OMB Will Review Council’s Potential Conflict on Pier 8 as Both Approving Authority and Land Seller – TPR Hamilton | Hamilton's Civic Affairs News Site

March 2, 2018
Lawyer Mary L. Flynn-Guglietti described it as something she has never seen in her 30-plus years as a planning lawyer.
Tuesday’s Ontario Municipal Board Prehearing on the appeals against the City’s Pier 8 redevelopment plan turned into a series of heated arguments between City of Hamilton lawyer Michael Kovacevic, presiding OMB member Gerald Swinkin, with lawyers for the appellants often objecting to the City’s posture.
At the end of the day, the OMB prehearing could not be completed and another hearing date is needed to continue arguments.
At stake for City Council is the ability to sell the Pier 8 lands this year.
For two industrial Hamilton Port Authority tenants appealing, their ability to continue their industrial operations on Hamilton’s Port is at stake. The other appellant, Harbour West Neighbours, is arguing for the future composition of their neighbourhood on Hamilton’s West Harbour.
OMB prehearings determine the issues list for the full hearing that follows; the matters that will be considered by the Board and argued by opposing lawyers. In advance of the prehearing, the parties exchange lists, and where there is disagreement they argue in front of the prehearing.
In this case, neither side reached an agreement on issues, and spent the day arguing case law, much to the weariness of Swinkin who repeatedly reminded parties they were there to determine the issues, not argue the full hearing.
“This is going to be a long day,” Swinkin declared late in the morning as Kovacevic repeatedly argued against straightforward issues proposed by appellants.
In a major loss for the City, Swinkin stated that he will not grant the City Council usual deference as the planning authority due to the City’s conflicting interest in selling Pier 8 with a goal of maximizing financial return.
All appellants submitted into evidence statements by the City and City Councillors stating that maximizing land value is one of the motivators for the City in rezoning the Pier 8 lands.
“The Board does have a public interest function,” Swinkin asserted to the objection of the City’s lawyer to his decision not to grant deference. “You may say they [the public] are not here and not appellants, but the Board will serve its public interest function and look out for those interests.”
Kovacevic tried to argue on behalf of City Council that the OMB should only be looking at the Pier 8 lands and not the wider area.
Swinkin responded the OMB must consider the context of the development within the wider community.
Pitman Patterson, representing Parrish & Heimbecker, took the lead for the industrial appellants, with Flynn-Guglietti representing Bunge Canada supporting points in common between these two appellants.
Herman Turkstra represented Harbour West Neighbours.
Due to the length of arguments on Tuesday, the OMB was not able to complete the pre-hearing process.
Another prehearing date has been set for June 5, the City of Hamilton has located the hearing at the Glanbrook Municipal Centre.
The City’s process for selling the Pier 8 lands continues, with the five shortlisted development groups expected to provide their Request for Proposal documents to the City this month.
Until the issues list is finalized and approved by the OMB for the full hearing, it is not known how the hearing could impend the City’s plan to sell the Pier 8 lands this summer. Depending on what issues the industrial appellants are allowed to argue, the OMB’s consideration could include restricting development on the east side of Pier 8.
The Public Record will attend the full prehearing and hearing on this file.