Lawyer tells County to reject a call for intervention on Johnson Point

Jeff Green | Apr 18, 2018

A controversial vacant land plan of condominium on Loughborough Lake will be considered once again by Frontenac County this week, and if the county follows the advice of their lawyer, opponents of the project will be disappointed when they leave.

Meela Melnick-Proud, Sarah Harmer and Matt Rennie will appear as a delegation. They will be armed with a lengthy report outlining, among other things, how the shoreline at some of the locations in the proposed condominium development has been cleared, in contravention, they say, of one of the “conditions of approval” that were included in a ruling by the Ontario Municipal Board (OMB) in its ruling on the project. Their report quotes item 5b of the OMB ruling “... the vacant land condominium agreement applying to all the waterfront units shall set out the municipalities environmental protection policies requiring that the area within 30 metres of the highwater mark of a waterbody or wetland shall be maintained in a natural state for soil and vegetation.”

They made a similar presentation to South Frontenac Council two weeks ago, and South Frontenac asked Frontenac County to investigate the matter.

A lawyer working for the opponents, David Donnelly, states in a letter of opinion that under Rule 106 of the Ontario Municipal Board, the county can act directly to halt a development if an applicant has failed to comply with conditions set out in an OMB ruling. In his opinion, failure to maintain the shoreline in a natural state constitutes such a failure to comply.

“The Township having had regard to all the circumstances should act as authorized to preserve the site, order restoration, and deny development. The only question remaining is whether the Township will act in the public interest to do so. Failure to act will also send a clear, and opposite, message to residents,” he concludes at the end of his letter of opinion.

When Frontenac County Council considers the matter this week, they will have a letter of opinion from their own lawyer, Wayne Fairbrother, which contradicts Donnelly’s opinion.

Fairbrother said that the county does not have the authority to change the conditions of approval for the subdivision since the matter is now the subject of an OMB ruling.

He also said that the County’s role at this time is merely is to confirm that the Ontario Ministry of Natural Resources and Forestry (MNR-F) has been approached about species at risk issues and that all the recommendations coming from the MNR-F are eventually incorporated into the plan of condominium.

Magenta corporation has applied to the MNR-F for a “benefit permit” based on a plan to offset the impacts of the project on habitat for three species at risk, gray (black) rat snakes, blandings turtles, and whip-poor-wills. That application still pending.

Based on legal advice, county staff have recommended that Council and should not act on the concerns expressed by Melmick-Proud, Harmer, and Rennie.

The matter went before Frontenac County Council on Wednesday, after this newspaper went to press.

(The decision of Council will be posted at Frontenacnews.ca)