Over four years ago, Newmarket councillors gave approval in principle to the ambitious Slessor Square project which, it turns out, was not possible to build.

But first some background.  

Tomorrow, Monday (25 September 2017) the Committee of the Whole will be asked to take a view on what should happen to the barren 4.6 acres of land at 17645 Yonge Street, once home to Slessor Motors. (The new proposed development, right)

The Slessor brothers made their millions from a car dealership business set up in 1961 which grew from strength to strength on land previously home to a pig farm.

The value of the land lay in its prime location in the Town's urban centre, earmarked by the Province for intensification.

Their proposed "adult living" community, Slessor Square, with its twin residential towers and retirement residence was designed to sit on a huge, cavernous four level deep underground parking garage.  

Put on hold

The development, of course, never got off the ground. Indeed, the project was put on an indefinite hold on 27 April 2014 and the site was sold on with the Slessor brothers pocketing millions. The new owners say parking will be on a podium above ground.

The new owners say geotechnical investigations showed:

"The site has a very high water table and that the de-watering of the site both during construction and ongoing to accommodate the proposed garage could be problematic. In addition, the bearing capacity of the soil is such that reinforcement of base soils is recommended to enable the development. Both of these constraints lead to a design conclusion that the preferable way to build the project, with minimal intervention into the water table, is to build the parking above grade."

The site was also contaminated and is close to a wellhead supplying Newmarket with fresh water from the aquifer below. (You can read the developer's file of documents here.)

Where were the whistleblowers?

The Town's Official Plan makes it clear:

"Parking areas should be located underground wherever possible in the Urban Centres."

and the Secondary Plan says at 7.3.12 vii:

"All development proposing underground parking structures will be required to demonstrate through geotechnical and dewatering studies that the site is suitable and that there will be no interference with municipal wells, both during and after construction."

Why on earth did no one blow the whistle early on to say the site was unsuitable for underground parking? It was an issue on the planners' radar for years.

By early 2013, councillors were in a mad stampede to give the Slessors permission for their huge development, terrified by the prospect of contesting the planning application at the OMB, even though many aspects had not been properly explored or analysed.

When the Slessors threatened to go to the OMB, councillors capitulated. The Town's "minutes of settlement" with the developer formed the basis of the OMB decision in April 2013. The agreement had "holds" throughout - indicating that the project couldn't be signed off by the municipality unless certain specified conditions were met. They never were.

When the OMB subsequently asked the developer for updates on how the project was proceeding, the Slessors' lawyer, Ira Kagan, admitted it was going nowhere.

How high is too high?

The new developer, Redwood Properties, is proposing three towers at 21, 19 and 17 storeys, built in stages. 

When the Town's Secondary Plan was being put together there was much talk about having some kind of height cap. But it all petered out as the planners and city builders suggested it was airy fairy nonsense. As a result, Newmarket can now look forward to a future studded with high rise towers indistinguishable from others that dot the landscape in places like Markham and Vaughan.

Regional Councillor John Taylor was an early enthusiast for a height cap. Five years ago, as the work on the Secondary Plan cranked up, Taylor declared:

"Our Official Plan states that a developer can build up to 8 storeys and may exceed that limit if they provide the proper planning and justification reports. What our Official Plan does not provide is a limit or a "hard cap" on height. This of course is a major concern to many residents of this Town. I am proposing a height restriction in the Town of Newmarket of approximately 15 storeys."

He cited places such as Halifax and Saskatoon, Paris and Washington as having height limits. I too was keen to see a height cap and was supportive.

In the event, Taylor was torpedoed by Tony Van Trappist who declared:

"I do not believe it is appropriate to pass a resolution that sets notional height restrictions for buildings without due process."

The old banker told Taylor:

"To pass a resolution at this time, as has been proposed, may well put our municipality in front of the OMB. The consequences of an OMB Hearing would mean a cost to our municipality of upwards of a $100,000 in legal fees."

The Planning establishment was also active at regional and local level, seeing their role as "city building".

Newmarket will not now be the mid-rise town so many of us wanted.

The train has left the station on that one.  

Affordable Housing

The developer's Planning Justification Report says the proposed development will be entirely rental in tenure apart from the commercial/retail space which will be leased. The developer proposes 27% one bedroom units; 46% two bedroom and 24% three bedroom in a total of 530 units.

"Rents for these units have not yet been established and will be determined through a marketing program closer to project completion. Rents will be determined by a number of factors, namely market conditions at that time, size of unit, length of tenancy, etc."

Importantly, it goes on:

"The development is not anticipated to be marketed as affordable, under the metrics of the Region of York's annually published benchmark prices. Rather, this development is intended to provide a quality rental alternative to home ownership in a prime location in the Town of Newmarket, wherein the barrier for entry (i.e. a substantial down payment) is completely out of reach."

The Town's Secondary Plan stipulates an affordable housing target of 35% of new housing within the Regional Centres.  

The current affordable rental threshold (2016) in York Region is $1,496. The Region says that average rents for one and two bedroom condominiums exceed the affordable threshold. Clearly, if there are no "affordable" rents at Redwood on Yonge, later developments along the Yonge/Davis corridors will have to accommodate a greater percentage of affordable units to hit the Regional target of 35% overall.

Why no minimum? If councillors are serious about affordable housing they should specify a minimum for each development.

Traffic and Transportation

The Planning Justification Report tells us:

"The Region of York is preparing to widen and reconstruct Yonge Street between Davis Drive and Green Lane by 2020."

In fact, the work to widen Yonge from four lanes to six starts in 2020. Oops!

We are told the development will proceed in three phases starting in 2021 and ending in 2027 and that, as part of the Yonge Street reconstruction, the Region will be relocating the existing signalised intersection access opposite Upper Canada Mall approximately 75 metres to the south. What impact, if any, will the Region's construction schedule have on the development?

In the original Slessor Square development there was a huge amount of concern about traffic volumes in and out of the site. The 1,100+ underground parking has, of course, gone but we still have 856 (or is it 866) vehicles parked on site above ground in a dedicated structure. (Both figures are cited in different places in the same document.) We will be told later how the traffic movements are expected to work, especially at peak periods.

The Planning Justification Report is peppered with minor factual errors which, I suppose, shouldn't surprise me. The urban planners, Groundswell, are everywhere, representing every second developer in Town. How they keep all those plates spinning in the air at the same time beats me.

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Maddie Di Muccio's defamation action against John Taylor has been dismissed by the Small Claims Court in Newmarket. Di Muccio had also claimed $5,000 for damage to her reputation.

The Judge, Paul Kupferstein, gives reasons for his judgment here. (Open and scroll to bottom of page).

In his concluding remarks the Judge observes:

"The Plaintiff (Maddie Di Muccio) was, at the relevant time, a public official and ought to have expected full and robust debate of her conduct while in office. The comments and ensuing discussions involved her public persona and public conduct. The Defendant (John Taylor) did not overstep in making the statements he did."

"The Plaintiff's action is dismissed."

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A report from Newmarket's Planning Department which goes to councillors tomorrow (Monday, 28 August) candidly admits the Town's zoning by-laws are wanting. 

The report says there are technical errors, typos, mis-attributions

"that have only come to light through the application of the by-law".

There are sections where "clarity improvements" are required.

Astonishingly, the zoning by-law does not always reflect changes in legislation or in judicial decisions impacting on municipalities.

"Repeated decisions (by the Courts) have found minimum group home separation distances to be contrary to Ontario's Human Rights Code, the Charter of Rights and Freedoms, and the 2014 Provincial Policy Statement."

Yet the Town sets minimum distances.  

New circumstances

The Planners suggest a review makes sense given the "new circumstances" since the Town adopted its zoning by-law (2010). There are new types of businesses such as  microbreweries, making and selling beer on the premises, a development apparently unforeseen seven years ago. There are people wanting to use shipping containers as stand-alone storage or as part of a larger building, again something that was never anticipated.

The planners make it sound as if some gentle housekeeping is required. A little tidying up here and there.

The reality is very different.

The Town's zoning by-laws have been a chaotic mess ever since I started looking at them in detail. They are infinitely elastic.

Dry as dust

Indeed, the term "zoning by law" sounds as dry as dust yet its application can have a profound effect on the way people live their lives. For example, people who once enjoyed a measure of privacy in their back yard now find they are overlooked by huge out-of-place developments looming over them. 

In March this year, Councillor Jane Twinney expressed concerns about infill developments in her Ward - specifically at 1011 Elgin Street - and called for a review of best practice. This morphed into a zoning by-law review and now, five months on, we have a report promising another report with no timetable for finishing the work.

Meanwhile, the monster home in Elgin Street (see right) dwarfing its neighbours, moves ever closer to completion.

In the way that they do, the planners promise consultation with other departments and agencies and, of course, with the public. But I get no sense of urgency.

I see this exercise stretching well into 2018, possibly up to the next municipal election if not beyond. This is the way our deformed planning system works. Calls for action to deal with a specific, identifiable issue are swept into a wider review and are deflected or buried.

Concerns

We learn that Planning staff have identified a number of concerns with the existing zoning by laws. The appendix to the report gives a flavour of the matters to be addressed.

The Clock Tower is an issue that has convulsed the Town for years, much of the controversy focussing on the underground car parking, deep under Market Square.

Four months ago, the Planning Department told me in response to a question I had earlier posed about underground parking and the calculation of FSI:

"The Gross Floor Area as defined by the Zoning By-law and the Secondary Plan does not include underground parking areas."

The list going to councillors tomorrow calls for a revised definition of Gross Floor Area, explaining opaquely:

"Does it include unfinished floor, and it currently does not include the ground floor. Technical error and clarification required."

Underground parking - again

But what about the wider issue - the one that has gripped residents for years? How was it possible for the Clock Tower development with its huge underground car park to get as far as it did when the Town's own Zoning By-law specifically excluded land beyond the developer's property boundary?

On 27 April 2017 the Town's Planning Department told me:

"The Land Area as defined in the secondary plan could include off-street parking areas whereas the Lot Area as defined by the Zoning By-law would not include the Town owned lands beyond the property boundaries. We will be looking more closely at this in our zoning by-law review to ensure consistency within the document."

I don't see this flagged up in the list of "preliminary matters to be addressed".

It ought to be.

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Back Story: The developer, Bob Forrest, wants to build a seven storey apartment building in the heart of Newmarket's old downtown, a heritage conservation district with a three storey height cap. To make his project work he has to demolish historic commercial buildings including one on Main Street South dating from 1844 where the first female pharmacist in Ontario ran her apothecary. At the OMB pre-hearing on 3 May 2017, Bob withdrew the application that had been turned down by the Town on 5 December 2016 and substituted a very different Option B. The list of Parties has since thinned out with Trinity United Church withdrawing and the Architectural Conservancy of Ontario dropping back from putative Party status to Participant.

This morning's second pre-hearing at the Municipal Offices in Mulock Drive is supposed to settle the so-called "issues list" - the various matters of dispute or contention brought forward by the Parties which will be considered and examined during the OMB Hearing proper, when it eventually gets under way.

We are still in the warm up phase.

About forty people are squashed together in the Cane Room with the part-time OMB adjudicator, Laurie Bruce, presiding. She is an environmental planner by trade who trained as a mediator. 

The Issues List

Now the lawyers are on to the issues. Fortunately, I have a copy of the list in front of me and I can follow what is going on. But for everyone else, below the salt, they have nothing in their hands. Why not project the issues list page by page up on a big screen so everyone can see what the lawyers are jousting about? 

We spend an hour amending this and amending that. Striking some issues out. Consolidating others. At one point Bob's lawyer, Ira Kagan, tell us:

 "I don't think I am going to pursue Clergy"

which sounds like an arrestable offence.

But the clergy principle frequently surfaces in planning matters. Should a proposed development be judged according to the planning regime in place at the time it was submitted or by current standards?

The Heart of Newmarket wants to know more about the heritage attributes of the Clock Tower.

Kagan shakes his head dismissively and says the Clock Tower's heritage designation has been in place since 1995 and is not being changed through the zoning appeal.

The Town's counsel, Leo Longo, takes us to Regulation 0906 or is it Regulation 0609. He says he is not sure which. (I love that languid approach. Kagan, by contrast, is a tightly coiled spring.) We learn there are very specific heritage attributes introduced in 2006 that go beyond the 1995 ones.

The adjudicator wants to know if the wording can be tweaked. And, magically, the lawyers agree on the formulation:

"Does the Heritage Conservation District Plan under appeal appropriately address the heritage attributes of the Clock Tower."

They smile. Job well done. Everyone is happy. The box is ticked and they move on.

Now Leo Longo helpfully suggests that many similar issues identified by the Heart of Newmarket can be rolled up into the Town's catch-all issue 10 which simply asks if the development conforms with the Town's Heritage Conservation District Plan and By-law.

No problem. Everyone agrees. Things are now rattling along.

The Elephant in the room

There is one humungously important issue that doesn't even rate a mention - at least not in plain English.

The Town's issue 21 asks if any approval of the development would be premature given that the Town claims ownership of some of the land Bob needs for his Option B. The Town is going to the Superior Court on 15 November 2017 to ask for a ruling on who owns the land - Bob or the Town.

Longo mysteriously refers to this as

"a certain event"

as if he cannot bring himself to talk about the Court action. It is almost Masonic.

I learn Longo and Kagan have talked about this between themselves. They expect the Judge to deliver a decision in record quick time, having heard their submissions and legal argument. So we could know by December or perhaps January who owns the land in question.

I hear Kagan say, in a matter of fact way, that if the Town wins then Bob will simply redesign his apartment building, ending up, presumably, with an Option C.

I scream silently.

This perfectly illustrates the lunacy of a planning system which allows the OMB to consider appeals for a revised development (or, possibly, in this case a revised revised development) which is light years away from the original application that was submitted to the Municipality and rejected.

Getting on with their lives

Now the lawyers are consulting their diaries. A telephone conference in February 2018 followed by the OMB Appeal Hearing proper from 7-27 August 2018.

No wonder people give up and move on with the rest of their lives. Professional lawyers and planners who earn their living doing this stuff can afford to have cases stretch over many years. But most folk can't stay focussed on an issue for years at a time. And it is totally unreasonable to expect them to do so. But the system rewards those with staying power and deep pockets - the developers and the professionals who feed off them.

The rest of us pay the price in boarded up shops and lifeless derelict blocks, blighting towns across Ontario.

The Clock Tower saga shows how desperately we need reform of the OMB.

But, in the interim, why can't the Province just increase the number of adjudicators?

A small simple step to save us from the madness of faraway OMB Appeals that lie way over the horizon.

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On 3 May 2017, at the first OMB pre-hearing on the Clock Tower appeal, we heard from Bob's lawyer, the ubiquitous Ira Kagan, that there had been a "tacit agreement" between Bob and the Town to facilitate a development in the heart of the old downtown heritage conservation district.

The Town denies such an agreement exists. 

Bob is hopping mad. He feels he has been led up the garden path by a duplicitous Town Council and its senior staff, who have been giving him the come-on for years.

The tacit agreement

Having now raised the issue, it seems to me that Kagan is obliged to explain (a) the nature and form of this tacit agreement, (b) the parties to it and (c) when and where it happened.

Was it sealed with a handshake?

Or a high fives and a big hug?

Was it simply an unspoken "understanding"?

We know it wasn't a nod and a wink.

The Mayor, Tony Van Trappist, has angrily dismissed any suggestion there might have been a "nudge and a wink".

Bob likewise stressed there were no "nudges and winks" and, most certainly, no collusion with councillors.

In any event, this so-called tacit agreement is of some importance. Bob wants to stop the OMB from considering issues that, at least for me, go to the very heart of the matter.

At the OMB pre-hearing Bob withdrew the original application that had been rejected by the Town. It needed Town-owned land which was not going to be forthcoming.

Half-baked Option B

In its place we were given a half baked "Option B" which is planned to be built entirely within the boundaries of the land Bob says he owns. If it is ever built it will have the highest density of any building anywhere in Newmarket.

Unfortunately for Bob, the Town claims ownership of a key parcel of land needed for his Option B to get off the ground. The dispute goes before the Superior Court on 15 November 2017.

But let's put details of that inconvenience to one side for the moment.

Option B's proposed underground parking now goes down an astonishing five levels but Bob has produced no studies showing what impact this huge hole in the ground will have on adjacent structures. I doubt there is another underground parking garage anywhere in Newmarket that goes down to these dark subterranean depths.

Plainly, Option B is substantially different from the original rejected application but Bob wants the OMB to view it as a tweak - a minor variation. Why?

Because if it is held to be "substantially different" the OMB has powers under the Planning Act to dismiss the Appeal in whole or in part.

Substantially different 

It was for this reason that the Architectural Conservancy of Ontario included the following in its issues list.*

"Is the proposed development a variation of the original application or is it sufficiently different in its essentials for it to be considered a new application?"

Kagan told me:

"This issue should be deleted. The change in the development was as a direct result of the Town first permitting some of its lands to be included in the rezoning application but then revoking that permission years later when Town Council turned the development down. Even the Town is not raising this an issue. If it had done so the applicant (Bob Forrest) would have raised the issue of bad faith."

But how can "bad faith" be brought into play when we are given no details whatsoever of the scope and terms of this nebulous "tacit agreement" and what would be captured by it?

It is common knowledge that senior Town staff and councillors have been talking about the Clock Tower development since 2011. The Town allowed Bob to put in an application to redevelop the Clock Tower knowing he would require Town-owned lands.

No blank cheque

The Town expressed a willingness to contemplate a land swap if that were to result in a development it could support. I guess the Town was curious to see what Bob would come up with. But, clearly, it never gave him a blank cheque, agreeing to approve whatever development Bob eventually settled on, no matter how gigantic or out-of-place. Such an open ended commitment would, in any event, be open to challenge.

In February last year, the Town's solicitor told me:

"the Council received a land exchange request from the Clock Tower developer but has deferred any final decision on that proposal until such time as the developer's application for zoning by-law amendment goes through the usual public planning process and receives development approval from the Council."

She added:

"Council last dealt with the matter in Closed Session on June 24, 2013."  

Bad Faith

When Kagan alleges bad faith, what precisely is he suggesting? That, four years ago, the Council gave its imprimatur to a land swap allowing a development that was still on the drawing board? (Photo: the packed meeting at the Community Centre, Doug Duncan Drive, on 3 April 2013) 

In September 2015, when Bob was still trying to secure financing for the project, he was telling his business partners that the land swap agreement was being drafted and

"when we are happy with it, it will be reviewed by the Mayor and senior staff, then we must go before the Committee of the Whole in camera to seek their blessing on it. We already have their agreement in principle."

This brings us back full circle. If Bob has "their agreement in principle" or a "tacit agreement" let's have all the details before we hear any more nonsense about bad faith.

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*The OMB pre-hearing determines the issues raised by the Appeal.


 

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