Better Farming: Pig Farmer acquitted in methane-fueled barn fire

Read Better Farming's story about the recent acquittal of a Huron County hog farmer on Occupational Health and Safety Act charges connected to a 2012 flash fire that injured the farmer and his employee.  The Court determined that the fire resulted from the ignition of a build-up of methane that had resulted from a barn design flaw.

Empty barn not enough to trigger MDS to prevent neighbours' severance

Landowners had applied to their municipality to sever a 0.84 acre parcel from their existing 30-acre lot.  County planning staff determined that the proposed severance complied with MDS requirements and that the County had no objection to the proposal.  However, a neighbour did object to the severance, suggesting that the new lot would breach MDS provisions because it would come too close to his 1860-era barn.  Although the barn was vacant, the neighbour was considering returning the barn to livestock use.  He asked that the proposed severed parcel be moved to a different location on the applicants' property.

The municipality went ahead and approved the severance, so the neighbour appealed to the Ontario Municipal Board ("OMB").  The only issue on the appeal was the application of MDS to the severance, and the OMB ruled that MDS did not apply.  Although the OMB took issue with some aspects of the municipality's methodology for considering required setbacks, the OMB concluded that the neighbour's barn did not correspond to the definition of a "livestock facility" within the governing Provincial documents.  MDS had no application in this case.

As the OMB noted:

The fundamental problem with this appeal, however, pertains to the barn itself, and whether it even constitutes a "livestock facility", as understood in the Provincial documents. The Board was not persuaded for the following reasons.

The Provincial documents are unequivocal: to qualify as a "livestock facility", it is not enough for a building to be "structurally sound"; it must also be "reasonably capable of housing livestock." The two criteria are not synonymous. Although the neighbour insisted that the structure would not actually fall over, he offered essentially no evidence it could meet any other expectations.

Indeed, the Board was not shown how the existing structure could be much more than a "shade shelter" (which is specifically excluded from consideration as a "livestock facility"). Although there was no "comprehensive building analysis", it did not take a comprehensive analysis to discern that the structure had no insulation, electricity, ventilation, stalls, hay storage, manure storage, or livestock equipment. It also had planks visibly missing from its siding in various places. None of the observations by the CBO were contradicted. The structure is a shell, and not even one that is impervious to the elements.

Whether or not the structure was considered appropriate for livestock by 1860 standards, the Province would not have published its detailed instructions for "determining when a barn is a livestock facility", if such a primitive structure could qualify. The Board is satisfied that if this structure were subjected to even the most elementary agricultural standards today, substantial remodeling would be essential.

That is where the neighbour encounters a second problem. The Guidelines specify that MDS II also applies to "remodeled livestock facilities.”

The CBO apparently concluded that no remodeling under MDS II would be feasible – not because the barn was too close to the proposed severed parcel, but rather because it was too close to Ms. [S]'s existing dwelling across the road. The Board heard no evidence to contradict that position.

Therefore, notwithstanding the eloquence of the [O] brothers and their expert, the Board was not shown how the barn could now trigger the MDS process – or that it ever could.

Read the decision at: O’Brien v Laronde.

Lack of an "honest belief": BC Court orders neighbours to remove encroaching barn and shed

One neighbour (G) has a barn and a shed that protrude onto another neighbour's (N's) property.  The barn is used for stabling horses and the shed is used for storage and has an attached chicken coop.  The situation ended up in BC Supreme Court where N proposed two options: 1) shared use of the barn and the shed; or, failing that, 2) an order for removal of the encroaching structures within 6 months.  According to the Court, each neighbour accused the other of being unreasonable and uncompromising about the encroachments.

G sought an order that there is an easement permitting the encroachments.  Although G knew about the encroachment before purchasing the property, G suggested that reliance had been placed on the representations made by the previous owner of N's property when G dealt with the barn and shed (choosing to maintain and improve the buildings, rather than remove them).   The Court ruled that G would not obtain an easement, largely on the basis that G did not have an "honest belief" about having the easement in the first place:

G purchased their property knowing specifically that the barn and shed and surrounding land encroached on their neighbour’s property. They now seek to obtain by court order what they did not bargain for in the first place. In essence, the G position is that the simplest and easiest solution from their point of view is for the court to grant them an easement over the N property or to allow them to buy the encroaching area, for modest compensation.

The Court ordered that the barn and shed encroachments, including buildings and fencing, be removed from N's property within 9 months.  The Court declined to order that half of the cost of doing so be borne by N, finding no reason to do so. 

Read the decision at: Gueldner v. Nichele.

OMB rules in favour of hog barn expansion beyond MDS II formula

Frans and Hannie VanderZanden (Applicants) own and operate a 26.5 ha (65.5 ac.) farm on the west side of Palmyra Road, in the Community of Orford. The property contains one large livestock barn and three smaller barns with an existing capacity of 2,400 feeder hogs. They planned to expand their operation by building a new 32 m (105 ft.) x 29.5 m (97 ft.) addition to the south side of the existing large finishing barn. The new addition would add capacity for an additional 900 hogs.  The MDS II formula requires a minimum setback from the nearest lot lines. The proposed addition will only be 16 m (52 ft.) from the nearest lot line as opposed to the required which is the same setback of the existing barn to which the addition is proposed. Therefore, the proposed expansion of the livestock facility would require a reduction in the setback to the nearest lot line from 30 m (98 ft.) to 16 m (52 ft.).  VanderZanden applied successfully to the Municipality of Chatham-Kent for a minor variance.

Bobbi Plumridge (Appellant) is a 20 year resident of the area, living  approximately 1 kilometre from the Subject Property, and opposed the application.  She says that when she purchased her home in 1990, the Subject Property consisted of 3 modest sized barns and a manure lagoon and the newer larger barn next to the grey drain did not yet exist. A new barn with 10,000 sq. ft. was added between 1994-1995. Since then, there have been several incidences over the years with manure not being properly contained, including spills from underground into the grey drain and also into Lake Erie. According to Ms Plumridge, a previous application to expand the operation at the Subject Property was refused because of manure spills and accidents. She is concerned not only about the above ground spills but also the underground spills that occur. Ms Plumridge contends that the proposal calls for too many hogs/pigs for this land base and that currently 78% of the manure needs to be trucked off site.

The municipality and the applicants were represented by the same lawyer at the hearing.  Both sides presented evidence and, following the hearing, the OMB ruled in favour of the municipality's decision to allow the barn expansion in spite of the MDS II setback requirement:

Therefore, the Board agrees with and adopts the planning evidence and opinions of Mr. Brown. The Board finds that the proposed variance is desirable because it helps to conserve farmland by expanding on an existing site instead of utilizing a whole other new site. The use here is an existing and permitted use in the OP; therefore it maintains the intent and purpose of the OP. The proposed variance maintains the existing setback and thereby maintains the general intent of the ZBL which is to minimize land-use conflicts caused by odours and the like. The proposed extension/expansion maintains an existing condition, and as such it will not be located any closer to the lot line than what already exists. The variance is minor because the neighbouring land use is passive farming and there are no significant impacts resulting from the shortened setback.

The Board is satisfied in this instance, that the proposed variance to facilitate the expansion of the existing hog operation meets the tests in subsection 45 (1) of the Planning Act, is in the public interest, and represents good planning. The Board notes that expansion of the existing facility includes utilizing the existing/proposed setback was also endorsed by Mr. Faber, who prepared the nutrient management study approved by OMAFRA.

Read the decision at: Plumridge v. Municipality of Chatham-Kent.

Barn collapse case concludes with big judgment

A lawsuit commenced by Terpstra Farms Ltd. against several parties for damages arising from the collapse of a hog barn roof has ended with a large judgment in favour of Terpstra. The trial proceeded before a jury and so there is no reported judgment. However, a court decision was released this week regarding the amount of the judgment, costs and interest as well as the effect of an earlier settlement agreement between Terpstra and one of the defendants.

At trial in January, the jury found the company that constructed the barn, D.W. Lorentz Construction Inc., 85% at fault for the roof collapse. The remaining 15% fault was attributed to Argue and Associates, an agricultural structural engineering firm involved in the barn design. In September, 2009, however, Argue and Associates settled out of the action by paying Terpstra the sum of $295,000, inclusive of damages, costs and interest. On this basis, the action was dismissed as against Argue, and Terpstra agreed to indemnify and hold Argue harmless from any other amount it was found liable for in the trial.

With this agreement in place, the trial judge was left with the task of fully compensating the plaintiff, Terpstra, but preventing a double recovery. The judge concluded that to do so, the costs must be deducted from the settlement amount before factoring the balance of the settlement against what Lorentz owes to the plaintiff. Costs of the action incurred up to the date of the Argue settlement were split 85/15 between the two defendants. Costs of the action incurred after the settlement were solely the responsibility of Lorentz.

With pre-judgment interest factored in, the jury award of damages totalled nearly $600,000. The share of this amount to be borne by Lorentz, taking into account the amount received from Argue (and avoiding double recovery) was pegged at more than $334,000. On top of that, the trial judge awarded costs to Terpstra to be paid by Lorentz in the amount of $353,675.19. The action was commenced in 2002 and trial lasted more than two weeks before a jury.