By e mail on 4 December 2012

Mayor Van Bynen,

I am writing to share a concern that Slessor’s lawyer may have placed the Town of Newmarket’s Council and staff onto a path that (without speedy action) could result in a “lose-lose” position for the town.

Allow me to provide a little background before I explain the risk. Since early this year there have been many meetings on this development, ranging from those between staff and developer, to public meetings, etc. During this time the developer has presented at least two new versions, the latest being designated as a “without prejudice” version. This version was introduced to several representatives of the “Shrink Slessor Square” residents group several weeks ago. At this meeting it was evident that extensive negotiations had taken place between the Town’s staff and developers on issues that are of secondary concern to residents (easement for Hydro, shading of the inner courtyard, etc). Meanwhile no progress had occurred on density,  and the design’s height had regressed from the previous versions’ 16 floors to 20 floors. The negotiations between this version and the previous one had occurred without any direct involvement of our residents group.

In summary, close to a year has expired with no progress on density, and only a little “down and up” change on height.

At Friday’s OMB Pre-Hearing, Slessor’s lawyer proposed the Town Council makes a decision on whether to accept or oppose the “without prejudice” design by early February, to be followed by a mid February OMB Hearing (if the Council votes to accept this design). In this event, presumably only the residents group would be challenging OMB’s approval, so the likelihood is the “without prejudice” version would gain OMB blessing. Hence, a dangerous precedence will have been created. The “floodgates” would be open for developments throughout Newmarket to ignore zoning and long term plans, because the Council capitulated on Slessor’s obscenely oversized demands “without a fight”. It would be “open season” for developers to almost do what they wanted.  Alternatively, If Council votes to oppose Slessor, you face an (un-budgeted?) expenditure for lawyers and experts that Councillors said may cost between $300,000 and one million dollars!…… Cancelling Council coffees will not pay for this…. Hence, you would be facing a “lose-lose” vote.

May I suggest the Town and staff needs to immediately launch intensive negotiations with the Slessor team to downsize density as a minimum. The residents group would like to be part of these negotiations, and I commit to seek expedient resident buy-in to a serious counter proposal that brings the density much closer to the often mentioned planning objective of 200-250 people+jobs/Hectare.

In addition, it seems prudent for Councillors and yourself to expediently approve the staff report paragraph that seeks approval to pursue outside expert help (an item that was postponed at the last Committee of the Whole). Otherwise the Slessor team will not be motivated to seriously negotiate. 

Bill Chadwick on behalf of the Shrink Slessor Square concerned residents

Forsyth Road, Newmarket

Copies to all Councillors, Regional Councillor John Taylor, Senior Planner Marion Plaunt

 

Shrink Slessor Square was today granted “party” status by the OMB at a special pre hearing in Newmarket Council Chamber.

Bill Chadwick told the OMB Adjudicator, Sylvia Sutherland, that he was seeking Party status on behalf of the residents’ group “Shrink Slessor Square”. He said the group would be seeking incorporation.

There were no objections.

This means that Shrink Slessor Square is now an active player on an equal footing with the Town, the Region of York and, of course, the developers.

We can quiz the developers and the other parties – and be questioned in turn.

The full OMB hearing is pencilled in for 11 April – 2 May 2013.

The developers are now proposing (a) a ten storey building with 203 units (b) a 20 storey building with 248 units (c) another 20 storey building with 193 units and (d) a nine storey building with 218 units – all squeezed into a tight site of under five acres.

The Slessors describe this as their “settlement offer”.

The Town will be meeting to consider its response.

If the Town doesn’t accept it, then it is taken off the table and the matter goes to a full hearing on the original twin towers application. 23 and 26 storey towers on three storey podiums.

Sounds like 26 and 29 to me!

A hearing on this “settlement offer” is down for 19, 20 and 21 February.

But, in the meantime, for Shrink Slessor Square, it is full steam ahead.

We will be keeping everyone informed as we take steps to become incorporated as a non-profit body and meeting in the near future to plan the way forward. 

The Slessor Residents’ Group has decided not to ask for “Party” status at the pre hearing on Friday 30 November.

This is a big mistake.

A leading light in the five strong residents’ group, Bob Bahlieda, knows the Slessor application inside out.  His forensic skills can lay bare inconsistencies and errors in the most densely argued case.

Other members of the group bring with them detailed knowledge of the Slessor application in all its forms, as it has mutated over the months.

The Town’s Planning Department has consulted the group from the outset, believing it represents the views of residents. And tri-partite meetings have been held with the developers so the group knows the nuts and bolts of the application in a way that no-one else does.

Given all this, it seems to me inconceivable that the OMB Adjudicator would refuse a request from the Slessor Residents’ Group for Party status.

I can’t see the Town of Newmarket objecting.

The developers, quite possibly.

They want to convince us that their sky high development is just the tonic that Newmarket needs.

But, ultimately, the decision will be for the OMB panel member adjudicating.

The Slessor Residents’ Group say they are content with Participant status. Their lead spokesperson, Anna O’Rourke, explains:

(1)         There is little to be gained by our group (in going for Party status). Party status requires full time commitment to attend and participate in the hearings which could last up to four weeks.

(2)         We also have few witnesses to call and cross-examination would only rehash the same disagreements we have had with the project already and allow them to attack them through cross-examination.

(3)         We also have no legal standing at the OMB but must use our moral arguments to oppose the project. Party status leaves us open to having our position undermined. Expert witnesses at the hearing will be prepped by their legal team. We have no expertise in being witnesses.

(4)         In contrast, the role of participant allows us to fully present our case while not having the OMB distracted by cross examination or by throwing us off our message. We will still make all the same points as we would being a party but without the distraction of cross examination and the potential that we say something that will prejudice our case. Given our limited resources the role of participant is a more preferred strategy that lets us control our message.

The Slessor Residents’ Group don’t need to pretend to be something they are not. They are not Bay Street lawyers or planning professionals. They are concerned citizens. No more and no less. And they don’t need to be frightened of their own shadow.

As Participants, they will get one kick at the ball and then they are off the field and are spectators again. Those with Party status are key players throughout.

I hope it is not too late for the group to reconsider.

So what are the pros and cons of going for Party status?

Pros

(1)         The Group would be giving voice to a large number of local people who object strongly to the Slessor development. There is no other group that purports to represent the views of local people on the Slessor development.

(2)         It doesn’t cost anything to become a party – other than in terms of time. (And, yes, that is a big deal.)

(3)         Parties do not need to be “experts” or be legally represented. They just need to be able to speak on their own behalf and present their evidence to the hearing. In the pool of 23 OMB adjudicators there are “lawyers, former elected officials, engineers, surveyors, planners and public administrators.”

(4)         Parties can cross examine if they choose. In the course of the OMB hearing, the developers may make statements that cry out to be challenged.

(5)         Crucially, Parties can ask the OMB to help broker an agreement. The OMB says it may try to settle disputes or reduce the number of issues at a hearing by bringing parties together informally through mediation. Those with participant status are expressly excluded from the process. The Slessor Residents' Group would be in on any mediation talks.

Cons

(1)         There would be a major investment in time, not necessarily money. There would be modest photocopying costs and so on.

(2)         The bona fides of the Slessor Residents’ Group could be challenged. Are the spokespeople elected or self appointed? Is there a membership? And do they meet and vote on positions?

(3)         It is too big a burden for a single individual to be expected to carry.

(4)         Anything that needs to be said at the hearing can be said as a participant.

(5)         Being cross examined by smart silver tongued lawyers wouldn’t be much fun and the Group might look foolish or unprepared, or both.

An unincorporated body such as the Slessor Residents’ Group has a major hurdle to overcome (point 3 above) when going for Party status.

The OMB rules say “if an unincorporated group wishes to become a party, the group must appoint one person to speak for it. The person appointed must accept the responsibilities of a party.”

That means being present throughout the OMB hearing. And that’s a big commitment.

One way around this is for a community/residents group to become incorporated. There are special rules for non profit organisations and incorporation can be quick and relatively straightforward. And it doesn’t cost much.

This is what the Glenway Preservation Association has done. 

The Glenway people say incorporation ensures “appropriate governance and accountability”.

Maybe the Slessor Residents’ Group should take steps to become incorporated. If it's not too late.

I’d vote for that. 

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The OMB guide explains how the system works:

“Parties take part in the hearing by exchanging documents, presenting evidence, questioning witnesses and making submissions to the Board. Parties may also request costs, adjournments or a review of the decision.”

How to become a Party

(1)         Submit your request in writing to the Board, and provide a copy of your request to the other parties

(2)         Be at the first day of hearings, at the start time. If you are not there you may be denied party status.

(3)         At the beginning of the hearing, the Board member asks if anyone wishes to become a party to the matter. You may stand up and ask to be added as a party.

(4)         Give the Board member your name and address for the record.

(5)         Explain why you wish to be added as a party. After explaining your position, the Member will ask if any of the other parties object to to you being added.

(6)         The other parties may agree or disagree to adding you as a party.

(7)         The Board Member decides if you will be added as a party.

A Participant is a person or organisation that participates by making a statement to the Board on some or all of the issues at a hearing. A participant may attend all or only part of the proceedings. Participants are not required to make submissions to council before becoming involved in an OMB matter.

When making a statement to the Board, participants must swear to tell the truth. They may be questioned by the Board and other parties. Participants generally do not question witnesses and cannot ask for costs, adjournments or request a review of the decision.

How to become a participant:

(1)         Be at the first day of the hearing, at the start time. If you are not there you may be denied participant status.

(2)         At the beginning of the hearing, the Board Member asks if anyone wishes to become a party or a participant. At that time you may stand up and ask to be a participant.

(3)         Give the Board Member your name and address for the record.

The Member will set aside time during the hearing for participant statements. Usually statements are scheduled at the end of a hearing. During a longer hearing, the Board may set a different time for participant statements so participants do not have to sit through the entire hearing.

Click on this link http://www.omb.gov.on.ca/english/home.html  to access the OMB’s website. 

·        http://www.omb.gov.on.ca/english/FrequentlyAskedQuestions/faq.html (“Frequently Asked Questions”)

·        http://www.omb.gov.on.ca/stellent/groups/public/@abcs/@www/@omb/documents/webasset/ec081184.pdf (“Guide to the Ontario Municipal Board”)

·        http://www.omb.gov.on.ca/english/InformationSheets/index.htm (“Information Sheets”)

The Slessors will meet their match at the OMB pre hearing on 30 November if the Slessor Residents’ Group goes for, and wins, equal status as Party to the action.

The Parties will include the developers, the Town of Newmarket and, very probably, York Region. There may be others.

I know all this stuff because I went down to the OMB HQ in Toronto, said hello and asked a zillion questions.

But to continue….

“Participants” will include those who have previously formally given the Town their views on the Slessor proposal.

“Parties” can call witnesses and cross examine other parties (and be cross examined themselves). What fun!

Participants, on the other hand, read out their submissions at the end of the day, once the press and public have gone. And they cannot quiz the parties or call witnesses.

It is a matter for the OMB adjudicator to decide who should be given party status but, surely, the Residents’ Group must stake a claim.

And why not?

The Group has lived and breathed Slessor Square for over a year and has a good understanding of the issues. They will bring a local perspective and commonsense, qualities that are sometimes missing in the Town’s approach.

To recap. The Slessors are appealing to the OMB in the hope that their monster twin tower development opposite Upper Canada Mall will be approved.

The Slessors say they are going down this road because the Town of Newmarket didn’t make a decision on their application within the time period specified in the legislation – 180 days.

In fact, their original application, the one now before the OMB, was never, at any stage, put before elected officials - either to accept or reject.

The original application included an hotel with 152 suites. The Cole Traffic Study of June 2011 specifically mentions the hotel.

But by the time councillors first considered the Slessor application on 21 November 2011 the hotel component had mysteriously vanished.

This is the whacky world of urban planning in Ontario.

Who knows what discussions took place between the Town’s planners and the developers from the time the original application was lodged and the November 2011 meeting?

But I am pretty sure Newmarket’s planners would have been trying their level best to modify the design into a form that the Slessors and the Town could both live with.

That was always a long shot given the huge scale of the Slessor development but planners would have given it their best shot.

They would have been working for a win-win.

But with Slessor’s appeal to the OMB all bets are now off.

The Town has no option but to come out fighting.

The Slessor appeal to the OMB kicks off next Friday (30 November) and, this afternoon, Newmarket’s councillors meet to decide their approach.

But first, why is the Slessor development so important?

Answer: It is the first of the really big developments that will shape and dominate the Town’s skyline for a generation. Slessors want to press ahead with their original proposal for twin towers of 26 and 29 storeys, an hotel and conference centre and a truly cavernous underground car park for over 1,300 vehicles.

If the twin towers ever get built they will have another high rise near neighbour. Planning permission for a 20 storey condo at the junction of Davis and George was sneaked through a few years ago when no-one was looking. The decision got no publicity and no questions were asked. Construction has yet to start.

Today’s Committee of the Whole concentrated almost exclusively on the cost of getting involved in Slessor’s OMB appeal.

Cllr Dave Kerwin wanted to know if the pre-hearing would be dealt with exclusively by Town staff. He was fearful that going to the OMB would cost an arm and a leg.

Councillor Maddie Di Muccio who is notoriously pro development, regardless of the consequences for local people, cautions against giving staff a blank cheque.

She tells her colleagues that the staff should not be able to authorise bringing in outside legal and planning experts without the specific prior approval of Council.

At an earlier meeting of the Committee of the Whole in October, Maddie ominously tells her council colleagues that

new developments are going to take residents out of their comfort zone

Sounds like she’s telling local people they will just have to get used to disruption, construction noise, dust and all the rest. And, at the end of the day, be saddled with an eyesore.

Anyway… We learn that a full OMB hearing is unlikely before Spring 2013 and that by early February Planning Staff will be in a position to bring their recommendations forward. A specific Council direction would be required to go to a full hearing of the Slessor appeal.

Now it is Tom Hempen taking the floor. He wants to know where things stand on the key issues of height, density and traffic.

We hear the planners have not agreed with the developers the methodology to be used for assessing density.

It is getting a tad technical but the bottom line is this.

Density, as proposed by the Slessors, is still significantly higher than the high end scenarios set out in the Town’s evolving Secondary Plan.

The senior planner in charge of the Slessor file, Marion Plaunt, tells Tom the Slessors have come up with a FSI of 3.8 and that the Planning Alliance (hired by the Town) is looking at how this fits in with the emerging outlines of the secondary plan.

Tom emphasises again that density is still very high.

Now it is the turn of Regional Councillor John Taylor who echoes Tom’s concerns about density. And traffic too.  John says the development would be in one of the most congested areas of our town.

Like Dave Kerwin and Maddie Di Muccio, he is concerned about giving blanket approval to staff to incur costs at the OMB. He wants to know the scope of the appeal, the risks involved, the chances of success – as well as the potential costs.

Seems to me he has hit the nail on the head here.

As the Council prepares for the OMB pre hearing on 30 November, it will have to address the simple, straightforward question of why it failed to amend the zoning by law within the prescribed 120 days, as requested by the Slessors, and, secondly, while the Town failed to come to a decision within 180 days.

The answer is blindingly obvious.

The Slessor application was complex. It raised a thousand issues which the Town and the Region had to address and it was simply not possible to come to a decision within the time period without cutting corners.

Now Rob Prentice, the Commissioner for Community Services, is warning that outside experts need to be lined up well in advance. They can’t be hired late in the day and brought up to speed at the drop of a hat.

Jane Twinney, who rarely says much, pronounces that she is not “comfortable” (a favourite word at Mulock Drive) with giving staff open ended authorisation to commit funds to prepare for the OMB hearing.

Keeper of the Purse Strings, Dave Kerwin, memorably warns that 

“2013 could be pungent with legal litigation”

He wants to know how much the Town has earmarked for outside experts. The Director of Legal Services, Esther Armchuk-Ball, tells him there is a reserve.

Hmmm.

This doesn’t satisfy Maddie who says councillors shouldn’t authorise staff to retain outside legal and planning consultants when they, the councillors, didn’t know the staff recommendation for the Slessor appeal or, indeed, the legal ins-and-outs. (Both true)

Chris Emanuel innocently asks for information on the time between the pre-hearing (30 November) and the full hearing (if it goes there).

We learn that staff expect a full hearing in the Spring.

So why can’t staff update Councillors after the pre hearing on 30 November when things are clearer? Coucillors need an understanding of what is involved if the appeal goes to a full hearing.

Now it is back to Esther, the Director of Legal Services, who reveals that a full hearing could take three to four weeks and that retaining professional help and getting potential witnesses (to back the council’s position) could not be left to the last moment.

She tells councillors a lot of discussions may have to take place well in advance of the full hearing and not having outside planning help “may be limiting”.

The Mayor, Tony Van Bynen, steps in with a good question.

If we are to go to a full hearing of the OMB should we engage people for the pre-hearing on 30 November?

Esther, the Town's top legal eagle, says that in an ideal world it would be better to engage people as soon as possible but it probably wouldn’t harm the Town’s position if we got people afterwards and brought them up to speed.

John Taylor returns to the money theme asking for a rough estimate of the cost of going to the OMB.

Chris Emanuel thinks it may cost an eyewatering $100,000 per week.

The Legal Services Director says she is more Conservative, estimating the cost at around $50,000 - $100,000 per week. Still enough to make you mop your brow.

Marion Plaunt winds up by saying Planning Staff have been proceeding “fairly cautiously” on the Slessor file since the developers lodged their appeal with the OMB. There are many areas where no agreement has been reached and these are set out in attachment 6 of the committee report.

By now, there is a feeling that the councillors have squeezed the orange dry and it is agreed to return to the issue at the first opportunity following the OMB pre hearing on 30 November.

This probably means a report to the Committee of the Whole meeting on 3 December. It is scheduled for a Budget discussion but Slessor could be taken.

By then, the Council needs to get its act together and settle on its approach to the twin towers development.

Councillors must realise it is not just about the cost of resisting the Slessor appeal to the OMB.

It is about creating the kind of Town we all want to live in.

A town shaped by the people who live here and not by profit hungry developers.

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