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Closing arguments submitted in OMB hearing

By Patrick Bales, The Orillia Packet & Times

A Save Oro sign is repurposed by a festival goer to read "Rave Oro" at the 2015 WayHome Music and Arts Festival.

PATRICK BALES/PACKET & TIMES FILES A Save Oro sign is repurposed by a festival goer to read "Rave Oro" at the 2015 WayHome Music and Arts Festival.

How would you like it if about 40,000 party goers set up shop outside your house?

It’s a question David Donnelly, counsel for Save Oro/West Oro Ratepayers’ Association (WORA), promised to ask the chairs of the Ontario Municipal Board (OMB) hearing into a proposed temporary-use bylaw (TUBL) governing land at Burl’s Creek Event Grounds in Oro-Medonte in his closing remarks on the first day of the hearing, last May.

He did so several times during the course of his written closing submissions, delivered to the board last week.

Allegations of rural-living disruption, uninformed experts, overzealous, inexperienced civil servants, and charter rights violations permeated through the closing submissions in the Burl’s Creek hearing.

The OMB received written submissions from the parties – Burl’s Creek, Save Oro/WORA, Montagnais Métis First Nation and the Township of Oro-Medonte – last week.

Burl’s Creek – the applicant and appellant in the case – and the township called for the board to approve the appeal in their submissions, allowing for approximately 330 acres to be zoned for temporary camping, parking concessions and recreational soccer for 27 days each year. The TUBL, if approved, would be retroactive to May 27, 2016, and expire Dec. 31, 2018.

Both Burl’s Creek and the township stressed the importance of accepting the evidence provided by Darren Vella, the planner retained by the applicant, and Andria Leigh, the township’s director of development of development services.

Christopher Williams, counsel for the township, regularly referred to the experience both Vella and Leigh have in Simcoe County – and specifically Oro-Medonte – with planning matters and documents, highlighting the deficit found from the experts retained by Save Oro/WORA.

Burl’s Creek largely agreed with the township’s assessment, with Nicolas Macos, counsel for Burl’s Creek, stating the expert opinions for his client and the township contrasted those of Save Oro/WORA and the Montagnais.

“Other than a site visit by (Robert) Clark (planner, agrologist and land economist), none of Save Oro’s or the Montagnais’ professional witnesses were on-site or prepared a report,” Macos wrote.

The local experts, with the local experience, agreed the application was an example of good planning.

“It is clear the most important policy for the board to consider is Section E1.3 of the township’s Official Plan (OP) dealing with temporary-use bylaws,” Williams wrote. “It is the township’s position that the proposed TUBL meets all of the tests of policy E1.3.”

Donnelly disagreed.

“Township OP Policy E1.3 criteria B requires the proposed TUBL use be compatible with surrounding uses,” he wrote. “The proposed TUBL uses are not compatible with adjacent land uses and the surrounding neighbourhood: (RV) camping/parking for 30,000-40,000 people, the noise, traffic, dust, litter, trespassing, shouting, vulgarity and disruption of rural living is of a size and scale vastly greater than anything surrounding the TUBL lands.”

Donnelly’s closing submission looked at the ways the TUBL didn’t measure up, highlighting the various experts he called to testify. Macos took issue specifically with the testimony of Arthur Churchyard, who appeared under summons from the Ontario Ministry of Agricultural, Food and Rural Affairs.

“(Churchyard) took extreme positions in interpreting policy documents to prevent (an) encroachment onto agricultural land whether temporary or not,” Macos said, adding, “Mr. Churchyard’s strong policy emphasis is demonstrative of his lack of experience.”

Churchyard was one of the many Save Oro/WORA witnesses who looked to specific portions of the Provincial Policy Statement (PPS) for rationale as to why the temporary-use bylaw should be denied.

“The TUBL lands are in a prime agricultural area,” Donnelly wrote. “The 2014 (PPS) Policy 2.3 provides clear direction these areas are to be protected for agricultural, and prohibits non-agricultural in prime agricultural areas.”

That ran counter to the argument of Vella, who suggested a broader scope by applied.

“Mr. Vella stressed the PPS is to be read in its entirety,” Williams wrote. “Individual policies are not to be fixated on or considered in isolation.”

Vella did look at the PPS sections specifically as well, though, and Macos spent time in his submission to show how his expert, too, justified the TUBL in narrow terms.

One of the township’s caveats for support of the appeal was the acceptance of a Stage 2 archeological assessment report by the Ontario Ministry of Tourism, Culture and Sport (MTCS). Archeology is the reason the Montagnais want the appeal thrown out.

“The Stage 2 archeological assessment should not be accepted as evidence,” Grand Chief Keith Doxsee wrote. “The assessment does not comply with the MTCS standards.”

The Stage 2 assessment, completed at the conclusion of the festival season in 2016, was initially accepted into the ministry’s register. However, the study inadvertently missed 3.2 acres of land that should have been investigated, and the acceptance was pulled.

Doxsee isn’t satisfied with excluding the study because of the error. He questioned the integrity of the archeologist who completed the report.

“There is sufficient doubt about whether the archeologist had scope limitation imposed on him by the proponent’s counsel,” Doxsee wrote. “The appearance of taking direction from the proponent’s counsel, which is contradictory to his publicly stated views, is sufficient to disqualify him as an expert.”

A significant portion of Doxsee’s submission dealt with issues surrounding aboriginal consultation, which was not included on the issues list for this hearing. As well, he suggested a ruling made by the board during the pre-hearing of this file violated the charter rights of the Montagnais and its leadership by insisting only those Métis who are part of the Métis Council of Ontario are recognized in the province.

The hearing had been scheduled for three days in May, allowing for a decision to be issued, ideally, sometime before the 2016 festival season. Instead, testimony in the hearing lasted 11 days stretched over nine months.

There were no oral closing submissions, as both the initial closing and the replies will be submitted to the board in writing.

Reply submissions are due Feb. 21. 

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