Read this first. As everyone who has been following the Clock Tower saga must know I am not a lawyer nor am I a pretend lawyer. I believe people who have a story to tell should be allowed to tell it in their own way without having to fork out $10,000 for a lawyer to tell their story for them. But, that said, I concede that sometimes lawyers are necessary. And here is one instance...
Report-Back Newmarket councillors who are meeting tomorrow in the Committee of the Whole will likely get a report-back on Wednesday's Clock Tower OMB pre-hearing from the Town's affable counsel, Leo Longo (right). Curiously, there are now two developments for the Clock Tower before the Board - Options A and B.
They should ask him if there is any possibility of success in bringing forward to the OMB a motion to dismiss Forrest's appeal without a hearing.
Forrest is bad karma
Forrest filed his appeal on 14 December 2016 claiming his development represented "good heritage planning and good planning in general". His appeal, unchallenged by the OMB adjudicator, Blair Taylor, looks likely to drag on well into 2018. If it takes this long to get resolved, serious damage will be inflicted on Newmarket's Historic Downtown. Boarded up retail units, painted black, are bad for business.
The second edition of Bruce Krushelnicki's "Practical Guide to the Ontario Municipal Board" tells me:
"One of the most important and difficult motions that may be made prior to a full hearing is whether a Board hearing should take place at all."
Section 45 of the Planning Act allows the OMB to dismiss an appeal if it believes the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the plan or part of the plan that is the subject of the appeal could be approved or refused by the Board.
Jurisdiction of the Board
We know the Clock Tower (Option A) cannot be built because Forrest needs Town-owned land. Put simply, M'Lud, does it makes sense (in terms of public policy) for the OMB to press ahead at great expense in time and public money and decide an appeal for a building that cannot be built. As it happens, this is one of the issues coming up tomorrow at an OMB Hearing in Richmond Hill.
"Does the Board have jurisdiction to approve a draft plan of subdivision that shows any aspect of the appellant's proposed development (including a road allowance) on lands which are not owned by the appellant?"
Section 45(1) of the Planning Act allows the Board to:
"dismiss all or part of an appeal without holding a hearing if, in the Board’s opinion, the application to which the appeal relates is substantially different from the application that was before council at the time of its decision".
Krushelnicki tells us this section of the Planning Act addresses:
"a long held criticism by the municipal sector that an application could be very substantially revised after the appeal is set, and the Board in effect would be dealing with a matter that the municipal council had not had any chance to consider in the first instance".
It seems to me from a layperson's perspective that Option B is a very substantially revised version of the application under appeal. We are told there is now no requirement for Town-owned land yet every previous iteration of the Clock Tower development going back to June 2013 and perhaps even further required Town-owned land. To pretend, as Forrest's lawyer does, that this is simply an inconsequential modification of the original is absurd. Kagan told us on Wednesday Option B looks the same as Option A "from the outside". This is risible.
Abuse of process
Krushelnicki says it has always been the case that the OMB could dismiss appeals that it considered improper or an abuse of process. It is as plain as a pikestaff - at least to me - that this is an abuse of process. But the OMB adjudicator, Blair Taylor, did not see it this way so I could be missing something here that is only discernible to those schooled in the law.
"The Board exercises a broad discretion to dismiss an appeal without a hearing. It will exercise this jurisdiction with care and attention to the statutory right of applicants to object to a proposal (or to a lack of decision) and balance this against the prospect of an expensive hearing that will take time, cause delay and take up valuable resources."
"While the body of (decided) cases may provide some guidance as to how the Board should act in certain circumstances, each case must be assessed on its own merit. What is certain is that motions to dismiss form one of the more difficult determinations that conscientious Board members will make, and requires a careful and balanced consideration of what is both fair and practical."
So there we have it.
Option A - the original application which was decisively rejected by the Town of Newmarket in a unanimous vote on 5 December 2016 - simply cannot be built.
Option B, sprung upon the Board's prehearing with no notice, is a very different animal from Option A, insofar as we can tell. We have some drawings and elevations but no supporting documentation.
Mr Forrest is making it up as he goes along. It is an abuse of process and the appeal should be dismissed.
M'Lud, I rest my case.
From the Planning Act
Dismissal without hearing
(45) Despite the Statutory Powers Procedure Act and subsection (44), the Municipal Board may dismiss all or part of an appeal without holding a hearing on its own initiative or on the motion of any party if,
(a) it is of the opinion that,
(i) the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the plan or part of the plan that is the subject of the appeal could be approved or refused by the Board,
(ii) the appeal is not made in good faith or is frivolous or vexatious,
(iii) the appeal is made only for the purpose of delay, or
(iv) the appellant has persistently and without reasonable grounds commenced before the Board proceedings that constitute an abuse of process;
(b) Repealed: 2006, c. 23, s. 9 (10).
(c) the appellant has not provided written reasons with respect to an appeal under subsection (24) or (36);
(c.1) the appellant intends to argue a matter mentioned in subsection (25.1) or (37.1) but has not provided the explanations required by that subsection;
(d) the appellant has not paid the fee prescribed under the Ontario Municipal Board Act; or
(e) the appellant has not responded to a request by the Municipal Board for further information within the time specified by the Board. 1996, c. 4, s. 9; 2006, c. 23, s. 9 (8-10); 2015, c. 26, s. 18 (19).
(45.1) Despite the Statutory Powers Procedure Act and subsection (44), the Municipal Board may, on its own initiative or on the motion of the municipality, the appropriate approval authority or the Minister, dismiss all or part of an appeal without holding a hearing if, in the Board’s opinion, the application to which the appeal relates is substantially different from the application that was before council at the time of its decision. 2006, c. 23, s. 9 (11).