Pointe Estates OMB Hearing: Two Critical Decisions, Week One

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This week Jeff and Dr. Patricia Avery went head to head with the City of Sault Ste. Marie, Pointe’s Protection Association and the Binational Public Advisory Council.

In 1984 the Avery’s purchased a small swathe a land in Pointe Louise. Over the next twenty years they acquired more real estate in Pointe Louise with the hope of developing a unique lifestyle community someday- “a legacy to leave behind for the community”. In 2007 the couple were ready to bring their dream to fruition and initiated the first steps in acquiring the required permits from regulating bodies to begin building their project- Pointe Estates subdivsion, 91 homes complete with a man-made canal and boat launch access to the St. Marys River.

But a group comprised of about 30 families that live in Pointe Louise organized and called themselves the Pointes Protection Association. They opposed the Pointe Estates project and advocated for the conservation of the 116 acre wetland that would be lost to the development. After almost ten years of reports and applications the Sault Ste. Marie Conservation Authority gave the approval for the development to proceed. The Binational Public Advisory Council became involved and asked the Conservation Authority to reverse their decision but the request was futile.

Eventually the matter ended up before City Council and the developer was seeking a planning permit to proceed. Council denied the permit on a 7-4 vote. And Avery took his appeal to the Ontario Municipal Board.

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The Ontario Municipal Board hearing commenced on Tuesday, November 18th, 2014. At the onset of hearing the Chairman, Blair Taylor, prioritized two critical issues to settle that would impact the proceeding: 1) the matter of a road closure on Allagash Drive and; 2) what version of the Provincial Policy Statement to use  -i.e. 2005 or 2014.

Hurdle #1: The Road

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The first issue to be dealt with was the road.

The OMB expressed concern that the hearing could be premature if the lifestyle community proposed through the Pointe Estates development be ‘fatal’ should the City of Sault Ste. Marie not allow the road closure of the Allagash bridge.

A significant component of Avery’s development centres on excavating the wetland for the purposes of establishing a canal thus connecting it to the St. Mary’s River and allowing boat launch for homeowners in the potential subdivision. The developer would create an alternate road for Pointe Louise residents.

Debate in Chambers as to who ‘owned’ the road to be closed was succinctly clarified by Counsel for the City, Nula Kenny, who stated, “The water lot under the bridge is owned by the Avery’s. The bridge proper is owned by the City and money has been spent on its maintenance by the City. So if that road is to be closed it is not the same as a civilian closing a private driveway. It needs a bylaw from the City.”

Upon hearing from all parties the Chairman issued his decision stating, “The road closure by-law falls within the exclusive jurisdiction of City Council. It is not appealable to this Board. The Board has considered the matter and the hearing will proceed. I would like to emphasize that the Board will not interfere with the jurisdiction of City Council and the appellant is advised that he proceeds with this case at his own risk.”

The importance of the Chairman’s decision on the road matter is weighted on the fact that had he decided that further studies were required the OMB hearing would have been suspended until further approvals were obtained by the developer.

Hurdle #2: Provincial Policy Statement

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The release of the 2014 Provincial Policy Statement (PPS) this past spring created an issue as to what PPS would govern the appeal- the 2005 version or the 2014 version.

Orlando Rosa, Counsel for the developer, asserted that the 2014 PPS was subsequent to the application made before Council by the developer, and therefore, to be consistent with the applications and reports filed by the developer under the 2005 PPS regime, Rosa argued that it ought to be the 2005 PPS that informed the OMB hearing.

Helen Scott, Counsel for Pointes Protection, argued otherwise referring directly to Section 3.1.5 of the Planning Act which in summary states that decisions made by the OMB must be in accordance with present policy statements or in other words- current legislation must inform the OMB decision making process.

Scott concludes that the 2014 PPS should govern the hearing stating, “This wording tells us that exercises  relayed through this Board that relate to a planning manner is to be consistent with the PPS that is in effect on the date that this Board makes it decision.”

Klaas Oswald, speaking on behalf of BPAC, supported Scott’s position pointing to what is not in the 2014 PPS. “The absence of any transition provision in the text of the Planning Act suggests that this is a deliberate choice of the province,” submitted Oswald. “Had it been appropriate to include a transition piece the province would have done so. Thus, it is abundantly clear that it is the 2014 PPS that applies.”

After summarizing the points of all parties the Chairman issued his decision based on the guidelines laid out in the Planning Act and specifically that OMB decisions must be made in accordance with the current PPS. He stated, “The Board notes that the Planning Act does not say that it is the Provincial Policy Statement in effect on the date of the application. Therefore the Board finds that it is the 2014 Provincial Policy Statement that is to be applied to all decisions affecting the planning manner after April 30th, 2014.”

Why the Ruling on the 2014 PPS Matters

The 2014 version of the PPS would seem to make it next to impossible for Avery to realize his vision of developing a lifestyle community- something that he and his wife have imagined since 1984.

The revisions to the 2014 PPS in part and specific to the Pointe Louise wetland, prohibits the development and site alteration of coastal wetlands in the Algoma District, unless there will be “no negative impacts on the natural features or their ecological function”.

Also, in part and specific to the Pointe Louise wetland, the 2014 PPS defines ‘coastal wetland’ as “any wetland that is located on one of the Great Lakes or their connecting channels (Lake St. Clair, St. Marys, St. Clair, Detroit, Niagara and St. Lawrence Rivers)”.

Given that the Pointe Louise wetland is connected to a tributary- the St. Mary’s River which connects to Lake Superior it is by the 2014 PPS definition, a coastal wetland and therefore development upon it would be prohibited.

However, if the OMB rules against the appellant, Avery could appeal the decision to a higher court if :

  • The proposed appeal relates to a question of law;
  • The question of law is of sufficient importance to merit the attention of the Divisional Court; and
  • There is reason to doubt the correctness of the OMB’s decision.

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Day three of the OMB Hearing.

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