The Developer and the Environmentalist: Brush Up On Your Pointe Estates Trivia

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Editor’s Note: The proposed Pointe’s Estate development on the Pointe Louise wetland has been a decade long controversy. Tomorrow the developer and the opponents of the development will meet before the Ontario Municipal Board. The developer is appealing the July 15th, 2013 decision by Sault Ste. Marie City Council that overturned the Conservation Authority Board’s resolution to grant Avery a permit to proceed with is development plans.

Confused with everything that has transpired? You’re not alone.

We summarized the most critical -and interesting, points that will bring you up to speed in five minutes or less.

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♦ The Pointe Louise wetland is located near the Sault Ste. Marie Airport. This 83.9 wetland is comprised of two wetland units. It is a coastal wetland and connects to the St. Mary’s River.

♦ In 2006 Jeff and Dr. Patricia Avery put forward their first application to the City of Sault Ste. Marie to acquire a permit for his Pointe Estates project – a 91 home subdivision on the wetland complete with a man-made canal. Avery was routed by the City to the Conservation Authority – his application was denied in accordance with Ontario Regulation 176/06 which prohibits development on a wetland. The request also contravened the City of Sault Ste. Marie’s bylaw that stated any wetland over 2 hectares could not be developed and areas closer than 90 meters to the perimeter of the wetland also could not be developed.

♦ On June 15th, 2010 Avery approached the Conservation Authority Board for a second time seeking a permit for his Pointe Estate project.

♦ The Pointes Protection Association was formed to provide a coordinated voice for the residents of Pointe Louise and Pointe aux Pins in response to the Pointes Estates Development proposal.

♦ In 2010 the Pointes Protection Association hired Brian Henshaw, principal senior ecologist of Beacon Environmental to review the Pointe Louise Wetland Evaluation conducted by Tulloch Engineering for Chant Construction. Henshaw did not agree with Tulloch’s review that determined the wetland wasn’t provincially significant.

♦ Avery’s 2010 request for a permit to develop was denied by the Conservation Authority Board for a second time.

♦ Frank Breen, a professional hydrogeologist and geochemist of 25 years, was hired by Conservation Authority inAugust 2011 to review two reports submitted in 2006 by consultants for the developer.

♦ On October 5th 2012, the media is tipped off that an alleged ‘secret’ Conservation Authority Board meeting was being held at City Hall. Present at the meeting were Jeff and Dr. Patricia Avery, Susan Myers- SSM City Councillor, Ozzie Grandinetti, Brian Watkins -SSM City Councillor, Ken Lamming- Reeve Prince Township and Linda Whalen, Conservation Authority General Manager. It is uncertain what happened at the closed door meeting but Myers was observed leaving the meeting and she immediately handed her registration from the Conservation Authority Board to the city clerk.

♦ On December 12, 2012, the day before he is scheduled to appear before the Conservation Authority to present his conclusions in person, Breen a legal immigrant of Canada since 1992, receives a cryptic phone call from someone imposing as a border security advising Breen that should he attempt to cross into Canada for work purposes he would be denied entry. Legal investigation would later show that no such call ever came from the US/Canadian border control. *Breen’s final report advised the Conservation Authority staff and Board of Directors that he had grave concerns and that further technical work was required to ensure that the subdivision did not pose a risk to human health and the environment.

♦ Conservation Authority staff were in support of Breen’s call for further study but the Conservation Authority Board rejected Breen’s concerns and proceeded with next steps.

♦ On December 13, 2012, members of the Conservation Authority Board entered mediation with Avery. Two resolutions authorizing Avery’s permit for the Pointe Estates Project were both accepted by the Conservation Authority Board on a 3-2 vote. The Board was then comprised of Ken Lamming- Reeve Prince Township, Ozzie Grandinetti and Brian Watkins- SSM City Councillor who voted for the development. And Board members Frank Manzo- SSM City Councillor and Marchy Bruni- SSM City Councillor voted against.

♦ On January 22nd, 2013, Frank Manzo put up a sequence of events motion to the Conservation Authority Board to rescind the two resolutions passed at the December 13th meeting claiming that they were illegal. Manzo moved the new resolution and it was seconded by Bruni. Conservation Authority Board voted against the motion to rescind the resolutions passed in December.

♦ On March 5th, 2013, the Binational Public Advisory Council (BPAC) addresses a letter to the City of Sault Ste. Marie, the Reeve of Prince Township and the Conservation Authority Board of Directors urgently requesting that they reverse their decision to allow the development to proceed. BPAC expressed the decision to proceed with development on the wetland contravenes national and international agreements stating, “The development is at odds with the Great Lakes Water Quality Agreement, recently amended by Canada and the United States.”

♦ Pointes Protection Association challenges the Conservation Authority Board’s jurisdiction in their December 13th, 2012 resolutions. On March 19th, 2013, Helen Scott, lawyer for the Pointes Protection Association, served the Conservation Authority Board a notice of application for judicial review that stated “the Conservation Authority Board’s Resolutions 103/12 and 104/12 on December 13, 2012 ‘are illegal and invalid,’ and contravene the Conservation Authorities Act, and Sault Ste. Marie Region Conservation Authority Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses, as amended under the Conservation Authorities Act.” The documents also state that the Board “exceeded its jurisdiction by passing Resolution 103/12 and Resolution 104/12 with no reasonable evidence to support its decision.”

♦ Avery receives party status in the challenge issued against the Conservation Authority and the Pointes Protection Association is ordered by a Divisional Court judge to surrender $20, 000 into a reserve to be held for Avery in the event that Pointes comes out as the loser. (This matter is now over and the money was returned to the Pointes Protection Association coffers)

♦ On July 15th, 2013, Avery and his associates attend Sault Ste. Marie City Council to seek final approval to proceed with his permit and begin executing plans for the Pointes Estate project. After considering reports and professional testimony from proponents and opponents Sault Ste. Marie City Council denies the permit in a recorded 7-4 vote. Susan Myers city Councillor states, “This is one of the largest and most important planning applications that we may ever have the responsibility of viewing. While it’s true the MNR did not score the wetland high enough to designate the wetland provincially significant- coming in at 85% and 92% of approaching the designation, I believe a large red flag is waving in our faces and warning bells are ringing. Are we deaf and blind to such indicators? Should this development proceed I believe we will live to see the error of such a decision.”

♦ The developer launches an appeal to the Ontario Municipal Board on SSM City Council’s decision. Pointes Protection Association and the Binational Public Advisory Council are granted party status at the appeal.

♦ The Provincial Policy Statement 2014 is issued under section 3 of the Planning Act. It is effective April 30th, 2014and applies to all planning decisions made on or after that date. Of specific interest are the new regulations which prohibit the development of wetlands located in the Algoma District. Further development on a wetland that is located on one of the Great Lakes or their connecting channels- like the St. Mary’s River is prohibited.

♦ Tuesday, November 18th 2014, Ontario Municipal Board hearing on Jeff Avery’s appeal on the July 15th, 2013 decision issued by SSM City Council begins. Pointes Protection and the Binational Public Advisory Council hold party status.

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For a more in depth overview please click here and here to read more of Steffanie Petroni’s coverage on this issue

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