Why the Ausable Bayfield Conservation Authority (ABCA) is such a hot button issue this Fall
To bypass this article and go directly to the audio recordings from the two Ausable Bayfield Conservation Authority meetings that occurred last week, follow these links:
- ABCA Steering Committee Meeting FULL AUDIO – Monday, October 17, 2016
- ABCA Board Meeting FULL AUDIO – Thursday, October 20, 2016
Note from the Author
As the only Realtor® present at the second meeting, I felt it was of paramount importance to express my concerns to the public and my fellow real estate professionals. The following article includes a summary of the facts, notes on each of the meetings that occurred between October 17 and October 20, 2016, links to relevant resources, and questions that need to be answered.
– Mike Sloan
The Ausable Bayfield Conservation Authority (ABCA), among a variety of other important duties relating to the ecological, geological, and geographical integrity of water bodies and watersheds, regulates the Lake Huron shoreline in Ontario from just south of Port Franks to just north of Bayfield. Their duties are important as both safety and environmental preservation near bodies of water are key issues for all of us . This is not a statement against the Ausable Bayfield Conservation Authority. It is about their lack of disclosure as it pertains to potential property regulation in the future, and also, their tendency to paint the entire shoreline in our region with one brush. We should not have blanket policies covering the entire shoreline when conditions can vary dramatically from one property to another.
For right now however, we need to address the issues at hand. As it pertains to their authority over the Lake Huron shoreline within this region, the Ausable Bayfield Conservation Authority has a Shoreline Management Plan (SMP) that was passed into legislation back in 2000. In 2015, the board of the ABCA commissioned consultants to update this plan . On September 1, 2016, they released the Shoreline Management Plan 2016 Consultant Recommendation Report on their website. Further details on the report and its function at this point in time can be found at the Ausable Bayfield Conservation Authority Shoreline Management page.
Following the release of this report to the public, the Ausable Bayfield Conservation Authority has received substantial public commentary relating to the alleged illegal nature of numerous recommendations found within the report. A document prepared by local shoreline resident Gary Rose outlines the issues quite well. In summary, the net effect of portions of the report would result in the prohibition of any structures, septic maintenance, or shoreline access / erosion prevention on private lakefront property, almost all of which currently contains existing residential homes. Many of these homes have been in families for generations. Among a multitude of issues found within the report, as outlined in Gary Rose’s Common Declaration document linked above, these are the overriding issues. Please see pages 113 to 117 of the Shoreline Management Plan 2016 Consultant Recommendation Report and you’ll understand the true gravity of this situation. Also, search for use of the phrase managed retreat throughout this PDF document, and you will see that the majority of this report is advocating these extreme and invasive recommendations starting on page 113.
Here’s an interesting sidenote as it pertains to the recommendations starting on page 113 of that document. Just this year, the Grand Bend Rotary Club completed construction of a killer entertainment stage / band shell down on Main Beach. This project was funded, in part, by federal government grant money. The Ausable Bayfield Conservation Authority is a private entity operating as an arm of the federal government. Confusing, I know. Via their SMP 2016 report, this entity is suggesting that this structure, just completed in part with federal grant money, could be prohibited from receiving any maintenance as early as the Summer of 2017, in accordance with policy mandated by the very same government that just paid for the structure. How about the Water Treatment Plant at HW 83 and HW 21 that is located, in part, within the ABCA’s coveted and heavily restricted Zone 1? Or, what about the power plant buildings and facilities further north (on the Lake Huron shoreline) that supply millions of Ontarians with electricity? Is their conservation authority going to tell them that they can’t maintain their nuclear power plant facilities because it’s located along the shoreline? Bottom line, the contents of this report should have never been released to the public because we all know that the recommendations starting on page 113 can never legally be allowed. But they were released, and the economic damage is already done for several of my clients as I will outline below!
So, pursuant to an overwhelmingly negative response, the Steering Committee for the Ausable Bayfield Conservation Authority invited the public to an ABCA Steering Committee meeting on Monday, October 17, 2016 (see full audio recording below). With hundreds of public attendees, the Steering Committee voted on a motion to recommend to the ABCA Board of Directors that the entire SMP 2016 Report be thrown out. Coincidently, the ABCA Board of Directors was also set to meet that same week. At that meeting, on October 20, 2016, the ABCA Board of Directors chose to decline the guidance of the Steering Committee and keep the report in play. Full audio on that meeting is also available below.
Subsequent to considerable public backlash, Ausable Bayfield Conservation Authority staff and board members continue to provide a response of this nature (off the record): That the report is for information purposes only and that the ABCA Board has not agreed to adopt any of its contents as regulation. Despite various portions of the ‘draft’ report indicating that the ABCA will implement and adopt the regulations, this response from the ABCA may be true. However, as a licensed Ontario Realtor® (real estate Sales Person in Ontario), I would argue that the ABCA Board is completely missing one of the primary points of contention tabled at the ABCA Steering Committee meeting on October 17. The mere existence of such language in the public realm is having immediate economic effects on the local real estate economy, the trades economy in general, and the owners of properties potentially affected by these regulations. Additionally, the refusal of the Ausable Bayfield Conservation Authority to immediately declare, in writing, that such regulations will never be adopted and imposed on properties that are already zoned residential, has created a real estate stigma along the lake that will not be forgotten for a very long time. As an active Realtor®, I have strong connections to three separate constituents that are already suffering the immediate detrimental effects of this report:
- I have a seller with an accepted conditional agreement to purchase their lakefront property in Grand Bend for a price that I am not yet able to publish. What I can tell you is that the asking price was well above $2 million. This deal was set to go firm (no more conditions) on Friday, October 21, 2016. Following the decision of the Ausable Bayfield Conservation Authority Board on October 20 to move forward with the report (for now), this deal did not firm up. This is a situation that will only change if the buyer receives, in writing, a document indicating that the ABCA cannot and will not restrict the buyer’s ability to build and maintain a home on this property. This is something that the ABCA refuses to provide. If things don’t change soon, it looks like my seller may lose the buyer.
- For the same reason; failure of the Ausable Bayfield Conservation Authority to provide in writing that the owners of lakefront properties will never be forced to eventually abandon their homes; I have another client that purchased lakefront property that may choose to put his multi-million dollar project on hold. Yes, there will be substantial costs to such a holding period, and he’s already well over $3 million into it, but it’s better than spending another $7 million on a home that may never be permitted to be maintained. In the process of purchasing the property for $2.55 million and spending close to another $1 mil on design and set-up, my client was investigating how Ausable Bayfield Conservation Authority policy might affect his building envelope. After many meetings and phone calls, and ultimately, after paying for his permit with the ABCA, it was never once disclosed by ABCA staff that there might be a chance he could lose his private property rights as a result of a pending shoreline management plan. Based on information received at the ABCA Board meeting on October 20, it is certain that ABCA was in possession of this plan at the time of these exchanges.
- I am also aware that a well respected contractor in this area lost a $1.5 million job on the lake, indefinitely, the day after the ABCA Board meeting on October 20. His clients feel that the fact that a conservation authority can even suggest such regulations is enough for them to back off on putting another dime into their lakefront property.
As well as these three immediate examples, I have additional clients with lakefront properties currently for sale in this area. Both my clients and I are extremely concerned as to the negative and deleterious impact that the Ausable Bayfield Conservation Authority SMP 2016 would have on their rights as private property owners, and substantial decline in market value.
Having a hard time believing that this is actually happening in a country that has private property rights built into its founding principles? Check out the full audio recordings from both meetings below. It’s all true! As a final thought, while I recognize the value of having a conservation authority, it makes no sense to abandon homes on every single shoreline lot in this region. In the Grand Bend area for example, our shoreline is so stable with banks so gradual and low, we have several homes approaching 100 years in age that have never been in a hazard situation due to high water levels. Even in the mid 1980s, when water levels in Lake Huron were at a 100 year high as indicated in the Ausable Bayfield Conservation Authority SMP 2016, these homes were still not affected.
Ausable Bayfield Conservation Authority Steering Committee Meeting – Monday October 17, 2016
The first few minutes of audio are a bit tough to hear, but I left it all in the recording to preserve the full record of what transpired. During these first few minutes, I was in the very back with a guy coughing right next to me. Eventually, around the 3rd minute, I moved up to the front. Audibility improves dramatically after that. However, with the different volume that each speaker has, using headphones would would help to ensure that you can understand what everyone is saying.
Notes & Summary – ABCA Steering Committee Meeting, Oct 17, 2016
The Steering Committee is comprised of a variety of public constituents representing diverse shoreline and industry interests. As referred to by the ABCA on their website, the Steering Committee is a consulting team working with the community to update the Shoreline Management Plan (SMP). The purpose of the Ausable Bayfield Conservation Authority Steering Committee is to advise the ABCA Board of Directors in making sound decisions that not only fall within the official mandate of the ABCA, but also are in the best interests of the property owners within the region that they regulate.
Following numerous presentations by members of the public at this meeting, it seemed quite clear that many portions of the Ausable Bayfield Conservation Authority SMP 2016 were well outside of their jurisdiction as afforded to them by law, and also represent a violation of a variety of private property rights that cannot be implemented by a conservation authority. Once again, I would like to direct you to a document prepared by local shoreline resident Gary Rose that outlines the issues quite well. Consequently, after almost three hours of public outcry over the ridiculous nature of certain recommendations within the report, the Steering Committee voted to throw out the report and start over. The vote was almost unanimous. The outcome of this vote made sense to everyone at the meeting given that the report contains language that would eventually render lakefront properties to be worthless over time. This is because, among many other controversial suggestions, the report includes recommendations that would prohibit lakefront home owners from maintaining their homes. It’s as if the land is being expropriated without compensation. If you haven’t seen them yet, you need to take a look at the recommendations starting on page 113 of the Shoreline Management Plan 2016 Consultant Recommendation Report.
Ultimately, the final decision to scrap the report and start over was to be in the hands of the Ausable Bayfield Conservation Authority Board of Directors at a future meeting. However, after hearing the comments made by ABCA Board members present at this meeting, the public was confident that the board would be in agreement with the Steering Committee’s recommendation. Below is a direct quote from an ABCA Board Member as spoken at the meeting on Oct 16. This statement was made right after he had already commented that they had “heard everyone loud and clear”. For the quote I am posting below, listen to the audio at 2:14 and 45 seconds, where the ABCA board member is answering a question posed to him pertaining to how the Board would proceed with the SMP 2016 Report given the Steering Committee’s almost unanimous vote to scrap the plan. Here is exactly what this board member said on Monday:
I would not be concerned that the board is going to commit political suicide and not listen to the Steering Committee.
And then, three days later at the Board meeting, they did exactly that – ignored the recommendation of their Steering Committee.
The above comment had everyone leaving that meeting on Monday feeling pretty secure about the future of lakefront property in our region, a crucial and driving force in our local economies. The downfall of those properties would be catastrophic (massive loss of tax revenue and negative effects on the remaining tax payers), which is likely why hundreds people were present at that meeting.
Ausable Bayfield Conservation Authority Board Meeting – Thursday, October 20, 2016
Again, because some speakers aren’t as loud as others, your experience with this recording will likely be best had using headphones. Things got pretty interesting at this meeting, especially given the expectations of the public following the Steering Committee meeting held three days earlier. Accordingly, as the only Realtor® present at this meeting, my notes below are much more detailed than the first meeting.
Summary Timeline – ABCA Board Meeting, Oct 20, 2016
0:00 to 1:45: Moving to ask that item #10 (discussion on SMP 2016 consultant’s report) be moved up to item #1.
1:45 to 8:47: At this point, they have voted to move up ‘#10’ to the top of the agenda, which was suggested because members of public were present to hear about it. Geoff Cade (ABCA Supervisor) gives the board an update on what’s happened so far (discusses the general environment at the Ausable Bayfield Conservation Authority Steering Committee meeting on Monday). He acknowledges that this process began in 2015 and the report has been in their hands since July of 2016, so we know that he knew about the regulations when he issued the permit to my client as noted above. This is the client that I mentioned was about to commence spending on a multi-million dollar project prior to paying for this ABCA permit, a project that has since then commenced with no disclosure of these potential regulations from the ABCA other than their posting the report on their website. This occurred a few weeks after the permit was issued to my client.
8:47 to 10:05: One of the board members present on Monday at the Steering Committee Meeting (George Irvin) presents a motion to scrap the report but recognize that some of the science / research used to create the report may be of value as a contribution to a future report. Seems sensible to some, but not many. Discussion commences.
10:30 – 12:15: Brian Horner (Ausable Bayfield Conservation Authority General Manager and Secretary-Treasurer) is very quick to site the type of format that they use in their meetings in what seems like an attempt to avoid voting on the above motion in this meeting. He does provide a reason for this. His feelings are, because the issue is so substantial, it should be notified at this meeting and voted on at the next meeting. Ultimately, the board did vote on the motion on this day, but it was this type of rhetoric that may have influenced the board to vote against scrapping the report in a timely fashion. Here, I am providing my opinion in addition to an account of what happened. There was a lot of discussion concerning the Board not being ‘ready’ to make such a decision, as if the whole process was feeling very rushed (for them). I was confused by this notion, especially given that Cade had already commented that they had the report in July. Maybe the Board members didn’t receive copies at that time. I’m not sure how they handle such things, but everyone has clearly had access to a full copy of the report since September 1, 2016 when it was posted on the ABCA website.
15:00 – 29:00: Discussion on both sides continues, with many arguing that they don’t know enough about the report to vote on such a motion, that they aren’t prepared. This is of great concern, considering these board members may be compensated in some way to be part of this board. Such compensation is something that implies the expectation that a board member review a report this significant PRIOR to the report being released for public comments on September 1, 2016. In this way, they are educated on the report and prepared for the public’s engagement with its contents. At this point time, I am not aware of whether or not any compensation agreement exists. However, it seems to me that a lack of review of said report prior to a public comment period is very troubling, notwithstanding whether or not they are compensated.
Listen at 14:17: Here, another board member says he’d just seen the report for the first time ‘last night’, and then comments further that ‘he’s not even sure if all the board has even seen it’. Says it was ‘never presented at a meeting’ and that they don’t know much about it and have not been educated on its contents. They don’t know anything about the report, but they are asking for public input? Cool, public has spoken. We say scrap it. There ya go.
Further comments are made that they DO NOT SUPPORT the report in the draft form as it is right now, but that they need to investigate further because so much money was spent on it. They are seemingly ignoring the comments of another board member that the mere existence of such language is creating immediate economic effects. My examples in this blog post demonstrate this statement to be very accurate.
Around 18 minutes, they discuss how they don’t accept pages 113 and onward as something that they would ever adopt, in a way, acknowledging that they don’t accept the report’s recommendations. They indicate that, in it’s current format, the report only exists for ‘information purposes’ and that the ‘intent all the way along’ was just this – information only. They say that this is NOT the shoreline management plan, despite the cover literally reading Shoreline Management Plan 2016.
A second motion is suggested the report is for information purposes only around 22:15. They seem to have no issue with this motion.
28:30 – 33:50: Horner comments that it is likely that the Board may eventually get to scrapping the report, but that, again, things are moving too quickly. He feels that saying YES to the motion on the floor would be a ‘knee-jerk’ reaction to public input, and that they still need time to educate themselves on the contents of the report that they have had since July. So, putting it off to the next meeting would give them time to do their homework and then put it back on the table in November, a month from now! He’s asking for it to be a ‘Notice of Motion’, again. Then, another (newer) board member is agreeing and saying that he needs time to take a look at the report, that he feels ‘jammed up’ to be expected to vote today when he hasn’t ‘made the investigation’. In other words, it sounds as if he hasn’t had a chance to look at the report. Can’t say for sure. So, they need another month to do their homework, while I have clients and contractors with millions of dollars on the line – TODAY. As a tenured professor, I have to say, if my students jumped into a project that had already come this far and said they needed more time to do their homework, I’d just fail them on the spot. Again, this one of those opinions I have – nothing more.
33:50 – 34:55: Another board member states that the Steering Committee was to vet the report and the public’s opinion, they DID their job, and they say they want it rejected. Everyone is just silent – they just don’t seem to have any desire to listen to the Steering Committee. This behavior has me wondering if the purpose of the Steering Committee has not been properly defined on their website, but as explained to use on Monday, the final decision is in their hands.
34:55 – 36:45: The ABCA’s lawyer discusses threats of lawsuits – “Don’t let them determine what you do” he commented. It comes again that it’s just a draft, despite the document indicating that they actually plan to “implement the following recommendations” (page 10). Then, the lawyer flip flops. Right after he says not to concern themselves with threats of lawsuits for publishing this report, he turns around and advises them that they could be sued if they scrap the report as well. Just to recap – he says not to let the talk of lawsuits influence their decision not to scrap the plan, but then comments that they should be very careful about scrapping the plan, as such an action may generate lawsuits. Um, ok? I’m not sure if he realized how much he contradicted his first statement there, but if it were me, I would try to avoid getting sued by the people losing millions of dollars, not the people who felt that they didn’t get their fair shot at endorsing a set of recommendations that aren’t even legal. Again, this is just one of those opinions I have.
37:00 – 40:15: Here, they talk about the message they are sending, and how the contents of the report are not truly what they believe. They agree, without a motion, that they need to clarify the language on the website as to the purpose the report actually serves (just a starting point to a new plan, NOT the new plan itself). They also indicate that the ‘vast majority’ of public comments received thus far are not at all positive. They say that some are supportive though. I’d like to see those. They also mention that it’s mainly those 4 to 10 pages near the end of the report that are creating the issue. They finally call the motion to scrap the report, and it gets denied. Only 3 Board Members support the motion to scrap it (based on the motion voted on by the Steering Committee on Monday that was almost unanimous).
40:15 – 41:50: A motion is suggested and passed that the ‘the board accepts the report for information purposes only’ and that this language is to be added to the website, to provide reassurance to the public that this group will make make a decision that it is ‘plausible for everyone’. The changes are suggested, moved, and carried. I still have yet to see these changes present on their website despite it taking minutes to cut and paste some text into a web page. And, this still doesn’t fix the IMMEDIATE ISSUES caused by the mere existence of this language. It needs to be put in writing, RIGHT NOW, that they will never adopt these recommendations! They know it, we know it, so why are they making us wait a month?
41:50 – end: Board member files a Notice of motion that at the next board meeting, the ABCA board of directors
“Declares that it does not intend to implement the ABCA Shoreline Draft Development Guidelines of Section 7.8 in the report, pages 113 to 117, in its proposed form and does not endorse the underlying principle of managed retreat and the unilateral prohibition of any shoreline protection works.” Meeting chair states – “So noted, for NEXT meeting”.
November 24, 2016 is the date of the next meeting. It’s just not soon enough for people feeling the immediate effect.
Other Relevant Links
On behalf of my clients and all land owners, I have voiced the previous concerns in an attempt to convince the ABCA to hold an emergency meeting (referred to as a special meeting by ABCA staff). On Friday, a board member stated that this could be done in three business days. I was told today that it might take a week. I’ll create another blog post providing an update on this as soon as I can.