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Council set to ratify TCT decision tonight, MDS not a factor concludes solicitor

Posted April 14, 2014

Barring a change in voting intentions from last Monday night, New Tecumseth councillors are expected to confirm the use of the Town-owned abandoned rail corridor (ARC) as the Trans Canada Trail (TCT) route, Phase 2, between the 9th and 14th Line. A component of that includes reaching an easement agreement with WD Potato Ltd that deviates around the driveway portion of Walter Davidson's property at the 10th Line, before linking back to the ARC, approximately 700 metres north.

Additional information on tonight's agenda includes Town solicitor Jay Feehely's interpetation of the Minimum Distance Separation (MDS) requirement in New Tecumseth's zoning bylaw as it relates to agricultural uses. The MDS is cited by farmers along the route as one of their concerns.

Mr. Feehely's view, dated April 9th, suggests the MDS at its strictest wording, relates to new development, that includes buildings and structures.

"In my opinion, the use of an existing transportation corridor would not be considered 'proposed development' in either a planning or legal context," he wrote. "If such a restrictive interpretation was applied, it would also potentially prevent the construction of a trail even along a municipal right-of-way. As has been pointed out, using the municipal right-of-way would require the construction of the trail even closer to existing farmland and the same potential issues would apply. However, I am not aware of any case where the use of municipal lands for a right of passage would be considered 'development.' to which MDS would apply."

Mr. Feehely also tackles the MDS as it relates to whether the trail would restrict the construction or expansion of a livestock facility.

"The Formula specifically uses the wording 'reasonably expected to be impacted,'" according to the Town solicitor. "There is no question that the CN Rail Corridor has existed for a long period of time. The previous usage of it being a transportation corridor for trains is hardly much different than it being a transportation corridor for pedestrians. The existence of the corridor would be a factor in any MDS calculation. However, it is again my opinion that the use of the corridor as a trail would not be interpreted as being "development" that would be impacted. ... In conclusion, it is my opinion that the MDS Guidelines as incorporated in the Town's Zoning By-Law would not prevent the development of a trail system along the CN corridor. As to future restrictions on the establishment or expansion of livestock facilities, the existence of the corridor is a fact. However, in my opinion, the change from rail use to pedestrian use would not be material in the MDS Two calculation."

If as expected council ratify's last week decision in committee, the next step will be the design and planning to put the project out for tender. TCT has provided a grant of $250,000, and the Town will draw $220,000 from the PRC development charges reserves, and $30,000 is provided by Simcoe County, to make up the municipal portion of Phase 2.

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