By Pepper Parr
August 4, 2014
BURLINGTON, ON
The Burlington Waterfront Committee (BWC) is patiently waiting for the report on the investigations being done by Amberley Gavel Ltd., the company given the task of looking into a complaint the BWC had about how Council handled the sale of property at the edge of Lake Ontario between Market and St. Paul Street.
Reports issued are delivered to the city which is the client – they are made public when that Council decides to make them public. Apparently the BWC people won’t see the report until it is released by Council.
Council decided on October 15th , 2013 to sell the property; a decision which the BWC, along with hundreds of citizens, opposed. What the BWC is really concerned about is the process used. The public does not know why this is being done. To suggest that it is because the area does not need any additional parkland is specious.
The Council decision included the following directions:
Direct the City Solicitor and Manager of Realty Services to work with the Ministry of Natural Resources (MNR) and enter into an agreement for the sale of MNR and city lots between St. Paul Street and Market Street to the adjacent land owners within the next six months; and
Direct the City Solicitor and Manager of Realty Services to report back to Community Services Committee if a sale agreement for city lots between St. Paul Street and Market Street has not been reached within the six month period .
In April 2014 the BWC wondered what the problem was – there were no reports coming to Council and the six months had passed. In late May, a report went to a Standing Committee asking for an extension on the time frame to come up with an agreement – an open ended extension at that.
Gary Scobie, a co-chair of the Burlington Waterfront Committee, delegated at the Community Services Committee on Tuesday May 27th, 2014. In his delegation Scobie asked “why the delay” and also wanted to know why the market value assessments had not yet been completed. He also asked: “What’s going on here?”
If there is no agreement on price Scobie thought the process should go back to square one. He was also upset with two other staff directions in the October 2013 decision.
The public was going to have input on the design of the “windows on the lake” at each end of the properties but no input other than what they got at the committee meetings in 2013 on what could be done with the land that council decided to offer for sale. The city had done a very poor job – they failed miserably to fully inform the citizens. Then General manager, Kim Phillips said “the city failed to live up to its normal high standard”. The self serving comment surprised many.
Public input on a matter that is central to how the city sees itself and a policy that is in place to protect the waterfront suggest perhaps that city council might want to take a second look at what they decided to do.
The decision to sell the property was one matter; the reasons for selling the property is another matter, which BWC believes the public has not been told.
City Council went into closed session when it made the decision to sell and then announced their decision but made no comment on the reasons why they made their decision.
The BWC understands that when it comes to discussions around the value of a piece of land and what it can be sold for – council has to go into closed session. “We`ve no problem with that”, said Deedee Davies, Co- chair of the Burlington Waterfront Committee. “What we are not OK with”, he added “is that the reasons for selling the property were apparently also discussed in closed session. We want to know what those reasons were.”
During the debate at Council in 2013, the biggest concern was that the city had too many parks in the area already and that more public space wasn’t necessary. The BWC doesn’t see the lakefront lands as a park – they see it as part of the city`s heritage and unless there is a really compelling reason for selling the land – which BWC says they haven’t heard yet – they want the land kept in public hands.
Scobie didn’t get a chance to ask those questions at the committee meeting. He was told that he would be held to a very strict limits on what he could ask – and that all he could talk about was the content of the report that was before the committee – and that had to do with why the delay was necessary. He could not talk about the reasons council had for deciding to sell the property in the first place.
A staff report presented to the Standing Committee said: “MNR staff has recently indicated to the owners that they are prepared to dispose of the filled Crown lands subject to the Ministry policies and procedures which includes the following key provisions:
The land must be sold at market value.
The City owned Water Street land must be transferred to the three landowners first before the MNR lands can be transferred.
The staff report went on to say that: “The respective policies require a fully documented appraisal process to determine the market value, and that both the City and the MNR are using the same valuation method and terms of reference.
All this was too much for the BWC – they decided to take their concern to the Ontario Ombudsman where they were told Burlington problems don’t get handled by that office – they are managed by an organization called Local Advisory Services.
To get the LAS to investigate one has to make an application to the Clerk and send along a fee of $100. The city waived the fee in this instance. Basically what one is doing is getting the city to agree to hire an investigator to investigate something a citizen feels the city has done that was not right.
Scobie says these “investigations are usually done fairly quickly, so we’re hoping for something in August. What we get is rather an unknown to us. Could it be a finding that the decision should not have been in closed session and therefore Council is advised (ordered?) to share the documentation that led to the decision? Could it invalidate the decision, because it was handled wrong? I don’t think we’ll know until it reaches us. We’re new at this.”
“Could it be an election issue? By all means it could”, said Scobie.
The Burlington Waterfront Committee came into being when the city shut down the Waterfront Access, Protection Advisory Committee (WAPA). Council came to the conclusion that basically nothing was being done. Ward 2 Councillor Marianne Meed Ward pulled together as many people from WAPA and formed BWC. She stick handled the group into an organization that was able to get things done and then she withdrew. She sits on the BWC but does not have a vote. She says she is there to guide and advise.
The BWC gets no funding from the city, but it does use city space for meetings – as do a number of other public groups. When the Waterfront Access and Protection Advisory committee was shut down both Meed Ward and Mayor Goldring said they would form committees to give the public a place to oversee waterfront developments. Meed Ward got there first and nothing was ever heard of what the Mayor had in mind.
The issues related to the land that the city wanted to sell include a number of court decisions that are cloudy at best. One property owner put up his land for sale; it was purchased. The buyer understood that the water lots were a part of the property, but the seller didn’t own the water lots. The seller undertook to obtain the lots, but the neither the city or the province was prepared to sell them. That case took place some 20 years ago, but it seems to hover over the current situation.
In a decision issued by Justice Borkovitch in 1993 he wrote: “On February 16, 1989, the defendants conveyed to the plaintiffs the building lot and undertook to obtain clear title to the water lots as soon as possible after closing. The defendants were unable to complete the purchase of the water lots and as a result are unable to convey them to the plaintiffs and therefore are in breach of the written agreement of purchase and sale. As well, subsequent to this closing, but prior to having heard that the City of Burlington definitely would not sell its portion of the water lots, the plaintiffs constructed a sea wall on the edge of Lake Ontario.”
There is apparently something in a court decision somewhere that allowed a fence on the property to run across the strip of land at the water’s edge, which is owned by the city and the province. That fence on the east side prevents a person from getting to the public land.
A real estate appraiser, who wants to remain unidentified, maintains he knows the “full story” which he promises to tell us, when the city actually sells the property – which he thinks they will do.
There is one amazing number in all this and that is that the property – including the water lots was sold for $545,000. The water lots were deemed to represent 35% of the sale. The deal eventually settled at $354,250 – you can’t buy a house anywhere in Burlington for that – and this was prime waterfront property.
The Burlington Waterfront Committee now waits for the report from Amberley Gavel Ltd, who work for the Local Authority Services, (LAS), which describes itself as a “preferred provider of competitively-priced and sustainable co-operative business services for Ontario municipalities and the broader public sector.” LAS is a wholly owned subsidiary of the Association of Municipalities (AMO). Burlington is a member of AMO. There are some that see a conflict of interest here and wonder if a draft of the investigators report will be given to the city for comment before it is released.
There isn’t all that much of a comfort level within BWC over the relationship with the parties on the other side. Making it an election issue might be the best course for those working hard, on their own dime, to save that waterfront land for the rest of us and our descendants.
This one isn’t over yet. Comments on the web site are pretty consistent.
Related news stories:
Public committee doesn’t like the decision made by Council on waterfront property.
I really don’t see the big deal here….amplification at its best.