Property Rights v. Environmentalism

Presentation to the Policy Subcommittee of the Rural Summit

Tony Walker
Goulbourn Landowners Group

It feels like rural landowners are under a concerted assault from intrusive, inappropriate, and badly designed legislation that threatens our basic property rights and lifestyles.  For example, the Department of Fisheries and Oceans regulations relating to streams and drainage, the recent health regulations concerning farmers markets, and City of Ottawa’s tree cutting by-law.  While few people would argue that some regulation of rural life is required, there are too many examples of regulation that is ill-thought-out, inappropriate, and abusive of rural residents’ rights.

The wetlands designations are an excellent example of intrusive, inappropriate, and badly designed legislation.  I’m going to talk about this issue and the way it has affected my group, the Goulbourn Landowners Group.  (We prefer the short form, the GuLaG as it seems to be indicative of how we are perceived by the City.)  There are many other aspects to the property rights problem, and the proponents for those aspects are capable of speaking for themselves. 

There is a perception that because we oppose the wetlands designations, the Goulbourn Landowners Group is anti-environment.  Nothing could be further from the truth.  The Goulbourn Landowners Group is not against the environment or against the preservation of real wetlands.  Most of us who make our homes in rural areas are environmentalists.  That’s why we choose to live in a rural environment.  But because we live in and with the environment, we tend to be more practical than some urban armchair environmentalists, who specialize in telling other people how to live without applying it to themselves.  I could, for instance, point to a certain councilor who proclaims herself to be an environmentalist and protector of wetlands, but lives in a house built on wetland in a subdivision built on wetland.

The Goulbourn Landowners Group does not see this issue as property rights versus the environment.  The main reasons we oppose the wetlands designation are because they devalue and freeze our properties and erase our equity.  This is a problem with the process that the City is using, not with the environment.

Background

For those who have not been following our issue, let me provide a brief summary.

The City and Province have a program to protect Provincially Significant Wetland.  Once a property is designated Provincially Significant in the City’s Official Plan, the owner is severely constrained as to what he can do with his wetland, and his property is devalued.  There is another form of wetland, basic wetland, that does not require a zoning amendment and has little effect on the value of the property or the landowner’s use of his property.  The wetland regulations permit a process called complexing, which allows basic wetland to be designated Provincially Significant if it is within 750 metres of an existing Provincially Significant Wetland.    

An application to the City of Ottawa to permit development of the property at 6851 Flewellyn Road caused the City to initiate a study of wetlands in the surrounding area. 

The area in question is about 5 km from the suburban area of Stittsville, and has many smaller 2 – 10 acre lots containing residences, as well as larger lots and a few farms.  For a rural area, it has a relatively dense population. 

In 2004, MNR and the City of Ottawa initiated a study “to identify wetlands and determine their potential to complex with the Goulbourn Wetland Complex”.  A letter was sent to the affected landowners indicating a study was underway and requesting permission to come onto their properties to evaluate their wetland status.  The letter did not discuss the process, warn of the potential for designation as a Provincially Significant Wetland or of the effects on property value, etc.  Most landowners figured nothing good could come of this and ignored the letter.

The city then used aerial photographs from 2002 to identify potential wetlands.  In September 2004, the City’s biologist flew over the target properties at 1000 feet to identify wetland plants and supplemented this with roadside surveys.  In February 2005, the City of Ottawa sent the completed study to MNR, which designated the wetland areas as Provincially Significant Wetland based on their proximity to the existing Goulbourn Wetland Complex and the complexing regulations.  Altogether 262 hectares (about 650 acres) were designated. 

At this point the landowners knew nothing of this and had had no chance to object or comment. 

So far as we have been able to ascertain, there is no way to appeal MNR’s decision.

In April 2005, the City of Ottawa informed the landowners that their land had been designated by MNR, and of the City’s intent to update its official plan to re-zone the affected properties as Provincially Significant Wetlands.  This was an information meeting; landowners were permitted to ask questions but their input was not required or requested.  The city outlined the history and their ongoing plans to re-zone the affected properties.  At no point in the process do the landowners have an opportunity to have their concerns addressed or to object to what is taking place.  The landowners can only appeal the Official Plan Amendment to the OMB, but this will not affect the provincial designation. 

There is also a buffer zone of up to 120 metres around all designated wetlands, where land use is severely restricted.  To date, the affected landowners have not been informed that they are in the buffer zone, or of the restrictions on their property.

As a result of a publicity campaign, lobbying, and the Rural Council’s support, the OPA process is now on hold pending the results of the Rural Summit. 

The City has stated that it does not intend to compensate landowners for the devaluation of their properties. 

The effect of these designations, while they are pending and if they are approved, is to devalue and freeze our properties. 

Problems

The wetlands designations have raised so many issues that it’s hard to keep track of them all.  Even where they are not specifically labeled as property rights, all these issues impinge on the property rights issue.  They include:

• Process.  The landowners were not informed of the project until the results of the evaluation had been sent to MNR and MNR had designated the properties. 
• Process.  The City’s process does not contain any provision for consultation or negotiation.
• Process.  The landowners in the buffer area have still not been informed by the City of the impending designation.
• Process.  The current wetlands evaluations are the City’s response to the application for a subdivision at 6851 Flewellyn Road.  Since this property was not classified as wetland at the time of the application, the City will not be able to prevent the development.  Thus, the designation of our properties is a pre-emptive strike by the City to prevent any other landowners in the area from doing the same thing.  Once again, the developer will benefit and rural residents and farmers will pay the price.
• Ethics.  The City did not inform the landowners of the wetlands process at the start, and have given the landowners no opportunity for input of negotiation.  However, a local environmental group was apparently fully informed throughout the process. 
• Ethics.  The hallmarks of the City’s and Province’s dealings with landowners have been deception and misdirection.    
• Ethics.  The City does not intend to compensate landowners for the devaluation of their properties.  The City appears to look no further than its legal obligations, ignoring issues of ethics and justice.
• Property Rights.  Wetlands, real or contrived, are of no value to the owner.  Wetlands are a communal value, and if the community insists on devaluing the landowners’ properties, the community should compensate landowners for the loss. 
• Regulation.  Wetlands are evaluated using the Ontario Wetland Evaluation System manual, Southern Edition (OWES).  This manual is a complete disaster.  Its definitions of wetland are nonsense, and it contains provisions for ‘complexing’ that allow the City to designate further properties with only the most minimal observations.
• Implementation.  The application of wetlands regulations is applied very unevenly.  Wetland adjacent to the suburban core is released for development at the same time as rural ‘wetlands’ are being designated to protect then from development.  The City’s record in protecting wetlands is abysmal.  The City appears only to protect wetland that no-one wants to develop.
• Property Rights.  Given the City’s record in protecting wetlands, its claim to rezone our properties to protect the wetlands is fraudulent and must be withdrawn. 

I’d like to expand on a few of these points.  More detailed information is provided at the end of this presentation.

• The designation of a basic wetland is based on the plant population alone.  The evaluation system doesn’t care if property is wet; doesn’t care why property is wet - e.g. city drainage policies; doesn’t care what was there yesterday or will be there tomorrow.  The sole criteria is that 50% of the plant species must be wetland plants (or, more specifically, plants in the OWES manual’s very dubious list of indicator species for wetlands, many of which will happily grow in non-wetland environments). 
  
  In fact, problems on some of the designated properties are caused by spring flooding and, more specifically, by the City’s failure to provide adequate drainage.  The City is draining areas to north of the designated area, but making no provision for the increased water flow to pass through the area.  The City has a clear legal responsibility to provide such drainage.
   
• The OWES manual over-designates wetland.  By basing the wetland designation on plant species alone, the system designates many areas beyond the swamps, marshes, bogs and fens that the manual claims to be protecting.  It applies to many areas that no reasonable person would consider wetland, including most of the Goulbourn landowners’ properties.  The City knows this and doesn’t care.  (“land doesn’t need to be wet to be wetland”, Susan Murphy, City of Ottawa Environmental Planner)
   
• The evaluation system is subject to manipulation by various parties to get the results they desire.  Increasing the size of an evaluated wetland increases its score.  By choosing a big enough wetland, the score can be manipulated to produce a Provincially Significant Wetland.  Complexing is another variation on this theme.  This is how the City manipulates the system to designate marginal wetland that does not fit any of the descriptions of swamp, marsh, bog or fen.  Conversely, by choosing a small enough area, the score will be below the Provincially Significant Wetland threshold.  This is how developers get Provincially Significant Wetland rezoned for development. 
   
• The way we have been treated by the City has many similarities to the Mushroom Theory of management – keep them in the dark and feed them bullshit.  I don’t mean to make light of it; this is a very serious issue that extends well beyond wetlands designations.  All citizens should have the right to be treated ethically and equitably by the City.  The process must be fair, open and objective, and City staff must administer the regulations without attempting to promote one agenda over another.  That is a very long way from the City’s dealings with members of our group.  The issue of ethics needs to be addressed elsewhere in the Rural Summit. 
   
• In fact, rural landowners have a much better record of protecting wetlands than do the City and Province, who allow wetlands near suburban areas to be developed wholesale.

Finally, we should point out that the good intentions (?) of the city and provincial bureaucrats are likely to result in exactly the opposite of what they are trying to achieve. 

Unfortunately, the consequences of a Provincially Significant Wetland designation are nothing short of draconian.  Some landowners have been so concerned about the restrictions that they have been prepared to destroy their designated ‘wetlands’ rather than allow their life savings to be destroyed and their rights to enjoyment and management of their own properties to be usurped.  If this goes ahead, more will follow.

The Landowners Position

I cannot emphasize strongly enough that if we cannot resolve this problem in a way other than property rights versus the environment, we will have failed to find a solution to the wetlands and to the property rights problem. 

We need a process that doesn't pit us against the City and force us to choose between our financial interests (i.e. our life savings and retirement security) and the environment.  To people with pensions, life savings and retirement security may not seem like big deal, but those of us who have worked for small companies, or are self employed or farmers, don’t have pensions and need our savings to finance our retirement. 

An immediate solution to the Goulbourn Landowner Group’s problems must satisfy three criteria: 

1. It must not devalue our properties.
2. It must not affect the reasonable use of our properties, including the enjoyment of our current rights.  
3. It must be fixed now.  The ongoing uncertainty is causing a great deal of stress for some landowners.  Those in the process of selling their properties are unable to sell them at their previous market price and are suffering significant financial hardship. 

In order to fix the system and prevent other groups from going through this process (and to save municipalities large sums of money), a solution should also satisfy the following:

4. It should not apply to land zoned for agricultural purposes.
5. It must require real consultation with the landowners throughout the process. 
6. Develop a process that is fair to landowners and does not create an adversarial relationship between the city and the landowners.
7. Provide full and fair compensation when properties are devalued, or to buy them at a fair market price (with the owner’s consent).  If the City cannot afford to provide compensation, it is completely unethical (but, sadly, not illegal) for the City to proceed with wetland designations.
8. Provide real incentives for landowners to maintain their wetlands. 

9. Apply wetlands regulation equally to rural and suburban properties.
10. A moratorium on all existing and future designations until the above problems are resolved.

I'd like to throw out a few of ideas for resolving this problem:

First proposal: Withdraw the designations until the above requirements are met. 

Second Proposal: The Township of Augusta has incorporated the following into its Official Plan:

"Whereas an individual cannot re-designate or rezone the use of his/her private property without the written consent and approval of the municipality, it is a fundamental requirement that the municipality not rezone or designate the use and opportunities of private land without the landowners prior written approval and consent.  This principal can only be abridged for the public good, with fair, just and timely compensation."

Two other townships have also incorporated this clause into their Official Plans.  Perhaps Ottawa could show some leadership and become the first major city to follow suit. 

Third proposal: The City and Province could change the zoning regulations to allow the owner of a property zoned as rural residential to modify up to 25% of his/her property without triggering environmental issues.  The 25% would include the space occupied by the house, backfilled areas, septic system, driveway, any outbuildings, etc.  This would apply to all property zoned rural residential, whether wetland or not.  The system would guarantee that 75% of the property was left in a natural state (e.g. wetland).  This would not preclude normal rural activities such as planting and cutting trees and maintaining or improving the health of the land and vegetation.  Land currently being used for agricultural purposes would be exempt from the 25% restriction.  On a 2 acre property (the minimum rural severance), that would allow the owner about 22,000 square feet and should be enough for most people.  Those who require more would have to satisfy the City that using more would not have a detrimental effect on the environment.  If this rule were applied to all rural residential properties, there would be no need for wetlands regulations, and several other regulations would possibly be made obsolete.  This restriction would not prevent a landowner from subdividing his property, but each part would have to satisfy the 25% rule or come under additional scrutiny.

The 25% rule obviously needs to be worked out in detail.  However, it seems to provide a balance between landowner rights and communal interests. 

Fourth proposal: Independent of other proposals, any land currently being used for agricultural purposes should be exempt from a Provincially Significant Wetland designation.  This exemption currently exists for any land licensed by MNR as a quarry operation or gravel pit.  Isn’t farmland at least as valuable?

I should mention that not all our members support these options.  Many feel that the wetlands issue is completely phony, and that we have no need to compromise on any property rights. 

Clearly, some of these proposals require changes to Provincial regulations.  I hope that this will not be seen as a reason for rejecting it to pursue a solution that falls entirely within the City’s jurisdiction.  It’s my view that many of the problems we have with government are caused precisely by these sorts of considerations; considerations that result in us solving the wrong problems.  If we don’t analyze the problem correctly, we won’t find the right solution.  If we allow the solution to be forced to fit other requirements for the convenience of the administrators, we end up implementing the wrong solution.  In both cases, this results in more problems down the road, which usually causes more badly thought out regulations, more cost and more frustration.  This, in turn, results in the City hiring more administrators, and more money in the pockets of lawyers.  Let’s try to do this the right way.

If we can't find ways to fix the wetlands process, then the Goulbourn Landowners Group will require full compensation from the City for the devaluation of our properties, and will be suing the City for causing our wetlands problem by failing to maintain the drainage system.  We will probably see several more landowners remove all plants from the designated wetland area in order to avoid the designation.

If we get to the point where compensation is seen as a solution, the Rural Summit will have failed, because even compensation will not unfreeze our properties. 

Finally, on this issue, I’d like to emphasize that we need a speedy resolution to this issue as it’s putting a severe financial strain on some members of the Goulbourn Landowners Group.  At least one of our members is in the process of selling her property.  To date, she has had to reduce the asking price by over 15% of its previous market value.  She cannot afford to reduce it any further and, because she has to tell potential buyers that there is a wetlands designation hanging over the property, she still cannot find any potential buyers.  It is intolerable that the City should put this sort of burden on its citizens.
 

Supplementary information

The following sections provide supplementary information about several of the topics.

Wetlands Evaluation System is fatally flawed

Wetlands in southern Ontario are evaluated using the Ontario Wetlands Evaluation System Manual, Southern addition (OWES manual).  This manual provides guidance on two questions:  what constitutes a wetland (basic wetland), and what constitutes a Provincially Significant Wetland (PSW). 

In addition to many minor problems, it has two glaring holes – the definitions of basic wetland and PSW are nonsense.   

For basic wetland, the manual begins by describing four types of wetland, marsh, swamp, bog and fen, that it aims to protect, in terms we would all agree with.  However, the technical definition of a basic wetland is based only on the plants growing in the area – if more than 50% of the species are wetland species (based on a very dubious list the manual provides), the area is wetland.  Now, no-one would disagree that the four types of wetland identified above are wetland by this definition.  However, the definition also encompasses many areas that do not fall into any of these categories and no normal person would consider a wetland.  The authors of the OWES manual do not seem to have considered this possibility, and the bureaucrats who administer it don’t appear to care.  An example of the latter is the quote from Susan Murphy, the City’s coordinator for this project, that “land does not need to be wet to be wetland” (interview with Dave Stevens on Ottawa Morning, CBC Radio One, June 8^th, 2005).

To classify an area as PSW requires a much more detailed evaluation, including fauna and flora, hydrology and social uses.  The evaluation uses a scoring system, and if an area scores more than a threshold level, the area is PSW.  Unfortunately the scoring system has a major flaw:  each ‘community’ identified by the evaluation contributes to the score.  That means that if we take two areas and score them individually and then as a whole, the score for the whole will inevitably be greater than either of the individual scores.  Thus, if a wetland is not PSW, just add in some adjacent wetland and re-evaluate.  Keep doing this until the score reaches the PSW level.  This is the game that our City and Provincial bureaucrats are playing. 

Conversely, if you isolate a small enough piece of wetland and score it by itself, it will not be provincially significant.  This is the game the developers play to get land reclassified for development. 

Janet Stavinga and others defend the development of wetlands around Stittsville on the basis that they were just basic wetland and not PSW, as if that were a significant distinction.  However, this is just sophistry; the Stittsville wetlands could have been PSW had there been any political will to protect them.

The OWES evaluation system is a joke.  Any publicly administered system needs to be objective enough to prevent manipulation by bureaucrats and developers.  Such systems must also be visibly fair and equitable.     

If the City and Province intend to pursue the classification of wetlands, one of the items that must be addressed is a revision of the OWES system to make it fair, objective, and limited to real wetlands.

Complexing

In the current case, the vast majority of the designated properties not Provincially Significant in their own right; at best they are very marginal wetlands.  The City and Province have got around this inconvenience using the ‘complexing’ rules.  Complexing allows a basic wetland to be deemed Provincially Significant if it is within 750 metres of an existing Provincially Significant Wetland.  The new Provincially Significant Wetland can then be used to complex further wetlands, using the same rules.  Potentially, one piece of  Provincially Significant Wetland could be used to extend wetlands designations from one side of Ontario to the other without ever requiring a full evaluation of another wetland.

Complexing allows the City and Province to designate properties as Provincially Significant, without the inconvenience or cost of having to meet Provincially Significant Wetlands standards. 

Complexing allows the City and Province to designate marginal wetland as Provincially Significant – wetland that would never meet Provincially Significant Wetlands standards on its own merits. 

A study by a biologist hired by the Goulbourn Landowners Group has indicated that our properties are at best basic wetland and would not qualify as Provincially Significant Wetland on their own merits.   None of them would be recognizable by a lay person as swamp, marsh, bog or fen that the wetlands regulations claim to protect.   

Complexing is fundamentally unjust and must be disallowed.

Uneven Application of Wetlands Designations

The motivation of the City, in designating 650 acres west of Stittsville as wetland, is to protect and preserve the supposed wetlands, so it is reasonable to examine the City's record in this respect.

In the Goulbourn area alone, the village of Stittsville has seen massive development since the introduction of Municipal water and sewer services about 25 years ago.  The population of Stittsville in that time has expanded from about 2000 25 years ago to over 10,000 today.  In that time, there has been, and is ongoing, wholesale development of wetlands in and around the village of Stittsville. 
 

• In Stittsville, Brown’s Supermarket and the adjoining strip mall, at the junction of Main Street and Hazeldean Road, is built on wetland, as is the housing development directly east of it. 
• There is currently development of wetland north of this area, across the Hazeldean Road. 
• The current controversy about expanding the Stittsville Tim Horton's is another case in point.  Does anyone doubt that it will go ahead despite the environmental protests? 
• Provincially Significant Wetland on a property between Fernbank Road and Huntley Road is being downgraded to basic wetland so that a development of more than 200 houses can be built on it.
• Most of the other developments around the village of Stittsville in the past 25 years are built on wetlands. 

There is no reason that wetland adjacent to suburban areas should be treated any differently than wetland in rural areas.  In theory, this is already the case but, in practice, wetland adjacent to suburban areas is not effectively protected and gets developed.  The City must then find wetland in rural areas to designate in order to satisfy the environmental lobbyists.  However, designating more wetland does not create new wetland whereas developing wetland destroys it permanently.  Indeed, the new wetlands that the city is ‘creating’ to compensate for development are contrived, rather than real, wetlands. 

There is a definite dual standard here.  Urban residents and councilors are permitting the destruction of wetlands for suburban development.  Then they turn around and tell the rural residents that ‘we’ need to preserve our environment.  Perhaps the urban residents and councilors should look in the mirror and in their own backyards before preaching to others about the environment. 

Of course, these people have ample excuses: “the land was never officially designated as wetland”, or “the OMB made us do it”.  Nevertheless, real wetland is being destroyed.  And many of these same people are condoning and encouraging such development by living in houses built on wetland.  We have never heard of an urban resident campaigning to do the environmentally responsible thing and boycott such housing. 

It appears that the City and Province only protect wetlands that no-one wants to develop.  Given the record of the City and the Province in protecting wetlands, we have to conclude that wetlands are less safe in their hands than they are in the hands of private landowners. 

Until the City is prepared to protect existing wetlands in suburban areas, it should cease and desist from harassing rural residents. 

Devaluation

A designation of Provincially Significant Wetland results in a drastic devaluation of the affected properties.  The value of general rural land falls by 85% from about $2500 per acre to about $300 - $400 per acre.  Farms and properties with homes on them can be much more drastically affected.  Neither the City nor the Province is prepared to compensate the landowners for the loss of value.  Since wetlands are a communal good and of no intrinsic value to the landowner, this is inexcusable. 

The City’s planning department and politicians have consistently claimed that there is no devaluation, or that it is minimal.  However an independent property appraiser, and MPAC, the company who do property assessments for the City, use a value or 85% as the devaluation for property zoned as wetland. 

Landowners were told by the City representatives that the landowners need not pay property taxes on the designated areas (acreage only, not home value) provided they agree to maintain the wetland.  The reduction in property taxes works out to about $10/acre/year.  So landowners only need to stay on their properties for around 200 years to recoup the loss.  Farmers, who pay less tax on their acreage, will need to live on their property for several thousands of years to recoup their losses.  Selling up before the recovery period is up results in the landowner receiving the reduced price for his / her property and the buyer getting the tax credits. 

Property Frozen

Once designated, the owners of Provincially Significant Wetlands, and of all property in a 120 metre (400 foot) buffer zone, enter a bureaucratic nightmare where an Environmental Impact Study may be required for any change to the wetland, no matter how trivial.  This can involve the Ministry of Natural Resources, Ministry of the Environment, Dept. of Fisheries and Oceans, Ministry of Agriculture, and many others.  The Province’s web site (http://www.on.ec.gc.ca/wildlife/docs/legislation-e.html) lists 13 different pieces of legislation and 9 different ministries that a landowner should consult before making any changes to his wetland.  Any one of these organizations can demand an Environmental Impact Study (and the chances that none will demand a study are about zero), the costs can easily run into tens of thousands of dollars and take years to complete. 

Pre-emptive strikes

The event that initiated the City’s wetlands study was an application for a subdivision at 6851 Flewellyn Road, which (without going into the issue of whether or not its wetland!) is a very wet property.  Since this property was not classified as wetland at the time of the application, the City will not be able to prevent the development.  The OMB has consistently stated that the regulations they take into account when they make a decision are the regulations in force at the time the application was made. 

Thus, the designation of our properties is a pre-emptive strike by the City to prevent any other landowners in the area from doing the same thing. 

There are two problems with this: 

• The evaluation process is expensive and wastes taxpayers’ money to prevent an eventuality that might not happen.
• The developer benefits and surrounding landowners pay the price in the devaluation of their properties.