PLANNING ANDDEVELOPMENTDEPARTMENT

CITY OF HAMILTON

- RECOMMENDATION -

DATE: February 5, 2001(Caroline Floroff – ext. 4424)

REPORT TO: Mayor and MembersCommittee of the Whole

FROM: Ms. Lee Ann Coveyduck,General ManagerPlanning & Development

SUBJECT: Leave to Appeal Ontario Municipal Board Decision- Rendering Plants (PD01030).

RECOMMENDATION:

That the appropriate staff (e.g. Legal Services and Planning and Development) beauthorized to attend Divisional Court to oppose Paletta International Corporation’srequest for leave to appeal from the decision of the Ontario Municipal Board datedSeptember 29, 2000, respecting a zoning by-law to regulate new rendering plants in theformer City of Hamilton.

______________________________________Ms. Lee Ann Coveyduck, General ManagerPlanning & Development

CORPORATE IMPLICATIONS:

Staff costs for attendance at hearings are covered by the respective Departmental WorkPrograms/Budgets.

ANALYSIS:

N/A

Leave to Appeal Ontario Municipal Board Decision- Rendering Plants (PD01030)

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SUSTAINABLE DEVELOPMENT:(Vision 2020, adopted by Regional Council as its vision for the future of Hamilton-Wentworth and endorsed by the Transition Boardas the basis of a vision for the "New" City of Hamilton, embodies the concept of a sustainable community which is an equal balanceof the economy, the environment, and social/health factors in all municipal decision-making.)

The Ontario Municipal Board supported a draft by-law to permit new rendering plants inthe former City of Hamilton. The draft by-law includes a number of provisions designedto mitigate the negative impacts (odour) on the environment. The subject actionchallenges the Ontario Municipal Board and the former City in attempting to mitigatenegative impacts on the environment.

BACKGROUND:

On June 12, 1998, The Ontario Municipal Board, issued its decision on an appeal of theformer City of Hamilton‘s zoning by-law deleting rendering plant’s as a permitted in the“K” and “KK” Districts. The Board allowed the appeal. The Board held that although acomplete ban on the rendering use in the former City was inappropriate, certainregulation was permitted. Accordingly the Board directed the former City to prepare adraft by-law to include the following: a minimum setback for rendering plants of 300 mfrom “sensitive land uses”; a definition of “sensitive lands uses”; require all facets ofstorage, handling and processing be indoors; and, other housekeeping modifications.The Board withheld its order pending receipt of an acceptable draft by-law.

The former City drafted the by-law (see attached APPENDIX “A”) in accordance with theBoard Order. The draft by-law permitted rendering plants in the “K” and “KK” District andincluded the following provisions, amongst others:

• Definitions for “dead stock”, “sensitive land uses” and “third party renderingmaterials”;

• A minimum radial separation distance of 300 m between rendering plants and“sensitive land uses” as defined;

• Facilities for receiving, storing, handling and processing to be completely containedand enclosed in a building including loading and unloading;

• All side and rear yards to be screened with a 1.2 m to 2.0 m visual barrier;

• All facilities to maintain negative air pressure;

• All receiving areas to be refrigerated and contain pollution control devices;

• All facilities were to not receive dead stock or third party rendering; and,

• Liquid waste to be directed to sanitary sewers and collection in lagoons to beprohibited.

Leave to Appeal Ontario Municipal Board Decision- Rendering Plants (PD01030)

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Paletta International Corporation, one of the original appellants, expressed concern withseveral aspects of the draft by-law including the definition of “sensitive land uses” andthe interpretation of the minimum 300 m radial separation distance between renderingplants and sensitive land uses. Based on these concerns, Paletta requested a furtherattendance before the Board. A hearing was held July 10, 2000.

The Board issued a decision on this matter on September 29, 2000, (see attachedAPPENDIX “B”). In summary, the decision supports the former City’s definition of“sensitive land uses” and the interpretation of the minimum 300 m radial separationdistance between rendering plants and sensitive land uses. In addition, the Boardagreed with the appropriateness of other regulations proposed, including requirementsfor a visual barrier, negative air pressure, refrigeration and pollution control equipment.

The Board directed that three modifications be made to the by-law for clarification andfine-tuning purposes, as follows:

• To permit third party rendering;

• To ensure that a legally located rendering plant can remain in the event that a“sensitive land use” subsequently locates within the 300 m radial separationdistance; and,

• To provide that uses that might otherwise be considered sensitive, which are locatedon an industrial site and which are accessory to the industrial use shall not beconsidered “sensitive” for the purpose of the by-law.

COMMENTS:

On October 16, 2000, Paletta International filed a Notice of Motion for an Order grantingleave to appeal to the Divisional Court from the decision of the Ontario Municipal Boarddated September 29, 2000, for the following reasons, amongst others:

• The Board erred in law and exceeded its jurisdiction by approving a zoning by-lawwhich imposes operational requirements on new rendering plants including: negativeair pressure; and, receiving areas to be refrigerated and contain pollution controldevices; and,

• The decision extends the authority of the municipality under the zoning by-law tomatters beyond the municipality’s jurisdiction and which are properly under thejurisdiction of the Ministry of Environment and Energy.

This motion for leave to appeal the Board’s decision of September 29, 2000, should beopposed on the basis that the above-noted operational requirements, from a planningperspective, reduces the potential for land-use conflicts. The nuisance (odour)associated with rendering is lessened when the facility is enclosed, refrigerated, andunder negative air pressure with pollution control devices. Legal Services has advisedthat the Board’s decision contains legal support for the inclusion of these requirements.

Leave to Appeal Ontario Municipal Board Decision- Rendering Plants (PD01030)

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CONCLUSION:

Based on the foregoing, the appropriate staff (e.g. Legal Services and Planning andDevelopment) should be authorized to attend Divisional Court to oppose PalettaInternational Corporation’s request for leave to appeal from the decision of the OntarioMunicipal Board dated September 29, 2000, respecting a zoning by-law to regulate newrendering plants in the former City of Hamilton.

Attach(2)

CLF/clf

CI-96-H

Caroline ext. 4424

APPENDIX “A”

DRAFT BY-LAW

RENDERING PLANTS

The Corporation of the City of Hamilton

BY-LAW NO. 99-

TO Amend:

Zoning By-law No. 6593

Respecting:

RENDERING PLANTS

WHEREAS the Council of the Corporation of the City of Hamilton passed By-law No.6593 on the 25h day of July 1950. which by-law was approved by the Ontario Municipal Board by ”Order dated the 7” day of December 1951. (File No. P.R.C. 3821);

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AND WHEREAS the Council of the Corporation of the City of Hamilton, in adoptingSection 3 of the 3ti Report of the Planning and Development Committee at its meeting of the 25”day of February, 1997. recommended that By-law No. 6593 be amended to provide for a generaltext amendment to the said by-law with respect to special requirements for rendering plants. ashereinafter provided;

AND WHEREAS the Council of the Corporation of the City of Hamilton passed By-lawNo. 97-049 on the 25” day of March 1997. to establish special requirements for rendering plants;

AND WHEREAS the Ontario Municipal board by Order datedPL970549). directed that By-law No. 97-049 be amended as hereinafter provided;

, (File No.

AND WHEREAS this by-law is in conformity with the Official Plan of the HamiltonPtanning Area, approved by the Minister under the Planning Act on June 1, 1962.

NOW THEREFORE the Council of the Corporation of the City of Hamilton enacts asfollows:

1 . By-law No. 97-049 is hereby repealed in its entirely and replaced with this By-law.

2. Section 2.(2)H of Zoning By-law No. 6593 be amended by adding the following new sub-clauses:

‘(ic) “Dead Stock” shall mean and inctude those rendering materials derived from redmeat, fish and poultry which result other than directly from food processing and relatedoperations and activities. and for greater certainty include all rendering materials deriveddirectly from farms or agricultural activities where food processing has not occurred.’

‘(vicb) “Sensltlve land Uses” shall mean a building, structure or land used for thepurpose of Residential Uses, Institutional Uses, Public Uses for religious, social,educational. and recreational and outdoor/open space uses and any outdoor places ofamusement or outdoor patio.’

“(viid) “Third Party Rendering Materials” shall mean and include by-products resultingfrom red meat, fish and poultry food processing and related operations and activities(including but not limited to processing, slaughtering, restaurant and retail food uses).other than rendering materials derived from such food processing and related operationsand activities carried out at the same property as the property on which rendering iscarried out and completed using only by-products from such food processing operationsand activities.’

3 Section 16.( l)(xiii)(c) of Zoning By-law No. 6593 is deleted and replaced with thefollowing:

“any other animal products manufacture which is an offensive manufacture includingtallow-rendering or other reducing or rendering plant, or related transfer station or otheraccessory uses‘.

4. Section 17 (l)(vii) of Zoning By-law No. 6593 is amended by deleting the words ‘tallow-

rendering plant’ so the entire clause reads as follows:

“/,,ii\ A ctqllnhf*r hnllcp lann~rv ~IIIP factorv or ~nv nlher factory for the manufacture

Add a new Sub-clause l(viia) as follows

-(viia) A tallow-rendering plant or other reducing or rendering plan1 or related transferstation or other related accessory uses provided that:

(a)

lb)

(Cl

(1)

(9)

(h)

ithe lot on which the same is situated shall have a minimud radialseparation distance-of 300.0 metres from the lot line to the $t line of a lotused for the purpose of sensitive lands uses, as defined; and,

all facilities for receiving, storing, including but not limited to the storageof trucks used for transporting rendering material. handling andprocessing of material, shall be completely contained and enclosedwithin a building, including all loading and unloading areas; and,

every side yard or rear yard that is used for vehicular access to abuilding shall be completely screened from external view by a visual -barrier of not less than 2.0 m in height and not more than 3.0 m in height;and,

all facilities shall maintain negative air pressure; and,

all receiving areas shall be refrigerated and contain pollution controldevices; and,

the facilities shall not receive dead stock or third party renderingmaterials; and,

liquid waste from all facilities shall be directed to sanitary sewers and thecollection of waste water in lagoons shall be prohibited; and,

outside parking will only be permitted for vehicles that are not utilized inIhe movement or transfer of rendering materials.’

5 Section l&(l)(vi) of Zoning By-law No. 6593 is deleted and replaced with the following:

*An animal by-products plant including a tallow-rendering or reducing or rendering plantor related transfer station, an abaltoir or slaughter house for other than the killing ofrabbits or poultry, a tannery, and any other use which may be an offensive manufacture.’

6. In all other respedts. By-law No. 6593. as amended, is hereby confirmed, unchanged.

NOTE: BY-LAW NO. 97-049, ENACTED BY CITY COUNCIL ON THE 251h DAY OF MARCH,1997, WAS SUBSEQUENTLY AMENDED BY ONTARIO MUNICIPAL BOARD ORDER DATED, (O.M.B. FILE No. PL97-549)

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Fl @ .,, PLg7054gOntario Municipal Board

Commission des affaires municipales de ~‘~ntano.

The Hamilton Haroour CornmIssioners and Paletta International Corporation have appealed to theOntario Municipal Board under subsection 34(19) of the Planning Act, R-S-0. 1990, c.P.13, asamended, against Zoning By-law 97-049 of the City of HamiltonOMB File NO. R970130

A P P E A R A N C E S :

Partles Counsel

City of Hamilton Michael BowmanNancy Smith

Paietta International Scott Snider

DECISION ARlSlNG FROM A REQUEST TO CLARIM A DECISION OF THEBOARD DEl.IVERED BY B-W. KRUSHELNICKI AND ORDER OF 7WE BOARD

Some time ago the Board, more specifically, this member of the Board, conducted ahearing into the appeal by Paletta International and the Hamilton Harbour Commissionersagainst a by-law of the City of Hamilton that would have effectively banned animal renderingplants from the Kand KK Industrial zones of the City of Hamilton. In its decision Issued June12,1998 as Decision No. 1453, the Board found for lhe appellants and directed the City to -prepare a by-law consistent with the findings of the decision, and withheld its order on the by-law pending receipt of an acceptable by-law.

After some considerable time, and after several complaints by Pale&a’s counsel Mr.Snider, thet the City was ‘dragging Its feet’ in executing the Board’s determination, the Cityprepared the by-law amendment. Paletta is not happy with the by-law. In a letter to the Board,it complained that the by-law does not provide a map of locations in which a renden’ng plantwould be permitted and includes language that they say is inconsistent with the Board’sfindings, making the location of a rendering planlvirtually, if not effectively, impossibie.Theyseek the assistance of the Board in compelling the City to modify the draft by-law to make itcomply with the Board’s decision.

As might be expected, the City disagrees with Palette, 90 rather than engaging in aProtracted ‘paper dispute”or considering several motions, the Board simply set a date for a

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hearing at which it would considervery bn’efly the evidence and submissonsofthe remainingpaflies naKOwly on the question of the City’s proposed by-law. This it did in the course of a

few days this Past summer. The results of that hearing are the following determinations inrespect to the by-law. _

ln addressing Palctta’s complaints about mapping, the Crty maintains that it has by-h3WS involving radial separation distances and does not map other radial separation

distances. instead, in such cases, it relies on a process of by-law enforcement in which aproponent proposes a site, the .City investigates its potential proximity to incompatible usesand offers an opinion of compliance. It expects to employ a similar procedure in this case.

..”The 8oafd agrees with the City that there is no obligation to provide a map

demonstrating separation distances and does not direct the City to do so.

On the question of the language of the by-law there are several points raised by Mr.Snider.The City has defined and prohibited “third party rendering’ and ‘dead stock removal”,claiming that this Is their interpretation of the intent of the Board’s decision.

The prohibition on third party rendering is simply an incorrect interpretation of the

Board’s decision and the prohibition should be removed from the draft by-law. Third partyrendering was dealt vvlth in the Board’s decision and is to be permitted In the K and KKIndustrial zones, subject to the mitigation and separation distances as directed by the Board.

As to “dead stock removal”, there was very little evidence on this prsctica. AS Mr.Snider acknowledges, his client was not directly interested in this line of business, but wasmore concerned with, and concentrated their case on, the practice of rendebng materials *derived from the food and food processing Industry. Although dead stock removal IS a dated

orassociated activity, the Board did not hear sufficient evidence to determine the impacts or

land use compatibrlity issues associated with it to provide a determination as lo whether itcould be treated similarly to rendering. In light of this, the City has elected to define ‘deadstock removal” and prohibit its reception at rendering plants in the K and KKzones. The f3oardwill not require the removal of this section of the by-law.

The next area of the by-law that concern!? Mr. Snider is a requirement for screening or

fencing of the site, and requirements that the facility maintain negative airpressu=, and further

that the facility be refrigerated and contain air pollution devices. The Board has MdificuhY

with a requirement by a municrpallty for screening of an industrial operation. This is notuncommon. Mr. Snider may be correct that this is more appropriately dealtwith by site Plan

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control. However, the City of Hamilton has elected not to exercise site plan control in itsindustrial areas and has chosen to deal with this by inclusion in its by-laws on a use or sitespecific basrs. The Board is not compelled by any preferences to intervene,

The requirements-for refrigeration, negative air pressure and pollution control devicesraises the issue of whether environmental controls are the proper subject of zoning by-laws

passed under section 34 of the Planning Act. A summary of the proper !elati&ship ofenvironmental controls to zoning is that each is the subject of separate spheres of the law andshould not conflict Zoning is subordinate legislation passed by a municipality under the

. 5 authority of the Planning Ad It is meant generally to control or regulate development and

land use in order to promote land use compatibility, avoid land use conflicts and associatednuisance, and maintain compliance with a community’s development policy and objectives as

expressed In its Official Plan.

Environmental controls of industry are exercised under the authority of theEnvkonmental Protection Act (EPA) which controls the opelion of a facility so as to limitadverse emissions and minimize environmental impact.

The distinction between regulating an industrial land use on the one hand andregulating its operation on the other, is a fine one with many oppoRunities for overlap andpotential cOnfkt. The City in this case is saying that the potential for land use conflicts andnuisance associated with rendering as a land use is lessened when the facility i$ enclosed,

refrigerated, and under negative air pressure wrth pollution control devices. All of this wascertainly consistent with the evidence presented by the appellants in the hearing and ..consfdered by the Board. So the City has included It in its land use by-law. It does not ofcourse enter into the detail of how such systems are to be designed end operated, just thatthey should be present as necessary elements of the land use if i t is to be com&iblewitb itsneighbouring uses.

Mr. Snider says that these are areas properly the subject of a Certificate of Approval

(C of A) under the EPA and that permitting them in a by-law interferes with the authority of theEPA and presents opportunities for conflict between subordinate legislation (zoning) and a

Provincial regulatory function.

The Board does not see any potential for mnflict, only an attempt to gainsOme comfort

that rendering as a land use can be made more compatible with surrounding uses than it hasin the past. While requirements for refrigeration and negative air pressure may overlapwiththe requirements that would ordinarrly be settled in a C of A, their inclusion in the by-fawdoes

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not conflict with the Ministry of Environment’s authority to require them,‘and to specify theirdesign, capacity, Operation and so fonh in a C of A. -

The Board will no! require that these items be removed from the by-law.

Finally there IS considerable legitimate disagreement about the matterofseparationdistances from “sensitive uses”. Although this formed a component of the evidence at thehearing, there are items of definition and dispute that could not have been anticipated in theevidence.

. . . . A concluding passage of the Board’s decision reads as follows:

The Board therefore will allov~ the appeal and will overturn the ban onrendering in the K and KKzones. However, because of Ihe risk of mismanagementor inadvertent upset or inadequate monitoring, and because of the annoyance andimpact that may ensue, the Board directs that, for the 9pecific use of rerrdering (andrelated activities) a significant setback from sensitive areas, especially residentialareas, be deployed as a measure of protectton.

“Sensitive areas” in this business is a term derived from the Ministry of EnvironmentD-6 Guidelines which formed an important part of the evidence in the hearing. In effect theBoard directed that, although rendering plants would be permitted in the City’s K and KKIndustrial zones, the by-law was to establish an additional requirement that they be located300 metfes from “sensitive areas” in accordance with the D-6 Guidelines. In anticipation ofdefinitional problem. the Board directed the City to “reasonably define or list sensitive uses

for application of the by-law.” .

This the City did in a way that Mr. Snider and his planner say is far too enCOmpaSSinand this is where the main probfems emerge, The definition in the by-law reads:

(vicb) “Sensitive land uses” shall mean a building, structure or land used for thepurpose of Residential Uses, Institutional Uses, Public Uses for religious, social,educational, and recreational and outdoor/open space uses, and any other outdoorplaces of amusement or outdoor patio.

The rationale forthe definition is to lake uses for which the City has definitions and listthem as sensitive. In the case of Residential uses, these are more or less self evident.

InsGtutional uses are defined as “designed, adapted or used for medical, surgical, charitable

or other treatment or care of persons, or for detaining persons, fwmectionak disWinaryorother purpose, and shall include a children’s residence, a homeforthe aged, 8 monastery,nunnery or religious retreat, a gaol, reformatory or training school, and ali other such uses;"Many of the terms under “Institutional are In turn funherdefined and these to0 are more of lessself evidently aensrtive. In the case of Public Uses, the City has limited the Ostin its refldefing

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by-law by limiting the application of the by-law to “religious, social;. educational, andrecreational uses, and recreational and outdoor/open space uses”.

The definition in the by-law seems to be consistent with and appears to comp(ywiththe

meaning of the lerms “sensitl~e use” as defined in the Ministry’s Guidelines: Section 1.2.1

“Sensitive Land Uses” of the D-6 Guideline states:

For the purposes Of this guideline, (i.e. where industry is concerned) sensitive landuses may include:e recreational uses tilch are deemed by the municipality or provincial

agency to be sensitive; andlor. . . .any building or associated amenity area (~.e. may be indoor oroutdoor space) which is not directly associated with the industrialuse, where humans or the natural environment may be adverselyaffected by emissions generated by the operation of a nearbyindustn’al facikty. For example the building or amenily area may beassociated with residences, senior citizens homes, school day carefacfllties. hospltais, churches and other similar institutional uses, orcampgrounds.

Note: Resldential USC shall be considerad zensrtive 24 hours/day.

Section 4.4.4. ‘Ancillary Land Uses (Sensitive Land Use)” of the D-f? Guidelines further states:

For sensitive land uses, where the established use of onsite lands afe m ofsensitive nature, such as a parking lot servicing a hospital, the lend area comprisingthe parklng lot may be included wlthin the separation distance (i.e. measure fr’Omwhere the actual sensitive activities occur).

And finally, Procedure D-l-3 “Land Use Compatibility: Definitions’ defines Sensitive Land -

Use as follows: .

A building, ‘amenity area’ or outdoor space where routine or normal activitiesoccurring at reasonable times would experience 1 or more ‘adverse effect(s)’ fromcontaminant discharges generated by a nearby facility. The ‘sensitive land use’maybe a part of the natural or built environment. Depending upon the particular ‘faoifity’involved, a sensitive land use and associated activities may include One Or acombination of:

0) residences or facilities where people eieep (eg. single and mulli-unitdwellings, nursing homes, hospitals, lraller parks, camping grounds, etc.).The uses are to be considered sensitive 24 hours/day.

(ii)

(iii)

8 permanent structure for non-facilitv related use, partlcularfy Of aninstitutional nature (eg. schools, churches, community centres, day C8fecentres).

certain outdoor recreatlonal uses deemed by a municipaiityorotheiievel Ofgovemmcnt to be sonsitive (eg. trailer park, pick area. etc.1

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certain agricultural operations (eg. cattle raising, mink farming,‘cash cropsand orchards).

(4 bird wildlife habitats or sanctuaries.

Mr. Snider raises anumber of potential problems posed by the definition adopted bythe by-law. He notes that some sensitive uses under this definition are permitted in industriallyzoned areas of the City. For instance ‘places of worship” are permitted as-of-right in the K andKK zones. Similarly there are commercial uses. such as bars and restaurants, adjacent to

industrial zones which may have outdoor patios. As well there are a number of legal non-conformlng uses such as long standing residential enclaves some of which are almost. . .embedded within the industrial zones, which would unquestionably be considered ‘sensitive

uses”.

Mr. Snider’s planner has identified as many of these uses as he couk! and has mappeda 300 metre separation distance from residential districts and from many known sensitive

uses according to the City’s proposed definition. On the basis of this and cor~pled with thelarge land ownerships by the steel plants, the Harbour Commission and other establishedindustrial owners, Mr. Snider argues that this eliminates large tracts of potential industriallands from use as a renderfng faclllty. He says that the definition Is therefore tooencompassing. More specifically the by-law should not include legal non-conforming uses eeven if they are “sensitive” - since these do not enjoy the protection of zoning. These shouldbe considered ‘Industrial” given their underlying zoning, not residential, and therefore shouldbe excluded from the definition of “sensitive’ in the by-law.

The Board does not agree. It Is the existing use of the land, not the zoning which

attracts the protection offered by Guideline D-6. The Board observes fmm the mappedevidence that there remain large and ample tracts of industrial lands, that remain unaffectedby the 300 metre setback that would be available. Much of this is assembled and held byestablished industries. Nevertheless there remain ample zoned lands unaffected by the

setback that provide reasonable opportunities within Ihe normal land market for a site 10 besecured and made available. The definition does offer a challenge to Mr. Snider’s clients, butdoes not constitute a prohibltion. The by-law need not be modlfled in this respect.

There are some problems identified by Mr. Snider that can be addressed by

amendment of the by-law. Mr. Snider worries that even if a rendering plant can be situatedwithin the existing terms of the by-law, it could be rendered illegal by the legal location of say

a church (which is permitted in an induskial zone) or the addition Of 8 patio (a sensitive us@)to a nearby or adjacent commercially zoned tavern which was not previousb considmdsensitive. The City offers an amendment in Exhibit 7b of these proceedings to se&m (viial

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(a) of the by-law which would provide as follows:

A rendering pW located lawfully in accordance with this section shall not berendered unlawful by the subsequent introduction of a sensitive use within 300.0metfes of the plant. so located.

This is an appropriate amendment that addresses the concern and the 8oard directs themodification be made. ‘.

Mr. Snider then worries that it is possible that a “sensitive use” could be added to, orcould exist and be included within an industrial use. For example, an existing industry could

“have an outdoor lunch area or a recreation facility or an on-site child care centre, any one of

which may not be apparent to the proponent of a rendering plant or even to the zoningexaminers considering the location of such a plant. How should these be treated?

The Board is sympatheticto this concern. It is reasonable to assume that an industrYoccupying an industrial site as the principal use in an industrially zoned area is not a ‘sensitiveuse” even though there may be sensitive uses within it or associated with it. Such an industrylocated in a heavy industrial area must accept some of the risks of nuisance ifit establishesa sensitive use within its precincts. Industrial zones are meant to contain uses with adverseimpact8 and to be separated from areas where such impacts are not acceptable.They cannot

expect the same protection from adversity that one would enjoy in say a residential orinstitutional zone.

Consequently the City is directed to amend the by-law by providing that uses that mightotherwIse be consrdered sensitive uses, which are located on an industrial site.and which am .

associated with, secondary to, or accessory to the industrial use shall not be considered“sensitive uses” for the purpose of the subject by-law.

These are the changes that the Board will require be made to the draft by-law and it SO

orders. In light of the concerns raised previously by Mr. Sniderwith the amount of time taken

to produce the by-law, I am furtherdirecting that the present changes be made and sent totheBoard within 60 days of the Issuance of this decisionlorxier.

Mr. Snider asks for his costs in this proceedings, claiming that the City has acted

unreasonably as demonstrated by the length of time It has taken to produce the by-law and bythe City’s self interested approach in interpreting the Board’s decision.

I agree that the City has taken its time to produce the by-law and that the by-lawwas

Undoubtedtyadventageous to the City in the way it has interpreted pointswhich It consideredambiguous. The Board does not ordinarily draft by-laws and when it wlthhdlds its order, it

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relies instead on the fairness and independence of professional murkipal staff to

competently, fairly and without bias give effect to the Board’s decision, irrespective of theirpf?fSOnal opinion of the Board’s deterr%nation or the outcome of the proceedings.

.1 am no! sure that %is is what has happened in this case. However, t am inclined to give

the City the benefit ofthe doubt in this instance. This has been a difficult case involving s!fw!gly

held professional opinions about a use that the Board found to be exceptional or unusual if not

perhaps unique. Rather than accepting that the City has acted in bad faith or otherwise

u%easonably, I prefer to find for the time that it has acted with extraordInary cafe andprudence in the protection of its interest as it sees It. This is at least partly understandable. Inthe end their prudence has been exceptional but not unreasonable.

There will be no order for costs.

The Board continues to withhold its order in respect to the by-law pending receipt of

the final version with the modifications directed by the Board.

E3.W. KRUSHELNlCKlMEMBER

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