The battle over Reservoir Hill

After months of relatively light agendas for all standing committees of council, Monday night’s meeting of the Built and Natural Environment Committee (BNEC) was a marathon.

Although an extra meeting had been laid on the previous week to ensure that development applications were dealt with in a timely fashion, the committee still found itself faced with a daunting agenda, 513 legal-sized pages of text and technical drawings.

Not all of it was brand new, of course. Many of the items on the agenda had histories, at least one of which goes back several decades. It is, in fact, the second oldest still open case before the Ontario Municipal Board which resolves development disputes.

The property in question is on Reservoir Hill, a 12 acre wooded lot along Springbank Drive just before the entrance to Byron.  Across the street to the north is Springbank Park and the Thames River. At the top of the hill to the south is the reservoir which gives its name to the surrounding park.

The property was acquired by Tony Graat in the late 1960’s for $10,000. Over the intervening years, he had attempted to have the property developed but was unable to get approval from the city or the OMB until 2001 after a protracted battle with London residents who wanted to protect the land as Open Space.

In 1999, the developer, Ayreswood Development Corp., applied to the city for a re-zoning to allow two 165 apartment buildings each 12 storeys high. This was opposed by the city and the Friends of Reservoir Hill who put up a valiant fight to retain the Open Space designation. The council refusal was appealed to the OMB which gave the developer a partial victory: he would be permitted to have the zoning but he would be allowed to build only one building, 12 storeys high with 165 units. He would have to consult with the neighbours and the city to draw up an appropriate site plan which would go back to the OMB, which had become the final approval authority. Nothing could be done without the OMB’s say so.

Although the city took the matter to the Ontario Court of Appeal, it was not successful and council at the beginning of 2003 decided not to go further, i.e. to the Supreme Court of Canada. While the neighbours, the Friends, and the council were not happy about the outcome, they were determined to live with it.

In 2004, the developer submitted a new site plan with one building. This building however was much larger than either of the previously proposed buildings and situated even closer to the property of one of the neighbours. Council requested changes to the site plan but the developer submitted it to the OMB without revision. The OMB didn’t accept the new site plan but sent the developer back to make some changes to "in order to allow Ayreswood to revisit the issue of the building location in order that its location might reflect the decision of the Board on the original hearing".

In 2008, the developer came back with a revised plan, moving the building away from the neighbour’s property but no reduction in the size of the footprint on the building and there were still concerns about how many trees would have to be removed. Back to the OMB.

In 2010, the OMB granted the multi-residential zoning to a 12 storey, 165 unit building; it did not approve the site plan.

On Monday, a revised site plan was presented at a public participation meeting before BNEC. There were a few changes, but the footprint of the building was not reduced; it was still 43% larger than either of the original buildings. The neighbours were not happy. They have accepted the original OMB decision of one building, but not a building that has ballooned in this way. At its current size, they feel it will have significant impact on their privacy and enjoyment of their property, a major concern identified in the original OMB report.

Following the input from the public, Councillor Joni Baechler asked if the committee could hear from the legal department. Janice Page, the city’s legal representative on this file, pointed out that the case was still open. The OMB has to approve the final site plan. From her perspective the site plan before the committee was little different from that which council had found unacceptable in 2009 and the board had turned down in 2010.

Baechler was furious. “How did we get where we are today?” she wanted to know. “It’s almost exactly the same as the one we turned down a year ago! We turned it down unanimously each time.” She moved to have the plan referred to the legal department to bring back a report on the outstanding legal issues. Councillor Joe Swan seconded her motion.

The mayor disagreed. “There are people who don’t want anything on that hill,” he said. “It’s decision time here. We’ve got enough information.”

Councillor Paul VanMeerbergen, in whose ward the proposed development is located agreed with the mayor. He had met with the neighbours, but there was no prospect of an agreement. He noted the developer had approval of OMB for the zoning change. He felt site plan was well thought out, a great plan. The developer had gone to a lot of effort to minimize impacts on the neighbours.

Councillor Sandy White chimed in. “This is going to be a very hard decision for everybody.” Noting that a couple of the neighbours had apologized for being emotional when presenting their concerns, she added, “It’s okay to be emotional.” Then she directed a question at Alan Patton, the agent for the developer. “Is there any way of having a smaller building?”

“No,” responded Patton curtly. “It’s a functional building and it complies with the OMB.” And that was that.

Swan pointed out that” you can’t just overrule an OMB decision locally. You need to get a report from legal.” He wanted a special meeting before going to council to get some clarification from the legal department.

Then the mayor weighed in again. “I like the site plan,” he said. “I want it to go ahead.”

Page had to correct him. “You are not approving the site plan; you are making a recommendation to the OMB to make a decision. We can only make comments to the approval authority. The OMB will want legal opinion anyway.”

The saga will continue when a special meeting is convened on Monday, 4 p.m.