At the September 1 council meeting I presented a motion to gain access to the benefit permit for species at risk on Johnson’s Point. Obtaining that permit was one of the conditions the developer had to fulfill to complete the condominium agreement, which Council has a legal obligation to vote on.
The second part of that condition is that all the recommendations from the benefit permit have to be incorporated into the condominium agreement. To date Council has not seen a copy of the permit making it impossible to verify that all the conditions have been incorporated.
The motion was lost in a tie with myself, Councillors Ruttan, Morey and Revill voting to see the permit and the Mayor and Councillors Sleeth, Roberts and Leonard voting against. The following are the comments I made to Council introducing the motion:
“Sometime in the next few months Council will likely be asked to vote on the condominium agreement for the Johnson’s Point development. That agreement has to incorporate all of the recommendations of the MNR’s Species at Risk benefit permit. It is Council’s legal responsibility to verify that all of the conditions have been met. To date, Council only has a copy of the benefit permit with sections blacked out, making it impossible to do that verification.
Since April 26, 2019 Magenta Water Front Development has been the project manager for the Johnson’s Point development with extensive powers to move the project forward.
On June 4, 2019, Magenta made a deputation to Council at which time Councilors made it clear that they wanted to see a copy of the benefit permit. Magenta, to its credit, took an emergency motion to Justice Hurley to ask for the Permit’s release.
One reason for Justice Hurley emergency endorsement on June 18, 2019, two weeks after the Council meeting with Magenta, was knowledge of South Frontenac’s need to see the benefit permit. Justice Hurley references a Frontenac News article, part of which reads:
[the] Director of Development Services for South Frontenac Township, explained …. The township needs to know that whatever is required under that [benefit] agreement has been satisfied before it can recommend that the county give final approval for the plan of condominium.
“Without seeing the agreement, we are stuck,” she said.
The Justice’s endorsement restricted public release of the document and permitted release to municipals officials who required it in order to assess the application for an extension of time for draft plan approval, or another valid legal reason. A Township councilor is a municipal official who has a valid legal reason to receive a copy of the benefit permit because they have to vote on a motion which involves knowledge of the permit.
The endorsement also makes no distinction between staff officials and elected officials. If staff officials can see the document so can elected officials, if neither can, then it will be very difficult for the Johnson’s Point development to move forward.
Finally, Justice Hurley’s endorsement includes a statement that both the plaintive and the Beaches agree that the disclosure of the Benefit Permit is required for final plan approval.
Seeing the full document in camera is an option that has been around for at least 15 months and a solution that would satisfy any concerns about the public release of the permit and allow Council to fully assess the completion of the draft conditions, which is its legal obligation.
Magenta has numerous options to releasing the benefit permit. The most straightforward approach is to simply use the June 18, 2019 endorsement and provide a copy in camera to Council. If Magenta is uncertain that the order allows that, given the ambiguity in the order about another valid legal reason, Magenta could pose an informal question to judge something to the effect ‘given the language concerning disclosure to municipal officials for another valid reason can the permit be disclosed in camera to South Frontenac council for the purpose of approving the completion of the draft plan conditions’. The worst case is the judge says “no, bring a new motion” in which case Magenta can bring a new motion for release of the benefit permit to Council. The last action took two weeks, there is 5 months before the current draft conditions expire. There is time to advance this alternative.
Without access to the Permit, Council will have to vote without full knowledge of what it is voting on, and, at best, rely on the developers and Staff reassurances that everything is OK; an abdication of our responsibility and accountability.
Council will also need to see the benefit permit for approval of site plans. It is reasonable to gain access to the permit now and fulfill all of our obligations and not rely on promises of future actions as a motivation in the upcoming vote. We have been down that road before with the signing of the draft conditions on the guarantee that the Township would gain access to the property and it did not end well.
The motion is simple: it states that Council wants to see an unredacted copy of the benefit permit before it votes and it makes it clear that Council would like Magenta to with staff to make that happen.