Should we feel sorry for developers who are asked to make "voluntary contributions" to the Town to help pay for such things as trails, community entrance signs and public art? 

These so-called "voluntary contributions" can cost a developer many thousands of dollars. In 2014, at the start of this Council term, the Town collected $628,300 in voluntary trail contributions from developers. This is big money.

But what if the developer says no?  Do they have an option? Is it a shakedown? Is it legal?

Perhaps these "voluntary contributions" are written off by developers as a necessary cost of doing business in Newmarket. Who knows?

Extortion

A couple of weeks ago an email comes winging in from cyberspace, complaining about the Town extorting money from developers. Attached to that email was another, dated 28 November 2017, from the Town's Chief Administrative Officer, Bob Shelton, directed specifically at developers:

 "I wanted to discuss Community Benefit contributions with you.

 "Newmarket has been moving forward with significant investment in the community well beyond what can be supported by the tax base and other sources of funding. These investment [sic] include accelerated trail development, community entrance signs, and unique public art features. These Community Benefit investments greatly contribute to Newmarket's growing reputation as a place to live, work and visit. They assist in the attraction and retention of investors, business, employees and residents."

"We have been able to make these additional investment [sic] into our community creating a sought after quality of life through generous contributions made by citizens, businesses, organisations and land developers. This has been viewed as a win-win as these community benefit amenities assist in such areas as marketing products and maximising value."

"The Community has benefitted from contributions towards these investment [sic] by way of lump sum contributions to contributions in the $1,600 to $2,500 range on a per unit basis depending on the unit size. The Town would be able to offer a charitable donation receipt or recognition to your company for this voluntary contribution to be used by the Town for Community Benefit projects."

"Based on your recent advice to the Town it would appear that you are moving forward with your proposed development. Could you please consider assisting the Town with this program and advise me of your intentions in this regard. I will also try to reach out to you to discuss our program later this week."

No sewage hook-up means no development

The day before (27 November 2017) councillors had a report before them on so-called "servicing allocations". Until a development - even one with planning approval - gets permission to hook up water and sewage pipes it cannot proceed.

In Newmarket, because of capacity constraints arising from the delay in completing the Upper York Sewage Solutions project (which comes on stream in 2024) these servicing allocations have to be rationed. Developments are listed by priority.

Three proposed developments (King George, Eagle and Gorham) are down as priority 4 but are fast tracked after votes moved by Tom Hempen and Dave Kerwin. As a result, these developments can now be hooked up, leapfrogging over others.

After the vote Bob Corleone’s letter goes out to developers asking for cash. Dare they say no?

In 2015, Steve Deveaux, the Chair of BILD (Building Industry and Land Development Association) tells MPPs during the Committee stage of the Smart Growth for our Communities Act (Bill 73):

"We found that some municipalities successfully levied additional charges on the industry for a variety of proposed projects with questionable public policy merit. This resulting voluntary agreement is only agreed to because there is no other way of getting approvals, permits or servicing to the project."

It takes two to Tango say the developers

BILD has been pressing the issue for years. In 2014 they tell the Province:

"For a contribution to be voluntary it must have two willing parties. It is usually the case that the party paying these charges is not willing. Rather, the payment is often made because it would take too long to appeal it to the courts or the OMB and it also creates a difficult working relationship in communities where there will be ongoing future relationships."

Shelton assures me there is no funny business:

"For development related discussions, my approach is to confine these discussions to the CAO's office (Chief Administrative Officer) which takes place outside of and after the development is in a position to move forward..."

Even so, the Bill is supposed to get rid of these "voluntary agreements".

No additional levies

 59.1  (1)  A municipality shall not impose, directly or indirectly, a charge related to a development or a requirement to construct a service related to development, except as permitted by this Act or another Act.

The Bill 73 Committee hears from a number of  municipalities who say these "voluntary payments" are a good thing and should not be outlawed. MPPs are told they are needed to bridge the gap between what comes in through development charges and the actual costs of growth.

Indeed, I recall Bill Hughes, the widely respected Director of Finance at York Region, telling us that growth does not pay for growth. That has always been the monumental fiction. 

In fact, the Municipal Finance Officers of Ontario, quoting research by others, tell the Bill Committee:

"Development Charges now only pay for approximately 80% of growth related costs. That puts significant pressure on municipalities, which are faced with huge infrastructure deficits as well as demands for new services, and trying to rehabilitate and maintain existing infrastructure."

Despite pressure from the Association of Municipalities of Ontario and from some of their member authorities urging the Government to look again at s59.1, Ministers hold fast and the section now appears in the Development Charges Act 1997, as amended.

Law of the land

It is now the law of the land. But what does it really mean?

In York Region's 352 page tome on the 2017 Development Charge Background Study, published in February this year, we are told the Act prohibits voluntary payments:

"The amendments to the Development Charges Act 1997 prohibit the imposition of additional levies, commonly understood to mean voluntary payments or extra-legal agreements, related to a development. Staff are investigating the definition of voluntary payment agreements to ensure the Region remains compliant in the future. Existing voluntary payments are grandfathered."

I don't know if the detectives in York Region's finance department have now unearthed the definition on which so much now turns.

Treasurers to certify compliance

Despite this opacity, Municipal Treasurers across the Province are now doing their best to certify that their Reserve Funds are now in compliance with s59.1 - even if they are not entirely sure. In the City of Vaughan we learn:

"The City has, to the best of its knowledge, not imposed any voluntary payments or required construction of a service not authorised under the Act." (The Development Charges Act 1997, as amended.)

I am left wondering how "voluntary" payments can be imposed? I go through life relying on ordinary English usage but once the lawyers start mangling the language we can all get lost.

Markham worries that the prohibition of voluntary contributions might impact on

the receipt of funds for public art and public realm.

This is what Shelton wants the money for - among other things.

Closing the door on "voluntary" payments

Councillors across the Province are now being told, in variations on the same theme, that s59.1 is intended to close the door on "voluntary" payments that may have been sought by municipalities "outside the legislative framework".

So, in Newmarket, are the voluntary contributions sought by Bob Corleone "outside the legislative framework" or not?

Is it OK to lean on developers for cash to fund "public art"?

The Town has been upfront in asking for cash for years, even to the extent of telling developers (in 2015) what the Town's "base expectations" are for voluntary contributions for trail, public art and community projects.

Everything is kosher

I look for a statement from Newmarket's resourceful and inventive Treasurer, Mike Mayes, certifying everything is kosher but I can't see it.

That's not to say it doesn't exist. It could be staring me in the face.

Bob Corleone is now inviting me to meet the Treasurer if I need more information to help me understand the process.

He is making an offer I can't refuse.

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On 20 March 2017 Newmarket councillors reaffirmed their existing policy of getting their remuneration paid one-third tax free.  

They rationalised. They justified. They agonised. But, at the end of the day, after all the hand-wringing, they voted to keep their special tax free status.

Now, cruelly, the Federal Government has decided to take away this generous concession as from 2019. The move was buried in the 2017 Federal Budget and applies nation-wide. It was under-reported.

The Association of Municipalities of Ontario in a news release earlier this month was still peddling the myth that:

"Municipal elected officials across the country have been able to decide to use a 1/3 tax exemption in lieu of claiming expenses related to their duties."

That may be true in some saintly municipalities tucked away, out of sight, in remote corners of Canada. But it isn't true here in Newmarket where our Mayor, Tony Van Trappist, claims for every butter tart consumed at the Maid's Cottage.

Removing tax-free status is long overdue and should be welcomed by all elected officials.

The current system makes it virtually impossible to compare the remuneration of elected officials in different municipalities - especially with those that have ditched their tax free status.

This complexity suits the Van Trappists of this world. The old banker kept his Hydro remuneration off the Town's accounts for years until I forced the issue and his additional $12,000 a year is now routinely reported. This kind of subterfuge cheats the voters.

We need good elected officials to take important decisions on our behalf, often shaping our Town for decades to come.

They deserve the rate for the job.

So long as it doesn't include tax free status.

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The Clock Tower Hearing at the Superior Court in Newmarket, due to come up tomorrow, Wednesday 15 November 2017, at 11am, is off. It has now been rescheduled - for the fourth time - to 14 May 2018. 

On 3 November 2017, the Town's counsel, Leo Longo of Bay Street lawyers Aird and Berlis LLP, requested a postponement for reasons which are still unclear to me. Papers were originally filed with the Court on 14 June 2017.

The Town wanted a declaration from the Superior Court that a land swap agreement it entered into in 2003 with the then Main Street property owner, Michael Bryan, is binding on Bryan's successor in title, Bob Forrest's Main Street Clock Inc.

Spanner in the works

If the Town succeeds it throws a spanner in the works leaving Bob with a development, as currently drawn, that is impossible to build.

It still puzzles me why the Town's counsel didn't ask the OMB to throw out the Forrest application without a hearing.

But that's yesterday's story. Today I want to know why the Town sought to postpone, yet again, the hearing of the application.

We know that Leo Longo was in discussions with Bob's counsel, Ira Kagan, about getting a suitable date that would work for both of them. On 7 July 2017 Longo emailed Kagan to confirm that

"...due to counsel availability, the return date for the hearing of this matter (Corporation of the Town of Newmarket v Main Street Clock inc) has been moved from October 20, 2017 to November 15, 2017 at 9.30am. The time allotted for the hearing of this matter is three hours."

The new date of 14 May 2018 is perilously close to the new start date of the OMB Clock Tower Hearing, set for 7 August 2018.  If the Court hearing goes ahead on 14 May the Judge will hear legal argument and then deliver his or her ruling, perhaps a month or two later.

Army of people

In the meantime and at great expense, a small army of people will be preparing for the OMB hearing on the Clock Tower which will be critically influenced, one way or the other, by the Judge's ruling on who owns the land in Market Square.

This glacial timetable works for the lawyers but what about the public interest?

What about the boarded up and decaying heritage buildings in Main Street?

What about the traders and business people who depend upon a lively and busy downtown?

We are all being failed by a creaking system, not fit-for-purpose, where massive delays are par for the course.

We shouldn't accept this with a shrug of the shoulders as being inevitable.

I don't.

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Update 16 November 2017: I asked Esther Armchuk, Newmarket's former Town Solicitor and now Commissioner of Corporate Services, why the Town had sought a postponement. She helpfully told me yesterday:

"The hearing, originally scheduled for today, was adjourned on consent of the lawyers for both parties. Additional time is required to complete the exchange of evidentiary documents, schedule cross examinations on affidavits and argue the matter before Court. The Court had only scheduled 3 hours today for the hearing of this matter, and both parties require more time.

The Newmarket Superior Court has scheduled the matter to be held during the three week long motion/trial session that commences May 14, 2018. At some point during that three week period, the lawyers for the Town and for Main Street Clock Inc. will be given notice by the Superior Court trial office to attend the following day to argue the matter. When that occurs, we will post the hearing date information to the Town's website for the Clock Tower matter. Staff will advise Members of Council and update the website as soon as the new date for this matter has been set."

I am grateful for the explanation but it still doesn't satisfy. Members of the public can expect 24 hours notice of when Newmarket v Main Street Inc is going to come up before a real, live Judge. And why is the whole thing taking so long? Why couldn't the lawyers have sorted out the exchange of evidentiary documents and schedule cross examinations on affidavits by now? They've had months already. I hate to think what the bill will be like when Leo Longo eventually presents it to the Town.


The Redwood on Yonge development (on the old Slessor Square site at 17645 Yonge Street) sailed through its Statutory public meeting last week (6 November 2017) without a single comment from local residents. 

Does this mean everyone is deliriously happy with it? Probably not.

This major development will have 527 rental apartments in three residential towers, to be built sequentially in three phases over, perhaps, ten years. There are no plans for any of the apartments to be marketed as "affordable" using the affordability figure published annually by York Region. In 2016 it stood at $1,496 per month.

The Town's Secondary Plan reflects regional policy by stipulating that a minimum of 35% of new housing units in the Urban Centre (which includes 17645 Yonge Street) shall be affordable to low and moderate income households.

The report from the planning staff says:

"This 35% is not intended to be achieved on each individual application but rather within the Provincial Urban Growth Centre as a whole."

This is a good example of the planners kicking the can down the road, leaving it to another day, rather than confronting the issue now.

Conversations about affordability

Jane Twinney is the first councillor to ask about affordable housing. Is that part of the development? The Director of Planning, Rick Nethery, predictably reminds everyone that the 35% doesn't apply to individual developments.

"We have been having general conversations with the applicant. It is worth noting that the Secondary Plan speaks to a 35% affordable housing target - not for specific properties but for the whole Provincial Urban Growth Centre. So far, based on the information we have received from the applicant, there hasn't been an awful lot that speaks directly to that but we have the opportunity to have the conversation and whether or not there is any additional information they might be able to share with that. I don't know if Brad has anything to say."

This allows the developer's planning consultant, Brad Rogers, the man who is absolutely everywhere, to remind us the development will take ten years to complete.

So what? Does it have an affordable housing component or not?

Brad says he is happy to have conversations. He tells Twinney:

"It is about a ten year build out for all three phases so it will take at least two years to build the first building and so this transition of the property, it is not going to happen overnight. It is going to take a lot of time."

"And with respect to affordability and the rental component at this point we don't know what the rental rates are but we are happy to have these conversations with the Region of York and these types with respect to affordability."

Now Taylor wants to get into the conversation too:

"A development of this magnitude, if it doesn't help address the affordable housing issue in part then it puts quite a burden on some of the smaller developments that will subsequently come. So I hope this is a conversation we can continue to have and look at it."

Housing crisis

When they all get round to having their conversations I hope they will address a simple point that is staring everyone in the face. There is a housing crisis in Newmarket and across York Region. Put simply, spiralling house prices have put home ownership beyond the reach of too many people. And rents are way too high for too many people.

The Region polices the policy on affordability via annual reports showing progress against targets in the Region's 10-year Housing Plan. Here is the 2016 progress report on housing plan debated in June 2017

The Provincial Government says it is addressing the twin issues of getting housing to market faster and ensuring it is affordable.   

Here in Newmarket, 212 Davis Drive is being held up as a signature achievement in getting more rental accommodation actually built and occupied. Of course, to get this far, the Town had to make concessions to tempt the developer to go down the rental route but this is the world we live in.

Development charges were deferred and the Town allowed a huge slab of surface parking at 212 Davis Drive (see right) when its own Official Plan makes it clear:

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

Clearly, "wherever possible" is sufficiently elastic to allow surface parking if there are other competing policy imperatives. The huge Deerfield development next door to 212 Davis Drive and (beneficially) owned by the same Rose Corporation will be asking the Town in due course to give permission for a three storey above ground parking garage in the first phase, integrated into a four storey podium. Sounds a bit like Redwood.

In any event, surface parking, as the Rose Corporation's Sam Reisman will tell you, makes developments cheaper to build.

Inclusionary Zoning

In future, the Town may get round to triggering the powers municipalities have been given to force developers to include affordable housing in their developments through inclusionary zoning.

But for many people, including professional planners whose close symbiotic relationship with developers is a simple fact of life, that may be a step too far.

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Back Story: Metrolinx is in the middle of a big consultation on its 2041 Draft Transportation Plan. Newmarket is hosting a public meeting for the York Region area and last night I wander along to the Community Centre at Doug Duncan Drive to see what's what.

Metrolinx staff are there in huge numbers. There are top policy makers and blue sky thinkers but fewer members of the public than I hoped to see. To compensate, I spot our Mayor, Tony Van Trappist, at the far end of the room. I hope to hear his views on the big transit and planning issues.

His default position is to say next to nothing, adopting a "I'm here to listen" pose, but I hope to flush him out on at least one or two issues. I see a vacant place at the Mayor's table and I bag it. He greets me enthusiastically. (I made that up.)  

In the room next door there are a hundred seniors getting some kind of briefing on financial strategies in retirement. As the evening progresses they get more and more excitable. They force our key presenter, Lisa Salsberg, to use the microphone she had abandoned earlier as a way of making the evening more conversational. As Manager of Systems Planning and Strategic Policy she is one of Metrolinx's top movers and shakers.

Population Growth

She has a difficult job. Metrolinx has to deal with four levels of government and 30 municipalities - each with its own agenda. But they all face an explosive growth in population over the next 25 years. How will people move about in future without facing massive gridlock and congestion?

Ms Salsberg does the impossible, condensing the Draft Transportation Plan into easily digested bite-sized pieces which we are invited to consider in our round table discussions.

It is fascinating stuff. I hear about the future of transportation and autonomous vehicles but I don't want to go down that road. I am less interested in crystal ball gazing than in addressing the practical issues facing us here and now in Newmarket - such as no grade separation on Davis Drive. This puts the kybosh on a 15 minute GO Rail service from the Tannery.

15 minute service to Mulock

There is no way the Provincial Government is going to allow a huge chunk of the recently completed Davis Drive Rapidway to be ripped up to accommodate an underpass or an overpass. Just think of the optics! The Mayor breezily suggests an alternative. The 15 minute service could be extended up to Mulock where there will have to be grade separation. I am left wondering what the impact would be on the Tannery.

And John Taylor will be musing again on the interplay between both rail stations and the GO bus station on Eagle.

Now we are talking about the so-called "first and last mile". How do people get to the bus or rail station without using their cars? They can walk if it's not too far but what are the other options?

In the distant past when he was a simple banker and before he became famous the Mayor used to live in Pickering. He speaks lyrically of its Dial-a-Ride service where little buses, each dedicated to one of the six zones in the Town, would ferry travellers from the station to their homes, or close by.

I get the feeling the Mayor has been talking about Pickering for years, holding it up as an example of something which could be done and should be done but, for one reason or another, isn't being done. At least, not widely.

Land banking

One of the things Lisa Salsberg mentions in her tour d'horizon earlier is the need for better integration between transportation and land use planning. This gives me the perfect opening to lambast developers like Peter Czapka who buy land in strategic locations, get planning permission and then sit on it for years, choosing not to develop and waiting for land values to soar.

This happened with 22 George Street where planning approval was given in 1993 for a twelve storey, 115 unit condo. In 2009 approval was given for a twenty storey 280 unit condo at 39 Davis Drive. Scandalously, neither has been acted upon. The answer is to have planning permissions which lapse after, say, five years if work hasn't started on site.

Van Trappist stuns me by agreeing something should be done but says it would require legislation. And that, of course, is not his responsibility. He is asked if he has raised the issue at AMO - the Association of Municipalities of Ontario. The mumbled reply suggests he hasn't. 

Now each of the round tables is reporting back to the full meeting.

As the rapporteur at the table next to ours is making a series of very interesting points I notice Van Trappist is, yet again, glued to his iphone, face six inches from the screen.

Respect

There was a time when he considered such behaviour disrespectful because it indicated you were not listening to what was being said.

This is just the kind of inattention that gets him into trouble at York Regional Council.

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Metrolinx will be posting a report on the consultation meetings on its website in due course.


 

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