Details

Written by Gordon Prentice

Published: 29 April 2017

Just days before the OMB pre-hearing on the Clock Tower we know there has been deception on a grand scale. We have all been led up the garden path. 

Was it just a rogue planning department with its own agenda or does it go further?

Last week I received an email from the Town's Legislative Services Department giving answers to questions I had asked some time ago. The author is not identified so I use the word Town instead. My questions together with the Town's answers are shown at the bottom of this page.

Clock Tower FSI is 4 not 2.9

The Town now concedes that:

"after review... a FSI of 4 would more accurately describe the proposal".

Question. When was this "review" undertaken?

The Clock Tower FSI has been a matter of debate and contention for months if not years. Siegfried Wall has repeatedly raised the issue. I have taken a deputation to Council on the development's FSI and invited questions from the Mayor and Councillors. There were none. (On video at 39 minutes in.)

Ontario's Ministry of Housing tells us the Floor Space Index is:

"The ratio of the gross floor area of a building or buildings to the gross area of the lot on which the building or buildings are located. A floor space index (FSI) of 2.0 would indicate that the gross floor area of a building could be up to 2 times the gross area of the lot on which it is located."

Density  

FSI is a tool used by planners to regulate density of development.  Broadly speaking, this correlates to the number of people living and working in a specific area. Pick up any Newmarket Planning document from the Secondary Plan and the Official Plan to the Zoning By-law and the three letters "FSI" are everywhere. Despite this, there is only a fleeting reference to FSI in the report of 28 November 2016 that went up to councillors for decision.

"The performance standards for this zone (Historic Downtown Urban Centre) have a minimum height of 2 storeys and a maximum height of 3 storeys, a minimum floor space index of 0.5 and a maximum floor space index of 1.0... The applicant is proposing to amend the existing zoning on the property to allow for a 7 storey building stepped back from Main street with a floor space index of 2.9."

There was no commentary on the FSI and how it was calculated. No mention of density. And there was no indication that the true FSI was 4.

The bigger the better  

Bob Forrest wanted as big a development as he could get away with. One with lots of units. That's the way to make money. Forrest and his loyal lieutenant Chris Bobyk made any number of statements over the years making it clear that their various developments were not viable and could not be financed if they didn't get approval for a minimum number of apartments. The denser the better.

As we have seen, developments in the historic downtown should be no more than three storeys with an FSI of 1.0.

The Town now tells me the failure to address the issue of FSI was not an oversight. Siegfried Wall's comments were taken to mean he was concerned the development was much too large and was incompatible with the surrounding area. Anyone viewing the video record of the Statutory Public meeting on 9 May 2016 (at 2 hours 33 minutes in) will see he specifically raised the issue of density and dwelt on it, concluding the development's FSI was four times the permitted FSI - a position the Town now accepts as correct.

Manipulation and deception

At Monday's Council meeting (24 April 2017) I asked the Mayor if he had been aware of the potential for manipulation of the Clock Tower development's FSI. I reminded him he described the report of 28 November 2016 as "comprehensive". (The video is at 29 minutes in.)

I said the report was misleading because it gave an FSI of 2.9 for the Clock Tower development when the Director of Planning knew it to be much higher. The true figure was not in the report and I asked if he was aware of that deception.  

Van Bynen replied:

"I take exception to you using the word deception. And I also take exception for you inferring it was misleading information. And you need to be prepared to defend that.”

Well, here goes...

As a fact, we know the developer calculated his bogus FSI by using underground land in the ownership of the Town which lies outside his lot. The Town now concedes that using underground parking is not permitted by the Town's Zoning By-law 2010-40.

As a fact, we know the Planning Department did not specifically discuss the FSI with Forrest's Heritage Consultant, Goldsmith Borgal, nor with the Town's peer reviewer, ERA Architects. 

As a fact, we know the Gross Floor Area (which is central to the calculations for determining FSI) should not include underground parking areas either inside or outside the applicant’s lot. 

Despite all this, the Town says the recommendations of the report would have remained the same as the more relevant focus of the report from a planning perspective is on height and massing.

In the absence of any other plausible explanation, it seems perfectly clear (at least to me) that the Town's planning department was working to an agenda designed to secure approval for Bob Forrest's Clock Tower development.

The fact that it all went pear-shaped at the very end and the planners had to come up with a compromise - which was rejected by councillors - is neither here nor there. The deception was prolonged, sustained, deliberate and unapologetic.

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Question:  In the section of the comprehensive Staff report on Community Consultation no reference was made to the point made by Siegfried Wall at the Statutory Public meeting on 9 May 2016 and, again, on 28 November 2016 that the FSI of the development (without factoring in Town owned land) was over 4. Why was that? Was it simply an oversight?

Town's Answer: The report did not discuss the details of the proposed FSI and calculations. I would not consider it an oversight as I understood the point of Mr. Wall’s comment to be that the proposal was much too large and not compatible with the surrounding area, which was the entire thrust of the report when discussing building height and massing.

The report did not identify and answer each question or comment provided from public consultations, but rather grouped comments into themes. The report provided an in depth review of the proposed height and step backs along with their impacts as this provides a more telling and accurate visual of what is being proposed. As you know, a building can take many different forms (height and coverage) while still meeting a particular FSI.

Question: The Town's own Secondary Plan stipulates:

"The calculation of gross floor area shall not include the floor area of underground and above grade parking structures, bicycle parking, or public transit uses, such as stations or waiting areas."

(Newmarket Secondary Plan. Office consolidation October 2016. Section 6.4.5 xii)

You told me on 2 December 2016 the underground parking space was used to calculate the FSI of the Clock Tower development. Is it the case that the italicised extract above only applies to the Secondary Plan area or is it policy across the Town.

Town's Answer: With regard to your question on the definitions relating to Gross Floor Area to clarify, the gross floor area as defined by the Zoning Bylaw and the Secondary Plan does not include underground parking areas.

The Land Area as defined in the secondary plan could include off street parking areas whereas the Lot Area as defined in the Zoning By-law would not include the Town owned lands beyond the property boundaries. We will be looking more closely at this in our zoning bylaw review to ensure consistency within the document. Having said that, after review, while a FSI of 4 would more accurately describe the submitted proposal, the recommendations of the report would have remained the same as the more relevant focus of the report from a planning perspective is on height and massing. _______________________________________________________________

Definitions in the Town's Zoning By-law 2010-40

Gross Floor Area means the aggregate of all floor areas of a building or structure above or below established grade, which floor areas are measured between the exterior faces of the exterior walls of the building at each floor level but excluding any porch, veranda, cellar, mechanical room or penthouse, or areas dedicated to parking within the building. For the purposes of this definition, the walls of an inner court shall be deemed to be exterior walls.

Floor Space Index means the gross floor area of all buildings on a lot divided by the lot area.

Definitions in the Newmarket Secondary Plan:

The Land Area to be used for calculating FSI shall include all lands used for buildings; off-street parking and servicing areas; private streets and driveways; lands conveyed to the Town for underground hydro; private landscaped etc etc... and exclude public streets etc etc...

_________________________________________________________

Details

Written by Gordon Prentice

Published: 27 April 2017

The casual demolition of irreplaceable historic commercial buildings - including one dating from the mid 1840s - represents

"good heritage planning"

according to Ira Kagan, the lawyer who will be presenting Bob Forrest's case to the OMB next Wednesday.

So why not allow property owners to demolish if they want to? They can keep the facade, perhaps spruce  it up a bit, and redevelop the site? What's wrong with that?

Demolish to Conserve!

In the bizarre world of planning, contaminated as it is by vested interests and biddable lawyers, it doesn't seem at all ridiculous to recommend the demolition of historic buildings in order to save them.

The Town's 2011 Heritage District Plan (replicated word for word in the 2013 By-law) says this about historic buildings (the definition of which includes the historic commercial buildings at 184, 188 and 194 Main Street South that Forrest wants to demolish).

"The Town recognises the importance of four forms of historic buildings in the district - historic landmark buildings, historic commercial buildings, historic houses and the historic registry office - and their heritage attributes."

and for the avoidance of doubt

"The Town supports the retention of historic buildings in the district."

and to underline the point

"Demolition and replacement of historic buildings needs to be avoided since the conservation of historic buildings is essential to maintaining the district's authentic historic character and revitalising the district."

Competing Interests

Forrest's Heritage Impact Assessment, prepared for him by Goldsmith Borgal in February 2016, said a review of (previous) plans for the old downtown

"reveals numerous competing interests that ultimately must be weighed by the Town Council. It is Town policy to revitalise Lower Main Street South while preserving its historic character. However, throughout these various plans, the realistic ability to achieve these two goals simultaneously has not been outlined/illustrated."

Goldsmith Borgal conclude:

"...the proposed development, while not meeting the Heritage Conservation District Plan in terms of height restrictions, could be mitigated in order to allow the Town to meet a number of other planning goals in the Historic Downtown Core. This Heritage Impact Assessment includes examples of how architectural design can further enhance the compatibility of new construction in Heritage Conservation Districts."

So Goldsmith Borgal's strategy is to "mitigate" the impact of the Clock Tower development rather than rule it out completely despite the fact that historic buildings will disappear forever. Once they are gone they are gone.  

The Town's Planning Department did not tell Goldsmith Borgal about the manipulation of the Floor Space Index (and neither had they told ERA Architects) despite the fact that the FSI feeds directly through to the built form.

Like the rest of us they were kept in the dark. That said, I might have expected them to ask the question: How come we are looking at such a huge structure in a Heritage Conservation District? 

One of the oldest buildings on Main Street. No point keeping that!

In Goldsmith Borgal's review of the buildings to be demolished there is this pen portrait of 184 Main Street South:

"This two storey frame structure is the oldest extant building on the block, and perhaps one of the oldest buildings on Main Street South. Dating to the early nineteenth century (likely c1840), it may be the building referenced in an early drawing of the street as the Smith & Emprey General Store. Smith and Emprey was established in 1837 and was located immediately north of the North American Hotel. The building at 184 Main Street South is also represented on the 1862 plan of the Village on lot 19. Charles Hargrave Simpson, whose wife, Anne Mary Simpson, was Ontario's first woman druggist, once owned the building. Simpson operated an apothecary from 1886 to 1914."

This is one of the buildings to be casually demolished in the name of:

"good heritage planning".

The Town commissioned ERA Architects to peer review the work of Goldsmith Borgal.

The peer reviewer and its obligations to the Town

In November 2013 the Town awarded a “peer review” contract to ERA Architects of Toronto. They would be responsible for peer reviewing any Heritage Impact Assessment for 180-194 Main Street South. The terms of the Town's contract with ERA Architects specified:

"The Peer review will evaluate the assessments provided for heritage impact assessment. This review will include, but is not limited to, addressing inconsistencies, factual errors, discrepancies, inappropriate conservation advice not consistent with recognized standards (see below), omissions and misrepresentations.

It is expected that the preferred protective and mitigative measures will be consistent with the Lower Main Street South Heritage Conservation District Plan and recognized standards for heritage conservation..." (my underlining)

ERA Architects prepared two peer reviews (on 22 July 2014 and 4 May 2016) and the central question of the demolition of historic commercial buildings was not addressed head-on by either.

ERA understood the developer was intending to adaptively re-use the Old Post Office Building and "where possible" incorporate the facades of the 19th century commercial buildings at 184, 188 and 194 Main Street South. (190 Main Street South is a late twentieth century commercial infill with no architectural or historic merit.)

Their recommendations included this one to:

"Clarify the conservation strategy by describing the intended approach to each building being conserved."

The honest answer is to say they are being conserved through demolition with the facades being retained if possible. 

Ludicrously, we shall only be told about the “conservation strategy” if the development gets the go-ahead. It will then be addressed at site plan approval stage. I wonder what the owner of the restaurant/pub at 196 Main Street South thinks about that. He shares a roof and a floor with 194 which is earmarked for demolition. 194-196 are two halves of the same building.   

How do you square demolition with the HCD Plan?

There are concerns that ERA Architects may not have fulfilled the terms of their contract with the Town which obliged them, when preparing their peer review, to take into account the Town's Heritage Conservation Plan which specifically ruled out the demolition of historic commercial properties. I wrote to the Town's Chief Administrative Officer, Bob Shelton, who replied on 20 May 2016:

"I have discussed the review process with staff and advise that your comments and various points will be provided to Planning staff for their consideration as part of the review of the peer review report."

I have asked for sight of the review of the peer review but I am still waiting. These days it's radio silence.

Forrest Fumes

In his intemperate letter of 28 November 2016 to councillors, Bob Forrest railed against the Town's decision to reject his Clock Tower development by calling in aid the heritage professionals:

"the two heritage experts have brought monumental experience and expertise to support staff...  that experts of this caliber (sic) should be arbitrarily rebuffed without consultation or explanation is disappointing, surprising and, in the end, shocking."

When Forrest started out on his calamitous Clock Tower project he wanted to demolish the historic buildings at 184, 188 and 194 in their entirety. But his slideshow presentation to the Statutory Public Meeting on 9 May 2016 tells us he now loves heritage - and so does the Town.

Now that we've got that boring and tedious conservation stuff out of the way...

bring up the wrecking balls and let's get started!

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Details

Written by Gordon Prentice

Published: 25 April 2017

Last night, in a brief deputation to Council, I asked for sight of the agreement in principle that the Town entered into with Bob Forrest on the land swap. I explained why this was important. The land swap allowed for the manipulation of the development’s Floor Space Index resulting in a much bigger building than most people ever believed possible. 

Of course this agreement was never nailed down. But the prospect of it was enough to keep Forrest hoping that something would come of his speculative gamble and that, at the end of the day, he would get his Clock Tower development and his clear profit of $10m.

In the early days, he threatened to walk out.

Way back in October 2012 when he was teeing things up, he told Newmarket's CAO, Bob Shelton:

 "We are spending money to work out issues with Heritage and BIA. The cost of preparing a complete application for zoning is far too onerous for us to undertake without having (redacted). Given that we have spent over $100,000 on reports and design, in the last 30 days, if the above is not going to fly, we prefer to withdraw right now."

Dance of the Seven Veils

In a dance of the seven veils extending over many years the Town gave him enough encouragement to keep him interested. He got his "agreement in principle".

Forrest's initial planning justification report, prepared for him by MHBC, was published in August 2013. The second and final planning rationale report (also prepared by MHBC) was published on 27 January 2016.

The 2016 version contained the following sentences that were absent from the first:

"The owner has an agreement in principle with the Town that will allow for a land exchange and strata agreements that will accommodate sub-grade parking for the rear of the Proposal, while allowing the Town to own and operate the surface. The Subject Lands include certain lands the Town wishes to own and operate, and certain lands the Owner wishes to utilize for development purposes. The agreement in principle is conditional upon development approvals on the Subject Lands."

A few weeks after that report had been published, on 23 February 2016, the Town Solicitor, Esther Armchuk, told me

"Council last dealt with the matter (a land exchange request from the Clock Tower developer) in closed session on 24 June 2013."

We know from the Planning Staff report that went to the key Committee of the Whole meeting on 28 November 2016 that:

“… the zoning amendment application process allows for an applicant to apply for a rezoning of lands on behalf of the owner with the owner’s authorisation. In this instance, staff is satisfied that the Town’s authorisation to proceed with a rezoning of its lands is understood to be granted in order to implement the staff recommendations, as amended, in Closed Session Report 2013-05 which were adopted by Council on June 24, 2013…”

However, we still don’t know the full extent of what that Closed Session staff report said.

So what really happened?

Van Bynen is a friend of Forrest. They both want to see intensification of the old  downtown. Van Bynen believes the jumble of old buildings on Market Square is an eyesore. He wants them gone. He tells Bob Shelton and/or Rick Nethery that he is in favour of the kind of intensification Forrest is proposing and can they find a way to make it happen. Forrest provides the solution with his cunning land swap.

I am prepared to believe most councillors were unaware of the FSI manipulation. Throughout the Clock Tower documentation there is a figure (from “experts”) stating the development had an FSI of 2.9 with no countervailing commentary from the Town’s planning staff on how it was derived and what the implications were. The absence of such a commentary was truly shocking. It was a deliberate attempt to mislead.

In a debate on Transparency and Disclosure of Information on 29 September 2014, Regional Councillor John Taylor told us:

“… in camera discussions go through a process and most of them eventually, if not all of them, eventually come out of camera. You go through a process that takes time and staff review it and they report back to us how to bring it out in its entirety or partially and at what stage.”

That is wishful thinking – especially when these reviews involve the very same staff who are designing and implementing policy in the name of elected officials.

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Freedom of Information Requests

A batch of FoI Requests relating to the Clock Tower has been posted on the Town’s website in the last week. You can review them here.

A Freedom of Information request (A17-17-15) which relates only to 178-180 Main Street South states that in respect of the Closed Meeting on 24 June 2013:

"no agreement exists related to the acquisition and/or disposition of land in connection with the Old Post Office redevelopment at 178-180 Main Street."

Maybe that FoI request was too narrowly drawn. Today, I have put in an FoI request requiring the Town to disclose

"any agreement or agreement in principle related to the acquisition and/or disposition of land reached by the Town in respect of the Clock Tower Subject Lands being 178-194 Main Street South."

Deputation to Council on 24 April 2017

Prentice: Thank you very much Mr Mayor. I don't think I need five minutes to say what I have to say.

The Architectural Conservancy of Ontario will formally be seeking Party status at the OMB in just over one week's time. And we will be supporting the Town's position, broadly speaking, with a few caveats, but we think the Town on 28 November and 5 December did a terrific job, collectively. So that will be our position.

But I want to be able to say to the OMB at the prehearing and thereafter that we have had sight of this famous agreement in principle - if it exists or not - and the details of the proposed land exchange.

And you may ask and people will ask why is this so important. And it is important for this reason.

The land swap allows a manipulation of the Floor Space Index which, in turn, influences the built form. So in the public meetings - and we saw Ron Eibel's model and everything - and lay people like myself said how on earth is that possible? I remember saying these very words. How on earth is it possible?

It was possible because the Floor Space Index had been manipulated by using land in the ownership of the Town under Market Square. So that is why we need the information.

Now, can I ask you a question? Is it allowed to ask a question Mr Mayor?

Mayor: But we are not going to get into a debate. You can ask the question but we will receive your deputation. 

Prentice: Am I allowed to ask a question?

Mayor: Go ahead.

Prentice: My simple question is this. Were you Mr Mayor - this is a question for all councillors but I'll direct it at you - were you aware of the potential for manipulation of the Floor Space Index before, say, the 28th of November 2016?

Mayor: I am not even aware that there was manipulation of the Floor Space Index. That needs to be resolved with staff and that's a matter that will be discussed at the OMB.

Prentice: OK

Mayor: Not here.

Prentice: And my second and final question is (this). You said on 28 November the report prepared by the staff was comprehensive. But we know it was misleading because the Planning Director has said as much. That important report that was being put forward to council for decision had an FSI of 2.9 and Mr Nethery said of course it was higher than that. He said that. There is no dispute. That is what he said. And my last question to you is this. Were you aware of that deception?

Mayor: First of all, I take exception to you using the word deception. And I also take exception for you inferring it was misleading information. And you need to be prepared to defend that. But this is not the place to discuss that. The place to discuss this is at the OMB. Let the OMB decide what is appropriate. You deputation here is to request information to be released. There is a process and a protocol for information to be released. I believe you are aware of that. It is my intention to follow that process. This municipality is governed by the Municipal Freedom of Information and Protection of Privacy Act. We will respect that because that is a Provincial Statute. It is an obligation of this municipality and I have no intentions of by-passing that.

Prentice: Fair enough. Are there any questions?

Mayor: There being none then it would be appropriate to receive this deputation. Can I have a motion please?  All those in favour. Carried.

Prentice: Thank you.

Details

Written by Gordon Prentice

Published: 24 April 2017

The Clock Tower cannot be built. So what is the point of Forrest appealing to the OMB? 

I have blogged before about the sheer craziness of having to spend public money to defend against Bob Forrest's appeal to the OMB for a building that cannot be built. The Clock Tower development needs Town owned land which is not forthcoming.

Even if it were to allow Bob Forrest's appeal, are we seriously expected to believe the OMB has powers to expropriate public land in favour of a private developer and determine the quantum of compensation that would be payable by Forrest to the municipality?

Just to pose the question illustrates its absurdity.

But, perhaps, we are not alone in this lunatic world.  

All eyes on Richmond Hill

I see another OMB Hearing is to begin on 8 May 2017 in Richmond Hill.

In it, CIM Developments Inc are appealing the failure of the Town of Richmond Hill to amend the Official Plan to change the existing designation of the land CIM wants to develop from "Neighbourhood Commercial" to "High Density Residential". The developer wants a mixed use development of 81 townhouses and two six storey residential buildings and commercial space. Apparently, CIM Developments doesn't own all the land it needs. Sound familiar?

Sam and Joanne Gideon are amongst the Parties.

One of their issues asks:

"Does the Board have jurisdiction to approve a draft plan of subdivision that shows any aspect of the appellant's proposed development (including a road allowance) on lands which are not owned by the appellant?"

and again

"Should any aspect of the appellant's proposed development, including any portion of a road allowance or future access road off Elgin Mills Road East, encroach on, or constrain the long term viability of lands municipally know as 865 Elgin Mills Road East, which lands are not owned by the appellant?"

This land is my land. This land is your land.

It is, of course, possible for a developer to submit a zoning by-law amendment covering land he or she doesn't own. But I have always assumed those affected would have the opportunity to comment and make representations. 

So, when Bob Forrest approached the Town with his proposed land exchange to facilitate his development at the Clock Tower, the Town, presumably, would have taken a view. It is just that we, the great unwashed, were not let in to the secret.

In a nutshell, the proposed land exchange (whether there is an agreement in principle or not) allowed for the manipulation of the Clock Tower development's Floor Space Index which directly impacted on its built form. It was a lot bigger than many people ever thought possible in the old downtown, protected as it is by the Heritage Conservation District Plan and/or Heritage Conservation District By-law. Take your pick. (The photo above shows the development as seen from the historic Old Town Hall in Market Square.)

If things go pear-shaped and Forrest loses his appeal I suppose he could exact revenge by putting in a planning application for a seven storey apartment building on the site of the municipal offices at 395 Mulock Drive.

Forrest could plausibly argue the area is ripe for intensification and his condo is just the kind of intensification Mulock Drive needs. It is close to the proposed Mulock GO Rail Station and some kind of secondary plan for the area is already being worked up. Does it really matter that Forrest doesn't own the land at 395 Mulock Drive?

I think we should be told.

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