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PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended Applicant and Appellant: Jeff and Patricia Avery Subject: Request to amend the Official Plan Refusal
of application by City of Sault Ste. Marie Existing Designation: Rural Area Proposed Designation: Estate Residential with a Special Exemption to
permit a boat launch, boat lift and boat storage facility, and Environmental Management
Purpose: To permit the development of a 91-lot plan of subdivision
Property Address/Description: 179 and 227 Pointe aux Pins Drive Municipality: City of Sault Ste. Marie Approval Authority File No.: A-10-13-Z.OP OMB Case No.: PL130890 OMB File No.: PL130890 PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended Applicant and Appellant: Jeff and Patricia Avery Subject: Amendment to Zoning By-law No. Refusal of
application by City of Sault Ste. Marie Existing Zoning: RA Proposed Zoning: R1, EM3 Purpose: To permit the development of a 91-lot plan of
subdivision Property Address/Description: 179 and 227 Pointe aux Pins Drive Municipality: City of Sault Ste. Marie OMB Case No.: PL130890 OMB File No.: PL130891
Ontario Municipal Board Commission des affaires municipales de lOntario
ISSUE DATE: February 27, 2015 CASE NO(S).: PL130890
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2 PL130890 PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
APPEARANCES: Parties Counsel*/Representative City of Sault Ste. Marie (the City) N. Kenny* 1704604 Ontario Ltd., Jeff Avery and Patricia Avery (the Applicants)
O. Rosa*/P. Cassan*/T. Harmar*
Pointes Protection Association (PPA)
H. Scott*
Klaas Oswald Self-represented
Applicant and Appellant: Jeff and Patricia Avery Subject: Proposed Plan of Subdivision - Refusal of
application by City of Sault Ste. Marie Purpose: To permit the development of a 91-lot plan of
subdivision Property Address/Description: 179 and 227 Pointe aux Pins Drive Municipality: City of Sault Ste. Marie Municipal File No.: 57T-13-502 OMB Case No.: PL130890 OMB File No.: PL130892
Applicant and Appellant: Jeff and Patricia Avery Subject: Proposed Plan of Condominium - Refusal of
application by City of Sault Ste. Marie Property Address/Description: 179 and 227 Pointe aux Pins Drive Municipality: City of Sault Ste. Marie Municipal File No.: 57T-13-502 OMB Case No.: PL130890 OMB File No.: PL130893
Heard: November 18, 2014 to December 5, 2014 in
Sault Ste. Marie, Ontario
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3 PL130890 Participants John Campbell Richard Craftchick DECISION DELIVERED BY BLAIR S. TAYLOR AND ORDER OF THE BOARD
INTRODUCTION
[1] The Applicants had applied to the City for an Official Plan Amendment (OPA), a
Zoning By-law Amendment (ZBA), a draft plan of subdivision and a draft plan of
condominium for the lands known municipally as 179 Pointe aux Pins Drive and 227
Pointe aux Pins Drive, and two lots on Pointe Louise Drive being Lot 18 and Lot 19,
hereinafter called the Subject Lands.
[2] The Subject Lands were assembled over a period of time beginning in 1984
based on a vision of Mr. Avery to create a unique waterfront community in Sault Ste.
Marie. The genesis for this was his experience in Florida where he observed a
residential community with lagoon access to the Gulf of Mexico. The Averys currently
reside near the Subject Lands, and have resided there for some 30 or 35 years.
[3] The Subject Lands are located generally in the Pointe Louise area. The Pointe
Louise area is several kilometres from the existing urban settlement area as shown on
Exhibit 28, is located in close proximity to the Sault Ste. Marie Airport and the Subject
Lands are located inland from residences and seasonal homes that have located over a
number of years along the St. Marys River shoreline.
[4] It is estimated that there are about 200 seasonal/permanent residential homes in
the Pointe Louise area.
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4 PL130890 [5] The Subject Lands include the existing Alagash Canal which was described to
the Board as being developed in or about 60 years ago with about 25 lots with rear
access to that man-made canal. The Board was advised that at one point in time the
canal had two accesses to the St. Marys River: one on the west side which is now
closed in and the second which is through an existing culvert under a City owned road
known as Alagash Drive.
[6] The proposal by the Applicants is to seek the approval of the City to close up and
stop a portion of Alagash Drive over the culvert that extends the Alagash Canal into
the St. Marys River, to provide new access to the existing homes on Pointe Louise
Drive via a new road through the Subject Lands and crossing over the existing Alagash
Canal onto Lots 18 and 19 as shown on Exhibit 19, to widen the area where the
existing culvert is, to a width of approximately 30 metres, to enable the construction of a
new two kilometre canal into the Subject Lands, to create 91 residential lots with
frontage to a street and rear access to either the new proposed canal or a refurbished
(existing) Alagash Canal, with a dedicated boat launch facility being Block 107 and a
dedicated boat storage area being Block 106 on Exhibit 19.
[7] The Applicants applications to the City were recommended for approval by Staff
but denied by City Council. The Applicants appealed to the Ontario Municipal Board
(the Board). The Board heard this matter over the course of some 13 days in the City
of Sault Ste. Marie.
DECISION
[8] For the reasons set out below the Board finds that the development application
does not have appropriate regard for matters of provincial interest, is not consistent
with the Provincial Policy Statement, is contrary to the Official Plan of the City of Sault
Ste. Marie, does not have appropriate regard for the provisions of s. 51(24) of the
Planning Act as they relate to the draft plan of subdivision and the draft plan of
condominium, that the proposed zoning would be contrary to the Official Plan and the
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5 PL130890 proposed development application in its entirety does not represent good planning.
Thus the Board dismisses the appeals in their entirety.
BACKGROUND AND CONTEXT
[9] The Applicants, having assembled the Subject Lands, originally came to the City
in 2004 with their development proposal. The City, noting that the Subject Lands were
found within a coastal wetland and within the Great Lakes Flood Line, recommended
that the Applicants first seek the approval of the Sault Ste. Marie Region Conservation
Authority (Conservation Authority). The Applicants followed the advice of the City and
made application to the Conservation Authority whose approval was originally denied.
They then appealed to the Mining and Lands Commissioner, then settled between the
Applicants and the Conservation Authority, then the subject of a judicial review
application by the PPA, which was resolved through Minutes of Settlement and the
appeal dismissed with prejudice.
[10] Thereafter the Applicants applied to the City for the OPA, the ZBA, the plan of
subdivision and the draft plan of subdivision and the draft plan of condominium to
include the waterway (canal, the walkway, and the trail). Notwithstanding a positive
report by the Planning Department, City Council denied all the applications and the
Appellants appealed to the Board.
[11] During the course of the hearing, the Board heard and deliberated on four
separate motions. The Board gave oral decisions for three of the motions, and
reserved on the fourth. The Board will now set out below its rulings on the motions.
MOTION 1: PREMATURITY
[12] It is common ground among all the parties, that notwithstanding the applications
before this Board, for the development application to be implemented it requires the
City to stop up and close a portion of Alagash Drive where the existing Alagash Canal
would exit to the St. Marys River, so as to enable the removal of the existing culvert
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6 PL130890 and the widening of the Alagash Canal to a width of about 30 metres, which would
allow boat passage to the St. Marys River.
[13] While the Applicants claim to own the lands underneath the road, the Appellants
acknowledge that in order to proceed, approval must be obtained from the City to stop
up and close that portion of Alagash Drive to enable the widening of the canal to the St.
Marys River. (In order to provide the necessary access to the existing seasonal and
permanent residences on Pointe Louise Drive, the development application includes a
new crossing over the Alagash Canal onto Lots 18 and 19 which are owned by the
Applicants.)
[14] It is common ground that the issue of the closure of a portion of Alagash Drive is
not a Planning Act matter; it is not the subject of an appeal to the Board, and approval
lies within the sole discretion of the Council of the City.
[15] It is also common ground that the closure of that portion of Alagash Drive and the
expanded access to St. Marys River is vital to the Applicants vision to create a 91 lot
subdivision with water access ultimately to the St. Marys River. While the Applicants
filed their development application and request to the City to close that portion of
Alagash Drive, the City denied the development applications and did not deal with the
request to close the road.
[16] This raised the issue as to whether the hearing of the appeals on the
development applications was premature in light of the absence of approval for the vital
component of the Applicants development application.
[17] The Applicants argued that the Board should proceed and the absence of the
approval of the road closure was not fatal to the Board proceeding to hear the merits of
the planning applications. Counsel for the Applicants cited the Ontario Municipal Board
case of Kimvar Enterprises Inc. vs. Simcoe (County) 2007 Carswell Ont. 8320, 58
OMBR 426 (Kimvar) at paragraph 58 where the Board stated that:
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7 PL130890
The necessity for approvals under legislation other than the Planning Act which guides the Board is not a basis upon which to find the project is premature. The Board is statutorily required to deal with any appeals that are made and come to a determination as to whether among other things the instruments represent good planning. The Board has indicated on a number of occasions that it has an obligation to hear an appeal and the fact that a different, but related, approval might be required should not deter the Board from proceeding with its mandate
[18] The City in its view indicated that procedurally the Applicants had two choices:
firstly to go back to Council and to get a decision, or secondly, to proceed on the merits
and have the Board apply the appropriate conditions, if an approval were to be granted.
[19] The PPA takes the position that the applications are premature, that the
connection to the St. Marys waterway is a huge component of the development
application, and that it was premature to proceed at this point. The basis for the
prematurity arises out of s. 51(24)(b) (whether the proposed subdivision is premature
and the public interest) and with regard to the issue of prematurity, since the proposed
draft plan of subdivision intends to include a portion of Alagash Drive and since s.
51(16) of the Planning Act limits draft plan applications to the owner of lands or the
owners agent duly authorized and since there has been no authorization by the City
that the draft plan of subdivision was clearly premature.
[20] Mr. Oswald concurs with the PPA that it would be premature to deal with this
matter in light of the outstanding road closure issue.
[21] The Board provided an oral decision on the issue of prematurity. The land use
planning report in support of the development application notes that the proposal is to
establish a 91-lot subdivision that would form a lifestyles community on some 98.77
hectares (ha). The lifestyles community will include a canal about 40 metres wide that
can accommodate boats up to 12 metres in length. The development is proposed to be
promoted as a lifestyles community for recreational, retirement and country estate
housing with direct water access for boating and fishing enthusiasts. As the Subject
Lands are inland from the St. Marys River the proposed development requires the
removal of a City owned bridge/culvert and the stopping up and closing of parts of
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8 PL130890 Alagash Drive. Such a by-law falls within the exclusive jurisdiction of City Council. It is
not appealable to this Board. The Board is advised by the Applicants that they seek to
proceed and if approved by the Board, ask that the stopping up of the road be added as
a condition of approval. The PPA and Mr. Oswald oppose that and submit that it is
premature to proceed on a three week hearing with such a fundamental issue not
resolved. Counsel for the City submits that it is open to the Board to proceed on the
land use planning matters, but that the road closure is a matter for City Council alone.
[22] The Board has considered Kimvar supra, and concurs with the submission by the
City that the hearing will proceed. The Board has the jurisdiction to come to a
determination as to whether, among other things the proposed instruments represent
good planning.
[23] However the Board wishes to be very clear that in no way will the Board interfere
with the jurisdiction of City Council and that the Applicants in so proceeding do so in
recognition that it is at their own risk.
[24] Thus the Board carried on with the hearing of the matters on the merits.
MOTION 2: PROVINCIAL POLICY STATEMENT 2005 OR 2014?
[25] The Applicants brought a motion with regard to the 2005 Provincial Policy
Statement (2005 PPS) and the 2014 Provincial Policy Statement (2014 PPS). It was
the Applicants position that, while the 2014 PPS came into effect on April 20, 2014,
from the outset the development applications of the Applicants have been considered
under the 2005 PPS and that based on procedural fairness and the principles of natural
justice, the Board has a discretion to consider the 2014 PPS but it is the 2005 PPS
which is determinative. The Citys position was that the 2005 PPS was in place at the
time of Councils consideration of the development applications and that Council made
a decision under the 2005 PPS regime.
[26] The PPA referred the Board to s. 3.1 of the Planning Act which states the
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9 PL130890 following: Policy Statements the Minister, or the Minister together with any other
Minister of the Crown may from time to time issue policy statements that have been
approved by the Lieutenant Governor in Council on matters relating to municipal
planning that in the opinion of the Minister are of provincial interest. Ms. Scott then
took the Board to s. 4.1 of the 2014 PPS which states clearly that:
This provincial policy statement applies to all decisions in respect to the exercise of any authority that affects a planning matter made on or after April 30, 2014.
[27] Finally counsel took the Board to Exhibit 3, Volume 2, Tab 15 which is the like
experts List of Agreed Facts for planning witnesses, which, in paragraph 1 states that
the provincial and municipal documents applicable to this hearing are (b) 2014
Provincial Policy Statement. Therefore the PPA was of the view that it was the 2014
PPS that applied and all of the expert planners had agreed that the 2014 PPS was the
applicable Provincial Policy Statement.
[28] Mr. Oswald stated that the Province of Ontario had taken a plain language
approach to the 2014 PPS. He said it was abundantly clear that s. 4.1 expressed in
clear language, and on a definitive basis, that the policy statement applied to all
decisions that affected a planning matter made after April 30, 2014. He stated that if
the Province of Ontario had wished a transition period they could have easily done so
(as the Province had done in the 2005 PPS which states in s. 4.1 that the 2005 PPS
applies to all applications, matters or proceedings commenced after March 1, 2005).
He stated that the Province was clearly fully aware of the Clergy Principle (Clergy
Properties Ltd. v. Mississauga (City) [1996] 34 O.M.B.R. 277) and the Kalmoni case
(Kalmoni Establishments Inc. v. Milton (Town), [1995] O.M.B.D. No. 1247; 32 O.M.B.R.
474) and that s. 4.1 of the 2014 PPS had been written with that in mind and that the
clear language of s. 4.1 should be implemented.
[29] The Board reserved on the PPS motion and gave its oral decision on November
18, 2014.
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10 PL130890 [30] The motion was brought on behalf of the Applicants seeking the Boards ruling
with respect to the application of the 2005 PPS and not the 2014 PPS.
[31] These are some of the essential facts:
i) The Applicants initial application was filed in 2007;
ii) The Applicants and the City agreed that the Applicants should first seek
the approval of the Conservation Authority;
iii) The Conservation Authority decision was made in December 2012;
iv) The PPA sought a judicial review;
v) Minutes of Settlement were entered into;
vi) The judicial review application was dismissed with prejudice December 17,
2013;
vii) The Applicants then resubmitted their development applications to the
City;
viii) A public information meeting was held on June 24, 2013;
ix) The City Council decision was made on July 15, 2013 denying the
application.
x) The Applicants appealed the development applications to the Board.
[32] The Applicants argue that at all times it was the 2005 PPS to which reference
was made, that pursuant to the Clergy Principle their application should be evaluated
based on the laws and policies as they existed on the date of the application. To do
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11 PL130890 otherwise they submit will be contrary to the rules of natural justice and also the
Kalmoni Principle (that an applicant not be put to a new standard imposed after the
date of the application which would have the effect of defeating the application). In
support of these submissions the Applicants had provided a Book of Authorities.
[33] Counsel on behalf of the City submits that the applications were processed and
reviewed under the 2005 PPS and City Council made its decision pursuant to the 2005
PPS.
[34] Counsel on behalf of the PPA submits that it is the 2014 PPS that is to be
applied. She referred to the wording of s. 3.1 of the Planning Act which provides the
statutory authority for the issuance of (provincial) policy statements from time to time
and then to s. 3.5(a) of the Planning Act which states: a decision of the council of a
municipality, a local board, a planning board, a minister of the Crown and a ministry,
board, commissioner or agency of the government including the municipal board, in
respect of the exercise of any authority that affects a planning matter, (a) shall be
consistent with the policy statements issued under subsection 1 that are in effect on the
date of the decision. The PPA submits that it is the 2014 PPS that the Board must
consider.
[35] Mr. Oswald took the Board to s. 4.1 of the 2014 PPS and the clear wording that
this provincial policy statement applies to all decisions in respect of the exercise of any
authority that affects a planning matter made on or after April 30, 2014. Mr. Oswald
also referenced what is not in the 2014 PPS. He points to the absence of any transition
provision in the text. This he submits is a deliberate choice the Province of Ontario
made. Had it deemed it appropriate to include a transition provision the Province would
have included one. Thus he says it is abundantly clear that it is the 2014 PPS that
applies.
[36] The Board was provided with only one Book of Authorities which it has reviewed.
The Board could find no case therein that was on all fours with the issue of the
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12 PL130890 application of the 2014 PPS.
[37] The Board notes that a number of the cases citing the Clergy Principle arise
from circumstances where there is an in force and of effect official plan and also a
recently adopted official plan or amendment usually under appeal.
[38] This is not the case here. Here the Board has an updated Provincial Policy
Statement, and not a mere official plan.
[39] The Board has also considered the Applicants submissions on the Kalmoni
Principle, again that case dealt with an official plan amendment.
[40] Here the Province of Ontario has issued an amended Provincial Policy
Statement. This is not a mere amendment to a municipal official plan. It is a policy
directive by the Province of Ontario that applies to the entire province. The Board has
reviewed s. 3(5)(a) of the Planning Act which states: A decision of including the
Municipal Board, in respect of the exercise of any authority that affects a planning matter, a) shall be consistent with the policy statements issued under subsection (1) that are in effect on the date of the decision. (emphasis added)
[41] The Board notes that s. 3(5)(a) does not say that are in effect on the date of
the application. The legislation is clear and unambiguous in its reference to the date of
the decision.
[42] The Board finds that it is the 2014 PPS that is to be applied to all decisions
affecting a planning matter after April 30, 2014.
[43] Finally the Board acknowledges the agreed statement of facts by all the land use
planners (including the Applicants), and they agree that it is the 2014 PPS that is to be
applicable in this matter.
[44] Based on this ruling, the Board carried on with the hearing to test the
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13 PL130890 development application against the 2014 PPS.
MOTION 3: PPA Expert Witness 1
[45] On Friday, November 28 the PPA sought to qualify Frank Breen as a hydro
geologist. Mr. Breen has a Bachelor of Science in Geology and a Master of Science in
Contaminate Hydrogeology from the University of Waterloo. He is the principal of
Breen Geo Science Management Inc. and an adjunct professor at the Lake Superior
State University. In 2010 Mr. Breen was retained by the Conservation Authority to
conduct a peer review of the Applicants reports to the Conservation Authority. He
prepared a 2011 report to the Conservation Authority.
[46] Once the Conservation Authority had issued its permit he was asked by the PPA
to work for that association but declined. He did however subsequently speak to the
Algoma Health Unit and he did subsequently make a personal delegation to City
Council.
[47] The Applicants challenged the qualification of Mr. Breen as an expert due to his
lack of independence, lack of objectivity and that he in fact had become an advocate
crusading against the proposed development.
[48] The Applicants filed a Factum (Exhibit 48(A)) and a Book of Authorities (Exhibit
48(B)) in support of the Motion that Mr. Breen (and also Mr. Usher: see Motion 4
below) not be qualified as an expert to give opinion evidence to the Board. In support
of this position the Applicants point to Rule 21.01 of the Ontario Municipal Board Rules
of Practice and Procedure which states: It is the duty of every expert engaged by or
on behalf of a party who is to provide opinion evidence at a proceeding under these
Rules to acknowledge either prior to (by executing the Acknowledgement Form
attached to the Rules) or at the proceeding that they are to a) provide opinion evidence
that is fair, objective and nonpartisan; b) provide opinion evidence that is related only to
the matters that are within the experts area of expertise; and c) to provide such
additional assistance as the Board may reasonably require to determine a matter at
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14 PL130890 issue; d) these duties prevail or any obligation owed by the expert to the party by whom
or on whose behalf he or she is engaged.
[49] The Applicants counsel argues that Mr. Breen on account of the actions he has
taken cannot provide opinion evidence that is fair, objective and nonpartisan. The
Applicants counsel points to the following:
Mr. Breen was originally retained by the Conservation Authority;
He provided a report to the Conservation Authority in 2011;
Following the settlement between the Conservation Authority and the
Appellants he later swore an affidavit in a judicial review proceeding
commenced by the PPA against the settlement in which he stated: Any
strong criticism of the past technical work by the Appellants professional
consultants is intentional since it is my opinion based on the information
presented that the intended litigation brought against the Sault Ste. Marie
Conservation Authority is baseless and without merit.
Following the Minutes of Settlement and dismissal with prejudice of the PPA
judicial review, Mr. Breen went to the Algoma Health Unit and presented them
with the report that he had done for the Conservation Authority;
Subsequently he appeared of his own volition before the City Council at its
regular council meeting which was then considering the Applicants
development application;
He made a power point presentation to Council. The transcript from that
presentation is found in Exhibit 3, Volume 8, Tab 121. In his submission to
Council he raised the issue of acute toxic risk and stated the following:
And I am not trying to use inflammatory language. I am using the
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15 PL130890
language of the science, okay. An acute toxic risk means that if you have a one-time exposure at a concentration that is too much for you, you get sick. Its a one-time exposure. So lets look at a scenario where its a hot August day. Weve got 91 homes, everyones got their families over, everyones using their wells. Those wells are creating strong downward gradiants, due to all the pumping, and we get an E-Coli outbreak, in one well and people could get sick. Again, Im not trying to be inflammatory
[50] The Board reserved on the motion of Friday, November 28, 2014 over the
weekend and reviewed the submissions and the materials provided by counsel and
gave an oral decision on Monday, December 1, 2014.
[51] Mr. Breen is presented to the Board for qualification as an expert witness in the
field of hydrogeology.
Background and Context
i) Mr. Breen has a Masters of Science from the University of Waterloo
specializing in Contaminate Hydro Geology;
ii) He is the president of Breen Geo Science Management Inc., a company
incorporated under the laws of the State of Michigan and he resides in
Michigan;
iii) In 2010 he was retained by the Conservation Authority to complete an
independent review of the Applicants application and supporting studies to
the Conservation Authority;
iv) He did a report to his client in December 2011;
v) The report was critical of the development application and supporting
studies. Inter alia the report called for a hydro geological study to be
carried out by a reputable firm and advised that the study work by Dr.
Davies, a coastal engineer was technically incorrect;
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16 PL130890
vi) In December 2012 the Conservation Authority notwithstanding Mr. Breens
report issued a development permit to the Applicants;
vii) In January 2013 Mr. Breen wrote to the Conservation Authority general
manager outlining inter alia his outstanding concerns; (See Exhibit 44)
viii) In June 2013 Mr. Breen of his own volition and without any permission by
the Conservation Authority contacted the Algoma Health Unit and
arranged to meet with them at which time he presented to the Health Unit
the report he made to the Conservation Authority. Mr. Breen stated that
he never sought permission of the Conservation Authority as he believes
the report was in the public domain as it was on several websites;
ix) The Algoma Health Unit subsequently sent a letter to the City raising the
Breen concerns with the proposed development;
x) Following a meeting with the Applicants consultants, the Algoma Health
Unit sent a further letter advising the City it had no objections to the
proposed development;
xi) In July 2013 Mr. Breen of his own volition attended the statutory public
meeting for the development application in front of City Council. There he
made a power point presentation a transcript of which may be found at
Exhibit 3, Volume 8, Tab 121. At this time his same concerns were raised;
and
xii) Exhibit 47 is an email from the Association of Professional Geo Sciences
of Ontario advising that Mr. Breen is a practicing member of the
Association since February 3, 2014.
[52] In matters before this Board and in matters before the courts the qualification of a
witness as an expert witness is a very important decision, as experts, because of their
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17 PL130890 academic training and experience may be allowed to give opinion evidence to the
Board. The Board has codified its requirements for a witness to be qualified as an
expert based on duties the Board expects of someone who seeks to be qualified as an
expert. Those duties are found in Rule 21.01. The Board finds that Mr. Breen has
engaged in a course of conduct through his self-generated meeting with the Algoma
Health Unit and subsequently his self-generated attendance and presentation to City
Council that is indicative of one who is an advocate for a certain position.
[53] The case law is abundantly clear that a person can be an expert witness or an
advocate but not both. It is clear to the Board that Mr. Breen has effectively through his
course of conduct crossed the line from expert witness to advocate and to this Board
it is clear he has lost the requisite objectivity that is required of an expert witness.
[54] Moreover Mr. Breen is a hydrogeologist and not a coastal engineer and the
Board is further concerned that he has gone beyond his area of expertise in the
opinions that he has expressed in his report.
[55] Thus the Board will not qualify Mr. Breen as an expert witness.
[56] Following this ruling, the PPA chose not to call Mr. Breen as a witness.
MOTION 4: PPA EXPERT WITNESS 2
[57] The PPA called Anthony Usher and sought to qualify Mr. Usher as an expert in
land use planning. As with the challenge of Mr. Breen, the Applicants counsel
challenged Mr. Ushers qualification. The challenge is largely laid out in Exhibit 48(A)
(the Factum) of the Applicants.
[58] Mr. Usher is a very experienced land use planner with a Bachelor of Arts in
Geography and History from 1971, a Masters in Geography in 1973 and an MBA in
Natural Resources and Economics in 1979.
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18 PL130890 [59] From 1972 to 1978 he was with the Ontario Ministry of Natural Resources
followed by five years with Hough, Stansbury and Michalski, and from 1983 to date the
principal of Anthony Usher Planning Consultant. He is a member of the Canadian
Institute of Planners, a Registered Professional Planner for Ontario and a past
president of the Ontario Professional Planners Institute.
[60] The counsel for the Applicants alleges that Mr. Usher attended the initial Board
pre-hearing held on March 11, 2014 as a representative of the PPA and he remained
the representative of the PPA until he provided notice by email dated September 3,
2014 that he would be ceasing to be the PPAs representative and that Helen Scott
would be assuming that role. The counsel for the Applicants points out that the experts
witness statements were in fact due the following day, being September 4, 2014.
[61] The Applicants submit that Mr. Usher was heavily engaged in setting the
procedural elements for this matter frequently corresponding with Applicants counsel in
respect of all the details advocated for the removal of the Applicants then issue 3 (that
the issues surrounding the wetland were res judicata), that Mr. Usher, while not
physically attending the motion for directions heard on August 19, 2014, made written
submissions to the Board following the conclusion of the telephone conference call.
Counsel for the Applicants point out that in respect of the motion for directions, that
Member Makuch considered Mr. Ushers conduct as the PPAs representative and in
his September 12, 2014 decision provided the following:
[19] The Board notes that Anthony Usher appeared as representative for the Pointes Protection Association at the first two prehearing conferences convened in this matter. He was not present at this prehearing conference but made written submissions to the Board following the conclusion of such in response to the submission of some case citations by counsel for the Applicants/Appellants. The Board wishes to remind the parties that if they intend to call professional witnesses to provide opinion evidence to the Board, that evidence is to be independent and impartial. The Board raises this issue at this time given that Mr. Usher appears to be playing a very active role as an advocate in the prehearing process thus far.
[20] The Board cautions Mr. Usher to carefully review the Boards Acknowledgement of Experts Duty form if he wishes to appear
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19 PL130890
before the Board as a professional witness to provide opinion evidence. The Board also reminds Mr. Usher that he should at the very least acquaint himself with the bylaws published by the Law Society of Upper Canada which appear on its website and which address the subject of whom may appear as a representative before a tribunal such as the Ontario Municipal Board.
[62] In the Applicants questioning of Mr. Edouard Landry, a land use planner from the
Ministry of Municipal Affairs and Housing (the MMAH) in Sudbury who appeared by
summons issued by the Board at the request of the PPA, it was learned that Mr. Landry
had been contacted directly by Mr. Usher. The original author of the comments by the
MMAH was no longer with the Ministry and Mr. Usher contacted Mr. Landry, a team
leader at MMAH, to see if he agreed with the comments that had been expressed, and
whether he would agree to appear as a witness at the forthcoming Board hearing.
Thus counsel for the Applicants submits that there is ample evidence through the
course of his involvement as the PPA representative that Mr. Usher was acting as an
advocate for his client in respect of procedural matters, making after the fact
submissions in respect of case citations, and in contacting the MMAH to arrange for a
friendly witness to come and give evidence with regard to the MMAH comments via
summons.
[63] The Board notes with interest that the response to the challenge of Mr. Ushers
qualification as an expert witness comes not from counsel, but rather in the form of an
eight-page letter dated November 14, 2014 by Mr. Usher to Ms. Scott with some 49
pages of attachments, plus the attachment of a number of other Board cases (See
Exhibit 58 A, B, and C).
[64] In his letter submission, Mr. Usher indicated that it was always the intent that he
would represent the PPA for the time being and should the matter proceed to a full
hearing the PPA would retain counsel or otherwise ensure that it is appropriately
represented (see Mr. Ushers November 6, 2013 email to the Board). For the August
19, 2014 pre-hearing conference before Member Makuch, Mr. Usher advised the Board
that he would not be attending and that Peter Gagnon, the president of the PPA would
represent the PPA at that time. Following the August 19 pre-hearing the Applicants
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20 PL130890 submitted authorities on August 21 and thereafter Mr. Usher sent in his comments. He
states that: In my submission I do not argue the merits of the issue in question, I
confine my comments to a planning not legal perspective as to how these authorities
might bear on the Boards decision as to whether to retain, vary or delete the issue and
I do not advocate or recommend any conclusion to the Board. Mr. Usher concludes
his comments by saying that: Throughout his retainer he has never sought to
advocate on behalf of the PPA and never sought to argue the merits of the case,
instead he sought to act solely as a representative in a way that planners regularly
represent clients and confined his dealings with the Board to procedural matters.
[65] Having heard the arguments of the parties, the Board reserved its decision on
the qualification of Mr. Usher as an expert, and heard his evidence in full.
[66] The Board will now provide its decision as to the qualification of Mr. Usher as an
expert.
[67] While Mr. Usher portrays himself as one who has never sought to advocate on
behalf of the PPA and sought instead to only act as a representative of the PPA in the
way that planners regularly represent their clients and to confine his dealings with the
Board to procedural matters, the Board does not agree.
[68] In that regard the Board has examined Mr. Ushers email to the Board dated
August 21, 2014 in which he states: As the current representative of PPA I trust I
will be permitted to make some brief comments on the authorities that Mr. Wishart and
Mr. Oswald have submitted. Further he states: I am providing these comments
from a planning, not legal perspective as to how these authorities might bear on the
Boards decision as to whether to retain, vary or delete PPAs issue #4 which is Mr.
Usher then goes on to review the six decisions that had been submitted by Mr. Wishart
and he makes observations. Those observations highlight specific provisions in
each of the six cases to which Mr. Usher submits the following: To the extent the
above decisions lean towards the Board not having the jurisdiction to put itself in the
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21 PL130890 place of the MNR and identifying a wetland as a PSW, they also lean towards the
Board having the jurisdiction to look behind the merits of the identification and
whether the PSW should become part of the applicable official plans/zoning by-laws.
Finally Mr. Usher concludes his email with the following:
I note as information only, that if its issue #4 is retained, PPA is considering calling an expert witness who is a qualified wetland evaluator (as the applicant did in the Smith case) who will take issue with aspects of the MNRs evaluation.
[69] At this point, Mr. Usher is the sole representative of the PPA, Ms. Scott not
having yet been retained. Thus it is clear that Mr. Usher in his role as representative
was considering other expert witnesses that would be needed to be retained and to
give evidence to bolster his clients case.
[70] Having considered the content of the submissions by Mr. Usher, this panel of the
Board is not at all surprised by the admonition that Mr. Makuch gave to Mr. Usher in the
September 12, 2014 pre-hearing decision.
[71] While those submissions went to the inclusion of a PPA issue on the procedural
orders issue list, the actions of Mr. Usher go beyond procedural matters.
[72] It is clear from the evidence of Mr. Landry that in fact he was recruited by Mr.
Usher in order to come forward as a friendly witness in this Board hearing.
[73] From the Boards perspective it is clear that Mr. Usher has gone beyond the
way that planners regularly represent clients and entered into the fray as an advocate
actively seeking out witnesses that Mr. Usher believed would be of assistance to his
clients case. Thus the Board will not qualify Mr. Usher as an expert entitled to give
opinion evidence in land use matters; rather the Board will assign the appropriate
weight to Mr. Ushers evidence, as a fact witness and not as an expert.
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22 PL130890 THE HEARING
[74] During the hearing the Board heard evidence from the following witnesses in
support of the development applications:
John Campbell (Participant) Richard Craftchick (Participant) Jeff Avery (Applicant) Christine Washburn (Biologist) Carl Jorgensen (Biologist) Jordan Black (Geotechnical Engineer) Donald McConnell (Citys Director of Planning) Anthony Disano (resident) Bill Wierzbicki (land use planner) Michael Davies (Coastal Engineer) Peter Richards (Hydro Geologist) Brian Grant (Hydro Geologist) John MacDonald (Engineer) Sharon Payette (resident) Irene Palumbo (resident) Mark Mageran (resident) Dr. Patricia Avery (Applicant)
[75] The Board heard from the following witnesses called by those in opposition to the
development applications:
Peter Gagnon (President of the PPA) Edouard Landry (M.M.A.H. Land Use Planner) Anthony Usher (fact witness) Susan Meades (Botanist/Ecologist) Michael Ripley (St. Marys River Binational Public Advisory Council) Ken McIlwrick (resident)
[76] Finally the Board would note that the City did not call any expert witnesses other
than Chris Bean (City G.I.S. Coordinator to confirm Exhibit 51A. The Board also
summoned Marjorie Hall, the District Planner for M.N.R.F.
[77] Having now dealt with all the motions, the Board will consider the merits of the
matters of the appeals.
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23 PL130890 PHYSICAL CONTEXT
[78] The Subject Lands are located inland from the rest of the water front
development that has occurred in the Pointe Louise area. The Subject Lands are
several kilometres from the existing urban settlement area of the City but relatively
proximate to the municipal airport.
OFFICIAL PLAN
[79] The Board will now review the Citys Official Plan policies as they relate to the
proposed development on the Subject Lands.
[80] The Official Plan designates the Subject Lands in Schedule C as being Rural
Area with two large portions of the Subject Lands designated in Schedule A as being
Evaluated Wetland. Exhibit 51(A) entitled Drainage and Elevation Overview was
prepared by the staff of the City. Exhibit 51(A) provides two calculations that were
done by the City: for the Wetlands area in the northwest corner of the Subject Lands
the area calculation is shown as 5.54 ha; and in the southerly portion of the Subject
Lands the Wetlands area is shown as being 43.0 ha, for a total wetland area of 48.54
ha (See Attachment 1 to this decision).
[81] Exhibit 51(A) also shows the Great Lakes Flood Line as outlined in the Official
Plan which would encompass most of the Subject Lands.
[82] The text of the Citys Official Plan indicates that it is a 1996 version that came
into force on September 17, 1996. Section 2.2 under the heading Provincial Policy
states that amendments to provincial policy or to the Planning Act or other applicable
legislation or regulations may require amendments to the Official Plan.
[83] Part 5 of the Official Plan Physical Development Natural Environment states
that the City shall promote the stewardship of the communitys natural resources and
features to ensure an environment that is ecologically sound, that recognizes the
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24 PL130890 importance of healthy diverse ecosystems and is responsive to the health, safety and
well-being of the present and future residents.
[84] Section H.3 states that if an Environmental Impact Study (EIS) concludes that the
overall impact upon the natural heritage feature or area, or ecological function is
negative (i.e. detrimental), the development application shall not be approved. Under s.
3.6 Fish Habitat the policies include F1.1 to protect all fish habitat from harmful
disruption, alteration or destruction by not permitting development which could result in
damage to these areas, and F1.2 to encourage the restoration, enhancement and
creation of fish habitat.
[85] Under Part 6 Physical Development Build Environment, s. 2.3 deals with the
anticipated urban form and land use designations for the community which are outlined
on Schedule C. Under the subtitle Urban Growth and Settlement the Official Plan
makes this statement:
Based on recent trends the population of the community is expected to peak in the year 2001 at 84,000 persons. As a result of the aging population and the changing nature of employment, housing construction will never again experience the dynamic growth of the past 30 years. Thus all future residential growth within the City can be accommodated on lands already committed to development within the existing settlement area. Lands designated Residential have been reduced from that shown in the 1968 Official Plan to reflect the reduced need for residential land over the life time of this Plan. (Emphasis added.)
[86] With regard to Rural Residential growth the Official Plan stated:
Further development of unserviced lots in the Rural areas is not required to meet the growth needs of the community and development will be limited to existing lots of record. No new estate residential plans of subdivision will be permitted. Residential use should only be permitted as an accessory to the economic development of a natural resource located in the Rural Area which meets the health standards and has no impact on the environment. (Emphasis added.)
[87] Section 4.5 of Part 5 Physical Development Natural Environment deals with
wetlands. The Official Plan provides:
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25 PL130890
Wetlands are important to the maintenance of a strong sustainable natural environment. They provide useful environmental functions such as wildlife habitat, water quality enhancement and flood control. The City has approximately 2,200 hectares of lands considered as wetlands. These wetlands include fens, swamps, bogs and marshes.
[88] As the wetlands in this particular case are not classified as being provincially
significant wetlands, the following policies are relevant:
W3 Permitted uses in wetland areas that are not Provincially Significant include passive or low intensity recreational uses, fish and wildlife management and forestry provided that such land uses maintain and enhance the natural functions and area of the wetland. (Emphasis added) W4 Applications for development and conformity with Schedule C in, or adjacent to wetland areas, may be approved by Council, if accompanied by an Environmental Impact Study (EIS). (Amended by OPA No 3) W5 Development shall only be permitted in wetlands that are not Provincially Significant where there is: i) No loss of wetland functions ii) No encouragement for future development that will impair
wetland functions
iii) No conflict with site specific wetland management practices. W6 The loss of any wetland areas to development shall be made up by the creation and/or dedication of other wetland areas.
[89] Section 2.36 has the Official Plan policies as they relate to the Rural Area.
However, since coming into force and effect in 1996, they have been amended twice.
[90] The first amendment to s. 2.36 of the Official Plan came by By-law 2009-182
approved in 2009 and it brought in the following Official Plan text:
2.36 Rural Area Introduction Rural land uses include agriculture, forestry, extractive uses such as mining, quarry and aggregate removal, golf courses, riding academies, kennels, cemeteries, approved land fill sites, limited residential development, churches and schools. (Emphasis added)
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26 PL130890
As it is the intent of this Plan to direct the majority of residential growth within the existing Urban Settlement Area generally not more than ten (10%) per cent of new residential development should occur in the Rural Area. The Rural Area is all of the area of the municipality outside the Urban Settlement Area. The Urban Settlement boundary is identified on Land Use Schedule C.
[91] Of particular importance to this hearing is Policy RA-11 which states
the following:
Unless otherwise noted in this section, new un-serviced estate residential plans of subdivision are not permitted in the Rural Area. The further development of lots in areas zoned Rural Area shall be limited to the creation of one new lot, plus the remnant or retained parcel. This limit shall be applied from the day of the adoption of Official Plan Amendment 167. (Emphasis added)
[92] As noted above the City amended s. 2.36 of the Official Plan for the Rural Area
by Amendment No. 203 which modified Policy RA-11 by increasing the number of lots
from one to two. The policy now reads as follows: Unless otherwise noted in this
section, new unserviced estate residential plans of subdivision are not permitted in the
Rural Area. The further development of lots in areas zoned Rural Area shall be
limited to the creation of two new lots, plus the remnant or retained parcel. This limit
shall be applied from the day of the adoption of the Official Plan Amendment 203.
ZONING
[93] The Subject Lands are zoned Rural Area in the Citys Zoning By-law. The
development proposal is to rezone the Subject Lands to Estate Residential (R1) with a
special exemption to permit an addition to single detached residences, a boat launch, a
boat lift and boat storage facility, and to rezone a portion of the Subject Lands to
Environmental Management (EM).
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27 PL130890 SAULT STE. MARIE REGION CONSERVATION AUTHORITY
[94] As noted above the City had required the Applicants to proceed through the
Conservation Authority regulatory process prior to the filing and processing of a
development application with the City.
[95] That process took several years with the end result being an unconditional
approval by the Conservation Authority, and Minutes of Settlement between the PPA
and the Conservation Authority and 1704604 Ontario Ltd. dated September 17, 2013
which resolved that the PPAs application for judicial review would be dismissed on a
without costs basis but with prejudice.
[96] In support of the development application to the Conservation Authority, the
Applicants had submitted the Pointe Estates Subdivision Scoped Environmental Impact
Study for Development in a Wetland revised as of November 27, 2008. This report
included the following from s. 5.2 Long Term Impacts and Mitigation:
The potential long term impacts on the existing wetland associated with the development of this subdivision include Direct loss or alteration of fish habitat during the creation of the
new canal overtop of the existing creek and during the dredging of the Alagash and boat canal in the St. Marys River,
Direct loss of vegetation due to removal of site vegetation during
development, Direct loss of physical wetland due to replacement with proposed
subdivision (fill for lots and roads, canal, etc.), Loss of hydrologic function related to the quantity of water that
enters and is stored in or leaves a wetland, including such factors as reduction of flow velocity and the influence of wetlands on atmospheric processes,
Impact on water quality as wetlands function to trap sediment,
control pollution and treat water as it flows through the wetland, Direct loss of wildlife habitat due to removal of site vegetation, Loss of wetland habitat (physical environment in which plants
and animals live) that provide food, water and shelter for fish, birds and mammals and serves as breeding grounds and
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28 PL130890
nurseries for many species
[97] Following this list of potential long term impacts is a list of potential mitigation
measures which concludes with the following statement:
Cold Water Consulting Ltd. has addressed all concerns relative to phosphorous loading, stagnant water in the canal, flooding and hydraulic functions of the wetland (Pointe Estates Hydrogeological and Hydrologic Analysis, September 2008). Based on this information and the mitigation methods outlined above a portion of the potential long term impact can be managed through the mitigation methods outlined. There will however be some long term residual impact due to development. Specifically there will be a direct loss of wetland, vegetation and associated wildlife habitat due to the site development. These residual impacts must be balanced against the benefits of a new water front development in the City of Sault Ste. Marie that will offer housing and recreational opportunities as well as an increased tax base. (Emphasis added)
[98] The development proposal of the Applicants was evaluated by the staff of the
Conservation Authority which issued a report dated April 6, 2010 entitled Proposed
Pointe Estate Subdivision Assessment. It provides the following recommendation:
The Sault Ste. Marie Conservation Authority must assess the consequences of permitting this development in relation to the impacts it will cause under its mandate as provided by Ontario Regulation No. 176/06 and whether these consequences are acceptable to the CA Board and the intent of the Regulation. On the basis of the above surficial assessment of this proposed development, it is recommended that the application be denied based on the following:
a) The mandate of the Conservation Authority is to conserve, protect, maintain and rehabilitate the natural environment in lands under its jurisdiction. This application is counter to that mandate;
b) The application has failed the test of Conservation of Land in respect to the proposed destruction of a wetland. The presence of the wetland, its functions and the associated habitat and biodiversity features of this area are considered important natural features that in their current state provide the hydrological and ecological functions important to this watershed;
c) The wetland located on the site of the proposed development is significant to the local area in that it has a significant flood attenuation function and water quality improvement benefits for the immediate area and the Great Lakes System;
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29 PL130890
d) Although the wetland is not a Provincially Significant Wetland it is the fifth highest rated wetland in the Sault Ste. Marie area, it is in close proximity to Lake Superior/St. Marys River coast, and it ranks fifth in land mass that it covers;
e) The Sault Ste. Marie Conservation Authority does not assess the economic implications of this type of proposed development but can say that in the past, the value of wetlands from an economic view point has been understated and that more recently their value is being appreciated for their function in treating water, flood attenuation, erosion control and biological life support. Provincial and international directives and policies specifically require countries to commit to the protection of wetlands. A wetland cannot be created to replicate the 60+ functions of an existing wetland which all go towards promoting a cleaner environment and healthier community. Regardless of size every wetland has a significant associated value;
f) The implications to water resources by this development have not been fully assessed and considering the background information on these impacts it is unlikely that the Board can expect that the developer will scientifically negate these concerns at this time. Mitigative measures proposed by the Applicant rely on considerable voluntary agreement by the homeowners and significant financial outlays by them to maintain some of the solutions;
g) The comments from agencies, Sault Ste. Marie Conservation Authority staff and the neighbouring public indicate many concerns that this development has not or likely cannot address;
h) If the wetland is destroyed the hydrologic function will cease.
(See Exhibit 6, Tab 30.)
[99] Exhibit 3, Volume 6, Tab 38 contains the resolution of the Board of the
Conservation Authority with regard to this matter dated as of December 13, 2012:
Resolved that the Sault Ste. Marie Conservation Authority Board approves the application of Jeff and Dr. Patricia Avery (1704604 Ontario Ld.) under Regulation 176/06 for a proposed 91-lot residential subdivision (to be known as Pointe Estates) to be located on (and in the vicinity of) vacant properties at Civic #179 and 227 Pointe aux Pins Drive.
[100] Thus the Conservation Authority approval came without any conditions of
approval.
CITY STAFF REPORT
[101] With the approval of the Board of Directors of the Conservation Authority in hand,
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30 PL130890 the development applications proceeded at the City.
[102] By report dated July 15, 2013, the Citys Director of Planning Mr. McConnell
made his recommendations to Council with regard to the proposed development for the
Subject Land. The report notes that the Applicants are requesting two approvals: a)
for the Official Plan Amendment Rezoning, Draft Plan of Subdivision and Draft Plan of
Condominium for a 91-lot single detached real estate subdivision; and b) that approval
of the development application would require the closing of a portion of Alagash Drive
and the construction of a new road access at 248 Pointe Louise Drive and that the
closure of the road was the subject of a separate application which appeared
elsewhere on the Council Agenda.
[103] The City staff had duly circulated and processed the development applications
and the Staff Report attached as Appendices responses from the MMAH, the Algoma
Public Health Unit, the Sault Ste. Marie Airport Development Corporation, the
Conservation Authority, internal departments at the City, the school board, and also
from the St. Marys River Binational Public Advisory Council, the PPA and various
members of the public at large.
[104] The McConnell report paid particular attention to the comments provided by the
MMAH dated June 3, 2013.
[105] The MMAH letter makes specific reference to matters of provincial interest
outlined in s. 2 of the Planning Act and also to s. 3 of the Planning Act as it relates to
the Provincial Policy Statement.
[106] With regard to the Provincial Policy Statement, the MMAH encouraged the City to
review the provisions of PPS 2005, s. 1.1.4 specifically ss, (a) relating to limited
residential development. Further the MMAH letter stated that the proposed
development application and supporting materials must be reviewed for its consistency
with regard to s. 2.0 Wise Use and Management of Resources of the PPS 2005. The
MMAH letter indicated that:
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31 PL130890
We note that the proposed OPA to allow the development of 91 lots by plan of subdivision is not in keeping with the policy direction of the Citys Official Plan. The Official Plan states that all future residential growth within the City can be accommodated on lands already committed to development within the existing Settlement Area (Section 2.3) and identifies that no new estate residential plans of subdivision will be permitted within the City of Sault Ste. Marie Rural Area designation (Section 2.3). (Emphasis added)
[107] The McConnell report dealt directly with each of the comments from the MMAH.
[108] By way of background, the McConnell report outlined the Point Louise shoreline
area was developed in the 1940s and 1950s. Subsequently in the 1960s a 25-lot
subdivision was created on the north side of Alagash Drive and Pointe Louise backing
onto the existing man-made canal.
[109] The McConnell report then laid out the development proposal for the 91-lot
subdivision with each lot having direct access onto both a municipally owned road and
a canal with boating access to Lake Superior. The canal would be a key feature of the
subdivision being over two kilometres long and about 35-40 metres wide. Additionally,
the development proposal sought to widen the mouth of the existing Alagash Canal,
through the removal of the existing culvert.
[110] The proposed lots would range in size from 0.5 ha to 0.95 ha. Access to the
Subject Lands would be proposed from Dagleesh Drive and a new road would connect
Pointe Louis Drive to Pointe aux Pins Drive. The McConnell report then considered the
Citys Official Plan. It noted that the Subject property is designated Rural Area. It
noted that when the Citys Official Plan was approved in 1996 the creation of new rural
residential lots was prohibited. It noted in 2009 the City Council had approved Official
Plan Amendment No. 167 which allowed the approval of one new lot for each existing
Rural Area lot without the need for an official plan amendment. New un-serviced estate
residential plans of subdivision were not permitted and therefore if approval were
granted by the City for this application, that this would require an official plan
amendment (thus exempting the Subject Lands from the otherwise applicable policies
of the Official Plan). The McConnell report then stated that the City Councils decision
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32 PL130890 must be consistent with the Provincial Policy Statement and that the MMAH has
provided its commenting letter with regard to the development applications and has in
fact specifically highlighted a number of provisions of the Provincial Policy Statement.
The McConnell report then specifically itemized each of the comments received from
the MMAH and provided comments as they related to those policy sections highlighted
by the MMAH.
[111] Having considered the Provincial Policy Statement policies, the McConnell report
concludes with the following comments:
This application was reviewed with regard to the Provincial Policy Statement which sets out the provincial requirements for land use planning in Ontario. Given that there is a demand for this type of development which cannot be accommodated within the Citys Urban Area and that all technical requirements have been met, this request conforms to the policies and intent of the Provincial Policy Statement. It should be noted that approval of this application would not result in the loss of lands that are set aside for future Urban or Rural development purposes, will not result in the extension of municipal services or create conflicts with existing agriculture or other Rural land uses. The wetland on this Property is not provincially significant. Although there will be a net loss of wetland, there will be a significant increase in fish habitat. Technical studies indicate that the development will not create any water or sewage quality concerns. This application also requires approval from the Conservation Authority, Department of Fisheries and Oceans, Ministry of the Environment, Ministry of Natural Resources and Algoma Health Unit. The conservation Authority granted approval for a construction of the subdivision (roads, canals, etc.) on December 13, 2012. This approval is currently the subject of a judicial review which will be heard in October. A separate approval will be required for each lot that is regulated by Ontario Regs. 176/06 prior to the issuance of a building permit. The development was approved by the Conservation Authority without conditions. City Staff is recommending that municipal approval be subject to a detailed development plan to be prepared by a qualified engineer describing the construction techniques to be used and advising of compliance of all applicable regulations. This plan will integrate the recommendations of the various studies submitted in support of this application to ensure that construction is on a best practice basis. This plan should also determine an appropriate water monitoring program to be followed by a condominium association.
[112] Following this summation, the McConnell report included the recommendation for
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33 PL130890 approval of the 91-lot rural estate subdivision with some 12 conditions of approval.
CITY COUNCIL
[113] The matter came before City Council on July 15, 2013 at which time City Council
following public deputations , considered the matter and denied the applications.
Subsequently the Applicants appealed all matters (save and except the municipal road
closing) to the Board.
MATTERS OF PROVINCIAL INTEREST
[114] Section 2 of the Planning Act sets out matters of provincial interest that the
Minister, the Council of the municipality and the Board shall have regard to.
Specifically s. 2 sets out the following: a) the protection of ecological systems,
including natural areas, features and functions; c) the conservation and management of
natural resources and the mineral resource base; l) the protection of the financial and
economic well-being of the province and its municipalities; and v) the appropriate
location of growth and development.
[115] The Applicants propose that it would not be possible to create such a unique
lifestyles community within the existing Urban Settlement Area of the City. The
Applicants submit that there is a demand for such a lifestyles community, that the
coastal wetlands are not significant coastal wetlands, that there is an existing
settlement in the immediate vicinity of the Subject Lands, that the approval of the
development applications would result in an economic benefit to the community of over
$100 million, that there would be a benefit that would arise from the widening and
refurbishing of the existing Alagash Canal, that there would be a significant benefit that
would arise from the removal of the culvert at the mouth of the Alagash Canal, and that
the provision of Block 100 as an Environmental Management Area with a proposed
fishery spawning area would result in a net fisheries benefit, and all with the use of
existing infrastructure that is already in place including: roads, water, hydro, gas,
garbage pickup, emergency services, etc.
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34 PL130890 [116] The City, the PPA, and Mr. Oswald disagree. They submit that the approval of
the proposed development would result in the destruction of approximately 77% of the
48.54 ha of coastal wetland, that these coastal wetlands fall within the St. Marys River
Area of Concern identified in 1985 by the International Joint Commission as part of the
Great Lakes Water Quality Agreement signed by the United States of America and
Canada to protect and enhance the water quality of the Great Lakes and to promote the
ecological health of the Great Lakes Basin. Additionally they submit that the
appropriate location for a 91-lot high end lifestyles community and condominium is not
on 48.54 ha of coastal wetland, which is located several kilometres from the existing
Urban Settlement Area of the City.
PROVINCIAL POLICY STATEMENT 2014
[117] There are a number of provisions in the 2014 PPS that were brought to the
attention of the Board by a number of the parties. First and foremost by the Applicants
and by Mr. McConnell, the Director of Planning for the City, was the introduction of
geographic scale of policies found within Part 3 of the Provincial Policy Statement. It
states the following:
The Provincial Policy Statement recognizes the diversity of Ontario and that local context is important. Policies are outcome-oriented, and some policies provide flexibility and implementation provided that provincial interests are upheld. While the Provincial Policy Statement is to be read as a whole, not all policies will be applicable to every site, feature or area. The Provincial Policy Statement applies at a range of geographic scales. Some of the policies refer to specific areas or features and can only be applied where these features or areas exist. Other policies refer to planning objectives that need to be considered in the context of the municipality or planning area as a whole, and are not necessarily applicable to a specific site or development proposal.
[118] The Applicants and the Citys Director of Planning Mr. McConnell submit that
Exhibit 20 An Introduction to the Provincial Policy Statement 2014: Northern Ontario
Draft for Discussion provides insight to the changes to the 2014 PPS. At page 1 under
Context the draft for discussion states: the Provincial Policy Statement 2014 has
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35 PL130890 been revised to better reflect, among other things, the needs and unique circumstances
of Northern Ontario, many areas of which are rural.
[119] The Applicants and Mr. McConnell specifically refer to Policy 1.1.5.2 which
provides the following: On rural lands located in municipalities, permitted uses are: a)
the management or use of resources; b) resource based recreational uses (including
recreational dwellings); c) limited residential development; d) home occupations and
home industries; e) cemeteries and f) other rural land uses.
[120] In Exhibit 20, (the draft for discussion) page 23 speaks specifically to the term
limited residential development. It points out that limited residential development is
not defined in the Provincial Policy Statement and that limited residential development
may be permitted if it meets the criteria set out by the other rural lands policies. Exhibit
20 states that one standard definition of limited residential development may not be
meaningful or appropriate for all Ontario communities and that individual communities
should identify how much development is limited within the context of local conditions
and sets out some considerations which include: i) population; ii) character; iii) land
use patterns and density; iv) proximity of settlement areas; v) type and availability of
infrastructure and public service facilities; vi) presence of natural resources; and vii)
presence of natural features and areas.
[121] The Applicants and Mr. McConnell submit that the geographic scale of policies
means that all provisions of the Provincial Policy Statement are not necessary or
applicable to a specific site or development application. With regard to limited
residential development Mr. McConnell admitted that a 91-lot subdivision is a big
subdivision for the City. He stated that demand for lots in the City over the last ten
years is usually about 100 units per year of which 30 are in the Rural Area. Here for
the 91-lot subdivision, it is proposed that the absorption rate would be between 7 to 12
units per year or about 9 on average and that if the development application were
approved it would put the 9 new units per year in the Rural Area into one area that
already has over 200 dwellings. He stated that Point Louise is a residential area now
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36 PL130890 although it does not meet the 2014 PPS definition of a Rural Settlement Area but it
would be an expansion of that existing community. Therefore he was of the view that
this was limited residential development.
[122] With regard to the issue of wetlands, Mr. McConnell stated that there were 1,567
hectares of wetlands within the municipal boundaries of the City, that in his calculation
there would be the loss of about 40% of the wetlands on the Subject Lands, which
would result in a net loss of about 1% of the Citys total.
[123] Mr. McConnell testified that the 2014 PPS recognizes the diversity of
communities in Ontario and that while Southern Ontario had paved over at least
90% of its wetlands, in Northern Ontario, which is bigger than the whole country of
France, if you looked at this property and the City as a whole it was less than 1% of the
total wetlands and although there was some loss and some negative impact that there
would be a substantial gain of fisheries habitat, was the overall result negative? I dont
think so.
[124] Mr. Oswald has a different starting position with regard to the 2014 PPS. His
submissions took the Board to a new provision of the 2014 PPS (s. 4.13) which states
the following:
Within the Great Lakes St. Lawrence River Basin, there may be circumstances where planning authorities should consider agreements related to the protection or restoration of the Great Lakes St. Lawrence River Basin. Examples of these agreements include Great Lakes Agreements between Ontario and Canada, between Ontario and Quebec, and Great Lakes States of the United States of America and between Canada and the United States of America.
[125] He submitted that the wetlands on the Subject Lands fall within the definition of
coastal wetlands found within the 2014 PPS and more specifically he referenced the
Board to Section 2: Wise Use and Management of Resources in the 2014 PPS which
now includes in its introduction the following:
Ontarios long-term prosperity, environmental health and social wellbeing
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37 PL130890
depend on conserving bio-diversity protecting the health of the Great Lakes.
[126] Mr. Oswald argued that although the Subject Lands were not found to be a
Provincially Significant Wetland or a Significant Coastal Wetland, the PPS 2014 states
in 2.1.5 the following:
Development and site alteration shall not be permitted in: f) coastal wetlands in eco regions 5e), 6e) and 7e) that are not subject to Policy 2.1.4(b) unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions. (Emphasis added)
[127] In that regard he pointed to Exhibit 51A/B (appended hereto as Attachment 1)
and outlined the significant destruction of approximately 37.2 ha of coastal wetlands,
and that this could only be regarded as a negative impact.
[128] Counsel for the PPA submits that the Applicants and Mr. McConnell have it
wrong with regard to the application of 2.1.5 of the Provincial Policy Statement. She
states that all the parties agree that the Subject Lands are found within Eco Region 5E.
As such there are no Northern Ontario special needs or unique circumstances
which are applicable here. She submits that the policy section is abundantly clear that
coastal wetlands shall not have development or site alteration unless it has been
demonstrated that there will be no negative impacts on the natural features or their
ecological functions. In this regard she too pointed to Exhibit 51A and 51B prepared by
Peter Gagnon, the President of the PPA. Exhibit 51A is the background document
prepared by the City over which is Exhibit 51B being the draft plan of subdivision as laid
out on Exhibit 19 (See Attachment 1).
[129] The evidence of Mr. Gagnon, as a former forester, is that he used what the
Board will refer to as old school technology to examine the impact of the proposed
development on the Subject Lands on the existing wetland. He did an area calculation
based on a dot/grid methodology on a block by block basis and concluded that 37.2 ha
of the existing 48.5 ha of coastal wetland would be destroyed by the proposed
development. He testified that this would be 77% of the wetland on the Subject Lands.
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38 PL130890 [130] Thus counsel for the PPA submitted that s. 2.1.5 of the Natural Heritage Policy
could not be met by this application as it would appear that about 77% of the coastal
wetland on the Subject Lands would be destroyed due to development.
FINDINGS
[131] As noted above, during the course of this hearing, the Board heard evidence
from over 20 witnesses: some lay and some expert. After reviewing the evidence and
considering the submissions of counsel, the Board has undertaken an independent
assessment of all of the oral evidence, and an independent assessment of all of the
studies, reports, and other written and electronic documents that form the record of the
hearing.
[132] The Board has juxtaposed all that evidence against s. 2 of the Planning Act, the
2014 Provincial Policy Statement, the Citys Official Plan, the Citys Zoning By-law, and
s. 51(24) of the Planning Act.
[133] Having done so, the Board has found that the development applications do not
have the appropriate regard for s. 2 of the Planning Act, are not consistent with the
Provincial Policy Statement, do not conform to the Official Plan, and do not represent
good planning. In reaching this decision the Board has preferred the evidence of the
respondents, and particularly that of Peter Gagnon. Notwithstanding all the resources
available to the Applicants and the City Planning Department, Mr. Gagnon did what no
land use planner called by the Applicants did: he took the Citys Drainage and Elevation
Overview (Exhibit 51A) depicting the extent of the wetlands on the Subject Lands and
created a transparent overlay of the draft plan of subdivision. With this overlay he alone
was able to calculate the loss of wetlands from the proposed development. .
[134] The Board has had the opportunity to hear, test, and review all of the evidence
that it heard. That review and testing, when applied particularly to the settlement and
wetland policies of the Provincial Policy Statement, and the Citys Official Plan, reveals
as Attachment 1 to this decision illustrates, that there will be a substantial loss of
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39 PL130890 approximately 77% of the coastal wetland. Thus the Board acknowledges that it has
preferred the lay evidence of Peter Gagnon over the opinion evidence of the Applicants
land use planner and that of Mr. McConnell.
[135] The Board, as set out below, finds that result to simply not have appropriate
regard for the provincial interests set out in s. 2 of the Planning Act, be inconsistent with
the PPS, be contrary to the Official Plan, and not represent good planning.
S. 2 PLANNING ACT
[136] The Board pursuant to s. 2.1 of the Planning Act is required to have regard to
both the decision of municipal council and the information and materials that were
before it at the time it made its decision. The Board has considered both City Councils
decision and the information and materials that were before it at the time it made its
decision and has made the following findings.
[137] The Board finds that the development applications as put forward do not have
appropriate regard to the protection of ecological systems including natural areas
features and functions pursuant to s. 2(a) of the Planning Act nor do the development
applications provide for the appropriate location of growth and development being
located several kilometres beyond the existing Urban Settlement Area boundary and
substantively within the existing coastal wetland, contrary to s. 2(a) and (p) of the
Planning Act.
PROVINCIAL POLICY STATEMENT
[138] With regard to the 2014 PPS, s. 3(5) of the Planning Act requires that the
exercise of any authority that affects a planning matter shall be consistent with the
Provincial Policy Statement. The Board finds that, although the 2014 PPS was clearly
revised to provide specific considerations for Northern Ontario communities, with
regard to coastal wetlands on the Subject Lands, those coastal wetlands are within Eco
Region 5E, and that is not a Northern Ontario issue. It is a Province of Ontario issue,
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40 PL130890 and one that is the subject of the International Joint Commission. The Provincial Policy
Statement specifically provides that development and site alterations shall not be
permitted in coastal wetlands in Eco Region 5E unless it has been demonstrated that
there will be no negative impacts on the natural features or their ecological functions.
[139] The Board finds that coastal wetlands are within Eco Region 5E and the Board
finds that approval of the proposed development applications would result in the
destruction of approximately 37.2 ha (or about 77%) of the coastal wetlands on the
Subject Lands. The Board uses the word approximately for two reasons: first it would
appear from Exhibit 65 that there are some uplands included within the wetland
complex without any explanation, and secondly based on the dot/grid methodology.
[140] While the Applicants attempted to discount that loss of wetland by indicating only
some portions of the wetlands areas would be subject to fill, that would appear to the
Board to be inconsistent with the other provisions of the reports of the Applicants where
it is noted that the top of the canal bank will be set 1.5 metres above the 100-year
return period water level of 184.4 metres (see Exhibit 3, Volume 3, Tab 24, page 82 at
the top) which if contrasted to Exhibit 19 (being the Draft Plan of Subdivision) the
topographic notations show that none of the existing Subject Lands currently exceed
185.9 metres.
[141] Counsel for the Applicants called a civil engineer in reply evidence: the gist of
which was that the loss of wetland as proposed by the President of the PPA was
overstated and that in his opinion the loss of wetland would only be between 10 to 20
ha, and not the 37.2 ha as calculated by Mr. Gagnon. The Board ascribes little weight
to this evidence as in cross-examination by Mr. Oswald the witness admitted that he did
not take into account the fact that the top of the canal bank would be set at 1.5 metres
above the 100-year return period water level of 184.4 metres.
OFFICIAL PLAN
[142] With regard to the Official Plan, the Board finds that the proposed Official Plan
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41 PL130890 Amendment is contrary to the Citys Official Plan as it is located outside the existing
Urban Settlement boundary. It is also contrary to s. 2.3.6 Rural Area Policy RA-11
which states that new un-serviced estate residential plans of subdivision are not
permitted in the Rural Area. The Board finds that the establishment of a 91-lot estate
residential (lifestyles) plan of subdivision does not constitute limited residential
development as in the ordinary course the City would expect 100 new lots a year, and
as Mr. McConnell stated, a 91-lot plan of subdivision is a big development in the City.
[143] The Board finds that the proposed development is also contrary to the Wetlands
Policies of the Official Plan including: W3 Permitted Uses in wetlands that are not
Provincially Significant include passive or low intensity recreational uses, fish and
wildlife management and forestry provided that such land uses maintain and enhance
the natural functions and area of the wetland.
[144] A 91-lot residential plan of subdivision is not in the Boards opinion a passive or
low intensity recreational use.
[145] Policy W5 states that development shall only be permitted in wetlands that are
not Provincially Significant where there is i) no loss of wetland functions; ii) no
encouragement for future development that will impair wetland functions; iii) no conflict
with specific wetland management practices. The Board finds that there will be a
considerable amount of coastal wetland destroyed by the proposed development,
which is contrary to this policy provision.
[146] Policy W6 states that the loss of any wetland areas shall be made up by the
creation and/or dedication of other wetland areas. The evidence before the Board is
that there will be the loss of approximately 77% of the wetland. While the development
applications, if approved, would provide for some form of enhanced fisheries habitat
due to the refurbishment of the existing Alagash Canal and a fish spawning area, that
does not trump the destruction of a significant portion of a coastal wetland that is of
interest both to the Province of Ontario, the Government of Canada and through the
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42 PL130890 International Joint Commission, the United States of America.
DRAFT PLAN OF SUBDIVISION AND DRAFT PLAN OF CONDOMINIUM
[147] The Board is required pursuant to s. 51(24) to have regard to the criteria laid out
in s. 51(24) of the Planning Act.
[148] The Board has done so and the Board finds that:
a) the development applications do not have appropriate regard for the effective
development on matters of provincial interest as is referred to in s. 2 of the
Planning Act;
b) that the proposed development is not in the public interest as it relates to the
loss of coastal wetland;
c) that the plan does not conform to the official plan;
d) that the suitability of the lands for which it is