In a 12-minute oral decision delivered at the start of Day Two of the Local Planning Appeal Tribunal hearing of the Harbour West Neighbours Inc. and Herman Turkstra appeal of Hamilton’s Pier 8 development plan, Local Planning Appeal Tribunal member Blair Taylor changed everything.

In tense arguments yesterday, the City and Herman Turkstra argued over an Issue advanced by Turkstra that the 2012 Ontario Municipal Board decision implementing the West Harbour Secondary Plan (commonly known as “Setting Sail”) bounds the current LPAT hearing into Pier 8 as it relates to the number of units allowed to be developed as part of the City’s Pier 8 development plan.

The ruling is complex, was delivered orally, and cites documents not available to The Public Record. As such, this summary of the oral decision is limited in its ability to dive deeply into the complex legal arguments engaged.

In his decision, LPAT Member Taylor focused on the North End Transportation Master Plan, predicated upon a forecast of 750 to 1000 new units combined between Piers 7 & 8.

The City is planning up to 1645 units on Pier 8 alone.

Turkstra, acting as a self-represented appellant, asked the Tribunal to limit the City’s submissions to only the number of units contemplated in Setting Sail, citing passages in the past OMB rulings regarding the existing streets of the North End being designed to only handle the previously contemplated densities.

The City countered that the Tribunal is bound to the Provincial Policy Statement on land use issued in 2014, and the new Growth Plan for the Greater Golden Horseshoe Places To Grow 2017.

The City submitted these changes since the 2012 Setting Sail OMB approval mean the current Tribunal is not bound to the 2012 densities in the transportation plan. The City stated it was prejudiced by Turkstra’s motion coming at the beginning of the hearing, and not earlier, and that it was not on the issues list.

The City added that Waterfront Shores – the successful bidder to build the Pier 8 development – was not a party to the 2011/12 Setting Sail OMB hearing, density was not an issue in that hearing, and the citations Turkstra provided from that hearing was “passing references” and not substantive to the present matter.

LPAT Member Taylor outlined the arguments submitted by all parties, then prepared to provide his ruling.

Before the ruling, Taylor stated that upon concluding his oral remarks, he would recess the Tribunal hearing to allow the City to consider if it would move to adjourn and launch a request for review of his decision.

Then Taylor started delivering his ruling.

He stated that he found the arguments of Turkstra to be potentially relevant, that the issues advanced by Turkstra may have relevance to the hearing, that he would not be dismissing them as requested by the City, and the “Tribunal will defer consideration of Issue #3 until after evidence is heard”.

Acknowledging that his decision changed the dynamics of the hearing, he suggested the parties take the recess to conference.
Taylor recessed the hearing, and left the hearing room.

Lawyers for the City and Waterfront Shores quickly left to a City of Hamilton conference room in the same building. Turkstra and lawyers for Harbour West Neighbours Inc. asked this reporter for the use of the hearing room for their conference, and I left the hearing room.

Around 20 minutes later, all parties entered the public waiting room for the Provincial Offences Court, where I went to wait out the recess. They requested privacy, and spent around 15 minutes speaking.

All parties entered the hearing room, and after around 40 minutes, the LPAT returned to session. The lawyers stated they needed to speak without the discussion being recorded by the court reporter present. LPAT Member Taylor ordered the LPAT into closed session.

After an eight-minute closed session, the lawyers requested the LPAT to adjourn the hearing to allow for “without prejudice” discussions to occur between the parties.

Taylor granted the request. He ordered the parties to return to the hearing room at 50 Main Street East on Wednesday, April 10, at 10 am to report to him their results. Taylor stated that he is prepared to conduct a settlement hearing if they reach an agreement. Otherwise, the full hearing will resume.

Taylor firmly told the lawyers they would be expected to keep their arguments short and concise if the hearing resumes; that if they are unable to complete arguments in the three days scheduled next week, the matter will be put over until October when the appeal of Parrish & Heimbecker (with Bunge “sheltered” under P & H) of the Pier 8 plan will be heard over 18 scheduled dates.

Upon adjournment, the lawyers all quickly left the hearing room to begin their negotiations. The planners and witnesses scheduled to appear today all left 50 Main Street East to carry on with their various business matters, not part of the meetings that began between the lawyers.

COMMENTARY

What I cannot capture in a traditional news format is that today’s ruling may appear to be a setback for the City’s case; however, it has merely created better conditions for a negotiated settlement between these parties. The City can no longer be confident of the outcome being in their favour, nor can the appellants.

Both sides have risks they wish to avoid in a hearing; this is why there is a good chance of a settlement being presented next Wednesday. As a keen observer of the Tribunal, I see the Member’s ruling as being designed to spur a settlement.

I’ll be in the hearing room next Wednesday to report on the outcome.