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2009-03-09_Supplemental Agenda Packet--Dossier de l'ordre du jour supplémentairem; City of Saint John Common Council Meeting Monday, March 9, 2009 Location: Common Council Chamber Supplemental to Agenda 1. Planning Advisory Committee Chair Reply to the Report of Dr. Ircha - March 2(_)(_)9 City of Saint John Seance du Conseil communal Le Lundi 9 Mars, 2008 Lieu : Salle du Conseil communal Ordre du jour supplementaire 1. La Reponse du comite consultatif d'urbanisme au raport de Dr. Ircha March 9t', 2009 City of Saint John Office of the Common Clerk 15 Market Square City Hall Saint John, NS ATTi N: Elizabeth Gormley Dear Ms. Gormley: RE: Reply to the Report of Dr. Michael Ircha - March 2009 Please find enclosed my reply to the report of Dr. Michael Ircha. Please distribute a copy of this reply to the Mayor and Councillors in advance of the meeting scheduled for 5:00 p.m, tonight. I apologize for the late hour in providing this reply. Y S pin F. Horgan r Planning Advisory Committee City of Saint John Imlg 6U-3 LOOJTood 9W-1 017O6-E69-919 ATTa~ 'S ATTGM-WOO Lti:IvT 60,-60-EO March 91h, 2009 To the Mayor and Council of the City of Saint John 15 Market Square City Hall Saint John, NB Your Worship and Councillors; Reply to the Report of Qr. Michael Ircho - March 2049 1. I first read the report titled Expediting Saint John's Planning and Development Process authored by Dr. Michael C. Ircho on Wednesday, March 4th, 2049. 1 have read through the report several times since then and I feel it's important that no timers lost in responding to certain portions of the report dealing with the Planning Advisory Committee of Saint John (PAC). 2, 1 am currently the Chair of PAC, a position I have held since January 2007. This is my ninth year on PAC and previously I was the Third Executive Member (2001 - 2003) and vice-Chair (2004 - 2006). The PAC executive is elected each year by PAC members. 3. 1 am a lawyer by profession and I have appeared on behalf of clients before various PACs in the greater Saint John region. 1 have also appeared before the Assessment Planning Appeal Board (APAB) on behalf of clients on various occasions. One such case is noted by Dr. Ircha in his Endnote Wl - "Dean Construction Limited v. Town of Grand Bay - Westfield Planning Advisory Committee". I mention this only to point out that I am familiar with the principles of administrative law and natural justice and how important they are. 4. This response is mine and I accept responsibility for it. There has not been sufficient time to prepare a response and circulate it among the other members of PAC. Some members of PAC have contacted me to advise that they feel a response is necessary. 5. Last week I spoke to the Planning Commissioner, Ken Forrest, and he advised that a written response to Dr. Ircha"s report would be requested from PAC. This is not that report. This initial response Is to address Dr. Ircha's comments which 1 believe have incorrectly and unfairly characterized PAC and its members. b, As a general comment, I note that Dr. Ircha's view of the ideal composition and functioning of PAC is different from mine- 7. On a positive note, issues raised by Dr. Ircha such as orientation sessions and continuing education for PAC members, the review of PAC administrative procedures, and others are valid and important. I look forward to developments 5SO-3 LOWOOd 9b13-1 OW15-'S69-909 ATT@N T ATT@ril'1-( oui Lvvl 6o'-60-E0 2 in these areas. Anything that can be done to improve the functioning of PAC is welcome. There is always roam for improvement. I do not suffer from the delusion that the operation of PAC and my actions as Chair have been perfect. I am sure that no one has ever said or implied that. 8. 1 feel that the pu'blic's confidence in the PAC of the City of Saint John requires that the issues in this document be raised immediately. There is a public meeting of PAC tomorrow, March 10, 2009 and PAC will continue to meet white Dr. Ircha"s report is reviewed and debated. What confidence would an applicant or an interested person have in PAC if no response is provided to the subjective and negative comments about PAC included in Dr. Ircha's report? I suggest the answer would be very little of best. 9. My primary concern is Dr. Ircha's contention that there is can "obvious dysfunctional relationship between PAC and planning staff". PAC is further described as heaving "little regard for the City's planners, their reports and analyses, and their recommendations... Staff is rarely questioned in public on the substance of the application and why they made their recommendations. Planning staff seems to have little input on the terms and conditions that PAC may impose when they choose to differ with the planner's recommendations. The result is PAC setting its awn terms and conditions. This can leave the applicant with inconsistent and undeliverable conditions to be met." (Page 19 of Dr. Ircha's report) 10, This relationship is further referred to in terms such as "Overcoming the current dysfunctional relationship between PAC and staff (as well as between PAC and Council)..." (page 21) and "As discussed above, the community perceives a dysfunctional relationship between planning staff and PAC" (page 37) and finally, "Stakeholders raised many concerns about the apparent dystunctional relationship between PAC and planning staff, and between PAC and Common Council" (page 53), 11. Dr. Ircho repeats additional negative comments about PAC in his report such as; (a) "Some stakeholders reported that PAC has stated can occasion that they do not care what the Municipal Plan and Zoning By-law say (sic) they are doing what the Committee thinks is right." Dr. Ircha follows this up with. a statement that suggests that the above remark is factual: "PAC's decisions cannot ignore the City's existing planning legislation. They cannot recommend to Council or decide on variances on the basis of what they would like the City's plans and by-laws to be." (Page 20); (la) ",..concerns were raised about how PAC has treated outside development firms in the past. Stakeholders suggested that PAC has sought to deter outside developers, essentially creating new barriers for them." (Page 24); and 6E0-9 L00/E00d 9W-1 0W6-E69-905 ATTaN 2 ATTawwwd wf T 60,-Go-so 3 (c) one stake holder spoke of the burdensome PAC conditions set without planning staff input. Council subsequently had to modify the terms and conditions" (page 19) 12. Dr. Ircha presents his conclusions about the relationship between PAC and planning staff and between PAC and Council based on statements from unspecified "stakeholders". The identity of the "stakeholders" is not connected to any particular allegation. Sufficient details are not provided to identify a particular application. No apparent attempt was made to verify the allegations. Dr. Ircha made no attempt to present these allegations to PAC for a response prior to the publication of his report. 13. Dr. Ircha met with PAC on one occasion only, on October 2111, 2008 at PAC's supper meeting prier to the public session. The meeting began at 4:30, a half hour earlier than normal. Beside the ordinary business of PAC (there were nine items on the agenda that night) far. Ircha expressed his views on many aspects of PAC composition and operation. Some of Dr. Ircha's recommendations concerning PAC's procedures seem to have been drawn from his previous experience as Chair of Fredericton's PAC. That experience does not necessarily bear any resemblance to the experience of Saint ,John's PAC and it leaves me with the strong sense that Dr. Ircha's report is not objective and that many of Dr. Ircha's conclusions were prejudgments. Many of these are now included almost verbatim as recommendations in his report. Dr. Ircha also attended' the public hearing of PAC can October 21, 21)08 as an observer. 14. When did it become accepted' practice to repeat allegations which have not been substantiated and to quote a group of stakeholders (each with their own self-interests) without giving any of the context of their comments or without giving the group against whom the allegations are made, a chance to respond? Words such as "apparently" proceeding many of these statements is, in my opinion, an attempt to avoid responsibility for the statements on the part of the author. It is analogous to the snowball thrower saying "I didn't make the snowballs, l just threw them." 15. When one reviews the allegations against PAC reproduced in Dr.. Ircha'S report collectively (and in some cases individually), it is hard to imagine a more damning description of a planning committee's method of operation. This damning description is based on allegations for which little specifics have been provided' and to which the PAC was given no opportunity to respond prior to publication. In my opinion these allegations are a fundamental misrepresentation of the actions of PAC. The damage caused by what, in my opinion, is the irresponsible publication of such allegations cannot easily be undone. You cannot un-ring a bell. 16. 1 think it's critical to set the record straight on a number of points in r. Ircha's report. 6'60_4 Lo10lwod 9110-1 OWG-£69-909 ATTaN ~ ATTam-WOd3 wpl 60,-Go-so 4 17, In 2008, PAC dealt with a total of 197 applications. I have reviewed the minutes relating to 192 of those applications (the minutes of the 5 items from the June 171h,2008 meeting were not immediately available to me). Of the reviewed applications, PAC followed Staff's recommendation without modification 149 times (77 6); PAC followed Staff's recommendations with some modification 30 times (1 A), and, PAC disagreed with Staff's recommendations 14 times (7%). In total, PAC actually agreed with Staff's recommendations 93% of the time. Further, the minutes indicate that in 73 cases (38%) PAC specifically requested Staff's input on various aspects of their reports. There may also have been interaction with Staff on other applications, which is simply described as. "Discussion ensued" in the minutes. I note that my percentage calculations could be subject to marginal corrections. 18. Of the 15 applications decided by PAC in 2009, PAC followed staff recommendations without modification with some modification 3 times (20%). No recommendations have been turned down in 2009 to date. PAC has agreed with all of Staffs 20109 recommendations to date. 19. Does this describe a PAC which has "little regard for the City's planners, their reports and analyses and their recommendations"? My response is no.. 20. Some of the allegations of stakeholders reproduced in his report do contain enough information for me to be reasonably sure that I recognize the application in question. I would like to address two such allegations and a direct observation of Dr. Ircha: (a) (i) According to a statement on page 19 of Dr. Ircha's report: "Another stakeholder, as a residential lot owner, spoke of PAC imposing a condition on their application that they ensure the developer has an approved drainage plan for the entire subdivision". Dr, Ircho notes that 'This is Engineering's responsibility, not that of an individual applicant for a subdivision loft variance.,' (il) As I recall, in this particular matter a neighbour of the applicant attended the meeting of PAC in order to express concern with respect to the run off of water from lots in this subdivision on to her property, The variance sought by the applicant was large (73%). Staff had recommended the variance be approved. In discussion with the planner responsible for this application during the public hearing, PAC was advised by the planner that it was entitled to place a condition on the approval. The application was approved subject to the condition that it be verified that a drainage plan was in fact in place and the applicant's lot conformed to that plan. In my opinion, this condition could hardly be considered as onerous or beyond the jurisdiction of PAC when it was intended as a precaution against the possibility of damage being done to a neighbouring property as a result of a variance approval, (PAC minutes October 30, 2007). Further, it should be noted that it was PAC's 6'SO_d L001900d M'-1 OW6- 569-909 AITaN Q A112 i-WO€id WliI 60,-GO-90 5 understanding that the Applicant had not purchased the lot and would not have to if the variance was denied, (b) (1) On page 26 of the report, Dr. Ircha notes: "...several stakeholders spoke of a PAC approved application involving a sewer running beneath a proposed swimming pool. Apparently, in this case, Engineering input was missing, but PAC proceeded without it and approved the variance request," (ii) what actually happened was that PAC approved the application subject to confirmation that there were no easements in place (prescriptive or otherwise). If an easement such as the one described above had existed the variance was not to be approved. (PAC Minutes August 26, 2008) If PAC had simply been consulted about this application, or if Dr. Ircha had taken the time to verify what did take place prior to Dr. Ircha's report being published, the allegation could have been clarified and the negative comment as to PAC's conduct avoided.; and, (c) (i) On page 22, Dr. Ircha describes, an application involving for c'a variance to construct an oversize garage - possibly one of the most common types of variance applications dealt with by PAC. Dr. Ircha was present at this public meeting of PAC. Dr. Ircha objects to the question being asked of the applicant whether he was related to a certain person. Dr. Ircha also states that members of the public might wonder why such a personal question was being asked. It was obvious to the person questioned, who responded readily that he did not do business with this relative (who runs a construction company). The applicant did acknowledge that he himself owned a "-gravel truck that he does repairs on as well as a rubber tired back hoe and a couple of plough trucks. (Name deleted) understood the variance did not give him the right to carry on any activities that are not permitted in the existing zoning." (PAC minutes October 21, 2008), This meeting took place on October 21, 2008 and not on October 2, 2008 as stated in Dr. ircha's report. (ii) Dr. Ircha describes the question as inappropriate and states that it could have been asked in another way. In the context in which it was asked, l do not agree with dr. Ircha. The question was asked and the following discussion was meant to directly confirm on the record that the Applicant was aware of certain inappropriate uses of the garage. I submit that members of the public in attendance would have no problem determining why the question was asked. (iii) Dr. Ircha further states that, "Alternatively, and more appropriately, specific terms and conditions could have been placed can the variance to prevent the oversized garage from being used to store construction equipment. Planning Staff could have provided appropriate wording to EVE L001900d 9PO-1 ONG--S69-905 A119N 2 A119r[M-W0d1 6T7: K 60,-GO-CO 6 assist PAC in setting such terms and conditions, had they been asked." (Page 22) (underlining added). (iv) Ear. Ircha is apparently unaware that PAC is used to dealing with this type of application, and had previously discussed with Staff at various public hearings whether it was necessary to add such a condition as Dr. Ircha described to variance approvals of this kind. Planning Staff on a number of occasions confirmed that they did not think it was necessary and PAC followed the advice provided. Dr. Ircho's response reflects an unwarranted attitude of condescension toward PAC. A negative portrayal of PAC could have been avoided, if to paraphrase Dr. Ircha, PAC had been asked. 21, In conclusion I note that preparing this response has not been a pleasant experience. It has also consumed a fair amount of time that could have been spent can other things. However as stated previously 1 believe it to be necessary to respond to the unwarranted disservice Dr. Ircha's report has done to PAC and its members. I disagree with the methods used by Dr. Ircha as I have previously noted. 22. The members of PAC take their responsibilities seriously. In my opinion, they deserve better than this. 23. PAC will provide a more comprehensive response dealing with the various recommendations contained in Dr. Ircha's report in due course. Dated at Saint John, New Brunswick this h, 2009. t p en F.Uhiorgan, Chair Planning Advisory Co tee City of Saint John 6EO-d LOOILOOd M-1 0 06-€69-909 ATT@N ~ AT1@4M-WOE WK 6O,-60-90