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Former Newmarket Councillor, Maddie Di Muccio, loses defamation action against Regional Councillor John Taylor

Maddie Di Muccio's defamation action against John Taylor has been dismissed by the Small Claims Court in Newmarket. Di Muccio had also claimed $5,000 for damage to her reputation.

The Judge, Paul Kupferstein, gives reasons for his judgment here. (Open and scroll to bottom of page).

In his concluding remarks the Judge observes:

"The Plaintiff (Maddie Di Muccio) was, at the relevant time, a public official and ought to have expected full and robust debate of her conduct while in office. The comments and ensuing discussions involved her public persona and public conduct. The Defendant (John Taylor) did not overstep in making the statements he did."

"The Plaintiff's action is dismissed."

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Newmarket's zoning by-law not fit for purpose

A report from Newmarket's Planning Department which goes to councillors tomorrow (Monday, 28 August) candidly admits the Town's zoning by-laws are wanting. 

The report says there are technical errors, typos, mis-attributions

"that have only come to light through the application of the by-law".

There are sections where "clarity improvements" are required.

Astonishingly, the zoning by-law does not always reflect changes in legislation or in judicial decisions impacting on municipalities.

"Repeated decisions (by the Courts) have found minimum group home separation distances to be contrary to Ontario's Human Rights Code, the Charter of Rights and Freedoms, and the 2014 Provincial Policy Statement."

Yet the Town sets minimum distances.  

New circumstances

The Planners suggest a review makes sense given the "new circumstances" since the Town adopted its zoning by-law (2010). There are new types of businesses such as  microbreweries, making and selling beer on the premises, a development apparently unforeseen seven years ago. There are people wanting to use shipping containers as stand-alone storage or as part of a larger building, again something that was never anticipated.

The planners make it sound as if some gentle housekeeping is required. A little tidying up here and there.

The reality is very different.

The Town's zoning by-laws have been a chaotic mess ever since I started looking at them in detail. They are infinitely elastic.

Dry as dust

Indeed, the term "zoning by law" sounds as dry as dust yet its application can have a profound effect on the way people live their lives. For example, people who once enjoyed a measure of privacy in their back yard now find they are overlooked by huge out-of-place developments looming over them. 

In March this year, Councillor Jane Twinney expressed concerns about infill developments in her Ward - specifically at 1011 Elgin Street - and called for a review of best practice. This morphed into a zoning by-law review and now, five months on, we have a report promising another report with no timetable for finishing the work.

Meanwhile, the monster home in Elgin Street (see right) dwarfing its neighbours, moves ever closer to completion.

In the way that they do, the planners promise consultation with other departments and agencies and, of course, with the public. But I get no sense of urgency.

I see this exercise stretching well into 2018, possibly up to the next municipal election if not beyond. This is the way our deformed planning system works. Calls for action to deal with a specific, identifiable issue are swept into a wider review and are deflected or buried.

Concerns

We learn that Planning staff have identified a number of concerns with the existing zoning by laws. The appendix to the report gives a flavour of the matters to be addressed.

The Clock Tower is an issue that has convulsed the Town for years, much of the controversy focussing on the underground car parking, deep under Market Square.

Four months ago, the Planning Department told me in response to a question I had earlier posed about underground parking and the calculation of FSI:

"The Gross Floor Area as defined by the Zoning By-law and the Secondary Plan does not include underground parking areas."

The list going to councillors tomorrow calls for a revised definition of Gross Floor Area, explaining opaquely:

"Does it include unfinished floor, and it currently does not include the ground floor. Technical error and clarification required."

Underground parking - again

But what about the wider issue - the one that has gripped residents for years? How was it possible for the Clock Tower development with its huge underground car park to get as far as it did when the Town's own Zoning By-law specifically excluded land beyond the developer's property boundary?

On 27 April 2017 the Town's Planning Department told me:

"The Land Area as defined in the secondary plan could include off-street parking areas whereas the Lot Area as defined by 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 by-law review to ensure consistency within the document."

I don't see this flagged up in the list of "preliminary matters to be addressed".

It ought to be.

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Clock Tower OMB Appeal Hearing pushed back to August 2018

Back Story: The developer, Bob Forrest, wants to build a seven storey apartment building in the heart of Newmarket's old downtown, a heritage conservation district with a three storey height cap. To make his project work he has to demolish historic commercial buildings including one on Main Street South dating from 1844 where the first female pharmacist in Ontario ran her apothecary. At the OMB pre-hearing on 3 May 2017, Bob withdrew the application that had been turned down by the Town on 5 December 2016 and substituted a very different Option B. The list of Parties has since thinned out with Trinity United Church withdrawing and the Architectural Conservancy of Ontario dropping back from putative Party status to Participant.

This morning's second pre-hearing at the Municipal Offices in Mulock Drive is supposed to settle the so-called "issues list" - the various matters of dispute or contention brought forward by the Parties which will be considered and examined during the OMB Hearing proper, when it eventually gets under way.

We are still in the warm up phase.

About forty people are squashed together in the Cane Room with the part-time OMB adjudicator, Laurie Bruce, presiding. She is an environmental planner by trade who trained as a mediator. 

The Issues List

Now the lawyers are on to the issues. Fortunately, I have a copy of the list in front of me and I can follow what is going on. But for everyone else, below the salt, they have nothing in their hands. Why not project the issues list page by page up on a big screen so everyone can see what the lawyers are jousting about? 

We spend an hour amending this and amending that. Striking some issues out. Consolidating others. At one point Bob's lawyer, Ira Kagan, tell us:

 "I don't think I am going to pursue Clergy"

which sounds like an arrestable offence.

But the clergy principle frequently surfaces in planning matters. Should a proposed development be judged according to the planning regime in place at the time it was submitted or by current standards?

The Heart of Newmarket wants to know more about the heritage attributes of the Clock Tower.

Kagan shakes his head dismissively and says the Clock Tower's heritage designation has been in place since 1995 and is not being changed through the zoning appeal.

The Town's counsel, Leo Longo, takes us to Regulation 0906 or is it Regulation 0609. He says he is not sure which. (I love that languid approach. Kagan, by contrast, is a tightly coiled spring.) We learn there are very specific heritage attributes introduced in 2006 that go beyond the 1995 ones.

The adjudicator wants to know if the wording can be tweaked. And, magically, the lawyers agree on the formulation:

"Does the Heritage Conservation District Plan under appeal appropriately address the heritage attributes of the Clock Tower."

They smile. Job well done. Everyone is happy. The box is ticked and they move on.

Now Leo Longo helpfully suggests that many similar issues identified by the Heart of Newmarket can be rolled up into the Town's catch-all issue 10 which simply asks if the development conforms with the Town's Heritage Conservation District Plan and By-law.

No problem. Everyone agrees. Things are now rattling along.

The Elephant in the room

There is one humungously important issue that doesn't even rate a mention - at least not in plain English.

The Town's issue 21 asks if any approval of the development would be premature given that the Town claims ownership of some of the land Bob needs for his Option B. The Town is going to the Superior Court on 15 November 2017 to ask for a ruling on who owns the land - Bob or the Town.

Longo mysteriously refers to this as

"a certain event"

as if he cannot bring himself to talk about the Court action. It is almost Masonic.

I learn Longo and Kagan have talked about this between themselves. They expect the Judge to deliver a decision in record quick time, having heard their submissions and legal argument. So we could know by December or perhaps January who owns the land in question.

I hear Kagan say, in a matter of fact way, that if the Town wins then Bob will simply redesign his apartment building, ending up, presumably, with an Option C.

I scream silently.

This perfectly illustrates the lunacy of a planning system which allows the OMB to consider appeals for a revised development (or, possibly, in this case a revised revised development) which is light years away from the original application that was submitted to the Municipality and rejected.

Getting on with their lives

Now the lawyers are consulting their diaries. A telephone conference in February 2018 followed by the OMB Appeal Hearing proper from 7-27 August 2018.

No wonder people give up and move on with the rest of their lives. Professional lawyers and planners who earn their living doing this stuff can afford to have cases stretch over many years. But most folk can't stay focussed on an issue for years at a time. And it is totally unreasonable to expect them to do so. But the system rewards those with staying power and deep pockets - the developers and the professionals who feed off them.

The rest of us pay the price in boarded up shops and lifeless derelict blocks, blighting towns across Ontario.

The Clock Tower saga shows how desperately we need reform of the OMB.

But, in the interim, why can't the Province just increase the number of adjudicators?

A small simple step to save us from the madness of faraway OMB Appeals that lie way over the horizon.

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Time for Bob Forrest to come clean on his "tacit agreement" with the Town of Newmarket

On 3 May 2017, at the first OMB pre-hearing on the Clock Tower appeal, we heard from Bob's lawyer, the ubiquitous Ira Kagan, that there had been a "tacit agreement" between Bob and the Town to facilitate a development in the heart of the old downtown heritage conservation district.

The Town denies such an agreement exists. 

Bob is hopping mad. He feels he has been led up the garden path by a duplicitous Town Council and its senior staff, who have been giving him the come-on for years.

The tacit agreement

Having now raised the issue, it seems to me that Kagan is obliged to explain (a) the nature and form of this tacit agreement, (b) the parties to it and (c) when and where it happened.

Was it sealed with a handshake?

Or a high fives and a big hug?

Was it simply an unspoken "understanding"?

We know it wasn't a nod and a wink.

The Mayor, Tony Van Trappist, has angrily dismissed any suggestion there might have been a "nudge and a wink".

Bob likewise stressed there were no "nudges and winks" and, most certainly, no collusion with councillors.

In any event, this so-called tacit agreement is of some importance. Bob wants to stop the OMB from considering issues that, at least for me, go to the very heart of the matter.

At the OMB pre-hearing Bob withdrew the original application that had been rejected by the Town. It needed Town-owned land which was not going to be forthcoming.

Half-baked Option B

In its place we were given a half baked "Option B" which is planned to be built entirely within the boundaries of the land Bob says he owns. If it is ever built it will have the highest density of any building anywhere in Newmarket.

Unfortunately for Bob, the Town claims ownership of a key parcel of land needed for his Option B to get off the ground. The dispute goes before the Superior Court on 15 November 2017.

But let's put details of that inconvenience to one side for the moment.

Option B's proposed underground parking now goes down an astonishing five levels but Bob has produced no studies showing what impact this huge hole in the ground will have on adjacent structures. I doubt there is another underground parking garage anywhere in Newmarket that goes down to these dark subterranean depths.

Plainly, Option B is substantially different from the original rejected application but Bob wants the OMB to view it as a tweak - a minor variation. Why?

Because if it is held to be "substantially different" the OMB has powers under the Planning Act to dismiss the Appeal in whole or in part.

Substantially different 

It was for this reason that the Architectural Conservancy of Ontario included the following in its issues list.*

"Is the proposed development a variation of the original application or is it sufficiently different in its essentials for it to be considered a new application?"

Kagan told me:

"This issue should be deleted. The change in the development was as a direct result of the Town first permitting some of its lands to be included in the rezoning application but then revoking that permission years later when Town Council turned the development down. Even the Town is not raising this an issue. If it had done so the applicant (Bob Forrest) would have raised the issue of bad faith."

But how can "bad faith" be brought into play when we are given no details whatsoever of the scope and terms of this nebulous "tacit agreement" and what would be captured by it?

It is common knowledge that senior Town staff and councillors have been talking about the Clock Tower development since 2011. The Town allowed Bob to put in an application to redevelop the Clock Tower knowing he would require Town-owned lands.

No blank cheque

The Town expressed a willingness to contemplate a land swap if that were to result in a development it could support. I guess the Town was curious to see what Bob would come up with. But, clearly, it never gave him a blank cheque, agreeing to approve whatever development Bob eventually settled on, no matter how gigantic or out-of-place. Such an open ended commitment would, in any event, be open to challenge.

In February last year, the Town's solicitor told me:

"the Council received a land exchange request from the Clock Tower developer but has deferred any final decision on that proposal until such time as the developer's application for zoning by-law amendment goes through the usual public planning process and receives development approval from the Council."

She added:

"Council last dealt with the matter in Closed Session on June 24, 2013."  

Bad Faith

When Kagan alleges bad faith, what precisely is he suggesting? That, four years ago, the Council gave its imprimatur to a land swap allowing a development that was still on the drawing board? (Photo: the packed meeting at the Community Centre, Doug Duncan Drive, on 3 April 2013) 

In September 2015, when Bob was still trying to secure financing for the project, he was telling his business partners that the land swap agreement was being drafted and

"when we are happy with it, it will be reviewed by the Mayor and senior staff, then we must go before the Committee of the Whole in camera to seek their blessing on it. We already have their agreement in principle."

This brings us back full circle. If Bob has "their agreement in principle" or a "tacit agreement" let's have all the details before we hear any more nonsense about bad faith.

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*The OMB pre-hearing determines the issues raised by the Appeal.


 

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