Intervenor: Vol 25. No 1 January - March 2000

CELA Seeks To Protect Ontario's Tender Fruit Lands at the OMB

CELA recently represented the Preservation of Agricultural Lands Society (PALS) at the Ontario Municipal Board in opposition to a proposed urban boundary expansion onto approximately 513 acres of unique agricultural lands suitable for tender fruit and grapes. Tender fruit lands are rare and valuable lands which are intended to be protected from urban encroachment by regional and provincial policy.

The urban expansion was supported by the Town of Pelham, the Regional Municipality of Niagara, and by Mori Nurseries Ltd. and Oscar Weiland, two property owners. If the expansion were allowed it would be the biggest land grab on tender fruit lands since the urban boundaries were established for the Town.

Some of the lands in question are on the Fonthill Kame Moraine, the highest point in the Region. The sand and silt soils in these areas are regarded as highly suited for the growing of peaches, cherries, and grapes. The Regional Niagara Policy Plan notes that "few other areas in North America have their potential."

The Town started planning for the urban expansion almost a decade ago. As part of its planning process, the Town retained an microclimatologist to undertake a study to assess whether the proposed area was suitable for tender fruit production. The microclimatologist who undertook the study reviewed data from a number of weather stations in the vicinity of the proposed site and made a series of extrapolations about site condition. The expert eventually concluded that the site was not suitable for growing tender fruits.

PALS obtained a copy of the study and forwarded it to Dr. Tony Shaw, a microclimatologist and associate professor at the University of Brock. Dr. Shaw was extremely critical of the Town's study. He cited the failure of the Town's expert to obtain a single temperature reading on the sites as cause for serious concern.

In response to the Town's lack of reliable data, PALS offered to pay part of the cost of funding a new microclimatology study by Dr. Shaw. In addition, PALS committed to withdrawing from the hearing if Dr. Shaw's study established the proposed sites were not suitable for tender fruit. The municipalities ignored these offers. PALS did not give up, but decided to retain Dr. Shaw themselves to undertake a six-month study, using micro loggers, an instrument that records temperature continuously to obtain reliable temperature readings. After reviewing the data Dr. Shaw concluded that the proposed urban expansion areas were, indeed, unique agricultural lands suitable for tender fruit.

Mr. Ross Raymond, a senior planner also testified on PALS behalf at the hearing. Mr. Raymond testified that in his expert opinion, the proposed urban expansion would contravene both the Regional Niagara Policy Plan as well as those provision in the Provincial Policy Statements intended to protect specialty cropland from urban expansion. Mr. Raymond noted that the Regional Niagara Policy Plan was designed to protect Niagara's Unique Agricultural Lands from urban development. It seeks to achieve this by restricting development on these areas and encouraging it elsewhere on lands of poorer agricultural capability. Mr. Raymond provided a preliminary analysis of vast tracts of lands available for urban expansion in other parts of the Regional Municipality.

On the basis of the experts' testimony, CELA argued that the proposed urban expansion would fly in the face of the basic objectives and policies of the Regional Niagara Policy Plan. Moreover, the expansion fundamentally weakens the concept that urban boundaries next to tender fruit lands are to be permanent and that preservation of Niagara's fruit lands has to be ensured on a long-term basis.

The OMB has reserved its decision and expects to provide it by the end of June.

The Preservation of Agricultural Lands Society is a voluntary, community-based citizen group that makes use of a number of tools to protest the disappearance of agricultural lands into urban and suburban sprawl and to protect what's left. PALS sought CELA's help on the preserving over 500 acres of Tender Fruitlands from urban expansion. Here are some excerpts from the Spring 2000 issue of the PALS newsletter on two of their other campaigns (in which, as it happens, CELA is also involved).

PALS took part, in cooperation with a number of organizations, in a successful request that the Red Hill Creek Expressway be subject to a full environmental assessment under the Canadian Environmental Assessment Act. The proposed urban expressway would encourage urban sprawl onto prime agricultural land.

PALS has requested that the proposed extension of Highway 407 eastwards, across a large region of predominantly Class One agricultural lands, be subjected to a full environmental assessment under the Canadian Environmental Assessment Act. As PAL's planner Ross Raymond has pointed out, "development still follows transportation arteries."

CONTACT: PO Box 1090, St. Catharines, ON, L2R 7A3 Ph: 905-468-2841

Ramani Nadarajah is a lawyer at CELA