Intervention by Erwin Dreessen

Planning and Environment Committee

Meeting of 9 October 2007, (Agenda 18), Item 3

Zoning - 20, Frank Nighbor Place
Ref. ACS2007-PTE-APR-0158

Mr. Chairman, Members of Committee:

I would likely have appeared here on behalf of the Carp River Coalition, but the short notice and the intervening Thanksgiving weekend have made it impossible to secure approval from the constituent members – representing the Friends of the Carp River, Ottawa Riverkeeper, The Greenspace Alliance of Canada’s Capital and the Ottawa Group of the Sierra Club of Canada – so I am speaking to you today in my own name only.

On the surface, the item before you is simple and straightforward: expand the range of allowed uses on land that in 2002 was approved to be designated as the “flood fringe,” as distinct from the Carp River “floodway.”

One doesn’t have to scratch deep, however, to see a horrendous mess revealed.  You have an option today to put a stop to the nonsense, or at least opt for a more prudent course of action.

I retrieved the 2002 report to your predecessor committee, Planning and Development Committee, for its meeting of 25 July 2002.  The Carp River Watershed/Subwatershed study was then under way – it would not be approved by Council until 2005.  But already the 2002 staff report could quote from it, to the effect that it pointed to an opportunity for a 2-zone flood plain along the River, and, that a 100-metre corridor (the “floodway”) should be maintained.

Right there, the report said that, in this particular spot (20 and 50 Frank Nighbor Place) only 88 to 100 m would be feasible – the Corel Centre on the other side having allowed only 30 m.

Later, the Carp River Restoration study, accepted by Council in 2006, posits a 75 m corridor at this portion of the River.  (It shows the incursion over the 1983 flood line as “approved.”)

And from what I can make out, the flood level analysis that was done for Kanata West assumed such a 75 m flood way.

What “comprehensive analysis of the Carp River system and the potential for a two zone” the 2002 report refers to is unclear – no details or references are provided.  It clearly could not be the watershed plan itself because that did not get published until 2004, nor the work for Kanata West which didn’t get completed until four years later.  I somehow doubt that the City commissioned simulations of flood level analysis using the actual corridor widths proposed.

The project now has site plan drawings, so presumably it could now be determined what the corridor width would end up being, but the new staff report doesn’t help me here.

While this particular property is outside the Kanata West lands, it is intimately connected with it because development of this fringe depends on implementation of the Carp River Restoration project.


As you know, that project is in limbo, sitting on the desk of the Ontario Minister of Environment, there having been no decision on Part II Order Requests dating from July 2006.

It is as frustrating to the Coalition as it is, I’m sure to all other stakeholders in this file, that no decision has been forthcoming.  I suspect that it has something to do with the very serious unresolved questions that have arisen about the whole project:

-    for one thing, the Ministry of Natural Resources is in denial: There is a record of conversation between EAAB and Ron McGirr of MNR dated September 25, 2006 wherein the latter asserts that the proposals for Kanata West are in a one-zone, and have to be, because when there is channelization of a watercourse involved, it is automatically one-zone.

-    meanwhile, all the work done for the Kanata West development assumes 2-zone, as per the recommendation in the watershed plan (be it with different assumptions on the width of the corridor).

-    then there are the serious errors in the calculation of the watershed, the exclusion of the Fernbank lands, and the absence of calibrated models (i.e., absence of monitoring data), to name just some of the very serious objections that have been raised,

and one can understand that the Minister of Environment has reason enough to not just cave in and deny the Requests.

But one thing is clear: MNR insists that there is one zone in Kanata West, while the watershed plan and all the analysis that followed is predicated on there being two zones, a floodway and an flood fringe.

Here is another thing: back in 2002, when The Regional Group got this 2-zone approval ahead of the pack, the staff report says that they consulted with the affected land owners and Mississippi Valley Conservation.  I.e., there was no public consultation.  Nor does the report give any indication that the rules were followed – specifically, that, in a 2-zone application, the MNR Regional Engineer needs to sign off.  (This is a requirement of the Province’s Technical Guide and was also confirmed in a Ministry response on the EBR web site (No. PB06E6012, dated June 2006.)  City staff should provide proof of such sign-off.  If it can’t get this from the Conservation Authority, it should contact the MNR Regional Engineer directly.  If no MNR Regional Engineer sign-off was obtained, then this 2002 rezoning is ultra vires.

When we come to today’s application, an expanded list of possible uses again brings into question wether this would constitute appropriate land use.  I refer specifically to the prospect of having a garden centre be part of “Building A”; if it is flooded despite “floodproofing”, this raises serious issues about contamination of the River due to pesticides, etc.

So it would seem to be the prudent course to get sign-off from the MNR Regional Engineer before allowing this expanded land use.

Mr. Chairman, Members of Committee, the whole approach to 2-zone flood plain policies in the City of Ottawa is fundamentally misguided – no wonder that an Official Plan Amendment on the City’s Flood Plain Policy is stalled.  (This OPA would essentially outlaw flood fringes except in Constance Bay and 3 specific areas.  That is also how the draft Consolidated Zoning By-law reads.)

It is clear that, contrary to what is happening here, the application of 2-zone policies as foreseen in the Provincial Policy Statement is intended primarily to assist existing, historically grown developments, not to create more developable land in greenfield areas.  The technical guidelines under the Conservation Authorities Act even prohibit Conservation Authorities from proposing 2-zone for that reason.  Yet here, with the approval of MVC, 2-zone in greenfields is not only promoted but in fact translates into simply filling in the flood plain – the ultimate form of “floodproofing.”


A recent OMB Decision (Decision No: 2371, August 23, 2007) involving a school property in Sudbury points the way to what you might consider is a sensible interpretation of the PPS and a sensible compromise.  The Board found that, where the development is limited to passive non-structural use, which does not affect flood flow levels, it could be allowed in the fringe.  So it allowed a playground, an access road and a parking lot to be located on the floodplain, provided that the access road is floodproofed and the playground and parking areas remain at the existing elevation.  The school building would have to be located outside the fringe.

I urge you to pursue a more prudent course –

- first, verify whether the 2002 zoning amendment was in fact not irregular;

- in any case, require that the MNR Regional Engineer sign off on this potential change in land use; perhaps require that there shall be no garden centre in the flood fringe;

- and ideally convince the owner to keep “Building A” out of the fringe and leave the parking lot at the existing elevation – so as to forestall this matter ending up at the OMB and then being decided as in Sudbury;

- and, above all, add a condition to the lifting of the Holding symbol, that the Carp River Restoration project be approved and implemented.

Finally, before you go ahead and approve this application, you may wish to consider whether you are meeting the due diligence test that Mr. Marc in May 2006 advised you would exonerate the City from liability.  Personally, I believe that his assurance flies in the face of certain jurisprudence I have seen, but even if it were not, it seems to me there is room here for more due diligence.

Thank you for your attention.

Erwin Dreessen

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1. The proposed zoning will expand uses to permit garden centers to be located in the flood fringe. If in fact Two Zone Floodplain Policy is being applied to this development, this would mean that fertilizers, pesticides and herbicides could be subject to flooding. In my opinion such a use is inappropriate.
    
2. The 2002 Zoning By-law Amendment refers to supporting analysis in the Carp River Subwatershed Plan. The analysis in the Subwatershed Plan on Pages 144-148 uses a 100m corridor – not an 88m corridor as referred to in the 2002 Committee Report. The Subwatershed Plan shows flood levels rising 0.13m at Palladium Drive and 0.18m at Poole Creek. With an 88m-corridor flood levels would rise even higher. This is inconsistent with Provincial Floodplain Policy that states new hazards are not to be created and existing hazards are not to be aggravated.
    
3. Since the 2002 By-law, Smart Technologies and the Sensplex have built on lands abutting the Carp River at the locations where flood levels are shown to increase (see Attachment No 1). The recent Zoning By-law makes no reference to any determination how these recent developments could be affected by the increase in flood levels caused by 20 Frank Nighbor.
    

4. Since the 2002 Zoning Bylaw Amendment was passed, Council approved the Subwatershed Plan in 2005 that recommended all of the floodplain mapping and analysis needed to be re-done. It is submitted this is anything but a vote of confidence about the basis on which the 2002 Bylaw was passed.
    
5. Since the Approval of the Subwatershed Plan, the City and Kanata West Owners Group completed the Carp River Restoration Project Class Environmental Assessment. During this work, consultants modelled the flood levels in the Carp River produced by the Hurricane Frances rainfall recorded on September 9, 2004. This model predicted a flood level 23cm lower than what was observed in the area of 20 Frank Nighbor (see Attachment No 2). How much certainty is there that the model can predict impacts of future alterations and development, when it is under-predicting current flood levels? The Class EA also predicted the impact of planned development of floodplain on flood elevations (see Attachment No. 3).
    
6. Earlier this year I discovered a substantial error in the work completed in both the Subwatershed Plan and in the Class EA. This error involves including 600 Ha of the Jock River watershed in the analysis of flows in the Carp River (see Attachment No. 4). A 600 Ha error translates into an error of 20% of the Carp River watershed at Frank Nighbor Place. So not only did the model under-predict the flood level during Hurricane Frances, it under-predicted the level despite using an inflated watershed area by 20%. Just how far-off the model actually under-predicts flood levels is unknown. Despite bringing this substantial error to the attention of the City, MOE, MNR, and MVCA in June, I have heard absolutely nothing from these agencies in response to this error.
    
7. Since August 2005, when the OMB ruled that development of the Del Brookfield Westpark lands could proceed, no steps have been taken to account for the impact of urbanization of the additional 200 or more Ha on flood levels in the Carp River. According to the Technical Guide for Floodplain analysis, as well as the Provincial Policy Statement, the watershed is to be used as the basis of planning, and therefore the impact of development in Kanata West on the Carp River flood levels should not be proceeding in isolation from the impact of the Fernbank Community when its development is now a certainty.
    
8. This Committee received an opinion from a City lawyer at the May 2006 Committee Meeting about the Kanata West Class EA that the City would not be liable if flooding was to occur in the future:

With respect to responsibility issues if future flooding should occur in communities in this area, Legal Counsel commented that if studies have been performed based upon the best available information, there should not be flooding. Should it occur and claims be brought forth against the City of Ottawa, the City could point to those studies and say that, based upon the information available at the time and reasonably exercised professional judgement, that all due diligence was shown and there is no liability on the part of the City.
 
Given the error in watershed area used in the analysis, and given what is known about future urbanization of the Fernbank lands, is the Committee confident that the studies have been performed based on the best available information and that if there was flooding the City could demonstrate due diligence has been shown?
 
 
I would be pleased to respond to any questions,
 
Thank-you,
 
Ted Cooper, M.A.Sc., P.Eng.
500 Lake Clear Road
Eganville ON K0J 1T0
613-754-2562
 
Recommendations:

1. 20 Frank Nighbor Zoning Bylaw Amendment

• That Zoning for the Building noted as Retail in the Conceptual Site Plan, and for the east parking area on the Conceptual Site Plan be approved.
• That Re-Zoning for the area that includes Building A and the parking area in front of Building A be deferred, and that all existing zoning for the west side of the site be placed in a Holding Zone until deficiencies with the Hydrotechnical analysis have been addressed, that the outstanding Part II Order Requests for the Carp River Restoration Plan Class EA have been resolved, and that improvements to the Carp River have been implemented.

2. Carp River Restoration
   • That the hydrotechnical studies be revised and updated to utilize the actual watershed area, include the impact of the development of the Fernbank Community, and ensure the models are based on calibration to available flow monitoring data
   • That a Hearing be arranged with the Ontario Drainage Referee to resolve uncertainty about the status of the Carp River as a Municipal Drain, and the issue of the point of sufficient outlet – based on the previous ruling of the Ontario Court of Appeal that held the point of sufficient outlet in an agricultural setting was downstream at the Village of Carp.
   • That an Addendum to the Carp River Restoration Class EA be prepared based on the revised hydrotechnical analysis.
   • That an Interim Phasing and Stormwater Management Plan be prepared for Kanata West to allow / guide development on an interim basis while the technical, legal, and design issues related to the Carp River are satisfactorily resolved.
      
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