By Pepper Parr

March 5th, 2020

BURLINGTON, ON

Those troubling 31 appeals to the city changes in the Official Plan?

Here is what we know.

On January 30th, the city passed an amendment to the Official Plan and made changes in the zoning for some of the property.

The city had the power to do that. Most of the current council was elected to bring about a change in the Official Plan and the zoning bylaw.

The Mayor declared at the time that it was an historic day for the city. It may well be historic – but for a different reason.

Anyone who doesn’t like the change in the bylaws, in this case the Official Plan and the existing bylaw regimen, has the right to appeal.

No one expected or was prepared for the 31 appeals that were filed within the 20 day appeal window.

Heather_MacDonald, Executive Director – Planning.

Executive Director Heather MacDonald did say that appeals are not unusual and there were hints from some of the planners and legal counsel that were delegating to city council that appeals might be forthcoming.

But 31 of the things? That is astounding and troubling on several levels.

We do not yet know just what the appeal documents say. We do know, or suspect, that they are appeals against the change in the Official Plan and the change to the zoning bylaw. Even that is speculation – the public has not seen the documents. The Mayor has, the Executive Director of Planning Heather MacDonald has, as has Nancy Shea Nicol, the Executive Director – legal.

We know that the members of Council have been briefed – to what degree is not certain. They have all lost their tongues.

The 31 appeals that were filed were delivered to the City Clerk. The Clerk has 15 days to send the appeal documents along to Local Planning Appeal Tribunal ( LPAT), the body that hears the appeals. That 15 days is reported to end on March 12th.

The members of LPAT are appointed by the province who, recently, appointed additional hearing officers and, troubling, decided not to re-appoint some hearing officers who had the reputation of being concerned about the environment but appointing several that come from within the development industry.

Marianne |Meed Ward: A Mayor with a vision and an agenda that has run into some heavy waves.

The Mayor has said she would make the appeals public but has yet to do so.

At some point the specifics of each appeal will become public.

In the meantime people in Burlington who pay attention to these things are concerned about:

1) What is it going to cost the city to fight 31 different appeals?

2) What if the city loses at the LPAT level – going to Cabinet with a request to overrule LPAT isn’t viable with the current government.

3) Will losing the appeal mean that all the work done on a new official plan for the city is now all for naught?

4) And what if, adding insult to injury, the city is stuck with the costs of the appellant?

It is the uncertainty that bothers the people the Gazette is hearing from: “Can’t the Mayor say something” is the phrase we are hearing most often – and not from just a handful of people. Scores is a better unit of measure.

Was the Mayor in over her head with the approach she took?

Did she ask the hard but appropriate questions to staff – like what could go wrong?

Risk is now a hot topic for the bureaucrats at city hall: was the risk on the approach taken by the city fully considered?

These are not polite questions but the answers are critical.

Meed Ward was superb in the TVO debate – well prepared and new when to pounce. The city isn’t seeing that same person during the troubles with the Official Plan amendment appeals.

Marianne Meed Ward talks frequently about the need for media that serves the wider community and makes mention of her experience as a journalist.   She was never a journalist – she has been an editor and did write a column for the Toronto Sun.  She is very effective on television panel discussion programs.  She was stunning on the TVO election debate.

Developers looked at the rules that were put in place when the Urban Growth Centre was accepted back in 2006. The city didn’t have to accept what the province handed out – Oakville didn’t. They negotiated different boundaries for the UGC.

The Mayor has hinted strongly that she intends to approach the province for a shift in the UGC boundary to something that begins at about Caroline Street rather than the current Lakeshore as the southern boundary.

Nick Carnacelli, centre, listening in on a conversation between Mark Bales on the left and Rosa Bustamente a city Planner. Bales is a senior vice president with the Carnacelli real estate interests.

The appeal situation is troubling – we don’t believe anyone expected the volume. The development community is making this their stand on what the current Mayor, and most of her council, want for the city.

The odds at this point are not on the side of the city.

Is the Mayor fiddling while the city burns?

She does use social media to get her story out  but has yet to hold a media event where direct questions can be asked.  Social media is, unfortunately, a one way tool – the writer says what they want to say and while you can comment there is really no give and take.  The politicians love it that way – but it isn’t healthy for a democratic society.

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.

By Pepper Parr

March 2, 2020

BURLINGTON, ON

In comments made when the Amendments to the Approved but-not-in-force Official Plan were passed by Council they argued that it took some time to get it right to have an Official Plan that could be defended at LPAT hearings.

Executive Director Heather MacDonald, centre, taking all the questions during discussion on changes to planning policy.

In a comment attached to the Media release sent out late last week Executive Director Heather MacDonald, who handles the Planning files, said it is not unusual for there to be appeals to Official Plan changes.

I don’t think she was ready for a total of 31 appeals (and counting?)

Lisa Kearns the Councillor for Ward 2, where much of the planned development is to take place, slipped some comments onto her Facebook page saying it was “important that you know what’s happening at City Hall.” And added that “This week marked the close of the appeal period for the planning policies that were approved by Council on January 30th for the lands in the Interim Control By-law (ICBL) boundaries.

A detailed explanation on what has and probably will take place – didn’t hear much of this during council debates. When the amendments and the zoning changes were voted on it was hailed as an historic day for the city.

“The ICBL (development freeze) will continue as a result of appeals which prevent the policies from going into effect. It is important that your Councillor provides clear and understandable information about the process. Many have keenly followed this year long process as City Hall sought to address issues of growth pressure and how transit designations affect growth

Why are we here today?
“The community asked me to deliver on pushing the city for a more sensible approach to growth and accountability surrounding development. I have been steadfast in keeping residents up to date on the approach Council has undertaken to achieve this.

“We have made it clear there is no simple approach or ‘silver bullet’ to untangle the complex systems that support planning applications that are not compatible with the community vision. A technical process has delivered solid planning policy that tightens zoning controls which address height maximums and podiums, street line setbacks, active transportation elements (ie: bicycle parking, mid-block corridors, streetscaping elements), and community institutional use.

“Through this process, areas within the ICBL boundaries were identified with no zoning designation, particularly near the Burlington GO. This means that the planning process everyone is familiar with through pre-consultation to statutory public meeting, and council decision do not apply to developments in these areas.

“The result is no public engagement, no community benefits, and no limits beyond the Building Code; applications go straight to technical Site Plan Approval. We have brought tighter zoning controls that the community supports in the land generally being downtown and at the Burlington GO.

Councillor goes long winded then buries her remarks on a Facebook page.

What does this mean to Residents?
“Burlington has committed to community responsive growth management that ensures growth respects council approved height and density for land use as set out in its planning instruments. For clarity, this includes the existing municipal planning policies, and any revisions from the Official Plan and Zoning Bylaw (ICBL) studies and recommendations. The resulting policies, that are now appealed, seek to deliver this for residents.

“This means residents can be confident that their elected officials are working in their best interest using the resources and tools best available. We will continue to defend these policies that represent good planning created by independent consultants.”

Councillor Kearns makes no mention whatsoever about what the city is really up against. The public has yet to actually see the appeals that were filed and thus don’t know what the appeal documents say. Nor does the public know who is representing the developers.

Has one law firm taken on the task of asking for the same thing in the appeals or will the city have to face 31 different lawyers?

A resident who managed to have discussions with the developers, said that they are very upset and believe they have a strong case. Only time will tell.

Mayor’s claim “Burlington is Open for Business.”

What we do know for certain is that nothing is going to get built inside the boundaries of the Interim Control Bylaw. And that cannot be good for business despite the Mayor’s claim that “Burlington is Open for Business.”

Councillor Kearns asks if the decision to make the Official Plan amendments and the zoning changes “was rushed”.

Her answer is no. Here’s why: “An interim control by-law is rarely enacted by a municipality because of the sheer magnitude of freezing development. Council voted to support Staff’s recommendation to enact this tool in the Planning Act as a response to:

• Growth pressures that continue to emerge for the lands in the study area where multiple pending developments propose intensities that are significantly higher than those anticipated by the 2018 Adopted Official Plan

• The role and function of the John Street Bus Terminal as a Major Transit Station Area (MTSA). Its designation as a MTSA was relied upon by the Ontario Municipal Board in its decision to allow a 26-storey development that was opposed by Council in 2016, citing that as a MTSA, the terminal could support intensities well in excess of those contained in the Official Plan.”

Everything in that dotted red line is frozen territory from a development point of view. No cranes in those parts of the city.

Kearns said: “I continue to stand by this decision and appreciate the strong position Staff bought forward for consideration. In the clearest terms, Staff would have been mandated to continue accepting and processing planning applications that vastly exceed in-force planning permissions. Essentially, it would be difficult to ever conclude a planning application for final recommendation without creating a new planning precedent. This is not an effective way to manage our city’s growth intentions.

“Were appeals expected?” Some yes but the 31 that came in the door in a few days must have been a shock.

“Did the City decide to extend the ICBL?” No, it didn’t. The moment an appeal came in the ICBL was locked and would stay in place until every last appeal is fully heard.

A great day for all of them – now they get to sweat out the hard stuff.

When the amendments were passed on January 30th, “Two scenarios were possible at the close of the appeal period on February 26th, 2020. The first would see no appeals to either the official plan amendments (OPA#119) or the zoning by-law amendment (ZBA 2020.418) that was approved by Council bringing the new policies into effect, and the subsequent lapse of the ICBL on March 5th, 2020.

“At that time, all new planning applications would be reviewed against said policies, resulting in a planning recommendation report either supporting or refusing the development application.

“… the second scenario has taken place. All it took was a single appeal to the zoning by-law amendment (ZBA 2020.418) approved by Council to extend the ICBL until such time the appeal(s) were dealt with by LPAT. The result is effectively extending the freeze on development for the entire land use study area.

The problem with this explanation by Kearns is that the impact of an appeal was never really discussed, unless Council did so in a closed session. The level of risk Council was taking was never detailed.

City staff did work diligently to meet Council’s commitment to complete the work within one year and lift the freeze on the lands within the ICBL boundary.

Here’s what happens next:
The City Clerk will compile the appeal record for all of the appeals filed and send them to the Local Planning Appeal Tribunal in order to schedule a Case Management Conference (CMC) at a future date under the LPAT which adjudicates conflicts during the process of land use planning.

Transparency:

“This council has committed to integrity and transparency on all issues, including the ICBL. Significant effort has been made to keep the public fully engaged and aware of each step of the process.” That doesn’t explain why Councillor Kearns published these comments on just her Facebook page.

To her credit she did say something. When asked by the Gazette for comments, Councillors Nisan, Sharman, Kearns, Bentivegna and the Mayor went mute.

Councillor Stolte – listens and speaks when she knows what she is talking about – fiscally prudent as well.

Councillor Stolte did send in a comment saying Councillors were informed of the appeals on the 27th and they were told then what that means – the ICBL would stay alive until all the appeals were heard.  Councillor Galbraith said the original Gazette report and the clarification set out his position.

This story is far from over. It will plague council and might take a hunk out of their hides.

We will know more when the city releases the content of the appeals. You can bet that there is a lot of strategizing going on at city hall these days. Know too that the Legal department budget either has or will be getting a major boost.

By Staff

March 2, 2020

BURLINGTON, ON

Ann Marsden has filed an appeal against the January 30th council decision to approve amendments and zoning changes to the city Official Plan and the zoning bylaws.

She is one of a reported 31 appeals filed with the City Clerk.

Ann Marsden is not a developer. She has been a candidate for public office on a number of occasions. When she ran for the position of Regional Chair, against Gary Carr who has held that job for a considerable amount of time she garnered 48,136 votes against the 79,775 votes  Carr received.

The Marsden vote was consistent across the Region.

Someone was listening to Marsden

In her appeal document Marsden said in a covering letter: “The reason for my appeal is that the January 30, 2020 Special Council Meeting was known by the Clerk (Angela Morgan) and the Chief Executive Officer of Burlington (Mayor Meed Ward) to be held outside Section 240 of the Municipal Act and City of Burlington Procedure By-laws:  64-2016 – current when the meeting was called and 04-2020- current when the meeting was held and were the legal framework for calling a Special Council Meeting.

Marsden will argue that the meeting was not properly called and that the Clerk took some short cuts that were just not kosher.  Marsden’s document, like all appeal documents, is detailed, repetitive and at times confusing – but she does have a point – a technical one but nevertheless a point.

Ann Marsden during an election debate.

It revolves around whether or not the public was properly and full aware that there was going to be a Special Meeting of Council and did the members of Council take all the steps necessary to make the calling of the meeting legal.

Marsden has argued that “The Council, therefore, was without jurisdiction to make the decisions they did that lead to 31 appeals being filed before the end of day February 26, 2020.”

“As I understand it an additional 30 appeals to mine were registered by February 26, 2020. Thirty appeals constitute a very large amount of taxpayer, citizen and property owner monies and time being spent before we the taxpayers of Burlington can move on and begin to enjoy our downtown as we should be able to.

Ann and David Marsden – delegating at city council. She does the talking, Dave takes copious note. They have been banned for a period of time from both the Regional Council and Burlington city hall. But they are back.

“Given my appeal deals with there being no jurisdiction for Council to make the decisions on January 30, 2020 that are being appealed I believe in terms of efficiency it would be prudent to hold my appeal first and before the end of March. If I am successful in my appeal the balance of the appeals dealing with the decisions made on January 30, 2020 will be moot as there will be no decisions to appeal and an appropriate order can be made by LPAT in terms of a properly constituted meeting being held to approve the policies that support the Burlington OP. With the benefit of consideration of the points made in the appeals this may well see a better understanding of what can be mutually acceptable policies for developers and citizens that will work in Burlington.

“Further, perhaps progress will have been made in dealing with the John Street MTSA improper designation and moving the boundaries of the Urban Growth Centre to one that better reflects the needs many have addressed at several public meetings and MPP Jane McKenna assured her constituents long ago, can be done.

“I urge you to give immediate attention to my application and the setting of a date so I can submit a factum for the respondent and the tribunal and subpoena witnesses for an oral hearing.”

This bus terminal made it possible for the Adi Development Group to get a 24 story tower approved on a site zoned for eight storeys.

The John Street bus terminal got defined as a MTSA – Major Transport Service Area, which made it possible to convince an OMB hearing (Ontario Municipal Board) hearing that the existence of a terminal with an MTSA designation justified the building of a 24 story tower on a site that was zoned for 8 stories.

It is those fine, technical points that result in surprising decisions.

The likelihood of Marsden winning her appeal (it may not even be heard) – slim to none – so don’t bet the mortgage money on it.  But if you’re the type of person who put $3 on a Lottario 649 ticket – why not?