Statement of the Lake Waseosa Ratepayers' Association
Town of Huntsville
Wednesday 13 February 2013
Good Morning:
I am Tony Doob, currently president of the Lake Waseosa Ratepayers' Association. Along with Dwayne Verhey, Secretary of the LWRA, I will be presenting the LWRA's response to this application.
This association is celebrating its 50th anniversary this year. It represents those on, and near, four Huntsville area lakes: Waseosa, Ripple, Pallette, and - in the context of the matter before you - Jessop (or Jingo) Lakes. The majority of the residents of these lakes belong to our association. We are the people affected by what goes on in our neighbourhood.
In addition to sponsoring social events, the association, from its establishment in 1963, has advocated the orderly and principled development of our lakes. Hence we have, over the years, encouraged our community to respect the fragile nature of our lakes in their practices.
We have urged our members to ensure that their septic systems are in good working order - and have supported the Town's efforts to inspect and control this aspect of development. We have developed volunteer guidelines for our members on being ‘good neighbours' (in terms of noise, development, pollution, use of chemicals, etc.) and have made these guidelines available to all those who use the lake. We provide environmentally friendly cleaning products from a local Huntsville company at cost. And we have monitored proposals for development on our lakes.
Organizations such as ours are sometimes seen as being against all development and change on the lakes. This characterization does not fit the LWRA's approach. We accept the fact that there will be change - and in fact increased use - on our lake. We see it constantly as the use of homes around the lakes increases.
Rather than oppose all change, we have attempted to work with landowners to come to a compromise that meets, as much as possible, both community and landowner needs. Recently, for example, we have worked with owners of a cottage on Lake Waseosa who wanted to expand a non-conforming property so that it could be converted into a property that met the needs of their expanded family and their increased use of the buildings. We came to a solution that met our concerns and met the owner's needs.
Similarly, as some of you may remember, we attempted to negotiate an acceptable solution in relation to a local gravel pit. In that case, there was an inevitable conflict between the local businessman who needs to run his business and local residents who had concern about the expanded use of a narrow road.
In another instance, we worked with a camp for children with diabetes on one of our lakes to find sensible ways to expand the camp so that they could serve the needs of many more children who would like to spend time on our lakes. We understood that increased use meant increased stress on the lake. But the camp is important to the wider community and we were able to support the plans for the camp's expansion.
We have worked with the community to restore one of the small islands on our lake. This island is a favourite place both for the children from the camp, youths on our lakes, and visitors to the lake who access it via the Town Dock. Unfortunately, the overuse of the island threatened to ruin its natural beauty. We negotiated with the community, and governments, to allow a moratorium on its use and then, with our labour, donations from our members, and Association funds, have worked to rejuvenate it so that it will soon, once again, be able to be used by all.
These are not easy problems to solve. The LWRA has always looked for a solution that maximizes the benefits for the community as a whole.
It would be wrong - and unfair - to characterize this association as simply being against further development.
In the end, we are looking for sustainable solutions that will mean that our lakes and community will be healthy for our children, grandchildren, and their children. Change is occurring everywhere, including on our lakes. We strive to manage it an appropriate way, not block it.
At the same time, we are aware of the fact that our lakes are vulnerable. They are vulnerable in three ways.
First of all, all of our lakes, as far as we are able to determine, are at, near, or above a safe level of phosphorus concentration. As you know, phosphorus is an important nutrient in algae production - and most importantly cyanobacteria - the so-called "blue-green algae" known for its life-killing blooms in other Muskoka lakes.
Second, climate change - and in particular, hotter and drier summers - increase dramatically the likelihood of algae blooms especially in shallow lakes that are more affected by warm summers. We all know that summers are becoming, on average, warmer. Warmer summers mean warmer water, and increased vulnerability to algae blooms.
Third, our lakes are at or above their level of development in terms of the number of dwellings they support given the surface areas of the lakes. Ontario has developed optimum maximum values in terms of the number hectares of surface area of the lakes needed for each dwelling. Our lakes are at, or above, this measure of development.
In its official actions, you, the Council of the Town of Huntsville have, in the past, been responsive to exactly these concerns. And we, the LWRA, would like thank you for the actions that you have taken to preserve Huntsville's lakes and natural beauty. I don't need to tell you that if Huntsville's lakes are destroyed, the Town will be irreparably and permanently damaged. But I would venture to add that if Huntsville gets a reputation for not protecting its natural environment by explicitly allowing a lake to be destroyed by algae blooms, it will hurt the Town as a whole.
What has the Town done to protect its lakes and to be responsive to its citizens? I would suggest it has done a lot.
About 7 years ago, the Town implemented an Official Plan. After much consultation, the Council bit the bullet and developed a plan for the orderly development of all parts of the town.
In 2008 - again after considerable consultation, public meetings, and compromise - the Town came in with a Comprehensive Zoning Law designed to do what zoning does - tell all who have an interest what kind of development can occur in different locations. Once again, this zoning bylaw did not and could not please everyone. But we all knew that it told us what we could expect for the future. Zoning is a blueprint for development and for developers and those affected by development. Whether we liked it or not, we knew what that blueprint looked like.
And third, the Town of Huntsville Council did a rather unusual thing. It instructed organizations such as ours to look at our local communities and come up with Lake Plans - lake specific plans for the orderly development of our lakes that were acceptable to our communities. These could be more restrictive than the zoning bylaw or the Official Plan, or they could be consistent with these documents. If they varied from the general provisions of the Official Plan, the provisions are to be carried forward as specific policies applicable to the Lake. The Lake Plan did not require special ‘legislation' per se, although many have been inserted into the Official Plan itself. Our latest revision of our plan was filed with you in 2011 soon after a well-advertised public meeting.
Against this backdrop, then, the LWRA has examined the proposal to create three new lots on Jessop Lake. We understand that any landowner can propose any type of development. And equally, we understand that the Town does not have to accept it, just because the developer and an agent paid by the developer, would like it to happen.
We provided you, last week, with detailed reasons, citing scientific data and other evidence, demonstrating that this proposal should be turned down.
We have examined this development proposal carefully. We have circulated it to our members and to anyone who visits our website. We have received - as you have - many views about the development. By our latest count, we have received communications from at least 30 residents, some of whom do not live on Jessop but have serious concerns about the development, nevertheless.
Not a single resident who has communicated to us has indicated that he or she thought that the proposal should be accepted by the Town. Many have expressed regret that they cannot be here today to speak against the proposal.
A number of people have pointed out to us that we no longer can take the position that "just one more" (or in this case three more) houses won't really make a difference.
A number of residents of Jessop Lake have pointed out to us the sad - but extraordinarily ironic - fact that the man who has proposed the subdivision of his property himself opposed the creation of new lots during the creation of the Lake Plan in large part because he felt that the lake could not sustain added development. I am told that your office has copies of his letter opposing further lot development on this lake. Apparently his ‘one more' or in this case ‘three more' lots, should, he believes, be allowed, even though he made arguments against further lot development by a neighbour.
The residents of Jessop have pointed out to us - and we point out to you - that at some point, a lake reaches a tipping point and, essentially dies. When a lake has a blue-green algae bloom, the water cannot be used for anything, not just recreational purposes like swimming, boating, or fishing. Blue-green algae produce toxins that can pose a health risk to people and wildlife even from inhaling airborne droplets. Essentially, when this occurs, we have created a poisonous body of water in the midst of our community. This is not a recreational water quality issue, this is an environmental disaster issue.
We don't know when this will occur, but we do note four things:
ï‚· The District's own records demonstrate that this lake is over its appropriate threshold for phosphorus. The fact that the district has not officially classified it as "over threshold" reflects the fact that the model was designed for deep lakes that stratify, not shallow lakes like this one. As the District's consultant notes, the threshold for phosphorus is hard to model using their particular techniques.
ï‚· Regardless of what the District determines Jessop's recreational water quality to be, you have to remember one incontrovertible fact about phosphorus and algae: Neither of them knows or cares about what the District thinks the background phosphorus concentration should be. What matters is the actual concentration available at the moment. When phosphorus levels increase, particularly in warm lakes such as this one, algae blooms will occur. Estimates of what the phosphorus concentration might have been before development are irrelevant. When added development creates an algae bloom, it is real.
ï‚· Warm shallow lakes are especially at risk for blue-green algae blooms. The long-term residents of the lake have written to you and to us and have pointed out to us that at times, the concentration of algae on the surface of the lake, and the quality of the water, are troublesome. And the long-term residents have noted that it was not always the case. Said differently, the problem is already with us and is growing. The good thing is that it is not yet a public crisis.
ï‚· Fourth, the lake is in a position that it can create problem for other lakes. It is a headwater lake. It flows into Waseosa which, itself eventually flows into the Big East River and then eventually to the larger Huntsville Lakes. At other times of year, Jessop, because of reduced rain and increased temperature (and evaporation) is stagnant and therefore especially vulnerable. In other words, it varies between two forms of vulnerability.
When all of the existing lots on Jessop are developed, Jessop will have more development on it than is deemed by the province and other studies to be optimal, given its surface area. Natural lakes are not meant to have the concentration of people that occurs in community swimming pools, given that they are used for a variety of purposes. Without going into detail - details like this are in our Lake Plan which was filed with the Town after the public meeting in which it was unanimously accepted - Jessop is already at its saturation point.
A few minutes ago, I congratulated the Town on the efforts it has made over the years to create the environment for orderly development on the lakes, its rural areas, and the urban areas of the Town.
The documents I mentioned are important because they set the standards. Obviously exceptions occur. But there must be compelling reason for exceptions. For example, on some lots it may not be physically possible - or plausible - to build a dwelling and a septic bed in a manner prescribed by these rules.
But in this case, you need to remember that the Town, in its zoning bylaw and our community in its comprehensive Lake Plan, indicated that there be no new lot creation. Our Lake Plan does not contradict the Zoning Bylaw, it reinforces it. Nobody spoke against the Lake Plan that has been filed, with you and has been available on our website from the beginning.
We note that the developer, a few days ago, withdrew his proposal that, in effect, houses be allowed to be built within 20 metres of the lake front rather than the normal 30 metres for this zoning. But what is important about the current zoning of this lake - as SR5 - is that it sets the minimum lot size for every lot to what it was when the zoning was accepted by this Council in 2008.
In other words, because of the vulnerability of these lakes, and because of the number of lots already on these lakes, further lot creation was - and is - prohibited. SR5 zoning is much more than just about setbacks.
The existing rules provide us with a plan for development. Further development will occur, both on empty lots of record, and on lots that have already been developed. We look forward to working with landowners to find solutions that are acceptable to everyone. It is the overall framework - the zoning bylaw, the official plan, the lake plans - that make orderly development possible.
We live in a society that believes in evidence and the rule of law. But society also recognizes that the law allows an exception to rules - in criminal law, it is the so-called "defence of necessity". Courts have quite appropriately decided that the scope of such exceptions must be narrow and the events justifying them must be rare. They must involve situations in which there really are no reasonable alternatives and the actions taken are only those that cannot be avoided without creating an even greater harm.
The proposal for creation of three new lots on Jessop Lake - a proposal to violate existing law - does not meet that test.
Speaking on behalf of the Lake Waseosa Ratepayers' Association and the many residents who have contacted us, I urge you to take a principled stand and turn down this proposal.
Thank you.
Verbal presentation by Dwayne Verhey
 This proposal creates 3 new lots immediately with the unexpressed but obvious opportunity to create a 4th new lot in the future, on a lake where the carrying capacity has been exceeded and where the applicable Lake Plan stipulates that the future of development is to be redevelopment of existing lots, not new lot creation.
Back in 2001, the LWRA and other Lake Associations in Huntsville were approached by the Town and asked to prepare a Lake Plan. We were tasked, in the Huntsville Official Plan, to determine the limits to and nature of future development in this area.
The District of Muskoka Official Plan supports policies to ensure the carrying capacity is not significantly affected and development proceeds in a socially sound manner. The Huntsville Official Plan recognizes that factors other than water quality present limits to the desirable amount of development on a particular lake, directing Lake Associations to address these matters on an individual lake basis.
With these Official Plan policies in mind, we examined the recreational carrying capacity of the lake, the potential for environmental damage and both the existing and future character of the lake. The LWRA commissioned a study of the Recreational Carrying Capacity of the lake utilizing two complimentary models. The first is the Ontario Ministry of the Environment "Lake Alert System", which sets limits based on the available surface area of the lake in relation to the amount of development. Under the Lake Alert System, 4 hectares per dwelling are required on a small lake. The study revealed that the total surface area of Jessop is only 1.15 ha/property. That means the number of existing lots are already almost four times the recommended amount for a small lake.
The District of Muskoka OP also makes reference to boating density in determining the recreational carrying capacity of a waterway. Accordingly, the LWRA commissioned a Boat Density Study. This model revealed that Jessop Lake was very nearly at capacity, and in fact could only accommodate one more boat. Since that time, new construction has increased the number of residences by 6%, so that today the boat density exceeds the available lake surface.
As a result, the Lake Plan determined that no new lot creation should be permitted on Jessop and that future development should be in the form of maturation and re-development of existing lots. The Lake Plan contains a specific policy preventing new lot creation and this subdivision proposal is not compatible with the intent and policies set forth in the Lake Plan.
We have had considerable correspondence with the Planning Department since we were notified about this proposal. Recently, the Director of Planning, Chris Marshall, wrote "that plan has not been incorporated into the Official Plan and has not had the opportunity for public and agency review". Let's examine that assertion:
The Lake Plan process started in 2002 and several drafts were prepared and presented to area landowners for comment before it was published in 2006. The process was repeated in 2011 to coincide with the scheduled Official Plan review. Note that I said "area landowners" not "members of the Association". We recognize that while we represent over half the waterfront, not all landowners are members but all landowners are potentially affected. The final draft was adopted at a public meeting open to all. The text was posted on our website, hard copies were made available in advance on request, and for several hours in advance of the meeting at the venue. We advertised it in the Forester, we sent out e-mails to everyone on our list, we posted it on our roadside community bulletin boards and we even hand-delivered flyers to every single household on the lakes. A reporter from the Forester attended the meeting and witnessed the process. The plan was adopted with unanimous consent. How can anyone claim there was no opportunity for public review?
As for the opportunity for agency review, the Planning Department has had a copy of the original since 2006 and the revised version since November of 2011. We were told the Official Plan review was being delayed until 2012 and it would be incorporated then. It's 2013 and we are still waiting. We don't understand the delay, but it certainly was not from lack of opportunity.
Nonetheless, it is not necessarily a requirement that the provisions of the Lake Plan be explicitly expressed in the Official Plan. The Official Plan adopts the Lake Plan by reference in section 8.13.7 "Those provisions of the lake plan that are related to municipal planning policy and that may vary from the general provisions of the Huntsville Official Plan are carried forward as specific policies applicable to the Lake".
The planning process in Ontario has an hierarchy, starting with the Province. The District of Muskoka cannot countermand the Province and the Town cannot contradict the District and of course the Lake Plan contradict the Town's Official Plan. If the Lake Plan contained provisions contrary to the Official Plan, then those provisions would be invalid or the Official Plan would have to be amended to allow those provisions.
In this case, the policy of the Lake Plan does not contradict the Official Plan, it merely provides direction in land use policy. There is no automatic right to alter the zoning or subdivide a property. The zoning of this property does not allow subdivision, that's why the owner is applying for an ammendment. There is no conflict with the Town's Official Plan to deny the zoning amendment or withhold the consent.
Therefore, since the Lake Plan is adopted by reference, and since this application is contrary to the policy set forth in the Lake Plan, this application is contrary to the intent of the Official Plan. As the Town is under no obligation to permit this subdivision, you are free to deny it.
The LWRA Lake Plan is one of the most democratically derived documents since the signing of the Magna Carta. The turnout here today gives this committee the mandate to uphold the covenant agreed to by all interested parties - including the applicant. We call upon you to respect and protect the mutual interest of the residents.
The LWRA requests a written or electronic copy of all decisions in this matter.
Thankyou.
Dwayne Verhey, Secretary
Lake Waseosa Ratepayers' Association