The casual demolition of irreplaceable historic commercial buildings - include one dating from the mid 1840s - represents
"good heritage planning"
according to Ira Kagan, the lawyer who will be presenting Bob Forrest's case to the OMB next Wednesday.
But why not allow property owners to demolish if they want to? They can keep the facade, perhaps spruce it up a bit, and redevelop the site? What's wrong with that?
Demolish to Conserve!
In the bizarre world of planning, contaminated as it is by vested interests and biddable lawyers, it doesn't seem at all ridiculous to recommend the demolition of historic buildings in order to save them.
The Town's 2011 Heritage District Plan (replicated word for word in the 2013 By-law) says this about historic buildings (the definition of which includes the historic commercial buildings at 184, 188 and 194 Main Street South that Forrest wants to demolish).
"The Town recognises the importance of four forms of historic buildings in the district - historic landmark buildings, historic commercial buildings, historic houses and the historic registry office - and their heritage attributes."
and for the avoidance of doubt
"The Town supports the retention of historic buildings in the district."
and to underline the point
"Demolition and replacement of historic buildings needs to be avoided since the conservation of historic buildings is essential to maintaining the district's authentic historic character and revitalising the district."
Forrest's Heritage Impact Assessment, prepared for him by Goldsmith Borgal in February 2016, said a review of (previous) plans for the old downtown
"reveals numerous competing interests that ultimately must be weighed by the Town Council. It is Town policy to revitalise Lower Main Street South while preserving its historic character. However, throughout these various plans, the realistic ability to achieve these two goals simultaneously has not been outlined/illustrated."
Goldsmith Borgal conclude:
"...the proposed development, while not meeting the Heritage Conservation District Plan in terms of height restrictions, could be mitigated in order to allow the Town to meet a number of other planning goals in the Historic Downtown Core. This Heritage Impact Assessment includes examples of how architectural design can further enhance the compatibility of new construction in Heritage Conservation Districts."
So Goldsmith Borgal's strategy is to "mitigate" the impact of the Clock Tower development rather than rule it out completely despite the fact that historic buildings will go.
The Town's Planning Department did not tell Goldsmith Borgal about the manipulation of the Floor Space Index (and neither had they told ERA Architects) despite the fact that the FSI feeds directly through to the built form. Like the rest of us they were kept in the dark. Though I might have expected them to ask the question: How come we are looking at such a huge structure in a Heritage Conservation District? Maybe Forrest told them? Though I doubt he would have told the Town's peer reviewer, ERA Architects.
The oldest building on Main Street. No point keeping that!
In Goldsmith Borgal's review of the buildings to be demolished there is this pen portrait of 184 Main Street South:
"This two storey frame structure is the oldest extant building on the block, and perhaps one of the oldest buildings on Main Street South. Dating to the early nineteenth century (likely c1840), it may be the building referenced in an early drawing of the street as the Smith & Emprey General Store. Smith and Emprey was established in 1837 and was located immediately north of the North American Hotel. The building at 184 Main Street South is also represented on the 1862 plan of the Village on lot 19. Charles Hargrave Simpson, whose wife, Anne Mary Simpson, was Ontario's first woman druggist, once owned the building. Simpson operated an apothecary from 1886 to 1914."
This is one of the buildings to be casually demolished in the name of:
"good heritage planning".
The Town commissioned ERA Architects to peer review the work of Goldsmith Borgal.
The peer reviewer and its obligations to the Town
In November 2013 the Town awarded a “peer review” contract to ERA Architects of Toronto. They would be responsible for peer reviewing any Heritage Impact Assessment for 180-194 Main Street South. The terms of the Town's contract with ERA Architects specified:
"The Peer review will evaluate the assessments provided for heritage impact assessment. This review will include, but is not limited to, addressing inconsistencies, factual errors, discrepancies, inappropriate conservation advice not consistent with recognized standards (see below), omissions and misrepresentations.
It is expected that the preferred protective and mitigative measures will be consistent with the Lower Main Street South Heritage Conservation District Plan and recognized standards for heritage conservation..."
ERA Architects prepared two peer reviews (on 22 July 2014 and 4 May 2016) and the central question of the demolition of historic commercial buildings was not addressed head-on by either.
ERA appreciated from reading the Goldsmith Borgal report that the developer was intending to adaptively re-use the Old Post Office Building and "where possible" incorporate the facades of the 19th century commercial buildings at 184, 188 and 194 Main Street South. (190 Main Street South is a late twentieth century commercial infill with no architectural or historic merit.)
Their recommendations included this one to:
"Clarify the conservation strategy by describing the intended approach to each being conserved."
The honest answer, of course, is to say they are being conserved by being demolished with the facades being retained if possible. How "authentic" is that?
Ludicrously, we shall only be told about the “conservation strategy” if the development gets the go-ahead. It will then be addressed at site plan approval stage. I wonder what the owner of the restaurant/pub at 196 Main Street South thinks about that. He shares a roof and a floor with 194 which is earmarked for demolition. 194-196 are two halves of the same building.
How do you square demolition with the HCD Plan?
There are concerns that ERA Architects may not have fulfilled the terms of their contract with the Town which obliged them, when preparing their peer review, to take into account the Town's Heritage Conservation Plan which specifically ruled out the demolition of historic commercial properties. I wrote to the Town's Chief Administrative Officer, Bob Shelton, who replied on 20 May 2016:
"I have discussed the review process with staff and advise that your comments and various points will be provided to Planning staff for their consideration as part of the review of the peer review report."
I have asked for sight of the review of the peer review but these days it's radio silence.
In his intemperate letter of 28 November 2016 to councillors, Bob Forrest railed against the Town's decision to reject his Clock Tower development by calling in aid the heritage professionals:
"the two heritage experts have brought monumental experience and expertise to support staff... that experts of this caliber (sic) should be arbitrarily rebuffed without consultation or explanation is disappointing, surprising and, in the end, shocking."
When Forrest started out on his calamitous Clock Tower project he wanted to demolish the historic buildings at 184, 188 and 194 in their entirety. But his slideshow presentation to the Statutory Public Meeting on 9 May 2016 tells us he now loves heritage - and so does the Town.
Now that we've got that boring and tedious conservation stuff out of the way...
bring in the wrecking balls and let's get started!
Last night, in a brief deputation to Council, I asked for sight of the agreement in principle that the Town entered into with Bob Forrest on the land swap. I explained why this was important. The land swap allowed for the manipulation of the development’s Floor Space Index resulting in a much bigger building than most people ever believed possible.
Of course this agreement was never nailed down. But the prospect of it was enough to keep Forrest hoping that something would come of his speculative gamble and that, at the end of the day, he would get his Clock Tower development and his clear profit of $10m.
In the early days, he threatened to walk out.
Way back in October 2012 when he was teeing things up, he told Newmarket's CAO, Bob Shelton:
"We are spending money to work out issues with Heritage and BIA. The cost of preparing a complete application for zoning is far too onerous for us to undertake without having (redacted). Given that we have spent over $100,000 on reports and design, in the last 30 days, if the above is not going to fly, we prefer to withdraw right now."
Dance of the Seven Veils
In a dance of the seven veils extending over many years the Town gave him enough encouragement to keep him interested. He got his "agreement in principle".
Forrest's initial planning justification report, prepared for him by MHBC, was published in August 2013. The second and final planning rationale report (also prepared by MHBC) was published on 27 January 2016.
The 2016 version contained the following sentences that were absent from the first:
"The owner has an agreement in principle with the Town that will allow for a land exchange and strata agreements that will accommodate sub-grade parking for the rear of the Proposal, while allowing the Town to own and operate the surface. The Subject Lands include certain lands the Town wishes to own and operate, and certain lands the Owner wishes to utilize for development purposes. The agreement in principle is conditional upon development approvals on the Subject Lands."
A few weeks after that report had been published, on 23 February 2016, the Town Solicitor, Esther Armchuk, told me
"Council last dealt with the matter (a land exchange request from the Clock Tower developer) in closed session on 24 June 2013."
We know from the Planning Staff report that went to the key Committee of the Whole meeting on 28 November 2016 that:
“… the zoning amendment application process allows for an applicant to apply for a rezoning of lands on behalf of the owner with the owner’s authorisation. In this instance, staff is satisfied that the Town’s authorisation to proceed with a rezoning of its lands is understood to be granted in order to implement the staff recommendations, as amended, in Closed Session Report 2013-05 which were adopted by Council on June 24, 2013…”
However, we still don’t know the full extent of what that Closed Session staff report said.
So what really happened?
Van Bynen is a friend of Forrest. They both want to see intensification of the old downtown. Van Bynen believes the jumble of old buildings on Market Square is an eyesore. He wants them gone. He tells Bob Shelton and/or Rick Nethery that he is in favour of the kind of intensification Forrest is proposing and can they find a way to make it happen. Forrest provides the solution with his cunning land swap.
I am prepared to believe most councillors were unaware of the FSI manipulation. Throughout the Clock Tower documentation there is a figure (from “experts”) stating the development had an FSI of 2.9 with no countervailing commentary from the Town’s planning staff on how it was derived and what the implications were. The absence of such a commentary was truly shocking. It was a deliberate attempt to mislead.
In a debate on Transparency and Disclosure of Information on 29 September 2014, Regional Councillor John Taylor told us:
“… in camera discussions go through a process and most of them eventually, if not all of them, eventually come out of camera. You go through a process that takes time and staff review it and they report back to us how to bring it out in its entirety or partially and at what stage.”
That is wishful thinking – especially when these reviews involve the very same staff who are designing and implementing policy in the name of elected officials.
Freedom of Information Requests
A batch of FoI Requests relating to the Clock Tower has been posted on the Town’s website in the last week. You can review them here.
A Freedom of Information request (A17-17-15) which relates only to 178-180 Main Street South states that in respect of the Closed Meeting on 24 June 2013:
"no agreement exists related to the acquisition and/or disposition of land in connection with the Old Post Office redevelopment at 178-180 Main Street."
Maybe that FoI request was too narrowly drawn. Today, I have put in an FoI request requiring the Town to disclose
"any agreement or agreement in principle related to the acquisition and/or disposition of land reached by the Town in respect of the Clock Tower Subject Lands being 178-194 Main Street South."
Deputation to Council on 24 April 2017
Prentice: Thank you very much Mr Mayor. I don't think I need five minutes to say what I have to say.
The Architectural Conservancy of Ontario will formally be seeking Party status at the OMB in just over one week's time. And we will be supporting the Town's position, broadly speaking, with a few caveats, but we think the Town on 28 November and 5 December did a terrific job, collectively. So that will be our position.
But I want to be able to say to the OMB at the prehearing and thereafter that we have had sight of this famous agreement in principle - if it exists or not - and the details of the proposed land exchange.
And you may ask and people will ask why is this so important. And it is important for this reason.
The land swap allows a manipulation of the Floor Space Index which, in turn, influences the built form. So in the public meetings - and we saw Ron Eibel's model and everything - and lay people like myself said how on earth is that possible? I remember saying these very words. How on earth is it possible?
It was possible because the Floor Space Index had been manipulated by using land in the ownership of the Town under Market Square. So that is why we need the information.
Now, can I ask you a question? Is it allowed to ask a question Mr Mayor?
Mayor: But we are not going to get into a debate. You can ask the question but we will receive your deputation.
Prentice: Am I allowed to ask a question?
Mayor: Go ahead.
Prentice: My simple question is this. Were you Mr Mayor - this is a question for all councillors but I'll direct it at you - were you aware of the potential for manipulation of the Floor Space Index before, say, the 28th of November 2016?
Mayor: I am not even aware that there was manipulation of the Floor Space Index. That needs to be resolved with staff and that's a matter that will be discussed at the OMB.
Mayor: Not here.
Prentice: And my second and final question is (this). You said on 28 November the report prepared by the staff was comprehensive. But we know it was misleading because the Planning Director has said as much. That important report that was being put forward to council for decision had an FSI of 2.9 and Mr Nethery said of course it was higher than that. He said that. There is no dispute. That is what he said. And my last question to you is this. Were you aware of that deception?
Mayor: First of all, I take exception to you using the word deception. And I also take exception for you inferring it was misleading information. And you need to be prepared to defend that. But this is not the place to discuss that. The place to discuss this is at the OMB. Let the OMB decide what is appropriate. You deputation here is to request information to be released. There is a process and a protocol for information to be released. I believe you are aware of that. It is my intention to follow that process. This municipality is governed by the Municipal Freedom of Information and Protection of Privacy Act. We will respect that because that is a Provincial Statute. It is an obligation of this municipality and I have no intentions of by-passing that.
Prentice: Fair enough. Are there any questions?
Mayor: There being none then it would be appropriate to receive this deputation. Can I have a motion please? All those in favour. Carried.
Prentice: Thank you.
The Clock Tower cannot be built. So what is the point of Forrest appealing to the OMB?
I have blogged before about the sheer craziness of having to spend public money to defend against Bob Forrest's appeal to the OMB for a building that cannot be built. The Clock Tower development needs Town owned land which is not forthcoming.
Even if it were to allow Bob Forrest's appeal, are we seriously expected to believe the OMB has powers to expropriate public land in favour of a private developer and determine the quantum of compensation that would be payable by Forrest to the municipality?
Just to pose the question illustrates its absurdity.
But, perhaps, we are not alone in this lunatic world.
All eyes on Richmond Hill
I see another OMB Hearing is to begin on 8 May 2017 in Richmond Hill.
In it, CIM Developments Inc are appealing the failure of the Town of Richmond Hill to amend the Official Plan to change the existing designation of the land CIM wants to develop from "Neighbourhood Commercial" to "High Density Residential". The developer wants a mixed use development of 81 townhouses and two six storey residential buildings and commercial space. Apparently, CIM Developments doesn't own all the land it needs. Sound familiar?
Sam and Joanne Gideon are amongst the Parties.
One of their issues asks:
"Does the Board have jurisdiction to approve a draft plan of subdivision that shows any aspect of the appellant's proposed development (including a road allowance) on lands which are not owned by the appellant?"
"Should any aspect of the appellant's proposed development, including any portion of a road allowance or future access road off Elgin Mills Road East, encroach on, or constrain the long term viability of lands municipally know as 865 Elgin Mills Road East, which lands are not owned by the appellant?"
This land is my land. This land is your land.
It is, of course, possible for a developer to submit a zoning by-law amendment covering land he or she doesn't own. But I have always assumed those affected would have the opportunity to comment and make representations.
So, when Bob Forrest approached the Town with his proposed land exchange to facilitate his development at the Clock Tower, the Town, presumably, would have taken a view. It is just that we, the great unwashed, were not let in to the secret.
In a nutshell, the proposed land exchange (whether there is an agreement in principle or not) allowed for the manipulation of the Clock Tower development's Floor Space Index which directly impacted on its built form. It was a lot bigger than many people ever thought possible in the old downtown, protected as it is by the Heritage Conservation District Plan and/or Heritage Conservation District By-law. Take your pick. (The photo above shows the development as seen from the historic Old Town Hall in Market Square.)
If things go pear-shaped and Forrest loses his appeal I suppose he could exact revenge by putting in a planning application for a seven storey apartment building on the site of the municipal offices at 395 Mulock Drive.
Forrest could plausibly argue the area is ripe for intensification and his condo is just the kind of intensification Mulock Drive needs. It is close to the proposed Mulock GO Rail Station and some kind of secondary plan for the area is already being worked up. Does it really matter that Forrest doesn't own the land at 395 Mulock Drive?
I think we should be told.
Background: The Clock Tower OMB prehearing kicks off at 10am on 3 May 2017 in the Council Chamber at 395 Mulock Drive, Newmarket. It is open to the public.
Clock Tower developer Bob Forrest has hired the silver tongued planning lawyer, Ira Kagan, to represent him at the OMB. Kagan is a skilled operator now at the top of his game. He has huge experience and a will to win. He will be formidable. He doesn't work with a broad brush. He loves detail.
Kagan represented the developer Marianneville at the OMB Glenway Hearings and wiped the floor with the Town. I observed his way of working. After quizzing a witness - and before finishing his cross examination - he would pirouette and face his team behind him. Looking at each of them in turn he would say "Have I missed anything?" I was hugely impressed. He never did miss anything.
The Town's counsel, the catatonic Mary Bull, was in a difficult position. If she had swivelled round she would have seen a row of empty chairs. The Town's planning department had, of course, boycotted the OMB Glenway Hearing.
Intensification v Heritage
We know the key issue for Kagan is "intensification v heritage". He believes the Town has focussed exclusively on heritage - and, by implication, ignored intensification. He says the Town should judge the Clock Tower application by the policy regime in place at the time it was formally submitted to the planning department and not against the Heritage Conservation District By-law that was passed a few months afterwards.
I take these points in turn.
Van Trappist is Kagan`s ally. The Mayor's infamous unguarded remark about the Clock Tower being just the kind of intensification that Main Street needs will live on long after he has gone. In his statement to the Committee of the Whole on 28 November 2016 after losing the vote he talked about the Town's investment in the downtown business district and how
"it has long been understood that intensification was the next logical step".
Yet, despite this, late last year the Town won the Institute of Planners award for the best Main Street in Canada.
And one of the Town's senior planners, Adrian Cammaert, writing in the University of Waterloo’s PCED Journal (Papers in Canadian Economic Development) in 2016 said this:
"One of the Historic Main Street's greatest strengths is its location. As part of the GTA, Newmarket is part of and accessible to the largest concentration of people in the country... The Historic Main Street area's first impression is another advantage. This attribute can be difficult to quantify due to its subjectivity, but the area's visual attributes such as its strong 19th Century building stock, well maintained streetscape and attractive businesses result in a very positive first impression for a visitor. The 2014 approval of a Heritage Conservation District for Main Street South further verifies this impression as it relates to the physical condition and abundance of the area's historic building stock."
Cammaert concludes with this:
"Newmarket's Historic Main Street has experienced tremendous revitalisation over the past 15 years to the benefit of local residents and tourists alike."
The great irony is that Forrest, in pursuit of his Clock Tower development, has contributed to an air of dereliction by evicting his business tenants and shuttering the historic commercial properties on Main Street South. They have been boarded up for years.
So, how will the wily and artful Ira Kagan play this?
He will say the Town has a policy for the Historic Downtown that pulls in different directions - on the one hand intensification and revitalising the old downtown and, on the other, preserving and protecting the Town's historic built heritage. Forrest's own heritage consultants, Goldsmith Borgal, recognised this alleged dichotomy and concluded that, at the end of the day, it was a matter for councillors to decide. Kagan will say the Town staff focussed on heritage and neglected the other part of the equation, "intensification".
Prepare for a deluge of Official Plans, Regional Plans, PPSs and GGHs
At the OMB Hearing, Kagan can be expected to talk at great length about the growth plan, provincial policy statements and that kind of stuff. He has a template ready that he can use.
Unfortunately, there is no transcript for the OMB Glenway Hearing but we have Kagan's written closing submission which focussed on intensification in the Newmarket context. We also have the OMB Glenway decision of 18 November 2014 which I quote at length to give context. The adjudicator and OMB Vice Chair, Susan de Avellar Schiller, said this:
“ The 2005 PPS (Provincial Policy Statement), the 2014 PPS and the GGH (the Provincial Growth Plan for the Greater Golden Horseshoe) all refer to intensification using similar and occasionally identical language.
 Intensification is encouraged generally.
 Policy 2.2.6(b) of the GGH is clear that municipalities are to:
...encourage intensification generally throughout the built up area...
 Then at Policy 2.2.6(f) municipalities are to:
...facilitate and promote intensification...
 Intensification is defined as:
The development of a property, site or area at a higher density than currently exists...
 These requirements are distinct from the GGH requirement that municipalities, at Policy 2.2.6(e):
...recognise urban growth centre, intensification corridors and major transit station areas as a key focus for development to accommodate intensification...
 Intensification areas include the areas listed in Policy 2.2.6(e) and also include:
... other major opportunities that may include infill, redevelopment...
 While intensification areas are to be identified and recognised by municipalities, the GGH does not limit intensification to intensification areas.”
and so it goes on. In paragraph 61 she sums it up this way:
“... designated growth areas or intensification areas are areas designated by the municipality. While these areas may be the focus for achieving intensification targets, they are not the only locations where intensification can occur.”
That gives Kagan all the leeway he needs to make the general case for the intensification of the old downtown. However, we already know from the Planning Staff report of 28 November 2016 that the Clock Tower development is not needed for the Town to hit its Provincial target.
But how is the intensification going to be accommodated in a Heritage Conservation District?
Answer: Remove the Clock Tower from the Heritage Conservation District.
Heritage Conservation District Plan and By-law
Kagan will make great play of the fact that Forrest's completed application was lodged with the Town and deemed "complete" before the Town got round to enacting its HCD By-law.
In 2013, the Town's Director of Planning, Rick Nethery, was of course aware that Forrest was about to submit a heritage destroying planning application involving the demolition of historic structures. Despite this he told me the By-law would have to wait until 2014 because the cost of hiring staff to police it was not in the Budget.
There was a huge outcry and, in the event, the By-law was passed on 21 October 2013 with the OMB giving approval in 2014. The Forrest lands were temporarily removed from the Heritage Conservation District pending a determination of his Clock Tower application by the municipality.
As it happens, the By-law (2013) does not add or subtract anything from the Heritage Conservation District Plan (2011). They are identical.
In 2013 Rick Nethery told me:
"In short, the by-law adopting the Heritage Conservation District is required to fully implement the District Plan and have it be in full force and effect. While we utilise the Plan to assist in evaluating proposals, the passing of an adopting by-law gives the Plan its Official status."
Clearly, this is something the planning lawyers will have to address. I suspect the By-law trumps the Plan. Kagan wants the Clock Tower judged against pre-existing policy (ie before the By-law was enacted). But the policy "pre and post" is exactly the same.
The lawyers will tell us what it all means. That's why they get the big bucks.