Dennis Trinaistich, legal counsel for the Turtle Ponds Association, argued that there was no planning rationale for the undesignation, and called on councillors to “right the wrong” that had occurred as a result.

“If it was good planning, based on scientific evidence, to put them in [in 2003], why is it suddenly not good planning to do so again in 2005?” asked Trinaistich. “The only change that we’re aware of is that the site was declared surplus , and optioned to a developer who probably convinced the staff to leave it out.”

His contention appears to be supported by statements cited by Trinaistich that appeared in last month’s staff report on the application of Church Street Developments to build 42 townhouses on a portion of the site that had previously been deemed an ESA.

“The only change to the OPA [Official Plan Amendment in 2005] was the removal of the subject site, in response to an objection from Church Street Developments,” reads the report. “This solution allowed the remaining ESAs to be designated and protected, while staff worked to deal with the concerns of Church Street Developments.”

But attempts by councillors earlier in the meeting to confirm this is what happened generated different answers.

Brad Clark specifically asked why this ESA had been removed and was told by senior planner Joanne Hickey-Evans that it was held back because of uncertainty about the boundaries of the ESA.

“We weren’t a hundred per cent sure of the boundaries,” explained Hickey-Evans.“If there’s any development or we are unsure of boundaries we conduct Environmental Impact Statements to determine the exact limits.”

Clark said he found this answer “curious” because he had previously been told the change was because of a notification error. Hickey-Evans explained that the original ESA decision had not been properly communicated to affected landowners.

“So it was at that time, when we did the second adoption of the amendment, that Community Beach Ponds was checked, and decided that we would introduce it at a latter date,” she stated.

The notification mistake was brought to the attention of the city by Sergio Manchia at a November 2004 meeting where he spoke on behalf of one of the owners of Church Street Developments as well as the Catholic school board which is selling the lands to the developer.

Manchia is a trustee with the Catholic board, as well as city-appointed member of the Hamilton Conservation Authority. He is a partner in Planning and Engineering Initiatives, the company that is representing Church Street Developments.

When Clark asked if there were difficulties with the boundaries in the other 19 ESAs approved in 2005, Hickey-Evans responded: “There were a number – the short answer is no. No one had come forward at that time to identify a problem with the boundaries.”

She didn’t explain whether someone had come forward with regards to the Community Beach Ponds boundaries, but the subsequent environmental impact study done on behalf of the city and Church Street Developments resulted in significant reduction to the size of the ESA.

The citizen leading the fight to protect the natural area also believes the ESA designation was removed to benefit the developers, and says Manchia personally boasted to her about finding “the loop hole” that resulted in the undesignation.

Sherry Revesz said staff originally told her in 2006 that the lands were never an ESA, but backtracked when she showed them the 2003 official plan amendment. She says staff then said city lawyers had concluded the ESA was never legal because the city hadn’t issued proper notices.

Another resident, Alexandra Bennett, also tried to get an explanation from city staff during the meeting.

“Was it left out because there was a proposal for development?” asked Bennett.

Hickey-Evans replied that the city knew the Catholic property had been declared surplus and “there eventually would be development on that site”, but said even if the development were a school instead of townhouses, a refinement of the ESA boundaries would have been required.

“We were being pro-active”, she declared.

A third resident, Stacey Long, concluded that the removal of the ESA “defies simple logic” and that if some people had not been properly notified in 2003, the error should just have been corrected and the ESA re-instated.

“From the perspective of a community member perhaps it might be a simplistic view of things,” said Long, “but while many things have changed since the developers good fortune of discovering a circulation error, I know one thing for certain that has not changed, and that is the nature of this land and the reasons for why this land was given the status of environmentally sensitive in the first place.”

Trinaistich revealed other inconsistencies in the process such as the fact that the development applications for both properties specifically mentioned the existence of the ESA, even though it had been undesignated before either was filed with the city.

“The Stoney Creek Official Plan would require an Official Plan Amendment to re-designate an ESA to put it to any other use,” the lawyer noted. “So, because of their intervention Church Street Developments has a site that is not designated as an ESA even though we all know it should have been. As a result, they don’t have to apply for an amendment to the Official Plan.”

Councillors put off making any decisions about the disputed development until further information is provided and proposals are presented for a second townhouse complex on the adjacent lands that were also part of the briefly-designated ESA.

A transcription of most of the meeting is now available on the CATCH website.