Link to Inside Ottawa Valley "Blueberry Creek School fighting Tay Valley Township over art studio" March 15th, 2018

https://www.insideottawavalley.com/news/blueberry-creek-school-fighting-tay-valley-township-over-art-studio/article_d36b4c9b-9028-5e2f-bd1f-ac3a9ab16eb3.html

A four-month fight between Tay Valley Township and the Blueberry Creek Forest School has resulted in a bureaucratic standoff over a half-built art studio.

The school, located at 17638 Highway 7, which has about 28 students, was in the midst of creating a new arts studio when a “stop work” order as given in November. The order, issued on Nov. 15, 2017, states that “construction (was) not in accordance with plans submitted for permit.”

Robyn Mulcahy, the wife of Lanark-Frontenac-Kingston MP Scott Reid, helped found the school, and, in a letter to school families, she said that she and Reid held a meeting with the township on Tuesday, Jan. 16, “hoping to hear that they had lifted the stop-work order. The permit to build (the studio) had been approved in October after a lengthy process,” wrote Mulcahy. “Initially, Tay Valley officials had stopped the build after they had failed to include (the) Rideau Valley Conservation Authority (RVCA) as our property rests at the edge of (a one in a hundred years) floodplain.”

The stop-work order occurred three days before the construction was due to end, and “we don’t really know what it is all about,” said Mulcahy during an interview with The Perth Courier in her Perth home on Wednesday, Feb. 18.

She charged that the township acted “in bad faith” by giving the green light to the project before changing its mind. “Why are they pouring so many resources (into this)?” she asked.

Jessica Paquette, a teacher at the school, said it was ironic that environmental concerns were partially to blame for the delay in building the art studio because their school aims to create “the next generation of environmental stewards. It’s about nature awareness.”

Paquette said she was concerned for Mulcahy who “has been living (with) this for four months,” and she feels that the township is “clearly opposed to small builds.” She was also concerned for the students, as the art studio “was needed for the winter months,” when outside instruction is somewhat restricted. (Art classes are now being held in the dining room of the school house.)

“How many people just give up?” said Mulcahy, about fighting the municipal offices in Glen Tay over zoning and development issues. “We would have just shut down,” had she not done her research, Mulcahy said.

The Paper Chase

At the same Jan. 16 meeting, the township also stated that the Ontario Ministry of Transportation would have to be involved “despite (the studio) being a rebuild on an existing concrete footprint, and that MTO had already approved the septic at both locations,” wrote Mulcahy. The township also said, according to Mulcahy, that as one of their construction workers “had chosen the age old construction of timber framing, it would need to be signed off by an engineer and then resubmitted to our architect. We had also hoped to have a small area of storage loft to one side but this was quickly off the table of being permitted.”

In the intervening months, “the roof needed to be removed from the studio and we had to secure the building for winter. All of this was completed by mid-December at a cost of over $3,000.”

Mulcahy told parents that she was confused by the intervention by the township — a level of government she says had already signed off on the project.

“I had spoken to Tay Valley planners before the purchase and after, and was told by both planners that the school would fall under community service,” in the town bylaws, and that, as such, it would be allowed for “accepted use. We had begun the process for not-for-profit status in September with our lawyer. Reid (Shepherd, a township planner) responded in the email that I had done due diligence.”

Mulcahy described the Jan. 16 meeting as “quite hostile,” as they presented a “new map from 2016 with updated flood lines including the log home — previously, we had been told (that) only the art studio was on the floodplain,” she wrote.

By the end of the meeting, it was “recommended to find our own planner and redefine the school under community service or recreational establishment.”

Mulcahy told parents that “I have felt bullied throughout this process, and wonder in what public interest it was for Tay Valley Township to have pursued closing down our school. We already …(had) raised the art studio to the 18 inches required to be out of a flood zone. The home sits above this level as well.”

In a letter to the township’s chief administrative officer, Larry Donaldson, Mulcahy’s lawyer, Craig Halpenny, of the Perth law firm Barker Willson, wrote that “my client advises that the contraventions described in the stop-work order have now been fully corrected and/or satisfied … It is my understanding that, at that (Jan. 16) meeting, a number of unrelated issues relating to my client’s business and the use of the property were raised. Some of these issues related to the zoning of the subject property notwithstanding the zoning of the property had previously been reviewed and approved by township staff.” He added that “it is not immediately clear to me how the issues identified in the stop-work order and the zoning issues raised by the township relate.”

In a later letter to parents, Mulcahy wrote that the township had told her that “operating the forest school on this land is a violation of the zoning law. This represented a complete reversal of the planning official’s previous position, which was that nonprofit educational activities are considered ‘community use,’ and are permitted under the existing zoning of the property.” She again stressed that the township “officials nevertheless suggested that we drop the word ‘school’ from our name, hire a consultant and even hire a surveyor.”

Another on-site project that has been halted because of the impasse is a “new raised bridge,” which they have been planning for since the spring of 2017. “So far, we have not obtained a permit for this.” She has already begun the process of “planning for alternative spaces that could be used, if township officials refuse to allow a bridge to be constructed.”

Township replies

In a letter to Mulcahy, dated Feb. 6, Donaldson reiterated that “a school is not listed among the permitted uses listed under section 6.1.1 of the township’s zoning bylaw, and therefore a zoning bylaw amendment would be required for the permitted use.”

A letter from the Ontario Ministry of Education appears to back Mulcahy up that she is not a regular school, like the public elementary, or, Catholic high school, for example, around the corner. The letter, from Carol Telford, a manager with the ministry’s private schools and international education unit, wrote in a letter dated Jan. 8 that “I wish to confirm that Blueberry Creek Forest School and Nature Centre is an Ontario private school as defined by the Education Act.”

Mulcahy also pointed to the Education Act itself, which defined a private school and noted that, as such it “is not a school as defined in this section.”

Later, in Donaldson’s Feb. 6 letter, he admitted that “a building permit application was received by the township on Sept. 8, 2017 … (and) a building permit was issued on Sept. 25, 2017 for a one-story accessory building with covered deck.”

The building in question was a former antique store and “the proposed use of the building was described as a studio, according to Donaldson. “The description of the proposed work was ‘antique store beside house was left unheated/vacant for past 10 years. Full of mould and decay, with animal access. Plan to use the exact footprint to rebuild and use salvageable material.”

On Nov. 14, 2017, RVCA and township staff visited the property for a site visit, “and observed that the building being constructed had post and beam elements and a loft that was not shown on the drawings that were submitted with the application for building permit.” At a later meeting on Nov. 15, after the stop-work order had been given, between the property owners and township staff, “it was determined that the house was being used as a school … the Ontario Building Code requires all buildings be classified according to its major occupancy in accordance with requirements,” wrote Donaldson.

Later in the letter, referring to the RVCA’s flood plains policy, “it is noted that the submission for the permit to reconstruct the vacant accessory structure on site was originally to be a studio as presented in the building permit application. Further to the meeting with township staff, RVCA staff and your clients on Nov. 15, 2017, it was clarified that the new building is part of the school, though raised, in the same location, within the floodplain of Blueberry Creek. The RVCA would not be able to support the rezoning of a school at this location given the policies,” in particular the section that states that “development shall be prohibited within 1:100 year floodplain,” where the use is for “daycare and schools.”

RVCA weighs in

On Feb. 21, the RVCA also contacted Mulcahy with its side of the story. The RVCA’s environmental planner, Martha Bradburn, wrote that “as you know, a portion of the property, including the residence and accessory building you are proposing to use as a school, is identified as being within the flood regulated area of Blueberry Creek … As the situation exists, at a staff level, the RVCA could not issue approval for the new use and new building as a school because of the flood hazard identified.”

Bradburn cautioned Mulcahy that “if you are proceeding with development of the property as a school, in order to have the best information available, we are requesting that RVCA staff could be provided access to the property to take some elevations of the bridge, driveway, and around the building,” Bradburn wrote. “The other option is that you provide a geodetic survey yourselves, undertaken by an Ontario land surveyor or engineer as part of the RVCA application process if you are planning to move forward as proposed in November.”

Followup

Donaldson, contacted by phone on Friday, March 2, politely asked to continue the interview via email, as he needed to recollect details from weeks ago, but he added that “I’m surprised the applicants have chosen to go to you rather than come to me and talk this out.”

He also noted that the RVCA had been involved in the process from the beginning. In a later reply to emailed questions, written on Saturday, March 3, Donaldson wrote that while he had received the questions from this newspaper, “the township is dealing with the property owner directly on this matter and therefore it would not be appropriate to discuss an otherwise private matter with, or through the media. The issues are clearly set out in a letter dated Feb. 6, 2018, from the township to the property owner.”