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Written by Gordon Prentice

Published: 26 November 2015

On Monday 30 November 2015 at Newmarket’s Committee of the Whole, councillors will debate a staff report setting out priorities and objectives arising from the Glenway Lessons Learned exercise.

Ward 7 councillor, Christina Bisanz, has been energetically pressing for this, setting deadlines for staff responses.

Table 1 of the report at agenda item 7 lists the actions to be taken when processing development applications within the Town. But there is one glaring omission. What should happen when top planning staff and councillors disagree on a development application and whether it should be approved, or not?

This is precisely the position senior staff and councillors found themselves in with the Marianneville application to develop the former Glenway golf course lands.

Planning staff boycott

Two years ago, on 25 November 2013, councillors voted unanimously to resist the development and back the residents. Top planning staff then boycotted the OMB Hearing, fatally holing the Town’s case below the waterline.

The OMB Hearing cost the Town $588,291.

To this day, we do not know when the Director of Planning told the Mayor that he could not support the Town’s position. We do not know what the Mayor’s reaction was. Neither Tony Van Bynen nor the Director of Planning, Rick Nethery, spoke about any of this at the Glenway Lessons Learned meeting on 23 June 2015. But the Director of Planning made it clear in the run-up to that meeting that he and his department could not be forced to argue the Town’s case before the OMB if they disagreed with the Town’s position (see below*). Clearly, there must be a protocol or convention that deals with this eventuality and – if it is in writing – it should be published.

Is Glenway a one-off?

All this begs the question, is Glenway a one-off or could something similar happen again? It is not impossible to imagine councillors (either in this council or, perhaps, a future one) disagreeing with their own professional planners over, say, a development in the middle of the Town’s Heritage Conservation District. If the developer appealed, the Glenway precedent suggests the Town’s own planners would boycott the OMB Hearing.

The Glenway Protocol

The “Action Plan” should contain a published protocol. I’d call it the Glenway Protocol.

It should oblige the Director of Planning to inform the Mayor and all councillors as soon as he or she has formed the view that their decision on a development application cannot be supported, setting out the steps that should be taken to ensure the Town’s view is properly and expertly represented at any OMB Hearing, insofar as this is possible in the circumstances.

As we now know, Glenway residents and others were led up the garden path on 25 November 2013 when councillors voted to back the residents. People mistakenly believed the Town and its professional staff would be behind them, 100%.

At that stage they were also unaware that the Town had previously considered buying the Glenway lands, a fact also withheld from the OMB Hearing.

The forthcoming and much anticipated Provincial Review of the OMB will have much to learn from Glenway.

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* In the Glenway Lessons Learned Questions and Answers, published earlier this year, the Town’s Director of Planning wrote in response to the question: Why were no Town staff called as witnesses to support the Town's position at the OMB Hearing?

“Town staff did not play a role in reviewing the application and/or providing a professional planning opinion to Council. Council instead hired an outside planning consultant (Ms. Victor) to, in effect, act as staff on this application and to process the application and make recommendations to Council.”

"Council did not hire Ms. Victor to defend the Official Plan, but rather to process the application and provide a professional planning opinion and recommendations to Council."

"Because staff did not play an active role in reviewing and/or processing the application (other than to provide administrative support to Ms. Victor), staff could not be called upon to provide evidence on the appropriateness of the application at the OMB.”

“In the event Council had not hired Ms. Victor and instead staff had made a specific recommendation to Council, staff’s position at the OMB would have been in support of the staffs recommendations in their professional opinion, and not just to support Council’s position. For example, in instances where Council does not agree with staff recommendations, it cannot then ask staff to defend Council’s decision at the OMB and it must decide whether it wants to hire its own professional planner (as was the case here) to defend its position.”

 (My underlining.)

Details

Written by Gordon Prentice

Published: 22 November 2015

Before the last Municipal election Tony Van Bynen promised reform of the OMB would be the centerpiece of his third term. Van Bynen, told voters he would

“bring real change to the Ontario Municipal Board and the planning process”.

In his 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.”

The Mayor could start his campaign for reform by changing the habit of a lifetime, his attachment to secrecy. He should be completely open with the OMB instead of holding back relevant information from it.

On 28 September 2015 the OMB gave conditional approval to a controversial development of 28 Townhouses on protected meadowland where the Town would make its own land available to allow the development to proceed. Local people are very much against it, as was the area’s councillor, Tom Vegh, although he has now, regrettably, thrown in the towel.

A number of local residents addressed the OMB, expressing concerns about a Townhouse development so close to the railway and a proposed new rail station. (They are the "participants" referred to below.)

In giving conditional approval, the adjudicator, Jan Seaborn, who is also Vice Chair of the OMB, observed:

The evidence from the participants related to the potential for conflict between the development and the railway tracks used by Metrolinx. Safety concerns were paramount in the minds of the participants, three of whom testified. There was concern that a proposed GO Station at Mulock Drive could affect the development and given the proximity be a danger. Noise was also raised given proposals for new tracks in the area.

At no point did the Town tell the OMB that a new GO rail station at Mulock Drive – a stone’s throw from the proposed development - was a priority. At the Hearing the Town staff present made no reference to the station issue nor to any new tracks.

Indeed, the developer’s planner, Gary Templeton, citing the Planning Act, stressed the development was not “premature”. How on earth was it possible for Town staff present at the Hearing not to challenge that bald statement? Of course the application is manifestly premature. The Mayor and the Regional Councillor have been in discussions about possibly acquiring the site at Mulock Drive for the proposed new GO rail station. And Metrolinx will make a decision on the location of new stations on the Barrie line early in the new year. The Town’s solicitor is silent on all this, assuring the OMB that the Townhouse application as it stands represents “good planning”.

Indeed, on 9 November, a mere 42 days after the OMB Hearing,  Mayor Tony Van Bynen tells Leslie Woo from Metrolinx the proposed station at Mulock Drive is “a priority” for the Town.

“In my own mind the difference between a 15 minute and 30 minute service (ie from Aurora to Union Station and from Newmarket to Union during peak hours) doesn’t change the world immensely although I think eventually we’ll need to get there. But I’d rather see us easing into that, responding to the demand as we go forward.”

“But the Mulock Station I think can provide a ton of relief both for the Aurora parking, for the Newmarket parking and create more options. So that’s one item I’d like to see as a priority in terms of creating some solutions for our community and maybe extending the 15 minute service to that point.”

If the Mayor is remotely serious about reforming the OMB and giving residents a say in shaping their community he should inform the OMB that the Town is actively working to get a new GO rail station at Mulock Drive.

And if this was his view at the time of the OMB Hearing in September - that Mulock Drive was always more than a circle on a map - why didn't he simply say so?

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Details

Written by Gordon Prentice

Published: 20 November 2015

Thursday 19 November. To the York Region Administrative Centre for the big debate on whether the Chair should be elected. Today’s Toronto Star says it’s time voters filled the Region’s top job.

The current occupant of the Chair, the jovial Wayne Emmerson, was not even a councillor when his colleagues backed him in a 16-4 vote in December 2014 over Newmarket’s John Taylor.

Regional Councillor Joe Li from Markham has a motion on the agenda, seconded by Whitchurch-Stouffville Mayor, Justin Altman, urging York Region to back Chris Ballard’s private members bill – currently before the Provincial Parliament as Bill 42 – which would require the Chair of York Region to be elected at-large as from the 2018 election.

Outside the building, I see Darryl Wolk pacing up and down, smart phone in one hand and an electronic cigarette in the other. He is preparing for his deputation – one of seven.

Danny Wolk

Now I am inside and Wayne Emmerson is going through the list of deputations, asking everyone – including “Danny” Wolk to get ready.

First up is Michael Thompson, an Aurora councillor. He tells us 43% of the Town’s tax dollars go to the Region so it is quite a big deal who is running the show there. He says it is all about accountability and transparency. It is a sober and confident performance.

He is followed by 16 year old Benjamin Williamson who invokes the memory of fallen heroes who died to protect democracy. They didn’t make the supreme sacrifice for appointments.

Anthony Pullano from Aurora is up next. He starts well enough but then goes rapidly downhill, tying himself in knots as he struggles to answer straightforward questions from opponents of change such as Markham’s Frank Scarpitti, the highest paid Mayor in Ontario, perhaps Canada.

Yellow Umbrellas

Now it’s Bob Mok, President of the Downtown Markham Ratepayers Association. He reminds us all that Waterloo Region changed to electing their Chair at large way back in 1997; Halton in 2000 and Durham in 2014. The precedents are there. He hints that appointed Chairs have to curry favour with their colleagues to secure re-election every four years. Time for a change. Jim Kwan, also from Markham, echoes Mok. He compares what happens in York Region to Hong Kong and the so-called “small circle elections” which provoked “yellow umbrella” demonstrations and riots in the streets. No sign of yellow umbrellas yet in Yonge Street.

Darryl Wolk addresses the Council in a solid presentation, dense with facts. He handles the questions with ease. He says an at large election would raise awareness of the issues across the Region. The job is too important to be traded in secret deals.

Wolk says Ballard’s Bill 42 is going to go through. So why wait? This is the opportunity for York Region to take a hand in shaping its own rules and procedures. An elected Chair would attract a lot of high profile people and the mandate coming from direct election would give the winner a lot of authority.

Mary Rose is the last speaker. She triggers howls of outrage by describing those council members in favour of the status quo as “arrogant, condescending thieves of the night!”

The guardian of decorum, TonyVan Bynen, cries “Out of Order!”

Mary Rose gathers up her belongings and leaves and some of the other deputants drift away without staying to hear the debate. This is bad form. If people have to get back to work they should tell the clerks beforehand who would have passed the message on.

This allows Emmerson to shake his head sorrowfully, regretting that so many deputants leave as soon as they had said their piece.

Joe Li is now apologizing to his colleagues if they felt offended by any of the comments.

Postpone debate until February

His fellow regional councillor from Markham, Jim Jones, wants the whole matter deferred until February next year. East Gwillimbury’s Mayor, Virginia Hackson, agrees. Newmarket’s John Taylor wants the matter dealt with now, not pushed back to another day. Aurora’s Geoffrey Dawe agrees with Taylor.

The smooth talking baritone, Frank Scarpitti, is against direct election. But if debate is to be put back to the New Year then he wants staff to provide information on how direct elections are working in the regions that now have it. He points to Durham where the current chair runs and “no-one of any consequence” runs against him. He wants to know what the level of voter participation was in Durham. And what would a campaign running across York Region cost? Now he is talking about Halton where there have, apparently, been two acclamations. Yes, so what?

Frank Scarpitti dismisses the argument that the Chair is primus inter pares. Emmerson is just one of 21 people on Council – no more, no less. Everyone around this table, he says, has the same amount of power and authority. This is pure moonshine. Emmerson is full time, shaping and directing regional policy and taking home barrow loads of cash every year as “Regional Chair and CEO”. Scarpitti says direct election may be something to consider only if the Chair had some executive powers, the inference being that Emmerson has none.

Now, bizarrely, he is taking aim at his Markham colleague Joe Li who is responsible for bringing this contentious issue forward. Scarpitti says Li told the readers of a Chinese language newspaper that they “shouldn’t be afraid of Mayor Scarpitti”. Oh dear!

Now we are moving into very murky waters indeed. In a gentle voice with a hint of menace, Scarpitti tells us it is OK to disagree with him in Markham but, let there be no misunderstanding, he will remember their names.

Scarpitti, who often dominates the discussion, closes by saying an elected chair is not going to mean better government. Vaughan’s Gino Rosati agrees. He too wants the debate pushed back to the New Year.

Van Bynen: there are more important things than direct election

In a rare intervention, Tony Van Bynen says there are more important things to be concerned with than election of the Regional Chair, citing the region’s $2 billion budget. He also has a dig at Darryl Wolk though not by name. His reference to “failed municipal candidates having no constituents to speak for” gets a knowing chortle from around the table.

Van Bynen says it is time for a full comprehensive review of the region’s governance model and structure. (Has he started work yet on his review of the OMB which was supposed to be the centerpiece of his third term? I doubt it.)

Now King Mayor, Steve Pellegrini, wants the whole issue deferred until next year. Markham’s Nirmala Armstrong says no. Now is the time. Taylor insists the decision should be taken now. He will support a review of governance but this shouldn’t be an excuse to delay a decision on direct election.

Now Richmond Hill’s David Barrow is having his pennyworth. If Chris Ballard’s Bill 42 makes it on to the Statute Book - as everyone here confidently expects - there will be an opportunity to talk further about representation and executive powers. He tells us that Emmerson provides leadership and direction. Looking at Emmerson he says: “A review of executive powers would give you the powers people assume you have!”

Everyone knows that Emmerson got the job as a result of back room deals, promises and good old fashioned stitch ups. Barrow gets a laugh when he says: “I was lobbied for my vote today.”

Now Van Bynen is pressing his friendly amendment to Jim Jones’ motion to defer consideration to February. Vaughan’s Mayor, Maurizio Bevilacqua, complains that his municipality is under-represented at regional level with an allocation of four and this is something he wants to see addressed in Van Bynen’s proposed review.

Keep it simple

Georgina’s Danny Wheeler is now warning; “This thing is growing a lot of legs here!” Just be careful what you ask for. He pleads to keep things simple. It is up to the MPPs.

Now Emmerson is telling us that the question of representation could be addressed in any review, going up to, say 26 members. He says that Bill 42 is going to go through so let’s make a decision and move on.

Richmond Hill’s Vito Spatafora wants to focus on the election of chair rather than wrapping it up with a huge variety of other issues. Keep it simple. He doesn’t want to make a decision on governance “on the fly”. He doesn’t want an open ended review. Scarpetti agrees. Taylor is in favour of a governance review but it should be decoupled from the vote on Chair.

Jim Jones wants his deferral motion put to the vote but without Van Bynen’s proposed amendment. Jones says he just wants a staff report detailing what happens in those regions where chairs are directly elected.

Now Emmerson asks Van Bynen how he wants to handle his proposed governance review. Van Bynen says it can be dealt with separately in a second motion.

Jones’ deferral motion is carried by 14 to 4 with Joe Li, Brenda Hogg, John Taylor and Virginia Hackson against.

Now Van Bynen is out of order

Now we move into the surreal with Van Bynen’s motion ruled out of order.

The regional clerk advises Emmerson that it concerns a major aspect of policy that was not on the agenda for today’s meeting and, as such, the Procedure By Law requires proper notice of motion to be given but this can be waived if there is a two thirds majority on a vote.

A startled Van Bynen says his proposal would have been put to the vote if he had kept it as an amendment to Jones’ deferral motion. He was only trying to be helpful in proposing a second stand-alone motion.

His weary colleagues give Van Bynen the support he needs to get his review of governance up and running. Who knows where this will take us?

I am certain Van Bynen hasn’t the faintest idea.

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Details

Written by Gordon Prentice

Published: 16 November 2015

Backstory: The developer Bob Forrest bought the Clock Tower (the old Post Office) in the Town’s Lower Main Street Heritage Conservation District in 2011 for $2.3m and the adjacent properties at 184-194 Main Street from the then owner Michael Bryan a few years later. Forrest wants to demolish historically significant commercial buildings and build a condo in the heart of the historic downtown, casually disregarding the Town’s official policy which seeks to limit any development to three storeys.

Newmarket Mayor, the secretive former bank manager, Tony Van Bynen, looks set to cave in to developer demands to build a six or seven storey condo in the heart of the historic downtown, wrecking acclaimed views and panoramas in one of the most identifiable main streets in Southern Ontario.

Proposed condo will dominate Lower Main Street

Forrest recently told associates that his proposed condo will have 139 residential suites and five commercial uses.

The controversial project can only go ahead if Forrest strikes a deal with the Town over a land swap. The Town is, of course, under no obligation to make its land available to facilitate a development of which it disapproves. But I learn the land swap agreement is being drafted and will be reviewed by Van Bynen and senior staff. Forrest says the deal will be put before the Committee of the Whole in closed session but that he already has their agreement in principle. Clearly, we need details of this so-called “agreement in principle”.

Forrest has been examining rental options as well as the alternative, an owner-occupied condo. He expects rental, potentially, to deliver a better deal than the condo option which, apparently, is showing a profit of $10m. Forrest explains the advantages of rental which includes being able to negotiate the amount of Development Charges payable to the municipality which can then be deferred for five years. He also wants to renegotiate the Town’s parking requirements, believing he can save money.

Forrest hoping for seven storeys

Forrest says the development is now settled on six storeys but believes there is a real possibility of getting a seventh storey if the building is rental.

Forrest has been meeting various potential development partners including Rose Corporation where discussions are most advanced.

It is now perfectly clear that Bob Forrest is getting encouraging signals from the Town’s senior planners – who follow their own agenda - and from Van Bynen whose carefully cultivated honest-broker style has long concealed his real intentions. He wants the old buildings demolished. In recent years, John Taylor has been loudly banging the drum for more rental and could be tilting towards that option.

Ward 4 councillor, Tom Hempen, who owns a jewellery shop in Main Street has said his preference would be four storeys while conceding the By Law says it should be three.

Heritage Conservation District policy

If this latest proposal goes through, either in its six or seven storey version, the Town’s Heritage Conservation District policy will not be worth the paper it is written on. It is not possible to protect the integrity and historic character of the area by allowing new apartments to tower over two and three storey buildings. And if approval is given, where does it stop?

There may be some who say the buildings are past their sell-by-date and are falling down. True, they are currently neglected, but they are structurally sound. And, remember, they are historically significant.

It would be a scandal of epic proportions if the Town chooses to become a party in their demolition through an ill advised land swap with a calculating developer whose aim is to sweet talk the Town’s senior planners, mollify councillors, find a development partner, take the money and get out.

Main Street is unique

One business owner who was evicted by Bob Forrest on the grounds that her rented property was to be demolished and redeveloped (a premature assumption at best), tells me she believes Main Street is unique and has the potential to be extraordinary.

“I would never have placed my business there had I not believed in the street and seen the potential in it and its people. I stand by my conviction that this is the wrong development in the wrong place and, as such, has the potential to do more harm to a community that is slowly blossoming.”

So, before councillors do anything rash that they may later regret, they should insist on a second statutory public meeting on the latest, revised proposals and put all their cards on the table. At the end of the day, what is a Heritage Conservation District all about if it is not about protecting our heritage?  

Tony Van Bynen may not owe Bob Forrest any favours but he does owe the rest of us an explanation.

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The Clock Tower timeline

June 2015: The Clock Tower is coming back again – and we need a second public meeting

9 April 2015: Clock Tower – Here we go again

2 February 2015: Developer appeals to the OMB

6 October 2014: Tony Van Bynen. Does the Mayor have a view on how to protect the historic downtown from predatory developers?

1 October 2014: The Clock Tower and Joe Sponga. The councillor tells us his position is clear.

9 September 2014: Bob Forrest tries to relocate his Main Street tenants. He wants them out so he can demolish and build a condo on Main.

19 June 2014: The Clock Tower is up for sale

26 April 2014: Two months after the Statutory Public Meeting everything has gone eerily quiet.

4 March 2014: Clock Tower eviction threat lifted – for now.

5 February 2014: 9 storey condo gets the thumbs down

2 February 2014: Council can veto Clock Tower development. Forrest needs Town-owned land to proceed.

23 January 2014: Nine storey condo planned for Newmarket’s historic Main Street.

17 January 2014: Clock Tower Statutory Meeting.

26 November 2013: The Town could stop the Clock Tower development dead in its tracks. Don’t make Town land available.

27 October 2013: Heritage District gets designation despite plea from developer

2 October 2013: Forrest serves eviction notices on his Main Street tenants saying the properties are to be demolished and redeveloped. But then, as now, he has no permission from the Town to knock down the historic buildings.

16 July 2013: Clock Tower developer needs Town owned land

21 June 2013: We need a Heritage By Law now – not when it is too late to matter

18 June 2013: Clock Tower plans get a rough ride. Developer accused of misleading people.

14 June 2013: Jackie Playter backs the developer

30 May 2013: Bob Forrest buys the Clock Tower for the knock-down price  of $2,340,000 in 2011. It was on the market for $3,275,000. But he needs more land for his condo project.

30 April 2013: Historic Newmarket needs the protection of a By Law now to keep it safe from developers.

16 April 2013: In 2011 the Town published a Heritage Conservation Plan for Lower Main Street showing how the historic downtown could be preserved. But there was no By Law putting the policy into effect. An astonishing oversight or a deliberate decision?

4 April 2013: Developer promises to bring vitality to Newmarket’s historic downtown. But doesn’t mention the Town’s Heritage Advisory Committee has decisively rejected the proposed development.

1 April 2013: Developers propose a brutal new addition to the Town’s historic skyline

See also the Clock Tower traffic impact and Planning Justification Report