Newmarket councillors have decided to negotiate a settlement with the developer (292145 Ontario) who plans to build 28 townhouses on protected meadowland sandwiched between a hydro corridor and the GO rail tracks.

While withdrawing their opposition to the development at Monday's council meeting, councillors say there will be no land transfer to the developer unless he reciprocates with some kind of “significant” community benefit. What this may mean is, as yet, unclear. The OMB Hearing on 28 September will be told the Town and the developer want to do a deal.

Our hands are tied

Each in their own way, councillors who speak tell us their hands are tied. The Conservation Authority has changed its mind. The Ministry of the Environment allows developments near railways providing there is appropriate noise mitigation. Councillors are told we don’t know if the GO tracks through Newmarket are going to be twinned. They say they would lose at the OMB and the cost of going – at $100,000 to $150,000 – is prohibitive. JohnTaylor suggests it would be self indulgent to go to the OMB knowing there is a zero chance of winning.

In fact, councillors have been seriously misinformed. It has been clear for months – in publicly available documentation and in the words of the project manager himself, Greg Percy - that the entire Barrie line will be twin tracked. This has major implications for the Town which should be developing urgently a strategy for dealing with residential and other developments in close proximity to the GO tracks.

It astonishes me that the Town’s entire top management team is unaware of the twin tracking policy that has been reported to the Metrolinx Board on many occasions over the months. Yet the Mayor congratulates them all for giving him good advice.

Railway corridor widening

The recently published Guidelines for New Development in Proximity to Railway Operations (see Note 3 below) says it is imperative that factors such as future/planned corridor upgrades and future corridor expansions are taken into account using ten year horizons. It is clear our Town has not even begun to think about the consequences of Regional Express Rail and is waiting passively to be told what to expect. Key information is already out there.

Twin tracking has implications for the proposed Silken Laumann development. It could dramatically reduce the distance between the railway corridor and the new Townhouses necessitating a complete redesign of the development.

Metrolinx said a safety berm was not needed. But were they looking only at today’s single track and not tomorrow’s twin track? (I don't know as, bizarrely, I am not allowed to see the documentation without the developer's permission.)

Will there still be no need for a safety berm if the distance between the railway corridor and the new Town houses shrinks? And what would the impact of a re-design be on the storm water management facility that is part and parcel of the proposed development?

Who knows?

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Note 1: You can see who said what and why in the video of the Council meeting here, starting 20 minutes 30 seconds in.

In my brief seven minute presentation I make the following three points:

(1)  the development would be on protected meadowland  as shown in the Official Plan. Meadowland is home to the Eastern Meadlowlark and the Bobolink. Both are threatened by loss of habitat.

(2)  The development is very close to the railway which is going to see increased train traffic. The noise and vibration study was carried out in 2013 - before the Provincial Government made its announcement on all day two way trains on the Barrie Corridor. We know there will have to be twin tracks and overhead catenary for electrification and the corridor may have to be widened. This could mean a further loss of habitat.

(3)  The development will be close to the proposed site of the new GO rail station at Mulock Drive. If it goes ahead land will be needed for the station itself and parking. We don’t know how big the footprint will be. The Town’s Official plan says on page 103, the “conceptual Future Rail Station” at Mulock Drive is not intended to be specific and the identification of the final location will be subject to the applicable process. But getting Regional Express Rail up and running is a policy imperative for the Provincial Government.

Note 2: Who said what

The Ward Councillor, Tom Vegh, told us he would accept the staff recommendations on the proposed development, save one.

“Council does not agree to a land transfer unless a significant community benefit is achieved and this is subject to Council approval.”

In explaining the Council’s reasoning, Vegh said this:

“Just to give a little bit of history for our audience here. Back on September 4 of last year, the developer filed an application to the Ontario Municipal Board to allow 28 townhouses to be built on the western terminus of Silken Laumann Drive between the hydro corridor and the railway tracks.

"I want to make a commentary now regarding the railway tracks. One of the reasons I continue to oppose this development was its proximity to the railway tracks. The number of trains moving up and down this corridor will only increase. Living that close to the tracks will have a significant negative impact on the quality of life of those new residents.

The noise is infrequent and predictable says Tom (That's going to change)

"Unfortunately, and we have to live within the law, the Ministry of the Environment – and we can be as disappointed about this as we like but it is the law – the Ministry of the Environment allows this type of development because the noise and vibrations are infrequent and predictable. And Provincial legislation – we can be disappointed in this - trumps municipal noise by-laws.

"The OMB would not accept the argument that we didn’t like it because it was too close to the tracks. Because the Ministry of the Environment allows it. We just have to clear about that.

"When this first came to us the Lake Simcoe Regional Conservation Authority had a lot of concerns and opposed this development based on the impact it would have on the area identified as Meadowland 2 and that is located in the far north side of the development site. And based on the opposition of the Lake Simcoe Region Conservation Authority, Newmarket Town Council also had concerns about this development. However, subsequent to the OMB application, the Conservation Authority withdrew their opposition conditional on the developer re-creating the meadowlands in question which the developer has agreed to do at their own expense.

"The options the developer has is to re-create these meadowlands on their own property which would cost them possibly, if they want to do this, two or three building lots. The full analysis has not been done so these numbers are speculative. Or they have the opportunity to access – we are talking about an easement not ownership now – a part of Town property immediately adjacent to the development site on the north side. And what we are talking about on the development site is about approximately 0.3 acres so it is a very small portion.

The Town's OMB case has collapsed says Tom

"However, as a direct consequence of the LSRCA withdrawing their objection to the development the Town’s OMB case has collapsed. Staff did inform Council of that fact back on 31 August and also we were informed it would be a significant amount of money to go to the OMB - $100,000 to $150,000 for a one week OMB case. However, we did ask though, at that meeting back on August 31, I did ask and move that Council defer its decision on what we were going to be doing until we had seen legal and other expert advice on our options. And that deferral was accepted and we met this evening at about 6pm and you’ve heard the motion.

"We really only had a few options available to us. One is to continue with the OMB Hearing without the Conservation Authority support and we probably wouldn’t be successful with that. It would cost us a lot of money. We can work towards Minutes of Settlement at the Hearing and negotiate with the developer to allow him to re-create the Meadowland 2 lands and have an easement on the Town property to do that. And then perhaps have receive some additional compensation that would be directed to a community benefit. Or we can just say no to the developer and force the developer to protect the meadowland on their own property – which doesn’t stop the development. And there would be a cost to the developer in doing that.

"We are not certain what that cost would be but there definitely would be no community benefit. It is for that reason – the limited options we have available to us – to say no to the developer unless there is a significant community benefit achieved and whatever we do achieve we will come back to this Council for approval.”

Tom Vegh is followed by Regional Councillor John Taylor.

John Taylor: “I have a question for staff first before I make comments. The thing I heard on the deputation that I don’t believe is addressed in the report – and I could be missing it at the back again -  but we’ve spoken to the Ministry of the Environment, the Lake Simcoe Region Conservation Authority etc but (it was) stated that the tracks will be twinned.

"I think Mr Prentice is aware it is not twinning the entire tracks (just) portions of tracks in different areas, but we don’t know where necessarily yet but have we… did we speak or seek to speak with Metrolinx or the railway, the railway itself or whoever has the approval authority over that to see if there is an issue around that being a potential area for twinning or, as was stated, the impact of what electrification means to space requirements. Has that ever been sought?"

Commissioner Peter Noehammer: "I don’t believe those specific questions have been asked of Metrolinx although I am aware that many of those details are not available yet. We have as a Town requested more information from Metrolinx on the Regional Express Rail business case that they are advancing at the moment and a lot of those details with respect to twinning of tracks are not available yet. So, you know, I think we just don’t know the answers."

John Taylor: "I have to admit I am surprised and I am not sure it is Metrolinx or the railway itself. I am not sure if there are different railways involved and rail lines but I do not know who has exact approval authority over what aspect of that. I am surprised that they aren’t at this moment… they’ve not reached out to municipalities and said we’d like to know if there is something being contemplated. Typically, in the Region, if we are planning a project we start to protect the needs of that project, the minute we have it on our books. Is there any outreach of that nature?"

Chief Administrative Officer, Bob Shelton: "Not that I am aware of. I think we did get the comment from the railways regarding the berm and a safety berm not being required. But that did come from Metrolinx so we didn’t have any further comment from Metrolinx beyond that.

John Taylor: "I assumed… One thing I would suggest is that regardless of what occurs here, at the very least we should make the authorities involved aware so they have the opportunity. I don’t know if it is too late to participate or at least approach the OMB about this. Or approach ourselves so that there is some dialogue over there. Some opportunity. I guess we could make it subject to that but I don’t think we have the authority. We can’t speak for Metrolinx or the railway authority so I don’t know that we should be protecting land for them. I guess Mr Shelton I’d like to hear some thoughts on how we could accommodate for this concern.

Bob Shelton: "If I could just add maybe more generally. Metrolinx and York Region reps have been meeting for some time on details on various issues where the track is going to be twinned; (the) issue of the elimination of level crossings and so on. That is taking place and there is a report to Regional Council which – correct me if I am wrong – was last week. The Commissioner indicated we will have Metrolinx attend Council as well and I think if we timed that such as it would take place after the Regional presentation. There is a whole process that they are going through right now in terms of finalising the extent of the electrification and the track twinning. Insofar as this one is concerned, I think Council could direct us to make contact with Metrolinx to see if we can get any additional information. But I think at the end of the day, it still comes down to whether they are meeting the requirements for building within proximity of the tracks. And there are building conditions that deal with that.

John Taylor: "One more question then on that topic. Would it be your understanding that Metrolinx or the railway itself or whoever has the authority… Would they have the same ability as us when it comes to public capital projects, if they became aware in three months they would have the right to expropriate lands, however that impacts the development, they would have that right I assume just as we do.

Bob Shelton: "That is the case. As a public agency they would have that right.

John Taylor: "At the very least I would.. I think it (should be) a direction to staff. We at least make them aware of the potential impact so they can take the steps they need to.

"My comments on this one are that the lessons learned is a phrase that has been used quite a bit recently. The clear, simple state of things here is that we have the Ministry of the Environment, the Conservation Authority in particular and a staff report now saying this can proceed. I think those who have followed past topics of a similar nature and different developments in the Town or other places know full well that this – I would deem it is not great planning, between a hydro corridor and railway tracks – our chances of succeeding at the OMB in face of various positions taken by the Ministry, the Conservation Authority etc would be beyond tiny. I believe it would be virtually non-existent and that’s based upon my experience but that’s what we have to go on as members of Council here.

"We could choose to make passionate statements and say we are going to stand our ground but we have to come to a conclusion that is in the best interests of residents. And I know some will groan and some will say how can this be in the best interests of residents? Well, I truly believe the chances of success here is essentially zero. Then spending money at the OMB would not be in the best interests of the public.

"Secondly, not pursuing or being open to the possibility of a significant public benefit, perhaps even significant environmental benefit, meadowlands etc. I would be foolish not to be open to hearing that. But I do want to be clear. What we are authorizing here is simply hearing about that. Not authorizing anything else. It will have to come back to Council and we will have to weigh whether this is a significant benefit. But if this is going to go forward plus or minus two units, a 28 or 26 unit development impact on the community is virtually identical. And the amount of impact on meadowland - it is only an easement not a handover and will be used for drainage and for grading - will be virtually non-existent.

"If we can find another significant gain that is more than non-existent – then that is meaningful environmentally because this is an environmental issue at its core. I think we at least have to hear what that is and that is why I will support the motion in front of us. To authorize staff to bring back to us any potential community benefit because frankly we are not going to succeed at the OMB. Period.

"That is my opinion and I am entitled to my opinion. And we have to try to and at least be open to securing another environmental benefit for the community at large and in the neighbourhood in part. So I’m certainly open to hearing what may come forward. That doesn’t mean we are accepting anything but that’s where this direction and this motion takes us.”

Mayor Tony Van Bynen: “I’ll just make one observation that came out of the lessons learned. One of the comments made is that it is not a question of like or don’t like. It is not a question of agree or disagree. It is a question of compliance with the requirements of the Planning Act and the related Provincial legislation. These decisions come before the OMB and we’ve received good advice from our staff and for those reasons – in addition to those items that have been raised here in Chambers – I shall also be supporting those recommendations.”

Note 3: In the Guidelines for New Development in Proximity to Railway Operations (Federation of Canadian Municipalities and the Railway Association of Canada, 2013) we read:

It is imperative that details of the railway corridor (or other facility) itself also be evaluated in order to properly determine the potential conflicts associated with a new development in close proximity to railway activities. At a minimum, (among) the factors to be considered are current and future estimated usage and growth in patronage (10 year horizon); details of any future/planned corridor upgrades/works, or any protection of the corridor for future expansion, where no plans are in existence…

Appendix C on noise and vibration. The report should include a summary of the rail traffic data, including correspondence from the railways.  (The developer’s noise and vibration study was done in 2013, well before the Provincial Government’s all-day two-way GO train announcement in 2014 which envisages a huge increase in train traffic and twin tracking on the Barrie line.)