A Tale of an OMB hearing

Rezoning of Trinity land at the Carp River: A tale of an OMB hearing

For two and a half days, February 20 to 22, 2008, Ted Cooper stood his ground in a hearing before Susan Schiller, Member of the Ontario Municipal Board, and against Tim Marc, lawyer for the City of Ottawa, and Joel Farber, representing Trinity Development Group Inc. Ted Cooper, a water resources engineer with the City of Ottawa who, at the developers’ request, had been taken off the Kanata West project in 2004, appeared on his own dime to appeal a rezoning of Trinity lands at Hazeldean Road near the Carp River. (They comprise 17 hectares and are destined for big box development.) The rezoning had been approved by City Council in August 2007 and involved relocation of Hazeldean Creek as well as (be it with a “Holding” provision) development of the so-called “fringe” of the Carp River flood plain at this particular location.

(The Provincial Policy Statement issued under the Planning Act allows establishment of a “2-zone” policy of flood plains under certain conditions. Exactly when a distinction between the “fringe” and the “floodway” is allowed was one of the elements contested at the hearing.)

At 6:30 p.m. the night before the hearing, Tim Marc wrote Ted Cooper, advising him that there is case history forbidding an “advocate” (appellant or his/her agent) to also appear as an expert witness. Joel Farber chimed in minutes later to agree, also announcing his planned list of witnesses. Sure enough, at the start of the hearing in the Keefer Room at City Hall, Farber and Marc supplied the Member (and Ted) with case law buttressing their claim. The Member then informed Ted that he had to make an election: provide evidence, or be the advocate, outlining the implications (rights and restrictions) of both. There is no reference to this circumstance in the Board’s elaborate Rules and Procedures and no-one in Ted’s circle had been aware of this apparent convention.

Back in November, “the Board” had decided, at the request of Trinity, to hold a 3-day hearing. Ted had asked for a pre-hearing, where a Procedural Order could have been discussed and an orderly and civil preparation of a hearing could have been organized. Clearly, the City and the developer had decided that springing surprises was going to win the case with the least effort.

Ted, being the foremost expert on the water resources engineering aspects of the issues, had prepared an extensive Witness Statement with many Attachments. Admittedly, here and there it veered over into “Argument” – reflective of his dual status.

The room was packed at the start of the hearing, with some familiar and many new faces of the Ottawa Citizen, Patrick Dare attended all, and Randall Denley most of the hearing. Their reports, Denley’s on Day 1, Dare’s on Day 2 and Day 3 and another column by Denley [You need an OPL card number to access most of these articles] are fair reflections of the proceedings and this tale aims to minimize duplication.  Councillor Qadri’s assistant was present throughout as was Mr. Qadri much of the time. As the hearing went on, the crowds thinned out considerably. The prevailing picture became, behind City and developer, a dozen or more staff and consultants, at the ready to assist their lawyers, while on Ted’s side, besides those mentioned, few were seen. I shared Ted’s table for almost all of the duration of the hearing.

After a 20-minute recess, Ted decided to abandon his Expert Witness Statement and be an advocate only, hoping that, through indirect means, his evidence could be brought to bear.

A few days before the hearing, his fellow water resources engineer at the City, Darlene Conway, had agreed to testify for Ted, like him on vacation time. She prepared a Witness Statement, about which more later. As Ms. Conway commented to me, there was nothing in her Statement that she had not conveyed to management earlier, so there were no surprises or should be no controversy about her statements. Her interest was in making sure that the Board would hear the facts.

Ted’s documents filled a small 3-ring binder. Marc and Farber provided a joint submission, two 4-inch binders with documents. The City’s witness, however, had no written Witness Statement, nor did the key (and as it turned out only) witness for Trinity.

Trinity’s witness then proceeded with giving a lengthy “non-opinion” background briefing on the context and history of the by-law before the Board. In the course of this it was learned that 70% of the work to relocate Hazeldean Creek had already been completed and water was flowing in the new channel.

(On the second day of the hearing CBC News reported that dumping was going on at the Trinity site. The innocent citizen wonders what the point is of a zoning by-law, let alone of an OMB appeal, if in fact the work implementing key provisions of the by-law is already taking place. This is not an isolated instance of such practices – in fact it appears to be standard procedure for the development industry in this town.)

In a gracious move, the City then agreed to put its witness up first. He testified that all is well and the by-law is appropriate.

In cross-examination, Ted got the City’s witness to agree that there “may” have been some errors in the flood level analysis underlying the Kanata West development and that, if flood levels were greater than currently expected, then allowing this by-law to stand would not be good planning. It was also established that the floodline referenced in the by-law was the line determined by the Mississippi Valley Conservation Authority in 1983. There have been at least five intrusions in the flood plain since then, and there have been several flooding incidents upstream and downstream of the Trinity lands. Landowners downstream of Richardson Sideroad (which is at the urban boundary and where the developers’ proposed Restoration of the Carp River ends) over the years have found their lands flooded to ever higher levels during spring melt.

As to 1-zone or 2-zone flood plain policy, the City’s witness put forward the theory that, piece by piece, a 2-zone policy is being implemented (which is interpreted as allowing the “fringe” to be filled up and built upon), resulting eventually in a new 1-zone, namely the redefined channel and reduced corridor width of the River. This has recently been referred to as “modified 1-zone” – a concept that is nowhere to be found in any legislation, policy statement or technical guideline.

Throughout the first day and the second, Ted ran constantly afoul of the rules prescribed by the Member on what were appropriate questions and what not. Marc and Farber regularly rose to object to this or that.

On Day 2 Darlene Conway took the stand. She has 20 years experience as a water resources engineer but this was her first time at an OMB hearing. She was accepted as an expert witness. Even as Ted was soliciting direct evidence from her, he continued to be admonished by Member or lawyer on what he could say or how, or on what exhibits were acceptable. When it came to bringing forward the core of her testimony – that there were significant errors in the flood level analysis which casts doubt on the accuracy of the line upon which the by-law is based – all forces came down to prevent it. Marc argued that the flood level modeling is not before the Board; Farber noted that Ted’s appeal letter does not reference the 1983 flood line; the Member instructed that determining the flood line is the responsibility of the Conservation Authority and none of her concern. As a result, the Board did not hear that:

– the flood level analysis and design of the River Restoration project have proceeded without adequate calibration and validation using real data;
– sensitivity analysis is no substitute for the absence of actual data;
– the post-development analysis indicated reduced flood levels – a physical impossibility, given the absence of major diversions or significant infiltration;
– run-off from the 700 hectares of future development in Kanata West was omitted from the modeling exercise; correction of this error alone results in an increase in flood levels of 0.2 to 0.3 metres;
– the size of the stormwater ponds assumed in the model is considerably larger than the sizes shown in the actual designs, resulting in an overestimation of water storage in the order of 18,000 cubic metres;
– other storage is double-counted, resulting in a further overestimation of 12,000 cubic metres;
– there is a discrepancy in run-off volumes between the hydrologic and hydraulic components of the analysis, which when corrected could result in even greater flood level increases;
– the approximately 200 hectares of future development on the Fernbank lands that drain to the Carp River are not included in the analysis.

Another important part of Ms. Conway’s testimony was about where a 2-zone policy is appropriate. Based on her experience and interpretation of the relevant documents, it was her professional opinion that establishing a “fringe” in a “greenfield” development is contrary to Provincial policy. In Closing Argument later, Farber called this opinion “political.”

She also offered the opinion that relocation of a watercourse with two 90-degree angles is difficult to accept as conforming to “natural channel” design principles. She further noted that, under current plans, more than 50% of the current drainage area for Hazeldean Creek would be directed elsewhere, which could significantly affect the viability of the creek’s plant and animal communities.

Trinity’s witness followed. During cross-examination, after much argument, the City’s recent letter to the Ministry of the Environment was accepted as an Exhibit. The letter asked that consideration of Part II Order Requests regarding the Kanata West projects be suspended due to apparent errors in the flood level analysis.

After instructions on the limited scope permitted in Reply Evidence, Ted attempted to re-open the matter of the use of the 1983 floodline, relying on a section of the Official Plan that he had not mentioned earlier. Objections were raised all around and the Member agreed to take “judicial notice” that, as a City employee, he should have known about that provision. End of that discussion.

On the third day, in Final Argument, having been frustrated on all sides to bring some reality to the proceedings instead of adhering to a narrow interpretation of the issues before the Board, Ted managed to hold forth for an hour. He offered a proposal to extend the area near the River for which a “Holding” provision would apply and to likewise hold open the option of using 14 metres more land so that the Creek would have a 30-metre corridor throughout. (The narrowing from the standard corridor came about because the City wanted more land for its Transit station. However, the Environmental Assessment for this transit facility is far from completed.)

In summarizing the facts and making argument, he continued to be thwarted by objections from either lawyer but mercifully somewhat less so from the Member. Even so she would frequently intervene to convey her take on what she had heard from the witnesses. At the mention of the flooding in Glen Cairn, Farber exclaimed: “I don’t even know where Glen Cairn is!” Well, he’s from Toronto.

Final Arguments by Marc and Farber followed. Farber’s final point reached a new low – so low it received a gentle “now, now, Mr. Farber” from the Member and left others aghast. He noted that Mr. Cooper did not live in Ottawa and that no-one in Ottawa had appealed, so that Mr. Cooper had no credibility in making this appeal.

In closing, Ted reiterated that his primary reason for appealing this by-law was his concern for Public Health and Safety, that the recent discovery of errors in the underlying modeling provide support for his concern and that this by-law should be considered in that light.

Don’t hold your breath on what the Decision will say.

Erwin Dreessen
26 February 2008

Update 2 May 2008:

The OMB’s Decision was released on April 25, 2008. The appeal was denied. The Decision turned on the finding that “the City has properly and reasonably relied upon Mississippi Valley Conservation to set the flood line. If MVC felt its work was outdated and the flood line should be changed, it has ample opportunity to so advise the City and make that change. … MVC has not objected to the by-law now before this Board.” And further: “The significance of any errors in the modelling for technical studies that support the Class EAs are under study by the City. Additionally, the Minister of Environment must be satisfied and approve the Class EAs before any holding provision can be removed. The Board finds that the public interest in matters of public health and safety with regard to environmental flooding conditions is appropriately protected by these review and approval requirements.”