GGH Growth Plan Amendment 1 Release Anticipated
Novae Res Urbis, Vol. 15, No.3, GTA Edition By Kristine Janzen
Simcoe area planning and development stakeholders are anticipating the release of Amendment 1 to the Provincial Growth Plan for the Greater Golden Horseshoe tomorrow by infrastructure minister Bob Chiarelli. The technical briefing and luncheon is to take place at the Nottawasaga Inn Resort and Conference Centre.
The proposed amendment was released by the province in October 2010. It focused on identifying urban nodes in Simcoe County and in Barrie and Orillia where growth and intensifi cation should be directed. The amendment established population and employment growth allocations for nodes and other serviced settlement areas, as well as a process to assess the oversupply of land available for development. It also identified strategic employment areas along the Highway 400 corridor.
On November 1, 2011 the provincial development facilitator completed a comprehensive process, carrying out additional consultations with municipalities, and provided recommendations to the infrastructure minister.
While the province has not yet released any details of the final amendment or the provincial development facilitator’s report, some Simcoe area politicians are hopeful the results of several years of planning and consultation will have positive results.
“We are eager to see what the province has come up with. They’ve been tight-lipped on details,” commented Springwater Township mayor Linda Collins. The Minister of Municipal Affairs and Housing appealed the township’s Midhurst Secondary Plan to the Ontario Municipal Board last fall after it was adopted by Simcoe County, citing inconsistencies with the Provincial Policy Statement and Growth Plan for the Greater Golden Horseshoe.
Anticipating the release of the amendment, a letter from Chiarelli was sent to stakeholders at the end of December announcing completion of the provincial development facilitator’s work and issuing an invitation to tomorrow’s event.
“After an extensive consultation process on Proposed Amendment 1 to the Growth Plan for the Greater Golden Horseshoe and some great work by the provincial development facilitator, the province has developed a shared vision for sustainable growth in the Simcoe Area. This vision supports job creation, increases planning certainty, and improves quality of life while focusing growth in existing communities and protecting farmland and green spaces. The path forward must now be the result of strong partnership and continued dialogue,” wrote Minister Chiarelli in a December 23, 2011 letter to stakeholders regarding tomorrow’s event.
“I believe that our “made-in-Simcoe” approach will allow Simcoe municipalities, Barrie and Orillia to approve development that makes sense for their communities, protects the natural environment, safeguards the water quality of Lake Simcoe and supports local agriculture. I look forward to sharing this approach with you,” wrote Chiarelli.
Meanwhile, the Town of Innisfi l is hopeful its suggestions, not included in the proposed amendment, will be recognized in the new policy. It proposes an urban node designation for Alcona, alternative intensifi cation target of 23 per cent and a new policy to recognize the importance of employment areas along the Highway 400 corridor beyond the 2031 planning horizon.
“If we were given that [urban node] designation [in Alcona], we would continue to look for more ways to become more urban and more multi-storey. Obviously, if [the province doesn’t] recognize that designation, it makes it more difficult to achieve our own urbanization agenda, which we’ve set out for Alcona in our strategic plan,” explained Innisfi l communications officer Michèle Newton in an interview with NRU.
Innisfil deputy mayor Dan Davidson questions the planning rationale behind including an urban node in Bradford West Gwillimbury, which does not have water services, and not in Innisfi l, which is currently sharing water with Bradford West Gwillimbury. He thinks political motivations are behind the amendment.
“We basically have all of the criteria for an urban node. We’ve got huge growth happening in that area, about 27,000 people when it’s completed. We meet about 98 per cent of the [provincial requirements] and we’re looking at transit for that area. We meet the criteria better than Bradford. I think the politicians are playing games. It tends to be considered a very conservative area, and I think we’re being penalized for that,” commented Davidson in an interview with NRU.
According to Davidson, an urban node designation would also help with infrastructure funding for the area down the road.
Allowing Innisfi l to expand the designated Innisfi l Heights employment area along the Highway 400 corridor with additional uses will allow the town to cater to a broader range of employment uses. Including more business services, light manufacturing and supporting commercial businesses in the area will help support residential growth and provide greater employment opportunities, explained Innisfi l mayor Barb Baguley in an interview with NRU.
The current boundary of the Innisfi l Heights employment area is 320 hectares and the town has proposed expanding it to a total area of 690 hectares.
“The employments lands [outlined in the proposed amendment for the Innisfi l Heights Strategic Industrial Employment Area] are undersized for what the municipality has determined is required to be successful. We designated a larger area, a continuation of the existing area, that is pivotally important to the health and wellbeing of our municipality,” explained Baguley.
Smart growth advocates such as environmental lawyer David Donnelly (Donnelly Law) believe the amendment should focus on higher densities and a reduced ecological footprint for new growth, beyond what was initially proposed, to further restrict the impacts of sprawl in Simcoe.
“Most of the new development proposals in Simcoe County are stuck in a 1990’s mindset that will require new infrastructure funding the province simply doesn’t have. A simple benchmark for the amendment should be this: when the sidewalks of Simcoe County are as congested as Highway 400, we’ll have struck the right balance,” said Donnelly.
Stay tuned for more details and comments on the amendment in next week’s GTA edition of NRU.
Simcoe County’s new director of planning, development and tourism Dave Parks began his role Monday following the retirement of Bryan MacKell, who was involved throughout the consultation process. Parks was formerly the director of planning for Severn Township.
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See the original article here: 120118NRG
A Revolution is Brewing in Green Building and Community Design
By David Donnelly & Lia Magi Published in: Sustainable Builder Magazine, Special Showcase Issue 2011
Ontario is a world leader in setting boundaries for new Greenfield developments. Paradoxically, Southern Ontario is also attracting rapid population growth, requiring the construction of one million new homes that threaten thousands of hectares of prime farmland and wildlife habitat.
With costly and time-consuming land use battles between environmentalists, developers, and municipalities looming on the horizon, our firm was asked to provide a model for new Greenfield development.
Our clients, developers Mattamy Homes and OPDI, adopted a simple threshold challenge: “Environmentalists are very good at telling developers what not to build; let’s try inventing a sustainable community design we can all agree on.”
After one year of stakeholder consultations, we’ve produced a made-in-Ontario new Greenfield Sustainable Building and Community Design Standard (“Greenfield Standard”), with the goal of making it law in 2012. Recent examples, like the Greenbelt, Green Energy Act, and Lake Simcoe Protection Act, show that Ontario has the pedigree for leadership and decisive action to protect the environment and create good, green jobs.
Our proposed new Greenfield Standard is wonderfully simple: 1. Build new suburban communities at an urban standard. That is, use 55 per cent of the land for development, not the current 45 per cent that spreads development out too thinly; 2. Require new units to reduce energy and water consumption by 50 per cent from current standards; 3. Cap development levies on new lots/units at a target density (75 jobs and residents/hectare) and, 4. Extend tax incentive financing to developers that meet the Greenfield Standard thresholds.
European visitors to Ontario are often surprised by the amount of land we use up in creating new communities, for roads, lots, schools, and infrastructure. As visitors leave the lush, compact neighbourhoods of Leslieville, Parkdale, and the Annex, they’re left wondering why we require developers to surrender so much of their land for infrastructure, instead of building to the desired form of many of Toronto’s most successful and up-and-coming neighbourhoods.
Currently, developers must surrender 55 per cent of their land in “new town” plans, leaving only 45 per cent for commercial and residential buildings. This ratio has produced the widely spaced, poorly connected suburban developments that dominate the North American urban landscape. By building at a higher density and more compactly, we can use more land for housing and employment, instead of infrastructure. Building real communities with nearby employment makes for transit-dependent villages (where it’s better to take the bus) rather than transit- supportive villages, where the bus is merely another option.
In addition, simply by shrinking massive road right-of-ways and high-school yards, and cutting back on public infrastructure land consumption and unused greenspace to free more private land for development, developers can off-set most of the additional costs for introducing bio-swales, and district heating and cooling. Ontario’s antiquated habit of building grand boulevards (or heat islands) in residential areas to accommodate two oxen turning will need to be revised; the Greenfield Standard establishes targets for that.
Designing people-friendly streets requires building single-loaded roads adjacent to natural features and parks; reducing block dimensions, where no side is longer than 250 metres to encourage pedestrian activity; reducing road widths that adopt new lane designs and bike lanes; and adding green linkages. In addition, we need to treat clean water as if it were a valuable commodity, because it is.
Less than 50 per cent of the drinking water we use actually requires treating. Treating water is an expensive process, compared to reusing waste water. Watering lawns, putting out fires, and flushing toilets are some of the uses of water that can be better served by grey-water and rain water. The United Nations urges countries to “treat water to no higher quality than needed.” This makes a lot of sense in Ontario, particularly in urbanizing watersheds that do not have access to the Great Lakes.
Ontario’s Green Energy Act provides the right incentives for existing home-owners to “go green,” but does not require new communities to be net-zero energy consumers. Our standard does that, and it requires that LED street- lighting and zero-net energy should be required by 2017, along with making streets oriented north-south and lots east-west, in order to optimize southern solar gain and to minimize western solar heat gain to dwelling units.
At the building lot level, the one-tree-per-family allotment needs to be replaced with a 62-trees-per-hectare (25-trees-per-acre) standard, creating an urban canopy (over narrower roads). Water-guzzling lawns need to be replaced by drought-resistant xeriscaping, with nearby common areas and parks that encourage social interaction, rather than fenced-in isolation.
Locally sourced building materials, like sand and stone, can shrink the carbon footprint of construction, when compared to imported finished stone from China and India.
To level the playing field, so to speak, Greenfield Standard compliant communities should be allowed to finance the “green” elements of the design (e.g. storm water, district heating, and cooling, etc.), by leveraging the enormous long-term savings to the host municipality with tax incentive financing (TIF), and local improvement charges (LIC).
We need to act fast on this new standard. The Greater Toronto Area is consistently ranked in the top three fastest-growing communities in North America (according to the Neptis Foundation). Given our projected growth targets, maintaining the development of the status quo would consume more than 1,000 km2 of prime farmland in a little more than 25 years.
In Ontario, creating a new Greenfield Standard is not an academic exercise for some far-off time target. For example, in the coming weeks, new growth will be allocated in Simcoe County. The province projects the Simcoe Area will grow by nearly 230,000 residents, to a total population of about 667,000 by 2031, in addition to a forecast of 73,300 new jobs by 2031. Simcoe County has maintained Western union online that it needs even more population increases.
The environmentalists of Campaign Lake Simcoe broke the ice by requesting that future population allocation in Simcoe County be awarded only to communities built to a new, higher Greenfield Standard.
There are two additional benefits of proceeding with a Greenfield Standard collaboration.
First, both the development and the environmental communities are in the early stages of a changing of the guard, as the resource- hungry baby boomer generation begins retiring. Now is the perfect time to introduce closer collaboration between the current and the next generation of modern-era builders and environmentalists – groups that have been too long at each other’s throats.
And there’s reason for optimism. On June 1, 2011, our client Environmental Defence and Holcim Canada (and its Canadian affiliate Dufferin Aggregates) released a new green gravel standard for Ontario. Named Sustainable and Environmentally Responsible Aggregate, (nick-named “Green Gravel”), one of the primary purposes of Green Gravel is to offer environmentally conscious municipalities and consumers the ability to leverage their purchasing power and request responsibly sourced aggregate materials, including green cement and ready-mix concrete in new communities.
We can learn from the above example. The private sector and environmentalists can collaborate effectively in the land-use planning, and the community space and building design sectors to create sustainable communities.
Finally, there is another larger benefit to the implementation of the Greenfield Standard and allocating new growth-only in areas that meet or exceed its conditions. Rewarding sustainable development and community design over traditional urban growth decision-making will dispel much of the cynicism and mystery that normally follows the awarding of a new population allocation. These decisions too often appear to be the result of good lobbying or political expediency, not sustainability thinking.
Ontario has a tremendous record on which to build. Successive provincial governments have protected the Oak Ridges Moraine from further development, created a 1.8-million acre protected Greenbelt (the world’s best), and enshrined in the Places to Grow Act an intensification target of 40 per cent new growth in existing urban areas, versus 60 per cent growth in new Greenfield development.
Ontario is the birthplace of post-war, sustainable Greenfield suburban planning and design. Given the enormous development pressure we’re currently facing, it’s time for our builders, citizens, politicians, also environmentalists to lead again. As my wise oysterman friend often reminds me, “We all fish off the same wharf.”
David R. Donnelly, principal of Donnelly Law, is one of Canada’s leading environmental lawyers and advocates for smart growth. He has acted as legal advisor and counsel to Environmental Defence since 2000. Lia Magi is an associate at Donnelly Law, practising in the areas of environmental law, land-use planning, and litigation.
Harmer and PERL Rock “Public Day” at Mount Nemo Quarry Hearing
Community concerns dominate Nelson Aggregates Burlington hearing
Burlington, ON – Canadian singer-songwriter Sarah Harmer, Roger Goulet, executive director, Protecting Escarpment Rural Land (PERL), concerned local residents and representatives of environmental groups testified today against the proposed 23-million tonne Nelson Aggregate quarry licence application.
“In the midst of a public review, Nelson Aggregate with a host of ecological and hydrogeology experts on retainer, dredged and drained Provincially Significant Wetlands, and unsuccessfully transplanted endangered trees from their habitat,” said Harmer, co-Founder of PERL and songwriter of the iconic Canadian hit, Escarpment Blues. “There is a real element of trust and confidence that is missing here.”
“Mount Nemo is the wrong place for another destructive, below water table quarry. The environmentally sensitive features and functions of the Mount Nemo plateau must be formally recognized and re-designated accordingly, using the latest science, current regulations and standards, and applying the Precautionary Principle,” said Goulet, executive director of PERL.
“It is inconceivable that anyone would think of quarrying this UNESCO World Biosphere Reserve. Who would consider quarrying the Great Wall of China?” Isabelle Harmer testified, a 41 year resident of Mount Nemo.
“Extracting the aggregate will destroy the ability of Mount Nemo to continue to be a fresh water collector in the future. The result could be catastrophic for future generations in short supply of fresh water to drink,” said Bob Patrick, President of Coalition on the Niagara Escarpment.
Numerous residents around the quarry complained large blasts had cracked the walls of their homes. They also stated that dust from the quarry was everywhere including their roads and properties and that the constant drones of heavy trucks often disturbed early morning sleep.
Harmer and other witnesses called on the province to heed the call of the Environmental Commissioner to establish a conservation plan for protecting and siting strategy for locating new aggregate pits and quarries, leading to too many random and localized fights over new quarries.
The hearing is scheduled to finish on December 14, 2011.
ABOUT ENVIRONMENTAL DEFENCE (environmentaldefence.ca): We are Canada's most effective environmental action organization. We challenge, and inspire change in government, business and people to ensure a greener, healthier and prosperous life for all.
ABOUT PERL: Protecting Escarpment Rural Land is involved in a number of initiatives to help protect the Niagara Escarpment for future generations. PERL retained Order of Canada architect Douglas Cardinal to help it devise a “Vision for Mount Nemo” that would allow Nemo’s industrial past to be transformed into a sustainable, ecological future.
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For more information or to arrange an interview, please contact: Stephanie Kohls, Environmental Defence, (416) 323-9521, ext. 232 or (647) 280-9521(cell), skohls@environmentaldefence.ca
OMB Hears from Conservation Biology Expert at Nelson Quarry Hearing
Dr. Reed Noss Leader in Oak Ridges Moraine Fight and Greenbelt Creation
OMB Hears from Conservation Biology Expert at Nelson Quarry Hearing: Dr. Reed Noss Leader in Oak Ridges Moraine Fight and Greenbelt Creation
Burlington, ON—Dr. Reed Noss, the past President of the Society for Conservation Biology and world leading author on the science and planning of wildlife corridors, testified on October 18, 2011 that the Niagara Escarpment is globally significant and expressed concerns that development is significantly fragmenting its landscape, including the Mount Nemo area.
The proposed Nelson Aggregates Inc. 43 hectare, 23-million tonne quarry in Burlington is opposed by Environmental Defence and Protecting Escarpment Rural Land (“PERL”).
“Of all the Biosphere Reserves I’ve spent time in, the Niagara Escarpment is the most modified, which is why I’m concerned that we’re reaching or have reached a threshold that jeopardizes the species that require sufficient connectivity across the Mount Nemo Plateau,” Noss testified.
Noss said he was “disappointed” in UNESCO for not working closer with the Niagara Escarpment Commission (NEC) to better identify necessary protection areas like conservation “core” areas, connection corridors, buffers and vital life-giving water supplies.
“What a great day it was for the Escarpment to hear from the professor that helped save the Oak Ridges Moraine that it’s time to save Mount Nemo, before it’s too late,” said Dr. Rick Smith, Executive Director, Environmental Defence.
“Whether it’s former Premier Bill Davis or Dr. Noss, there’s a growing consensus that the Niagara Escarpment Plan is long overdue for a serious update to bring it in line with current ecological thinking,” said Sarah Harmer, co-founder of PERL.
According to Noss, southern Ontario is “topographically challenged,” meaning relatively flat, which limits the biodiversity of species that occur. The Escarpment, its cliff faces, wetlands, and forests gives species an advantage to adapt to climate change. In other words, the Niagara Escarpment offers an opportunity for a climate corridor.
Noss was critical of the Nelson Aggregate ecological assessment for not being adequate, which included “numerous uncertainties,” and for not using proper scientific methodologies. He also stated that the Nelson Aggregate Adaptive Management Plan (AMP) does not follow standard protocols for an AMP.
Dr. Noss is not alone in this opinion. The expert planning and biology staff members from Conservation Halton, Region of Halton and the City of Burlington have all expressed serious concerns relating to the loss of provincially significant wetlands and significant woodlands; species at risk including the Jefferson Salamander, the Butternut and the Bobolink; changes in flow contribution to downstream watercourses and associated impacts on fisheries; uncertainty relating to assurance of long term flow contribution to the downstream watercourses; protection of private wells; the adequacy of the AMPs; and issues related to climate change and the rehabilitation plan.
ABOUT ENVIRONMENTAL DEFENCE (www.environmentaldefence.ca): We are Canada's most effective environmental action organization. We challenge, and inspire change in government, business and people to ensure a greener, healthier and prosperous life for all.
ABOUT PERL: Protecting Escarpment Rural Land is involved in a number of initiatives to help protect the Niagara Escarpment for future generations. PERL retained Order of Canada architect Douglas Cardinal to help it devise a “Vision for Mount Nemo” that would allow Nemo’s industrial past to be transformed into a sustainable, ecological future.
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For more information or to arrange an interview, please contact: Stephanie Kohls, Environmental Defence, 416-323-9521 ext. 232; 647-280-9521 (cell),skohls@environmentaldefence.ca
A New Collaboration Sets the Path towards Responsibly Sourced Construction Materials in Ontario
Collaboration between Environmental Defence and Holcim Canada leads to a new approach for socially and environmentally responsible pits and quarries in Ontario
Toronto, ON – Environmenta
l Defence and Holcim Canada have jointly established a not-for-profit organization called “SERA” (Socially and Environmentally Responsible Aggregates) that will create world-class voluntary certification standards for responsibly sourced sand, stone and gravel.
This is an unprecedented collaboration between Environmental Defence, an NGO with a long history of leadership on environmental issues including aggregate siting and Holcim Canada and its aggregate division Dufferin Aggregates, a leading aggregate company in Canada. This unlikely alliance is an enormous step towards resolving conflicts between industry, First Nations and community and environmental groups.
“Aggregate is an important resource that is vital for building the country’s infrastructure,” said Paul Ostrander, President and CEO, Holcim (Canada) Inc. “SERA will help the aggregate industry to meet the demand for aggregates while meeting community needs and demonstrating measurable efforts to address the social and environmental impacts of pits and quarries.”
In addition to the establishment of SERA, Holcim Canada and Environmental Defence also released today a set of draft standards for socially and environmentally responsible aggregate siting, operation and use.
“SERA is the result of two years of hard work between Environmental Defence and Holcim Canada – it’s our best effort to define what leadership looks like for the aggregate industry,” said Dr. Rick Smith, Executive Director of Environmental Defence. “Moving forward, we realize that for SERA and these standards to succeed, we need the involvement and support of a broader group of industry, community and environmental groups, and First Nations organizations.”
The proposed SERA certification system builds on the experiences of other resource management standards, like Building Research Establishment (BRE) and the Forest Stewardship Council (FSC), and provides general Principles and specific Core Requirements that independent certifiers will use to assess an aggregate site’s success in meeting or exceeding best management environmental practices.
“Reducing the environmental footprint of construction materials is the next important step in sustainable construction,” says Thomas Mueller, President and CEO, Canada Green Building Council. “SERA sets a benchmark for how aggregates used in cement production are sourced in a sustainable and environmentally responsible way.”
The aim is that the Draft SERA Standards provide a clear and practical approach for responsibly sourced aggregates offering world-class practices for the siting, rehabilitation and operation of pits and quarries well above what is currently required of industry under Ontario statute. In addition, these standards will also outline responsible resource use and processing.
SERA’s goal is that the SERA Standards will have a transformative effect by contributing to the achievement of:
A reliable long-term supply of aggregate materials that will be socially and environmentally responsibly sourced;
Protection of our landscape’s most ecologically and hydrologically important natural areas;
Meaningful engagement with local communities and First Nations groups before extraction is licensed and throughout the lifecyle of operations;
A defined time limit for extraction and phase out plans that incorporate communities’ interests;
The ability of government and private purchasers to leverage their buying power and request responsibly sourced aggregate materials to meet the requirements of new, green building standards and policies;
A market-based tool for government regulators that recognizes sites thataddress the social, environmental and water expectations of the local community.
An independent consultant, BuildGreen Solutions, was engaged by SERA staff to conduct an online review of the Draft SERA Standards compared with international aggregate standards. BuildGreen Solutions’ research concluded that "following an exhaustive online review BuildGreen Solutions is confident to say that we could find nothing that came close to rivaling the draft SERA standards in terms of rigour or comprehensiveness related to aggregate extraction.”
Over the next 18 – 24 months the SERA Founding Board and Executive Director, Lorne Johnson, will be dedicated to engaging government, aggregate operators, environmental groups, municipalities, community groups and First Nations representatives to ensure that the final standards are protective of the natural environment, considerate of local communities and implementable by industry. Johnson has been responsible for successfully coordinating the development of regional and national corporate social responsibility standards for Canada’s forest sector through the FSC and the Canadian Boreal Forest Agreement (CBFA).
“Our social legacy depends on reliable sources of aggregate materials for the roads, schools, hospitals and homes built each year. Just as FSC achieved for the forestry sector we need to be sure that the way we utilize our aggregate resources has a minimal impact on our natural environment and community,” says SERA Executive Director, Lorne Johnson. “For the first time in Ontario, SERA offers communities and operators a way to work together to deliver responsibly sourced aggregate materials.”
Environmental Defence and Holcim Canada are confident in the long-term environmental and economic benefits of SERA certification. Representatives from both organizations will serve on the SERA Founding Board and continue to provide input during the SERA Standards consultation process.
Environmental Defence intends to use the Standards as a key part of its decision making process, to determine whether specific aggregate sites should or should not be opposed and, therefore, where Environmental Defence will direct its resources.
Dufferin Aggregates, an aggregate division of Holcim Canada, intends to use the Draft Standards as guidance for its responsible practices. Its intent will be to SERA certify all of its aggregate operations.
About SERA (www.seracanada.ca)
Socially and Environmentally Responsible Aggregates (SERA) is a not-for-profit organization that aims to create, administer and promote widespread support for certification of responsibly sourced construction materials. Its initial focus is on establishing a voluntary certification system to promote responsibly sourced aggregate materials in Ontario, offering operators an innovative way to demonstrate their efforts to recognize the social and environmental expectations of the local community.
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Environmental Defence: http://environmentaldefence.ca/articles/new-collaboration-sets-path-towards-responsibly-sourced-construction-materials-in-ontario
Environmentalists and Residents Challenge Minister of Natural Resources to Stop Next Escarpment Mega-Quarry
Environmentalists and Residents Challenge Minister of Natural Resources to Stop Next Escarpment Mega-Quarry Toronto, ON – Environmental Defence and local residents are calling on the Minister of Natural Resources to stop another mega-quarry application which is set to DAMAGE the highest point on the Niagara Escarpment. The proposed MAQ Aggregates site is directly across from the proposed 42 million tonne Walker Aggregates quarry, located near the Hamlet of Duntroon, Ontario.
An Ontario Municipal Board (OMB) hearing is scheduled to commence May 30, 2011 to review the MAQ application, at the same time the Walker Aggregates hearing is proceeding.
“The Ontario Municipal Board is forcing this community to deal with two hearings at once. This just isn't right,” stated Dr. Rick Smith, executive director of Environmental Defence.
“All the same issues are at play here. It’s the same ecosystem as the Walker site, same hydro geology, wildlife corridor and haul route. It’s appalling to force this community into a second hearing without having the benefit of the Walker hearing and its issues decided first,” Smith added.
Issues in both hearings are as follows: loss of Significant Woodland, potentially significant Bobolink habitat (a threatened species, endangered butternut trees, blasting adjacent to the sensitive Provincially Significant Rob Roy Wetland complex, inadequate protection for over 2,000 plants of the globally rare American Hart’s Tongue Fern.
Lawyers for Grey Matters, the citizens’ group opposing the MAQ application are appealing for a delay in the hearing so that the OMB can render a decision in the Walker matter first. The group's concern is that the Walker hearing could potentially reduce the number of issues to be heard at the MAQ hearing, including the critical matter of the anticipated cumulative impacts from the two adjacent sites.
MAQ is proposing a 46 million tonnes, to operate for over 40 years. The existing adjacent Walker Aggregates quarry opened in 1965, so together, these quarries could potentially expose the area to nearly 100 years of blasting and heavy truck traffic. The Niagara Escarpment Commission (NEC) and Grey Sauble Conservation Authority also oppose the MAQ application.
“The highest point of the Niagara escarpment deserves to be treated with the utmost care. Rushing to a hearing before all the facts are in, feels to us like the companies' interests are more important than the community and the environment," said Harvey Jones, President of Grey Matters, the citizens’ group opposing the MAQ application.
“Simple fairness dictates that this community have a little time to prepare for this second arduous process,” said David Donnelly, counsel to both Grey Matters and the Clearview Community Coalition fighting the Walker’s application.
The Walker’s Aggregate Joint Board hearing commenced May 3, 2010 and has been sitting for over one year.
About Environmental Defence (www.environmentaldefence.ca): Environmental Defence is Canada's most effective environmental action organization. We challenge, and inspire change in government, business and people to ensure a greener, healthier and prosperous life for all.
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For more information or to arrange an interview, please contact: Stephanie Kohls, Environmental Defence, 416-323-9521 ext. 232; 647-280-9521 (cell) Harvey Jones, Grey Matters, 705-445-2983
NS: Smart Growth and Environment Focus of Downtown Lecture Tonight
DHBC's 10th Anniversary Carmichael Lecture to talk about managing urban sprawl
Peter Clarke, The Daily Business Buzz
[HALIFAX, NS] - There are many arguments for and against the expanding urban sprawl of the Halifax Regional Municipality – it can’t be stopped and development is good but there are always unintended side effects.
Tonight is the 10th Anniversary Carmichael Lecture put on by the Downtown Halifax Business Commission in partnership with the Ecology Action Centre where guest speakers David Donnelly and Bruce Lourie from Toronto will speak about managing the urban sprawl and their experiences with the issue in Ontario and on how urban growth can affect the environment.
The expansive sprawl can deplete farmable land, natural resources and environments and can lead to an increase in pollution in both air and water said Donnelly, an environmental layer and an advocate for smart growth in Canada.
“Halifax has a bit of a unique situation because it hasn’t lost and won’t lose thousands of acres of farm land,” said Donnelly.
He said Halifax does have three issues facing it however: he said the traffic congestion is comparable to Toronto in terms of commute times for people, the natural core surrounding Halifax has been “cut to shreds” and that a significant amount of jobs are migrating out of the city and into surrounding suburban areas.
“Halifax should be scared out of its wits that the tide is going out on its downtown,” he said.
He added that in Ontario, the provincial government had to legislate against sprawl with its Places to Grow Act which required by law a 60 – 40 split between sprawl expansion and adding to density of a central area.
“If Halifax doesn’t follow suit, it could end up being the Detroit Michigan of the Eastern Seaboard,” he said.
While the effect the legislation has had on Toronto’s downtown itself isn’t very notable, it has had a greater impact on the smaller satellite communities in the Greater Toronto Area such as Vaughn.
Donnelly and his co-speaker Lourie were both instrumental in creating the “greenbelt” in Toronto. Greenbelts are essentially boundaries and limits on development that keep natural spaces within cities and around them and essentially put an invisible wall around and urban area to encourage density development as opposed to sprawling.
To improve its downtown, Donnelly says Halifax has a few advantages that some other cities don’t: He said it is a unique city in that it’s the only game in town with no similar cities in close proximity. It also has an underdeveloped waterfront and downtown that could bolster the city’s fortunes if developed right.
One big step for Donnelly though would be an adjustment to the taxes – it is universally true across many cities that taxes are very high in the downtown area for both residents and businesses.
“It hurts me to say but if I was advising a client on where to set up a business I would be sorely tempted and probably bound to recommend a suburban area,” he said
One local group would like to see Halifax develop what it already has before it continues expanding.
“It cuts into green space - threatening sensitive areas and ecosystems,” said Jen Powley, sustainable transportation coordinator at the Ecology Action Centre.
The EAC is advocating for smart development.
“We would like to see developments not cutting into new areas,” she said.
New developments require lots of extra resources such as new water and sewer systems, secondary streets and power connections, while meanwhile she said there are 23 vacant lots in the downtown area which she thinks would be a much better use of building materials.
Carmichael Lecture is happening tonight at the Westin Hotel on Barrington Street from 6:00 to 8:00 p.m. The event is free of charge and open to public on a first-come, first-served basis.
Along with managing Halifax’s urban sprawl Donnelly and Lourie will touch on other topics such as the architecture of green belts – their functions and policies.
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The Daily Business Buzz: http://www.ns.dailybusinessbuzz.ca/Provincial-News/2011-05-12/article-2499763/NS%3A-Smart-growth-and-evironment-focus-of-downtown-lecture-tonight/1?newsletterid=203&date=2011-05-12-06
Curbing HRM Urban Sprawl ‘Essential’
Environmentalists to deliver Carmichael lecture tonight on city’s growth
By BILL POWER Business Reporter, Chronicle Herald
Halifax runs the risk of becoming the Detroit of Canada’s East Coast if it doesn’t get tough about suburban sprawl, environmentalist David Donnelly said Wednesday.
"The government of Ontario has learned the hard way that one of the greatest Ponzi schemes out there is for developers to stick a subdivision out in the middle of nowhere and then get somebody else to pay for services," said Donnelly.
Donnelly and Bruce Lourie, an ecology activist and writer, will discuss urban sprawl and why it matters to the downtown core at the 10th Anniversary Carmichael Lecture, presented by the Downtown Halifax Business Commission in partnership with the Ecology Action Centre.
The lecture is scheduled to begin tonight at 6 p.m. at the Atlantic ballroom at the Westin Nova Scotian. The event is free and open to the public.
Donnelly and Lourie were instrumental is establishing the Greater Toronto Area’s greenbelt, which is expected to have a major impact on how that city reinvigorates its downtown.
Donnelly said in an interview Halifax must establish a boundary for urban growth and enforce it, otherwise developers are going to continue looking further afield where their costs are cheaper.
"A clear line for urban development is essential," he said. "Otherwise cities are forced to finance infrastructure in remote areas while their inner cores continue to deteriorate."
The situation in Detroit is a good example of how a deteriorating core can depress the entire community, he said.
A review of the Halifax Regional Municipality regional plan is scheduled for 2011.
"As HRM continues to grow, so the challenges of balancing downtown revitalization, regional growth, transportation and environmental and economic sustainability," Paul MacKinnon, the business commission’s executive director, said in a news release on the lecture.
Kate Carmichael was executive director of the commission and died in 2001. This year’s lecture marks the 10th anniversary of her passing.
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Chronicle Herald online: http://thechronicleherald.ca/Business/1242885.html
Making the Case for Higher Density, Rather Than Higher Buildings
By David Donnelly, MES LLB
Sustainable Builder Magazine - May 2011
I think that moving towards higher density developments will be the best thing that ever happened to the green building movement in Ontario. The province’s Places to Grow and Greenbelt legislation are slowly setting the stage for developers to make a fundamental choice: do want to I offer a big front yard in Bradford West Gwillimbury, or district heating and cooling in Markham?
Municipalities, stretched for years by the cost and inefficiency of servicing urban sprawl, are slowly but surely catching on and demanding better built communities. The GTA is the fourth most congested urban area in North America, behind Los Angeles, San Francisco and Chicago, and just ahead of the urban planning nightmare Houston, Texas. As new greenfield homebuyers in the Greater Toronto Area realize their commute will exceed the current seven hour weekly average, the intensification movement is bound to soar.
In the second half of this article, I’ll reveal why I think higher density will help sell greener units and why green builders need to join environmentalists by becoming advocates for much smarter development, or outright greenfield protection. But first, the two major myths about higher density need to be de-bunked.
Myth #1 – People Hate High Density
Quick, where did you go on your honeymoon?
Making higher density attractive to homebuyers is a question of good planning, design and now I would add, green building. Ask your favourite developer or his lawyer where he went for his honeymoon. If it wasn’t an island somewhere, he will likely tell you it was London, Rome or Paris. You can be sure it wasn’t Richmond Hill.
Dissuading the public from the natural tendency to buy land over location is a challenge we all face this decade. The traditional development industry has done a good job of convincing the public that a 650 square foot backyard is worth the commute.
Let’s look a little deeper, because residents of the GTA are embracing higher density living already. The “condo craze” is proceeding unabated. There were 33,615 new homes and condos sold in the GTA last year, up 24 per cent over 2008. Forty-six per cent, or 15,425 of those units, were highrise condo apartment suites with some lofts or stacked units included.
So, if people hate density so much, why are they buying into it at record numbers and spending their honeymoons surrounded by it?
Myth #2 – You Can’t Achieve High Density Without Highrise Development
Skill testing question: which city has higher density, Manhattan or Paris, France?
The answer generally surprises people: it’s about the same when you compare the island of Manhattan to the 20 municipal arrondissements (the parts you wander) of Paris – 27,400 people per square kilometre (ppl/sq km) in Manhattan vs. 25,360 ppl/sq km in Paris. That’s a difference the general public can’t detect.
Manhattan: 59.4 sq km Population: 1.6 million Density: 27,400 ppl/sq km Paris: 86.9 sq km Population: 2.2 million citizens Density: 25,360 ppl/sq km
What makes this comparison so startling is the fact that Paris has achieved its density without any real highrise development. One thing distinguishing Paris from other international cities is its skyline. Except for the Eiffel Tower and one 59-storey office building, there are few buildings taller than 12 storeys (or 37 metres).
This walkable, livable scale came out of the first Paris Building Code, drafted in the 1850’s. The so-called “alignement” law still regulates the building facades of new constructions according to a pre-defined street width. Building height is limited according to the width of the street it will occupy. Taller buildings are generally not approved.
To combat highrise phobia that calls to mind images of American inner city decay, why aren’t we at least debating similar medium scale planning principles? It is simply wrong to say that the GTA does not have enough land for a healthy mix of new development, including new greenfield/sprawl. Most importantly, higher densities do not have to mean highrise development.
The Markham Foodbelt “Density” Controversy Markham Councillors Erin Shapero and Valerie Burke proposed the Markham Foodbelt to protect 20 square kilometres (4,940 acres) of prime Markham farmland, and 14 square kilometres (3,500 acres) of greenspace around the tributaries of the Rouge River. Opponents used the myths of urban decay and higher density living to raise fears of a highrise take-over of Markham, including advertising warning against an “apartment belt”. The Markham Foodbelt proposal was narrowly defeated, allowing an additional 2,470 acres of land to be developed. Despite the Foodbelt defeat, Markham is moving towards higher density living. About 54 per cent of new residential units built in the next 20 years will be apartments or condos, according to town planning director Valerie Shuttleworth. Had the Foodbelt been approved, that figure would have risen to 73 per cent, a increase of only 19 per cent. Built correctly (i.e. without sky-scrapers), this is not a change the public would notice. Markham covers 211 square kilometres, its population is approximately 300,000, and its density is 1,418 ppl/sq km. In other words, Paris is less than half the size of Markham and has over 18 times more density!
By comparison, the City of Toronto covers 641 sq km at a density of 3,972 ppl/sq km. Markham is one-third the size of Toronto, with a little more than 10 per cent of Toronto’s population. In fact, Markham is built at such a low density, it has a very long way to go before it becomes a complete community. Disturbingly, Vaughan is also on course to urbanize even more of its rural land, even though it is a far less dense (870 ppl/sq km) municipality than Markham.
One of the leaders of the anti-Foodbelt faction, Councillor Gordon Langdon, was quoted in the Toronto Star saying, “My children don’t want to buy a condo, they want to buy a house with a piece of grass”. Property value assessments don’t bear this out. The density of the Beach neighbourhood in Toronto is 6,111 ppl/sq km, and there are no highrises in the Beach. The Annex (8,500 ppl/sq km) and other desirable Toronto neighbourhoods (e.g. Forest Hill, Rosedale, etc.) all have similar profiles. While these neighbourhoods can offer grass, they achieve high-densities without highrise development, and perhaps more importantly to their residents, they offer access to shops, restaurants, transit and services, and to vibrant community experiences. So what was all the fuss about? It certainly shouldn’t have been about higher densities in Markham.
Had the new, higher density been planned to a higher, smarter density, and been built to the very highest environmental standards, Markham could have realized a huge benefit in terms of infrastructure efficiency, transit densities, and preservation of prime farmland. New urban intensification projects generally sell themselves on access to shops, restaurants, transit and services, whether they are highrise condos or infill townhouse projects. The trick for green builders is to recognize the added advantages of building in existing urban areas or at higher densities in greenfield projects, and selling consumers on the environmental features, and the walkable, livable communities. Density does not have to be a community killer; just ask any honeymooner.
David Donnelly is the Principal of Donnelly Law and Counsel to Environmental Defence
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Sustainable Builder Magazine: http://www.sbmagazine.ca/archives/659
Simcoe Process to Create Sustainable Planned Growth
Environmentalists See Potential in McGuinty Government Review of Simcoe Growth Plan
Toronto, ON – Environmental groups around Lake Simcoe are cautiously optimistic about the McGuinty government's decision to refer future population and employment allocations to the Office of the Provincial Development Facilitator (PDF) for an impartial review. While this might be a victory for those who want to ensure families in the Simcoe area enjoy sustainable economic and smarter urban growth over the next 20 years, it may also provide developers with an opportunity to be more aggressive in their lobbying.
The PDF will meet with municipalities and other stakeholders to determine the most appropriate outcome for Simcoe Region.
It is important that the PDF hear from citizens groups. Environmental Defence reports indicate that the largest contributor to municipal election campaigns is the development community, so there are concerns that municipal representatives will be pro-growth as a result of this influence. By speaking to the PDF, citizens and environmental groups bring another greener perspective.
While municipalities all want higher population and employment allocations, there is evidence that citizens want residential growth to "green up" and slow down. A November 2007 Environics survey polled 200 Innisfil residents and revealed that 68% of Innisfil residents cited too much growth as their major concern.
"Now that Premier McGuinty has taken charge of the Lake Simcoe protection issue, he needs to make sure that any housing or employment developments on farmland and natural spaces meet high environmental standards. That is what Lake Simcoe needs, and that is we are hoping for,” said Dr. Rick Smith, Executive Director of Environmental Defence.
"Nobody wants to see more rows of urban sprawl and the increased traffic congestion it brings in the Lake Simcoe drainage basin. Why not insist that approvals of future growth use Ontario's modern job-creating green industries, use the latest sustainable building techniques, and promote the development of compact communities?" Smith added.
"Residents from Innisfil have shown they are willing to pay from their own pockets for better sewage treatment, if the development it serves improves the quality of the lake," said Claire Malcolmson, President of the Rescue Lake Simcoe Coalition and Innisfil resident.
"The PDF can ensure that new development is not awarded to the shrewdest lobbyist, but to the development proposal that considers the widest possible range of growth planning issues, with a healthy Lake as the centrepiece. We are, however, concerned that this course of action punts the hard decisions to a bureaucrat to deliver recommendations right after an election. Who is the government more worried about disappointing here, the voters of Simcoe County, or the developers that help finance so many campaigns?”Malcolmson added.
In January 2011, Environmental Defence, the Rescue Lake Simcoe Coalition, Ontario Nature and AWARE Simcoe made submissions under the Environmental Bill of Rights (EBR) asking the Minister of Public Infrastructure Renewal (PIR) to focus on reviewing the allocation of the population and employment forecasts for the lower tier municipalities in the County of Simcoe, as set out in Schedule 3 of the Growth Plan for the Greater Golden Horseshoe. The Schedule identifies how to manage the oversupply of land and to develop alternative intensification and density targets for the designated farmland and natural areas in Simcoe County. Its objective is to ensure the creation of more compact, mixed use communities that meet a higher green building and community design standard.
The EBR submission calls for greater effort to establish where the jobs really are, and to locate future residents close to those jobs to prevent a further explosion of "bedroom communities" along the already dangerously congested Highway 400.
The Ministry of Infrastructure's press release is available here: http://news.ontario.ca/moi/en/2011/03/news-release-march-25-2011.html
ABOUT ENVIRONMENTAL DEFENCE(environmentaldefence.ca): We are Canada's most effective environmental action organization. We challenge, and inspire change in government, business and people to ensure a greener, healthier and prosperous life for all.
OMB Does Not Preclude Seeking Civil Remedies
SCJ finds that Ontario Municipal Board decisions do not prevent claimants from seeking remedies in civil courts
On February 22, 2011 Justice G.R. Strathy of the Superior Court of Justice released his decision on the issue of res judicata and abuse of process (re-litigation of similar issues) as it applies to previous decisions made by the Ontario Municipal Board (OMB).
The Plaintiffs, represented by Donnelly Law, are claiming damages for nuisance due to ponding and flooding occurring on their property. They are claiming that ponding and flooding is a result of disturbance of grading in the backyard due to the construction of a concrete embankment and gazebo by their neighbours.
The Defendants, represented by Cassels Brock & Blackwell LLP, claimed that the Plaintiffs’ action was res judicata as the Plaintiffs had unsuccessfully appealed the granting of a minor variance allowing the gazebo by the City of Toronto to the OMB. The Plaintiffs subsequently launched an action for nuisance against their neighbours as they were experiencing flooding and ponding in their backyard.
David Donnelly, arguing on behalf of the Plaintiffs in court, argued that no person should have to give up their right to bring a claim to the civil courts if they first go to the OMB where there is no opportunity for an award of damages.
Justice Strathy agreed and found that the Plaintiffs claim does not constitute res judicata or abuse of process. The OMB’s jurisdiction and decisions are limited to land-use planning matters.
In his decision Justice Strathy stated:
It would be passing strange if a structure that did not comply with the by-law could be immunized from civil suit by virtue of the granting of a "minor" variance. It would be equally strange if the approval of a minor variance by the OMB had the effect of authorizing the commission of a nuisance. It would be an extraordinary state of affairs in my view, if an objector at an OMB hearing were to lose its civil rights, in this case the right to claim damages for nuisance,
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…if its evidence and arguments against a minor variance were to be rejected [...] It does not undermine the integrity of the adjudicative process of the COA (Committee of Adjustments) or of the OMB to say that findings of fact made by these tribunals in relation to planning issues within their jurisdiction are not determinative of liability in subsequent civil proceedings. On the contrary, it simply recognizes the limits of the sphere of responsibility of these bodies.
Had I found that issue estoppel applied, I would have exercised my discretion to refuse a stay... It would be entirely unjust, in my view, to deprive the Jains of a civil remedy simply because they objected to their neighbour's application for a minor variance.
See a link to the decision here: Jain v. Valani 2011 ONSC 1156
Proposed Amendment 1 2010 to the Growth Plan for the Greater Golden Horseshoe
Environmental Defence submits its comments on Province's proposal for Simcoe County growth
On January 31, 2011, Environmental Defence submitted its comments through the EBR on the Ministry of Infrastruture's Proposed Amendment 1 to the Growth Plan, which is intended to curb sprawl in Simcoe County. The following is the Executive Summary; a link to the full submission is found below.
"We strongly oppose the most recently proposed Simcoe County Growth Plan population allocations and employment zones, as they represent an unjustified comprise that directs growth almost everywhere.
The proposed growth in Simcoe County sets the stage for very large development projects that will choke Highway 400, endanger Lake Simcoe and foul the air and water of our community. The proposal also runs counter to the Government of Ontario’s own Growth Plan, goals of the Lake Simcoe Protection Act, and the wishes of Simcoe County’s residents who support the Greenbelt Act and Lake Simcoe Protection Act. Finally, the Plan says nothing about reducing the ecological footprint of development such as energy use and water consumption, a long-overdue and necessary reform.
Not all the proposed changes are negative; moving some population allocations out of the stressed Lake Simcoe watershed should relieve some of the pressure it faces, and a 20-year restriction on sprawl via the interim settlement boundary policy is most welcome. However, the health, social and environmental benefits to Simcoe County’s residents from these modest gains are completely obliterated in the rush to allocate unnecessary employment areas along Highway 400 that will only promote sprawl, traffic congestion and bad air; allocating insufficient population densities that make meaningful public transit options unviable; insufficient transitional planning that leaves loopholes wide open for abuse by developers; and, the lack of a green building standard to reduce the impact of new developments the province expects in the watershed over the next 20 years.
- Some population moved out of Lake Simcoe watershed;
- Some population allocations went to northern communities, albeit at too low
- densities;
- Restricting sprawl to land needed for 20 years, through the creation of interim
- settlement boundaries, via policy 6.3.2.2.
- Population allocations must consider the assimilative capacity of the receiving bodies of water, and must not result in an increase in Phosphorus to Lake Simcoe;
- Do not proceed with employment areas on Highway 400. They are unnecessary and will lead to further sprawl and unsustainable development;
- Establish clear transition rules from the “Wild West” of planning that exists now to the framework proposed in this Amendment, and make implementation of the Amendment fair in all communities;
- Extend the requirement under the Lake Simcoe Protection Plan to undertake environment assessments on supporting infrastructure before approving land use designations, to all of Simcoe County and especially for the Big Bay Point mega-marina and resort;
- Do not decrease the density allowed anywhere in this plan, and instead increase density targets to 75 jobs and residents per hectare (j&r/ha) and use that number as a condition for future population allocations;
- Introduce a community design, water/wastewater management and green building standard against which population allocations can be assessed; and,
- Grow the Greenbelt in communities contiguous to the existing Greenbelt for example, Bradford West Gwillimbury.
The complete submission can be accessed here: Environmental Defence Growth Plan Simcoe Amendment EBR Response
A Greenbelt for Nova Scotia
Donnelly Law Comments on Provincial Policy Statement, 2005
Re: Provincial Policy Statement Five-Year Review (EBR Registry No. : 010-9766) We write to provide comments with respect to the above-noted Environmental Bill of Rights (EBR) posting.
Introduction
Donnelly Law practices land use planning, environmental and First Nations law; we represent the Huron-Wendat Nation’s cultural interests in the Province of Ontario. This work is centred on how land use planning and development impacts the Huron-Wendat’s culture and heritage, in particular the destruction of Huron-Wendat Nation burial sites and artifacts.
It is our belief that additional preventative measures must be adopted by individuals, developers and municipalities to prevent further destruction of Aboriginal heritage in Ontario. It is, therefore, crucial that the Provincial Policy Statement, the Province’s foundational land use planning instrument, include safeguards to protect Aboriginal interests in Ontario.
Background and Historical Context
Huron-Wendat Nation
The ancestors of the Huron-Wendat Nation occupied a large portion of southern Ontario for many centuries until A.D.1648. At this time the Huron-Wendat Nation was forced to leave its territory due to many successive deadly epidemics brought by Europeans, as well as disputes and wars with other First Nations. The Huron-Wendat, archaeologists and historians have identified and documented hundreds of Huron-Wendat sites in Ontario. Dozens of large semi-permanent agricultural cosmopolitan villages (occupied by thousands of people) and their attendant burial sites have been discovered, representing a rich cultural heritage legacy.
The Wendake community (Huron-Wendat Nation) is located about 10 kilometres north of downtown Québec City. It is the only Huron-Wendat Nation in Canada. The number of members is 2,994, of which 1,299 reside on the Wendake territory. The Huron-Wendat Nation is concerned about the potential impact of future development on their ossuaries, cemeteries and occupation sites.
Aboriginal Interests Throughout Ontario
The Huron-Wendat Nation, our client, is not the only Aboriginal community affected by Ontario’s rapid development. All Aboriginal people that ever occupied lands in the Province have a rich legacy that is under constant threat.
Hunter-gatherers occupied most of Ontario since 2,000 B.C. By 1500 B.C.-1000 B.C., elaborate mortuary ceremonial practices developed, suggesting strong social and community identities. Evidence of large burial mounds exists for southern Ontario populations circa 400 B.C.-A.D. 700 and circa 400 B.C.-A.D. 1650 in northwestern Ontario. After 700 A.D., the practice of forming burial mounds ceased and was replaced with ossuaries, which began around 1300 A.D.
Ossuaries, an Iroquoian burial practice, is “a burial pit containing a mixed deposit of the remains of multiple individuals, which was formed as the result of final burial ceremonies, triggered by events, such as village relocation, the death of a leader, or the reformulation of inter-village alliances. The remains that were incorporated within the ossuary had, for the most part originally been interred elsewhere and were exhumed for inclusion in the ossuary feature. Therefore, the majority of the bones in the ossuary are disarticulated.”[1] Ossuaries are not visible above the land, making identification pre-excavation extremely difficult. Coupled with insensitive planning and development, thousands of culturally significant sites have been destroyed.
Destruction of Aboriginal Sites in Ontario
According to the Ipperwash Sacred Artifacts Report:
Rapid development within the Regional Municipalities of Halton, Durham, Peel and York provides an instructive example of the nature and potential magnitude of the threat that continued landscape change may pose to a finite and non-renewable archaeological resource base. It is possible that some 8,000 sites were destroyed in this area between 1951 and 1991, with the majority of this destruction occurring prior to 1971 … It is further estimated that approximately 25% of these sites (approximately 2,000) represented significant archaeological resources that merited some degree of archaeological investigation, since they could have contributed meaningfully to our understanding of the past, or outright protection as they constituted culturally significant places for the First Nation descendents of the people who created them in the first place. (at page 4)
Culturally important lands are not limited to burial sites. The significance attached to a specific location is influenced by a number of factors, determined by the original inhabitants and their descendants. There may be times that these locations require protection, but their identification may be complicated.
Our recommendations are intended to provide practical guidance while simultaneously recognizing the complexity of identifying culturally significant sites to Aboriginal people. For this reason, consultation and accommodation – foundations of reconciling Canada’s legal regime with Aboriginal rights and interests – must always be at the forefront of all land use planning and development in Ontario. The recommendations we make in this submission are consistent with the recommendations made by the Ipperwash Inquiry.
Recommendations
Conflicts between Ontario’s Aboriginal peoples and land use planning are not new, especially concerning burial grounds. With the 1995 Ipperwash crisis, it would be impossible to deny knowledge that the impact of development has on Aboriginal burial sites. At page 686 of the Ipperwash Inquiry, it is stated that:
The provincial government and other institutions must redouble their efforts to build successful, peaceful relations with Aboriginal peoples in Ontario so that we can all live together peacefully and productively.
The Inquiry continued, at page 687:
Usually, the immediate catalyst for most major occupations and protests is a dispute over a land claim, a burial site, resource development, or harvesting, hunting, and fishing rights. The fundamental conflict, however, is about land.
Including a provision to protect Aboriginal heritage in the Provincial Policy Statement is exactly the type of step the Inquiry is speaking to.
The policy recommendations of the Ipperwash Inquiry included a considerable focus on ensuring cultural and heritage claims are protected. Among these recommendations are:
- The provincial government should work with First Nations and Métis organizations to develop policies regarding how the government can meet its duty to consult and accommodate. The duty to consult and accommodate should eventually be incorporated into provincial legislation, regulations, and other relevant government policies as appropriate (Recommendation 14, emphasis added);
- The provincial government should promote respect and understanding of the duty to consult and accommodate within relevant provincial agencies and Ontario municipalities (Recommendation 15);
- The provincial government should work with First Nations and Aboriginal organizations to develop policies that acknowledge the uniqueness of Aboriginal burial and heritage sites, ensure that First Nations are aware of decisions affecting Aboriginal burial and heritage sites, and promote First Nations participation in decision-making. These rules and policies should eventually be incorporated into provincial legislation, regulations, and other government policies as appropriate (Recommendation 22);
- The provincial government, in consultation with First Nations and Aboriginal organizations, should determine the most effective means of advising First Nations and Aboriginal peoples of plans to excavate Aboriginal burial or heritage sites (Recommendation 25);
- The provincial government should encourage municipalities to develop and use archaeological master plans across the province (Recommendation 26)
With the release of the Inquiry only in 2007, these recommendations were not considered in the last Provincial Policy Statement Review. It is essential that the Provincial Policy Statement be revised to include these recommendations and provide the necessary protection of Aboriginal culture and heritage.
In recognition of the importance of protecting aboriginal interests in Ontario, with specific consideration given to the Ipperwash Inquiry, precedent established by the Milroy private prosecution, and dicta of the court in the Hiawatha decision, we recommend ensuring the Provincial Policy Statement recognizes the current state of the law in Ontario, with explicit reference to the connection between Aboriginal rights, the Constitution of Canada, Supreme Court rulings that require protection of cultural heritage, including how its protection pertains to landscapes and land use. The current PPS does not reflect the important connection between landscapes to Aboriginal culture.
Section 2.0: Wise Use and Management of Resources states:
Ontario's long-term prosperity, environmental health, and social well-being depend on protecting natural heritage, water, agricultural, mineral and cultural heritage and archaeological resources for their economic, environmental and social benefits.
In order to achieve the above stated goal, two major changes must be made to the Provincial Policy Statement’s section on Wise Use and Management of Resources:
First, Section 2.6 Cultural Heritage and Archaeology must explicitly address Aboriginal interests, and
Second, a new section on Aboriginal interests must be created.
To ensure Section 2.6 Cultural Heritage and Archaeology explicitly addresses Aboriginal interests, we recommend the following:
- “Built heritage resources” and “Cultural heritage landscape”: The definitions of “built heritage resources” and “cultural heritage landscape” must include both pre and post-contact sites and should include in the non-exhaustive list of examples of resources (in the case of “built heritage resources) or landscapes (in the case of “cultural heritage landscapes”) those that may be significant to an Aboriginal community.
- “Archaeological resources”: The definition of “archaeological resources” must include Aboriginal sites or burial grounds.
- “Aboriginal interest”: A new definition must be included for “Aboriginal interest”, which includes impacts on aboriginal archaeological heritage and landscapes (Milroy and Hiawatha).
- Aboriginal engagement: Section 2.6.2 must state that in cases where “development and site alteration” impacts a site of Aboriginal origin, before development or alteration can proceed the party is responsible for engaging the Aboriginal community culturally affiliated with the site.
A new section must address the concerns and recommendations made by the Ipperwash Inquiry, recent court decisions and recent land use conflicts with Aboriginal interests. Accordingly, in addition to the modifications to Section 2.6, we recommend the new Provincial Policy Statement include a new section within Section 2.0: Wise Use and Management of Resources. This requires:
A new sub-section (2.7) entitled, “Aboriginal Significant Cultural Heritage and Burial Sites”
This new sub-section shall ensure that
- Any action that falls within the Provincial Policy Statement shall be required to consult and accommodate Aboriginal communities whenever the action impacts an Aboriginal interest.
Considering the special nature of Aboriginal burial grounds, it is essential that the new Provincial Policy Statement address this issue specifically. Therefore, this new sub-section must also ensure the following:
2. When an Aboriginal burial ground or sacred site may be impacted, no development, alteration or excavation may occur until meaningful consultation and accommodation is conducted with the Aboriginal community whose interest is affected;
Finally, it is key that municipalities throughout the Province adopt archaeological management plans. The third sub-section we recommend is:
3. Municipalities must develop and use archaeological management plans that ensure development does not occur where there is likely an Aboriginal burial, cultural or heritage site.
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[1] Ipperwash Sacred Artifacts Report: Aboriginal Burial and Other Sacred Sites in Ontario (Prepared for Founding First Nations Circle) December 2005, at page 11.
Mount Nemo Big Step Closer to Being Saved
Niagara Escarpment Commission Votes 11 to 4 in Favour of Processing Citizens' Amendment
Toro
nto – In a precedent-setting decision, the Niagara Escarpment Commission voted to process Protecting Escarpment Rural Land’s (PERL) private amendment application for the Nelson Aggregate Co. proposed quarry site that, if approved, would see a significant part of the Mount Nemo Plateau, on the Niagara Escarpment in Burlington, Ontario, permanently protected.
Burlington Mayor and Halton Regional Councillor, Cam Jackson, presented two unanimous Council resolutions supporting PERL’s application as a “first step” to protecting the entire Mount Nemo Plateau.
Commissioner Alan Elgar tabled the motion and affirmed, “It is our job to implement the NEPDA [Niagara Escarpment Planning and Development Act], and its purpose is to ‘maintain the Niagara Escarpment substantially as a continuous natural environment’.” After the vote, Elgar announced, “This is a precedent-setting decision and it is the right one. It says: the NEC will process applications in accordance with the Act that are in keeping with its purposes.”
“We could not be more impressed with the Commission,” stated Roger Goulet, Executive Director of PERL. “We must get the land-use designations right before decisions are made on development applications. This is what we have been saying for years.”
Many environmentally sensitive areas within the Niagara Escarpment Plan area would be protected by today’s standards and science but are left vulnerable to development by the 25-year-old Niagara Escarpment Plan designations.
“Right now the process is upside-down,” commented Lia Magi, a lawyer with Donnelly Law representing PERL. “Bringing a third-party application was the only way to put the proper land-use designation, based on the most current science, squarely in front of a decision-maker while it is still relevant,”Magi added.
About Environmental Defence (www.environmentaldefence.ca): Environmental Defence protects the environment and human health. We research solutions. We educate. We go to court when we have to. All in order to ensure clean air, clean water and thriving ecosystems nationwide, and to bring a halt to Canada's contribution to climate change.
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For more information, or to arrange interviews, please contact: Lia Magi, Donnelly Law, 647-654-2049, lia@donnellylaw.ca Roger Goulet, Executive Director, PERL, 905-335-4219, rgoulet@cogeco.ca
Developer charged in razing of 118 moraine trees
Aurora worries about precedent set at golf course project still awaiting approval
Jasmeet Sidhu - Staff Reporter - Toronto Star
The Town of Aurora has filed several charges against a development company and its two owners after claims that more than 100 trees were destroyed to make way for a golf course before it was approved by the Ontario Municipal Board.
The town says 118 trees, including ash, pine, cedar, maple and oak, were injured or destroyed in the area of Leslie St. and Bloomington Rd., without a permit.
A resident complained June 17, the city says. After an investigation, nine charges were filed against West Hill Redevelopment Company Ltd. and its principals Joe and Wilf Lebovic.
The allegations highlight a flaw in municipal and provincial regulations that often makes it cheaper for developers to pay fines for making unapproved land alterations and proceed with their projects, rather than go through years of applications and appeals.
The project in question was initially put forward almost 12 years ago and rejected by the town in 2008. That decision is being appealed before the OMB.
If convicted, the developers face a maximum fine of $100,000 for violating the town’s tree-cutting and zoning bylaws.
Aurora Mayor Phyllis Morris is outraged at the precedent this case sets for other developers.
“Once you cut down trees and the land is cleared, what’s left to a town council and a mayor who wants to have protected them? We believed in the moraine legislation; we believed the region’s tree-cutting bylaw, the town’s tree-cutting bylaw, and the TRCA (Toronto and Region Conservation Authority) oversight would have been sufficient to deter someone,” Morris says.
“We are concerned that if this becomes the normal practice, then doesn’t that negate a town trying to protect its environment? You just hope people would follow the rules.”
The project, an 18-hole golf course and 75-unit condominium complex on both sides of Leslie St. north of Bloomington Rd., has a long and complicated history with the town.
The property would fall under the provincial Oak Ridges Moraine Conservation Plan, but because the project dates back so far, it’s subject to the regulations in effect before the plan became law in 2001. The town says it will adversely affect ground aquifers and adjoining woodlots and wetlands. Many homes in Aurora use well water drawn from the deep aquifers below.
David Donnelly, a lawyer for Environmental Defence, a non-profit based in Toronto, says he has seen many cases where a developer is alleged to have altered land in advance of an OMB decision to quicken or circumvent the approvals process.
“It’s a rare occurrence but it happens commonly enough that I think we need to tighten the rules around altering subject properties,” Donnelly says.
“Cutting trees in advance of an Ontario Municipal Board hearing or a court process robs the decision-maker of the opportunity to hear a complete defence of the environment.
“Most importantly, it takes away from the public’s right to have the environmental laws that we have in place applied fairly.”
Maureen Carter-Whitney, research director at the Canadian Institute for Environmental Law and Policy, agrees: “I believe the penalty should be so high people aren’t willing the chance of committing these kind of offences. To me, it points out a huge flaw in the system.”
West Hill did not respond Thursday to numerous attempts by the Star to contact the company for comment. The corporation is expected to appear at a Newmarket court Monday.
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Toronto Star: http://www.thestar.com/news/gta/article/833928--developer-charged-in-razing-of-118-moraine-trees
Top of the Niagara Escarpment under Siege
National environmental group supports call for a time-out on massive hearings in Ontario's Greenbelt
Toronto – Environmental Defence is joining forces with the Niagara Escarpment Commission, Clearview Community Coalition and Protecting Escarpment Rural Land (PERL) to protect the Niagara Escarpment, which is under threat from two proposed quarries. One quarry, proposed by Walker Aggregates Inc., was already proposed for Duntroon, Ontario near Collingwood, when plans for yet another quarry only 600 metres away, was announced by M.A.Q. Aggregates last week.
“Clearly, there is no coordination or assessment of the cumulative effects of these two proposed quarries. The Duntroon Quarry license application itself is a serious test case for protecting the Niagara Escarpment, the Greenbelt and Ontario’s freshwater resources,” said Dr. Rick Smith, Executive Director of Environmental Defence. "Taken together, these two proposed quarries could cause significant environmental damage."
The more imminent of the two new quarries proposed near the tiny hamlet of Duntroon is scheduled for a joint Ontario Municipal Board (OMB) and Environmental Review Tribunal (ERT) hearing starting on April 12, 2010. Without consulting residents, however, a settlement has been negotiated between Walker Aggregates Inc., Simcoe County and Clearview Township which, in part, transfers a portion of County Road 91 from Simcoe County to Clearview Township for future closure. This agreement was apparently approved ‘in camera’ by Clearview Township on February 10, 2010, then discussed again ‘in camera’ and approved by Simcoe County Council on February 25, 2010. As a result, Simcoe County and Clearview Township are now in favour of Walker Aggregates’ quarry proposal.
The site of the Walker Aggregates’ application is located just steps away from the highest point of the Niagara Escarpment, which is an amazing complex from an environmental perspective. The new quarry would result in the permanent removal of 40.5 ha of significant woodland, which contain precious interior forest and provides for contiguous animal habitat. Protection of endangered butternut trees and a world-class colony of American Hart’s Tongue Fern would be left to a strategy called isolation, and experts are sceptical that this strategy would work. The colony of Hart’s Tongue Fern under threat is greater in number than the sum of all colonies outside of Canada.
Walker Industries has already been quarrying the Duntroon Escarpment since 1968 and is now proposing to quarry for another 14 to 29 years and to more than double the current annual rate of extraction to 2.5 million tonnes.
“The agreements between Walker Aggregates Inc. and the municipalities of Clearview and Simcoe have done little to reduce community impacts and nothing to reduce the impacts on the Niagara Escarpment,” said Janet Gillham, President of the Clearview Community Coalition and a local resident who is outraged by the negative impacts to local communities and by the prospect of continued destruction of the Niagara Escarpment, a valued local natural heritage feature and a World Biosphere Reserve.
“The Walker quarry proposal and Niagara Escarpment Plan re-designation application has been revised more times than we can count, yet the current designation on the site hasn’t been updated since the Trudeau years,” said David Donnelly, legal counsel to Environmental Defence and Clearview Community Coalition.
The newly announced 30-million-tonne M.A.Q. Aggregates quarry proposed in Grey County, which was appealed to the Ontario Municipal Board last week, would be directly across the road from the Walker Aggregates quarry. The site is in the center of the Rob Roy Provincially Significant Wetland complex. Species potentially impacted include the special-concern Canada Warbler and the Western Chorus Frog. Despite close proximity of these two proposed quarries, it is not clear whether the cumulative effects of the two quarries have been adequately evaluated.
Clearview Community Coalition is a member of the Ontario Greenbelt Alliance, a coalition of more than 80 environmental, health and community groups dedicated to protecting Ontario’s Golden Horseshoe Greenbelt.
About Environmental Defence: Environmental Defence protects the environment and human health. We research. We educate. We go to court when we have to, all in order to ensure clean air, safe food and thriving ecosystems. Nationwide. http://www.environmentaldefence.ca/
For more information, or to arrange interviews, please contact: Jennifer Foulds, Environmental Defence, (416) 323-9521 ext. 232; (647) 280-9521 (cell) Janet Gillham, President, Clearview Community Coalition, (705) 445-6095
Town Approves Tree Cutting at Big Bay Point
Environmental Defence (www.environmentaldefence.ca)
Developer proceeding despite objection from Province and concerned residents
Toronto – The developer of the proposed Big Bay Point Mega-Marina is preparing to cut trees at the site despite opposition from the province and local citizens. Heavy machinery moved onto the site yesterday. Tree cutting is expected to begin soon, unless the province intervenes as requested by Environmental Defence and the Innisfil District Association (“IDA”).
Innisfil Council voted on January 27 to allow site alteration in the form of tree cutting at Big Bay Point. The vote appears to defy directions from the Ministry of Municipal Affairs and Housing (“MMAH”), which has jurisdiction over Ontario municipalities.
The province sent a sharply worded letter on January 19, 2010 to the developer’s lawyers last week, advising that “provincial staff have identified provisions that must be satisfied before site alteration or development of the Big Bay Point resort lands can take place.”
Put plainly, the MMAH letter stated that the Big Bay Point project, including any tree cutting, cannot proceed until an environmental assessment has been completed to determine whether there will be sufficient capacity to collect and treat wastewater from the mega-marina. The environmental assessment would also need to show that the mega-marina would not directly or indirectly release phosphorus into Lake Simcoe.
The Ontario Municipal Board made clear in its 2007 ruling on Big Bay Point that that the Planning Act approval is conditional on the developer securing a large number of environmental approvals, some of which may never be obtained, for the construction of the 2,000 resort units, 1,000 slip mega-marina and commercial space.
Environmental Defence and the IDA have filed a legal brief with the Lake Simcoe Region Conservation Authority and the province last week advising that the proposed excavation of 30 acres of shoreline likely contravenes the Lake Simcoe Protection Act and Conservation Authorities Act.
“The Big Bay Point Mega-Marina and unprecedented shoreline excavation would never be permitted if it were proposed today and may never be approved, so why the rush to cut the trees?” asked Environmental Defence counsel David Donnelly, citing the ban on new shoreline development under the Lake Simcoe Protection Plan. “So if the project never proceeds, as we predict, why would anybody think it wise to cut increasingly rare shoreline forested area at this time”, Donnelly asked.
“Speaking as an area resident, I’m appalled that Innisfil Council is endorsing this tree cutting before the province has even approved any marina construction”, said Don Avery, past President of the IDA.
This new dispute follows closely on a complaint lodged with the Minister of Environment John Gerretsen for proceeding with public consultations under the Lake Simcoe Protection Act and Environmental Assessment with tens of millions of dollars in Strategic Lawsuits Against Public Participation (“SLAPP”) suits outstanding against Big Bay Point opponents. The complaint states that:
Continuing these taxpayer funded public consultations in this climate of SLAPP suits is unacceptable. We note that this phenomenon has proliferated under your government. We call your attention to the Ministry of the Environment Statement of Environmental Values, specifically the Introduction which advises [that] “Ontarians should have the means to ensure that it is achieved in an effective, timely, open and fair manner.”
It is hard to believe a decision-maker or Tribunal would find that approval of the infrastructure under the EA process, conducted under the pall of millions of dollars of SLAPP suits could be considered an “open and fair process”. Most of the province’s environmental organizations have called on the McGuinty government to put an end to SLAPPs and on-going public consultation processes tainted by them.
Background
The Big Bay Point proposal would feature 2,000 hotel and condominium units, retail space, a 300-seat theatre and an unprecedented 1,000-slip mega-marina. Constructing this marina would require digging a 30-acre hole in the shoreline and destroying 100 acres of forest. There is an existing, much smaller marina on the property. The endangered butternut tree is also found on the property.
Strategic Lawsuits Against Public Participation (SLAPPs) are lawsuits (often for defamation) that are aimed at dissuading citizens from making their voices heard before public decision-makers and tribunals. They are a growing threat to meaningful citizen participation in Ontario and constitute a significant barrier to access to justice for those members of the public who seek to participate in environmental law and policy matters. Members of the IDA are currently the targets of SLAPPs seeking millions of dollars in damages over their opposition to Big Bay Point.
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For more information, or to arrange interviews, please contact: Erin Charter, Environmental Defence, (416) 323-9521 ext. 258; (647) 210-7888(cell) David Donnelly, Donnelly Law, (416)-722-0220 (cell) Don Avery, Innisfil District Association, 416-997-7836 (cell)
Enviro-warriors left in the cold
Citizens battling huge development projects face legal, financial threats, says Ontario's environmental commissioner
By Tany Talaga
Queen's Park Bureau - Toronto Star
Citizen groups who take on big developers need enhanced provincial protection from economic intimidation and legal threats, according to a new report from Ontario's environmental commissioner.
Touching on issues from soil erosion to the disappearance of amphibians in Ontario, commissioner Gord Miller's far-reaching report says the land-use planning system is "hugely weighted" in favour of the development industry.
"When the stakes are in the many millions – sometimes billions – of dollars, the resources that developers are prepared to invest to overcome residents' objections far surpass the capacity of most citizens groups (and) environmental organizations," Miller says in his 180-page report.
There are cases of people not participating in public planning discussions for fear of incurring a personal lawsuit, he said.
"That chilling effect, I am fully confident, is widespread," Miller said.
Miller cited problems surrounding a proposed $1 billion luxury resort project on the shores of Lake Simcoe. Concerned residents participated in an Ontario Municipal Board hearing regarding approvals for the Big Bay Point Resort in Innisfil. But citizens faced a claim for costs of $3.2 million – which was denied by the board.
The Big Bay fight led to calls for the Ontario government to develop anti-SLAPP (Strategic Lawsuits Against Public Participation) legislation. Such laws are in force in Quebec and many American states. Miller called for the creation of legislation that would put both sides of development disputes on equal footing and noted it "could serve to halt SLAPP suits in their tracks."
However, when Environment Minister John Gerretsen was asked if he was in favour of enhanced protective legislation for citizens, he deferred the question to Municipal Affairs Minister Jim Watson, who said there is no need for anti-SLAPP legislation.
The track record of the OMB has been "very positive," he added.
"They won't set up a system that is only for the rich and only for powerful corporations," Watson said. "We have to allow individuals who don't have deep pockets to be able to speak freely about legitimate concerns about a development application. To date, I have seen no evidence where individuals have in fact been threatened by coming before the OMB.
Citizens involved in the environmental movement said the government is out to lunch on this issue.
Premier Dalton McGuinty's government should stop punishing its citizens and start rewarding people for showing up to OMB meetings to defend the environment, said David Donnelly, a lawyer and member of Environmental Defence, a non-profit advocacy group.
"Minister Watson clearly has never been to the OMB and doesn't understand what pressures families face when they are being hit with millions in lawsuits by developers. Shame on Minister Watson. He needs to do his homework," said Donnelly.
"This is a burden in communities and on families. It is not true to say the process works well. They have to get on to the job of fixing it."
The report, entitled Building Resilience, also recommends closing the Richmond landfill site near Kingston.
Richmond, an older landfill site, is "arguably one of the worst sites in Ontario to ever locate landfill" and it contains millions of tonnes of waste, Miller said. There is little soil at the site and the limestone rock below is fractured, he said. Waste can run "like water through a pipe," seeping down large distances without being naturally filtered, he added.
"It is extremely difficult, if not impossible, to monitor this site."
Also of concern to the commissioner are the declining amphibian species in Ontario such as the spring peeper, Jefferson salamander, pickerel frog, northern cricket frog, bullfrog and northern leopard frog.
"Here is a group of particularly sensitive animals. They are exposed to water, their skins are sensitive to air pollutants and all sorts of disturbances, and guess what? They are dying off around the world at the highest rates," Miller said.
"There are 27 species in Ontario and we should be keeping an eye on them. Somebody should be involved in monitoring their health and looking for ways to mitigate their disturbances."
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Toronto Star: http://www.thestar.com/news/ontario/article/706580--enviro-warriors-left-in-the-cold
A green solution to a neighbour's spat
Oysterman Rodney Clark and developer Hans Jain find an environmentally friendly way to settle what could have been a nasty legal battle
Dave LeBlanc - Globe and Mail
We've all heard of a "golden handshake." Now, thanks to environmental lawyer David Donnelly, Toronto has just witnessed its first green handshake, which may set a precedent for homeowners in older neighbourhoods facing the pressures of infill development.
Shaking hands are self-described "urban oysterman" Rodney Clark, a 17-year resident of east-end Kimberley Ave. and owner of Rodney's Oyster House on King St. West, and developer Hans Jain of Atria Development Corporation.
At issue is Mr. Jain's eight-unit townhouse development, near Main and Gerrard
Streets. While seven of the units quietly snake behind the backyard fence of Mr. Clark's handsome century home, the sole detached unit comes within inches of Mr. Clark's quahog shell-covered driveway, and its tall, blank wall substitutes a good deal of his blue-sky view with unwanted shadows.
"He was shouting into the phone that he had just woken up to the sight of the Trump Tower screening out his sunlight," remembers Mr. Donnelly about the phone call he received from Mr. Clark, who had just come home from a lengthy business trip. "He likes to tell a good story so I thought he was either pulling my leg or he'd switched up his medication."
Since Mr. Clark was an old friend - the two know each other through mutual participation in the Ontario Oyster Festival and its support of the advocacy group Environmental Defence - Mr. Donnelly drove over and had a look. While Mr. Donnelly was aware that Atria had purchased the lot with development approvals already in place and, further, that Mr. Clark and his neighbours had fought the previous developer to reduce the scale and impact of the infill project, he was still "quite surprised" at the size of the one detached house: "It really does dominate that part of the street and certainly overshadows a good part of Rodney's property."
So, after calming Mr. Clark down, he arranged a meeting with Mr. Jain. His expectations for a resolution were high, since he'd had past dealings with the Jain family and found them to be "first-class developers." However, since Ontario does not have "right to light" legislation, which exists in some American states and the United Kingdom, he knew his friend would be "out of luck in terms of the traditional planning tools to force some kind of compliance on Mr. Jain."
In other words, the three men would have to find a more creative solution.
Mr. Clark did have a small bargaining chip. In order to finish masonry and roofing work, Mr. Jain would need to rent Mr. Clark's driveway to erect scaffolding. But, instead of a simple cash payout, Mr. Donnelly suggested that Atria install a solar-thermal unit on Mr. Clark's roof so he could "capture what's left of his sunlight and turn it into green energy," says the lawyer. That way, "every time Rodney takes a shower or does his dishes he can think, 'You know, there's something positive that has come out of this experience about being impacted by infill development.' "
"It's not as bad as lobster fishermen getting a poor catch and getting a subsidy from the Minister of Fisheries," adds Mr. Clark, "and it's not that everyone should be at the front door receiving a cheque - it's that [Atria is] changing the design of the community, therefore they have to put something back into it."
Mr. Jain agrees: "We have to work with our neighbours, and [Mr. Clark] seemed like a reasonable guy; we could have had a long and protracted discourse with lawyers and all of that on a really adversarial basis but, I think, on both our sides it doesn't pay."
In addition to the solar panel, Mr. Jain agreed to hire a local landscape architect to soften the tall, blank wall with plantings. And he's decided to incorporate more sustainable features into future projects: "You want to do better for your children," he says, simply.
After the green handshake, Mr. Donnelly drew up a formal contract, which he hopes will serve as a model for future homeowners in similar situations. Until, that is, the province passes its own right-to-light legislation: "It's the next big battleground on the road to Ontario's sustainable energy future."
It is legislation Mr. Donnelly would be happy to help prepare in order to protect both the homeowner and their sunlight but also allow people to develop more intensively in urban areas. "We have [older and underutilized] two-storey buildings along a subway line, so we have a long way to go," he says. "The [city's official] target is a half-million people in downtown Toronto, in my opinion it should be a million or more and there's only one way to go and that's up."
And, just like an oyster covering an unwanted irritant to form a pearl, so too has Mr. Clark turned what could have been an irritating real estate situation into something much more palatable: "There has to be in the community stewardship, sustainability and some realization that we all have to fish off the same wharf."
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Globe and Mail: http://www.theglobeandmail.com/real-estate/a-green-solution-to-a-neighbours-spat/article1213370/