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The OMB has today ruled in favour of the developer – that is, in favour of the compromise agreement made between the town and the developer.  In an unusual oral ruling after one day of hearings, the Board said that given the evidence and the Official plan, the Board would have agreed to a 6 storey building but since the developer agreed to 5 with the town, the board ruled in favour of accepting the agreement.  The hearing was originally scheduled for 4 days but was reduced to 2 after the agreement was announced.  After a morning of hearing from an expert witness on planning about the development, there was a break at 1:40pm  Presentations from the public were heard after that with the hearing finishing at 5:30pm

Rules of the hearing

The “Board” (that’s what she called herself) consisted of one person and she announced the rules at the start:

  • The Board would hear evidence only on the re-zoning application and not on the site plan;  there are no design details in the by-law.
  • Participants (that is members of the public who were not “parties”) must condense or delegate their information so that each topic would be mentioned only once and each presenter would be allowed 15 minutes.  Keith Oliver asked for an hour but was over-ruled.  It turned out that in addition to presentation times, there was also cross-examination time.
  • The hearing was structured more like a court case and not like a council meeting.  There is no room to make decisions contrary to the applicable laws.
  • Complaints about Process are not in the jurisdiction of the board; as long as the rules applicable to OMB hearings are followed (and they were), council or staff failings in how they reached a decision is not under the jurisdiction of the OMB. 
  • The question before the Board was: “Is the re-zoning consistent with the Official plan?”

Representatives

Wayne FairbrotherWayne FairbrotherThe Town and the Developer were represented by lawyers:

  • Wayne Fairbrother – representing the town – very knowledgeable
  • Katarzyna Sliwa – representing TVM – super sharp.  If she cross-examines you, you lose.

Council Representatives

Present in the gallery

  • Miriam Mutton
  • John Henderson
  • Donna Todd

Summary of agreement and by-law

  • The developer (TVM) originally asked for a six – storey building of 22metres but after negotiation with the town, it was reduced to 5 storeys at 18 metres.
  • Most citizens agreed with the legion doing a re-development but wanted 4 storeys maximum.

Basis for decision – comments by Board

  • 6 storeys allowed by official plan
  • Before the hearing, the Board did not see the correspondence with concerns
  • The parking lot where the new building (135 Orr) will go is NOT in the Heritage district but the new parking lot where the current legion building is located (136 Orr) IS in the heritage district.  The by law allows only a parking lot at 136 – any change to that would require a new bylaw.
  • Devaluation of nearby properties is not considered
  • The Board commented that the Town has provided more information on the OMB process than most other towns and that “this municipality has been very good at getting Information out”. (She quoted her Google experience – so obviously using the web to get the story out is more than acceptable). 

Interest by citizens

Several times, the board commented to the effect that citizens seemed not to understand the rules nor what the dispute was about.  But she also said that there were more people present (about 40-50) than would be usual in a town the size of Cobourg.

Citizen Presentations

Those wanting to make presentations were reduced to the following six:

  • Ben Burd – Against
  • Felicity Pope – representing ACO – Cobourg Branch – Against
  • Iris Milne – Representing the Legion – For
  • Nancy Simpson – Against
  • Gail Rayment – Against
  • Keith Oliver – Against

Ben Burd tried to talk about how the council came to a decision but was told that this was not of concern to the board (polite code for “shut up, you’re wasting your time and mine”).  He was told to focus on impact so he did.  He also proceeded to criticize the planning and heritage committees but he was told he was NOT an expert witness.

Katarina SliwaKatarzyna SliwaBut he was completely shot down and discredited under cross-examination by Katarzyna Sliwa.  She brought up posts that Ben had published on his blog which doubted that an OMB chair would be fair if they followed the rules (I may not have the quote 100% correct).  The chair was offended by this and warned Ben that it was “not wise to make a statement that could be libellous”  and later a second time that it was “not wise to make a statement that could be slanderous”.  Unfortunately for his cause – he did more harm than good – mostly because of his posts before the hearing which were pointed out by the really "with-it" counsel.

Felicity Pope presented the case for the ACO.  Basically: Cobourg values heritage and this building will be adjacent to a heritage district.  She asked that the board defer its decision until after the site plan has been submitted so that the two could in effect be approved (or not) together.  But the Board said that suggestions like this are (to para-phrase) “out of order”.  She also said that the town should hire an architect with heritage experience.

Iris Milne who represented the Legion pointed to the value of the building to the Legion and its 1000 members.  She also said that the building would provide accessible affordable housing for many people and not only legion members.  She would have preferred 6 storeys because then there would be more units at a lower price.

Nancy Simpson said what others also said, that there was support for the Legion’s project but just not for 5 storeys.  She stumbled on some questions since she was not aware of By-Law details.

Gail Rayment is a member of the Heritage advisory Committee but said she was speaking as an individual.  She added little additional info but repeated the recommendation made by Felicity Pope – with the same result.

Keith Oliver was recognised as having spent considerable time researching and lobbying on this subject.  He presented some drawings showing how massive the development is.  It’s wider than Victoria Hall and higher than Victoria Hall (except for the clock tower).  But although he did not get caught out like Ben, he was mercilessly cross-examined by Katarzyna Sliwa.  He admitted to having slightly exaggerated a drawing to make a point and Katarzyna jumped on that and managed to destroy his credibility.  Keith also said that a heritage architect should have been involved.  Under cross-examination by Wayne Fairbrother, who used Keith’s drawings to make his point, he was asked if 60 feet height was unacceptable but 50 ft. was OK, why did 10 ft. suddenly make a difference?

Summary decision

The Board said she wanted to explain to the public represented at the hearing, what the decision was about. But because it was a fast and oral decision, there would be no detailed rationale.

  • The Board makes a decision based on evidence placed before them.  The Board has experience and knowledge in planning and of the governing provincial laws.
  • This particular question boils down to one of height.
  • The Official Plan says a maximum of 6 storeys is allowed.
  • The Developer originally asked for 6
  • The Council came to the right decision with a compromise of 5 storeys since the OMB would have agreed to 6 storeys
  • The Public had the wrong information and were “all over the map” in their understanding
  • The only person that shadowing might have affected was not at the hearing. (I believe she was referring to the cottage that is part of the Sifton Cooke Centre property.)
  • Architectural compatibility is not an issue since it’s not yet settled.
  • The Proposal and ByLaw is consistent with the Official Plan and is good planning so is approved.

Update Feb 2, 2015

Site Plan approval has now been requested. The official notice to Council says:

The Town of Cobourg Planning Department has received an Application for Site Plan approval from TVM Cobourg Inc. for a mixed use condominium building at 135 Orr Street with an additional surface parking lot at 136 Orr Street. The proposed five-storey building will consist of fifty-three residential condominium units, and a 1,310.71 m2(14,108.83 ft2)

 Cobourg Legion Branch 133 facility on the ground floor. Surface and underground parking will be provided on the building property, 135 Orr Street, and additional surface parking will be provided on the former Legion building property at 136 Orr Street, for a total of 137 parking spaces.

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