By John Bacher
(Following a public hearing, a provincially appointed member of the Ontario Municipal Board recently tabled a decision that will allow a controversial plan for a giant motor-racing track to be built on more than 800 acres of land in Fort, Erie, Ontario. In this post, Preservation of Agricultural Lands Society member outlines the group’s reasons for appealing the decision.)
At 9 a.m. this past November 13th, 2012, the Niagara-based Preservation of Agricultural Lands Society filed an appeal with the Ontario Municipal Board of its decision to allow plans for a giant motor racing facility in Fort Erie, Ontario to move forward.
Our appeal of OMB member Susan de Avellar Schiller’s decision following a public hearing to approve the zoning for Canadian Motor Speedway seeks to maintain the current Good Agricultural zonings and official plan designations with the Niagara Region and Fort Erie that now protect the 827 acres of land where the raceway would go.
In making the appeal, PALS was careful to confine ourselves to the limitations of such cases that are considered under Section 42 of the Planning Act. Such appeals cannot attempt to repeat the arguments of the hearing. They must confine themselves to errors of fact and law made by the OMB member who heard the case.
One of the most serious errors in law, in our view, was the disqualification of PALS expert witness Dr. Hugh Gayler in land use planning on the grounds that he was a self-defined member of our society. In making her decision Schiller relied upon the notion put forward by the raceway proponents of PALS as an “advocacy group.”
In our appeal PALS informed the OMB that we are not “an advocacy group”, but rather “an educational group which on occasion must advocate for protection of prime farmlands at the Ontario Municipal Board.”
We also pointed out that “rather than find deficiencies based on lack of sufficient research and familiarity with the land use planning issues in dispute, the opposing parties chose to challenge Dr. Gayler’s testimony through his association with a supposed “advocacy group.” This is an approach that challenges the ability of people to work together to protect the environment, in this case prime farmlands and natural areas, and is incompatible with the norms of a liberal and democratic society.
PALS was also stunned to find that Schiller made errors in her description of PALS expert witness Dr. Michael Dickman, as an authority in “sweet water” habitats”, and “cold saltwater fisheries.” Our appeal pointed out that Dr. Dickman’s research in Canada was actually based on cold water/fresh water habitats in Canada and subsequently on tropical warm water habitats in China.
In another strange twist, Schiller took the view that Miller Creek which, if the speedway is constructed, will become heavily urbanized, is viewed by the Niagara Peninsula Conservation Authority, (NPCA) as being in a “degraded condition.” Such a view, PALS told the OMB, was contrary to the Agreed Upon Statement of Facts of ecological experts for the hearing. They concluded that Miller Creek is a Type One, Critical Fish Habitat.
Schiller also claimed that Dr. Dickman’s objections regarding the loss of tree and forest cover over Miller Creek were a mere “expression of concern.” In response, PALS pointed out that rather than merely being concerned, Dr. Dickman testified that as a result of a proposed new channel for Miller Creek, there will be “a net loss of productive fish habitat due to elevated temperatures and increased predation losses of fish and invertebrates. In time fast growing shrubs planted by the proponent will vegetate the re-aligned creek borders but it will take 20 to 30 years or more before mature trees shade and protect the re-aligned portions of the creek.
One of the most serious errors PALs believes Schiller made was to claim that the headwaters spring for Miller Creek, which is proposed to be the site of a massive recreational vehicle, overnight parking area, will be a protected area. Our appeal notes that, “the Hearing Officer could have designated this feature as an environmentally protected area,” but chose not to.
PALS also believes that Schiller erred by claiming that all the significant forests on the site will be protected. These are threatened by planned future road widenings of old municipal road allowances on Laur and Gilmore Roads to five lanes. She also ignored how one area of Significant Forests, identified as the East Hedgerow, is proposed to have this protection removed so that the motorway can cross it. It now provides nesting habitat for the Northern Flicker, Blue Jay, American Robin, Gray Cowbird, Yellow Warbler, Rose Breasted Grosbeak, Common Grackle, Blown-headed Cowbird, Baltimore Oriole and the American Goldfinch.
In our view, Schiller further erred in claiming that the Bobolink a Threatened Species was only found in “minimal numbers” on the proposed motorway site. This ignores the motorway proponent’s own Environmental Impact Statement made in 2009. This found that, “The Bobolink was locally common, predominately in fields and hayfields along Bridge Street between Laur Road and Sunset Drive. Most pairs were associated with active agricultural land supporting active hay crops.”
Most significantly, we believe that Schiller erred in confusing PALS’ alternative site with a proposed residential subdivision south of Oldfield Road in Niagara Falls. This area has become designated as a provincially significant wetland, which would buffer the actual alternative site from noise impacts, as no development is permitted on such lands.
It is to be hoped that the OMB will wake up and see the Bobolinks, nesting song birds, frogs and fish that will have their habitats doomed by the motorway scheme. It would be tragic if these important habitats are buried in a pile of errors.
John Bacher is a veteran member of the Preservation of Agricultural Land Society, a citizens group that has been dedicated for more than three decades to the protection of rural lands in and around the Niagara region.
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