OVERVIEW For the reasons…

OVERVIEW

For the reasons that follow, I urge the Ministry to refuse the application and to order Miller Paving to comply with long standing non-compliance reports that have persistently required Miller Paving to remove the illegal outdoor contractor's yard since 2015.

Two documents are attached to support these submissions. The first is a series of aerial photos from "VuMap" showing the progression of land from horse pasture to contractors yard. The second is the same progression, but with comments.

The Miller Paving application attempts to side step the Oak Ridges Moraine Conservation Plan Act ("ORMCPA") and the Oak Ridges Moraine Conservation Plan (the "Plan").

Very simply stated, the ORMCPA came into effect in 2001. The Miller Paving outdoor storage area came into existence in 2014, a fact easily demonstrated by the fact that a local horse farmer used the very lands in issue to pasture horses from the 1980's until 2014. It has now further applied to try and convert this outdoor storage area into a massive indoor industrial storage complex.

The application to remove land from an Aggregate Resources Act license is the first step in the illegal conversion of ORMCPA governed lands into an industrial area. The intentions of Miller are transparent. The photo progression of the area shows the land uses existing up to 2014 and the stark changes that follow. The conduct and approach is in no way in keeping with the community. It is a massive upset to the community, and shows irresponsible corporate citizenship.

This conduct is not only illegal on its face, but will establish a framework and precedent for others to follow to introduce illegal industrial uses into the ORMCPA area. Miller Paving is apparently relying on Ministerial non-enforcement of the terms of its aggregate license to support this conversion. If the Minister allows this change to the license rather than requiring Miller Paving to comply, this government will show complacency and an intention to attack the Oak Ridges Moraine. That is bad policy.

In addition to the photo montage, Miller Paving's non-compliance was established in Ministry reports starting in 2014 or 2015 where the Ministry specifically identified the installation of a non-compliance contractor's yard.

Miller Paving is now seeking to take advantage of a mistake by the Township of Uxbridge where Council approved a site plan, in principle after Miller Paving assured the Township that its use was legal and conformed with applicable law. The Ministry cannot condone this form of conduct. Instead, it must refuse to change the terms of the license, refuse to remove non-compliant land, and insist on compliance with the terms of the aggregate license. A demand must be made that Miller Paving remove the illegal contractors yard, a requirement that has existed since 2015. This should not come as a surprise to Miller Paving, especially if it wants to comply with law.

FURTHER TECHNICAL BACKGROUND

The Miller lands are located in what is known as the “Countryside” designation under the ORMCP and associated mapping. This is a Provincial Plan as that is understood under section 3 of the Planning Act and is a plan made under the ORMCA.

When the ORMCP came into force in 2001, significant restrictions were placed on land uses within the Oak Ridges Moraine. All existing uses that did not comply with the ORMCP were frozen (given “legal non-conforming” status). Any new uses of the Oak Ridges Moraine were limited to those uses that conform with the ORMCP.

Any applicable zoning and official plan designations have been explicitly overridden by the ORMCA and ORMCP to the extent those provisions are less restrictive than the ORMCP. Greater restrictions can always be placed on these lands by the municipality.

THE PRIMARY RESTRICTION THAT MILLER HAS VIOLATED

The applicable provisions are not complicated. All provincial decisions must comply with the ORMCP. Section 5 of the ORMCP then provides that:

5. No person shall, except as permitted by this Plan,

(a) use land or any part of it;
(b) undertake development or site alteration with respect to land; or
(c) erect, move, alter or use a building or structure or any part of it.

I specifically highlight “site alteration” in section 5 because those prohibitions capture all aspects of what Miller Paving is proposing at the Boyington Pit. The ORMCP prohibits the construction of buildings, introduction of uses, or changing the landform of the Oak Ridges Moraine in a manner inconsistent with the plan.

USES PERMITTED IN THE COUNTRYSIDE DESIGNATION

The permissions in the Countryside designation are restrictive. Other than a permission for infrastructure uses, mineral aggregate operations and wayside pits, the uses permitted are low impact and mostly passive uses. Industrial uses, such as those in the M3-1 and M5-1 zone are not permitted.

Aggregate operations have been permitted due to the fact that these significant resources are available from the Oak Ridges Moraine in huge quantities. It is effectively a policy decision to permit this intensive interference with the operation of the Oak Ridges Moraine for policy reasons. These decisions were not made because aggregate operations should be understood as low impact. The government has acknowledged these operations as necessary in balancing political interests.

MILLER IS ABUSING THE LIMTED RIGHT TO CONTINUE USES

Existing uses have been given a modified version of the legal non-conforming protections otherwise available under the Planning Act. Miller cannot demonstrate that its use predates the plan.

Specifically, section 6 provides:

6. (1) Nothing in this Plan applies to prevent,

(a) the use of any land, building or structure for a purpose prohibited by this Plan, if the land, building or structure was lawfully used for that purpose on November 15, 2001 and continues to be used for that purpose; or
…
(2) Nothing in this Plan applies to prevent the expansion of an existing building or structure on the same lot, if the applicant demonstrates that,

(a) there will be no change in use; and
(b) the expansion will not adversely affect the ecological integrity of the Plan Area.

…

(6) Nothing in this Plan applies to prevent the conversion of an existing use to a similar use, if the applicant demonstrates that the conversion,

(a) will bring the use into closer conformity with this Plan; and
(b) will not adversely affect the ecological integrity of the Plan Area.

(7) If an existing use has adverse effects on the ecological integrity of the Plan Area, any application to expand the building, structure or use or to convert the existing use to a similar use shall be considered with the objective of bringing the use into closer conformity with this Plan.

(8) In this section,

“existing” means lawfully in existence on November 15, 2001, and for greater certainty does not include a use, building or structure that is in existence on that date without being lawful;
…

In other words, new buildings are not permitted. Only existing buildings can be reconstructed and then, only if it can be demonstrated there will be no adverse impact on the integrity of the Oak Ridges Moraine.

There is no basis upon which the Ministry can or should permit an application to proceed that will support Miller Paving's construction of a 40,000 square foot storage facility. There is no current building on site of a similar scope or magnitude.

Moreover, uses that are introduced must be both similar to existing uses and can only be permitted if the introduction will bring the lands into closer conformity with the ORMCP. Allowing outdoor storage or introducing indoor storage (and perhaps other uses) is not a use that is of the same kind to a horse pasture.

This is especially in light of the fact that Miller Paving proposes to bring in 1,000,000 m3 of fill over a 10 year period in order to construct the building and associated additional outdoor facilities.

The volume of fill also demonstrates that, if it is truly required, it is a significant change in use of the property.

Equally important is the fact that the asphalt plant facility at the Boyington Pit is only been used intermittently, i.e., approximately 25 times a year. This limits the scope of use that can be made of the asphalt plant.

SHIFTING ENFORCEMENT TO A MUNICIPALITY IS BAD POLICY

One would expect that the province would stand to enforce its own law. Shifting the burden to an under resourced and unsophisticated municipality is bad policy, especially when the Ministry's own documents show that Miller Paving has been in continual breach of the terms of its license.

I urge you to refuse the amendment to the license, and urge the Ministry to enforce the directions to Miller that have been provided for seven years, namely remove the illegal outdoor contractors yard.