Sobczak v. Town of Carelton, 2004 ONNFPPB 23

ONTARIO

NORMAL FARM PRACTICES PROTECTION BOARD

Sobczak v Town of Carelton

2004 ONNFPPB 23

DATE OF DECISION:

2004-01-30

2003-04

STATUTE:

Farming and Food Production Protection Act 1998

HEARING:

BETWEEN:

Lawrence Walter Sobczak – Applicant

And

The Corporation of the Town of Carelton Place – Respondent

DECISION

PURPOSE OF THE HEARING

This application is made by Lawrence Sobczak for relief under Section 6 of the Farming and Food Production Protection Act, 1998 with respect to the Town of Carleton Place By-Law no.38-2001. The Applicant seeks a determination as to whether a practice is a normal farm practice for the purposes of (he non-application of a municipal by-law, namely the Town of Carleton Place by-law no.38-2001.

At the commencement of the hearing it was determined that several family members of the Applicant, namely Mrs. Sobczak a daughter and a son were owners of portions of the subject lands. There was no request to add the co-owners as Applicants.

The Hearing took place at the Municipal building, Town of Carleton Place, 175 Bridge Street, Carleton Place, ON on Thursday, November 20,2003.

EVIDENCE

WITNESS FOR THE APPLICANT

LAWRENCE SOBCZAK

Mr. Sobczak is a retired academic who has been growing Christmas trees for 20 years. He has two Christmas tree farms, one in the Whitby area with a plantation of 14,000 trees and the other in Carleton Place with a plantation of 40,000 trees. It is the Carleton Place plantation that is the subject ofthis hearing. Aproximately 40% of the plantation consists of Scotch Pines and the remainder of Spruce trees. Mr. Sobczak described Christmas tree farming as a retirement project. He was raised on a farm in the Whitby area where his family grew vegetables and fruit and raised cattle. The subject lands lie within the corporate limits of the Town of Carleton Place.

The property is bounded on the south by Townline Road, on the west by Edmond Street and on the east by Lanark Street. There are 6 residential properties which abut the subject land in the area of the southwest comer of the property, 4 residential properties which abut the subject property in the general area of the southeast comer of the property and two homes which are located along the easterly side of the property near the northerly boundary.

Mr. Sobczak testified that Scotch Pine trees are subject to disease caused by Pine Beetles which if ignored can result in damage varying from the loss of a few limbs to the death of the tree. Once damaged the trees are commercially worthless because those wishing to purchase Christmas trees will avoid those that are deformed. He stated that in order to control the decease it is necessary to burn the trimmings and stumps which prevents the Pine Beetles from infesting and killing the remaining Christmas trees. For the past 20 years he has burned the trimmings which seems to have kept the pests under control and no damage was sustained. Normally the brush is burned twice a year in late November or early December and then again at the end of December or early in January.

Mr. Sobczak explained that his practice in the past was to contact the Perth Fire Department to obtain permission for an open fire on the Carleton Place property and verbal permission had always been obtained. He stated that the same procedure was followed in 2002, and on December 24, 2002 the Applicant started a fire in a location which was toward the northerly limit of the subject property and approximately 5 to 600 feet away from the closest residence and 1000 feet away from most of the residences which abut the Applicants farm. The weather conditions on that date were described as

quiet with little wind.

Mr. Sobczak stated that the smoke from the fire went straight up to a height of about 100 feet but then it moved in such a way as to enshroud the residences which abut the Applicants tree farm. Mr. Sobczak testified that Mr. Morley Black the fire chief for the Town of Carleton Place attended at the tree farm "unannounced" on the 24th day of December willie the burning was in progress and ordered that the fire be extinguished.

Mr. Black advised Mr Sobczak of the provisions of the Town of Carleton Place By-law No 38-2001 which required that Mr. Sobczak obtain a fire permit prior to starting an open fire. It was the evidence of Mr. Sobczak that he was told by Mr. Black that he would never be issued a permit for an open fire for the burning of the stumps and brush at the location of this tree farm.

The Applicant testified that as a direct result of not being able to burn the brush and stumps in 2002 the Scotch Pine Christmas trees on his plantation suffered varying degrees of damage which resulted in a loss of approximately 1,000 trees in 2003. In an effort to determine the cause of the damage to the Scotch Pine trees Mr. Sobczak forwarded samples of the dead limbs for analysis and was advised that the damage was caused by Pine Thrigs.

He has been advised that the best method of controlling the Pine Thrigs is to bum the trimmings. Trucking the trees to a dump for mulching is not a good solution because the insects are in a flying state and they still can infect the crop. Use of insecticides may prevent the damage but as of the date of the hearing Mr. Sobczak had not yet been able to assess the results of the use of insecticide 2003.

Mr. Sobczak testified that he should be able to obtain a permit and have a fire at the location of the tree farm in an effort to control the decease. He states that the fire has been the control method of choice for 20 years and that is normal farm practice among Christmas tree farmers. The Corporation of the Town of Carleton Place open burning bylaw No. 30-2001 prevents him from having an open fire to burn the brush and thereby restricts his normal farm practice.

WITNESS FOR THE RESPONDENT

MORLEY BLACK

Morley Black has been Fire Chief for the Town of Carleton Place for the past ten years and has been a member of the Carleton Place Fire Department for a total of 31 years. Mr. Black stated that a 911 call was received at the Fire Hall at approximately 11 :00 a.m. on December 24, 2002 advising of a house fire on Edmond Street. Mr. Black stated that when he passed the Applicant's tree farm several houses which abut the tree farm were completely enveloped with smoke from the open fire located on the Applicant's property. The smoke created a visibility problem on the roads in the immediate area of the tree farm. Mr. Black ordered that the fire be extinguished and advised Mr. Sobczak that in order to have an open fire he must comply with the provisions of the by-law of the Town of Carleton Place open burning by-law #38-2001.

It was Mr. Black's evidence that the purpose of by-law #38-2001 is to regulate the burning of brush and other inflammable material within the limits of the Municipality. He stated that such a by-law is necessary to protect the best interest of the inhabitants of the Municipality. He stated that Carleton Place was one of the only Municipalities in the area which continued to allow open fires but that such open fires had to regulated. One way of regulating the fires was to require that anyone wishing to have a fire must obtain written authorization of the Fire Chief to do so. Upon receiving such a request the Fire Department would arrange to visit the property to check the nature of the substance to be burned, the location of the property and its relation to residences, the wind direction and other relevant consideration which might affect the suitability of a fire at the particular time and at that particular place. Such checks he stated were necessary to protect the property and inhabitants of Carleton Place and to ensure that the fire would not discharge a contaminant in to the atmosphere.

Mr. Black testified that the prevailing wind in that area would normally be southwest and would carry the smoke toward the houses that abut the property. If the wind was blowing in a northerly direction it would be less likely that there would be a smoke problem. Mr. Black stated that he is apposed in principle to open fires because of the numerous complaints which are received from residents regarding smoke and ash and the very real possibility that a fire can get out of control and cause damage.

Mr. Black denied ever having advised Mr. Sobczak that a pennit to burn the brush at the location of the tree fann would never be granted. He stated that the purpose of the By-law is to regulate open fires but not to prohibit the same. It was his evidence that the proximity of the surrounding residences, the direction of the prevailing wind and the dense smoke that can result from such a fire could significantly limit the occasions when such a fire would not pose a risk to the person or property of neighbours. However, even if a fire pennit was issued, the Fire Department would not hesitate to extinguish the fire if it became apparent that the fire posed a threat to the safety or rights of the residents. The fire at the Applicant Christmas tree fann on December 24, 2003 did pose such a treat and for that reason it was extinguished.

THE LEGISLATION

THE FARMING AND FOOD PRODUCTION PROTECTION ACT, 1998 (THE "ACT")

The Board was established by and this Application was brought under the Act. At the outset, it is appropriate to look at the preamble for some guidance as to the purpose and interpretation of this legislation. It states as follows:

"It is desirable to conserve, protect and encourage the development and improvement of agricultural lands for the production of food, fiber and other agricultural or horticultural products. Agricultural activities may include intensive operations that my cause discomfort and inconvenience to those on adjacent lands. Because of the pressures exerted on the agricultural community, it is increasingly difficult for agricultural owners and operators to effectively produce food, fiber and other agricultural or horticultural products. It is in the Provincial interest that in agricultural areas, agricultural uses and normal farm practices be promoted and protected in a way that balances the needs of the agricultural community with Provincial health, safety and environmental concerns."

This Application was made under Section 6 of the Act. Subsections 1, 2 and 3 of Section 6 of the Act provide as follows:

1. No Municipal by-law applies to restrict a normal farm practice camed on as part of an agricultural operation.

2. A person described in Subsection (3) or a Municipality may apply to the Board, in a form acceptable to it, for determination as to whether a practice is a normal farm practice for purposes of the non-application of a municipal by-law.

3. An application may be made by,

(a) farmers who are directly affected by a municipal by-law that my have the effect of restricting a normal farm practice in connection with an agricultural operation; and

(b) persons who want to engage in a normal farm practice as part of an agricultural operation on land in the Municipality and have demonstrable plans for it"

Subsections 15 and 16 of Section 5 also provide:

"(15) In determining whether a practice is a normal farm practice, the Board shall consider the following factors:

1. The purpose of the by-law that has the effect of restricting the farm practice.

2. The effect of the farm practice on abutting lands of neighbours.

3. Whether the by-law reflects a provincial interest as established under any other piece of legislation or policy statement.

4. The specific circumstances pertaining to the site.

(16) After the Board has completed the hearing, it shall provide a written decision stating whether the Board is of the opinion that;

(a) the farm practice is a normal farm practice;

(b) the farm practice is not a normal farm practice;

(c) the farm practice will be anormal practice if the farmer makes specific modifications in the practice within the time set out in the decision."

In order to properly interpret Section 6 one must look at Section I of the Act for various definitions. The relevant definitions for this Application are:

"farmer" means the owner or operator of an agricultural operation.

"agricultural operation" means an agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward.

"normal fann practice" means a practice that,

(a) is conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances, or

(b) makes use of innovative technology in a manner consistent with proper advanced farm management practices

THE ISSUES

1. Is the Applicant a farmer within the meaning of Subsection 6(3) of the Act?

2. If the Applicant is entitled to bring this Application under Subsection 6(3) of the Act, is the burning of tree stumps and brush from tree trimmings on the Applicant's land a normal farm practice for the purposes of the non-application of Town of Carleton Place By-law no. 38-2001 ?

FINDINGS AND REASONS

1. Is the Applicant a farmer within the meaning of Subsection 6 (3) of the Act?

In order to attract the protection of Subsection 6(1) of the Act the Applicant must be either a farmer or a person who wants to engage in a normal farm practice as part of an agricultural operation and have demonstrable plans for it as set out in Subsection 6(3) of the Act. The Applicants has the onus of establishing his entitlement to this protection.

In order to qualify as a "fanner" the Applicant must be the owner or operator of an agricultural operation that is carried on in the expectation of gain or reward. It is clear from this wording that the Legislature did not intend to give the protection of this Act to every agricultural operation. The preamble states that the purpose of the Act is to conserve, protect and encourage the development and improvement of agricultural lands for the production of food, fibre and other agricultural or horticultural products. The Respondent did not dispute that the Applicant is a fanner within the meaning of the Act.

In our opinion the Applicant is a farmer within the meaning of the Act.

2. If the Applicant is entitled to bring this Application under the Subsection 6(3) of the Act, is the burning of tree stumps and brush from tree trimmings on the Applicants land a normal farm practice for the purposes of the non-Application of the Town of Carleton Place By-law no. 38-2001?

The Act provides that the Board must consider the following factors in determining whether a practice is a normal farm practice:

1. The purpose of the by-law that bas the effect of restricting the farm practice.

The purpose of the By-law is to regulate and control the burning of brush and/or other inflammable material within the Town of Carleton Place. The By-law does not specifically target agricultural lands and we agree with the Respondent's position that the purpose of the By-law is to protect the person and the property of the inhabitants of the Municipality from fire or smoke damage on all types of property, including farm properties.

2. The effect of the farm practice on abutting lands and neighbours.

The burning of the stumps and brush from tree trimmings on the Applicant's land clearly has the potential to affect abutting neighbours. The degree of dryness of the material being burned, the intensity of the wind, the direction of the wind, and the time of year are some of the variables which could result in a fire having a significant impact on abutting lands and neighbours.

3. Whether the By-law reflects a provincial interests as established under any other piece of legislation or policy statement.

Section 102 of the Municipal Act, 1990, Chapter MAS authorizes Municipal Council to enact By-laws for the safety and welfare of the residence of the Municipality. The By-law reflects the Provincial interest to allow Municipalities to enact By-laws deemed necessary to protect the best interest of the inhabitants in the Municipality and the stated purpose of By-law 38-2001 is to do that.

4. The specific circumstances pertaining to the site.

The lands of the Applicant are located within the Municipal limits within the Town of Carleton Place. From a safety point of view there are residential properties which abut the subject lands. The considerable depth of property allow for the contruction of the fire near the north limit of the property in an area that could be approximate! y 600 feet distant from the closest residence. From the fire fighting perspective, Mr. Black does not indicate that there are difficulties with access and water supply problems in that area.

CONCLUSIONS

While the burning of dead trees and trimmings for the purposes of insect control can be considered a normal farm practice as such, the location of Mr. Sobczak's farm within the limits of the Town of Carleton Place presents some particular challenges.

The town was within its rights to enact a by-law regulating «(but not prohibiting) open fires. Fire Chief Black acted fairly and reasonably in enforcing the by-law. While he could deflect the complaints made by neighbours in previous years, he could not ignore a 911 call and a complaint of obscured visibility on a public road; the fire had to be extinguished.

It can safely be inferred from Mr. Sobczak's testimony that the volume of the trees and trimmings were greater than in previous years due to the increasing ravages of the pine thrips infestation. In his haste to take advantage of what he thought might be an ideal day for a 'bum', Mr. Sobczak failed to consider the impact of his practice on his neighbours' right to the enjoyment of their properties on the Christmas Eve day.

While the' Act' was intended to protect the rights of farmers to carry out normal farm practices, it does not exempt them from giving due regard to the rights of surrounding land owners.

DECISION

For the reasons stated, the Applicants farm practice of burning dead trees and trimmings at the location and under the circumstances of this case is not a normal farm practice and the Application to the Board is hereby dismissed.

DATED: January 30,2004

Ron Versteeg

Andrew Millar

Robert G. Stephens - Chair