Presentation to Council re Pieper proposal -- July 21, 2009

 

Good morning Ladies and Gentlemen. My name is Dwayne Verhey, representing the Lake Waseosa Ratepayers' Association. Here with me at the table today are John Forder, our Ripple Lake representative on the Board and Bill Somers, our Ripple Lake representative. When we where here last, we gave each member of the committee an extensive report. We hope that you have had time to at least look it over. Understanding that time is short, we won't repeat ourselves here today. But that report forms a part of our presentation. Also, to help save time, we have consulted with Mr. Tony Doob and Mr. Barney Dales, who spoke to you the last time. Our submission today is a combined submission representing the views of all three parties. However, all that said, this is a complex issue that really requires a substantial amount of time. This application is not a minor one. It affects all of our lake and, indeed, has implications for the comprehensive zoning by-law that you passed in June 2008 . This is why we asked you to reject the proposal. The OMB spent three days hearing the issues before ruling against this proposal in 2007.

 

Under the Ontario Municipal Act, there are 4 conditions each of which must be met in order for a Committee of Adjustment to approve a minor variance.

 

First of all, the variance must maintain the general intent and purpose of the zoning by-law. Does this meet that test? No. Absolutely not. In fact, the proponent admits that by also applying to have the by-law changed. We'll return to that point in a moment.

 

Second, the variance must maintain the general intent and purpose of the official plan. Does this proposal meet that test? No, absolutely not. As we pointed out in our original presentation to you, this proposal is contrary to the existing Lake Plan that is on file with the Town,the Official Plan recognizes the validity of individual Lake Plans and in fact, grants precedence to an individual Plan over the general provisions of the Official Plan. With all due respect to the Staff Report, the LWRA Lake Plan was indeed the result of a formal public process. The LWRA held several public meetings of all interested waterfront property owners fronting Lake Waseosa during the development of this Plan. There are no legislated requirements or procedures for the creation of a Lake Plan that invalidates that approach. There is nothing contained within the Lake Plan that contradicts any portion of the Official Plan, therefore there was and is no need to amend the Official Plan to accommodate the provisions of the Lake Plan. And finally, there is nothing contained within the Official Plan that differentiates between a stand-alone Lake Plan such as ours and a Plan that has required amendments to the Official Plan.

 

Third, the variance must be minor in nature. The OMB and the Divisional Court have held that that there are two factors that determine whether a request for a variance is too large to be considered minor, or that the impact is too important to be considered minor. To quote from an important case that went to the Divisional Court - Rosedale Golf Association vs Degasparis:

 

"Impact is an important factor but it is not the only factor. A variance can, in certain circumstances, be patently too large to qualify as minor even if it likely will have no impact whatsoever on anyone or anything. This can occur, for example, with respect to the first building on a property in a new development or in a remote area far from any other occupied properties."

 

In this case, creating four lots from one clearly is not minor in nature.

 

In our last presentation, we outlined the impact this development would have upon the lake - not just in terms of the impact on wildlife, the lake trout population and the environment in general, but also the recreational and aesthetic impact on the community.

 

Fourth and finally: the variance must be desirable for the appropriate development or use of the land.

 

Nature has divided this land into two parts, falling on either side of the ridge. Let's first look at the portion on the lake side. The applicant's own report makes it clear that this land is not suitable for building homes and boathouses on. Duke Engineering repeatedly states that "Cutting of existing vegetation between the shore and the top of the bank must be prevented to prevent erosion and instability of the steep earth portions of the slope."

 

So how steep is "steep"? The applicants often refer to the slope as "greater than 20%" and in a sense that is true. The minimum slope is about 20%. When Mr. Snow attempted to subdivide this property in 1978 the slope was considered "over 30%" and the Commissioner noted he had to dig his heels in to walk down. When this applicant first attempted to subdivide, their expert of the day used the phrase "over 25%". Obviously the slope varies from place to place in any natural setting. The average slope at the northern edge of the property is 42 meters drop in 133 meters distance or 31%. The average slope midway between the northern edge and the existing building is 47%. The overall average slope is difficult to pin down exactly, but lies between 30 and 40% and as you can see from the photographs we included in the package we gave you at the last meeting, in places the slope is 100%. Those cliffs are generally near the top of the ridge and the gentle portions that comprise the 20% slopes are at the bottom of the hill next to the water, which is a typical profile of most cliffs - the debris that falls off the cliff gathers at the bottom over time and rounds it out.

The Duke report submitted by the applicants makes mention of what they generously refer to as a "road". You can actually make out the scar of the road in the wide angle photo we previously submitted, transversing the hill from the existing buildings to the north end of the property. It is actually the remains of the boat launch ramp carved out by the previous owner, Frank Ferrante in 1991. He tried to use it - once - and almost lost his truck in the process.

Finally, there is a point that cannot be ignored. The applicant filed two new reports with the town in June 2009. The town planning department says this "additional information from qualified professionals regarding hydrology and construction constraints, which indicates that the lots are suitable for development." In fact, both of these reports highlight and confirm much of what we have been saying all along.

The Duke Engineering report explicitly says that in a number of ways the application is dangerous to the lake. Indeed, the report recommends a very different use of the lots. Most notably it suggests that any buildings must be placed on the road side - not the lake side - of the top of the ridge, precluding the possibility of boathouses, etc, being built, and that the path be 10% smaller than what is proposed.

To quote directly from the Duke Engineering report it says, in relation to each of the three proposed new housing lots, that

 

"The land rises steeply from Lake Waseosa to a defined top of bank, from which the lands fall towards to East Waseosa Lake Road. ... ... The area from the top of the bank easterly to East Waseosa Lake Road is considered suitable for the construction of a dwelling, conventional... sewage system and access roadways. ... ...cutting of existing vegetation between the shore and the top of bank must [be] prevented to prevent erosion and instability of the steep earth portions of the slope"

 

 

Figure 5 of the proposal (which follows page 7) is the topographic plot showing the top of the bank as the dotted line labeled ‘topographic drainage break.' As you can see from the contour lines, the land falls off to either side from that point. The road side of that line is the area Duke Engineering considers suitable for building on. The lake side of that line is the area where Duke says must remain undisturbed except for a narrow path.

 

 

 

 

Now we refer you to Figure I, as referenced in the application. While not drawn to scale, it is clear that the ridge line forms the boundary between the lands proposed to be zoned "Conservation" on the road side and the lands proposed to be zoned "SR-2" on the Lake side. The proposed location of the septic beds is shown on that sketch, but the proposed location of the buildings is not. However, it is clear from the report that the only area considered acceptable for building by Duke Engineering is in the area the applicants propose should be zoned "Conservation". And the applicant's proposal that the area be zoned as "conservation" explicitly forbids the building of dwellings.

 

 

Finally, we now refer you to the sketch labeled "Appendix II" in the report from staff. This sketch is not drawn to any identified scale either, but by comparing the locations shown for the proposed septic systems on the two respective sketches, we can see the buildings are located well down lake side of the bank which is far beyond the area identified as suitable by Duke.

 

Unfortunately, this huge discrepancy between what Duke Engineering supports and the actual proposal was missed by the Town Planners.

 

Ok, on to the other side of the ridge where the applicants suggest Conservation zoning is in order. The slope on this side is shallower, making building possible. However, each building must have a septic system. They admit that the soil depths are insufficient for the construction of a septic system. Instead they propose to import soil to the site. Yet this solution ignores both the District of Muskoka's Lake System Health Program and the testimony before the OMB in 2006 by Dr. Robertson which clearly demonstrated that imported soil is not an adequate solution. To quote from Dr. Robertson:

 

"Although calculations based on laboratory phosphorous adsorption tests, suggest that the soil zone and imported fill will have the capacity to adsorb the sewage P load for centuries (Michalski et al., 2004), it may be unwise to provide too much reliance on such calculations for the following reasons;
1) sewage loading to the tilebed, even if pumping is used, will not be entirely uniform over the area of the bed,
2) laboratory sorption tests measure relatively rapid (minutes to hours) attenuation mechanisms that occur in the lab under controlled conditions. It cannot be guaranteed that similar mechanisms will be maintained under variable field conditions and under very much longer time scales (decades),
3) laboratory studies (Zurawsky et al., 2004) and now a recent field example (Sturgeon Bay site, see below) have shown that phosphorous adsorbed in tilebed sediments can be readily remobilized should conditions become slightly more reducing. This might occur if the degree of saturation within the sediments increases as result of precipitation events, snow melt events, or from periodic heavy sewage loading (e.g. long weekends)."

 

Imported soil will not address the septic issue. It does not have the same characteristics and density of natural soil and it cannot make up for an inadequate layer of underlying natural soils. Add this to the recent evidence that has been presented to you and is uncontradicted by either of the applicant's more recent reports proving the bedrock is indeed fractured and it is obvious that the land is not suitable for the proposed use, and therefore it fails to meet the fourth test. This was clear when the OMB last examined this proposal and it's even more clear today with this revised proposal that packs the three smaller lots into the steepest portion of the property. "

 

The OMB has held that the granting of a minor variance is a "special privilege" and the Divisional Court has held that, in addition to the four statutory tests, a Committee of Adjustment may also consider the issues of "need" and "hardship". In doing so, the Committee must understand that by "need" the Divisional Court stipulated an applicant has to be able to demonstrate something more than personal preference as a justification for a variance. There is a public interest here that clearly surrounds the implementation of the by-law.

 

The applicant has not yet seriously attempted to argue "need" or "hardship" in this case, but let's examine that possibility for a moment.

 

A good example is the recent application by the Canadian Diabetes Association to upgrade the septic system at Camp Huronda on Lake Waseosa. Upgrading their septic system is clearly in the public interest. The only available area, short of moving existing buildings, placed one corner of the new septic system 29 meters from the shoreline, instead of the mandated 30 meters. It would be undue "hardship" to move the existing buildings, there was a "need" to cross the 30 meter line, and the difference between 30 meters and 29 meters is clearly minor.

 

In the case of the proposal before you, there is no need at all for additional septic systems if there are no additional lots. There is no public interest in creating additional lots - there is an existing inventory of lots available for development on Waseosa. In fact the subdivision of this property into new lots is contrary to the public interest. Therefore there is no need.

 

Nor do the terms of the zoning by-law as it now stands impose anything on the applicants. They are not being forced into making any changes to their property or buildings, either as they exist or under their proposals. Therefore there is no "hardship".

 

Clearly, the applicants have failed to satisfy any of the four tests. Failure to satisfy any one of the four tests prevents you from approving this application. In addition, they have failed to satisfy either of the two implied tests.

 

Even if they had somehow satisfied the tests, the inclusion of the word "may" in section 45 (1) of the Planning Act indicates that the jurisdiction given to a committee of adjustment to grant minor variances is permissive and confers on it a residual

discretion as to whether or not grant them even when the four tests are satisfied.

 

Now let's return to their application for re-zoning.

 

We said before that they are attempting to circumvent the OMB. Today's hearing is turning into a rehash of the OMB hearings. As Mr. Sniezek said in his OMB decision in 2007, "It appears that the planners in this case have only focused on the Phosphorus tree to the exclusion of all the other trees or risks in the lakeshore planning forest. The issues of lake capacity and risk from other sources have not been addressed [by the applicant]." On the basis of inadequate consideration of all of the issues, the OMB turned down their application.

 

Let's have a look at the letter from HydroTerra that the applicant's claim supports their position. We can only surmise that this has been submitted in lieu of an actual hydro-geological study of the subject lands as was requested at the meeting of this committee in February. It appears from the details of the letter that no-one from HydroTerra ever visited the site, and instead are simply reviewing the witness statement of Dr. Robertson at the 2006 OMB hearings. We are not sure what the precise expertise is of the author since no qualifications are described in the report, but we would remind you that Dr. Robertson's qualifications are second to none, he was qualified by the OMB as an expert witness and his testimony was subject to cross-examination.

 

The letter talks about retention of Phosphorus by the soil. This subject occupied much of the OMB hearing, with sworn testimony subject to cross-examination. It is true that some soils can bind phosphorous. The process is called adsorption. Adsorption must be distinguished from absorption. The binding to the surface is usually weak and reversible. Initial retention rate is quick, after which the reaction is significantly weakened. A surface already heavily contaminated by adsorbates is not likely to have much capacity for additional binding.

 

It is likely that the soils can adsorb phosphorous most of the time. But during heavy rainfall or the spring thaw, the uncontradicted evidence accepted by the OMB demonstrates that most of that retained phosporous is vulnerable to being rinsed away into the lake in locations such as this one.

 

The HydroTerra letter also claims phosphorous will also be attenuated by vegetation uptake on the way to the lake. However, removal of phosphorus by a septic tank and disposal field is considered to be insignificant because the disposal field lies underneath the biologically active upper soil region. The OBC requires the septic field to be covered with grass, which has a very shallow root structure that does not extend down to the level of the water table. Unless the system is malfunctioning, the effluent simply flows below the roots.

 

The letter suggests that waterflow may occur horizontally over the bedrock and through the soil. They admit they have no data for local conditions, but give some sample examples from studies of other areas. Without providing any evidence, they suggest that the response of the water well indicates a low fracture density and imply that there is not much water flow through the rock.

 

This is contradicted by actual experience with the site. As we showed you when we were here last time, there is sufficient mid-winter water flow to prevent the lake from freezing in that area. While elsewhere on the lake the ice was 1 to 2 feet thick, there were hundreds of square feet of open water at the end of January after many weeks of constant sub-zero temperatures. It appears that HydroTerra was never informed about this fact, or they chose to ignore it. One way or the other their letter completely ignores the evidence that was evident to anyone who was motivated to look at the land and the lake in this area. How much waterflow is required to keep ice from forming in a Muskoka lake in mid-winter? How small can the cracks be if they can support that kind of water flow?

 

Hydroterra notes the expected phosphorus increase as a result of this development was calculated to be as much as 0.1 to 0.2 ug/L (presumably for each of the dwellings). The difference between the modeled threshold of 11.48 and the current value of 10.6 as estimated by the District is 0.88. The resulting contribution of this proposal is a non-trivial portion of the difference. Said differently, they are suggesting that this one development could raise the phosphorus concentration of the lake as much as 0.6 ug/L (3 x 0.2) which is about 2/3 of the currently estimated ‘safety buffer' between our current level and ‘threshold.'

 

The applicant's suggestion is that this development will not push Waseosa back over the threshold and that therefore the rezoning should be allowed. If the science was exact and if this was the only development on the lake, that might be true.

 

Unfortunately, "no man is an island" as they say. We cannot look at this application in isolation. The applicants tried in 2006 at the OMB hearing to argue that this application should not depend on the development of other lots on Lake Waseosa. That argument failed.

 

The whole principle of the Official Plan and Zoning bylaw process is to plan for the future for the whole community. If this development eats up 2/3 of the available buffer, then what is left for the planned development? Over the time these readings were taken, there were 12 existing approved lots ready for development. Since then, homes have been constructed on two of them. If 3 new lots would consume 2/3 of the estimated buffer, then those 2 homes have now consumed almost ½ of the buffer. This is consistent with the model used by Dr. Patterson of the M.O.E. As we explained in February, Dr. Patterson calculated that based on the numbers currently accepted by the District, it is likely that development of the remaining lots of record will push Waseosa over the threshold. It will take years to verify whether these models are truly accurate, but at the moment, by the applicant's own figures, this development will push Waseosa back over the threshold. HydroTerra's conclusions do not take into account the 10 remaining approved lots of record yet to be developed or the continuing redevelopment and increased use of existing properties.

 

As we outlined earlier, the proposed Zoning by-law amendment ("Appendix III" of the staff report) completely ignores the serious discrepancies between this proposal and the advice of Duke Engineering. It completely ignores the critical issue of the placement of the proposed houses on lands that the applicant is asking to have zoned as "Conservation". The proposed zoning by law directly contradicts what even the applicant's expert considers to be safe planning. Thus neither the Duke Engineering report nor the letter from HydroTerra - both of which the applicants themselves solicited - support the application before you. The applicant's own experts are telling you that the application before you is flawed and a risk to the lake.

 

 

The applicants would have you believe that the only reason the subject lands are zoned as they are is because Waseosa was considered "Over Threshold" by the District and that with the recalculation of surface phosphorous, that zoning can automatically be changed to whatever they want it to be. As we pointed out, that is untrue - the only change that comes about from the recalculation is the removal of the "Holding" provisions on existing approved lots.

 

The fact is that zoning is dependent on much more than the recreational water quality of the lake before the land. There are 5 levels of Shoreline residential zoning for a reason and many examples of SR5 zoning being applied to properties on lakes that have never been classified as "over threshold". The Official plan quite clear on this issue, stating

 

"The minimum required shoreline frontage for a linear residential lot shall be 60 metres (200 feet). The frontage may be increased beyond 60 metres (200 feet) on a particular lake where the character of the lake warrants such increased standard, where development or environmental constraints dictate the need for a larger frontage, or where the characteristics of the particular lot require an increased standard."

 

In general, SR5 zoning was applied to most properties surrounding Waseosa for several very good reasons. Despite ongoing efforts of the local residents to reverse decades of damage, the deep water quality of the lake is still undisputedly fragile. The lake trout population is threatened due to extremely high levels of phosphorous (around 240µg/L) and low levels of dissolved oxygen (around 4%).

 

 

The Official Plan also states that

 

"Most of the lakes and rivers in Huntsville already have extensive amounts of development around their shorelines, and have varying amounts of vacant or undeveloped land. The focus of development on many of the lakes will be more on the redevelopment of existing properties rather than on new lot creation or development of vacant lots.

 

The character of the Waterfront will be maintained by retaining the traditional

mix of land uses and the overall low density of development, as well as

preserving the natural environment, particularly related to water quality,

topography and landscape, vegetation, natural shorelines and significant

natural areas and habitats.

 

A variety of lot sizes will be encouraged to address the design principles of

this plan."

 

Waseosa is one of the most densely developed lakes in Huntsville. The planning consultant hired by the previous council, Jim Dyment, Town Staff, and the Lake Waseosa Ratepayers' Association all arrived at that conclusion independently and from different directions. And all of these studies were completed before Camp Huronda started its expansion process. When complete, there will be an even higher load on the recreational carrying capacity of the lake than is indicated in those figures.

 

In effect, Waseosa's evolution has produced cluster development on a grand scale - many small lots grouped together on the land easiest to develop separated by some larger tracts of unsuitable land. There are many postage stamp sized existing lots along the shores of Waseosa. We cannot reverse those mistakes of the past and force people to bulldoze their homes. The only option is to prevent those last few tracts of undeveloped land from being further subdivided. Clearly Waseosa falls in the category contemplated here, and was classified by you in June 2008 as SR5.

 

However, generalities notwithstanding, there is ample justification to zone that specific property as SR5. Again, we refer you to the official plan which also states:

 

"New development and the redevelopment of existing properties will maintain a

low structural profile with limited visual impact in relation to the tree line."

 

This proposal intends to position the buildings at or near the top of the ridge on one of the highest hills in Huntsville. There will be a visual impact. It is unavoidable. Even if the eventual owners were convinced to build behind the ridge, they will want to build high enough to see the lake over the ridge. What is the point of buying waterfront property if you cannot see the water?

The Official Plan goes on to say :

 

"The preservation of the quality tourist commercial land base fronting on water

is essential to the long term health of the tourism industry in Huntsville.

 

When viewed from the water, the visual impact of development is an

important consideration in maintaining the character of a waterbody. The

natural environment is intended to be the dominant landscape feature around

a waterbody. Disturbance on lots should be limited and minimized and the

maximum amount of vegetation should be retained on a lot. Vegetation

should be maintained on skylines, ridge lines or adjacent to the top of rock

cliffs... ... Structural development that would create a new skyline or

ridgeline above the tree canopy will not be permitted.

 

and

 

...rock faces, steep slopes, vistas and panoramas should be preserved

and vegetation should be maintained on skylines, ridge lines or

adjacent to the top of rock cliffs;

and

 

Shoreline structures should be located in such a manner as to minimize the

visual impact on neighbouring properties, and should avoid sensitive

environmental features, both on shore and in the water..."

 

As we have pointed out previously, this development will face Camp Huronda, a mere 300 meters across from their outdoor chapel. The wilderness environment is a major factor in the overall experience offered to these children. Do we want them to remember a panoramic vista or a subdivision?

 

So we have shown why SR5 zoning is completely appropriate for this particular plot of land. The zoning was applied only a year or so ago by this council on the recommendations of staff and your consultant, Richard Hunter, after a long process of public meetings. If the applicant truly felt that a different zoning classification was appropriate, why didn't they participate at that time? To say that the surface level phosphorous was the only factor is nonsensical, given that they were fully aware of the controversy surrounding the 2001 reading, having just gone through the OMB and Divisional Court hearings.

 

The applicant must demonstrate to you why SR5 is not appropriate, and they have not done so. To change the zoning classification at this stage requires them to provide you with clear and convincing evidence that a different zoning classification is more appropriate. Zoning is the tool by which the policies of the Official Plan are implemented to plan for the future. The applicant's approach in this matter is to decide what they want to do, then ask you to apply the whatever classification that meets their desires. And even then they want some additional exemptions. This is not a planning process, this is justification for the same lack of foresight that got Waseosa into this mess in the first place.

 

We ask that you consider the precedent this would set town-wide. Yes, planning and zoning are an ongoing process and it is sometimes necessary to reconsider the rationale behind a particular past decision. But would allowing this applicant's rationale for rezoning lead to a flood of similar requests?

 

Together with the zoning by-law change required is the actual consent to subdivide the land. Section 51 of the Planning Act provides the following criteria:

 

In considering a draft plan of subdivision, regard shall be had, among other matters, to...

...

(b) whether the proposed subdivision is premature or in the public interest;

(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;

(d) the suitability of the land for the purposes for which it is to be subdivided;

...

(h) conservation of natural resources and flood control;

 

Is this proposal in the public interest? No. In fact it runs contrary to the public interest, as we have already demonstrated.

Does this proposal conform to the official plan? Again, we have already demonstrated that it does not.

Is the land suitable for the purpose? Absolutely not. The steep slopes of over 30% prohibit building anything on the lake side, the shallow soils prohibit constructing an adequate septic system on the other. Their own engineer confirms this.

How does this proposal affect the natural resources of the area? It places the water quality of the lake in greater peril and it defaces the natural vista that is so important to the character of the area. While the applicant suggests that this will somehow increase tourism by bringing 3 additional property owners to Huntsville, the reality is that it will diminish the attractiveness to the tourists we want to entice.

 

The Lake Plan for Lake Waseosa addresses the character of the Lake. Part of the character relates to the stability of the Lake and the fact that there are some relatively undeveloped parts of the Lake. The applicant pays lip service to the "character of the lake" without any attempt to understand or define what exactly the character of the lake truly is.

Would the average homeowner respect a ban on any development on the waterfront side of the ridge ? Would they go to the considerable expense of properly maintaining and regularly testing a tertiary septic system? Town staff has enough difficulty getting people to respond to a simple septic system survey. Will they have sufficient resources to police enforcement of any special restrictions? If the answer to any of these questions is in doubt, then you should not consider a site plan agreement to be adequate insurance.

In conclusion then, reports from the applicant's own experts show the application is inappropriate. The HydroTerra letter shows there is insufficient margin to accommodate existing lots of record, nevermind the creation of new lots. The Duke Engineering report shows the only suitable location for the buildings is on the land the applicant wants zoned "Conservation" which itself clearly prohibits residential use.

The applicant gives no justification to overturn the existing SR-5 zoning designation established one short year ago after an extensive public process, beyond their own convenience.

The applicant has not adequately addressed the issues that caused you to defer a decision this past February.

The application does not meet the tests required under the Planning act.

The application does not address the planning issues that caused almost identical applications to be rejected by previous Councils in 1978 and 2005 and by the OMB in 1978 and 2007 nor does it address the concerns raised by the Ontario Divisional Court of Ontario in favour of the LWRA's position in 2008.

We apologize for the necessity of taking up so much of your time today, but it was necessary for us to place all the facts before you. It is important for the Town to protect the integrity of the zoning system, to protect the lakes and to work with us to promote responsible, appropriate development. We urge you simply to do the right thing. You have a seriously flawed scheme before you that does not deserve to be approved.