SSM| Pointes OMB Decision: Developer Ruminates Next Steps

The ways of the government are odd.

Not unlike a cheerleader candidate checking the school bulletin board every morning to find out if she made the squad, parties involved in the Ontario Municipal Board hearing process are required to diligently check the OMB website to find out about the status of their case. When Jeff Avery learned about the OMB’s decision to dismiss his appeal to move forward the proposed Pointe Estates project-a 91 home sub-division contentiously located on the Pointe Louise wetland, it was via media reports.

Of the decision Avery commented, “I’m disappointed but I’m not devastated by the results of the hearing. It was a long hearing and an expensive one. It’s not what we wanted to hear. As far as I’m concerned I was pleased with what we did at the OMB. I think our evidence was good and it was solid. It’s all up to the Chair and he made his decision and we have to respect that decision.”

But the OMB decision doesn’t necessarily mean the end of the battle for Avery. Counsel for Avery will thoroughly review the decision and if an error of law is found within the final report Avery would have recourse to appeal the OMB decision in Divisional Court.

“And we’ll do that if an error is found,” remarked Avery.

And of the nearly decade long fight to advance his project Avery chuckled, “Am I running out of gas? Yeah, I’m getting on low. I’m getting tired.”

Jeff and Dr. Patricia Avery began acquiring parcels of land in the Pointe Louise area in the 1980’s. Over the years the couple began shaping a vision of a “unique lifestyle” for some of the residents in the Sault and perhaps even attract professional newcomers to the community.

“It was never a huge moneymaker –it was never a make it or break it deal,” he said of the Pointe Estates dream. “It was work for our company, creating employment, creating a lifestyle and making it a nice thing for our area. Our goal wasn’t to get rich or anything like that. That was never our intent and still isn’t our intent.”

During his testimony before the OMB in November 2014, Avery projected that the cumulative costs of government mandated reports and legal fees would put him at a break-even profit should the Pointe Estates project proceed. In today’s phone call, Avery lamented the expenditure incurred for additional reports and repeating reports to satisfy challenges asserted by the Pointe’s Protections Association.

“About seventy percent of the studies that I did needed to be done. I duplicated several of the studies simply because of some of the NIMBY’ism I received from some of the neighbours. So some of those studies were repetitive and those were annoying.”

In 2004, the Avery’s acquired the final parcel of property that would enable them to transform their concept of a lifestyle community and implement a plan of action. However, government regulation of wetlands had evolved significantly in the years since the Avery’s purchased their first property package on the Pointe Louise wetland, and before advancing his project Avery engaged the Ministry of Natural Resources to conduct a wetland evaluation.

“I bought the wettest part of the wetland back in 1995 and the rules and regulations about wetlands were pretty lose back then. But then they started getting more restrictive after that. So in 2004 I had the property evaluated [by MNR]to determine whether or not the wetland was provincially significant. And it wasn’t. It was the most unbiased study I ever had completed on the property from the point of view that nobody knew what I was planning on doing except for myself and my wife. And that study gave us the green light to build. Had it been a red light I would have stopped right then. We even had the support of the Conservation Authority. They gave us a list of things to address and I brought in the experts to do that. We did more wetland studies because that’s when Peter and Company [Pointe’s Protection Association] started to get on the Conservation Authority’s case. And then it all went downhill from there.”

When asked why he experienced such opposition from his neighbours out in Pointe Louise, Avery remarked, “Because it’s change. Nobody appreciates change. I got screwed by my neighbours.” And then added, “And then when the government came up with those new Provincial Policy laws, I got screwed by the government.”

So if there is no error of law to be found in the OMB final decision, what of Avery who now possess a wetland that is not permitted for development?

In an interview back in 2014 with MNR senior media relations officer, Jolanta Kowalski, stated that, “the province does not compensate any land owner for the identification of a provincially significant wetland on their property.” And for that matter- coastal wetlands as is the case for Avery.

Kowalski also added, “The Ministry of Natural Resources and Forestry recognizes that many of Ontario’s most significant natural areas are privately owned and that it is important to encourage private stewardship of wetland features. The Conservation Land Tax Incentive Program is a program offered by the Ministry which has been designed to recognize, encourage and support the long- term private stewardship of Ontario’s provincially significant conservation lands by providing property tax relief to those landowners who agree to protect the natural heritage values of their property.”

Barring government tax incentives or simply not doing anything with the wetland, another alternative for Avery would be to consider donating the wetland to an entity such as the Lake Superior Watershed Conservancy. Landowners that do this receive a tax donation receipt of the appraised value of the land and the property is often donated as a legacy in the landowner’s name.

However, this is not the legacy that Avery had in mind when he set out to create something quite different- “a lifestyle community, an investment in the City of Sault Ste. Marie.”

So how will Avery proceed should he find himself stuck with a swamp?

“My B plan isn’t real strong,” said Avery. “We invested heavily in the A plan. But right now donating the property isn’t heavily on my radar. To be honest, I haven’t really given it much thought.”

To read the OMB’s full decision click here.