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June
2003 Newsletter
Stop
Work Order Letter to the NEC
May
28, 2003
To
Mr. Don Scott and Members of the Niagara Escarpment Commission
c/o
232 Guelph Street
Georgetown, Ontario L7G 4B1
Dear
Commissioners,
The
Coalition on the Niagara Escarpment (CONE) and the Friends
of Red Hill Valley (FRHV) request that the Niagara Escarpment
Commission issue a stop work order against the City of Hamilton
for any and all activities in the Niagara Escarpment Plan
Area related to construction of the Red Hill Creek Expressway
in accordance with section 24(6.1) of the Niagara Escarpment
Planning and Development Act (NEPDA).
The
City of Hamilton is pursuing construction of the Red Hill
Creek Expressway with the apparent belief that the 1987
Niagara Escarpment Plan Development Permit (file W/T/83-84/239)
which the NEC was ordered to provide by the 1985 Joint Board
decision remains valid today and that no further permit
from the NEC is required for the project.
The
City takes this position despite the fact that at the NEC
meeting of July 13, 1996, the Commission adopted the position
that "the Regional Municipality of Hamilton-Wentworth
be advised that a new Development Permit will be required
under the Niagara Escarpment Planning and Development Act
for the Red Hill Creek Expressway, unless otherwise exempted
under Regulation 828."
To
our knowledge, there has not been any subsequent decision
of the Commission to revoke or amend this position. And
there has not been any exemption for the Expressway project
under Regulation 828.
The
City of Hamilton has been reminded of this NEC position
on several occasions.
In
April 1996, NEC staff wrote to the former Regional Municipality
of Hamilton-Wentworth stating "Commission staff have
reviewed the Region's proposed modifications to the alignment
and method of constructing the Escarpment crossing portion
of the Expressway. It is apparent that these modifications
are not covered under the previously issued Development
Permit. It therefore appears that the Region will need to
submit a new Development Permit application to address these
modifications."
In
1999, the NEC provided comments to the former Regional Municipality
on the project design. Although the NEC comments, which
followed discussion at its February 18, 1999 meeting, did
not mention the need for a permit directly, the staff report
says that legal services had advised that if the new proposal
no longer reflected the "current" (meaning approved)
proposal then a new permit would be required. Very substantial
changes have been made to the expressway project since the
1987 NEC permit was granted, especially within the 50% of
the valley that falls within the Niagara Escarpment Plan
Area. The Escarpment crossing has been completely re-designed
and now includes an 80-metre-wide cut in the face of the
Escarpment, a 220-metre viaduct, and a reconfigured Greenhill
Avenue interchange. In addition, the City's plans now call
for major additional disruptions to the valley lands that
were not even contemplated in 1987. These include the relocation
of virtually all of Red Hill Creek, as well as the construction
of five stormwater ponds and a large temporary flood zone.
Most
recently, in a letter from the NEC dated December 10, 2002,
and obtained by a member of FRHV under the City of Hamilton's
Freedom of Information process, NEC staff state that "…
in principle, the NEC does not oppose this undertaking,
however, the City is advised that a Development Permit from
the NEC will be required for the final plan involving any
alterations to the [King's Forest] golf course layout, the
design and depth of the ponds, and any remedial works proposed
for the existing [Red Hill Creek] channel."
The
requirement for a new NEC Development Permit was openly
acknowledged by the City of Hamilton in its May 6, 1996
request to the provincial government for an exemption to
the normal environmental assessment process for the proposed
expressway. In that submission the City proposed an alternative
assessment process and provided a list of " Applicable
Legislation, Policies and Guidelines" that it "anticipates
to be applicable to this project even if no changes to the
Expressway approved in 1985 are made" (Red Hill Creek
Expressway Exemption Order, May 1996, p.19). The list included
"Niagara Escarpment Planning and Development Act -
for permits to develop within the Development Control Area
of the Niagara Escarpment Plan" (ibid., p.20). The
submission includes a graph of the Legislation, Policies
and Guidelines (Figure 5A) which shows the expected timing
of each permit. For the permit required under the Niagara
Escarpment Planning and Development Act, the timing of receipt
is shown as after Detail Design of the expressway, and immediately
prior to Construction.
In
March 1997, the Minister of the Environment accepted the
City's submission and the provincial Cabinet issued a Declaration
Order that specifically requires the City to "carry
out the planning and implementation for their project in
accordance with their submission dated May 6, 1996".
Despite
this well documented requirement for a new Development Permit
by the Commission and the acknowledgement of this fact by
the City of Hamilton and even the provincial Cabinet, the
City of Hamilton has not sought a new Development Permit
nor has it given any indication publicly that it intends
to do so. Yet construction of the expressway is imminent.
On
March 24, 2003 the City of Hamilton hosted a press conference
to announce the beginning of construction of the expressway.
The schedule that the City presented includes work in the
NEP Area to take place in the summer of 2003. On March 30,
2003 tree-cutting was initiated in the northern end of Red
Hill Valley. On April 10, 2003 the City posted a tender
for initial construction activity related to the expressway.
On April 23, 2003 Hamilton City Council adopted a resolution
authorizing construction which includes lands in the NEP
Area.
It
is clear that the City's proposal to construct an expressway
through Red Hill Valley meets the condition of section 24(6.1)
of the Niagara Escarpment Planning and Development Act,
namely that the development "is causing or is likely
to cause a risk to public safety or significant environmental
damage."
And
the City of Hamilton has made it clear to the NEC that it
has no intention of seeking an NEP Development Permit for
this work. Most recently, in a letter to the NEC dated January
23, 2003, the City reiterates its position that its expressway
project is covered by the 1987 NEC Development Permit, and
that the NEC has no legal right to require a new permit.
Therefore,
CONE and FRHV ask that the NEC immediately issue a stop
work against the City of Hamilton for any and all activities
in the Niagara Escarpment Plan Area related to construction
of the Red Hill Creek Expressway pursuant to section 24(6.1)
of the Niagara Escarpment Planning and Development Act
and that the order remain in effect until such time as the
City has received a new Development Permit for the entire
undertaking.
Thank
you for your immediate attention to this matter. Given the
widespread concern and urgency associated with this issue,
we have circulated this letter to members of the media and
others.
Sincerely,
|
Jason
Thorne, Executive Director
Coalition on the Niagara Escarpment
|
Don
McLean, Chair
Friends of Red Hill Valley |
| Cc:
|
Mark
Frawley, Director, Niagara Escarpment Commission
Members of the media |
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