Judge OK’s agreement that has the Air Park ceasing to dump landfill until at least October 4 – region tests well water.

 

 

By Pepper Parr

BURLINGTON, ON. August 5th, 2013.  Barbara Sheldon, the Appleby Line resident with mountainous piles of landfill on the north, south and east sides of her property that are part of the landfill work being done by the owners of the Air Park wasn’t sure if last Friday was going to be a good day for her or not.

Regional staff prepare to test the water in the well on the Sheldon property on Appleby Line. The background view is to the west – the only one not blocked by huge piles of landfill.

The Regional Health people were going to be on her property to test the well water and attempt to determine if there was any damage being done to the water in her well as a result of the run off from the landfill  which slopes onto her property.  She was told she would see the results in two weeks.

Sheldon believes the data from documents inspected by Terrapex Environmental, a company hired by the city to make some sense out of all the testing reports given to them by the Air Park,  confirms that there are contaminates in the water on her property and that of a neighbour to the north.

The view from the north side of the Sheldon property. At one point Sheldon could see Rattlesnake Point from her house

She felt the city should have moved to have the well water in properties immediately adjacent to the Air Park land tested, but the city did nothing.  Sheldon worked her way through the Regional bureaucracy and the provincial Ministry of the Environment (MOE) to get the testing done last Friday.  Sheldon wonders where her Council member was on all this; not a word of support from Blair Lancaster on what residents could do.

The southern view from the Sheldon property – that 30 foot plus pile of landfill wasn’t there when the property was purchased.  If the owners of the Air Park get their way this part of their land will become a helicopter landing and take off area.  There goes the neighbourhood.

With the well water testing done, Sheldon headed for Milton to sit in a Court room and hear how the city and the Air Park were going to work their way through a couple of procedural issues. 

A few weeks ago the city and the Air Park planned a meeting at the airport to talk through the issues.  At the last-minute the Air Park cancelled that meeting and served the city with a document that was to get them both in front of a Judge.

The Air Park was asking the Courts to declare the Air Park rights under the Constitution Act, the Aeronautics Act, and the regulations within those acts are valid.

The Air Park wanted the Court to declare that the city’s  Topsoil Preservation and Site Alteration By­ law does not apply to the Air Park’s operations  and  construction  of aerodrome facilities on its premises;

The Air Park also wanted a judge to declare that the order to comply with that bylaw, issued by the city,  on or about May 3, 2013,  is null and void and of no legal effect;

The Air Park also wanted an injunction that would prevent anyone acting on the city’s behalf from interfering or attempting to interfere with the Air Park’s operations and construction of aerodrome facilities on its premises.

The city was surprised at those moves and concluding that the friendly talks were over quickly moved to apply for a permanent injunction restraining the Air Park from placing or dumping fill, removing topsoil or otherwise altering the grade of the land by causing, permitting or performing any other form of site alteration on the land.

The city also asked for an interim injunction restraining the Air Park from placing or dumping fill, removing topsoil or otherwise altering the grade of the land by causing, permitting or performing any other form of site alteration on the Property.

The city added to that a request for a mandatory order requiring the Air Park to remove the fill deposited on the land in contravention of Table 1 of Ontario Regulation 153/04.

These two applications to the Court were to be heard on August 28th.  The first thing that had to be done last Friday, was to put these on hold and to have the judge certify an agreement the city and the Air Park had reached on what could be done and what could not be done while all the legal wrangling went on.

The city and the Air Park had come to an agreement on how things should work out on the site while the lawyers did their talking.  City hall was now very wary over the Air Park’s behaviour; they thought they were meeting to talk about the problems a few weeks ago,  while the Air Park was preparing documents to get in front of a Judge – so rather than rely on a verbal agreement the city asked that the agreement be taken before a judge and endorsed which meant the verbal agreement had the clout of a Court order.

The Judge endorsed an agreement that the arguments that were to be heard August 28th were to be moved to a date sometime after October 4th.

Between now and then the Air Park “will not bring any fill on its land other than gravel and pairings grindings for runway base only and not to be mixed with other fill and asphalt for pairing to allow completion of runway widening and taxiways”.  The judge added that these “terms will continue to apply until the disposition of this application”.

So, the city in effect has its injunction and north Burlington residents can rest assured that there will be no landfill dumped on the site until the October 4th hearing.

The Air Park sits in the middle of the eastern part of north Burlington and has operated as a small dirt runway operation for years. Vince Rossi purchased the operation and began his quest to develop it into almost a regional air park with little if any input from the city of the region. Economic development was in the hands of an independent entrepreneur who believed he had found away to avoid complying with city bylaws.  The city didn’t see it that way.

The Air Park claims they are regulated by federal government rules and are not subject to municipal bylaws.  The city agrees that the running of the airport is regulated by the federal government but what the air park does with land fill and changes to the grading of the land and how water runoff is handled is regulated by the municipality.

During a council chamber foyer conversation city manager Jeff Fielding made it very clear to Glenn Grenier that the city did not share his view that the Air Park did not have to comply with city bylaws. Grenier had positioned himself as a leading expert in aeronautical law and that the city should respect their rights. The city doesn’t believe the Air Park actually has the rights they say they have.

Stopping work at the Air Park until the differences of opinion are heard by a judge had the potential for Air Park to lose what is left of the construction season

Where does all this leave Barbara Sheldon?  She will know in two weeks if the water in her well is damaging her health.

And, on October 4th , after four hours of deliberations she will know if a Judge sides with the city and says they have the right to impose their rules on the Air Park or if the Air Park comes under federal jurisdiction and does not have to comply with municipal bylaws. 

Should the Air Park prevail, this idyllic setting will cease to exist – there will be helicopter pads less than 75 yards away.

If the Air Park argument prevails Sheldon sees a quiet life on her property coming to an end.

And if the Air Park prevails Burlington is going to have to do a big think on just what is going to happen in terms of development in the rural part of the city should they be told that their bylaws have no impact on the Air Park.  That’s a huge issue for the city.

Whatever the decision – expect it to be appealed.  This case has ramifications for every municipality across the country – it’s a fight that has been brewing out there for some time.  Burlington looks as if it is the city that will be taking this one on.

Should a Judge tell the Air Park that their aeronautics operations do indeed come under federal jurisdiction but what they do that relates to the way they grade their land or manage water that runs of land they own is subject to the bylaws of the city, then the Air Park is going to re-think how they are going to get along with city hall and the Region.  No more thumbing their noses at the city.

That kind of a decision could have a very significant impact on the operation Vince Rossi runs and could put his $5 million investment – and then some – at significant risk. 

We got a hint of what the argument is going to be about when one of the lawyers representing the Air Park commented last Friday that for “many years the city has agreed that its regulations and bylaws did not apply to the Air Park”.  If there is documentary evidence to support that argument the city could have a problem.

The city didn’t pay nearly enough attention to what the Air Park was doing for the past five years.  They seemed content to go along with the Air Park’s claim that they were federally regulated and they could do whatever they wanted with their land.  When the city got a look at just how much grading was being done – they began to take action and since then have been very aggressive.

Vince Rossi at his only meeting with north Burlington residents since the issue of what he was doing with his Air Park once the extent of his landfill work was clear.

The city has also been much more forthcoming with information.  They have posted copies of the documents served on them by the Air Park and have posted copies of documents they served.  Burlington has not seen this level of transparency in the past.  Healthy to say the least.

Had the city been on the ball they would have seen the signs and begun to monitor what was going on up there.  The Mayor knew they were doing something; planners were at least apprised of what was happening and the Economic Development Corporation was aware – as to just how much they knew and what they did with what they knew will prove to become an issue in a court room.

The Air Park for its part should have been more forthcoming, less arrogant and been prepared to work with the city and be good neighbours.

The city’s failure to be on top of this file and the arrogant approach the Air Park used in their dealings with the city is what got both of them into a Court room.

 

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2 comments to Judge OK’s agreement that has the Air Park ceasing to dump landfill until at least October 4 – region tests well water.

  • Roger

    Let us not forget…the root cause of the Burlington Airpark problems is Vince Rossi, his consultants, and King Paving ignoring the Greenbelt Plan, the Ministry of Environment regulations, the Official Plan, the Municipal Bylaws, and most importantly, ignoring common decency and respect for the community. Had Vince Rossi worked cooperatively with Municipal governments and Agencies from the start, we would not be in this ecological and societal mess. The blame sit squarely with Vince Rossi et al.

  • Stephanie Cooper-Smyth

    Unlike the Burlington Post’s puff piece last week on Rossi, which quite frankly has made me wonder about the motives and intelligence of that newspaper’s staff, you totally nailed the real situation with this article.

    Thank you for this very comprehensive, factual report on the destructive history and potentially devastating future that Mr. Rossi has created for rural Burlington.

    I hope the good citizens of Burlington will see past ‘blaming’ the Mayor, the planners or the EDC for what they knew or didn’t know. And to that point, what we’ve come to know about Rossi is that he has never delivered a credible, fact-based business or economic plan for his PRIVATE airpark to any of them – so who in their right mind would believe or support that man anyhow? Hopefully not the Judge in Milton on October 4th.