How city council managed to vote to sell waterfront lands and what some people want to do about that.

Part 2 of a two part article on the selling of waterfront property

Part 1

Salt with Pepper – Opinion

October 8, 2013

By Pepper Parr

BURLINGTON, ON.  The public now has a fuller picture of what is at risk in the possible sale of land it owns on the lake’s edge between Market and St. Paul Streets, south of Lakeshore Road, where there is a patch of road that was the old Water Street road allowance.  Water Street was once the city’s most southerly road.

Council was working from a Staff Report that came as the result of a Staff Direction Ward 1 Councillor Meed Ward asked for in 2012. That direction was to:  Direct the Manager of Realty Services to report back to the Budget and Corporate Services Committee regarding the portion of Water Street located between St. Paul Street and Market Street providing the background and history and options available to the city.  Staff came back with three options

Option #1: Create a city parkette: connecting the St. Paul Street and Market Street road allowances.

 Option # 2:  Develop Windows-on-the-Lake at St. Paul and Market streets and retain ownership with an exclusive lease to the abutting landowners until required for public use.

 Option # 3: Develop Windows-on-the-Lake at the foot of Market and St. Paul streets and dispose (sell) of the Water Street parcel.

The graphic sets out the land that is under discussion by city Council. The piece in the middle is what residents abutting this land want to buy from the city. The pieces on the left and the right are road allowances the city also owns.

Option #1 would have the city purchasing Ministry of Natural Resources (MNR) portions of the waterfront between the St. Paul’s and Market Street road allowances and using that land along with the old Water Street road allowance to create a new waterfront parkette.  The residents who paid for the sea wall that was built some twenty years ago were to be paid for what they spent.

Option # 2 would be to preserve land for future public use by purchasing the MNR land and retaining ownership of the land the city already owns then entering into lease agreements with the owners that abut that land.  The two pieces of land on the east and west sides would be turned into Windows-on-the-Lake.

Option #3 would dispose (sell) of the Water Street land and still develop the Windows-on-the-Lake on the East and West sides of the site where the city owns the road allowance.

As is the practice in Burlington, the public can delegate and give council their views on the report being considered.

Bob Wingfield, a long time Burlington resident

There were four delegations: Bob Wingfield speaking for Burlington Waterfront, a community group that works out of the offices of ward 2 Councillor Marianne Meed Ward, James Ziegler, a 24 year St. Paul Street resident, Janice Connell and her husband Mike Swartz who live on Lakeshore with property looking out over the lake and Byron Kaczmarek who lives several doors east of Nelson park and has no financial interest in what happens to the land being discussed.  He did have very strong views on the kind of behavior at Nelson Park.

Bob Wingfield brought that solid conservative typically Burlington approach to the issue and suggested that the objective should be to give the public all the access possible to the lake. He spoke of unimpeded access which has not been the case for many, many years.  “The public does not know they can walk to the water’s edge on some pieces of property the city owns.  There are no signs indicating that the property is public.”  At the foot of St. Paul there is a large boulder with a street number on it leaving the clear impression that this is private land.  The old Waterfront Access and Protection Advisory Committee did a survey of every piece of land the city owns from King Road through to Burloak and put on the public record how many instances there were of the public being kept off land they had a right to be on.

Wingfield was for option 1, keep the land and developed it into a parkette – although not in the immediate future – perhaps five years or more into the future.  Wingfield said he could live with option 2 which was to lease the piece of land in the middle and create windows onto the lake at Market and St. Paul Street.   Wingfield wanted to see public access capacity the lake’s  edge grow.  He felt the current land owners should not be disrupted and that change should come about in an orderly manner which he saw as expansion over the passage of time.

At least one of the property owners actually encroaches on city land – these are very minor encroachments but encroachments nevertheless.

Mayor Goldring asked what Wingfield thought the timing of bringing the property into public use might be.  Three to five years perhaps.  ”What`s wrong with today” asked the Mayor.

Councillor Dennison didn’t see it that way and made the bold statement that there was never going to be a waterfront trail through the area.  The best option for the city, he said, was to sell the land between the road allowances to the owners of property that adjoins it and develop public spaces at the ends of the road allowances.

The property owners loved that idea.

The Swartz/Connell residence is the only one of the three properties that abut the city land along the waterfront that runs from Lakeshore Road right through to the lake. The other two properties have houses between them and LAkeshore Road.

Janice Connell whose property adjoins the city owned land delegated for herself and the other two property owners who are directly impacted by the purchase or lease of what is now city and provincially owned land.

Connell’s complaint was of the nuisance and noise that came from rowdy young people who did whatever you can imagine at the bottom of St. Paul particularly but at the bottom of Market as well. 

She made reference to the graffiti – and there is some.  Very little actually and it isn’t visible unless you are on the water.  She complained that because the land is not visible from the street it doesn’t get decent police patrol.  Wouldn’t take much more than a letter to the police from the Mayor or the city manager to solve that problem.  Get the police officers out of their cars and do a walk around – it’s not more than 125 yards overall.

Janice Connell spoke for herself and her neighbours at the council committee meeting last week. The neighbours are seated behind Ms Connell

Connell told the Committee that someone was once skate boarding along the top of the breakwater.  Actually skateboarding?  That is a massive stretch.  I walked that stone breakwater and it is quite a drop to the water’s edge.  It is literally impossible to skateboard over the ground.  I had some difficulty walking without stumbling.  It is a very significant drop from the top of the breakwater to the lake and when you get to the bottom there are a lot of rocks.  The height down however is less than a drop from the pier and a heck of a lot less than a drop from the edges of Kerncliffe Park.

What Connell/Swartz did was raise every hairy dog argument  they could find to push their point – which by the way is their right.  They want that property and they will argue as hard as they can to convince this council to give it sell it to them.

The argument that there are no site lines to any parkette is true – there are many park places in this city where there is not clear site line.  However, this is a very small area – less than a 200 yard walk from one side to the other.  It would give police officer a little exercise and fresh air to get out of their cars and walk the area each time a cruiser is on patrol.  It would also give the police officers an opportunity to take in the wonderful view that the three property owners enjoy every hour of every day.

When one is making an appeal you put the best face you’ve got forward and the property owners chose well.  Connell was perky, spoke well, and was able to get a chuckle out of council on occasion.  She felt “blessed” to live where she lives.  The money to be able to buy the property didn’t hurt either.  She answered the questions and gave very detailed answers to questions and put her own spin on the answers she gave.  She was good at it – that’s why she was chosen to be the front person.  Advertisers do that all the time – put a pretty face out front  and use the words and the images you need to make your point.

Early in her presentation Connell said that the old Waterfront Access and Protection Advisory Committee created the notion that this was public land and traffic increased considerably.  That the land is public was not a notion – it is a fact.  For many years no one knew that the land was public – and the property owners loved that.  Their neighbour, James Zeigler pointed out that for years these people had the use of the land without paying as much as a penny.

Connell told Council that “three or four nights of every summer evening we would call the police”.  She said she thought it virtually impossible to secure with a fence

“One of the things that hasn’t been calculated” explained Connell, “ is the potential cost of a court case  – because that’s what the landowners would probably end up doing – not that we want to.”

Janice Connell after delegating to city council i committee – She thinks she just might have nailed it!

In closing  Connell said, “we really want to buy this land” and leasing is really not an option”.

Meed Ward wanted to know what the grounds for a court case would be.  Connell wasn’t prepared to take that one on – so she asked if her husband could speak.  Out came the big guns: Mike Swartz a very, very successful banker made it very clear that the property owners were prepared to bring in legal counsel which they had already retained – and who might have been in the Council Chamber taking it all in.

Mike Swartz, delivering a very hard message to city council. We don’t want to sue but we will if we have to. They have already retained legal counsel.

Swartz said, when asked what the grounds were for a court case: “I would never divulge that at this time but you have to understand that we that we do have significant monetary and historical arguments that could and would be presented.”  He added that the rationale exists to solve this tonight in a very equitable basis for everyone involved.

That solution – sell us the land.

There it was – the chilly wind of a court case had been put out there and if Connell’s mention was not enough her husband Mike Swartz drove the point home.

James Ziegler delegated next.  He has lived on St. Paul for 24 years and he was for keeping ownership of the land in the city’s hands and perhaps leasing it to the three houses that abut that piece of the property.  He was for not selling the city property even though if it were turned into a parkette with a trail through it everyone who used the trail would walk or bicycle by his house on St. Paul.

James Ziegler;er. a resident whose property does not abut the land under discussion but who does live on St. Paul Street along the road allowance produced a map showing where he thinks the city should put in a walking path that would run through the road allowances and the property that some residents want to purchase. Ziegler wants as much public access as possible.

In comments made after his delegation Ziegler said “I’m glad the committee agreed to the windows to the lake on Market St. and St. Paul Street.   I also appreciated that Councillor Mead Ward made the motion and spoke to option one – keeping the land and developing it into a parkette.   

“It was unfortunate that most of the other members were unswayed by the  presentations and comments of city staff and that they could not at least preserve the Water Street lands for a future council to consider.  They appear to be entrenched with the status quo and fearful of the threat of litigation by the two land owners.   

“It’s a lack  of vision for the long term public good driven by near term financial conservatism ruled by the 0.1% of the population.   Unfortunate also for the  many thousands of other citizens of Burlington within walking distance of the former Water Street road allowance who could have enjoyed a larger view to the lake.”

After all the delegations Council let itself begin to believe that the city didn’t need any more parkland in the area – that there was more than enough with Nelson Park just three houses over from St. Paul, the most easterly street.

Nelson Park isn’t a very big park and comes nowhere near meeting the needs of the community.  Were one to look at City View Park and the park the city wants to see developed in the Beachway – what exists at Nelson is puny.

But the need for a new park was not the issue.  Hear how your council failed to grasp what the issue really is.  Councillor Sharman said this was “an ideological issue”, suggesting that Meed Ward has an approach to what the long term future of the city is about that is not in sync with what most people in Burlington want.

Mayor Goldring chimed in a few minutes later and agree that it was an ideological issue.

Meed Ward kept pointing to the regional Official Plan, the city’s Official Plan and the Strategic Plan as well.  Mayor Goldring managed to find a way to explain that the city didn’t have to worry about getting more waterfront land in the future because if there ever was any development along the edge of the water the developer would have to dedicate some of land being developed as a park allowance.

Councillors Dennison and Taylor let themselves get tied up with the costs that might be involved.  There is a very, very minimal cost to the city to keep the land – maintenance, $7500 a year, which Meed Ward said she could fund out of her Council expense account.

Dennison mentioned several times that the homes have been in place for 90 to 100 years – and perhaps they were.  Certainly not in the name of the same owners.

There is a very, very minimal cost to the city to keep the land – maintenance, $7500 a year, which Meed Ward said she could fund out of her Council expense account.Part of the problem with the debate was that the Staff Report left something to be desired.  This issue has never been one that staff was welcomed; they saw the issue as a major mess that was going to get dumped on their desks.

Staff was certainly for retaining the land – they just knew that when it gets really tough the crap is going to land on them because the majority of Council is not prepared to make the hard decisions.

In 1985 a Burlington city council approved the building of a 22 story building right on the edge of the lake where the Riviera Motel was located.  They will break ground for that structure late this years or early next and Burlington will see three building on Lakeshore that rise 22, 8 and 7 storeys high.  At the time, back in 1985, the project was to be a legacy for the city.

Things change and no one can say with any certainty what Lakeshore Road will look like 50 years from mow.  A number of people, most with vested interests in obtaining the property or not wanting to see a park in the area said there would never be a trail along the water’s edge in that part of the city.

The existing Waterfront  Trail and the Bruce trail suggest that kind of thinking just doesn’t hold up.

There was next to nothing in terms of cost to the city, there are millions ($9.7 million to be exact) in the city’s Park’s Reserve fund.

With delegations done Council members get to ask staff questions on the report that was being debated.

Councillor Dennison had put a cost of $2 to $3 million dollars as what this was going to cost the city.  Meed Ward asked staff if this was the number they were using.  Ron Steiginga, Manager  Realty Services, responded with “that is not our number”.

This issue is mired with all kinds of legal history, most of which Council was not prepared to share with the public.  There was a Court case some time ago where a purchaser sued a buyer of property in this immediate area and a Judge rendered a decision that has really muddied things.  Decisions in Court cases are public and the city has these decisions – they, for reasons of their own, are not prepared to share the information they have.  That kind of information management makes it very difficult for residents to make an informed decision.... for reasons of their own, are not prepared to share the information they have.  That kind of information management makes it very difficult for residents to make an informed decision.

After listening to the delegations Meed Ward put forward a motion to have the city go with the first option which was to not sell the land but to develop it as a parkette.  Meed Ward explained that she considered option # 2, leasing the land, but felt the issue had to be dealt with now to at least give the property owners some clarity as to just what they have and don’t have and what they can expect from their city.

With the motion on the floor Councillor Sharman, who was chair of the committee, moved that Council go into Closes Session to hear what the city lawyers had to say.  They were in closed session for close to an hour and were fully briefed on what past legal history was all about.

One of the things about decisions Judges make is they can be appealed and changed.  You the public have no idea what these decisions are – but you can bet your very last dollar that the people who have said they are quite prepared to sue the city and force them to sell the land, have copies of those court decisions.  They have the financial means to get copies of the transcripts of the trials and the legal talent to explain what the options are and where there might be some loopholes.

It was easier for this city council to take the position that the city doesn’t need another park in that part of the city and even if they did – the city doesn’t have the money needed to put in another park.

Their position was to upgrade Nelson Park, make the road allowances at the foot of Market and St. Paul Windows on the Lake, which should have been done years ago, and hope they can get away with it.

Once Council was out of Closed Session Dennison announced that he had an amendment to Meed Ward’s motion.  There was a procedural kafuffle that called for Council to vote on the Meed Ward motion first and then the Dennison amendment.

Meed Ward lost her motion – six to one.   No one else voted with her.

That then put the Dennison motion on the table which was to sell the land and do a little work on the Market Street and St. Paul Street road allowances.

The Mayor didn’t think the park was necessary at this point in time.

Councillor Craven claimed he was a big supporter of parks and reminded council that “muddled decisions get us in trouble”.  He reminded Council that “we cannot ignore the reality of the legal history” and then pointed to the problems at 710 Spring Garden Road where there are parks right next to private property which creates all kinds of problems in his ward.

Craven saw this as a “unique and isolated” piece of property and said there was “no hope that we are ever going to connect this to some other piece of property”   For Craven putting a parkette in this space was impractical and cumbersome.

Councillor Taylor saw the issue a one of how many parks does a neighbourhood need.  He said he doesn’t know of any other section of the city where there three parks within six houses of each other – which is stretching the reality somewhat.

Taylor also reminded Council that there was a massive ($160 million)  infrastructure deficit facing the city and that we have just five years to figure out how we are going to manage this.

His position was that he could not support a park now or in the future and was going to support the Dennison motion and get something for the land.

Councillor Lancaster said the Meed Ward motion assumed there was a need for the parks.  She said she understood the need to preserve the land for the future and thought that leasing the land was a reasonable solution.

When staff was asked Rob Peachey,  Manager Facilities, Parks and Recreation said he believed Burlington should preserve the land for the future.  He added that development patterns frequently change and there might at some point be a continuous path along the water’s edge.

The issue of intensification came up – many said it was not likely to happen in that part of town when it is already happening.  The two-plexes that exist on St. Paul have been upgraded to four plexes – that sounds like intensification to me – and – just a little further east on Lakeshore Councillor Dennison has a case going to the OMB arguing for the right to severe a piece of his property into a second lot he will sell.  Sounds like intensification to me.

Vandalism and noise came up again and again. Councillor Sharman said Council has no influence on the way people behave and that he didn’t think Council had the right to make a decision that was going to make the lives of the people in the old Water Street part of the town miserable.

Meed Ward countered with “we cannot let the behaviour of some of our young people determine how we use our parks resources”.

So there it was a 6-1 vote with Meed Ward once again standing her groundMeed Ward  “we cannot let the behaviour of some of our young people determine how we use our parks resources”.d.  The issue comes to city council on the 15th for a final vote.

James Ziegler is apparently not a man to trifle with nor does he appear to give in easily.  He intends to prepare revised drawings  and have some of his neighbours attend and delegate.

Ziegler is trying to dig out police reports on just how many complaints there have been about behavior at Nelson Park as well as at the other Windows on the Lake in the city.

One group has recommended any city decision to sell the land be challenged with a class action law suit on the grounds that the city has failed to follow its own policies, the regional policy and failed to act in the public good.  That would be an interesting argument and apparently there is someone prepared to fund some lawyer to take the case.

Zeigler sees any decision to sell any of the land as a short-sighted decision depriving the citizens of their rights to improved access to the lake one that effects many future generations.  

Council can expect to see a map showing the lineal footage of lake view that a Water Street park would provide compare to the available footage of the other access points along lakeshore east of the downtown. This will show that is it not such a small park.

Expect to see a population map showing the numbers of households and estimated population within a 2Km distance of the park.    Expect to see a drawing showing some actual dimensions.  Committee was told this was a small park between three houses leaving a false impression.  The “houses” are mansions with very large lots.  

This fight is not over yet.

Where is the old Save our Waterfront group in all this?  They were said to be several thousand strong with representation in every ward in the city.  Will we see them out in force?

What I found interesting about the way this committee meeting went was how Council members took the word of Connell/Swartz as if it was all perfectly true and completely factual.  This is not to suggest they were lying – they were giving their version f the truth.  I want to suggest there are other versions of the truth out there and that this city council needs to hear and respond to those other version as well and not be quite so quick to sell city land that wealthy people want.

Somehow during a few hours on a Wednesday evening of last week, city council lost their way and went along with the selling of the property when there was no pressing reason to do so.

What was particularly disappointing was that the two most senior members of council, Taylor and Dennison, men with 22 and 20 years at the council table,  voted to sell the land.  One would have hoped that they, of all people, would have understood the thinking and feelings the people of Burlington have for their waterfront.  Perhaps that many years as Council members had addled their brains.  Term limits begin to make sense.

The matter will come to a city council meeting for final approval.  Perhaps there will be enough phone calls and emails to bring this council to their senses.

Councillor Meed Ward stood alone in voting for either keeping the property or leasing it out to the residents until the city figures out what it wants to do.

Rob Peachey, Manager Facilities, Parks and Recreation told the old Waterfront Advisory Committee that waterfront access was not his favourite file – now we know why.

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3 comments to How city council managed to vote to sell waterfront lands and what some people want to do about that.

  • Byron Kaczmarek

    I have great respect for our Mayor and City Counselors, and do not envy their position. Having attended the meeting, and listened to all of the thoughtful commentary (other than the legal closed door information) we have to put our trust in the people that we elect. The vote was 6 to 1 because the majority of the counsellors and our Mayor believed, given all the facts presented to them, that this was in the best interests of the City. There was short script given to my presentation, but for clarity, we live 2 doors from Nelson park. Our property has been vandalized twice, one reported to police, we are constantly picking up alcohol bottles off our property, including broken glass on the break wall, and we catch people trespassing almost every week during the summer. We have cameras now because a lady was badly assaulted near our property a couple of years ago by a gang 14 teens who apparently congregated at Nelson Park. Our police are busy, we can’t possibly expect them to walk down the hillside every Friday and Saturday night and round up the teenagers, but we don’t need to add to the problem. If you count the Windows to the Lake, we have 3 parks within 6 homes. The comment about expanding the pathway east is a non starter and disengenous to suggest otherwise. Owners have riparian rights which we paid for. Thank you for this opportunity to share my comments.

  • Tony Pullin

    “Connell told the Committee that someone was once skate boarding along the top of the breakwater. Actually skateboarding? That is a massive stretch. I walked that stone breakwater and it is quite a drop to the water’s edge. It is literally impossible to skateboard over the ground.”

    Should we focus on the fate of the skateboarder? What became of him? Apparently he must have met some sort of demise due to the “literal impossibility” of skateboarding that area. It is perhaps a good thing that it remains public land so that a search party, and Police can go an look for him.

    As a footnote, I hear skateboarders travel past my home all the time. Cars, trucks, pedestrians too. Joggers, cyclists, dog walkers, noisy people, quiet people, teenagers, handicapped people, all sorts of people. I presume they, as I do, accept it as a public passage.

  • In Your Face

    Swartz is playing a deep pocketed private landowner bluff game the City should be smart enough to entertain only for the benefits that typically result from such assertive verbosity. There is no government body which can be forced to sell property under such a scenario. If his position is based on some sort of prescriptive and/or possessory rights claim, forget it. As for significant monetary and historical arguments, keep arguing, so that the monetary and historical arguments become even more significant. Only the reverse is true; the City can and should acquire additional lands situated easterly to develop a functioning public use parkette, linking the “windows” to the existing parkette at Guelph Line. However, I will give credit to Swartz for trying on the intelligence at city hall into another waste of money legal investigation into this matter, in probably what is only a shot at leveraging the decision to sell against potential legal costs which the city is good at accruing. Nice try. In this instance, the win goes to the City for a change.