News clips: Burl’s Creek OMB hearing

Sixth day of OMB Burl’s Creek hearing comes to a close

By Patrick Bales, The Orillia Packet & Times June 1 2016

Opponents of expansion at Burl’s Creek Event Grounds argued Wednesday not only is money not a good enough reason to justify granting a temporary-use bylaw, but there’s also not enough of it coming into the community because of the festivals held on the Oro-Medonte Township property.

The sixth day of the Ontario Municipal Board (OMB) hearing explored the opinions of both the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) and Dr. Peter Tomlinson regarding the temporary-use bylaw proposed for Burl’s Creek and the economic impact of the events happening there.

Both Arthur Churchyard, of OMAFRA, and Tomlinson were called to testify by David Donnelly, representing Save Oro/West Oro Ratepayers’ Association. Churchyard appeared at the hearing under summons.

Churchyard, currently a policy adviser with OMAFRA, spent three hours before the board Wednesday morning, discussing the temporary-use bylaw. When the bylaw first was brought to the attention of OMAFRA, he was a rural planner for the government agency, and the Township of Oro-Medonte was within his purview.

Churchyard was careful not to stray into matters in which he either had no expertise or hadn’t extensively reviewed the supporting reports. Churchyard’s analysis focused at length on Section 2.3.6 of the Provincial Policy Statement, which lays out a number of tests any proposal would need to meet to get a green light from OMAFRA.

“There needs to be an actual land-use argument about whether there is a demand for a site,” Churchyard said. “I would not be able to support this proposed use as being consistent with (Section) 2.3.6.”

That was certainly music to the ears of Save Oro/WORA. Churchyard testified while what the proponent had explored was to avoid disturbing natural heritage features, it didn’t focus on prime agricultural land, as OMAFRA would require. As well, Churchyard said, the market analysis wasn’t far-flung enough by not addressing demand for such uses beyond ticket sales to the WayHome Music and Arts Festival and the Boots and Hearts Music Festival.

That analysis also was hindered, it was argued, by only looking at alternative sites within Simcoe County. That was explored more in-depth during Burl’s Creek lawyer Nicholas Macos’s cross-examination of Churchyard.

“You’re suggesting an applicant for a temporary-use bylaw should look at all the land in Ontario?” Macos asked.

When Churchyard said yes, the lawyer continued: “Is that reasonable?”

“The applicants have discussed this as having a provincial significance, a global significance,” Churchyard said, suggesting, then, the province as a whole is the market area that should be evaluated.

When the hearing returned from break, Tomlinson gave his testimony as the expert economist for Save Oro/WORA. He was one of three economists retained by the parties in this matter who came to agree on one key point: Economic impact isn’t a paramount factor for the board to consider.

However, that was nearly the only thing agreed upon. Tomlinson began his testimony by telling the board the camping and parking being considered under the temporary-use bylaw were actually a drain on the local economy, when looked at on their own.

“The concerts provide the economic benefits,” he said. “The camping on-site is probably — considered on its own — a negative economic impact … simply because of the on-site camping penning the attendees in the event grounds, where there are no in-and-out privileges and where they’re compelled to buy their food and beverages the organizers bring onto the event grounds.”

Under cross-examination from Oro-Medonte counsel Andrea Skinner, Tomlinson reiterated he felt there would be an economic impact for the township, and that economic impact would be driven by those coming from outside of Simcoe County.

But he argued his concern was with the quantum economic impact being suggested by the proponent. Part of this was due to not being privy to the majority of the questions asked of attendees on an exit survey. Tomlinson also found flaws in the math, arguing the amount of gasoline purchased by the festival goers in Simcoe County was not accurate, as an example.

He still believes the residents of Oro-Medonte will face the brunt of the negative impact without the economic gains predicted by the experts retained by Burl’s Creek. In his cross-examination, Friends of Burl’s Creek counsel David White — who first attacked Tomlinson’s credibility by focusing on the use of the professor’s University of Toronto letterhead when he was not on official school business — took to one area in particular to show Tomlinson’s opinion may be shortsighted.

“You haven’t talked to any local (entrepreneurs)?” White asked.

Tomlinson hadn’t.

“This is macroeconomic impact on the entire economy of Simcoe County,” Tomlinson retorted. “Talking to individual businesses is going to give you minute, micro, anecdotal data, which can’t be used at the macroeconomic level.”

The hearing adjourned at the conclusion of Tomlinson’s testimony, with a resumption date to be determined.

Noise focus of Burl’s Creek OMB testimony on Tuesday

By Patrick Bales Orillia Packet & Times Tuesday May 31

About a half-hour into Tuesday’s Ontario Municipal Board (OMB) hearing considering a temporary zoning bylaw at Burl’s Creek Event Grounds, board chair Richard Makuch had already had enough of the various parties around the table.

The bickering, arguing and wasting of time, he said, had to stop.

“The board isn’t here to make a determination as to what occurred in the past, whether it was illegal, or whatever,” Makuch said. “We’re here to make a determination as to whether this proposed temporary-use zoning bylaw conforms with a number of planning documents and whether it represents good planning or not.

“It’s really irrelevant to us,” he continued. “Let’s move on with this. We’re spending way too long on these things. You’re all experienced counsel; you should know what kind of evidence the board relies on.”

The lecture came as Save Oro/West Oro Ratepayers’ Association (WORA) lawyer David Donnelly, Burl’s Creek lawyer Nicholas Macos and Township of Oro-Medonte lawyer Christopher Williams debated over what portions of certain witness statements needed to be redacted, as they were argued to be slanderous or full of hearsay.

A similar argument took place during last Thursday’s hearing, when two witnesses took the stand on behalf of the Friends of Burl’s Creek. Several portions of the statements of David McKee and Josephine Martensson-Hemsted were redacted for the official record at that time.

When the dust settled, three witnesses for Save Oro/WORA took the stand Tuesday morning, including Bruce Wiggins and Wendy McKay, who live directly across the road from Burl’s Creek on Line 7, and Robert Crawford, a farmer who also lives on Line 7.

Wiggins and Crawford spoke mostly about the hindrance to agricultural land caused by the festival, with Crawford providing particularly passionate testimony about how the attendance at festivals such as WayHome Music & Arts and Boots & Hearts had the potential to make his farming activities more difficult and be detrimental to his livelihood, as well as his past displeasure at having a severance on his property denied by the OMB.

Neither faced exceptionally harsh cross-examination, like many of the non-expert witnesses before them, though Wiggins’s record as a member of the Oro Agricultural Society was brought before the board, when minutes from a March meeting were introduced, indicating Wiggins had tabled a motion to allow temporary parking on the agricultural land associated with the Oro Fall Fair for the Tough Mudder competition.

McKay — Wiggins’s wife and the final lay witness called by Donnelly — was emotional when talking about how her quality of life was negatively impacted by WayHome in particular.

“Noise, the sheer numbers of people, trespassers on our property,” she said. “The overall impact was incredibly depressing … I was trapped.”

Under cross-examination, Macos asked McKay if she had ever considered getting in touch with Burl’s Creek directly to alleviate her concerns. An early meeting with a Republic Live representative curtailed any future talks.

“The first person I met was Shannon McNevan,” McKay recalled. “I said to him, ‘This is crazy. This is going to ruin my life.’ And he said, ‘Yes, it is. It’s going to affect your life.’ At that point, I knew there was no turning back.”

McKay also said she’d resist other measures of compromise proposed by Macos, such as the installation of a temporary fence surrounding her house, because of the various other concerns she has about the subject land, such as improper agricultural use, not being considered.

Her testimony contrasted that of Martensson-Hemsted, who took the stand earlier in the hearing. Like McKay, Martensson-Hemsted lives adjacent to the Burl’s Creek property, but she fronts onto Line 8, directly south of the former Barrie Speedway. Also like McKay, she has had concerns with noise, but not as many after the new owners of Burl’s Creek took over not only the event grounds, but also the speedway.

“We experienced (noise) with the speedway races from spring until fall, every Saturday night,” she recalled. “If it rained, Sundays. Sometimes there were special events where they ran both days. Random practices during the week, sometimes two or three times a week, made it very difficult to have things like a Saturday barbecue with family and friends because it was so loud.”

When Martensson-Hemsted and her husband bought their 98-acre property nearly 20 years ago, they were made aware of the event grounds and the speedway adjacent and were told by their real-estate agent the property’s value was about 25% lower than what it should be. Despite knowing what they were getting themselves into, Martensson-Hemsted and her husband soon looked at ways to curb the noise, she said, including inquiring with the Ministry of the Environment, to no avail.

She had concerns about the new owners of Burl’s Creek and the future plans for the park, going as far as to meet with members of Save Oro near the group’s formation. She also met with representatives from Burl’s Creek and liked the answers she received from them better.

“There wasn’t any discussion about getting along with the owners of Burl’s Creek and starting a dialogue,” she said. “At the outset, it was strategies on how to get rid of them … In our opinion — my husband’s and mine — we still felt we’d be better off to have a kind of relationship where we could talk about our problems.”

Expert witnesses for Save Oro/WORA began their testimony Tuesday afternoon. That testimony will continue Wednesday, alongside a representative from the Ontario Ministry of Agriculture, Food and Rural Affairs, who has been subpoenaed to testify.

The hearing will not end this week, however. As many as four full days are required at a future time, yet to be scheduled. Makuch instructed the parties to submit their availabilities to the OMB case co-ordinator for June through September.

Week 1 of Burl’s Creek OMB hearing wraps up

By Patrick Bales, The Orillia Packet & Times May 27 2016

Despite assurances and best intentions, the Ontario Municipal Board (OMB) hearing into the temporary zoning bylaw proposed by Burl’s Creek Event Grounds ended its first week of testimony far away from a resolution.

Darren Vella, founder of Innovative Planning Services, resumed his testimony to close out the Burl’s Creek case. His testimony was designed to tie together the evidence given by the proponent’s other expert witnesses.

He began his testimony Tuesday by giving an extensive description of the physical landscape of the subject land, and an overview of the temporary zoning bylaw. His testimony Friday — which took up all of the session — spent more time explaining how the other expert evidence heard from Burl’s Creek, combined with on-site precedent, made the proposal an example of good planning.

“There’s probably going to be some people here who don’t agree with me in terms of character of the area, but when we’re talking about Oro-Medonte, Oro-Medonte has summer festivals,” Vella said. “That’s part of the rural character of Oro-Medonte. And that’s been going on for quite some time.”

Among lengthy interpretations of the Provincial Policy Statement were examples of how the event grounds and subject land were used prior to Stan Dunford purchasing Burl’s Creek in 2014. Supplementing the examples, Vella entered photographic evidence from 2007 of the Barrie Automotive Flea Market, showing a history of use on the subject land. While he has been told of usage prior to that date, no photos survive.

Vella didn’t just focus on precedent at Burl’s Creek, but also elsewhere in Simcoe County, turning his attention to the Essa Agriplex, which welcomes more than 70,000 people every year through temporary use of prime agricultural land for the Barrie Fair.

“The annual fair will be located on land used for crops, but only after the crops have been harvested,” Vella said as he read from the OMB decision allowing the Agriplex. “The intent is to operate the property 360 days per year as a farm and five days per year as a fair with a midway.”

It was assumed Vella would be cross-examined Friday as well, bringing a close to the Burl’s Creek case. However, given the length of the Vella’s testimony and the depth of the information he was presenting, the session ended while he was still in chief. Given Vella’s prior commitments outside of the country next week, accommodating a cross-examination was not going to be simple.

Save Oro/West Oro Ratepayers’ Association (WORA) lawyer David Donnelly was not amused.

“I think this puts my client in the most difficult situation,” he said, adding Burl’s Creek lawyer Nicholas Macos informed neither the board nor the other lawyers for the the remaining parties Vella would not be in the country next week.

Macos insisted that wasn’t the case. He replied he had mentioned both Vella’s unavailability and that he was, and is, willing to continue the hearing without Vella present. Macos also didn’t expect it would take this long to present the proponent’s evidence.

The situation promised to further extend a meeting that had only been set for three days at the onset. Chair Richard Makuch said that had been an unobtainable goal, much to the delight of Donnelly.

“We keep adding time,” Makuch said. “When I saw this (as) three days … I’m not pointing the finger at anybody; I’m just saying it was totally unrealistic.”

“I’m the only one in the room who can say ‘I agree with you’ with a straight face,” Donnelly added.

Not helping Burl’s Creek complete its case was the way Friday’s session began. Differing from the rest of the week, a 45-minute field trip took the parties out of the township office and onto the subject land and into the surrounding community.

The OMB hearing resumes Tuesday morning. Oro-Medonte director of development services Andria Leigh is expected to testify on that day, likely lasting most of the day. Save Oro/WORA will likely begin its evidence Wednesday, but two of its experts will not be called prior to Vella being cross-examined.

A further timeline for the remainder of the hearing will be determined early next week.