By Pepper Parr
November 6th, 2020
BURLINGTON, ON
It was a Special meeting of City Council.
Mayor has the right to call a Special meeting of Council any time she wishes.
The Mayor has the right to call a Special meeting of Council.
The meeting had several items on the agenda.
Amendments to the Temporary Use By-law and By-law Regulating Temporary Outdoor Patios In All Seasons
The focus of this news report is the Outdoor Patio issue.
Council met on November 2nd at 1:00 pm.
There were a number of procedural matters, including the singing of the National Anthem and the Roll Call to ensure that every member of Council was attending virtually.
There was one delegation that pertained to the Amendments to the Temporary Use By-Law.
Brian Dean and the owner of Gator Teds spoke and explained how desperate things were for the restaurant sector.
Brian Dean represents the interests of the downtown business community.
Dean spoke on behalf of those restaurateurs who were interested in tenting some outdoor space adjacent to the premises
At 1:48 pm Council went into a Closed Session.
The Motion to go into Closed Session which read:
Move into closed session in accordance with the following provisions under the Municipal Act, sections 239 (2)(f) advice that is subject to solicitor-client privilege, including communications necessary for that purpose, with respect to Community Planning Department report PL-60-20 regarding Amendments to Temporary Use By-law and By-law Regulating Temporary Outdoor Patios In All Seasons (PL-60-20)
Closed Session End time: 3:02 pm
When they came out of that Closed Session they passed a motion to:
Authorize Executive Director of Community Planning, Regulation and Mobility, working in consultation with Director of Transportation, to approve extension of temporary restaurant patios and/or temporary retail space permissions on public property in connection with COVID-19 recovery to October 31, 2021, subject to such criteria and conditions staff deem appropriate; and
Authorize the Executive Director of Community Planning, Regulation and Mobility, working in consultation with the Director of Roads, Parks and Forestry and the Director of Transportation to undertake a case by case consideration of winter patios on public property and/or rights of way in downtown Burlington and to permit winter patios on public property and rights of way, where feasible, having regard to relevant operational considerations including winter control and winter maintenance of sidewalks and roads and general public safety;
There was quite bit more to the motion. We have set that out at the end of this article.
I could not see anything in the motion that was passed that related to solicitor-client privilege, including communications necessary for that purpose, with respect to Community Planning Department report unless the city’s counsel was there to tell the Planning people where they might be offside.
This is really very bad politics – a city council debating internally about which streets might be made impassable because a restaurant wanted to edge out into public space.
There are a reported seven restaurants who want to talk to the city about being able to have exclusive use of public space. I could live with that – just make the decision in a public setting
I have no problem with the restaurants getting a break – they certainly need all the help we can give them.
Every restaurant will have to meet with a Winter Patio Task Force that will meet with the restaurateur and go through all the details to protect the public interest. The Medical Officer of Health, Dr Hamidah Meghani, will be involved.
The issue seemed to be about snow removal and the problems the city would have removing snow. Brian Dean, speaking for the restaurateurs, said they would be prepared to take on the task of removing the snow by hand. That was nice of them wasn’t it?
Both Dean and the restaurateurs wanted clarity on the amount of insurance that had to be provided
What this amounted to was a debate about letting some restaurants take up public space and preventing you from using that space (sidewalks are an example) that the public was not permitted to listen to.
Lisa Kearns was bleating away about how good this is for the restaurants adding that “this is a dedicated and committed Council” adding that Council knows how to work fast. The Mayor went her one better. “This is the Help and Solutions Council”.
The public has no idea what individual Council members had to say during the hour and 14 minutes. Was it appropriate for the discussion to be in cl0sed session in the first place? And that should be a concern.
The balance of the motion the city passed is set out below.
Authorize the Executive Director of Community Planning, Regulation and Mobility, working in consultation with the Director of Transportation, to approve extension of temporary outdoor patios and/or temporary retail space on private property to October 31, 2021 subject to such criteria and conditions as staff deem appropriate; and
Authorize the Executive Director of Community Planning, Regulation and Mobility to grant or revoke such approvals, consents, agreements or other authorizations and take such other steps as may be required to give effect to the recommendations herein; and
Authorize the Executive Director of Community Planning, Regulation and Mobility to execute any documents and agreements necessary to implement the recommendations herein; and
Amend By-law 2020.422, a By-law to amend Zoning By-law 2020 of the City of Burlington to permit temporary outdoor patios as a result of the COVID-19 pandemic recovery efforts until October 31, 2021, attached as Appendix “A” to Report PL-60-20; and
Amend By-law 39-2020, a By-law to delegate authority to temporarily restrict the common law right of passage in connection with on-street restaurant patios and other on-street retail uses in Downtown Burlington to allow for temporary outdoor patios in Burlington until October 31, 2021, attached as Appendix “B” to Report PL-60-20; and
That the Director of Government Relations and Corporate Communications be directed to develop a landing site on the City of Burlington’s webpage as a resource for Operators to support consumer confidence in outdoor patios that are in compliance with municipal by-laws (SD-21-20); and
That the Mayor be directed to communicate to the Ministry of Municipal Affairs and Housing (MMAH), and local MPPs to request a review of provincial regulations requiring 3m setback from buildings for patio tents, and other aspects of the building code that may be an impediment to business during COVID19 (SD-22-20); and
That the City of Burlington implement a grant program to reimburse the costs of Building permit fees in the estimated amount of $5,000 from the Tax Rate Stabilization Reserve Fund for outdoor patio’s and tent structures when a building permit is required, with an expiry date of October 31, 2021 (SD-23-20)
It appears that Current Mayor and Council were trying to please certain downtown patio establishments and in the rushed process created a real health and safety mess not to mention ugly streetscape .
Thanks for the transparency
Yes, as you say Editor, the Mayor is empowered by the Municipal Act and the Burlington Procedural By-laws to call Special Meetings. The Clerk, however, cannot set a Special Meeting until he/she receives a petition of the majority members of Council that includes the purpose and time of meeting or an approved resolution of Council that contains the same information. The petition is a public document and we have asked for a copy of such petition or resolution of council for a minimum of 25 Special Meetings 2013 – 2020 since the infamous September 29, 2014 Special Meeting was covered by the Gazette and Tina Depko of the Burlington Post. The answer has always been the same; “no because we do not have one” with the exception of our most recent request related to the Official Plan approval of 2018 and our LPAT appeal which the city has refused to respond to.
You do not have to be registered in the municipal governance course, as is Mayor Meed Ward, to understand if the requirements for calling a municipal special council meeting are not available for inspection either voluntarily or through an FOI request, there is no transparency with regard to whether there was legislative authorization for the meeting to be held. As you know Editor that is the foundation of our LPAT appeal i.e. the city did not follow the legislated requirements for the Clerk to call the Special Meeting that resulted in 31 appeals and there is, therefore, no jurisdiction for the decisions made at the meeting.
Staff report CL-18-20 and its Appendix “A” are going to the November 10, 2020 CPRMC and Council on November 23, 2020. Page 2 of the report under “Special Meetings“ clearly states the current procedure by-law provisions are incongruent with the Act.
WHAT THE REPORT FAILS TO SAY IS COUNCIL HAVE REFUSED TO COMPLY WITH SECTION 240 OF THE ACT ON NUMEROUS OCCASIONS BEFORE AND AFTER AMBERLEY GAVEL REPORTED TO COUNCIL, DECEMBER 2014 THAT A MAJORITY PETITION OF THE MEMBERS OF COUNCIL WAS REQUIRED FOR THE CLERK TO CALL A SPECIAL COUNCIL MEETING. COUNCIL, THE CITY CLERK AND THE CITY LAWYER HAVE ALL ON AT LEAST TWO OCCASIONS REFUSED TO AMEND THE PROCEDURAL BY-LAWS TO INCLUDE SUCH A PETITION AS A PROCEDURAL BY-LAW FORM, A DRAFT OF WHICH WAS PROVIDED TO COUNCIL AND THE CLERK.
The availability of this completed petition or a majority resolution of council would have satisfied all who wished to ensure the council had the authorization to make the decisions they did at a Special Council Meeting before wasting the time and resources of the city, the public, developers and their relevant entourage and community organizations who are all simply seeking what each believes is best for our city. The availability of this completed petition or a majority resolution of council would have satisfied all who wished to ensure the Council had the authorization to make the decisions they did at a special council meeting called by the Mayor and set by the Clerk.
The proposed amendment to the Procedure By-law going to Community Planning, Regulation and Mobility Committee contains an unnecessary direction in 24.1 and a further incongruence with the Municipal Act which we wish to address along with other matters on the agenda.
We intend to register for a delegation(s) but not sure whether we will have the time in an extremely busy family and advocacy schedule Nov7 – Nov12, to complete the city`s requirement for delegation notes to be pre-circulated to Committee prior to our delegation being accepted. A requirement that we are not aware is not formalized in the Procedural By-laws.
The last time we set aside our family responsibilities to get the notes in with our delegation registration, the Clerk without explanation refused to register our delegation. Rather, than risk the same thing happening and not being able to undertake either of what we see as our family or civic duties we may have to wait until this goes to Council on November 23, 2020. By that time Minister Clark may well have responded to us with regard to our recommendations on changes to the Municipal and Municipal Elections Acts that will ensure Ontario municipalities can no longer thumb their nose at requirements set in place to ensure council takes the appropriate transparency steps to ensure jurisdiction for their decision making, the public are not only invited to the lectern – their voices are heard and only valid municipal election certified nominations get placed on Ontario municipal election ballots. Remembrance week is a good time for our government to receive such a proposal and ensure our municipalities make decisions that are in line with why we wear poppies at this time of the year i.e. honour the sacrifices that gave us our municipal democratic rights.
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Now that the new health guidelines have come out indicating that Covid 19 is now passed through aerosol droplets and the importance of proper ventilation I question yet again allowing for these plastic tents to go over outdoor patios?
We are now being told to make certain that the fabric masks we wear have 3 layers of protection. This is accomplished by many masks having a pocket where you can insert a filter. Last time I looked now one was able to eat with a mask on, so people in these tents will not be protected.That proper ventilation is essential and the proper distancing must be maintained.
I understand that the restaurants are desperate to have people in their establishments. How will the owner of one of these outdoor/indoor patios feel if a death from Covid 19 is traced back to their plastic covered patio?
Find it hard to believe that the City would put themselves in a position to be sued, after all the City will be the ones permitting these structures.
People need to continue to be cautious. Order in to support these restaurants, stay home and realize that the holiday season that is coming up will not be like those in the past. Learning to live with Covid 19, which governments are now telling us to do does not mean that things go back to normal.
I wonder how much weight from a heavy snowfall will affect these plastic structures?