The attached is written by Linda Sheppard of our sister Lake Association, LWRA. It is her perspective on the hearing of the proposal to develop additional lots in the Limerick Lake Estates project on the south side of Limerick Lake.

As it now stands, the Developer has permission to go ahead with the 88 lots approved for development during the 1998 settlement. They cannot apply to add the lots located within 1000 feet of Limerick Lake until at least three more years of testing has been done, perhaps more depending on how the OMB judgement is read. The developer can bring a motion at a scheduled Planning Hearing in January to add about 22 lots facing St Ola Lake.

There is some doubt that the Developer will proceed to the January hearing, as the removal of the Limerick Lake Lots is the biggest value part of the development, and would be the easiest to sell. We will have to wait to see what develops from here.

Dave Golem

Message from Linda Sheppard - Dec. 9, 2005

Hello all,

As you may or may not know, the OMB released its decision on our case on Nov. 30th. In the end there was no negotiated settlement and we had two weeks of very intense hearings in Belleville from Oct. 24th to Nov. 3rd, 2005.

I'm attaching notes that will explain what we take from the decision -- not a complete win but not a loss either. For sure, the developer did not walk away with what he applied for at this time.

We very much appreciate all your efforts on our behalf and while there is no proof, all the letters of concern that the various ministries received from you and your associations may well have contributed to their ultimate decision not to go forward with a negotiated settlement. From our perspective, the fact that we had a full hearing where the Ministry (ies) came forward with all their expert witness evidence against the developer's proposals re new tech septic systems and engineered tile beds and where all the issues around phosphorus attenuation were given a full hearing, albeit, in front of a lay person with no science background, was a far more satisfactory situation to be in, rather than trying to combat an agreed upon proposed settlement between the government and the developer.

Again, thanks very, very much for your contributions to this effort. I hope we all benefit in the end by keeping the important goal of protection of lake trout fisheries on the table.

If you have questions or comments, please do get in touch with at 416-691-8894 or lwshep@sympatico.ca

Sincerely,

Linda Sheppard, Pres.
LWRA
Dec. 9, 2005

Notes regarding a recent OMB decision on an application to develop lots within 300m of Limerick Lake, an at-capacity, cold water, lake trout lake

As people receiving these notes know, LWRA was in contact last summer or fall, regarding an upcoming hearing in which Limerick Waterways Ratepayers Assoc. and Limerick Township were opposing a developer’s application to develop 29 lots within 300m of Limerick Lake – lots that would be added to an approved but unbuilt 88-lot backlot subdivision. The focus of the hearing was to be the science and technology issues arising from the developer’s proposal to install new phosphorus-retaining filter systems (Tradename/Phosphex) and to add special soils to engineered tile beds on these 29 lots. The developer claimed that these measures would prevent any significant new phosphorus loading in Limerick Lake that would threaten the lake trout fishery and we of course disputed these claims.

At the time we were in contact, LWRA was very concerned that the Ministry of Municipal Affairs and Housing (MAH) with the Ministries of Environment and Natural Resources was attempting to negotiate a settlement with the developer instead of having a full hearing before the OMB. We felt the issues were too important and any decision to allow this proposal to go forward would have far-reaching implications for development proposals on other lake trout lakes. We believed the issues should receive a full hearing at the OMB and not be decided in a negotiated settlement.

Fortunately, in the end, no settlement was reached and a full hearing did go ahead in late Oct. and early Nov. The Ministry called all their expert witnesses to counter the developer’s claims, the current research into phosphorus attenuation in different soils was argued on the basis of recent scientific data, the science of the trout fishery was brought forward in great detail, and relevant measures to determine the impacts of development on water quality were in contention.

On Nov. 30, OMB member David Culham released his decision. In essence, he accepted the argument that, given the untested nature of the proposed septic treatment systems, it was premature to approve 31 lots within 300m of Limerick Lake until more testing data was available. The Board member said that these lots should definitely not go ahead now nor should they be included in the planning hearings scheduled for January. But, in the words of the Board member, “The Board does not totally reject the proposed lots. The Board defers consideration of these 31 lots until after the observations and analysis from an additional three years of continuous monitoring as recommended by Dr. Monoharan [a Ministry witness].” So, the developer definitely did not get what he applied for now, but the Board, unfortunately, didn’t close the door forever.

John Sewell, acting as agent for LWRA and the Township, points out another important aspect of the decision. “It confirms the position that both the Township and the Association have taken over the years that Limerick Lake must be protected. The first finding in the decision is that ‘…Limerick Lake represents a special `at capacity’ cold water Lake Trout habitat that is especially susceptible to low levels of dissolved oxygen.’ The Third finding is ‘The cold water Lake Trout type-Lake Limerick is a very high priority, high value lake in Ontario.’ These statements provide validation to the actions of the Township and the Association in trying to control this development for the last decade.”

Regarding the monitoring, Sewell notes that the member’s comments “lead to the conclusion that it seems reasonable to assume that the monitoring will have to take place in more than one location and that it will have to show that there is a workable system that does not malfunction – the Phosphex™ system has malfunctioned on several occasions. Further, the Phosphex model which Trident wishes to use for the Limerick development has never before been used, so there is a good question whether three years is long enough for the new system, or whether it needs to be tested for longer, maybe six years.”

For LWRA and the Township, there are still some residual issues on the table for planning hearings in January but the major part of our case has been dealt with for the moment. While it isn’t really over, we feel we have made significant progress. Much can happen in three years – and there is no assurance that there will be positive testing data for the newly designed septic systems nor that they will function well over the long term. As well, LWRA would hope the province, FOCA, and all cottage associations concerned about similar development proposals to ours will actively pursue the questions around what constitutes “good planning” for our recreation lakes.

We would all probably agree, that to hang approval of development proposals solely on the basis of septics and phosphorus when multi-unit developments can create multiple stresses on lakes from all kinds of perspectives – more people, more boats, more water use, more cutting down of trees, more disturbance of all natural features, more impact on groundwater sources, etc. etc. – really doesn’t make much sense. We need a much more comprehensive planning regime to create a structure for good planning decisions affecting recreational lakes rather than something as narrow as phosphorus.

LWRA feels very strongly that we made the right decision in standing firm that we would not support any settlement negotiated between the Ministry and Trident, the developer. We have no way of knowing, but it is possible that the position we took eventually contributed to the fact that the Ministry did not agree to a negotiated settlement with the developer but instead brought all their expert witnesses and their considerable volume of important evidence forward in a full hearing.

One further observation: throughout the hearing, with the large volume of evidence straight from very technical scientific studies, it was difficult to see how a lay person could really assess the information and its implications. Even the hearing officer himself says in his decision: “The preferred arena to sort out differences of opinion pertaining to the science is within the academic and professional organizations.” Still, of course, with no option, he went ahead and made a sort-of decision.

As well, we should take note that there were significant mentions in the hearing about the fact that there was no evidence that the cottagers were doing much to deal with the impact they were having on water quality. It was suggested that the current amount of phosphorus in the lake was contributing to the low levels of dissolved oxygen and putting our lake trout fishery at risk. In fact, Mr. Culham said, “Much of the shoreline in question is already occupied by existing cottages with little improved sewage treatment or other applied conservation. It does not appear to the Board from testimony that the Ministries measured quantitatively or by anecdotal observation existing impact from these existing cottages on the shoreline.”

LWRA, hearing this message, has already begun to work on septic issues on our lake as we know others lake associations have begun to do as well. Obviously, cottage/conservation associations can gain credibility in our stance against inappropriate development if we can show that we’ve been proactive in addressing our own problems with phosphorus in our lakes.

Please feel free to contact me for more information about our case at 416-691-8894 lwshep@sympatico.ca The full decision can be accessed on the OMB website – it is Decision/Order no. 3126, dated Nov. 30, 2005.

Linda Sheppard, Pres.
LWRA