Open Letter re TVT proposed new definition of "School" June 4, 2018

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AN OPEN LETTER TO BLUEBERRY CREEK PARENTS, JUNE 4, 2018

Dear Parents,

Over the course of the past few months, my wife Robyn and I have tried to deal with Tay Valley Township’s challenge to the school’s existence by dividing the work between us. She has kept parents informed, and I have tried to keep up with developments on Tay Valley Township Council.

Today I am writing to you about an alarming development: Unless I am very much mistaken, an attempt is being made to rewrite the township’s zoning law to make it unlawful for a forest school to operate at Blueberry Creek.

Please read my explanation below, and see if it makes sense to you.

On May 15th, Tay Valley Township Council was presented with a draft bylaw, containing a number of changes to the township’s existing zoning bylaw, which had been prepared by a firm of consultants (Novatech), which works closely with Tay Valley Township staff. My impression is that elected councillors had had relatively little input into the details of the bylaw, and I suspect that May 15th was probably the first time that most of them had seen the draft bylaw. It was the first time for me too, so I sat down at once to read it in detail, and I sent a copy to my lawyer.

I was surprised to discover that the draft bylaw contains an obscure provision (Section 14 of the draft bylaw) that would greatly expand the existing bylaw’s definition of “School.” As far as I can see, the sole purpose of this innocent-looking change is to make it unlawful for Blueberry Creek to operate on the land it now occupies---because institutions labelled as “Schools” by Tay Valley’s zoning bylaw cannot operate on a property that lies within the Commercial Zone (which is where we are located).

Under the current zoning law, “School” is defined in a way that clearly excludes Blueberry Creek:

“School: an educational establishment under the jurisdiction of a Board as defined in the Education Act.”

Blueberry Creek uses the word “School” in its name, but this has no legal meaning; we are not under the jurisdiction of a Board, as defined in the Education Act. So we’re not a “School” for the purposes of zoning.

But Section 14 of the draft bylaw redefines “School” to decisively eliminate this protection. It adds, in particular, these words: “This definition includes schools under the jurisdiction of a Board of Education, as well as other private schools….”

Here is full new wording that Novatech has proposed:

(14) ​“School: an educational establishment as defined in the Education Act, and includes any facility which has a body of students and teachers, and which provides, primary, elementary, and secondary or adult education courses of study authorized or approved by the Minister of Education for the Province of Ontario. This definition includes schools under the jurisdiction of a Board of Education, as well as other private schools that provide such courses of study, and that may also provide other specialized training or instruction, whether such private schools are operated for-profit or not-for-profit.”

I have read this new definition over and over again, and the only purpose that I can imagine for the draft bylaw’s expanded definition is to capture Blueberry Creek within the definition of “School,” in order to transform the continuation of our present educational activities into an unlawful use of the land.

Had this definition been in effect a year ago, Robyn would have recognized that it is simply unlawful to use this land to operate the kind of educational facility she was hoping to open, and she would have located the school outside Tay Valley Township.

At this point, I have to draw your attention to an interesting fact. The new definition of “School” creates a problem for the Township: Blueberry Creek is not the only educational facility in Tay Valley located within the General Commercial Zone. There is, for example, a golf course (Mapleview) that is a for-profit business which either provides golf instruction, or that might do so in the future.

With this in mind, take a look at Section 3 of the proposed new bylaw. Section 3 creates an entirely new category of permitted land use, “Instructional Facility”, which is defined as follows:

(3) ​“Instructional Facility: A school conducted for profit, excluding a school as herein defined, which provides training or instruction in dance, music or other arts, driver training, fitness, golf, business, trades, technology and similar uses.”

Significantly, it appears that “Instructional Facilities,” unlike “Schools,” will be permitted to operate within the General Commercial Zone. Section 3 appears to have been added to the draft bylaw for the sole purpose of making sure that the broadened definition of “School” will not apply to any educational establishment in the Commercial Zone, other than Blueberry Creek.

Here’s another fascinating fact: given that an “Instructional Facility” is actually defined in the bylaw as being a “school conducted for profit,” this gives the lie to the argument repeated so frequently by Tay Valley’s CAO, Larry Donaldson, that the use of the word “school” in the name of Blueberry Creek Forest School and Nature Centre is itself a reason why we must be regarded as being a “School” for zoning purposes. You might want to ask him how it is that he has managed to be on both sides of this semantic issue at the same time.

As an MP, it has been my job for the past seventeen years to review and analyze proposed legislation, and I can tell you that the definition of “Instructional Facility” is one of the strangest things I’ve ever seen in a draft law. Where have you ever seen a bylaw that actually makes it unlawful to carry out an otherwise legal activity because you are not doing so for profit?

The only reason that I can think of, for this definition’s deliberate exclusion of not-for-profit schools, must be to create a “Catch-22” situation in which Blueberry Creek cannot escape the ban on “Schools” in the General Commercial Zone by seeking reclassification as an “Instructional Facility” (while businesses like Mapleview are pre-emptively excluded from the definition of “School”).

Here’s how this Catch-22 would work: Right now, Blueberry Creek qualifies as a legal use of the land, because current zoning permits our land to be used for “Community Service.” The bylaw’s definition of “Community Service” is very clear. No for-profit commercial entity can qualify:

“Community Service: The use of land, buildings or structures by a not-for-profit, non-commercial body or society such as a service club or charitable organization for promoting athletic, cultural, educational, health, recreational, social, philanthropic or other similar objectives.”

Thus, if Blueberry Creek were not a nonprofit, our present use of the land would already be unlawful.

In order for Blueberry Creek to qualify as a lawful use of the land under the “Instructional Facility” classification, we would have to re-incorporate as a “school conducted for profit,” and in so doing, we would actually now meet the description used by Tay Valley Township’s lawyer (“commercial entity”), which would serve as the basis for saying that Blueberry Creek must be shut down because only a nonprofit can meet the bylaw’s definition of “Community Use.” Either way, Blueberry Creek will be breaking the law. Clever, eh?

I can’t believe that Novatech would, at its own initiative, have produced wording so surgical in its application to Blueberry Creek. This makes me wonder, therefore, if the new definition was inserted at the request of a Tay Valley staff member who wished to produce the scenario I have described earlier, of forcing Blueberry Creek to shut down and be prohibited by law from ever reopening.

Of course, only a full examination of the correspondence between Tay Valley Township staff and the consultants at Novatech could confirm whether this is, or is not, the case. For this reason, I have filed a “freedom of information” inquiry, requiring that the TVT clerk make public all correspondence between Tay Valley Township staff and Novatech, on the new definitions of “School” and “Instructional Facility” in Sections 3 and 14 of the proposed new bylaw.

Additionally, I think that both Mr. Donaldson and Novatech should be given the opportunity, at a public meeting of Township Council, to explain the rationale for Sections 3 and 14, and to demonstrate that the proposed wording was not designed to deliberately create the impossible situation I’ve described above, in which Blueberry Creek is effectively zoned out of existence.

If you think I’ve misunderstood the purpose of Sections 3 and 14, let me know. But if you think I’m right, could you let Tay Valley Council know that you’d like them to leave the definition of “School” in the township’s zoning bylaw just the way it is right now?

Let’s do what we can together to save the school, so that a whole generation of children will be able to learn about nature, life, and each other at this beautiful location.

Sincerely,

Scott Reid