Background: The redevelopment of the Clock Tower in Newmarket’s old downtown has been talked about since 2011. The developer, Bob Forrest, produced three versions in a bid to get approval, 9, 6 and 7 storeys, each with multi-level underground parking under Market Square. The final version was turned down by the Town on 28 November 2016 with only the Mayor in support. Forrest appealed to the OMB but this is no longer proceeding because of a new deal struck between the Town and the developer based on a “New Development Concept” – involving no demolition of heritage properties – but which we have yet to see.  

Director of Planning “misled”

For the first time – outside the Town’s inner circle – Newmarket’s Director of Planning, Rick Nethery, has let it be known he was misled by figures in a key document submitted as part of the Clock Tower application leading him to believe the true Floor Space Index (FSI) was 2.9 when, in reality, it was over 4.

The Floor Space Index is a key measure of density.

When asked by the Mayor to address comments that had been made about the development’s FSI at the decision-making meeting on 28 November 2016, Mr Nethery said:

“There’s no question that what Mr Wall (a member of the public) was saying is that we are 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.” 

An FSI of over 4 would have given the proposed Clock Tower development in the heart of the fragile old downtown the highest density in the whole of Newmarket.

Dave Kerwin

In conversation with veteran Newmarket councillor Dave Kerwin – described as a truly lengthy discussion - Mr Nethery said he had relied on a report from Brad Rogers of Groundswell, the planning consultants. In fact, Brad Rogers had no involvement whatsoever with Bob Forrest’s Clock Tower application. The Planning Rationale Report containing the false FSI of 2.9 was prepared by Forrest's consultants, MacNaughton Hermsen Britton Clarkeson Planning Limited (MHBC).

What is the issue? Key information presented to councillors and public that was known to be false

One year ago, on 28 May 2017, I lodged an official complaint with Newmarket’s Chief Administrative Officer, Bob Shelton, that, on 28 November 2016, the Town’s Director of Planning, Rick Nethery, had put before councillors for decision a report on the proposed Clock Tower development that contained a Floor Space Index figure of 2.9 which the Director knew to be false.  

Peter Noehammer's interview notes with Rick Nethery 21 June 2017

This is contrary to the Town’s Code of Conduct which requires staff to be honest and not wilfully mislead councillors or the public on matters of corporate concern.

“No employee shall withhold information or wilfully mislead Members of the Council, other employees, clients or the public about any issue of corporate concern.”

In the absence of any kind of explanation from Mr Nethery I took the view that he had deliberately turned a blind eye to the false FSI in order to increase the chances of Forrest’s development getting approval. After all, the Mayor, Tony Van Bynen, had made it perfectly clear to the ERA newspaper that he was very much in favour.

The Clock Tower in its three evolving iterations had been the subject of discussions between Forrest and senior Town staff for years. Bob Shelton and Esther Armchuk (then Town solicitor) were intimately involved in these discussions as the project evolved. It was believed the development could kill two birds with one stone – the intensification of the old downtown with, perhaps, additional parking for the Town under Market Square.

Forrest confidently believed he had “approval in principle” from the Town in June 2013. The Town disputes this but refuses to release the report and minutes of the closed session meeting of the Committee of the Whole of 24 June 2013 where the matter was discussed.

What happened?

My complaint was reviewed by Mr Nethery’s line manager Peter Noehammer who rejected it on 18 July 2017 on the grounds that the Town’s planners considered height and massing more important than the FSI. There was no mention of Mr Nethery being misled. Nevertheless, he (Mr Noehammer) acknowledged that the 2.9 FSI was incorrect – how could he do otherwise? - and speculated that this was the result of some kind of misunderstanding by Forrest’s planning consultants of what was required by the Town’s Zoning By-law and what was said about parking in the Town’s Secondary Plan.

My appeal against Mr Noehammer’s review was heard by the Town’s Complaint Review Committee composed of two senior members of staff – Esther Armchuk and Bonnie Munslow. Questions that I posed on 21 July 2017 in my response to Mr Noehammer’s review - and arising directly out of it - were left unanswered. 

Specifically, I wanted to know when Mr Nethery first realised the FSI was false. And when were elected officials first told the true FSI was greater than the 2.9 cited in the developer’s document? To this day I have not received answers to these and other questions set out in my response to Mr Noehammer’s review of 18 July 2017.

Beyond the scope of the original complaint

I was told these questions were not part of my original complaint and were beyond its scope. If I wanted answers I was advised to submit Freedom of Information requests, which I did. My questions were still not addressed. Key documentation was destroyed. And the Complaint Review Committee dismissed my appeal. I was told the one remaining avenue open to me was to go to the Ombudsman. I have done so.

Nevertheless, and in advance of the Ombudsman’s investigation, I was still keen to get answers to the questions that had been ignored by Rick Nethery, Bob Shelton, Esther Armchuk and Bonnie Munslow.

I planned to invite every single elected official in Newmarket in turn to ask the Director of Planning on my behalf when he first realised the 2.9 figure was false. The answer to this disarmingly simple and straightforward question is the key to the kingdom. 

No mention of being "misled"

Mr Nethery had from 27 January 2016 (when the MHBC report was published) until 28 November 2016 to come to the realisation that the 2.9 figure was false. He was present at the Statutory Public meeting on 9 May 2016 when the proposed development’s true FSI of over 4 was displayed in neon lights by a member of the public, Siegfried Wall. So, for Mr Nethery, when did the penny drop? And why did he allow the false FSI of 2.9 to remain in the report going up to councillors for decision?

Regional Councillor John Taylor declined to ask Mr Nethery

I first went to Regional Councillor John Taylor – who is now running for Mayor – but he declined to ask Mr Nethery. I then asked my Ward councillor, Tom Hempen, but he couldn’t do it as he had declared an interest in the Clock Tower application as his jewellery business was close by. He advised me to approach another councillor and I asked Ward 5 councillor, Bob Kwapis, as the Clock Tower is in his patch. He too declined saying he was going to wait for the OMB to establish the facts. I next approached Councillor Dave Kerwin as the longest serving councillor on Newmarket Council – and, indeed, in the whole of Canada.

Councillor Kerwin told me Mr Nethery appeared to have been “innocently misled” by the developer’s planning consultant’s report whose 2.9 figure was derived from calculations involving the underground garage below Market Square. But all three iterations involved underground parking. Indeed, a report in November 2013 (planning report 2013/55) on the then 6 storey proposal - with two levels of underground parking extending under Town owned land – said the FSI was 4.25

With this history, didn’t an FSI of 2.9 ring any bells in Mr Nethery’s head?

It is simply not credible for the Director of Planning to ask us to believe that for ten months from January to November 2016 he did not know the FSI of 2.9 was false. So, when did he find out and what did he do about it? Who did he consult? Who did he talk to? Did he keep this realisation to himself? If so, why?

At no point during Mr Noehammer’s review of my complaint was it put to me that Mr Nethery had been misled by the MHBC report.

When Mr Noehammer interviewed Mr Nethery and Mr Dave Ruggle, the senior planner responsible for the Clock Tower application, there was no mention of either being misled by the report. (Mr Noehammer’s hand written record of the meeting was only produced following the intervention of the Information and Privacy Commissioner.). 

Why is this important?

Until I have a statement from Mr Nethery explaining truthfully what happened I stick to my belief that his silence on the FSI which he knew to be false was to support the Mayor’s agenda of intensification of the historic downtown. I also expect Mr Nethery to answer truthfully the questions posed in my letter to Mr Noehammer of 21 July 2017.

I believe other senior staff including the Chief Administrative Officer, Bob Shelton, should also make a statement on what they knew and when.

If key information put before councillors for decision is known to be false where does it all end? If this kind of deception can happen once – with no consequences for any of the main players – it can happen again. 

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