Link to Inside Ottawa Valley Desmond Devoy "Legal ‘ping pong’ over Tay Valley’s Blueberry Creek ‘school’ continues" August 17th, 2018

https://www.insideottawavalley.com/news/legal-ping-pong-over-tay-valleys-blueberry-creek-school-continues/article_f142617f-6da2-5fff-aed8-b620b8a7a306.html

Supporters of the Blueberry Creek Forest School and Nature Centre were in attendance for a public meeting in Glen Tay on Aug. 14 about zoning changes that they felt would impede their ability to continue to operate.

In an online statement published on their Facebook page on Aug. 13, the school’s founder, Robyn Mulcahy, wife of Lanark-Frontenac-Kingston MP Scott Reid, wrote that a proposed comprehensive zoning bylaw amendment, which might have changed the definition of what constitutes a school, meant “we would meet the vastly expanded definition of ‘school.’ Schools are not permitted in a floodplain,” and her facility is within the Blueberry Creek flood plain area.

Tay Valley Township retained the services of Steve Pentz of the Novatech land-use planning firm, to deal with the amendments, and he made a presentation in the council chambers that evening, according to an email exchange between this newspaper and Larry Donaldson, the township’s chief administrative officer, dated Aug. 16. While stressing that “no decisions are made at public meetings,” Donaldson added that the “planning consultant advised that the amendment could be revised to not include the proposed changes to the definition for ‘school’ and that the decision would be up to council as it is not a mandatory part of the legislation.”

The revised amendments will be presented to the township council’s committee of the whole meeting on Tuesday, Sept. 4.

“The overall purpose of the amendment is to bring the zoning bylaw into conformity with the official plan, which was updated in 2016,” and that amendments need to be passed within three years of the plan’s passage, wrote Donaldson. He conceded that “the amendment addresses a few zoning matters of local interest,” while also intending to “correct errors and improve clarity,” especially on matters like tiny houses and home-based businesses, and mapping updates on flood plains, which also affects the Blueberry Creek school.

The first draft amendment was presented to council in April of 2018, and an open house was held last month on the proposals.

It has long been Mulcahy’s contention that her facility is not a school but rather a not-for-profit community service. The proposed amendments would have defined a school as “any facility which has a body of students and teachers, and which provides primary, elementary, and secondary or adult education courses of study.” This definition would also have covered “private schools,” whether or not they are “for-profit or not-for-profit.”

However, the ongoing legal tussle between the ‘school’ and the township has not taken a summer vacation, with letters continuing to fly between lawyers on both sides over the future of the facility off of Highway 7, west of Perth.

Legal ‘ping pong’

In a letter dated Tuesday, June 5, Mulcahy’s lawyer, S. Craig Halpenny of the Barker Willson law firm in Perth, wrote to lawyer Tony Fleming of the Kingston law firm Cunningham, Swan, Carty, Little & Bonham LLP, who represents the township.

“Although my client is firmly of the belief that the current use of the subject property is compliant with the uses allowed in the zoning bylaw, she proposes as follows:

1. To remove the name ‘Forest School’ from the name under which she will operate and to hereafter operate under the name Blueberry Creek Nature Centre;

2. To incorporate the activities of the Blueberry Creek Nature Centre and to hereafter operate through a federally incorporated, not-for-profit corporation.”

Fleming responded with his own email on July 5, with a proposed site plan agreement attached.

“I have added to it with what we hope will be acceptable conditions to establish that the activity of the nature centre will fit within the definition of community service,” wrote Fleming. “I have confirmed with staff that this agreement is something that they could recommend to council,” though he cautioned that “I cannot predict what council might do,” but noted that “I think this would be the only way to resolve the dispute between our clients.”

While Fleming had suggested that the township may take court action against the school this past spring, he wrote that “while we are working through this, I will hold any court application in abeyance.” Hoping for an August council consideration, Fleming wrote to Halpenny that, “it goes without saying that this offer must be held in strict confidence – council has not seen this agreement.”

A proposed agreement could then be brought to council, Fleming wrote, and, “What I can do is ask council if they would be prepared to consider the application as a way to resolve the dispute.”

In a July 23 reply letter to Fleming’s July 5 letter about the proposed site plan agreement, Halpenny wrote that “my client finds the proposed site plan agreement unacceptable, for the following reasons.” Firstly, “the intervention of staff,” was cited as one of the stumbling blocks, because Halpenny accused them of “withholding … information from council,” which she saw as “the primary source of disagreement and misunderstanding between council and my client.”

Halpenny added that, as such, it was “inappropriate” for township staff to tell Mulcahy to keep the site plan agreement offer “in strict confidence,” from township council, and added that “it is a condition of any further negotiations that council be kept fully informed of any negotiations involving my client.”

Halpenny’s other problem with the proposed site plan agreement was that it “allows a use of the land that the township has, in the past, argued is unlawful.” Since the place has since been incorporated as a federal, not-for-profit entity, he felt that this objection was met.

“The township’s only remaining objection was the distinction you had drawn between ‘promoting’ education, which you said was lawful, and ‘delivering’ education, which was claimed to be unlawful. But under Section 3 (d) of the offered site plan agreement, one of the permitted uses of the land would be ‘providing education experiences for the public and children through plan and exploration and fostering ecological literacy and healthy living.’ The site plan agreement cannot make lawful an activity that is unlawful under the zoning bylaw. It seems obvious that ‘delivering education,’ and ‘providing educational experiences’ are exactly the same thing.”

In a July 25 email to members of the township council, Mulcahy reiterated her lawyer’s position.

“I believe this site plan agreement was made in bad faith,” wrote Mulcahy. “I do not believe we need a site plan agreement as we are compliant with the current use of the land as a community service for the purpose of education.” She added that the proposed art studio “has been left exposed to the elements since the stop work order was issued in November 2017. We have been prevented from obtaining a permit for a new bridge over Blueberry Creek that would make our land safer for all.”

Mulcahy’s mediation plea

In her Aug. 13 online posting to Tay Valley Township planners, Mulcahy wrote: “We should not be engaging in a ping-pong match of a site plan agreement that limits our use and would radically and permanently limit our ability to use the land.”

She later suggests that a mediator could be brought in to find a solution between herself and the township.