By Pepper Parr
September 17, 2015
BURLINGTON, ON
Tom Muir, an Aldershot resident known for his persistent questions at city council meetings and what his council member might call ongoing badgering.
Muir is one of those guys that wants to look at the details – for he knows the devil is always in those details.
He currently wants to know why the city did not have a position on the application the ADI Development Group had made for Official Plan and zoning changes to the property at the south north corner of Lakeshore Road and Martha Street.
City council did debate the application at a Standing Committee and Staff put forward an excellent report which set out what the Planning department thought. During the debates at the Standing Committee it was pretty clear that no one at city council was on for this project and most of the hands went up saying this isn’t for us – but those votes are not recorded and have no standing.
Not on single member of city council was for the ADI development – but they never got to vote officially against the project. some either forgot to count the number of days before ADI could go to the OMB or there was plain rank incompetence somewhere.
It is the votes at city council that matter – and there was never a vote by city council because – wait for it – the 180 day period had ended the day before city council was to meet – and the ADI Development Group had taken their application to the Ontario Municipal Board (OMB) arguing that the city had failed to make a decision on their application within the 180 day deadline.
“I would like an explanation” asked Muir “of how the staff report on this project did not make it to Council within the 180 days mandated in the legislation.” The fact is the planning staff did get their report to city council and it was debated at Standing Committee. The other fact is that the Mayor either couldn’t count out 180 days or didn’t think it mattered all that much.
It is a very large building – the highest ever proposed for this city and is on a very small lot. The city planners recommended it not be approved – a Standing Committee agreed – but city council never got to officially vote no on the project.
There was more than enough evidence to indicate how ADI was going to behave – they had already taken the city to the OMB on a different development.
Muir is quite right however – there has never been a word from the office of the Mayor on the ADI development – there was a discussion at Standing Committee earlier in the week on a confidential matter related to the Lakeshore Road development.
Muir calls this a “a failure of transparency and accountability” – the failure is in the city not realizing the kind of developer they were up against. ADI knew what the rules were and he played by them.
The city did not have a scheduled council meeting and didn’t see any reason, apparently, to suggest to the Mayor that he call a special council meeting – he has the authority to do that.
The city has a major beef with this sign – don’t think it is legal.
The failure is that the city council apparently did not see this coming – when they should have. The Director of Planning should have had a meeting with the Mayor to advise him of the seriousness of a delay and then followed that up with a memo to cover his butt.
The Mayor should have seen this one coming.
The ADI development was on the agenda the evening council met to vote officially on the proposal. When city staff got word that ADI had taken their application to the OMB council was no longer permitted to discuss the issue – it was now in the hands of an OMB Commissioner.
Muir wants to “know the line of responsibility for this failure”. Look to the planning department, the city’s Solicitor and the office of the Mayor.
The ADI Development Group is converting a lower Brant retail location into a sales office for their Nautique project – as yet approved – for the corner of LAkeshore Road and Martha
Should ADI prevail at the OMB hearing, and there are a number of reasons to believe they will, the city will pay a high price in terms of the way they want to develop their downtown core.
There are better ways to run a city. The first hearing of the ADI application to the OMB is scheduled for March of next year.
Meanwhile ADI has opened up a sales office on Brant Street. They have redone the outside of the building and appear to be putting up a high end sales office. Many people are asking how they can do this when the project has yet to be approved by anyone. Good question. ADI can open an office to sell whatever he wishes – what he will be doing is taking registrations and perhaps a deposit from people who think they would like to purchase a unit.
ADI redid the front of the sales office location with stucco giving it a softer look. The detailing on the inside is very polished and sophisticated. There will be a lot of muscle behind their sales and marketing program. Their advertisements are already seen on web site with a considerable amount of newspaper advertising as well
The ADI people don’t do very much without the advice of their legal counsel – and they have retained a very competent firm, Weir & Foulds, to represent them. Expensive – but they are tough guys to beat.
Response to Tom Muir
Great assessment of the ADI application and the staff report.
As you have written previously, ADI would need a substantial counter argument to get an OMB hearing. With this staff report and a council rejection it may not have been possible.
Burlington had a strong justification to reject this proposal, the citizens asked them to reject it and council simply did not follow thru.
This makes your call for accountability paramount.
What finally gets built here is not as important as the trust this council has lost.
I was very disappointed that the ward 2 councillor was going on in her newsletter about the ADI sign being to large and that she wrote them about that- too little too late!! So she’s tough on sign bylaws but couldn’t write the other councilor’s about voting on time? As this is her ward we expected more. For some one who sees themselves as councillor for all the people in all the wards maybe she should just focus on her ward first. The whole of the city is too much obviously.
I wonder if ADI will let Meed Ward cut the ribbon to the opening of the sales office at the corner of Pine and Brant. The place will add some life to that corner for a couple of years.
I must say that I sent my message asking for an explanation to Councillor Meed Ward (and cc to the Mayor and City Manager) because she is the Ward Councillor, not because I hold her responsible.
I joined Meed Ward’s newsletter list at one of the Downtown workshops that were held, and just got my first one on Thursday last, which is dated September.
This is the newsletter I read and the one that prompted my letter.
I noted in my read that what was said was incomplete, and therefore misleading, to my understanding of what has happened to this proposal.
There was no mention:
– of the 180 day time limit,
– that the city didn’t meet it,
– that ADI has a legal right to appeal this failure to the OMB,
– and that city COUNCIL never got to vote on the staff report before the 180 day timeline, but in fact had the agenda item pulled from the relevant meeting because of that appeal.
I have been involved in OMB appeals before and from my experience it matters very much that the city didn’t meet the 180 day deadline.
This failure by the city allowed ADI to have a free pass to the OMB appeal.
In my experience, an appeal of a project refusal by city planners completed in the 180 days, and confirmed by COUNCIL, (not COMMITTEE) requires that a substantial counter-argument of planning and policy reasons be made to support the appeal.
This requires that ADI would have had to carefully read the staff report of refusal, and all the reasons and policy arguments made there, and respond to it in rebuttal. With this in hand, they can then appeal to the OMB.
ADI did not have to do this to support their appeal. As I said, they were given a legal free pass based solely on the failure of the city to meet the 180 day time limit.
The recent September Ward 2 newsletter I read did not mention any of this, except the ADI appeal, and to me the city failure and the consequences appeared like they never happened.
I have been concerned about this failure from the start, and further, that there has never been any explanation at all that I know of about how this happened, and who are responsible.
All I have read are excuses and attempts to explain any significance away. ADI, and any other developer for that matter, have this legal right, and ADI exercised it.
It happened before involving Eagle Heights in North Aldershot, when Paletta International appealed the OMB on the same grounds that the city did not process their application in a similarly timely manner.
The city appealed this appeal and lost. So now we are still at the OMB on this development proposal, many years later.
It isn’t really an effective or sufficient counter if COMMITTEE voted to support the staff report recommending refusal, or if an overwhelming number of citizens were opposed.
We are at the OMB with ADI having standing and apparent resolve, and citizens have no idea what the city legal strategy is about, or how we ever got trapped into this in the way we did.
I have asked for an explanation of how this happened. I look forward to a response.
In closing, I note a recent public meeting of the Mayor where he discussed intensification. At that meeting, the recently retired Planning Director, Bruce Krushelnicki, spoke to the idea, his opinion, that it is usually better to negotiate with the developer proponent than to go to the OMB.
My experience, limited as it is, has shown to me that the OMB encourages the developer proponent, and the city, to negotiate, and they always want to narrow the issues.
I don’t know at this time which is the best way forward, but Mr. Krushelnicki was the Planning Director when this failure to meet the 180 day timeline occurred.
Maybe he was right about finding out if the citizens, the city, and ADI can all live together with something negotiable and supportable.
Whatever might happen here, it would be consistent with a thread of Councillor Meed Ward’s Downtown workshops objectives of trying to cooperate and agree, rather than just disagree and fight.
Tom, I must say I agree with your assessment and many of the other comments on this whole article. Here’s my theory.
Council wants something built but not 28 stories. They get development dept. to draft an excellent rebuttal to ADI’s ask. But they don’t get it to Council before the 180 day limit, knowing ADI will jump to the OMB then. And they never actually say what they would accept either.
Why would they do this? They want something built and they know it will have to be higher than the 8 stories allowed. So they put on a show for citizens that “looks like” they want to stop ADI, but it’s a sham.
They really want the OMB either to make them “compromise” at halfway between 8 and 28 which would be 18 stories, either by negotiation before the hearing even starts or by order after the hearing is over.
I believe ADI really only wanted 18 stories to begin with, so started high. I believe Council would settle for 18 as well, but only if “forced” by the bad old OMB. Everyone looks good at the end, except maybe the citizens who would just like an 8 storey building there. Sorry citizens – this was all planned to end this way.
The irony is that the final approved building may have resulted in a smaller development scheme than that which will ultimately be ordered by the OMB, had council in fact been more proactive and engaged (staff excluded, this was all council’s responsibility). I also thought that the ADI submission has recently been amended from 28 down to 26 storeys?
In keeping with your nom de plume, I hope you JEST.
Whatever, I hate conspiracy theories.
I prefer evidence based reasoning. The OMB at its best tries to do this I think, but maybe I’m being naïve.
At least they will provide a rationale for whatever they decide if that’s what happens.
Back to the evidence, I would consider what the city planners wrote about the ADI proposal data, and then try to figure out what might fly.
Can’t do this right now. Will look.
You should look too and see what you can rationalize based on the policy frame and some of the numbers.
Make no mistake, this is a very small site and a very difficult file.
A classic example of the Planners Dilemma – polar opposite arguments will be made.
In a previous comment on this story I toyed with the idea that maybe negotiation was possible to an all-round acceptable outcome.
I really take that back – it was a weak moment in a lapse of memory of what the ADI proposal and the city planning staff refusal actually said in detail.
This project cannot be negotiated down to acceptable as far as I can see. Except of course the OP allowed 8 stories, but I could go to 10, maybe.
No need for OMB with that count.
This situation goes well beyond the simplistic assertions that this is about intensification. This idea is divorced from the site context.
The ADI proposal is really WAY TOO BIG FOR ITS BOOTS.
ADI wants it to be the tallest and most dense building in the city, and not by just a little. There are no mitigating circumstances, and ADI offers none.
The BOOTPRINT is a miniscule 0.13 hectares, but wants to hold up 1661 units per hectare. The most dense in the city at present is 525, but most are 200 to 400.
ADI proposes to essentially build wall to wall on the property lines – almost complete lot coverage and minimal or 0 setbacks.
ADI wants coverage of 12.5 times the lot size instead of the zoning 4.0 – compatibility reasons and arguments be damned.
It would be at zero setback, and therefore, 6 inches from the wall of the office building to the west. How does this get built?
To the north is a single family residence that would have a zero landscape buffer, and be so squashed and overwhelmed by the height and mass that it would have zero redevelopment value.
Oh, and don’t forget the three stories of parking located directly above this residence, and open to noise, lights, and venting of emissions.
Fairly new 3 story residential located just north again will also be negatively impacted.
The real story goes on and on, and I think the city planning staff did a thorough and fair assessment and their decision to refuse is well supported by the entire policy framework governing.
As I said, ADI is too big for its boots.
To reach for something negotiable I agree with the staff report that ADI needs to offer the residence to the north and the office to the west, an offer they can’t refuse.
That might make their boots big enough to be taken seriously by anyone who takes the time to read the evidence.
We need some thoughtful people to help the city here, not rednecks, long knives, and vested interests.
PS I note that ADI’s marketing initiative for this project has just recently expanded from on-site billboards, a serious downtown retail sales centre, digital media sites to now include radio advertising on 680 news.
Apparently Meed Ward fumbled this one badly. This happened on her watch and as I said previously, within short walking distance of her home. This is what happens when you elect some one who has no understanding of how big (or small, for that matter) developers work. The most distasteful aspect here is how she is trying to deflect and minmize the seriousness of her blunder. No where to hide on this one and its a doozie!
Firstly, Meed Ward is wrong; council’s failure to vote IS a big deal, for a variety of reasons.
Secondly, nobody has yet mentioned that there is a way to put this situation back to where it should have been prior to the 180 day deadline; there does not need to be an OMB hearing if council does the right thing.
However, the problem to resolving this situation (assuming that not going to the OMB is better than going to the OMB, which arguably is the case) is twofold; (i) finding somebody at city hall who is actually capable of initiating the solution; and (ii) council’s will to actually not have this matter go to the OMB… but it seems apparent that council wanted and continues to want to proceed to an OMB based decision on directing development in the downtown.
Can someone clarify– just looked at newsletter and she doesn’t mention 180 day oversight. Instead it sounds like council just turned it down according to her take. Which is correct ?
Editor’s note:
Your city council works like this.
Staff produces reports. Those reports go to one of the Standings Committees where they are often vigorously debated.
The report on the ADI application for changes to the Official Plan and changes to the zoning on the property at Lakeshore and Martha were not recommended by the planning staff.
Council didn’t debate the report all that much – there was no one on council that favoured the development. 28 storey’s was just too much for them – even though there is a 22 storey structure going up a couple of blocks to the west on the Lake side of Lakeshore Road. That project – called Bridgewater was approved in principle back in 1985
It was clear to everyone that ADI was expecting the project to be turned down by city council and there strategy was evident – they would go through the motions and when turned down by the city – which they expected, they would take their argument to the OMB.
What ADI didn’t didn’t expect – it was like a gift to them – was that the city would fail to actually vote against the application. The city council did vote against the plan at the Standing Committee – but those votes have no force. It is the members of city council, sitting as a city counci,l that casts votes that result in by laws which are what govern the city.
Meed Ward set out the chronology very well – she is arguing that city council’s failure to actually vote against the project is no big deal. It is the OMB Commissioner who will decide if that mattered or not.
ADI can, and depend on it – they will say that the city did not make a decision within the 180 day time frame.
Good for you Tom for exposing the ward 2 councilor’s true colours. (Six words edited out). Don’t lay off the tough questions on this one.
Response to editor
According to the ward 2 councilor, ADI’s grounds for appeal to the OMB was a failure of the city to make a decision within the 180 days.
As you say, we do not know if this will have an impact on the OMB decision however, we do know that ADI used this to open the appeal and Burlington tax payers will be on the hook for councils failure to provide a decision.
We received the following from a reader. He makes a strong point.
It may be helpful as a start for Tom Muir to visit the ward 2 news letter. Since this project is in that ward the Councillor posted a timeline for this application.
She explains why the city was late and feels that it was no big deal in her opinion. Since she was aware of the 180 days and how ADI approaches things I would disagree with her take on this.
Usually the strongest Councillor for Burlington citizen involvement and effecting her ward directly, I would think she would have insisted that a timely meeting be called for a vote on this, or at least provide a heads up for the Mayor if he wasn’t aware.
Editor’s note: Time will tell if the failure to hold a vote has any impact on the decision the OMB Commissioner makes; that decision will be final – it cannot be appealed. The ADI group has is spending significant sums to market this project – do they know something the rest of us don’t know?
Interesting points you make. Normally she’s be on her soapbox about it. Wonder what her motivation was to ignore her stance this time….
The failure to vote will have an impact on the decision making process at the OMB – absolutely, 100%.
Obviously, there will be other more heavily weighted factors in the decision making process, but, the failure to vote on a major redevelopment issue such as this is very odd and speaks loudly to how some members of this council function.
Sam, the quick answer to your question is an unequivocal YES!
The train has left the station while the ward councillor was asleep. ADI will prevail with the OMB so we might as well start to embrace their plan…like it or not. These are the cards Council has dealt us.
Can someone explain to me why Martha St high rise = bad while Bridgewater=good? Lots of hoopla about the former but is this not just the shape of things to come; especially as Burlington seems to be celebrating the latter?
Editor’s note:
I can help you with your confusion. Bridgewater was approved in 1985 – it has taken that long for the original approval to get to the point where a shovel is going to go into the ground in the New Year.
Prior to 1985 – as city council was getting to the point where they were ready to make a decision – city council was looking for a structure that would set Burlington apart from other municipal. The structure was going to be statement – it was going to have a status that no other structure would have – think in terms of the Empire State Building.
This was 25 years ago – think how much the world has changed. Burlington’s civic administration was not that far from the rural community Burlington was – we were the garden to the world. Go to the search engine and read some of the material Mark Gillies has written about the market garden we were. There was a very clear identity then and they apparently wanted to make a statement – and that statement was going to be a skyscraper.
Thea land had been assembled but the idea languished – and newer more progressive politicians got into office and the decided the pier was going to be the statement. Well we know what happened to that one don’t we?
Bridgewater is on a large piece of property and ties into the waterfront it will be seen as an extension of the waterfront.
The ADI development is a bigger – taller is the better word on a small piece of land and does not fit into the schematic of the waterfront. It is a rude building bullying its way into the city.
The Gazette will be writing much more about these two projects. Stay tuned
I wonder who got paid off with this 1 day over sight. Such a joke. Tell me the pig’s aren’t getting greased.
There are other reasons why this situation is where it is today.
Unbelievable (actually, inconceivable) that this all continues to be played out within short walking distance of where the Ward 2 Councillor lives.
ADI has a polished professional approach and is determined – please see Dundas and Sutton where residents concerns were forwarded – Councillor Sharman was engaged and still approved. I am personally not if favour of the ADI development and fail to see how an entire council can be against it.
A simple solution – to build the presentation center – permits and other paperwork would need to be authorized – could not the city just not issue the paperwork for the presentation center ?
I am not sure if this would work however given the ADI past with the OMB and how far this is down the road – I think there is little the city can do now
Editor’s note: The city did try to find a way not to issue the permits ADI needed to build the sales centre – they found a loophole. They are a very determined developer.
Our mayor and every council member went thru the motions on this one.
They engaged the citizens,city staff and publically they were all against the development. When they failed to vote and send the city’s decision to ADI they clearly told us the opinions of citizens, staff and even their own words mean little to them.
If ADI wins or looses is now less of an issue than the trust this group has lost. It’s open season for developers as we have no one to speak for Burlington.
People should be worried about how this matter was handled by council.
This apparent mismanagement will end up costing this city in the millions. This is an example of how not to do business. It really is a bit sad that the mayor did not take the initiative on this development proposal, and not simply pretend the whole thing would go away some how. Council members have to understand that taking a do nothing stance and/or a nimby position comes back to bite everyone in the form of an OMB decision. We have a bunch of council members acting like amateurs standing up publicly for all the neighbourhood nimbys without explaining the reality of what is coming. Irresponsible, unaccountable, wreckless, selfish, political preservation at the expense of taxpayers; some are stupid taxpayers. Or, maybe this mayor simply does not know what to do now and what to do next, like this ADI case. It actually works out well for the mayor, all he has to say is he did not support the development and it was forced upon the city by the OMB, and all will be well for the next promote using your bike to work campaign.
It doesn’t take a rocket scientist to see what’s going on here. There’s nothing to investigate, the evidence is all right there in front of us.
The Province wants intensification. The City NEEDS intensification, otherwise our taxes are on the verge of skyrocketing. Intensification and development, as much as this city needs them, are bad words in Burlington, and Council sees that. Their interest is to remain elected, so they say what people want them to say. In the meantime they know full well that applications like ADI’s are a slam dunk at the OMB, because they make perfect sense and do exactly what the Province (and secretly the City) want. So, Council plays the game, saves face with their constituents, boo’s anytime ADI’s name is mentioned, and then can act upset and say things like “Dog gonnit!” when the OMB eventually approves ADI’s application. That darn OMB. Elected officials rely on the OMB to make the unpopular decisions they secretly want, but are too afraid to make on their own. It happens all the time. Unpopular decisions aren’t good for job security afterall, but sometimes they’re needed for the betterment of the city.
180 days is a long time and it’s a well known target, especially for contentious and highly publicized applications like this. To miss it by one day is just too obvious. If the Mayor and Council were really against this application, they would have found a way to make their decision in time. Leadership by indecision. It’s a win-win for City Hall.
City Council voluntarily made fools of themselves on this one. This from a first class city? ADI plays hardball. Burlington plays T-ball.