CITATION: Fort Erie Waterfront v. Molinaro Group Crystal Beach et al, 2011 ONSC 5252

COURT FILE NO.: DC 11-285ML

DATE: 2011-09-13

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

Fort Erie Waterfront Preservation Association Moving Party

• and -

Molinaro Group Crystal Beach Waterfront Inc. and The Corporation of the Town of Fort Erie Responding Parties

Eric K. Gillespie/Julia Croome, for the Moving Party

Scott Snider, for the Responding Party, Molinaro Group Crystal Beach Waterfront Inc.

Lynda Townsend, for the Responding Party, The Corporation of the Town of Fort Erie

HEARD: August 12 & 30, 2011

THE HONOURABLE MR. JUSTICE P.B. HAMBLY

JUDGMENT

[1] This is a motion for leave to appeal a decision dated January 28, 2011 of a single member of the Ontario Municipal Board (“OMB”).

Overview

[2] Crystal Beach on Lake Erie is a part of the Town of Fort Erie. The town purchased a portion of Crystal Beach, known as Bay Beach, in 2001. The town demolished the buildings on Bay Beach in June 2002. On either side of Bay Beach are cottages along the beach. In front of the cottages and through the Bay Beach property are shoreline protection works which separate the beach from the lake. Attached hereto and marked Exhibit A is a map of a portion of Crystal Beach showing the Bay Beach property. It consists of 2.1 ha. – two parking lots north of Erie Road and the remainder south of Erie Road to the lakefront.

[3] In 2009 the council of the Town of Fort Erie authorized the town to enter into a Memorandum of Understanding with the Molinaro Group Crystal Beach Waterfront Inc. (“Molinaro”) for the development of a portion of the Bay Beach property (“Development Site”) outlined by a dotted yellow line on Exhibit A. On March 1, 2010 the town Council passed Zoning Bylaw Amendment 26 – 10 (“ZBA”) permitting the construction of a 12 storey condominium building on the Development Site. The Fort Erie Waterfront Preservation Association (“FEWPA”) appealed to the OMB.

[4] The parties agree that the beach at the front of the Bay Beach property is a Dynamic Beach, as defined by the Provincial Policy Statement 2005 (“PPS”). It is the position of FEWPA that the Development Site falls within the Dynamic Beach Hazard, as defined by the PPS and hence development is prohibited on it by the Official Plan of the Niagara Planning Area and by the Ontario Planning Act. It is the position of the Molinaro Group and the Town of Fort Erie that the landward limit of the Dynamic Beach Hazard is the existing shoreline protection works, which will be supplemented by proposed shoreline construction works, to be constructed immediately behind the existing shoreline protection works. The Development Site is behind the shoreline protection works, is outside of the Dynamic Beach Hazard and hence development is permitted. There was a hearing before the OMB over eight days in which 18 witnesses were called. Three experts testified on the concept of the Dynamic Beach Hazard. Dr. Robin Davidson-Arnott, a geo-morphologist and Judy Sullivan, a professional engineer specializing in coastal engineering testified for FEWPA and Mark Kolberg, also a professional engineering specializing in coastal engineering testified for the Town and Molinaro. Mr. Kolberg is the author of the 2009 W.F. Baird and Associates Coastal Engineers Limited Report entitled “Bay Beach Property, Crystal Beach, Fort Erie: Flood and Dynamic Beach Hazard Assessment” (“Baird Report”). The Board accepted the opinion of Mr. Kolberg, as expressed in the Baird report, that the shoreline protection works - existing and to be constructed - mark the landward limit of the Dynamic Beach Hazard and dismissed FEWPA’s appeal. FEWPA now seeks leave to appeal the OMB’s decision to the Divisional Court.

[5] Issues raised by FEWPA at the OMB hearing relevant to this motion for leave to appeal from a list of issues which FEWPA filed at the hearing before the Board are as follows:

Planning

1. Should Zoning By-law Amendment 26-10 be approved, having regard for [sic] the Provincial Policy Statement (2005) (“PPS2005”) and specifically:

… (h) 3.1 – Natural Hazards

Environmental Impacts

15. Should an Environmental Impact Study (EIS) or other assessment be required prior to approval of the zoning by-law amendment to address:

… (d) encroachment of structures within the dynamic beach zone and the impacts on the natural beach, dune dynamics and surrounding land uses.

[6] The parties did not provide transcripts of the evidence before the OMB. They did provide the OMB decision, factums, witness statements of Ms. Sullivan, Dr. Davidson-Arnott and Mark Kolberg and relevant supporting documents. I will assume that the authors of the witness statements testified consistently with their statements.

The Evidence before the OMB

[7] Further shoreline protection works in the nature of stone revetments are planned for the east and middle of the development site. These would replace the existing shoreline protection works and would be constructed landward of them. The existing shoreline protection works at the west end of the development site will remain in place. He expressed the opinion that the shoreline protection works were similar to a cliff or a bluff where the Dynamic Beach Hazard limit is defined as the toe of the cliff or bluff. Steven Miller, of the Niagara Peninsula Conservation Authority (“NPCA”), testified that based on an updated Lake Erie Shoreline Management Plan (“Shoreplan Report”), the NPCA adopted the opinion expressed by Mr. Kolberg in his evidence before the Board and in the Baird Report, that the outer limit of the Dynamic Beach Hazard is the shoreline protection works to be constructed. Attached hereto and marked Exhibit B is a sketch from the Baird report showing the concept of the stone revetments to be constructed.

[8] The Baird Report is clear that the existing shoreline protection works are inadequate to protect the area behind them which would include the development site. The Baird Report states the following:

The EurOtop methodology was used to determine the average wave overtopping rate at the existing shoreline. The stacked concrete block wall was assumed to be a vertical wall with a top elevation of 178.3 m, and a toe elevation of 175.2 m (to allow for scour). At the 100-year flood level, and assuming depth-limited waves, the average wave overtopping rate was estimated to be 75 l/m/s. Average overtopping rates exceeding 1 to 21/m/s can result in backshore drainage and usage concerns; therefore the present shoreline and the immediate backshore area are deemed to be within the flood hazard limit. The hazard effect is estimated to extend approximately 30 m inland.

At the 100-year flood level, the concrete foundation wall, with a top elevation of 177.5 m, would be subject to wave overtopping of about 340 1/m/s, which exceeds the recommended threshold criteria for damage to a structure. The actual stability of the concrete wall against direct wave attack has not been assessed as part of this study. Due to the uncertainty of the integrity of the concrete foundation wall at this time, it is prudent to assume that the flood hazard limit extends landward of the concrete foundation wall.

The concrete wall at the west end, with a top elevation of 178.9 m would be subject to overtopping of about 23 1/m/s. The actual stability of the concrete wall has not been assessed as part of this study; therefore it assumed that the flood hazard limit extends landward of the concrete wall a minimum of 15 m.

In summary, the beach, the existing protection works and up to approximately 30 m landward of the protection works are within the flood hazard limit and are subject to Ontario Regulation 155/06.

[9] Attached hereto and marked Exhibit C is a plan showing the location of the existing and proposed shoreline protection works. It states that the proposed construction works will be adequate to protect the development site. Under the heading “CONCLUSIONS AND RECOMMENDATIONS” it states the following:

7. In accordance with the floodproofing standard, development located within the flooding hazard limit shall be protected from flooding to an elevation equal to, as a minimum, the sum of the 100-year monthly mean lake level plus the 100-year wind setup plus an allowance for wave uprush and other water-related hazards. For the project site, the 100-year monthly mean lake level is 175.0 m GSC and the 100-year wind setup is 2.4 m (MNR 1989). Therefore, the floodproofing standard elevation is 177.4 m GSC plus an allowance for wave uprush and other water-related hazards.

8. Assuming that the proposed seawall at the shoreline has a crest elevation of 178.3 m, a vertical allowance of 0.6 m for wave uprush and other water-related hazards is sufficient for preliminary design purposes. Therefore the minimum floodproofing standard elevation for preliminary design is 178.0 m; this applies to areas landward of the shoreline protection. The following proposed development elevations, as shown in Figure 2.1, meet the minimum requirement of the floodproofing standard: Finished floor elevation at grade, 178.7 m; Grade around perimeter of building (above underground parking) 178.4 m; Grade at top of ramp to underground parking, 178.1 m.

[10] It also states the following:

In summary, the proposed building complex as shown in Figure 1.2 and with the provision of the shoreline protection works as described herein, complies with the floodproofing, protection works and access standards as outlined in the Technical Guide (Ministry of Natural Resources). Additional study to address the details of the proposed shoreline protection can be finalized at the detailed design stage.

[11] Dr. Robin Davidson-Arnott and Judy Sullivan expressed the opinion that the proposed development was within the Dynamic Beach Hazard. The beach in front of the development site is a Low Plain Beach. Ms. Sullivan defined the Dynamic Beach Hazard to include the 100 year flood level of 177 m above sea level plus a Wave Uprush/Overtopping Allowance of 15.0 m plus a Dynamic Beach Allowance of 30 m. This placed the development site well within the Dynamic Beach Hazard. They rejected the concept that artificial shoreline protection works could be analogized to a bluff or a cliff for purpose of defining the Dynamic Beach Hazard limit. They were of the opinion that an Environmental Impact Study (EIS) was required before the shoreline protection works, existing or planned, could be considered to define the limits of the Dynamic Beach Hazard. They recommended that the apartment building not be constructed. The existing shoreline protection works are derelict. They should be removed and a “functioning foredune system” be restored.

[12] Judy Sullivan stated the following in her statement:

Natural features form over extremely long periods of time and are caused by the naturally occurring conditions which formulate the strength and characteristics of the materials over this time period. If one has natural features that are formed over these extensive periods of time they represent unique naturally occurring conditions including strengths of materials that cannot be duplicated by a manmade revetment. These unique features which have been formulated will also be in harmony with the natural occurring surroundings that have all evolved naturally. A seawall or revetment does not replicate the same properties that these natural features would have developed nor do they reflect the interaction of the natural processes over these extensive periods of time which would created a natural feature. It is clear that the structures that are currently constructed on the site are not the same as a natural cliff/bluff feature and should not be treated as one. We only need to ask the question what would the site look like and how would it operate if the shoreline structures were not there? The answer is that a natural beach/dune system would very quickly develop indicating that the existing structures are not acting the same as a natural cliff or bluff system. Because the site is a low plain beach system, this is what it would quickly return to once the structures were removed. (p. 10 - 11)

It is also evident from the area that the beach/dune feature at this site can quickly be established as we can already see the initial stages of formation of a dune system on the right hand side of Figure 6. To suggest that a revetment, underground garage, building immediately on the active beach/dune area and a 12 story building is not going to have an impact on the natural dynamic beach system or the environment also makes this concept illogical. If we start to accept that manmade structures replace and are equal to natural features (i.e. a cliff/bluff) then anything can be built anywhere in the province without any regard for the natural process or features occurring along the shorelines. This totally ignores the basis of what the Provincial Policy is designed to protect which is the natural operation of these features and processes along with keeping people out of living in these hazardous areas that if left on their own will provide the public with natural protection.

The acceptance of applying this type of recommendation without requiring any technical or policy basis for this is sending a very clear and potentially alarming message to anyone that would like to develop, that the only requirement is that you need to have an existing shoreline structure. If this type of justification was allow it would undermine the whole basis of the Hazard Policies across the province.

5.3 The application of the ‘Dynamic Beach backed by a Bluff/Cliff’ category that has been recommended has also not been applied in accordance with the PPS

The approach has not recognized the system which is actually occurring at the site; the low plain dynamic beach system and they are also not applying the requirement to address this dynamic beach hazard in the appropriate manor. As one can see from Figure 7, (PPS Great Lakes – St. Lawrence River Technical Guide, Figure 5.6 Pg. 5-12) the bluff/cliff illustrated is not the same as a revetment or seawall structure.

Even if the bluff/cliff as described in Figure 7 really did exist at the site (which it clearly does not), it would then require the Erosion Hazard in Figure 8 to also be applied. If it truly was a Bluff/Cliff then they would have to then apply a stable slope allowance + 30m Average Annual Recession Rate(AARR) as required by the Dynamic Beach backed by a Cliff/Bluff definition in the PPS.

If the “Dynamic Beach Hazard backed by a Bluff/Cliff” situation exists (which they are recommending that this category be applied instead of the Low Plain Dynamic Beach) then the Erosion hazard is also required because there will be additional slope and erosion hazards that must be addressed if one has encountered this type of physical situation. This would define that the area they are proposing development in as now being within the Erosion Hazard area. Since there is no actual cliff/bluff at the site, it does not make any ‘practical’ sense to apply the erosion hazard (i.e. stable slope allowance and AARR) since the site does not actually exhibit the characteristics of such a system. So they have not applied the Erosion criterion required for this category but used this definition of the Dynamic Beach backed by a Bluff/Cliff as the foundation for which they are basing their recommendation of building the development within the hazards area. This does not make any technical sense and is not carrying out the required criteria under their recommended for the application of the Dynamic Beach Hazard backed by a Bluff/Cliff.

The Flooding Hazard criterion has then been applied which is the only Hazard criteria that would allow for structures to be built within the hazard area. Essentially they have created a new Provincial Policy category (Dynamic Beach Backed by any Shoreline Structure, requiring only the Flooding Hazard criteria be applied and not the Dynamic Beach) that goes against the PPS recommendations and is not supported by the PPS policy. (p. 12-14)

[13] Dr. Robin Davidson-Arnott agreed with the opinions expressed by Judy Sullivan. He expressed a concern about the risk posed to the inhabitants of the proposed apartment building. He stated the following in his witness statement:

… Where single family units and buildings of a similar size are involved the risks of loss of property and life due to a high magnitude, low-frequency event is assumed to be acceptable. However, where a 12 story building is involved those risks are much greater and this should dictate greater prudence in the design and location of such a building. (p. 2-3)

… In a major storm event this area is subject to flooding and access to the area during a storm that is likely accompanied by winds in excess of 80 kph in order to accomplish the evacuation of all of the inhabitants of a 12 story building will be extremely difficult to carry out safely. (p. 3)

The OMB Decision

[14] In the portion of the decision under the heading “Dynamic Beach” at pages 24 to 43 the board accepted the opinions of Mr. Kolberg and the NPCA and rejected the opinions of Dr. Robin Davidson-Arnott and Ms. Sullivan for the following reasons:

1. The shoreline protection works have been in place for decades.

2. The NPCA accepts the shoreline protection works to be constructed as marking the limit of the Dynamic Beach Hazard based in an independent report.

3. To not accept the shoreline protection works to be constructed as marking the landward limit of the Dynamic Beach Hazard would be to place in jeopardy further development along the beach behind the existing shoreline protection works.

4. The further shoreline protection works to be constructed behind the existing shoreline protection works will need to be approved by the NPCA before they are put in place.

[15] The board stated the following:

Portions of the subject site are within the flood hazard limit (the flood level is the sum of the mean lake level and storm surge with a combined probability of a 100-year return period). The 100-year flood level is 176.97 metres. The Baird Report stated that at the 100-year flood level, wave run-up and overtopping of the existing protection would occur, thus extending the flood hazard limit inland of the shore protection structures. (p. 30)

The Board determines the Baird Report provides a comprehensive, well thought out and expertly planned series of protection works for this site that satisfy the policy requirements of the PPS, the Technical Guide’ directives and the NPCA’s policies as presented to the Board. All of these elements – the proposed shoreline works and works to address the wind transport of sand – demonstrate persuasively to the Board that they do not encroach onto the existing dynamic beach. The existing seawalls and shoreline structures delineate the extent of the dynamic beach hazard and existing works at the east and Midwest area will be relocated landward, thus actually increasing the dynamic beach width. The existing seawall at the west end of the site will remain and that existing condition will not be altered. (p. 37)

While the Board accepts that some cottages and buildings were damaged in that storm, (pursuant to photographs provided by a witness of damage done in a storm in 1985 to cottages and buildings behind the shoreline protection works) the Board cannot assign significant weight to the extent of that damage without knowing the specific conditions for each of these buildings, their flood protection or the shore protection works in place in 1985. When compared with the visual evidence, the Board prefers the Baird Report, which provides extensive recommendations for mitigating works to protect the shoreline and the proposed building to withstand a rarely occurring situation and standard to which the proponent must design, using modern technology and design materials. (p. 41)

Having preferred Mr. Kolberg’s approach of assessing the proposal in the context of the relevant PPS policies, which he reviewed in an appropriate and flexible manner, to the opposing witnesses’ rigid and narrow interpretation of the PPS for the reasons indicated, the Board determines that the proposed development sits behind the dynamic beach hazard as defined under the PPS. The Board has preferred the co-proponents’ more flexible approach in respect of the interpretation of policy documents to the opposing witnesses’ rigid analysis of the proposal in the context of the PPS for the reasons stated. The Board also finds that neither the spirit nor direction of the PPS and its policies are undermined by this approach and/or a reading of the proponents’ technical evidence related to the dynamic beach hazard and its limits. The Board determines, therefore, that there are many reasons as provided why no EIS or other assessment is required prior to approval of the Zoning By-law Amendment as issues surrounding the encroachment of structures within the dynamic beach zone and the impacts on the natural beach, dune dynamics and surrounding land uses have been satisfactorily addressed by the Applicants. (p. 42-43)

Summary

Having considered all of the evidence, and preferring the evidence of expert and lay witnesses who support this proposed development for the reasons stated, the Board has provided its findings on all of the Appellants’ issues it considers to be worthy of adjudication and has provided its findings throughout the body of this decision. The Board determines that Zoning By-law Amendment 26-10 should be approved as it is consistent with the relevant policies of the 2005 Provincial Policy Statement (pursuant to Section 3(5) of the Planning Act … it represents good land use planning and is in the public interest; (p. 53-54)

Law

Statutes

[16] Ontario Municipal Board Act, R.S.O. 1990, c. O.28

96. (1) Subject to the provisions of Part IV, an appeal lies from the Board to the Divisional Court, with leave of the Divisional Court, on a question of law.

[17] Planning Act, R.S.O. 1990, c.P.13

Policy statements

3.--(1) The Minister, or the Minister together with any other minister of the Crown, may from time to time issue policy statements that have been approved by the Lieutenant Governor in Council on matters relating to municipal planning that in the opinion of the Minister are of provincial interest.

Policy Statements and Provincial Plans

(5) A decision of the council of a municipality, a local board, a planning board, a minister of the Crown and a ministry, board, commission or agency of the government, including the Municipal Board, in respect of the exercise of any authority that affects a planning matter,

(a) shall be consistent with the policy statements issued under subsection (1) that are in effect on the date of the decision; and

(b) shall conform with the provincial plans that are in effect on that date, or shall not conflict with them, as the case may be. 2006, c. 23, s. 5.

Other Relevant Documents

[18] Provincial Policy Statement 2005

3.0 Protecting Public Health and Safety

Ontario's long-term prosperity, environmental health and social well-being depend on reducing the potential for public cost or risk to Ontario’s residents from natural or human-made hazards. Development shall be directed away from areas of natural or human-made hazards where there is an unacceptable risk to public health or safety or of property damage.

Accordingly:

3.1 Natural Hazards

3.1.1 Development shall generally be directed to areas outside of:

a. hazardous lands adjacent to the shorelines of the Great Lakes - St. Lawrence River System and large inland lakes which are impacted by flooding hazards, erosion hazards and/or dynamic beach hazards;

b. hazardous lands adjacent to river, stream and small inland lake systems which are impacted by flooding hazards and/or erosion hazards; and

c. hazardous sites.

3.1.2 Development and site alteration shall not be permitted within:

a. the dynamic beach hazard;

Dynamic beach hazard:

means areas of inherently unstable accumulations of shoreline sediments along the Great Lakes - St. Lawrence River System and large inland lakes, as identified by provincial standards, as amended from time to time. The dynamic beach hazard limit consists of the flooding hazard limit plus a dynamic beach allowance.

[19] Official Plan for the Niagara Planning Area

7.A.6 Natural Hazards

Natural hazards pose risks to life and property. Development and site alteration shall be directed away from hazardous lands and hazardous sites where there is an unacceptable risk to public health or safety or to property. Hazardous lands are lands that could be unsafe due to naturally occurring processes such as flooding, erosion, slope failure and beach movement. Hazardous sites are those that could be unsafe due to naturally occurring physical conditions such as unstable soil or bedrock.

Objectives

Objectives 7.A.6.1 To minimize the risk of personal injury, loss of life or property damage, public costs and social and economic disruption from

natural hazards.

Objective 7.A.6.2 To ensure that development and site alteration do not create new hazards, aggravate existing ones, or have negative environmental

impacts.

Policies for Natural Hazards

Policy 7.A.6.1 Hazardous lands and sites shall be as identified and mapped by

the Niagara Peninsula Conservation Authority. Where an application for development or site alteration is made and such mapping is not available the location and extent of hazardous lands or sites shall be as determined by the Conservation Authority after considering an appropriate study prepared and signed by a qualified engineer and submitted with the application.

Policy 7.A.6.2 Local Official Plans and Zoning By-laws shall include maps

showing the location and extent of hazardous lands and sites as determined by the Conservation Authority.

Policy 7.A.6.3 Along the shorelines of Lake Erie and Lake Ontario:

a) Development and site alteration shall not be permitted within

the dynamic beach hazard limit; and

b) Development and site alteration may be permitted within the

erosion hazard limit and the flooding hazard limit subject to the

approval of the Conservation Authority conditional on part (a).

[20] Technical Guide for Great Lakes – St. Lawrence River Shorelines (the “Technical Guide”)

5.3 Provincial Policy: Dynamic Beach Hazard

The landward limit of the flooding hazard (100 year flood level plus a flood allowance for wave uprush and other water related hazards) plus a 30 metre dynamic beach allowance

OR

The landward limit of the flooding hazard (100 year flood level plus a flood allowance for wave uprush and other water related hazards) plus a dynamic beach allowance based on a study using accepted scientific and engineering principles.(p. 5-9)

For those situations where a municipality or planning board determines that for various reasons a scientific and engineering study would be a more appropriate method in determining the landward limit of the dynamic beach hazard, there should be flexibility provided to:

• permit or require the undertaking of a study using accepted scientific and engineering principles to determine the dynamic beach hazard limit…

Guidelines to assist in determining when and where such studies are appropriate and what constitutes accepted scientific and engineering principles and procedures are provided in Sections 5.5 and Appendix A5.1 or this Technical Guide. (p. 5-10)

There are several circumstances under which natural factors may require redefining the landward limit of the dynamic beach hazard. These include:

Where a cliff or bluff, consisting of cohesive sediments or bedrock, exists landward of the beach, the toe of the bluff/cliff acts to limit the landward extent of dynamic beach profile adjustment. In these areas the dynamic beach hazard limit should be defined as the toe of the cliff or bluff (figure 5.6). The stable slope allowance and the erosion allowance should be applied to the cliff/bluff (see Section 5.5). (p. 5-11)

[21] Ontario Regulation 155/06

NIAGARA PENINSULA Conservation Authority: Regulation of development, interference with wetlands and alterations to SHORELINES AND watercourses

Definition

1. In this Regulation"Authority" means the Niagara Peninsula Conservation Authority. O. Reg. 155/06, s. 1.

Development prohibited

2. (1) Subject to section 3, no person shall undertake development, or permit another person to undertake development in or on the areas within the jurisdiction of the Authority that are,

(a) adjacent or close to the shoreline of the Great Lakes-St. Lawrence River System or to inland lakes that may be affected by flooding, erosion or dynamic beaches, including the area from the furthest offshore extent of the Authority's boundary to the furthest landward extent of the aggregate of the following distances:

Permission to develop

3. (1) The Authority may grant permission for development in or on the areas described in subsection 2 (1) if, in its opinion, the control of flooding, erosion, dynamic beaches, pollution or the conservation of land will not be affected by the development. O. Reg. 155/06, s. 3 (1).

Policies, Procedures and Guidelines for the Administration of Ontario Regulation 155/06

3.26 Shoreline

The general and specific shoreline policies within this document restrict development within the shoreline hazardous lands that are impacted by flooding, erosion and dynamic beach hazards. The basic objectives of the shoreline policies are to minimize risk to life, property damage, social disruption and adverse environmental impacts.

The limits… will apply in all instances unless it can be shown to the satisfaction of the Authority and through valid engineering studies… that other allowance limits will maintain the integrity of the feature in question.”

[22] Excerpts from by By Law No. 26-10

7. THAT pursuant to Section 36(1) of the Planning Act the “H” Holding Symbol shall be removed for the lands shown on the attached Appendix 1 as C2-427(H) Zone upon completion of all of the following conditions:

(iv) that the following items be completed to the satisfaction of the Niagara Peninsula Conservation Authority:

iii. final design of the building and shore wall, as well as the proposed grades of the site be reviewed by a Coastal Engineer in order to ensure that they meet the recommendations of the Baird report and are sufficient to mitigate the Great Lakes hazards;

Test for Leave to Appeal

[23] In Juno Developments v. Parry Sound [1997] O.J. No. 976, Justice MacLeod allowed leave to appeal to the Divisional Court from a bylaw amendment which allowed the construction of a shopping mall. She held the following:

7 There must be a point of law of sufficient importance to merit the attention of the Divisional Court; and

(b) there must be some reason to doubt the correctness of the decision.

(c) It has been further stated to be applicable in circumstances where there has been raised, on a fair evaluation of the material, a condition of doubt as to whether the Board was correct in its interpretation of the law. (citations omitted)

[24] In Basso v. King Township [2005] O.J. No. 1199, Justice Lane granted leave to appeal from a decision of the OMB upholding a denial by King Township of an application to construct a bed and breakfast. On the test for granting leave to appeal he added the following:

14 With respect to correctness, the leave court does not have to actually disagree with the decision; it is enough to find that the correctness of the decision is open to serious debate.

[25] In Niagara v. Ontario Ministry of Municipal Affairs and Housing [2009] O.J. No. 5093, Justice Karakatsanis (as she then was) expressed the same concept as follows:

6 I need not be satisfied that the decision is wrong, or even probably wrong. I must be satisfied that there is some reason to doubt the legal correctness of the Board's decision on a question of law.

[26] In Rosedale Golf Association v. Degasperis, [2004] O.J. No. 1153 A.C.J.S.C., Cunningham granted Rosedale leave to appeal the decision of the OMB which reversed a decision of the City of Toronto refusing a minor variance to a city bylaw permitting renovations to a building. He added the following:

3 … The question of law involved need not be of general importance, but rather may be limited to matters relevant to the parties while raising a question of sufficient importance to merit the court's attention.

[27] In City of Essex v. Material Handling Problems Solvers Inc. [2003] O.J. No. 4619, at issue was a decision of the OMB permitting zoning of privately held land for conservation and recreational purposes. Justice Blair (as he then was) denied leave to appeal to the private landowner. He stated following:

3 Under s. 96(1) of the O.M.B. Act, on appeal [...] [Editor's note: Handwritten notes at this location in the document were illegible] to the Divisional Court from the Board on a question of law with leave. It is well established that to obtain leave to appeal, the moving party must establish:

a) that the proposed appeal raises a question of law;

b) that there is reason to doubt the correctness of the decision of the O.M.B. with respect to the question of law raised; and,

c) that the question of law raised is of sufficient general or public importance to merit the attention of the Divisional Court.

See Toronto Transit Commission v. Toronto (City), [1990] O.J. No. 2049.

4 Where the standard of review is reasonableness - as it would likely be here, given the O.M.B.'s specialized expertise in the developing, interpreting and applying its own policies - it may be that the second test above is more aptly worded as: Is there reason to doubt the reasonableness of the Board's decision? See Celco Express Ltd. v. Douglas (1990), 70 Man. R. (2d) 232 (C.A.); Corporation of the City of London v. Ayerswood Development Corp., [2002] O.J. No. 4859 (C.A.)

[28] In Toronto v. R and G Realty Management Inc. [2009] O.J. No. 358 at paras. 16-23, the Divisional Court in the judgment of Justice Malloy reversed the decision of the OMB permitting a developer to convert an affordable rental apartment building to condominiums. She held that the interpretation of the Ontario Planning Act, the official plan and provincial policy statement 2005 raised questions of law. Given the experience of the OMB in these matters the standard of review was reasonableness. The board erred in only “having regard to” the provincial planning statement 2005 rather than whether the application was “consistent” with the provincial policy statement pursuant to the Planning Act, section 3(5)(a).

Analysis

[29] The parties agree that Bay Beach is a Dynamic Beach. The concern is whether the development site is in the Dynamic Beach Hazard zone. If it is, development is prohibited on it by the Planning Act and by the Official Plan for the Niagara Planning Area. The experts agree that the proposed development is within the Dynamic Beach Hazard zone unless the limit of the Dynamic Beach Hazard can be artificially located lake ward of the proposed development. They also agree that the existing shoreline protection works mark the 100 year flood level and that the wind in a storm which would push the lake landward to the 100 year flood level would go over the top of the existing structures and extend landward at least 30 m. This would flood the proposed apartment building.

[30] Mark Kolberg was the author of the Baird report. It expressed the opinion, which Mr. Kolberg confirmed in his evidence, that stone revetments to be constructed landward of the existing structures would protect the proposed building site. Like the existing shoreline protection works they will be similar to a cliff or bluff where the toe of the cliff or bluff marks the limit of the Dynamic Beach Hazard. A detailed design for these structures was not presented to the town Council or the Board. They will need to be approved by the NPCA before they are constructed. There is a hold on construction at the development site. Before it is removed pursuant to section 7(iv) (iii) of the ZBA “final design of the building and shore wall, as well as the proposed grades of the site (must) be reviewed by a Coastal Engineer in order to ensure that they meet the recommendations of the Baird report –and are sufficient to mitigate the Great Lakes Hazards” to the satisfaction of the NPCA. Public safety is at stake. As Dr. Davidson-Arnott stated in his witness statement quoted above, which I repeat, assuming flooding of the development site "access to the area during a storm that is likely accompanied by winds in excess of 80 kph in order to accomplish the evacuation of all of the inhabitants of a 12 story building will be extremely difficult to carry out safely". However the board accepted that the proposed shoreline protection works in the Baird report would protect the building. This is a planning decision. The plans for the proposed shoreline protection works must be approved by NPCA. It concerns me that this is to be done in the future. FEWPA will not have access to these plans before they are presented to the NPCA. It will not be able to present alternate design plans to those prepared by Molinaro. However this is the system that the province has put in place through regulation 155/04. The board has found that the proposals in the Baird report are consistent with the PPS. The board applied the right test.

[31] The Board heard evidence from three eminently qualified engineers – two testified that the proposed development placed public safety in jeopardy and the third testified that the proposed development adequately protected the public. The board chose to accept the opinion of the third. This is a finding of fact. The requirement of section 3 of the OMB Act that an appeal lies to Divisional Court with leave only a question of law as interpreted by the case law does not permit the courts to intervene. The board decision raises no issue of law on which the Divisional Court could conceivably find that the Board’s decision is unreasonable.

Conclusion

[32] The motion is dismissed. Counsel for Molinaro and the Town of Fort Erie may make written submissions on costs within 10 days of receipt of this decision. Counsel for FEWPA may have 10 days to respond. Since this motion raised an issue of public safety, counsel in their submissions, should review the law on whether this should affect the right of the town and Molinaro to costs against FEWPA.

P.B. Hambly J.

Released: September 13, 2011

CITATION: Fort Erie Waterfront v. Molinaro Group Crystal Beach et al, 2011 ONSC 5252

COURT FILE NO.: DC 11-285ML

DATE: 2011-09-13

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

Fort Erie Waterfront Preservation Association Moving Party

• and -

Molinaro Group Crystal Beach Waterfront Inc. and The Corporation of the Town of Fort Erie Responding Parties

REASONS FOR JUDGMENT

P.B. Hambly J.

Released: September 13, 2011

/lr