about Guelph-Eramosa council’s non-decision on the quarry and not the bylaw itself.
“Sir what’s in front of you is an application and a refusal of a municipality to act on that application,” White told Stefanko. “Not the bylaw.”
But Stefanko disagreed.
“My knee jerk reaction is that may be a distinction without a difference,” he said. “The application is … to amend the bylaw which has been repealed.”
However, White pointed out JDCL’s zoning amendment application clearly makes no reference to a specific bylaw.
“If I was to re-file an application or my client was today, we would fill out the exact same application in the exact same way,” he said. “We would just resubmit this application.”
White argued the application is actually still in the hands of Guelph-Eramosa Township because council never made a decision. He asked Stefanko to direct the municipality to make a decision.
“If they approve my client’s application Mr. Barnett can appeal, if they don’t approve it and deny it I can appeal it and it’s very straight forward, relatively simple to get this matter properly in front of the board if it’s not properly now, which I’m not acknowledging,” White said.
“I don’t care what decision they make, just please make a decision.”
Guelph-Eramosa lawyer Eileen Costello had a different perspective.
“I disagree that the matter is still before council and … I agree with Mr. Barnett’s submission,” she said.
“It’s very clear that the municipality could not then be the approval authority with respect to that zoning bylaw amendment.
“Once the zoning bylaw amendment application is appealed to this board you are then the approval authority.”
Barnett continued to argue there was no bylaw to amend and Stefanko actually may not have any say in the matter.
“In order for you to have jurisdiction sir, there has to be a bylaw to amend and if you look at the title of proceedings in this case … this is an application … to amend a 1999 bylaw,” said Barnett.
He added there may also be substantive implications on the Wellington County Official Plan amendment.
David Germain, the lawyer representing the Region of Halton and the town of Halton Hills, said the confusion could have been solved earlier if JDCL had filed a placeholder appeal under the new bylaw.
White cautioned Stefanko that his decision will have implications beyond this one case.
“If you are the approval authority how can the municipality repeal a bylaw and take the matter away from you?” White asked.
“There’s a total denial of natural justice, abuse of process if they can then repeal the bylaw and take that away from you.”
Stefanko pointed out that if the new 2016 zoning bylaw had been appealed there would be no issue.
However, as it stands, Stefanko said the morning’s arguments made it clear to him what his authority is in the case.
“I concede it’s an application for appeal,” he said.
The OMB has three choices in such matters: a) dismiss the appeal, b) amend the bylaw as it sees fit or c) direct that the bylaw be amended.
“That seems to make it impossible for [JDCL] to succeed because for [b] and [c] to apply there has to be a bylaw,” Stefanko said. “That leaves only [a] and that means dismissal and you can’t win, you cannot win.”
Stefanko directed each of the lawyers to file written submissions by Oct. 3 regarding their opinion of the bylaw issue and how they think the hearing should proceed.
Because the ARA license is not tied to the zoning amendment, Stefanko questioned whether that hearing could proceed without using planning evidence.
Stefanko set the next hearing date for Oct. 6 at the Guelph-Eramosa municipal office in Brucedale where he will discuss the submissions.
Background
The “hidden quarry” process began in December of 2012 when JDCL applied to Guelph-Eramosa Township for a rezoning amendment for lands southeast of Rockwood to make way for a gravel pit operation and a rock quarry.
In May of 2015 JDCL, which proposes to mine 700,000 tonnes of dolomite rock annually over a projected 17 years, referred the zoning and Aggregate Resources Act (ARA) license decisions to the OMB because Guelph-Eramosa hadn’t made a decision by its two-year deadline.
In October 2015 township planning consultant Elizabeth Howson, of Macaulay Shiomi Howson Ltd., advised council to approve the quarry application in principle, subject to specific conditions being met to the satisfaction of the township, neighboring municipalities and other appropriate agencies.
Yet even though JDCL met those conditions, council decided on June 27 to have a lawyer file an exhibit at the OMB hearing in the form of a resolution stating the township’s objection to the quarry and asking the OMB to reject JDCL’s applications.
The township is not a party at the hearing, but lawyer Eileen Costello was representing Guelph-Eramosa on the first two days of the hearing.
At the same time the quarry application was in the planning stages, Guelph-Eramosa Township was also undergoing a comprehensive zoning bylaw review – a process that began in early 2015.
On Aug. 8 of this year the 1999 comprehensive zoning bylaw was repealed and replaced with the new bylaw.
It came into effect on Sept. 2 after a one-month appeal period (no appeals were filed).
