"THE HIGHLANDS OF HASTINGS"

Limerick Waterways Ratepayers Association - LWRA

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== 2006 News Releases ==

December 2006 UPDATE

December 7, 2006

In October, John Sewell reported on the hearings that we had attended in Belleville. This report is on the LWRA website. Those hearings were to deal with 1) the need for a Stop Work order against Trident because they had started road-clearing on the development lands contrary to previous agreements and 2) with the planning merits of the 22 St. Ola lots that Trident applied to have added to their 88-lot subdivision (lots which they had willingly given up in the 1999 settlement and which were not affected by the science and technology hearings on the lots within the 300m setback of Limerick Lake.)

We received the OMB decision on Oct. 31^st (Decision 3054) and unfortunately, in spite of excellent testimony by our expert witness, Peter Josephs, the OMB has decided in favour of the developer and has dismissed all of the arguments against the addition of these lots. As people may not be aware, though, approximately half of the proposed lots were on land that had been designated Environmental Protection on the Official Plan of Hastings Co.

This area was described at the hearing by Michael Michalski, expert witness for Trident, as a wetland, or treed swamp as he called it, complete with black ash, sensitive ferns, and other flora and fauna – an area that was 80m wide at the top, narrowing as it came closer to St. Ola Lake. Mr. Josephs had suggested that because the actual dimensions and nature of the wetland had not been described in any planning or scientific detail, that it was inappropriate for the OMB to allow development on these lots without an amendment to the Official Plan that should have been attained by going through the regular County planning process.

The OMB disagreed with this, basically accepting Mr. Michalski’s position that yes, there was a wetland but that it was no impediment to the development of the St. Ola lots – Trident would simply drain the wetland, bring in fill, and proceed to build on the area of the wetland which they had in fact destroyed.  Further, the OMB said it would grant the Official Plan amendment although it was to be conditional on receiving a “… a further report from a wet land specialist and engineer further confirming the appropriate interpretation of the boundaries of the Environmental Protection area for these lands by specifying the size, location, the vegetative and aquatic nature of the swamp; the potential role if any “in the preservation of the County’s wetland heritage system [as per their Official Plan], and the nature of any ‘natural hazard that may pose a threat to life or property.’” (boldface added by LS)

As one last effort, John Sewell has written to the OMB saying that we are reading into the decision, “that the experts who will report further in respect to the Environmental Protection area will be impartial and independent, as well as qualified as wetland specialists or professional engineers.”

He also said that we are notifying Trident and Hasting Co. that we wish to be consulted in the selection of the experts “in order to properly conclude this issue in accordance with your decision.” John has copied the Planning Dept. of Hastings Co. on this letter.

We have now received a letter back from Trident naming the two “experts” but with no information about them (although the engineer is the person who testified for them in October who cannot be seen as independent.)

The present plan is that John will contact Trident to ask for information about the proposed wetland specialist. He will also consult with the new reeve, Dave Golem, about raising the EP issue with the members of Hastings County Council on the basis that the requested report in fact involves an interpretation of their Official Plan and they may want to contact the OMB about this.

In the meantime, if anyone is interested in responding to the wetland issue, you might want to write to County Council and say something to the effect that in 2006, you find it an unacceptable policy to allow wetlands which should be protected as part of the natural heritage of not only Hastings Co. but the whole province to be destroyed by developers for their private gain.

People interested in sending letters could get the contact information for the County Council from Bernice Crocker at the township office, 613-474-2863 or limerick@northcom.net

 

October 2006 UPDATE

October 5, 2006

This letter reports on the status of the Trident case at Limerick Lake.

During August I learned that Trident had taken heavy equipment into the site and was beginning to clear land in preparation for the creation of roadways.  I telephoned Trident’s lawyer Al Burton and requested him to have his client cease activity.  Mr. Burton said he had no knowledge of this.

In mid-September it was clear road building had not ceased, in fact it was proceeding full-steam.  After discussing legal options with various lawyers I decided to seek a Stop Work Order from the Board.  Affidavits were supplied by Linda Sheppard and Peter Josephs, and the motion was filed in late September, returnable on October 2.  Trident’s solicitor suggested that they would consent to the Stop Work Order and after appropriate discussions I agreed to that course of action.  When the hearing began in Belleville on October 2 the Board issued the Stop Work Order agreed to.

The case on the planning merits of the 22 St. Ola lots was then heard by the Board.  Peter Josephs provided excellent testimony on behalf of the Township and the Association, showing that the County Official Plan had a clear growth strategy in rural areas which did not include large developments such as the St. Ola lots in so isolated an area.  He further showed that were limitations to building in the manner proposed by Trident both because of an area designated as Environmental Protection and because of the requirement for lots to be a minimum of one acre in size, a criteria that nine of the 22 lots did not meet.  Trident did not produce any evidence which seriously challenged the opinions of Mr. Josephs.

The hearing concluded on October 3 with Member Culham reserving his decision, which is expected toward the end of the month.

Whatever the outcome of the hearing, several matters remain to be settled: the exact form of the common elements condominium; the terms of the zoning by-law; and any further restrictions on the beach.  Concerns we have to ensure that vegetation in the beach area is not trampled can hopefully be dealt with in the zoning bylaw or the condominium agreement. It is expected that a one-day hearing will be scheduled in late November to conclude these matters although we may be able to avoid the hearing by reaching an agreement.  I believe this will be the end of this protracted process - until Trident decides to come forward with more scientific evidence for the lots within 300 metres of Limerick Lake.  That cannot happen for at least two years.

Trident has six months after the release of the decision on the St. Ola lots in which to satisfy the conditions of draft approval.  It seems likely that Trident will take every action it can to meet this time period.

John Sewell

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June 2006 UPDATE

June 7, 2006

Below is a letter supplied to the LWRA as well as the township of Limerick from John Sewell.

This letter reports on the Ontario Municipal Board hearing held on Thursday, June 1, 2006 regarding Limerick Lake.

The hearing was called to deal with a motion brought by the Ministry of Municipal Affairs and Housing to try to split off some issues that Trident wanted to include in the planning hearing about the 22 lots close to St. Ola Lake for which it wants approval.  The OMB had decided after the January hearing that it would allow a planning hearing to be held on the St. Ola lots but Trident’s planner had included in his affidavit a number of matters that related to lands within 300 meters of Limerick Lake.  For instance, Mr. Hunter included the common-elements condominium plan and zoning amendment for land within 300 meters of Limerick Lake.  Brenda Linington argued very strongly for the Ministry that it was improper to include these matters in the hearing about St. Ola lots since the Board decision in November had specifically said that more planning studies had to be done before lots could be established within 300 meters of Limerick Lake.

The day before the hearing it was clear that some kind of settlement could be arranged between the parties, and instead of holding a hearing on June 1, we spent the morning settling the wording of the kind of decision we wanted from Board Member David Culham.  The settlement stated that anything related to land within 300 meters of Limerick Lake would be adjourned to a future date to be set once Trident came forward with new scientific evidence in three years time.  It was also agreed that in the St. Ola hearing Trident would be allowed to propose a driveway, with lay-bys, in the 300 meter zone, providing that the driveway was no wider than 3 meters.  It was also agreed that the land considered to be used for open space in the 1999 decision would be zoned for open space until Trident makes its application with more scientific evidence.

We agreed that the hearing on the planning issues of the 22 St. Ola lots will proceed on Monday, October 2 in Belleville for a period of four days.  Matters such as zoning and related planning issues will be dealt with at a second phase of this hearing on a date to be determined in November we established dates to exchange an issues list, witnesses, and so forth, for the St. Ola lots.

Member David Culham, who officially retires from the OMB at the end of June, agreed to conduct the October 2 hearing, something which all parties requested since he is fully cognizant of the issues.

I believe that the interests of both the Limerick Waterways Ratepayers Association and the Township of Limerick were well protected in this settlement.  I also believe that much of the credit for the settlement is a result of the careful work done by Brenda Linington.

Ms. Linington indicated that the Ministry may not be involved in the hearing on the St. Ola lots although they expect to send their planner, Joe Gallivan, to a meeting of experts and he will review all documentation regarding these lots.

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April 2006 UPDATE

April 24, 2006

Hello Friends and Supporters of LWRA,

As you may remember and as we said in our report on the OMB decision dealing with the science and technology septic issues relating to the lots in the Limerick Estates subdivision within 300m of Limerick Lake, we would be back at the OMB in January on planning issues connected to approximately 22 lots (the St. Ola lots) that the developer had also applied to have added to the subdivision (again, lots that they had willing given up in the 1999 settlement.).

We thought that you might like to know the outcome of the January hearings. First, John Sewell had brought forward a motion on behalf of LWRA and the township to challenge the jurisdiction of the OMB to hear the Trident application for the additional lots. His argument was that new amendments to the Planning Act said that if such an application was turned down by the local council (as was done by Hastings County Council), there could no longer be an appeal to the OMB. The OMB ruled against John’s motion on the grounds that that section of the Act only comes into play if the land is designated “urban” in an Official Plan. The Board rejected our argument that this was a “rural cluster” and that the “urban” reference was irrelevant. (The Ministry of Municipal Affairs and Housing put forward similar arguments to ours and both of us had called planners as expert witnesses on the motion.)

One of the problematic things that came out at the hearing in the argument over the Sewell motion was that the definition of “area of settlement” in the Planning Act amendments is very unclear – it says that it means an area of land designated in an official plan for urban uses including…rural clusters, rural settlement areas…. So it combines “urban” and “rural” uses in the same definition which makes it really difficult to know what it was intended to cover.

One of our other problems was that the Official Plan of the County doesn’t designate the Limerick Estates plan of subdivision as “urban” and includes it under the Rural designation. So, in spite of the fact that almost everyone agreed it was a “rural cluster” or “rural settlement area,” that didn’t matter because it wasn’t called “urban” anywhere. As well, the OMB member did not agree that even though in the 88-lot Plan of Subdivision, the 22 St. Ola lots were in a block of land set aside for “open space,” that changing the use of the block from open space to building lots changed the boundary of the “area of settlement.”

Basically, given the amount of interpretation in the questions at stake and the ambiguity in the wording, Mr. Culham had options in the way he could interpret and apply the terms and he chose to go the very cautious and conservative route.

The developer had also applied to have the St. Ola lots “redlined” into the existing plan of subdivision without the need for planning hearings. (“Redlining” for those unfamiliar with the term means just adding lots by redrawing the boundary of the subdivision.) Mr. Culham agreed with our arguments that adding the 22 lots was much more than a minor change to the plan of subdivision and he turned down the application to add them to the lands by “redlining.”

As well, Mr. Culham agreed with our argument that any new hearings on the planning merits relating to the 22 lots should be done on the basis of the new Hastings County Official Plan.  He said definitively that the Clergy principle did not apply in this case because it was clear that in 1999, the OMB had made a final determination on the planning merits of the 88-lot subdivision which they called “good planning.” He pointed out that 88 lots with greater amounts of open space is much different than 145 (now 141) lots with much less open space.

Mr. Culham indicated that there would be a future Board hearing “examining the planning merit” of the 22 lots, based on the provisions of the new county Official Plan. “Such a review of new options must demonstrate why the new proposals in relation to the 22 lots is good planning and in the public interest.”

Before we get to these planning hearings, however, the next thing on our OMB agenda is a motion that was originally brought forward in January by the Ministry of Municipal Affairs and Housing (MAH) but not yet dealt with. The Ministry contends that the witness statement of the main Trident planning expert witness on the St. Ola lots hearing tries to cover issues relating to the lots within the 300m setback and that in light of the November, 2005 OMB decision putting all this area on hold for at least three years, the Board cannot hear this evidence.

It was agreed yesterday that there will be a two-day hearing on the MAH motion in Toronto, hopefully, near the beginning of June. Then there will be a ruling on that motion and then the arrangements will be made for the planning hearings on the St. Ola lots.

You are probably all thinking the same thing that we are --- this will never end!

Thanks again for your interest and support, and please get in touch if you would like more information.

Linda Sheppard

Past President - LWRA

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JANUARY 2006 HEARING UPDATE

As most of you will remember, in the Nov. 30th, 2005 decision of the OMB, the additional 31 lots within 300m of Limerick Lake that the developer of Limerick Lake Estates, Trident Members Inc., wanted to develop were effectively taken off the table for at least 3 years. This was to allow for more testing of the Phosphex septic treatment system that Trident had proposed for these lots.

But, there were some further items still to be argued before the OMB. The hearings on these items took place this past January in Belleville. John Sewell, agent for both LWRA and Limerick Township, put forward a motion arguing that new amendments to the Planning Act, effective Dec., 2003, meant that the OMB no longer should have jurisdiction to hear Trident's case.

The reason is because the Planning Act now says that a developer can no longer appeal to the OMB if a municipality refuses to adopt an amendment to its Offical Plan that either extends the boundary of an existing area of settlement or establishes a new area of settlement. Sewell argued that Trident had applied for just such an amendment and Hastings County Council had turned it down last Aug. Therefore the OMB no longer has jurisdiction. It cannot consider Trident's application for any of the additional 52 lots. The Ministry of Municipal Affairs' lawyer put forward the same argument.

Then, there was a motion by Trident to "red-line" the 21 St. Ola lots which were the other lots they wanted to add back into their 88-lot subdivision. This means that they asked the OMB to change the 88-lot subdivision boundary to include these lots since this was a minor change and then they could proceed to call planning evidence to support developing these lots. Both Sewell and the Ministry opposed this change, arguing that adding 21 lots -- in effect making the 88-lot subdivision 25% larger -- was much more than a minor change and Trident should not be allowed to do this in this way.

LWRA and the Township were assisted in these hearings by the excellent help of planner Peter Josephs who was retained by the Township back in the 1990s when he also opposed this development.  He provided very useful evidence for both motions. 

This is how John Sewell summed up the recent OMB hearing: "These are critical decisions.  If we win the Bill 26 motion [the Planning Act motion], that is an end to the reconsideration of the 1999 decision, although there remain a few matters to be resolved such as the length of time available to Trident to meet the conditions of draft approval from the 1999 settlement. If we lose on the Bill 26 motion, we still may be successful in defeating the “red-lining” motion, which will put an end to worrying about planning evidence for the St. Ola lots. 

 

Given the complicated argument on these motions and the importance of the results, we do not expect to get a decision from the Board until sometime in March."

 

Of course, if we lose on both motions, we could then be faced with another hearing on planning issues related to the 21 St. Ola lots.

 

Further updates will be posted when we receive the OMB decision.

 

Linda Sheppard, Past President

LWRA

 

Limerick Waterways Ratepayers Association - LWRA

c/o Bob Mofford, Secretary

287 LL North Shore,  RR#2

Gilmour, ON   K0L 1W0