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Response to complaint filed with Ombudsman: “baseless & without merit”

On Oct. 20, I was notified that three households (four residents) in my Ward have together filed a complaint against me with the Ontario Municipal Ombudsman regarding my public comments in my role as City/Regional Councillor for Ward 2 Burlington about the city’s decision to sell publicly-owned waterfront land between Market Street and St. Paul Street in my Ward.

View of lake from public path between Market & St. Paul
View of lake from public path between Market & St. Paul

I am confident that the allegations will be shown to be baseless and without merit, bordering on the libellous. I welcome an investigation that will clear up the incorrect information that is being circulated, so that we can have a reasonable discussion on an important matter of public policy, that being whether public waterfront land should remain in public hands or be sold to private homeowners.

This action is an unfortunate diversion from the main issue at stake, which is the sale of public waterfront land. I hope that we can return to discussing the issues respectfully, and agree to disagree respectfully.

The full text of my public statement in response to this complaint is below, along with links to the complaint, and the court case cited.

I remain committed to full public dialogue on this issue, including with the homeowners/complainants in this case.

Statement from:   Marianne Meed Ward, City/Regional Councillor, Ward 2, Burlington

Date:                          Oct. 21, 2014

Re:                              Complaint filed with Ontario Municipal Ombudsman

On Oct. 20, I was notified that four residents (three households) have together filed a complaint against me with the Ontario Municipal Ombudsman regarding my public comments in my role as City/Regional Councillor for Ward 2 Burlington about the city’s decision to sell publicly-owned waterfront land between Market Street and St. Paul Street in my Ward.

The complaint has been shared publicly with the media and other members of council and city staff. Those links are below.

Ombudsman Complaint

Ombudsman – Press release

Memo to Clerk

View from Market Street with fence
View from Market Street with fence

These residents are private homeowners adjacent to the land in question and are in discussions with the city and the Ministry of Natural Resources to buy it for private use. When council voted 6-1 to sell the public waterfront land to the private homeowners, it was against the recommendation from city staff to retain the land, over the objection of more than 125 residents who wanted the land kept in public hands, and against a backdrop in which our own staff acknowledged that the city failed to meet its own standards of public engagement on this issue.  The Burlington Waterfront Committee, a citizen’s group with members across the city, filed a complaint to the Ombudsman regarding the lack of transparency in the decision-making process, including council’s failure to release relevant court cases that informed the decision and that are public record but very difficult to find on one’s own.

The residents who have filed the complaint disagree with my vote against selling this publicly-owned waterfront land. They have cited a 1993 court case in this matter, detailed below. One section of the public walkway is fenced at one end, but that fencing was not, contrary to the statements made in the complaint to the Ombudsman, a result of “a court order.” The court decision in fact reinforces that the land is in public hands.

Difference of opinion about a public issue is light years away from dereliction of duty.

I am confident that the allegations will be shown to be baseless and without merit, bordering on the libellous. I welcome an investigation that will clear up the incorrect information that is being circulated, so that we can have a reasonable discussion on an important matter of public policy, that being whether public waterfront land should remain in public hands or be sold to private homeowners.

I will not be intimidated into silence by this action. I will not allow these actions to have a chilling effect on public discourse on a matter of significant public interest.

I have and will continue to speak openly on this issue and to make my position and my vote clear, transparent and accountable. I will continue to notify the public about this issue, and seek public input.

I will continue to advocate for the public interest on the waterfront. My commitment is to keep public waterfront lands in public hands. Period. I will not waver from that position.

I will work to get the balance of the court cases that deal with this matter on the public record. I will work to reverse the decision to sell this land. If any sale goes through, I will work to ensure residents get a price reflective of the appraised value, and that this price be made public. The Ministry of Natural Resources is required to get full market value for its portion of these lands and release the sale price. The city needs to hold ourselves to the same standard.

I have gone above and beyond what is typical or expected of a councillor to be accountable and transparent about my own views, and to make the public aware of this issue and invite feedback. I have extensively written about this matter through my constituent newsletter, In Your Neighbourhood, website (ward2news.ca), social media sites, video, and via a flyer hand delivered to residents in the immediate area. I have also featured this information in my election material. All of this is publicly available online:

Ward 2 News:

http://ward2news.ca/downtown-waterfront/burlington-council-poised-sell-public-waterfront-land/

http://ward2news.ca/downtown-waterfront/sale-burlington-waterfront-land/

Vote Marianne:

http://votemarianne.ca/burlington-election-2014-waterfront-access-beachway/

https://votemarianne.wistia.com/medias/3v419k195y (VIDEO)

Flyer: scroll down to “why sell”

http://ward2news.ca/downtown-waterfront/burlington-council-poised-sell-public-waterfront-land/

Council voted to retain “windows” at Market/St Paul but sell “parkette” between them.
Council voted to retain “windows” at Market/St Paul but sell “parkette” between them.

At all times I have been open with residents about the key issues, the varying positions, and my take. I stand by all my public communications in this matter. They have been a model of transparency, accountability, and the quest for broad public input.

I have met with the adjacent homeowners several times prior to the vote and have been at all times very open and clear with them that my position is that public waterfront land should stay in public hands. We discussed their specific concerns about vandalism, parking, the construction of the seawall, and the offer of one or more of the homeowners to financially contribute to a “windows on the lake” at the road end. These matters have also been discussed publicly, at the public committee and council meetings and in various other public forums, raised by themselves, other residents or myself.

These issues have had a full public hearing.

I have listened carefully to the residents’ concerns, which are raised for other parks in the city as well. In the end, I found the concerns persuasive to finding solutions to them – as we do when these issues arise in our other parks – but not persuasive to selling public waterfront land to private homeowners.

Following their latest correspondence, I offered to meet again and they refused. At their request, their correspondence was also forwarded to the Burlington Waterfront Committee, which responded independently.

Background, and the 1993 court case, Khanna v Mysko, 1993:

The 1993 court action cited (Khanna v Mysko, 1993) is related to the purchase price of the home, brought by the current owner (Khanna), against the seller (Mysko). Khanna (the purchaser and current owner) sought a reduction in the purchase price because the property did not include the water lots adjacent to the shoreline – these parcels were, and still are, publicly owned.

Mysko (the seller) in defending against the reduction in the sale price argued (Section 15) that “while the plaintiffs may not have title to the water lots, they do have possession and use of the lands as well as the enjoyment of same.” Mysko further argued that under “sec. 299 of the Municipal Act… the plaintiffs are entitled to fence the lands and exclude all persons from the lands with the exception of the municipality and the crown.” Thus, Mysko (the seller) argued (Section 16) that in calculating any reduction in the sale price, the court should consider that the purchaser can nevertheless use and enjoy the land. The purchasers (Khanna) “disagree with this position.” (Section 16)

The court took into consideration the fact that Khanna (the purchaser) does not own the lands when determining the reduction of the purchase price against Mysko. The court ruled that since the public lands in question represented 35% of the property, the purchase price was reduced by 35%. By court order, the original purchase price of $545,000 was thereby reduced by $190,750. (Refer to the text of the decision, p2 under “HELD”)

Nowhere in this decision did the court “order” the lands to be fenced and the public be excluded. In fact the court decision reinforces that the land is in public hands, and reduced the purchase price by the exact percent of land that is in public hands.

At some point, this public property was fenced off. The balance of the public lands behind the homes between Water Street and St. Paul Street are not fenced. All of these lands are public. The municipality and the crown cannot be excluded from these lands (Section 15).

My position has been and remains that we retain this public shoreline land in public hands, and reclaim any land that has been fenced for public use.

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I was inspired to seek public office because I believe, like so many of you, “I can do something about that” on the issues we face. As councilor, my role is to take a stand on what’s best for residents and go to bat for it. Pushback is inevitable from those who don’t have the community’s interests at heart. I will stand with you and for you, to achieve the best interests of our city, without caving to unacceptable compromise in the name of consensus.

4 Comments

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  1. To continue the previous comment, It is supposed to be in the Official Plan the zoning for height density which allows 4 stories with a proviso for 8. That being the agreed plan why is this not strictly adhered to? How can a development co. go to the OMB in spite of the wishes of council and or the citizens in the area? I would like to know the answers to these questions. Much public discussion needs to take place on all of these questions regarding these particular issues which affect so many lives. I look forward to this taking place asap after the election where it is my and most other ward 2 residents’ wishes that the best councillor in the city Ward 2 Marianne Meed Ward will be returned by a landslide. People have waited a lifetime for a representative with the integrity to care about the issues that affect their constituents, Marianne is this representative. Her approach is completely democratic she listens to her constituents then researches the issues, then disseminates the information to everyone in the Ward 2 Newsletter. Persons who were unable to attend workshops held to further discuss issues can read about it there and in many other forms of social media Marianne is so capable using to send us the information. This is what people hve always wanted and did not get. We are very fortunate to have such an educated councillor working on our behalf. Here’s to another 4 years and we cannot wait to get started. Keeping this 28 story bldg to 4 or 8 should be something we all work on together. See you there.

  2. As a resident of Martha St. in Ward 2 I am opposed to the 28 story bldg at the corner of Martha and Lakeshore. There has been much discussion by many area residents also in opposition. This scenario has been played out before elsewhere, with unsatisfactory results. Some previous builds went ahead in spite of the inevitably negative effects it’s existence will present.
    On need only calculate the 28 story’s and Number of Persons, and Vehicles Moving Vans and Cars in and out and Retail Traffic Customers cars and Delivery Vans in and out.
    Existing volume of traffic is HIGH. Martha St has No Side Sts. on the EAst Side and only 2 very short and narrow side sts. on the West side. The Intersection of Martha, James and New St. has a double median. The walk across Martha St is a Nightmare for pedestrians, especially Seniors and disabled, vision, hearing and mobility challenged. Cars go through the intersection at far too fast a rate of speed. There is No Left turn from New onto Martha, No ability to drive to the North end of Martha to reach Caroline from the South end. To cross at the light at this juncture, to get to the Lions Club takes one to the back of the bldg and the park. No access to the front door. If one tries to cross from the bus stop at James which is directly across from the graded walkway for wheel chairs to the front door, can also be dangerus as there is no light and cars careen around the corner, one time it went right up onto this walk way as I was coming down but had stopped to assist someone and when I turned it was just feet from me. One is not safe walking in any direction. I had written to the traffic dept before and met with a nice gentleman and they put up a sign saying deaf senior, I wish that a caution shaped sign could be put up with the international symbols for vision, hearing, and mobility impairment were on. These would be, a circle with the diagonal line through pictographs of eyes or sunglasses, an ear, a cane and a wheelchair symbol. In Bold Print Caution and mabe Seniors. If one wishes to access the south end of Martha St from New one must go to James turn left and left again and left again to Martha or go to Lakeshore up Martha or go to Brant down James across Martha. One must do the same in the other direction up new and L and L etc to access Brant or the North end of Martha. Fun eh? All of this costs at least 2.00 extra by taxi fare as these side trips cannot be done by bus and the taxi scripp was eliminated as it was stated that All buses are accessible, even though there are no shelters or benches and it is too xxx to get there and stand outside alone in inclement weather. Martha st. has townhouses that wrap around from New, 6 low rise apts, the bike trail, and dental office, single fam homes, towns with retail below and 2 hirise seniors bldgs. With the Barclay the other seniors bldg and the bank and the Delta Inn going up on Lakeshore it is incomprehensible to imagine the Traffic dilemna alone. This is without the never ending construction. I could go on about intensification of noise pollution, difficulty for emergency vehicles to obtain access and oh yes the bldg wads touted as transit friendly . What transit it is inadequate now, what then? For these reasons and more I am adamantly opposed and respecting the zoning laws would be the only thing acceptable. After all it is supposed to be in the

  3. Marianne: As you know we don’t always agree on the issues however, on this you are the only one to get it wright. We have precious little public owned water front and selling it is outrageous, to a chosen few, criminal. If we must sell it at the very least it should be offered to anyone with an interest thru a public sale. The value was established in the 1993 court case at 35% of the adjoining property. At todays value that would represent a considerable increase from the $190,750.00 awarder to Mr. Khanna property alone. Anything less should be questioned and rejected. As for the $7,000.00 wall, at less than $1.00 a day it should be considered by the property owners as money well spent for the use and enjoyment of public land. I only hope that the win fall from any sale is allocated to enhance existing water front parks in Burlington. If the property owners are successful and purchase the park, they should also see a minimum assessment increase of 35% and with the increased taxes for the city we can further improve the remaining water front.
    Curiously we did not have a recorded vote on this however, with a 6 to 1 vote all voters in all wards of Burlington know how their councillor decided. Something to consider !
    I wish you well in your dealings on this issue and rest well knowing that if we agree or not your take is always well considered and genuine. Thank you for having the courage to following thru on your convictions.
    I do not live in your ward however, I do know a lot of people who do and will be convincing them that they can not afford to loose your voice on council.

  4. Is there any plan for development of this property? I support retaining public ownership of this land, but would like to see the city’s plan for access and use of this site.

What's your take?