A VALLEY VOICES INFORMATION NOTE
July 2, 2007
Our organization has always stressed our concern with the quality of life in the community.
Your Directors feel you should be informed of possible developments concerning all-terrain vehicles (ATVs) and dirt bikes in the area.
We encourage our members to seek clarification on what the issues are, and what Township Council plans to do.
Regards, Carol Hanley
The following information is from Gretchen Harris, Chair, Friends of the Northumberland County Forest. (FNCF).
ATVs - COMING SOON TO YOUR ROAD?
Municipal councils in Northumberland are being pressured to enact a bylaw to allow ATVs / dirt bikes on Township roads. In 2003 the Province decided that municipalities may determine if they are appropriate on roads within their own jurisdiction and may pass a bylaw to allow them if the ratepayers so desire.
We have been advised that the County's municipalities have heard few objections from ratepayers and are considering such a bylaw.
If you are a resident of Northumberland County and wish to protest Alnwick/Haldimand Council's intention to consider a bylaw to allow ATVs on Township roads, or if you simply want to hear more about the proposal, you should attend the regular Council Meeting on Thursday, July 5 at 1:00 p.m. at the Grafton Municipal Building. This may be our only chance to have our voices heard!
The ATV club may have 140+ members there - we need at least a similar number present to represent the opposite point of view!
Please alert your friends and neighbours who may share our concerns.
A LEGAL OPINION FROM FNCF's LAWYERS
A copy of our Gilbert's LLP lawyer's letter to Council is shown below.
Their opinion is a very clear cut argument and would present a strong case in Court.
We would be MOST grateful if you could make a special effort to come to this meeting.
Thursday, July 5 at 1:00 p.m. at the Grafton Municipal Building.
Thank you for your support! Hope to see you there!
Gretchen Harris, Chair
Friends of the Northumberland County Forest (FNCF)
A PETITION FROM THE FNCF
You can have your say at
Letter from Gilbert's LLP:-
June 27, 2007
Terrence Korotki, Township of Alnwick/Haldimand
10836 County Road No. 2, P.O. Box 70
Grafton, ON K0K 2G0
Dear Mr. Korotki:
Re: ATV use in the Northumberland County Forest
We write on behalf of members of the Friends of the Northumberland County Forest, a public interest group composed of environmentalists and Alnwick/Haldimand ratepayers committed to the enforcement of the Oak Ridges Moraine Conservation Act (the "Act") and the Oak Ridges Moraine Conservation Plan (the "Plan") as they apply to the Oak Ridges Moraine in Alnwick/Haldimand Township (the "Township"), and in particular to the Northumberland County Forest (the "Forest").
We are advised that the Township has failed to perform its duty in enforcing the Highway Traffic Act (the "HTA") by allowing the use of off-road vehicles ("ORV"s which include all-terrain vehicles "ATV"s) on public highways running into and through the Forest, and is now considering enacting an illegal by-law that would permit such use.
We write to put the Township on notice that our clients are prepared to take action to compel the Township to comply with the HTA and the Plan, including, if necessary, applying to the province and/or the Court for relief.
1. The HTA prohibits the use of ORVs on highways
Pursuant to section 191.8(1) of the HTA, ORVs are not permitted to drive on highways absent a by-law enacted by the Township. Ontario Regulation 316/03 s.23 (1) (b) states that ORV use shall not "contravene any conditions, restrictions and prohibitions imposed by any legislation and related regulations enacted to protect the environment" (such as the Plan).
The definition of ORV includes ATVs and dirt bikes within its scope.
The HTA defines "highway" as including a common and public highway, street, avenue, parkway, driveway, square, place, bridge or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof (emphasis added).
The Municipal Act further defines "highway" as including all road allowances made by Crown surveyors that are located in municipalities. Accordingly, all Township roads, including Dunbar Road, which is the primary means of entering and exiting the Forest, are considered "highways."
Since the Township has not adopted a by-law under the HTA, the current practice of allowing the use of ORVs on Township roads is illegal.
2. The Township cannot adopt a by-law allowing the use of ORVs on Township roads
We understand that the Township has established a committee to address the future use of ORVs on Township roads and is currently or will shortly be reviewing a by-law proposed by the members of this committee.
It is our opinion that any by-law that would allow ORVs and ATVs to be used on roads running into and through the Forest would be contrary to the provisions of the Plan, and thus invalid.
The Forest falls within an area of the Oak Ridges Moraine designated in the Plan as a Natural Core Area ("NCA"). NCAs are considered to be the most environmentally sensitive within the Oak Ridges Moraine and are therefore afforded the highest level of protection under the Plan.
The Plan specifically states that only low-intensity recreational uses are permitted within NCAs. Low-intensity recreational uses are defined as those that have minimal impact on the natural environment and require very little terrain or vegetation modification and few, if any, buildings or structures (s. 37). An example of a low-intensity recreational use is "non-motorized trail use."
Not only is ORV use motorized, but we are advised that it causes a major environmental impact. Accordingly, ever since the enactment of the Plan, the use of motorized vehicles, such as ORVs in the Forest has been illegal.
3. ORV use cannot be considered an "existing use" within the meaning of the Plan
We understand that the Township may be under the misapprehension that the use of ORVs on roads leading into and through the Forest falls within the exception for "existing uses" - namely, those uses that were in existence as of November 15, 2001, when the Plan came into force. This is not the case.
The Plan specifically states that the existing use must have been legal prior to November 15, 2001. However, as noted above, under the HTA, the use of ORVs on Township roads is presumptively illegal and can only be made legal by the enactment of a by-law.
Since the Township did not adopt a by-law permitting the use of ORVs on Township roads prior November 15, 2001, it cannot be said that the use of ORVs on Township roads within the NCA of the Oak Ridges Moraine was a legal existing use prior to the enactment of the Plan.
4. ORVs cause significant environmental and safety concerns for the Township
As noted above, the Forest falls within a NCA, which means that it has been designated as the most sensitive type of land, worthy of the most stringent protection.
In direct contravention of the Plan, ORV use may destroy, among other things, vegetation, sandy soil, landforms, and ultimately, the aquifer.
Over time, continuous ORV use may widen roads and trails, erode the soil, and destroy vegetation. As the roads become deeply rutted, the furrows fill during rains, causing an ever-widening of the roadbed as the ORVs attempt to skirt the new bogs.
Additionally, we are advised that as these roads and trails get busier, ORV riders create new trails through the forest destroying further vegetation in their wake. While one ORV riding over a patch of vegetation might not be enough to destroy it, fifty drivers on the same patch certainly will.
We are further advised that many of the new trails that ORV riders create are built on grades, which in the long term could start to channel water and turn into a creek bed, resulting in severe erosion.
Additionally, from a safety perspective, the Township should be extremely concerned about the risk of fires caused by ORVs. Sparking exhausts and possible conflagration from collisions are of primary concern, but so also is the degradation of fire routes. ORV use on the roads that run through the Forest creates mud holes and tears up the existing pathways to such an extent that there is a risk that an emergency vehicle would be prevented from reaching the interior of the Forest in the case of a fire.
We also note that the Natural Heritage Information Centre, which operates an atlas and data bank on the character, distribution and conservation status of natural areas, critical flora and fauna, communities and special features in Ontario, lists the following rare species found within the Forest:
· 5 provincially rare plant species;
· 12 plant species rare in the former Ontario Ministry of Natural Resources Central Region ("OMNR CR");
· 2 breeding bird species rare in the OMNR CR;
· 3 breeding bird species rare in the Lower Trent region;
· 1 provincially rare reptile;
· 1 provincially rare butterfly; and
· 4 species of butterfly rare in the Lower Trent Region
The Plan mandates that the vegetation and wildlife habitat of this area be maintained or restored.
5. Conclusion
The purpose of this letter is to put the Township on notice that:
a) The Township must take immediate steps to enforce the HTA and the Plan, and shall provide its undertaking to do so within 20 days of the date hereof, failing which we shall advise the members of the Friends of the Northumberland County Forest to take further steps to ensure that these laws are enforced;
b) A by-law legalizing ORV use on those Township roads situate within the Forest and also those running through Linkage & Countryside areas of ORM is contrary to the letter and spirit of the Plan and if one should be passed, we will advise the members of the Friends of the Northumberland County Forest to bring an application in the Superior Court of Justice to have the by-law quashed, pursuant to section 273(1) of the Municipal Act.
c) As recognition of its obligation under the law and intention to comply therewith, the Township shall provide notice, within 20 days from the date of this letter, to the County of Northumberland and the Northumberland Forest Advisory Committee, with a copy to the undersigned that ORV use on the Township's public highways into and through the Forest does not conform to the Official Plan of the Township, the HTA, or the Plan and must not be included in any proposed Management Plan for the Forest.
Should the Township fail to act in a lawful manner, we will advise our clients to pursue any and all of the actions noted above.
Yours very truly,
Per:
David Donnelly
Cc. J. Gerretsen, Minister of Municipal Affairs and Housing
Cc. Oak Ridges Moraire Foundation
Cc. R. Smith, Environmental Defence
Cc. W. Francis, Federation of Ontario Naturalists
Cc. W. Fairbrother, Templeman Menninga LLP
Cc. W. Finley, Mayor, Township of Alnwick/Haldimand
Cc. M. Keene, Planner, Municipal Services
Cc. D. Cane, County Clerk, Northumberland County Administration Services
Cc. J. Snider, Risk Manager, Northumberland County Administration Services
