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City of Ottawa employee Ted Cooper’s fight to stop development on flood plain land in Kanata finally got to the Ontario Municipal Board yesterday and it was quite a bizarre spectacle. Cooper, an engineering expert on water matters, is defending the public interest while the city itself is arguing that a big-box mall should go ahead on the fringe of a flood plain.
It’s not a very even fight. The city is represented by staff lawyer Tim Marc, a veteran of many OMB battles. Trinity Development has its own lawyer and a phalanx of experts. The two lawyers tried to cripple Cooper’s case right off the bat. Cooper, a rookie at presenting OMB cases, believed he could appear as a witness at the hearing. It turns out one can’t be both the appellant and an expert witness, a fact the two lawyers were kind enough to share with Cooper the night before the hearing. What a pair of good sports.
Having put Cooper behind the 8-ball, Marc led off the proceedings with two hours of testimony from a city planning manager that was intended to create the impression that the city has a strong defence. The lengthy testimony was bolstered by two binders of documents, each as thick as a telephone book, but the city’s case could be summarized as “we followed all the appropriate procedures.”
Marc made only a passing reference to the seemingly gigantic weakness in the city’s position. The computer model the city relied on to determine the Carp River’s potential to flood was improperly used, Cooper says. That contention was supported by another expert hired by the city’s auditor-general and now a third expert is reviewing the whole thing.
Instead of addressing the point, Marc provided extensive information about transit stations and fish habitat.
That left it up to Cooper to get the main points in, without being able to give his own expert evidence. Cooper tried to do that through questioning the city planning manager, but the fellow who had been an expert for the previous two hours suddenly did not have many specific answers. Cooper should have requested to hear from city staffers who would have the answers, but he’s a rookie at this stuff.
Despite that, Cooper doggedly made his points. The city’s contention that the development land is safe to build on is based on 1983 flood plain mapping, Cooper established. It doesn’t take into account development that has occurred since then, nor does it make allowance for the effect of the development planned in Kanata West itself.
It’s obvious that additional development in what was then a rural area would change the runoff into the river, but the city lawyer insisted that no facts about this development were in evidence. In effect, the city wouldn’t admit the existence of Scotiabank Place and the built up area around it, unless Cooper could prove it is there. He was subsequently able to accomplish that.
The issue is whether the city has properly established the limits of the flood plain in relation to this big-box development. Cooper’s case will turn on his ability to demonstrate that the data the city used to reach its conclusion are faulty. We will find out more about that today when the other city engineer testifies.
OMB hearings are less about establishing the truth than they are about presenting a winning case. Lawyer Tim Marc is only doing his job, but the city administration is completely losing sight of the broader public interest. Its own two experts in water and flooding are saying that there is a problem. It might be prudent to take them seriously. There are serious consequences if Cooper is right. Flooding has the potential to cause substantial damage and risk to human health if sewage is involved. The Carp River already has a history of flooding and the city has in the past approved building within the flood plain. The overall development in Kanata West and even more housing upstream will certainly make the problem worse, but the city doesn’t want to acknowledge it.
The city has taken a half measure by freezing development in the area most obviously affected by the faulty flood analysis, but the bigger point is that the city really doesn’t know where the correct flood line is. Without that knowledge, it can’t reasonably say whether proposed development will flood, or not. A city employee shouldn’t have to take his bosses to the OMB to make that point.
Contact Randall Denley at 596-3756 or by e-mail,
rdenley@thecitizen.canwest.com
© The Ottawa Citizen 2008