DECISION 2015 NSUARB 219 M06535 NOVA SCOTIA UTILITY AND REVIEW BOARD IN THE MATTER OF THE MUNICIPAL GOVERNMENT ACT -and- IN THE MATTER OF AN APPEAL by GORDON ROSS MCCABE from a November 3, 2014, decision of Truro Town Council to rezone lands at 454 Queen Street from Industrial (M1) Zone to Institutional (P3) Zone BEFORE: Dawna J. Ring, Q.C., Member APPELLANT: GORDON ROSS MCCABE Gordon Eaton RESPONDENT: TOWN OF TRURO Gary A. Richard, LL.B. APPLICANT: DISMAS SOCIETY Richard Cotterill, President HEARING DATE: January 26, June 2, and 3, 2015 FINAL EVIDENCE: June 3, 2015 DECISION DATE: September 17, 2015 DECISION: Appeal Dismissed.
-2- Table of Contents I EVIDENCE... 3 1. Introduction and Gordon McCabe... 3 2. Adjournment... 9 3. Gordon Eaton... 11 4. Richard Cotterill... 19 5. Kirby Thompson... 19 6. Andrew MacKinnon... 25 7. Jason H. Fox... 32 II ISSUES... 37 III LAW... 37 IV SUBMISSIONS... 39 V FINDINGS... 40 VI CONCLUSION... 43
-3- I EVIDENCE 1. Introduction and Gordon McCabe [1] This planning appeal has been brought by Gordon McCabe. Mr. McCabe owns the property at 11 High Street in the Town of Truro (also the Town ). His property is a corner lot on High Street and East Queen Street. It consists of approximately two acres. Mr. McCabe has lived on this property for more than 70 years. He has owned it for 58 years and has operated his businesses from there for the last 55 years. Mr. McCabe is in the business of trucking and excavation doing backhoe, fill, and excavation work. His machinery is kept in the back of his property and includes a portable sawmill. Mr. McCabe also owns a woodlot and, therefore, he has logs at the back of his property as well. His land will be referred to as the McCabe property. [2] On the opposite side of High Street is property owned by the Dismas Society ( Society ) at 454 Queen Street ( Society s property ). The Society is a non-profit organization that assists people transitioning from prison into the community. Its lands currently contains a converted dwelling over a hundred years old that is used as a halfway house. [3] The Society s property was zoned Industrial (M1) zone and designated Industrial on the Future Land Use Map. Under the Land Use By-law ( LUB ), the Industrial (M1) zone would permit the Society to build as-of-right a number of uses such as a processing and assembly plant, an office and professional building, or a funeral home [Exhibit M-4, p. 7-3]. It does not permit a residential care facility. Its current half-way house is permitted to operate as a non-conforming use.
- 4 - [4] However, the Society needs a new building to meet the needs of its clients. It would like to house both men and women, but needs a separation between them. At present, its building may only house one gender or another. It would like to help both groups, in particular, being close to the women s prison. [5] The Institutional (P3) Zone permits various uses including residential care facilities, homes for special care, and community homes (p. 8-7). [6] To enable the Society to build a second building on its lands, Council for the Town of Truro ( Council ) approved the Society s Application to rezone its lands from Industrial (M1) zone to Institutional (P3) zone at its meeting on November 3, 2014. The current building will remain and will be used for other Society purposes. [7] Mr. McCabe filed his Notice of Planning Appeal, dated November 20, 2014, with the Nova Scotia Utility and Review Board. The Appeal is brought under the Municipal Government Act, S.N.S. 1989, c.18, as amended ( MGA ). In this Appeal, the Board is to determine whether Council s decision has reasonably carried out the intent of the Town of Truro s Municipal Planning Strategy ( MPS ). [8] Mr. McCabe testified storm waters flow down and across his property, across High Street through the Society s property, and westward down Queen Street. Due to this natural storm water drainage, Mr. McCabe testified his property has never flooded. He provided to the Board pictures of major floods that have occurred over the past 19 years in 1996, 1998, 2003, 2004, 2008, 2009, 2012, 2013, 2014. He stated there have been 11 floods in the area that have caused severe damage to homes and businesses.
- 5 - [9] Mr. McCabe states Council has not reasonably carried out the intent of the following MPS policies, including that rezoning applications must include detailed storm water drainage plans. The relevant sections read: Policy E-4 It shall be a policy of Council to accommodate limited development within the 1:20 and 1:100 where the proposed development can be flood proofed and not contribute to upstream or downstream flooding or result in a change to flood flow patterns. Policy E-5 It shall be a policy of Council to accommodate limited development and alterations of topography within the 1:20 and 1:100 flood plains where it can be demonstrated that the proposal will not contribute to upstream or downstream flooding or result in a change to flood flow patterns. [Exhibit M-3, pp. 9-4 - 9-5] Policy E-26 It shall be a policy of Council to establish the Floodplain (E2) Zone and apply it to areas of the Salmon River Floodplain that are the primary drainage ways for flood waters and to lands in the vicinity of East Queen Street where ice damming has historically caused extensive flooding. Policy E-27 It shall be a policy of Council to maintain and enhance flood dynamics as well as minimize new flood damage to property by prohibiting permanent structural development in the Floodplain (E2) Zone and set out specific requirements in the and Use By-law to regulate topographical alterations. [ibid, p. 9-12] Policy E-33 It shall be a policy of Council to, for lands within the Floodway Fringe (E4) Overlay, apply the regulations and requirements of the underlying zone to any development. Policy E-34 It shall be a policy of Council to permit alterations of topography in the Floodway Fringe (E4) Overlay using a cut and fill procedure prescribed by this strategy and accompanying provisions in the Town of Truro s Land Use By-law. [ibid, p. 9-14] Policy IM-16 It shall be a policy of Council to require the submission of a detailed proposal as part of any rezoning application or amendment application that affects a specific property or properties. Where such a proposal involves dimensional or aesthetic issues, it shall include both a written and a professionally prepared site plan and graphic representations that are drawn to scale. Such graphic proposal must clearly indicate the following; c) the means by which the site is to be serviced by sanitary and storm sewers, water, electrical service and other utilities; [ibid, p. 11-9]
- 6 - Policy IM-17 When considering a rezoning application or other Land Use By-law amendment application that includes a specific development proposal it shall be a policy of Council to have regard for the following matters: d) the adequacy of sewer services, water services, waste management services and storm water management services; Policy IM-18 While a rezoning application must be accompanied by a clear development proposal, there is no legal agreement which requires a landowner to conform to the proposal as presented. It shall be a policy of Council, therefore, to take into account the other potential development scenarios that may be permitted as a result of a proposed zone change when evaluating a rezoning application. [ibid, p. 11-10 - 11-11] [10] Mr. McCabe also cites the preamble to, but not the Policy of, IM-10: 11.4.5 Future Land Use Map Amendment There are circumstances under which a rezoning may not be considered at all because it would clearly contradict or ignore a policy or policies in the strategy. For such a rezoning to occur, the Future Land Use Map must also be amended either before the rezoning or concurrently. A future land use map amendment is subject to Policies IM-8 and IM-9 and Council must be satisfied that there is a demonstrated need to reevaluate the future land use map. Policy IM-10 It shall be a policy of Council to, subject to Policies IM-8 and IM-9, consider amending the Future Land Use Map by changing a parcel s future land use designation in order to permit a proposed rezoning. The proposed map amendment and rezoning may be considered concurrently. [Exhibit M-3, p. 11-6] [11] The corresponding LUB includes various flood proofing provisions including cut and fill requirements. Amongst them LUB 9.3.8 reads: 9.3.8 Flood Proofing Requirement a) All buildings in the Floodway (E3) Overlay or Floodway Fringe (E4) Overlay must be flood proofed in accordance with the following requirements: i) the minimum opening elevation of any main building shall be 0.09 m (3.5 inches) above the established 1:100 year flood elevation indicated on mapping prepared under the Canada - Nova Scotia Flood Damage Reduction Program; ii) fill shall be placed around the perimeter of the building to a height equal to the minimum opening elevation for a distance of 3 m (10 ft) from the building; iii) beyond 3 m (10 ft), the fill shall slope down to existing grade at a 1:1 slope; and iv) at the finished foundation stage of construction, the property owner shall provide the Development Officer with a locational certificate prepared by a Professional Surveyor indicating, in addition to the location of the buildings or structures on the lot, the minimum opening elevation.
- 7 - b) Notwithstanding (b)(ii) above, a slope in excess of 1:1 may be permitted where the backfilling has been designed by a Professional Engineer. c) Flood proofing shall not directly interfere with storm water drainage. [Exhibit M-4, p. 9-11] [12] Rather than have these detailed storm water management plans submitted with the application form, Council s decision to rezone the property would not take effect until the Public Works Department approved storm water mitigation procedures to alleviate potential flooding issues. Its decision reads: On motion of Deputy Mayor D. Joseph and Councillor R. Tynes, the application for rezoning of 454 Queen Street from the Industrial M1 Zone to the Industrial P3 Zone was approved, subject to storm water mitigation procedures to alleviate any potential flooding issues, to be approved by the Public Work s Department. [Exhibit M-2, p. 3-3] [13] In essence, Mr. McCabe testified he is concerned that if the development is permitted to proceed, the natural storm water drainage will be lost. His lands will flood and he will lose everything: his business and his home. He stated in his submissions to the Board dated January 7, 2015: With the severe weather changes and the further developments on the south side of Truro, the storm waters will increase drastically and if the proposed development is allowed to go forward I stand to [lose] everything I own, my business and my homes, as the development will take away the natural storm water drainage ability with no where for the water to go. I was not affected in the past because of this natural storm water drainage system, which is in jeopardy of being destroyed if this rezoning is allowed to be upheld. [Exhibit M-6, p. 1] [14] Mr. McCabe stated he was concerned no storm water management plans were presented with the application form. With his experience in excavation, infill, and backhoe work, he does not believe the Society can develop another large building on this lot without taking away the lands current ability to absorb the same amount of storm water. [15] The lands of both McCabe and the Society are located in the secondary flood areas of the Salmon River which is north of Queen Street. The Policies of the MPS
- 8 - are based on a joint study on flood risks in the Truro and surrounding area called the 1988 Canada Nova Scotia Flood Damage Reduction Program. From it a flood risk map was developed and later updated in 1988 by EDM Environmental Design and Management Ltd. ( 1988 Flood Reduction Map ) [Exhibit M-15]. The map shows the low lying areas around the Salmon River that flood one in 20 years ( 1:20 ) and areas at higher elevations which may flood one in every 100 years ( 1:100 ). The latter is at an elevation of 15.2 metres above sea level. This area is a Floodway Fringe (E4) Overlay. [16] The lands of the Society and parts of McCabe s lands are in the 1:100 flood area. Mr. McCabe s home, however, is not within the flood area as it sits at an elevation of 15.9 metres above sea level. This means his house is 700 millimetres, or 28 inches, above the one in a hundred year flood elevation. [17] The 1988 Flood Reduction Map shows the lower portion of Mr. McCabe s property, near the corner of High Street and East Queen Street, has an elevation of 14.6 metres above sea level. Waters flow from his lands across High Street and into the Society s property, which is at the lower elevation of 14.3 metres. [18] Mr. McCabe confirmed the water which enters his land are not flood waters from the Salmon River, but rather storm water from developments; which he says are from the County and Town at higher elevations above his land. [19] The hearing of the Appeal on its merits commenced in Truro on January 26, 2015. Mr. McCabe testified to his concerns by first reading into the record his written submissions [Exhibit M-6]. He also reviewed each MPS Policy and LUB which addressed his issues relating to storm water management, and the requirement of the plans to be part of the rezoning Application.
- 9 - [20] Mr. Richard asked Mr. McCabe why Council s decision, which requires the plans to be submitted to the Public Works Department, was not satisfactory to him. Mr. McCabe explained he would not have the ability to review those plans to satisfy himself that, in fact, they would sufficiently address the storm water management issue. If they did not, he would have no access to this appeal process. When speaking to the review of those plans, he stated he would give it to someone with higher capabilities, an engineer. [21] Various follow-up questions led to the parties having an opportunity to speak amongst themselves and they eventually reached an agreement. 2. Adjournment [22] The parties agreed they would request the Board to adjourn the Appeal without day. The Society would prepare and provide storm water management plans to the Town s engineer. Once the Town s engineer was satisfied they met the requirements of the MPS and LUB, they would be provided to Mr. McCabe. Mr. McCabe would have 30 days to have an engineer of his choice review the plans and decide whether, in the opinion of Mr. McCabe and his engineer, the plans met the MPS and LUB. Mr. McCabe could also provide alternate plans or submissions for consideration by the Town s engineer. After receiving the information from Mr. McCabe and his engineer, the Town s engineer would have 14 days to make a final decision on whether the storm water management plans were satisfactory. [23] If Mr. McCabe and his engineer were satisfied with the plans, Mr. McCabe would withdraw his appeal. If Mr. McCabe and his engineer were not satisfied and the Town s engineer approved the plans, then Mr. McCabe s Appeal would be continue.
- 10 - [24] The Board accepted the parties agreement which it outlined in its letter to the parties of January 28, 2015. The process proceeded as noted above. Mr. McCabe and his engineer did not agree with the plans submitted by the Society s engineer. The Town s engineer gave final approval of the plans on April 9, 2015. [25] On April 27, 2015, the Board was advised that Mr. McCabe would like to continue to proceed with his Appeal. In its letter of April 28, 2015, the Board set the dates for the filing all remaining documents and the hearing of the Appeal which included, for example, the experts reports, qualification statements and witness lists. [26] The hearing resumed and was heard in Truro on June 2 and 3, 2015. [27] When the hearing resumed, the evidence focused on the engineering experts. Kirby Thompson, with MEC Engineering & Construction Services Limited, was retained by the Society. Mr. Thompson prepared four engineered certified plans for the Society. They showed the Existing Conditions (150103-01), Proposed Conditions #1 (02), Water Ponding Area (03), and Proposed Conditions #2 (04). Individually or collectively they shall be referred to as the Plans. Mr. Thompson opined in his letter to the Society dated February 20, 2015, [Exhibit M-7] that with his engineered ponded storage area on the Society s lands, he believes the development of the new building as shown on Plan 02 will not have any adverse impact on other properties, meaning the Society s property would continue to absorb the same amount of storm water after the development as it does presently. [28] Gordon Eaton, a retired engineer with the Municipality of the County of Colchester ( County ) was retained by Mr. McCabe and opined the Plans do not
- 11 - reasonably carry out the MPS, or meet the requirements of the LUB. His expert report is dated April 2, 2015, [Exhibit M-9]. [29] After considering Mr. Eaton s information, the Plans were approved by Andrew MacKinnon, the Town s engineer on April 9, 2015, in which he stated: In closing, the submission by Gordon K. Eaton, PEng does not supply any engineering evidence to warrant not approving MEC's design and therefore MEC's Design is approved and accepted as meeting the requirements of the Town of Truro Land Use By-law. [Exhibit M-10, p. 2] Mr. MacKinnon prepared an expert Report for the Appeal dated April 9, 2015 [Exhibit M- 10]. He addressed each issue raised by Mr. Eaton and concurred with Mr. Thompson s opinion. 3. Gordon Eaton [30] Mr. Eaton graduated in 1975 and after his two years of internship became a registered professional engineer. He worked for the County for two years and then the Provincial government. He managed provincial buildings worth approximately $450 million, first for the Truro area, the County, and then for northern Nova Scotia. In his work he was familiar with building plans and proposals. [31] Mr. Eaton also volunteered on the Planning Advisory Committee for the County for 18 years and was appointed as one of the County s representatives on the joint planning advisory committee for the flood risk planning. This meant dealing with what today is the cut and fills requirements. The Board understands these to be the specific requirements in the LUB. The committee was formed in 1988 and disbanded in April of 2001.
- 12 - [32] Mr. Eaton s qualification statement was not opposed and, therefore, he was qualified to give opinion evidence as follows: Mr. Eaton is a qualified Professional Engineer capable of giving expert opinion evidence on building plans and land use planning matters including the intent of the flood proofing standards developed by the Joint Planning Advisory Committee on Flood Risk Planning - Town of Truro and Municipality of Colchester County. [Exhibit M-14] [33] Mr. Eaton s first concern was the building does not meet the setbacks for the front, rear or flanking yards. The LUB requires a minimum of 12 metres from each of the property lines, whereas the setbacks for the proposed building are 9.3, 9.6 and 9.2 metres, respectively. Mr. Eaton argued the hearing should be terminated as the building cannot be built. Consequently, there is no need to discuss it further. In essence, this was a preliminary motion requesting the Board to grant the Appeal summarily. Both Mr. Richard and Mr. Cotterill disagreed with Mr. Eaton s interpretation of the LUB. The Board did not grant the motion and decided the hearing would continue. [34] Mr. Eaton testified the proposal was contrary to MPS Policy E-6, which states: Policy E-6 It shall be a policy of Council to not permit the establishment of institutional land uses, such as hospitals, senior citizen housing, special care facilities, and other activities that have a prevailing safety consideration in areas that are exposed to flood risk. [Exhibit M-3, p 9-5] [35] Mr. Eaton stated the proposed building is like a special care facility. It will house people who will have difficulty exiting the building in a flood because they are adverse to authority. Also the facility includes a wheelchair accessible room. Under Policy E-6, it cannot be built on the 1:100 flood plains.
- 13 - [36] Mr. Eaton stated the motion approved by Council speaks of rezoning the lands from Industrial M-1 zone to an Industrial P-3 zone. There is no Industrial P-3 zone. The Board accepts this to be a typographical error and will not address it further. [37] Mr. Eaton spoke about the importance of the 3-meter berm around a building when flood proofing a property. The berm allows emergency personnel safe passage around the structure in a flooding condition to assist in evacuating the occupants. Mr. Eaton stated the Town did it incorrectly in its LUB 9.3.8 by dividing it into two and three components and did not properly correct its notwithstanding clause, which also has a typographical error. [38] Mr. Eaton s major concern is that in his interpretation of the LUB, 9.3.8 requires every development to build a 3 metre berm around the structure. If such a berm is built on this property, it cannot be flood-proofed without interfering with storm water drainage. Therefore, in his opinion it cannot be built. He states as follows: Clause (c) of that thing also states that flood proofing shall not directly interfere with storm water drainage. Plain and simple, if a proposed building cannot be flood proofed without interfering with storm water drainage or required storm water retention, it cannot be built. That s my interpretation. That if you re going to interfere with the storm water drainage and it can t be mitigated, then you shouldn t be build... because you have the berm, then you shouldn t be building the building. Okay. [Transcript, p. 26] [39] Mr. Eaton also stated the Plans do not accurately show the current existing ground elevations of the lands. He stated that as the measurements were taken in January of 2015, these lands may have been frozen. The difference between elevated frozen lands and those that are not frozen would result in an additional 52 cubic metres of water that needs to be stored onsite. In his opinion, it does not appear that Mr. Thompson took frost into consideration.
- 14 - [40] Another significant problem, in Mr. Eaton s opinion, is that the proposed structure will block, or at least partially block, the flow of water from Mr. McCabe s property to the asphalt on Queen Street. [41] Mr. Eaton also stated there is not enough information provided to be able to calculate the cross-section of the swale in any location. He described swale as the grassy low point that allows water to flow through the area. Consequently, in his view, there is no proof that Mr. Thompson s Plans will provide an equal or greater amount of flowage of water than what is there at the present time. He stated as follows: And you can see that there s, you know, Mr. Thompson on, I guess, 02, the drawing that you have in front of you, has shown how the water is going to come across from Mr. McCabe s property and go both ways around the Dismas house. There is no proof that what Mr. Thompson has done will provide for an equal or greater amount of flowage of water than was there at the present time, that is there at the present time. [Transcript, p. 28] [42] Furthermore, in Mr. Eaton s opinion, it is impossible to properly review this point without additional information. If there was additional information, it was not provided to his client. If there was not additional information, he does not see how Mr. MacKinnon could have approved Mr. Thompson s calculations or information. [43] Mr. Eaton described that when he would review proposed building plans he would decide: (1) whether they were believable; and (2) will they work in the long-term? [44] In answering these questions in relation to these Plans, in his opinion, they do not meet these two criteria because: 1) There is a berm around the large tree and it shows the water flowing right through the high point of the berm;
- 15-2) Gravel will get pushed onto the lawn by a snowplough trying to get to the garbage containers which, over five or six years, will build up in that area and block the flow of water; 3) The first front step is a tenth of a metre below the grade and on a thaw day in January will result in four inches of water. Over time the Society will look to replace those steps which will further block the flow of water; 4) There is an approximate one inch in 90 feet of grade over the parking lot which is insufficient to allow water to run; and 5) Ploughing patterns will likely put all of the snow in the swale and block the area from taking the water in the winter time. [45] On cross-examination by Mr. Richard, Mr. Eaton further explained that although his training was in industrial engineering, he mainly worked as a civil engineer. He reviewed design plans for renovations of buildings to ensure, mainly, that they met the building code standards. New buildings were done through private consultants and built through the Halifax office, although the money flowed through his office. It was unclear as to what environmental engineering he actually did as, in his response to this question, he spoke about new buildings and seeing plans such as 02. However, in his previous statement he said that the new buildings were done through the Halifax office, not his. When asked about creating or designing plans himself, he said yes, and then he commented on critiquing a lot of existing plans, such as for the ramp at the old Teachers College.
- 16 - [46] Mr. Eaton confirmed that the property is not in a flood risk area: Q. Is that in a flood risk area? A. No, it s not in a flood risk area, no. [Transcript, p. 40] [47] Mr. Eaton clarified he is not suggesting that Mr. Thompson s measurements are not accurate. They are accurate for the time of the year that he took them. His concern is that there could have been frost, which does not appear to have been taken into consideration. However, Mr. Eaton confirmed that did not take any measurements, do any topographical study, or provide any other data of his own to contradict Mr. Thompson s work. [48] It was Mr. Eaton s opinion that pursuant to Policy 9.3.8 which requires flood-proofing with a 3 metres berm around a building neither of the proposals in the Plans can be built (02 or 04). [49] Mr. Eaton reviewed the definitions in the LUB for a Home for special care and Residential care facility as follows: Home for Special Care means a building wherein nursing care or room and board are provided to individuals incapacitated in some manner for medical reasons but does not include a hospital. Homes for special care shall not include the uses of a tourist establishment. [Exhibit M-4, p. 1-8] Residential Care Facility means a community-based group living arrangement, in a single housekeeping unit, for eight (8) or more individuals, exclusive of staff and/or receiving family, with social, legal, emotional, mental and/or physical handicaps or problems, that is developed for the well being of its residents through self-help, professional care, guidance and supervision unavailable in the resident s own family, an institution or in an independent living situation. A Residential Care Facility is licensed, funded or approved by the Province of Nova Scotia. [ibid, p. 1-13] [50] Mr. Eaton maintained that Policy E-6 applies to the Society. He states it does because the intent of the policies was concerned with the ability to evacuate people and those in a half-way house may have a problem with authority and may not evacuate
- 17 - quickly enough in a flood type situation. In his view, staff not informing Council of Policy E-6 was extremely biased and showed that the Town wanted to put this development through at all cost. He stated as follows: I guess if I could comment on this, I would comment on this in saying that when I look at what planning did to define or to support this property, it appears that it is extremely biased in that this policy was not brought up, at least partially, to deflect all the support that they have put forth on this property. And it shows in somewhat a bias that the Town is wanting to put this through at all cost. [Transcript, p. 49] [51] Under questions from Mr. Cotterill, Mr. Eaton agreed that 90 percent of the water flowed in the directions noted by Mr. Thompson in both his Plans of the existing conditions and those for the proposed building. [52] Mr. Eaton also confirmed the property owned by the Society is approximately a half a hectare, as compared to the 1:100 floodplain, which is extremely large. It flows from the Salmon River in Truro to the Bay of Fundy. Mr. Cotterill suggested its one property and its distribution of a few shovels of dirt around the building is like the tip of a ballpoint pen in this extremely large floodplain. Mr. Eaton agreed it was small. Q. And this property that we re looking at, our property at 454 Queen Street, which is about a half a hectare, you know, something like that. A. Yeah. Q. It s situated in the one to 100 hundred floodplain. Is that what we re talking about? A. Yes. Q. And this one to 100 floodplain is fairly large? A. Yes, it is, yeah. Q. Huge? A. It s big, yeah. Q. Am I correct in my thinking that we re talking about... if this room were the one to 100 floodplain, that this property that we re looking at would be about the size of the tip of that ballpoint pen? A. Well, I m not sure. I m not sure.
- 18 - Q. This one to 100 floodplain is huge. It goes all the way from Salmon River to Truro to the Bay of Fundy. A. Yeah. Q. And we re talking about a little tiny property located on the corner of Queen Street and High Street. A. Yeah. Q. And you re talking about a major flood and we re talking about moving a few shovelfuls of dirt around here. A. We weren t even talking a major flood when Eddy Group flooded. It was a good rain but there were a lot of areas that normally flood in the spring that didn t flood at that area, at that point in time. And a lot of this, I guess, has to do with topography, you know. And every flood is different. Q. I just want to get clear in my own mind the size of this area that we re talking about compared to this one to 100 floodplain. A. It s small. [Transcript, pp. 53-55] [53] Mr. Eaton said the parking lot would actually enhance the flow of water because it is asphalt which provides a better flow than grass and a faster flow of water (Transcript, p. 70). [54] Mr. Eaton did not know if adding on another 22 cubic metres for the roof was appropriate under the circumstances. [55] Mr. Eaton also stated that in his experience of dealing with new proposals, he did not receive engineering information on storm water management or flood plains. [56] Mr. Eaton also stated that both the building and the berm in a major flood would cause a certain amount of restriction in the flow of the water. Consequently, they will cause the water to back up and the level to rise slightly behind or before it gets to the Society s proposed building (p. 72).
- 19-4. Richard Cotterill [57] Richard Cotterill testified that he is President of the Society. It is a non-profit organization with a volunteer board. It has been operating for 30 years at its property on Queen Street. Mr. Cotterill has been involved with the organization for the last four years. [58] The Society operates a half-way house on its property. The building is approximately 100 years old. Its paid staff assist those attending at the house seven days a week 24 hours a day. Its goal is to assist people transitioning from prison into the community. [59] The Society at the present time can house only women or only men as they do not have a separation in the building. They are interested in building a new facility on this site in order to be able to help both men and women. 5. Kirby Thompson [60] Kirby Thompson testified that after graduating from CEC in 1972, he did topical survey work in the summers while he attended university; receiving his Bachelor of Science (diploma in Engineering in 1976) and his Bachelor of Engineering from Nova Scotia Technical College (Civil Engineering in 1978). He is a professional member of the Associations of Professional Engineers in all Atlantic Provinces and Ontario. [61] He testified the 1982 Valentine s Day flood in Truro was the impetus for most of the flood mapping in the area. He surveyed sections of the Salmon River which he described in detail. [62] Upon receiving his engineering degree, Mr. Thompson worked for both engineering and excavating contractors. He has done civil engineering work in the four
- 20 - Atlantic Provinces, water management work, and flood plain work in Nova Scotia, New Brunswick and Prince Edward Island. His company includes seven other people including a survey engineer, and field and technical workers. [63] No one objected to Mr. Thompson s qualification statement which was approved by the Board as follows: Qualified as an expert in Civil Engineering and Environmental and Municipal Design, able to give evidence as to the appropriate measures that can be implemented, and their relative feasibility, to mitigate the effects of flood water and/or storm water inundation relevant to the subject properties; and analyse the effect and effectiveness of said measures. [Exhibit M-13, p. 5] [64] Mr. Thompson explained that he was retained by the Society to: Locate the building in accordance with the Town's floodplain requirements and to provide some advice on how to manage the storm water and mitigate any anticipated adverse effects that might result to storm water management and floodplain management. [Transcript June 2, 2015, p. 98] [65] Mr. Thompson testified his Plans are storm water management plans certified by an engineer. From an environmental standpoint, the whole purpose of the Plans is to not create an adverse effect on anyone s property. [66] In creating the Plans, his surveyors took measurements from 400 points on the properties using provincial monuments. His staff would shovel to the markers or to the original ground. There was no frost at these locations. Consequently, the concern raised by Mr. Eaton did not exist on the day these measurements were taken. [67] The survey work was done by equipment called a robotic total station. On the rod is a receiver. Wherever the rod is positioned a servomotor moves around, up and down, and takes the shots. This is far different than the equipment available when he first started to do surveys in flood areas back in 1972. In the past, it would be very difficult to get two people to place the rod in exactly the same place. Today, because of
- 21 - the coordinates taken by the robotic total station, one is able to go back and replicate the exact spot the measurements were taken. [68] Mr. Thompson stated he considers the relative range of accuracy of his topographic survey to be 30 millimetres or less than one inch. He says this is extremely accurate. A surveyor would only do a higher degree of accuracy, if for example, one were building a bridge across from here to Prince Edward Island. However, having 400 shots for this small lot was more than sufficient to ensure the accuracy of the information and designs. [69] Mr. Thompson testified that to dig down to the original ground to find grass is probably twice as much work. Normally only one person is required to use the robotic total station. In this case, they needed two people: one person to dig the holes, the other to take the shots. [70] Prior to attending at the site to take these measurements, they would decide where there should be a groupings of points. For example, they would group points for the edges of the asphalt driveway, the proposed building and the existing building. [71] The elevation measurements are then entered into computer software, of which he has three different types. The software interpolates between the points and produces the contours maps. [72] Once Mr. Thompson s office has produced the contour maps, they are compared to the map provided by the Town, being the 1988 Flood Reduction Map described above. This map has the best measurements available to him. The measurements of that map maybe slightly different than his because as they were
- 22 - developed from an aerial photograph as opposed to the technique he has used on the ground. In a review of the two maps, he was satisfied the numbers matched up well. [73] Mr. Thompson stated the 1988 Flood Reduction Map shows that waters will rise in the 1:100 year flood to 15.2 metres. The entire area, other than Mr. McCabe s home and higher elevations in the back of his lot where his machinery is, sit well above that limit at 15.9 metres. They are, therefore, 700 millimetres or 28 inches higher than the rest of the area. However, almost all of the lands in this area are at or below 15.2 metres. [74] The computer program he uses creates a 3-D model of the entire site. From this contour map, they are able to create the Existing Conditions Plan which shows what they found on the lands as they currently exist. From the contour maps they plot out how the water currently flows in the 1:100 year flood. He described in detail how the water currently flows from Mr. McCabe s property and through a low point on High Street across and into the Society s property. [75] In storm water management designs, one of the things he looks for is the width of floodway on High Street where the waters exit Mr. McCabe s property and enter the Society s. They maintain that width so the water flows across High Street the same as it does now. [76] The other aspect of storm water management is to look at where water may pond and hold on the property. This is often called a facilitation pond. Mr. Thompson ensures that the same volume of water is ponded on the Society s lands when the construction is finished.
- 23 - [77] Mr. Thompson determined the amount of water which would currently pond on the Society s property in a 1:100 flood is 158 cubic metres of water. The next thing he considered was the roof on the building as one is substituting an asphalt surface for grass. Mr. Thompson explained how he considers the amount of water that will run off the roof which needs to be included in the ponded area. Environment Canada requires a building design to specifically address the 15 minute rainfall which it maps. In Nova Scotia, generally, a peak rainfall will produce approximately 25 millimetres of rain in 15 minutes and then tapers off. Consequently, roof drains or gutters have to be designed to accommodate that amount of water. He commented some municipalities require flat roofs to catch some and store some of the rain water. [78] In this case, the building design has not been fully completed to know whether the roof design on this property will capture any of the storm water. As a result, Mr. Thompson assumed none of the rain would be stored on the roof and all of the water coming off the roof must be stored on the ground. Consequently, they added 22 cubic metres of water to the required ponding capacity of the Society s lands. [79] With these two figures, Mr. Thompson determined the lands after construction must be capable of storing 180 cubic metres of water. [80] After calculating the amount of storm water which must be managed, the building was placed onto the map. The cuts and fills as described in the LUB were done to ensure the same volume of water will be ponded and held by the Society s property pre- and post-construction. [81] Mr. Thompson s storm water management design in Proposed Conditions #1 holds 180.68 cubic metres of water in just that portion of the Society s lands around
- 24 - the proposed building. It places a berm at the front with a reinforced concrete foundation walls with a maximum exposure of 1 metre at the back. In the Proposed Conditions #2, with a 3 metre berm around the building, the ponding area only holds 126 cubic metres of water. Therefore, Mr. Thompson recommended the former design. [82] To ensure the cut and fill design of the storm water waste management are constructed in accordance with his engineering instructions, Mr. Thompson states he surveys the lands after construction is completed. In relation to his retainer with the Society, he stated those discussions have not occurred yet, but that has always been his practice in the past. [83] Mr. Thompson has been doing storm water management since 1988. He testified that in all of his designs, he always looks to ensure the construction does not cause an increase in downstream water or any problems for other properties: I wouldn't want to do anything anywhere that would cause water to raise downstream and cause problems on other properties. I've worked very hard in my projects to make sure this doesn't happen. In this particular place I do think we have a good design. I do not think that there's an average effect to fear from this. I believe that we have more than adequate width of flow around the building, the same that's provided on High Street at the same level, and quite a bit more than perhaps we've done in a lot of these projects in the past. [Transcript, June 2, 2015, p. 117] [84] As far as Mr. Thompson is aware, there is no better science in producing a storm water waste management than what he has done. Mr. Thompson stated he has never in his entire lifetime had anyone argue the accuracy of his survey work. If anyone is concerned with his information, they are welcome to do their own survey. [85] In relation to the berm, Mr. Thompson stated those are usually required in instances where the building is to have a basement. The berm is necessary to protect the basement from flooding. In this case, the building does not have a basement. It will be built on a concrete slab. The slab will be built on concrete walls which are superior, more
- 25 - secure, and better able to resist the forces of water and ice. They are used for flood situations and storm water management designs. [86] Mr. Thompson stated that since 1972, there has never been a 1:100 storm. In making that statement, those are from his observations. To the best of his knowledge, water elevation statistics are not kept or monitored. [87] In terms of the building, with his design for the property, obstructing the flow of water or creating any backup for Mr. McCabe, Mr. Thompson stated it is designed to replicate the conditions that currently exist and should not adversely affect Mr. McCabe s property in any way. Again, he emphasized Mr. McCabe s home is 28 inches, 700 millimetres above, the 1:100 flood level. He stated at page 125 of the Transcript: Q. What about the business of the... of Mr. McCabe's... what sounded like sort of his main point in questioning your client, that building a structure there is going to obstruct the water, create a backup, and cause flooding that heretofore he has not suffered? A. Well, we've tried to replicate the conditions that are there now and, in particular, the width that it would flow across High Street. So I'd say that as long as you have the same width as you had before you started, and a place for the water to go, it shouldn't back up into Mr. McCabe's. As discussed earlier, Mr. McCabe's is some 700 millimeters above this location. The crossing at High Street is 15. He's 15 9. There's a lot of upstream area (to be carried in?) Mr. McCabe's property, and he's receiving water from others, which has to flow through and flow through this property and out to the river. Although I do understand there has been some work done above Mr. McCabe's and in the area to try to correct some conditions from the past, poor culverts or poorly maintained culverts and some other things. 6. Andrew MacKinnon [88] Mr. MacKinnon is the current Director of Public Works for the Town of Truro, and has held this position for 7-8 years. He began working with the Town in 1981 doing surveying work for six summers while he attended school. He attended the Nova Scotia Survey Institute, taking property mapping for one year and land surveying for another. The latter included topographical mapping where one learns all of the intricacies of the surveying equipment, as well as plans and accuracies.
- 26 - [89] He attended and received a Bachelor of Science in Survey Engineering at UNB. After completing his university education, Mr. MacKinnon began full-time work with the Town in 1987. For approximately the first ten years, he was doing all of the Town s surveying, plans, and layouts for all of the construction. Since then he has worked progressively up into his current position. [90] With no objections, Mr. MacKinnon was qualified as an expert: Qualified as an expert in Municipal Engineering, including Storm water and Waste Water Management and Flood Damage Reduction, able to give evidence as to the effectiveness and viability of the storm water management and flood damage reduction proposals being advanced with respect to the subject development in this Appeal. [Exhibit M-12, p. 2] [91] Mr. MacKinnon s function in a rezoning application is to do an initial quick review where the applicant will give him a general description of the proposal on the site and ask if there are any concerns. In this case, Mr. MacKinnon was concerned about the storm water management because he knew the lands contained water and are in the floodplains. He expressed his concerns and that is why it is mentioned in the Final Staff Report to Council dated October 28, 2014 [Exhibit M-2, Tab 4, p. 4-3]. [92] Mr. MacKinnon explained the difference between LUB 9.3.8 which requires flood proofing in the 1:100 flood and storm water management. For the latter the Town is looking for the following a design where the pre-and post-construction flows of storm water are the same. In questions by Mr. Richard he stated: Q. Yes. What is your view as the director of the department as to the... the... sorry, the fundamental purposes of Section 9.3.8? A. Well, the fundamental purposes are for flood proofing of development on the floodplain in that one in a hundred zone so they take it up to a certain elevation and flood proofed. Q. Now how does flood proofing relate to stormwater management in that context? A. It doesn t so much to... It s more of just what it is, flood proofing. Stormwater management is more of an upstream and equating your flows... your pre-
- 27 - development/post-development flows. In this case, I was asked to look at this so that the stormwaters were dealt with appropriately and by Council so that it met the flood proof... floodplain by-law and also the stormwater issues were dealt with because of the concerns of the water going through that site, which is the concern that I had had. [Transcript, June 2, 2015, pp. 185-186] [93] Mr. MacKinnon testified he has reviewed Mr. Thompson s storm water management plans in the past, stating Mr. Thompson is the person people retain for any of the developments in the floodplains. He knows of Mr. Thompson s extensive experience in doing topographical surveys and site designs. [94] Mr. MacKinnon testified that, normally, the storm water management plans are provided at the development permit stage. He becomes involved as the Director in issues like this, where the plans have been requested before that stage. [95] He testified to his review of the Plans of Mr. Thompson. He agreed with Mr. Eaton that the first thing you do is ask, does it make sense, and is it doable. [96] As a very experienced surveyor, Mr. MacKinnon testified he was able to review the drawings and understand the three dimensional review of the Plans based on the contours. He is able to see the water flows and elevations prior to the construction. He also knows what has been done to ensure the same amount of water crosses through the property at the same flows after the development is completed. [97] Mr. MacKinnon also testified floods in the area, generally, reach a certain elevation. However, it depends on what type of flood waters are being referenced. Mr. MacKinnon testified the Town has been doing storm water management with all of their developments since the late 1990s. For the County, it is a relatively new concept. He stated the floods on East Queen Street are very different from the storm water flooding from County developments:
- 28 - A. And typically our floods always seem to reach to a certain elevation. But it depends on what kind of flood. If it s an ice-jam flood on East Queen Street then the water backs into here, that s completely different than a flood from all of the irresponsible development in the County that s been done without any storm water management that s been sending heavy flows down to High Street from Princeton Heights and Ice Pond Drive and all those subdivisions that were done without any storm water management. Q. They weren t? A. No, the County has never done stormwater management that I m aware of. Q. Yeah. A. Unless the developer has done it on his own. That s where the stormwaters come from. [Transcript, pp. 197-198] [98] Mr. MacKinnon said the amount of water this building displaces on this very large floodplain is a like a needle in a haystack. [99] Mr. MacKinnon testified there are many ways of flood proofing a property and that a berm is not the only way. Developers have dug reserve tanks or they could make an impermeable surface. There are many options they could consider. Furthermore, Mr. MacKinnon states that Section 9.3.8 specifically states a berm is not necessary where the backfilling has been designed by a Professional Engineer. [100] Mr. MacKinnon explained engineering documents For Information Only are to ensure a contractor does not accidentally use them for construction purposes. Those will be done later when all of the different aspects of the building design, for example the roof, are finished. The drawings used by the contractor for the construction will read For Construction. When the engineer, for example Mr. Thomson, returns and resurveys the lands after the construction to confirm they have been done in accordance with this storm water management designs, another survey plan will be produced and stamped For Record Information. As a matter of course, the Town receives the latter upon completion of the construction.