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Written by Gordon Prentice

Published: 20 April 2017

Read this first. The OMB prehearing on Bob Forrest's Clock Tower development will be held at 10am on Wednesday 3 May 2017 in the Council Chamber at 395 Mulock Drive, Newmarket. Here is a condensed Reader's Digest version explaining how we got here. Forrest's OMB Appeal will throw up a million issues, many of the more important are not even touched on in this blog. Over the coming days I shall look at the issues, one by one, that will take centre stage.

The Background: The developer, Bob Forrest, sought a Zoning By-law amendment to allow him to build a seven storey apartment building around the Clock Tower - the old Federal Post Office on Main Street South which is designated. Three historic commercial buildings south of the Clock Tower also in Forrest's ownership would be demolished with their facades preserved, if possible. The proposed development lies in the very heart of the Town's Heritage Conservation District.

The application was considered by councillors at a Committee of the Whole on 28 November 2016 when it was denied. An alternative, proposed by the Town's planning staff, was not supported by Forrest nor by councillors and it too was rejected.

These decisions were ratified by the full Council at a meeting on 5 December 2016 following which Forrest appealed to the Ontario Municipal Board.

The Town's Newmarket Heritage Advisory Committee, ably led by Athol Hart, is "adamantly" opposed. So too is the BIA (Business Improvement Area) which represents businesses in the historic downtown.  (The photo below shows Main Street in the 1950s)

The Clock Tower application has morphed through three distinct iterations - nine storeys then six and now seven. In every case the development could only proceed with Town-owned land being made available to the applicant.

Forrest claims an "agreement in principle" was entered into with the Town which would allow him to use Town land for his underground car park. Without this, his project, quite literally, could not get off the ground.

The Market Square Project

Parking in the old downtown has always been an issue and as far back as 2003 the Town had a Market Square "project" which would look at parking infrastructure and how it could be improved. It was against this background that Forrest put out feelers to the Town once he had acquired the Clock Town building in early 2011. He subsequently purchased the historic commercial buildings to the south of the Clock Tower and with them the rights to a small area of surface parking in Market Square.

Forrest believed he could kill two birds with one stone. He would do a land swap, exchanging his small parcel of surface land on Market Square for a much larger Town owned space under Market Square where he could locate the underground parking his development needed.

The developer held out the possibility of allocating some of this space for public parking. This was seen by senior Town staff and at least some councillors as a win-win. In the event, the public parking element proved to be a non-starter when the developer made it clear he was seeking $30,000 from the Town for every space.

The Land Swap

Although the idea of the land swap has been in the public domain for years - and is available for all to see in the plans and drawings related to the proposed development - the details of the so-called agreement in principle have never been published by the Town.

Forrest's proposed development in the heart of the Heritage Conservation District would have had a Floor Space Index of 4.27 (one of the highest densities in the whole of Newmarket) but was massaged down to 2.9 when the Town-owned underground land was factored in. These calculations were never made available to the public.

It was only in December of last year, seven months after the issue had been raised at the Statutory public meeting, that Town staff eventually conceded what we had long known - that the development's FSI was derived by using underground space not in Forrest's ownership.

Manipulating the Floor Space Index

The FSI for new developments in the Heritage Conservation District is 1.0 and there is a three storey height cap. Manipulating the FSI in this way directly influenced the nature of the development's built form.

Forrest sought to get all his ducks lined up in a row before formally submitting his application to the Town. Over a lengthy period, he got close to people and Town staff whom he thought could help him. As his development gestated and mutated, he worked at building support through his community "ambassadors" and "teams".

He and his senior colleague, Chris Bobyk, had one-to-one meetings with councillors reporting back to the Mayor, Tony Van Bynen, and to the Town's Chief Administrative Officer, Bob Shelton, on their views and what was said.

Staunch supporter

The Mayor became one of Forrest's staunchest supporters, declaring to the local press in April last year that the Clock Tower was just the kind of intensification the historic downtown needed. Fortunately, despite his enthusiasm, he could not take his councillor colleagues with him and in November 2016 - just before the crucial vote - the Deputy Mayor, John Taylor, wrote in his blog that he would not and could not support a seven storey development. He said:

"It is simply too large for the site and for the Heritage Conservation District."

In the event, the Mayor voted against the Forrest application on 28 November 2016, preferring to support the Staff compromise. This proposed restricting the height on Main Street to five storeys including step-backs and 7 storeys on Park Avenue, again including step-backs.  

Mayor Isolated

The Mayor was left isolated and councillors voted both down.

On 5 December 2016, Newmarket Council confirmed its decision to deny the Forrest application for the following reason:

"The development of the subject lands as proposed would adversely impact the character of the established neighbourhood and adjacent properties within the Heritage Conservation District."

This triggered Forrest's appeal to the OMB.

(The sketch above is by George Luesby showing the west side of Main Street around 1920.)

Good Heritage Planning

Forrest's lawyer, Ira Kagan, told the acting Town Clerk on 14 December 2016:

"It is fair to say that Town Staff's most important issue (policy and otherwise) is heritage."

He goes on to say: 

"The proposed development represents good heritage planning and good planning in general."

It is this contention that will be tested at the OMB.

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Written by Gordon Prentice

Published: 15 April 2017

104 Belfry Drive, Newmarket, has just sold for $1,240,000. It was on the market for seven days. It is a modest bungalow with three bedrooms and two bathrooms. 

The flyer that dropped into my mailbox from real estate brokers Jay Miller tells me it sold for a staggering $240,000 over the list price. And, more breathtaking still, a jaw dropping $380,000 above the previous highest sale of any house on the street.

Jay Miller cautiously adds - "to date of sale".

Housing hysteria

House prices are spinning wildly out of control. And it cannot go on. This madness is infecting the entire GTA. The prices in Toronto are insane.

According to statistics from the Toronto Real Estate Board the average price of all homes in the Toronto area (condos, townhouses, semi-detached and detached)  was $916,567 last month - up $228,556 from a year ago. That is an unbelievable 33% year-over-year increase.

A long piece in this morning's Toronto Star says this:

"Earlier this week, Bank of Canada Governor Stephen Poloz warned that the Toronto-area housing market isn't sustainable. Moody's Investment Services suggested that the Canadian housing market invites comparisons to the US housing crisis of a decade ago."

Which brings me back to 104 Belfry Drive. What is it about this address that makes it so special? 

Warning Bells

The house looks nice enough but appears unexceptional. No better and no worse than lots of houses in Town. But it sits on a big lot and is zoned R1-C - detached residential. The warning bells should start ringing.

I don't know if the buyer is going to (a) live in the house (b) leave it empty or (c) tear it down and build a monster home, towering over its neighbours.

Useless Zoning By-laws

But if it is the latter the new owner won't need any permissions from the Town providing the submitted site plan indicates the house satisfies the Town's useless zoning by laws.

But, of course, this is just speculation on my part. We shall soon see if the curtains go up or the house comes down to make way for another

Just like 1011 Elgin Street, 104 Belfry Drive is in Jane Twinney's Ward 3.

She is concerned about the rash of monster homes which are beginning to disfigure so many neighbourhoods.

Twinney calls for a review and debate

At the last Council meeting on  27 March 2017 Councillor Twinney, supported by the old warhorse Dave Kerwin, called for a staff review of Zoning By-law 2010-40 and By-law 2013-30:

"to address best practices related to infill development standards across the town as a whole and provide a report to Council".

She tells me she doesn't have a date yet for the debate. 

I hope the Planning Department is not going to drag its feet, complaining of too much work.

The analysis has already been done.

What is missing is the will to implement measures to protect the Town's older neighbourhoods from massively inappropriate development.

As Newmarket's very own Dorian Baxter has been known to say:

it's time for a little less conversation and a little more action.

A new zoning by-law is needed now.

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Details

Written by Gordon Prentice

Published: 12 April 2017

Today I get my first ever conviction for a traffic violation.

I roll through a stop sign at the junction of Longford and Harrison Drive at 20 kph. I slow down as I close on the stop sign, checking first that Longford is clear and then Harrison Drive is clear. I press the accelerator and swing round the corner. Then I notice the unmarked police SUV. 

Police constable Taylor is waiting for me. He gets out of his car raising his arm in the air. Stop! 

As I crawl past I look at him. He is well built with a light stubbly beard. You don't mess with this guy. 

My heart sinks. I pull over.

I get out of my car and walk towards him. He tells me to get back in my car and roll down the window. He is now standing next to my car, talking to me through the open window.

He tells me I have committed an offence. I nod in agreement. Yes I have.

He asks for my driving licence, my insurance and evidence of ownership. I hand all this stuff over and he goes back to his SUV to check.

Constable Taylor is a model of politeness. I am genuinely impressed and I have no complaints. He says I don't have a record and he has a certain discretion. But he has reviewed the video in his SUV and he has no choice. He must book me. I agree.

I am to be fined $110. Fair enough.

He tells me this conviction will have an impact on my auto insurance "if you tell them".

I find this remark very curious. There is no question whatsoever that I shall tell my auto insurer that I have a conviction. I shall bear the additional cost, lose my three points, and not feel aggrieved. These are the rules and that's the way it is. 

The next time I drive down to Toronto on the 404 with my cruise control set at 100 kph and see every second car zoom past at the speed of light I shall remind myself of the importance of obeying the law.

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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.