Where people will be buried is no less important than where people live.
That’s the message from the Ontario Land Tribunal (OLT), which recently decided in favour of Ahmadiyya Muslim Jama’at Canada (AMJ), ordering the necessary amendments to Bradford’s zoning bylaw and official plan to clear the way for a six-hectare burial site, 929-square-metre place of assembly, paths and more at AMJ’s property at 3999 Sideroad 10.
Written by Jean Pierre-Blais and issued on July 3, the decision dismissed appeals under the province’s Funeral, Burials, Cremation Services Act which overlapped with appeals under the province’s Planning Act — all from a group of residents led by Len Ferragine (of Bradford Greenhouses Garden Gallery), and including Kevin, Darryl, Kristen, David and Patricia Eek (the family known for John Eek & Son Ltd.), as well as Doris Becher Neinhaus.
According to tribunal documents, the residents argued the cemetery did not conform with provincial planning policies, was not in the public’s best interest and would have led to the permanent loss of lands in a “prime agricultural area.”
Ferragine in particular, claimed AMJ had not properly conducted studies regarding impacts on groundwater, alternative locations and traffic impacts.
“I’m very disappointed with the results and unfortunately, I’m disappointed in the process as well,” he said.
While Ferragine understands the town is growing and with it comes the need for more cemeteries, he feels more work should have been done to this point to protect water sources.
“I don’t believe the tribunal got it right; I don’t believe our community got it right, but I respect the decision and hopefully we can make sure our water is safe,” he said.
Neither the Eek family, nor representatives from AMJ, returned request for comment in time for publication.
Both AMJ and the residents retained a series of experts to provide testimony about the relevant issues under both acts, which the tribunal decided to hear together, and decided in favour of AMJ on all issues, but did require additional precautions for groundwater.
The tribunal noted the property is within a “highly vulnerable” aquifer, a “significant” groundwater recharge area and a wellhead protection area, and also acknowledged that cemeteries are among the “chief” sources of pollution and contaminants in groundwater, such as bacteria, viruses, protozoa, and intestinal fungi as well as metals, nutrients and more.
However, AMJ explained to the tribunal that the town, the County of Simcoe and Lake Simcoe Region Conservation Authority (LSRCA) had all approved the work done to address concerns so far, and more would be required as part of site plan approval from the town, including a program to monitor and mitigate impacts to groundwater.
The tribunal agreed but modified the zoning bylaw amendment to require the program satisfy not just the town, but also the county and LSRCA, which Ferragine called a positive step.
On the subject of agriculture, the tribunal found the impacts, if any, would be “negligible and can be mitigated,” as the property isn’t designated as a specialty crop area by the province, county or town, the property is only on the edge of “prime agricultural lands” not surrounded by them, would not fragment any nearby farmland, is not currently being farmed and might not even be suitable for farming.
The tribunal also found the cemetery is needed in the area due the lack of a dedicated cemetery in the province for the Ahmadiyyan community, which has been “persecuted and oppressed,” and are not permitted access to other Muslim cemeteries. Plus, the Ahmadi population in town continues to grow and the location is considered “central” for the more than 24,000 Ahmadis in the province, including in York and Peel regions.
The decision also looked to a cemetery needs assessment report from February 2020, which shows a shortfall of cemetery land in the county of more than 15 hectares by 2041 and more than 144 hectares by 2071; and in Bradford by about two hectares by 2041 and nearly 11 hectares by 2071.
“There is ample evidence before the tribunal that the proposed cemetery location is rationally justified,” Pierre-Blais said in the decision.
When it comes to searching for alternative locations, the tribunal agreed with expert testimony from Pierre Chauvin, a partner with MacNaughton Hermsen Britton Clarkson, who explained there are no reasonable alternative locations for cemetery use which would avoid prime agricultural areas, based on an analysis conducted in consultation with the town and county staff.
“The Applicant (AMJ) met the onus, viewed through a reasonable and pragmatic lens, to demonstrate that they have prepared the required alternative location assessment,” Pierre-Blais said in the decision.
On the subject of rural character, the tribunal noted that places of worship and cemeteries exist throughout rural areas and that the cemetery will be set back from the surrounding agricultural operations with no concerns over minimum distance separation, while landscaping, planting, vegetative buffering, and fencing are anticipated through site plan control.
“The tribunal expects that the proposed cemetery, like almost all cemeteries, will have a pastoral quality,” Pierre-Blais said in the decision.
The tribunal also found there would be no “undue” impact to traffic from the proposed cemetery based on a traffic impact study, which showed no capacity issues at intersections.
The tribunal acknowledged people already travel to the existing mosque on the property and while the town would normally only require the proposed development include 166 parking spaces with five barrier-free, AMJ proposes 288 spaces, including 11 barrier-free.
As a result of all the findings, the tribunal found the proposed cemetery and accessory buildings are appropriate, and consistent with provincial and county planning policies.
Prior to the OLT case, AMJ submitted related requests for zoning bylaw and official plan amendments, which town staff considered complete on Feb 7, 2020, and Bradford council approved those amendments on Sept. 20, 2022.
Committee of the whole had previously suggested deferring a decision until the current council term based on concerns over how the public meeting process had been impacted by the early days of the COVID-19 pandemic and potential confusion from the switch to online video conferencing software instead of in-person meetings.
However, the Sept. 20 approval included a stipulation for further public consultation as part of the future site plan approval process.
On Feb. 21, 2023, county council also approved the official plan amendment.
According to tribunal records, AMJ purchased the property in 2008, at which time the town’s zoning already permitted a cemetery.
However, a site plan application around that time was delayed because the town was in the process of updating its zoning to conform with provincial policies, which restricted the cemetery use on the property.
