Common Ground Magazine - Summer 2013 Issue - (Part 3 of 9) Zombie Zoning: Back to court we go Back to court we go. The September 2012 building permit appeal ruling goes back in front of the court this October. The waste- development lobby says “just give up, you’re wasting money.” Citizens funding the appeal say it was wasteful to destroy the protections we should expect through our zoning. As we go to press, three processes are on a collision course. Firstly, the sewage-sludge processing plant is becoming operational. Secondly, Southgate Township is attempting to rezone land to allow waste transfer, disposal and processing in what is now the Dundalk waste park. And thirdly, the appeal of Justice Ricchetti’s September 2012 decision (to allow the Lystek building permit to stand) is heading back to court in an appeal organized by SPIRG, and funded by the generosity of Southgate citizens. Here’s the background: In the CAO’s report of December 7th 2011, Southgate council discovered that the land it had sold earlier that year to two commercial waste processing firms was not zoned for waste processing. It was not for lack of trying. In 2009, after advertising a public meeting to discuss what was announced as an innocent zoning bylaw update (we were led to believe they were just correcting spelling and typos), the people running the show actually had two bylaw drafts up their sleeve. One, for the first time in Southgate history, introduced waste disposal and processing as an accepted use in M1 industrial zoning; the other, pointedly, did not. The official story of what really happened that night warrants more scrutiny than it has received. But we do know this: the version of the bylaw that got circulated and signed was the one without waste processing included. When this came to light – before the sale of land conditions were waived, before site plans and building permits were issued, before legal appeals, roadblocks, protest marches, and sign campaigns – there was a simple piece of procedural advice offered in correspondence from SPIRG to Southgate Council. Our advice? Rezone the property for its intended use before you waive conditions and close the sale. To be fair, Council discerned (correctly) that the people offering this advice were no friends of waste processing in Dundalk. In fact SPIRG’s subsequent correspondence hinted that Council should anticipate a building permit appeal if they did go ahead and sell the improperly zoned land. But it was still good advice – and for several reasons. First, the rezoning process would have provided the public their first formal opportunity to have a say, and exert their political will on an industrial development agenda focused on waste. Second, it would have provided councilors an opportunity to do what they were elected to do: listen, and represent the public. Thirdly, whatever the outcome, rezoning would have aligned what the zoning allows with the use intended for the property. That, as we all know, is not what happened. Instead, a ruse in three parts was conceived and implemented: (a) stretch the definition of “dry industry” to include anything that doesn’t require large quantities of municipal water (b) design the proposed facility with the means to get large quantities of water from the site, rather than from the town, and (c) leverage their own unlimited spending power to retain lawyers who are so smooth they could actually make this seem reasonable to a judge - or better yet, see if they can prevent the community from even presenting its case. The ruse was clever enough if your only goal was to make sure that Toronto’s sewage sludge could be processed in Dundalk a few blocks away from schools and homes. But it was not free of consequence. One of these has been the expensive legal battle between the Township and the people in the township who oppose both the idea of a waste-focused industrial strategy and the means by which it has been imposed upon people with neither due disclosure nor consent. A second is the climate of uncertainty that now surrounds the purchase or ownership of property throughout the township. The norm of planning and zoning practice is that all uses are excluded that are not explicitly included. The “dry industry” ruse (and especially its success before Justice Ricchetti in Sept. 2012) has wiped out important protections that should be provided in our zoning. What message does it give to any property owner, investor or buyer about the kinds of uses that might take place in future? No thoughtful investor would ignore that factor. Some existing property owners may not sleep quite as well, either. It took a lot of effort from our Council and staff – with considerable help from the $495/hour Bay Street lawyers hired with your taxes – to give us this irrational “zombie zoning”. The threat posed by such zoning is one of the reasons we are committed to the appeal. Will SPIRG and the community be successful against a council and a proponent with almost limitless funds and most of the power? Will common sense eventually prevail: in the courts if not in the council? We don’t know. We’ve learned that you can’t predict a legal outcome based on the strength of a case. But know this: countless donors have opened their wallets once more to ensure this fight continues. to protect the children of Dundalk and the future of our community. So count on it. Come October, we’ll be there....fighting zombie zoning.
Posted on: Tue, 13 Aug 2013 02:48:54 +0000
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