On Tuesday (10 December), at the OMB pre-hearing on Glenway, the adjudicator Jason Chee-Hing gave the Glenway Preservation Association what it most wanted. A stand alone debate - and decision - on whether there should be any development at all.
The hearing proper – as opposed to this week’s pre-hearing which looked at timetabling and the modalities - will be split into two parts.
The first will open on 17 March and run for two weeks and will consider the so-called “principle of development”. This will decide whether any development is permissible at all. (See Issues List below). Then, if development is given the go-ahead, the follow on part, starting on 31 March, will look at all the technical aspects of shoehorning 730 dwellings into the middle of a quiet, stable residential neighbourhood. It is scheduled to run for four weeks.
The 8 week hearing has miraculously already shrunk to 6 weeks and we are barely off the starting blocks.
The OMB pre-hearing in the Council Chamber at Mulock Drive was a sober affair characterised by hushed whispers and respectful language and where we all stand up when Mr Chee-Hing enters or leaves the Chamber.
He is a planner by trade, well practised in the dark arts. He also knows about public administration but, so far as I can tell, has no legal qualifications. And, to my continued astonishment, he has no-one sitting at his side, advising. Like all OMB adjudicators, he is on his own.
After lots of legal to-ing and fro-ing he grants a hearing specifically on the principle of development – to huge sighs of relief from the Glenway crowd – but then spoils the effect by urging the parties to move heaven and earth to get a negotiated settlement.
Principle of Development
How is it possible to split the difference on a point of principle? One side doesn’t want a development at all. The other side does. Negotiations come way down the road and only after the principle of development has been determined one way or the other.
It seems to me that the Town and Glenway will have to up their game significantly if they are to persuade Mr Chee-Hing that Marianneville can’t develop the land they now own. The Town and Glenway lawyers have got to start making the weather rather than being showered upon by the developer’s lawyer, the animated Ira Kagan, who gives the appearance of being completely on top of his brief.
Kagan is everywhere. He is already engaged on the Slessor file and also on Bob Forrest’s Clock Tower appeal. Mary Bull speaks for the Town and James Feehley for the Glenway Preservation Association. For the moment, Feehley seems to be keeping his powder dry but I hope for fireworks from him in March.
He must affect indignation on behalf of his client, even if he doesn’t feel it. He must imagine how he would feel if a developer planned to build in his back yard and then he must project (controlled and lawyerly) outrage.
The recently hired Mary Bull must submerge herself in her brief and get fully up to speed in a matter of weeks. A daunting prospect.
When addressing Chee-Hing, she inserts the word “Sir” in every second sentence to give herself a few extra nano-seconds of thinking time. By March she must be seamlessly fluent.
Now she gets things underway by asking the OMB to rule as inadmissible, the so-called “without prejudice” offers made by Marianneville in August and November.
She says that the Town had a reasonable expectation that these offers would not be put in front of the OMB. We are told this is “settlement privilege” which exists to encourage parties to resolve matters between themselves. She tells us there are very few exceptions to this rule because it is in the public interest for opposing parties to reach a settlement. So far, I am following things quite well.
She says the developer cannot unilaterally waive settlement privilege as it would make a mockery if one side could do this. Feehely agrees.
Ira Kagan appears very focussed on the job at hand. He says that when developers make “without prejudice” offers they do so hoping the details will be kept secret. Decisions would then be taken by councillors meeting in camera. He tells us this is not the way Marianneville wanted to do things.
In any event, the 23 August 2013 offer makes it clear there is no confidentiality in the offer. If it is rejected, he always said he would seek approval of the original application.
He tells Mr Chee-Hing that Marianneville’s “without prejudice” offers should not be seen as formal revisions of the application. Kagan says the Town could have had two staff reports: one public and another, containing the detailed analysis, confidential. He says the Town chose not to do this and public reports were published giving the Town’s view on the “without prejudice” offers.
On this basis he tells us there is no privilege in the sense of confidentiality because both parties disclosed their analysis of the “without prejudice” offer.
Now we are swimming in a sea of legalese with no dry land in sight. Occasionally, the lawyers pause to restate some point in clear, simple, unambiguous English.
Kagan now asserts that settlement privilege was waived explicitly by Marianneville and implicitly by the Town.
Kagan has thrown the Chair a life-line. “Stop there!” cries Chee-Hing. I see him scribbling furiously.
After a minute or two he looks up. “Please continue.”
Now Mary Bull is on her feet. She has a big cardboard box in front of her filled with all sorts of documents, telling us subliminally that her brain is handling and processing a mountain of information.
She tells us that lots of Kagan’s notes on meetings with staff and so on are not in the public domain. “It is not as if everything is out in the open.”
The Town, she says, did not consent to the “without prejudice” offers going before the OMB. To do so would discourage the Town (or indeed any municipality) from entering into settlement discussions, contrary to the aforementioned public policy considerations.
She says the developer would use the Town’s own material against the Town.
She tells the Chair: “All you should know is that there were settlement proceedings that were not successful.”
Chee-Hing looks unconvinced.
Now Kagan wades in to the argument. He tells us that at any time a litigant can make public an offer it makes. He says he did this at the very beginning. But what it cannot do is disclose discussions with the other Party. And he didn’t.
The Town chose to put its analysis of the settlement offers in the public domain.
Now that he has heard the arguments, Mr Jason Chee-Hing steps outside his corporeal self. His utterances now have all the authority and majesty of the OMB.
“The Board is more inclined to support the view of Mr Kagan.”
This means that all Kagan’s submissions can be considered.
A councillor confides: “We’ve been bruised”.
Now Kagan quizzes Ruth Victor, the outside consultant brought in by the Town to handle the Glenway file. She famously recommended the Marianneville application be turned down on technical grounds rather than on principle.
She has turned out to be a truly disastrous choice, fundamentally undermining the Town’s case to fight the Glenway development in its entirety.
Kagan is aware that he is mining gold, and it is very near the surface. He doesn’t have to do much digging.
Kagan asks if she was aware that Nick McDonald, the Planning expert retained by Glenway, had an in camera meeting with the Council. Answer: Yes.
Now Kagan is asking her what she understands by McDonald’s “Principle of Development”.
She concedes that population numbers do not support the Marianneville application but goes on to say, in a beautiful double negative, that it has not been established that the lands should not be built on.
Victor says she agrees with McDonald that the Glenway development is not needed to meet the Town’s growth targets.
Kagan asks: “At any time before 25 November (the date of the Town’s decision on Glenway) did you advise that no houses should be built on Glenway because they weren’t needed under the Growth Plan?”
Kagan zeros in: “Isn’t it the case that there is no planning basis for a no growth option.” (that is leaving Glenway as it is)
Victor replies: “Yes. That is still my position today.”
This is like being kicked in the groin.
We shall be reminded of her views, time and time again by Kagan, wearing size 14 Doc Martens.
Now Kagan takes us on a tour of technical issues, pointing out that these are all capable of resolution.
Soon we are deep into storm water ponds. Now I hear about inter connecting roads. And like-for-like development where the proposed new houses would be designed to fit in. Kagan concludes that although everything is not resolved, the developer is at least moving in the right direction.
Now it is the turn of Mary Bull to examine Ruth Victor.
We hear her ask if the Principle of Development a legitimate planning issue?
Victor concedes that it is a question that needs to be asked and answered. “I gave my planning opinion on the issue but that is different from saying there is no issue.”
Now we are into the details of scheduling the hearing proper.
Comments have got to be invited on the mass of documentation and this could take months. The “engineers’ get lots of mentions. York Region gets the wooden spoon when it comes to responding expeditiously. Then witness statements need to be exchanged. We are now wandering about in the legal and procedural undergrowth.
We end up with a hearing in two parts.
Kagan says that if the Board decides after two weeks that the development can’t proceed, that’s fine. There is no point going any further.
On that point at least, I agree with him.
The Issues List (as agreed between the Town, Marianville and Glenway)
- In the instant case, does the Growth Plan prohibit new residential units on the lands that are the subject of the applications (the subject lands)? Is it appropriate to refuse the proposed development of the subject lands (the “Proposed Development”) if it determined that the proposed development is not required to meet the population forecasts in the Growth Plan for the Greater Golden Horseshoe, 2006 (the Growth Plan)?
- Whether the Proposed Development conforms with the Growth Plan for the Greater Golden Horseshoe, 2006 (the “Growth Plan”) with respect to, amongst other things:
(a) managing growth;
(b) general intensification;
(c) population forecasts, and
(d) co-ordination of implementation of the Growth Plan
3. Whether appropriate regard has been had for matters of provincial interest, including the appropriate location of growth and development (Planning Act, s. 2 (p))?
4. Whether the Proposed Development conforms to the population and intensification policies in the (a) York Region Official Plan and (b) Newmarket Official Plan.
Are the population forecasts in respect to lands within the built boundary?