When council last considered the PenEquity application for a big box development south of Highway 401 at Wellington Road, it decided by a narrow margin that it could use a little more information. Accordingly, staff was instructed to complete an Environmental Impact Study (EIS) on the woodland and wetland, check with the applicant to see if he would consider saving some or all of the woodland, find out how many and what kinds of jobs the project would create, and report back to the Planning and Environment Committee PDQ.
Staff did so when the committee met this week. That's pretty damned quick. Indeed, it was so PDQ that there was virtually no opportunity to review the additional reports and arguments provided by the proponent of the project a few days earlier. Even the Upper Thames River Conservation Authority (UTRCA) and the Ministry of Natural Resources (MNR) which between them have regulatory authority over development in environmentally sensitive areas (ESA's) had barely had time to look at the documents provided by PenEquity's consultants, let alone review them.
Staff had good reason to report back before an evaluation of the additional materials could be provided. Council had set it an impossible task, or at least, if not impossible, certainly contradictory. On the one hand, council wanted staff to undertake an EIS for the applicant. But an EIS is required only if the natural feature is to be retained. Council, on the other hand, wanted to give the applicant the option of retaining it or not.
Perhaps a brief review would be in order here. PenEquity wants to build a shopping centre with cinemas, a hotel and a gas bar on a 76 acre property at the corner of Dingman Drive and Wellington Road. The plan it has in mind calls for eliminating Vegetation Patch 10102, an unevaluated 10 acre woodland containing some 10,000 trees and a wetland. Staff had recommended allowing the development but retaining the woodland as open space.
But in real estate, location is everything and the location of the woodland was problematic for PenEquity. The proponent of the development was not prepared to budge, staff reported. Either the woodland was out or the proponent was outa here.
Besides, the woodland was not all that significant, PenEquity's consultants reported. No way there were 10,000 trees. They found only 1,653 good sized trees over 15cm in diameter. And almost 80% of those were ash or elm which, if not dead already, certainly soon would be since these are notoriously subject to destruction by emerald ash borer or dutch elm disease. As for the wetland, PenEquity's evaluator, Aecom, had concluded that it wasn't provincially significant, and neither the city nor the UTRCA had had time to review that assessment.
There was also the issue of the jobs. Here, the situation was no clearer. PenEquity couldn't point to specific partners or tenants, not the cinemas, the hotel, nor the gas bar. Hence, it was impossible to say what kind of jobs or how many there would be and whether or not they would be worth the sacrifice of a woodland.
Staff wasn't changing its professional recommendation. Director of Planning John Fleming made it clear that any change in the original recommendation to save the woodland would be the committee's, not staff's. However, if the committee was prepared to allow the destruction of the woodland, staff would suggest that compensation for the removal be set at something in the neighbourhood of 6:1, that is, 6 new trees for every tree removed. And not just the big ones. PenEquity had offered a compensation of 0.8 to 1.
Finally, staff reported, there would be little precedence-setting by how this application was handled by council. Of the 168 unevaluated vegetation patches in the city, only five were, like this one, not protected by the city tree by-law, and two of these had already been largely denuded. Staff suggested that all of these and one other anomalous situation be included on the Official Plan schedules to be afforded the standard protection.
This was the staff report. Mayor Fontana wasted no time in appropriating it as an endorsement of what he had been promoting all along, giving the developer whatever he wanted.
Never mind that the developer's reports had arrived too late to be evaluated by staff or the regulatory agencies; after all, PenEquity had hired Aecom to assess the vegetation patch. The city itself had sometimes used Aecom. It was a certified organization which used professionals. No need for an independent review. Surely you could accept the opinion of a certified wetland evaluator. That had to be worth something. If Aecom said the woodland wasn't sustainable, that was good enough for him.
Bud Polhill was chairing the meeting, but the mayor was clearly in control. Although this part of the meeting was reserved for technical questions, Fontana was stating his position from the get go and appealing to others to share his viewpoint. Approve the application here and now; no need to get a staff evaluation of the information provided by the applicant. Yes, trees would be cut down, but they were dead or dying, it said so in the report. It was not sustainable. What was left was 400 healthy trees. At what price should council protect them? Much better that they find another piece of property with a woodland at risk and buy that. After all, there was a reserve fund for that, wasn't there? And hadn't PenEquity said that it would make a gift to the city in compensation for the woodland? As for the wetland, was there really one? Wasn't it just a result of extraction and grading? Besides, there were always holding provisions. If it turned out to be an actual wetland, the project would be held up at site plan. There was no risk to the city in going ahead.
And the jobs! He gets really ticked when someone says they are only retail jobs. He doesn't demean any jobs. They are great for students and seniors. Don't we want to keep young people in the city?
He moved that they go ahead as requested by the applicant. Maybe throw in a clause saying it was noted that there will be holding provisions to cover off on any concerns regarding the presence of a significant woodland or compensation. They could have their cake and eat it too.
But not so fast. There are other members of the committee as well as attending councillors not on the committee who have some questions and comments.
There was also a significant audience in the public gallery. Some of them had submitted letters of protest but, as Polhill reminded them, this was a consent item, meaning no one else got to speak unless a question was specifically put to them by the committee.
Committee member Paul Hubert was the first to speak. The previous speaker (the mayor) had certainly diverged a long way from technical questions, he noted. But this was a very technical report. Committee members had received 50 to 60 additional pages that very day. It would be disrespectful to staff, the applicant, the ecologist and the regulatory agencies to simply move ahead without giving thoughtful consideration to these additional reports. He was not an ecologist. He needed to hear from these experts. What did they have to say? He addressed his concern to staff. How different was this patch from other woodlands across the city? Did they also contain ash and elm?
Forester Ivan Listar responded from the public gallery. Woodlands are living ecosystems, he pointed out. They are all different, and their vegetation grows and dies. The trees don't all drop dead at once. There is an understory which forms the woodland of tomorrow.
The opportunity to ask the next question went to Councillor Sandy White. She had been the one to cast the deciding vote at council to refer the matter back to staff a couple of months ago. Back then, as councillor for ward 14, she had been sitting at the far right of the horseshoe beside ward 13 councillor, Judy Bryant. With no one to guide her, she had become confused about what she had been voting on.
But now, seated conveniently beside the mayor, she knew her responsibility.
Unfortunately, she really couldn't think of any technical questions. She made a fainthearted stab at several but withdrew them as quickly and as vaguely as she had made them, leaving staff bewildered. Finally, she commented that, since the city had used the services of Aecom in the past, there was no reason to review their report on behalf of the applicant.
“We should trust them,” she concluded.
Her viewpoint was not shared by Councillor Nancy Branscombe. She wanted to wait for the reports from the UTRCA and the MNR before making a decision on this. At site plan, council would only have an opportunity to make suggestions; they wouldn't have any authority to say yea or nay. The word that she and other committee members had received from the MNR and the UTRCA hadn't sounded all that promising.
And they were dealing with an ecosystem, not just a bunch of trees. “You can't just plop them here and there,” she pointed out.
She wasn't trying to hold up the development. If the MNR said it was great to do this and this, fine. She would be all for it.
“That's what they will say,” Fontana interrupted, as is his wont. Everyone else has to wait his or her turn.
“I want to hear them say it,” Branscombe retorted. And furthermore, she wanted it noted that the only person to suggest that these were “only retail jobs” was the mayor. “No one else is saying that.”
The mayor was petulant. He hadn't said that anyone on council had suggested that, but he had heard it somewhere. From someone.
Then Usher joined the fray. The property at issue is in his ward and his constituents have questions. They need answers from the MNR and UTRCA. And why should volunteers keep on planting trees if the city just allows them to be cut down? Clearly, he had seen the morning paper raising this issue.
Finally, it was Joni Baechler's turn to speak. She is not a member of this committee but she serves on the Trees and Forest Advisory Committee and is known as a fierce advocate for woodland and wetland protection.
She pointed to her experience on these issues.
“I've been around the block,” she said, and then, realizing the potential for misinterpretation, tried to retract. She meant environmental issues, she laughed, embarrassed. The gallery shared in her laughter.
As a community activist and as a councillor, she had been involved in numerous appeals to the Ontario Municipal Board (OMB) to protect environmentally sensitive areas. The developers always hired consultants. Northdale Woods, UWO Gibbons, Hyde Park. The list goes on and on. In each case, the developer had consultants to say the areas weren't significant but the OMB determined otherwise.
“No one on staff has vetted this,” she pointed out. Not the ecologist, Bonnie Bergsma. Not the urban forester, Ivan Listar. There was a heck of a lot of work to be done. Not doing so would risk an unprecedented fight with the community. Reforest London had assessed the economic value of a mature tree at $600 to $1,000. Where was the compensation for that?
Her comments earned her an enthusiastic round of applause to the annoyance of the mayor. How dare she say staff hadn't done anything, he demanded, deliberately misconstruing her remarks, but the public could easily see through the tactic.
Matt Brown, also not on the committee, weighed in next. A lot had changed in regard to the application, he noted, because of additional information. They had come a long way. What about putting in hard and fast holding provisions, that is, not allowing the development to proceed unless certain conditions and approvals had been met? Would that help, rather than relying on an “it being noted” clause?
It wouldn't hurt, Fleming conceded, although it would be somewhat redundant since building permits can't be issued unless the MNR and the UTRCA give the go ahead. But you could throw in the compensation requirement as well. And, of course, they could always withhold third reading of the by-law until all the conditions had been met.
A few others had yet to speak. Judy Bryant was choked up. She couldn't see why the proponent couldn't incorporate the woodland as part of a spectacular development. “There are so few of them,” she pleaded.
As usual, Dale Henderson had his own proposal. He had been elected, he pronounced, to create jobs and keep down taxes. Those were his only concerns. If people were worried about trees, they need only go for a walk, collect some seeds from the roadside and plant them in their backyards. No cost to the developer or the city. No more chitchat, chitchat. Just get it done before the developer packs up and leaves.
Hubert was not impressed. He's not concerned just with jobs and taxes but with building a livable city, he said. When they were elected, they took an oath to uphold the laws. You can't just steamroll over professional standards and council policies.
White had another concern. How would the media report what had taken place that evening? You couldn't trust them to get it right. They would just say whatever they wanted and get the public all riled up. She suggested that the city put out a press release.
“We can't do that,” Polhill responded. “It still has to go to council.”
But White had a point. In the confusion that ensued, given all the amendments to past and present recommendations, and splitting motions for separate votes, few in the gallery had any idea of what was being voted on.
Still, the final outcome was clear. The committee was recommending giving the green light to PenEquity to pave paradise and put up a parking lot.
This time, White knew how to vote. She joined Bud Polhill, Dale Henderson and the mayor in supporting the motion to accommodate the developer. Hubert and Branscombe were opposed.
This time, White was sitting beside the mayor. For her, in politics, as in real estate, it's location, location, location.