NVCA directors vote allows construction of new home in flood zone

New Tecumseth Free Press September 3, 2013
The Nottawasaga Valley Conservation Authority’s (NVCA) board of directors overruled its staff’s recommendation at an appeal hearing Friday and will permit New Tecumseth resident Larry Smilsky to build a single family home within the regulated flood zone on his property at 4853 13th Line.

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Mr. Smilsky’s proposal is to build the home for his son who works on the nearby family sod farm. But because it’s located within the regulatory floodplain of Innisfil Creek and Cookstown Creek, it is not permitted. In March he applied for an exemption through an application for Development, Interference, with Wetlands and Alterations to Shorelines and Watercourses Permit.
The application was rejected by the NVCA’s staff citing among the concerns, “a high risk to life and high potential for property damage due to the flood depths (approximately 2.4 metres).” Additionally, because the property would require a “significant” amount of fill, the alterations could have an impact on neighbouring properties in flood situations.
Following are other reasons listed for rejecting the application:
The location of the proposed works is within the floodway which is contrary to direction within the NVCA Planning and Regulation Guidelines (2009), the entire property is subject to flooding, with depth estimates of 2.4m, and safe access and egress is not available on the municipal road at the property or on the driveway to the proposed dwelling;
The proposed development does not comply with NVCA’s Planning and Regulation Guidelines (2009) approved by the Board of Directors in August 2009, which NVCA Staff is directed to follow;
The proposal is contrary to Natural Hazard policies of the Provincial Policy Statement (2005) and the associated Technical Guide – River and Stream Systems: Flooding Hazard Limit (2002). These documents state that development and site alteration shall not be permitted within a floodway;
That there is no safe access and egress, on the property or the municipal road, for emergency services. The Natural Hazard manual and NVCA Planning and Regulations guidelines directs that flood depth be below 0.3 m. to enable safe access and egress;
The municipal road adjacent the proposal has an estimated 2.0 m of flooding. Furthermore, that the nearest location that does provide safe access and egress is approximately 860 metres from the proposed driveway;
The issuance of a permit sets a negative precedent when the proposed development site is within the floodplain and lacks safe access and egress. The Provincial Policy Statement states development and site alteration shall not be permitted within a floodway. There are many other properties with similar characteristics on which owners may wish to build houses;
That this development will have a cumulative impact on the control of flooding due to the filling in of the floodplain. Even if it was demonstrated that this specific proposal would not have a significant impact on the control of flooding the granting of approval could set a “precedent” which could have cumulative impacts on the watershed; and
That there is no suitable building envelope on this property that is outside of the floodplain and provides safe access and egress.
Mr. Smilsky appealed the NVCA staff’s decision for a hearing before the Board of Directors guided by the Conservation Authorities Act, which took place Friday morning at the Tiffin Centre in Essa. (Ed Note: Free Press Online was not at the hearing). According to Sandy Agnew, policy chair of the environmental watch group AWARE Simcoe, Mr. Smilsky told the hearing “that there has been no significant flooding there in their lifetime and the house can be raised with fill above the flood level. They argued that irrigation ponds dug increased the flood plain capacity and that this case did not set a precedent because every site is different. They also noted that they were willing to accept any risk presented by building a house in the floodplain on this property. They noted that they have high farm vehicles which would allow them to exit the property in times of a flood.”
After the hearing, the board of directors, which includes New Tecumseth Ward 1 councillor Bob Marrs, and Ward 5 councillor Donna Jebb, deliberated in camera, but voted in public. The first vote was reportedly 11-10 to reject the staff’s recommendation. A second recorded vote “That the Smilsky application be approved subject to a detailed site plan and permit application being submitted to the satisfaction of the NVCA”, passed 12-8. In both votes, Mr. Marrs voted with the staff recommendation, while Ms. Jebb supported the Smilsky application.
To allow the Smilsky construction runs counter to the primary purpose of the Conservation authorities,” Mr. Marrs told Free Press Online this morning via email. “Some of us are certainly scratching our heads.”
At this post, Ms. Jebb had not replied to emailed questions for comment.
Despite his win at the NVCA level, Mr. Smilsky must still apply for a building permit from New Tecumseth.

How they voted