- Written by Gordon Prentice
Yesterday (16 December 2013) Newmarket’s Committee of the Whole decided to postpone until January any decision on whether or not to engage in mediation on the future of the Glenway lands.
This was the right thing to do.
At the end of the pre hearing on 10 December, the OMB adjudicator, Jason Chee-Hing, strongly recommended all parties consider mediation before the hearing proper starts in March.
He indicated that, having read all the papers and listened to the submissions, the parties should seriously think about mediation – about what precisely he did not specify. What was in his mind when he said this?
Perhaps by January we shall have a written note from Chee-Hing setting out his formal decisions together with his reasoning. We need to understand where he is coming from.
The OMB is not a Court of Law but the impact of its ruling can be just as far reaching in its own way as a decision handed down by judges.
That is why he is under an obligation to explain his reasoning.
The first part of the Glenway Hearing starting on 17 March 2014 will examine the so-called “principle of development”. This will settle the main question: Should any development be allowed on the Glenway lands? How on earth is it possible to mediate on a question that is, in Chris Emanuel’s words yesterday, so black and white?
The first thing to make clear to Mr Chee-Hing is that Ruth Victor does not speak for the Town.
True, she was engaged by the Town to work on the Glenway file and she has written reports and expressed her “planning point of view”. But it is just that. Her view. Not the Town’s.
Victor’s recommendation at the Glenway meeting in Newmarket Theatre on 25 November 2013 to keep talking to Marianneville was rejected unanimously.
Yesterday, ward 7 councillor, Chris Emanuel, told the Committee of the Whole that everyone needed more time, including the Glenway Preservation Association who will be bringing a deputation to Council.
The Town’s solicitor, Esther Armchuk, told councillors mediation is entirely voluntary and that, crucially, all parties would have to agree to participate and be clear on the issues they want to mediate. In a further twist, parties might agree to mediation but choose not to take part, reserving their decision on what eventually comes out of the sausage machine.
We learn that the OMB has mediators available as we speak.
We are told that all discussions in mediation process are confidential and cannot subsequently be used at the OMB. Councillors would not be present but would delegate authority to staff who would engage in mediation following a brief given to them beforehand by the Town. She said staff would be looking for authority in advance of mediation setting out how far they could go. Staff would then bring a mediated settlement back to Council for ratification.
Personally, I think mediation is a complete waste of everyone’s time. Every ounce of energy should be directed at establishing the GPA’s position – which is now also the Town’s – that the Glenway lands should not be developed. Anything else is, for the moment, a complete distraction.
Councillors have a few questions about process.
Now they are discussing whether the January discussion should take place just at Council or also at the Committee of the Whole.
John Taylor memorably says “two thought points” might be better.
Seems to me a second "thought point" is OK. So long as there are no second thoughts.
The Town must stick to Glenway like glue.
- Written by Gordon Prentice
On Tuesday (10 December), at the OMB pre-hearing on Glenway, the adjudicator Jason Chee-Hing gave the Glenway Preservation Association what it most wanted. A stand alone debate - and decision - on whether there should be any development at all.
The hearing proper – as opposed to this week’s pre-hearing which looked at timetabling and the modalities - will be split into two parts.
The first will open on 17 March and run for two weeks and will consider the so-called “principle of development”. This will decide whether any development is permissible at all. (See Issues List below). Then, if development is given the go-ahead, the follow on part, starting on 31 March, will look at all the technical aspects of shoehorning 730 dwellings into the middle of a quiet, stable residential neighbourhood. It is scheduled to run for four weeks.
The 8 week hearing has miraculously already shrunk to 6 weeks and we are barely off the starting blocks.
The OMB pre-hearing in the Council Chamber at Mulock Drive was a sober affair characterised by hushed whispers and respectful language and where we all stand up when Mr Chee-Hing enters or leaves the Chamber.
He is a planner by trade, well practised in the dark arts. He also knows about public administration but, so far as I can tell, has no legal qualifications. And, to my continued astonishment, he has no-one sitting at his side, advising. Like all OMB adjudicators, he is on his own.
After lots of legal to-ing and fro-ing he grants a hearing specifically on the principle of development – to huge sighs of relief from the Glenway crowd – but then spoils the effect by urging the parties to move heaven and earth to get a negotiated settlement.
Principle of Development
How is it possible to split the difference on a point of principle? One side doesn’t want a development at all. The other side does. Negotiations come way down the road and only after the principle of development has been determined one way or the other.
It seems to me that the Town and Glenway will have to up their game significantly if they are to persuade Mr Chee-Hing that Marianneville can’t develop the land they now own. The Town and Glenway lawyers have got to start making the weather rather than being showered upon by the developer’s lawyer, the animated Ira Kagan, who gives the appearance of being completely on top of his brief.
Kagan is everywhere. He is already engaged on the Slessor file and also on Bob Forrest’s Clock Tower appeal. Mary Bull speaks for the Town and James Feehley for the Glenway Preservation Association. For the moment, Feehley seems to be keeping his powder dry but I hope for fireworks from him in March.
He must affect indignation on behalf of his client, even if he doesn’t feel it. He must imagine how he would feel if a developer planned to build in his back yard and then he must project (controlled and lawyerly) outrage.
The recently hired Mary Bull must submerge herself in her brief and get fully up to speed in a matter of weeks. A daunting prospect.
When addressing Chee-Hing, she inserts the word “Sir” in every second sentence to give herself a few extra nano-seconds of thinking time. By March she must be seamlessly fluent.
Now she gets things underway by asking the OMB to rule as inadmissible, the so-called “without prejudice” offers made by Marianneville in August and November.
She says that the Town had a reasonable expectation that these offers would not be put in front of the OMB. We are told this is “settlement privilege” which exists to encourage parties to resolve matters between themselves. She tells us there are very few exceptions to this rule because it is in the public interest for opposing parties to reach a settlement. So far, I am following things quite well.
She says the developer cannot unilaterally waive settlement privilege as it would make a mockery if one side could do this. Feehely agrees.
Ira Kagan appears very focussed on the job at hand. He says that when developers make “without prejudice” offers they do so hoping the details will be kept secret. Decisions would then be taken by councillors meeting in camera. He tells us this is not the way Marianneville wanted to do things.
In any event, the 23 August 2013 offer makes it clear there is no confidentiality in the offer. If it is rejected, he always said he would seek approval of the original application.
He tells Mr Chee-Hing that Marianneville’s “without prejudice” offers should not be seen as formal revisions of the application. Kagan says the Town could have had two staff reports: one public and another, containing the detailed analysis, confidential. He says the Town chose not to do this and public reports were published giving the Town’s view on the “without prejudice” offers.
On this basis he tells us there is no privilege in the sense of confidentiality because both parties disclosed their analysis of the “without prejudice” offer.
Now we are swimming in a sea of legalese with no dry land in sight. Occasionally, the lawyers pause to restate some point in clear, simple, unambiguous English.
Kagan now asserts that settlement privilege was waived explicitly by Marianneville and implicitly by the Town.
Kagan has thrown the Chair a life-line. “Stop there!” cries Chee-Hing. I see him scribbling furiously.
After a minute or two he looks up. “Please continue.”
Now Mary Bull is on her feet. She has a big cardboard box in front of her filled with all sorts of documents, telling us subliminally that her brain is handling and processing a mountain of information.
She tells us that lots of Kagan’s notes on meetings with staff and so on are not in the public domain. “It is not as if everything is out in the open.”
The Town, she says, did not consent to the “without prejudice” offers going before the OMB. To do so would discourage the Town (or indeed any municipality) from entering into settlement discussions, contrary to the aforementioned public policy considerations.
She says the developer would use the Town’s own material against the Town.
She tells the Chair: “All you should know is that there were settlement proceedings that were not successful.”
Chee-Hing looks unconvinced.
Now Kagan wades in to the argument. He tells us that at any time a litigant can make public an offer it makes. He says he did this at the very beginning. But what it cannot do is disclose discussions with the other Party. And he didn’t.
The Town chose to put its analysis of the settlement offers in the public domain.
Now that he has heard the arguments, Mr Jason Chee-Hing steps outside his corporeal self. His utterances now have all the authority and majesty of the OMB.
“The Board is more inclined to support the view of Mr Kagan.”
This means that all Kagan’s submissions can be considered.
A councillor confides: “We’ve been bruised”.
Now Kagan quizzes Ruth Victor, the outside consultant brought in by the Town to handle the Glenway file. She famously recommended the Marianneville application be turned down on technical grounds rather than on principle.
She has turned out to be a truly disastrous choice, fundamentally undermining the Town’s case to fight the Glenway development in its entirety.
Kagan is aware that he is mining gold, and it is very near the surface. He doesn’t have to do much digging.
Kagan asks if she was aware that Nick McDonald, the Planning expert retained by Glenway, had an in camera meeting with the Council. Answer: Yes.
Now Kagan is asking her what she understands by McDonald’s “Principle of Development”.
She concedes that population numbers do not support the Marianneville application but goes on to say, in a beautiful double negative, that it has not been established that the lands should not be built on.
Victor says she agrees with McDonald that the Glenway development is not needed to meet the Town’s growth targets.
Kagan asks: “At any time before 25 November (the date of the Town’s decision on Glenway) did you advise that no houses should be built on Glenway because they weren’t needed under the Growth Plan?”
Kagan zeros in: “Isn’t it the case that there is no planning basis for a no growth option.” (that is leaving Glenway as it is)
Victor replies: “Yes. That is still my position today.”
This is like being kicked in the groin.
We shall be reminded of her views, time and time again by Kagan, wearing size 14 Doc Martens.
Now Kagan takes us on a tour of technical issues, pointing out that these are all capable of resolution.
Soon we are deep into storm water ponds. Now I hear about inter connecting roads. And like-for-like development where the proposed new houses would be designed to fit in. Kagan concludes that although everything is not resolved, the developer is at least moving in the right direction.
Now it is the turn of Mary Bull to examine Ruth Victor.
We hear her ask if the Principle of Development a legitimate planning issue?
Victor concedes that it is a question that needs to be asked and answered. “I gave my planning opinion on the issue but that is different from saying there is no issue.”
Now we are into the details of scheduling the hearing proper.
Comments have got to be invited on the mass of documentation and this could take months. The “engineers’ get lots of mentions. York Region gets the wooden spoon when it comes to responding expeditiously. Then witness statements need to be exchanged. We are now wandering about in the legal and procedural undergrowth.
We end up with a hearing in two parts.
Kagan says that if the Board decides after two weeks that the development can’t proceed, that’s fine. There is no point going any further.
On that point at least, I agree with him.
The Issues List (as agreed between the Town, Marianville and Glenway)
- In the instant case, does the Growth Plan prohibit new residential units on the lands that are the subject of the applications (the subject lands)? Is it appropriate to refuse the proposed development of the subject lands (the “Proposed Development”) if it determined that the proposed development is not required to meet the population forecasts in the Growth Plan for the Greater Golden Horseshoe, 2006 (the Growth Plan)?
- Whether the Proposed Development conforms with the Growth Plan for the Greater Golden Horseshoe, 2006 (the “Growth Plan”) with respect to, amongst other things:
(a) managing growth;
(b) general intensification;
(c) population forecasts, and
(d) co-ordination of implementation of the Growth Plan
3. Whether appropriate regard has been had for matters of provincial interest, including the appropriate location of growth and development (Planning Act, s. 2 (p))?
4. Whether the Proposed Development conforms to the population and intensification policies in the (a) York Region Official Plan and (b) Newmarket Official Plan.
Are the population forecasts in respect to lands within the built boundary?
- Written by Gordon Prentice
Having sat through today's committee of the whole I have concluded that John Blommestyn and Maddie Di Muccio are made for each other. He is angry, argumentative and belligerent. He expects special treatment.
Maddie Di Muccio, is away at a funeral and, in her place, we hear from a deputation led by her husband, John Blommestyn, and their two young sons. He demands twenty minutes to say what he has to say.
He tells us he can't do it in less time. He had a dry run in front of the mirror this morning.
He also demands five minutes each for their two young sons who, deplorably, have been brought along to Council and told what to say.
Blommestyn says that when the children have made their contributions he wants to hear a round of applause for them.
The effrontery is spectacular. Councillors are expected to set aside their musty old rules and conventions. The booming barrel chested Blommestyn demands to be heard, but only on his terms. I feel sorry for the children, forced to play a part in this ridiculous melodrama. They read the script prepared for them well. But the research done by their parents is second rate.
Newmarket councillors deserve a collective pat on the back for the way they handled the report by the Integrity Commissioner into the behaviour of the increasingly mercurial Maddie Di Muccio who, in September, at a meeting of the Committee of the Whole, branded the Mayor a misogynist.
The Mayor refused to accept this label and, with council support, called in the independent Integrity Commissioner, Suzanne Craig who found in his favour.
Her measured report makes compelling reading. She approached Maddie Di Muccio on three separate occasions and was at first rebuffed and then ignored. Di Muccio refused to co-operate, saying she did not recognise Craig's status.
Blommestyn absurdly complains that Craig never asked Maddie Di Muccio a single question.
He says the Integrity Commissioner had gone “definition shopping” to secure a meaning for the word misogynist that suited.
He refers to an email circulated amongst senior staff cautioning them to avoid meeting Councillor Di Muccio on their own.
As I am listening to this, it occurs to me that Maddie Di Muccio is like a virulent strain of botulism infecting the body politic. People can innoculate themselves only by having a third party present at all times to ensure she doesn't invent stories about what happened.
We are asked to believe that this astonishing state of affairs is not Di Muccio's fault, but rather arises from the animus that the Town's Directors and senior managers harbour against her.
Blommestyn clearly sees himself and his wife as victims. Everyone is conspiring against them. There are two standards applied. A demanding one for the heroic but embattled Maddie Di Muccio and another, less stringent, for every one else.
Joe Sponga bravely tries to pull the threads together. He accepts the Integrity Commissioner's recommendations but wants to defer a final decision until January. He has some support from Chris Emanuel who, outrageously, is heckled by Blommestyn from the public gallery.
I hear groans from people around me who fear that this soap opera could drag on into the New Year.
The Integrity Commissioner tells councillors her preference is for an “expeditious decision”.
On cue, we hear from a resolute Dave Kerwin who gets the “Man of the Match Award” for plain speaking. He wants the matter dealt with today. He says councillors have known this was coming for months, maybe years.
Tom Vegh, in a crisp and telling contribution, tells us the matter is festering and needs to be dealt with now.
Jane Twinney confesses this has not been a fun situation to go through. She too supports the Integrity Commissioner but, inexplicably, does not support the recommended sanction against Di Muccio – loss of pay for one month.
Throughout the meeting, Tom Hempen says nothing. How on earth is it possible to sit there like a dumpling, not expressing a view?
Now John Taylor weighs in, arguing against any postponement.
Taylor tells us that he has heard people say politicians should get a thicker skin and learn to live with the rough and tumble of politics. But he warns that if we let things get out of control no business would get done.
He also takes us back to an earlier claim made by the elder boy that his Mom had tabled 21 motions for debate at Council while the indolent Mayor was responsible for just one – the one calling in the Integrity Commissioner.
Taylor gently explains the Mayor cannot move motions while chairing Council. He vacated the chair to propose the one bringing in the Integrity Commissioner.
Now it is back to Dave Kerwin who is determined to make his point.
He says it is time to move on and deal with the Town's business. Glenway. Slessor Square. He reels off a long list. He slams the way in which social media can be used to destroy reputations built up over decades.
He calls for an end to negativity. This is Maddie Di Muccio's stock in trade.
They vote to impose a one month suspension of pay (over $3,000) . But this will be set aside if Di Muccio apologises in writing to the Mayor before 13 December.
Her minor celebrity status would vanish overnight if she were to capitulate.
That would be too high a price to pay.
- Written by Gordon Prentice
Yesterday I received this email from Ward 6 councillor, Maddie Di Muccio.
From: Di Muccio, Maddie
Dec 7 at 1:52 PM
I'm going to give you 24 hours to retract your blog insinuating my husband, John Blommesteyn, is the author of something he is not.
If you fail to do so, I fully intend to file legal papers against you.
Maddie Di Muccio
Newmarket Town Councillor,
She said in an earlier tweet that my blog linking her husband, John Blommestyn, with Newmarket Town Hall Watch “is a lie”.
- Written by Gordon Prentice
In a post dated 26 November on Glenway he confides he was disappointed with the unanimous vote. He writes: "I expected at very least an 8-1 vote."
The conversation between Maddie and John, over breakfast the morning after, would have been fascinating to observe.
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