An Open Letter From Steve Gilchrist – Council May Want To Read This
I offer these thoughts as a private citizen and they reflect my views, exclusively, and not the views of any other individual or organization. My background includes several years as the Parliamentary Assistant and then Minister of Municipal Affairs and Housing and, prior to and since being elected, I have been an active participant in many OMB and ERT hearings.
Some perspective for Council’s consideration – and an OMB tribunal
The fact that, after the original donation, the town/hospital (whoever was deeded the land) decided not to construct a hospital, notwithstanding the “preference” (but not requirement) in the donation from Playfair. The decision to create a park, and not build a hospital, extinguished any reasonable inference/obligation/expectation/etc that the land would ever be used for a hospital in the future. You cannot claim prior rights on a piece of land once someone else has exercised their rights of ownership – at least, if there was to be such a claim, it had to be made in a timely fashion and the fact that decades have passed renders moot any suggestion that there was some lingering expectation of a hospital at that site.
Every single person who has purchased a property or leased premises in the proximity of that park has a reasonable expectation that it will continue to be a park, for two reasons: 1) it is exceptionally rare for a municipal park to be rezoned to some other use – it virtually never happens; and 2) there was no registration, on the title of that land, that would have suggested, to anyone who did a title search, that there was any prospective construction to take place on that property. The legal principle of “mens rea” might even be argued to apply, as “the actions of a reasonable man” would certainly have been to conclude that “once a park, always a park” so anyone purchasing a nearby property could have made that reasonable assumption.
Furthermore, those properties which directly abut the park, or whose sightlines to the lake will be affected by the construction of the new building will suffer a significant and demonstrable loss of property value. The legal principle of “injurious affection” insists that you cannot do something, with your property, that adversely affects the value of other properties, without adequate compensation. There has, to my knowledge, been no offer to compensate all the properties within sight of the new building, so I would certainly cite the financial damage being suffered by those who paid a premium to own a house near, or in sight of, or within walking distance of, a very significant and attractive park.
The users of that park derive measurable benefits from its availability. Depriving them of those benefits – something that accrues to them by right of their payment of property taxes, as owners or tenants – without compensation is unfair and unjust. If the Town or the developer were proposing to take 2 acres of parkland, at this site, but develop another 2 acre parcel within a reasonable walking distance, it would be difficult to argue against – but that is NOT what is happening here.
The Town has, always, collected park levies and other development fees from builders of new commercial, industrial and residential properties, such as the new Walmart plaza, the Home Depot, and the new LCBO plaza. These fees would certainly have totaled many hundreds of thousands of dollars and a defined portion of those fees are levies assessed against any property that does not, on its own site, allocate a set percentage of the land (check with the Town for its “green space” requirements), typically 25 – 30%. Instead of keeping that percentage of land “green” on its site, the developer is, in essence, paying to build additional greenspace elsewhere in the town. After making my comments, at the town hall meeting, I don’t believe any Councillor spoke to the issue and a quick review of the Town website would suggest that there have not been major commitments to new green spaces in the Town in recent years. In stark contrast to the expectation, of both the existing residents and the new developers, of INCREASING the amount of parkland, the Town is, I would argue, failing to deliver on the reasonable expectations that would follow the assessment and collection of those park levies.
Similarly, all residents have a vested interest in the financial well-being of the Town and of the reasonable and cost-effective use of Town resources, including its parks. Leasing the land for $1 year is a gross violation of the fiduciary obligation the Town has, to its residents, and does not reflect the fair market value of that land. Furthermore, the construction of the building will, for all intents and purposes, permanently render that portion of the park as unusable for recreation. The Town is being negligent in failing to reflect on that permanent loss by entering into any agreement that doesn’t reflect the recapture of 100% of the value of the land, at fair market value. It would be fine to recover the value, in the form of a lease, but, within a reasonable time frame, say 10 years, that lease should include the pro-rated portion of a monthly payment, plus the interest on the unpaid portion of the full market value. The full market value, by the way, should reflect “the highest and best use” of that land – so it is completely irrelevant what this health centre can pay, or wants to pay, it is what a developer of, say, a high-rise lakefront condominium would pay for that land and I would be surprised if that wasn’t in a range starting at $500,000, unserviced, to over $1,000,000 depending on the height of building the Town allowed.
At the town hall meeting, there was at least one owner of commercial property, right on King Street, who offered to construct the facilities required by the health centre yet he claimed that, at no time did the Town include his land as part of the assessment of alternative sites. The suggestion that the former LCBO site, for example, was not appropriate is simply untrue. The location of that site would lend itself, perfectly, to the needs of the health centre and the suggestion that there are some sort of sewer issues is, I suspect, either a complete red herring or, if they are real, reflect an issue that the Town will have to deal with, whether or not the health centre builds on that site!
Again, as part of its fiduciary obligation to its residents, the Town must be able to demonstrate – in specific terms – the reasons why the parkland was, to quote the proponent “the preferred site”. No doubt it was preferred because greenfield sites are, by definition, less expensive to develop than brownfield sites – but that isn’t a problem for the Town or its residents, it’s a problem for the developer! The resident should cite the failure of the Town to demonstrate that it used the best interests of the residents as the ultimate criterion of whether or not to lease the parkland.
At the town hall meeting, one of the proponents and at least one Councillor indicated that the funding the health centre expects from the province was time limited and that sense of urgency was a major justification – if not the sole justification – for rushing through the rezoning and the granting of development approval. First off, I did not see, at that meeting, any evidence that such a condition exists on any prospective funding. If you have seen such documentation, great, but, if not, I think it is reasonable to expect the developer and the Town to produce any and all documentation relating to the funding of the project.
Furthermore, after you see that documentation, if there truly is a time frame within which the development must start and finish, THE VERY FACT OF AN APPEAL TO THE OMB AND, IF THEY AGREE TO HEAR THE APPEAL, THE DELAY REQUIRED TO ARRANGE AND HOLD THE HEARING WOULD, PRESUMABLY, MAKE IT IMPOSSIBLE TO MEET THE TIME FRAME PROPOSED BY THE PROVINCE! The Town and the developer cannot have it both ways – they are either being honest with residents about the need to start and finish within a clearly defined timeframe, or they aren’t and, if they aren’t, then that would be a valid reason for the OMB to reject their decision of the Planning Committee and Council and send the matter back to Council for a new round of planning discussions.
At the meeting, and since, many of your residents have cited very specific matters related to membership, by one of the Councillors who supported the rezoning, on or freshly off the Board of the health centre.
I will not offer any legal opinion except to say that the evidence I have seen, on facebook, is very compelling. If a Councillor, in this, or any other matter, has ANY sort of affiliation with an entity that is appearing before Committee or Council, or if he has a family member with an affiliation, it is an absolute requirement to declare that conflict and, in my experience, I have never seen a Councillor vote on any matter related to an organization on which he has or had a direct involvement, save an except matters which don’t involve funding or zoning or any financial consideration, i.e. support for the annual United Way campaign even if a Councillor was, at one time, on the United Way board. On the other hand, if the United Way asked for a donation from Council, using this example, the Councillor who was, or had been, involved should declare a conflict and recuse himself from the vote. It does not matter whether the number of Councillors, in a conflicted situation, equals or exceeds the differential by which the pertinent vote was lost – having even one conflicted Councillor should cause the OMB to overturn the decision.
In addition to the above issues, vis a vis an appeal to the OMB, it wouldn’t hurt to send a complaint to the Provincial Ombudsman, citing the conflict(s) of interest and the failure of the Town to prove it had acted in a sound financial manner. A letter to the Auditor General may be in order, who has argued for more audit powers over municipalities.
As a final thought, I would certainly suggest that, if you believe there is a prima facie case of conflict, that those opposed to the rezoning continue their efforts in the court of public opinion. I would certainly not want to be a Councillor who sees my name – every day – in another letter to the Editor! Any Councillor who voted in favour of the motion is entitled to table a motion to reopen the matter, at any time, and I believe that if all the townsfolk – not just the ones who live near the park – continue to hear about the lousy financial arrangement and the about the loss of parkland (the park near them could be next!), you might be surprised at how support for the cause will continue to grow.
I would encourage you to keep Patrick Brown apprised of developments but I have to point out that MPP’s are specifically precluded from taking any position on a matter before the Courts or any other Tribunal, including the OMB. That is done to ensure that there is no political interference with a fair hearing – even if the influence would be positive!! That being said, Patrick, and his office staff, are allowed to explain “process” matters, i.e. how to make an appeal, but they cannot deal with the specifics of a case.
I hope these suggestions are helpful and, if you have any further questions, please feel free to call on me. Again, I don’t presume to offer legal opinion – I’m not a lawyer! – but as someone who got into politics primarily for environmental and planning reasons and who takes great pride in the considerable amount of increased parkland for which I am, directly and indirectly, responsible, I was shocked, during the month I spent in Midland this summer, to hear about the proposed rezoning of such a wonderful piece of protected land, overlooking Georgian Bay. By the end of the town hall meeting, I was even more incredulous and I commend all those residents who have challenged the merits of this rezoning and who will, now, take it to the OMB.
If there is any justice, you will get the matter overturned and sent back to Council where, hopefully, greater diligence will applied to any subsequent consideration of the location of the health centre! Best of luck!
Let’s think about the credibility of Steve Gilchrist. He has years of direct experience in this, helped author the legislation, fought and won many large battles for parkland and the environment and understands the issues intimately.
Compare this with our new and young town planner and relatively green council members, none of whom have ANY expertise in these matters except for the planner’s mini-victory in Tay when the residents could not mount any type of appeal – hardly a victory earned and nothing to gloat about.
Why would Council not listen to an authority in a matter that they had before them?
Instead they listened to young staff, whose experience pales in comparison and also place most of their stock in the advice and data received from the proponents of this project who have everything to gain.
We would argue that Mr Gilchrist has nothing to gain out this either way and, in our opinion, his standing and experience are beyond Council’s ability to question or discount. It is sheer foley to think they won’t reconsider their stance based on empirical evidence from someone who could easily be an ‘expert’ witness in the subject matter.
Based on his submissions alone, Council would be foolish not to at least reconsider their position or revisit this in chambers. Do they really think they’ve been briefed enough to know better than he? Do they think their peers around the table are more objective and experienced in these matters?
Even if they want to dispute one or two of his viewpoints on this matter, the rest should give pause for thought. The OMB will want to know what, if anything Council has done to counter each of these points and to simply discount them as Council chose to ignore public opinion could be a costly mis-calculation and expose the Town to litigation beyond the OMB.
We’ve given the Town and Council far more than they need to stop this process and make it right. If they charge blindly forward towards this battle, ignoring every opportunity to settle this matter without a costly OMB appeal and litigation, then we will stand united against them until the last one of us falls.
The comments on Facebook about this article are unbelievable… you can read them for yourself at https://www.facebook.com/groups/ourmidland/2182365781904138/