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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Details

The Metrolinx Board has removed the requirement for grade separation at Mulock Drive, home to the proposed new GO Rail Station. 

The Preliminary Design Business case, presented today, argued the Mulock Station could go ahead without grade separation – something that was earlier held to be essential to the viability of the new station.

Instead, Mulock will be considered separately as part of a “system-wide rail crossing analysis”. I have no idea when this gigantic piece of work is due to report.

To avoid this fate Newmarket will now have 6 months to argue for the reinstatement of grade separation before the Metrolinx Board considers the full (and final) business case for each new station in October 2018. This is the so-called “decision gate” before Regional Express Rail goes to market and procurement begins.

Although the Town debated Mulock Drive and the proposed new station at its Council meeting on Monday (5 March 2018) its position on grade separation was not reported to the Metrolinx Board today (at least not in the public session). I don’t know if this was just lethargy or a failure to get their act together in time.

Status Quo Ante

The Town has asked for a meeting with Metrolinx and MPP Chris Ballard so maybe they are pinning all their hopes on that. But, in so doing, they will be asking for today’s decision to be reversed and for a return to the status quo ante.

Joshua Engel-Yan who reported to the Board on the methodology of new station selection said there were still unknowns about Mulock. He said he needed more information on land use around the proposed station. Whether he will get anything useful before October 2018 is debatable. The Town has only just gone out to tender for outside consultants to work on the Mulock Drive Secondary Plan.

Urgency

I suspect all is not yet lost though the Town’s Director of Planning needs to inject a sense of urgency into things. 

Joshua Engel-Yan told the Board that Aurora is quite constrained for station access. And Board Chair, Rob Prichard, said moving the 15 minute service north to Mulock would change all the statistics.

He was just thinking aloud. Don’t take this to mean he is sold on the idea.

The Board also agreed the 2041 Regional Transportation Plan. After lots of mutual back slapping and congratulations on a job well done Chief Planner, Leslie Woo, tells the Board:

“This is a moment in history.”

The life of the Plan is 10 years after which it will, no doubt, be reviewed.

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The Board agreed:

”That staff continue the delivery of all the 12 new stations identified at the Metrolinx Board Meeting of June 28, 2016 subject to further policy, infrastructure and operating refinements.”

The Preliminary Business Case agreed today says of Mulock: 

“The design does not preclude a future grade separation at Mulock Drive, which will be considered separately as part of a system-wide rail crossing analysis.”

 

Details

A report commissioned by the developer Forest Green Homes which recommends the demolition of the oldest house in Newmarket (Bogart House, 1811) is flawed according to ERA Architects, brought in by the Town to give a second opinion.  

The developer’s Heritage Impact Assessment – written by Wayne Morgan – says the old house is beyond saving and should be knocked down and replaced with a memorial plaque.

Morgan served on the Town’s Heritage Advisory Committee for twenty years from 1980-2000 and describes himself as a Heritage Planner. Bogart House was designated in 1987 while he served on the Advisory Committee.

In their so-called “peer review” to the Town, ERA Architects say:

“The conservation option recommended by Wayne Morgan relies on two assumptions that are not backed by sufficient evidence in the HIA.

1. That the construction date/age of the Bogart/Johnston House cannot be verified.

2. That the building’s condition is past the point of reasonable repair."

ERA say that if the date of construction is confirmed this would make the house both rare for its early full two-storey construction in Ontario and age as one of the oldest surviving houses in Newmarket. They say further investigations are required by a conservation architect.

Internal contradictions

In fact there are many internal contradictions in the Morgan Report. Morgan asserts at various points in his report that the Bogart House does indeed date from 1811 while, at the same time, pointing to the alleged absence of documentary evidence. He says:

“The House is designated because it is an early (1811) structure and a representative example of vernacular architecture. It­ is a rare example of an early structure.” (Morgan’s underlining for emphasis.)

The great mystery is why Morgan took the developer’s shilling and risked his reputation when he was centrally involved in the designation of Bogart House 30 years ago and had intimate knowledge of the property, its history and unique heritage value.

Heritage Committee gets fired up

The issue came before the Town’s Heritage Advisory Committee last night and I drop in to hear what they have to say.

The Chair, Athol Hart, is unusually animated making it very clear he wants to see the old house preserved in situ. He tells us it has the same foundation, doors and windows that it had in 1987 when it was designated. The only difference is that it has been allowed to decay into its present condition.

Quite so.

But who was responsible for allowing this to happen?

Dave Ruggle, the Town’s senior heritage planner, says the development application from Forest Homes – initially submitted in 2013 – will “not be going further” until the Bogart House issue is resolved.

Trenchant

My own Ward Councillor, Tom Hempen, is trenchant telling us Bogart House is a significant part of our heritage and when Forest Green purchased the land at Leslie Street for development they knew the old house was designated. He is uncompromising:

“Regardless of what the peer reviewer says, the owners need to honour their agreement to preserve the building.”

Committee member Malcolm Watts wonders aloud why Wayne Morgan was asked by the developer to do the HIA given he was involved in the original designation. He also questions Morgan’s qualifications. He is a heritage planner not a conservation architect. Malcolm says there must be a timeline for work to be done on the old house.

Now everyone is talking about water penetration and the damage that is being done. Tom Hempen wants the Town’s By-law people to get in there without delay.

I am nodding in agreement. The Heritage Committee nails its colours to the mast and makes its position absolutely clear. And that’s good. We now wait to see the form of the follow up.

But the wider question of how the Town allowed the iconic Bogart House to get into its present lamentable state remains to be answered.

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Details

The Metrolinx Board at its meeting next week (Thursday 8 March 2018) is expected to approve plans to abandon grade separation at Mulock Drive, home to the proposed new GO Rail Station.  

An earlier report in July 2016, setting out the initial business case, stated bluntly

“Mulock not feasible without grade separation.”

Now, buried in the background papers for next week’s meeting, the New Stations Business Cases Technical Report 9, says:

“The grade separation will not be developed as part of this project, but will not be precluded from future consideration.”

The aim is to

“identify a design solution that does not require the grade separation. The design does not preclude a future grade separation at Mulock Drive, which will be considered separately as part of a system-wide rail crossing analysis.”

Mulock Drive is, of course, one of the busiest roads in Newmarket and it is truly astonishing that the grade separation which, less than two years ago, was deemed a prerequisite can now be so casually dropped.

The report talks of “deliverability and operational challenges with grade separation”:

“The model shows that the performance of Mulock station is impacted by its proximity to Aurora station. Aurora station, which is immediately downstream, is the proposed terminus end point for more frequent electrified service on the Barrie corridor. Significant ridership growth is expected at upstream stations, including Newmarket and East Gwillimbury stations; therefore Mulock station would delay additional riders that travel through the station to points further south.

Travel time savings are expected to be limited for users of Mulock station, since many users would save wait time by driving to Aurora station. Exploration of possible alternate GO Expansion RER service pattern (e.g., extension of 15-minute service further north) is underway and would impact Mulock station’s performance. Corridor-level changes are being examined as part of a broader study of the service patterns on the Barrie corridor.”

Jam tomorrow

This is yet another example of jam tomorrow. If grade separation is abandoned now then an all-day two-way 15 minute service (mirroring Aurora’s) recedes into the distant future.

The report says the revised approach should not preclude grade separation in future but, if so, that surely means safeguarding land now that will be needed later.

Will the new Secondary Plan for Mulock Drive do this? What do Newmarket’s planners think about the loss of grade separation? Were they consulted? How did they respond?

Charrette. 

As it happens, last night the Town’s planners were hosting a presentation on the new Zoning By Law for the Davis/Yonge corridors. It is billed as a “charrette” which is:

“a public meeting or workshop devoted to a concerted effort to solve a problem or plan the design of something.”

I see Jane Twinney and Christina Bisanz. And Tony Van Trappist whose beaming smile disappears when our eyes meet. And then there is jolly Bob Kwapis whose table I join. I ask if he knows what a charrette is. He asks if I am running for Council.

Looking at the signing-in book, I’d say over a third of people here are from the so-called “development industry”.

After a short introduction from the Town’s senior planner, Adrian Cammaert, we hear from a firm of Consultant Planners, R. E. Millward and Associates, brought in for the purpose, probably at great expense. The Town wants a new Urban Centres Zoning By-law which will have designs and illustrations complementing the text, making it easier for the great unwashed to understand - and to speed up development.

Now Millward’s Director, Ian Graham, is painting the big picture.   

Soon we are pressing buttons on hand held devices. We are asked to respond to various propositions put up on the big screen in front of us. This is to be our role in the charrette.

Alas, the survey is complete garbage, allowing for multiple answers where one is required. There are other design failures.

Develop around transit hubs. 

Despite its imperfections I see that over 90% of us agree that the most intensive development should occur around transit hubs. Viva Next. Go Stations and so on.

Yet at the Tannery in Davis Drive there are obvious constraints (see right). The GO Rail station is sitting on a flood plain. And, at some point, there will have to be grade separation to get rid of the Victorian era level crossing with its flashing red lights and clanging bells.

Afterwards I ask Ian about safeguarding land that will be needed. He asks me what the Secondary Plan says. I tell him it is out of date. It was completed before grade separation became an issue. He tells me it is not necessary to identify these lands in the proposed zoning by law. People will know. Won’t they?

The penny drops

Ah! The penny drops! Developers won’t need colour coding on a zoning by law map to tell them the areas where it would be inadvisable to build. They’ll just know!

Ian smiles and says:

“Well, we got there in the end.”

The Town’s planners are currently working on the new Secondary Plan for Mulock Drive. Perhaps colour coding will show the land needed for future grade separation.

But maybe not.

Developers and the rest of us will just know.

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Update on 2 March 2018: Town seeks outside help to prepare the Mulock Drive Secondary Plan. 

On 4 March 2018: Newmarket’s Mayor, Tony Van Trappist, tweets:

”Lots of community interest and a good turnout for the Zoning By-Law Public Meeting / Charrette this week. Community feedback is important to initiatives like this. Key to developing plans that shape the way our neighbourhoods will look.”

Update on 6 March 2018: Newmarket Council last night debates the grade separation issue and calls for an early meeting with Metrolinx and MPP Chris Ballard. (See video 1hr 10 mins in)

 

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