April 18, 2006

REPORT TO DEVELOPMENT SERVICES COMMITTEE

SUBJECT: Site Alteration By-law to Regulate or Prohibit Removal of Topsoil, Placing or Dumping of Fill and Alteration of Grade of Land within the Town of Markham

CONTACT/AUTHOR: Alan Brown/Mansoor Ali x 2523

RECOMMENDATION:

That the report entitled “Site Alteration By-law to Regulate or Prohibit Removal of Topsoil, Placing or Dumping of Fill and Alteration of Grade of Land within the Town of Markham” dated April 18, 2006, be received;

And that the “Site Alteration By-law” to regulate or prohibit removal of topsoil, placing or dumping of fill and alteration of grade of land with the Town of Markham be enacted in a form substantially similar to Attachment ‘1’ hereto and to the satisfaction of the Director of Engineering and the Town Solicitor;

And that By-laws # 215-91 and # 2001-53 be repealed upon enactment of the new By-law;

And that Fee By-law # 2002-276 be amended to authorise the imposition of the fees and charges as set out in Attachment ‘2’;

And that an application for a set fine order by the Regional Senior Justice of the Ontario Court of Justice regarding offences under the new Site Alteration By-law be made by the Town Clerk;

And that Mr. G. McMillian, Senior Manager, Resource Sciences, Water and Energy Management of the Toronto Region Conservation Authority (TRCA) be provided with a copy of this Report and the resolution of Council in respect of same.

EXECUTIVE SUMMARY:

There are two By-laws currently used to control site alteration activities in the Town of Markham; the Topsoil By-law and the Fill By-law. The proposed Site Alteration By-law will update and combine the requirements of the two By-laws into a single consolidated By-law. It will also strengthen controls for regulating the erosion and sediment control measures, and will be more stringent and environmentally sensitive. The proposed By-law will require more inspections of the site alteration works, reduce the average depth of fill, ensure that the soil fertility of agricultural lands is not degraded and will be consistent with the TRCA requirements and Oak Ridges Moraine Conservation Plan.

FINANCIAL CONSIDERATIONS:

Permit fees are increased to provide additional revenue to recoup the Town’s administrative and inspection costs. The Town will require liability insurance of $5,000,000 and a damage guarantee of $5,000 from the applicant to better protect the Town and to ensure the work is conducted properly.

Alan Brown, C.E.T.

Director of Engineering

Jim Baird, M.C.I.P., R.P.P.

Commissioner of Development Services

Site alteration activities such as the removal of topsoil, placing and dumping of fill, and the general alteration of grade of land can create problems if not controlled adequately. Council enacted By-law # 215-91 in 1991 and By-law # 2001-53 in 2001 in order to control the removal of topsoil and the manner in which filling, excavation and other types of site alteration activities are conducted.

Over the past number of years, there have been concerns from Council and residents regarding problems that have occurred in association with site alteration activities, particularly filling operations in the rural area. Some of the related issues and concerns are listed below:

1. Poor quality of the fill being placed particularly on agricultural lands and the impact of the fill material on the agricultural fertility of the soil;

2. Depth of filling on agricultural lands, adverse effects on the natural drainage pattern and the potential for increased erosion and sediment loading on watercourses;

3. Tracking of mud from trucks onto roads in the immediate vicinity of the filling operations;

4. Impact of filling operations and corresponding heavy loading on the Town’s roadways in the rural area and the resultant demands on the Town to repair the damages;

5. Insufficient inspections to eliminate illegal filling operations and to ensure that permitted filling operations are undertaken consistent with the permits issued by the Town;

6. Insufficient setback requirements adjacent to water bodies and environmental protection areas;

7. The current Town’s requirements do not reflect the recently introduced erosion and sediment control guidelines by the Toronto Region Conservation Authority (TRCA) and Oak Ridges Moraine Conservation Plan; and

8. Lack of requirement for applicants to carry liability insurance coverage in order to better protect the Town.

OPTIONS/ DISCUSSION:

Under section 142 of the Municipal Act, 2001 S.O. 2001, c. 25, municipalities can enact By-laws for prohibiting or regulating the removal of topsoil, placing or dumping of fill, and alteration of grade of land. The Act allows municipalities to issue permits pursuant to the By-law and to impose conditions to a permit.

There are two By-laws that currently are used to control site alteration activities in the Town of Markham. By-law # 215-91 was enacted in 1991 and was amended in 1992 by By-law # 207-92. This By-law, as amended, controls the removal of topsoil from any property greater than one hectare (2.47 acres) in size including all lands under development. By-law # 2001-53 was enacted in 2001 and was amended in 2003 by By-law # 2003-253. This By-law, as amended, regulates the placing or dumping of fill or altering of the grade of land on any property.

The proposed Site Alteration By-law will serve to update and combine the requirements and controls set out in the current By-laws into a single consolidated By-law. Field monitoring and observations carried-out by the TRCA from 1998 to 2003 throughout their jurisdiction identified problems with the current Erosion and Sediment Control (ESC) practices at site alteration sites. The TRCA recommended changes to improve ESC implementation and enforcement and prepared an updated ESC model for consideration by local municipalities. The proposed By-law will update and strengthen controls to regulate the ESC measures consistent with new requirements recommended by the TRCA.

The proposed By-law will also require more inspections of the site alteration works, reduce the average depth of fill, and ensure that the soil fertility of agricultural lands is not degraded.

The following is a detailed listing of the updates and major requirements set out in the proposed By-law:

1. This By-law will maintain control over site alteration activities on all sites over one acre (0.405 ha) in size. Lands smaller than one acre (0.405 ha) in size are exempted unless such land is adjacent to a body of water or is in an environmental protection area. Previous By-law exempts sites of size 2.47 acres (1.00 ha) or smaller;

2. Land development that is subject to site plan or subdivision applications will no longer require permits under this By-law. However, filling operations on these development sites will be regulated through the development process under the Planning Act by imposing conditions to entail similar requirements to control site alteration as to those under the By-law;

3. The proposed By-law will improve the site alteration process and make it consistent with the recently updated TRCA requirements;

4. The proposed By-law will also require proof that the site alteration plan is in conformity with the Oak Ridges Moraine Conservation Plan (Ontario Regulation 140/02);

5. Site alteration on agricultural lands shall only be permitted if the fill materials added will maintain or improve the overall soil fertility of the agricultural lands;

6. The average depth of fill permitted on agricultural lands has been reduced from 600 mm to 300 mm. Filling a hole, excavation, or depression, to a depth greater than 300 mm may be permitted at the discretion of the Director of Engineering;

7. Maximum fines for the first offence for filling without a permit have been increased from $5,000 to $10,000. Additional fines up to a maximum of $25,000 for subsequent offences have also been included in the proposed By-law. Correspondingly, fines set for corporations have been included at a maximum of $50,000 for the first offence and a maximum of $100,000 for any subsequent convictions;

8. In recognition of staff time and resources being utilized in the administration of the current site alteration permits, the proposed By-law will increase the permit fees:

Current Fee

Topsoil Permit: $250 plus $25 per ha up to a max. of $1,000
Fill Permit: $500 plus $250 per ha up to a max. of $1,000

Proposed Fee

Residential: $1,500 plus $450 per ha
All Other Types: $2,000 plus $500 per ha

9. The proposed By-law will require the applicant to pay the cost to provide enhanced inspection of the site alteration operations work to ensure compliance with mud tracking on roadways, dust control, sedimentation control, and to generally ensure the work is conducted in compliance with the permit issued by the Town. The Town may retain a consultant to inspect the site alteration activities at the cost of the applicant;

10. There are requirements in the proposed By-law that will provide better protection to the environmental protection areas and provide greater setbacks from water bodies (i.e. site alteration is not permitted in environmental protection areas, and a minimum setback of 30 m from water bodies and environmental protection areas is required);

11. The proposed By-law will now require appropriate archaeological assessments on lands deemed to have moderate to high potential for the discovery of archaeological resources to the satisfaction of Ministry of Culture; and

12. The proposed By-law will require applicants to carry liability insurance coverage of a minimum of $5,000,000.