Friends of Marina Park FOMP

By-Law Change Makes People Unwelcome

"By-Law Change makes people feel unwelcome"

One of the key By-Law changes which I feel will have an impact on the public's use and enjoyment of our Marina Park is the provision for the commercial uses on the ground floor of the proposed "residential apartments"  to be optional rather than mandatory.  In July 2007 when the initial re-zoning of the park took place, Mr. Smith was questioned on this subject by Councillor Foulds. Mr. Smith asserted that it would be "commercial uses, whether retail or not, .........and again the whole purpose of this is to ensure that it continues to form part of the public realm". He went on "the purpose and one of the driving factors behind inclusion of residential uses is so that there are people living there, frequenting the restaurants, and we want to ensure that the ground floor is like we want to see in a downtown environment, accessible and open and inviting to the public". Mr. Foulds confirmed  "so there will be no condos on that first floor, so people will be drinking their coffee and walking by and feeling uncomfortable?" To which Mr. Smith replied "no, they'll feel very much invited, included", at which point Mr. Foulds confirms "so they will be able to access stores on that bottom floor, so in essence, public access".  Mr. Smith "yes".
***(These quotes taken directly from my transcription of a recording of the meeting)

Now, the Developer has asked for this requirement to be optional not mandatory.  Does he feel that the number of units in the condos and hotel could not support that retail?  Is the location not convenient to the public?  Then how could these same condo residents and hotel guest be expected to revitalize the downtown core, if they cannot support the ground floor retail?  Of course, the other option is that it was felt the condo residents would not want the public in or close to their building. I'd feel the same.  Either way, it's not the deal that was originally contemplated.  It could be argued that no retail would mean visitors would go and shop downtown, but then the condos and hotel should be on the other side of Water Street.

Owners of condos recently built along the Lakewalk in Duluth negotiated onerous restrictions on the section of the Lakewalk trail in front of their properties.  These included "no benches, picnic tables, stairs or other physical accommodations to encourage persons to pause or linger along this portion of Lakewalk or on the beach below." Originally, dogs were prohibited as well. A former city planner there spoke out  that the city is delaying in its responsibility to protect the public interest regarding this stretch of Lakewalk.    I am certainly not against condo owners; everyone wants privacy in their home, which is why we shouldn't have a condo only feet from the roadway through a major park which is the site of frequent public events. 

A line in the Development Agreement (page 6, 101(t)), states "included in the parcel are 49,700 sq. ft. of land surface area which will be developed as either green space or vehicle parking areas".  I conclude this refers to the area between the buildings, labelled on the Site Plans as greenways but now seemingly ok'd to be parking.  Another detail which will keep the public away from the condo buildings.

It would seem the Lessee of the CN Station and  two commercial buildings may also have some recourse against the city  with the clause that the "Developer shall have quiet possession of the premises".  How would this impact the many public events held in the park?

*********Quiet enjoyment, Commercial Lot Lease, Pg. 9,  3.04, also CN Lease.

The public will have a difficult time even getting a parking spot with the loss of public parking.  The 45 public spots left adjacent to the railway fence may be effected if the railway presses a requirement for a berm.  Other parking shown in the Reports is located on the Multi-Use Pedestrian/Parking Plaza .  We were told this area would be for winter parking, and the site of events in the summer.  Now it appears it could be prime, lake-front parking!

The request by the Developer for the city to raise their land (at our expense) to accommodate an underground parking garage will lift this building higher; will there be a concrete wall adjacent to the roadway where it was promised shops and restaurants would be?

The lease of the Historic CN Building for private uses, removing it from the public realm, is a poor use of a building which should be a cornerstone of  Prince Arthur's Landing, possibly a museum dedicated to the history of the site and the development of the Landing.  It seems that in name only will the history of this spot be recognized.

The addition of the Commercial buildings adds more buildings to the waterfront, presumably retail/commercial in nature.  How does this help the downtown core?  When people asked for more to do at the Waterfront, I don't think shopping was what they envisioned.  Speaking with a few downtown business people in Duluth, I learned that their waterfront, which we all enjoy, has not helped their downtown. 

I ask our City Council to reconsider  the by-laws at the Public Meeting on Monday as they will finalize this deal.  It's not a legacy they should be proud of; to sell off land at a bargain price, which took millions to create. To top it off, Homes for the Aged money is being used for Lake Infill!

**********See 2nd attachment for documentation. (from city of TB website, attachment to Report 2009.133, August 24, 2009 Marine Works Tender..

Questions

CITY OF THUNDER BAY’S WATERFRONT DEVELOPMENT PROJECT
 
PRINCE ARTHUR’S LANDING, MARINA PARK
 
QUESTIONS TO ASK…
 
1. The economy of Thunder Bay has changed. With the food bank usage up by 36% (CH, April 2009), why is re-developing Marina Park, Prince Arthur’s Landing at the estimated construction cost of over $130 million more important than directing funds to other social survival issues in the city?
 
2. With so many children in Northwestern Ontario needing specialized rehabilitation services, why is re-developing Marina Park, Prince Arthur’s Landing more important than helping to build George Jefferies Centre in Thunder Bay?  Why didn’t the George Jefferies Centre get municipal funding when matching provincial funding was available in December 2008?
 
3. With the seniors’’ population in Thunder Bay expanding rapidly, why is re-developing Marina Park more important than giving a grant to  St. Joseph’s Care Group for the Seniors’ Supportive Housing that urgently needs to be built? Not long ago, the city received $40 M. for LTC; why is this not being used for the co-share funding; why is this money being directed to the waterfront project?
 
4. Anyone who drives a vehicle in Thunder Bay knows the appalling condition of the city’s roads. Why is extending sewer and water under the railway tracks and into Marina Park for private development more important than fixing the public roads?
 
5. The Waterfront Development Committee was supposed to be made up of council members, administration and community members with no affiliations or interest group to represent. Why is one of those community members now working for the city on waterfront development?
 
6. Correspondence dated November 22, 2007 sent to the Environmental Assessments and Approvals Branch of the Ministry of Environment by senior city administrators Dugmore and Alexander provides an estimate cost of “Waterfront Development Prince Arthur’s Landing – Phase 1” to be $39,626,000 ($2007 dollars). Further, they suggest that, of that amount, only $3.4 million are costs applicable to triggering an environmental assessment, that is some $36 million in costs that aren’t relevant to an environmental assessment, and the MOE apparently agrees. Isn’t this just a ploy to avoid a mandated environmental assessment on the development of Prince Arthur’s Landing?
 
7. Further, the city officials state on page 14 of the correspondence that “The cost estimates for Prince Arthur’s Landing are based on a pre-design study and prepared by cost consultants and are quite reliable.” How believable is that? When was the last time a major city project was accurately cost estimated 2 to 3 years in advance of any construction? What were the original cost estimates for city hall renovations, what are the costs to date and what will be the projected final costs? What was the difference in cost estimates to actual expenditure of the recently completed Skateboard Plaza at the waterfront?
 
8. In correspondence dated November 22, 2007 sent to the Environmental Assessments and Approvals Branch of the Ministry of Environment by senior city administrators, on page 7, in reference to marina development and Pool 6 development they state “The marina lies to the south of Prince Arthur’s Landing and is intended to provide additional boat slips for both residents and transient boaters. The City will solicit expressions of interest from marina developers, and if there are none interested in the proposal, it is unlikely that the City would proceed with the project.”
Will the City wait to determine if a marina developer can be found before it dismantles parts of the existing marina? What will the City do if once it dismantles parts of the existing marina and a developer can’t be found? What will happen long-term to boaters who will be relocated because parts of the marina have been dismantled? Under this scenario, where will additional slips be found to accommodate the long waiting list for marina slips? Has the boating community in the City been made aware of this conditional on development? When? How? By whom?

9. Can this city council bind a following council to complete the new marina? If not, then what guarantees can this council give that a new marina will be developed or that boaters currently occupying slips will not lose them in either the short or long run?
 
10. How much money has been spent by the city, that is taxpayers, on consulting fees for waterfront development including consultants to do environmental assessment work, economic impact studies, design work, cost estimating, negotiating with the developer, to name a few, but the question seeks a dollar amount for all consulting expenses?

11. How much has the City, including the Waterfront Development Committee, spend on public relations for waterfront development, that is telling the taxpayers what a wonderful job city officials are doing spending our money on a project that is not widely supported in the community, this includes brochures, dropouts, flyers, newspaper ads?
 
12. Why are residential taxes being used to subsidize residential development on a prime piece of city-owned real estate (Marina Park) for the benefit of a few privileged residents who will be able to afford condominiums at the waterfront?
 
13. What percentage of the city’s tax base has been transferred to residential taxpayers as a result of the decline is business tax in the city? What is the actual breakdown of residential versus business/commercial taxes in the city today? What was it 5 years ago? 10 years ago? How does this compare to other cities in the province?
 
14. How much have residential taxes increased in the past 5 years? Since the current city council has been in place? 
 
15. Given the shrinking population (a loss of almost 10,000 residents) in Thunder Bay over the past decade and the resulting shrinking tax base, particularly in the past few years, what specifically has City Council done to significant and effectively reduce city spending to keep taxes in check? How will spending millions of taxpayer dollars on private condominium development for the privileged few represent responsible management of city funds?
 
16. How will spending millions of taxpayer dollars on private condominium development for the privileged few promote tourism development?
 
17. How have you validated that public support is behind waterfront development that specifically focuses on private condominium, hotel development and parking in a public park? What specific, reliable, validated evidence can you provide that demonstrates that this is so?
 
18. Has the City considered that, with the changing economy, there may be additional land available for development along the harbour or within the north core? Why is the city spending millions in “undoing” $20 million of previous development when it has vacant land available adjacent to its current development site?
 
19. With so many people out of work in Thunder Bay, why does Council see its #1 priority redeveloping Marina Park when the community has so many pressing social and infrastructure needs? There doesn’t seem to be much common sense in this. Is it a personal thing? Is this about egos? It’s supposed to be about what’s best for the greater good, and there is no evidence that the majority of the citizens of Thunder Bay see private condominiums and a hotel in Marina Park as in the best interests of the majority.
 
20. For a WFD project the public does not support, why is the city spending over $400,000 annually for its operating budget?
 
Visit the FOMP website at www.friendsofmarinapark.ca
 
(May 1-09-Revised)  

FOMP News Release

FRIENDS OF MARINA PARK

(FOMP)

  Thunder Bay, July 9, 2009

Friends of Marina Park (FOMP) believes that parks are for people and that no condominiums, private residences, hotel, or parking garage should be developed within the core of Marina Park, Prince Arthur’s Landing, beside the CN Station.

OMB decides: City not allowed to bypass bylaw change process, "to which all and sundry must abide by, including the municipal governments"; and, the proposed Bylaw changes by the City are not minor, "they are material changes". (S.W. Lee, OMB)
 
On Monday, July 6th, the Ontario Municipal Board released a decision that should be of interest to every citizen of Thunder Bay. In essence, the OMB’s decision rejected the City’s efforts to bypass the statutory requirements of the Provincial Planning Act.
 

The City’s request to the OMB arose from the disagreement between Appellants
and the City of Thunder Bay (“City”) with respect to the appeals of Zoning By-laws and an amendment of an Official Plan. The Appellants withdrew their appeals. The City maintained that they should not be allowed to do so.
 

The decision results from a telephone conference call among OMB officials, the City’s Solicitor, and the appellants’ at which the City presented a motion to the OMB to prevent the appellants from withdrawing their OMB appeal.
 
The decision, delivered by S.W. Lee, OMB Executive Vice Chair, noted that if “the request of the City is accepted by the Board, it may very well “offend the rules of natural justice”. He goes on to say that “what the City seeks from the Board is a request to allow the City to launch into a change of planning instruments without fulfilling the requirements of notices and statutory meetings.”
 
This is a clear indication of the validity of concerns that the Friends of Marina Park have been raising for some time regarding the City’s desire, or lack thereof, to have a truly open and inclusive public process in its waterfront development planning.
 
Mr. S.W. Lee also discerned that, contrary to what City officials have been saying to the public, the changes contemplated in these bylaws are not that minor. He states that “They are material changes.”  As we have been saying for some time, the proposed changes to the bylaws are significant in that new lands are being addressed and new uses are being introduced into the new areas.
 
You may recall that the project was promoted to the community by the City on the basis that a small parcel of land would be leased or sold to a developer, that the private buildings would have public access on the first floors, and that the uses of the space would be limited to certain types of activities. Clearly, this is no longer the case.
 
While the OMB recognizes that the City’s plans have changed materially, not in a minor way, and the proposed bylaw changes reflect that, City officials still don’t seem to have gotten the message. In a recent media interview following release of the OMB decision, the City Solicitor was still insisting, the proposed changes need a little tweaking to fit the development and are minor.
 
Also, in its decision, the OMB has identified that the City bears a large part of the responsibility for the impact of delays the City feels it has encountered. The OMB concluded that “the City ought to have enacted the requisite instruments earlier to start the process rolling, so that the whole paraphernalia of procedure, under the Planning Act, would have been activated.” “If that had been the course chosen”, Mr. Lee states,” the pressure of time would be considerably eased.”
 

As a result of these recent OMB developments, people in the community now have an opportunity for anyone with concerns about the City’s proposed bylaw changes to come forward and be heard in a public forum. While we don’t know the details yet, there will be a public hearing on the proposed bylaw changes. Again, contrary to what the City Solicitor claims, this matter is not over. We encourage members of the public to seize upon this opportunity to get involved and speak out.
 
Friends of Marina Park will continue with our efforts to preserve the core of Marina Park for the citizens of Thunder Bay. We recognize that some form of development in alternate locations in close proximity could benefit the community. We can support such development outside the core of Prince Arthur’s Landing, Marina Park provided, of course, that it does not place undo financial burden on the residential taxpayer.
 
If you want to get a true understanding of what has transpired here, you can inform yourself and draw your own conclusions by reading the full text of the OMB decision. It is available in its entirety on the Friends of Marina Park web site, http://www.friendsofmarinapark.ca.
 

Important OMB Update

ISSUE DATE: July 6, 2009

Ontario Municipal Board
Commission des affaires municipales de l’Ontario

MEMORANDUM OF ORAL DECISION ON A MOTION FOR DIRECTIONS ARISING FROM A TELEPHONE CONFERENCE CALL (TCC) DELIVERED BY S. W. LEE ON JUNE 16, 2009 AND ORDER OF THE BOARD

This motion arose from the disagreement between the Appellants on one side and the City of Thunder Bay (“City”) on the other, with respect to the appeals of Zoning By-laws and an amendment of an OP. The Appellants have withdrawn their appeals. The City maintained that they should not be allowed to do so. It is over this precise question that the Board was requested to adjudicate.

These appeals have been the subject matter of several pre-hearing conferences at the Board. The hearing is scheduled to commence in July 2009, for five weeks. These planning instruments had been enacted to facilitate a waterfront project of which the City is the proponent. Sometime in December of 2008, the City was able to secure participation from the private sector. In addition, upper level governmental funding for this proposal has been promised. Some changes to these Zoning By-laws are desired in order that the necessary changes to the proposal in question can be accommodated.

At the TCC, Ms Rosalie Evans, the City Counsel, maintained that the City had worked diligently to get this project into realization. She indicated that the City wants to maintain this momentum and insisted that the Appellants should not be allowed to withdraw their appeals. If the appeals were withdrawn, the Official Plan Amendment and Zoning By-laws would have come into effect. The City would have to enact new By-law Amendments. Such an effort, in her view, would take time. The new amendments may attract appeals, thereby causing delay. The building season may be over before one realizes it.

In the most ironical twist, it is now the City’s position that these appeals must be kept alive, so that the formality of the Zoning By-law Amendment can be avoided altogether.

One of the Appellants was represented at the TCC hearing. The other represented herself.

Mr. Larson, Rory MacVicar‘s Counsel, submitted vigorously that the unconditional withdrawal have been properly filed with the OMB. He submitted that the OMB had no jurisdiction to deal with such matters once the appeals disappeared. He argued that there is no basis in law for the Board to refuse a withdrawal. He further submitted that these changes that the City now seeks are not minor. He furnished the Board with an affidavit of a planner indicating to the Board that the so called minor adjustment is a bit of a stretch, that new lands are being addressed and, that new uses are introduced into the new areas. It is not the function of the Board, in the opinion of the counsel and his planner to initiate amendments without properly following the procedures set out in the Planning Act and utilize a scheduled hearing as a means to obviate the requisite processes and procedures which must be followed by anyone, including the municipality.

On the whole, the Board finds the arguments from the Appellants much more persuasive.

Ms Evans cited a number of authorities to me indicating that there is precedent for the Board to refuse accepting the withdrawal of an appeal. The leading case is Re Edgeley Farms Ltd. and Uniyork Investment Ltd. (1970) 3 O.R. 131, where the Court of Appeal held that the OMB had the right to refuse the withdrawal of appeals. The Court found, in that instance, that pursuant to Section 95(5) of the Ontario Municipal Board Act, that the Rules of Practice were to apply to the Board. There was nothing in the Rules expressly giving the Court the power to refuse the withdrawal of appeals. However, it is the Court’s finding that the jurisdiction was exercised by the Court frequently in the course of controlling the process of the Court and it is the Court’s finding that the OMB ought to exercise the same power in controlling its procedures.

I agree that the OMB does have the authority to refuse withdrawals. However, whether it ought to exercise that authority to do so, in this instance, is the question I next turn to.

There may be many circumstances where the Board should exercise its authority. I can think of instances, particularly in hearings concerning comprehensive Official Plans or Zoning By-laws where a withdrawal of appeal of the last remaining appellant may cause prejudice to the sheltered parties. Those are the circumstances where the Board may wish to intervene. Even in those instances, the Board ought to tread gingerly and sparingly and must scrutinize the facts and evaluate the consequences. But those are the circumstances where the rarefied exception proves the veracity of the general rule.

The request of the City, in my view, if accepted by the Board, may offend the rules of natural justice. I am mindful of the fact that minor changes can be effected at hearings. However, if the planning instruments to be sought may affect new lands and may attract new parties, the Board ought to be vigilant. What the City seeks from the Board is not the preservation of the grounds for the appeals. It is also a request to allow the City to launch into a change of planning instruments without fulfilling the requirements of notices and statutory meetings. If there is anyone who may object to these new initiatives, there will be no avenue for her to find out that these changes are forthcoming. There won’t be a forum for her to launch an appeal. The only alternative is for her to seek party status at the scheduled hearing and in that eventuality, the hearing panel would countenance the same set of concerns and misgivings I now face.
I also discern that the changes contemplated in these circumstances are not that minor. They are material changes. The City ought to have enacted the requisite instruments earlier to start the process rolling, so that the whole paraphernalia of procedure, under the Planning Act, would have been activated. If that had been the course chosen, the pressure of time would be considerably eased.

While it is understandable that the City wants to expedite the planning process to facilitate a project, it is a far cry to say that it should be allowed to by-pass the process, to which all and sundry must abide by, including the municipal governments. The Board would accordingly deny the request to prohibit the withdrawal of the appeals.

“S. W. Lee”

S. W. LEE
EXECUTIVE VICE-CHAIR

Welcome

Parks Are For People! Let’s Enjoy Them!

One of the jewels within the City of Thunder Bay’s park system is Marina Park. Marina Park, is located at Thunder Bay’s waterfront, is one of the mainstream access points to Lake Superior and one of the finest points of viewing of our wonder, “The Sleeping Giant” and to people-focused recreational and leisure activities on our city’s waterfront. “The Sleeping Giant” was one of the People’s Choice for CBC’s Seven Wonders of Canada!

Public Dismissed

Public Input Dismissed Before It’s Given

In a display of democracy at its worst, the Chair of Thunder Bay’s Waterfront Development Committee dismissed public input scheduled to be delivered to City Council this evening, Monday, September 15.

Last week, Council heard a proposal from Man-Shield development for plans to develop the City’s Marina Park. While there was approximately 300 people in attendance at the Community Auditorium, September 4th, attendees were not given any opportunity to provide comment on the proposal. Instead, the public was told there would be an opportunity to provide feedback the following week.

A number of people requested to present a deputation on the subject at tonight’s Council meeting. However, in an interview that aired at 6:30 a.m. this morning on a local radio station, Councilor Mark Bentz effectively dismissed any public input on the matter 12 hours before it was given.

Bentz said, “Council has voted unanimously on the Master Plan. So we will have to agree to disagree”. He also said “nothing is cast in stone” referring to other elements of the development needing to be put in place.

On the contrary, it appears at least one thing is cast in stone:  Council’s unwillingness to engage the public in a truly open process regarding the development of Marina Park. There is little wonder why a large number of people in Thunder Bay are feeling marginalized by being dismissed by their local politicians who they voted in. This is but another example of the closed process many have experienced throughout the City’s  Marina development initiative.

The developer has said “no deal” if the location of the development changes, that being next to the CN Station and if he is not allowed to lease over a long term or purchase the CN Station. Piece by piece, Council is selling off this public park, “the jewel of the parks system”. It was good fortune that thousands of people enjoyed Marina Park this past summer.

Over 7,000 city residents said “No to private residences, condominiums and a hotel next to the historic CN Station, Prince Arthur’s Landing, Marina Park.” This was the largest petition ever presented to Council in this City’s history. Have the opinions of almost 25 percent of the population who voted in the last election not been listened to? Does this grassroots level of communication not have merit or value? During summer events at Marina Park this same sentiment was re-confirmed for FOMP.

We encourage the public to not accept this version of democracy and to get involved in an effort for the voice of the community to be heard. Come out to the Council meeting at 6:30 p.m. this evening in the Community Auditorium.

Friends of Marina Park (FOMP)

Website:  www.friendsofmarinapark.ca