"THE HIGHLANDS OF HASTINGS"

Limerick Waterways Ratepayers Association - LWRA

E-mail:

== 2005 News Releases ==

RESULTS OF THE FALL 2005 OMB HEARING

As you know, the major focus for LWRA this past year has been the Ontario Municipal Board hearings on the Trident Members Inc. application to reinstate more than 50 lots that they had willingly given up in the 1999 OMB-approved settlement of their proposed subdivision. And as you know, from Oct. 24^th to Nov. 3^rd, we went through two very intense weeks of hearings in Belleville on the science and technology issues arising from the proposed septic installations on the lots they want to develop within 300m of Limerick Lake.

And now we have a decision. In essence, the OMB member accepted the argument that, given the untested nature of the proposed septic treatment systems, it was premature to approve 31 lots within 300m of Limerick Lake, some as close as 90m, until more testing data was available. The Board ruled that these lots should definitely not go ahead now, nor should they be included in the planning hearings scheduled for January. But, in the words of the Board member, “The Board does not totally reject the proposed lots.” So, Trident definitely did not get what they applied for now, but the Board, unfortunately, didn’t close the door forever.

This is how our agent, John Sewell, sees the decision. “The decision by OMB Member David Culham is generally one we should be happy with. 

“It confirms the position that both the Township and the Association have taken over the years that Limerick Lake must be protected. The first finding in the decision is that “…Limerick Lake represents a special `at capacity’ cold water Lake Trout habitat that is especially susceptible to low levels of dissolved oxygen.” The Third finding is “The cold water Lake Trout type-Lake Limerick is a very high priority, high value lake in Ontario.”  These statements provide validation to the actions of the Township and the Association in trying to control this development for the last decade.

“The decision concludes by stating, ‘The Board defers consideration of these 31 lots until after the observations and analysis from an additional three years of continuous monitoring [of the Phosphex system] as recommended by Dr. Manoharan [the Ministry witness].’

“It is a bit unclear exactly what kind of monitoring will be required, but on page 17 of the decision Member Culham made several statements which give some hints:

‘Without the favourable results from at least a six-year monitoring period, as indicated in Dr. Manoharan’s testimony, the Phosphex™ remains in its ‘experimental period’ for lakes of Lake Limerick’s sensitivity.  He recognized the promising early results and for that reason, sees merit in applications applied to less sensitive lakes such as at Bon Echo.  Dr. Robertson [another Ministry witness] also expressed concerns about the research being independent though Mr. Smyth and Mr. Campbell [both Trident witnesses] testified that the City of North Bay did the sampling and testing because the site is immediately adjacent to the water body from which the City draws its municipal water.

Mr. Culham went on to say, ‘The Phosphex™ system has at best five years of testing.  The longevity of the slag has not been sufficiently tested.  The lengthened testing period and the monitoring of the tile bed and the down gradient ground water flows could help with the question of high PH levels of treated effluent into the acidic tile bed.  Mr. McGregor [our expert witness], Dr. Paterson, Mr. Putzlocher and Dr. Robertson [Ministry witnesses] testified as to concerns about the length of the testing period.  The Province needs the required additional performance in order to justify imposing this high standard.’

John Sewell notes that “These comments lead to the conclusion that it seems reasonable to assume that the monitoring will have to take place in more than one location and that it will have to show that there is a workable system that does not malfunction – the Phosphex™ system has malfunctioned on several occasions. Further, the Phosphex model which Trident wishes to use for the Limerick development has never before been used, so there is a good question whether three years is long enough for the new system, or whether it needs to be tested for longer, maybe six years.

John concludes by saying as above; “This decision means that the planning hearing scheduled for January 17, 2006 will not include the 31 lots within 300 meters of Limerick Lake.”

But, even though the 31 lots are off the table, there are still some other items to be argued in the scheduled January planning hearings. These are

·        the status of the 20 or so St. Ola lots and whether reinstating them constitutes “good planning”

·        John Sewell’s motion which states that on the basis of recent amendments to the Planning Act, the OMB should not have jurisdiction over the application for the 50 or so lots because County Council has turned down an application to amend its Official Plan to include them

·        whether or not a beach is permitted on the shore of the development lands even though it was not mentioned in the 1999 settlement

·        an expected proposal by Trident to extend the period to meet the draft conditions of approval for the 88-lot subdivision; this period is now scheduled to end 6 months after the conclusion of the current hearings which would mean July, 2006.

We don’t know as yet what the Ministry plans for these hearings or who their witnesses will be. In the meantime, John S. is looking at our options which could include retaining a planner as an expert witness with the township if necessary.

So, it isn’t over yet but we feel we have made significant progress on our case. Much can happen in three years – and there is no assurance that there will be positive testing data for the new septic systems after that period, nor that they will function well over the long term. As well, we would hope the province, FOCA, and all cottage associations concerned about similar development proposals to ours will actively pursue the questions around proper planning for cottage-area lakes.

We would all probably agree, that to hang approval of development proposals solely on the basis of septics and phosphorus when developments can create multiple stresses on lakes from all kinds of perspectives – more people, more boats, more water use, more cutting down of trees, more disturbance of all natural features, more impact on groundwater sources, etc. etc. – really doesn’t make much sense. We need a much more comprehensive planning regime to create a structure for planning decisions affecting recreational lakes than something as restricted as phosphorus.

Just to close, we feel very strongly that we made the right decision in standing firm that we would not support any settlement negotiated between the Ministry and Trident. We have no way of knowing, but it is possible that the position we took eventually contributed to the fact that the Ministry did not agree to a negotiated settlement with the developer but instead brought all their expert witnesses and their considerable volume of important evidence forward in a full hearing.

Two other observations: throughout the hearing, with the volume of evidence straight from very technical scientific studies, it was difficult to see how a lay person could really assess the information and its implications. Even the hearing officer himself says in his decision: “The preferred arena to sort out differences of opinion pertaining to the science is within the academic and professional organizations.” Still, of course, with no option, he went ahead and made a sort-of decision.

As well, we should take note that there were significant mentions in the hearing about the fact that there was no evidence that the cottagers were doing much to deal with the impact they were having on water quality. It was suggested that the current amount of phosphorus in the lake was contributing to the low levels of dissolved oxygen and putting our lake trout fishery at risk. In fact, Mr. Culham said, “Much of the shoreline in question is already occupied by existing cottages with little improved sewage treatment or other applied conservation. It does not appear to the Board from testimony that the Ministries measured quantitatively or by anecdotal observation existing impact from these existing cottages on the shoreline.”

Maybe a message that we should take seriously before we find ourselves in a new round of hearings, three years from now.

 To close, of course, our association could not have taken our case to the OMB without the generous support of all our members. Your contributions made it possible for us to join with the township as active participants in the hearing. My personal observation from sitting through the whole two weeks was that our presence was critically important to the outcome of the hearings. By having our own agent and our own expert witness, we made it clear to the OMB that those who would be most directly affected by the development application were willing to put dollars and energy into the strongest opposition they could mount to this proposal.

Note: You can read the full decision on the website of the Ontario Municipal Board.

The date is Nov. 30, 2005, Decision/Order No. 3126.

------------------------------------------------------------------------------------------

Notes - OMB Hearing – Oct. 24th to Nov. 3rd, 2005

Science and Technology issues related to a developer’s application to add 27 lots to a subdivision within 300m of Limerick Lake – an at-capacity, highly sensitive, cold water lake trout lake in Hastings County, 25 km south of Bancroft.

The application was eventually opposed by the Ministry of Municipal Affairs and Housing, the Ministry of Natural Resources and the Ministry of Environment and by Limerick Township and Limerick Waterways Ratepayers Assoc.

As some people will probably remember, from our previous communications, one of the great concerns of LWRA was that as of June, 2005, the Ministry of Municipal Affairs representing the other ministries had entered into negotiations with the developer to come up with a settlement. LWRA was not brought into these discussions and we did not know until late in the week before the hearing was to begin on Oct. 24th, that there would actually be a full hearing without a proposed settlement.

We had informed the Board and the parties that we would oppose any settlement and planned to subpoena witnesses even if the Ministry agreed to a proposed settlement but fortunately for us, this didn’t turn out to be the case. A full hearing was held with the Ministry bringing forward all their witnesses from both MNR and MOE to oppose the case the developer put forward in favour of developing his 27 lots.

Naturally, we were very pleased that this is the course the hearings took, in spite of the added difficulties of preparing a case when you weren’t sure what road the hearing would take.

Background:

People familiar with the case will remember that in 1999, there was a negotiated settlement among all the parties which was approved by the OMB and which allowed the developer to build an 88 lot backlot development between Limerick and St. Ola Lakes with all lots beyond the 300m setback of Limerick Lake. The developer then went to the OMB and got permission to have a rehearing on the 53 lots he had given up in 1999, claiming that new science and technology would allow him to develop 27 lots within 300m of Limerick Lake and there would be no negative effects on the lake trout fishery since no significant amounts of phosphorus would ever get into the lake. Eventually, his claims were opposed by all the other parties.
The Hearing:

This was a very intense two weeks with everyone taking notes at breakneck speed on very complex scientific data which for non-science people was very challenging to absorb.

The way it worked was that the Trident lawyer, Jeff Wilker presented his case first – bringing forward all his witnesses and putting them on the stand where they basically went through their witness statements to put their case forward as oral evidence. Then the Ministry lawyer, Brenda Linington, and John Sewell, got to cross-examine these witnesses.

Then John Sewell put the LWRA/Township expert witness, Rick McGregor, on the stand followed by Wayne Longmuir. They were cross-examined by the Trident lawyer.

Finally, the Ministry lawyer, Linington, put her witnesses on the stand and they were cross-examined by the Trident Lawyer and by John Sewell.

At the end, each of the three representatives put forward their argument which basically sums up their cases and makes their strongest arguments in favour of their positions.

So, here are some observations.

1. No one argued against the position that the lake trout in Limerick would be at risk from any further decline in dissolved oxygen which would be caused by adding any significant amounts of phosphorus to the lake.

2. The Trident position was based on their argument that by adding a sand filter and the Phosphex filter system to their septic systems and by bringing in what they called “Horizon B” soils for the tile beds that would take out any small amounts of phosphorus that might get beyond the Phosphex system, their 27 lots would add NO or NO MEASURABLE amount of phosphorus to the lake. (Note that the Phosphex system adds another level of treatment to the septic process and consists of an additional tank and hydraulic system that puts the effluent into a bed of slag material that is designed to absorb phosphorus.)

3. Trident also argued that their stormwater management plan which includes significant buffers (trees and large shrubs that will take up phosphorus in the stormwater) will not allow surface water phosphorus to get to the lake either.

4. As far as the Phosphex system is concerned, it was pretty hard for the Trident people to argue that this was anything more than an experimental system at this point, especially because there was evidence that the North Bay system had been completely dug up and redesigned just this past June. As well, their main witness who now is the president of the company that will supply these units described his new design for all the hydraulics (the pipes that bring the effluent in and out of the unit) in a sort of prefab unit which has yet to be built and installed anywhere.

Also, one of the Ministry witnesses was very, very clear that this system is in the experimental stage – about 1/3 rd through that process in his words.

5. The practice of bringing in special soils to take up phosphorus in situations where the native soils are too shallow as in our situation is also very experimental and there is only one site where this is currently being tested (on Lake Kushog in Haliburton). There is limited data which has been mostly positive, but recently there was evidence of phosphorus breakthrough in one of the monitoring sites so the Ministry’s Dr. Robertson said this meant more long-term testing was definitely necessary.

6. But, even though there is a strong case against putting experiments on the 27 lots, Trident of course emphasizes that this is not problem because if these fail, there is always the contingency plan – that is, a site for every cottage on the 27 lots to have a conventional septic system located beyond the 300m setback. So, if the system fails, all the cottager has to do is put in a conventional system and pump the sewage up to it.

Trident also says that there are additional safeguards because there will be maintenance agreements for the sand filters and the Phosphex systems and each cottager will be required to monitor how the system is working by sending in samples to a certified lab after every long weekend etc. etc.

8. As well, Trident proposes that the common elements condo corporation will have responsibility for making sure the cottagers do all the monitoring at the appropriate times, send it to the right place, take measures to respond to problems etc. etc. In our view, this is very complicated, demands a lot from a cottage-owner, and is not at all convincing in terms of reliability especially in such a rural location.

9. Another thing that was mentioned by two of the Ministry witnesses was the fact that the numbers of people from the approx. 140 cottages using the small amount of waterfront that the development has would put a lot of pressure on the tree buffer and on the shore. Images of 300 people on a hot day congregated on the shore and carrying canoes etc. through the buffer were mentioned with the suggestion that people would create their own paths through the buffer and therefore reduce its effectiveness to take up phosphorus.

10. One of the strongest witnesses for the Ministry was Dr. Andrew Paterson who, in spite of the constant prodding by the Trident lawyer who wanted him to agree that to impose a 0% phosphorus impact on Limerick Lake was unreasonable for the developer to meet – in other words, while they would try for this, if they failed to meet this standard by a small amount, it wouldn’t affect the lake in a negative way – refused to agree to that proposition. Instead, he said steadily several times that development within 300m of Limerick would cause a net increase in phosphorus in the lake. He didn’t say how much – might not be able to measure it – but it would be there.

Basically, the argument came down to the Ministry, LWRA and the Township arguing that the developer had not proved his case that no or no significant amount of phosphorus would get into Limerick Lake. The systems proposed to control phosphorus were highly experimental, had no long-term track record, and the contingency plans were not adequate safeguards. It does not make sense to try this experiment on a lake where the lake trout fishery is already at risk and where measures are needed to improve the water quality, not put it further at risk.

We feel we have been very fortunate to be able to retain John Sewell who did an excellent job representing us and made us and the Township real players in the proceedings. Our expert witness brought forward valuable testimony that we believe was taken seriously by the OMB hearing officer.

Of course, one of the big imponderables of a hearing of this type is the fact that much of the evidence was highly scientific; yet the decision will be made by a lay person without a science background. This raises very significant issues about the whole process in the view of LWRA but unfortunately, this is the process that has been set up to deal with these issues and there was no option except to participate in it to the best of our ability.
 

-------------------------------------------------------------------------------------------

HEARING UPDATE - OCT 24, 2005

Just in case you're thinking of coming to the hearing, it will now be starting at 9 am instead of 10.

Just two Trident witnesses heard today and only evidence in chief -- no cross-examination. That will start tomorrow. Much about how the soils on the site will attenuate phosphorus and some things about Phosphex.

The soil stuff was very technical so it will be interesting if John and Brenda can show how problematic it was -- fortunately Rick McGregor was here to feed John a lot of info. about what was incorrect about a lot of the assertions.

We'll see what happens tomorrow. It sure is good though that this is a hearing with no settlement before us. You can feel that it really shifts the weight of things. It will be interesting to see how strong Brenda is in her cross-examination. I think it will tell us how serious the Ministry is in fighting this.

Cheers,

Linda

UPDATE NOTICE TO LWRA MEMBERS - OCT 23, 2005

Your Association, in conjunction with the Limerick Township Council, has been actively apposing the attempt by Trident Members Inc.to change the 1999 OMB sanctioned agreement. The letter, included here, was sent to Cottage and Conservation Associations with some encouraging results. This letter clearly identifies the issues and activity taking place with regard to a possible agreement between the Ministry and the Developer.

There has been no settlement reached to date thus we will be presenting our arguments at a full blown OMB hearing commencing:

 

Monday , 24 October, 2005.

The hearing is scheduled to commence at 10:30 am (10 am on days other than Mon.) in a room at the Ramada Inn on the Bay, 11 Bay Bridge Road, Belleville. Ontario.

This hearing is intended to address the science and technology issues surrounding the use of " Phosphex Septic Systems" within 300 Meters of a Lake Trout Lake and is expected to continue for several days, possibly weeks.

 

The hearings are definitely open to the public and there are lots of seats available!  Members of  LWRA and all other interested persons are encouraged to attend these hearings and lend support to John Sewell (our representative), Linda Sheppard,(President, LWRA) and our expert witnesses. 

Linda Sheppard, will be staying at the Ramada hotel and can be contacted at 1-613-968-3411 during these proceedings.  It's always wise to call ahead to make sure the hearing hasn't been adjourned etc. etc. before coming down.

For up dates on the progress of these hearings you can check the LWRA web site at  www.lwra.limericklake.com

We hope that some of you will be able to attend this hearing and look forward to seeing you there.

 

Bob Mofford

 

1st VP, LWRA

 

LWRA LETTER:

 

July, 2005.

 

Dear Cottager/Conservation Association:

 

Subject:  Are cold water trout lakes at risk?

 

Our cottage association, Limerick Waterways Ratepayers Assoc., is contacting your association to ask for support in our current fight at the OMB. We are very concerned that the Ministry of Environment appears ready to abandon its 30 year old setback policy, and is prepared to support new multi-unit development within 300 meters of our at-capacity cold water lake trout lake.

 

As you’re probably aware, the 300 meter setback requirement was established to protect water bodies, and especially cold water lake trout lakes from the harmful impacts of phosphorus, a constituent of human and household sewage. Excess phosphates lead to the growth of surface algae which depletes oxygen in the water; the algae dies and sinks, and its decomposition further depletes oxygen so that small trout, which live in the lower lake levels to avoid predators, are unable to survive. Trout play a large role in controlling the ecology in these lakes and if they suffer, the whole environment of the lake is put in doubt. The 300 meter setback means the likelihood of nutrients reaching the lake and thus harming the trout is remote.

 

In our case, the Ministry’s setback policy has come under attack by a developer who is attempting to build a very large back-lot development (a subdivision of 141 lots) close to Limerick Lake, south of Bancroft. Limerick Lake is a highly sensitive at-capacity cold water lake trout lake. At an Ontario Municipal Board hearing in 1999, the OMB approved a negotiated settlement between the developer, Trident Members Inc., the Township of Limerick, the Limerick Waterways Ratepayers Association, and the Ministry of Municipal Affairs, for a backlot development of 88 lots, and to set the development back 300 meters from Limerick Lake.

 

No development has occurred on this subdivision. However, in late 2004, Trident convinced the OMB, in spite of the opposition of the other three parties to the agreement, to re-open the 1999 agreement so Trident could take another stab at getting approval of the larger subdivision, of which 29 lots are to be within 300 meters of the lake.

 

A hearing before the OMB was set up to consider the scientific issues which require a 300 meter setback. This was to have begun on June 13. The Ministry filed statements from a number of expert witnesses to support the setback, and of course Trident filed material to show there should be no setback.

 

Then, three days before this hearing was to begin in June, we learned that the Ministry and Trident were deep into negotiations to allow 29 of the 141 lots within the 300 meter setback, some as close as 100 meters to Limerick Lake. A new technology called the Phosphex system would be used for the septic systems.

 

The problem is that, to our knowledge, there is only one of these Phosphex systems currently in operation; it has been in use for five years, and already some problems have developed with its operation. Without any longer term data for larger numbers of these systems, the Township and the Association believe this is a risky experiment. In addition, there is no legislative way of ensuring long term monitoring by any public agency; no standards or protocol for testing;  no methods of requiring broken systems to be repaired or materials be removed and processed; no companies in the business of removing the media in broken systems;  no standards for these new systems to meet; and so forth. It is unclear why the Ministry seems willing to experiment with 29 systems on a lake that is already described as “highly sensitive” and “at capacity”, a lake which will be gravely harmed if the phosphate levels increase.

 

Not enough is yet known about the proposed settlement, but the Township and the Association believe that appropriate guarantees cannot be provided. We believe it is important for groups and individuals to indicate their concern in this matter as soon as possible. We think these negotiations should be of particular concern to people on lake trout lakes since if the Ministry puts our lake at risk, what will prevent developers from proposing similar units on other lake trout lakes?

 

If you share our concern, there are three things you can do:

 

1. Write to the Minister of the Environment questioning their change of policy, and asking for full materials as to what is being proposed. Letters should be addressed to Minister of Environment,

12^th floor, 135 St Clair Avenue West, Toronto M4V 1P5, or email laurel.broten@ene.gov.on.ca

 

2. Write to the Minister of Natural Resources pointing out how they put themselves forward as stewards of the lake trout fishery and demanding that they strongly oppose any settlement of this case that will allow development closer than 300m to the shore of Limerick Lake. Letters can be sent to David Ramsay, Minister of Natural Resources, demanding that MNR fulfill its responsibilities as a steward of lake trout:  David.ramsay@mnr.gov.on.ca

 

3. We know from our appearance at a short hearing in June, that the OMB Hearing Officer is expecting that there will be groups wanting to present their views on the setback issue and the lake trout fishery at the hearings in October. You can write to the Ontario Municipal Board expressing your concern, and desire to be informed of the details of the proposed settlement and the upcoming hearing dates. Letters should refer to “OMB Case No. PL980499, File No. S980045, Trident Members Ltd. on Limerick Lake”, and be sent to the Board, attention the  case worker assigned to this case, Robert Clackett, 655 Bay Street, Suite 1500, Toronto ON M5G 1E5. The email address is robert.clackett@jus.govon.ca . Please send us a copy of any letter which you send to the Board.

 

Former Toronto mayor John Sewell is representing both the Township of Limerick and the Limerick Waterways Ratepayers Association at the OMB. He can be contacted at  j.sewell@on.aibn.com  . 

 

LWRA would be most grateful for any assistance you can give. We know this is a busy time for many cottagers but we feel that there is much at stake in this case since it is not only one lake whose future is being put at risk but that of many other of the 2000 lake trout lakes across Ontario.

 

If you would like more information, please feel free to contact me at lwshep@sympatico.ca or by phone either in Toronto at 416-691-8894 or at the cottage at 613-474-2116. If you have suggestions as to other ways we can make our story public, we’d be pleased to have them.

 

Thanks in advance for your expected support.

 

 

Linda Sheppard, Pres.

LWRA

 

-------------------------------------------------------------------------------------------

JULY 2005 UPDATE ON BACKLOT DEVELOPMENT

 

Article by John Sewell

“I never thought the Ministry of Environment would do what they are doing,” says Linda Sheppard. “When they said they would protect the lake trout population in at-capacity cold water trout lakes, I thought they meant what they said.”

Sheppard is president of the Limerick Waterways Ratepayers Association, representing cottagers on Limerick and other lakes south of Bancroft. The Association has been involved in a long standing struggle to prevent a developer, Trident Members Inc., from building a massive 141 back-lot development near Limerick Lake. The developer got the right to build 88 lots as a result of a negotiated settlement in 1999 and although none of the 88 lots has been developed, he has now gone back to the OMB and applied for an additional 53 lots. Twenty-nine of these would infringe on the 300 meter setback required by the Ministry for the past 30 years ago to protect highly sensitive lakes like Limerick.

The site is located in Limerick Township, which has a population of less than 400 people, although that more than doubles during the summer. The largest settlement in the township is St. Ola, with about 20 houses. Trident’s plan for a 141 lot subdivision will have a major impact on the area. The Township has consistently opposed the plan.

What surprises all those involved is the suddenness with which the Ministry has changed it position. The proposal by Trident was to come before the Ontario Municipal Board on June 13, and the Ministry, like the Township and the Association, had filed six strong witness statements in opposition to any development within 300 meters of the lake.

“On the Friday before the hearing,” says Sheppard, “we heard the Ministry and Trident were deep into negotiations to give Trident the green light.”

Through their agent, former Toronto mayor John Sewell, the Association and the Township told the OMB that they would not be part of the settlement since they did not believe the lake – or the public interest – could be protected.

On the 29 lots located within the 300m setback from the lakeshore, the settlement would require the developer to use a Phosphex septic system which includes special equipment for capturing phosphorus. (When phosphorus from human sewage and household waste gets into water, it produces algae which eats up the oxygen and starves the lake trout.) But there’s only one functioning Phosphex system in Ontario, and it is showing problems after only five years.

There are no legislative ways of ensuring long term monitoring by any public agency; no standards or protocol for testing; no methods of requiring failed systems to be repaired or materials be removed and processed; no companies that could remove the failed or used up material that is supposed to absorb the phosphorus; no standards for these new systems to meet; and so forth.

“We don’t know why the Ministry seems willing to experiment with 29 systems on a lake that is already at-capacity”, says Sheppard. “The lake will be gravely harmed if the phosphorus levels increase if even one of these systems fails over the next twenty, thirty or more years.”

The matter comes back to the Ontario Municipal Board on September 8 to settle some procedural issues, and perhaps to see the final settlement package come into view.

“We have a chance to convince the OMB that the public interest is not protected,” says Sheppard. “We think many people will be very concerned when they realize that the Ministry is not protecting cold water lake trout lakes. We hope they’ll write the Board and the Minister of Environment indicating their concern.”

For more information on this issue, contact Linda Sheppard at lwshep@sympatico.ca , or John Sewell at j.sewell@on.aibn.com .

- end -
 

MAP OF DEVELOPMENT AREA

 

OLDER UPDATES ON BACKLOT DEVELOPMENT

 The OMB agreed to have a motion hearing where the developer could make the case that the settlement should be reopened and that, because of the new scientific evidence about phosphorus migration, the 57 lots, deleted in 1999, should be reinstated and that these could be closer than 300m from the water’s edge.

The Board of Directors of LWRA took the position that the settlement should not be reopened and LWRA joined with Limerick Township Council to hire a lawyer at considerable expense to represent us at the motion hearing to oppose the developer’s application.

Unfortunately, we were not successful and the OMB ruled in favour of the developer. This means that there will be a rehearing sometime later this spring/summer and that preceding this, the OMB has called for a prehearing conference on March 2, 2005 in Belleville. The purpose of the prehearing conference is to work out the issues and procedures for the actual rehearing.
 

It has been suggested that the rehearing could take a month since there will be many expert witnesses called. This hearing may be a test case of provincial planning policy, in particular, the 300m setback for septic systems in subdivisions and this is the reason it will be so lengthy. At base, the developer’s main arguments will be based on the work of Michael Michalski, a limnologist and consultant who has been advising the developer on the environmental impacts of phosphorus from septic systems and stormwater runoff since 1990 and whose position is that there is no longer a need for a 300m setback.

We know that the three ministries with an interest in this issue i.e. the Ministry of the Environment, Ministry of Natural Resources, and Ministry of Municipal Affairs and Housing will be represented by legal counsel at the prehearing conference and the rehearing. We do not yet know exactly what they will be saying.

The Current Position of LWRA

The LWRA Board of Directors has discussed our situation and feels that we simply do not have the financial resources to hire a lawyer for a hearing of this length. But, we do want to maintain our status as an opposing party to the developer’s application.

The first question we have had to deal with is how we can be represented at the prehearing and rehearing since we can’t afford legal representation.

We have been fortunate that, through personal connections, we have been able to retain the former mayor of Toronto, John Sewell, as our agent at the OMB proceedings. John Sewell is very knowledgeable about planning issues and procedures at the OMB. While he has not practiced, he was trained as a lawyer as well.

This arrangement was approved by the LWRA Board of Directors at a special board meeting in Belleville on Sat., Jan. 29, 2005. The agreement we were able to make was that John Sewell will represent us and will retain the services of one expert witness for a total sum of $15,000.

While the government’s lawyers will likely handle the case against the developer’s claims about new science and technology, we think there may be other areas where it would useful to hire a consultant as an expert witness to give evidence about the negative impact that a larger backlot development will have on our lakes. We will be discussing this with Limerick Council as well since there may be ways that we can cooperate on representation at the rehearing.

At this point, John Sewell has been working on our strategy for the prehearing conference on March 2nd and has been in touch with Bill Walker, the lawyer who will represent Limerick Township Council at the prehearing conference but not the rehearing, and with Brenda Linington who is the lawyer who will represent MMAH on behalf of MNR and MOE.

Discussions will continue in the days leading up to the prehearing conference. There will be further discussions with the lawyers, the township, and any other persons/bodies who may be useful to us in putting forward our case.

Limerick Waterways Ratepayers Association - LWRA

c/o Bob Mofford, Secretary

287 LL North Shore,  RR#2

Gilmour, ON   K0L 1W0