Large Stormwater Storage Tanks to be owned by 98 unit condo corp development on Millcroft golf course property has potential legal problems

By Staff

December 8th, 2023

BURLINGTON, ON

Daintry Klein was delegating on the Drainage By-law Amendment; one of those dry as toast subjects – until she revealed that the large stormwater storage tanks that are proposed to be privately owned by the new condo corporation.  At that point the delegation became more about what could happen to the current Millbrook residents and not so much about the bylaw amendment,

Mayor, Council, Staff and Fellow Burlingtonians,

“We would like to thank the Engineering Department for its work in updating this drainage by-law.  It acknowledges climate change and provides important updates to recognize the impacts of rainfall and groundwater in the potential for flooding.  The report also refers to best practices.  It seems that further work needs to be done and we look forward to the City, the Region, Conservation Halton and the Province to continue to address the rapidly evolving risks of Climate Change consistent with the work being done by the Federal Government and the insurance companies.  Through their extensive work, they have recommended their own set of best practices.

Yellow location are where developer Millcroft Greens want to build 98 homes.

“As homeowners, we rely on our governments to keep us safe.  To protect us from what many of us are unaware of in our daily lives as we go about our careers where our expertise is in other disciplines. As part of the planning and building process, grading and drainage is considered and clearance certificates are issued upon completion to ensure that properties are safe.

Alliance is one of two community groups opposed to the development of additional homes on golf course property.

“It has come to the attention of Millcroft Greenspace Alliance that other standards used by the City and Conservation Halton to evaluate the causes and risks of flooding also need updating.  We were initially encouraged to know that Conservation Halton, an organization that “Protects the Natural Environment from the Escarpment to Lake Ontario” is engaged in the East Burlington Creeks Flood mapping study.  As we read the most recent report, we learned that the analysis is not relied upon by insurance companies.  This raised questions for us.  Further investigation led us to learn that Public Safety Canada and the insurance companies rely on the same flood modelling as FEMA in the United States which is a newer, more complex computer program that includes the impacts of rainfall.

“A National flood insurance plan would be based on this type of modelling.   Conservation Halton and the City use HEC-RAS, a 1D model that considers surface water with adjustments but doesn’t include rainfall.  When we have made inquiries to Conservation Halton, they advise us that they only consider riverine flooding.  So, as we understand it, after the creeks and natural drainage are altered and channelized and the new regulation limits are established, Conservation Halton no longer considers the impacts of the broader watershed in its development decisions.

Klein: “The proposed update of this drainage by-law could be of particular interest to the homeowners in Millcroft.

“The proposed update of this drainage by-law could be of particular interest to the homeowners in Millcroft. We are aware of the experience of infill development particularly in south Burlington.

“Argo Development Corp and Millcroft Greens have to-date refused to withdraw their proposed development application. The City and the Region have unanimously opposed and subsequently requested, that the Province step in and issue an MZO.”

It was at this point that Committee Chair Rory Nisan cut in and asked Ms Klein to stick to the subject which was the Drainage By-law Amendment.  Klein explained that she was trying to put her delegation into context and what it would mean in practical terms to Millbrook residents; Klein continued. This wasn’t the last time Chair Nisan cut in.

“The City on September 26 and the Region of Halton on October 18 of this year for reference of the passage of time.  We are still waiting for the Province to act. Although the Premier is on record saying that he will not allow building on floodplains, he still has not stopped this development application. Hundreds of emails have been sent.

“At issue, is the fact that the Millcroft Golf Course greenspace was designed to drain the adjacent properties and slow the flow of drainage from the Escarpment to Lake Ontario, protecting properties to the south.  As of December 1^st, the witness statements for their OLT appeal are in.  Glen Wellings, the planner on the Millcroft Greens file, diligently details the process and dates of the application but forgets to mention the stormwater peer review or the Conservation Halton flood mapping.  He refers to the 6^th and 7^th holes as gently rolling with some flat areas.

The mill pond is a critical part of the infrastructure that has managed stormwater.

“As Millcroft homeowners, we understand from the initial engineering reports that the topography is actually contoured berms and swales that direct water through the fairway open channels toward the stormwater catch basins that take the water through the stormwater easements to the Millpond. And the fact that our properties were designed to have the functional drains 2.5 meters above the bottom of the fairways is also very relevant.  This is all documented in the original documents when the Millcroft subdivision was created.

“The developer is proposing to fill the fairways up with topsoil and reduce the grade to the 2% guidelines.  This could disperse the water across the neighbourhood into the existing homeowner properties causing the type of flooding that this drainage by-law seeks to address.

“The large stormwater storage tanks that are proposed to be privately owned by the new condo corporation are designed to manage the ongoing stormwater flows for our neighbourhood.  These will be maintained by our neighbours and we must look to them financially for failure? They are also detailing that the new homes will be equipped with sump pumps – something the existing homes were not designed for due to the existence of the grading to the bottom of the fairways from our rear lot lines.  Not to mention the fact that the proposed new rear yards will have catch basins in their back yards that manage the stormwater for the neighbours – potentially the site of a pool or patio in the future or garden refuse.  Topics this by-law seeks to address. And we note that the engineers of this proposed application accept no liability for their work? Relying on legal recourse against neighbours to protect our properties is contrary to the goal of community building.

Klein: “We are not clear on the process to recover potential losses from the after effects of the proposed construction if it isn’t stopped by the Province. 

“We are not clear on the process to recover potential losses from the after effects of the proposed construction if it isn’t stopped by the Province.  The by-law suggests that ultimately, the Property Owners will be liable.  However, if allowed, Argo and Millcroft Greens will change the existing Millpond, watercourses, ditches and swales and other existing green infrastructure per their development plans. The unsuspecting new homeowners of the proposed condominium corporations could be left with the liability long after Argo has withdrawn all funds from the development corporation. Would it be reasonable for builders to share in the financial responsibility for potential impacts of their actions? Should they be required to own and fund the proposed infrastructure?

“Recognizing that the Millcroft golf course greenspace is actually a natural form of the City’s stormwater management system, we urge the City to take all necessary steps to ensure that Millcroft Greens is prevented from building homes on this land.  Public Safety Canada in its report of August 2022 prescribes best practices to include natural infrastructure as method of mitigating flood risks.  As taxpayers, we ask the City to mitigate our collective risk and protect this greenspace.”

Klein is of the view that she was interrupted by the chair because some of what we had to say may be uncomfortable.

“This City endured the 2014 flood with many residents incurring out of pocket expenses to repair damages.  We believe many residents are unaware of the potential flooding impacts of proposed infill development. The Province does set guidelines on stormwater however they seem to be outdated relative to Public Safety Canada and the insurance companies.  There may be options for the City to implement its own guidelines.

Klein: Should the unsuspecting homeowners take on the liability?

“Our comments highlight information from the East Burlington Creeks study and notes from the City which we believe could result in unintended consequences for homeowners in the future after homes are built and the developer is gone. Should the unsuspecting homeowners take on the liability?

“The City has the opportunity to solve the issue of the proposed development on the Golf Course greenspace.  It is part of the stormwater infrastructure for the City and we are unaware of any other infrastructure of the City that is privately owned and controlled.  After three years of study, we look forward to this coming to a positive ending for the community as a whole before the OLT.”

What Klein chose to be polite about and not mention the grandstanding the Mayor did at a community meeting a number of months ago saying she was working with the then Minister of Municipal Affairs and Housing about the issuing of a Ministerial Zoning Order (MZO) that would end the matter before it got to the Ontario Land Tribunal.

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