Details

Written by Gordon Prentice

Published: 31 March 2014

As I tap this out, Newmarket’s Committee of the Whole is meeting in camera to consider its next steps now that the Ontario Municipal Board has ruled that some kind of development can take place in Glenway – provided it fits in with what is already there. (And is in conformity with every imaginable plan, statement and policy deemed relevant by the OMB adjudicator).

The Town’s Solicitor, Esther Armchuk, updates councillors on the OMB’s oral decision. She says the full written decision must await the conclusion of Phase 2 of the Hearing.

Sitting in front of me is Marianneville's lawyer, Ira Kagan. He is casually dressed, wearing an open necked shirt and with a straw in his mouth but he is not off duty. He is flanked by the ever present VP of Marianneville Developments and another woman who is tapping furiously on a keyboard.

Mediation

Chris Emanuel raises the possibility of mediation to settle the Glenway imbroglio. This would avoid the necessity of a Phase 2 OMB Hearing. (This had been anticipated by an earlier decision of Council some months ago.) Without taking a view one way or the other, he flags this up for discussion at next Monday’s Committee of the Whole.

Now everyone is thanking everyone else. The GPA chair, Christina Bisanz, thanks the Council. The Mayor thanks the GPA.

Our councillors have their say but are circumspect. They are about to go into closed session where they will get the benefit of professional advice on what to do next. 

Now there is a prolonged exchange on how the planning system recognises public and private open space and whether the Town should have bought the privately-owned Glenway lands when they were first put up for sale. This is interesting but tangential.

Chris Emanuel hopes the Planning Department is doing a report on “lessons learned”.

John Taylor laments the decision saying we put forward the strongest arguments we could. (No we didn’t.)

Dave Kerwin bites his bottom lip. He wants to save his comments for the private session. He concedes “the GPA fought a noble battle.”

Progressive Conservative MPP hopeful, Jane Twinney, sees the Glenway OMB decision as ammunition for an assault on the Province and its planning regime.

Maddie Di Muccio wants to know if, at any stage, the Town considered buying the Glenway lands. She doesn’t get an answer.

Joe Sponga is upset about something or other.

Tom Hempen squeezes in a comment seconds before the Mayor moves into private session. I can’t immediately recall what it was about.

Who is advising whom?

What happens next is rich in irony. As the GPA and the public are asked to leave the Council Chamber, I reflect on who is staying behind to advise our councillors. The Town’s top planners – who were all completely absent from the entirety of the OMB Hearing. The Town’s counsel Mary Bull – who was manifestly not on top of her brief. And Ruth Victor, who gave damning evidence against the Town’s position on Phase 1, and who will be presenting the Town’s case on Phase 2 (which deals with the technicalities of shoe-horning hundreds of new homes into the middle of a stable, long established, residential community).

The Town’s position is clear from the 25 November 2013 unanimous vote at Newmarket Theatre. The Town does not support development of Glenway, as proposed.

It must now do everything in its power to frustrate the Marianneville proposals and prevent them from becoming reality. Mediation is absolutely not the solution.

In her report to Council, the Town’s external consultant in charge of the Glenway file, Ruth Victor, recommended refusal of the Marianneville proposals “because of substantial unresolved technical issues”.

These “substantial” technical issues must now become insuperable.

The Town’s Director of Planning, Rick Nethery, must now appear at the OMB Phase 2 Hearing to argue the case for refusing the Marianneville application on technical grounds.

There are servicing allocation issues. Why should Glenway get preference over other developments in the Town’s intensification priority areas?

What about standards for infill lots?

What about new parkland and its location? Glenway is a lung for a huge part of urban Newmarket. Where are all the new residents in Newmarket going to find and enjoy open space?

What about the traffic impact of the proposed development?

I am not a highly paid planner but even I could come up with a thousand good reasons why concrete should not be laid over the putting greens and fairways of Glenway.

I want to see Rick Nethery, our top planning expert, tell the OMB there are a million and one sound planning reasons why the Marianneville development should not get off the drawing board.

After all, Marianneville doesn’t pay his salary. We do.

Details

Written by Gordon Prentice

Published: 28 March 2014

The OMB decision to allow some kind of development in Glenway will come as a shattering blow to the neighbourhood and to those who organised and led the fight to preserve Glenway’s open spaces. They all deserve a medal. We now go on to Phase 2 which is pencilled in to start on 15 April. But no-one should believe it is a done deal and that Marianneville will get their 730 residential units.

It is not over until the fat lady sings.

Yesterday, after a mere ninety minute recess following the lawyers’ closing submissions, the OMB adjudicator, Susan Schiller, feels able to tell us, in outline, why she is backing the case put by Marianneville. Her detailed reasons will follow.

The OMB decision 

She says GPA Chair, Christina Bisanz, spoke movingly about the Club House being the beating heart of the community and that the Glenway lands were used extensively by people from Glenway and further afield. But, she says, it is not public open space.

She tells us what she did not hear in the course of the Hearing. She didn’t hear that the Town had taken any steps to acquire the land as public open space. Nor did she hear any arguments that the land should not be developed.

The key issue is whether the Growth Plan prohibited the development of the Glenway lands. She says the reasons advanced by the Town and GPA “defaulted to a series of processes”.

She is told the development is too big. Scale is an issue. But, she says, the Glenway proposal is not the only big development that has come forward. There is no policy that says proposals of a certain size must go through Town led processes.

Is the development needed? Schiller tells us need is not a criterion or test. The growth targets we heard about are all minimums, not caps.

We hear that the Growth Plan requires municipalities to designate intensification areas but the Town has a concomitant responsibility to look at, for example, major transit stations and how they fit into the big picture. That hadn’t happened.

Schiller reminds us that Marianneville had asked the Town to include a parcel of their land next to the GO Bus Station into the urban centre intensification area (basically the Yonge Davis corridors). The Town declined to do this saying a site specific application was before the OMB. The Board, Schiller says, “does not attach much weight to calls for a Town led process”.

Now the Adjudicator is moving up into fifth gear. This is turning in to a lecture. The Growth Plan says intensification should occur generally within the built boundary – not solely in designated intensification areas. She tells us this was not discussed by the expert witnesses called by the Town and the GPA.

Fatal Misunderstanding

We learn there was a fatal misunderstanding about the role of the Growth Plan “within the planning paradigm of the Province”. The Planning Act, which takes precedence over policy statements, specifically contemplates site specific applications. The real issue, therefore, is not the need for a Town led process but whether the lands can be developed in a way that conforms to all the relevant policy regimes and is appropriate and compatible with what is already there. And these, she tells us, are Phase 2 issues.

The Adjudicator, Susan Schiller, is probably as good as they come. She is sharp and quick to pick up on points. She can only consider matters put before her. If assertions made by one side are not rebutted by the other then she draws the appropriate conclusions. That’s the way the system works.

Key issues left unaddressed

It was obvious to everyone that key issues raised by Marianneville’s lawyer, Ira Kagan, were simply not being addressed.

As much as it pains me to say this, Kagan dominated the Hearing. He was like a tennis player, darting about the court, fighting for every point. After he finished every cross examination he would swivel round and ask individually the four people behind him if there was anything he had missed.

He can be dramatic (insofar as any lawyer is) talking with punctuation marks - but this forces us to listen and absorb his argument.

The Town’s counsel, Mary Bull, never stretched herself to return a difficult ball. She talks in a grey monotone giving me the impression she would rather be somewhere else. Glenway is just another job. Next week, I hear she is in North Bay. Another planning case. Another file to flip through.

James Feehley, counsel for the GPA, was, quite simply, out of his depth. Too often, he seemed a spectator rather than a participant. He is patronised by Kagan but laughs it off. It was his job to express lawyerly outrage on behalf of the Glenway people but it soon became clear to me this wasn’t going to happen.

Planning is not brain surgery. It is not that complicated.

The Hearing was dominated by the “experts” opining on the relevance of this or that policy, statement or plan. Christine Bisanz, was like a breath of fresh air, but where were the other Glenway people? Where was the Vox Pop?

People have quite a sophisticated view about what they like or dislike about their street, neighbourhood and Town – in that order. Their views on how the Town should grow and develop should be given weight. It is not something we cede to experts to decide on our behalf.

We learn the old golf course was used by Glenway people but also those from further afield. Does that mean open space is at a premium in Newmarket? (Yes) And, if so, will open space become even more valuable in the future as Newmarket’s population soars with tens of thousands of new residents in our midst? (Yes) Astonishingly, this was not an issue considered worthy of examination by the experts even though the Town has been looking at neighbourhoods that are short of open space.

OMB Hearing not people friendly

The Hearing is paper based. Everything is in huge lever arch files. Apart from one or two colourful plans of Glenway sitting on an easel next to the Adjudicator, there is nothing to help the public follow the proceedings. The witness statements and other relevant documents are not posted on the OMB website. We sit like lemons at the back of the room, trying to follow things as best we can. And even after it is all over we can’t read the transcript because, astonishingly, no record is taken. The millions of words uttered, unless captured by Schiller, disappear into the ether. Lost forever.

How did we get here?

Things went off the rails when the Town hired an outside consultant, Ruth Victor, to handle the Glenway file. She was soon biting the hand that feeds her. But I can’t blame her, entirely. She stepped into a policy vacuum and started making policy which, so far as I can tell, was accepted uncritically by the Planning Department and by the Mayor. Was any direction given to her? If not, why not? Seems to me there was a collective failure to give her a steer.

I am also left wondering how things would have played out if the Town had hired Nick McDonald to handle the Glenway file rather than Ruth Victor. I suspect we wouldn’t be where we are now.

The role of the Mayor and Councillors 

The Mayor lives on London Road. Would he have taken the same hands-off approach if he had lived on, say, Crossland Gate? I think not. At the very least his mind would have been focussed on the possibility of losing a treasured amenity, open space. He is by nature a man comfortable with process and procedure. He was content to leave it to the experts and then allow matters to take their course. It was a critical failure of leadership.

John Taylor, our Regional Councillor, nailed his colours to the mast on 25 November 2013 when he told Glenway people he would be furious if someone tried to build on forest land behind his house. He has said as much since. He is influential and his involvement at an early stage could have changed the course of events but that was not to happen. Ward 7 councillor, Chris Emanuel, has championed the Glenway cause from the beginning and he comes out of this saga well.

But, overall, it seems to me there has been a collective failure by elected officials to give guidance and direction to planning staff. The Town’s Planning Department is not a State within a State.

Was the outside consultant Ruth Victor allowed to write the Town’s policy on Glenway? What was the view of the Director of Planning, Rick Nethery?  Is it the case, as Kagan asserted, that the Town’s planning staff shared her opinions? If so, did he (Nethery) share this information with the Mayor or anyone else?

So powerful was Victor’s case that Kagan told the Adjudicator in his summing up:

 “If I was really brave I would not have called any other witnesses but I was scared not to.”

Throughout the Hearing Kagan had Marianneville’s hired planner on hand. Paul Lowes. The Town relied on Eric Chandler, a retired Chief Planner from New Tecumseth, who despite his genial manner and wide experience, could not answer for decisions made by the Town’s planning department. There was no-one from the Town Planning Department sitting in, addressing issues there and then, as they arose.

Pending Developments 

It was obvious to me in the very moment Kagan raised the issue, that developments elsewhere in Newmarket (as shown on the Planning Department’s “Pending Developments” map) were taking on a crucial significance. There were five developments cited by Kagan but he focussed on the Newmarket Cemetery Corporation land where 518 homes are being built. Kagan tells us the parcel of land is large; it is designated institutional (theoretically, no housing allowed); it is adjacent to a Stable Residential area and is privately owned

“and is as close to all fours to this case (Marianneville) as you can get.”

Kagan said it was unreasonable for the Town to hold up the Glenway development while waving through these other developments, all within Newmarket’s built boundary.

Yet the matter was never addressed by Bull.

What is to be done?

The Glenway Preservation Association may now be running out of cash and may not be able to retain counsel. In which case, responsibility devolves on the Town to make the best case it can to minimise the damage to Glenway.

In another bizarre twist to the story, Ruth Victor will be back again, paid by the Town to consider the technical issues thrown up by the proposed development.

The witness lists for Phase 2 are being drawn up as I write and should be with the Adjudicator by the end of next week.

I want to see people speaking up for Glenway, nor sabotaging its future.

This is no time to throw in the towel.

Newmarket councillors will meet on Monday afternoon (31 March) to consider their next move.

Details

Written by Gordon Prentice

Published: 24 March 2014

Today, the Glenway Preservation Association’s land use planner, Nick McDonald, is to be spit roasted by Ira Kagan. It is day 5 of the OMB hearing that will decide whether any development at all is permitted on the old golf course lands that Marianneville bought for a song a few years ago.

Kagan is a drama queen. He wants to know who is to blame if Marianneville’s public consultation on the Glenway development was inadequate as asserted by the GPA. Was it the developer’s fault or the Town’s?

Kagan puts his questions theatrically and then pirouettes around, looking at the rest of us. He wants to know what we think of his clever questions.

I am stony faced.

McDonald counters with a straight bat. It is not a matter of assigning blame. There is a world of a difference between a Town led process and one led by a private developer. A Town led study is more open.

Surrounded by mountains of policy statements, growth plans and official plans, Kagan tells us there is no policy basis to prevent the development of the Glenway lands. McDonald disagrees, without equivocation. He points to the Town’s intensification strategy.

Now they are talking about Newmarket’s Urban Centre, a stone’s throw from Glenway. I hear the lawyers and planners clash over when work on the Town’s  Secondary Plan started.

They have no idea. They are wading through their huge ring binders trying to find the date but I know the answer. I want to shoot my arm up in the air. “Please Miss!” I feel like the school swot.

Perhaps there is a place in these hearings for the wisdom of crowds. Why not ask the public at the tail end of every session if anything they heard was factually wrong? Or complete lawyerly cobblers.

As I am mulling this over, Kagan scores a direct hit.

He takes us to a “Newmarket Developments Pending Map 2014” produced by the Town’s Planning Department that shows 518 residential units are to be built by Forest Green Homes on land north of Mulock and west of Leslie. The land was originally designated “institutional use” (prohibiting residential development) and was held by the Newmarket Cemetery Corporation but is now designated “residential”.

How did that happen? What is the difference between this land and Glenway, asks Kagan. Why were there no calls for a Town led review of these lands?

We wait to hear from the Town.

Back Story: The unflappable Nick McDonald started his evidence on Friday and I learn that he has been a land use planner for 24 years and he has left his mark, one way or another, all over Ontario. We are sitting at the feet of the Master. He tells us he wants to focus on where we should go in considering the Glenway development.

He says there is disagreement on whether the Town has prepared an intensification strategy and whether there is an onus on the municipality to prepare a policy for intensification. He believes municipalities must set out where there will be change, little change and no change. Municipalities should provide certainty. People should know what the Town’s expectations are.

And scale is a factor. The Marianneville development is “significant”.

McDonald asserts the OMB process is not the best way of dealing with this kind of application.  He notes that the major transit station area (the GO bus station) has not been identified in the Town’s Official Plan and nor has Davis Drive West been identified as a “local corridor”. In planning-speak all these words have special meanings. There is, he says, more work for the Town to do.

He tells us the Provincial Policy Statement (which sits at the top of the planning hierarchy) expects municipalities to establish “intensification areas”. The Growth Plan puts the onus on municipalities to identify these areas. Newmarket, he says, has established an “intensification strategy”. The town has identified emerging residential areas and, in 2010, gave the OK to secondary suites. McDonald tells us: “In stable residential areas there is no expectation that there will be intensification other then through limited infill (the term is undefined) and secondary suites.”

We learn the York Region Official Plan 2010 stipulates that “intensification areas are to be identified by the Municipality.”

Now McDonald says Newmarket has gone “above and beyond” what is required to identify intensification areas.  He sums up: “It would be premature to consider the Marianneville application in advance of a Town led process.”

Details

Written by Gordon Prentice

Published: 22 March 2014

Yesterday, the highlight of Day 4 of the Glenway OMB hearing pits Ira Kagan, the swaggering lawyer for the Evil Empire (aka Marianneville Developments) against Christina Bisanz, the Chair of the Glenway Preservation Association.

There are 38 members of the public present when she steps forward to give evidence. She will be quizzed first by the hesitant James Feehley, counsel for the GPA. She is composed and confident as she takes the stand, swearing to tell the truth, the whole truth and nothing but the truth. There is prolonged enthusiastic applause.

“I don’t think that applause was for you Mr Feehley” says the affable, on-the-ball Adjudicator, Susan Schiller. That much was never in any doubt.

She gently reminds us of Hearing etiquette. No more applause.

We learn that Christina Bisanz moved to Glenway in 1990 and then moved again within the neighbourhood in 1992, paying a $10,000 premium for having a golf course as her backyard. We are told that Glenway was the first such planned neighbourhood in the GTA.

Glenway’s clubhouse was the beating heart of the local community. And then the apocalypse. In 2008 it was announced that Glenway golf course was up for sale. Her case is that the new owners, Marianneville, presented their proposal for development of Glenway as a fait accompli. There was no opportunity for the community to respond collectively.

Kagan cross examines

Kagan, who has a reputation for not taking prisoners, now cross examines. Should the “subject lands” (ie the old golf course lands) be retained as open space? Preserving parks and open space – would that be the GPA’s preference?

Bisanz is not taking the bait. She says the likelihood of Marianneville retaining the lands as a golf course is minimal.

Kagan tries again. But what if the Board says the principle of development has been met and there should be some development? Would the GPA have nothing to offer, to add or to say on Phase 2? What would the GPA like to see in the way of development if that is going to happen?

No mandate

Bisanz won’t be drawn. She has no mandate to go down that road. The GPA wants a Town led planning process. “It is premature to speculate on the use of the lands without a public consultation process.”

She tells Kagan she disagrees with the Town’s metronomic external consultant, Ruth Victor, that development of the Glenway lands could be done by way of a site-specific application. She recites endlessly the mantra that any proposed development requires first a comprehensive Town led review.

I see people around me nodding with approval. Bisanz is more than holding her own.

It is an accomplished, measured performance. There are no threats to lie down in front of the construction trucks to stop the development in its tracks. “Bulldozer Bisanz” is nowhere to be seen.

Getting personal

Now, clearly frustrated by the intelligent stonewalling, Kagan gets personal.

He starts by asking her why she considers it a privilege to live in Glenway. I could answer that. It is a nice place to live.

He wants to know if Bisanz and her family were golf club members. No she says. Now he is telling her in as many words that she can’t complain about the closure if she didn’t support it.

Kagan asks if she challenges the right of the golf course owner to do what they want with their own lands if they can’t make a go of the business. He wants to know if the Glenway Community made any effort to purchase the golf course lands or the Club House that everyone was so fond of. Bisanz says it was a closed bidding process so she has no idea if any Glenway people put in a bid.

Did the Town make a bid to purchase?

She doesn’t know.

Did anyone ever ask the Town to stop the demolition of the Clubhouse?

No idea.

Kagan asks if the lands should be in public ownership if they serve the Town and not just Glenway. She says the course went from being private to public. It was used by people from all over town.

Property Rights

Now he is getting into property rights. “Do you believe residents have the right to use the lands without the current owner’s permission?

Kagan impertinently tells her that there is nothing in her property deeds that gives her the right of access on to the golf course lands “because we have checked”.

She says no one ever formally objected to public access. This line of questioning fizzles out.

Now we hear Kagan go through the chronology of meetings hosted by Marianneville. He is trying to show that Marianneville bent over backwards to engage the community and get their feedback. He wants to challenge the GPA’s view that Marianneville’s consultation with the public was inadequate.

Bisanz says the consultation meetings were not specific to the application. Marianneville were asking for views on the proposed “executive golf course”.

She says their strategy all along was to “bifurcate” the community, inviting groups of Glenway people to briefings, never getting everyone together all in one room.

Now we are hearing about meetings called by the Glenway people way back in 2011 where the Mayor, Chris Emanuel and other council notables were present. So what? Now we hear Kagan quoting from an ancient Chris Emanuel blog where he pledges to fight to the last breath to keep the land open space. Emanuel’s face splits into a gigantic grin. His blog has been officially recognised!

Kagan is trying to suggest that councillors’ minds were already made up even before the Marianneville application was lodged with the Town. So what? Seems to me they have every right to argue for open space to remain as such.

Kagan stumbles

Now Kagan asks a bemused looking Bisanz about the GPA’s request for financial help from the Town to the tune of $100,000. Her face is blank.

We learn the request came from the Glenway Community Group which, says Bisanz, has nothing to do with the Glenway Preservation Association. The GPA is the only incorporated not for profit organisation fighting the Marianneville proposals.

We hear a loud hissing noise of air escaping from Kagan’s pricked balloon.

Still he gallops on, going through a long roll call of names asking if any of the people named have anything to do with the GPA.

No, says Bisanz. No. No. No. No. She is my neighbour. No. No. No.

What a damp squib that was! Poor research from Kagan, a lawyer previously lauded for his mastery of detail.

The Settlement Offers

Now he changes tack and asks about Marianneville’s settlement offers, made without prejudice, allowing the public to get engaged. He says the way these things generally work is that the settlement offer is made to councillors behind closed doors, a decision is made, and the public is cut out of the process entirely. (He used precisely the same script with Slessor Square).

He recites the long list of “concessions” offered by Marianneville and asks Bisanz what she thinks of them.

Again, she is not going down that road.

The promise of a golf course for 15 years on part of the Glenway lands with the Town being offered the first chance to buy is a good thing. Surely?

Bisanz dismisses this as speculative. No-one knows what position the Town is likely to take on the issue in the distant future. And, in any event, she tells us the GPA was uncomfortable with the settlement offer because it just looked at the western part of the so called subject lands and not at the impact of the 730 residential units on the rest of the Marianneville lands.

Feeble and meandering

Now Kagan ends his cross examination with a series of feeble, meandering and unfocussed questions about a public meeting held by the GPA in Crosslands Church just a few weeks ago where the Town’s solicitor spoke about the OMB process and procedures and took questions from the floor. The Mayor, regional councillor, and Chris Emanuel were on the platform.

If Kagan wanted us to see something sinister in this public meeting, he failed. His cross examination peters out.

Sensing this, the Chair calls a break and Kagan darts out of the room explaining loudly as he goes that he drank too much tea over lunch.

This is too much information.

I screw my eyes tight shut and think of putting greens and fairways and wide open spaces.