Bob Forrest's Clock Tower appeal to the OMB is now just three weeks away and it mystifies me how we got this far. The appeal has no merit. The whole thing is a complete pantomime.
The OMB should dismiss the appeal without a Hearing on the grounds it is a pointless waste of time which will cost the public purse hundreds of thousands of dollars that can be better spent elsewhere.
The Pantomime Villain
So, to start at the beginning. An applicant can put in a planning application which covers land that he or she does not own - and this is precisely what Bob, the pantomime villain, did.
But now the Town has made it crystal clear that its land will not be sold, leased or otherwise traded to facilitate a project which the Town has turned down.
Almost a year ago, on 25 April 2016, in an open session of Council, Regional Councillor John Taylor said:
"The Council this evening is making sure it is clear to everyone that the sale or transfer of land can only occur in relation to a Council approved and endorsed development at the end of a full planning process and only after the project has significantly been advanced."
The Planners Pronounce
The Town's planners gave their interpretation of the meaning of Taylor's words in the Committee of the Whole Report (2016-25) of 28 November 2016. It is worth quoting in full:
"On April 25, 2016 Council directed that the Town prohibit the sale or transfer of land in relation to the Clock Tower site unless in relation to a Council approved and endorsed development (the "Development") and only after the project has significantly advanced. Staff submits that this process may be effected through the inclusion of several terms and conditions in any proposed sale agreement between the Town and the Developer.
These terms and conditions may include the following collectively:
* Any zoning by-law amendment for the Lands is approved by Council.
* A site plan application for the redevelopment of the Lands is submitted and approved by Council.
* A site plan agreement for the redevelopment of the Lands is executed and related securities are deposited.
* The demolition of applicable buildings on the Lands, in accordance with accepted heritage conservation practices, to facilitate the site plan
* A record of site condition for the Lands, as described below, is completed and filed in accordance with provincial environmental protection regulation and the Town's official plan.
An environmental record of site condition summarises the environmental condition of a property and is based on the completion of environmental site assessments. The work required to effect such a record will ensure that the site has been made suitable for the Development.
Staff submits that the above-noted measures would evidence the advancement of the redevelopment of the Lands and would require significant investment of funds prior to any transfer of Town lands.
It is a fantasy to believe any of these things would now come to pass given the Town has rejected the Forrest application.
Even Forrest's cheerleader-in-chief, Tony Van Trappist, is having second thoughts. Van Trappist mistakenly took us all for fools when he declared in April last year that Forrest's Clock Tower was just the kind of intensification the old downtown needed. But by 5 December 2016 the old banker was telling us:
"My reason for denying the application is because I supported Staff and its recommendation. I don't think that the original application itself should be approved."
The Ontario Municipal Board has powers to dismiss all or part of an appeal without holding a Hearing, on its own initiative or on a motion of any Party, if it is of the opinion that:
"the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Board could allow all of part of the appeal."
As I have said repeatedly, the Clock Tower in the form submitted to the Town - and now going to the OMB on appeal - simply cannot be built. The plans, drawings and studies all relate to a building which requires Town owned land to be built and that land is not forthcoming.
It would be lunacy beyond words for the OMB to allow this appeal to proceed. Hundreds of thousands of dollars of public money would be spent on resisting Forrest's ludicrous appeal for a building that is never going to be built. The OMB cannot force the Council to make its own land available to Forrest.
The Glenway OMB Hearing cost the Town $588,291 - and that was for a half hearted effort involving under-briefed Counsel and a boycott by the Town's own Planning staff. The Clock Tower is different. With the exception of Van Trappist, our other elected officials give every impression they want the Town to win at the OMB. The money that may have to be spent on the Clock Tower OMB Hearing will be money well spent, but, undeniably, it comes at a cost.
During the recent debate on councillors' remuneration, Taylor referred to the programmes that would be at risk if councillors voted to remove their tax free status. It would have an impact of around $100,000 on the Town's budget
"yet as we know in the past year we struggled over a $25,000 figure over whether we could sustain the planting programme at some of our facilities at some of the entrances to our communities."
Agreement in Principle
So why is Bob doing this? Is there some kind of agreement in principle between Forrest and the Town that gives Bob encouragement?
On 5 September 2015, Bob told his business colleagues - the people who help finance his developments:
"Bob Sheaffer is drafting the land swap agreement. When we are happy with it, it will be reviewed with the Mayor and senior staff, then we must go before Committee of the Whole, in camera, to seek their blessing on it. We already have their agreement in principle."
The Town steadfastly refuses to disclose details of this alleged "agreement in principle" but, if it exists in some form, Taylor clearly doesn't think it amounts to much.
Not for Sale
I've urged Taylor to take another motion to Council to declare the Town lands in Market Square, above and below ground, are not for sale. The lawyers would say this is required for the avoidance of doubt. He tells me it is not needed.
There is a strange precedent involving Forrest himself. On 19 June 2014 Bob placed an ad in the Globe and Mail putting the Clock Tower up for sale. Clearly, no-one took the bait and, eleven months later, he was approached by a local businessperson who asked if the property was still up for sale.
The mendacious Bob breezily told him:
“The building is not for sale and never has been.”
That's what I want to hear the Town say. In similar form.
"Our lands are not for sale and never have been."
The 25 April 2016 debate. View here at 1 hour 4 minutes in:
Moved by John Taylor and seconded by Joe Sponga.
(a) That Corporate Services (Legal Services) Closed Session Report 2016-05 dated 25 April, 2016 regarding a proposed or pending acquisition of land in Ward 5 be received;
(b) And that the recommendations in Corporate Services (Legal Services) Closed Session Report 2016-05 as amended, be adopted;
(c) and that the Council of the Town of Newmarket prohibits a sale or transfer of land in relation to the Clock Tower site unless in relation to a Council approved and endorsed development and only after the project has significantly advanced and that staff report back on the exact mechanism for ensuring this process.
Regional Councillor John Taylor: I think as many people are aware there is... and it (the issue of Town land needed by the developer) has been in the public domain going back as far as 2013 when there was a report, 2013-35 of the Planning and Building Services Report, that referred to and I think I'll read it just to...
That the proposed sale contemplates the conveyance of a parcel of Town-owned land in the North East corner of Market Square and the process... the proposed 2 storeys of underground parking would extend further under the existing library parking a portion of the Market Square parking lot.
And so, for some time, there's been a public recognition that the Clock Tower development may require a small portion of Town land either above or below the ground. The Council this evening is making sure it is clear to everyone that the sale or transfer of land can only occur in relation to a Council approved and endorsed development at the end of a full planning process and only after the project has significantly been advanced.
I feel that this is the Council's way of making it abundantly clear to people that we understand, as I think many people understand, that this is not like most planning applications that are easily appealed to the OMB because we have some ownership of some land that may be required for development and this development. That, in essence, gives us a form of potential - and I'll only say potential - veto and so we are making sure that we are being clear with the public because there has been some speculation. That we understand this and we are protecting that right and that option in relation to a sale of land until after a full process has occurred and only in the case of a Council approved and endorsed development.
And we go on to state that only after the project has significantly been advanced. The reason this is important is because if, and only if, and this is far from anyone knowing where this is going but if Council supports a plan, any plan now or in the future, if the sale of land or transfer immediately following that approved plan it's possible that a proponent - a current proponent or a future proponent, could then take the deed of any land that may or may not be transferred and re-apply or sell the land and you would have a new application on your hands perhaps a greater application and you would no longer have control over the land which represents Council having a significant control in the outcome of the development.
So Council is ensuring not only that land cannot be transferred until after the development is approved and endorsed through the regular planning process by this Council but also until the project has been significantly advanced to ensure that we will not be facing a re-application for a new development by a current or a different owner subsequent to the transference of land.
So I think this again has been in the public domain for some time. This is a potential possibility and we are clarifying at this time for everyone concerned that we understand what that means for this Council and for this Town and that we intend to keep control over that land until we are sure of the outcome of the process and that we are sure this Council supports the outcome as well as advancing the project itself.
So I hope that is clear to people. I know that people were perhaps not entirely clear on the process or where the Council stands or on the process itself and what this land represents and this is our way of providing that clarity.
Councillor Joe Sponga: I would like to add to Councillor Taylor's comments. Well put, thank you Councillor Taylor. But I'd like to add to the fact that there is specific language here that... People have asked at the end of the day if you don't sell them the land they are not going to be able to move ahead with the development. I think we all owe each other to deal in good faith and to uphold the highest standards of ethics possible and so the Town of Newmarket wants to maintain that control but at the same time have the opportunities to explore opportunities and potential projects that benefit everyone, our community as well, and that we can all input and be part of that process.
I think that the language though here is very important for me. It is the language that refers to the endorsement or the approval of the Town of Newmarket. What that means is that we are not going to negotiate this land until Council has either endorsed or approved this development and that clearly, clearly states that it has to be an endorsement and an approval by the Town of Newmarket. Not an endorsement or an approval of the OMB which means that if this unfortunately was to go to an OMB Hearing and the OMB was to rule unfavourably towards the Town of Newmarket we would still not be obliged to give up our land. I think that is a very important tool that Councillor Taylor referred to as control of our lands. We need to make sure we keep that in our back pocket and we need to exercise it in the best interests of our residents of Newmarket. Thank you Mr Mayor.