Wednesday, March 30, 2016

Finding a Way to Fight Big Mac at the OMB (A bit of Burlington Community History)

Do we need the Ontario Municipal Board (OMB)? 

Citizens, developers and many municipalities have called for it to be dismantled.

The Ontario government has given a big “No” to that notion. 

Ted McMeekin, the Minister of Municipal Affairs and Housing, told CBC last week that "we need a body like the OMB because sometimes people break the rules."

So, McMeekin’s Ministry is going to review the OMB with an eye to reform it by foiling those rule breakers.  McMeekin is looking for ideas.

He’ll get no help from me. I ought to have an opinion but my views are a bit muddled.

That’s likely because I’ve become far too familiar with a long ago OMB hearing.  That hearing dealt with an attempt by a developer to put a McDonald’s restaurant in Parkwood Plaza at the corner of Kenwood and Lakeshore in south east Burlington.  In fact, not just one, but three OMB hearings were held.  At the end of the third one a resident’s group was successful in blocking this inappropriate use of a small plaza.  Their success came thirty-six years ago this Friday (April 1, 1980).

Using accounts from local and national papers, I’ve been slowly putting together a bit of a community history of this seven year battle.  Following is a small excerpt from that work in progress.  The excerpt deals with some of the barriers residents faced in trying to cover the costs of an OMB appeal.  The difficulty for residents and municipalities in mounting a case at the OMB remains a concern. Something, perhaps, for McMeekin to consider.
Some of the Cast of Characters

*Jim Ryan - east end resident and frequent spokesperson for residents. Later elected as City Alderman for Ward 8.
*The Committee Against The Establishment of a Restaurant in Parkwood Plaza (CAERPP) - residents' group.
*Herman Turkstra - well known lawyer and former Member of the City of Hamilton Board of Control.
*Doug Brown - Solicitor for the City of Burlington.
*Joan Allingham - Chair of Council’s Development.  Perhaps better known now as Joan Little, columnist for the Hamilton Spectator.
*Dalewest Construction - Owner of Parkwood Plaza.

For many years the City of Burlington’s Community Services Committee had convened a January meeting to consider funding requests.  Typically, the requests came from recreational, sports or cultural groups.
Parkwood Plaza in the '70's- Burlington Post

Three sessions of the committee would be held in 1979 to look at 35 requests totalling $386,164.

But January’s meeting would consider a request from a resident’s group.  The Committee Against
The Establishment of a Restaurant in Parkwood Plaza (CAERPP) wanted help to foot a portion of their legal bills.

Committee Chair Jim Grieve expressed concern.
“This is a whole new thing.  We could end up financing someone who is suing us.”

At Saturday’s third meeting of the Committee Grieve ruled that the request should go to the Administrative Committee for consideration on the following Tuesday. That body met in camera for half an hour and when they convened in a public session determined in a 3-2 vote that CAERPP should receive $7,500 for their legal costs.

This was a first – a request from a citizen’s group fighting a development proposal.

Recently elected Mayor Roly Bird defended the decision.
“We have been given to understand that the city’s case will be greatly enhanced by their continued participation.”

Bird proposed a $7,500 grant as a compromise after an earlier motion for more money by Alderman Linda Pugsley had failed receiving support of only one other member of the committee, Walter Mulkewich of Ward One.

Mayor Bird was known as a man of strong opinions.  So there must have been many surprised citizens when 6 days later he had a different one.

Bird told Council that “a number of advisers” he had in the in the city told him they did not support paying the residents’ lawyer.
“I don’t feel the city’s case and the residents’ case will be that much jeopardized by the non-participation of their legal person.”

A strange statement indeed.  Bird continued: 
“We have to ask is this the City’s fight.”

With that Council rejected the position of its Administration Committee.

Ward 8 City Alderman Bill O’Connell called Council’s position “pitiful.” 

Other Council members claimed that if the City joined with CAERPP they could expose the city to legal action.
“The City could have been liable for many thousands of dollars for last revenues by Dalewest and McDonald’s," Jim Grieve claimed.

Grieve, a realtor, said this legal advice was received last year.

Others, like Joan Allingham and Rob Forbes disagreed that such an opinion had been offered.
Joan Allingham Little

On becoming aware of the City’s rejection of financial support for his group, Jim Ryan had sharp words.
“The mayor indicated that the city is well qualified to handle the situation.  Maybe we’ll just let them handle it.”
Ryan went on.
“I wish I had as much confidence in them.  They blew it last time and they’ll blow it again.  They don’t have the specialized expertise McDonald’s and Dalewest have.”

What now? Alderman O’Connell thought that the residents would end their fight.

Doing the City’s Job

The residents convened the night after Council’s decision.
“It was a hell of a blow,” Ryan told the Spectator.

The committee had already accumulated $13,000 in legal bills and the meter was still running.  What fundraising opportunities were still open to them?  More garage sales, dances?
That’s a hell of a lot of dancing and garage sales,” said Ryan to the idea of raising $8,000 more.

The group decided that a lottery could bring in money and be an indication of broader community support. CAERPP members began to sell tickets for a Valentine’s Day draw.  First prize would be $500.

The Committee knows they need lawyer Herman Turkstra, who they had engaged a year earlier.
While the City’s position was similar to the residents, the city’s lawyer can’t really represent the residents’ interests.
“We need our own solicitor.  To be successful, the city needs our lawyer,” Ryan asserted. It wasn’t just Ryan who felt this way.
East End Resident Jim Ryan addressing City Council in 1978-
Burlington Post Photo 

Alderman O’Connell talked to city solicitor Doug Brown and came away feeling the City has little hope. “If the residents pull out we might as well forget it.”

As lottery tickets were being sold speculation continued as to what the City should do.

The Burlington Post editorialized that if sufficient funds were not raised in the lottery the city had to make a choice. 

Would they mount an effective opposition to McDonald’s/Dalewest and could it present the necessary arguments “without leaving itself open to future confrontation?"

The Post seemed to think that this was about property values.  In their view, the city would put itself in a bad spot if it argued that putting a McDonald’s in the plaza would lower property values.  The Post misunderstood the issue as did many citizens then and now.  While residents are concerned about such things as property values, the OMB and municipal planning in general are not.

But the residents had no intention of giving up. Perhaps other Burlington observers thought as much.
“There was no intimation we’d drop out, even if we had to go without our solicitor,” said Ryan.

Advertisements for the continuation of the hearing ran in the Post on the same day that another story broke.  Now the province was going to review the legality of CAERPP’s lottery. Lawyers for Dalewest Construction had written the Ontario Lottery Corporation (OLC) claiming that the lottery had contravened Ontario’s regulations.

Don Speight, assistant to the director of the OLC, said that a lottery must be for charitable purposes. It must go for relief of the poor, the advancement of education or religion or “any purpose that is of benefit to the community.”

While the OLC’s investigation was going on, lottery organizers were told not to spend any of the lottery’s proceeds.  CAERPP had put down $14 for the licence in November although there were some questions about it at the time. 
“When they first came to me I was not prepared to issue a licence,” claimed City Clerk Don Briault.

But City Solicitor Doug Brown said it was legal.
Doug Brown, City Solicitor

Three thousand, two hundred and thirty-two (3,232) one dollar tickets had been sold to people who, Ryan said, bought the tickets to help with the legal bills.  From Ryan’s perspective the draw was legal because the city had licensed it, Dalewest’s complaint could result in the money being handed over to a charity.  People would be angry.
They did not donate to a charity or a religious organization, they donated to cover our legal expenses,” said Ryan.

With the OLC studying the matter one might have expected silence from government officials.  Not so. 
A spokesman for the Ministry of Consumer and Corporate Relations told the Burlington Post that the lottery was probably illegal.
“Let’s face it. I’ve never heard of a lottery licence being issued to a group espousing a political viewpoint,” said Ed Ciemigap whose department was apparently exploring legal precedents.

Turkstra was incredulous that none of the parties involved in the determination of the lottery issue had contacted the residents.
The Ministry seem to have the idea the (citizens) group is engaged in a political process.  What they are doing is supporting the position of the City.”

Soon (March 21st) the Attorney General’s office told the Post that the chances of CAERPP being charged were fairly remote.
“Presumably Turkstra and his clients have nothing to worry about," Julian Polika ventured.
Bob Wood grew up not far from the Parkwood Plaza.  He hopes to have the whole story complete later in the spring.