Countryview expansion on hold; tribunal wants more study needed

Proposed lots in a bush lot at Countryview Estates which recently the subject of an Ontario Land Tribunal hearing. It cost Petrolia $33,600. The town has now approved a $10,000 fee to charge back to developers involved in tribunal hearings to cover the town's legal costs.

Elbee Investments won’t be able to remove most of a 17-acre woodlot to expand Petrolia’s Countryview Estates. At least not yet.

Petrolia council gave developer Bob Leaper approval to move ahead with the 74 lots of the fourth phase of the subdivision in May 2021 when it removed the Significant Woodlot designation on the land and rezoned it residential.

The original plan of subdivision laid out the 74 lots in 2007, however in between, the land was rezoned as significant woodlot.

Leaper had completed some environmental studies of the property, which according to Lambton County planning officials “were required to be completed as conditions of the draft plan of subdivision approval.”

The county, during a public meeting in 2021 said they studies were reviewed and approved by the Ministry of the Environment.

Leaper also promised to pay $3,000 per acre for the 10 acres of woodlot which would be removed.

The plan caused a stir among neighbours and raised the ire of a neighbouring farmer. Both William Loerts and Racher Farms filed appeals of the rezoning which was jointly heard by the Ontario Land Tribunal in mid-May.

The tribunal released its decision July 14 saying the developers “forestry, tree impact and endangered species studies, while helpful in addressing certain requirements, do not sufficiently address all of the components of an EIS (Environmental Impact Study) as required by the policies of the province (of Ontario) the county (of Lambton) and the town (of Petrolia.)”

That means the developer and the town, according to the tribunal, failed “to satisfy all legislative requirements.”

Colin Léger, an associate at Garrod-Pickfield – a law firm specializing in environmental, municipal and planning law, represented Racher Farms and Loerts who lives in Countryview Estates.

“They (the developer) did studies in relation to species at risk. But on the other hand, did not do studies in relation to other elements of the forest, such as significant wildlife habitat,” says Léger.

The town properly designated the land as a Significant Woodlot, the tribunal writes.

And Lambton’s Official Plan says significant woodlands “may be permitted if it can be demonstrated through an Environmental Impact Study that no negative impacts on the features or their associated ecological functions will result.”

The Environmental Impact Study looks at all aspects of forest life, including the woodlot itself, the groundwater in the area, the wildlife and floral and fauna in all seasons and whether there are species at risk in the area.

The reports done by the developer did find Butternut and Big Shellbark Hickory in the area – both are rare species at risk which led to the original designation by the town.

The tribunal points out both the province and the town have policies which say “development…shall not be permitted…unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions,” and that all of the aspects of that were not covered by the reports submitted by the developer.

The tribunal says it could not accept the town’s “determination that the full retention of the woodlot area was neither feasible nor possible.”

“The tribunal finds that the draft plan would have the effect of essentially removing the woodlot. The retained strips are just that – strips of trees – not woodlots, nor interior habitat – and collectively account for only 28 per cent of the woodland today.

“Close to three-quarters of the woodlot would be removed. Such alteration to a designated and zoned significant woodlot warrants a full EIS.”

The tribunal added the funding the developer planned to give to plan trees elsewhere is “not a pre-emptive step to avoid an EIS.

“In the absence of an EIS, the tribunal is unable to conclude that the proposal constitutes good planning in the public interest.”

The ruling also states if the report is completed, and the ecosystems were not endangered by the development, the housing could move ahead.

When contacted by The Independent, the developer said he his reviewing his next steps.

“We’re in the middle of looking at our options,” says Leaper.

“Obviously, we’re not happy with the decision. So… I think, within the next week or two, we can go into more detail as to as to where we go from here.”
When the appeal was launched, Leaper said there were 15 people who had already signed up for the homes in the woodlot area.

Elbee also plans to develop some farmland on the north side of the woodlot. When the development is complete, the tribunal says 129 lots will be added to the subdivision.