Submissions to the Consolidated Hearings Board

regarding

Applications by Central Milton Holdings Limited and

825927 Ontario Inc. (Curcuruto)

in the Milton West Special Study Area

within the Niagara Escarpment Plan Area

 

 

Linda Pim

Coalition on the Niagara Escarpment

March 9, 2000

 

 

  1. Interest of the Coalition on the Niagara Escarpment in the Matters before the Board

    2. The Coalition on the Niagara Escarpment (CONE) has a well-established interest in all matters pertaining to protection of the Niagara Escarpment from inappropriate development and excessive development. We were founded in 1978 as an umbrella group of environmental and community organizations along the Escarpment. We have worked consistently since then for the protection of the Escarpment and its many values to Ontario society. Some of the 23 current member organizations in CONE are the Federation of Ontario Naturalists, the Bruce Trail Association, the Sierra Club, the Escarpment Biosphere Conservancy and local groups such as the Beaver Valley Heritage Society, Friends of the Red Hill Valley and the Bruce Peninsula Environment Group. Two of our member organizations -- POWER (Protect Our Water and Environmental Resources) and the Halton/North Peel Naturalists Club -- are appearing as participants in this hearing in their own right.

    CONE is a strong supporter of the Niagara Escarpment Plan and the provincial interest that the Plan expresses in this ecologically unique part of Ontario.

    CONE was a fully party, represented by counsel, at both the original Niagara Escarpment Plan hearings in the early 1980s and in the five-year review hearings in 1991-92. We monitor development along the Escarpment. We are involved in educational activities to heighten public understanding and appreciation of the Escarpment. For example, in 1998, we published a book called Protecting the Niagara Escarpment: A Citizen’s Guide, which has been distributed to all municipalities, secondary schools, public libraries and conservation authorities in and near the Niagara Escarpment Plan Area. In 1995, we received the Lieutenant Governor of Ontario’s conservation award.

    CONE has only twice before been involved in site-specific Niagara Escarpment Plan amendment hearings, one in 1989 and the other in 1998. We were parties at both of those hearings. We become involved in such hearings when we believe there is an especially critical public interest and concern; that is the case with the present hearing. Because of the position of the Niagara Escarpment Commission in opposition to the two amendments now before this Board -- a position with which we agree -- CONE did not believe it was necessary to seek party status for this hearing.

     

  2. CONE’s position on the Applications of Central Milton Holdings Limited and 825927 Ontario Inc. (Curcuruto)

    3. CONE appears before you in full support of the position of the Niagara Escarpment Commission that the relief sought in both alternative options presented in these applications must be refused. We have reviewed the material prepared by the Niagara Escarpment Commission both prior to the establishment of this hearing and in the documents submitted for the hearing. Specifically, we have thoroughly reviewed the February 1999 study titled Review of Niagara Escarpment Plan Boundary: Milton Outlier East & Surrounding Area and the staff report of September 23, 1999 (Tab 2, Witness Statement of Marion Plaunt). Because CONE is here in a supporting role, we will keep our submissions relatively brief.

     

  3. Issues

    4. CONE will discuss the issues we have identified in our issues list submitted on September 29, 1999 and in an addition to that list filed on November 1, 1999.

    1. Regarding the application of 825927 Ontario Inc. (Curcuruto), the option of having the subject property deleted from the Niagara Escarpment Plan Area should be declared frivolous pursuant to section 6.1(3) of the Niagara Escarpment Planning and Development Act, as amended December 22, 1999. This section is similar to section 12(3) in the earlier version of the Act. The reason to declare the application frivolous is that the provincial Cabinet has previously rendered its decision, after the mandatory public hearing, on an identical application (Niagara Escarpment Plan Amendment 6/H/85) for urban development of the subject property. In CONE’s opinion, for the applicant (J. Curcuruto) to come before a tribunal a second time for the same approval constitutes an abuse of process. The only option that should be before this Board, in our opinion, is an application to change the land use designation to Urban Area within the Niagara Escarpment Plan.

      2. This is an issue that CONE considers to be very important.

      Mr. Curcuruto made an application in 1985 to the Niagara Escarpment Commission to have his property removed from the Niagara Escarpment Plan Area -- only three months after the Niagara Escarpment Plan was approved by Cabinet following a public hearing and hearing officers’ recommendation that these lands be included in the Plan. Mr. Curcuruto sought the same thing then that he seeks now -- to develop these lands for urban purposes. A hearing on his 1985 application was held, the hearing officer recommended refusal, and Cabinet refused the amendment in 1988. These facts are laid out in the Commission’s documents and in the document book filed by counsel for Mr. Curcuruto for the current hearing.

      Until August 1999, the amendment applicants, who numbered four at the time, were requesting only one thing -- removal of their lands from the Niagara Escarpment Plan Area. Therefore, Mr. Curcuruto was seeking an approval that had already been refused. Mr. Curcuruto has in essence "salvaged" his case somewhat by seeking the alternative option of Urban Area designation within the Niagara Escarpment Plan -- something he did not seek in his 1985 application.

      CONE respectfully submits that Mr. Curcuruto’s application for the option of having his property removed from the Plan Area be ruled an abuse of process and not be considered further by this Board.

      For CONE’s argument of abuse of process, we are relying upon a previous ruling of the Consolidated Hearings Board in 1994. It is case no. CH-93-03. If the Board and the parties wish to review it, I have copies of the two-page hearing officers’ report of that case, plus the preliminary motion and the attachments to the motion, which are four Ontario Municipal Board transcripts of oral decisions. All of these documents were filed by counsel for a party to the hearing in support of the abuse of process argument. The hearing related to an appeal of a development permit decision of the Niagara Escarpment Commission. A party to the hearing asked the Board not to hear the merits of the case because a decision had already been rendered after a hearing four years earlier on an application that was not sufficiently different from that raised in the earlier hearing. The hearing officers accepted the preliminary motion on abuse of process and the appeal was refused without a hearing of the merits.

      CONE is aware, of course, that much of the evidence in the current hearing has already been heard. However, if nothing else, we believe that we must make our position on this matter clear: Circumstances are not sufficiently different now compared to the circumstances at the time of Cabinet’s refusal of the application pertaining to these lands in 1988; therefore, we believe only the option of Urban Area designation within the Niagara Escarpment Plan should even be considered.

       

    2. The inclusion of the subject properties within the Niagara Escarpment Plan Area is appropriate, pursuant to the purpose in section 2 and the objectives in section 8 of the Niagara Escarpment Planning and Development Act, and for that reason, the amendments are not justified.

      3. The 1999 boundary review conducted by the Niagara Escarpment Commission reconfirms with considerably more and better data the findings of the hearing officers in the original Niagara Escarpment Plan hearings that the lands in the Milton West Special Study Area properly constitute the Niagara Escarpment and lands in its vicinity. In CONE’s opinion, the justification for keeping these lands within the Plan Area has been well-established, and therefore, the applicants’ alternative option of removing the lands from the Plan Area is not justified. We must all be cognizant of the fact that the Niagara Escarpment Plan Area as we know it today is 63 percent smaller than what was envisaged as necessary in the preliminary proposals put forward by the Niagara Escarpment Commission in 1978 In other words, the area under consideration for planning controls shrank by 63 percent between the preliminary proposals in 1978 and the Niagara Escarpment Plan finally approved in 1985. This is shown in Map 1 which we have appended to our submissions. What does this map and the 63 percent loss in area tell us? It tells us that the compromises have already been made. The current Plan Area is the bare minimum needed to protect the landforms and the biodiversity of the Escarpment environment.

       

    3. The current land use designations assigned to the subject properties within the Niagara Escarpment Plan Area, namely Escarpment Protection Area and Escarpment Rural Area, are appropriate, pursuant to the objectives and criteria for these designations in the Niagara Escarpment Plan, and for that reason, the amendments are not justified.

      4. Again, we rely upon the Niagara Escarpment Commission’s 1999 boundary review for what, in CONE’s opinion, is a thoroughly defensible analysis of the existing land use designations of Escarpment Rural Area for the Central Milton Holdings Limited property and Escarpment Protection Area for the Curcuruto property. On that basis, CONE believes that the land use designations must remain as they are.

       

    4. The amendment applications fail to meet the objective for the Urban Area designation in the Niagara Escarpment Plan and therefore the option of re-designating the subject properties Urban Area within the Niagara Escarpment Plan is not justified.

      5. CONE submits that there is as little justification for an Urban Area designation within the Niagara Escarpment Plan in this instance as there is for removal of the subject lands from the Plan Area. Whichever of the two options is considered, the underlying facts remain the same: The Town of Milton does not need the subject lands for urban development purposes, as documented in the Niagara Escarpment Commission’s September 23, 1999 staff report. Since the need for Milton’s urban area to expand westward toward and onto the Escarpment has not been established, the justification for the amendments is therefore not established. Furthermore, the objective for the Urban Area designation in section 1.7 of the Niagara Escarpment Plan is "to minimize the impact and further encroachment of urban growth on the Escarpment environment [emphasis added]." Given that there is considerable scope for the urban boundary of Milton to expand in directions other than into the Niagara Escarpment Plan Area, the objective of Section 1.7 of the Plan cannot be met by the two amendment applications and therefore the amendments must fail.

       

    5. The public interest is not served by the proposed amendments and therefore, the amendments are not justified.

      6. Ontarians from across the Province treasure the Niagara Escarpment as a unique topographic feature and corridor of green snaking through south-central Ontario. The Canadian Wildlife Service had identified the Escarpment as one of the six major centres for forest birds in southern Ontario; the other five include the Oak Ridges Moraine, the Midland peninsula and Grey-Bruce counties. UNESCO has recognized the global significance of the Escarpment through the World Biosphere Reserve designation. The reason there is a provincial land use plan in place for the Escarpment, over and above municipal official plans, is simple -- this place is very special. It deserves special treatment. The Niagara Escarpment Plan is a Provincial land use plan that is an expression of provincial interest in this special area. Add to that the fact that Milton’s urban growth needs can readily be met by expanding in other directions. The inescapable conclusion is that primarily the private interests of the landowners are served by the two proposed amendments. If the applications were approved, the balance would tipped disproportionately in favour of the private landowners. The public interest is not served because the provincial interest in protecting the Niagara Escarpment from unnecessary and unwarranted urban development is not served. Therefore, the amendments are not justified.

      We would like to underscore the following statements made at page 31 of the Commission’s September 23, 1999 staff report: "In the context of the amendment process, the consideration of public interest/need includes an analysis of the need to accommodate the proposed use within the area of the Plan given the availability of locations either within the Plan where such use is permitted or outside the Niagara Escarpment Plan to meet the demand for the proposed use within the identified market area." It is abundantly obvious to CONE that through Regional Official Plan Amendment 8 (June 1999), enough lands have been identified for urban development outside the Niagara Escarpment Plan Area to see the Town of Milton through to the year 2016 and very likely beyond that date.

       

    6. Approval of the amendments under either proposed option would set unacceptable precedents, namely:

(a)Removal of land from the Niagara Escarpment Plan Area, which has never happened before (i.e., since approval of the Niagara Escarpment Plan in 1985)

A measure of the gravity of the decisions that this Board must make is that never before has land been removed from the Niagara Escarpment Plan Area. There have been several applications to remove land from the Plan Area, but all have been refused by Cabinet. The 63 percent reduction in the size of the Plan Area that took place in the late 1970s is enough. To repeat our earlier point, the compromises have already been made. The precedent that would be set if the applications for removal from the Plan Area succeeded would be very disturbing. The trickle of landowners who have applied to be removed from the Plan Area over the past 15 years is sure to become a flood and, instead of being rebuffed by Cabinet, they are more likely to succeed. Such an incremental nibbling away at the edges of the Plan Area must not be allowed to take place.

(b) According Urban Area designation to lands within the Niagara Escarpment Plan Area which have not been identified by the municipality for the planning period under consideration (i.e., to the year 2016), a situation which has never happened before (i.e., since approval of the Niagara Escarpment Plan in 1985)

This precedent, if set through approval of these two applications, is as disturbing to CONE as the previous one. The prevailing understanding among the general public who are interested in protection of the Niagara Escarpment is that the Niagara Escarpment Plan is the environmentally based land use plan; it is the land protection plan. The general public also usually views their own municipalities as being far more growth-oriented in their official plans than the Niagara Escarpment Commission is in its implementation of the Cabinet-approved Niagara Escarpment Plan. CONE can assure the Board that the general public who are members and supporters of our organization in Milton and in Halton would be extremely disturbed by an approval for urban development in an area that even their own, generally growth-oriented municipal governments have not identified as needed for urban development within the planning horizon.

CONE is very concerned about the precedential impact that approval of Urban Area designation would have. We are concerned about ripple effects of approving an Urban Area designation when the municipality has not yet identified these lands for urban designation. In the case of the Central Milton Holdings Limited property, where Halton Region has voted to support removal from the Plan Area, the Regional Council’s September 1999 decision is inconsistent with Regional Official Plan Amendment 8 (June 1999), which does not include the subject lands within the Urban Area of Milton. CONE believes that that decision by Regional Council was a hastily conceived compromise, an unjustified compromise in the context of the planning framework. To put it succinctly, if this precedent is set, the public will quickly lose any confidence they had that the Niagara Escarpment Plan can serve to protect the ecological integrity of the Niagara Escarpment.

 

4. Concluding Comments

In conclusion, the Coalition on the Niagara Escarpment fully supports the position of the Niagara Escarpment Commission that these amendments be refused because the applicants have not adequately justified them. In CONE's opinion, refusal of these amendments constitutes the proper way to plan for environmental protection on the Niagara Escarpment and lands in its vicinity, as envisaged in the purpose of the Niagara Escarpment Planning and Development Act. There is no inherent right to develop the subject lands before this Board, there is no right that would somehow be infringed upon if the applications are refused. Refusing these amendments will stop unnecessary urban sprawl into Ontario's most well-recognized and most highly prized natural environment. The Town of Milton has more than adequate scope to expand its urbanized areas through to the year 2016 and likely beyond on lands already identified that are outside of the Niagara Escarpment Plan Area. The subject properties must retain their current, non-urban land use designations within the Niagara Escarpment Plan.

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