The OMB decision to allow some kind of development in Glenway will come as a shattering blow to the neighbourhood and to those who organised and led the fight to preserve Glenway’s open spaces. They all deserve a medal. We now go on to Phase 2 which is pencilled in to start on 15 April. But no-one should believe it is a done deal and that Marianneville will get their 730 residential units.

It is not over until the fat lady sings.

Yesterday, after a mere ninety minute recess following the lawyers’ closing submissions, the OMB adjudicator, Susan Schiller, feels able to tell us, in outline, why she is backing the case put by Marianneville. Her detailed reasons will follow.

The OMB decision 

She says GPA Chair, Christina Bisanz, spoke movingly about the Club House being the beating heart of the community and that the Glenway lands were used extensively by people from Glenway and further afield. But, she says, it is not public open space.

She tells us what she did not hear in the course of the Hearing. She didn’t hear that the Town had taken any steps to acquire the land as public open space. Nor did she hear any arguments that the land should not be developed.

The key issue is whether the Growth Plan prohibited the development of the Glenway lands. She says the reasons advanced by the Town and GPA “defaulted to a series of processes”.

She is told the development is too big. Scale is an issue. But, she says, the Glenway proposal is not the only big development that has come forward. There is no policy that says proposals of a certain size must go through Town led processes.

Is the development needed? Schiller tells us need is not a criterion or test. The growth targets we heard about are all minimums, not caps.

We hear that the Growth Plan requires municipalities to designate intensification areas but the Town has a concomitant responsibility to look at, for example, major transit stations and how they fit into the big picture. That hadn’t happened.

Schiller reminds us that Marianneville had asked the Town to include a parcel of their land next to the GO Bus Station into the urban centre intensification area (basically the Yonge Davis corridors). The Town declined to do this saying a site specific application was before the OMB. The Board, Schiller says, “does not attach much weight to calls for a Town led process”.

Now the Adjudicator is moving up into fifth gear. This is turning in to a lecture. The Growth Plan says intensification should occur generally within the built boundary – not solely in designated intensification areas. She tells us this was not discussed by the expert witnesses called by the Town and the GPA.

Fatal Misunderstanding

We learn there was a fatal misunderstanding about the role of the Growth Plan “within the planning paradigm of the Province”. The Planning Act, which takes precedence over policy statements, specifically contemplates site specific applications. The real issue, therefore, is not the need for a Town led process but whether the lands can be developed in a way that conforms to all the relevant policy regimes and is appropriate and compatible with what is already there. And these, she tells us, are Phase 2 issues.

The Adjudicator, Susan Schiller, is probably as good as they come. She is sharp and quick to pick up on points. She can only consider matters put before her. If assertions made by one side are not rebutted by the other then she draws the appropriate conclusions. That’s the way the system works.

Key issues left unaddressed

It was obvious to everyone that key issues raised by Marianneville’s lawyer, Ira Kagan, were simply not being addressed.

As much as it pains me to say this, Kagan dominated the Hearing. He was like a tennis player, darting about the court, fighting for every point. After he finished every cross examination he would swivel round and ask individually the four people behind him if there was anything he had missed.

He can be dramatic (insofar as any lawyer is) talking with punctuation marks - but this forces us to listen and absorb his argument.

The Town’s counsel, Mary Bull, never stretched herself to return a difficult ball. She talks in a grey monotone giving me the impression she would rather be somewhere else. Glenway is just another job. Next week, I hear she is in North Bay. Another planning case. Another file to flip through.

James Feehley, counsel for the GPA, was, quite simply, out of his depth. Too often, he seemed a spectator rather than a participant. He is patronised by Kagan but laughs it off. It was his job to express lawyerly outrage on behalf of the Glenway people but it soon became clear to me this wasn’t going to happen.

Planning is not brain surgery. It is not that complicated.

The Hearing was dominated by the “experts” opining on the relevance of this or that policy, statement or plan. Christine Bisanz, was like a breath of fresh air, but where were the other Glenway people? Where was the Vox Pop?

People have quite a sophisticated view about what they like or dislike about their street, neighbourhood and Town – in that order. Their views on how the Town should grow and develop should be given weight. It is not something we cede to experts to decide on our behalf.

We learn the old golf course was used by Glenway people but also those from further afield. Does that mean open space is at a premium in Newmarket? (Yes) And, if so, will open space become even more valuable in the future as Newmarket’s population soars with tens of thousands of new residents in our midst? (Yes) Astonishingly, this was not an issue considered worthy of examination by the experts even though the Town has been looking at neighbourhoods that are short of open space.

OMB Hearing not people friendly

The Hearing is paper based. Everything is in huge lever arch files. Apart from one or two colourful plans of Glenway sitting on an easel next to the Adjudicator, there is nothing to help the public follow the proceedings. The witness statements and other relevant documents are not posted on the OMB website. We sit like lemons at the back of the room, trying to follow things as best we can. And even after it is all over we can’t read the transcript because, astonishingly, no record is taken. The millions of words uttered, unless captured by Schiller, disappear into the ether. Lost forever.

How did we get here?

Things went off the rails when the Town hired an outside consultant, Ruth Victor, to handle the Glenway file. She was soon biting the hand that feeds her. But I can’t blame her, entirely. She stepped into a policy vacuum and started making policy which, so far as I can tell, was accepted uncritically by the Planning Department and by the Mayor. Was any direction given to her? If not, why not? Seems to me there was a collective failure to give her a steer.

I am also left wondering how things would have played out if the Town had hired Nick McDonald to handle the Glenway file rather than Ruth Victor. I suspect we wouldn’t be where we are now.

The role of the Mayor and Councillors 

The Mayor lives on London Road. Would he have taken the same hands-off approach if he had lived on, say, Crossland Gate? I think not. At the very least his mind would have been focussed on the possibility of losing a treasured amenity, open space. He is by nature a man comfortable with process and procedure. He was content to leave it to the experts and then allow matters to take their course. It was a critical failure of leadership.

John Taylor, our Regional Councillor, nailed his colours to the mast on 25 November 2013 when he told Glenway people he would be furious if someone tried to build on forest land behind his house. He has said as much since. He is influential and his involvement at an early stage could have changed the course of events but that was not to happen. Ward 7 councillor, Chris Emanuel, has championed the Glenway cause from the beginning and he comes out of this saga well.

But, overall, it seems to me there has been a collective failure by elected officials to give guidance and direction to planning staff. The Town’s Planning Department is not a State within a State.

Was the outside consultant Ruth Victor allowed to write the Town’s policy on Glenway? What was the view of the Director of Planning, Rick Nethery?  Is it the case, as Kagan asserted, that the Town’s planning staff shared her opinions? If so, did he (Nethery) share this information with the Mayor or anyone else?

So powerful was Victor’s case that Kagan told the Adjudicator in his summing up:

 “If I was really brave I would not have called any other witnesses but I was scared not to.”

Throughout the Hearing Kagan had Marianneville’s hired planner on hand. Paul Lowes. The Town relied on Eric Chandler, a retired Chief Planner from New Tecumseth, who despite his genial manner and wide experience, could not answer for decisions made by the Town’s planning department. There was no-one from the Town Planning Department sitting in, addressing issues there and then, as they arose.

Pending Developments 

It was obvious to me in the very moment Kagan raised the issue, that developments elsewhere in Newmarket (as shown on the Planning Department’s “Pending Developments” map) were taking on a crucial significance. There were five developments cited by Kagan but he focussed on the Newmarket Cemetery Corporation land where 518 homes are being built. Kagan tells us the parcel of land is large; it is designated institutional (theoretically, no housing allowed); it is adjacent to a Stable Residential area and is privately owned

“and is as close to all fours to this case (Marianneville) as you can get.”

Kagan said it was unreasonable for the Town to hold up the Glenway development while waving through these other developments, all within Newmarket’s built boundary.

Yet the matter was never addressed by Bull.

What is to be done?

The Glenway Preservation Association may now be running out of cash and may not be able to retain counsel. In which case, responsibility devolves on the Town to make the best case it can to minimise the damage to Glenway.

In another bizarre twist to the story, Ruth Victor will be back again, paid by the Town to consider the technical issues thrown up by the proposed development.

The witness lists for Phase 2 are being drawn up as I write and should be with the Adjudicator by the end of next week.

I want to see people speaking up for Glenway, nor sabotaging its future.

This is no time to throw in the towel.

Newmarket councillors will meet on Monday afternoon (31 March) to consider their next move.