By Pepper Parr

January 5, 2014

BURLINGTON, ON
A four part feature on the city’s decision to sell small parcels of land that it owns that fronts on to Lake Ontario between Market and St. Paul Street. Part 1: The decision – how it got made.

It all began with a report that was the response to a Staff Direction put forward by ward 2 Councillor Marianne Meed Ward back in 2012.

Direct the Manager of Realty Services to report back to the Budget and Corporate Services Committee regarding the portion of Water Street located between St. Paul Street and Market Street providing the background and history and options available to the city. (Councillor Meed Ward) (SD-30-12)

Members of the original city sanctioned Waterfront Access Protection Advisory Committee did the early work on just what the city had in the way of windows to the Lake and just how accessible they were. Council liaison to the Committee Marianne Meed Ward is on the right.

The Waterfront Access Protection Advisory Committee (WAPA) had done some extensive work on the state of the twelve Windows to the Lake. WAPA members covered the city from one end to other and looked at every “window” location and commented. That mess at Market and St. Paul Street was included in their report.

Councillor Meed Ward did not expect her Staff Direction to result in the sale of the land.

Staff did a thorough job and came back with what appeared at the time to be a reasonable compromise that protected the property the city owned and gave residents whose homes abutted the waterfront property long term protection and the privacy they desired.

The since sunset Waterfront Access and Protection Advisory Committee produced a report with good graphics that set out what existed in the way of city owned land that could be opened up more effectively to the public.

The staff report came back with three options:

1. Create a City Parkette – connecting the St. Paul Street and Market Street road allowances
2. Develop Windows-to-the-Lake at St. Paul Street and Market Street and retain ownership with an exclusive lease to the abutting land owners until required for public use
3. Develop Windows-to-the-Lake and dispose of Water Street parcel.
and recommended option 2, leasing the land.

Council voted 6-1 for option 3 – to dispose of the land.

In a arriving at the decision to sell the land the city had a confidential report from the city solicitor. The public never got to see that document nor did the public get to hear any of the debate. All the discussion was done in a closes session of Council. The Burlington Waterfront Committee was so upset at that process they lodged an official complaint. We will report on how that went.

The view to the east from the edge of the retaining wall. This property has riparian rights that could have extended the pathway to the east a little further.

That decision opened up an opportunity for those people whose property abutted the properties, that were owned by both the city and the Ontario Ministry of Natural Resources, to make an offer to purchase land.
There is a lot of murky legal history surrounding the way the retaining wall was built. When Judges make decisions they become public information. One of the problems with the judicial system is that it wasn’t designed for the average man. Without case numbers and the ability to follow a judicial trail it is very difficult to follow the threads of a case. Just because a decision is made by a Judge does not mean it was a great decision; that is why we have appeal courts.

The City solicitor lets the public down with her tendency to keep information to herself; lawyers tend to behave that way. The practice is – say nothing unless you have to. Our legal system is an adversarial one. The public tends to get lost or forgotten in that kind of a process. The spirit of community engagement does not yet get much space in the office of the city solicitor and this Council seems to like it that way.
There is nothing preventing this city council from taking a position that every legal document is made public and ensuring that it is posted on the city web site.

The Staff Report with the recommendation that the property be leased was supported by Provincial Policy, Regional Policy, City Official Plan and Parks and Recreation policy.

The Regional Official Plan designates all of Burlington’s shoreline as “Regional Natural Heritage System”. Regional Official Plan Amendment (ROPA 38) Policy 125 (10) states; “To protect and enhance the Halton waterfront as a major resource that is part of the Provincially significant Lake Ontario and Burlington Bay shoreline.”

Policy 118(6) states: “Encourage the development of trails within the Regional Natural Heritage system”

Policy 118(14) states: “Encourage the Local Municipalities to: a) Acquire public open space on tableland adjacent to watercourses and along the waterfront within the Urban Area; b) Identify and designate along or near the waterfront of Lake Ontario and Burlington Bay, a continuous waterfront trail, making use of public road allowances in locations where public waterfront properties are not available”

Burlington Official Plan calls for acquisition of land to create new or add to existing Windows-to-the-Lake/Bay shall be encouraged by City Council, as a means to increase public access to the waterfront.

Corporate Policy – Parks & Recreation – Waterfront Trail (September 27, 1993) is provided as Appendix B – Waterfront Trail specific excerpts pertaining to this report are provided below:

The acquisition of land adjacent to existing Windows-to-the-Lake and Windows-to-the-Bay, as well as opportunities to create new Windows-to-the-Lake or Windows-to-the-Bay as they become available, will be considered by City Council, where practical and feasible, to increase public access to the waterfront.
It goes on to say: “A continuous Waterfront Trail will be implemented through development and/or redevelopment along Lake Ontario and Burlington Bay where there is sufficient land between that water and a public or private road. This trail may be composed of two components: a shoreline trail immediately abutting the Lake or Bay, and a near shoreline trail located in the general vicinity of the Lake or Bay.
And adds “The Waterfront Trails will be connected to existing waterfront public open spaces and, where appropriate, other points of interest in the general vicinity of the waterfront.

More: “The City will develop specific guidelines and a marketing program for the Waterfront Trail that will include, but may not be limited to, landscaping, fencing, lighting, signage, parking, construction materials and trail furniture, in consultation with the public, Region of Halton, the Halton Conservation Authority, and other public agencies.

And more yet: “Waterfront trail policies were introduced in the 1997 Official Plan. Since that time limited development along the waterfront has occurred. Waterfront Trail policy development objectives have resulted in the city expanding the waterfront trail and public ownership including:
Easterbrook townhouse development near the Royal Botanical Gardens (RBG), is one where the city required public waterfront access through the Official Plan Amendment (OPA) and rezoning application resulting in Spring Garden Trail.

This is where the the trail will end – it begins at the canal further west.  This may well be as far as it goes for the next century.

The Bridgewater project, that 22 story condo to be built on the edge of the lake, saw the city swap land so that a trail could be built between the water and the development – it is in place now. This is the eastern part of a stretch that goes west to the canal at the Hamilton border.

The Staff report that recommended leasing the land also set out the categories of public space that could be created when considering options including, Parkettes and Windows- to-the-Lake.

“Parkettes are described in the Parks and Recreation and Cultural Assets Master Plan as: Small landscaped venues intended to contribute to an area’s urban design, provide passive/rest areas and lower level park amenities; can be accessed by walking and cycling. They would have features that may include landscaped areas, rest areas, public art, monuments and related features.

You wouldn’t know it – but this is public property and anyone can walk out to the end and look over the lake. City will now put signage indicating that the land is public. Great views.

“Parkettes typically have Seating area(s), walkway connections to the community, bike racks and refuse containers. Some include creative playground structures, tree and shrub plantings; signage and fencing for demarcation of public and private property.

“Windows-to-the-Lake are described as small public areas located on city road allowances next to Lake Ontario or Burlington Bay; established to increase public access to the waterfront. They tend to have bollards or railings to keep vehicles on the road allowance and signage to identify as Windows-to-the-Lake.
The Staff recommendation was to preserve the land for future public use which meant: A) Purchase of the MNR portions of the waterfront between St. Paul’s Street and Market Street road allowances; retaining the ownership of the water lots; Creation of Windows-to-the-Lake on the existing St Paul Street and Market Street road allowances, Entering into lease agreements with the adjacent home owners for exclusive use of the public land between St. Paul Street and Market Street until which time the city decided to develop a waterfront Parkette.

Pros: Supported by the Waterfront Trail Policy, land remains in public ownership, retention of larger land base to create a future waterfront Parkette, retention of option to connect Market Street to St. Paul’s Street. Would provide formalized public access creating an opportunity for residents and waterfront trail users to enjoy the waterfront. Risks associated with shoreline protection is maintained by the adjacent land owners through agreement.

Costs and Liability issues with shoreline protection constructed by the adjacent residents in 1989 as per confidential Legal report L-20-13 can be accommodated in the lease agreement
Limits the establishment of further encroachments in structures or landscape development

Cons: Restricted public access to publicly owned properties along the waterfront is inconsistent with the Waterfront Trail Policy, Uncertainty for adjacent landowners on timing to develop future Parkette, Residential properties to the east and west of the road allowances limit the opportunity to continue the waterfront access beyond this site. Limited benefit as a continuous connection for the Waterfront Trail, existing properties contain encroachments that would require removal or integration into a future park plan and extension of the waterfront access beyond the site would require further land purchases or through development processes

Option Three to dispose of Water Street Parcel and develop Windows-to-the-Lake instead involved: Selling the city and MNR water lots between St Paul Street and Market Street to the adjacent land owners, creation of Windows-to-the-Lake on the existing St. Paul Street and Market Street road allowances
Pros: Access to waterfront would be formalized through two formally developed

Windows-to-the-Lake, proceeds from sale of property could finance a portion of the Windows to-the- Lake implementation, clear demarcation of land ownership with the formalization of the Windows-to- the-Lake, risks associated with the shoreline protection becomes the responsibility of the purchaser, resolves any potential legal issues as per confidential Legal report L-20-13 (which the public never got to see. Issues of encroachments would be resolved, development of Windows-to-the-Lake is a clear message to residents of the opportunity to enjoy the waterfront

Cons: Could be seen as inconsistent with Official Plan and Waterfront Trail Policy on public access and development objectives, no opportunity to establish a Parkette and waterfront trail with the sale of these public lands

Retaining the land for future consideration allows the city to plan for the purchase of land, capital costs for Parkette and Windows-to-the-Lake development and costs associated with repaying the adjacent land owners with the depreciated value of the shoreline protection works implemented in approximately 1989.
The following provides the capital and current budget impact for each of the options provided for consideration based on 2014 development costs.

This road allowance will be tidied up and turned into a window on the Lake. A bench will be put in along with a sign telling the public they can use the space.  Councillor Dennison did his best to ensure that signage and benches would be minimal.

Option One– Create a Parkette on Water Street Parcel
Capital expense of $182,000 plus $7500 per year to maintain the land.
Land costs and shoreline protection were set out in the confidential document.

Option two: Preserve for Future use
Capital cost of $80,000, which includes costs to construct and maintain Windows-to-the-Lake; $3500 per year to maintain the Windows on the Lake. Land costs were hidden in that confidential report.

Option three – Dispose of the land:
Capital cost $80,000 and $3500 per year to maintain the Windows on the lake.

Revenues from the sale of the land are identified in L-20-13; that’s the confidential report council got to read and debate – so they apparently know what the selling price is.

The Gazette has information that it cannot yet corroborate that the deal has already be closed.
Estimated cost for Parkette and Windows-to-the-Lake development, which is the leasing option, is $182,000. This does not include the land costs or costs to repay adjacent landowners for the constructed shoreline protection identified in confidential Legal report L-20-13.

Given that staff did not previously identify the development of this property for parkland, the Finance Department propose the use of Parkland Dedication Reserve Fund (PDRF) toward the development of the Parkette and Windows-to-the-Lake. The PDRF has an uncommitted balance as of June 30, 2013 of $9.8 million. Additionally, this park is not identified in the city’s current development charges study.

Taking ownership of this property will enhance the value of the three homes that abut it. The public will learn what was paid for the land – later.

The Staff report also said: “Upon receiving direction from council on an approved option, staff will develop and undertake a community engagement process which outlines the purpose, outcomes and participation goals of any engagement opportunity. Outcomes of the public engagement process will be reported back to council with concept plans for the Windows-to-the-Lake and Parkette development.

There has been absolutely no public consultation other than petitions from the opposing sides – each have radically opposing conclusions.

There is one more surprise – the public will not know how much the buyers pay for the property until the deal is closed.

Don’t you just love the way your council manages your affairs?
Links:
Part 2 The Scobie delegation – it made no difference.
Part 3 The Swartz situation – to follow later in the week.
Part 4 Meed ward position – to follow later in the week.