ISSUE DATE:

Aug. 17, 2009 PL080881

Ontario Municipal Board Commission des affaires municipales de l’

Lee Abrahamson ( Autodrome Limited) has appealed to the Ontario Municipal Board under subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended, from Council's refusal or neglect to enact a proposed amendment to the Official Plan for the Town of Dunnville to redesignate land at 536 Port Maitland Road to add a site specific policy that would allow additional uses on the subject lands including advertisement and entertainment media production facilities (Approval Authority File No. OP-HA-8-2004) OMB File No. PL081055

Lee Abrahamson (Dunnville Autodrome Limited) has appealed to the Ontario Municipal Board under subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended, from Council’s refusal or neglect to enact a proposed amendment to Zoning By-law 1-DU 80 of the Town of Dunnville to rezone lands respecting 536 Port Maitland Road to permit advertising and entertainment production facilities, a technology centre, an outdoor proving ground and a trade school OMB File No. PL080881

APPEARANC ES:

Parties Counsel/ Agent*

Dunnville Autodrome Limited B. Duxbury

Haldimand County S. Premi & T. A. Richardson

Dunnville CARES R. I. Smith & G. Hedley

Participants

Toronto Motorsports Park N. Armstrong*

Beckley Beach Cottagers Corp. D. Blunt*

DECISION DELIVERED BY A. CHRISTOU AND ORDER OF THE BOARD

BACKGROUND

These Official Plan and Zoning By-law amendment appeals have been lodged by the Applicant/Appellant, Lee Abrahamson, President of Dunnville Autodrome Limited - 2 - PL080881

(Autodrome), against Haldimand County Council’s (Haldimand) refusal of its applications. The Autodrome leases a part of an airport hangar at the small but active Dunnville Airport site at 536 Port Maitland Road. The Autodrome runs various automotive and car racing related activities, including a 2.2 km long outdoor Formula track constructed on part of an unused runway. The track facility has been in operation for over five years, apparently without proper zoning and licensing by the Municipality.

The proponent asserts that it was their understanding from early discussions with municipal officials, that the Autodrome business was desirable by Haldimand as a recreation facility that would draw business and investment to the Municipality. The Autodrome concluded, in their own due diligence and by their own advisors that their uses would be allowed under the current municipal planning instruments and chose to proceed with a business decision some time in 2003, to lease space at the Dunnville Airport and to construct the track. Further, it was the proponent’s opinion that the Autodrome is not a racetrack per se, because “wheel to wheel” competitive racing is not permitted, and as such, Ministry of the Environment (MOE) noise guidelines do not (or should not) apply to this facility.

When the Autodrome were subsequently made aware of the Municipality’s concerns about zoning compliance (Exhibit 14, 14A & 25A) in 2003 and 2004, and noise complaints, they submitted the required applications, including a series of noise studies, and have been working cooperatively with Haldimand. They have since also instituted a two-step control measure to screen cars for noise before entering the track and they now require mufflers on all cars.

The Autodrome originally submitted planning applications in December 2004, “without prejudice”, to:

 amend the Town of Dunnville Official Plan to redesignate land to add a site specific policy that would allow additional uses on the subject lands, including advertisement and entertainment media production facilities.

 amend Zoning By-law 1-DU 80 of the Town of Dunnville, to rezone the airport lands to permit advertising and entertainment production facilities, a technology centre, and a trade school, within the industrial zoned lands, as - 3 - PL080881

well as an outdoor “proving ground” in the Agricultural zoned land of the airport.

According to Mr. Darbyson, the Autodrome’s planner, the list of uses has been further “refined” by the Autodrome on several occasions to clarify the specifically proposed uses and to add uses similar to the uses currently permitted under “special permit and events” provisions in the Zoning By-law. More specifically, these uses were summarised by the proponent as follows:

1. Testing of racing cars such as open wheel Renault with mufflers, which is a scaled down version of open wheel Indy Light racing cars. This involves racing teams using one to four cars over many laps at high speeds.

2. Promo Sport uses the track for corporate events, including racing car training and instruction. Up to four open wheel-racing cars run at high speeds around the track for up to 15 minutes at a time.

3. Track days or “Lapping days” allows car clubs to use the track with up to 15 “normal” and souped-up “Road” cars on the track over many laps and at high speeds. (This activity, according to Mr. Da Sylva, generates 96 decibels on

the Lmax scale, which is somewhat less than what the racing cars generate).

4. Bill Brack Driving Academy uses the track for driver education with both race cars and “Road” cars.

5. Multimatic uses the facility for “Commercial Research and Development” (R&D) in testing various cars, including internal combustion, solar and electric cars. It carries “research” for various manufacturers to develop and test suspension systems on the track and adjusting, modifying and “fabricating” components in the garage. This is also known as “proving ground”.

6. The facility is used for car shows and events where car dealers come to view and drive various cars on the track. Several cars can be on the track at any time. - 4 - PL080881

7. The Autodrome track has been used as an advertising and entertainment media production facility in the past and this use is being promoted as being non-intrusive.

8. The Autodrome is requesting an exemption of 15 “loud” days a year for “Non- Commercial Research and Development” which involves the running and testing of full size Formula-type racing cars on the track at high speeds of 160 km/hr for 73 laps for two to three hours. It is a very noisy activity.

After a lengthy process and many discussions with the proponent, Haldimand held the statutory public meeting in June 2008, and Council refused the Autodrome applications shortly thereafter. The prime reasons for Haldimand’s decision apparently stem from:

1. the proposed uses are not appropriate for the area, are incompatible and do not represent good planning;

2. it does not comply with the Region of Haldimand-Norfolk, Town of Dunnville or the adopted Haldimand Official Plan;

3. it does not have regard to the PPS;

4. the proposal is not in the public interest;

5. considerable degree of opposition from area residents who assert that the uses carried out at the Autodrome are incompatible with the surrounding area and the amount and kind of noise generated by cars racing on the Autodrome track, is loud, intrusive, and adversely impacts and affects their quality of life. The noise impact extends over a large distance from this facility and affects the community at large. The noise from the Autodrome can not be contained or mitigated and therefore, the use should not be allowed;

6. the Autodrome applications were incomplete, as the Applicant did not initially submit adequate and acceptable noise studies required by the County, to properly assess the applications; and a peer review of the Applicant’s noise studies was required (the cost of which was to be paid by the proponent) before the applications could be dealt by Council. (Apparently, a dispute on - 5 - PL080881

the payment for the peer review delayed the process, although I am given to understand that there may have been other matters, not necessarily related to this hearing, which contributed to the delay, with mutual agreements between the Parties).

Dunnville CARES (Community Association Respecting our Environment), an incorporated group of concerned residents living near the Dunnville Airport, is the third Party to this hearing and opposes the Autodrome applications on the basis that the racing track is an incompatible and highly intrusive use with the rural, residential and recreational setting of the area. The noise from the racetrack is intolerable and disruptive to the residents. The operation of the racetrack near the airport runways may be in conflict with the airplanes and raises safety concerns. These applications seek to legalize uses not permitted in the Zoning By-law that have operated for more than five years, in total disregard for the residents and to the detriment of the community.

THE CASE

This is a land use planning case, with significant compatibility, appropriateness, adverse impact and public interest considerations. The Board is asked to decide whether:

1. the noise impacts from this racetrack upon the area residents, should be the determining factor;

2. the land uses being proposed to be added to the Official Plan and Zoning By- law for the airport land, are appropriate;

3. these uses should be allowed or not; and

4. the proposal constitutes good planning.

Over 13 hearing days and two evening sessions set aside for the community to express their views, the Board heard a great deal of evidence and received multiple exhibits which provide for a better understanding and appreciation of the issues and concerns to the Board and all Parties. The Board heard from: - 6 - PL080881

 three qualified land use planners:

1. Doug Darbyson provided evidence in support, on behalf of the Autodrome;

2. Michael Higgins provided evidence in opposition, on behalf of Dunnville CARES; and

3. Mike Evers, the County planner, also provided evidence in opposition to the proposal.

 Haldimand’s CBO and Zoning Examiner, Ed Vanderwindt provided evidence in opposition;

 four acoustical and noise experts who painstakingly presented the science (and the art) of noise and how it is to be measured, modeled, predicted and applied:

1. Danny Da Sylva (Golder Associates Ltd.), the Autodrome’s expert;

2. B. Howe, peer reviewer of Mr. Da Sylva’s noise study, on behalf of the Autodrome;

3. John Colter (John E. Coulter Associates Ltd.), on behalf of Dunnville CARES; and

4. H. Gidamy (SS Wilson Associates) reviewed and critiqued the Da Sylva studies as Haldimand’s peer reviewer.

 Airport safety expert, Ted Lennox, on behalf of Dunnville CARES, who raised issues of compatibility among the uses and the need for safety measures for the conflicting activities at this airport;

 Ben Lansink, a real estate appraiser, on behalf of Dunnville CARES, who predicted potential negative impacts on property value when one is located near intrusive land uses; - 7 - PL080881

 the owner Lee Abrahamson and two employees of the Autodrome, Marian Kuiper and Steve Strong who also live in the area, spoke in support of the applications;

 two Participants spoke in opposition:

1. Neale Armstrong, on behalf of Toronto Motorsports Park, and

2. D. Blunt, on behalf of Beckley Beach Cottagers Corp;

 ten area residents spoke in opposition to the Autodrome:

Anita Rasmussen, Jim Peacock, Dianne Kershey, Jared Bousfield, William Blott, Mark Usher, Kathy Hoard, Bill Strong, Marilyn Roudebush, Roger O’Hara.

Given the weight of the noise consideration pertinent to this case from a land use perspective, the hearing was generally tailored to address this issue. However, considerable land use planning evidence was also presented, to deal with the significant land use issues of the Autodrome.

THE PLANNING EVIDENCE

Location

Exhibits 5 and 6 are aerial photos of the Dunnville Airport and the vicinity. The airport property is about 140 hectares in area and fronts on Port Maitland Road, the main road from Dunnville to the Maitland Shores residential community, which is located about 1.5 km to the south of the airport. An active quarry operation is on the west. The Grand River is to the north and east and empties into Lake Erie nearby. A number of farms, houses, small industrial and marina operations and a trailer park (Maitland Shores Park) are in the vicinity of the airport. On the east side of the Grand River is the Beckley Beach cottage community, some commercial fishing operations and an industrial establishment producing phosphates. The area is predominantly agricultural. - 8 - PL080881

Evidence indicates that the Dunnville Airport was used as a pilot training facility during World War II and is now a private under Federal licence. It has five hangars and a number of other structures, three houses and some trailers. It is a multi- use facility with residential, industrial, museum, public storage, aviation, parachuting and flight school facilities, and the Autodrome.

The Official Plan

There are two Official Plan (OP) documents that apply to this area: The Regional Municipality of Haldimand-Norfolk OP and the Town of Dunnville Official Plan. There is also the recently approved by the Minister, Haldimand County Official Plan, which consolidates the Regional and the Dunnville Official Plans, which is now in the appeal stage. The Dunnville OP designates the north-east portion of the airport site including the hangars, Industrial and the runways, taxiways and open area, including the Autodrome racetrack, Agricultural. A Mineral Resource Area overlay applies on the whole site. Special Policy R-30 permits short-term shows and events such as car shows, concerts, festivals and fairs for up to 70 days in the year, with a maximum of seven consecutive days for any one event.

Mr. Darbyson pointed to Policies L.29 and L.32 of the Regional Official Plan, which “encourage and promote tourism development opportunities and recreational attractions”. He asserts that the Autodrome attracts recreational users and other visitors, which would be consistent with the Official Plan’s tourism and recreational attraction policies.

The OP amendment before the Board seeks to clarify and define the complementary uses being proposed.

The Zoning By-law

Dunnville Zoning By-law 1-DU 80, adopted in 1980 and subsequently amended in 2000, zones part of the land Industrial and part Agricultural. The north-east portion, - 9 - PL080881 where the hangars are situated, is zoned “Light Industrial (ML)” with a general provision 37.194B, which permits only:

 Processing, manufacturing and light assembly plant  Research and Development facilities  Industrial supply establishment  Industrial offices  Merchandise service shop  Custom workshop  Warehouse  Airport  Flea market  Outdoor storage as an accessory use to a permitted use

Section 6.2 (i) of this By-law prohibits the racing of motor vehicles, unless it is a special event authorised by a licence.

In 2000, By-law 6-DU-2000, added “short-term shows and events” to the airport site. It is defined as:

“…the use of land, buildings or structures for the purpose of entertainment or amusement such as musical concerts, trade shows, car shows, fundraising events, reunions, fairs, festivals and horse, pet, poultry or other livestock shows for a short- term. Short-term for the purpose of this definition, shall mean not longer than 7 days of consecutive duration for any individual show or event and a maximum of 70 days during any calendar year for the total of all short term shows and events”.

The bulk of the airport land, including where the racetrack is located, is zoned Agricultural. A racetrack is not a permitted use in the Agricultural zone.

Mr. Darbyson asserts that many of the Autodrome operations fall within the Industrial zoning provisions of the By-law and they are permitted uses. He testified that the purpose of the applications before the Board (Exhibit 4, Tab 1) is to add similar and complementary uses by way of site- specific zoning.

Mr. Darbyson testified that the “proposed zoning by-law amendment seeks to clarify and expand the range of automotive related uses that may be permitted under - 10 - PL080881 the industrial zoning”. The Autodrome proposes the following uses be added to the Zoning By-law provisions of the “Light Industrial Zone”, in section 37.194b:

 Trade school  Technology Centre  Advertising and entertainment media production facility  Automotive proving ground.

The Autodrome also proposes the following definitions be added to the By-law:

Technology Centre shall mean the use of land, building or structures for the purpose of manufacturing, modifying, repairing, development and testing of automotive engines, parts, instrumentation and motor vehicles, including accessories.

Advertising and entertainment media production facility is the use of land, building or structures for the purpose of production of motion pictures, videos and other media productions for advertising and entertainment, including the operation of studio facilities and sound stages.

Automotive proving ground is the use of land, building or structures for the purpose of research, development, testing, training and recreational use of motor vehicles, including uses such as test facility, test track, skid pad (subsequently removed from this list), car clubs and advanced driving schools, but not including any competitive racing of motorcycles or motor vehicles.

Noise – The Science

The following are some of the terms, tools and conventions used in noise measurements, modeling and evaluation, which were presented to the Board by the Noise experts.

 MOE applicable Guidelines for Noise Pollution Control (NPC) have been used to assess this site (at reception).

o NPC-205 for urban settings, and

o NPC-232 for rural settings

 Three classes of areas: - 11 - PL080881

o Class I, Urban, i.e. downtown Toronto

.50 dBA day; 47 dBA evening, 45 dBA night, at reception

o Class II, Suburban, i.e. Maitland Road

.50 dBA day; 45 dBA evening, 45 dBA night, at reception

o Class III, Rural

.45 dBA day; 40 dBA evening, 40 dBA night, at reception

 Assessment of a raceway would be similar to any stationary site such as a quarry.

 Modeling will be similar to what is being used in other cases.

 Noise is measured in dB (decibels), a logarithmic ratio representing volume.

 dBA – the sound level adjusted or filtered for human experience

 Leq is the average, constant level of energy

o the best descriptor of sound

o steady state over given time - is measured for one hour as an average

o energy average over noise level

 higher levels have more weight

 Lmax is the highest level recorded

 Established noise limits are based in Leq

 ISO 9613 is standard model algorithm.

 CADNA model identifies procedure, assigns locations for taking measurements and calculates noise levels at various receivers.

 An increase of 3 decibels represents sound that is twice that of another. - 12 - PL080881

Autodrome Noise

Valcoustics had prepared the original noise report for the Autodrome in 2004, and proposed a number of noise attenuation measures. The Autodrome subsequently hired Golder Associates (Mr. Da Sylva) who produced three successive reports for the Autodrome: September 2006, January 2008 and April 2009, the latter for this hearing. These reports appear to vary in some respects in their data, assessment, analysis and conclusions.

Mr. Da Sylva testified that he was retained in 2006 to assess “normal operations” (open wheel Formula Renault and road cars) of the track only, and did not assess the R&D related noise activities. He tested only one Formula Renault car on Turn 1 and did not test any of the road vehicles. He measured 69.7 dBA 60 m from the turn and concluded that the R1 receiver (Maitland Shores Park) would have a 47 dBA, and therefore it was below the MOE threshold. Some of the information he used for his model was not firsthand, but provided by the Autodrome i.e. that a maximum of four cars would operate on the track and no more than one-half hour in any hour. He also confirmed from information provided by the Formula car manufacturers or the racing teams, that the Non-Commercial R&D Lmax significantly exceeds the MOE requirements.

In September 2007, he tested again the same Turn 1 at the Autodrome and found 74.7 dBA at 60 m, which would produce an estimate of 53 dBA at R1. He also added a new receiver R2, which is considered to be rural dwelling. However, he concluded that there was no difference between the 2006 and the 2007 noise estimates, as they were both conservative.

In 2009, Mr Da Sylva undertook the third noise test. This time he added 50 more residential receiver points. Some are in Class 2 and some are in Class 3 (Rural). He has provided a very extensive set of charts in Exhibit 1 that detail his predicted noise level at each of the receivers for each of the car types using the Autodrome. Some of the readings employ Lmax and some Leq settings and the predicted noise levels do vary significantly. Nonetheless, the conclusion was that the Autodrome noise emissions for “normal operations” would not exceed the MOE’s noise level limits.

Although Mr. Da Sylva was able to extrapolate projected noise values through his model for “Normal Operations and Commercial Research and Development”, other - 13 - PL080881 noise experts asserted that the noise measurements were not elaborate enough to correctly assess the facility and the results significantly underestimate the actual noise values. There was also some disagreement among the experts on the assumptions used, where noise measurements were taken and on the methodology employed by Mr. Da Sylva’s analysis. Some of the earlier Golder reports were also deficient in data and the analysis and conclusions were therefore considered deficient.

Mr. Coulter suggested that Mr. Da Sylva’s use of the Leq instead of Lmax measurements produced a lower sound level by 4 dBA. He should have been taking the Lmax measurements of each vehicle at various locations on the track, inputting them in the model and getting a graph. The graph would be different, depending on how close to the source the measurements are taken. He also disagreed with Mr. Da Sylva’s use of downward adjustment of 5 dBA. He opined it is not realistic, as cars make noise all the time. In his opinion, Mr. Da Sylva’s Autodrome noise figures represent an underestimation by 4 to 5 decibels.

Mr. Gidamy concurred and further opined that open wheel and high performance street legal vehicles would produce unacceptable sound levels at most receptors, without the benefit of noise mitigation measures.

Noise Complaints

Dunnville CARES and other residents have indicated that they have lodged many complaints about high levels of noise and hours of operation to both the Autodrome and to Haldimand, but no action has been taken. Mr. Abrahamson testified that indeed, 50 to 100 anonymous complaints were received in the company’s voice mail, but since most did not include a return telephone number, no action or follow up was taken by the Autodrome to address these complaints.

Mr. Vanderwindt testified that Haldimand had recorded some 271 noise complaints from 46 persons between May 2006 and April 2009 (Exhibit 23), with the latest complaint registered on June 23, 2009, during the Board hearing. He testified that Haldimand has filed 12 charges against the Autodrome for noise infractions and - 14 - PL080881 has applied to the Superior Court for an interlocutory injunction in 2004, to enforce the By-law with respect to the prohibition of racing activities.

However, it appears Haldimand has chosen to limit its legal action so far, while waiting for the Board to decide on the land use matter. Court action is pending. I note, and Mr. Vanderwindt concurs, that the Municipality has the authority and the means to deal with zoning infractions and with noise issues, independent of the outcome of this hearing, under its own Noise By-law and other instruments in its disposal and it has the moral responsibility to its citizens to deal with this matter expeditiously. No evidence was submitted why Haldimand chose to take no immediate and decisive action to deal with this matter.

Research and Development (R&D)

The Autodrome is proposing two distinct types of “R&D” – Commercial R&D (for solar cars, electric cars, University Formula SAE, and commercial vehicles) and Non- Commercial R&D (for race cars). Both deal with cars on the racetrack. The By-law does not contain a definition for R&D and this causes some confusion as to what ought to be permitted. The Autodrome takes a liberal view and suggests that using the track for “testing” both Formula and normal cars and adjusting their components is considered to be R&D. The Municipality and some of the residents take a much more conservative view that R&D may include activities such as medical research and development taking place in a university; or computer and technology activities such as RIM in Waterloo. They do not agree that the Autodrome’s Non-Commercial R&D should be allowed because of the significant adverse impact it has on the community by generating noise levels significantly higher than the MOE guidelines allow. None of the planners had any direct experience with this subject of R&D and were not able to shed any light in terms of a pertinent definition, other than to support their respective client’s position.

According to Mr. Vanderwindt, the Municipality and he, the Manager of Building Control and Enforcement, has the sole authority to interpret Haldimand’s By-laws and it was his opinion that the Autodrome’s racetrack activity is not an R&D use. He opined a racetrack is a facility where people come to race cars around the track. Also, work - 15 - PL080881 inside a building for the study of a product or a process and the review of its application and testing, would be considered R&D in his view.

Notwithstanding all this, the Agricultural zone, where the track is located, does not permit R&D, which further complicates matters in this case, as this racing related “R&D” activity has gone on for many years, in utter disregard of the By-law.

Short-term Shows and Events

By-law 6-DU 2000 (Exhibit 3, Volume 1, Tab 16A), allows short-term shows and events for up to 70 days a year, with a maximum duration of seven days per event. The proponent asserts that these shows and events allow a number of noisy and disruptive uses on the airport lands, and by association, appears to infer the Autodrome uses are similar, compatible and appropriate and not otherwise disruptive.

The opponents suggest that there is a great deal of difference between the short- term shows and events and the Autodrome uses. Mr. O’Hara, who owns Maitland Shores Park and is the closest to the racetrack, testified that no trade shows, car shows or fairs have taken place. Music raves had taken place in 2000 and 2001, but were not well received by the community and none has taken place since.

Mr. Vanderwindt asserts that none of the Autodrome uses fall within the short- term shows and events provisions of the By-law (Exhibit 23).

Is the Autodrome a Racetrack or not?

There was some confusion among the witnesses whether or not the Autodrome is a racetrack. Originally, Mr. Abrahamson had advised the Municipality by letter dated November 8, 2004 (Exhibit 3, page 171), that “the track facility to be used for: racing of automobiles,…”. This was later changed by letter dated July 28, 2005, that excluded the reference to car racing (page 172). Mr. Darbyson was careful to qualify the current activity on the track as “lapping” and not a race course, based on the Autodrome’s insurance policy that does not cover racing. Mr. Abrahamson and Mr. Darbyson assert - 16 - PL080881 it isn’t a race course, because “wheel to wheel” competitive racing is not permitted. Therefore, Ministry of the Environment (MOE) noise guidelines do not (or should not) apply to this facility. Mr. Da Sylva testified that if the Autodrome is not a racetrack it doesn’t require MOE Certificate of Approval (COA), but would require an acoustical report. Under cross-examination, Mr. Da Sylva also agreed that if the Autodrome is not a race course, it is not exempt from MOE guidelines.

Other witnesses testified that the Autodrome is a racetrack, as its main function is to allow for several cars (up to 12 under the insurance provisions, although more have been observed) to run around the course at high speeds for several hours. Cars have to negotiate a number of tight turns, screeching tires and gearing the engines up and down, which causes the unwelcomed noise to the residents. This is consistent with the content of some of the Autodrome web pages submitted in evidence by Dunnville CARES, advertising the facility as a car racing related recreation facility.

Regardless of what one wishes to call it, the Board accepts the premise put forward by Haldimand and Dunnville CARES that the Autodrome is a racetrack, whether cars are racing against each other or against the clock, or even being “tested” at high speeds.

Who should determine Zoning Interpretation?

According to Mr. Abrahamson, the Autodrome relied on non-municipal sources to interpret what the Zoning By-law permits in the airport site. Haldimand’s evidence was that they informed the Autodrome as early as 2003 and 2004, of the airport zoning not permitting racing related uses and the need to proceed with planning applications to zone the land accordingly.

Haldimand witnesses concluded that Zoning By-laws are established by municipalities to ensure that land uses fit the area’s character, are compatible with other uses and do not cause adverse impacts. This is done in the public interest, to ensure that unusual or incompatible uses are appropriately regulated or adequately separated, to minimize land use conflicts with other uses in the area. Zoning By-laws serve as a safety mechanism to those seeking to establish a business or residence in a - 17 - PL080881 municipality, as zones provide for specific uses or prohibit incompatible uses and activities. Since the Municipality has the responsibility of drafting and approving such By-laws, it is also its responsibility to interpret its By-laws. Mr. Vanderwindt asserts that he is the individual responsible to interpret the Municipality’s Zoning By-law. The Board concurs.

Non-Commercial R&D

According to the noise experts, the Non-Commercial R&D activity of driving Formula-type racing cars (Formula Atlantic, Indy Lights, Formula Mazda, Formula BMW, and Grand Am prototypes, usually without mufflers) generate noise levels three to four times higher (+16 to 18 dBA) at the recipient R1, than what is permitted in the MOE guidelines, which is very offensive to the community. Mr. Da Sylva affirmed that all residences in the vicinity, including those on the other side of the river, would be receiving noise levels in excess of MOE levels – 57 to 61 dBA or four times for the closest rural receivers and 65 dBA or three times for the closest suburban. The Autodrome proposes to give one week’s notice of such activity to the residents and not to run this function on summer weekends, but no other noise attenuation measures were anticipated.

Mr. Da Sylva also concluded under cross-examination that R&D is not exempt from MOE regulations and needs Certificate of Approval (COA), as any other industrial or manufacturing activity would. He was also uncertain if the MOE would approve the Autodrome’s Non-Commercial R&D. As an acoustical expert, Mr. Da Sylva opined, it is not appropriate to exceed noise levels by 16 dBA and he does not recommend that the Non-Commercial R&D exemption is suitable here and he has not been able to recommend any physical noise attenuation measures that, in his opinion, are needed for the racetrack operation. In his opinion, the existing 3 m high hay bales are more of a visual barrier and are not an effective noise barrier.

- 18 - PL080881

Other Autodrome Activities

Autodrome witnesses testified that “drifting” or “gripping” i.e. cars sliding on turns under acceleration and creating tire screeching noises, is not permitted on this track (Exhibit 12, Tab 3). However, a short video clip was presented to the Board by Mr. Gidamy that was taken during one of his site visits to the Autodrome, which showed one or more cars “drifting” on the track. Although it appeared to be intentional “drifting” by the driver, it wasn’t conclusive if this was a “one-off” event, or if it was part of the “normal” operation that day. Other witnesses also attested that they hear tire screeching noises from time to time.

Ms Roudebush works at the Maitland Shores Park. She opined that noise from the Autodrome is very intrusive and affects her work at the gate house. It is also impossible to carry on a conversation when cars are racing at the Autodrome. In her evidence, she showed several video clips, one of which purporting one car had left the racetrack and had slid across the runway and rested on the grass beyond, shortly after an aeroplane had landed. In her view, there is potential conflict with race cars at the Autodrome and aircraft, as there is no physical barrier to separate the distinct uses.

On the same issue, Mr. Lennox, an airport safety expert, also raised issues of compatibility among the uses and the need for safety measures for the conflicting activities at this airport. The airport uses must be separated by appropriate fencing from the Autodrome. The Autodrome also requires to have secured vehicle and pedestrian access controls, which are presently not established.

THE BOARD’S FINDINGS AND ANALYSIS

The Autodrome leases one half of an airport hangar from the Dunnville Airport, where they store equipment, their own racing vehicles, rent space for vehicle storage, and use part of it for classrooms, garage and administration. This building is within the Industrial zoned lands of the airport. The Autodrome has also constructed and operated over the past five years, a car racetrack on an unused airport apron and runway, and wishes to redesignate and rezone this land from Agricultural to Industrial uses, in order to be allowed to legalize and continue to operate its business. To allow for some of the - 19 - PL080881 various business activities carried out by the Autodrome, they propose to add specific uses to the Official Plan and the Zoning By-law that are currently not permitted. Some of these uses and activities such as Trade School, Technology Centre, Advertising and Entertainment Media Production facility, may be considered industrial in nature and as such could be accommodated within the leased building. These uses are not permitted where the racetrack is and where the Autodrome wishes they be allowed. However, some other uses such as “Proofing Ground”, “Commercial R&D” and “Non-Commercial R&D”, which relate to various racing cars and also “normal” street-legal cars being driven very hard or “tested” on the track, have been found to generate large volumes of noise. The Autodrome also attracted about 5,500 people in 2008, to this facility for a variety of activities. Some of those activities have been identified as being of recreational nature and involve several cars running at high speeds around the track for several hours. All these activities on the racetrack have generated a significant concern and alleged impact to the nearby residents, who vehemently oppose the Autodrome applications.

The Municipality, after several years of discussions, stalling and negotiations with the Autodrome and a lengthy process of detailed review and analysis of the noise issues, refused the Official Plan and Zoning By-law Amendment applications in June 2008. Mr. Evers’ thorough and detailed report (Exhibit 25) very eloquently suggests or implies that there seems to have been a sense of frustration by Haldimand with Autodrome’s continued delays to effectively deal with the applications; the lack of commitment to properly operate the facility; and the flood of noise complaints the Municipality had received.

In fairness, this case is not black and white. Many actions and reactions have taken place by the Applicant and the Municipality and not everything was disclosed to the Board. I have to note here that the Autodrome had at one point (July 2007) referred its applications to the OMB because Council had not dealt with them in a reasonable time, but subsequently, for unknown reasons, withdrew its appeal and revised the applications to what is now in front of the Board. This gave Haldimand the opportunity to duly deal with the applications in the public forum in 2008. This was done with everyone’s eyes open. So, it is difficult to understand how the Municipality’s frustration materialized. Haldimand staff always had a number of options available to expeditiously deal with these applications, such as for example, to either close the files because they - 20 - PL080881 had insufficient information, or to report to Council, as they finally did in 2008, recommending refusal.

The Board does not stand in the way of progress and economic development of a municipality, particularly when investment and reinvestment is contemplated by proposed developments involving amendments to the Municipality’s Official Plan and Zoning By-law. Similarly, the Board does not wish to interfere with the interests of the business community, including the car “testing”, sales and entertainment sectors, including racing enthusiasts, many of whom frequent this facility.

However, the Board can not readily consider approval of a highly disruptive land use or activity and an operation that does not seem to have paid an adequate amount of attention to the concerns and well-being of the community and has operated over the past five years in what has been suggested to be outside the Municipality’s By-laws and other regulations. It is also not this Board’s mandate to legalize illegal uses, particularly when pertinent issues are not adequately addressed by the proponent and the By-law is being overlooked for so many years. There is no guarantee that development applications being put in front of a municipal Council or this Board will succeed if there is no compelling evidence that the proposal is appropriate for the area, represents good planning and is in the public interest. The Board has to balance the Applicant’s interest against the community interest, taking into account the nature of the community impact.

The proponent has argued that this area of Dunnville is not pristine and the uses currently permitted in the By-law and those that exist within the airport site (excluding the Autodrome track) are indeed noisy (58 to 60 dBA). Therefore, the Autodrome track noise should not, somehow, cause so much concern to the community. This premise was opposed vociferously by Haldimand and the residents, several of whom testified that noise from the airport activities, even several small planes continuously taking off and landing at the airport for the flying school and parachuting club, does not compare to the highly disruptive and intrusive noise of several cars running and racing on the Autodrome track for many hours. Mr. Evers suggested that there is no justification to add more noise from car racing to any existing aviation-related noise at this site. There were no concerns raised about some of the proposed activities and uses that could take place within the airport hangar leased by the Autodrome, as it is zoned Industrial and such activities inside the building would not impact the area. - 21 - PL080881

The MOE has set noise guidelines to provide for a reasonable balance in situations such as this. The experts have suggested that the guidelines for 50 and 45 decibels (dBA) provide a measure of protection for the suburban and rural settings respectively in the vicinity of the Autodrome. Mr. Gidamy indicated from his measurements, that the actual noise levels in the vicinity of the airport (excluding the Autodrome) may be much lower than the MOE guidelines allow in rural areas. Could this therefore, probably suggest that herein lays the problem: if the ambient noise in the rural area is less than the 45 decibels, the residents may feel the Autodrome noise is very high, as we have heard from the acoustic witnesses that even an increase by 3 decibels represents double the amount of noise and 4.8 decibels triple the amount of noise?

Mr. Da Sylva suggested that the opposite may also be said for urban areas, which may exceed the MOE guidelines. He offered Front and Spadina Streets, in Toronto, as a possible example where the average background noise levels may be up to 60 or 65 dBA. However, the Board clearly understands that the vicinity of the Dunnville Airport is not Front and Spadina, nor is it a cemetery, as far as ambient noise is concerned. Ambient noise exists, but the question remains: should very loud noise be justified if it adversely affects the area residents?

The noise experts for the opponents point that the Da Sylva noise studies have underestimated, by several decibels (4 to 5 dB during day time and 9 dB during evening Autodrome operations (Exhibit 13)), the noise produced by some of the so called “normal” Autodrome activities such as Indy Light cars and “normal” operations involving

“street legal” and other high performance cars. For example, the Lmax (maximum instantaneous) measurement should have been applied to the model, instead of the Leq

(average), for the single Indy Light car that was tested. Mr. Howe also agrees that Leq measurements may “underestimate the overall emissions”, but he also cautions that

“considering the maximum Leq level” would overestimate the hourly average level. He suggests that “the most accurate way to judge the sound emissions from a track is to utilize several sound level monitors at various points around the track”.

Mr. Colter and Mr. Gidamy suggested that a different (higher) and more realistic noise measure would have resulted if four of the Autodrome’s own Indy Light cars were tested at the same time with Lmax data, as required by the CADNA-A computer model. - 22 - PL080881

Taking from Mr. Da Sylva’s witness statement (Exhibit 12), where he discusses noise from additional vehicles, he states “…a doubling of sound emission would result in 3 dB increase…When the emissions from a third piece of equipment are added, the noise level increases to 54.8 dBA”. Unfortunately, no figure was given for a fourth “piece of equipment” so that we could clearly determine the noise value for the Autodrome’s own four Indy Lights operating on the track.

The residents also complained that when Golder carried out its noise investigation with only one Indy Light car on the track, they were disappointed because it appeared to have been staged and did not realistically represent what goes on in a normal active day when many cars are on the track. It is important to add here Mr. Howe’s comments, found in Exhibit 23, Tab 2, where he has peer reviewed Mr. Da Sylva’s analysis with respect to Indy Lights vehicles. While he concurs with the findings, he states “…will produce a noise impact of 66.2 dBA and 63.6 dBA at receptors R1 and R2, respectively, leaves no doubt that an exemption is necessary on occasion”.

There was also disagreement on possible noise attenuation measures to reduce the noise to some of the closer receptors, particularly Maitland Shores Park across the street. Mr. Da Sylva’s analysis originally concluded that the Autodrome noise would be below the MOE guidelines at the sole close receptor R1 (Maitland Shores Park) he had measured and as such, no noise attenuation is required. Mr. Darbyson echoed this and based his opinion accordingly. However, following more extensive investigation prompted by Mr. Gidamy’s peer reviews, Mr. Da Sylva has concurred that more receptors should be included and he proceeded to do so. It was also his conclusion that although some noise attenuation may be desirable at the Autodrome, he sees no possible attenuation measures by berms and noise walls for the racetrack, given the proximity of the present track to the airport taxiway and runway operations. Mr. Gidamy on the other hand, using his ample experience from other racetracks, suggests that strategically situated and designed berms of about 10 to 15 metres in height could possibly provide some relief to reduce noise levels, closer to the MOE criteria, at some of the more critical receptors. He also agreed that the racetrack could possibly be redesigned to reduce noise impacts to Maitland Shores Park and other close receptors. However, he suggested that more investigation is required to determine feasibility. - 23 - PL080881

Nonetheless, no one presented a plan of any sort, on where and how such berms should or could be located to achieve the required level of reduction in noise. A site plan could have possibly provided a little assurance to the Board and to the opposing Parties, that some serious thought had been given to realistic noise attenuation measures by the Autodrome. A site plan is an important planning tool when difficult land use issues exist and it can be used to demonstrate possible solutions to problems. It is simply not sufficient for the proponent to say to the Board: please approve the uses we request and we will work out some sort of solution if and when we can, at the site planning stage. It is not sufficient to list and define uses in the By-law, if these uses are incompatible or do not fit with the community. It has been five years since the Autodrome has been in operation; yet, no realistic solution to noise attenuation was presented to the Board or to the community, other than some basic “soft” internal management measures such as management training and record keeping. It is also clear, and Mr. Da Sylva concurred, that the hay bales that are in place now do not provide noise attenuation.

The airport land is already under site plan control (By-law 15-DU 99 SP in Exhibit 3, Volume 1, Tab 15), yet, there was no evidence that Haldimand requested a Site Plan application be submitted by the Autodrome, (or at the least, an informal site plan or drawing for the matter), concurrent with the Official Plan and Zoning applications. I note from Exhibit 4, Tab B, where a site plan was one of Mr. Darbyson’s several mandates in his efforts to resolve the stalemate with Haldimand. Yet, no reference was made at the hearing about such a site plan.

A site plan is a very important planning exercise for both sides, particularly since the racetrack was constructed and has operated without the Municipality’s review, scrutiny or approval. It is the Municipality’s prerogative and responsibility to require such an application, particularly when a land use matter such as this demands some serious form of Zoning control and regulation. How is one to determine appropriate zoning regulations without knowing the specifics of a proposal? It is also in the interest of good planning for the Municipality to deal with the development’s details in a site plan and closely follow up with its implementation. The Board understands that some municipalities may deal with site plan issues after they pass a Zoning By-law. However, it is good planning practice to have a site plan, in a case such as this, when reviewing any zoning issues such as, for example, possible noise attenuation measures. - 24 - PL080881

With respect to the proposed OP and Zoning amendments, the Applicant’s contention was that its proposed uses comply, and the only thing they are seeking is to streamline and clarify the Autodrome’s uses. This did not meet concurrence by the opponents. There were concerns raised by Haldimand and the community, that some of the proposed uses i.e. “automotive proving ground”, “lapping” or R&D are not appropriate for the area if they apply to the racetrack. Nevertheless, some witnesses also accepted that some of the proposed uses such as trade school, technology centre, media production facilities, fabricating, assembling, processing or R&D, could conceivably be considered appropriate if they were to be carried out inside an industrial building. However, the Autodrome appears to be desperately trying to marry these uses to be in conjunction with the racetrack and racing activities in order to justify its raison d’être.

In reviewing the OP and Zoning amendments, the Board finds itself in a dilemma. What exactly is “outdoor automotive proving ground”? The definition offered by the Autodrome speaks of “test facility” and “test track”, which it may well be appropriate for testing solar or electric cars. But “testing” here also includes real racing cars such as open wheel or Formula cars without mufflers and “muscle” cars with internal combustion engines that at high speed generate noise levels well above the MOE standards. Although many car manufacturers have their own proving grounds for their own security reasons, there are some private ones too, but not necessarily in conjunction with recreational functions such as the ones carried out at the Autodrome.

The evidence points to the “recreational use of motor vehicles” as the Autodrome’s primary activity, where individuals, groups or car clubs go to have fun running around the track at high speeds for “extreme excitement performance and driving”, either in their own cars or in rented Indy Lights. Oddly, there is no mention of car racing per se, in the definition. The Board was advised by Mr. Abrahamson that there is no “wheel to wheel” racing or competitive racing permitted. Accepting for a moment that “wheel to wheel” racing does not take place, what is one to call cars “racing” against the clock, that some of the witnesses alluded to? What is “lapping”? Why then would some 5,500 people go to Autodrome track in 2008, many of them to drive their own cars or rent open wheel cars from the Autodrome to drive on the track at high speeds, if there is no “racing” allowed? What is to be said about the numerous high performance cars observed by the witnesses on many occasions running fast on - 25 - PL080881 the track? One must be skeptical and question whether words are being somehow cleverly manipulated in the definition to skirt the issue of the racetrack or car racing, so as to give a slanted view to the reader, different from what actually happens and is the main activity at the Autodrome. Is “testing” another name for racing at the Autodrome? Why not call a spade a spade?

A racetrack requires to meet certain standards and licensing from the Municipality, as Mr. Armstrong of Toronto Motorsports Park (TMP) suggested. TMP had to stop operations for one year, in order to implement necessary noise attenuation measures and consult with the community. Should the same not be expected by the Autodrome?

Another concern raised by the opponents was with respect to the number of vehicles to be allowed on the track. Mr. Da Sylva testified that he was advised by the Autodrome that no more than four cars are to be on the track at any one hour. However, the Board was also told that 12 cars is the maximum permitted by the Autodrome’s insurance. Others testified that they have seen more than 12 cars at a time.

Mr. Darbyson testified that the “proposed zoning by-law amendment seeks to clarify and expand the range of automotive related uses that may be permitted under the industrial zoning”. Section 37.194B of By-law I-DU 80 (implemented by By-law 6DU 2000) limits Industrial uses that apply to the whole airport site and specifically excludes any automotive uses. A close read of the By-law found in Exhibit 3, Volume 1, page 99, reveals in Section 24.1, Permitted Uses, that (f) automobile service station, and (i) industrial garage, are the only automotive related uses currently provided for in the Light Industrial zone. Since these “automotive related uses” do not actually apply to the Dunnville Airport site, how then does one “clarify and expand the range of automotive related uses” proposed by the Autodrome that are not permitted in the By-law? The Board is puzzled with this argument.

A lot of effort has gone into suggesting that the Autodrome’s notion of R&D is similar to what the Zoning By-law provides for in its permitted uses list in the Industrial zone. This was fervently contested by the opponents and particularly Haldimand. Although the Autodrome witnesses argued that in the absence of a definition ‘anything goes’, the Board prefers Haldimand’s evidence that the proposed Autodrome’s - 26 - PL080881 interpretation of R&D is not consistent with the Municipality’s. Mr. Vanderwindt’s opinion of R&D was: work inside a building for the study of a product or a process and the review of its application and testing. In general, R&D activities are conducted by specialized units or centres belonging to companies, universities and agencies. In the context of commerce, "research and development" normally refers to future-oriented, longer-term activities in science or technology. This does not fit into the Autodrome’s alleged R&D activities. Perhaps, a different term or terms could have been used to identify what the Autodrome wishes to achieve.

The Board is not prepared to legalize and permit uses such as the proposed Non-Commercial R&D. This is not the right place for this “loud” use where among other things, professional race teams “test” Formula racing cars without mufflers at high speeds of 160 km/hr. Four times the normal sound level anticipated at the various recipient points by this activity, is not acceptable. Fifteen days of such “loud” activity “for a two to three hour period”, as Mr. Darbyson suggests, are 15 days too many for this or any community. The impact to the community is too great to justify allowing this activity to continue, even if it only represents less than 5% of the Autodrome business.

The opponents’ evidence suggests that the proponent has shown little interest in the past in addressing the community’s concerns by means of better controlling its own business activities and in reducing noise emissions. No evidence of meaningful noise attenuation measures has been suggested and Autodrome’s own noise consultant does not believe any berming will work on this track. However, Mr. Da Sylva has suggested that a track monitoring program and noise complaint protocol and procedures may help in this case. Although the Board accepts that protocols and procedures are important operational tools, it questions the value of such procedures in addressing the racing car noise issues expressed by the residents. Further, although Counsel for the proponent suggested that protocols can be used to easily protect from excessive noise, there was no evidence by example that the protocols offered by the Autodrome could have produced any positive results over the past five years. The Board does not expect any of the protocol measures to have any effect as OP policies or zoning regulations in this case.

The Board is not satisfied that this Non-Commercial R&D use, in particular, is compatible with the existing predominantly rural residential and recreational uses, nor - 27 - PL080881 appropriate for the community and appears to have, together with other, somewhat less intrusive uses at the Autodrome, already caused significant adverse impact to the residents over the past five years. It would be unconscionable to allow a use that is so intrusive and disturbing to the majority of the population in the vicinity of the Autodrome and beyond. Allowing a use to exceed the MOE noise threshold by four times is not only unreasonable but unhealthy and it causes harm and discomfort to people in the area. It is not supported by the Applicant’s noise consultant and others. It would be bad planning and is inconsistent with the Dunnville and the Haldimand Official Plans, the PPS, the Environmental Protection Act and with the Planning Act. It is clearly not in the public interest.

Although the Board is aware that some exemptions may have been given by municipal Councils or this Board to other car racing operations in Haldimand and other municipalities for noisy operations, each case is considered on its own merits. For example, according to Mr. Coulter and Mr. Gidamy, both the Calabogie and the Toronto Motorsports Park racetracks have significant noise berms, while the closest receptor at Calabogie is one kilometre away. This is not the case here. The Dunnville Autodrome’s Non-Commercial R&D operations, as presented to the Board, would adversely impact a large number of people, and for the reasons given above, the Board will not allow the Non-Commercial R&D nor the 15-day exemption.

The Board must also grapple with the difference between what noise level is permitted by MOE – 50 dBA and 45 dBA respectively – (which is a modelling of sound energy), and what people perceive to hear from the Autodrome operations. The MOE threshold is a theoretical concept measured in a one hour segment, while hearing a loud noise over a long period of many hours in a day could be bothersome and offensive to the human ear, as suggested by many. This is the main contention among the Parties, and as the residents allude, the Autodrome activities affect their quiet enjoyment of their property, cause material discomfort and affect their health. It also offends the PPS (having regard for) as “public health and safety concerns” from noise cannot “be avoided”, as appropriate noise buffering has not been provided. Section 1.1.1 provides: “healthy, liveable and safe communities are sustained by (c) avoiding development and land use patterns which may cause environmental or public health and safety concerns”. - 28 - PL080881

The Board notes that the MOE standards do not preclude that noise will not be present in this area, nor does it guarantees quiet enjoyment. It only sets a threshold of what may be acceptable. And this threshold was not arbitrarily set by MOE. MOE has measured and tested many events and settings, and has concluded that 50 dBA is an acceptable level for suburban situations and 45 dBA for rural receptors. This cannot be overlooked.

The question here is: whose noise assessment is closer to reality for the Autodrome and for the residents? The Board, having heard from four acoustics experts, must side with those who have the more direct expertise with racetrack noise. Mr. Gidamy (Exhibit 13A & 13B) and Mr. Coulter (Exhibit 10) possess such experience and the Board prefers their opinion: that noise levels generated by the Autodrome may be higher than indicated by the Golder studies. This is based among other things, on the limited data and the incongruities found in the third party information available to Mr. Da Sylva for his analysis, incongruities found in the Valcoustics and Golder reports for noise levels at similar locations, the limited field observations and noise measurements taken and the small test sample of the one car used.

However, it must also be said that Mr. Da Sylva has extensive computer modeling experience and he has demonstrated that he can use it effectively, given more accurate data and parameters are available to him. Further, Mr. Da Sylva positively drew and utilized from his colleagues’ experience in incrementally improving his assessments of the Autodrome analysis and by including more receptors. He also generated a matrix of the type and number of vehicles that could operate on any given occasion on the track that could be within the MOE thresholds, if they were applied.

Although the differences between the two sides are still there, the gap appears to have possibly been reduced to something perhaps a little more manageable. Mr. Coulter suggests that because this is a complicated noise source it requires a detailed analysis (Exhibit 28) and that hasn’t taken place.

What seems to concern the noise experts, however, is the fact that noise levels are measured in a logarithmic scale and even a few extra decibels over the MOE threshold (an increase of 3 decibels according to Mr. Da Sylva in Exhibit 12, represents twice the sound) may easily contribute to doubling or tripling the noise to the receivers’ ears, as the example given for the Commercial R&D (Indy Lights) that about 65 decibels - 29 - PL080881

(15 over the 50 decibels in the MOE guidelines for suburban receivers and 20 over for rural) equals a tripling or quadrupling of sound at the receiver. Add to this the possibility of lower background noise in rural settings, and you may have a significant amplification from the Autodrome activities. This is a fundamental issue and it has not been satisfactorily resolved by noise attenuation measures.

The Board also recognises that the Autodrome has tried, in some ways, to deal with the noise of its operation by instituting some internal control measures in introducing “Static” and “Pass-by” tests and requiring mufflers on all cars. We also understand that there are different types of mufflers used by “normal” or street licensed cars that create different and louder noise emissions. Unfortunately, for unknown reasons, these measures may not have been applied uniformly and consistently by Autodrome staff, and as such, did not appear to have worked sufficiently to amend the situation and appease the community. Car noise from the racetrack has continued to seriously annoy the residents. Also, as the evidence of both expert (Exhibit 28, Tab 11) and non-expert witnesses suggests, other supposedly “prohibited” improper uses or activities such as skidding or “drifting” and “gripping” appear to be informally overlooked or condoned by the Autodrome, further adding to the appropriateness, compatibility and track management concerns expressed by the opposing Parties. The Board has to weigh this in its decision.

Given the above, the Board has to wonder about the following hypotheses:

 Could the Autodrome noise be mitigated and managed sufficiently to meet and perhaps exceed the MOE guidelines at the reception points, giving some long awaited acoustical relief to the residents?

The consensus was that this is possible, but more study may be required.

 Could the Autodrome have comprehensively dealt with the noise issue, under the kinds of measures suggested by the acoustical and other experts at this hearing?

Since the Autodrome did not accept the premise their uses exceed MOE noise guidelines, they didn’t consider any measures, but theoretically they - 30 - PL080881

could or should have if they had listened to the community’s and the Municipality’s concerns.

 Could a strict, structured and effective management and control regime of the Autodrome facility, such as a reduced number of cars on the track (fewer than 12) with reduced noise output by the mandatory use of low noise mufflers, reduced days in the week (6 instead of 7) and hours of operation (10 am to 5 pm), in conjunction with a more efficient track design, effective noise screening by appropriate berms and noise absorbing fences, strict application of protocols, proper monitoring of noise by the Autodrome and the Municipality, have produced a more agreeable land use plan?

One could argue this may have been possible.

 Could the Autodrome have effectively dealt with noise complaints and produced a more community-friendly facility over the past five years?

One could say this should have been done.

 Could the Autodrome have significantly trimmed the list of uses that it is seeking in the OP and By-law to allow for the racetrack in the Agricultural area, to something less intrusive to the community and thus, more palatable and appropriate from a land use perspective?

One could say such strategy may have been possible.

 Could the Autodrome have come to this hearing prepared with a notion of concrete, workable proposals based on a site plan or other measures and had it consulted early enough with the Community and the Municipality, could this matter have come to a resolution?

The Board believes this could have been possible.

Instead, the Board heard innuendos and suggestions of “entitlement” to the uses the Autodrome unilaterally introduced in the agriculturally zoned track area, based on its own broad business needs and its own interpretation of the Zoning By-law and - 31 - PL080881 regulations, and particularly suggesting these uses fit under the “short-term shows and events” provisions. The Autodrome recreational racetrack activities (lapping days, club days, car shows, corporate events, race car driver education, etc.) are the main function of this facility, and if allowed and legalized by the By-law, would become the mainstay. They have been going on for five years. Therefore, by virtue of its longevity, it is difficult to argue these uses should be considered to be “short-term shows and events” or at least be similar to or treated as such. The emphasis on “short-term shows and events” is on “short”, not on ongoing activities such as the Autodrome’s, which appears to operate for as long as there is no snow on the ground and from early in the morning till late at night. Trying to shoehorn the Autodrome’s uses into an existing ill-fitting or inappropriate zoning regulation, is not the most effective or expedient planning approach.

The Autodrome uses in general, are definitely not “short-term shows and events”, as they do not appear to be suitable or compatible with the surrounding rural residential area, one of the criteria of the 1999 Dunnville staff report (Exhibit 4, Tab G). Further, “short-term shows and events” require licence or permit from the Municipality, and the Board understands that the Autodrome has not obtained such licence or permit for its operation. Therefore, this argument does not pass muster.

Notwithstanding the above, if the Autodrome, or anyone else, wishes to apply to the Municipality for the occasional event for types of uses it believes may fall under the “short-term shows and events” regulations, all it has to do is to file its application for each particular event with the Municipality and provide the necessary justifications to support its application. It would be up to the Municipality to determine the outcome and duration of each request and provide the necessary licence or permission at its discretion. It is not a carte blanche permission, as the Board understands “short-term shows and events” were not intended to be permanent. Otherwise, there would be no need for this regulation in the Zoning By-law.

Although segments of municipal By-laws may at times be open to interpretation, it is prudent and good business practice that the review and assessment of any land use proposal or operation ought to be done in direct consultation with the Municipality, prior to significant business investment. The Municipality is the ultimate authority when it comes to interpreting its own By-laws. Appeals to this Board need to be supported by - 32 - PL080881 proper analysis, ensure the applicable policies have been addressed and demonstrate the advocated zoning changes are in the public interest. The Board did not hear compelling evidence to support the proposed land use and zoning changes are appropriate for the area, nor that they can be effectively managed under the present racetrack configuration and operating and management regime and procedures.

Land uses are based on fit and compatibility with their surroundings and the community. Land use planning is based on ensuring that land uses introduced by amendment to a municipality’s instruments clearly demonstrate fit and compatibility and do not cause adverse impacts. Land use changes must address provincial and municipal policies and satisfy that these policies can be met accordingly. Land use changes must also address the protection of health and public safety (the effect of noise in this case), as it is a required Provincial interest in the Planning Act.

Also, compatibility and public safety concerns with uses within the Dunnville Airport site have to be addressed to ensure safety for both the Autodrome clients and the airport activities. Public safety concerns have been raised at this hearing that require physical separation of the two uses. These concerns have not been addressed.

The onus is on the proponent to ensure these matters are addressed effectively, efficiently and on a timely basis through the application process. The Board is not satisfied these public policies and interests have been adequately addressed by the proponent. Therefore, the proposed Official Plan and Zoning By-law amendments, as presented to the Board, do not represent good planning.

Finally, a municipality has the authority to ask for pertinent studies, such as engineering or noise studies, in its review and assessment of planning applications. Again, the responsibility resides with the Applicant to satisfy the Municipality’s requirements, whether or not it is spelled out in the OP. In most cases, this is an operational requirement. As most municipalities do not have in-house noise experts, they rely on outside consultants for review and advice on pertinent matters and to address the public interest. In most municipalities, these costs are directly borne by the Applicant. Haldimand is not different in seeking reimbursement on its peer review costs from Autodrome for its noise study, before it dealt with these applications. - 33 - PL080881

For all the above reasons, the Board will dismiss the appeals under ss. 22(7) for an Official Plan Amendment and ss. 34(11) for a Zoning By-law Amendment submitted by Dunnville Autodrome Limited, to add a variety of car racing related uses to the Dunnville Airport property.

Although this appeal has failed to adequately and effectively address the noise issues and demonstrate good land use planning principles, which could possibly be achieved at the Autodrome by minimizing land use conflicts with other sensitive land uses in the area, nothing precludes the consideration of new applications with a significantly revised and well planned and supported proposal being submitted to the Municipality. Close attention should also be paid in meeting the conditions enumerated by Haldimand in the Draft OPA and Zoning documents. The community is opposed to the current, illegal operations of the Autodrome and the fact they have not been consulted and their concerns have not been addressed. Some of the residents indicated that they may be able to tolerate a better designed and better operated facility with significantly reduced noise levels. Therefore, close community involvement and consultation may be a key consideration to any future action by the Autodrome.

Regardless of what the Autodrome decides to do in the future, all racetrack use and activity must be stopped immediately.

THE BOARD ORDERS that the Dunnville Autodrome Limited appeal to amend the Official Plan for the Town of Dunnville is dismissed.

AND THE BOARD ORDERS that the Dunnville Autodrome Limited appeal to amend By-law 1-DU 80 of the Town of Dunnville is dismissed.

This is the Order of the Board.

“A. Christou”

A. CHRISTOU MEMBER