An up close look at what took place at an LPAT meeting - scary.

News 100 redBy Pepper Parr

October 9th, 2019

BURLINGTON, ON

The Gazette received the following from the city three days afrer the article appeared.

“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.”

If you have heard of LPAT; know what the acronym stands for – read on.

If you don’t – quit now.

LPAT is Local Planning Appeals Tribunal.

It is the level the developers and city can turn to when there is a difference over a development proposal.

Few of the people who follow this stuff have much that is positive to say about the tribunal.

A handful of people chose to sit in on an LPAT hearing at city hall recently.

Tom Muir, one of the types that keeps up to date on this stuff attended – here is what he had to say on what he saw and heard,

I want to provide you with a short briefing on my experience. I have provided you with extended notes and comments on this appeal evidence so I will stick to key points and, as it turned out, a long one page of 13 points.

1. The Lawyer representing the City, David Klacko, and the City Planner, Melissa Morgan, indicated to the LPAT Chair that they would not be presenting any testimony or evidence. Over all, from my perspective over the entire Hearing they might as well have not been there.

Plains Road 92

Architectural rendering

2. The Applicant lawyer and Planner disturbed me when they went straight to the adopted Official Plan as the first argument in the Policy Frame supporting the proposal (Item 12 of 112 in the Evidence Outline).

I was further disturbed when the City Lawyer and Planner said nothing at this time about this and as supposed professionals with obligations of disclosure, did not indicate that this adopted OP was not in the City Policy Frame for policy and thinking in this application.

It was only at the very end of the Hearing after all the testimony was done, did the City lawyer say about 20 words to indicate that the adopted OP was not in the City policy frame here, but that the proposal conformed with the in force OP.

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.

4. This applicant Planner stated that the amendments requested conform with the general policy directions of the new draft Burlington Official Plan (EO 107). He also stated that this adopted OP conforms to the Halton Region Official Plan when this is patently false as the Region did not approve it on the grounds of non-conformity. The applicant lawyer tried to argue that the adopted OP is legal and can be used.

5. Overall, in this Planner testimony, there was a great deal of emphasis on the adopted OP in support of the application and settlement. In this testimony, given under oath, there was a total disregard and no mention for the “shall” or mandatory OP and Zoning policies specific to this site. City staff made no comments. There was no explanation or planning rationale provided for disregarding the “shall” provisions. City staff said nothing.

6. I was given 20 minutes to testify under oath and I raised a large number of issues from this previous testimony and from my own evidence. I will provide only a few of the key issues here. The City Lawyer did not cross examine my testimony.

6. There was applicant Planner disregard to compatibility policies with only 1 criteria mentioned (upper floor setbacks) out of the City policy number of 13. City staff said nothing.

7. Nothing was said or evidence provided about the City policies on intensification adjacent to existing low density neighborhoods. City staff said nothing.

8. There was no evidence or testimony about the City Policies around Urban Design and City Guidelines for Mixed Use and Residential Mid-Rise Buildings. City staff said nothing.

9. These policies are indicated by the City as policies subject to “shall” be done for all proposals. Nothing was said or done by either Party on these.

92 architect plan.

Site rendering.

10 The applicant Planner misleadingly wrote in EO item 10 (Subject; Surrounding Land Uses), and further stated under oath, that a “property at 105 Plains Rd received approval in 2013 for demolition (done) in order to construct a mixed use building, however, building permits for the mixed use building have not yet been issued. In addition, in oral, he stated that an 11 storey building was planned. This was not only misleading and untrue, but there is no such application in the City files.These statements were presented as I noted, as a surrounding land use and were taken by the Chair as a factual support for the 92 Plains proposal.
City staff said nothing to factually clarify the truth of the matter. I wrote the Planner yesterday asking for this information, which she should have, but I have not heard anything back.

11. The applicant Planner repeatedly (10 times; EO 11, 39, 54, 56, 62, 67, 72, 83, 99, 111i) and incorrectly stated, that the proposal at 92 Plains Rd was within 500 meters of the Go Train station, which is a MTSA, and therefore the site is in the Mobility Hub area having a 150 unit/ha target. He used this to repeatedly argue support for the proposal and this is misinformation used in a misleading way repeatedly.

This estimate of distance is important because of the MTSA target boundary, so I had two different distance estimates to dispute this in testimony. The first is an estimate from Google of 600 meters straight line, and a second is by car from parallel to the Go station building estimated straight down Waterdown Road to Plains RD corner light, which is about 650 meters. Note that these are straight line distances and nothing moves to the GO in a straight line from the site on 92 Plains Rd.

City staff said nothing to clarify.

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.

13. In the written and spoken under oath testimony the applicant Planner committed a significant number of omissions of relevant evidence, states partial evidence resulting in misinformation, untruths such as above, fallacies such as non sequitors, false dilemmas, begging the question or circular arguments that have the conclusion wanted based in the premises, and others beyond this space.

Muir making a point

Tom Muir making a point at a community meeting.

I have written more here than I expected and there are many more points I could cover. I will also say that the City staff, and the applicant Planner, having professional and disclosure duties associated with the law and planning professions and oaths of office, could have helped me and the Hearing and Chair, with getting to the truth and the facts, but they chose to remain silent and not assist in this.

What was clearly wanted, and certainly delivered, was a set of OP and Zoning amendments that is custom made to fit the settlement proposal. What the real plan or truth is has nothing to do with it.

In conclusion, I will say again that this settlement will have implications and consequences as a precedent setting model for what is to be willingly enabled, permitted and allowed in Burlington. It will be carried into whatever size you want to think of everywhere.

This is where your new Plan is going. “Ye who enters here, abandon all hope.”

Tom Muir is an Aldershot resident who knows more about Development Charges and far more than anyone should know about development in the western end of the city.

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7 comments to An up close look at what took place at an LPAT meeting – scary.

  • Gary Scobie

    Thank you Tom for detailing your LPAT experience and taking the time and effort to be a Participant at the hearing. Nothing you present bodes well for our chances to control our own intensification in Burlington.

    As a past Participant in an OMB hearing for the Adi application at 374 Martha Street and in an LPAT hearing for the Reserve Properties application at 409 Brant Street, I understand your frustration. The deck is stacked against supporters of reasonable intensification at OMB/LPAT and the cases made by the City to defend its stance are sadly lacking. Your experience shows no improvement, at least yet.

  • Penny Hersh

    Typically the legal department in a Municipality does not have the expertise to handle an LPAT or OMB Appeal. This work is contracted out to a Legal Firm that does. So why are we so poorly represented? I asked a lawyer this question and the answer I got is that the outside legal firm follows the directive of the City Staff.

    Perhaps it is time to look at just who is running the legal department at City Hall? Perhaps a change is needed? Just because someone has worked for the City for many years, in legal, human resources, building, planning etc. doesn’t mean that times have changed and new people with different approaches may be the answer.

    Burlington seems to be like a revolving door, with another longterm clerk leaving for a better workplace.

  • Joe Gaetan

    This is a replay of how COB handled another infamous OMB case. Nothing was learned from that experience, where was the oversight from our top dog(s).

  • Lucy B.

    This is an extremely troubling account of this one particular LPAT meeting. How can Burlington residents trust and have confidence in our city representatives (lawyer, David Klacko and city planner, Melissa Morgan, in this particular case) if what has been reported here is accurate? It is so disturbing to realize just how poorly the residents are being represented when dealing with developer appeals to LPAT when concerned, knowledgeable citizens such as Mr. Muir enlighten us about such matters! I have learned a great deal from Mr. Muir through his articles and comments on this site and appreciate the “work” he freely does on behalf of the residents of Burlington. Are paid city staff working on behalf of the residents’ best interests? It certainly doesn’t appear to be the case. A sad situation, isn’t it?!

    • Tom Muir

      Lucy,
      Thanks for the kind words. On the accuracy, I can only say that there was another Participant who presented with me, and another citizen observer, throughout the entire Hearing, and they read and heard everything that was presented, and can vouch for what I wrote.

      I have much more I have written as part of this LPAT. There is a lot more to be said.

      I don’t have your contacts so that I could send you the written testimony (but not the oral of course) presented by all who did so.

      Perhaps, if you could get Pepper or someone you know that knows me and has my email, you could get it from them and we can connect. I know you have your own trials going on down your way.

  • Steve

    Wait a minute, wasn’t the new Mayor elected to fight against the blatant overcrowding of the city by developers? The input from the city lawyer and planner at this meeting should tell you everything you need to know on how that fight is going.

  • Steve W

    “This is where your new Plan is going. “Ye who enters here, abandon all hope.”

    Yikes! That is disturbing. Thanks for your efforts Mr Muir.

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