Peaceful Parks’ Velastro in court to save London wetland from storm sewer

Email from Peaceful Parks Coalition January 20 2013

A court action has begun against the City of London to halt the construction of a storm sewer pond on a sensitive wetland.

The Application filed on December 21, 2012 claims the City of London acted illegally when it failed to disclose and consult with the public the results of an Environmental Impact Study that discovered the presence of significant amphibian breeding habitat.

The City of London thought no one would care about frogs.

Upon investigating the area, this wetland has caught our imagination, rich in species diversity, in part because of the presence of a significant amphibian population.

Even though the Application was filed prior to construction beginning, The City of London chose to disrespect the Application and bulldozers have already  begun to tear up the land.

This Thursday Jan. 24, 2013 we will be in court asking that the court order the City of London to stop working until the Application can be heard.  If you live in the vicinity of London, Ontario please consider showing your support by coming to the court hearing.

Public support can influence a judge’s decision.  The motion will be heard at the Court House in London at 80 Dundas Street – Queen Street entrance.  The motion will be listed on a court docket providing the courtroom #. Court begins at 9:30am.

Below is the supporting affidavit from AnnaMaria Valastro. The affidavit encapsulates the issues to be tried.

 

Court File No. 8937-12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN

ANNAMARIA VALASTRO

Applicant

(Moving Party)

-and-

 

THE CORPORATION OF THE CITY OF LONDON

Respondent

(Moving Party)

        APPLICATION UNDER section 273(1), (4) of the Municipal Act, 2001, S.O. 2001, c 25 and rule 14.05 (3) (d), (g) and (h) of the Rules of Civil Procedures, R.R.O. 1990, Reg. 194

 

SUPPLEMENTARY AFFIDAVIT OF ANNAMARIA VALASTRO

I, AnnaMaria Valastro, of the City of London, in the County of Middlesex, Province of Ontario, MAKE OATH AND SAY AS FOLLOWS:

I am the applicant named herein and as such I have personal knowledge of the matters disposed herein. I make this affidavit to supplementary ny sworn affidavit on January 9, 2013.

The legal effect of the by-law in question is to effect a change in jurisdiction which enabled the respondent to streamline the process to secure the necessary approvals needed from the Ministry of the Environment – the governing ministry of the Ontario Water Resources Act.

The streamlining process efficiently advanced the construction of the Stanton Drain. Without these approvals, the respondent could not move forward with the construction today.  There is no question that Exhibit “H” to my application affidavit sworn December 23, 2012 (engineer meeting minutes) makes it clear that the impugned by-law is the most proximate municipal instrument which results in the construction work at Stanton Drain.

If my Application is successful, then two actions are requested:

1)   The by-law be quashed. This would call into question the validity of the  approvals under the Ontario Water Resources Act, and;

 

2)   The respondent would be required to hold public consultations on the Environmental Impact Study and review the current placement of the SWM Facility No. #4 through an Addendum.

An addendum is a specific process under the Municipal Class Environmental Assessment which is applicable when a significant change has occurred to the ‘project’.  The proponent of the project, in this case the City of London, is the sole authority that decides on an addendum.  A court order is the only avenue to override the proponent’s authority. 

The respondent failed in its obligations when it did not seek an addendum to the Environmental Impact Study upon the discovery of significant amphibian breeding habitat.  In my opinion this constitutes a significant change in the project. 

An Addendum would re-evaluate the current placement of the facility and review alternative sites as proposed in the original Class Environmental Assessment. If the public is not satisfied after the Addendum process, the process provides the public an opportunity to request a further review by way of a Part II Order, through the Assessment and Approvals Branch, Ministry of Environment.

This ensures a thorough process with checks and balances between the proponent and the public to ensure a project passes all tests before proceeding. 

In failing to disclosure and consult with the public on the Environmental Impact Study through an addendum, the city has effectively denied the public the opportunity to actively safeguard this wetland and challenge the project through a legal public process.

Therefore, a successful Application would temporarily pause the construction until a new location is determined.  This would delay the construction for this year.

Irreparable Harm

The respondent has discretion to act on behalf of the public, but discretion is not relieve the City from its legal obligations to the public where the public is legally recognized as a partner in the decision making process as is the case in Section 15.1.1 of the Official Plan.  Public participation provides voice from a public perspective and creates a balance to ensure governments act in good faith and/or weigh the balance between private, personal and public interests.

The ‘rights’ of public civic engagement are protected even if the convenience of doing so is strained by pausing or rendering null and void a previous government decision.  Protection of due public process is not discretionary where a public process is legally defined and protected. 

It is recognized in the City’s Official Plan that environmental protection is important enough to warrant a guaranteed public participation.  Depending on the interests involved, environmental protection is controversial because it often results in irreparable environmental harm, hence the necessity for full disclosure and full public participation to ensure the best decision is made.

The importance placed on environmental protection and public participation is at the core of civic values as it is defined under the Planning Act and the Official Plan, and these ’rights’   can’t be dismissed because of past errors in judgement or to fast track a project.

Without a true opportunity to exercise the right to participate, the public’s ‘right’ is moot, and a mooted ‘right’ is currently the status quo.     I do not believe my Application has merit if advancing the public’s right to participate has no practical application in the project.

Work stoppage would likely delay the construction for this year but it would allow a decision on what I believe is a fundamental question on public participation and the ability of the public to collectively shape its own communities.

Without a work stoppage my Application is moot.

Delays are part and parcel of these sorts of projects.  The evidence is in the Approvals. Each Approval has a time flexibility built in.  For example, Approvals from the Ministry Environment are valid for the next five years.  Approval from the Department of Fisheries and Oceans is valid for two years and the Approval from the Upper Thames River Conservation Authority is renewable annually.

The respondent will not suffer irreparable harm if the project is paused because they have the ability to recover their costs once the development is completed.

Silencing the public’s voice and its ability to shape and defend the communities in which the public resides and which are funded through taxes will cause the greater harm. Being denied the ability to engage in civic matters renders the public irrelevant and removes the checks and balance that ensures a transparent government.

Irreparable Harm to Significant Habitat

The Environmental Impact Study discovered significant amphibian breeding habitat and made two recommendations to the City:

“The presence of amphibian habitat within this wetland, especially within the MAM2-and SWT2-9 communities was very high and should be considered significant wildlife habitat under the Significant Wildlife Habitat Technical Guide.” Page 20

“For the purpose of protection of natural heritage features those constraints identified as High and Medium-High should be considered as non-development areas.” Page 24

These recommendations were echoed by peer reviews.  Attached to my Affidavit and marked as Exhibit “A’ are true copies of peer reviewed comments of the Environmental Impact Study from the Ministry of Natural Resources (MNR), the Upper Thames River Conservation Authority (UTRCA), Parks and Planning Dept. City of London and the Environment and Ecological Advisory Committee (EPPAC) City of London.

Combined, their comments represent a thorough environmental assessment of the project, and helped me understand the depth of the problem.

Most important of these comments is the request by the Ministry of Natural Resources that the area be evaluated as a Provincially Significant Wetland under the Significant Wildlife Habitat Technical Guide – a recommendation also made within the Environment Impact Study.

The respondent is the sole authority on significant habitat within its boundaries and the ministry has no authority to order an assessment.

If this area met the criteria for a Provincially Significant Wetland designation it would not be developable but would be protected under the Planning Act.

At every turn, the City avoided making public any document or process that would reveal the ecological significance of this area.  So much so, that the Environmental Impact Study was produced as a confidential document as described on the inside cover under ‘Statement of Qualifications and Limitations’. Exhibit “G” of the Notice of Application.

Section 3.5.1, page 20 of the EIS states that:

“Significant amphibian habitat was determined to be present within and surrounding the SWM pond location.”

The placement of the pond will eliminate the significant amphibian habitat.  The functional design of the storm water facility will change the present watercourse into a concrete lined bottom and trapezoidal sidewalls that render it into a curb and gutter system which effectively extends the urban space to encompass the watercourse and floodplain features identified as a natural heritage system.

It is the presence of six species of frogs that classify the area as significant. Unlike other species that might have the ability to leave an area once construction begins, amphibians hibernate in mud in their habitat. Therefore the removal of mud is likely to kill hibernating amphibians. The physical removal of amphibians combined with the physical removal of their habitat makes an ecological recovery of the area impossible.

The harm is irreparable.

The Environmental Impact Study was written by the same consultations that were awarded the contract to implement the project.  While strong recommendations are contained in the report regarding environmental protection there is no specific mitigation strategy that describes recovery of amphibian habitat.  Mitigation strategies within the report are vague, too general to assess whether they are effective in migrating environmental damage and no monitoring program is mentioned.

 

Personal Irreparable harm

I cannot afford this legal challenge.  While I find it degrading that I must constantly remind the court that I am poor, I feel extra pressure to raise my financial burden in defense of irreparable harm.  I do this simply because the expense incurred by the city appears so compelling in straight dollars and cents that it trumps anything an average person has to offer rendering all effort useless if measured only on who has more money.   I believe that my application comes within the guidelines in the case law for public interest litigation.  For that reason, I do not feel it is appropriate to impose amy undertaking s to damages or costs to me. I further do not accept the position of the respondent that this motion is an injunction.  My factum addresses this particular issue.

My personal financial burden in challenging this issue is far greater than a comparable burden incurred by the city.   It may be a difference of thousands of dollars verses millions of dollars but the city has millions to spend.  And a thousand dollars is worth millions to me

I have limited financial resources and no chance of recovering my costs.   The City on the other hand can eventually recover their cost through taxation once the development is completed.  This will occur even if the project is reassessed and altered.  The City wouldn’t be engaged is such a development if it wasn’t profitable.

My endeavour here today is not financially profitable.    

Is there a serious issue to be tried?

There are two serious issues to be tried:

To safeguard the rights of citizens to engage in civic matters that shape their communities and force a transparent government.

To protect a significant wetland.

 

Balance of Convenience                               

On October 15, 2012, John Braam, City Engineer for the Respondent, gave a report to the Environment and Planning Committee regarding the removal of beavers from the Stanton Drain.   Mr Braam states clearly and emphatically on page 3 in his report that beavers and their dams were the cause of flooding at the Stanton Drain.  He recommended hiring a licensed trapper to have them removed.  Blaming the beavers for flooding and property damage was important to justify their removal to make way for construction.  Attached to my affidavit  and marked as Exhibit “B” is true copy of Mr. Braam’s report of October 15, 2012.

I have asked Mr Braam directly through email correspondence if the City has records of assessment of flood damage.  I never received a response from the city.   Once the beavers were removed I asked again if the flooding issue had been alleviated.  If so, it is still necessary to build the storm sewer pond? I received no reply.

I reviewed letters received through the Class Environmental Assessment public consultations from ten years ago. I did not find any comments that described serious flooding causing property damage.  Please remember this area is a natural flood plain and some flooding will occur, but flooding events large enough to be extraordinary to cause damage are measured in 250 year cycles by the Upper Thames River Conservation Authority. In other words, severe events are rare.  

What is not being stated upfront by the respondent is that developers knowingly purchased land that naturally floods through the predictable ebbs and flows of spring thaw.   The City wants to drain this natural wetland on behalf of developers so future development can proceed.    Without the drainage, the land cannot be developed.   

It was convenient at the time to blame the beavers for flooding to win public support to have them removed from the site so construction can commence.  Once removed, the city found another reason to rationalize the construction based on some sort of public merit.  

This infrastructure is being pushed forward against the wisdom of building on flood plains and wetlands because developers demand it.  It is profitable for them but not profitable for the public.   And what is good for developers is not necessarily good for the public.

The Balance of Convenience does not lie with the respondent damage and/or that the lack of insurance is not an invasive problem.

Costs incurred to date from construction can be recouped by the City once development has been completed with an alternative site for the storm sewer pond or SWM Facility No. 4.  The Class Environmental Assessment originally explored alternative sites for the placement of the sewer pond.  The current location was the preferred location ten years ago and before the discovery of significant habitat. 

A lot has changed since this project was first assessed 10 years ago.  A new storm sewer pond now exists immediately across the street of Hyde Park.  A below surface storm sewer line has been installed adjacent to the site in question and there are many large under development properties in the immediate area that could be considered alternative sites to the current one. 

While the respondent would be inconvenienced by a delay in construction, the Balance of Convenience would lie with the public because the issue to be tried is more serious than the inconvenience of a delay.

I respectively submit and believe that if relief is not granted to me in accordance with the within motion, it will render moot my entire application proceeding.