October 21, 2013
By Pepper Parr
BURLINGTON, ON. Susan Ford, an Aldershot resident, passed us a note at the end of the City Council meeting last Monday evening (the 15th) asking “why has communication been so poor on this issue if “discussion” has been going on for a year or more? That park belongs to all of us.”
“What a mess” she added. Park area vandalism is not such a big deal. If they are so worried – then heck lets rid of all the parks.”
Brian Coleman wrote and asked why the city wasn’t listing the property so that others who might be interested could buy it. Coleman is of the view that a group of citizens might choose to join forces, raise the money and buy the property and then give it to the city and get a tax receipt.
Peter Menet pointed out that it is likely Councillors will find themselves in contravention of title restrictions, imposed by earlier deeds, should they approve the motion to proceed with the selling of these city lots. Also, there is a strong possibility that these title restrictions exist in perpetuity.
The owners of the properties between Market and St. Paul Streets are the people who want to purchase the waterfront land that is owned by the city and the province.
For this reason, he said it would be prudent of council to review all previous deeds related to these lots. He added that Councillors have not received any information on these city lots that is prior to 1990.
These city lots are shown in the Halton Atlas of 1877 as part of the sub-division of a larger lot, and hence these lots are parts of earlier deeds that more than likely have title restrictions, he said.
He pointed out that title restrictions that exist on the deeds of the nearby lots on Stratheden Drive and Strathallen Avenue. In the late 1940’s the owners of the land that became Stratheden Drive and Strathallen Avenue sub-divided land into smaller building lots, which were sold singularly to individual builders. I know that there are title restrictions on at least two of these lots and I believe that there are similar restrictions on all the lots on Stratheden Drive and Strathallen Avenue.
“Title restrictions exist and it is my understanding that all subsequent owners of the property are bound to them”, said Menet..
Brian Coleman thought a public auction of the land (like closing a road allowance?) so that the city gets the maximum price for the land if it is sold. Also to force all three land owners all to purchase (if only one does the parkette concept is ruined or seriously curtailed) if it comes to that. And the purchase of the MNR land has to be tied into the sale so that the city doesn’t acquire it if it doesn’t sell unless the parkette goes ahead.
Emily Skleryk, a ward 2 resident and an OPP sergeant who unfortunately did not identify herself as such commented that she was not comfortable walking on public land that is unmarked.
Brain Rose, a Beaver Street resident said he saw the whole process as sneaky on the part of the property owners who were demanding the city sell them the land or there would be a court action. He added that he could not find an instance of lakefront property being sold to a private person in the past. He added the refrain that many used – they didn’t know the land was owned by the city.
James Ziegler proposed a pathway through the properties. Council voted to make it private land.
Dean Dunbavin, a First Street resident said the property was one of the best kept secrets in the city and that he was “flabbergasted that you would make these decisions against everything you have in the way of public policy in place.. “Your decision” he added “defies logic.”
Paul Dunnett who lives on St. Paul had no idea the land belonged to the city. He has been walking his dog out there for 14 years and said the “walkway was a great asset”. “When it’s gone” he said –“ it’s gone.”
Dunnett said he thought the whole future of Burlington was to have waterfront.
Janice Connor, one of the property owners in a house that was built in 1938. Valued in 2012 at $1,927,000 with 100 feet of frontage on Lakeshore Road and an effective depth of 264 feet – before the addition of any of the provincially and city owned land, went after Councillor Meed Ward for not being as forthright as she should have been with the facts and then added that 90% of the people in Burlington don’t go to the waterfront and that “not everyone loves the waterfront”.
Connell closed her remarks with the comment that she didn’t think keeping the property would benefit the city.
Yikes – there are two statements she will come to regret having put out there.
There can never be a conversation about getting to places in Burlington without a mention of parking – there is none on either Market or St. Paul Street. All those in favour of creating a park agreed that this was to be a small, local walking park that would appeal to the approximately 5,000 people in the immediate vicinity. The land mass is about a third of an acre – it is the view it offers that is precious.
The people at 2414 Lakeshore; 220 St. Paul; 222 St. Paul and 235 Market fully understand this. They know that trees will be put up that will limit their view if a park is created on that land – and that isn’t something they ever want to live with.
There were 16 delegations (11 against selling – 4 prepared to see the land sold ) at the Council meeting– each got a polite hearing but that for the most part is all they got. Few were engaged by council members – there was precious little dialogue. Odd too that Councillor Marianne Meed Ward, whose ward boundary included the property that was being talked about, made very few comments.
She seemed resigned to seeing the opportunity lost and other than correcting Janice Connell over a technical point we didn’t here all that much from Meed Ward, during the delegations
Most of the questions were asked by Councillor Dennis whose ward is immediately to the east.
Some interesting and valid new information was put forward. The number of homes that were within a 1000 metre radios of the land that is to be sold was far more than what Janice Connell suggested at her Standing Committee delegation.
Russ Campbell one of the better Tory thinkers in town said on his Facebook page that : “There is precious little public access to the lake as it is without limiting it even further by selling land the city already owns. Yes, a complicated issue, but one that could have been settled in favour of the residents and not private interests.”
We heard the word “scandal” used more than once. I don’t see a scandal but I do see a bunch of people elected to represent the interests of the residents not doing their job of informing the public and getting solid feedback. For a senior staff member to admit that the “city did not live up to its usually high standard of public communication” was both a bit of a stretch and embarrassing.
Mike Swartz, one of the property owners, was seen leaving city hall a few days before the Council meeting. One observer who was in the building at the time remarked on the “fix is in” look he wore as he left the building.
Are Council members prepared to say when they met with Mike Swartz between the Standing Committee and the Council meeting and if they also met with the residents who were opposed to the sale of the land?
Don’t wait for the answer to that question.
What’s the rush with all this? A report goes to a Standing Committee on the 2nd of the month and then to council on the 15th and the deal is done? And there doesn’t appear to be any Ontario Municipal relief available to citizens who think this one doesn’t pass the smell test. Others think it stinks.
The Windows on the Lake, that should have been opened up much, much more to the public years ago, are finally going to be put in place. But that is small potatoes – a jewel from the crown that is Burlington is being pried out and sold under what has to be described as clouded circumstances. No wonder Rob Narejko says “this doesn`t pass the smell test”.
What is perplexing is – Why? There was no good reason for this land to be sold. And while some thought the sale would put major dollars into the city’s coffers, a closer look at this deal suggests otherwise.
Look carefully at the map set out below. The land being sold is made up of two parts: land currently owned by the provincial Ministry of Natural Resources (MNR), which is closest to the water and land owned by the city.
This graphic sets out the issue. The two pieces of land at each end are owned by the city and will be turned into Windows on the Lake. The piece in the centre is owned by the city and the province. The three property owners want to purchase that centre piece and make it private property. Other people want to see a pathway through the property running from Lakeshore, down Market Street along the waterfront and up St. Paul back to Lakeshore. City council voted t sell the land in the center.
The MNR has said it will do whatever the city decides to do BUT the MNR is not going to just give the land to the city. When the land is sold the MNR will surely want their share of the proceeds. Look at that map again – much of it is MNR land. What Burlington is doing to do is buy the MNR land, assemble it with the land it already owns and then sell the assembled land to the property owners that abut the lands.
That’s a lot of legal work being done to satisfy the desires of three property owners. What is the city getting for all the work it is doing? We don’t know – hopefully staff will report to the city before any deal is actually done.
This is really a cock-up of major significance and one would think that it can be prevented. Is a recorded city council vote of 6-1 against a motion the very end of the world? There are people who believe this is an issue that can be taken to the Ontario Municipal Board and have begun to organize their data.
There are a bunch of people on city Council that think the public is going to forget the decision to sell a small patch of prime waterfront property. And they might – publics tend to be that way.
But there just might be a legal initiative on the part of some people who feel this was just a plain wrong decision. It gets a little embarrassing when the Mayor of Oakville – the municipality next door – tweets “Hard to imagine this in Oakville!” Mayors usually stay out of one another’s business but this one as apparently just too good for Oakville Mayor Rob Burton to pass up on.
Former Burlington Mayor Walter Mulkewich pointed out to possible ward 4 candidate in the next municipal election Brian Heagle that: “… the City sold its soul. Bad decision. Forget the language of park and parkette -think trail and waterfront public access. This is selling out future generations and an opportunity to maximize public access to our waterfront which the goal of the City’s Strategic Plan and Official Plan, Council approved policy – and which Council blatantly disregarded. This decision was not a compromise – it was a sellout. The City Council voted for the private interests of three property owners rather than the broader public without getting anything substantial back in terms of waterfront access. Within the legal complications there could be a way to be sensitive to those property owners and still maintain a unique public access. They did not try. The City should improve Port Nelson window on the lake when they have funds available and not tie improvement of Port Nelson by selling your birthright and that of your children.”
Other than a few people who didn’t fully understand the issue there was really no one speaking for the decision council made. Well there was one: Byron Kaczmarek, who lives east of Nelson Park and therefore not directly affected by the sale of lands, once caught a couple of kids making out in his back yard – that would be upsetting – but is it reason enough to sell the land? Talk about throwing the baby out with the bath water.
There are all kinds of issues surrounding this mess that have been left unexplained. There is the legal history the city doesn`t want to make public. Other than tribunals that concern matters of public security and terrorists, judicial decisions in this country are a matter of public record. Anyone who wants to read a decision can get on up to a Court house and obtain a copy.
The Gazette doesn`t have the resources to take on this task – but the city certainly has and in the past has made copies of decisions available. The Air Park case is an example. So why not with the land complexities on the old Water Street property?
And what about the property on the east side where there are several properties that run from the lake up towards Lakeshore. Which ones have property rights? The most southerly property apparently encroaches on city land but no one seems overly concerned about that problem. Councillor Craven, who can get himself worked up into a lather when mention is made of encroachments in Beachway Park, didn’t utter a word about Water Street area encroachments. He did sit through the Council meeting with a grin that would have put the Cheshire Cat of Alice in Wonderland fame to shame. Other than telling the public that “making unclear muddled decisions gets us in trouble” and that we “cannot ignore the reality of the legal history”, which may be true but the public will never know because they have not been told.
Councillor Taylor, Ward 3, made an interesting observation when he said he got 48 emails from people but just one of the emails was from people in his ward. Taylor felt the area had too many parks already and the city should get what it could out of a possible sale.
He, along with Dennison, commented on the massive infrastructure deficit the city is facing. Sell what you can to get as much as you can seemed to be his viewpoint. All to catch up on an infrastructure deficit that was created in the last 20 years while they were serving as a Council member.
Particularly disappointing was the willingness with which Taylor would sell city owned waterfront land while he asks everyone to fight with him to save every square inch of the Escarpment. Councillor Taylor seems to feel he can have it both ways – a position that may well come back to haunt him should a candidate emerge to take him on in the 2014 election. It was a disappointing decision on the part of Councillor Taylor.
Councillor Paul Sharman explained that in ward 5 there were people who had homes adjacent to park land and life for them was terrible. The noise, the vandalism and the litter seemed to have changed the life style for many people. Sharman seemed to want to apply the same set of circumstances to the Water Street properties.
Is Burlington a city where we let our young people take over once the sun sets? Do we not have a police force that is costing us an arm and a leg to operate, that can bring some order to our public property? If we can’t manage these smaller parks whatever are we going to do if the Region strips all the homes out of the Beachway Park?
Far too many Council members seem prepared to just give up on keeping some form of public order in the parks. The role of municipal government is to maintain public order.
Sharman, along with most of the other council members referred to the messy legal history and explained that it was far more complex than the public realized – but, like the rest of Council, he was unprepared to let the public in on that complexity.
Meed Ward does say, without breaking the confidentiality of the Closed Council session, that she feels the legal issues can be worked out.
The Mayor took the position that keeping the land for future use wasn’t necessary because, should the three properties be redeveloped the owners would have to deed to the city a 15 metre set back from the edge of the water which would put that land back into the hands of the city. Neat bit of legal sophistry there –that assumes the 15 metre set back rule will still be in place at some future date. The Mayor saw this as a logical issue and not an ideological one.
This Mayor is certainly not married to the concept of getting as much waterfront land as possible into public hands and keeping it there. We’ve known for some time that the Mayor has gone looking for help in coming up with a vision for the city. We know now just how much help he needs.
For the Mayor it was ideology vs. logic. Public access where it is practical and feasible and the Mayor saw keeping the land as neither practical nor feasible.
It’s all about the view. The choice was making it a public view or a private view. Money and the fear of a law suite won out – the view ill be private.
Why sell the land – just hang on to it or lease it – and where did that $1 a year price comes from? Have you seen those views?
Lancaster seemed torn between leasing the property and selling it. Her comments suggest she would have preferred a lease. She commented that “option # 1 assumes we have a need for these parks and then made mention of the options to preserve the land for future use.”
Lancaster said she was “not of the opinion that we require this parkland currently” (and on that Miss Canada is correct) and then she added that “would we require it in the future” and here she was asking the question that was paramount. The answer is we do not know – but we do have policies that talk about preserving every scrap of waterfront land we can.
This is a Council that worked hard to create a Strategic Plan and works just as hard to consistently fail to adhere to the Strategic Plan they created.
What was interesting and a little disturbing was that Meed Ward chose not to lead much of the discussion at the Council level when delegations were being made. Once her motion to keep the land was defeated and Council went into Closed Session she didn’t say much. Jack Dennison led the debate and was determined to create Windows on the Lake – minimalist at that – and sell the land to the people who wanted to buy it.
Before the vote on her motion however Meed Ward had plenty to say but as she said later – the decision had already been made. She asked her fellow council members if they wanted more waterfront property for their citizens – and all the policies in place say you do – then just hang onto the property.
While Meed Ward was speaking Councillor Sharman, tried to cut Meed Ward off – we call that pulling a Goldring – but she fought back and claimed her 15 minutes. It is both embarrassing and a bit shameful to watch the way Councillors Craven and Sharman treat Meed Ward. The Mayor was the first one to cut her off when she was speaking – but he did change his behaviour and asked the rest of Council to respect the approach different Council members brought to their jobs.
Meed Ward claimed Council was not serving the residents if they let the land go. She added that the silly argument over the $7500 it would cost to take care of the land if it were in city hands was something she could fund from her Councillors budget.
The additional silly part of all this is that any parkette was not going to be developed for at least five years. It didn’t matter – Meed Ward asked for a recorded vote and was the only one to vote for keeping the land.
The public will get an upgraded Nelson Park and a couple of Windows on the Lake. The great view – private.
Councillor Dennison moved a motion to sell the land and that passed. In six months or less we will hear how well the property managers for the city have done with the negotiations to sell the land. If the Freeman Station deal to rent a piece of land is any example – this matter will not be over in six months – more like right smack in the middle of the election in 2014. Heck the deal just might fall apart.
Janice Connell whispered a touching “thank you” to Jack Dennison that looked a little like a kiss being blown across the room. Jack Dennison now has new friends in Ward 2, unfortunately they don’t get to vote in Ward 4 where Dennison needs all the help he can get.
The citizens who lost the debate gathered in the foyer while Council members approached the property owners to congratulate them.
Poor form people, very poor form.
The details are not as they have been presented by the three primary stooges of council, Sharman Taylor Goldring, and the overly conflicted local lawyer, Heagle, citizen of the year and confused political animal, who now has to remain silent in order to protect the insider access he currently enjoys over the rights of other individuals in this city. Heagle’s conflicts will haunt him during the course of the imminent election action.
This matter is not as complex as we are being led to believe. It is simply a matter of incestuous relationships leading to what appears at the surface, as being an exchange of favours between active political participants and one and/or all of the private property owners involved in the transaction (it would be interesting to discover the relationships between the private landowners and the people behind the decision making at city hall; that will be for another day).
Simply the facts: If you look at the property parcel ownership fabric, and see that the private landowners have had full use of government lands for a long time, it is highly likely this matter falls into the adverse possession/prescriptive rights category of debate. If not, then there is something less pleasant going on here; because you cannot acquire lands from the crown(MNR) by adverse possession, regardless of the basic rules governing such a situation between two private parties. The City also has full rights to acquire these lands either amicably or by expropriation proceedings; all for the public good. Sharman went off tangent in public, with his comments relating to riparian rights; this guy knows nothing about property rights, and about public process, policy, and applicable legislation guiding property rights. Guys like Sharman and misleading comments on technical property rights issues need to come clean and make the record reflect accurate facts and details; Sharman Taylor and Goldring capitalize on people who go along with the trust of everything that comes out of these guys heads; without any respect for TRANSPARENCY AND ACCOUNTABILITY of any degree whatsoever.
Another interesting thing nobody is familiar with, is the City could acquire these lands through development dedications from developments in other parts of the City. The Mayor just recently got educated on S.37 benefits that can be extracted in negotiations with developers; read Goldring’s take on how he understands S.37; its quite embarrassing to have a Mayor come out and try to speak intelligently about how development approvals and negotiations work. Where is the mayor’s chief of staff for protecting this Mayor? Where is the intelligence that can lead this Mayor to greatness? and without the likes of conflicted lawyers contaminating the minds of leadership in this city.
The OPTIONS FOR RESOLUTION presented to council were INCOMPLETE, as reflected in the city’s internal report. So, one can wonder if council was perhaps misled and the silly council members went along for another one of those ‘hide behind another legal opinion’ journey.
That gets us to this point in time. If this deal goes through with the 3 private landowners (longshot, unless already pre-determined), then how does one value the sale price of the lands? This is not a simple answer, but, there is an answer; an answer that currently is not being tabled by the city, probably because there is an effort to justify a depreciated value. Conversely, the city could come forward if not with the actual price being paid, then at least the valuation concept which would be applicable in this case; simply the formula and an explanation as to how one goes about valuing such a land transaction. Somebody could even organize one of those mayor type group hug seminars and educate other citizens who may simply be curious about property rights, property values, complex property rights issues. In fact, every property owner who owns lakefront property should be offered education by the city just in case others may be affected by similar type issues in the future, and amicable resolutions reached WITHOUT POLITICAL RISK.
Another way to appease the critics who are not going away from the underlying truth of this story, and will continue to chip away at this issue until some answers are forthcoming to the public, is to simply offer a summary chronology of the events leading up to the decision. Hypothetically, for example, 20 years ago the landowners began using public lands for private use, knowingly/unknowingly, and then they made some improvements including the building of some shoreline protection retaining walls, etc. and were generally left alone for awhile and then came an opportunity to bring the property rights issues to a head (in the secrecy of uneducated council members, and city staff, as protected by the city’s general manager who subsequently apologized for keeping high risk politics away from the common people who simply would not understand in any event).
Stay tuned. The conflicted, including the politically confused lawyer, will surface again soon to feed the ego and the building of the defense of this case, and there will be spin doctoring at the city for time to come. The City also knows it has an opportunity to back out of thsi situation by simply saying a fair price could not be agreed to between the parties, and we will have to continue with the debate or fall back to a lease arrangement, or, perhaps even do the right thing.
This is going to be fun to watch, and will be an education for a lot of people, especially the Sharman Taylor and Goldring gang. Do not feel sorry for anybody directly involved, this situation stinks, and TRANSPARENCY AND ACCOUNTABILITY will respect the common people.
Glad to see that this isn’t going away as easy as some would like it to, thanks to your reporting and some very informed citizens.
As I said before, this doesn’t pass the smell test. To hear that these discussions have been going on for over a year and we are just hearing about them now in the last month…