FURTHER THOUGHTS ON THE OMB/ HUNDER DECISION

I've gone back over my postings of last September and October regarding the hearings dealing with the proposed Hunder Pit. A few things come to mind. Firstly the lawyer for the Conestogo Winterbourne Residents Association made an express point early in the hearings that his client was not looking for better terms and conditions, they were looking to stop the pit cold. Fair enough and not too surprising. However at the end of the hearing somewhat to my surprise he suggested to the Chair that if the pit were approved, his clients would really like the pit not to extend across Hunsberger Rd.. He and his clients felt that these extra phases would really have the worst impacts for the residents. Again fair enough in that comprimise is often necessary in the real world. Nevertheless I believed then and now that Mr. Paton was a realist and he could clearly see which way things were going.

There was a shocking development in regards to the traffic expert who testified on behalf of the Township. This gentleman was very clear in his testimony that the proposed new gravel truck traffic would negatively impact an already problematic traffic intersection at Crowsfoot Corners. He gave his testimony both factual and opinion, confidently and clearly. Then you could have heard a pin drop after he answered the final question. The question was therefore would you recommend against the proposed Hunder gravel pit being approved. His reply "No". I felt then and now that this was the low point in the respondents' case against this pit being approved.

My heart and ethical part of my brain started unequivocally on the side of all the opponents to this proposed gravel pit. During the course of the hearing two things happened. One I disciplined myself to focus on the evidence being given and the appropriate weight it should receive in light of the Aggregate Resources Act (ARA), the Provincial Policy Statement (PPS) and Woolwich Township's Official Plan (OP). In terms of ethics, right and wrong I would rate those three documents as the OP first and the ARA last. Unfortunately it appeared to me that all parties agreed that in legal terms the ranking was the complete reverse. The ARA is the overiding, penultimate legislation. The municipal Official Plan (OP) while relevant nevertheless carrys the least weight. Based upon this I believe that the Hunder Pit position won the hearing.

The second thing that happened was that I engaged in numerous conversations with the applicant, Bob Hunsberger. I started the conversations by firmly putting my foot in my mouth and taking a strong anti gravel position on the very first day with him, not knowing he was the applicant. Well obviously he was not very impressed but nevertheless held his emotions in check while advising me that I was dead wrong. Discussions ensued which turned out to be very frank from both parties. I won't presume to suggest that I persuaded him to shift his position at all but I will admit that he sucessfully persuaded me that his position not only had merit but that he was a firm believer in following the laws of the land and that was both the proper and moral course. In other words he believed that all applicable legislation, rules and policies were 100% favouring what he wanted to do. He also felt that he had bent over backwards, well above and beyond the minimum requirements, to mitigate adverse and unacceptable impacts to his neighbours. I believe that indeed Mr. Hunsberger did meet all legal requirements of him plus more. He is concerned about his neighbours as well as of himself and his family.

Where does this leave us? In my opinion as stated six months ago here in the Advocate I felt that the pit would be approved, albeit with three or four very strong conditions that would not please the applicant. The current reality is that the proposed gravel pit is denied. IF the applicant Mr. Hunsberger decides to appeal this OMB Decision, I believe that he has numerous very strong legal grounds to do so. Notice that I am differentiating the legal grounds versus the moral grounds. Ultimately I still believe that this pit should not be located where currently proposed. However I also believe that the applicant is in the legal right. For me this conundrum neither is surprising nor does it shock my sensibilities. One practical solution, other than years of financial drain, stress and making the lawyers wealthy, is negotiation. All parties need to seek a solution which may include no gravel pit but does include a recognition that the applicant fairly relied on the laws of the land (as crappy as those laws may be in my opinion) and he also relied upon advice from both private and governmental sources advising him that he was in the right. Thus he has spent huge sums of money persuing what he believed were his rights. The alternative of court action may be far worse for the C-W residents.