Appeal to the County of Lambton


 

This executive summary was delivered to the County of Lambton in December, 2015. We have yet to hear from the County regarding their consideration of the municipality’s submission.  OWCLA will continue to monitor this situation and report back to you. We are not prepared to accept the municipality’s submission as it is written.

To:  Clerk David Cribbs, County of Lambton
      Warden Bev MacDougall, County of Lambton

From:  Ontario West Coast Landowners Association

Re:      An Appeal to Lambton County Council Regarding the Lambton Shores Official Plan Submission (2015) for Tier II Approval

Date:   December 18, 2015

Executive Summary

On November 24, 2015, despite public outcry, Lambton Shores Council, in a recorded vote of 6 to 3 in favour, passed a motion to send the Planner’s 7th draft of the Official Plan to County for Tier II approval. We are asking County Council to reject this Official Plan submission and return it to the municipality for due process. It is our contention that over the past several months, Lambton Shores Council by way of its lack of action in open Council meetings, has not complied with the spirit or letter, in whole or in part, of the Municipal Act, the Planning Act or the Provincial Policy Statement in producing this document.  A significant number of Lambton Shores citizens have expressed their opposition to specific content inherent in this Plan but Council has chosen to disregard their concerns.

Our opposition to this Plan is based on the following points:

    • No prescribed public meeting process was observed for this rendition of the Plan despite the fact that over 50 significant differences exist between it and the 6th In the Planner’s final report PL37-2015 (Appendix A) to Council that recommended the Plan be received for Council direction, the Planner notes only 6 ‘major’ changes.
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    • Outdated and misleading information has been cited to support specific positions in the Plan.
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    • Concealment of topical and relevant information in certain sections.
    • Questionable assertions made throughout the Plan that have no apparent grounding in reality.
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    • Improper Council procedure to support specific content within the Plan.
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    • A disregard by Council to answer pertinent questions posed by citizens with identified concerns with the content of the Plan.
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    • No transparent and accountable rationale for an identified future capital project that the Province has already informed the municipality is unnecessary. This project will have an adverse impact on the social, economic and environmental character of the target area.
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    • A disregard for the negative impact that a future proposed capital project is already having in parts of the municipality by virtue of Section 21, Material Facts, in The Real Estate and Business Brokers Act, Code of Ethics (Appendix B).

 The Official Plan

“Land use planning affects almost every aspect of life in Ontario. It helps decide where in communities homes and factories should be built, where parks and schools should be located and where roads, sewers and other essential services should be provided.  It helps each community to set goals such as how it will grow and develop and how it will reach these goals while keeping important social, economic and environmental concerns in mind. It balances the interests of private property owners with the wide interests and objectives of the whole community.  Good planning leads to orderly growth and the efficient provision of services.  It touches all of us and helps us to have the kind of community we want”.

(Ontario Citizens Guide, Official Plan, updated 2010). The word “helps” is noted a number of times in this message from the Ontario Government. It suggests that the Official Plan process should be a collaborative one where consensus is built between elected representatives, municipal staff and the general public by way of meaningful dialogue that charts a course for effective and efficient land use in a municipality.

The Lambton Shores Official Plan

The development of the 7th draft of this Official Plan submission was neither collaborative nor built on consensus.  The attached spreadsheet (Appendix C) outlines identifiable differences between the 6th draft and the submitted version wherein the public has had no input as Provincial regulation would prescribe.

The following examples note just some of the differences between the submitted version of the Official Plan and its predecessor that are raising alarm throughout the municipality:

    • Section 2.5 “Rural Areas” — this is a new definition previously not included in Draft 6. It requires clarification. The municipality has mixed use areas. The term, rural settlement area, is not clearly defined. On the Plan’s maps it appears that the entire coastal area has been designated as settlement. Is it urban or rural settlement and what will the difference mean to future and existing development?
    • Section 2.5 “Rural Lands” — this definition is new to this Plan. It needs clarification to avoid any potential misunderstandings with regards to future land use.
    • Section 2.5 “Specialty Crop Area” — this is a new addition to the Plan with no rationale for its inclusion.
    • Section 3.1 – lines 3 and 4 — “significant development pressures along the lakeshore potentially threaten Lambton Shores many unique features”. What development pressures?  What unique features are being threatened?  The only developments that we are aware of in the northern part of the municipality are well inland of the coastal area.  What development is being referred to along the lakeshore?
    • Section 3.3.2.1 “Policies” — this is a policy change from Draft 6.
    • Section 3.3.2.2 “Shoreline Protection” — despite repeated requests there is no identified legislation, regulation or policy to support the contents of this section.
    • 4.2.1 ‘Natural Heritage Areas’ “Policies” — sourcing of the material in this section is cited as “(PPS)”. Where specifically in the 2014 Provincial Policy Statement is this new policy required? Why doesn’t the Plan identify specific legislated, regulated or Provincial Policy Statement requirements to support the Plan’s direction? This has not been done throughout the report, with little exception.
    • Section 3.4.2.2 “Significant Woodlands” — the changes in this section from the previous draft are of significance to property owners adjacent to these identified areas. These changes could have implications under the Expropriations Act, but that has not been recognized in this section or PL Report 37-2015.
    • Section 3.4.2.5 “Wildlife” — the sentiment expressed in this section appears to be contradictory to the intention of Council to consider installing sewers in natural heritage areas despite there being no demonstrated need as stated in Section 13.3.2. Table-2  this table uses source information from Watershed Report Cards, ABCA 2007 and SCRCA 2008. To accurately reflect the material, why wasn’t ABCA’s Watershed Report Card from 2013 cited?
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    • Section 3.10.1 “Areas Susceptible to Groundwater Contamination”— Why does the Plan use the Lambton County Groundwater Study 2004 to support its position? There are more current and relevant documents available, such as the Lambton Shores Ad hoc Sewer Advisory Committee Final Report 2012 (Appendix D), the Minister of the Environment’s  Report to the municipality 2013 (Appendix E) or the University of Waterloo Groundwater Study Report 2015 (Appendix F).
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    • Section 4.1 “Agricultural – Goals and Objectives” — Why isn’t the information contained in this section referenced or sourced?
    • Section 4.3 “Policies” — bullets 3 and 6 encourages livestock farms “to prepare a Nutrient Management Plan to ensure they have adequate manure storage in the interests of proactive groundwater and surface water protection”. What constitutes “proactive groundwater and source water protection”? What do these terms define? What are the implications of this section in terms of the provincially approved practise of using propel on farm lands? Bullet 7, sub-bullet 1, point 1, uses the term, small in scale. What defines “small in scale”? It does not appear that the concerns raised by various agricultural organizations at the August 14, 2014 public meeting to discuss Draft 6 have been addressed in the ‘Agricultural’ section in the current version.
    • Section 5.3 “Permitted Uses and Densities” — bullet 4 prohibits any new mobile home parks in the municipality. Why is no rationale provided for this decision?
    • Section 5.4 “Land Use and Design Policies” — bullet 2 prohibits any new subdivision development in the North Bosanquet Planning Area over the lifetime of the Plan. Why is no rationale provided? The content of this section appears to contradict Council direction provided between May, 2015 and September, 2015 that supports the consideration of sewer installation in this area for future long range planning and development. The Planner has been on record many times asserting that real municipal growth will occur in the north part of the municipality, including this area.
    • Section 5.7.1 “Grand Bend Residential” — the intention expressed in the first paragraph appears to be in conflict with that expressed in Section 13.3.
    • Section 5.7.2.1 “Policies” — bullet 1 appears to be in contradiction to the direction given to staff by way of resolutions made at the May 11, 2015 and September 22, 2015 Council meetings. The change in content within this section could negatively impact the economic viability of these communities.
    • Section 8.3.1 “Policies” — bullet 4 states that the municipality “… acquire them for no cost if they have no recreational value”. This needs clarification. Does the intent expressed in this section contravene the spirit of the Expropriation Act?
    • Section 13.2.7 “Parking and Loading” — What defines the term ‘buffering’? What type of landscaping is permitted? This section is vague and open to subjective interpretation.
    • Section 19.2.2 “Text” — this section states that, “Unlike a zoning By-law, an Official Plan is not a legally enforceable document. Based on this, it should not be subject to strict, legal interpretation”.  This statement would appear to contradict Section 67 of the Planning Act which imposes penalties for non-compliance.
    • Section 19.8.1 “Consents for Land Severance” —the wording has changed from Draft 6 and now does not identify the type of permitted septic system.

 

Water and Sanitary Sewage Servicing Policies

  • Section 13.3 “Water and Sanitary Sewage Servicing Policies” — this section is arguably the most contentious in its change from the previous draft of the Official Plan revision process (Appendix G). It conceals pertinent information that questions the need for including any consideration by Council of expanding the existing municipal sanitary sewage system into parts currently serviced by individual or communal onsite treatment systems identified in the Plan. No public meeting opportunity has been afforded to the public by the municipality to discuss this drastic change from Draft 6.  Much anxiety, confusion and controversy has resulted from Council’s decision to include a reference to expanding the municipal sanitary sewage system to include properties on private septic systems throughout the municipality in the 7th draft of the Official Plan.  We had believed that this matter had been resolved appropriately by the wording in the 6th draft of the Plan which included the six recommendations of the Lambton Shores Ad hoc Sewer Advisory Committee’s Final Report 2012 (found on page x in the Executive Summary of Appendix D). Until the special meeting called by the Mayor for May 11, 2015, where two councillors had given notice that they were unable to attend, there was no prior indication that this section of the Official Plan revision was up for review.

The implications of the wording used in the submitted version are enormous and will have social, economic and environmental consequences if allowed to remain in the present form.  A response from the Ministry of the Environment by the Honourable Minister Jim Bradley, on September 11, 2013 (Appendix E) to the municipality, clearly indicates that sewers are not needed in the areas of North Bosanquet known as Zones 3 and 4.  There isn’t even a trend of needing sewers. The Minister stated in his ‘Summary of Key Issues’, “The County of Lambton has the overall responsibility for septic system approval and inspection in Lambton Shores, and has not indicated to the Ministry of the Environment that existing septic systems will require replacement by sewers prior to 2031”. “Groundwater monitoring indicated that current septic systems in Zone 3 were not causing an environmental impact. These monitoring results were reviewed by a hydrogeologist from the Ministry of the Environment who confirmed the results did not present evidence of environmental impairment due to septic systems. The surface water monitoring data was also reviewed by a Ministry of the Environment surface water specialist who has confirmed that the data did not show any trends which would indicate septic impact”.  “I am satisfied with the proponents’ decision in the Addendum to exclude residents of Zones 3 and 4 from sanitary servicing. The proponents have made a municipal decision to exclude servicing to Zones 3 and 4 to reduce the high costs with implementing the servicing.  I am also satisfied that the septic systems serving the residents of these zones do not present evidence of environmental impairment”.

“I am also satisfied that the proponent has documented that there is no current environmental impairment occurring as a result of the study area being serviced by septic systems nor is there an imminent need for widespread septic system replacement with sewers”. As a result, the 2010 Council withdrew the ‘South Grand Bend (Zone 3) Sanitary Sewage Collection System Class Environmental Assessment’ and amended the one for Zone 4 to remove low pressure grinder pumps as a method for handling wastewater.  The only reason that the entire Environmental Assessment for Zone 4 was not withdrawn is that Southbend Estates, a proposed development that falls within this zone, has yet to register their plan of subdivision, which included the use of a low pressure wastewater removal system. The proposed development has been allocated capacity in the Grand Bend and Area Sewage Treatment Facility since 2008 which has yet to be used.

This whole matter has been characterized by confusion and obfuscation. The minutes of the May 11, 2015  Special Meeting were presented to Council at their June 16, 2015 meeting (Appendix H), amended to reflect direction that was not clear at the May meeting[1], revised (Appendix H2)and then, approved “as presented” (Appendix H1). The second version of the May 11, 2015 minutes added the words “… for future long range planning and when there is proof that the sewer extension is warranted” (Appendix H2). The intent of version 2 is far different than version 1.

At the July 14, 2015 Council meeting Report CAO 11-2015 (Appendix I) brought forward the draft action planning priorities of the 2014-2018 Council term as identified at two June, 2015 strategic planning sessions.  In this report, Objective #5, Infrastructure, indicates that the municipality will develop a 20 year sanitary sewer servicing master plan for all of Lambton Shores. The report suggests that the municipality will need to “engage engineering consultants” for implementation.  Again, records indicate that the original intent from the strategic planning sessions in June was to install a sewer system along the lakefront of the municipality. We cannot locate any Council record that encompasses this new direction of formulating a 20 year plan for the entire municipality.

What causes us great concern is that two previous Councils (2003 2006, 2006-2010) embarked on proving a need for sewers in this area of the municipality by projects that were directly assigned to an engineering consultant (found on pg. 67 of Appendix J), disregarding the municipality’s established purchasing policy (Appendix K), at a cost of over $800,000 for less than desirable results.  As a result of the Minister of the Environment’s 2013 Report (Appendix E) and the University of Waterloo Groundwater Study 2015 (Appendix F), why would Lambton Shores Council go down this road again without scientific or empirical data to support this direction?  Why hasn’t the municipality entered into partnerships with the University of Waterloo and the University of Guelph whose earth science departments are well recognized for their knowledge of groundwater and wastewater management?  University partnerships have proven to be far more advantageous for both parties in terms of financial feasibility and desired outcomes.

We question the validity of this part of the Official Plan in terms of its inclusion from a procedural standpoint.  At the September 22, 2015 Council meeting agenda item 11.3 discussed Report PL 34-2015 (Appendix L). A majority of Council members supported revising the wording of the original intent regarding sewer expansion in the 7th draft of the Plan, as decided upon at the May 11, 2015 meeting, then amended at the June 16, 2015 meeting, to “will consider”. This action was a reconsideration of a decided matter by Council, but did not respect the provisions of Section 10 of the municipality’s Procedural By-law 41 of 2014 (Appendix M) that would have made this change in direction legitimate.  Yet, the current submission of the municipality’s Official Plan reflects this change.

Another area of great concern is that no cost benefit analysis of this proposed capital project has been offered by the municipality. This does not respect the spirit of Section 224 (a), (b), (d.1) and (e) of the Municipal Act or the provisions under Section 1.6.6.1 (b) of the 2014 Provincial Policy Statement.

We are aware that although an Official Plan is a ‘living document’, its contents serve as road maps for Council and municipal staff and the direction provided therein can be regarded as a ‘must do’. That is our greatest concern; that if this section of the Plan is not restored to the version described in Draft 6 the social, economic and environmental fallout will be far worse than any perceived benefit. We can sum up our trepidation's as follows:

    • No cost benefit analysis has been offered on any expansion of the municipality’s current sanitary sewage system
    • No funding plan has been offered
    • No forecast of capital and operating budget implications over the life of this project have been offered
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    • No assessment of the ability of Lambton Shores ratepayers to absorb this debt given the capital and operating costs already being absorbed in recent and ongoing projects such as the new Grand Bend & Area Sewage Treatment Facility expansion and upgrade to a mechanical plant, the makeover of downtown Grand Bend, the Legacy Recreation Centre and the Shores Recreation Centre.
    • No apparent recognition by Council or the municipality that our citizens are ten years older than the Provincial average and our household incomes are $10,000 less than the Provincial average which will impact the ability of residential and commercial properties to pay for a system that has no demonstrated need. Lambton Shores’ population has declined over 4% in recent years.
    • An increase in water rates.
    • Disclosure by realtors to prospective property buyers of this material fact, thereby impacting a buyer’s decision to purchase (Appendix B).
    • The effects on real estate sales throughout the municipality, not just the areas under consideration for sewer expansion. We have evidence of this matter being disclosed on the Schedule A of an offer of purchase where the buyer walked away because a cost could not be determined by the seller or the realtor.
    • The impact on local residents and businesses during any construction of sewer expansion.

The lakefront area of the municipality is characterized by both seasonal property owners and full time residents who become ‘snowbirds’ during the winter months. Property taxes are already considered to be substantial by many of these people. The prospect of adding to this load could prove to be a deterrent for many of this demographic and could force many to re-locate.

Conclusion

It is our understanding that an Official Plan should be a collaborative effort between the general public, municipal staff and Council members where respectful dialogue and active listening is used to reflect the will of the people in the final product. This has not been the case during the preparation of the Official Plan version that Lambton Shores has submitted to the County.  Over 500 citizens to date have signed a petition in opposition, more than 400 have attended two town hall meetings hosted by the Lambton Shores Property Owners Action Group voicing their disquiet over the 7th draft of the Official Plan, two presentations (Appendix N & Appendix P) and one delegation (Appendix O) have been made to Council expressing our concerns and over 230 ratepayers have sent letters opposing aspects of this Plan to Council. Numerous questions still remain unanswered by either Council or the municipality.

We respectfully ask that County Council give our concerns their attention and send the municipality’s Official Plan submission back for due process in compliance with the spirit of the Planning Act.  We do not want to waste taxpayer funds in a protracted and expensive OMB appeal.

Thank you for your consideration.

[1] A video recording of this meeting is available on-line at:  https://www.youtube.com/watch?v=P8hkwCngY3s  Motion at 48:30 min.

 

Appendix

A      Council Meeting Agenda — November 24, 2015 Item 11.3 Report PL 37-2015

B      Real Estate and Business Brokers Act 2002, Code of Ethics, Ontario regulation 580/05, Section 21

C      Spreadsheet Review of Official Plan versions Draft 6 and Draft 7 (submitted to County for approval)

D      Lambton Shores Ad hoc Sewage Advisory Committee Report, March 5, 2012

E       Minister Bradley’s “Summary of Key Issues” to the Municipality, September 11, 2013.

F       Robertson, W., Baer S., and C. Belke, Groundwater Impact from Residential Septic Systems in Grand Bend, ON submitted to Lambton Shores, May 22, 2015.

G      Draft 6 Section 13.3.2 (Sanitary Sewage Services)

H      Special Council Meeting Agenda — May 11, 2015

H1   Council Meeting Agenda — June 16, 2015 Item 11.2 — minutes of Special Council meeting May 11, 2015 submitted for approval

H2   Special Council Meeting Minutes — May 11, 2015 version 2 after revised at June 16, 2015 Council meeting

I        Council Meeting Agenda — July 14, 2015 Item 11.1 CAO Report No. 11-2015

J       Council Meeting Agenda — September 4, 2014 Item 11.1 Report CAO 15-2014

K      Municipality of Lambton Shores, Purchasing Policy & Procedures Manual, Policy #20, 2002.

L       Council Meeting Agenda — September 22, 2015 Item 11.3 – PL Report No. 34-2015

M    Municipality of Lambton Shores, Procedural By-law #41 of 2014 

N      Council Meeting Agenda — October 13, 2015 Item 7.1 Presentation Anne Walkinshaw, Port Franks resident

N1   Council Meeting Agenda — October 13, 2015 Item 10.3 Delegation Robert Laidlaw, chair, Lambton Shores Property Owners Action Group, Grand Bend resident

O      Council Meeting Agenda — November 3, 2015 Item 7.1 Presentation Doug Millar, Grand Bend resident

 

Other Reports of Significance Not Referenced

1a    Council Meeting Agenda — September 4, 2014: Item 11.3 — PL Report No. 21-2014,

2      Council Meeting Minutes — July, 2015

3      Council Meeting Minutes — September 1, 2015

4      Council Meeting Minutes — September 22, 2015

5      Special Council Meeting Agenda — September 30, 2015 (includes Minutes from Special Council    Meeting, June 15, 2015)

6.a   Council Meeting Agenda — November 3, 2015: Item 11.1 — Report CAO 16-2015      

 

Other Articles of Interest

7      From: Standard Guide Advocate, Sewers and Semantics, Colin Mitchell, October 22, 2015

8      From: Standard Guide Advocate, Sewer System “Wordsmithing”, Colin Mitchell, November 12,   2015

9      From: Standard Guide Advocate, Draft7 of the Official Plan, Passed to County Level, Colin                Mitchell, December 3, 2015

10      From: Standard Guide Advocate, Letter to the Editor, Obituary: Democracy, Bob Pattison,               December 3, 2015