On 28 November 2016 councillors are being recommended by Town staff to give approval to Bob Forrest's seven storey condo in the heart of the old downtown's Heritage Conservation District. (HCD)
They should say no.
It they accept the recommendations of their planning staff they will be are relying on a lacuna in the law - and some fancy footwork - to subvert the intention of the Town's own Heritage Conservation District Plan.
It is a truly bizarre state of affairs.
Staff are recommending:
"Council pass a by-law that imposes a height maximum of 5 storeys on Main Street and 7 storeys on Park Avenue including the discussed step backs and design materials."
They can only do this because the Clock Tower lands are temporarily - and, perhaps, even permanently - outside the HCD with its three storey height cap for new developments within its boundaries.
Forrest argues that his Clock Tower lands lie outside the HCD.
He argues that the HCD By-law was enacted by the Town in October 2013. (It put into by-law form the 2011 Heritage Conservation District Plan and did not add or subtract anything from that Plan.)
But Forrest says his completed application to redevelop the Clock Tower lands was formally submitted to the Town in August 2013 - a few months before the By-law was passed. He appealed to the OMB arguing his lands should remain outside the scope of the by-law with its three storey maximum.
His lawyer, the inventive Ira Kagan, said Forrest's application should be judged against the policy regime in place at the time it was submitted.
The OMB ruled that the Heritage Conservation District Plan should be brought into effect from 21 October 2013 except for the Forrest lands and until such time as Forrest's OMB appeal was heard and decided.
Without Forrest's appeal to the OMB, any development higher than the 3 storey maximum for new development in the area would have been prohibited by section 41.2 of the Ontario Heritage Act.
If Forrest gets the go-ahead on 28 November he can be expected to withdraw his OMB appeal. He will have what he always wanted. A giant out-of-place, disfiguring condo in the heart of the Town's heritage "conservation' district.
And the Town of Newmarket will have been his accomplice.
The Ontario Heritage Act says:
"Consistency with heritage conservation district plan
41.2 (1) Despite any other general or special Act, if a heritage conservation district plan is in effect in a municipality, the council of the municipality shall not,
(a) carry out any public work in the district that is contrary to the objectives set out in the plan; or
(b) pass a by-law for any purpose that is contrary to the objectives set out in the plan.
41.2 (2) In the event of a conflict between a heritage conservation district plan and a municipal by-law that affects the designated district, the plan prevails to the extent of the conflict, but in all other respects the by-law remains in full force."
Update on 21 November 2016: On 30 April 2013 I urged Tony Van Bynen to bring in the Heritage Conservation District By-law. Enact it now. Not when it is too late to matter. The Council enacted the By-law on 21 October 2013.