Browsing the archives for the Proponent 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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The Terry Fox Clown Show

South March Highlands

As described in a prior post, the MCEA process in Ontario is “proponent-driven”.  The City of Ottawa evidently interprets this as meaning that they can get away with just about anything as long as they go through the motions of consulting with MNR, MoE, and CEAA. 

None of those “authorities” have actually any authority to dictate to the City any standard of compliance.  Meanwhile the city’s project staff can claim to have the “approval” of those same authorities as they merrily go about making a mockery of the process.

Consider the following timeline of “compliance” by the Terry Fox Drive Extension project:

  1. The City conducts public hearings, as required by the MCEA when preparing the 2000 EA, to obtain input on criteria to be used to evaluate alternative alignments for the road. 
    • A total of 3 workshops were conducted, resulting in unanimous agreement by residents that the natural environment was top priority (this is well documented in the 2000 EA Appendices). 
    • Project staff then proceed to ignore this feedback by not applying any criteria priority weights when evaluating the alternatives (clearly evident from reading the 2000 EA). 
    • The result is selection of the alternative that, by their own analysis, was rated by project planners as 5x worse for the natural environment than the most eco-friendly alternative. 
    • Does compliance with the process mean only lip-service to it?
  2. The traffic studyin the 2000 EA that  justify the traffic volumes for the road double counts traffic running along March road 3x.
    • It also counts traffic from subdivisions that were not even approved at the time that the traffic study was performed. 
    • In fact those subdivisions were not approved by the OMB until 5 years later!
    • How is the use of inflated traffic volumes compliant with MCEA process?
  3. In calculating the costs for the 4 different alignments considered for the route that the road should take, the cost of upgrading Goulbourn Forced Road (GFR) was applied against the eco-friendly alternative routes, but not against the alternative recommended by staff. 
    • The result was that the recommended alternative (carving out an entirely new road) is claimed by staff to be $4 M less expensive than the shorter route of upgrading an existing road!  As if. 
    • The cost of the GFR upgrade was also accurately costed to be within $1 M of today’s cost, but the cost of the recommended alternative was only $13 M in 2000 as compared to today’s cost of $47 M.  
    • Even at $47 M, this cost does not include future development of more lanes, a railway bridge, and several other expensive features.
    • How is fiscal manipulation and under-costing compliant with any process?
  4. In presenting the recommended alignment to the Transportation Committee in the fall of 2000, the City minutes reveal that there is no mention of the fact that the recommendation was in conflict with the highest rated priority expressed by residents.
    • Is this a transparent process as required by the MCEA or as expected by City Council?
  5. One of the reasons given in 2000 for the recommended alignment was that other alignments would split communities that had not been approved yet!
    • No consideration was given to the fact that the recommeded alignment would split a conservation forest in two.
    • The lands for the future development were not even rezoned as urban use for 5 years after the 2000 EA was issued.
    • Yet the westernmost road alignment was used to justify an expansion of the urban boundary in 2004.
    • How is using an EA to justify future development compliant with the EAA?
  6. The traffic study updated in the 2004 EA Addendum uses population projections  that are wildly optimistic.  They forcast that population growth will double in Kanata by 1996.
    • Yet census data reveals that population growth in Kanata from 2000 to 2006 was actually only 18%.
    • How can the road be justified based on this and why does this material fact not require a new EA Addendum?
  7. After completing a special study in March 2004 of the area caused by the shift in urban boundary arising from the 2000 EA recommended alignment, none of Daniel Brunton’s findings regarding the presence of significant species found in the area appears in the 2005 EA Addendum.
    • How is the documentation of 7 distinct habitats and the discovery of 268 (including 4 regionally rare and 12 Regionally Uncommon) native species of vascular plant, 6 Regionally Significant birds (including 1 one now on the SARO list), as well as the observation of Blanding’s and Snapping turtles not relevant to the EA Addendum?
  8. After approval of the 2005 EA Addendum by City Council in Oct 2004 (containing only a 400m diversion of Shirley’s Brook), but prior to filing the notice of completion, project staff “slipped in” a 1370 m diversion (project staff used those very words to describe this to a City Advisory Committee). 
    • However the document did not contain the costs for the larger diversion, nor an impact assessment of it, as required by MCEA process. 
    • Is that an example of EA process compliance?
  9. Despite moving a critical intersection with GFR 3 times from the original plan in 2000, the City maintains that there is no need to file a Notice of Completion for the 2007 EA Addendum because there was no change to the planning context. 
    • So why did they prepare the 2007 version of the EA Addendum at all? 
    • And if intersection location is not important to the process context, why was it the objective of a Part II Order request filed by a landowner pursuant to the 2005 Notice of Completion? 
    • It was evidently important enough to justify a negotiated change the the EA Addendum at that time.
  10. Despite there being a change to the urban boundary as a result of an OMB hearing in 2005, the City maintains that there is no need to file a Notice of Completion for the 2007 EA Addendum because there was no change to the planning context. 
    • If an OMB ruling does not change the planning context for a municipality what does?
  11. Despite the introduction of the SAR acts both federally and provincially after the only Notice of Completion filed by the City in 2005, the City maintains that there isn’t sufficient change to the environmental context to warrant a revised addendum. 
    • If the passage of environmental legislation at both federal and provincial doesn’t affect the sensitivity analysis of an EA what does?
    • Given that, as a result of that legislation, there are now 17 identifiable species-at-risk in the scope of the project where previously there were none flagged, how is that not a material change to the environmental context?
  12. Notwithstanding the fact that the 2000 EA documents the presence of Bridal Shiner in Shirley’s Brook, a SAR listed both in SARA and SARO, project staff conveniently omit this critical information in their application for DFO approval. 
    • How is that compliance with CEAA process requirements to disclose the presence of all species-at-risk?
  13. Notwithstanding an Ontario-Canada agreement (2004) on the coordination of EAs that requires the proponent to follow an integrated process having a single body of documentation, the project staff chop the provincial EA into two parts and performs 2 separate additional EAs for the sole purpose of obtaining Federal approval (as documented in a memo from the General Manager of Infrastructure Projects to City Council). 
    • Is this in any way considered process compliance?
  14. Despite having not really started the part B project until April 6, 2010 (as stated by the General Manager for Infrastructure Planningin his memo to Council in April) project staff now maintain that they started part B in 2003 based on a technicality (amounting to the installation of a few hydro poles) so that they can avoid the 5-year lapse of time deadline imposed by the MCEA. 
    • Is that really in the spirit of process compliance?
  15. This technicality claimed by the City actuallyoccured a full year before the scope of the project was defined and approved by City Council! 
    • That is because the 2004 EA Addendum moved the intersection where the “start of work” was supposed to have occured.
    • How can construction have started a full year before the project was even defined, let alone approved by City Council?
  16. City Council minutes, April 6, 2010,  describe that the General Manager for Infrastructure Planning telling council that the official start of Part A was Feb 16, 2010 and that the tender for Part B was to close April 6, 2010.
    • How can the project staff claim that the start of the project was earlier if the General Manager was telling the truth to City Council?
  17. Now that project staff realize that their failure to adequately plan for the 1370 m diversion of Shirley’s Brook may be grounds for a judicial review causing a halt to the project, they have now changed the impact to a 250 m diversion and still have no plans to issue an EA Addendum reflecting the scope change.
    • The MCEA requires that all changes to project impacts be documented (not just increases). 
    • At a minimum the staff should publish their evaluation of how the 250m alternative is now sufficient when for years they were convinced that nothing less than a 1370m diversion would suffice.
    • So how can the staff claim to be running a compliant process?
  18. At the OFGAC meeting April 26, the project staff now state that Bridle Shiner were found in Watts Creek near the Beaverpond and Kizell Pond and that none were found in Shirley’s Brook.
    • Yet the 2000 EA presents a table that clearly indicates that none were found in the Beaverpond and Kizell Pond and that 4 were positively identified in Shirley’s Brook.
    • Is misleading a City Advisory Committee within anyone’s definition of an acceptable process?
  19. A reveiw of the 1999 Subwatershed study reveals that Bridle Shiner were reported in both Shirley’s Brook as well as in the Beaverpond an Kizzell Pond!
    • Was this information suppressed in the 2000 EA so that re-zoning for development could occur in the Beaverpond area?
    • Why did project staff omit this information when submitting their Screening Study to the federal Department of Fisheries & Oceans (DFO)?
    • Is suppression of observations of a species-at-risk compliant with the CEAA process?
  20. The CEAA EA for Part B of the road shows that a level grade is planned for the railway crossing at TFD. 
    • Yet the 2005 EA Addendum was prepared on the basis of a raised overpass crossing.
    • How is this change in scope not grounds for another EA Addendum?
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Harper Owes Us Minimum EA Standards

Canadian Politics, Legislative Gaps

The changes to the Canadian Environmental Assessment Act (CEAA)  proposed by Harper will withdraw or limit the Federal government Canadian Environmental Assessment Agency from mandating or participating in a wide range of Environmental Assessments (EA).

Since the federal government will not require EAs on a broader range of projects, this creates a vacume of responsibility that effectively hands over more responsibility to the provinces for assuring that EAs are actually done.

While we should question the wisdom of a federal retreat on EAs, we must absolutely insist that if the government wants to retreat, then they must ensure that a higher minimum standard is in place to be enforced by other levels or branches of government.

There are many holes in the current set of provincial standards as is well evidenced by the current Terry Fox Road fiasco in Ottawa.

For example, current code of conduct for EAs:

  1. Do not require species impact assessment to be performed when species-at-risk are threatened by a proponent of a project.
  2. Do not identify hard minimium criteria for when mitigation alternatives must be considered by a proponent.
  3. Do not require that effectiveness assessment be performed for proposed mitigation measures when the are intended to protect endangered species.
  4. Do not require a proponent to specifically address the issues raised by public consultation – they only require that public consultation occurs.
  5. Do not provide a minimum standard of practice to be used when evaluating alternatives. For example, there is no requirement to prioritize criteria nor is there a required code of practice for evaluating alternatives.
  6. Do not identify hard criteria to guide the selection of scope for an EA. Existing guidance varies by province and uses woolly terms such as “project complexity” which is to be interpreted solely by the proponent.
  7. Do not require minimum criteria to ensure provincial oversight of the EA process. The Class EA process in Ontario, for example, is a proponent-driven process with little involvement from provincial authorities to ensure that it is properly completed.
  8. Do not identify hard criteria for determining when an EA Addendum is required due to changing project circumstances. As an example, the City of Ottawa took the position that it did not need to file an EA Addendum even though it’s project planned to divert the only tributary that drains a sub-watershed.
  9. Do not require proponents to publish and entertain feedback on planned environmental measures.
  10. Do not provide a basis for appeal after completion of the EA process when new information arises that contradicts the assumptions made during an EA. For example, a poorly executed study may fail to identify species-at-risk during the EA process. Subsequent discovery should be basis for appeal.

There are many, many other improvents that can be made to the EA process. If Harper wants to retreat, then he should strike a royal commission to assemble minimum standards to be left in his wake.

Please post your own suggestions for minimum EA standards.

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