After almost eight months gestation, we now have the OMB’s disappointingly thin written decision on Glenway. It gives the green light to the developer, Marianneville, to shoehorn over 700 new dwellings into the heart of a stable, residential community.
However, key information that could have influenced the adjudicator, Ms Susan Schiller, was never put before her.
I learn it is possible to challenge an OMB decision within thirty days of its release on payment on a filing fee of $125. I am told “the OMB rarely grants reviews and/or changes a decision”. And to review or change a decision the OMB needs proof that, amongst other things, it
- Heard false or misleading evidence that could have changed the decision
- Should consider new evidence not available at the time of the hearing that could have changed the decision.
As it happens, I wrote to the OMB in August 2014 setting out my concerns and asking that these be passed on to the adjudicator, Susan Schiller. I was told that OMB protocol did not allow for this.
How the OMB was misled
In his summing up, the developer’s lawyer, Ira Kagan, insisted that there was “not a shred of evidence” that anyone other than Glenway’s witness, Nick McDonald, a professional planner, was considering moving the GO Bus Terminal on Davis Drive West to another location.
This was misleading.
References were made to the GO Bus Terminal in a companion volume to the Draft Secondary Plan in September 2013.
That report, dealing with transit and transportation issues, was held back, revised, and only published in April 2014 after Ms Schiller gave her oral decision on 27 March 2014. I had been assured on a number of occasions that the report would be published in 2013. If the report had been published alongside the Draft Secondary Plan (which referenced it) in September 2013 it would not have been possible for Kagan to assert that
“Mr McDonald may think it (the bus station) should move but no-one else seems to agree with him.”
In fact, one month after Mr Kagan made that statement, on 28 April 2014, the senior planner in charge of the Secondary Plan file, Marion Plaunt, told councillors:
“One of the considerations in (the planned Mobility Hub study) is how do we, as we plan forward, integrate the bus station and the GO train station; whether they should naturally be joined at some point, at one location. That is part of the analysis identified within the Mobility Hub Study criteria.”
Why is the location of the GO Bus Terminal so important?
The GO Bus Terminal featured prominently in the OMB Hearing. As a designated “major transit station” it allowed the developer, Marianneville, to argue that intensification of the Glenway lands, with hugely increased residential densities, should be permitted within a radius of 500 metres - effectively swallowing up most of the Glenway neighbourhood.
Marianneville pressed the Town’s planners to include the Glenway lands within the Secondary Plan area knowing this opened the way to more intensive land use. Their approaches were resisted by the Town’s planners.
In paragraph 46 of the OMB decision we read that
“The evidence before the Board is that Marianneville asked repeatedly that its lands in the north east corner, ie, the part of the Marianneville lands that fall within the major transit station area, to be considered as part of the OPA 10 analysis. The Town declined to do so and appeared to justify this refusal on the grounds that Marianneville had made separate applications for an OPA (official plan amendment), ZBLA (Zoning By Law Amendment), and a plan of subdivision.”
Newmarket’s planners could not be asked why they resisted Marianneville’s request because they boycotted the Hearing. In fact, they were already thinking about the possibility and desirability of relocating the GO Bus Terminal. Relocating somewhere on the Upper Canada Mall site was one option.
The revised Secondary Plan, adopted by the Town in June 2014, refers to the Upper Canada Mall Master Plan. This is to be prepared by the landowner(s) “in co-operation with the Town, York Region, Metrolinx and other relevant partners” and will, by amendment, be folded into the Town’s Official Plan at some point in the future. Amongst other matters, the Master Plan will address:
(e) mobility hub study considerations including, but not limited to, integration of transit into the (Upper Canada Mall) site and/or between this site and the Yonge Davis Rapidway, the GO Bus Terminal and GO Train Station in accordance with the Metrolinx Mobility Hub Guidelines.
We know from correspondence published as part of the Secondary Plan process that the owner of Upper Canada Mall (Oxford Properties Group) had been in touch with Newmarket planners for many months beforehand urging the Town to ensure that UCM was removed from the Secondary Plan process. Oxford was in the process of preparing its own Master Plan for Upper Canada Mall “which would guide its future evolution.”
Why did the Town’s senior planners boycott the OMB Hearing?
Is it not truly remarkable that not a single planner employed by the Town of Newmarket attended the OMB Hearing on Glenway, despite the high stakes for all concerned? The hearing reportedly cost Newmarket taxpayers around $800,000.
The Town’s Director of Planning, Rick Nethery, should be asked why.
If the Town’s senior planners had attended the Hearing they would not have been able to sit on their hands while statements they knew to be untrue or misleading were being put to the adjudicator. We need to know why they stayed away.
The Glenway file was, of course, being handled by Ruth Victor, a planning consultant brought in from outside. This allowed the Town’s planning staff, complaining of overload, to concentrate on the Secondary Plan. Perhaps the Director of Planning simply left things to Ruth Victor. Perhaps he agreed with her view that Glenway was ripe for development. Perhaps he did not want to embarrass his employer, the Town of Newmarket, by being candid in front of the OMB. Were they advised to stay away? If so, by whom?
In any event, the attendance or otherwise of senior planning staff at the OMB Hearing must have been discussed at Mulock Drive.
The OMB Written Decision
The adjudicator, Susan Schiller, is vice chair of the OMB and her written decision was, if I am honest, a bit of a disappointment. There is little in the way of closely argued reasoning. Instead, we get terse statements on what various planning policies really mean and how the Town and Glenway failed to appreciate the obvious. As with all OMB Hearings, there is no transcript allowing us to go back and refresh our memories of what actually happened.
We are also told the long delay in delivering the written decision was the result of “technical errors” in the proposed Zoning By Law Amendment. Both Marianneville and the Town advised the OMB these required correction and these went to the Board in September 2014. Why this leisurely approach?
The OMB written decision closes one Chapter but opens another. Glenway should become a case study on what is wrong with our broken planning system.
The Board itself, of course, is now under review.
In her mandate letter of 25 September 2014, Premier Kathleen Wynne, told Municipal Affairs Minister, Ted McMeekin:
“Your ministry’s specific priorities include… leading a review of the scope and effectiveness of the Ontario Municipal Board (OMB). Working with the Attorney General and key stakeholders, you will recommend possible reforms that would improve the OMB’s role within the broader land use planning system.”
The Minister's priorities also include:
“Supporting the development of sustainable, transit-friendly complete communities by amending the Planning Act and Development Charges Act to improve land use planning and encourage smarter growth, with these amendments ensuring respect for local official plans and decision-making, generating more growth-related revenue for transit, requiring that citizen input is considered in the land use planning process and having the effect of reducing the number of applications to the Ontario Municipal Board.”
The Town should actively participate in this review. In last month’s municipal election, the re-elected Mayor, Tony Van Bynen, promised the voters he would
“bring real change to the Ontario Municipal Board and the planning process”.
In his election campaign literature, Plan for Newmarket’s Future, Van Bynen writes:
“Bringing reform to the Ontario Municipal Board and the Planning Act to ensure our residents have a say in shaping their community will be a priority in the next term. Our Council’s decision to fight for Glenway and defend our Town’s official plan was the right thing to do. I will be working with the Association of Municipalities of Ontario and a number of mayors to meet with the Province to bring about real change to the municipal planning process.”
This should involve a candid appraisal of the Mayor’s own role. Did he simply let the Town’s professional planners get on with it, leaving crucial decisions to them. Was he a spectator or did he actively try to shape events?
The residents of Glenway have been badly let down by the Town which, to our great cost, fumbled the ball.
For its part, the OMB was not given the whole picture which is why I am requesting a formal review of its Glenway decision.
October 2014: The Town quietly makes an approach to Marianneville to see if the developer would “entertain an offer” to sell the Glenway West lands.
September 2014: How the Glenway Hearing was seriously misled. This gives the chronology in outline. It shows how key information on transit was never put before the OMB Hearing.
September 2014: Regional Councillor John Taylor blames the OMB, not the Town’s approach. In fact, the performance of the Town’s hired counsel fell far short of what was required. Her performance was lamentable.
August 2014: I write to the OMB adjudicator, Susan Schiller, telling her that the statement by Marianneville’s lawyer, Ira Kagan, that there was not “a shred of evidence” that the GO Bus Terminal at Davis Drive West could be moved was wide of the mark.
July 2014: There is still huge uncertainty about Newmarket’s future population growth. The Town’s planners make a last-minute change to the methodology when presenting the final revised draft Secondary Plan to councillors for approval.
June 2014: Regional Councillor John Taylor hopes to make the Town’s Secondary Plan “OMB proof”.
June 2014: Senior Planner, Marion Plaunt, tells councillors York Region wants a re-write of the Draft Secondary Plan as “the proposed height and density (particularly on Davis Drive) may not achieve the planned intensification along the rapid transit corridor”.
June 2014: We learn the future of the GO Bus Terminal on Davis Drive will be the subject of a “fulsome analysis” by Metrolinx.
May 2014: With the election looming, what do the Parties say about the future of the OMB?
May 2014: What went wrong at Glenway? What directions did the Council give to Mary Bull (the Town’s outside counsel) giving her authority to negotiate and settle with Marianneville’s lawyer, Ira Kagan?
April 2014: At a special meeting on the Draft Secondary Plan, Senior Planner, Marion Plaunt, talks about the Mobility Hub Study that could integrate the GO Bus Terminal and the GO Rail Station and “whether they should naturally be joined at some point, at one location”.
April 2014: Town agrees to hold a “Glenway: Lessons Learned” meeting.
April 2014: On 22 April, councillors met to consider a report on the agreed settlement with Marianneville. John Taylor blames the OMB where “the majority of fault” lies. The Glenway Preservation Association says it feels completely ignored.
April 2014: Councillors are told the agreed settlement will give the developer 742 residential units compared to the 730 Marianneville originally wanted.
April 2014: The Town’s planning staff – not the councillors – are calling the shots and running the show.
April 2014: Newmarket embraces Marianneville. The Town looks set to do a deal with the developer and decide the future of Glenway behind closed doors.
April 2014: Is Glenway being hung out to dry? The well meaning and reassuring statements in the Town’s Official Plan about protecting stable residential areas are not worth the paper they are written on.
April 2014: Glenway and the GO Bus Terminal. Much of Glenway is within 500 metres of the Bus Station and Marianneville claims it is, therefore, ripe for intensification.
March 2014: Glenway and Rick Nethery. John Taylor tells the Council, it put forward the strongest arguments it could to the OMB. Not true. Newmarket’s top planners boycotted the OMB Hearing throughout.
The OMB Hearings
March 2014: OMB Adjudicator, Susan Schiller, delivers her oral decision. She scolds the Town for not allowing the Marianneville’s Glenway lands to be included in the Secondary Plan area. The Town’s planners turned down Marianneville’s request as the matter was then before the OMB.
March 2014: Glenway's planning expert, Nick McDonald, is grilled by Mainneville’s wide boy, Ira Kagan.
March 2014: Kagan vs Bisanz.
March 2014: Day 1 of the OMB Hearing. The Town’s outside expert planner, Ruth Victor, gives her evidence, fatally undermining her employer's position.
March 2014: Glenway steels for battle.
December 2013: The OMB Pre Hearing. As an advocate for the Town's position on Glenway, Ruth Victor proves to be a disastrous choice.
November 2013: Councillors back Glenway residents.
November 2013: Glenway and the big bribe.
October 2013: Too often our councillors come across as bystanders who have ceded control to the professional planners.
August 2013: The developers publish their Glenway Settlement Offer.