Petrolia developer loses another bid to move ahead with Countryview housing in the woods

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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.

A Petrolia developer has lost another bid to start developing a 17 acre woodlot.

Elbee Investments wants to build 74 new homes in Countryview Estates in a woodlot on the west side of the subdivision. When the original plan was laid out in 2007, the lots were in the wooded area. But sometime between 2007 and 2021, it was rezoned a significant woodlot by the town.

In May 2021, after two contentious public meetings, town council removed the significant woodlot status, after the developer produced some environmental studies which council believe cleared the way for the development. Those studies have never been provided to the public.

While the town approved, two people, Greg Racher, whose farm abuts the land, and Petrolia resident William Loerts, appealed the ruling to the Ontario Land Tribunal, in part because they believe there is a protected tree species in the area. In July 2022, the OLT ruled more study on the land was needed including identifying natural heritage features and the impact of the development.

The OLT said an Environmental Impact Study was required by all policies of the province, Lambton County and Petrolia and the studies the developers did complete, did not address all the components of the study. Without it, the developers didn’t meet all the legislative requirements and could not move forward.

Not satisfied with the ruling, the developers – Bob Leaper and Louis Bratenek – appealed the decision to the chair of the OLT saying the tribunal made errors of law in the ruling since the town and county had approved the use of the studies.

Michael Kraljevic, in a written decision released Thursday, said Elbee’s lawyers basically seemed to be re-arguing the original case.

He said that doesn’t meet the guidelines of raising a “convincing and compelling case” for a full review. “The tribunal does not routinely review decisions,” Kraljevic writes.

The chair writes Elbee’s lawyer charged the board “erred in law in failing to defer to the decision of the town in the exercise of its discretion in applying official plan policies and determining the appropriate studies” and in ignoring the expert studies completed in support of the proposed development.”

Kraljevic notes the tribunal found all of the provincial, county and municipal planning documents showed an Environmental Impact Study was needed adding the town would be able to decide if the housing could go ahead after the Environmental Impact Study.

Kraljevic writes Elbee’s lawyers suggest that “since the county, town, St. Clair Region Conservation Authority and the Ministry of the Environment, Conservation and Parks had all determined that the necessary studies were completed, the tribunal ought to also have been satisfied.

“I disagree with this argument in the strongest terms. The purpose of the tribunal is to hear and decide appeals. To suggest the tribunal should offer complete deference to other entities disregards the scope of the tribunal’s authority and its role in the planning law regime.”

Elbee’s lawyer had not responded to questions from The Independent about what the developer will now do.

However in the judgment denying Elbee’s OLT appeal, the chair writes the developer has filed a “leave to appeal the decision” in court.