Is adding hundreds of thousands of tons of fill a 'normal farming practice'?
Tuesday, October 2, 2012
No, says the Township of Uxbridge, anxious for its aquifer, and a Superior Court Justice agrees with it
by DON STONEMAN
Corrado and Concetta Bartolo say they want to turn a property they bought in the Township of Uxbridge into a productive farm by adding hundreds of thousands of tons of fill. And they say they consulted with township officials about improving the property for farming before purchasing the property.
The township says the Bartolos are running a commercial fill operation and passed a retroactive bylaw requiring them to have a fill permit. In June, a Superior Court Justice ordered them to cease operations and return the farm to its original condition. They face charges for infractions of various provincial acts for depositing fill without a municipal permit.
A key to this is whether adding fill to farmland meets the definition of a "normal farm practice."
The Bartolos' lawyer, Terrance Green of Ottawa, appealed the Superior Court decision and applied for a hearing before the Normal Farm Practices Protection Board. A favourable board decision would trump the Superior Court of Justice ruling, the Bartolos' lawyer says. The farm practices board "is considered a speciality board with specific expertise in the area," he adds.
At press time, the board was seeking legal advice as to whether it had jurisdiction in that area under the wording of the Farming and Food Production Protection Act, said Finbar Desir, secretary to the board.
The dilemma facing Uxbridge, and the Bartolos, is its location north of the ever-growing Greater Toronto Area. Construction of every subdivision and shopping mall involves scraping away and stockpiling topsoil beforehand. Only about 10 per cent goes back onto a subdivision after houses are built, Bartolo says, and developers pay operators to take it away. Bartolo, owner of Corbar Holdings Inc., has been providing fill to farmland for 10 years. Several years ago, the Bartolos decided to farm themselves.
The southern 45 per cent of the 200-square-mile township is located on the Oak Ridges Moraine, a 100-mile-long belt of land stretching from the east side of Northumberland in the east to Dufferin and Peel counties in the west. The moraine is deemed environmentally sensitive because it contains an important aquifer.
The Bartolos' lawyer argues that the Bartolos are exempt from the Uxbridge bylaw, passed after they bought their farm, because the Oak Ridges Moraine Conservations Act, under Section 13(1) encourages agriculture by "providing for the continuation of agricultural and other rural uses and 'normal farm practices.'"
In a June 28 decision, Justice M. Edwards ruled in the Superior Court of Justice in Newmarket that dumping topsoil onto farmland in the volumes that the Bartolos plan is not a normal farm practice. The Bartolos have applied to fill in low spots and a ravine on their 107-acre property with more than 300,000 tonnes of topsoil. Spread evenly over 100 acres, that topsoil would form a layer 30 inches thick.
The township's goal is to defend the aquifer "at all cost," says Township of Uxbridge mayor Gerri Lynn O'Connor. "Our number one concern is there aren't enough checks and balances for us as a council, that we feel protected enough … if something came in as a contaminant."
According to O'Connor, "the trucks coming into our municipality are astounding." No one knows where they are going with fill, she says, noting that a project has been approved at an airport in a nearby municipality. O'Connor cites "a problem" on the boundary of Kawartha Lakes and Durham Region, east of Uxbridge. "A lady was bringing in fill to her farm without a permit. The environment ministry found the fill was contaminated," O'Connor says.
Kate Jordan, spokesperson for the Ministry of the Environment, describes that situation in an email: "The ministry has inspected the site and confirmed there was no waste being deposited at the site but collected samples of the fill material as a precaution. The first round of samples taken did not identify any concerns; however, results of a second round did show higher levels of metal and hydrocarbons.
"As a result, the company agreed to immediately stop filling operations at the site and hire a qualified consultant to undertake an assessment of the quality of fill at the site. The ministry expects to receive the consultant's report very shortly and will review it and determine any needed next steps."
Corrado Bartolo says the topsoil he brings onto farmland is tested before trucking and he doesn't accept contaminated product. "I treat property as if it were mine," he says of the work he does on other farms.
O'Connor has her doubts. "We have a very high aquifer here," O'Connor says. "It could be a matter of only days" before drinking water was contaminated from bad fill, the mayor says.
"You are being told where the fill is coming from. How do you know it is clean? Has that specific truck been checked? It is easy for trucks to be dumped and refilled along their way."
O'Connor stresses that the township isn't against bringing in fill when it is needed to raise the grade for a house construction, for example, or if a farmer is installing tile drainage. "What we are preventing is commercial fill."
The Bartolos built their house and live on the farm where fill was being placed. Corn was growing there this summer on 28 acres. In June, the township sought, and received, an order from a judge to remove the fill and return the property to its original state. Corrado Bartolo says that would be very expensive, as well as destroy the growing crop.
The Corrados bought the property in June 2008 after conferring with town officials the previous March over their plan to add fill to make it a farm and in July applied for a permit. "They took our $100 application fee but never gave us a permit," Concetta says in an email. She says the bylaw didn't come into place until 2010. "They did indeed change the bylaw only after we had purchased the land for which they knew what we wanted to do all along."
The Bartolos have rehabilitated other farms in that area. Bill Reid, a former dairy farmer operating west of Brooklin, says he made another 10 acres productive by adding topsoil from construction sites. Reid describes how part of his property "dropped off." Without the fill, "it was what I call scrub ground," says Reid, who plants and harvests crops on the Bartolo property. "Last year was to be the first year we actually made money," Corrado Bartolo says. They sold their 2011 crop for more than $30,000.
A short distance from the Bartolos and just across the town line into Pickering, Toad Hill Farm owner Dan Barkey says filling in more than 40 acres of fields with topsoil has been a boon to his alfalfa crop. Hay yields have almost doubled to 32 bales an acre, even in droughty 2012. Soils in Pickering have a layer of impermeable clay, Barkey explains, describing it as "cold, wet, sour land."
Barkey brought the field level up as little as one foot and as much as 15 feet in some places. The top-soil provider "pays me" to deposit it, Barkey says. The owner of the property has to get a fill permit, which can be expensive.
Maps indicate that the part of Pickering where Toad Hill Farm is located is also part of the Oak Ridges Moraine.
Barkey, who owns land in both Pickering and Uxbridge, says Corrado Bartolo has been "the victim of a fascist-type government." Before the top-soil was added, the property Bartolos bought "never produced enough to pay the taxes."
Municipalities and conservation authorities are the main permitting agencies for soil management activities but the Ministry of the Environment is "in the early stages" of developing a best management practices guide, says spokesperson Kate Jordan. "The intent of this work is to clarify the rules and requirements for managing soil to assist construction companies and municipalities and conservation authorities that permit fill sites.
"The ministry intends to provide best practices guidance for managing excess soil at all stages. This would include excavation at the source through transportation and placement at a site where soil can be reused for beneficial purposes."
That may very well be too late for the Bartolos. Corrado says the battle has been expensive. "I'm fighting with my money. The township is fighting with taxpayers' money. I hope taxpayers are all right with that."
Adds Terrance Green, their lawyer: "The township are continuing to push my clients into court every time they turn around." BF