Details

On Sunday evening at 9.41pm an email arrived from Bob Forrest's lawyer, the feared and slightly sinister Kim Jong Kagan. As you would expect, the email had the whiff of North Korea about it. 

Mr Kim's email reads:

Subject: RE: Main Street Clock Tower OMB Appeal

Mr Prentice. I attach a pdf of one of your latest blogs (May 5th). It raised a question in my mind which I should appreciate your response to. Did you have an audio recording device at the May 3rd prehearing conference? Did anyone else have one that you were aware of?

Kim Jong Kagan

I had my Apple iphone with me. It is a recording device but it wasn't switched on. I suspect many of my readers who attended the prehearing (including Mr Kim himself) had similar recording devices. If yours was in record mode it is important you let me know and I shall send your details on to Mr Kim. What happens then is up to him. But, be warned, it could be very painful.

Filming not allowed

The OMB's rules of practice and procedure make it clear that Hearings are not recorded by the OMB.

"You may also arrange, at your own expense, for a Court reporter to transcribe the hearing. Filming the hearing is not permitted. For an audio recording of a hearing, you must request permission in advance of the hearing."

I would like to see a record kept of all OMB hearings. It seems faintly absurd to me that millions of dollars can turn on an OMB decision and there is no record of who said what. Yet proceedings in the Small Claims Court are transcribed. Maddie Di Muccio's ludicrous claim against Regional Councillor John Taylor for $5,000 in damages for hurt feelings is captured word for word and stored in a locked vault somewhere.

Changing the dynamics

Having a record also changes the dynamics. Everyone is on their best behaviour. Including the OMB adjudicator. Self represented Parties should be treated with respect and consideration and should not be regarded as an unwelcome intrusion. I am certain having a record helps.

In fact I owe it to Kim Jong Kagan who first alerted me to the fact that OMB hearings could be recorded. On 23 June 2013, at the Glenway Lessons Learned meeting, I was beckoned over to Mr Kim's table to join the great man. I did so with great trepidation. People have been known to disappear after meeting Mr Kim. 

Most people think of lawyers as men in grey suits. But that evening Mr Kim was resplendent in a colourful Hawaiian shirt and he had a deep tan. He spent much of the evening gazing, in a distracted way, at his recording device.

Total Recall

As it happens, I was not recording our conversation but I have total recall of what was said. I told him it was a tragedy the Glenway OMB Hearing was not recorded and that everything that had been said had disappeared into the ether. It was then he told me any Party could request a record be taken.

With this earlier advice in mind, I contacted Newmarket's Chief Administrative Officer, Bob Shelton, on 10 April 2017, asking the Town to arrange for a transcript to be made of the Clock Tower OMB hearing. My email was forwarded to Esther Armchuk, the Commissioner for Corporate Services and former Town Solicitor. The following day, she told me:

"Your request that the Town arrange for a transcript of the above-noted proceedings has been forwarded for my attention. The Town will make a determination about whether of not to retain a reporter/transcriber for this hearing in consultation with our external legal counsel."

Audio recording is required

Armed with all this information I am now summoning up the courage to approach Mr Kim with a request that he, on behalf of his client, will raise no objections to an audio recording being made of the forthcoming OMB Hearing on the Clock Tower. 

I hope to see you all again.

As a postscript, I hope Mr Kim is not billing his client, Bob Forrest, for entertaining emails sent out on Sunday evenings.

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email to Bob Shelton requesting a transcript (10 April 2017)

I am writing formally to request the Town to arrange for a transcript to be made of the forthcoming OMB Hearing on the Clock Tower. As you know, Parties can have a transcript made of the proceedings.

There are some compelling reasons why we should have a transcript.

1. A transcript will be a permanent record of a Hearing whose significance extends well beyond Newmarket. 

2. A transcript will help us understand how the adjudicator came to his or her decision.

3. A transcript will change the dynamic of the Hearing with all the actors (the Parties and Participants, lawyers, planners, Newmarket staff, witnesses and so on) being aware that a record is being taken of the proceedings. 

4. Millions of dollars can ride on an OMB decision. The expense of getting a transcript done is very small beer indeed when compared with the expense of defending the municipality's position at the OMB. As you know, Glenway cost the Town $588,291 and, unfortunately, no transcript was taken. The arguments and debate have all disappeared into the ether, lost forever. 

5. Perhaps as a result of this, one of the recommendations coming out of the Glenway Lessons Learned exercise was that, in future, a transcript should be considered. 

6. The Government is currently considering OMB reform and the Clock Tower could well be a useful case study. 

When I was sitting in for the Metrolinx presentation at the Committee of the Whole earlier this afternoon I noticed that a person was sitting on your right, apparently taking a verbatim note of the proceedings. Perhaps the Town employs a stenographer?

 I look forward to hearing from you.

Gordon Prentice

 

Details

I take it as an incontestable fact that if John Taylor lived in the beautiful historic house at 182 Church Street a block of townhouses would not be built 7' 5" away from his bedroom window. 

Taylor is a hugely influential figure on Newmarket Council. When he speaks others listen. Where he leads others follow. Most councillors have contracted out their thinking to Taylor who does the heavy lifting for them.

Taylor wants to see the old school brought back to life (as we all do) but this blinds him to what is happening elsewhere on the development site. He has nurtured a good relationship with the developer - the Rose Corporation - and is proud of the role he played in bringing to Newmarket the much needed rental building at 212 Davis Drive. Unlike the rest of us, he has been to the top and was dazzled by the experience.

Shoulder high

The application for the King George School development was "site specific" meaning it was drawn to fit the space available rather than meet existing zoning standards. It was clear from the plans and drawings of 30 August 2016 that the Church Street Townhouses were going to be 1 metre (3' 3") away from the side lot line. The end Townhouse would be 5' 10" away, wall to wall, from the 1881 house. 5' 10" is probably up to Taylor's shoulder.


 

 

Didn't this ring any alarm bells?

182 Church Street is built on rubble stone foundations just like the Old Town Hall. The two buildings were constructed within months of each other. Taylor knows the problems associated with these old foundations. You don't mess with 136 year old rubble stone.

Taylor votes to abandon restoration of Old Town Hall

In August 2013, Taylor voted to abandon the restoration of the Old Town Hall on the grounds that problems with the foundations were driving the costs ever upwards. On this occasion, mercifully, he was on the losing side in the 4-3 vote and we now have a beautifully restored OTH.  Had Taylor's views prevailed, we would be looking at a derelict old wreck of a building. 

 But the take-away is this. Taylor would have known the perils of building townhouses 5' 10" away from 182 Church Street but he chose not to engage with the issue. After all, it was someone else's back yard, not his.

After the public meeting on 6 February 2017, the developer responded to public concern about the distance between the buildings by increasing the side-yard set back from 1 metre to 1.5 metres (the distance specified in the Town's zoning standards).

Rose Corporation: money in the bank

Taylor reads my blogs and picked up on points made in my earlier one on 182 Church Street. I said the Rose Corporation had loads of cash and could afford to lose one Townhouse out of the eight planned on Church Street to give the historic house more breathing space. Just like any other developer, the Rose Corporation would have to pay development charges to York Region and the Town of Newmarket. These run into many millions of dollars and - as part of a policy to encourage rental - have been deferred for three years with no interest. 

I also said that in approving the King George application they had blown apart their own planning standards.

In his first email on Friday (12 May 2017) Taylor writes:

"I looked up the Regional report approving 212 Davis. It stated that "The opportunity cost of deferring the development charge collection by an additional 18 months would be approximately $290,000 based on the Region’s current cost of borrowing rate at 4.52 per cent. "

"The Regional cost of lost interest was 290,000 dollars the town would be about half of that which would be about 150,000.  So all in it is about 450,000 investment at both levels.  I still believe this is a very good investment in securing the first Rental building in York Region in over 20 years.  Cities and towns everywhere have recognized the importance of new purpose built rental housing and many offer far greater incentives than we did."

and in the second email he quotes me (in the first paragraph below):

"On Monday, councillors agreed a site specific zoning application setting the distance between the heritage home and the townhouses at 7' 5" - blowing apart their own zoning standards in the process."

"I hope you don't mind me asking Gordon but what zoning standard did we blow apart in relation to the distance between the two houses?"

I take these points in turn.

Deferral of Development Charges

Development charges (DCs) help pay for essential regional infrastructure such as roads, water, wastewater and so on. DC collections are critical to managing debt levels. In 2013, for York Region, development charge debt servicing costs actually outstripped DC collections by $24m. So, as with taxes, it is vital the money comes in. The three year deferral is a big concession but one that can be justified on public policy grounds.

If the money doesn't come in as expected, the municipalities incur additional debt and financing costs. The roads, the bridges, the sewers and so on still have to be built.

Taylor quotes the loss of interest over a 18 month period, not 36 months. He focuses on 18 months because condo developers can get this deferral, almost as a matter of course, if they provide a letter of credit at the time the building permit is issued. All this stuff is explained in the Region's DC background study (open here and scroll to bottom of page).

DCs are calculated and are payable in full when the building permit (or permission to build) is issued.

Deferral policy for private purpose built rentals is set out in the background study.

Currently, the Region does not have a formal policy to allow the deferral of development charges for private purpose built rentals. However, policies do exist for the deferral of development charges for high-rise condominiums, offices and retail developments.

Through a pilot project, the Region has provided a development charge deferral for a purpose-built rental building at 212 Davis Drive located in the Town of Newmarket. This 36-month deferral agreement helped facilitate the development of 225 rental units, including up to 56 subsidized units.

Deferring DCs for three years allows the developer to have access to the cash that otherwise would have to be paid over to the municipality. The developer can use the money to make more money. And, as I say, no interest is payable. 

 

So, how much are we talking about?

Taylor's figures suggest DCs of around $6.5 million based on an 18 month deferral and an interest rate of 4.52%. Interest lost to the Region and town would amount to just over $440,000. (My figures need to be checked. This is back of the envelope stuff for me. I am not an older version of Mike Mayes.) A three year deferral doubles the interest foregone.

The DC background study tells us the proposed Residential DCs for Newmarket (which includes the York Region, Town and Education components) comes in at $46,390 per large apartment over 700 sq ft and $36,387 per small apartment (under 700 sq ft).

Just like the Region, the Town also agreed to defer its DCs for 36 months.

Leaving aside the education component (which is relatively small) and excluding the large apartments over 700 sq ft, the amount, broadly speaking, that doesn't have to be paid up front is:

$36,387 x 225 (no of apartments) =  $8,187,075.

Taylor's figures are different from mine but I don't have all the information at my fingertips so I defer to him. I don't have all the answers. The simple point is this. Give or take a million dollars or two, the Rose Corporation has money in the bank and the resources to do the right thing. Our taxes help the development industry.

Conclusion: They should get rid of the townhouse nearest to 182 Church Street and settle for seven rather than eight in the block.

What Zoning Standards did we blow apart?

The application is site specific.  

1 metre (3' 3") between the end of the Townhouse block and the lot line would not have satisfied the Town's Zoning By-law. The applicant chose to stretch the distance to 1.5 metres (4' 11") which does. The staff report that went to last week's Committee of the Whole indicates that the applicant made the concession ("the applicant has increased the side yard set back from 1 metre to 1.5 metres").

When the King George application went in to the Town, the distance between 182 Church Street and the Townhouses, wall to wall, was 5' 10". It was only after the applicant had conceded the extra half metre than the distance went up to 7' 5"

Personally, I suspect the planners would have gone along with 5' 10". But I can't be certain. To insist on anything else would have been to mess around with the application. And I don't think that would have appealed to them. 5' 10" would probably have passed as "good planning".

Nothing has happened on the King George site for decades. the School was built in 1912 and the heritage house, 1881.

182 Church Street is zoned R3-K.

It is classified as a duplex dwelling. If it were being built today, and not generations ago, it would require a minimum yard set-back from the interior side lot line  of 1.8 metres (or 5' 10") to satisfy the Town's zoning standards.

For Townhouses, the Zoning By-law stipulates a minimum 1.5 metres (4' 11") from the lot line and 3 metres (9' 10") separation between Townhouse blocks.

But if we were to apply today's standards, and we were building a new duplex it would have to be built 5' 10" away from the side lot line and the Townhouses would have to be 4' 11' (1.5 metres) away from their lot line. Making a total of 10' 9".

Instead of this, we are left with a shrunken buffer of 7' 5"

The Town's Heritage Advisory Committee recommended a minimum separation of 20'

The developer will get a lot of support from local people - and loads of goodwill - if he acts on the sound advice of the Heritage Advisory Committee.

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When Taylor voted to torpedo the Old Town Hall restoration.

This is the yorkregion.com story from August 2013. (The OTH was officially opened on 23 September 2016)

"At Thursday’s meeting, council had the option of terminating the project at a cost of nearly $1.725 million, or removing and replacing the existing footings and foundation walls at a cost of more than $1.4 million.

During council’s discussion, questions were raised about the due diligence undertaken by project managers Mettko, architecture firm Black and Moffat and structural engineers Reed Jones Christofferson Ltd., the fact that just a single exterior test pit was dug and why, if the foundation problems were uncovered in June, council was only hearing about it now.

For his part, Mettko’s Bill Katsiroumpa said it’s unclear if more test pits would have revealed the problem, while heritage architect Walter Moffat said the spot that could be accessed was tested.

“This would have been unknowable unless you excavated the entire building during the design phase,” he explained.

In the end, council voted to move forward with the removal and replacement of the existing footings and foundation walls, with Mayor Tony Van Bynen and councillors Chris Emanuel, Tom Vegh and Dave Kerwin voting in favour. Councillors Jane Twinney and Maddie Di Muccio and Regional Councillor John Taylor dissented. Ward 4 Councillor Tom Hempen declared a pecuniary interest and did not participate in the debate or vote on the matter.

Details

Background: A special public meeting was called on Monday 8 May 2017 to consider a planning application by numbered company 2439107 Ontario Inc who plan to insert a four storey rental apartment building into a stable low rise residential neighbourhood at 751-757 Gorham Street. The area is typically detached and semi-detached housing. The developer, David Beswick, needs amendments to the Town's Official Plan as apartment buildings are specifically prohibited. He also needs a Zoning By-law amendment. He has called on the services of Mr Howard Friedman.  

Howard in Action

On Monday 8 May 2017 I drop in on the public meeting in the Town's Council Chamber to see Howard in action. (That's him in the hot seat, right)

Over a year ago I blogged about the shadowy Mr Friedman who flits between the public and private sectors, acting as a paid go-between, smoothing things out between the Town and the development industry and acting as a lubricant, progress chaser and general factotum.

By trade he is a planning consultant in private practice in Newmarket. He was at Monday's meeting to give a presentation on behalf of the developer. But Mr Friedman also wears another hat as the person who chairs the Town’s “Development Co-ordination Committee” whose members include senior Town staff from planning, engineering and legal services as well as people from the development industry. 

Howard's alter ego

Mr Friedman's alter ego has been working for the Town for 19 years with two years left to run on his contract. Town staff come and go but he is a constant. He knows where all the bodies are buried.

It is a very curious state of affairs.

Anyway... I am waiting for Mr Friedman to open his presentation by reassuring the public there is no conflict of interest between his two day jobs - working for the Town and developers simultaneously. But I hear nothing. 

As it happens, questions were raised by councillors last year about a possible conflict of interest when they were extending his contract with the Town for another three years but they were assured everything was done by the book.

No conflict of interest

The Town’s Director of Planning, Rick Nethery, said if there was a conflict of interest Mr Friedman would declare it, ask a staff member to take the chair, and leave.

The developers love the Development Co-ordination Committee so much so they reimburse the Town for the cost of employing Mr Friedman.* The old banker, Tony Van Trappist, is also a fan of the arrangement because it saves the Town money.

But what do the developers get out of it? Except loads of inside knowledge about how the Town operates and insights into who says what and why.

In February 2016, the Director of Planning, Rick Nethery, explained Mr Friedman's role this way:

"HBR (Mr Friedman’s  firm) has managed to ensure a balance between the Town’s best interests being protected while respecting the challenges that face developers.”

Regional Councillor John "I feel your pain" Taylor has now declared he is opposed to the Gorham Street development.

What advice, I wonder, is Mr Friedman offering to his client, Mr Beswick, on how best to address this latest turn of events?

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Update later on 12 May 2017   * In fact, the 2016 report that went before councillors makes it clear: 

"The costs incurred by the Town through the services of the Development Coordinator are forwarded directly to the development community for payment, ensuring that the Development Coordinator position is revenue-neutral to the Town. The total amount billed by the Development Coordinator over the past 5 years is approximately $108,000.00, which represents an annual average of approximately $21,600.00 per year. As noted, all of these costs are transferred directly to the appropriate developers through invoices that reflect the time and material costs spent by the Development Coordinator on their individual submissions and work performed on their subdivisions. The DCC process is considered a best practice in York Region by the development community."

 

Details

Paddytown campaigner, Christina Herancourt, has scored a famous victory. 

Coming from a standing start, she persuaded the Town's planners to recommend to Council on Monday (15 May 2017) that an "Interim Control By-law" should be slapped on Old Main Street, immediately halting development applications that were threatening to change the face of the neighbourhood.

Her deputation to the Committee of the Whole earlier this week listed a string of concerns about the impact of new developments.

The planners'  report to Monday's Council meeting says:

"Council is given power to enact Interim Control By-laws through the Planning Act. They are, in effect, a pause button, allowing Council to put a freeze on development applications, in order to take some time out and study the situation. It allows for Council to take a bigger picture view of the potential for change in an area where large scale redevelopment was not previously considered."

The report goes on:

"Council must have a justifiable planning rationale for enacting an Interim Control By-law. They can be appealed to the Ontario Municipal Board after their passing. An Iterim Control By-law can freeze development for a period of one year with a possible renewal of one more year (renewal requires Council enact another By-law); for a total of two years..."

The Town's planners have a symbiotic relationship with developers, nurtured over many years. They are rarely on the side of community groups. Now, in a welcome move, they say a study of the area is required.

Their report says:

"An Interim Control By-law could freeze all development, including the current Development Application and prohibit the acceptance of any new applications."

Councillors, who typically lean like crutches on the recommendations of the Planning Department, are certain to approve the report and impose the Interim Control By-law.

This would never have happened without the Paddytown campaigners.

Christina Herancourt, in particular, deserves a round of applause.

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You can read the report here. Open packet for Council meeting on 15 May 2017 and scroll to page 62.

 

Details

 

The Rose Corporation - the people behind the King George School Lofts and Town Homes - are planning a huge new development off Davis Drive at 175 Deerfield Road, Newmarket.

The 4.4 acre development site is next to their 15 storey rental building going up at 212 Davis Drive.

The site is currently industrial but the Rose Corporation is planning a major residential development of more than 500 units. 

They are still at preliminary design stage but say the project may include purpose built rental apartments, condominiums, and freehold town homes.

The Rose Corporation has been asked by Newmarket councillors to take another look at their King George development on Park Avenue to see if they can increase the distance between the renowned heritage home at 182 Church Street and the Townhouse development.

On Monday, councillors agreed a site specific zoning application setting the distance between the heritage home and the townhouses at 7' 5" - blowing apart their own zoning standards in the process.

But apparently that's what zoning standards are there for.

To be amended.

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