Judge rules that city has the right to enforce its bylaw at the airpark: now what? Does it all get taken apart?

November 14, 2013

By Pepper Parr

BURLINGTON, ON. We now have more detail on the decision Justice Murray handed down this morning on the dispute between the city and the Burlington Executive Airpark.

The Airpark had taken the position they were a federally regulation operation and did not have to comply with local bylaws and regulations. They argued that the federal government was who they had to listen to.

Vince Rossi, president of the Airpark had great plans.  He was going to turn a sleepy little rural airport with a grass runway into a thriving regional airport.  To do that he needed to dump tonnes of landfill on the property.  An outline of the Airpark is shown above.

The city argued that they didn’t want to intrude on the running of an airport but they did believe they had the right and more importantly the responsibility to ensure that property was protected.

In his conclusion Justice Murray ruled that the “application of the City of Burlington is allowed” which means Burlington is entitled to a declaration that Burlington’s by-law 6-2003 is valid and binding upon Burlington Airpark Inc. in respect to its landfill activities at the airpark.

The City, wrote Justice Murray “has requested an order requiring the respondent to comply with the by-law forthwith. This court has determined that the by-law is valid and binding on Burlington Airpark Inc. The issue of enforcement is properly left to the municipal authorities.

Justice Murray said the City of Burlington by-law was designed to regulate the use of landfill for the protection of the environment and for the safety, health and welfare of municipal residents. It was not enacted for the purpose of regulating federal undertakings and therefore the Burlington by­ law does not impair the core of the federal power.

This Appleby Line resident wonders if the Court decision will mean this pile of earth will be hauled away. Or does the decision mean she has a claim against someone for the damage done to the value of her property/

The Judge’s decision set out the questions brought to him. He said: “There has been an ongoing dispute between the owners of Airpark and Burlington with respect to on-going fill operations maintained by Airpark. The owners of Airpark have consistently taken the position that its fill operation was not subject to review or regulation by Burlington because the airport is subject only to federal jurisdiction and regulation. Much debate has taken place since 2008 and has related to, inter alia whether the fill being used by the airport is clean. Although Airpark has made efforts to persuade Burlington that fill it is using on its premises is clean and presents no risk to neighbouring properties, the owners of Airpark have taken the position that as a matter of law, Burlington has no jurisdiction to regulate its fill operations.

“The issue came to a head in the spring of 2013 when Burlington started to receive significant complaints about the continuing fill operation at the aerodrome including complaints related to grading, drainage, noise, dust, traffic safety and possible effects of the fill on groundwater relied upon by neighbouring residents for drinking water.

“Burlington had a number of concerns including: the amount of fill deposited on the airport  premises, whether the airport property is being used for a commercial landfill business unrelated to the airport, and the adverse drainage effects from the imposition of significant gradient and slope changes on the airport property that have been created by the deposit of fill. Fill samples provided by Airpark to Burlington have reinforced concerns that fill being dumped on the premises may result in contamination by pollutants of area groundwater.

“On May 3, 2013, Burlington issued an order to Airpark to comply with the by-law by obtaining a permit for the ongoing fill operation at the airport. Violation notices were subsequently issued notifying that Airpark was in breach of the order to comply and in violation of the by-law. Owners of the airport refused to cease accepting fill on its premises and commenced its own application to prohibit the city from enforcing its by-laws against it. In sum, Burlington indicated its intention to enforce its by-law and Airpark indicated that it will not comply. The result of this stand-off is the two applications before the court.

An application by Burlington for an injunction to restrain the delivery of fill to the airport lands was settled by Airpark agreeing to suspend all fill deliveries pending the outcome of these applications.

The fence at the edge of this property can be seen at the bottom of the picture – there is 32 feet of earth that got put there without permission from the city. What happens to that earth now?

The Burlington bylaw was pretty clear: An applicant for a Permit must submit a Control Plan as part of its application which must contain, inter alia, a map showing the location of the site, the site boundaries and the number of factors, the current and proposed use of the site, location of lakes, streams, wetlands, channels, ditches and other watercourses and other bodies of water on the site, the location of the predominant soil types, the existing site topography at a contour level not to exceed 0.5 m, the proposed final elevations of the site, the location and dimensions of temporary soil, or silt stockpiles and provisions maintaining site control measures during construction.

Vince Rossi at a meeting with north Burlington residents. He took everything the resident had to say under advisement. Justice John Murray told Rossi that he had to apply with the city’s bylaw. Now what?

With the Judge’s decision in hand, Burlington can now take steps to bring the site into compliance with the bylaw – and that is going to be a huge stretch. Some of the residents will want those 30 foot plus high hills of landfill taken down. Who will pay for that? Does the Airpark have the money to do that work?

The decision is a positive one for the city – now what they do with that decision and how they bring the Airpark property into compliance with the bylaw will be interesting to watch.

Scott Stewart, the city General Manager handling this file said: “Staff will be meeting with our legal counsel to determine our next steps, including how this decision might be used in respect of the city’s other regulatory powers, to deal with the situation at the Airpark”.