By Pepper Parr
October 15th, 2019
BURLINGTON, ON
On October 9th, the Gazette published an Opinion column by Tom Muir that was based on his attendance at a Local Planning Act Tribunal. A link to that column appears at the bottom of this article.
It was lengthy, which is typical for Muir.
LPAT hearings are not bed time reading.
The readership response to the article was surprisingly strong.
On Saturday, the 12th of October the Gazette received the following from Kwab Ako-Adjei, Senior Manager of Government Relations and Strategic Communications.
“I wanted to take the opportunity to provide a clarification to a recent article, https://bit.ly/2q5unMg.
“The article includes a lengthy opinion in which the writer states that City staff had no responses or barely participated in the Local Planning Appeals Tribunal (LPAT) hearing for the proposed development on 92 Plains Road. However, neither the article itself or the opinion make clear that the hearing before the LPAT was a settlement hearing in which the City and the appellant were in agreement on the proposed development and the associated amendments to the City’s planning documents.
“In a settlement hearing, evidence must be provided to the Tribunal to support the settlement. This evidence typically is in the form of the expert opinion of a land use planner from one of the settling parties, as it was in this hearing. The other settling parties, such as the City in this case, do not call further duplicative evidence to support the settlement. It is in hearings where parties such as the City and a developer are not in agreement on the development proposal where the parties call their own witnesses to provide expert opinion, and cross examine opposing witnesses.
“It would be misleading to suggest that because the City did not have its planner provide an expert opinion that she did not act appropriately or that she did not represent the interest of Council’s decision to support the proposed settlement. Rather, the City’s legal counsel made submissions on the appropriateness of the settlement, including in the context of the in-force Official Plan. The LPAT hearing officer will consider the expert evidence provided, along with the submissions of the appellant, the City and the two participants to the hearing, and make a decision in the matter.
“The Notice of Settlement Hearing was also posted on our website, https://www.burlington.ca/en/services-for-you/92-Plains-Road-East.asp so residents could be aware of the hearing.”
We take the view that Opinion pieces are something you candisagree with but that the facts the writer puts forward are not debatable.
We sent the comment from the city to Muir and asked for a response from him. Muir said:
“I don’t know what to say as this just confirms what I said – the City staff Planner said nothing and the Legal staff said not much more and as I stated, which this writer appears to agree with.
“They did and did not do everything I said, and they have what I think are disclosure and professional duties as members of professional associations, that they didn’t act on.
“And the writer missed the part (section 3) of the story that indicated it was a settlement hearing as a part of it.
“The message initially went to MMW and TC and they knew it was a settlement hearing, and item 3 in the piece is as follows –
3. This indicates that the City agreement with the proposed settlement included agreement that the adopted but not legal OP was on the Table and they agreed to let the applicant Planner use it right from the start – they had the evidence from the applicant lawyer and they had to have agreed to it in order to say they had a settlement. The applicant Planner used an anonymous authority to say that someone at City told him this was the City directions anyways so he used it.
Tom Muir
“The City staff said nothing about the misinformation and the frank falsification of parts of the applicant Planners testimony under oath. I raised these points under oath and they know the facts but said nothing, so going along with it.
“And is it professionally appropriate to remain silent about my point 12, (and 10) as follows;
12. In EO 86 the Planner rewrites the statement of the in force OP so as to remove the second of the “shall” policies wording and change it to “is intended to” with respect to maintaining the residential appearance and character of the property.
“This is a frank and deliberate lie to falsify the policy statement wording. City staff said nothing.
“In my view, this blows up the Planners credibility and trust. I would also cite my point 10 above.
“Does this mean that “expert witnesses” can say anything they want? And the City staff bears no responsibility for untruths that they are frank and legal partners to? The writer says the City agrees and does not bring duplicative evidence to support the settlement. Therefore, they agree with it all.
“The City Planner is not an expert witness as the writer implies and this is my experience that I can document but is beyond this space.
“After the Hearing, I wrote her asking for information on my points 10 and 11 and I’m still waiting for a response. There are other requests from me that have also remained un-responded to.
“I stand by what I wrote, and caution the writer that I have a great deal more that I can say on this.
“This story was a short form briefing for the recipients.”
Muir was not told who sent the concern about the Opinion piece he wrote nor was he contacted by anyone from city hall about his opinion. He has said he is still waiting for responses from the Planning department.
We asked a number of other people we respect for their take on note from Kwab Ako-Adjei.
“Something doesn’t make sense here” was one response. “If the City wants to correct something that they feel needs correcting why didn’t they simply ask you for Tom ‘s contact information.”
The writer who insisted that their name not be used added: “Whatever your decide I would suggest you keep at arms length. Don’t put your name to anything in print. City’s Opinion Piece not The Gazettes or Pepper Parr’s opinion piece- with “none of your salt or pepper.”
“I still wonder what is motivating this? Why the need for this public exoneration? Who are they chastising The Gazette or Tom Muir?
Tom, the settlement was ordered by council on April 23rd. The staff were doing what council told them to do. See: https://www.burlington.ca/en/services-for-you/resources/Planning_and_Development/Current_Development_Projects/Ward_1/92-Plains/LPAT-Appeal-Update—92-Plains-Rd-East.pdf
Since council had directed staff to accept the settlement proposed by the developer, we can’t expect staff to do anything other than accept the settlement. To do otherwise would be to directly contravene a council resolution. They simply can’t do that, and we shouldn’t want them to either.
You know I’m no fan of LPAT/OMB and that I believe the appeals process is defective, but what was going on here is procedural stuff to do with formally putting in place an agreement made in principal months before, not an actual appeal against/defence of a decision. If you don’t approve of the proposed development, the decision in this case was council’s and it’s their decision on April 23rd you need to be concerned with.
My understanding is that this development only went to LPAT because the city failed to make a decision in time (see PL180373—Notice-2 on city website). THAT, to my mind, is unacceptable and happens far too often, and will be happening even more frequently because of the ICBL on downtown. It will also happen a lot more often now deadlines have been reduced in half by Bill 108, unless money can be found to resource the planning dept better so they can complete their work on time.
Once the city has failed to act, the development is in essence handed to LPAT to decide and all staff work, public meetings and everything else are pretty much moot. The city is in a weak position to insist on anything at this point, which is no doubt in essence why they chose to settle. That’s why it’s so crucial that council gets to make a decision in time. Personally I cannot see any acceptable reason for the council not having the opportunity to vote on every development proposal.
If I may, I would like a few answers to questions raised by this note from from Kwab Ako-Adjei, Senior Manager of Government Relations and Strategic Communications.
If this note is meant to provide clarification then some explanation of issues arising from what was said to be clarification is in order.
Why have City staff if they don’t provide expert evidence, and just leave everything to the appellant? Notwithstanding that the applicant Planner evidence was terrible, both sides in an Agreement should be heard.
Why didn’t staff provide expert evidence?
As I explained there were many issues arising from the applicant Planner evidence that needed clarification and confirmation that city staff should have provided but did not. What are they hiding?
I ask the writer to further clarify his logic that this would be duplication?
What makes this writer presume that LPAT would not want to hear from the City rather than rely only on the appellant’s planner’s evidence to determine whether this is “Good Planning” regardless of a Settlement Agreement?
This is not duplication because City staff should have addressed the compatibility issue according to the OP policies in place to evaluate this matter. As well, LPAT should have requested staff’s opinion on this matter.
In my opinion, someone from the City should have addressed with explanation how the application does (or doesn’t comply with the OP) as the Planning Act states that the most important document to implement intensification is the OP.
The existing OP was totally ignored by staff and an explanation is needed. I ask this writer to provide clarification around this disregard?
The City lawyer did not provide written submissions on these matters, as the writer’s words would imply. He only asserted orally, as I said, at the very end of the Hearing, almost the very same words as this writer states – that the settlement is appropriate and complies with the in force OP.
The City Planner said nothing and provided nothing. If you don’t provide Evidence in Chief, you can’t be cross examined. Any discussion is kept behind closed doors.
Overall, my article, and this writer’s attempt to clarify and justify what was done, raises the serious gut issue – did staff support the Settlement at the expense of professionalism?
I have been told several times by previous senior managers, and previous Council members, that planning staff are “independent and professional”, but I fail to see any trace of these in my direct experience of the Hearing.
And for that matter, I see none in this writer’s defense of what was done, written from the perspective of his role as Kwab Ako-Adjei, Senior Manager of Government Relations and Strategic Communications.