Details

Bob Forrest - the developer who wants to dump a seven storey condo into the heart of Newmarket's downtown Heritage Conservation District - has presented a single defining issue to the forthcoming OMB Appeal which has its second pre-hearing on 11 August 2017. 

Bob wants to know what amendments are "warranted" to the Heritage Conservation District Plan which would allow the construction of his Option B "and to achieve good heritage conservation planning".

I shall deconstruct this is a moment but, first, a little background.

Identifying the key issues

All the Parties to the Clock Tower OMB Appeal had until yesterday (7 July 2017) to hand over their "issues lists" to Bob Forrest's lawyer, Ira Kagan, who had to incorporate them all into a draft Procedural Order to be presented to the OMB and considered at the next pre-hearing on 11 August.

The OMB tells us the pre-hearing:

"identifies the issues, parties and participants; organises complicated matters; decides what documents should be exchanged and determines procedures before and during the hearing."

In contrast to Bob and his single issue, the Town of Newmarket has identified 21 issues worthy of consideration and Trinity United Church has come up with 12. The Heart of Newmarket Citizens' Group has heroically identified 42 issues with the Architectural Conservancy of Ontario (a putative Party) concentrating on its 17 core issues.

Spanner in the works

However, the Town of Newmarket has thrown a spanner in the procedural works by going to the Superior Court to enforce a land swap agreement it entered into in 2003 with Michael Bryan, a property owner on Main Street who subsequently sold his lands on to Bob. This has a direct bearing on the OMB Appeal. The case will be heard in Newmarket on 20 October 2017.  

The Town's issue number 20 asks:

"Is any approval of the development, as proposed to be revised, premature pending a determination of legal ownership of portions of the subject land?"

It is difficult to imagine the OMB - which is an administrative tribunal - cocking a snook at the Superior Court. My guess is the OMB adjudicator will put things on hold until after the Court has pronounced. When I asked the OMB what its practice was in these circumstances I was told it was a matter for the pre-hearing.  

We have a further complication. Bob has now withdrawn the original application and is going with his  Option B which was unveiled for the first time on 3 May 2017 to the first OMB pre-hearing.  

It is incomplete. There are no supporting studies that directly address Option B. This is what I told Bob's lawyer, Ira Kagan, when I emailed the ACO's issues list to him on Thursday 6 July:

As a layperson, it seems to me that Option B is not in a fit state to go before the Board. The Market Square elevation is unavailable and the supporting studies all relate to the original application which has now been abandoned. This puts me in a difficult position.

For some studies or parts of studies there will undoubtedly be a straight read-across from the original submission to Option B. But there are aspects of Option B where very significant revisions will be required. In some cases - I am thinking, for example, of the five level underground garage - new studies will be required.

Option B appears to rely - as did the original application - on easements from the Town. There is absolutely no indication from the Town that these will be forthcoming. Indeed, all the information I have points in the opposite direction. Mr Longo told us yesterday that

"the Town is not interested in having any of its lands utilized by the developer for that unwanted project." (ie the original application)

Insofar as your client views Option B as a variation of the original application there are no grounds for assuming the Town will consent for its lands to be used in any way to facilitate Option B when it has already denied the original application. To believe otherwise offends common sense.

In all the circumstances, I believe Option B should be withdrawn as it is manifestly incomplete and that your client should submit it, when complete, to the municipality where it can be given proper consideration.

What does Bob mean by "warranted"?

Now, I must return to Bob's single issue. Bob wants to know what amendments are "warranted" to the Town's Heritage Conservation District Plan to allow the construction of a seven storey apartment block with 143 rental units, 5 commercial retail units and 5 levels of underground parking containing spaces for 177 vehicles. It has a Floor Space Index of 4.19.

What does Bob mean by "warranted"? Does he mean amendments that can, in some way, be justified or is there a special legal meaning going beyond ordinary English usage?

Personally, I am quite happy with the Town's Heritage Conservation District Plan as it currently stands. There is a height cap of three storeys and an FSI of 1.0 which seems entirely appropriate for the area and nothing I see warrants a departure from the Plan.

Side-show to the main event

Others take a different view. When the Council rejected Bob's original application on 5  December 2016, John Taylor called on staff to bring forward a site specific Zoning By-law amendment to restrict the height of development fronting Main Street South and Park Avenue to three storeys  but with the possibility of a fourth storey if set back by a minimum of 15 feet. Of course, no-one has been consulted about this yet. It may not be wanted. Anyway, this is a side show to the main event.

Bob wants to know how the Heritage Conservation District Plan can be changed to accommodate his inchoate Option B rather than the other way around.

Just to put the matter in this way is to underline the essential silliness of Bob's position.

Planning lawyers may see Bob's single issue in an entirely different light.

It may make perfect sense to them, if not to me.

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Details

I drop in to the Metrolinx open house on rail electrification at the Community Centre in Doug Duncan Drive, Newmarket. It is Wednesday 5 July 2017 at 7pm and there is a good crowd - mostly people who will be directly affected as they live close to the rail tracks. 

Metrolinx is planning to electrify the entire Barrie line from Toronto up to Allandale. I am very much in favour of this but it should have happened twenty years ago.

As I enter it is impossible to miss Chris Ballard, Newmarket-Aurora's smiley MPP, who is standing strategically by the entrance, making sure his constituents know he is here.

When the facilitator (with a melodious faintly Bronx accent) asks how many people actually use GO trains only five hands go up, including Chris Ballard's and mine. Oh dear! Then again, most people - including rail commuters - are getting on with their lives rather than sitting through two hours on the minutiae of electrification, overhead wires, gantries and all that stuff.

I am here to learn more about electrification and level crossings. We have four of these in Newmarket and only one will disappear as a result of grade separation - Mulock Drive.

25,000 volts

The remodelled Davis Drive is going to be a jumble of wires. The thick cables slung from the hydro poles will be joined by sizzling 25,000 volt overhead wires above the level crossing, adding to the general clutter. 

Of course, 25,000 volts is no big deal. There are level crossings all over the world with live wires above them. Hmmm. 

Electricity can jump or arc so you don't need to touch the wire to get electrocuted. So I suspect open top double-decker buses will be a no-no on Davis Drive. And these SUVs sporting ridiculously long wavy aerials would be well advised to find another route. 

As it happens, the questions from the audience touch on a thousand issues far removed from the main topic, electrification.

15 minute service

Some people are getting quite animated about the 15 minute service stopping at Aurora, calling for it to be extended northwards. Hear! Hear! I say, turning towards Chris Ballard.

He smiles and hints this is his next project.

Over two years ago, on 17 April 2015, he tweeted:

"Enhanced service coming to Newmarket. Need time to build a number of crossings in Newmarket before 15 minute service possible, though."

I can understand why he would want to move the 15 minute cut-off point to Newmarket, East Gwillimbury or points north. An army of commuters is going to descend on Aurora to take advantage of the 15 minute service. No doubt about it. The figures from Metrolinx' studies already predict this.

No rush says Van Trappist

We in Newmarket, a designated Place to Grow, will have the silver service while Aurora gets the gold. Our steady-as-she-goes, don't rock the boat Mayor, Tony Van Trappist, told the Council on 9 November 2015:

"In my own mind the difference between a 15 minute and 30 minute service doesn't change the world although I think eventually we'll need to get there. But I'd rather see us easing in to that, responding to the demand as we go forward."

Someone asks why Aurora? And we get referred to a 2013 study which suggests it was all thoroughly examined. But was it?

Population up

We shall soon be seeing explosive population growth in East Gwillimbury. Newmarket's population grew by 5.3% from 2011-2016 (above the national average) while Aurora's increased by 4.2%.

I recall Leslie Woo, Metrolinx Chief Planning Officer, telling Newmarket councillors on 9 November 2015:

"Newmarket will be getting two-way all-day service every 30 minutes. When we were developing the business case for Regional Express Rail there are several markers for evaluating the extent of the ten year program. It is based upon ridership uptake and also the level of difficulty for implementation. It was felt Aurora would be the best "edge-point" for the 15 minute service and that was the business case for going to Aurora. Every 30 minutes to Newmarket."

Ballard would like to push that "edge-point" north but the cost could be cripplingly expensive. I understand that but I don't lose sleep over these things. I'm not the Minister of Finance. (As if!)

Phasing out level crossings

Transport Canada guidelines say grade separations are warranted where the "exposure index" exceeds 200,000. (The index multiplies daily road vehicle traffic by daily train traffic.)

In 2015, the index was exceeded at Mulock Drive (458,400), Davis Drive (396,000) and Green Lane (464,400).

Metrolinx say they don't have the money to do everything they want to do. Fair enough. It is a huge undertaking with lots of moving parts.

But I am left wondering how much time Chris Ballard needs before we get the grade separations that will allow a 15 minute service to Newmarket.

It is not a trick question.

Difficult. Yes.

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Details

All is not well in Whitchurch-Stouffville if we are to believe the Toronto Star.  

Tuesday's front page splash by Noor Javed paints a picture of a dysfunctional Council with a "CSI-style" wall in Mayor Justin Altmann's office washroom

 "that displayed dozens of photos and names of fellow and former councillors, members of the public, and town staffers who have either been dismissed or resigned from their jobs in recent years."

Maybe the Mayor has trouble remembering names and this is his own - admittedly unusual - aide mémoire.

More concerning perhaps is the way the Town is going through staff. The turnover is unbelievably high. I had no idea the former Chief Administrative Officer Marc Pourvahidi has been on administrative leave for over a year and is on an eye-watering salary of $447,289.

It makes Newmarket's Bob Shelton - who gets $247,641 - look like a poor country cousin.

I am quiet and like to listen

From time to time I see Justin Altmann at York Regional Council. He says he is a quiet man who likes to listen. In fact, he contributes even less than Tony Van Trappist who snoozes through meetings, totally oblivious to what is happening around him. 

Personally, I expect more from our representatives than being mute lumps of lard. The members of York Regional Council get a "stipend" of  $54,337. For this, I expect them to be active participants in debates, not gawping spectators.

Of course, politicians have a duty to listen to their constituents and to others. But they cannot shelter in silence, like Newmarket's Tony Van Trappist, unwilling or unable to express a view.

At first I thought Mayor Altmann was a deep thinker, weighing the pros and cons before pronouncing. But when he refused to pronounce on anything I pretty much wrote him off.

Torrent of questions

Then there was a remarkable contribution last November when Altmann unleashed a torrent of questions about housing on the unsuspecting Chief Planner, Valerie  Shuttleworth - all in one go. She couldn't possibly answer a dozen questions all rolled up into this humungous omnibus question. And she didn't try to.

At the time I thought, how strange. It was more than a stream of consciousness.

It was like the dam had burst. And after months of bottling-up his contributions and saying nothing it all came cascading out.

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Update on 8 July 2017. Saturday's Toronto Star has more on the Mayor's "creepy" washroom.

 

Details

On 20 October 2017 the Town of Newmarket will ask the Superior Court for a declaration that the land swap agreement it entered into with Michael Bryan in 2003 is binding on Bryan's successor in title, Bob Forrest's Main Street Clock Inc.

The Town's counsel, Leo Longo, served notice on Forrest's lawyer, Ira Kagan, on 14 June 2017, and filed papers with the Court. As I tap this out there has been no response from Forrest's lawyer as of this afternoon when I wandered down to the Courthouse in Eagle Street to check the files.

We learn that those who wish to oppose the application

"must forthwith prepare a notice of appearance in Form 38A"

and serve it on the Town and file it, with proof of service, in the Court office.

Form 38A simply requires Forrest to state if he is going to respond to the application. Seems pretty straightforward to me. The complicated stuff comes later.

If Forrest chooses not to respond then it is all over. The Court would undoubtedly order the land exchange that was foreshadowed in the 2003 agreement but, inexplicably, was never carried out. It would mean curtains for Bob's dream of a towering new condo in the heart of the old downtown.

We have this weird situation where the OMB appeal and the Court application are running in parallel. Yet what happens with the latter directly affects the trajectory of the first.

All the Parties have to prepare issues lists for submission to Forrest's lawyer, Ira Kagan, who will combine them all into a draft Procedural Order which must be sent to the OMB by this Friday (7 July 2017).

I am a putative Party (representing the Architectural Conservancy of Ontario) but I am also a concerned taxpayer who wants to see the costs of going to the OMB kept to the absolute minimum. The Town is right to defend its position at the OMB but should take all possible steps to bring things to a close asap.

If Forrest is going to contest the Town's application to the Superior Court he should, M'Lud, do so forthwith.

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Note: The Town's application to the Superior Court of Justice is brought under Rule 14.05(3)(d), (e) and (g) of the Rules of Civil Procedure which state:

14.05 (3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution;

(e) the declaration of an interest in or charge on land, including the nature and extent of the interest or charge or the boundaries of the land, or the settling of the priority of interests or charges;

(g) an injunction, mandatory order or declaration or the appointment of a receiver or other consequential relief when ancillary to relief claimed in a proceeding properly commenced by a notice of application;

 

Details

The Town of Newmarket is taking Bob Forrest's Main Street Clock Inc to Court to enforce rights to lands in Market Square which the Town acquired in 2003 in an agreement with Michael Bryan, the then owner of 184-194 Main Street South.

On 17 April 2012, Bryan emailed Newmarket CAO, Bob Shelton, to say he was in the process of selling the properties to Forrest

"and I have authorised the purchaser, Main Street Clock Inc, including its parent company Forrest Group, to discuss details of my company's land exchange with the Town of Newmarket".

He went on:

"Accordingly, I extend my authorisation to the Town of Newmarket to discuss the land exchange details, as they relate to applications for development proposals for the property, with Forrest Group/Main Street Clock Inc."

The Town says the 2003 agreement involving a land swap (shown above) was entered into to facilitate the (then) redevelopment of Market Square and was a mutually beneficial exchange of surface parking rights. Nothing more; nothing less.

For years the Town and Michael Bryan kept to their agreement and it worked out just fine. Unfortunately, for whatever reason, the actual transfer of lands never happened. Despite this, the Town now says the agreement reached with Michael Bryan is binding on Main Street Clock Inc, the successor in title.

This is clearly something for the lawyers. Is an agreement binding when parties abide by its terms for years even though it was never actually signed off?

The Town says Forrest's Clock Tower development application, first submitted in September 2013, has been revised over time. But until 3 May 2017 - the date of the first OMB pre-hearing -  the proposed development site excluded any surface development on the lands the Town was to receive "pursuant to the agreement".

Option B - which will replace the original application - involves building on that land.

Is this just lawyerly fancy dancing or does it amount to something?

I am left scratching my head.

Perhaps a more pressing question is whether the studies submitted by Forrest in support of his original application will be asked to fulfill the same function for Option B at the forthcoming OMB appeal hearing even though the two are very different.

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See relevant Freedom of Information requests here. And the link to the Clock Tower OMB page here.

 

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