By Robin Sukhu
I received a PRATAC flyer in my mailbox highlighting that Michael S. Polowin will be a special guest at their upcoming meeting. I wondered who Mr. Polowin is and what is his area of expertise.
Mr. Michael S. Polowin is a partner in the large law firm Gowlings. Why is a partner in a high-priced law firm coming to our little town? Who is paying for his time (high priced lawyers seldom work for free)? If he is doing this pro bono, then why? What is his agenda?
His profile at Gowlings states: “He is also a member of the Greater Ottawa Home Builders Association, serving as a member of the Builder-Developer Council”. He also provides “commentary on key municipal and planning issues”.
His profile makes it clear that his client base is real estate developers. PRATAC has invited a lawyer who makes his living from promoting the business interests of land developers to talk to a group of farmers and rural people. I cannot see the shared interest of these two groups. Developers typically pave over farmland; farmers typically want a sustainable multi-generational lifestyle.
I find it difficult to believe that Mr. Polowin could or would offer anything but a pro developer position.
The PRATAC flyer mentions Mr. Polowin’s paper “Official, But Illegal: are official plans being used in a manner that is a “Bridge too far?” I took the time to read this paper.
His opening paragraphs argue that official plans “are beyond the legal authority of municipalities” and he “offers a path to challenge such measures”. If I were a large real estate developer this is exactly what I would be arguing. Nowhere in his paper does Mr. Polowin even address how to protect the rights and way of life of the people who live in the various municipalities. His position is clear right from the opening: he is concerned about land developers. At least he is honest about his intent.
His paper goes on to cite numerous cases, mostly about large developers. Here is a partial list:
- Goldlist Properties Inc – property management company
- Steven Polon Ltd – convert agricultural land to a scrap yard
- Cadillac Development Corp – owner of $29 billion of real estate
- R & G Realty Management Inc Ltd – real estate developer
- Halmir Investments Ltd – real estate developer
- Bele Himmell Investments Ltd – real estate developer
- Elia Corporation – a condo developer
Mr. Polowin’s paper makes a strong argument that “Official plans are not intended to be used to prohibit or regulate specific land uses in detail. Rather, these should be implemented through zoning by-laws.” I cannot argue with this, it is the by-laws that provide the teeth, BUT it is the official plan that sets the long-term objectives of the municipality. Destroy the official plan and the by-product is that you have effectively shut down by-laws.
Now I am starting to see why he is here. This is a long-term game plan. Stop municipalities from creating official plans with teeth and developers will have a free hand. Like in the case of Steven Polon Ltd, a free hand to convert agricultural land to a scrap yard.
A brilliant tactic in Mr. Polowin’s paper is the idea of “implied exclusion”.
“An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature’s failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied.”
This idea of implied exclusion is key to his argument. If our official plan fails to explicitly mention something in its text, then it is not applicable. But he also argues that explicitly stating things like setback limits in an official plan is too detailed and instead must be done in by-laws. This puts a huge burden on those constructing the official plan. A lot of effort must be expended to explicitly name items covered but be general enough to be not misconstrued as a by-law. Sounds like a Catch-22.
In his paper he outlines the game plan for intimidating and frustrating underfunded municipalities. Most municipalities would probably prefer to capitulate rather than launch a costly legal defense.
In my opinion, Mr. Polowin is in Mississippi Mills to try to convince farmers and rural folks like me that he is here to protect our rights. I believe the truth is the opposite. His paper offers nothing that will protect my rights, instead it offers a strategy for developers to run roughshod over municipalities.
This strategy is truly brilliant. By co-opting organisations like PRATAC, it turns citizens into advocates for developers. It tries to convince the people who will be victimised that it is their rights that are being trampled. Meantime, the developers wait in the wings.