Details

Written by: Gordon Prentice

Published: 23 April 2017

Background: The Clock Tower OMB prehearing kicks off at 10am on 3 May 2017 in the Council Chamber at 395 Mulock Drive, Newmarket. It is open to the public.

Clock Tower developer Bob Forrest has hired the silver tongued planning lawyer, Ira Kagan, to represent him at the OMB. Kagan is a skilled operator now at the top of his game. He has huge experience and a will to win. He will be formidable. He doesn't work with a broad brush. He loves detail.

Kagan represented the developer Marianneville at the OMB Glenway Hearings and wiped the floor with the Town. I observed his way of working. After quizzing a witness - and before finishing his cross examination - he would pirouette and face his team behind him. Looking at each of them in turn he would say "Have I missed anything?" I was hugely impressed. He never did miss anything.

The Town's counsel, the catatonic Mary Bull, was in a difficult position. If she had swivelled round she would have seen a row of empty chairs. The Town's planning department had, of course, boycotted the OMB Glenway Hearing.

Intensification v Heritage

We know the key issue for Kagan is "intensification v heritage".  He believes the Town has focussed exclusively on heritage - and, by implication, ignored intensification. He says the Town should judge the Clock Tower application by the policy regime in place at the time it was formally submitted to the planning department and not against the Heritage Conservation District By-law that was passed a few months afterwards.

I take these points in turn.

Intensification

Van Trappist is Kagan`s ally. The Mayor's infamous unguarded remark about the Clock Tower being just the kind of intensification that Main Street needs will live on long after he has gone. In his statement to the Committee of the Whole on 28 November 2016 after losing the vote he talked about the Town's investment in the downtown business district and how

"it has long been understood that intensification was the next logical step".

Yet, despite this, late last year the Town won the Institute of Planners award for the best Main Street in Canada. 

And one of the Town's senior planners, Adrian Cammaert, writing in the University of Waterloo’s PCED Journal (Papers in Canadian Economic Development) in 2016 said this:

"One of the Historic Main Street's greatest strengths is its location. As part of the GTA, Newmarket is part of and accessible to the largest concentration of people in the country... The Historic Main Street area's first impression is another advantage. This attribute can be difficult to quantify due to its subjectivity, but the area's visual attributes such as its strong 19th Century building stock, well maintained streetscape and attractive businesses result in a very positive first impression for a visitor. The 2014 approval of a Heritage Conservation District for Main Street South further verifies this impression as it relates to the physical condition and abundance of the area's historic building stock."

Cammaert concludes with this:

"Newmarket's Historic Main Street has experienced tremendous revitalisation over the past 15 years to the benefit of local residents and tourists alike."

Forrest’s dereliction

The great irony is that Forrest, in pursuit of his Clock Tower development, has contributed to an air of dereliction by evicting his business tenants and shuttering the historic commercial properties on Main Street South. They have been boarded up for years. 

So, how will the wily and artful Ira Kagan play this?

He will say the Town has a policy for the Historic Downtown that pulls in different directions - on the one hand intensification and revitalising the old downtown and, on the other, preserving and protecting the Town's historic built heritage. Forrest's own heritage consultants, Goldsmith Borgal, recognised this alleged dichotomy and concluded that, at the end of the day, it was a matter for councillors to decide. Kagan will say the Town staff focussed on heritage and neglected the other part of the equation, "intensification".

Prepare for a deluge of Official Plans, Regional Plans, PPSs and GGHs

At the OMB Hearing, Kagan can be expected to talk at great length about the growth plan, provincial policy statements and that kind of stuff. He has a template ready that he can use.

Unfortunately, there is no transcript for the OMB Glenway Hearing but we have Kagan's written closing submission which focussed on intensification in the Newmarket context. We also have the OMB Glenway decision of 18 November 2014 which I quote at length to give context. The adjudicator and OMB Vice Chair, Susan de Avellar Schiller, said this:

“[52] The 2005 PPS (Provincial Policy Statement), the 2014 PPS and the GGH (the Provincial Growth Plan for the Greater Golden Horseshoe) all refer to intensification using similar and occasionally identical language.

[53] Intensification is encouraged generally.

[54] Policy 2.2.6(b) of the GGH is clear that municipalities are to:

 ...encourage intensification generally throughout the built up area...

[55] Then at Policy 2.2.6(f) municipalities are to:

 ...facilitate and promote intensification...

[56] Intensification is defined as:

The development of a property, site or area at a higher density than currently exists...

[57] These requirements are distinct from the GGH requirement that municipalities, at Policy 2.2.6(e):

...recognise urban growth centre, intensification corridors and major transit station areas as a key focus for development to accommodate intensification...

[58] Intensification areas include the areas listed in Policy 2.2.6(e) and also include:

... other major opportunities that may include infill, redevelopment...

[59] While intensification areas are to be identified and recognised by municipalities, the GGH does not limit intensification to intensification areas.”

and so it goes on. In paragraph 61 she sums it up this way:

 “... designated growth areas or intensification areas are areas designated by the municipality. While these areas may be the focus for achieving intensification targets, they are not the only locations where intensification can occur.”

That gives Kagan all the leeway he needs to make the general case for the intensification of the old downtown. However, we already know from the Planning Staff report of 28 November 2016 that the Clock Tower development is not needed for the Town to hit its Provincial target.

But how is the intensification going to be accommodated in a Heritage Conservation District?

Answer: Remove the Clock Tower from the Heritage Conservation District.

Heritage Conservation District Plan and By-law

Kagan will make great play of the fact that Forrest's completed application was lodged with the Town and deemed "complete" before the Town got round to enacting its HCD By-law.

In 2013, the Town's Director of Planning, Rick Nethery, was of course aware that Forrest was about to submit a heritage destroying planning application involving the demolition of historic structures. Despite this he told me the By-law would have to wait until 2014 because the cost of hiring staff to police it was not in the Budget.

There was a huge outcry and, in the event, the By-law was passed on 21 October 2013 with the OMB giving approval in 2014. The Forrest lands were temporarily removed from the Heritage Conservation District pending a determination of his Clock Tower application by the municipality.

As it happens, the By-law (2013) does not add or subtract anything from the Heritage Conservation District Plan (2011). They are identical.

In 2013 Rick Nethery told me:

"In short, the by-law adopting the Heritage Conservation District is required to fully implement the District Plan and have it be in full force and effect. While we utilise the Plan to assist in evaluating proposals, the passing of an adopting by-law gives the Plan its Official status."

Clearly, this is something the planning lawyers will have to address. I suspect the By-law trumps the Plan. Kagan wants the Clock Tower judged against pre-existing policy (ie before the By-law was enacted). But the policy "pre and post" is exactly the same.

The lawyers will tell us what it all means. That's why they get the big bucks.

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Details

Written by: Gordon Prentice

Published: 22 April 2017

Background: Last Thursday's meeting of York Regional Council (20 April 2017) was important. I knew it the moment I walked into the Council Chamber and saw the Men in Suits with their expensive looking briefcases. The "Development Community" is in attendance!

The meeting is all about development charges. I learn that a total of 58 projects with a gross capital cost of $1.5 billion are to be added to the Region's "contingency schedule". They are not paid for. The paperwork tells me the contingency schedule has two types of projects:

* Assets the Region doesn't currently own/have responsibility for. These projects require the Region to enter into an agreement with another party. An example is the GO rail grade separation at Davis Drive.

* Additional roads projects in the Region's Transportation Master Plan that are needed to support new development.

These projects are subject to financial triggers. You can view the slides here. (Scroll to bottom of page and open.) Now read on. 

Developers are unhappy

The Regional Council is meeting to discuss the latest proposed revisions to the Development Charges By-law. DCs are big bucks. They are extracted from developers to help pay for things like roads, water and sewage that new subdivisions rely on if they are not going to be stranded in the middle of nowhere, hooked up to nothing.  

A trio of aggrieved developers and consultants make their way to the microphone.  They are, to varying degrees, unhappy.

First up is Randy Grimes (real name not an alias) from the IBI Group but speaking for BILD's "York Chapter" which sounds kinda threatening. Then there's the eloquent Maria Gatzios from Gatzios Planning. And, bringing up the rear, the flamboyant Marco Filice from the Liberty Development Corporation. He speaks on behalf of nine development project owners in York Region.

I notice his smart leather briefcase is sitting on top of a banker's box which, in turn, sits on a little trolley with a telescopic handle. He has a heavy caseload. When he is not giving his presentation he is gazing intently at his cell phone, one ear cocked towards the podium.

Important new roads deferred and delayed

The Region's new Revised Background Study is a huge document, intimidating in its thickness. The developers - made corporeal by Randy Grimes - complain that too many roads projects have been shuffled into a "contingent list". The money is not there to pay for them. The developers are upset and feel short-changed.

Now it is the turn of planning consultant Maria Gatzios who speaks clearly in well formed sentences. She says there is a mismatch between big infrastructure projects which are, apparently, 100% funded and roads which are 50% funded. She points to a long list of unfunded projects in Appendix G of the fat tome. I go to page 473 and, true enough, I see pages and pages of roads projects that appear to be parked, going nowhere soon.

Ms Gatzios says the Region's own Transportation Master Plan is a work of fiction when some of its key projects are not funded. I made that up but you get the idea.

Now Mr Felice is at the microphone talking us through his slideshow. He points to ancient policies and pronouncements from York Region, drawn from their own documentation, that have never been acted on. They don't follow through. He thinks this will help his case.

Higher Development Charges. Is that what the developers want?

Frank Scarpitti from Markham wants to know if developers are prepared to see higher DCs if the contingency projects are put in the main list. Ms Gatzios says she's just a consultant planner but the "necessary projects" have got to be in the list.

Newmarket's John Taylor cunningly asks if she has the support of the entire development community for DCs to go up - even if it doesn't affect them personally as their projects don't need new infrastructure to go ahead.

Ms Gatzios is getting a lot of questions - I suppose because her presentation was interesting and easy to follow and she invited them. She says it is, inevitably, a balancing act. But there is real alarm out there that there are so many gaps in transportation spending.

"You are hearing from the development community that significant things are missing."

Van Trappist's question  

Now the Trumpets blast! The cymbals clash! A hush descends and the Chamber falls silent. It is time for Van Trappist to ask his annual question, justifying his York Region "stipend" of $54,337.92 a year.

"What about site specific development charges?"

A decent enough question but is it worth $9,056 per word?

Now the Region's affable Bill Hughes - the man in charge of the money - moves to the microphone. He affects a gentle professorial air. Looking at his students, seated around the hemicycle, he says he is going to present a structured argument on "Financial Sustainability". They wait to hear what the great man is going to say.

He starts by telling them:

"When you bring a problem to politicians you (must) also bring a solution."

Hmmm. We all wonder what's coming next.

He says Southern Ontario is growing but the distribution of that growth is uneven. Toronto is growing faster than expected with 20,000 new people moving into the city every year since 2009. By contrast, the GTA is growing more slowly than expected.

Closing the fiscal gap

This means there is a "fiscal gap" which sounds painful. The development charges coming in are lower than predicted. But the Region still has to build the infrastructure to accommodate the newcomers - even if there are fewer than expected.

He says development charges do not cover growth. This used to be unsayable but now it is the received wisdom. I learn that York Region has the highest debt per capita in Ontario - or is it the Western Hemisphere? Anyway it is three times Peel's and nine times Durham's.

Infrastructure is expensive but it supports growth. Water comes up. Sewage goes down. Hughes quotes his excellent colleague, the head of engineering, Erin Mahoney.

"We do not have a straw to the lake."

But building this infrastructure is not pain free. Debt servicing costs are significant. And if the projects in the contingency list became live then those costs would be "significantly higher".

Food for Thought  

Now I see the Regional Chair, the Great Potentate, Wayne Emmerson, shuffling in his big chair. This usually signals he is about to say something profound. True enough. He looks at Bill Hughes and says:

"You've given us food for thought. We have to live within our means, just like everyone else."

Now Markham's Jim Jones wants to know why Hughes is so surprised by Toronto's turbocharged growth and what effect the proposed foreign buyers tax will have.

Now Hughes is talking again about closing the fiscal gap which is not going to happen:

"Unless the Council is prepared to do very terrible things."

By this I assume he means putting up taxes.

Vaughan's Gino Rosati squeaks:

"This is a reality check!"

We don't have enough money

Now Hughes adds, darkly:

"The bottom line is we don't have enough money."

He says the best path is to find new sources of revenue such as those available to the City of Toronto. Land Transfer Tax. Vehicle Licensing and so on.

Now it is the turn of Markham's Frank Scarpitti, il capo di tutti capi.

He says our needs are as great as Toronto's and the DCs will have to be paid.

"We are gonna get that money."

He smiles but, as always, there is a hint of menace.

"We are gonna get that money even if we have to build a wall to keep people in. It may take longer to get the money but we'll get the money."

The temperature in the Council Chamber drops a few degrees. The developers feel a chill in the air.

New tax powers needed

Now he is talking about pushing a rope up a mountain, getting the cash they need for all their projects. He wants new tax powers from the Province.

The school swat, Markham's Jack Heath says we've heard realism we haven't heard before.

Now Newmarket's John Taylor is wondering if and when all the development charges will be collected. He talks about a future full of "precariousnesses"

"What if growth doesn't happen as projected?"

Taylor has been sitting next to the old banker for too long. He is worried about being saddled with debt we can't pay off.

Now Vaughan's Maurizio Bevilacqua, York Region's resident philosopher, pronounces:

"When there is confusion, you seize the moment!"

He wants to ask people how much they are prepared to pay in taxes! I think I know the answer he will get.

He says his colleagues can try to finesse the debate but facts are facts - there's not enough cash.

On that we can all agree.

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