"THE HIGHLANDS OF HASTINGS"

Limerick Waterways Ratepayers Association - LWRA

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TRIDENT DRAFT SUBDIVISION AGREEMENT

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LATEST NEWS - June 2008

As most LWRA members who have been following the OMB story know, over 30 years ago a large 145-lot subdivision was proposed for a piece of land that borders on both St. Ola and Limerick Lakes. Limerick Waterways Ratepayers Association (LWRA) was formed to fight that development which it, with Limerick Township, has been doing ever since. Unfortunately, the end result of this long and classic “David and Goliath” battle at the Ontario Municipal Board (OMB) is that the current developer, Trident Members Inc., now has the approvals that will soon lead to the signing of a 110-lot subdivision agreement with Limerick Township.

However, with the able assistance of former Toronto Mayor John Sewell, who has represented LWRA (and the township) since 2005, LWRA continues to engage in this costly fight in order to try to control what the developer can do on the land with the future quality of the lakes as our primary concern. We have been successful in demanding that a number of conditions to this end be included in the subdivision agreement. The following is an update on the current status of the development. 

In the December 2007 LWRA Newsletter, our report ended with an account of the November hearing at the OMB where the following items were dealt with:

*  The status of the 22 St. Ola lots and related planning matters.

*  Trident’s destruction of the small wetland in the area by pushing a road through it. 

* The Board’s position that Trident had demonstrated contempt in ignoring the OMB’s Stop Work Order.  

The decision from the November hearing was released on January 16, 2008. The general contours of the decision were as expected ą final approval of the St. Ola lots and the rest of the scheme except the lots within 300 meters of Limerick Lake. 

A surprising, if not shocking aspect of this decision, was Member Culham’s position that while Trident had treated the Board with contempt, rather than imposing any penalties on the developer, the Board would “stand quietly.” Even though he said “the magnitude of the works [in contravention of the Board order] is immense” (page 8) and that Trident’s claim that the work was done without their authorization “defies common sense”, there were no consequences for Trident. 

The Board did require a plan for remediation of the wetland and the roadway within 300 meters of Limerick Lake. It was agreed that the township would hire, at Trident’s expense, its own wetland expert to work with Michael Michalski (Trident’s expert) on the remediation plan which Trident would carry out and pay for. The township has now hired Phil Niblett of Niblett Environmental Associates Inc. to do this work, which should be carried out this summer.

With the decision on the St. Ola lots out of the way, Trident can move ahead with its plan of subdivision for the 110 lots which have now been approved. A draft of the subdivision agreement is now available and has been reviewed by John Sewell with respect to the last OMB decision and also by the township’s lawyer, Ken Sykes. 

John Sewell has raised some concerns which Limerick Council is addressing and as well, Mr. Sykes was to attend the June 3 Township Council meeting to talk about the agreement and respond to questions from the reeve and council.

LWRA has renewed its commitment to continue to share costs with the township as required until the September directors’ meeting but at this point we aren’t expecting that there is much work left to be covered. The major concern our association will have is making sure  the requirements of the subdivision agreement are carried out and vetted by all the required supervisory bodies. Much responsibility will lie with our township council to ensure that all the provisions for the development as outlined in the agreement are in fact policed and followed to the letter of the agreement. 

For example, the land is to be developed in phases of 30 lots at a time, all in “reasonable proximity to one another” with building permits issued for 80 per cent of the lots in one phase before another phase can be opened. As well, there are many technical demands for things like storm water management which need approvals by a Municipal Engineer as well as the Ministry of the Environment.

Lastly, beyond the 110 lots that Trident can eventually develop, there is still the question of the 30 or so lots within the 300 metre setback from Limerick Lake. As readers may remember, consideration of these lots was deferred in November 2005 to allow three years of continuous monitoring of the Phosphex phosphorus retention systems that Trident was proposing to install on these lots. This three-year period will be up in November of this year, so we may, unfortunately, find ourselves once again facing yet more OMB action if Trident returns to the Board to ask for approval of these lots.

As a result of this possibility the OMB Committee of LWRA comprised of president Robert Horne, Linda Sheppard, Bob Mofford, Bob Bennett and George Offshack will continue to function and will likely begin some research into the current status of Phosphex systems in anticipation of more action on this front.

 

 

 

December 2007 UPDATE

Since the last report, there have been several developments, including the OMB hearing that just took place in Toronto on Nov. 21 and 22^nd. In July, Trident finally released their report on the wetland in the area of the St. Ola lots. In contrast to their position in Oct., 2006, this time they proposed to reconfigure their 22 lots around the wetland so that it would be protected rather than drained and filled as they had originally proposed.

But, the problem was that just as they released this report proposing to protect the wetland, we learned that the Trident contractor has pushed a road right through one end of the wetland, thereby severely compromising its ability to function as a wetland area. This behaviour of course was completely consistent with the illegal road-building Trident had been doing in the area of the 88-lots previously approved for over a year, contrary to the Oct., 2006 stop work order.

A further development last summer arose from the involvement of the Crowe Valley Conservation Authority. Once the Authority learned of the road-building on the site, they sent their enforcement officer to deal with Mr. Moore, the principal of Trident. Our last information was that Crowe Valley was going to enforce their regulations on Mr. Moore, forcing him to follow their rules through which developers have to apply for permits for the installation of culverts and keep lots at least 30m distant from watercourses of which there are three in the 88-lot subdivision area. At this point, while we know that Crowe Valley was dealing with Mr. Moore, we don’t know the details of what they required him to do. We will be asking the township to follow up on this to make sure that Mr. Moore has had to follow the rules.

Following the July wetland report, a hearing was scheduled in Nov. to deal with it at the OMB and as well, other planning-related matters to be settled once the configuration of the 22 St. Ola lots was agreed upon.

In order to bring to the attention of the Board, the fact that Trident had consistently ignored the Board’s orders and therefore had acted in bad faith and not expeditiously as the Board had called for in several decisions, our agent, John Sewell presented a Notice of Motion calling for the end of draft approval for the subdivision.

John Sewell takes up the story of the actual hearing from here on – “My motion was served on Wednesday November 7, giving the notice required by the Board’s rules. Supporting the motion was an affidavit from Reeve Dave Golem showing the bad faith and the inability of Trident to clear any of the conditions of draft approval since 2001. I heard nothing from Al Burton [the Trident lawyer] until 5 pm on Friday November 16, when he filed what he called a `reply’ to my motion. He said he wanted to delete the Township from the subdivision approval altogether, and insert the County of Hastings in its place; and he asked for costs against the Township and the Association `on a substantial indemnity basis.’ Supporting this reply was an affidavit from a member of his law firm which provided a most misleading summary of events in the last year. This was a belligerent approach on Burton’s part, very much in line with the bullying tactics this law firm has used in the past.

Also attached to Burton’s response was an affidavit from Mr. Michalski claiming that the road which had been pushed into the wetland had been remediated by removing all of the rocks and fill and replacing them with organic materials. Based on some information she had received, Linda Sheppard said that was entirely inaccurate, and I asked Dave Golem to visit the site and take photos if he could before leaving for the hearing in Toronto, which he did. But what was interesting about Michalski’s affidavit was that he included photographs which showed the extent of the work that had been done in the area of the St. Ola lots that was entirely contrary to the Board’s stop work order. Those photos made it common knowledge that the extent of the work on the property was not in doubt.

I formally replied to Burton’s motion on Monday November 19, saying that he was not responding to my motion, but was asking for things that were unrelated, and for that he would have to file a motion with the appropriate ten days notice. In any case, if he wanted to involve the county, he had to serve them and provide them with appropriate notice. I also said I would present evidence to show that what Michalski was saying was untrue.
 

On Monday at 5:30 pm, Burton sent the materials I had originally expected – the proposed Official Plan amendment, the zoning bylaw, the common elements condo, and the conditions of draft approval. He had thirteen months to prepare these, and he sent them the night before the hearing.

When the hearing began on Tuesday morning, Member David Culham made it clear that he was going to take charge and establish how he wanted the hearing to proceed. He started right off by saying he thought Trident had flagrantly and intentionally violated the Board’s order, and had shown contempt. His question was how he would deal with that, and what the remedy would be. His proposal was to defer a decision on my motion until he had dealt with matters concerning the wetland and other things expected from last October such as zoning. He also wanted to defer decisions about contempt, and to defer dealing with Burton’s proposal. It meant that I was only able to deliver part of the argument for my motion on Tuesday. The rest of the day was taken up with evidence about the wetland from Michalski, and evidence from Dave Golem about what was really happening on the site concerning remediation, and the fear of the Township that it would bear the costs of a failed development and a bankrupt developer.

At day’s end after the hearing, Burton wondered if we should see what we could agree to. I said I would discuss that with my clients and phone him back that evening. He provided his cell phone, and I called him that evening but he did not get back to me until 7:45 the next morning saying he would never agree to reduce the number of lots.

Wednesday morning consisted mostly of Rick Hunter, the Trident planner, explaining the various planning documents, and none held much surprise. It was clear that Mr. Culham was concerned about remediation of the wetland and how that might be accomplished. In the afternoon we were able to argue about remedies for the contempt shown by Trident. Burton argued that the Board could do little about contempt, while I argued the Board could clearly act, providing case examples of Board action when there was bad faith. I suggested a fall-back position would be to proceed with the 88 lots and the St. Ola lots, but to defer any consideration of the lots within 300 meters of Limerick Lake for twenty years.

I also proposed a proceed for remediation – an expert from our side paid for by Trident and an expert from Trident to jointly determine what needed to be done, with all work done in a reasonable time frame at the expense of Trident. I said remediation was needed not just to the wetland, but also to the roadway within 300 meters of Limerick Lake since the Board had said it could only be 3 meters wide, and it was at least ten meters wide. This proposal was well received.

Mr. Culham got Burton to agree that the County should not replace the Township as the approval agent, and he then showed quite strongly that there was no basis in fact for costs to be awarded against us. He did not seem friendly to our suggestion of deferring the lots within 300 meters of Limerick Lake.

A process was agreed to to clear up detailed amendments to the draft zoning bylaw, condo agreement and draft conditions of approval – Burton will forward them to me before the end of November for approval, then submit them to the Board. The phasing provisions remain intact, although the phases may be re-arranged, still requiring the approval of the Township.
 

I expect a decision by the end of the year, and I expect it will provide general approval, with good provisions for remediation, and little in the way of penalty for Trident’s bad behaviour. Once the decision is released, Trident will have six months to satisfy the draft conditions of approval. Unfortunately, the three year period before Trident can return to the Board with scientific evidence on the 300 meter lots runs out in late 2008.”

 

March 2007 UPDATE

Here’s a rundown of recent OMB happenings. It’s all a bit complicated so I’ll do my best to lay it out clearly.

1.

The first item is our attempt to pressure Trident into retaining an independent consultant to do the wetland report that the OMB officer (Culham) had asked for before he approves the development on the 22 St. Ola lots. This report relates to the fact that there is an Environmental Protection designation of some of the land that Trident proposes for the 22 lots. It has an EP designation because there is a treed swamp on it as we had described in the October hearings. We took the matter to the County of Hastings since EP is their designation in their Official Plan; Hasting County Council passed the following motion on Jan. 25^th, 2007: “That County Council advise Trident Members Inc, that the interpretation of the Official Plan statements required in the OMB Order 3054 regarding Limerick Lake should be undertaken by independent experts, and that the Planning Committee and the Township of Limerick be consulted and agree to the experts retained by Trident to carry out these studies.”

On March 2, 2007, John Sewell received a letter from Trident in which they wrote, “With respect to your request that your clients be consulted on the selection of the experts as required by OMB Decision/Order No. 3054, issued October 31, 2006 (Decision), please be advised that the experts (Mr. Davenport and Mr. Cunningham) chosen to undertake this task have already completed their fieldwork and we are awaiting their report. We anticipate this report will be available shortly. We note that your request to the County of Hastings was essentially identical to a previous request made by you to the Board. Your previous request was denied by the Board, and in our view, out of a respect for the Board’s process, that should have ended this matter. Mr. Davenport and Mr. Cunningham are eminently qualified in their respective fields and there is no reason to question the selection of these experts.”

Of course, Mr. Davenport had already testified for Trident last October and Mr. Cunningham (the wetland specialist) is listed as a member of Michael Michalski’s firm in Bracebridge so, given Mr. Michalski’s close relationship with Trident, he is definitely not an independent consultant by any stretch. What could happen is that Hastings County might not like what Mr. Cunningham says about their OP and the wetland and could apply for standing in the OMB proceedings, meaning they would want to call evidence and to cross-examine the Trident witness. They could take the position that the report doesn’t comply with their OP. We’ll see!

2.

The second matter that has caused a lot of distress is the fact that Trident has proceeded to clear land for roads in the subdivision in spite of a stop work order from the OMB issued last Oct.

On Feb. 8^th, John Sewell wrote to the OMB with an attached affidavit signed by the Reeve documenting the land clearing activity for roads and noting that this was a repeat of land clearing found in Sept., 2006, again in contravention of an earlier Board order. John asked the Board to review and/or reconsider the Oct. 31^st decision in favour of the 22 St. Ola lots, based on the fact that Trident had wilfully disregarded the Board’s stop work orders. (This is called a Section 43 request.)

On March 2^nd, Trident wrote to both the OMB and to John (in same letter referred to above) saying that they had contacted their client and what John had written about in February were two “works being undertaken on our client’s property, one being the demolition and removal of the derelict cottage and boathouse on the property under the direct supervision of the Township’s Chief Building Official and the second being a limited removal of some small saplings…..This is in no way related to an alleged construction of roads.”

The OMB letter went on to say: “With respect to the limited amount of some small saplings, we have discussed and stressed with our client its obligation to remain in full compliance with all the Board’s directions. We understand that this activity has ceased and our client understands it must not undertake any further preliminary clearing activity unless a Subdivision Agreement or a Pre-servicing Agreement is executed with the Township.”

Meanwhile, of course, we had an email from Dave Golem saying that Wayne Longmuir had been into the site around Feb. 15^th and reported that the contractor had completed all the clearing for roads in the 88-lot part of the subdivision.

On receipt of the Trident letter, John immediately emailed the Board to point out the misinformation in Mr. Wilker’s letter. The clearing activity that John wrote about in February obviously had nothing to do with the demolition of the cottage or boathouse since Trident didn’t apply for a demolition permit for that purpose until March 1^st. As well, John wrote, “I am also advised by Mr. Golem, further to his affidavit accompanying my February 8^th application, that the trees being removed were not saplings, but had a trunk diameter of eight to ten inches.” He went on to say that his clients had evidence of further heavy equipment doing work as recently as Feb. 28^th.

However, in spite of all the above, on March 5, 2007, the Board turned down the request for review of the Oct. 31^st St. Ola lots decision, claiming the evidence was “speculative” – a bit strange since it was anything but. In any case, John is consulting a lawyer friend to see if there is any recourse from this.

3.

So, you may be wondering why the township didn’t issue a stop work order at the same time as we were pursuing the OMB to do something about the fact that their stop work orders were being ignored by Trident. This turned out to be a much more complicated question than anyone expected. First, it had to be clarified in discussions at the township level that Mr. Sheppey (sp?), CBO, couldn’t issue such an order. Once that was clarified, we asked Dave Golem to consult about the proper procedure with Ken Sykes (the township’s lawyer in Belleville). First Sykes told Golem to write to the contractor and tell him about the OMB orders etc., hoping he would have the integrity to stop his work. This advice (which personally I thought a bit strange) became redundant because it was at the point that we learned that all the road clearing in the 88-lot area had been completed.

Meanwhile, (Councillor) Brian Cofell went to the OMB website and found a brief reference to enforcing OMB decisions which entailed getting a certified copy of the decision and filing it with the courts where it can be enforced as a certified court order. That sounds simple but in fact, it is anything but.

The problem is, as George Offshack, heard when he went to the last Council meeting (March 6, 2007) , Ken Sykes then told Dave Golem, that to follow this procedure, they would have to have a lawyer take on this action which would involve a day in court etc. etc. and could cost upwards of $3000. (Just for those who don’t know as I didn’t, because this is a civil as opposed to a criminal action, enforcement of the certified court order, if Trident continued to work on the land, would have to be done by the sheriff.) According to our report from George, Council decided not to pursue this.

4.

So, our OMB committee has agreed to have John discuss what should happen next with Dave Golem – this involves discussions around a proposed preservicing agreement, as well as discussions about whether we should be worried about what Trident might do next on the lands from now on. Will they try to clear land for lots, for example, before there is either a preservicing agreement or they have fulfilled all the draft 1999 conditions for approval of their 88-lot subdivision. Should we ask Council to reconsider regarding the stop work order procedure.

These discussions will likely continue this week and we will keep you posted.

 

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== 2006 News Releases ==

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== 2005 News Releases ==

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 == 2004 News & Views ==

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Limerick Waterways Ratepayers Association - LWRA

c/o George Offshack, Secretary

123 Limerick Lodge Rd. RR#2

Gilmour, ON   K0L 1W0