By Pepper Parr

October 22, 2015

BURLINGTON, ON

Aldershot resident Tom Muir wrote Ward 2 Councillor Marianne Meed Ward asking her why the city missed the 180 day deadline it had to approve a development application.  His first request was not answered – he sent a second request and copied the Mayor and the city Manager.

The Mayor promised to get back to Muir with a “meaningful response” and asked him to be patient.

Meed Ward got back to Muir with the following:

Thanks for your inquiry and my apologies for the delay in responding. You raise a number of very important and thoughtful points, and these required time to provide an equally thoughtful reply. I trust you will not read anything into the delay other than it took some time to prepare. I acknowledge that it would have been helpful for me to simply acknowledge initial receipt of the email when I got it, and let you know I was working on a reply – I will do that in future so you know I am working on a reply and that it will take some time. My apology for not doing that in this case – I’m sure it would have helped.

As this is now a legal matter before the Ontario Municipal Board, I will attempt to give as full a reply to the issues without jeopardizing our case at the OMB and while maintaining confidentiality of any legal matters. The questions you have asked raise important issues of principle and I will attempt to speak to them at that level.

You ask why the 180 day time elapsed, allowing the developer to appeal to the Ontario Municipal Board for a “non-decision” within the legislated time frame. Based on the information I have received, and documented in the time line on my website, this file simply took longer than 180 days to process because of the complexity of the project and the number of agencies that needed to provide feedback. That often occurs with more complex files. We have dealt with several files at recent Development & Infrastructure Committee meetings that have gone beyond 180 days, and developers on these projects have been prepared to work with the city so long as they are assured the file is moving forward and being processed.

The timeline I provided in an earlier article helps to tell the story of the amount of work required on this particular application and that staff worked diligently throughout the process to complete the report in a timely fashion. The staff report had been prepared and the committee was four days away from a vote when the appeal was launched. Typically, an appeal is launched for non-decision when the city is dragging its feet on processing an application. That wasn’t the case here.

Nevertheless, I believe it is a worthwhile question of principle to ask in general: why isn’t every Official Plan Amendment and Rezoning application processed within 180 days and what would it take to make that happen? We know that most applications we will see in Burlington are infill, versus greenfield (having run out of large greenfield areas for redevelopment). We also know that these applications by nature are more complex and take more time to review. So we must ask: what changes would we need to make at City Hall to ensure we can nevertheless even process these more complex applications – all of them – within the timeframe?

It is a good question; you and other residents are raising it; and I have asked this of staff internally and we will continue to discuss this over coming weeks and months until we have some suggestions going forward. In my view, if the timeline is there we need to do what we can to meet it, and we need a better understanding of what it will take on these more complex files to achieve that outcome. I am committed to doing what it takes to achieve that outcome going forward.

You have also raised the question of whether the appeal for non-decision within 180 days impacts our position at the Ontario Municipal Board. A non-decision within 180 days is one route to the OMB; the other is disagreement with the decision by council on an application. It is worth noting that the staff report recommending refusal of this particular file was available before the 180 days elapsed. The developer knew staff were not in support of the project. So the question is: does it make a difference whether a file is appealed for non-decision within 180 days or because the project has not been supported by staff and ultimately council? It’s a good question and one that is being asked on behalf of residents by myself and council. I will continue to investigate this.

However, at the end of the day, the OMB makes its decision based on the planning merits of the application more so than by which route the file ended up at the OMB, whether it was because the 180 days elapsed or because of disagreement with the decision. The planning merits or lack thereof are primary matters for consideration. The city will present our case, outlined very well in the staff report, that the project does not meet the criteria for good planning. Those are the matters that will be considered at the OMB in rendering a decision.

Some residents have asked: does the fact that committee and council voted on the project after it was appealed have an impact on our position at the Ontario Municipal Board? The unanimous vote at committee, upheld by council, to support staff and refuse the project will be part of the information forwarded to the OMB when it is deliberating. So the voice of the residents, via your elected representatives, will be heard and will be part of the information presented at the board.

I hope this addresses your questions based on the information I have at this time, recognizing that this is an evolving issue and there are additional learning as we move forward.

Please be assured I am committed to exploring how we can meet the 180 day time frame for every application. City council relies on staff to give us professional advice and see us through the application process; we work together. So I am further committed to ensuring that council, city hall and our planning department take appropriate steps to learn from this situation. The dialogue has started and is continuing.

Also be assured that my goal is the same as it has always been: to welcome and support development that respects our existing Official Plan and Zoning. As the staff report on this particular project states clearly – we do not need to overintensify this site or any other to achieve our goals and obligations under Places to Grow to intensify in the downtown area. I will continue to advocate on behalf of residents that we respect our Plan – and if it needs changing to do so within the overall context of an Official Plan Review which takes places every five years.

It has been gratifying that all of city council and city staff, and the vast majority of residents, have been united in our position that this particular application is not good planning, is overintensification, and needs to go back to the drawing board to come back with a more reasonable proposal in keeping with our existing planning goals for this site. As a community, we need to continue to stand together and make a strong case at the OMB to turn this down and seek more appropriate redevelopment on this site. I will continue to work with you, residents, city council and staff to see that through.

Whatever the outcome of this situation, city hall should always be reviewing and learning from major issues in our city as a standard practice and a matter of principle, to learn how we can be better. Please know that I am committed to undertake this review. That said, know that our first and immediate priority is to win this case.

Thank you for your contribution to this process.

Muir doesn’t buy the Meed Ward response and sets out the time line as he understands it.

Councillor,

Thank you for your message.

To cut to the quick, I must say that, sadly, you did not meaningfully answer my September 16 and October 8 requests to be informed about how the decision was arrived at to allow the 180 day period, mandated by legislation as default grounds for OMB appeal, to elapse before the Council vote was able to be made on the staff recommendation report on this project.

As part of this request, I also asked a number of questions concerning the administrative management staff motivations and thinking that led to this decision. These questions were also not answered, and in fact, were never addressed.

Instead, your message is a narrative of excuses, rationalizations, and blame-shifting that does not fit the facts contained in the record of city proceedings and timeline in this matter. You also wrote several extended digressions, that collectively muddle, and side-step, the direct point of my inquiry.

I acknowledge that to some extent you are, as you say, basing your remarks on information you have received from others, and documented in the time line on your website, but there is no attribution on this, and of course, you are responsible for your choice of words. Whatever, I would be careful who you listen to in the future. They may be more interested in self than in you.

In evidence, we can consider the timeline you document in your March 31 website newsletter, and examine the city record of proceedings that are contained in this timeline.

Recall that the prescribed time frame or timeline of 180 days started on September 24, 2014, and elapsed on March 24, 2015.

Over this entire timeline there are a number of public meetings, and staff reports and correspondence available to examine in the proceedings, and there is no evidence that the working planning staff were not in control of the processing timeline, or found the file too complex to process in time.

In fact, the ADI project was generally opposed by the public, and the staff report was a thorough, fair, and strong planning based recommendation to refuse the application. There are no apparent complicating factors to make the file too complex or unwieldy to process on time, as you imply it was.

There is also no reason to expect that the refusal recommendation would lead ADI to be prepared to work with the city beyond the prescribed timeline, as you uncritically, and therefore misleadingly, state other developers might do if their application is moving forward.

I can’t imagine this happening in the face of a known refusal, and the staff record shows that ADI had no intention of negotiating changes. So you certainly can’t shift blame for the failure to meet the timeline to ADI for doing what they did, as you appear to.

I find your stated insinuation, that despite working diligently, staff were unable to overcome unspecified factors of complexity and time slippage, as you claim, and were only able to prepare the staff report 4 days before the Committee meeting date, incorrect, misleading, and totally unfair to the staff working on the file. They cannot defend themselves or set the record straight.

In fact, the timeline indicates that the staff recommendation report was presented to the then Director of Planning and Building, Bruce Krushelnicki, on March 2, which is 22 days before the 180 day timeline elapsed.

Then, the staff recommendation report was made public and sent to the Development and Infrastructure Committee on March 13. This means that the staff recommendation report was in Mr. Krushelnicki’s hands for 11 days.

One has to ask why this 11 days was needed if the planning staff process for the 180 day timeline was considered, as you claim, to be behind time, and if the responsible planning management staff was actually respecting the timeline. Did Mr. Krushelnicki really need 11 days to decide to support his staff, and where is the record of that decision process?

There is no apparent explanation of this seeming excessive use of time, given the situation, and its use as an excuse for the failure to meet the deadline of March 24.

What is also inexplicable is that the staff recommendation report was scheduled to be presented to the D&I Committee on March 30, and to Council on April 20, absolutely too late in the circumstances, and guaranteed to facilitate an ADI appeal to the OMB.

Even more inexplicable is that there was already a scheduled Council meeting for March 23, obviously 1 day before the 180 day timeline elapses, and this opportunity for a Council vote on the proposal was squandered with nary a mention.

Knowing all this on March 13, and before, the staff recommendation to refuse could have been scheduled for the March 23 Council agenda. The Mayor has authority to get this done. Why was this not done? Who is responsible?

Despite all this, four supposedly responsible senior managers ( Bruce Krushelnicki, Director of Planning and Building; Blake Hurley, Assistant City Solicitor; Scott Stewart, General Manager of Development and Infrastructure; and Nancy Shea Nicol, Interim City Manager and Director of Legal Services), who would have known all these facts – the expiry of the 180 days on March 24, and the already scheduled Council meeting on March 23 – still signed off on and approved the said, far too late, meeting dates for the staff recommendation report to get to Council.

In effect, this decision left the back door open for ADI to appeal on the easiest of grounds. The will of the public, and the staff recommendation report, were dead on arrival at Committee, and this seems to have been done on purpose.

What were these managers thinking or not thinking? Is this a deliberate action, taken regardless of the consequences for the city and public trust, or just stupid non-thinking?

Or is it worse, a case of creative bungling that sabotages the city interest and control over the rational planning of development within the existing OP and policy prescribed framework? This situation could do a lot of damage to the aspirations of city residents to develop according to a plan and process they have chosen.

How can we trust the legal department to present the city case at the OMB when they participated in this unbelievable muddle – headedness? They took the city’s legal right to decide on this development proposal and to refuse the application, and gave it away to ADI, and someone from the OMB to decide. Now what they want to do is confidential, and things are done in secret, and in camera.

Is this what the public is supposed to trust and have confidence in as proper, credible administrative implementation of the rules, regulations, and laws?

Tell us please, how this decision to kill the staff refusal recommendation, at delivery, serves the public and city interest? I want these managers called to account for how the interests of the city and residents are better served by what they have done in this case?

These points are what most of the other questions in my October 8 reminder message were asking. The responsible staff managers need to be called to account for what they did.

In all of this there is a role for the members of council, but particularly yourself, the Ward 2 Councillor, who would know, or be expected to know, all about what I have described here.

You knew about the March 24 expiry date of the 180 day prescribed time frame, and that the scheduled Committee meeting, and particularly the required Council meeting, where the staff recommendation report was on the agenda, were too late to ensure that the will of residents, and staff, met the planning rules and was therefore legally valid.

And yet you remained silent, and went along with what was happening, and what eventually did happen.

Why did you do this, remain silent?

Did someone advise you to do this, or did you just drop the ball? You are still going along with it, and actually making excuses and rationalizing in support.

You are even musing that maybe the killing of the city will on this development, and the forced OMB hearing, are not such bad things. This is beyond denial, bordering on delusion brought on by the forced acceptance, without protest, of the unchangeable nature of what has happened.

I could go on here and try to address the several digression aspects of your message, but that discussion does not really fit here, and are not what my initial inquiry and messages were asking about. One exception is about what I termed to be a gold rush and unethical mentality, using lies in advertising, and other selling activities, to promote projects that are not approved and at the OMB.

I will only say that if the city does not have bylaws restricting such promotions and advertising of unapproved project proposals, then the city should have one, and has the power to enact one. I suggest this as another policy development digression to add to your list for discussion.

It can get worse, and it is, as exemplified by a project on Plains Rd in Aldershot that advertises a 6 story, 75 unit condo, in preconstruction and coming soon, in an area where it is not permitted in the OP and zoning bylaws, and for which there is not even an application. Nothing is being done by the city about that developer behaviour either, and it is in fact being condoned.

We are on a very slippery slope, poised to lose control of development and our OP to speculators. The ADI situation is a test case that is being closely watched to see how easy it will be to bust Burlington’s Official Plan wide open.

Yours sincerely,

Tom Muir

Is there going to be another round to this argument?

And is Tom Muir ever going to see the “meaningful response” promised him by Mayor Goldring?  Or does the Mayor feel he has a 180- day time line.