Back Story: The developer, Bob Forrest, wants to build a seven storey apartment building in the heart of Newmarket's old downtown, a heritage conservation district with a three storey height cap. To make his project work he has to demolish historic commercial buildings including one on Main Street South dating from 1844 where the first female pharmacist in Ontario ran her apothecary. At the OMB pre-hearing on 3 May 2017, Bob withdrew the application that had been turned down by the Town on 5 December 2016 and substituted a very different Option B. The list of Parties has since thinned out with Trinity United Church withdrawing and the Architectural Conservancy of Ontario dropping back from putative Party status to Participant.
This morning's second pre-hearing at the Municipal Offices in Mulock Drive is supposed to settle the so-called "issues list" - the various matters of dispute or contention brought forward by the Parties which will be considered and examined during the OMB Hearing proper, when it eventually gets under way.
We are still in the warm up phase.
About forty people are squashed together in the Cane Room with the part-time OMB adjudicator, Laurie Bruce, presiding. She is an environmental planner by trade who trained as a mediator.
The Issues List
Now the lawyers are on to the issues. Fortunately, I have a copy of the list in front of me and I can follow what is going on. But for everyone else, below the salt, they have nothing in their hands. Why not project the issues list page by page up on a big screen so everyone can see what the lawyers are jousting about?
We spend an hour amending this and amending that. Striking some issues out. Consolidating others. At one point Bob's lawyer, Ira Kagan, tell us:
"I don't think I am going to pursue Clergy"
which sounds like an arrestable offence.
But the clergy principle frequently surfaces in planning matters. Should a proposed development be judged according to the planning regime in place at the time it was submitted or by current standards?
The Heart of Newmarket wants to know more about the heritage attributes of the Clock Tower.
Kagan shakes his head dismissively and says the Clock Tower's heritage designation has been in place since 1995 and is not being changed through the zoning appeal.
The Town's counsel, Leo Longo, takes us to Regulation 0906 or is it Regulation 0609. He says he is not sure which. (I love that languid approach. Kagan, by contrast, is a tightly coiled spring.) We learn there are very specific heritage attributes introduced in 2006 that go beyond the 1995 ones.
The adjudicator wants to know if the wording can be tweaked. And, magically, the lawyers agree on the formulation:
"Does the Heritage Conservation District Plan under appeal appropriately address the heritage attributes of the Clock Tower."
They smile. Job well done. Everyone is happy. The box is ticked and they move on.
Now Leo Longo helpfully suggests that many similar issues identified by the Heart of Newmarket can be rolled up into the Town's catch-all issue 10 which simply asks if the development conforms with the Town's Heritage Conservation District Plan and By-law.
No problem. Everyone agrees. Things are now rattling along.
The Elephant in the room
There is one humungously important issue that doesn't even rate a mention - at least not in plain English.
The Town's issue 21 asks if any approval of the development would be premature given that the Town claims ownership of some of the land Bob needs for his Option B. The Town is going to the Superior Court on 15 November 2017 to ask for a ruling on who owns the land - Bob or the Town.
Longo mysteriously refers to this as
"a certain event"
as if he cannot bring himself to talk about the Court action. It is almost Masonic.
I learn Longo and Kagan have talked about this between themselves. They expect the Judge to deliver a decision in record quick time, having heard their submissions and legal argument. So we could know by December or perhaps January who owns the land in question.
I hear Kagan say, in a matter of fact way, that if the Town wins then Bob will simply redesign his apartment building, ending up, presumably, with an Option C.
I scream silently.
This perfectly illustrates the lunacy of a planning system which allows the OMB to consider appeals for a revised development (or, possibly, in this case a revised revised development) which is light years away from the original application that was submitted to the Municipality and rejected.
Getting on with their lives
Now the lawyers are consulting their diaries. A telephone conference in February 2018 followed by the OMB Appeal Hearing proper from 7-27 August 2018.
No wonder people give up and move on with the rest of their lives. Professional lawyers and planners who earn their living doing this stuff can afford to have cases stretch over many years. But most folk can't stay focussed on an issue for years at a time. And it is totally unreasonable to expect them to do so. But the system rewards those with staying power and deep pockets - the developers and the professionals who feed off them.
The rest of us pay the price in boarded up shops and lifeless derelict blocks, blighting towns across Ontario.
The Clock Tower saga shows how desperately we need reform of the OMB.
But, in the interim, why can't the Province just increase the number of adjudicators?
A small simple step to save us from the madness of faraway OMB Appeals that lie way over the horizon.