What price good neighbours?

Jeff Green | Jul 14, 2011

Bill Day Jr. owns a property that is on a busy through road between Sydenham and Harrowsmith. His property is easy to find from Kingston and the 401.

His father ran grass drag snowmobile races on the property for 35 years, and Bill Day is taking things to another level. He has built a motocross track on the property and wants to run the track as a commercial enterprise, with sanctioned races a couple of times a year, as well as public use of the track one evening a week for practice sessions and informal riding. As part of the Maguire motocross series, a number of races were held last summer.

“There has been racing on this land all my life. I grew up with it, and when we built the track to start some different kinds of racing we made sure were a thousand feet away from any of our neighbours. All bikes are tested for noise levels before they race, and they need to be under 96 decibels. The whole thing is done in an organized way,” Bill Day said in a telephone interview this week.

The problem for Bill Day is that South Frontenac has a bylaw on the books prohibiting motor racing. The grass drag races were permitted because they were already established when the bylaw was passed, but last fall the township informed Bill Day that he needed to apply to council for a zoning amendment to allow further motor racing on his property.

So Bill Day made an application earlier this year.

“Everything seemed to be going well. We met with the mayor and the planning department and went over what we wanted to do and everyone seemed OK with it at first,” Day said.

That was before the opposition to the plan emerged.

It turns out that while the Day property might look isolated, it isn't. There are a number of neighbours across the road and some on smaller side roads who are exposed to the high-pitched whine of motocross bikes whenever racing occurs, and a number of those neighbours are dead set against racing on the Day property.

This sets up a classic kind of rural dispute. One person has a right to the use and enjoyment of their property by virtue of owning the land, but when that right conflicts with the rights of neighbouring property owners to also enjoy their own properties, whose rights should be given more weight?

Mel Therien lives across the road from the Day farm. Sitting on his porch one morning last week, I could hear the steady hum of traffic on the Harrowsmith Road as we talked, but I could also hear other sounds, birds chirping, the wind whistling over the fields behind. We had no difficulty carrying on a conversation.

“If the track was active, we wouldn't be sitting here,” Therien said. “We would be yelling over the sound and covering our ears. We would have to go inside and close the windows in order to talk, and even then the sound would penetrate the house. And that is during a practice session. During race weekends, you don't want to be here at all.”

The neighbours’ complaints have been heard and in June the township planner, Lindsay Mills, advised council not to proceed with the zoning amendment.

In a search for compromise, a time-limited solution has been proposed.

On August 2, South Frontenac Council is expected to consider a temporary one-year bylaw that, as it is currently written, would allow one ATV and one motocross weekend this summer, and one ATV and one motocross weekend early next summer, as well as practice sessions on Wednesday nights. These practice sessions were advertised on the Kingston Kijiji site for $20 in May.

Bill Day thinks a one-year trial is a reasonable option, even if it is not what he wanted to happen in the first place.

“That way, all the members of Council will have a chance to come out and see what is going on, and hear the noise, see if there is any dust. It will be a good test,” Day said.

But for Mel Therien, there has already been a test year.

“We know what is going to happen because we have already experienced it,” he said.

According to Mel Therien, the neighbours are seriously considering appealing the decision to the Ontario Municipal Board (OMB) if council approves the temporary zoning on August 2.

“We know it will cost us money, but the effect on our rural lifestyle and our property values is such that we will have no choice,” he said.

What this means is council must consider the cost to the township of an OMB hearing, and the report from their own planner, which recommended against the zoning change, would be used against them at that hearing.

Bill Day does not rule out going to the OMB if his enterprise is effectively shut down on August 2.

There is no obvious compromise available in this case. Bill Day wants to put on races, and the neighbours don't want any racing.

Two members of council have indicated they will oppose the proposal, and at least two are leaning towards supporting it.

Whatever happens, the underlying issue remains.

How can the wants and desires of property owners be satisfied when those desires come into conflict with the desires of their neighbours?