Post by Max on Jan 2, 2008 13:41:33 GMT -3
Date Published | Jan. 2, 2008
BY BILL BRADLEY
A chunk of land in the Lily Creek, near Centennial Drive, was the major environmental battleground this year.
Citizens who have been fighting for the preservation of this part of Lily Creek not only lost two appeals to the Ontario Municipal Board (OMB) this year, but may soon face $250,000 in legal costs.
However, according to John Rutherford, spokesperson for the Citizens for the Preservation of Nepahwin/Lily Creek Wetlands, it is not over until it’s over.
In late August, the OMB upheld the city’s approval of the new French Catholic elementary school, after the citizen’s group had launched an appeal of the planning department’s decision.
The citizens presented evidence from a hydrology expert familiar with the site that there was no justification to allow development in a 100-year flood plain. The Lily Creek group also contested there was insufficient analysis done on traffic flows in the area, saying the area could not handle increased congestion due to the proximity of the hospital and its ongoing expansion.
Over 6,000 people signed a petition in support of keeping the wetland intact. They even sold a calendar featuring selected photos of flora and fauna on the site, including a photo of a large patch of trilliums, Ontario’s provincial flower.
“We either place developments in wetland areas and try to minimize risk from flooding by engineering and design, or, we use planning measures to keep people away from wetlands in the first place,” said lawyer Rodney Northey, who represented the citizen’s group, in his closing remarks.
Northey said the first concept, the engineered design solution, represents the old way of dealing with flood prone areas, adding the province of Ontario has enshrined a new approach into its Provincial Policy Statement (PPS).
He sharply castigated the city’s planning staff and Nickel District Conservation Authority for being negligent in allowing any development in an area that is prone to flooding, disregarding directives from a senior level of government.
However opposing lawyers, Mary Bull of Toronto and Stephen Watt, the municipality’s lawyer, said if the city followed the strict interpretation of the PPS that Northey implied, it would mean many developments in Greater Sudbury would be considered inappropriate.
“There is an economic and social cost to consider here. This means the very popular James Jerome Sport Complex, across the street, which is on the flood plain, couldn’t be built either,” said Bull.
After losing the first OMB decision, the group tackled a second development project, this time by a private developer.
In late October, the OMB upheld a second application to build a $13 million medical complex adjacent to the school property by Sudbury developer Ed Masotti. This time the group did not present expert testimony, instead relying on their lawyer.
On Oct. 26, the OMB supported Masotti’s project after he had made significant changes. These changes included altering the site plan by reducing the size of the parking lot and increasing the amount of green space on the property.
Masotti also provided an expert witness that said the project was safe and viable in that location.
Masotti told Northern Life he was considering recouping $91,000 in costs for consultants he had to hire to defend his project. Later he decided to up the cost recovery to $250,000 to include significant legal costs.
“I am not a ‘mega developer’ from Toronto. I certainly did not expect to have these kinds of costs and the financial impact has been significant,” said Masotti.
“If you read the decision, the reason for awarding costs is fairly obvious…the appellants listed a number of reasons why they thought this rezoning should not be approved,” he said.
Masotti said that included failure to provide a proper traffic study, so he had to hire a traffic engineering firm to do an extensive scientific traffic study and the engineer appeared at the hearing ready to testify. The appellants then dropped the issue at the hearing, said Masotti.
“The same goes for my fisheries expert, my storm water, floodplain and hydrology expert who did extensive calculations to ensure there would be no flooding hazards...before he agreed to testify on my behalf he had to ensure that he could defend his argument on the stand. The same goes for the wildlife biologist and the planner I hired.”
Masotti said his lawyer had to interview all his experts in anticipation the appellants would provide their own expert witnesses.
“So I accrued enormous costs to defend myself against something which had no evidence, no merit and was frivolous,” said Masotti.
The developer said he intends to complete the building in 18 months after he starts the construction in late spring.
John Rutherford said Monday his group had applied for an appeal with the Superior Court of Ontario concerning both the school application and Masotti’s medical building.
“We should know in a matter of days if we can appeal the school and in February about Masotti’s medical building,” said Rutherford.
As for Masotti’s application for cost recovery, Rutherford said that could only occur after the appeals to the higher court were held.
“We’re not worried about this filing for costs. We are confident justice will prevail,” said Rutherford.
BY BILL BRADLEY
A chunk of land in the Lily Creek, near Centennial Drive, was the major environmental battleground this year.
Citizens who have been fighting for the preservation of this part of Lily Creek not only lost two appeals to the Ontario Municipal Board (OMB) this year, but may soon face $250,000 in legal costs.
However, according to John Rutherford, spokesperson for the Citizens for the Preservation of Nepahwin/Lily Creek Wetlands, it is not over until it’s over.
In late August, the OMB upheld the city’s approval of the new French Catholic elementary school, after the citizen’s group had launched an appeal of the planning department’s decision.
The citizens presented evidence from a hydrology expert familiar with the site that there was no justification to allow development in a 100-year flood plain. The Lily Creek group also contested there was insufficient analysis done on traffic flows in the area, saying the area could not handle increased congestion due to the proximity of the hospital and its ongoing expansion.
Over 6,000 people signed a petition in support of keeping the wetland intact. They even sold a calendar featuring selected photos of flora and fauna on the site, including a photo of a large patch of trilliums, Ontario’s provincial flower.
“We either place developments in wetland areas and try to minimize risk from flooding by engineering and design, or, we use planning measures to keep people away from wetlands in the first place,” said lawyer Rodney Northey, who represented the citizen’s group, in his closing remarks.
Northey said the first concept, the engineered design solution, represents the old way of dealing with flood prone areas, adding the province of Ontario has enshrined a new approach into its Provincial Policy Statement (PPS).
He sharply castigated the city’s planning staff and Nickel District Conservation Authority for being negligent in allowing any development in an area that is prone to flooding, disregarding directives from a senior level of government.
However opposing lawyers, Mary Bull of Toronto and Stephen Watt, the municipality’s lawyer, said if the city followed the strict interpretation of the PPS that Northey implied, it would mean many developments in Greater Sudbury would be considered inappropriate.
“There is an economic and social cost to consider here. This means the very popular James Jerome Sport Complex, across the street, which is on the flood plain, couldn’t be built either,” said Bull.
After losing the first OMB decision, the group tackled a second development project, this time by a private developer.
In late October, the OMB upheld a second application to build a $13 million medical complex adjacent to the school property by Sudbury developer Ed Masotti. This time the group did not present expert testimony, instead relying on their lawyer.
On Oct. 26, the OMB supported Masotti’s project after he had made significant changes. These changes included altering the site plan by reducing the size of the parking lot and increasing the amount of green space on the property.
Masotti also provided an expert witness that said the project was safe and viable in that location.
Masotti told Northern Life he was considering recouping $91,000 in costs for consultants he had to hire to defend his project. Later he decided to up the cost recovery to $250,000 to include significant legal costs.
“I am not a ‘mega developer’ from Toronto. I certainly did not expect to have these kinds of costs and the financial impact has been significant,” said Masotti.
“If you read the decision, the reason for awarding costs is fairly obvious…the appellants listed a number of reasons why they thought this rezoning should not be approved,” he said.
Masotti said that included failure to provide a proper traffic study, so he had to hire a traffic engineering firm to do an extensive scientific traffic study and the engineer appeared at the hearing ready to testify. The appellants then dropped the issue at the hearing, said Masotti.
“The same goes for my fisheries expert, my storm water, floodplain and hydrology expert who did extensive calculations to ensure there would be no flooding hazards...before he agreed to testify on my behalf he had to ensure that he could defend his argument on the stand. The same goes for the wildlife biologist and the planner I hired.”
Masotti said his lawyer had to interview all his experts in anticipation the appellants would provide their own expert witnesses.
“So I accrued enormous costs to defend myself against something which had no evidence, no merit and was frivolous,” said Masotti.
The developer said he intends to complete the building in 18 months after he starts the construction in late spring.
John Rutherford said Monday his group had applied for an appeal with the Superior Court of Ontario concerning both the school application and Masotti’s medical building.
“We should know in a matter of days if we can appeal the school and in February about Masotti’s medical building,” said Rutherford.
As for Masotti’s application for cost recovery, Rutherford said that could only occur after the appeals to the higher court were held.
“We’re not worried about this filing for costs. We are confident justice will prevail,” said Rutherford.
