Normal Farm Practices Protection Board
Normal Farm Practices Protection Board 1 Stone Road West, 2nd Floor NW Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: NFPPB@ontario.ca
Commission de protection des pratiques agricoles normales 1 Stone Road West, 2e étage NW Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: NFPPB@ontario.ca
NORMAL FARM PRACTICES PROTECTION BOARD
IN THE MATTER OF the Farming and Food Production Protection Act, 1998
AND IN THE MATTER OF an application to the Board, under Section 6 of the Farming and Food Production Protection Act, 1998 for a determination as to whether municipal by-laws are restricting a normal farm practice.
Board File No.: Belwood Poultry Ltd., v Corporation of the Town of Amherstburg
BETWEEN
Belwood Poultry Ltd.,
Applicant
And
Corporation of the Town of Amherstburg
Respondent
Appearances:
G. Edward Oldfield, Counsel for the Applicant
Jeffrey Nanson, Counsel for the Town of Amherstburg
Before:
Glenn C. Walker, Vice-Chair
Thomas Field, Member
Jane Sadler Richards, Member
REASONS FOR DECISION
A. INTRODUCTION
An application was made to the Board by the Corporation of the Town of Amherstburg (the “Town”) pursuant to Section 6 of the Farming and Food Production Protection Act, 1998, S.O. 1998, Ch. 1, as amended, (the “Act”). The application requests a determination as to whether certain of the Town’s by-laws apply to the operation of Belwood Poultry Ltd. (“Belwood”). The by-laws considered by the Board were By-law No. 1999-28 (Property Standards By-law), By-law No. 2001-43 (Noise By-law), By-law No. 2005-60 (Yard Maintenance By-law) and By-law No. 1999-52 (Zoning By-law).
Pursuant to an Order of the Board dated April 3, 2018, on consent, the application was amended so that Belwood became the Applicant and the Town became the Respondent with the onus on the applicant to prove the nature of the farm practice in question, that the farm practice is a normal farm practice and that the farm practice is restricted by the by-laws.
The application was heard by the Board at Amherstburg, Ontario on September 5 and November 14, 15 and 16, 2018.
On behalf of the Applicant, the Board heard evidence from David Maxwell, Tyler Schlegel and Thomas Hayter. On behalf of the Respondent, the Board heard evidence from B. J. Wilder, by-law enforcement officer for the Town. An acoustical assessment report prepared by Dr. Colin Novak, who was qualified to give expert opinion evidence in the area of noise assessment and abatement, was also received in evidence, on consent, in support of the Applicant’s case. As part of the Board’s Rule 55 process, allowing for public participation in the hearing, evidence was received from June Boussey.
B. FACTUAL BACKGROUND
Site Location and Description
Belwood operates a turkey processing plant at 4272 Concession Four North, Amherstburg, Ontario (the “site”). Tyler Schlegel is the Chief Financial Controller, a Director and Corporate Secretary of the company as well as the owner of a 16.67 per cent interest in the company. He is also the corporate presence on site.
The present owners of Belwood, the Schlegel family or their related corporations (Schlegel Family Group), purchased the corporation in March 2014. David Maxwell was the president of the company before the purchase and now works as an employee of Belwood in sales three days a week. Belwood has operated a turkey processing plant at this location since 1973. Belwood previously raised turkeys on this site as well but has not done so since 2014, although the facilities to do so are still there and they may do this again in the future.
The farm on which the site is located is approximately 55 acres in size with the footprint of the buildings taking up 2 acres more or less. The buildings consist of the turkey processing plant with a compressor/condenser unit on the roof, a pole barn for maintenance and a waste water holding area, a turkey grow out barn (currently empty), an external water chiller, a generator unit, a live receiving shed, weigh scales and a house for the plant foreman, among others. There are 2 entrances to the site from Concession Road North; a north entrance and a south entrance. Exhaust fans and lights are mounted on the south wall of the processing plant. There is another pole light near the weigh scale.
Immediately south of the processing plant is 4264 Concession Road North, a one-storey residence owned by June Boussey (“Boussey”) since February, 2003. The evidence showed that this house was located there when Belwood bought the site in 1966 or 1967, although at that time a two-storey house, which has since been demolished, was located between the Boussey residence and the plant. Belwood has constructed a twelve-foot chain link fence just inside the property line between it and the Boussey property. A portion of the fence is slatted to provide privacy and reduce light emissions.
Site Activities
Belwood has processed turkeys since 1962 and is one of five turkey processing operations in Ontario that is federally inspected. A substantial majority of the turkeys processed are sourced from the Schlegel Family Group with the remainder coming from outside sources. As Belwood is not growing turkeys on site at the present time, all product must be brought in by truck, although the evidence disclosed that some turkeys may be grown on site in the future.
Slaughter of the birds takes place on Monday, Wednesday and Friday with more days added during the busy seasons preceding Thanksgiving and Christmas. During the night prior to kill days, transport trucks drop off trailers loaded with turkeys. The birds must he moved at night to keep them calm. A shunt truck is then used to move the trailers around the site. Starting at about 6:20 am the trailers are weighed and then moved to a bay in the turkey processing plant where the birds are removed by hand and hung on a shackle line which moves them through the various stages of killing and processing. Packaging, if it is happening on site, will take place on the non-kill days.
The wet feathers are moved outside on a conveyor belt to be dumped in a trailer with high sides. The viscera, likewise, are augured into another similar trailer. Both of these trailers and the contents are removed from the site by the end of the day. Inedible parts such as heads, feet, bruised carcasses, are placed in large plastic bins to be trucked away for rendering. Occasionally, during the busy seasons, these full bins are placed outside at the south end of the plant, if there is no more space inside the building. Once the day’s harvest has been completed in each stage of the process, the sanitation crew starts to clean. Sanitation is usually completed by 8:00 pm but can go until as late as the early hours of the next day. It is common ground that since the Schlegel Family Group acquired Belwood in 2014, the processing activity has increased.
Nature of Complaints
Since 2016, the Town has received complaints concerning the Belwood site with respect to noise, dust, light and feathers and turkey parts, cardboard and skids located in the yards on the site. The complaints have only come from Boussey.
Noise
The sources of noise related to the site are the transport trucks coming and going from the site, the shunt truck moving the trailers around the site, the fork lift, the chill unit, the compressor, the slamming of vehicle doors and yelling, shouting and singing of employees outdoors. Belwood has attempted to remediate some of these issues by requiring truck drivers to use the north entrance to the site, the one further away from Boussey’s home, when this is possible and by moving employee parking further north on the site.
Dust
Dust has migrated unto the Boussey property as result of trucks entering and driving on the site.
Light
Boussey has experienced an issue with light from truck lights and the exterior lights on the south side of the processing plant. Belwood has constructed a slatted fence twelve feet high in an attempt to reduce some of this disturbance.
Feathers, Turkey Parts and Cardboard
The feathers can be sourced to the open trucks in which the turkeys arrive. The turkey parts on the ground result from either spillage from the open bins when stored outside or as a result of scavengers removing the parts from the outside bins. It appears that these are removed by employees when noticed. New bins for garbage have been installed to prevent waste such as cardboard from blowing around and littering the site. Skids are removed as soon as practicable.
C. THE ACT
The objectives of the Farming and Food Production Protection Act, 1998, are set out in the preamble, which states as follows:
“It is desirable to conserve, protect and encourage the development and improvement of agricultural lands for the production of food, fibre and other agricultural or horticultural products.
Agricultural activities may include intensive operations that may cause discomfort and inconveniences 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, fibre 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 the provincial health, safety and environmental concerns.”
Subsection 6(1) of the Act provides as follows:
“No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.”
Subsections 6(15) and 6(16) further provide:
”In determining whether a practice is a normal farm practice, the Board shall consider the following factors:
The purpose of the by-law that has the effect of restricting the farm practice.
The effect of the farm practice on abutting lands and neighbours.
Whether the by-law reflects a provincial interest as established under any other piece of legislation or policy statement.
The specific circumstances pertaining to the site.”
“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; or
(c) The farm practice will be a normal farm practice if the farmer makes specific modifications in the practice within the time set out in the decision.”
“Agricultural operation” means an agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward”.
“For the purpose of the definition of ‘agricultural operation’, ‘agricultural, aquacultural, horticultural or silvicultural operation’ shall be construed to include, …
(h) the storage, handling or use of organic wastes for farm purposes;
(i) the processing by a farmer of the products produced primarily from the farmer’s agricultural operation;
(j) activities that are a necessary but ancillary part of an agricultural operation such as the movement of transport vehicles for the purposes of the agricultural operation;”
“farmer” is defined as “the owner or operator of an agricultural operation”
“Normal farm 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.”
D. DISCUSSION AND ANALYSIS
Prior to proceeding with the application, the Board considered whether the Belwood processing plant met the definition of “agricultural operation” as defined in the Act. In a Pre-Hearing Conference Order dated April 3, 2018, the Board found that the Belwood operation was an agricultural operation and that it had jurisdiction to proceed. For ease of reference the following are the reasons given by the Board at that time.
“The question before the Board is whether or not the turkey processing plant owned and operated by Belwood meets the definition of agricultural operation as defined in the Act.
Based on the affidavit evidence and the submissions of the Respondent, the Board makes the following findings:
The turkey processing plant, which is located at 4272 Concession Road 4 North, Amherstburg, Ontario and which is the subject-matter of this hearing, is owned and operated by Belwood.
Belwood is wholly owned by Great Lakes Poultry Holding Corp.
66.66% of Great Lakes Poultry Holding Corp. is owned by Tyson Schlegel Holdings Corporation.
16.67% of Great Lakes Poultry Holding Corp. is owned by Tyler Peter Schlegel.
16.67% of Great Lakes Poultry Holding Corp. is owned by Schlegel Enterprises Inc., a corporation wholly owned by Peter Daniel Schlegel.
Tyson Daniel Schlegel and Tyler Peter Schlegel are the sons of Peter Daniel Schlegel.
Turkeys slaughtered and processed at the Belwood site in question are produced by Great Lakes Poultry Farms Ltd., Hanover Turkey Farms Ltd. and Tyson Turkey Farms Inc., all of which are wholly owned by Tyson Schlegel Holdings Corporation, which is a corporation owned wholly by Tyson Daniel Schlegel.
For the years 2016/2017 (based on the year end used by Turkey Farmers of Ontario) 68.14% of the turkeys slaughtered at Belwood were sourced from the Schlegel Family Group.
For that portion of the years 2017/2018, ending on December 31, 2017, 81.19% of the turkeys slaughtered at Belwood were sourced from the Schlegel Family Group.
For our purposes, the Schlegel Family Group consists of Tyson Daniel Schlegel, Tyler Peter Schlegel, Peter Daniel Schlegel and their related corporations referenced above.
The issue at hand is whether or not Belwood, the “farmer”, is processing products produced primarily from its agricultural operation. The definition of “primarily” in the Oxford Dictionary is “for the most part; mainly”.
Two issues arise: firstly, considering the definition of “farmer” can we include related corporations and family members; secondly, how should “primarily” be defined in the Act? These are both questions of interpretation of the Board`s home statute and the Appeal Courts have found that the Board should be given deference in interpreting its home statute.
The Board notes the following submissions made by counsel for the Respondent with respect to statutory interpretation:
The first is a quotation from Construction of Statutes, 2nd ed., (Toronto: Butterworths 1983) by E. A. Driedger, which states as follows: “Today there is only one principle approach namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament”;
A reference to Oakville (Town) v. Read (2011 ONCA 22) in the Court of Appeal states that “the modern approach to statutory interpretation requires the Courts to consider the applicable legislation in its entirety and to read the impugned provision harmoniously with the scheme of the statute in question”.
In dealing with the issue of whether it is the “farmer” whose product is being processed, the Board finds that it is necessary to consider the modern approach to farming which includes the use of corporations and related corporations which are now frequently used in farming operations. The Board also recognizes that the purpose of the Act, set out in its preamble, is to balance the interest of farmers and adjacent landowners. It would be incongruous to exclude from the purview of the Act those farm operations where the product being processed was not produced directly by the owner or operator of the processing facility but by family members or corporations related to the farmer. This would certainly not meet the objectives of the legislation. Accordingly, the Board finds that through its related corporations and family members, Belwood is processing product produced from the farmer’s agricultural operation.
The next issue is to consider the word “primarily” as used in Subsection 1(2) (i) of the Act. Does this mean 51%, 60%, 70%, 80% or 90%? Again, reading the Act in its entirety, and considering its objectives, the Board is prepared to find that, with respect to this application, Belwood is processing turkeys produced primarily from the farmer’s agricultural operation without specifying an actual percentage test that must be met.
The Board therefore finds that it does have jurisdiction to entertain and hear this application.”
Issues to be Determined
The issues to be determined by the Board are:
(a) What are the farm practices in question?
(b) Are the farm practices normal farm practices?
(c) Are any of these farm practices restricted by the four by-laws in question?
Farm Practices
The Board finds that the following are the farm practices to be considered in the context of this hearing.
(1) Truck Activity
The first farm practice to be considered is that of movement of transport trucks in, out and around the site for the purpose of delivering turkeys to be harvested and supplies and for the removal of product and waste by-products. Also included in this practice would be trucks idling and refrigeration trucks running to keep product cool as well as the operation of the shunt truck and lift fork. These activities are found to be a necessary but ancillary part of the agricultural operation. We find, that out of necessity, some of this truck traffic must take place at night and that these activities may generate noise, dust and light.
(2) Outdoor Employee Activity
The next activity to be considered is the outdoor activity of the Applicant’s employees on the site. This would include the arrival very early in the morning of employees by car or truck and the departure of some of the employees late at night. The doors to the live bay must remain open while it is being cleaned and sometimes this is later in the evening. Boussey has complained of car/truck doors slamming, car lights and employees yelling, shouting and singing outdoors. Belwood has moved the employee parking area further north away from Boussey’s residence and asked employees to use the north entrance to the site to reduce noise and light from car/truck headlights. Due to the operation of cleaning equipment and the other ambient noises common to the site, it may be necessary for employees to yell or shout in order to be heard. These activities may generate noise and light.
(3) Delivery of Live Turkeys in Open Trucks
The turkeys to be harvested arrive by transport truck in open crates and remain outside until the trailer is weighed and taken to the live bay. During this time some feathers escape from the crates. This is almost inevitable. This practice may generate turkey feathers escaping unto the site and to some extent unto neighbouring properties.
(4) Outdoor Storage of Inedible Parts
Occasionally, especially during the busy seasons, when production is increased, there is not enough room in the plant to store all of the bins containing the inedible turkey parts. These bins are either removed or moved inside at the end of the processing day. Inevitably, there is going to be some spillage due to the bins being over-filled or removal of parts by scavengers. It would not be practical to cover the bins for their short stay outside.
(5) Outdoor Storage of Cardboard and Skids
The accumulation of used card board boxes and skids is the result of any processing business and we find it to be a farm practice in connection with this turkey processing plant. The applicant is now using fully covered bins to contain the cardboard and there should no longer be a problem of it blowing out of the bins.
(6) Non-Hard Surface Areas for Traffic and Parking
The areas on the property used for vehicular traffic and parking are compacted stone or gravel. This may generate dust.
(7) The Location of the Belwood Operation
In view of the complaints lodged with the municipality by Boussey, we believe that we must also consider whether Belwood’s agricultural operation situated at this location in the context of abutting lands and neighbours is a normal farm practice. As required by Subsection 6(15) of the Act, we are required to consider “the specific circumstances pertaining to the site”.
(8) Outdoor Lighting
This business requires that much activity outdoors in the vicinity of the processing plant take place before and after daylight requiring that the yard adjacent to the processing plant be illuminated.
Property Standards By-Law
The Property Standards By-Law, passed on May 10, 1999, contains six parts. Part II – General Standards for All Property and Part V – Non-Residential Standards are the parts that are relevant to this hearing. The by-law does not contain an exemption for agricultural properties or for normal farm practices. The Belwood agricultural operation falls within the definition of “non-residential property” and “yard” as defined in Part I.
The Board must first determine whether or not the eight farm practices named above are normal farm practices in relation to this by-law after considering the four factors set out in Subsection 6(15) of the Act.
The by-law requires every owner or occupant to keep yards clean and free from rubbish or debris and objects or conditions that might create a health, fire or accident hazard (2.02(1)). Surface conditions of yards are to be maintained so as not to exhibit an unsightly appearance, to be kept free of refuse and garbage and not to create a nuisance to other property (2.03(4), (5) and (8)). Garbage containers are to be constructed with a tight-fitting cover and maintained in a clean and odour free condition at all times (2.11). All garbage is to be removed in accordance with the Municipal Garbage By-Law (2.12). Garbage storage areas are to be screened from public view (2.13).
The warehousing or storage of material that is required for the continuing commercial aspect of non-residential property is to be maintained in a neat and orderly fashion so as not to create an unsightly condition and where that cannot be achieved to be enclosed by a solid fence not less than 1.8 meters in height (5.03). And where a non-residential property abuts a residential property, all areas used for vehicular traffic and parking shall have surface covering of asphalt or similar hard surface (5.04).
The purpose of the by-law, as established in its preamble, is to prescribe standards for the maintenance and occupancy of all property within the municipality and to prohibit the use of such property that does not conform to the standards. Subsection 6.10 provides that where a provision of this by-law conflicts with a provision of another by-law of the municipality, the provisions that establish the higher standards to protect the health, safety and welfare of the general public shall prevail. Based on this statement, it can be said that the overall purpose of the by-law is to protect the health, safety and welfare of the general public.
The only evidence of the effect of the eight enumerated farm practices on abutting lands and neighbours comes from the evidence of Ms. Boussey. The Board must keep in mind that Ms. Boussey is not a party to this hearing, nor is this an application to the Board by her under Section 5 of the Act wherein she has alleged certain disturbances created by Belwood. However, we have her evidence and have taken it into account as part of the effect of the farm practices on abutting lands and neighbours. There does not appear to be any other neighbour who has come forward with complaints.
The Board was not referred to any provincial interest as established under any other piece of legislation or policy statement which is reflected in the subject by-law; however, we note that it is authorized under the Building Code Act, 1992. The specific circumstances pertaining to the site have been outlined above.
The Board finds all of the eight farm practices to be normal farm practices in relation to the Property Standards By-law. We rely upon the unchallenged evidence of Tyler Schlegel and Thomas Hayter to conclude that these practices are conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances. We are satisfied that all of these practices in relation to this by-law are necessary in to order conduct a viable and productive agricultural business.
Portions of Part II – General Standards for All Property and Part V – Non-Residential Property Standards restrict these farm practices. In view of the nature of this agricultural operation it is not always possible to comply with the requirements for yards to be kept clean and free from feathers, inedible turkey parts, cardboard and skids; nor, to maintain surface conditions of yards so that they do not exhibit an unsightly appearance or create a nuisance to other property owners.
Garbage and refuse are not defined in the by-law but could include the organic waste which is a by-product of the processing of the turkeys, such as feathers, blood and viscera. These are disposed of by Belwood in a commercially and environmentally acceptable manner which would not be compliant with sections 2.11, 2.12 and 2.13 of the by-law.
There are aspects of the agricultural operation which might be considered unsightly and offensive to some members of the public, such as the outdoor storage of inedible parts from time to time and the collection method for other by-products of the process. There is no evidence that such activities must take place indoors or be hidden by a fence to be a normal farm practice.
Finally, it would not be realistic to require that the surface areas used for vehicular traffic and parking in an agricultural operation be paved as anticipated by Section 5.04 of the by-law.
The Board therefore finds that the Property Standards By-Law shall not be applied in such a manner that it would have the effect of restricting the eight normal farm practices identified by the Board and used by Belwood in its agricultural operation carried on at 4272 Concession Four North, Amherstburg, Ontario.
Noise By-Law
The Noise By-Law passed on November 26, 2001 regulates the emission of sound. It defines “Point of Reception” as any point on the premises of a person where sound or vibration originating from other than those premises is received. There is a general prohibition against the emission of sound, which is clearly audible at a point of reception, arising from the operation of motor vehicles in a variety of different situations (Section 2). Section 3 provides for a number of prohibitions of sound emission based on time and place. A number of these prohibit the emission of sound at any time or during the night or early morning. Commercial areas are given more latitude while Residential and Agricultural areas are lumped together.
There are some exceptions set out in Section 4. Of note, is Section 4(b) which provides that any sound arising from the operation of any farm equipment or works associated with the operation of farming is lawful. “Farming” is not defined in the by-law. The by-law allows for an application to council for an exemption; however, the exemption is in the discretion of council and must not exceed six months.
The purpose of the by-law is to control noise within the municipality in order to protect the health and general welfare of its inhabitants.
Some of the farm practices listed above have had an effect on Boussey, the closest neighbour, namely truck activity and outdoor employee activity resulting in noise emissions as described above in these reasons. The Board heard no evidence to show that any other abutting owner or neighbour was affected.
This by-law does reflect a provincial interest which is the mandate of the Environmental Protection Act, R.S.O. 1990, c.19 to regulate and reduce noise pollution. This policy is set out in the Ministry of the Environment and Climate Change (MOECC) Noise, Pollution and Control Guidelines (NPC)
Boussey claims that the movement of transport trucks to, from and on the Belwood site, including the use of the shunt truck and lift fork on the site, as well as yelling, shouting and singing as a result of outdoor employee activity have affected her. In determining whether or not these are normal farm practices we must examine the specific circumstances pertaining to the site.
In Pyke v. Tri-Gro Enterprises Ltd. (2001) CanLII 8581 (ON CA), the Court of Appeal stated:
“…the determination of what constitutes a ‘normal farm practice’ must be made in a proper context, and that, depending on the practice under review, the context may be broad indeed, involving the consideration of many relevant factors including the proximity of neighbours and the use they make of their lands.”
The Board may also take into consideration the severity of the effect on the neighbour and whether or not the agricultural operation has changed the character of the neighbourhood.
Dr. Colin Novak was qualified, on consent, to give expert opinion evidence in the area of noise assessment and abatement. His Acoustical Assessment Report, dated July 30, 2018, was accepted into evidence. The Belwood agricultural operation was assessed as a 24-hour continuously operating facility and classified as a Class 2 area. It was determined that the facility has 22 significant sources of noise; the most dominant of which was the refrigeration trucks parked on the site. Three points of reception (POR) were identified; however, for our purposes it is only necessary to consider POR01 which is the Boussey property.
The study found that the MOECC exclusion limits were met for all cases except for the day and night time at POR01. Dr. Novak recommended that a noise barrier be installed along the property line between the Belwood facility and the Boussey property in order to ensure compliance with MOECC guidelines.
Both the Belwood property and the Boussey property are zoned “Agriculture”. Both have had their present uses as agriculture and residential (presumably legal non-conforming) for many years. There may be two more recent factors that have changed the character of the neighbourhood as it relates to these two neighbours. Firstly, the two storey house which formerly existed between the Belwood facility and the Boussey property has now been demolished removing a possible sound barrier and leaving the Boussey residential property more exposed to sound emissions. Secondly, the Belwood plant has become much busier than in the recent past and all of the live turkeys are now being trucked in.
The Board finds all of the eight farm practices to be normal farm practices in relation to the Noise By-Law provided that the applicant constructs and maintains a noise barrier between its property and the Boussey property in accordance with the recommendation and specifications provided by Dr. Novak.
The Board further finds that the by-law restricts these farm practices, specifically those that have the ability to produce noise. The by-law does not take into consideration this type of agricultural operation but equates an agricultural area to a residential area in Section 3. With respect to the exception set out in Section 4(b), the words “operation of any farm implement” and “works associated with the operation of farming”, although broad, would fail, in our opinion, to encompass the Belwood agricultural operation. The right to apply to council for an exemption is also restricting in that the result is solely within the discretion of council and, if granted, may not exceed six months.
For these reasons, the Noise By-law does not apply to the Belwood agricultural operation carried on at 4272 Concession Four North, Amherstburg, Ontario as it restricts normal farm practices.
Yard Maintenance By-Law
The Yard Maintenance By-Law, passed on June 27, 2005, regulates the maintenance of yards within the municipality. It does not contain an exception for agricultural properties or normal farm practices. The by-law requires every owner to keep his or her land free and clear of all garbage, refuse or domestic or industrial waste of any kind (Section 2.07). The definition of “Industrial waste” includes articles, things, matter, effluent which in whole or in part or fragments thereof are derived from agricultural or animal products. The definition also includes bones, feathers, pallets and sewage.
The consideration of the four factors set out in subsection 6(15) of the Act is very similar to the factors considered in relation to the Property Standard By-Law and have already been expressed by the Board in these reasons.
The Board finds all of the eight farm practices to be normal farm practices in relation to the Yard Maintenance By-Law for the same reasons given above in connection with the Property Standards By-Law.
The Board further finds that these normal farm practices are restricted by the By-law in that it makes no accommodation for an agricultural operation of this nature.
The Board therefore finds that the Yard Maintenance By-Law shall not be applied in such a manner that it would have the effect of restricting the eight normal farm practices identified by the Board and used by Belwood in its agricultural operation carried on at 4272 Concession Four North, Amherstburg, Ontario.
Zoning By-Law
The Board was referred to Section 3, subsection 13 under the General Provisions of the Corporation of the Town of Amherstburg Zoning By-Law No. 1999-52, which provides as follows:
“LIGHTING
Lighting fixtures designed to provide exterior illumination on any lot shall be installed with the light directed or deflected away from adjacent lots and streets and shall not be similar to traffic lights.”
The practice at issue here is the use of the exterior lights on the south side of the processing plant. This is a necessary requirement in the operation of this business as much of the activity takes place after dark and light is needed for the safe movement of employees and trucks in the vicinity of the processing plant. The consideration of the four factors set out in subsection 6(15) of the Act is very similar to the factors considered in relation to the Property Standard By-Law and have already been expressed by the Board in these reasons.
The Board finds that, in relation to this subsection of the Zoning By-Law this is a normal farm practice.
In order to light the plant yard adjacent to the processing plant sufficiently, it may not be possible to deflect the light completely away from the nearest neighbour, being Boussey. An adequate amount of light is a safety issue. Attempts have been made by Belwood to reduce light emission onto the Boussey property by the installation of slats in a portion of the twelve-foot high chain link fence that separates the properties. Consequently, we find that this subsection of the Zoning By-Law does restrict this normal farm practice and that it shall not be applied in a manner so as to restrict this normal farm practice.
E. ORDERS
The Board therefore orders that:
(1) The Property Standards By-Law (By-Law 99-28), as amended to date, shall not be applied in such a manner that it would have the effect of restricting the eight normal farm practices identified by the Board and used by Belwood in its agricultural operation carried on at 4272 Concession Four North, Amherstburg, Ontario.
(2) The Noise By-Law (By-Law 2001-43), as amended to date, shall not apply to the Belwood agricultural operation carried on at 4272 Concession Four North, Amherstburg, Ontario, provided that Belwood construct, at its cost, a noise attenuation barrier between the site and the Boussey property.
(3) The barrier or fence must be constructed as soon as practicable, but no later than October 31, 2019, to the following specifications:
(a) The barrier or fence must have a minimum surface mass density of 20 kg/m2 and constructed with no gaps within the fence or between the fence and the ground;
(b) If constructed of wood, it may not have any gaps between adjacent boards which may be accomplished by having the material on each side of the fence overlap one another;
(c) The barrier or fence must have a height of 2.44 meters (8 feet) or greater;
(d) The barrier or fence must have a length of at least 50 meters (164 feet);
(e) The barrier or fence must be constructed approximately 1 meter to the north of the present chain link fence on the Belwood property, which fence is to remain in place.
(4) The noise attenuation barrier and the presently existing chain link fence shall be maintained by Belwood at its sole expense.
(5) Within four months of the completion of the construction of the noise attenuation barrier, the noise limits at POR1, as defined in the original report, shall be retested by Dr. Novak, at the sole cost of Belwood, and the results of the testing shared forthwith with the respondent. If the test results at POR1, still do not meet MOECC Guidelines, Belwood shall make such modifications to the barrier or fence as are recommended by Dr. Novak to meet the guidelines as soon as practicable and the noise limits at POR01 shall be retested. For further clarity, it the MOECC Guidelines are not met, the Noise By-Law shall be deemed to apply to the Belwood site.
(6) The Yard Maintenance By-Law (By-Law 2005-60), as amended to date, shall not be applied in such a manner that it would have the effect of restricting the eight normal farm practices identified by the Board and used by Belwood in its agricultural operation carried on at 4272 Concession Four North, Amherstburg, Ontario.
(7) The Section 3, Subsection 13 (General Provisions) of the Zoning By-Law (By-Law 99-52), as amended to date, shall not be applied in such a manner that it would have the effect of restricting the eight normal farm practices identified by the Board and used by Belwood in its agricultural operation carried on at 4272 Concession Four North, Amherstburg, Ontario.
DATED: April 24, 2019