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Ensuring public input on the turtle ponds development

Sep 27, 2007

There are several steps the city could take in response to the recently revealed move by developer Parkside Hills to circumvent the city planning process and ask the Ontario Municipal Board to approve the building of townhouses on environmentally sensitive land in Stoney Creek. The public school board could also play a role in responding to citizen concerns about this development proposal.

Parkside wants to build about 60 units on a four acre Francis Avenue site owned by the public school board. The natural area contains part of a large pond frequented by turtles, as well as a substantial wetland. It is adjacent to a similar sized parcel owned by the catholic school board where another developer also wanted to build townhouses, but withdrew after a public meeting in April attended by over 200 residents opposed to the plans who left no doubt that they feel the same way about any similar plans affecting the area.

Parkside’s decision to avoid the city process may have been motivated by the outcome of that earlier battle, but in any case it threatens to cripple the already limited ability of citizens to have any effective role in the decision-making process about the turtle ponds area. That could be partly remedied by a pro-active response from the city to try to ensure a strong public influence on the eventual OMB decision.

The city could proactively respond by:

1)      As quickly as possible re-establishing the Environmentally Significant Area (ESA) designation that was originally put in place in 2003 in the turtle ponds area, and then removed by city staff in 2005 under pressure from developers. That unprecedented un-designation move was strongly criticized in last spring’s meeting, and city officials confirmed earlier this month that they are working on putting the ESA back into the Official Plan. Parkside may take advantage of that unfortunate gap, so the city will need to move quickly to avoid that possibility. It would assist the city in preparing for the OMB hearing if it could determine how the un-designation occurred and what lessons have been learned from this process.

2)      The city planning committee can still hold public meetings to receive citizen input on the Parkside plans. Just because the company has decided not to play by city rules doesn’t mean that public input is impossible, or that councillors can’t receive useful advice from the public prior to determining the city position at the OMB hearing.

3)      City council could also subsequently debate this issue in open session so the public knows what their stance is on the development proposals and how they arrived at that position. The usual council practice for OMB hearings is for city lawyers to meet with councillors in camera to receive direction. This is usually justified by reference to client-solicitor privilege, but that privilege rests with the client, not the solicitor. So councillors are the ones who have the power to decide if they will talk to and hear from their lawyers in public session, and determine whether transparency or secrecy is the best option.

4)      The planning committee and council can move quickly to close the barn door that Parkside has walked through. New provincial rules approved last year allow the city to force developers to meet specific requirements before their application is deemed complete and the clock starts ticking to require a city decision. At present, as the general manager of economic development and planning pointed out last week, “all you have to do is submit the fees, name, address and phone number and it’s complete”, despite a city practice to ask for environmental, traffic and other studies.

5)      The OMB process is not well understood by citizens and presents obstacles to effective public participation. The city could assist citizens in this regard, perhaps by holding a workshop on how citizens can participate in the OMB process. The city can also assist public participation in the OMB by making all relevant documents publicly accessible for citizen reference and use, covering costs of the hearing transcripts (that will be needed by the city lawyers anyway) and making them available to citizens.

6)      The city planning committee could also ask its staff to what can be done to dissuade Parkside and other developers from skipping the local process. One option might be to require that all city reports related to any future Parkside proposals contain a paragraph describing the company’s activities in this instance.

The Hamilton Wentworth District School Board could also respond to Parkside’s jumping to the OMB. As the owner of the lands that Parkside proposes to develop, the school board has already been criticized by local residents for “setting a bad environmental example to children” by its decision to sell this area for development.

Steps that the Board might take to respond to these criticisms and support public participation include:

1)      Holding a public meeting to explain how this situation developed, including any role the board may have played in the un-designation of the ESA. This would be an opportunity for the Board to present what options it has at this point, and listen to citizen concerns. The legal obligations of the Board to Parkside are unclear at this point, including what policy changes the Board could make to avoid a similar situation in the future.

2)      After meeting with and hearing from the public, the trustees could then re-examine their past decisions in an open public debate, and determine what the Board does next. This could include a discussion on the environmentally sensitive features of the lands and how the Board believes these lands should be protected.

3)      Like the councillors, the trustees can publicly determine the Board’s position vis-à-vis the OMB process and ensure that its positions are presented in the OMB hearing.

The city and the public school board have recently taken the positive step of re-convening a liaison committee. The tasks of that committee could include a public report on how the two public bodies can together ensure full public participation in land use decision-making.

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