Browsing the archives for the Carp River tag.

Illegal Lot Creation?

Green Reality, South March Highlands

The planned 73% increase in the water and sewer rate over the next 10 years so the City can play catch-up with repairs and replacement of crumbling infrastructure is especially in the ironic in the context of the “Choosing our Future” report which advocates strongly for sustainable development.

TFDE

To see just how mis-managed infrastructure is in Ottawa, let’s examine the saga of infrastructure planning in the South March Highlands (SMH) on the west side where it meets the Carp River.

In 2010 the South March Highlands – Carp River Conservation (SMHCRC) non-profit launched a Judicial Review of the Terry Fox Drive Class Environmental Assessment (EA) with the hope the construction of the $48 Million road project subsidized by the Infrastructure Stimulus Fund (ISF) would be better mitigated considering its massive impact on the diverse and unique habitat of the South March Highlands, as well as on the Carp River floodplain.

The judicial panel decided not to examine technical evidence in which they had no expertise, and instead deferred to the Ministry of Environment’s support of the City’s decision not to issue an EA Addendum –  despite significant changes to project and environmental setting that actually reversed the mitigation measures that had been reviewed with and accepted by the public in 2004.

Basically the MoE stated to the Court that the EA Process is a “proponent-driven” process and therefore an Addendum to the Class EA was not required if the proponent didn’t believe an Addendum was required – even if the project’s eventual environmental mitigation is the opposite of what was proposed during the original EA process.

However when we look at just how fiscally responsible the City of Ottawa, as proponent, was we see that $Millions from the ISF program were spent on Terry Fox Drive Extension (TFDE) would have been better directed towards fixing crumbling infrastructure.

For example, in 2010, the City spent $48 M of public funds on a road based on a 2001 population and traffic forecast that was subsequently found by the Auditor General in 2007 to be completely unfounded.

In short, there was no valid economic justification for that spending at all.  Yet at no time in the planning process was Council advised of the need to revisit the economic justification of the TFDE spending.

Floodplain

Having decided to build a road that was not needed, the City continued to spend $Millions acquiring property on which to undertake floodplain compensation work – that could have been avoided in the first place by just keeping the road out of the floodplain in the first place.

When TFDE was first approved by the Region back in 2000, it only skirted the floodplain. It wasn’t until Ottawa City Council approved an Addendum to Class EA in 2004 that the road was shifted further out into the floodplain where it has been constructed with infrastructure money that would have better used to upgrade crumbling infrastructure.

If we are to believe what is written in Committee Reports, a memo  by the Deputy City Manager to the Chair of the City’s Transportation Committee explained to Council was that the westerly shift was to avoid a recently constructed barn valued at $60,000.  This is described in detail on page 34 of the 2007 EA Addendum.

To protect that barn, the developer of the Richardson Subdivision asked that the road be shifted into the floodplain – and agreed that he would be responsible for the extra flood mitigation costs:

Looking at the Richardson Ridge Subdivision, it appears that the developer’s request to move the road into the floodplain has resulted in about an extra 40 units being able to be built.  If these lots are were sold at an average of $500 K each, the developer’s revenue would be increased by about $20 M.

Of course the $60,000 barn will be torn down anyway as it is not shown in the plan of subdivision and is likely to be inconsistent with a suburban housing development.  It isn’t too difficult to imagine that planning staff could have foreseen the fate of the barn!

It is possible that the barn may have been deliberately constructed to justify a westward expansion of the developable land.  Aerial photos published in the Oct 2000 Environmental Study Report for the road shows that there is no barn in the path of the road.

By 2002, aerial photos show that the barn had been built even though the landowner was apparently aware of the planned road.  Appendix A of the 2000 ESR identifies that landowners, including the Richardsons, were directly notified and that they also attended the public workshops for the road.

Property Acquisition

In Ontario, the development of infrastructure in a floodplain requires “floodplain compensation” which involves creating additional flood capacity to make up for what is lost in building the infrastructure.

The 3 property acquisition reports(Broughton, Richardson, Cowick) show that, to avoid the $60 K cost of replacing that barn, the City paid  $1.73 Million just to purchase the property on which it undertook the floodplain compensation on the west side of the Carp River.  Do City managers need remedial training in financial cost/benefit analysis?

On top of the property acquisition costs, there were all of the costs associated with the excavation to compensate for the loss of floodplain storage from all of the fill that had to be placed to create the road embankment.

During the TFDE Judicial Review the City described the extra costs to build a proper road foundation for the road because of the poor soil in the floodplain. It is quite possible that for every dollar spent on purchasing property, there were $2 or $3 more dollars in extra construction costs – all costs that could have been avoided if the road wasn’t built in the floodplain.

According to the committee minutes cited earlier, the landowner agreed to pay the additional costs of shifting the road further into the floodplain.  Since the request to shift the road came from the landowner, they should have been held accountable for 100% of the floodplain compensation costs.

Yet none were assigned because the entire TFDE project was ISF funded by taxpayers at 3 levels of government.  Land acquisition costs are not eligible for that funding, but floodplain compensation costs are.

Even if the floodplain compensation costs were split 50-50 (because some of the original roadway would have impacted the flood fringe), it’s quite possible the developer’s share of costs could have been $2-2.5 Million, or more.

Instead, taxpayers subsidized more than $60,000 in costs for each additional unit of the 40 units the developer could build.  It appears that taxpayers have paid 40x over for the cost of that barn while simultaneously enabling the developer to increase revenue by $20 M!

This lack of fiscal accountability in the City’s planning department is atrocious.  If City management were held accountable by the Mayor for such bad business decisions we wouldn’t be in a situation today where taxes must be increased to pay for crumbling infrastructure.

Lot Creation

Sadly the saga of mismanagement continues and from looking at the City’s zoning webpage, it appears that two new parcels of land were created on the west side of the Carp River floodplain where the City acquired land to undertake the floodplain compensation (these are the parcels of land the City purchased from the Richardson property and from the Richardson-Cowick property).

How could these lots could have been allowed to be created in the floodplain in the first place? Creating lots in the floodplain is clearly inconsistent with the Provincial Policy Statement.

Despite moving the road into the floodplain at the request of the developer, there was absolutely no mention of the need to create lots in the Committee Report for the zoning bylaw for the Richardson Subdivision.

Under Section 50 (3c) it’s possible for the City to acquire property outside of a Plan of Subdivision or Consent process (processes that would at least require some transparent / public process):

“Subdivision control

(3) No person shall convey land by way of a deed or transfer, or grant, assign or exercise a power of appointment with respect to land, or mortgage or charge land, or enter into an agreement of sale and purchase of land or enter into any agreement that has the effect of granting the use of or right in land directly or by entitlement to renewal for a period of twenty-one years or more unless,

(a) the land is described in accordance with and is within a registered plan of subdivision;

(b) the grantor by deed or transfer, the person granting, assigning or exercising a power of appointment, the mortgagor or chargor, the vendor under an agreement of purchase and sale or the grantor of a use of or right in land, as the case may be, does not retain the fee or the equity of redemption in, or a power or right to grant, assign or exercise a power of appointment in respect of, any land abutting the land that is being conveyed or otherwise dealt with other than land that is the whole of one or more lots or blocks within one or more registered plans of subdivision;

(c) the land or any use of or right therein is being acquired or disposed of by Her Majesty in right of Canada, Her Majesty in right of Ontario or by any municipality; “

However before the City can go ahead and create lots in the floodplain (in this case, without a public consultation process), it’s decision has to be in compliance with Section 3.(5) of the Planning Act, which states:

“Policy statements and provincial plans

(5) A decision of the council of a municipality, a local board, a planning board, a minister of the Crown and a ministry, board, commission 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;”

“Section 3.1.2 of the PPS:

3.1.2 Development and site alteration shall not be permitted within:

d) a floodway regardless of whether the area of inundation contains high points of land not subject to flooding.”

Definition of floodway in Provincial Policy Statement:

“for river, stream and small inland lake systems, means the portion of the flood plain where development and site alteration would cause a danger to public health and safety or property damage. Where the one zone concept is applied, the floodway is the entire contiguous flood plain.”

Definition of Development in Provincial Policy Statement:

“Development: means the creation of a new lot, a change in land use, or the construction of buildings and structures, requiring approval under the Planning Act, but does not include:

a) activities that create or maintain infrastructure authorized under an environmental assessment process; “

Misleading or Illegal

According to the property acquisition reports for the Richardson and Richardson-Cowick properties, the City’s Director of Real Estate claims that Public Consultation was completed during the TFDE Class EA process.

Yet there is no basis on which such a claim can be made – as an example, have a look at the City’s study area map for the TFDE Class EA. The location where the lots were created are on the west side of the Carp River that are clearly outside the primary and secondary study areas of the Class E process.

Furthermore, in our Judicial Review, SMHCRC combed through ALL TFDE Class EA materials and nowhere is there any  mention of the need to create those lots – let alone public consultation on them.

This appears to be a serious breach of both municipal process and ethics.

The Planning Act is prescriptive about notification requirements – mail outs to landowners within prescribed distances of applications, posting signs and advertisements about process etc.

The City appears to have created lots in the floodplain without any required process under the Planning Act, with what appears to be a contravention of Section 3 of the Planning Act – seemingly so that taxpayers would effectively subsidize a $60,000 /unit cost to create the 40 units on the Richardson Ridge Subdivision?

Furthermore, it appears that Council was repeatedly misled by staff on the lack of both process, spending impact, and lack of public consultation.

It was only recently that the City advertised a Zoning Bylaw Amendment to change the floodplain overlay on the Richardson Ridge Subdivision and the TFDE floodplain compensation lands – as part of the rezoning associated with the Carp River Restoration Plan:

During the TFDE Judicial Review, the City successfully argued that it did not need to coordinate the floodplain impact assessment of the TFDE with resolution of the Minister’s Order about the Carp River Restoration Plan – yet when the City finally gets around to completing a transparent Planning Act process related to the floodplain compensation – the City decides to lump it in with the Carp River Restoration Plan – as required by the Minister’s Order.

How can both statements be true?

There is no evidence that a Planning Report was ever prepared by a qualified land use planner in support of the lot creation in the floodplain on the Richardson, and Richardson-Cowick property.  Nor was the proper public consultation process followed in accordance with the Planning Act.

In a recent public statement, the Chair of the Planning Committee publicly appealed to developers to be more professional when dealing with the City on Planning Matters.  Why shouldn’t we also expect the planning department act professionally by making sound business decisions, following proscribed municipal process, transparently present cost impacts, and report truthfully to Council and the public at all times?

Why should members of the public believe the contents of Committee Reports, in particular when a memo is written by a Deputy City Manager to the Chair of a Committee in which it is stated that a developer has agreed to certain costs – but there is no disclosure that actually the developer is the beneficiary of $Millions in subsidy and incremental revenues?

Is this the transparent and open government that the citizens of Ottawa deserve?

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You Can’t Eat Money

South March Highlands

Urbandale Protest Demonstration

On January 8, 2011 a public demonstration was held in support of Grandfather William Commanda’s letter of protest to the City of Ottawa.  The 97 year old spiritual Elder for the Algonquin First Nation attended the rally and delivered prayers in 3 languages despite the snowstorm that surrounded us.

Grandfather Albert Dumont opened the proceedings with a prayer for peace and I then spoke the following to the 100+ people in attendence:

Message from South March Highlands – Carp River Conservation Inc.

When people form coalitions so that they can speak louder, it is a sign that their government isn’t listening.

When people take their government to court, it is a sign that their right to fair government was violated.

When people take to the streets in protest, it is a sign that their government is failing them.

We are here to tell our governments that their failure to protect the South March Highlands is irresponsible government!

How is it possible for any responsible government to knowingly allow the destruction of the most bio-diverse area in their city and in their national capital?

We have documented 675 species of life in the South March Highlands and are still discovering more because there are well over 1,000 to be found.

  • Of these no fewer than 20 species are officially designated as species-at-risk of extinction.

So what does our government do?

  • It builds a road that they acknowledge will sever the eco-connectivity of this area, choking off the natural function of wildlife.
  • Just take a look at the Berlin Wall on Terry Fox Drive and you will understand why we needed to appeal our court case.
  • And like a robot, our government continues to allow the ongoing destruction of this great forest with one subdivision after another.

The place where you are standing [Holy Trinity High School in Kanata] was once a natural part of the South March Highlands.  Yet, in spite of 20 years of protest and overwhelming evidence to the contrary, our government has allowed this destruction to proceed because they lack the political will to stop it.

This place wasn’t always called the South March Highlands.

A long time ago, the Anishinabe people saw an island that looked like a great turtle rising from the sea and from that point forward they understood that the turtle was an integral symbol of creation.

10,000 years ago, when the waters of the Champlain Sea receded, this highland area was also a freshwater island surrounded by a salt water sea.

  • There are no fewer than 3 species of turtle among the 20 species at risk in this area.
  • Do you think that this is symbolic of how our modern society has become so disconnected from creation?

We have found evidence that the Anishnabek, who are the ancestors of all the First Nations in eastern Canada and USA, lived here 500 generations ago:

  1. The archaeological survey done by the City for Terry Fox Drive called for a follow-up study that according to the Ministry of Culture was never done.
  2. Just down the street from here on Richardson Ridge, the archaeological survey done by the developer found conclusive evidence of a tool-making site that was estimated to be 10,000 years old.
  3. This study was confirmed by world experts but rejected by the developer who is now in court for not having paid the archaeologist. Meanwhile the area has been clear-cut and blasted to the extent that they had to close Kanata Avenue last fall.

  4. On Huntmar Ridge, last July we reported the finding of another tool-making site that was similar to the one on Richardson Side road.
  5. But the City has yet to find $25 K to hire an archaeologist to investigate because they are too busy wasting millions on Landsdowne Park.

  6. According to Dr. McGhee, former president of the Canadian Archaeological Society, the archaeological survey done for Urbandale’s subdivision was fatally flawed because it failed to adequately consider native use of the area prior to the arrival of Europeans.
  7. Recently we reported finding a site that may be a medicine wheel in the Beaver Pond Forest. As a result of a meeting with native people and Urbandale measures may be taken to safeguard it.

What else has been missed and why has the city not required Urbandale to do a proper study in view of all this overwhelming evidence that this entire area is possibly a national historic site?

The great spiritual elder of the Algonquin, Grandfather William Commanda, reminds us that beyond its archaeological history, the South March Highlands are, and I quote,

[a] living temple, a place of Manitou, a special place of nature
and that this precious reality also demands immediate protection and reverence
.

We have much to learn from the native people to lived here long before us.

I’d like to read some of the words spoken by the Medicine Man Kitchi Makwa / Great Bear to Urbandale this week:

We the Anishnabek Peoples of this Land are very close to Nature, in fact we ARE part of nature.

This vision enables us to live harmoniously with Nature!

We are One with Nature and can only live in Peace when our actions are based on love and compassion for ALL living beings, including Nature!

When we live in this harmony with Nature, we become aware of past and present echoes of the forest.

My heart cries that future generations may not have this opportunity to know this forest.

Sadly, like us, many indigenous people have been recently removed from the energy and heritage of the forest. For many years our society has erased their history, art, and culture to the extent that they are almost invisible within our capital city.

But we represent the new voice of Canada.

  • A voice that says that the protection and preservation of native heritage is important because it strengthens us all and teaches us many things.
  • A voice that says that our society must return to what Grandfather Commanda calls a “sustainable relationship” with all living beings – regardless of colour, creed, and culture, and with respect for all species of life.
  • A voice that says that we too are an integral part of this natural ecosystem. We do not walk on it, we exist within it, and we are only alive because of it.

Today we carry our voices to Urbandale to remind them that we have offered them a responsible way forward in this situation. A way forward that preserves the forest and compensates them fairly. We will remind them that greed is no substitute for responsibility.

I hope that all of you will also individually carry your voices to our government representatives and ask them to join us in this new 21st century of reconciliation with nature. Also to request that native culture and rights be respected and that this forest be protected.

As the native people of this area say:

When the last forest is gone, people will learn that you can’t eat money.

IT’s NOT TOO LATE TO DO THE RIGHT THING!

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Offer to Purchase Sent to Urbandale

South March Highlands

December 30, 2010

Mr. Sachs & Ms. Jarvis,

Since it is now evident that Ottawa City Council is currently unwilling to add any value in protecting the South March Highlands, we are extending this offer to work directly with you in this regard. The South March Highlands – Carp River Conservation Inc. is the legal entity that represents the interests of over 6,000 individuals who are committed to being stewards of Ottawa’s Great Forest – the South March Highlands.

We suspect that you may not have been fully aware of the environmental significance of this area when you originally purchased the lands north of Kizell Wetland and Beaver Pond from Genstar in Sept 2000. We are confident that by working together, we can create a win-win solution to this situation.

By now you are no doubt aware that the South March Highlands is an old-growth forest, home to 20 documented Species-at-Risk, has the highest floristic diversity and densest bio-diversity in Ottawa, and contains several archaeological sites that are twice the age of the Egyptian pyramids. You are also aware that there is substantial community resistance to your development plans and that Algonquin spiritual leaders consider this area to be ancient, unique, and a very special sacred space.

According to the Nature Conservancy of Canada, unlike the tax provisions for donating land directly to a municipality, an individual or corporation that donates land to a charitable land trust may obtain a tax credit equal to 100% of the market value of that land.

We are willing to establish a charity for that purpose if you are willing to donate all remaining undeveloped land that you own in the South March Highlands. At the point when you are ready to wind up the corporate operation of KNL, any remaining tax credit may be fully monetized by selling the corporation to a third party, such as an income trust looking to shelter earnings as they roll-over into a corporate entity.

Furthermore, we propose to name the resulting park, the “Urbandale Conservation Forest” (or a similar name of your choosing) so that you may leverage significant, positive, and very green, branding benefits in recognition of your generosity. Our marketing experts will work with you on signage and branding opportunities accordingly. We will also support you in a media campaign to ensure that branding benefits are maximized. When leveraged into our existing Stewardship Plan for the area, which emphasizes eco-tourism involving an audience measured in millions of people, we believe that this will be of significant branding value to you.

Should you wish to monetize some of your current investment now, we are also prepared to optionally enter into a long-term purchase agreement for “Phase 9.” This would enable you to obtain a tax credit for donating land west of Goulborne Forced Road (GFR) as described above, as well as receive annual payments for the land east of GFR and north of Beaver Pond.

In this scenario, we would establish the charity so that it can receive community donations, and pursuant to the 40% Agreement which runs on title with the land, purchase the 60% of developable land at fair market value and the 40% at no cost (as you did when you purchased the lands). You would facilitate this purchase via a vendor-take-back mortgage at 6% over 30 years.

Since some lead time would be necessary to establish the cash flow for the charity, depending on the agreed purchase price, the first couple of annual payments may need to be balloon payments. Nonetheless, since city records show the assessed value of the land for tax purposes is only $6 million, it is evident that KNL paid less than that for that land and you would receive more than double your investment plus the 6% payout.

If you wish to explore this option, we can provide further details of how we will raise the funds for purchase and we can discuss the methodology for fair market valuation.

We believe that the above represents a fair outcome for you in what otherwise is an increasingly difficult situation. We hope that in considering this offer, you reflect on the merits of taking a long-term view of the benefits from enhancing your eco-stature and brand over a status quo course of action that appears likely to significantly damage it. We believe that you will conclude that it is better business to work with a community than to continue to fight against it and we trust that, together, we can both start the new year on a positive note.

Sincerely,

Paul Renaud
South March Highlands – Carp River Conservation Inc.

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Understanding The Terry Fox Drive Decisions

South March Highlands

On Dec 14, 2010 the Ontario Divisional Court gave judgement  in a judicial review of the Terry Fox Drive Extension environmental assessment process.  This decision, for which leave to appeal may be sought, appears to be precedent-setting and has significant implications in Ontario.

1. Despite the City’s attempt to challenge the standing of the South March Highlands – Carp River Conservation Inc.(SMHCRC), the court ruled that the SMHCRC:

(a) has a genuine interest in the matter;

(b) that there is a serious issue to be tried; and

(c) there is no other reasonable and effective manner for the issue to be resolved.

This appears to be an important precedent that will assist other public interest groups assure their standing before the courts.

2. Despite the City’s assertion that the Minister of the Environment as well as the City of Ottawa should have been a party to the case, the court ruled that the City on its own exercised a statutory power of decision that was subject to judicial review.

This aspect of the decision appears to indicate that municipalities will be held accountable for the effect of their own decisions, notwithstanding the involvement of other authorities.

3. Despite the City’s assertion to the contrary, the City’s decision to proceed with construction of the road is a statutory power of decision and thus subject to review.  Furthermore, the City’s decision to proceed without filing an Addendum that was available for public review has broad public interest implications because of the lack of opportunity for public review.

This appears to indicate that municipalities who decide to proceed with projects without filing an Addendum that was available for public review are subject to judicial review by the courts.

4. Despite the City’s assertion that the situation was moot because the road was near completion, the court agreed that it is not too late to address items such as whether the environmental mitigation is appropriate.

This means that it is not too late to do the right thing.

5. With regard to whether the City of Ottawa was required to file an Environmental Assessment (EA) Addendum the court determined that it could not conclude that the City’s decision to proceed without filing an Addendum was unreasonable.

This aspect of the decision appears to raise a number of questions which require careful consideration by members of a broad community of interest. 

In summary the SMHCRC successfully defended itself on several legal challenges made by the City of Ottawa on questions of legal standing, applicability, mootness, and the extent to which the City was subject to judicial review. 

The SMHCRC now has 15 days to consider whether it should request leave to appeal on the remaining aspects of the decision.

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Where are the Leaders?

South March Highlands

Shame

South March Highlands – Carp River Conservation Inc. (SMHCRC) – the formal entity that is otherwise known as the Coalition to Protect the South March Highlands has done what no federal, provincial, or municipal politician has managed to do – propose a fair and concrete plan for an alternative outcome.

One might think that the politicians might now rush in with great relief to join the Public-Public Partnership that the SMHCRC is proposing.  They all recognize privately that the situation is a mess because of bad planning decisions in the past; decisions made in ignorance of the significance of the area.  They all admit that these decisions would not be made today and no one wants to try to change past to solve the problem. 

Fortunately they don’t have to.  The SMHCRC’s proposal deals with the current reality and does not try to change the mistakes of the past.  It’s an agenda for moving forward, not backward, and towards an alternative development outcome that preserves and leverages the value of green infrastructure.

But yet our elected politicians feel no accountability or responsibility and appear to be devoid of moral imperative.  

Under Ottawa’s Official Plan, the city is responsible for acquiring land as important as the South March Highlands whenever the opportunity arises.  Yet there are no funds allocated for that purpose.  Shame.

In 2010, the City spent $5 B on capital projects.  This includes $1.7 B for road infrastructure and $ 183M for economic development projects.  Only $179 M of capital spending in the $1.7 B is offset by the federal Infrastructure Stimulus fund (which in combination with the province funds 2/3 of that total). 

Yet there are zero dollars available for acquiring green infrastructure and few of our politicians see the need for allocating any!  Shame.

Meanwhile the provincial politicians stand by while environmental standards are ignored and precious cultural heritage is destroyed.  Shame.

Federal politicians such as Gordon O’Connor, who managed to extend spending on $48 Billion of black infrastructure funding, cannot see how the $20 M SMHCRC proposal for green infrastructure qualifies for funding – even though it will meet the objective of the funding program by creating jobs and improving air and water quality. 

Evidently you have to pour concrete to qualify for green infrastructure funding. Shame.

Public Service?

Tim Marc, a city lawyer, represented the public at the OMB meeting organized by Urbandale on Nov 23.  This is the same Tim Marc who told Community Association Presidents and the SMHCRC in July that “The trees are coming down – no matter what”. 

Is it surprising that the result of the meeting was that OMB told Urbandale they cut down trees equal to 2 years supply of housing inventory?  One can only guess how vigorously Mr. Marc represented the public interest at that meeting. 

It is worth observing that the city’s legal department has had a very close relationship with developers over the years.  Not surprising since they work with developers on a daily basis – on both sides of the legal table. 

What is surprising is that the former city lawyer for the Regional Municipality of Ottawa Carleton now works for a developer, presumably to supplement his meagre city pension.  What does this say about the lack of conditions for accepting a public pension?  Why should we hold Cesaers wife to a higher standard of ethics than our public servants?

City staff originally estimated that fair market value of unserviced developable land inside the urban boundary is $210 K / acre which would put the acquisition of the Beaver Pond Forest at approximately $13 M.  Subsequently staff hired a consultant to arrive at a 3rd party valuation based on similar recent transactions.  That valuation is not far off of the staff estimate.

Yet staff are inexplicably refusing to release the 3rd party market evaluation they contracted for in October – not even to city council.  It is difficult to see this behaviour as consistent with public service.  Perhaps like the City police, they appear to have forgotten that they work for the public.

Win-Lose

Why does Urbandale appear to lack any moral responsibility for not developing the most ecologically sensitive lands in Ottawa?  A charitable view might be that they were unaware of the significance of the area when they purchased it.  This establishes a case for paying them fair market value for leaving it undisturbed.  However, Urbandale’s recent behaviour raises questions in the minds of some about their sincerity as a responsible developer.

According to Marianne Wilkinson, Urbandale recently decided to unilaterally reduce the 12 acre swap to 10 acres and to also dictate which 10 acres would be preserved in such a manner as to optimize their subdivision north of the Beaver Pond.  Then Urbandale pulled the land swap off of the table so that they can be paid more during an expropriation.

Many responsible businesses would attempt to reach a win-win situation in a situation like this.  Does Urbandale believe that win-lose deals with the community are best for maintaining a healthy public image?

Worse, Urbandale appears to have no interest in negotiating in good faith on selling the land to the City/Community and are now alledgedly asking for $40 M in compensation – a price increase that includes being paid for 40% land that they paid nothing for because they cannot develop it.   Is this more evidence of a win-lose mindset at Urbandale?

This is the same developer who is paying property taxes on a $6 M appraisal (which is presumably close to what they bought the land for in Sept 2000).  Do they see no shame in this? 

Meanwhile the public and other buisnesses are expected to pay urban property taxes at close to fair market value.  The city could easily find the funds for acquiring natural heritage land if developers paid their fair share of taxes!

Urbandale has also hired a lobbyist who has met with most city councillors, except Marianne Wilkinson, to ensure that they understand the developer’s position.  Some of the new councillors, even experienced ones such as Peter Clark, have declined to meet with representatives of the SMHCRC as a result.  So much for the city’s public participation policy. 

It does not appear that Jim Watson’s administration is off to the fresh start that everyone who voted for him hoped for.  Developers evidently still think that they run City Hall and that the public purse exists for their benefit.

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Terry Fox Drive & South March Highlands Overview

South March Highlands

This posting uses tabs.  Be sure to click on all of them to see the whole article.

SMH

The South March Highlands (SMH) has been described as a “wild island” of natural landscape within the City of Ottawa.

No other major city in the world  literally includes a vigorous old growth forest with as much bio-diversity that includes endangered species.  The closest is Vancouver’s Stanley Park which is 1/3 the size and contains ½ the variety of vascular plants compared to the SMH.

The SMH  is rated as a Provincially Significant Area of Natural and Scientific Interest (ANSI) for both its Life Science value (895 hectares) and is also ANSI rated for its unique Wetland Complex (114 hectares).  A double rating is very rare in Ontario and speaks to the ecological significance of the area to the Province.

SMH has been rated by scientists as the “most important reservoir of  ecological potential” in the City of Ottawa because it has the densest bio-diversity of any area in Ottawa and provides resources for the renewal of depleted natural areas elsewhere.  There are 10 distinct habitats within the SMH that are home to  17 species-at-risk (SAR) and the largest deer wintering yard (925 hectares) in the City of Ottawa.

The hydrology of SMH is integral to both the Carp River as well as to the Shirley’s Bay wetland complex in the Greenbelt.  Two subwatersheds that have headwaters in SMH feed both ends of Shirley’sBay wetlands in the National Capital Greenbelt.

The SMH is geologically unique in the City of Ottawa and supports over 440 species of vegetation, including: 64 Regionally Significant, 50 Locally Significant, 6 Provincially Rare, and 2 Nationally Endangered species of vascular plant life.  This habitat is crucial for 164 species of bird, including 136 species that breed in this area, 9 bird SAR, and the 30 Regionally Significant species of bird that inhabit this ecosystem.

Yet, even though the Regional and City Official Plans have officially “protected” the SMH since 1972, less than 1/3 of the original area remains. 

TFD 2000-2005 

In 2000 the City prepared an Environmental Study Report (ESR) that recommended that  Terry Fox Drive (TFD) be routed through the centre of this fragile ecosystem.  This choice had the highest ecological impact of the 4 alternative routes considered in the study and completely ignored the results of the 3 public criteria workshops that consistently rated ecological impact as the most important evaluation criteria for the City to use. 

Two of the four reasons for choosing the environmentally worst option were to mitigate the impact that TFD would have on future development within the area – development that was not approved at that time, and on lands that were not zoned for urban expansion at that time.

In 2004, at the request of residents, a Special Study of the NEA zoning was conducted that improved the protective zoning of lands south of the proposed road.  However, later that year an EA Addendum was prepared that was used to justify an expansion of the urban boundary. 

An EA Addendum is required whenever there has been a material change to either the planning or environmental context for a project.  The Notice of Completion was filed for this Addendum on January 2005.  A Notice of Completion creates the only opportunity for interested parties to formally intervene in the EA process and they only have 30 days to file a formal appeal (called a Part II Order Request).

A Part II Order Request was filed by a land developer that was not resolved until January 2007 after a private deal was struck with the City that relocated the Goulbourn Forced Road (GFR) & TFD intersection so that it would provide easier access within the subdivision that the developer was planning.  Note that a  subdivision plan had not received even a draft approval at that point in time. 

This deal had the effect that GFR could no longer serve as a conduit for south bound traffic along 2nd Line Road (part of the original justification for the TFD extension).  The City has adopted the position that changing the intersection is not a material change to the EA Addendum even though GFR is the boundary of the project scoped by the 2005 EA Addendum.

Meanwhile, the developers (KNL/Urbandale) challenged  the 2004 NEA zoning and obtained an Ontario Municipal Board (OMB) ruling in 2005 that approved a draft plan of subdivision for development within half of the SMH. 

Neither of the 2000 or 2005 “environmental” assessments, nor the OMB, addressed the ecological impact of both the road and urban development.  The Special Study’s scope was restricted by the City to a narrow area and did not examine the holistic impact of road and urban development on the SMH.

TFD 2006-2010

In 2006, the City of Ottawa made amendments to the Official Plan that effectively creates the TFD roadway as the outer edge of the western urban boundary. Inside the curve of TFD, areas previously identified as Natural Environment Area were changed to General Urban Area or to Urban Natural Feature. In effect most of the forested area was re-zoned to general urban use inside the arc of TDFE, while outside the roadway arc lands remained zoned as conservation forest, agricultural or greenbelt rural. 

In 2007, after public challenge, the OMB upheld the change to urban boundary.  The City then prepared another EA Addendum in 2007 but has never filed Notice of Completion for it.   In order to accelerate qualification for federal Infrastructure Funding, the City adopted the position that it did not need to complete the 2007 EA Addendum even though there have been two OMB rulings affecting zoning since 2005 Notice of Completion.

In 2007, Ontario became the leading jurisdiction in North America for SAR protection when it passed the Endangered Species Act (ESA).  Even though there is no impact analysis on SAR  in any of the 2000 ESR, 2005 EA Addendum, or the unfiled 2007 EA Addendum, the City has taken the position that the passage of ESA does not constitute a material change to the environmental planning context. 

The unpublished EA Addendum in 2007 provided for changes to rail-grade separation.  But  when the City accelerated the project for 2010 construction, it decided to incorporate the design for a raised rail crossing but not implement the bridge until later.   Use of the raised-crossing design  with level-crossing implementation will not only violate Transport Canada regulations for train line-of-sight safety, but also pose serious risks to human safety.  Without public review, there is no opportunity to ensure the safety of this rail crossing.

In 2008, the Minister of Environment (MoE) issued an order setting conditions regarding the approval of the Carp River Restoration Plan (CRRP), 1 km of which overlaps with, and is hydraulically interconnected to the management of drainage for TFD.  In 2009, flooding in the Carp River watershed affected 1500 homes. 

According to the 2005 EA, TFD will impact the floodplain storage area by over 45,000 cubic metres – significantly exacerbating the risk of flooding since the impact of the road was analyzed using an assumption that peak flows would be 30- 40% less than what it is now understood to be.

According to the 2009 TFD Storm Water and Floodplain Management Report, the construction of TFD “directly impacts the Carp River floodplain”. 

In 2010, as a result of the discovery of questionable parameters used by the City for hydraulic modeling of the Carp River flood levels, the MoE required that CRRP be regulated as a sewage works requiring approval under the Ontario Water Resources Act. 

Yet, even though there is a 1km overlap between TFD and the CRRP, and even though it is now known that the storm culverts planned for TFD are insufficient for the task, there has been no re-examination of the design impact of TFD storm water management on the setting of Carp River grades.

In 2010, to qualify for federal funding, the City completed two Canada Environmental Assessment Agency (CEAA) Screening Studies for different parts of TFD that cross through the SMH.  The City subdivided the project into two parts (A & B) so that they could meet federal deadlines for approvals for Infrastructure Funds. 

Despite the fact that both the content and depth of these CEAA studies are larger than the original Provincial EAs, the City chose to perform those studies without public review and input.  

 

Mitigation Denial

The City’s CEAA studies rely heavily on environmental mitigation plans for which there has been minimal to no scientific basis. 

  • Eco-passageways proposed as mitigation for turtle habitat fragmentation are regarded as experimental by the scientific community and there is no scientific evidence that they will even be used by turtles.  
  • The size and location of eco-passageways were determined on the basis of least project cost and a 3-month long winter study of wildlife movement (when many mammals and all amphibians and reptiles are hibernating). 
  • Vegetation studies have been piece meal and have never holistically examined the entire SMH context. 
  • Herpetofauna (reptile & amphibian) studies for the road were based on a random-walk that only conducted a single sample of the area, except for the salamander study which was required to be performed in greater depth by the CEAA. 
  • Fisheries studies have been cursory, never exceeding 2 days in length. 
  • Despite the fact that Blanding’s turtle, a SAR, has been repeatedly observed in SMH since at least 1991, there has never been a radio-telemetry study of their movement. 
  • Even though the Monarch Butterfly, a SAR, has been observed in SMH there has never been an insect study.

The Part B CEAA Study contains material changes to the planned re-alignment of Shirley’s Brook.  Over the past 10 years, 5 different re-alignments of Shirley’s Brook (depending on which EA is referenced) have been proposed – even though previous studies determined that re-habilitation of the brook was not necessary.  None of these changes examined the collateral impact on drainage and floodplain requirements, nor did they examine the collateral impact on SAR.

The fisheries impact analysis presented in the CEAA Part B Study conveniently omits the presence of a SAR, Bridle Shiner, at the location impacted by the various re-alignments of Shirley’s Brook.   The effect of omitting this information results in a material reduction in the risk assessment for fish habitat. 

To-date the Dept of Fisheries and Oceans has declined to revisit their approval of this project because Bridle Shiner isn’t listed for the SMH in their SAR database. Yet separate studies conducted by the City of Ottawa in each of  1998, 1999, and 2000 confirm the presence of Bridle Shiner in SMH.

Meanwhile the City, Ontario MNR, and Environment Canada continue to ignore the uncharacteristic and increasingly blunt warnings from scientists about the serious fragmentation of habitat caused by TFD. 

  • The 2004 Special Study determined that the extension of TFD will sever the eco-connectivity of the SMH to the extent that it is called a “Berlin Wall” by Dan Brunton, the foremost scientific authority on the area.  
  • The leading turtle scientist in Canada, Ron Brooks, has declared that, regardless of the proposed mitigation measures, building the road will eradicate the entire population of Blanding’s turtle
  • The City of Ottawa’s expert Forest and Greenspace Advisory Committee passed a unanimous resolution expressing “grave concerns about the ecological damage caused by the TFD extension”, denouncing the proposed mitigation measures as seriously inadequate and expressing concern over the failure of the City to protect the area. 
  • The Ottawa Field Naturalists, Canadian Bio-Diversity Institute, Greenbelt Coalition, Riverkeeper, Ecology Ottawa, Sierra Club, Save Our Greenspace, and several other ecological and community groups have endorsed a statement that the road should be abandoned.

No Reason

The justification for the road evaporated with the tech bubble in 2001. 

  • The City’s Auditor General in 2007 found that the population projections used to justify it and several other projects were unrealistic and unreasonable since actual growth has been 80% less than forecasted. 
  • City Management agreed with the AG’s findings and undertook to review all existing growth-related plans and programs. 
  • In 2008 the City reduced the forecast in the Transportation Master Plan but failed to update the TFD traffic study (used to justify the increase in scope of the project in the 2005 EA). 
  • The City has never obtained Council approval to continue with a project that no longer fills an economic need. 
  • The City’s Transportation Master Plan, 2008, continues to assert without justification that the rationale for the TFD expansion project is that it “Accommodates the vehicular capacity deficiencies for growth areas in Kanata“.

Meanwhile, in 2010 another developer (Richcraft) as applied to the OMB to have the lands outside of the arc of TFD zoned for urban development – yet again using the road to justify the push of the urban boundary westward.  This application is currently being reviewed by the OMB and is opposed by community and ecological groups.

The Municipal Class EA Process is unambiguous in requiring that an EA Addendum must be prepared whenever there has been a 5-year lapse of time between filing the Notice of Completion and the commencement of construction.  Notice of Completion for the 2005 EA was filed January, 2005 and project construction for Parts A & B did not commence until April 2010. 

The City holds the position that the 5-year limit applies only to the 2000 ESR for which construction started in 2003 south of the area scoped in the 2005 EA Addendum.  This position conveniently ignores the fact that, by definition, a subsequent EA Addendum represents a material change in scope to the project.  To assert that the 2005 EA Addendum does not reset the lapse-of-time clock defies any reasonable interpretation of Ontario’s Environmental Assessment process.

Ontario’s MoE staff have concluded that, under the Municipal Class EA Process, it is up to the proponent to decide whether an EA Addendum is necessary.  Consequently, the MoE has to-date declined to require the City to update its 2005 EA. 

Ontario’s Environmental Bill of Rights (EBR) provides that Ontario residents can expect that government ministries will protect their environmental rights.  The responsibilities of each Ministry in this regard are specified in a Statement of Environmental Values.

The MoE’s reluctance to require the City to update its 2005 EA appears to be in contravention of that Ministry’s Statement of Environmental Values that states, in part, “The ministry works to protect, restore and enhance the natural environment by: Undertaking compliance and enforcement actions to ensure consistency with environmental laws

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