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.
“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)
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.