Synopsis of Municipality of Clarington V Kelso and Kraus for the Ontario Landowners’ Association
The landowners of 438 Rickard Rd. Bowmanville, Heide Kraus and Jeff Kelso, purchased their property in 1996. They assumed a pre-existing outdoor storage business and small farm with a silviculture operation. Despite pre-dating the 2007 amendment to Bylaw 84-63which limits the number of units that are allowed to be stored in Prime Ag, the Municipality of Clarington refuses to recognize the land use as legal non conforming. Section 34 (9)(a) of the Planning Act prohibits municipalities from passing By-laws that would prevent the use of any land, building, or structure if it was lawfully used for such a purpose on the day of the passing of the By-law, as long as that use continues.
Despite decades operating a small local business which meets a vital need within the community, the Municipality of Clarington charged the couple with being in contravention of Bylaw 84-63. It cannot be understated how emotionally and financially devastating this process has been for the family, particularly given the concurrent stress of the COVID-19 pandemic. Ultimately common sense prevailed, and the charges were stayed by the Justice, but not after wasting tens of thousands of taxpayers’ dollars. Unfortunately, despite 438 Rickard Rd being redesignated as Employment Lands in the newly approved Durham Region Official Plan, the Municipality of Clarington is requesting an appeal of the Ontario Court Ruling. If granted the Appeal will again waste money and human resources, at the expense of Clarington taxpayers.
Below is a summary of events since Clarington Bylaw first investigated land use at 438 Rickard Rd. Bowmanville.
1) In 2010 Bylaw opened file 15259 regarding RV storage on Prime Ag at 438 Rickard Rd, Bowmanville. This file was closed in 2014 by Clarington bylaw officer T Mason. No information or explanation was given to Kelso and Kraus.
2) Beginning in the first quarter of 2020 Bylaw officer D Williams repeatedly attended 438 Rickard Rd and indicated the owners were in contravention of Bylaw 84-63.
3) October 2020 a pre-consultation meeting was held with landowners and stakeholders. Clarington planners stated that amendments to both Clarington and Durham official plans would be needed for RV storage to be legal at 438 Rickard Rd. Durham planners stated RV storage was legal on Employment lands only.
4) January 2021 Mr Kelso made a delegation before Clarington Council which resulted in retention of outside consultant planners to prepare a report with recommendations for RV storage in Clarington. The Clarington Agricultural Advisory Committee was tasked with drafting recommendations on Bylaw amendments which would define the “on Farm Diversified Use” of storage in Prime Ag. The committee failed to provide a recommendation or report to council. No changes were made.
5) March 2, 2021 the Durham Region Planning and Development Committee was notified that Envision Durham, the Municipal Comprehensive Review of the Durham Region Official Plan was being released to the public and stakeholders. Settlement Boundary expansion requests were to be received by May 31, 2021.
6) March 3, 2021 Mr Kelso received a Provincial court summons for being in contravention of Bylaw 84-63.
7) Clarington Corporate Policy F14 regarding Enforcement section 5.4 (f) lists situations which may cause delay in bylaw investigation, processing, and even court action: “administration and revisions of current by-laws (e.g. research and drafting of new by-laws)”. It shall be noted that Kelso and Kraus were charged and summoned during the exact time frame in which Envision Durham was re-drawing the Settlement Area Boundaries.
8) The trial began September 2021 with the final Decision rendered May 10, 2024. Clarington was represented by Durham Region legal services, often with several lawyers in attendance. A FOI request by Kraus and Kelso revealed that Clarington paid Durham legal services $40000 per year. A specific breakdown was not provided.
9) May 2023 Durham Region Council approved Envision Durham. The Settlement Area Boundary Expansion included the redesignation of 438 Rickard Rd as Employment Lands in the Durham Regional Official Plan (DROP).
10) May 2024 the Ministry of Municipal Affairs and Housing approved Envision Durham in draft, supporting the Settlement Area Boundary Expansion involving 438 Rickard Rd as described in 9 above.
11) The May 10, 2024 in Ontario Provincial Offenses Court, Justice MacDonald stayed the charges against Kraus and Kelso. They are now free to operate their business as they have since 1996. Of the Municipality of Clarington’s staff, Justice MacDonald wrote: “Why bother to have elected officials at all if senior directors, managers and enforcement officers who possess power and authority over citizens act with impunity in a bureaucratic milieu where there is no accountability to anyone but themselves?”
12) May 29, 2024 Kraus and Kelso received a notice of Appeal from the Durham Region lawyer, listing the Municipality of Clarington as the client. As of July 2024, the court has not agreed to hear Clarington’sAppeal.
13) Kraus and Kelso submitted FOI requests and sent email to the CAO Legislative services (Mr Maciver) and the CAO (Maryanne Dempster) requesting clarity regarding the appeals approval process in general, or their case specifically. No pertinent information was provided. Kraus and Kelso do not know which staff directed the Appeal on behalf of the Municipality of Clarington.
14) As of July 2024, the elected municipal councillors have not been formally informed of or consulted on the matter.
15) The Municipality of Clarington continues to review its Official Plan. On its website Clarington states its updated Official Plan (OP) must conform with the new DROP and the Province’s policies and legislation; therefore the Clarington OP when complete must include the same Settlement Area Boundary Expansion as the DROP.
16) Given the imminent changes to the Clarington OP and the fact that it MUST conform with the DROP, the prospect of a successful Appeal is low.
17) Taxpayers need to be aware of money and human resources being spent on this matter, ostensibly without oversight or knowledge of elected officials.
Heide Kraus and Jeff Kelso
