Neil Carleton 2by Neil Carleton

 Program Notes

 Municipal drama is a genre of public performance consisting of a cast of elected officials, staff, and members of the general public, with the appearance of corporate representatives from time to time, in a variety of major and supporting roles within the Council chamber, in a variety of other public venues, and at large during election campaigns, to conduct the governance of a geopolitical entity such as a township, county, or town.

Ranging from soporific to riveting, municipal drama is subject to significant fluctuations of interest.  Audience attendance often peaks when the script results in true-to-life characters being in conflict with themselves, others, society, and even the balance of nature.

Theatre Masks

Since ancient times, two masks have represented the traditional division between the drama of comedy and tragedy.  They’re symbols of the Greek muses Thalia and Melpomene.  Thalia, “the joyous, the flourishing”, presided over comedy and idyllic poetry – the laughing face.  When the nine muses were assigned specific artistic and literary jurisdictions, Melpomene became the patron of tragedy and lyre playing – the weeping face.

 5 Acts and Counting

 In April 2013, the decision of the Ontario Court of Appeal shut down Marked Paintball & Laser Tag, which had operated since 2007 at 4120 Vaughan Side Road in West Carleton, just east of Mississippi Mills.  In a long legal battle with the City of Ottawa, the Court upheld a decision that the business had been operating in an area that was never legally zoned for paintball operations.

Paintball is a game of simulated military combat where participants use compressed air or CO2 powered guns to shoot capsules of paint at each other.  Speedball is played in an open field filled with inflatable bunkers, and woodsball is played in natural surroundings.

Paintball
Paintball is a game of simulated military combat where a wide variety of guns are used, from pistols to machine gun look-alikes.  Photo by Piotr VaGla Waglowski, public domain, Wikimedia Commons

Controversy has followed the company’s attempt to relocate at 13259 Highway 7 (near the Ferguson Falls Road), in Drummond / North Elmsley Township, at the south end of Lanark County.  Local residents were alarmed that a paintball operation might be permitted in their rural neighbourhood.  They’d heard what happened at the previous business site from high profile media coverage, including a cacophony of paintball guns, yelling, screaming, and profanity.

In its investigations, CBC News reported that the business was a popular attraction for paintball enthusiasts, making about $6000 profit on an average weekend throughout the year.  While the site attracted plenty of paying customers, some people living nearby were selling their homes and moving away.  For years many rural residents near the business had complained that the paintball park was intrusive and noisy, and the traffic was too much for the country area.  As reported by the Ottawa Citizen, the problem was living near awfully mean neighbours according to business owners Allie and Däg Militky.

Following the Court’s decision last year, the lawyer for the City of Ottawa reflected that the costly legal battle could have been avoided if the owners had pursued a zoning amendment.  Although this course of action was the company’s initial focus for its proposed relocation to Drummond / North Elmsley Township, Marked Paintball is now back in court.

Prelude

After rural neighbours learned that a rezoning application had been made for a paintball operation in the Township, the curtain was poised to rise on a landscape of opposition.

https://millstonenews.com/2014/01/controversy-follows-paintball-operation-to-drummond-north-elmsley.html

Act 1

 The Council Chamber was packed at the January 28 public meeting.  Following a report by the Township Planner, the meeting proceeded with 9 presentations from paintball enthusiasts.  They spoke from the heart about becoming part of a large paintball family through a sport where respect, teamwork, and trust are common goals.  Also cited were situations were lives were turned around by the sport.

Council Chamber
Every seat was filled at the Drummond / North Elmsley public meeting on January 28, and many had to stand at the back of the room.

There were 16 residents who spoke against the proposal.  Prior to the public meeting, the township received more than 2 dozen letters of concern and objection from residents.  The concerns included the impact of noise on neighbours and wildlife, highway danger with increased traffic turning off/on a very fast and busy highway, and a decline in property values.  Residents spoke passionately about the peace, quiet, and other rural characteristics of their neighbourhood.

https://millstonenews.com/2014/01/rural-community-opposes-paintball-business-in-drummond-north-elmsley.html

Act 2

A Committee of the Whole meeting was called to order on February 4.  Registered delegates spoke strongly against the paintball proposal.  Councilors voted to delay a decision until the issues of highway traffic, noise, and the inadequacy of environmental information were resolved to their satisfaction.  The curtain closed to a collective sigh of relief.  Many shoulders relaxed and modest smiles crept across some anxious faces.  Celebratory feelings were not expressed by all in attendance.

http://www.dnetownship.ca/sites/dne.civicwebcms.com/files/media/%233.February%204.14%20CoW%20Minutes_0.pdf

Property
The 62.3 ha / 154 acre property at 13259 Highway 7, described as Part of Lot 24, Concession 12 in the Township of Drummond, includes a dwelling and several agricultural and equestrian related outbuildings.  The Zoning By-law Amendment as proposed would rezone part of the land from Rural to Highway Commercial- Special Exception Zone.

 Act 3

 Council voted on May 27 to defer a decision on the zoning amendment pending additional clarification on the noise impacts and the habitat of threatened and endangered species.   Marked Paintball was sent back to complete its environmental homework.  The vote included instructions for staff to undertake an independent peer review of the consultant’s noise study.  Marked Paintball, according to Drummond / North Elmsley residents and Council, was still off target.

https://millstonenews.com/2014/06/paintball-zoning-application-still-misses-drummond-north-elmsley-target.html

Bird Beaks 1
Many environmental questions had been asked by residents since they first learned about the proposed paintball operation.  At the top of the list was how could the Township consider a zoning amendment without the required Environmental Impact Assessment, including the habitat of threatened and endangered species.

  Interlude 1

 Some residents felt that the curtain would not be rising again anytime soon.  From the performances to date, they sensed a dramatic build-up of tension behind the scene.  There was a concern in some quarters that any script rewriting which might be under consideration could result in a compromise of some sort that would lessen the likelihood of a neighbourhood-friendly outcome.  This was countered by the observations of other connoisseurs of municipal drama that, when the going gets tough, the scenes to follow are more likely to be about character revelation.  All that could be done was wait.

Act 4, Scene 1

 A dramatic behind-the-scene change of strategy by the applicants precluded the public participation in, or observance of, any further drama on the municipal stage.  Marked Paintball initiated court action.

On June 17, from 1:15 to 1:56 p.m., the Committee of the Whole held a closed session to receive advice that is subject to solicitor-client privilege.  When the Committee returned to regular session it was recorded that Council affirmed the Township’s position that rezoning was required for the Militky’s proposal of a paintball operation.  Direction was given to the Planner to review the wording of “private park” during his next comprehensive zoning by-law review.

http://www.dnetownship.ca/sites/dne.civicwebcms.com/files/media/%2312.June%2017.14%20CoW%20Minutes%20REVISED.pdf

Township Hall
The municipal building is located at 310 Port Elmsley Road, R.R. # 5 Perth.  Photo courtesy of Drummond / North Elmsley Township.

 Act 4, Scene 2

 Between 7:14 and 7:40 p.m. on September 23, the Council of the Corporation of the Township of Drummond / North Elmsley held a closed session to discuss a matter pertaining to litigation or potential litigation including matters before administrative tribunals, affecting the Township.  As noted in the minutes under section 7.1, this was an update on the court action of Marked Paintball .

https://drummondnorthelmsley.civicweb.net/document/7022/September%2023%202014%20Council%20Minutes.pdf?handle=7A3FB801FE054C37B5E362B64BC8DF47

 Under section 239 of The Municipal Act, the Council of the Township of Drummond / North Elmsley is permitted to hold closed meetings for a variety of reasons, including:

  •  the security of the property of the municipality;
  • personal matters about an identifiable individual, including municipal employees;
  • a proposed or pending acquisition or disposition of land by the municipality;
  • labour relations or employee negotiations;
  • litigation or potential litigation;
  • advice that is subject to solicitor-client privilege;
  • consideration of a request under the Municipal Freedom of Information and

Protection of Privacy Act;

  • a matter in respect of which a council may hold a closed meeting under another Act;
  • educational or training sessions.

 Interlude 2

 Township residents had to wait for the courtroom doors to open before they could learn anything more of significance.

Since the original rezoning application was still open, and Council had not made a decision on it, there were no further public notices on the issue under the Planning Act.  When legal action was initiated by Marked Paintball, the discussion of the rezoning issue was restricted to closed sessions of Council and the Committee of the Whole.  Only Councilors and Township staff were permitted to attend.

 Act 5, SCENE 1

 When the curtain rose on the afternoon of November 21, the scene was upstairs at 43 Drummond Street East in Perth.  Marked Paintball was back in court.

About 10 months earlier, during the January 28 public meeting at the Township hall, many heads had nodded after the final opposing presentation.  It was a direct question to Council.  “Is the Township willing to put up with this company?  They didn’t listen to Ottawa, and they won’t listen to you.  You’re small potatoes.”  Some of the same people took their places in the public seating area of Courtroom 1 last Friday.

Court House
The Neo-classical building at 43 Drummond Street East in Perth was erected in 1842-43 as the court house and gaol of the Bathurst District of Upper Canada.  It replaced an earlier court house on the site which was built in 1822 when the District was established, but was destroyed by fire in 1841.  The building has served as a centre for judicial and municipal administration for 171 years.  Photo courtesy of Alan Brown ontarioplaques.com  

At issue was the application filed by Marked Paintball with the Ontario Superior Court.  The company was seeking an interpretation of the municipality’s Zoning By-Law and confirmation as to whether their use of rural land for a paintball operation fell under the “private park” category in Drummond / North Emlsley Township and thus would be permitted as a right, without the necessity of a rezoning.  Court was called in session to hear arguments presented by the company’s legal counsel and the Township’s lawyer

It was a complicated legal performance from a novice-to-the courtroom perspective.  During the lawyers’ presentations to the judge, for example, there was much page turning, referencing of specific sections, and reading of relevant lines from Factums, Books of Authorities, and the Township’s Official Plan and Zoning By-Law.  With a recess and an additional short break, the actual legal discourse occupied about 2 ¼ hours of the Court’s time.

From behind the railing in the public gallery, the issue was two simple positions.  Originally Marked Paintball had applied for a zoning by-law amendment with the intent of securing a municipal rezoning for the land at 13259 Highway 7 from Rural to Highway Commercial – Special Exception Zone.  In the courtroom the company was now arguing before the judge that its proposed paintball operation should instead be classed as a “private park” and therefore not subject to rezoning.  It was the position of the Township that this was an attempt by the company to circumvent the municipal requirement for rezoning.

Considerable drama erupted on the legal stage of Courtroom 1 during the second half of the proceedings.  After the lawyer for Marked Paintball had jumped to his feet a third time to interrupt the address of the township’s lawyer, the judge silenced him with a firm reprimand.  At issue was an alleged dispute of facts.  This was of deep concern to the judge, and his remarks were forthright.  “I’ve been a judge for 35 years and I know when games are being played.”  He gave the lawyers 5 minutes to decide if they were going to agree on facts or send the case to trial, then left the chamber.

What followed next kept many eyes on both lawyers as words were exchanged before they consulted with their clients, left the room, and reappeared not long after.  When court resumed, the township’s lawyer advised the Judge that her client did not want to go to trial.  She also remarked that she did not want to be bullied.  Her presentation on behalf of the Township continued without interruption.

Court adjourned after the judge announced that he would reserve decision on the matter.  This meant he was not immediately delivering a decision, but instead would take time to review evidence and the law, then deliver a decision at a later date.  A time frame of 2 to 4 weeks was referred to.

Scales Of Justice

In Roman mythology, the goddess Justice symbolized the fair and equal administration of the law, without corruption, avarice, prejudice, or favour.  Lady Justice has been an allegorical personification of the moral force in judicial systems.  She is often depicted as holding a set of scales.  In the jurisdiction of legal matters, the scales of justice signify that each side will be considered in a court case, and decisions will be made by weighing the evidence in a fair manner.

 Act 5, SCENE 2

 Further drama is anticipated at the Perth Court House before the new year, possibly as early as the first week of December.