Details

Written by Gordon Prentice

Published: 12 April 2017

Bob Forrest's Clock Tower appeal to the OMB is now just three weeks away and it mystifies me how we got this far. The appeal has no merit. The whole thing is a complete pantomime. 

The OMB should dismiss the appeal without a Hearing on the grounds it is a pointless waste of time which will cost the public purse hundreds of thousands of dollars that can be better spent elsewhere.

The Pantomime Villain

So, to start at the beginning. An applicant can put in a planning application which covers land that he or she does not own - and this is precisely what Bob, the pantomime villain, did.

But now the Town has made it crystal clear that its land will not be sold, leased or otherwise traded to facilitate a project which the Town has turned down.

Almost a year ago, on 25 April 2016, in an open session of Council, Regional Councillor John Taylor said:

"The Council this evening is making sure it is clear to everyone that the sale or transfer of land can only occur in relation to a Council approved and endorsed development at the end of a full planning process and only after the project has significantly been advanced."

The Planners Pronounce

The Town's planners gave their interpretation of the meaning of Taylor's words in the Committee of the Whole Report (2016-25) of 28 November 2016. It is worth quoting in full: 

"On April 25, 2016 Council directed that the Town prohibit the sale or transfer of land in relation to the Clock Tower site unless in relation to a Council approved and endorsed development (the "Development") and only after the project has significantly advanced. Staff submits that this process may be effected through the inclusion of several terms and conditions in any proposed sale agreement between the Town and the Developer.

These terms and conditions may include the following collectively:

* Any zoning by-law amendment for the Lands is approved by Council.

* A site plan application for the redevelopment of the Lands is submitted and approved by Council.

* A site plan agreement for the redevelopment of the Lands is executed and related securities are deposited.

* The demolition of applicable buildings on the Lands, in accordance with accepted heritage conservation practices, to facilitate the site plan

* A record of site condition for the Lands, as described below, is completed and filed in accordance with provincial environmental protection regulation and the Town's official plan.

An environmental record of site condition summarises the environmental condition of a property and is based on the completion of environmental site assessments. The work required to effect such a record will ensure that the site has been made suitable for the Development.

Staff submits that the above-noted measures would evidence the advancement of the redevelopment of the Lands and would require significant investment of funds prior to any transfer of Town lands.

It is a fantasy to believe any of these things would now come to pass given the Town has rejected the Forrest application.

Cheerleader-in-Chief

Even Forrest's cheerleader-in-chief, Tony Van Trappist, is having second thoughts. Van Trappist  mistakenly took us all for fools when he declared in April last year that Forrest's Clock Tower was just the kind of intensification the old downtown needed. But by 5 December 2016 the old banker was telling us:

"My reason for denying the application is because I supported Staff and its recommendation. I don't think that the original application itself should be approved."

The Ontario Municipal Board has powers to dismiss all or part of an appeal without holding a Hearing, on its own initiative or on a motion of any Party, if it is of the opinion that:

"the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Board could allow all of part of the appeal."

As I have said repeatedly, the Clock Tower in the form submitted to the Town - and now going to the OMB on appeal - simply cannot be built. The plans, drawings and studies all relate to a building which requires Town owned land to be built and that land is not forthcoming.

Public Money

It would be lunacy beyond words for the OMB to allow this appeal to proceed. Hundreds of thousands of dollars of public money would be spent on resisting Forrest's ludicrous appeal for a building that is never going to be built. The OMB cannot force the Council to make its own land available to Forrest.

The Glenway OMB Hearing cost the Town $588,291 - and that was for a half hearted effort involving under-briefed Counsel and a boycott by the Town's own Planning staff. The Clock Tower is different. With the exception of Van Trappist, our other elected officials give every impression they want the Town to win at the OMB. The money that may have to be spent on the Clock Tower OMB Hearing will be money well spent, but, undeniably, it comes at a cost.

During the recent debate on councillors' remuneration, Taylor referred to the programmes that would be at risk if councillors voted to remove their tax free status. It would have an impact of around $100,000 on the Town's budget

"yet as we know in the past year we struggled over a $25,000 figure over whether we could sustain the planting programme at some of our facilities at some of the entrances to our communities."

Agreement in Principle

So why is Bob doing this? Is there some kind of agreement in principle between Forrest and the Town that gives Bob encouragement? 

On 5 September 2015, Bob told his business colleagues - the people who help finance his developments:

"Bob Sheaffer is drafting the land swap agreement. When we are happy with it, it will be reviewed with the Mayor and senior staff, then we must go before Committee of the Whole, in camera, to seek their blessing on it. We already have their agreement in principle."

The Town steadfastly refuses to disclose details of this alleged "agreement in principle" but, if it exists in some form, Taylor clearly doesn't think it amounts to much.

Not for Sale

I've urged Taylor to take another motion to Council to declare the Town lands in Market Square, above and below ground, are not for sale. The lawyers would say this is required for the avoidance of doubt. He tells me it is not needed.

There is a strange precedent involving Forrest himself. On 19 June 2014 Bob placed an ad in the Globe and Mail putting the Clock Tower up for sale. Clearly, no-one took the bait and, eleven months later, he was approached by a local businessperson who asked if the property was still up for sale.

The mendacious Bob breezily told him:

“The building is not for sale and never has been.”

That's what I want to hear the Town say. In similar form.

 "Our lands are not for sale and never have been."

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The 25 April 2016 debate.  View here at 1 hour 4 minutes in:

Moved by John Taylor and seconded by Joe Sponga. 

(a) That Corporate Services (Legal Services) Closed Session Report 2016-05 dated 25 April, 2016 regarding a proposed or pending acquisition of land in Ward 5 be received;

(b) And that the recommendations in Corporate Services (Legal Services) Closed Session Report 2016-05 as amended, be adopted;

(c) and that the Council of the Town of Newmarket prohibits a sale or transfer of land in relation to the Clock Tower site unless in relation to a Council approved and endorsed development and only after the project has significantly advanced and that staff report back on the exact mechanism for ensuring this process.

Regional Councillor John Taylor:  I think as many people are aware there is... and it (the issue of Town land needed by the developer) has been in the public domain going back as far as 2013 when there was a report, 2013-35 of the Planning and Building Services Report, that referred to and I think I'll read it just to...

That the proposed sale contemplates the conveyance of a parcel of Town-owned land in the North East corner of Market Square and the process... the proposed 2 storeys of underground parking would extend further under the existing library parking a portion of the Market Square parking lot.

And so, for some time, there's been a public recognition that the Clock Tower development may require a small portion of Town land either above or below the ground. The Council this evening is making sure it is clear to everyone that the sale or transfer of land can only occur in relation to a Council approved and endorsed development at the end of a full planning process and only after the project has significantly been advanced.

I feel that this is the Council's way of making it abundantly clear to people that we understand, as I think many people understand, that this is not like most planning applications that are easily appealed to the OMB because we have some ownership of some land that may be required for development and this development. That, in essence, gives us a form of potential - and I'll only say potential - veto and so we are making sure that we are being clear with the public because there has been some speculation. That we understand this and we are protecting that right and that option in relation to a sale of land until after a full process has occurred and only in the case of a Council approved and endorsed development.

And we go on to state that only after the project has significantly been advanced. The reason this is important is because if, and only if, and this is far from anyone knowing where this is going but if Council supports a plan, any plan now or in the future, if the sale of land or transfer immediately following that approved plan it's possible that a proponent - a current proponent or a future proponent, could then take the deed of any land that may or may not be transferred and re-apply or sell the land and you would have a new application on your hands perhaps a greater application and you would no longer have control over the land which represents Council having a significant control in the outcome of the development.

So Council is ensuring not only that land cannot be transferred until after the development is approved and endorsed through the regular planning process by this Council but also until the project has been significantly advanced to ensure that we will not be facing a re-application for a new development by a current or a different owner subsequent to the transference of land.

So I think this again has been in the public domain for some time. This is a potential possibility and we are clarifying at this time for everyone concerned that we understand what that means for this Council and for this Town and that we intend to keep control over that land until we are sure of the outcome of the process and that we are sure this Council supports the outcome as well as advancing the project itself.

So I hope that is clear to people. I know that people were perhaps not entirely clear on the process or where the Council stands or on the process itself and what this land represents and this is our way of providing that clarity.

Councillor Joe Sponga: I would like to add to Councillor Taylor's comments. Well put, thank you Councillor Taylor. But I'd like to add to the fact that there is specific language here that... People have asked at the end of the day if you don't sell them the land they are not going to be able to move ahead with the development. I think we all owe each other to deal in good faith and to uphold the highest standards of ethics possible and so the Town of Newmarket wants to maintain that control but at the same time have the opportunities to explore opportunities and potential projects that benefit everyone, our community as well, and that we can all input and be part of that process.

I think that the language though here is very important for me. It is the language that refers to the endorsement or the approval of the Town of Newmarket. What that means is that we are not going to negotiate this land until Council has either endorsed or approved this development and that clearly, clearly states that it has to be an endorsement and an approval by the Town of Newmarket. Not an endorsement or an approval of the OMB which means that if this unfortunately was to go to an OMB Hearing and the OMB was to rule unfavourably towards the Town of Newmarket we would still not be obliged to give up our land.  I think that is a very important tool that Councillor Taylor referred to as control of our lands. We need to make sure we keep that in our back pocket and we need to exercise it in the best interests of our residents of Newmarket. Thank you Mr Mayor.

Details

Written by Gordon Prentice

Published: 10 April 2017

The report written by the Town's planning staff that went before councillors on 28 November 2016 contained key information which was known at the time by the Director of Planning to be bogus and misleading.

The report did not challenge the stated FSI (Floor Space Index) of the Clock Tower (2.9) when it was known to be much higher (4.27). Developments in the historic downtown are supposed to have an FSI of 1.0 

The FSI is calculated by dividing the gross floor area by the lot size. Forrest's own Planning Rationale Report says the gross floor area of his proposed development is 11,059 sq m and the lot area is 2,655 sq m. This gives an FSI of 4.279 yet the figure 2.9 appears throughout Forrest's documentation.

Forrest brazenly added the underground car parking area (1,183 sq m) to the surface lot (2,655 sq m) and came up with 3,838 sq m. To calculate his bogus FSI he divided the Gross Floor Area 11,059 by 3,838 to get an FSI of 2.88 which is the figure (2.9) he has been is relying on. The public was never told about this subterfuge.

Forrest used Town owned land under Market Square, earmarked for the Clock Tower’s underground car park, to bring down the development’s FSI.

At the end of the meeting on 28 November 2016, Van Trappist, reading from a prepared script, said:

"...whether we agree with the recommendations or not this is a very comprehensive report that has been thoroughly examined."

He went on to ask Rick Nethery to comment on the FSI issue which had been repeatedly raised by a member of the public, Siegfried Wall, who told the Statutory Public meeting on 9 May 2016 that underground parking space, owned by the Town not the developer, was being used in the calculations to massage the FSI downwards.

Nethery told Van Trappist:

"There's no question that what Mr. Wall was saying is that we're looking at an FSI that's above what is currently in the documents. We don't dispute that. That is a question of whether or not if Council were to approve it they would be so approving with that in mind.

I guess there is some differences based on whether or not you're looking at a net and a gross. There is some question of whether or not we're going underneath the ground for parking versus completely within the area currently owned by the Clock Tower property.  (My underlining for emphasis.)

Is it not truly astonishing that a Planning report with recommendations being put before councillors for decision, knowingly contained a misleading FSI? And Nethery would have known that the FSI is calculated using the gross floor area. The "comprehensive" report contained no comment or explanation of the developer's 2.9 FSI. It was accepted uncritically. 

This begs the question:

When did (a) Van Trappist and (b) councillors first learn that the FSI was being manipulated in this way?

When did the developer's heritage consultants, Goldsmith Borgal, and the Town's peer reviewer, ERA Architects, learn that the Clock Tower's FSI had been calculated by using underground land in Town ownership? And what was their reaction? Did they appreciate that this would have a knock on effect on the built form of the development, allowing it to be much bigger in scale and mass than otherwise would be the case? Was this manipulation - which had been concealed from the public - considered legitimate and par for the course?

Answers to these questions will eventually come out - at the OMB Hearing or, hopefully, beforehand.

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Background: The last time a report from the Town's Planning staff mentioned an FSI of over 4 was in November 2013 when Forrest's (then) development had an FSI of 4.25. (Development and Infrastructure Services/Planning and Building Services Report 2013/55).

An applicant can, of course, apply for a zoning by-law amendment covering land he or she doesn't own. This is precisely what Forrest has done. But, even if approved, the developer must secure the rights over that land by buying it or by an easement or some other legal device.

In May last year, Forrest's Planning Rationale Report told us the Historic Downtown Centre Zone (UC-D1) permitted up to 80 residential units per net hectare and up to and including a 1.0 FSI. Yet Forrest wanted a residential density of 430 units per net hectare and an FSI of 2.9. He tried to justify this humungous departure from the Town standard in this way:

"It must be recognised that the Proposal does not have the benefit of additional land for surface parking and landscaping. The units per hectare value appears much higher due to the building footprint mirroring the property line and as such this condition must be taken into consideration when considering the appropriateness of the density. (my emphasis)

But why must this be taken into consideration?

There is no reason whatsoever why the Town standards should be set aside to accommodate a giant out-of-place development which is simply too big for the land on which it sits.

Details

Written by Gordon Prentice

Published: 05 April 2017

Read this first: I quote extensively from the Community Services/Planning & Building Services Report 2012-09 on Intensification in Stable Residential Areas because it is not available on-line.  

Good Planning

The Monster Home going up at 1011 Elgin Street is in conformity with the Town's zoning by-laws but does it represent "good planning"?

Some time in mid-March, at the request of a councillor, the Town's Director of Planning, Rick Nethery, paid a site visit to the Monster Home going up at 1011 Elgin Street and reported back that it was in compliance with the zoning standards.

I was left wondering how Rick Nethery would feel if a giant house went up next door to him. Would he be delighted? Would he be perplexed?

We know he wouldn't be surprised.

Almost exactly five years ago, on 6 March 2012, a report on intensification in stable residential areas (2012-9) went before councillors. It was signed off by Rick Nethery. He knows the issues.

Let's debate the report again

Councillors should ask for the report to be brought up from the basement for debate, a second time round. It is still very relevant, perhaps even more so now than before.

If I ruled the world I would insist they have another debate. Most of today's councillors were around back in 2012.

In my mind's eye I see a slightly nervous Mr Nethery introducing the old report. He starts by describing the issue:

"Residential trends in Newmarket are shifting from suburban growth to urban intensification and redevelopment. It appears that developers are now searching out oversized lots or remnant vacant lots in older established residential communities with the intent to sever these lots into smaller ones through applications to the Committee of Adjustment and building new dwellings.

"Concerns have been raised regarding the compatibility of new homes or additions to existing homes that comply with the current zoning by-law regulations but are considered to be out of character with the built form of the established neighbourhoods in which they are located.   (The monster home's neighbours shown below)

"One of the fundamental objectives of planning and zoning is to ensure compatibility between properties and land uses. Compatibility is achieved by regulating land use and built form. (My underlining for emphasis)

"Residential dwellings have evolved substantially over the past half-century; homes today have greater lot coverage and floor area and are much higher. This disproportion is most evident with intensification developments in low-density residential areas where a new or remodelled home is situated next to one that is approximately 40 to 50 years old."

Respectful development

Now Mr Nethery is describing "respectful development"

"While intensification is directed to the Town's urban centres, limited intensification can still occur in stable residential neighbourhoods. If done respectfully, the redevelopment can be of value to the community. However, redevelopment can occur in a manner that does not respect the built form that exists. In older neighbourhoods, the existing lot areas and frontages are large enough to accommodate larger homes while still meeting the requirements of the Zoning By-law. As a result, new development can occur in a form that is inconsistent with the height, building footprint, design and character of the existing residential dwellings in the neighbourhood." (My underlining for emphasis)  

Now Mr Nethery is getting into his stride. He is now talking about the options that are available to Council to address this issue:

"As intensification and redevelopment of existing properties become more common, Zoning By-law 2010-40 could be updated to recognise the built form of neighbourhoods and dwellings that have existed and evolved over several decades. Such amendments may improve the implementation of the intensification and design policies of the Town's Official Plan which require new residential development to be compatible with its surrounding area in terms of scale, height, setbacks and coverage." (My underlining.)

"The principle behind establishing new standards is that the regulations would be reflective of the existing built form for an identified neighbourhood. The minimum lot area and frontage, maximum lot coverage and minimum building setbacks would be similar to the existing dwellings."

Height

Now Mr Nethery turns to the matter of height:

"It should be noted that bungalows and two storey dwellings are compatible from a planning perspective and can be found co-existing harmoniously in many neighbourhoods in Newmarket. One of the keys to their successful interface is to manage their respective heights properly."  

"It is a trend in new housing to provide a high roofline that can skew the mass and height of a dwelling. In most circumstances the grade of land in existing neighbourhoods is fixed and as ceiling heights of storeys are relatively inflexible the roofline is the only area to significantly reduce the overall height of the dwelling. The intention behind a proposed height reduction is to establish a proportional relationship with the heights of the dwellings on adjacent properties. This proportional relationship, which is common in older neighbourhoods, can improve the integration of new or remodelled homes in older established areas." 

"An example of a height policy that could be included in the Zoning By-law might be that a maximum proposed building height may not exceed the height of the highest points of the rooflines of existing residential buildings on immediately adjoining properties sharing lot lines with the lands subject to new development."

Setbacks

Now Mr Nethery turns to setbacks:

"In low-density residential neighbourhoods, the relationship between side yard setbacks and building height is important in establishing compatibility with adjacent properties. Many of the established neighbourhoods in Newmarket are zoned R1-C and R1-D having the following side yard setbacks:

1 storey   -    1.2 metres

1.5 storeys - 1.5 metres

2 storeys -    1.8 metres

"Any increase in these setbacks may reduce impressions of crowding of the streetscape and lessen the impacts on adjacent owners of newly developed properties."

Lot coverage

Now Mr Nethery is moving on to lot coverage:

"Many of the established neighbourhoods in Newmarket are zoned R1C and D having a maximum lot coverage of 35%. The newer subdivisions in the Town's southwest, northwest and southeast quadrants, typically consisting of smaller lots, have a maximum lot coverage of 45% to 47% and the lots are typically built to the maximum permitted."

"Regulating lot coverage is an excellent way to prevent overbuilding in low density residential areas. If it is determined that a particular area has an average lot coverage of 25% an approach could be to set the lot coverage for a two storey building at 25% and allow a greater amount of coverage for a bungalow at 35% This would also encourage one storey buildings in established neighbourhoods."

Now it's time for questions

There are one or two other issues arising in the old 2012 report but now Mr Nethery has finished his presentation and is inviting questions.  

How did policy on new developments in stable residential areas change or evolve in the light of Report 2012-09?

The side yard setback has not changed for properties in zone R1-C. Given the new developments we see in R1-C - such as 1011 Elgin Street - was that a mistake?

Is it now Official Town policy to allow monster homes to be built in low rise stable residential neighbourhoods where they stick out like a sore thumb and tower over adjacent properties?

Does the Director of Planning ever put himself in the shoes of someone living next door to a monster home?

Is it fair that someone living next door to a monster home under construction has to employ his or her own qualified Ontario Land Surveyor to check the property complies with the Town's zoning by-law?

Is 1011 Elgin Street an example of a "respectful development"?

Does he consider the present situation satisfactory? If not, what would he recommend?

And, coming full circle, does the new building going up at 1011 Elgin Street represent "good planning"?

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Details

Written by Gordon Prentice

Published: 04 April 2017

Metrolinx will be giving a presentation to councillors on Monday (10 April) on the Regional Express Rail (RER) expansion programme and how it will impact on the Town. (See the Committee of the Whole agenda here.)  

There are two key projects in the pipeline: the Newmarket GO Rail Station Mobility Hub Study at the Tannery and the Concept Plan (right) for the proposed new GO Rail Station at Mulock Drive.

Metrolinx has commissioned consultants IBI to look at the

"potential for grade separation of the rail line at Davis Drive" .

The reports tells us there will be a preliminary evaluation to understand the feasibility of a grade separation which was not identified as a priority.

Oh dear! It doesn't sound terribly urgent to me but perhaps I'm just reading it the wrong way. (The grade separation study is being done at the request of the Town.)

Metrolinx Manager of RER Project Planning, Nadine Navarro, told me last month there will be public consultation in the Spring with the Study completed by the end of summer.

Is this remotely feasible if grade separation is to be part and parcel of the completed study?

Prepare to be told grade separation is something for later, not for now.

I suspect grade separation - inevitably involving huge sums of public money - is a can that will be kicked down the road for a good while to come.

The report tells us there will be a non statutory public Open House in early May.

Planning for the proposed Mulock GO Rail Station is still very much in its early stages.

I hope the Mayor has one or two penetrating questions to ask about these transformational projects if only to show he is listening and following things.

Metrolinx gave a presentation to members of York Regional Council last month which included two hot potato issues - level crossings and the new GO rail stations. Van Trappist, head down, was glued to his cell phone, contributing nothing to the debate.

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