Goulbourn Wetlands Complex

At the instigation of environmentalists, in 2003 the Ontario Ministry of Natural Resources evaluated the Goulbourn wetlands and found them to qualify as a Provincially Significant Wetland. The City was ordered to modify its Official Plan to reflect this status.

Some landowners decided to erase all vegetation, in an effort to frustrate this designation.

The City initiated an Official Plan Amendment but in July 2006, as a result of lobbying by the Goulbourn Landowners Group, Council decided to withdraw and cancel the OPA process.

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(Conveyed by Ken McRae, December 15, 2006:)

A rural landowner in the former Township of Goulbourn, now part of the City of Ottawa, is pressuring the City of Ottawa to proceed with long delayed consideration of his application for a country estate lots subdivision. The property involved is on Flewellyn Road. It is obvious wetland. This property, and a number of surrounding properties, had not been evaluated for wetlands at the time of the developer’s application being submitted. A few years ago, due to the development application and my bugging the City and other agencies, the City hired a professional wetland evaluator, Ron Huizer, to carry out a wetlands evaluation of this and surrounding properties.

The property on the proposed development site, and on parts of a number of other properties affecting some 60 landowners, were determined to be parts of the Provincially Significant Goulbourn Wetlands Complex. This finding was confirmed by MNR staff. As a result of that, in 2005, the City began an Official Plan Amendment (OPA) process to recognize these additional wetlands as being “Significant” wetlands within its OP. Due to much landowner opposition and lobbying of City politicians, the City inappropriately withdrew and cancelled that OPA process. The City is therefore not in compliance with the Provincial Policy Statement (PPS).

The City not only inappropriately withdrew their OPA, but has also approved an Engineer’s Report, under the Drainage Act, to be carried out for a number of the above lands, for the purpose of carrying out drainage on those lands. The City has taken the position that it will only have a new wetlands evaluation carried out for the above lands five years after drainage works are completed. If implemented this will result in the destruction of Provincially Significant Wetlands, and the City knows this.

I raised the above issues with MNR and Municipal Affairs and Housing (MMA). MMA and MNR staff have had discussions with City staff. MMA has told the City that it is in non-compliance with the PPS. The City has refused to comply. The MMA has failed to take any further action on this to date. MNR still considers the wetlands involved to be Provincially Significant.

City staff have told me that the above mentioned developer has submitted the additional studies to the City that were previously identified as being additionally required to support his applications. I’ve also been told that the applications may go before the City’s Agriculture & Rural Affairs Committee in late Feb. 2007.

Before the City earlier this year decided to withdraw it’s OPA to recognize the wetlands, it had taken the position on the above mentioned development that it would be bad planning and that the City would oppose it, if need be, before the Ontario Municipal Board (OMB). Given the City’s present position regarding the wetlands, I’ve been told that the City’s position regarding this proposed development has become uncertain. The City might approve it, but with numerous conditions. One condition would be a requirement for huge amounts of “engineered fill”, which would significantly drive up the cost of the development for the developer, and for any subsequent purchaser of a lot within the proposed subdivision.

I’ve also been told, not by MMA or MNR staff, that if this development application is taken to the OMB that they will not get involved. This needs to be confirmed with the MMA and MNR directly.
The above indicates the sad state of wetlands protection in Ontario.

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Posted with permission from Ken McRae. This concerns an item on the agenda of Corporate Services and Economic Development Committee for September 4, 2007. The staff report is at http://ottawa.ca/calendar/ottawa/citycouncil/csedc/2007/09-04/ACS2007-BTS-RPM-0028.htm

To: Members of the City of Ottawa’s
Corporate Services and Economic Development
Committee
Sept. 3, 2007

Subject: Item # 11 (Rothbourne Road Re-alignment – 6288
Rothbourne Rd., City of Ottawa, 3006484 Canada
Ltd.) on the agenda for the committee’s Sept. 4,
2007 meeting.

Dear Committee Members,

I am one of the 3 Ottawa residents who submitted the Part II Order Request for a Bump-up Environmental Assessment mentioned in the City staff report for Item # 11 on your agenda. The following are my comments on the above Item # 11.

1/ The proposed location for a new road connecting Rothbourne Road and Hazeldean Road doesn’t make financial sense, and would result in significant negative impact to part of the Provincially Significant Goulbourn Wetlands Complex (PSGWC).

Why should City of Ottawa taxpayers have to pay to purchase lands from 3 private landowners to facilitate building a road in the proposed location when the City has a perfectly good unopened municipal road allowance just several hundred metres to the east (between Lots 20 and 21, Concession 12) that could be used instead, with no purchasing costs and lower construction costs?

Please see attached City of Ottawa produced labelled aerial photo entitled “Rothbourne Road Realignment EA2002-1”. It is much more useful for your consideration of this matter than the “ANNEX A” map included in the City staff report.

The above mentioned aerial photo shows the boundaries of the part of the Provincially Significant Goulbourn Wetlands Complex involved in this matter, property boundaries and ownership, the proposed location for the new road, the location of the unopened municipal road, and development in the area. Please note that the unopened road allowance is located well away from residential housing in Stittsville, and would therefore not negatively impact residents there.

City staff will likely tell you that the reason for not using the above mentioned unopened municipal road allowance as the location for the new road is because they were told that some kind of an assurance was given by the former Township of Goulbourn to a landowner adjacent to that unopened municipal road allowance that it would never be opened to establish a road there. Well over two years ago I asked City staff for a copy of any such written assurance. They couldn’t find any such documentation. I also asked two of the members of the last former Township of Goulbourn Council, former Councillor Louise Beggs, and former Councillor Michael Bryan, if they had any knowledge of such an assurance ever having been given. They both said no.

Additionally, in a Aug. 30th, 2004 email to me on this matter former Councillor Beggs (she’s copied on this email)wrote “The question of the unopened road allowance is clear to me. I have no recollection of any “personal” arrangement with the owners of Sunset Farms -or any other affected landowner about the road allowance. It would not have been our practice to give such an assurance anyway. As a council, we were very wary of closing the municipaly’s opitions for a future road use. We also did not give “assurances” to anyone about an unopened road allowance. Even if my memory is failing me- and I don’t think it is- an “assurance” would have no legal clout at all. The only road we officially closed during my time on council was Walker Road. And that required a formal resolution- motion and acceptance- by council. There is certainly a record of that in MInutes, I am sure. As well, a transfer of ownership of a municipal allowance to a private party, would also be minuted. I would insist on seeing a formal Minutes of that “decision” from City staff. I sincerely doubt it exists.”

It would be inappropriate for any municipal council to give any landowner such an assurance regarding a publicly owned unopened municipal road allowance. The public of the City of Ottawa owns that unopened municipal road allowance. Publicly owned unopened municipal road allowances should not be treated as being owned by the owners of any privately owned adjacent lands. Such private landowners don’t own these public lands and they don’t pay property taxes on them. The public of the City of Ottawa owns them and they should be used to serve the greater public interest, not the narrow interest of an adjacent landowner.

There has been a lot of talk in recent months about the City needing to reduce costs and be more responsible in how it spends taxpayers dollars, especially in relation to a goal of keeping property tax increases in the next City budget as low as possible. Every dollar counts. City Council can start by having the new road located on land it already owns.

The City staff report doesn’t make any mention of how much money city taxpayers would have to pay out for purchasing land from the 3 landowners. I assume it would be over $100,000. This shouldn’t happen.

2/ The EA for this proposed new road was fumbled from the beginning by the City’s main consultant (Delcan) carrying it out, and by City staff. The Environmental Study Report (ESR) the consultant produced makes no mention of the presence of wetland, despite a sub-contracted report from Golder Associates indicating that locating a road there would have increased construction costs due to the presence of peat. Wherever you find peat you generally find wetland.

Because that ESR failed to recognize the presence of wetland where it recommended locating the road, it was necessary for myself, and two others, to submit our Part II Order Request for a Bump-up EA. We knew that the wetland involved is part of the Provincially Significant Goulbourn Wetlands Complex, but that part of the complex hadn’t been officially evaluated and designated before. Delcan should have carried out that work before submitting their deficient report, but didn’t. Our Part II Order Request caused that work to be carried out. The result was the Ontario Ministry of Natural Resources (MNR) determining that the wetland there is part of the Provincially Significant Goulbourn Wetlands Complex. Please see attached Oct. 22nd, 2003 letter from MNR (page 1; page 2), Mr. Kerry Coleman, to the City of Ottawa confirming these findings.

Please note that despite the last paragraph in the above mentioned MNR letter stating “Please consider this as notification to update the City’s Official Plan and zoning by-law to reflect this recently evaluated area of provincially significant wetland.”, and MNR providing the City with a map of the boundaries of this wetland, the City has yet to amend it’s OP and zoning by-law to recognize the existence of this Provincially Significant Wetland (PSW)(same as Significant Wetland). I’ve reminded City staff several times of this MNR direction, but it still hasn’t been carried out. Why not?

3/ Despite the City being made aware of the presence of this PSW and the lack of any documentation to prove any legally binding assurance was given to a landowner adjacent to the above mentioned unopened municipal road allowance to ever establish a road there, the City has continued to press on with planning to locate the new road where originally proposed. This is inappropriate and unacceptable.

4/ In the “ENVIRONMENTAL IMPLICATIONS” part of the City staff report for Item # 11 it states, in part, “Environmental impacts were addressed in the Environmental Assessment undertaken for the Rothbourne Road Re-alignment Project as approved by Council on 26 June 2002.”

I have two comments on the above statement. Firstly, “Environmental impacts” were obviously improperly addressed because they failed to take into consideration the PSW there. Secondly, Council approved that ESR on June 26, 2002 without being aware of the PSW there, and without being properly informed regarding the unopened municipal road allowance. Now that Council is aware of the PSW there, and properly aware of the unopened municipal road allowance, Council should overturn that June 26, 2002 approval, and direct City staff to carry out whatever work necessary to have the new road located on the unopened municipal allowance.

5/ Another part of that part of the staff report states “A subsequent Part II Order request was received that resulted in further analysis of the wetland boundaries in this area. This process resulted in the wetland area being deemed Provincially Significant and was subsequently approved by the Ministry of Environment on 22 September 2006. Staff is reviewing this decision in conjunction with affected owners and will be reporting back to Council upon completion.”

The above statement is indicative of just how badly City staff have handled this file. What is there about the Ontario Provincial government’s decision that there is PSW there that requires City staff to review that decision “in conjunction with affected owners”? It appears to me that City staff don’t want to recognize this part of the PSW as such in the City’s OP and zoning by-law and are doing everything they can to avoid doing so, in spite of the Provincial Policy Statement. In my opinion City staff are aiding in the destruction of this PSW between Rothbourne Road and Hazeldean Road. Is City Council going to knowingly condone this? City Council can’t hide from this.

6/ Apart from my comment 5/ above, if it were appropriate, it isn’t, but if it were, for City staff to carry out their above indicated review of the Ontario government’s decision of this being PSW, why are they bringing this recommendation now to Committee, to be given authorization to purchase land, by expropriation if necessary, before they finish that review, report to Council, and receive Council’s direction? This indicates that City staff are being premature in bringing this matter to the Committee. However, since they have done so, they have provided me with an opportunity to bring the above issues to your attention.

Thanking you in advance for your consideration of my above comments.

With Fortitude,
Ken McRae

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Ken McRae wrote to Susan Jones, Director, By-law and Regulatory Services, City of Ottawa on October 16, 2007:

“Subject: Violation of the former Township of Goulbourn’s Zoning By-law 40-99.

Dear Ms. Jones,

I am writing to you to make a formal complaint regarding a violation of the former Township of Goulbourn’s Zoning By-law 40-99. Under that by-law lands zoned “Wetland” have non-residential uses limited to: apiary, conservation use, farm (restricted to that existing on July 9th, 1997), forestry use, and passive park. A part of the Provincially Significant Goulbourn Wetlands Complex (PSGWC), zoned “Wetland” on Schedule A of the Township of Goulbourn’s Zoning By-law 40-99 has been violated by a “use” being made not in compliance with that by-law.

A part of the PSGWC along the south side of Hazeldean Road (a formerly dead-end part of old Highway 7, prior to recent Highway 7 expansion work), in Lot 18, Concession 11 of the former Township of Goulbourn, has been cleared of wetland vegetation, filled, and is now being used as a depot site to store heavy earth moving equipment, other motor vehicles (vans) and several transport trailer boxes or containers. This use is not permitted to occur here under the by-law. The clearing and filling is also presently continuing.”

Ken attaches a number of photos:

– one, taken on Sept. 8, 2007, shows vegetation clearing and storing of heavy equipment, a van, several transport trailer containers, and other items in the above mentioned part of the PSGWC along Hazeldean Road;
 
– another, taken on Oct. 16, 2007, shows a road that has been put into the PSGWC and various above mentioned items; 
 
– a third, also taken Oct. 16, 2007, shows a pile of topsoil to the right of the “Atlas Van Lines” trailer, indicating that filling is ongoing in this part of the PSGWC;
 
– a fourth, again taken Oct. 16, 2007, shows a part of the same site taken from Hazeldean Road, approximately 60 metres west of the roadway entrance shown in the second photo.  When zooming in to get a better view of the pile of topsoil and the levelled fill around it, one can see the wetland cattails and shrubs on 3 sides of that fill and topsoil pile, proving that filling has occurred and is continuing within the PSGWC.
 
Other photos taken March 29, 2006 show the fill and items put in the wetland. 

Ken continues:

“Given the apparent use of the site as a depot for heavy equipment (at least one hy-hoe and a bulldozer) this raises a concern regarding the fuelling of this equipment. I haven’t seen any fuel tanks on the site, but I haven’t gone onto the site this year. Perhaps there are fuel tanks in one or more of the transport trailer containers on the site. Are safe fuel storage and re-fuelling procedures being carried out there?  Please look into this as well, or if this requires some other government agency to look into this please have them do so.

I have written to Ms. Shelley MacPherson, Regulations Enforcement Officer, Rideau Valley Conservation Authority (RVCA), regarding the above actions in the PSGWC, to inquire if a violation of Ontario Regulation 174/06 has occurred there, or if permissions for those actions were given under sections 3 and 6 of that regulation. Part of the site had been altered before that regulation came into effect on May 4, 2006, but the area affected has since been enlarged. The enlarged area affected would fall under the requirements of that regulation. If no said permissions have been issued I’ve asked for enforcement of the regulation.

I’ve also raised the above concerns regarding fuel to her.

The issue of violation of Zoning By-law 40-99 is separate from RVCA involvement via Ontario Regulation 174/06. I formally request that the City of Ottawa enforce Zoning By-law 40-99. The non-permitted “use” in the wetland should be halted; the fill, heavy equipment, storage containers, etc. should be removed from the wetland; and the wetland should be rehabilitated back to it’s condition before the violation occurred.

Thanking you in advance for your attention to the above. I look forward to receiving your response.

With Fortitude,
Ken McRae

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Excerpts from Ken’s letter to Shelley MacPherson, Regulations Enforcement Officer, Rideau Valley Conservation Authority, sent the same day:

“Subject: Potential violation of Ontario Regulation 174/06:  Regulation of  Development, Interference With Wetlands and Alterations to Shorelines and
Watercourses.”

“The regulation’s “Development prohibited” Section 2. (1) (d), which states “Subject to section 3, no person shall undertake development, or permit another person to undertake development in or on the areas within the jurisdiction of the Authority that are wetlands.” has been violated in the above mentioned location, unless the RVCA has given written authorization, as per section 3 of the regulation, to permit the development that has taken place and is continuing.

Section 2. (1) (e), states “Subject to section 3, no person shall undertake development, or permit another person to undertake development in or on the areas within the jurisdiction of the Authority that are other areas where development could interfere with the hydrologic function of a wetland, including areas within 120 metres of all provincially significant wetlands and wetlands greater than 2 hectares in size, and areas within 30 metres of wetlands less than 2 hectares in size, but not including those where development has been approved pursuant to an application made under the Planning Act or other public planning or regulatory process.” This part of the regulation may have also been violated, unless RVCA authorization has been given as per section 3 of the regulation.

The regulation’s “Alterations prohibited” section 5., states: “Subject to section 6, no person shall straighten, change, divert or interfere in any way with the existing channel of a river, creek, stream or watercourse or change or interfere in any way with a wetland.” A part of the PSGWC has been changed or interfered with at the above mentioned location, in the ways described. Therefore, unless the RVCA has given a written authorization, as per section 6 of the regulation, a violation has occurred and the area affected is being enlarged.”

And: “Has the RVCA issued any written permissions as per sections 3 and 6 of the regulation for this site? If yes please mail me a hard copy to Apt. 609, 1545 Alta Vista Drive, Ottawa, Ont., K1G 3P4. If no such permissions have been given then I formally complain about the regulation violations on the aforementioned part of the PSGWC and request that the RVCA take action to enforce the regulation.”

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Conveyed by Ken McRae, December 17, 2006:

I’ll keep you informed of further developments I become aware of regarding the wetland development issue in the Goulbourn Wetlands Complex. I’m planning on sending an email to the MMA Minister Gerretsen, pointing out that he has the authority under the Planning Act to amend municipalities Official Plans when appropriate, when a municipality refuses to do so. I will request that he amend the City’s OP to recognize additional parts of the Goulbourn Wetlands Complex as “Significant” wetlands, as per the Provincial Policy Statement. I’ll do so in a way to make it difficult for him to refuse. No guarantee of success, but it may force the provincial government to address the issue of wetlands protection more seriously.

At this point in time I don’t know if this Flewellyn Road development issue will go to the OMB or not, but it appears likely to. I suspect the City, given it’s present position of refusing to recognize the wetland on that property and surrounding lands as being PS, will try to avoid the issue of that land being PSW, but at the same time try to put so many conditions (related to soils and stormwater management) on any approvals it gives, to cause any development there to be economically unsound. I expect the developer would appeal such conditions to the OMB.

If this matter does go to the OMB, I don’t have the time and finances to be a “Party” to it. I would be a “Participant”, but not a “Party”. If the Greenspace Alliance (GA), and or others, would be a “Party” I would be willing to collaborate with the GA, and or others, on the case.

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(Conveyed by Ken McRae, December 16, 2006:)

The address for the proposed development is 6851 Flewellyn Road, in the former Township of Goulbourn. A 23 lots country estate lots subdivision has been proposed. The developer is listed as “Flewellyn Land Holdings Inc.” (Mario Staltari). The original proposal was submitted back in 2003. The City Planner handling this matter is Steve Belan. I spoke with him on the phone yesterday. I consider him to be a good public servant.

The original application was found to require additional information. The original applications for rezoning and draft subdivision approval had only a draft plan of subdivision, a hydrogeological and terrain analysis report, and a Bernie Muncaster EIS for supporting documentation. A detailed stormwater management plan and soils study were indicated as also being needed. Only a flawed conceptual stormwater management plan was additionally submitted before the developer’s applications went to PEC. Belan provided me with copies of the developers supporting documentation before that PEC meeting. I submitted comments to PEC, for its Sept. 28, 2004 meeting, copied to others.

The City staff report recommended against approval of the applications. A copy of that report can be viewed by clicking on http://city.ottawa.on.ca/calendar/ottawa/citycouncil/pec/2004/09-28/ACS2004-DEV-APR-0189.htm [Report no longer online]

The PEC minutes and decision on this matter are copied below.

“Chair Hume acknowledged a request to defer this item to allow for proper wetland mapping to take place. Councillor J. Stavinga, Ward Councillor, indicated she has been discussing the application with staff and was prepared to support the staff recommendation to refuse. Subsequently, there was discussion with the applicant, who asked that the matter be referred back for further study, which staff had consistently requested. Councillor Stavinga iterated she spoke to Planning and Growth Management (PGM) and Legal Services staff relative to the implications of referral. The Motion before Committee has been drafted in concert with Tim Marc, Manager, Planning and Development Law, and PGM staff. She encouraged the Committee to hear from delegations, but only in relation to referral.

The Committee heard from the following delegation:

Douglas Kelly, Soloway Wright, on behalf of the applicant, posited the application was filed under the former OP, which does not designate the subject land as Provincially Significant Wetland. In reviewing Ministry files, the last wetland evaluation took place in 1994, with a Ministry memorandum to the owner stating there is no wetland on Lot 17. The Goulbourn area was mapped by the Ministry of Natural Resources (MNR) in 1994 and the wetland placed into the Goulbourn OP and approved by the Region in 1996; and, into the ROP in 1997. Their position is quite clearly that they are entitled to be judged by the OP policies at that time and the new OP does not designate the land Provincially Significant Wetland. The nearest Provincially Significant Wetland is 1km away. The Environmental Impact Study (EIS) indicated there was no wetland on the land. The landowner is in no way waiving their right to be judged by the policies in place at the time, which is that there is no wetland on the land. MNR has indicated the land may be an area for complexing. The owner asked to have their environmentalist on site when the study is conducted. As well, there may need to be permission from the landowner between the subject land and the Provincially Significant Wetland. The subject property does not abut and is not within 120m of the Provincially Significant Wetland. For the record, there is no objection to have the study undertaken, but in doing so the owner is not waiving any rights or withdrawing the application.

Iola Price, Ottawa Forests and Greenspace Advisory Committee (OFGAC), and Barbara Barr, Greenspace Alliance of Canada Capital (GACC), were present and in support of the referral.
The following correspondence was circulated and is held on file with the City Clerk:

  • Dated 28 September 2004, from Barbara Barr, GACC, in support of the staff recommendation to refuse the zoning application.
  • Dated 28 September 2004, from Goulourn Wetlands Group in support of the staff recommendation.
  • Detailed submission from Ken McRae, dated 27 September 2004, strongly in support of the staff recommendation.

Moved by Councillor P. Feltmate:

BE IT RESOLVED THAT Item 9 be referred back to staff for further study, such study to include a wetland evaluation on the property by representatives of the City, the Conservation Authority and the Ministry of Natural Resources.

REFERRAL CARRIED”

I was informed by Steve Belan on Nov. 28, 2005 that the applicant had appealed to the OMB “on the grounds that the City has not made a decision…within 90 days of the application.” I later contacted Jennifer Kelly, OMB, indicating my interest in participating in this appeal and she indicated that it was on hold at the applicants request.

The latest is that the developer has submitted additional studies and is now trying to push the City to have the matter go before ARAC for consideration. I’ve asked Steve for a copy of the additional studies. He has just gone on two weeks vacation and will address my request when he gets back.