Dr. Bryan Dumanski appeared before the Conservation Authority Board Monday evening to bring forward a request to rescind a series of resolutions passed under the former administration. The Conservation Board consists of a few brand spanking new members, save for Board Chairman, SSM Councilor, Marchy Bruni, and Board member, SSM Councilor Joe Krmpotich.
Like a pitbull, Dumanski has sunk his teeth into what he feels is unresolved business left behind by the old regime. He laid his grievances on the table speaking from a prepared speech that he occasionally strayed from to pointedly engage the Chair and members of the Conservation Authority Board.
Monday night, and on the heels of an announcement issued by developer Jeff Avery to appeal a decision made by the Ontario Municipal Board against his proposed development on a wetland- a development approved by the former Conservation Authority Board, Dumanski sought to have the resolutions passed three years ago by the Board which approved the proposed Pointe Estates development, rescinded.
According to Dumanski, as well as a former Conservation Authority Board member- Frank Manzo, the resolutions were not only crafted in secrecy but were also illegal.
A bit of background for the reader: 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Board voted against the motion to rescind the resolutions passed in December also stating that resolutions could not be rescinded for a period of twelve months as per Robert’s Rule of Orders.
Referencing the resolutions presented by Ken Lamming on December 13th, 2012 Dumanski stated, “Lamming had two resolutions in his briefcase. He pulled them out and read them and they negated 176/06 which is a fiduciary duty that every Conservation Authority is supposed to adhere to in Ontario. I don’t think you can have a resolution to quash fiduciary duty.”
Under the Conservation Authority Act, in accordance with Ontario Regulation 176/06, development on a wetland is prohibited. However, the 2014 Provincial Policy Statement lays out myriad criteria with much more restrictive, as well as clear language, regarding development on wetlands.
Below is a very partial transcript of Dumanski’s presentation to the Conservation Authority Board.
“The Conservation Authority prepared a report that concluded that the applicant had not provide an extensive hydrogeological information needed to demonstrate that the available groundwater could meet quality standards with on-site treatment. Only one test well was used to conclude water quality resource. Eight were requested. Eight is government standard- one was done.
I respectfully ask, how was the past Board and how are you, able to approve this development? In addition I have since attended many Conservation Authority Board meetings where I witnessed many conditions being applied to routine developments such as the construction of a garage where there are many stipulations that have had to be met by a developer. On December 13th 2012, this project, with all the questions left in the open regarding public health and interests, had no conditions of development attached. Absolutely none. The Conservation Board has actually approved the destruction of one of the few major Lake Superior wetlands. The Conservation Authority Staff has indicated the potential for serious environmental risk and risk to people already living in the area and the upper St. Marys River. There’s some housekeeping that has to be done here.
Frank Manzo tried to table a resolution to abolish the illegal resolutions of December 12th and the Chair, Ken Lamming, and board member, Brian Watkins, stated according to Robert’s Rules of Order that you have to wait twelve months before you could rescind a resolution thinking that would provide enough time to get it passed by the City Councilors. Falsifying parliamentary procedures are not something that I think this Board should take lightly, nor honour the application of the resolution that it protected. That was the last Board’s doing. It needn’t be this Board’s doing.”
In response to Dumanski’s presentation, which ran about ten minutes, Conservation Authority Board Chair, Marchy Bruni, replied, “What this Board can promise you, because we have new Board members on board right now, I think they have to get as much information, review everything and then we’ll bring it back to the table for discussion. They’ve only been to two meetings. So they are fairly new and to be respectful to them I’d like to see them provided with information to review. That’s what I can promise you.”
Concluding the matter was a final comment from Dick Hetrick, a resident in Pointe Louise. Hetrick was one of about ten people who came out to support Dumanski’s request to the Board. Hetrick addressed the Conservation Authority Board and spoke to the matter of the Avery’s proposed Pointe Estates development.
“I followed this from day one for the past seven or eight years. I say to the new Board members- in the criteria for a wetland I believe your own Conservation Authority states that you cannot develop on a wetland- period. Keep that in mind. The second thing to consider is that during the OMB hearings it became very evident from the testimony that there is a lot more plant life and animal species in that whole complex than was earlier designated. When you really get into it, it is a significant wetland. But anyway –that’s an old issue. That is old legislation going back to 2005. The third thing I wanted to say is that nowhere in any newspaper or any communication did they talk about the final day of the OMB hearing when the City Solicitor got up on the final day and presented her reasons for not supporting the development. Obviously the City is concerned with the legalities. If there is a problem who is at fault if the project goes ahead? I’m a taxpayer. I’m a citizen of Sault Ste. Marie and we all know if the shit hits the fan then the City often has to get involved and that could be at the taxpayer’s expense. So the City Solicitor – she’s no fool, she sees the potential issues if things go bad. I’m just saying the City Solicitor came out against the application being approved and I think that is very important.”
It is worth noting that of the handful of folks in attendance at the meeting many, if not all, were stunned and dismayed that these new Board members seemed unfamiliar with the highly publicized, costly and contentious issue of the proposed Pointe Estates development on the Pointe Louise wetland. The Chairman’s comment above would seem to indicate that these new recruits have a tremendous pile of documents, reports and amassed historical emails to plow through before they are caught up to speed on this issue. This issue which lathered up the City of Sault Ste. Marie, drew from the taxpayer’s coffers and incited international collaboration before the Ontario Municipal Board.
Ok, ok. I can take a hint. So what did Sault Ste. Marie City Solicitor, Nuala Kenny, say in her closing remarks at the OMB hearing this past December? Well if you’ve made it this far you can read her entire final submission copied below.
“I’m pleased to tell you that I will not be very long….I do have some issues that I’d like to make known please. And I’d like to begin by thanking the Board for your obvious and careful consideration of this matter. This is a long standing matter in the community and it’s one of great concern to people in the community. I think we’re very lucky to have had a Board member that is so attentive to the lengthy and at times very tedious hearing. I’d also like to take the opportunity to thank other Counsel and parties. I’ve attended this Board where there are much shorter issues and less contentious issues where the behaviours were not close to the degree of professionalism that this group showed. I think at times emotions might have been running high but people showed incredible restraint.
My role in this hearing has been to represent City Council. It is the practice in Sault Ste. Marie, when Council denies the City’s planning recommendation, not to provide Council with expert witnesses or any witnesses for that matter which makes my role very challenging. I am in the precarious position of being potentially accused of being overly zealous or not being zealous enough in defence of City Council’s decision. And that role is, I think, worsened by the fact, that unlike court or a tribunal or an OMB, City Council does not give reasonings for its decision, rather a sentence or two is published as to why the matter was denied. And I can tell you that often that sentence is my words. So I know further ahead that in understanding their decision, except to say that it was a considered decision after a very lengthy Council meeting that had a great deal of information and submissions made to it.
So I offer that by way of background and the submissions that I want to make to the Board really centre on four areas. One is the effect of community improvement by the development. The second is the loss of wetland. The third are the proposed safeguards to the environment that have been proposed by the developer. And the fourth area is that of deference to City Council’s decision making powers.
So I’ll begin with the community improvement and I think that there is no doubt that the development as envisioned would be a first class development. The Avery family both personally and professionally enjoy an outstanding reputation. I don’t think anyone thinks for a minute that anybody thinks that the development wouldn’t be a remarkable development. But it is a development that would be attractive to a small sliver of the community. We’re looking at large lots and large estates …backed onto a canal for homeowners to enjoy boating and yachting. This is not affordable housing nor is it put forward as affordable housing. But my submission is- nor is it even affordable for the average working family in Sault Ste. Marie. This is upper echelon development. The contemplated boat launch is not a public boat launch. It is a private boat launch that will certainly be available for the condo owners and maybe others but it is not a public boat launch.
I’ll move on to the second area which is loss of wetland which of course consumed a great deal of this hearing and we heard great discussion about it. It seems plain to me that there is no point in reviewing the significant/non-significant designation by the province, it is agreed, conceded that it is not a significant wetland by provincial standards. But what we do know is that there’ll be loss of a wetland. By the Planning Director’s own depiction ‘a huge chunk will be lost’. I went into law because I cannot do math. I’m not going to make any efforts to discuss the various numbers that were batted about. But l like Don McConnell’s description of a ‘huge chunk’. We heard one expert who said that ‘yes remediation is possible’ but in terms of plant life appropriate remediation may take hundreds of years.
I want to move on to the safeguards contemplated. Through a series of experts the developer put forward expert ideas about how to ensure that the canal would stay flush and fresh. And one manner in which the canal would stay flush is through seiching. Well this is not a predictable form of flushing. It is dependent on seasons and the wind and other natural factors. So if the canal happens, for whatever reason- maybe through high use, to be in need of flushing, seiching is not the go to. It is not predictable. Similarly we heard that the canal would be flushed through the use of ship traffic. And ship traffic also has its problems. We know for a fact that shop traffic stops entirely for a portion of the winter months. It can be impacted by economic or labour failures. And then we heard that the final safeguard would be that of a manual pump system that would be operated and maintained by the condominium corporation. That final back stop of the pumping system being dependent on the condominium corporation is problematic. Corporations are created by human beings. And that human being component determines the diligence with what the corporation operates. A strong diligent condo corporation, I have no doubt, will do an outstanding job of maintenance and ensuring that the pumps are used when needed and that they are maintained. But if you have a less diligent condo corporation, if you have a condo corporation that for some reason is strapped financially, that will have direct impact on whether or not the pumps are maintained properly and implemented. And if those safeguards to keep the canal safe fail we heard that the affects in the extreme could be catastrophic. It could create, what we heard one expert refer to as, a fish kill.
And finally I want to make reference to the deference that needs to be paid to City Council’s decisions. Of course I acknowledge that the Ontario Municipal Board trumps City Council. But the key implementers of the Provincial Policy Statement are local decision makers- like City Council. City Council heard the concerns of all sides on that night it voted, on July 2013. It was a considered decision with a long history behind it and I would urge this Board to uphold that decision. However, I did hear the Board yesterday clearly saying -to return to law school and argue the alternative, and to that end I put to you that if the Board sees fit to allow the development that much like Mr. Rosa recommended that the planners have an opportunity to come together and make submissions, certainly on the OPA, and the zoning by-law, possibly the other documents too.
Those conclude my comments. Thank you.”