By Pepper Parr
July 14th, 2024
BURLINGTON, ON
OPINION
The agenda for Tuesday’s July 16th, 2024, Council meeting itemizes a motion to again request that the Province stop development on the Millcroft greenspace by way of a Minster’s Zoning Order (MZO).
Both Millcroft Against Development (MAD) and Millcroft Greenspace Alliance (MGA) are supporting this decision by Council.
I find myself wondering why this is happening at this point in time.
I think the MZO ship has sailed. Let me tell you why.
There are some who claim that Premier Ford makes decisions to make his friends rich. I admit that some of the Premiers friends were going to become even richer had his Greenbelt plans come to pass but I don’t believe that he decides to do something because it will make a friend rich. I do think he makes decisions that he thinks are the right decision – making people rich is a consequence.
Doug Ford has a personal image of what Ontario should look like and he makes decisions based on that image: Ferris wheels, buy beer just about anywhere. He sees himself as a business person and makes business thinking based decisions. He never did learn that he was elected to serve the best interest of the people in Ontario.
If there was ever going to be an MZO it would have been done BEFORE the issue was sent to the Ontario Land Tribunal.
Does anyone really think that after putting his “friend” through the rigour and expense of an OLT hearing (it took 17 days for the hearing to be completed) that the Premier or the Minister of Municipal Affairs is now going to put pen to paper and issue the document that would negate what the OLT decided?
Both MGA and MAD make very good points. I think they are misguided, that will offend them and I apologize for that.
MGA points out that the OLT is in place to look at the evidence and issue a decision. Note that the decision has a lot of TASKs that have to be completed; the developer didn’t get
The OLT reached a decision in favour of the developer. There are conditions still to be met, one of which is obtaining consent from some neighbouring homeowners. MGA will continue to follow-up with all options to stop the development.
MAD team has met with their Legal Counsel and Planner with regards to this decision. In their view, we will not be successful in challenging this decision in the Ontario Courts, however the Minister of Housing still has the capability to issue a Minister’s Zoning Order to stop the development.
Mayor Marianne Meed Ward and Councillor Angelo Bentivegna.
On July 3, the MAD executive team met with Mayor Meed Ward, ward 6 Councillor Angelo Bentivegna, Effie Triantafilopoulos (MPP) and Zee Hamid (MPP). The points that MAD made are below.
Legal counsel and planner are of the view that the decision by the OLT was carefully worded to ensure that we would not be able to appeal to the courts on a matter of law. An OLT decision cannot be taken to the Courts). They did indicate that it was also possible to write to the Chair of the OLT to object however they are very hesitant to interfere with a Tribunal decision unless the errors are patently obvious which we do not think is the case in our situation. Consequently, the only avenue available is to get the Provincial government to overturn this decision with a Ministers Zoning Order.
MAD thought the following was wrong with the OLT decision:
The City carried out a thorough review of the application; engaging their internal experts and outside consultants. The process they followed was very fair with the public and the developer being fully engaged. Council was very careful not to arrive at a decision until the experts had completed their work. Of
City Council and their consultants were unanimous in their decision to allow the development of the condo on Dundas and against the development on the 92 homes on the golf course.
The development plans cal for the removal of the pond – it won’t be needed.
The OLT decision said: “this hearing is of a non-decision by City Council and therefore the Tribunal did not have regard to a Council decision as one was never made. In the course of a 17 day Hearing of evidence, the Tribunal reached its own conclusions and decision based on the evidence provided” So three years of work by the City, their internal experts and external experts was supplanted by a 17 day hearing with lay Co-chairs at the OLT.
The OLT decision makes the key point that “the Tribunal is directed to render a decision that it must be satisfied that the proposed development conforms to the City OP and the ZBA must conform with the OP and the draft PoS applications represent good planning and are in the public interest.”
This is what they are deciding yet they totally disregarded the City decision even though it is their Official Plan. They also had over 1,000 pages of public input they reviewed where not one person agreed with development on the golf course holes and two neighbourhood groups opposed the application along with the City.
From the OLT decision: “These Applications require balancing the private right to develop against the public interest in protecting open space and the environment.” It is clear that the OLT determined that it was far more important to protect the private right to develop over the public interest despite their mandate being to do what is in the public interest.
It is the view of MAD that the OLT is now there to protect the developers right to develop even though this is not in their mandate but doing what is in the public interest is.
The evidence presented at the OLT clearly showed that when the development was approved, a critical part of the approval of the development was to build the community around the existing golf course and that the golf course lands should be permanent open space (whether that is a golf course or park/open space). Secondly, in Burlington’s history, they have never rezoned parks and open space to residential even when it is privately owned park/open space. The last point is that, in our view, the price that Argo paid for this land recognized there was a significant risk associated with getting this rezoned ($5 million for 50%).
MAD has said: “We are now looking for the Province to step in and do what is right so hoping this will happen. Assuming it does, similar to the last provincial election, we will strongly support Effie and other regional MPP’s. If the province does nothing then we will make this a major campaign issue and support others who want to protect Greenspace.
There was a public meeting at which Mayor Meed Ward and Regional Chair Gary Carr said they would be pressuring the provincial government to issue a MZO. They weren’t able to get an MZO then – they are not going to get one now. Quite why Meed Ward and Bentivegna are making this effort now is hard to understand – unless they see a political advantage.
While unlikely, Meed Ward may have been asked by the province to request an MZO so that the province can be magnanimous and agree to have one issued. That, I agree is a stretch. The Premier cannot be comfortable with his 31% ranking. His LCBO move is blowing up in his face, the Science Centre decision is before the Courts where it might be overturned.
Anything in the way of an uptick in the Premier’s ranking would be welcome.
The proposed resolution is posted on the City of Burlington’s Website and is set out in full below.
MAD asks anyone who can attend in person to do so, in support of our City Council.
We expect this resolution to be passed at Council on Tuesday. Mayor Meed Ward has asked that MAD once again circulate a Petition in support of the City’s resolution. We ask that everyone sign this new Petition once it goes live next week.
The Motion:
Whereas the Ontario Land Tribunal (OLT) has issued a recent decision and interim order to approve the redevelopment of parts of the Millcroft Golf Course by the Millcroft Greens Corporation on June 12, 2024; and
Whereas Burlington Council is not requesting interference with the OLT process or ruling; and
Whereas Burlington Council is requesting the Province issue a Ministerial Zoning Order as there is limited time to act to save this area before shovels are in the ground for development; and
Whereas the parks and open space currently operating as the Millcroft Golf Course, is unique among golf courses, in that it is in an urban area, designed as a figure eight weaving among houses, functioning as natural storm water conveyance on a floodplain, and we know of no other golf course with these set of conditions; and
Whereas land use planning decision-making should always rest with local councils, professional and qualified staff, and the community, for maximum accountability, transparency, and democracy in adherence with applicable Official Plan documentation; and
Whereas in December 2022, following extensive community consultation, Burlington City Council unanimously declared opposition to the proposed residential development of the Millcroft Golf Course, particularly Areas A, B, C, and D of the development, and support in principle for the proposed residential development of Area E which is not on greenspace, and further brought these concerns to the attention of the OLT during the appeal hearing; and
Whereas Burlington City Council unanimously approved a resolution on September 26, 2023 requesting the province to issue a Ministerial Zoning Order to protect these lands from development, which it has the power to do at any time, to facilitate appropriate residential development in Area E and ensure the protection of the greenspace and natural areas from re-development of Areas A, B, C and D on the Millcroft Golf Course; and
Whereas Halton Regional Council unanimously approved a similar resolution on October 18, 2023 supporting the City of Burlington’s resolution for the Minister of Municipal Affairs and Housing to protect the vital Millcroft Golf Course greenspace; and
Whereas the City of Burlington has recently adopted its 2022-2026 Work Plan, “From Vision to Focus”, detailing specifically Focus Area 3 on protecting and improving the natural environment and taking action on climate change; and
Whereas the protection of existing greenspace within the City of Burlington is crucial for the municipality to provide opportunities for access to both public and private green space for current residents and future generations; and
Whereas the City of Burlington has an abundance of options for development to achieve provincially mandated growth targets towards accomplishing the province’s goal of 1.5 million new homes by 2031, and it is not required to sacrifice greenspace or build on critical floodplains to accommodate Burlington’s share of housing as referenced in the 2022 – 2026 Burlington’s Work Plan: From Vision to Focus, Focus Area 1 Designing and Delivering Complete Communities; and
Whereas a recent Burlington Staff Report found a deficit of urban greenspace of 104 hectares to accommodate planned population growth for 2051; and
Whereas the City of Burlington can accommodate its share of new housing units in provincial priority areas such as GO stations, aging retail plazas, select growth areas, and major transportation station areas such as Plains Road and Fairview Street corridors; and
Whereas these growth areas are built into the City’s Official Plan and will more than accommodate new housing growth for the municipality; and
Whereas the needs and interests of Burlington residents are captured in the City’s Official Plan in effect and as adopted by Council in 2022 to provide clarity and certainty about planned future housing development sites, and does not include any requirements or need to redevelop the Millcroft Golf Course;
Now therefore be it resolved that Burlington City Council request the Minister of Municipal Affairs and Housing, through its zoning order framework process, to issue a Ministerial Zoning Order to maintain the zoning permissions for Areas A to D of the proposed development of the Millcroft Golf Course as they existed prior to the June 12, 2024 OLT decision;
Be it further resolved that the Clerk forward the resolution to the Honourable Doug Ford, Premier of Ontario, the Honourable Doug Downey, AttorneyGeneral, the Honourable Paul Calandra, Minister of Municipal Affairs and Housing, and the Honourable Andrea Khanjin, Minister of the Environment, Conservation and Parks, Halton MPPs, Halton Local Municipalities, Michael Kraljevic, Chair of Ontario Land Tribunal and the Association of Municipalities of Ontario for their information.
Salt with Pepper is the musings, reflections and opinions of the publisher of the Burlington Gazette, an online newspaper that was formed in 2010 and is a member of the National Newsmedia Council.
In my first comment on this matter, I favoured the decision, based on two things. First, the applicant planning consultant argument and defence of the developer having property rights to develop, and the present residents not having permanent rights to the present golf course written in their deeds.
The second thing, at this time, in my mind, nullifies my previous reasoning, of the developer land-owner property rights trumping all of the rest of the public interest evidence. This thing, unknown to me at the time was, that City Council did not make a formal refusal decision of the application at Council, in the mandated timeline, so the public interest evidence and argument contained in this needed Council refusal decision, was never made, and therefore , a refusal decision was not part of the proceedings of record.
So by Planning law, this City failure to formally make a decision, gave the applicant immediate rights to file an appeal to OLT . As Pepper said, the “The OLT said this hearing is of a non-decision by City Council and therefore the Tribunal did not have regard to a Council decision as one was never made.” Therefore, there was no evidence and argument for a decision of refusal, to send to the OLT for their consideration at appeal.
Note that, even if the City had done everything required within the mandated time allowed, and made a refusal decision, with all the evidence and argument completed, the applicant still had the right to make an request for an appeal to OLT, but the appeal in this case would require the OLT to consider the City refusal decision and all the evidence and argument of the decision to refuse.
Thereafter, because of the non-decision, all formal planning activities at City stopped, and the appeal went to OLT to organize and manage. The City was cut out of the authority appeal process as the OLT was in charge.
In addition, I did not know that the mandate of OLT is not primarily developer property rights. But from the OLT decision: “These Applications require balancing the private right to develop against the public interest in protecting open space and the environment.”
However, it is the view of MAD that the OLT is now there to protect the developers right to develop even though this is not in their mandate but doing what is in the public interest is.
From the Pepper story: It is clear that the OLT determined that it was far more important to protect the private right to develop over the public interest despite their mandate being to do what is in the public interest.
This non-decision action seems to be a predominant tactic in Burlington. I have not the time to do the precise count right now. It started in my concern at Adi Martha and was the big mistake that started the downhill slide to loss of control at City Hall, and is reflected in the poor record at OLT.
No one was been held accountable for the Millcroft non-decision, and I have another too long personal involvement story about Adi Martha. Then Councilor Meed Ward, at the direction of then Mayor Goldring, to answer questions and explain this, which she did not.
Both defended the failure to make a decision in time, even though the planners had recommended a refusal, but it was lost at the then Executive level in City Hall until it was too late. Rumour had it that the refusal was leaked to Adi.
I will conclude with the fact that everyone at City hall knows what happens when Council does not make a decision about a development application – this Pepper story is about exactly what happens. There are all kinds of predictable consequences and also a number of unintended consequences.
Someone is responsible for letting this happen, and we all know who has the last word – the Strong Mayor. But no one has been held responsible although all of the Councilors are responsible for their going along, including the responsible Ward Councilor Bentivegna.
Did these people really think they could get a guaranteed MZO, later, when we didn’t get one now? So we can let a decision on this slide and try for the MZO later?
Here are the consequences of that too often failed logic.
I have to ask if we are spinning our wheels on this? Is it time to admit we regrettably have to move on. Or is this really an opportunity to Ford bash?
People have tried for years to eliminate the OLT. Forget it. The OLT is a closed shop of unelected and mysteriously appointed members who revel in their quasi-judicial finery and unimpeachable powers. A simple governmental decision to eliminate it has been beyond reach for no obvious reason for decades. There is a mystery here which transcends political policy.