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Written by Gordon Prentice

Published: 30 April 2016

The Town of Newmarket has zillions of By-laws. And a report published last week tells us the Town is planning to beef up enforcement of some of them.

Woe betide anyone who flagrantly disobeys a By-law. Selling burgers from an unlicensed food truck? Making too much noise? Not keeping your property up to scratch? There will be a municipal enforcement officer knocking on your door before you can say “Tony Van Bynen”.

Sweet irony

It is a sweet irony that the Town is ratcheting up enforcement of some By-laws while it considers trashing By-law 2013-51 which regulates building height and other matters within the downtown Heritage Conservation District. The Mayor has already made his position clear on the seven storey Clock Tower development in an area where a three storey height cap ostensibly applies.

The Heritage Conservation District is zoned Urban Centre D1 or (UC-D1). The Zoning By-law 2010-40, consolidated in December 2013, stipulates a minimum building height of 2 storeys and a maximum of 3 storeys or 9 metres.

The Town’s Director of Planning, Rick Nethery, told me in May 2013 that:

“The By-law adopting a Heritage Conservation District is required to fully implement the (Heritage Conservation) District Plan and have it be in full force and effect. While we utilize the (Heritage Conservation District) Plan to assist in evaluating proposals, the passing of an adopting By-law gives the (Heritage Conservation District) Plan its Official status.”

That seems clear enough. But no. Nethery goes on:

“Proposals that do not necessarily conform to all aspects of a Heritage Conservation District Plan, whether it is in full force or not, can continue to be approved by Council if deemed appropriate.”

So no matter what the By-law says a majority of councillors can trump it. If it takes their fancy, they can vote for Forrest’s zoning By-law amendment.

Phoney rules and processes

This is what is so utterly fraudulent about our broken planning system and its phoney rules and processes. They are infinitely flexible and, as such, they are hardly worth the paper they are written on.

I told the Mayor at the Committee of the Whole on 18 April 2016, if he doesn’t like By-law 2013-51 he should repeal it and bring in another version more to his liking.

Why doesn’t he mandate a maximum height of 7 storeys in the Heritage Conservation District and allow the demolition of historic commercial buildings on condition the facades are retained? That would be the honest approach for a retired banker. Instead we all have to navigate our way through a hall of mirrors where things are not as they appear to be.

Public Love-in

As it is, the fate of the Clock Tower development is all going to come down to the crude counting of heads. We know that Tom Hempen will be abstaining in any vote because he owns a retail business on Main Street. That leaves 8 members of Council and one of them, Tony Van Bynen, has already shown his hand. Dave Kerwin’s public love-in with Bob Forrest at the same April 18 meeting also raises very serious concerns.

What about the others? Who knows?

They are, each one of them, a law unto themselves.

Quite literally.

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Details

Written by Gordon Prentice

Published: 28 April 2016

A Newmarket Branch of the Architectural Conservancy of Ontario (ACO) is being formed to help defend the Town’s fragile Heritage Conservation District from rapacious developers intent on transforming forever the Town’s unique historic Main Street and its unmatched panoramas and vistas.

Why is it that some historic Main Streets in Southern Ontario thrive while others wither and die?

This was the existential question posed earlier this month by ACO President, Catherine Nasmith, to an audience of residents deeply concerned about Bob Forrest’s proposals to redevelop a swath of Main Street South at the Clock Tower in the very centre of the Town’s Heritage Conservation District.

Catherine told a packed meeting at Trinity United’s Church Hall in Park Avenue that old buildings had to be given special consideration. Once demolished, there is no bringing them back.

Unfortunately, the Mayor, Tony Van Bynen, arrived too late to hear the presentation and caught only the tail-end of the meeting.

Built 20 years before Confederation

One of the buildings Bob Forrest intends to demolish to make way for his seven storey rental apartment building dates from 1845 (184-186 Main Street South). It was owned by Charles Simpson who migrated to Newmarket from England. Simpson apprenticed himself for seven years under Dr John Bentley to become an apothecary and he ran his business from this address. He died during the 1879 typhoid epidemic that took the lives of 1 in every 10 people in Newmarket. This is one of the buildings casually earmarked for demolition with only the façade being retained.

Why settle for a pastiche when we already have the real thing?

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

Catherine told the meeting that Heritage Conservation District (HCD) status offers protection from inappropriate development. But what happens if the Municipality itself votes against its own Heritage Conservation District By-Law? This is the Alice in Wonderland situation we now face in Newmarket with the Town’s Mayor, Tony Van Bynen, recently proclaiming:

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

Catherine said the OMB may offer a remedy but everyone knows it is capricious and impossible to read. And then there is the expense.

Councillors in Newmarket could vote in favour of Forrest’s seven storey apartment building in full knowledge it breaches their own Heritage Conservation District By-law which mandates a three storey height cap.

Sign the on-line Petition

Setting up a branch of the Architectural Conservancy of Ontario will allow us to tap into architectural, planning and heritage expertise from across the Province.

Your support is invaluable. Add you name to this on-line petition to preserve and protect our historic Main Street.

There is no time to lose.

The Barbarians are at the gates.

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Details

Written by Gordon Prentice

Published: 26 April 2016

The Town is now actively considering Forrest’s intrusive, seven storey proposed development in the heart of the Town’s cherished heritage conservation district.

But, in October 2013, when the Town brought in its Heritage Conservation District By-law, Forrest cried "foul!"

He said his completed application to redevelop the Clock Tower was lodged with the Town before the By-law was enacted. He sought to safeguard his position by appealing to the OMB.   The matter is now sleeping at the OMB until the Town decides on the present application. (See Clock Tower appeal to the OMB here.)

But what does this all mean in practice?

On 29 November 2013, Forrest’s silver-tongued planning lawyer, the theatrical Ira Kagan (whose clients include the Slessors), sent a letter by overnight courier to Newmarket Town Clerk, Andrew Brouwer.

Kagan wrote:

“We are the solicitors for Main Street Clock Inc. On August 23, 2013 our clients filed a rezoning application to redevelop the lands known municipally as 180-194 Main Street, Newmarket. By letter dated September 11, 2013, it was deemed complete."

“At the time of the filing of the rezoning application none of the above noted properties were included within a Heritage Conservation District (pursuant to Part V of the Ontario Heritage Act). Approximately six (6) weeks later the Town enacted By-law 2013-51. To the extent that By-law 2013-51 creates any additional burden (procedural or substantive) to the redevelopment of our client’s lands, our clients object and hereby appeal By-law 2013-51 to the Ontario Municipal Board. Our clients take the position that their redevelopment should be judged against the policy regime in place at the time of their application and that their redevelopment application should not be subject to Part V of the Ontario Heritage Act. Accordingly, our client appeals By-law 2013-51 insofar as it applies to the proposed development."    (underlining shows my emphasis)

Fancy Dancing

This is the kind of fancy dancing I have come to expect from expensive planning lawyers like Kagan. But the "policy regime" Kagan talks about is still very specific.

Earlier that year, on 30 April 2013, I wrote to the Mayor urging him to enact a Heritage By-law without delay, putting fully into place the Town’s established Heritage Conservation District Plan and policies, agreed in 2011. Forrest was, by then, seriously sniffing around, planning his next move.

The Director of Planning, Rick Nethery, replied on behalf of the Mayor on 8 May 2013 saying:

“Thank you for your e-mail regarding the implementation of the Lower Main Street South Heritage Conservation District. Mayor Van Bynen has asked me to respond to your e-mail on his behalf. Council has directed that the Heritage District bylaw be approved however, administratively the Town has not been in a position to do so due to lack of human resources to fully administer the Plan.   Staff will bring the matter of the implementation of this plan forward as part of the 2014 Budget deliberations.”

Nethery goes on: 

“We can assure you that in the interim, any applications that are received by the Planning Department for redevelopment within the district boundaries will be reviewed against the policies of the plan, including consultation with the Town’s Heritage Committee, Heritage Newmarket as well as requiring Heritage Assessments as appropriate. Furthermore, the normal and usual Planning Act processes are still required for any significant development proposals in the area. This may include site plan approval and/or zoning by-law amendments which require Council  approval. Through these processes, Council can, among other things, consider the compatibility of any proposal with the surrounding uses.”

Heritage By-law brought forward to 2013

Many influential people, including Bob Buchan from the Newmarket Historical Society and Athol Hart from the Heritage Advisory Committee, brought pressure to bear and the By-law was brought forward from 2014 and was enacted on 21 October, 2013.

Forrest was very upset. He feared this new By-law, which he maintains was sprung on him without warning, would fatally undermine his plans to re-shape the historic downtown.

Forrest's plan doesn't meet the requirements of the Heritage Conservation District Plan

So, what do we take from all this? Nethery confirms that any redevelopment received before the By-law is enacted would be reviewed against the existing policies of the Lower Main Street South Heritage Conservation District Plan.

And what does this Plan say? It clearly specifies (a) a height cap of three storeys and (b) no demolition of historic commercial buildings.

Forrest’s latest application, if allowed to proceed, would drive a coach and horses through the Plan on these two fundamental points.

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Details

Written by Gordon Prentice

Published: 26 April 2016

Newmarket Regional Councillor John Taylor tells us no land will be sold or transferred in relation to the Clock Tower site “unless in relation to a Council approved and endorsed development and only after the project has significantly advanced”. This is reassuring.

Taylor also says

“the potential for a land sale or transfer has been in public Council reports going back to 2013 – so it has been no secret.”

True. But we are not mindreaders.

We do not know what goes on in closed session until someone decides to tell us. Glenway is a case in point. The Town considered acquiring the Glenway lands in 2008. This fact was kept secret for years, not just from us, the great unwashed, but also from the OMB.

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The Reform of the OMB

Ward 7 councillor Christina Bisanz deserves hearty congratulations and a big round of applause for setting the Town's policy on OMB reform (See agenda item 25 of the Committee of the Whole of 18 April 2016).

OMB reform was the Mayor's top priority for his third term but if we had waited for Van Bynen to act, we would still be waiting.

It took Bisanz, seared by the Glenway experience, to get the ball rolling. In so many key areas of policy - and this is one - Van Bynen simply floats above it all, mouthing platitudes, waiting for others to take the initiative.

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