Hampton Iona Community Group

As you know from our previous notes, the three Appellants, Hampton Iona Community Group, Westboro Community Association and Sylvano Carrasco, while preparing for the Ontario Municipal Board (OMB) challenge against the City for 114 Richmond Road, had all entered into direct discussions with Ashcroft to see if a compromise could be reached as Ashcroft had approached the Appellants seeking a negotiated settlement. The City was not involved in the negotiations. We have reached a settlement, effective today, amongst all the Appellants and the developer and therefore the case will no longer be proceeding to the OMB hearing scheduled for July 18. We had been in negotiations over the past 4 months.

All three of the Appellants requested a number of concessions from the developer in order to more properly address the issues raised by our members and the residents of the community most impacted by, amongst other things, the additional density and increased traffic the development will introduce to the neighbourhood.

We had mixed success in getting significant movement from Ashcroft, but we were at least able to cap the heights and densities and prevent further erosion to some of the residents’ key objectives for the community.

In agreeing to this settlement, we all had to weigh the strong potential of an imposed adverse decision by the OMB and the use of scarce financial and volunteer resources needed to mount a 5 to 7 day hearing against the outcome of a negotiation settlement in which we participated and securing some of our goals and objectives.

Our Board decided (as did the other Appellants) that we would achieve more from a negotiated settlement than we would from the OMB process.

The highlights of the settlement are:

1) Both parties have agreed to drop their OMB challenges. This is a significant gain for the neighbourhood, as Ashcroft was seeking significantly increased heights and density than the settlement provides.

2) Ashcroft has confirmed that the most southerly buildings will only be used for seniors’ residences.

3) Ashcroft will be making best efforts to rent the chapel space in the Convent on a non-profit basis to a not-for profit organization for a minimum period of 10 years and provide at least two underground, accessible, handicapped parking spaces.

4) Ashcroft will consider the installation of change and shower facilities to allow workers to commute to the site by bicycle. On a June 29 CBC radio interview, Ashcroft said that they consider this to be an undertaking.

5) Ashcroft is willing to fund one bus shelter and seating along Richmond Road.

6) Ashcroft has continued to argue that they may need 5 stories at the back in their seniors’ buildings. This formed part of their OMB appeal. Ashcroft has agreed that if they decide to seek 5 stories (instead of 4 stories) this will be offset by reducing the 9 storey building (behind the Convent) to 7 stories. Their OMB appeal would not have required this offset. The Appellants have agreed that they will not oppose the application to the Committee of Adjustment if this amendment is proposed and the reduced height offset to the 9 storey building is also made.

7) Ashcroft will be paying $200,000 to the Appellants for community benefits. These funds will be put into a non-for-profit corporation to be established by the Appellants and the funds will be used for various community improvements to be decided over time. The money will not be administered by the City, but will stay within the community. This not-for-profit corporation will determine as to how it will be spent with the input of the community. We are, however, restricted from using the funds for land use planning challenges (a restriction imposed by Ashcroft that we could not get them to drop).

Questions and Answers

1. Why Did We Go for a Negotiated Settlement Rather than Proceed directly to the OMB Hearing?

This came down to one simple question: “Were we likely to get more from an OMB decision, after them hearing all the evidence than we would from a settlement which we negotiated directly with the developer?

The OMB encourages parties to settle disputes between themselves rather than bring it before the OMB for adjudication. This is because OMB decisions rarely offer compromise and this means that there are generally clear winners and losers.

After an extensive review of the entire OMB file by our lawyer and land use planner (both of whom had extensive experience with OMB cases and working with community groups, including in the case of Lansdowne), the current legislation and planning policies in place by the City, recent decisions that have interpreted the planning regime; their professional and experienced recommendation was that community groups could achieve more through negotiation than at an OMB hearing. This was even truer given the limited time for preparation and raising funds given a mid-July hearing date.

Our professional team expressed strong concern that Ottawa’s secondary plans were written in a way that made them extremely flexible and gave the City a lot of discretion in their interpretation, which weakens their certainty. In addition, given recent decisions by the OMB regarding Ottawa main streets (allowing a 20 storey building on Bank Street for Lansdowne instead of 6 stories), already approved 8 and 9 storey buildings (in the neighbourhood) immediately across the road on Richmond and the reductions that Ashcroft had made from their original proposal, our professionals did not believe that our case was strong enough to successfully challenge both Ashcroft’s and the City’s broad interpretation of these polices and application proposed for the development site.

There was also the issue of funding for a hearing. Estimates from our lawyer and planner indicate that a hearing could cost between $20,000 and $50,000 (exclusive of other costs). To date, despite the valiant efforts of our fundraising committee and Co-chairs and the generosity of our community, we have not raised anywhere close to that sum. It was unclear whether future fundraising efforts could raise the required amount. If not, HICG and Westboro community associations could be left bankrupt and in the position of having to attempt to raise that money in the coming years, if at all. Going to the hearing without a lawyer and a planner would be cost efficient but would leave the Appellants without the required legal skills or substantive knowledge to win what was already a difficult case.

Perhaps most importantly, had we not settled, Ashcroft still maintained its right to their OMB challenge in which they were requesting 12 stories along Richmond Road and a mix of 9 and 5 storey buildings south of the Convent. While typically, the worst case at an OMB hearing is to end up with the status quo, in this case, there was a good chance that we could have ended up with even greater densities and height.

2. Why settle?

Clearly this was not the preferred option but on the advice of our lawyer and planner (based on the restricted time to prepare for a hearing in July; the limited strength of our case; the fact we were not only opposing the developer, but also the City who was responsible for writing the policies we were challenging; and our limited success fundraising to date), this was the most pragmatic and realistic resolution.

As well, new factors had arisen in the past few weeks that could further weaken our chances at the OMB:

i) Lansdowne Park Development OMB Case – The City won this case. The three Appellants in that case who elected not to settle but to proceed to the hearing did not win any victory. They are now left with substantial legal and professional bills. Our planner, who worked with one of the parties who settled at mediation, felt that the Lansdowne case was similar in that it represented a significant development of a heritage site along a main street. Even though the proposed Lansdowne development allows for even more development than that proposed for the Convent, the City won on every count.

ii) Urban Boundary OMB Case – The City Council tried to defend its decision against significant growth of the urban boundary. The City lost to the development community at this OMB hearing.

In both of these cases, Alan Cohen was the lawyer who represented the development community. As Ashcroft’s lawyer, Cohen was fully aware of the precedents these cases set for him.

3. Why didn’t we proceed to an officially OMB-mediated session?

The OMB, for reasons we do not know, had been dragging its heels in providing a mediation date, despite repeated attempts by the Appellants and our lawyer to find out why. Even though both the City and Ashcroft have to agree to a mediation date neither seemed focused on proceeding forward. Ashcroft agreed to a one day Mediation and had agreed to set this up in accordance with the Board’s rules (see Procedural Order).

In any case, any possible mediation date would have occurred after the filing of witness statements. The filing of the witness statements is a costly undertaking and may have weakened Ashcroft’s resolve to settle once they had undertaken this expense.

Going to the Mediation without a planner and a lawyer would be cost efficient but would have significantly reduced our chances of winning. The City and Ashcroft would have been represented by lawyers and expert witnesses who are highly experienced in such matters. The OMB is a tribunal established to hear planning matters and thus it is crucial to be able to support one’s position by countering a professional witness with another professional in the same field and to have experienced legal representation. Without professional representation, Appellants may have been maneuvered into agreeing to items which would not be beneficial to the community.

4. Why didn’t the Settlement include more?

Ashcroft had approached the Appellants looking for a settlement and engaged us over a period of almost 4 months.

The City’s Official Plan and Secondary Plan policies can be interpreted broadly and allow for a great deal of flexibility and also do not enforce the Community Design Plan adequately. There are also limited policies to protect the integrity of the Bryon Tramway. The City and Ashcroft positions were aligned to support the scheme approved by the Zoning By-law, which provides a strong position at the OMB that would be difficult to counter with much success.

Negotiations have allowed the Appellants to explore more issues than just density and heights. Amongst other matters, it has allowed us to explore site plan issues such as the southern exit, the true use of the back buildings, the possible severance of the Convent property into two distinct properties, etc.

We did put these issues on the table. In some cases we had some success, but we had limited ability to obtain acceptance of our position with respect to persuading Ashcroft to agree to no southerly exit and some other issues. The OMB could not stop a southerly exit if it was required. It was the City that approved a development that does have enough open space to allow for an interior road. This problem was created by the City, and unfortunately, we couldn’t resolve it.

While we had hoped to achieve more in the negotiation and tabled several additional clauses, both sides have to ultimately agree to every clause in the agreement and Ashcroft would not agree to several of our proposals. We similarly turned down some of their requested proposals.

As well, we had been advised by our lawyer that Ashcroft might aggressively pursue its OMB challenge for more height (and density) and the City’s defense looked limited and half-hearted. By negotiating a settlement that had both sides dropping their OMB challenges, we scored a significant victory.

While we thought our Secondary Plan protected us from greater heights on the Convent site, it turned out that the plan was written in a way that seems to have allowed for greater heights.

5. Why didn’t the Appellants use the statutory interpretation argument?

It had been suggested that we follow a legal strategy based the interpretation of the Secondary Plan primarily through revisiting the intention of the original framers (the past City Council) and the role of a Secondary Plan vies-a-vies the Official Plan. This strategy recognized the possible loss at the OMB but given its legal nature could be subsequently pursued at Appeals Court on the basis of statutory interpretation.

HICG had received a synopsis of this position from a lawyer who lived in the area and who had spoken at length with the person who had proposed the strategy.

We presented this synopsis to our lawyer and planner. An initial review was provided by both. In their opinion, the intent of the framers makes up only one part of the interpretation of the Secondary Plan and as such would not carry much weight as a legal argument. In Ottawa, unlike in some other Ontario jurisdictions, Secondary Plans are deliberately designed to be interpreted within the framework of the Official Plan as opposed to having a greater weight than the Official Plan, or superseding its policies. It was the Official Plan that largely allowed for the “generous” interpretation provided by the City Planning staff. As well, while the Community Design Plan was written with more exactness, City Council watered it down when they approved the Secondary Plan by adding additional flexibility to the heights.

Furthermore, we were advised that the OMB would likely have ruled that it did not have jurisdiction to make this decision and would require that it be referred it to another Court who had the jurisdiction to decide. It is also likely that the OMB would not have “stayed” its process while this challenge was going on and therefore we would have potentially had to fund and staff not one but two matters – one at the OMB and one at the court of competent jurisdiction.

Lastly, both the lawyer and planner mentioned that to take this to the OMB and then onto Court could easily cost an additional sum of $50,000 to $100,000 and that we would not have success at either venue. Our Board and the other Appellants decided to continue to participate in the OMB process, which we believed was more predictable and offered the best chance to achieve some success.

6. Why have we continued to fundraise if we are considering settling rather than mediating or proceeding to a hearing?

It still took significant funds to retain our land use planner and a lawyer to formulate their opinion as to the merits of our case (including review of the approximately 500 pages of documents in the OMB file and research time) and to advise us through the protracted and complicated negotiation phase and to prepare for the motion to delay.

While some of the settlement funds may be used to pay for these legal and planning bills, we are restricted from using settlement funds for professional assistance with respect to the Site Plan and Plan of Construction. These are important battles that will be coming up shortly, and we will need funds to engage professional support that can help us.

7. Why Is a Community Development Fund being established rather than spending money on a community benefit on the Soeur de la Visitation site?

The establishment of a community development fund allows us to decide how the funds are to be used. The funds can be spread out over a wide variety of projects and over a period of time. We specifically required that these funds not be administered by the City so that we can ensure that they stay in the community under our control and aren’t spent on bureaucratic administration or are subject to political interference. The City has let us down on our Secondary Plan, the park levy and the site access issue. We saw no need to let them administer this fund.

We also considered whether the funds could be spent on some community benefit on the Convent site. There was limited land in which such a benefit could be located and Ashcroft wasn’t interested in selling us a bit of green space. As well, we wanted something that would clearly benefit the existing community rather than the new residents of Ashcroft’s development and which should be supplied by Ashcroft as part of their lifestyle condominium project in any case. No consensus had previously arisen over how the Convent building should be used. The time required for us to come up with a community benefit in the Convent or chapel that had the consensus of the neighbourhood would not happen in the space of time required to conclude the negotiations.

We recognize that there will be challenges in setting up a community development fund, but these are positive and exciting challenges.

8. What about the Sign Campaign?

The sign campaign has been very effective in galvanizing the community and letting the public know how disappointed we are in the City of Ottawa for passing a Secondary Plan that was unenforceable. With the Site Plan discussions coming up, it is important that we keep this pressure on the City and we encourage people to continue to display them proudly.

Once again, we would like to thank David Long for coming up with this campaign and the residents of Shannon Street in their strong support for this campaign.

Perhaps this campaign should be taken City-wide so that the rest of our Council gets the message that the citizens of Ottawa are tired of not being listened to.

9. What are next steps?

As noted above, we still have to deal with the Site Plan and Plan of Construction. These are expected to come up by late-Summer or early-Fall as Ashcroft hopes to start construction before year-end. From rumours we are hearing, our Councillor may yet revisit the issue of an access road through Byron Park or Shannon Street. We need to continue to work together to fight this potential threat. We also need to ensure that future activities around how the City deals with this development are carried out in a transparent process with proper notification and in this regard, we need to let our Councillor know that we want her to have delegated authority lifted on the Site Plan so that the public can speak on this at Planning Committee. We had attempted to include in the Minutes of Settlement a clause indicating our desire that site plan delegation be lifted, but Ashcroft would not agree to this.

Given the complex nature of the case and the negotiated settlement, we want to hold an information session with the community. We hope to have available our lawyer and planner for this session so that we can all hear their views of the case, outcome and next steps. We will advise the community once a date has been set for this meeting.

Finally, we wish to thank the many, many people who have donated money, helped out at our fundraising events, purchased signs and helped us move this process forward. We greatly appreciate your support.