Details

The monster house at 1011 Elgin Street will feature as a case study for councillors looking at how best to manage infill development in stable residential neighbourhoods across Newmarket.

The Council Workshop will be held at 10am on Monday 26 March 2018 – a full year after it was first proposed by Ward 3 councillor Jane Twinney. It is open to the public.  

For the majority of our councillors and for the Town’s senior staff this infill issue is nothing new. On 19 September 2011 the Committee of the Whole asked staff to: 

“investigate the matter of infill development and its compatibility in stable residential neighbourhoods…”

This led to the 6 March 2012 report on Intensification in Stable Residential Areas which can be found here.

Councillors should read this old report whose recommendations, for whatever reason, were apparently never acted upon. This observation from March 2012 still holds good today: 

“The application of the current by-law for new detached or semi-detached dwellings works best in newer neighbourhoods where all the homes are of the same vintage and character and, as such, excessive variations in building mass, height and coverage would not likely occur. However, if a new dwelling that complies with By-law 2010-40 is situated in an older established neighbourhood, the perception for incompatibility of built form increases substantially resulting in a new home that could be considered contextually inappropriate in its neighbourhood.”

Lilliputian neighbours

1011 Elgin Street has been under construction since the summer of 2016. The house sits on raised ground, towering over its Lilliputian neighbours.

The Town did not consult the people living next door to 1011 Elgin Street giving them an opportunity to comment or make representations. The Town would say it isn’t obliged to. In fact, no-one was consulted because the monster house ostensibly meets the terms of the zoning by-law for that area of Town. The owner, Morad Dadgar, only required a building permit. If neighbours or anyone else thought it too big they would have to dig into their own pockets and pay for their own survey.

We are told it is less than the specified maximum height of 10.7m and it occupies less than 35% of the lot area (although the estimated % figure produced by the Town varies). 

By my back of the envelope calculations the house is 46’ 4” (or 14.12m) high from the basement slab to the ridge of the roof. This is what is actually visible to the naked eye looking at the house from Leslie and that is not going to change. The height as shown on the developer’s drawings is 33’3” (or 10.13m) and measures the distance from the average grade (where the base of the house meets the ground) to the mid-point of the roof. Maybe I’ve got this all wrong. I don’t think so but I struggle with this stuff.  

And how many ways are there of measuring height? Across the country, there seems to be no commonly accepted definition of “height”. Earth can be moved around, changing the grading, influencing the perceived height.

Good planning?   

But even if the house satisfies the relevant zone standards does 1011 Elgin Street represent “good planning”?

If not, why not?

It contributes in its own way to the more intensive use of land which is a Provincial priority but is it “contextually inappropriate in its neighbourhood”?

It certainly towers over its neighbours.

In 2012 the Director of Planning, Rick Nethery, floated the possibility of a height policy stipulating that

“a maximum proposed building height may not exceed the height of the highest points of the rooflines of existing residential buildings on immediately adjoining properties sharing lot lines with the lands subject to new development.”

In 2012 councillors were told: 

“Regulating lot coverage is an excellent way to prevent overbuilding in low density residential areas. If it is determined that a particular area has an average lot coverage of 25% an approach could be to set the lot coverage for a 2 storey building at 25% and allow a greater amount of coverage for a bungalow at 35%. This would also encourage one storey buildings in established neighbourhoods.”

Councillors should imagine themselves living next door to the monster house at 1011 Elgin Street. The streetscape is transformed. Your privacy is gone as the windows in the new house overlook your formerly private garden.

The construction work has been going on for almost two years and it is not over yet.

Perhaps it is now time to go back to the future and reconsider the Director of Planning’s report from March 2012.

There were some good ideas back then.

Six years ago.

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Read the October 2017 report on Intensification in Stable Residential Areas here.

 

Details

It is Monday afternoon (19 March) and I am sitting in the Council Chamber waiting to be educated on the municipality’s water supply and treatment. Like most people I don’t give water a second thought because it is always there, on tap.

The man in charge, Luigi Colangelo, gives us the annual water quality review, assuring us our water is clean and wholesome. He says his water people have passed all the tests with flying colours.   

I learn that councillors can be held personally liable if they don’t exercise their oversight duties with care and diligence. Who-hoo!

Regional Councillor John Taylor says:

 “I ask more questions when I know if we don’t ask questions we could end up in trouble or in jail!”

As he is struggling to answer a question put to him by Luigi on “adverse residuals” I find myself thinking of all the times councillors could have been carted off to jail for not asking perfectly obvious questions. Hmmm.

A legend in the water field

Now it is the turn of Dave Kerwin, Canada’s longest serving councillor and her most fluent and accomplished flatterer. If there is such a thing as an institutional memory in the Town of Newmarket it lies under that combed-over 75 year old pate.

“Luigi Colangelo is no stranger to me or to his predecessor, Bill Wilson, a legend in the water field.”

Kerwin gushes:

“Luigi we are lucky to have you. Great to have you in Newmarket because you are replacing a legend.”

Adding for good measure:

“I am really impressed by the way you performed today.”

Trail legend flatters trail legend

Now we are on to a deputation which includes former Mayor Tom Taylor (John Taylor’s dad) making a case for cash for Habitat for Humanity. 

Kerwin (who has a trail named after him) lavishes praise on Tom Taylor (who has a trail named after him) effusively thanking him on behalf of the Council and the people and the residents of the five Habitat houses in Newmarket.

Suddenly, the spell is broken as I hear a very loud cracking of knuckles behind me. I turn and see the man from the Rose Corporation, Dan Berholz, taking a break from his laptop, his fingers in a cat’s cradle above the keyboard.

Deerfield and Affordable Housing

As it happens, I had come along to listen to the debate on Deerfield, the big new Rose Corporation development just behind 212 Davis Drive. The report from the Town’s planners is good, giving councillors lots to chew on – especially on the issue of the moment, affordable housing. Instead, we get a few cursory observations about parking and open space. (The 5 March 2018 edition of Macleans tells us Newmarket is one of the country’s housing hotspots. In 2016 a staggering 20.6 of home sales in Newmarket were purchased as investment properties. “When the Crash Comes.”)

The planners tell us the developer will meet the 25% target for affordable homes but only if concessions are offered. No details. No questions from our incurious councillors. The proposal now goes on to a public meeting.

Bad Vibrations

Now a terrific deputation from a member of the public, Stuart Hoffman, on infill development and the effects of vibration on houses next door to construction sites. He tells us cracks form, then they widen and deepen but without a “base-line survey” undertaken before work begins the builder can walk away from the damage saying it wasn’t caused by him. Christina Bisanz looks like she will take this up and bring in a new By-law on vibration damage.

The Council is having a workshop on infill development on Monday 26 March 2018. Add vibration to the basket of other concerns.

The old house is falling down

Now we are on to the future of the Bogart House. The house, built in 1811 and designated in 1987, is on the point of collapse through neglect.

Tom Hempen, who sits on the Heritage Advisory Committee, is in fine form, animated and spirited in defence of the old house. He wants to compel the property owners - Forest Green Homes - to take action.

Our listless Mayor, Tony Van Trappist, says: 

“I am sensing a sense of urgency.”

Now there is talk about site visits. The Director of Planning, Rick “through you Mr Mayor” Nethery burbles on. Taylor wants to see matters expedited. The Council, he says, should not entertain the removal of the old house.

The Commissioner for Corporate Services and former Town Solicitor, Esther Armchuk, says that though the house is designated it is on private property and further investigations are required.

Almost three years ago (in the context of the Clock Tower buildings) I warned the Planning Department about demolition by neglect:

“Is the owner obliged under any by-law, rule or regulation, to inspect his properties on a regular basis to ensure they remain protected against the elements? If so, does he report to you at the Town Hall?”

I was told there is a property standards by-law but it is the same for any building, designated or not. The Town was looking to prepare a Heritage Building Standards by-law but nothing materialized. Legal Department too busy. Other more pressing matters to deal with.

Now I hear the legendary old flatterer saying: 

“It’s frustrating to see the deterioration.”

Tom Hempen declaims theatrically: 

“The elements are upon us!”

But how on earth was this allowed to happen?

And what it to be done?

Send them all to jail?

Personally I favour a stern reprimand. 

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Details

The cheat, Charity McGrath, is to face a new contest in Newmarket Aurora and Patrick Bown is told he cannot stand as a PC candidate in Barrie in the June election.

Delicious!

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update on 16 March 2018: Charity McGrath is disqualified from running.

update on 28 March 2018: Charity McGrath's appeal "denied".

 

Details

Almost ten months after I lodged my official complaint against Newmarket's Director of Planning, Rick Nethery, I still do not have a clear answer to the most straightforward question:

When did the Director of Planning first realise that the true FSI of the proposed Clock Tower development was greater than the figure (2.9) that was in the documents presented to councillors and the public on 28 November 2016 - when a decision was to be taken on Bob Forrest's application. 

Yesterday, I received a few emails and notes of meetings which expose more of the Town's hidden wiring but there is still much that is concealed. You can read the notes and emails here.

The Town asks us to believe that the FSI of the Clock Tower development was unimportant, a second or third order issue.

And because councillors and the public were ostensibly more interested in height, massing and heritage rather than density (which, of course, brings more people and activity into an area) the FSI issue was deliberately left unaddressed.

Is the FSI a material consideration when Planning Staff are reviewing a development application?

When I had my Complaint Review Committee meeting on 26 January 2018 with the Commissioner of Corporate Services, Esther Armchuk, and the Manager, Corporate Customer Services, Bonnie Munslow, I emphasised the FSI is a material consideration which should be addressed by the Director of Planning. An analysis and commentary should then go to elected officials who would then decide what weight to give it. Instead, as we know, the Director of Planning deliberately ignored the FSI (false as it was) on the grounds that other factors were deemed to be of more importance to councillors and the public.

Can you imagine the same thing happening with, for example, the proposed major development at Deerfield Road (in two parcels with FSIs of 3 and 2.5) or the huge Redwood on Yonge development opposite Upper Canada Mall with its three towers and an FSI of 3.5?

Just to frame the question in that way underlines the absurdity of ignoring the Clock Tower's true FSI of 4+.

“it brings the FSI up to about 4”

In the latest bundle of papers we learn that Regional Councillor John Taylor asked planning staff on the afternoon of 28 November 2016 about the FSI of the Clock Tower.

Taylor was told:

"According to the information supplied in the Planning Justification report, the total site area of all parcels within the subject land is approximately 3,800 sq. m. and the floor area is approximately 11,000 sq. m. for an FSI of about 2.9. This calculation includes the area that is necessary for the underground parking. If we exclude that area from the calculation it brings the FSI up to about 4."

Using the underground parking area to calculate FSI is specifically prohibited by the Town's Consolidated Zoning By-law 2010-40. There was no commentary in the Planning Report about this.  

At the Committee of the Whole, the Director of Planning answers a question from the Mayor about FSI. Rick Nethery is all over the place.

"There is no question that what Mr Wall was saying is that we're looking at an FSI that's above what is currently in the documents. We don't dispute that. That is a question of whether or not if Council were to approve it they would be so approving with that in mind."

Taylor remains silent as the Director of Planning continues:

"I guess there are some differences based on whether you're looking at a net and a gross. There is some question of whether or not we're going underneath the ground for parking versus completely within the area currently owned by the Clock Tower property. So we would be certainly able to examine that and we can, if we need to, we can certainly meet with Mr Wall as well and clarify some of these numbers as well."

In fact Mr Wall had met with planning staff after he first raised the FSI issue at the Statutory Public meeting on 9 May 2016. We are told no notes were taken as the discussions took place at the Planning Department counter and Mr Wall had dropped by unannounced.

Brazen evasions

Although Taylor chose not to comment on Mr Nethery's brazen evasions, he did make it clear in his blog the week before that he was against the Clock Tower as submitted.

"I will not and cannot support the current proposal for a seven storey development. It is simply too large for the site and for the Heritage Conservation District".

He went on to say he favoured a four storey height cap at the Clock Tower site and throughout the entire Heritage Conservation District subject to conditions.

When Peter Noehammer spoke to Taylor on 30 June 2017 to get his views on my complaint he (Taylor) said he was not misled by the information on FSI in the Planning Report. Then why ask for clarification on the development's FSI hours before the committee meeting on 28 November 2016?

And what about the rest of us who are not elected officials on the inside track? Does it matter if the lawyers acting for Trinity United Church were misled? Or if members of the public were misled?

Taylor went on to say

he knew the FSI was over the allowable maximum so whether it was 2.8 or 4 didn't concern him

building height and massing and the impact on the surrounding historic district were the key points to focus on and explore

and that he was against the Clock Tower proposal anyway so "any attempt to enhance approval was not material..."

Maladministration and gaming the system

This gets to the nub of it.

What if the Clock Tower had an FSI not of 4+ but of 5 or 6 or even more? At what point would Taylor decide that the development was simply too dense for the old downtown?

Or was it just a matter of the development looking as if it might fit in?

I believe the whole Clock Tower saga reeks of maladministration where senior staff gamed the system in the hopes of getting the result they and the Mayor wanted.

A knave or a fool

I told the Complaints Review committee that the Town has shown by its handling of the Clock Tower application that it is either a knave or a fool.

Perhaps a bit of both.

The key issue for the Ontario Ombudsman to decide is whether the Clock Tower's Floor Space Index is a material consideration to be taken into account by the municipality when determining the development application.

And, importantly, is it OK to allow an FSI which is known to be false to appear in Committee Reports with recommendations which are going up to elected officials for decision?

The Clock Tower, now stalled at the OMB, has been dragging on for years.

There are many casualties. The businesses evicted by Bob Forrest. And the rest of us who enjoyed the lively buzz of that part of Main Street - now boarded up and desolate. 

What we are witnessing is nothing other than a conspiracy against the public interest.

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Details

"The Clock Tower is a great example of the intensification we need."

Mayor Tony Van Bynen, 11 April 2016

 

On 28 May 2017 I formally initiated a complaint against the Director of Planning, Rick Nethery, for knowingly misleading the public about the density of the proposed Clock Tower development in the heart of the Town’s Heritage Conservation District.  

If approved the proposed Clock Tower would have the highest density of any development anywhere in Town.  

Rejected

Yesterday, I received formal notice from the Town that my complaint had been carefully considered and rejected and that the only avenue now open to me is the Ombudsman.  

The FSI (or Floor Space Index) appears throughout the Town’s by-laws. Simply put, the FSI is a measure of the ratio of a building’s gross floor area to the land area upon which it is built. 

It has legal meaning. The proposed new Zoning By-law for the Yonge/Davis Corridors – currently under consideration - will even have explanatory diagrams and illustrations explaining the importance of FSI. (The slide on the right was part of a presentation to the public and developers on 1 March 2018.)

Yet we are asked to believe that the FSI is of no importance so far as the Clock Tower development is concerned, situated in the very heart of our fragile historic downtown. In assessing whether this development was appropriate in this setting we are told that “height” is more important. And “massing”. But not “density”.  (FSI is a measure of density)

The Town’s Zoning By-law sets the maximum FSI for developments in the historic downtown at 1.

The Clock Tower developer (Bob Forrest) asserted his development had an FSI of 2.9. This was false and left unchallenged by the Town's Director of Planning.

In reality, the FSI is well over 4.

The developer, Bob Forrest, was trying to squeeze a quart into a pint pot and, in so doing, maximise his profits - and wreck our historic downtown.

The Public was deliberately misled

The Director of Planning knew the 2.9 FSI to be incorrect when the report and recommendations on the Clock Tower went up to councillors for decision on 28 November 2016.

Over the months, I lodged a series of Freedom of Information requests but got nowhere. The shutters came down. And the padlocks went on.

On 7 December 2017 I appealed to the Information and Privacy Commissioner, telling him:

“The Town on its own admission holds no records whatsoever on the FSI and how it was calculated; no records on how the proposed underground car park complied with the Town’s Zoning By-laws; no records on the relationship between the proposed development, the underground parking component and the FSI; no records commenting on the developer’s asserted FSI of 2.9; no records on how the development and its FSI would be presented to elected officials; and no records relating to the deputation made by the Architectural Conservancy of Ontario on 5 December 2016 on the Clock Tower and its purported FSI.”

New Information

Following the intervention of the Information and Privacy Commissioner the Town has now discovered new records or information - and some of these are referenced in yesterday’s decision. The Town is also doing a second trawl through additional files and I am told I can expect the results by Friday 23 March 2018.

You can see the relevant correspondence, emails and files ­here.

I intend to put my case to the Provincial Ombudsman.

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