Almost ten months after I lodged my official complaint against Newmarket's Director of Planning, Rick Nethery, I still do not have a clear answer to the most straightforward question:
When did the Director of Planning first realise that the true FSI of the proposed Clock Tower development was greater than the figure (2.9) that was in the documents presented to councillors and the public on 28 November 2016 - when a decision was to be taken on Bob Forrest's application.
Yesterday, I received a few emails and notes of meetings which expose more of the Town's hidden wiring but there is still much that is concealed. You can read the notes and emails here.
The Town asks us to believe that the FSI of the Clock Tower development was unimportant, a second or third order issue.
And because councillors and the public were ostensibly more interested in height, massing and heritage rather than density (which, of course, brings more people and activity into an area) the FSI issue was deliberately left unaddressed.
Is the FSI a material consideration when Planning Staff are reviewing a development application?
When I had my Complaint Review Committee meeting on 26 January 2018 with the Commissioner of Corporate Services, Esther Armchuk, and the Manager, Corporate Customer Services, Bonnie Munslow, I emphasised the FSI is a material consideration which should be addressed by the Director of Planning. An analysis and commentary should then go to elected officials who would then decide what weight to give it. Instead, as we know, the Director of Planning deliberately ignored the FSI (false as it was) on the grounds that other factors were deemed to be of more importance to councillors and the public.
Can you imagine the same thing happening with, for example, the proposed major development at Deerfield Road (in two parcels with FSIs of 3 and 2.5) or the huge Redwood on Yonge development opposite Upper Canada Mall with its three towers and an FSI of 3.5?
Just to frame the question in that way underlines the absurdity of ignoring the Clock Tower's true FSI of 4+.
“it brings the FSI up to about 4”
In the latest bundle of papers we learn that Regional Councillor John Taylor asked planning staff on the afternoon of 28 November 2016 about the FSI of the Clock Tower.
Taylor was told:
"According to the information supplied in the Planning Justification report, the total site area of all parcels within the subject land is approximately 3,800 sq. m. and the floor area is approximately 11,000 sq. m. for an FSI of about 2.9. This calculation includes the area that is necessary for the underground parking. If we exclude that area from the calculation it brings the FSI up to about 4."
Using the underground parking area to calculate FSI is specifically prohibited by the Town's Consolidated Zoning By-law 2010-40. There was no commentary in the Planning Report about this.
At the Committee of the Whole, the Director of Planning answers a question from the Mayor about FSI. Rick Nethery is all over the place.
"There is no question that what Mr Wall was saying is that we're looking at an FSI that's above what is currently in the documents. We don't dispute that. That is a question of whether or not if Council were to approve it they would be so approving with that in mind."
Taylor remains silent as the Director of Planning continues:
"I guess there are some differences based on whether you're looking at a net and a gross. There is some question of whether or not we're going underneath the ground for parking versus completely within the area currently owned by the Clock Tower property. So we would be certainly able to examine that and we can, if we need to, we can certainly meet with Mr Wall as well and clarify some of these numbers as well."
In fact Mr Wall had met with planning staff after he first raised the FSI issue at the Statutory Public meeting on 9 May 2016. We are told no notes were taken as the discussions took place at the Planning Department counter and Mr Wall had dropped by unannounced.
Although Taylor chose not to comment on Mr Nethery's brazen evasions, he did make it clear in his blog the week before that he was against the Clock Tower as submitted.
"I will not and cannot support the current proposal for a seven storey development. It is simply too large for the site and for the Heritage Conservation District".
He went on to say he favoured a four storey height cap at the Clock Tower site and throughout the entire Heritage Conservation District subject to conditions.
When Peter Noehammer spoke to Taylor on 30 June 2017 to get his views on my complaint he (Taylor) said he was not misled by the information on FSI in the Planning Report. Then why ask for clarification on the development's FSI hours before the committee meeting on 28 November 2016?
And what about the rest of us who are not elected officials on the inside track? Does it matter if the lawyers acting for Trinity United Church were misled? Or if members of the public were misled?
Taylor went on to say
he knew the FSI was over the allowable maximum so whether it was 2.8 or 4 didn't concern him
building height and massing and the impact on the surrounding historic district were the key points to focus on and explore
and that he was against the Clock Tower proposal anyway so "any attempt to enhance approval was not material..."
Maladministration and gaming the system
This gets to the nub of it.
What if the Clock Tower had an FSI not of 4+ but of 5 or 6 or even more? At what point would Taylor decide that the development was simply too dense for the old downtown?
Or was it just a matter of the development looking as if it might fit in?
I believe the whole Clock Tower saga reeks of maladministration where senior staff gamed the system in the hopes of getting the result they and the Mayor wanted.
A knave or a fool
I told the Complaints Review committee that the Town has shown by its handling of the Clock Tower application that it is either a knave or a fool.
Perhaps a bit of both.
The key issue for the Ontario Ombudsman to decide is whether the Clock Tower's Floor Space Index is a material consideration to be taken into account by the municipality when determining the development application.
And, importantly, is it OK to allow an FSI which is known to be false to appear in Committee Reports with recommendations which are going up to elected officials for decision?
The Clock Tower, now stalled at the OMB, has been dragging on for years.
There are many casualties. The businesses evicted by Bob Forrest. And the rest of us who enjoyed the lively buzz of that part of Main Street - now boarded up and desolate.
What we are witnessing is nothing other than a conspiracy against the public interest.