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| The Norman Rockwell painting which I attached to my letter to Mayor and Council upon getting home from the 2017-06-07 (WED) public meeting, using in my transmission the filename tmp_norman_rockwell__painting_celebrating_free_municipal_speech.jpg. This painting can be found in numerous places on the Web, through Google Images searching. |
Quality assessment:
On the 5-point scale current in Estonia, and surely in nearby nations, and familiar to observers of the academic arrangements of the late, unlamented, Union of Soviet Socialist Republics (applying the easy and lax standards Kmo deploys in his grubby imaginary "Aleksandr Stepanovitsh Popovi nimeline sangarliku raadio instituut" (the "Alexandr Stepanovitch Popov Institute of Heroic Radio") and his grubby imaginary "Nikolai Ivanovitsh Lobatshevski nimeline sotsalitsliku matemaatika instituut" (the "Nicolai Ivanovich Lobachevsky Institute of Socialist Mathematics") - where, on the lax and easy grading philosophy of the twin Institutes, 1/5 is "epic fail", 2/5 is "failure not so disastrous as to be epic", 3/5 is "mediocre pass", 4/5 is "good", and 5/5 is "excellent"): 5/5. Justification: There was enough time to write out the necessary points to full length, without skipping anything that seemed liable to help readers.
Revision history:
- 20170613T2210Z/version 2.1.0: Kmo made some small but not-quite-cosmetic adjustments, the most important of which was the addition of an affirmation that he had indeed obtained the hoped-for return phone call from municipal staffer (Senior Planner) Ms Mary Filipetto. He reserved the right to make small, nonsubstantive, purely cosmetic tweaks over the coming 48 hours, as here-undocumented versions 2.1.1, 2.1.2, 2.1.3, ... .
- 20170613T1506Z/version 2.0.0: Kmo, now running almost 12 hours behind schedule, finished converting his point-form outline into full-sentences prose. He reserved the right to make small, nonsubstantive, purely cosmetic tweaks over the coming 48 hours, as here-undocumented versions 2.0.1, 2.0.2, 2.0.3, ... .
- 20170613T0006Z/version 1.0.0: Kmo had time to write only a polished point-form outline, itself lacking the usual kind of polishing which an outline requires. He hoped over the coming 12 hours to convert this into full sentences, in a series of incremental uploads.
[CAUTION: A bug in the blogger server-side software has in some past weeks shown a propensity to insert inappropriate whitespace at some points in some of my posted essays. If a screen seems to end in empty space, keep scrolling down. The end of the posting is not reached until the usual blogger "Posted by Toomas (Tom) Karmo at" appears. - The blogger software has also shown a propensity to generate HTML that gets formatted in different ways on different client-side browsers, perhaps with some browsers not correctly reading in the entirety of the "Cascading Style Sheets" (CSS) which on all ordinary Web servers control the browser placement of margins, sidebars, and the like. If you suspect CSS problems in your particular browser, be patient: it is probable that while some content has been shoved into some odd place (for instance, down to the bottom of your browser, where it ought to appear in the right-hand margin), all the server content has been pushed down into your browser in some place or other. - Finally, there may be blogger vagaries, outside my control, in font sizing or interlinear spacing. - Anyone inclined to help with trouble-shooting, or to offer other kinds of technical advice, is welcome to write me via Toomas.Karmo@gmail.com.]
Last week saw not one but two substantive, and adverse, developments in what has over the past decade been Canada's weightiest heritage-conservation file, on the David Dunlap Observatory and Park (DDO&P).
(A) On the evening of 2017-06-06 (TUE), our Town Council held a "Special Meeting". The concept is a technical one, regulated by Richmond Hill's Procedure By-law (from 2012-10-01, formally By-law 74-2012 or "74-12"):
6.1.7 Public Notice of Special Meeting
The Clerk shall provide notice to the public of a Special Meeting called for /.../ any purpose other than an Emergency or Time Sensitive Matter by posting to the schedule of Meetings on the Town's website not less than one (1) clear day in advance of the date of the Meeting /.../
6.1.8 Public Notice - Saving
If by oversight or otherwise notice of a special Meeting is not provided in the manner prescribed in subsection 6.1.7 (Public Notice of Special Meeting), the Meeting of Council shall not be void or voidable by reason of such failure to give notice or the insufficiency of any notice and no proceeding at that Meeting shall be void or voidable by reason of such failure to give notice or the insufficiency of any notice.
Since (as I will explain in a moment) the Special Meeting dealt with a specially serious matter, the redrawing of a Cultural Heritage Landscape boundary contrary to a hitherto (in large part - or even, for all I can now recall, fully?) accommodated 2009 Conservation Review Board recommendation, it is specially important to examine whether advance public notice was given. At first I thought I heard a scrap of talk in the community to the effect that the meeting had been called at very short notice indeed, contrary to the 6.1.7 "one clear day" requirement, around 08:30 on the morning of the actual day it was held (namely, 2016-06-06). On discussing this further with my community informant, "XYZ", I realized that I had misheard what XYZ had told me, and that in XYZ's opinion public notice had in fact been given at 08:30 or so on the morning of the day before, namely 2017-06-05. Still, the question is a grave one - with its gravity not negated by the presence in the Procedure By-law of the "saving" clause which is the just-quoted 6.1.8.
On 2017-06-08, I asked our Clerks for particulars on the public notice. Here is the relevant part of my correspondence (an e-mail to clerks@richmondhill.ca, with subject line Clerks: qn-4-u for LATER this wk: Mayor breached by-law 2017-06-06 (inadeq pblc notice??). My cryptic-looking reference to "Amberley Gavel" is a reference to our municipality's Integrity Commissioner:
/.../ having examined some pertinent parts of the Procedure By-Law as forwarded by you to me, I have a query (which you might have to answer LATER in the week): on what date and at what time, and in what manner, was the public given notice of the Special Meeting held on the evening of 2017-06-06 (TUE)? It would be helpful here if Clerks could give me some appropriate documentation - for instance, by forwarding an e-mail with its full SMTP headers intact, establishing that notice was promulgated with correct regard for the Procedure By-law. (SMTP is the standard internet mail-transmission protocol, in Internet law terms promulgated as RFC 4021. (RFC is "Request for Comments" - a misleading term, in reality meaning simply "Internet-regulating international agreement".))
It is important that we have an audit trail, since a story is going round (I had it this morning, on the telephone, one might say from another analyst of civic procedure) that notice was given only around 8:00 am on the day of the meeting - in other words, in contravention of the Procedure By-Law.
Your team may later this week want to advise me how we establish a rigorous audit trail, ideally in the SMTP/RFC-4021 framework, or alternatively advise that no easy audit trail exists and that I therefore should seek an opinion from Amberley Gavel (who might, for all I know at the moment, eventually rule that the Mayor was in breach, by calling a meeting with inadequate prior notice).
It is of course already worrisome that the meeting was called for a night early in the week: can adequate notice have been given easily, if the meeting was on a Tuesday as opposed to (for instance) a Thursday or a Friday? The Procedure By-Law, awkwardly, requires "at least one clear day" of advance notification.
I am concerned to cross every legal t and dot every legal i because the Special Meeting performed something large. It in effect redrew the boundaries of a Cultural Heritage Landscape, giving DDO either the exact same narrowed CHL DDO had been offered in 2009 by the Town, or something very close to that same narrowed CHL. That narrowed CHL was itself defeated at the Conservation Review Board in 2009, with the Town eventually, in 2010, trying to respect CRB by adding a "buffer". It was that buffer-enriched CHL that the 2017-06-06 meeting trimmed back (the buffer is gone now), in effect taking the Town back to the CHL concept it had unsuccessfully attempted to defend at the 2009 CRB. I may eventually have to argue publicly - you can see now how the stormy legal seas begin to rise - that the Mayor, by calling a swift and poorly publicized meeting, has undercut the Ontario Heritage Act and the CRB, and has therefore helped weaken the rule of law in Ontario.
If, of course, we can rigorously establish, with or without the technical assistance of Amberley Gavel, that the Mayor acted in full conformity with the Procedure By-Law, my worries do go away.
Anxiously,
wondering what we shall find out as our week progresses,
Tom Karmo
Public criticism - or, I could even without exaggeration say, public condemnation - of the 2017-06-06 development has been impressively swift and clear. On 2017-06-07, the Town received a condemnatory petition from residents, carrying 94 signatures as of 19:00 EDT (and with my own signature added, as entry 95, just before the petition got submitted, around 19:30 EDT).
One of the residents active in this petition initiative expressed to me, privately, the opinion that a real public movement was only now beginning. I do piously hope, without myself seeing a juridical way forward, that this well-intentioned, and optimistic, resident proves right.
(B) On the following night, on 2017-06-07 (WED), came a Council "public meeting" - a meeting of a category designed not for the taking of municipal decisions but for the hearing of public views. Input was sought on a Zoning By-law Amendment (ZBA) application, under which the aspiring DDO&P developer, Corsica Development Inc., would be allowed "secondary suites" above various garages in the 32-hectare subdivision its bulldozers have been carving out of the 77-hectare legacy DDO&P. The subdivision was, according to the much-criticized, and yet supposedly determinative, 2011 Ontario Municpal Board (OMB) Minutes of Settlement (upheld, in the teeth of conservationist counterargument, at 2012 and 2014 OMB hearings), to comprise 533 or so units of housing, In the ZBA application, an addition of potentially 74 secondary suites was envisaged, with the total potential number of housing units therefore rising to 607 (the sum of 533 and 74).
My submission to the Town, as a written accompaniment to my podium remarks on 2017-06-07, is largely self-explanatory. I do regret an "of of" typo, and my misspelling of "Garry Hunter" as "Gary Hunter", and my misquoting the staff report SRPRS 17.101 as "recommendation that all comments be referred back to staff for discussion" when what is in fact written in SRPRS 17.101 is "recommendation that all comments be referred back to staff for consideration". Further, the municipal staffer (Senior Planner) Ms Mary Filipetto, whom I politely mention in the letter as owing me a communication, did just some minutes after I transmitted my letter return my phone call, confirming my belief (expressed in my letter) that stormwater-sump ownership and management would in a normal case in due course pass from developer to municipality:
[Letter from Toomas Karmo, 406 Centre Street East, Richmond Hill for circulation in advance of the public Town Council meeting of 2017-06-07 (WED), and for inclusion in the post-meeting public record.]
0. Preamble
Thank you, Mr Mayor and Council, for this opportunity to communicate with you on what has over the past decade emerged as Canada's weightiest heritage-conservation case.
In discussing the case tonight, I follow with modifications the language of the 1932 Deed of Indenture between Jessie Donalda Dunlap and the University of Toronto. This Deed prescribes the name "David Dunlap Observatory and Park" for Mrs Dunlap's land donation. I shorten the term to "DDO&P". Further, I apply the terms "David Dunlap Observatory and Park" and "DDO&P" not strictly to the 1932 72-hectare donation, but rather to its 1950s enlargement, to a total of 77 hectares. (The enlargement was a consequence of a 1950s 5-hectare donation or bequest from the Observatory's founding director, Prof. Clarence Augustus Chant).
The original 72 hectares, from 1932, are commonly known as the "Trapezoid". The 5 additional hectares, from the 1950s, are commonly known as the "Panhandle".
To help not only the general public but also the pertinent officers at Queen's Park (notably in the Ministry of Environment) orient themselves, I add a bare-bones history of the pertinent land transfers:
(A) In 2008, the University of Toronto sold all 77 hectares (i.e., both Trapezoid and Panhandle) to Corsica Development Inc. - a subsidiary of an entity then known as Metrus, and since 2014 April known as "DG Group". DG Group is privately held. The directors of Corsica were, when I checked a couple of years ago, from the DeGasperis and Muzzo families.
(B) The 2008 sale was contrary to Mrs Dunlap's 1932 Deed of Indenture, which provided for a reversion to the Dunlap family in the event that the University of Toronto ever in future terminated its observatory operations. In selling, the University proceeded on the legal theory - not, however, ultimately tested in a court trial - that the sale-blocking language in the 1932 Deed of Indenture was now not legally binding.
(C) Some years after 2008, Corsica sold the 5-hectare "Panhandle" portion of DDO&P to the Town.
(D) On 2017-03-21, Corsica conveyed approximately 40 hectares (the western half, or so, of the "Trapezoid") from DDO&P to the Town, for use as parkland. The Town envisaged that the 5-hectare Panhandle, and the 40-hectare Trapezoid remnant, would together comprise an entity to be called the "David Dunlap Observatory Park". Corsica envisaged that the eastern half, or so, of the "Trapezoid" would become a subdivision. The subdivision was to comprise a lane, 14 streets, 520 or 530 homes, and - this is central in what I have to communicate to Town Council tonight - a stormwater sump, under the name "Observatory Hill". (A little confusingly, there is or has been a separate entity, called the Observatory Hill Homeowners' Association, representing the interests of residents immediately south of DDO&P, notably on Fern Avenue.)
1. SRPRS 17.101 and Question of Oak Ridges Moraine Aquifer Breach
Your discussions tonight turn in large part on the staff report SRPRS 17.101. A key passage in the report reads as follows (under the heading "Town Department and External Agency Comments):
The TRCA /.../ has requested the applicant [sc Corsica Development Inc.] to demonstrate that the pond [sc the "stormwater management pond", namely the sump for receiving precipitation runoff] has adequate capacity to provide excess storage. At the time of the writing of this report, a response has not been received from the applicant in response to the TRCA's comments.
The TRCA's question is one facet of a wider question: has the developer breached the Oak Ridges Moraine Aquifer cap?
If the cap were to be breached, the question of of stormwater-sump capacity would take on extra significance. With water flowing in from below, estimates of pond capacity based on the calculated volume of surface runoff would be misleading.
Further, a question of sump-floor erosion would arise in this hypothetical scenario. With inflow from below, might it be (I ask) that the sump floor would eventually degrade, with a small breach becoming eventually larger, and with the volume of inflow therefore eventually increasing?
The question of an aquifer breach was raised by my friends the Richmond Hill Naturalists at the Ontario Municipal Board DDO&P hearings of 2012 and 2014, by the hydrogeologist Gary Hunter, in the course of my friends' at-that-time unsuccessful efforts to conserve the full 77-hectare DDO&P. I would recommend all parties to now revisit my friends' OMB casework and to make correct public citation of it.
The wide question of an aquifer breach in turn raises a still wider question, regarding legal liability. I believe - though I have not so far had this morning's call returned by Mr Mary Filipetto (Senior Planner, Subdivisions, Town of Richmond Hill) that in the long term - over the coming decades, as opposed to the coming months - it is the Town that is legally responsible for sump maintenance, and who can be sued by property-injured residents in the envisaged Observatory Hill subdivision, or by property-injured residents on the existing streets (most notably on Fern Avenue) adjoining the envisaged subdivision.
2. Aquifer-Breach Question as on 2017-04-15 (Ministry of Environment)
On 2017-04-15, I wrote the Ontario Ministry of Environment about the breach-of-aquifer question, thereby continuing a line of inquiry that I had pursued with the Province of Ontario in two 2016 letters (with, in 2016, a papermail response letter to me from the Minister for Municipal Affairs, the Hon. Bill Mauro). Particulars on my 2017-04-15 communication, and on the earlier 2016 communications from and to me, and on pertinent press coverage at http://www.yorkregion.com/news-story/6957885-richmond-hill-neighbours-furious-with-david-dunlap-land-developer-s-mountain-/ (Richmond Hill Liberal, 2016-11-16, under headline "Richmond Hill neighbours furious with David Dunlap land developer's 'mountain'") are in my blog posting of 2017-04-15, in an entry viewable by scrolling downward on the page http://toomaskarmo.blogspot.ca/2017/04/.
I am today communicating again with the Ministry, to remind them of this 2017-04-15 material from my desk.
As I documented the 2017-04-15 casework at http://toomaskarmo.blogspot.ca, so I also am proposing, perhaps a few days from now, to somehow document tonight's casework at http://toomaskarmo.blogspot.ca.
3. Aquifer-Breach Question as on 2017-06-07 (Perimeter Inspection)
This follow-on e-mail elicited no response from the Mayor, but did elicit a favourable, supportive private e-mail to me from my own Ward Councillor, Mr Tom Muench.
I was only one of several DDO&P discussants at the 2017-06-07 podium. From the now-somewhat-misleadingly named "DDO Defenders" there spoke Ms Gloria Boxen and Dr Ian Shelton. Both criticized aspects of the envisaged ZBA. Dr Shelton kindly greeted me upon taking his seat in the Chamber, surprising me with a small, friendly hand gesture invisible to all but the vigilant. In the wake of his remarks, and of his unexpected gesture, I find it advisable to now compose an open letter to the "Defenders", admittedly with some degree of unease and apprehension. In composing my open letter, I proceed in the light of this weeks already-posted "remarks in lieu of analytical philosophy": how (I ask myself) would those good-humoured Cistercians, or the Pluscarden Benedictines, or Pope Saint John XXIII, or Pope Francis, or the author (with her or his heavenly audience!) of the 2017-06-12 Laudes Matitutinae prayer, or the shades of Aemilius Papinianus and the other pagan Roman jurists, play my ever-so-sticky wicket? Clearly I must accentuate the positive, while also paying a due sympathetic regard to Dr Shelton's past human weaknesses. The weaknesses need not be dissected here, since I have dealt with them (I like to think, definitively, finally, once and for all) at http://www.karen-vs-toomas-blog.ca/20140218T035440Z____blogpost/NNNN____20140218T035440Z____blogpost__main.html. Within that perhaps-definitive Web page, it suffices to start from the passage /../ I privately checked with Dr Shelton /.../ . What has been done there need not, I stress, be repeated here.
I do, however, remark for the possible convenience of the more inquisitive among my various readers that the red-marked parts of the cited Web page are what I had to change in the wake of legal action brought by Mrs Karen Cilevitz in 2014 March (since the municipal election of 2014-10-27, alas, Town Councillor Karen Cilevitz). The inquisitive, should there be any, can check the text as I originally worded it, before the red-letters revisions, at http://www.karen-vs-toomas-legaldocs.ca/GNOA____20140505__settlement_schedule_a.pdf.
Mindful of the upliftingly comedic Cistercians, of the Pluscarden Benedictines, of Good Pope John, and the like, I seek herewith to avoid what it would this week as a matter of political practicalities be possible to pull off, namely the imposing of a large fresh humiliation on the much-buffeted Dr Shelton. I accordingly offer Dr Shelton simply the following (here at http://toomaskarmo.blogspot.ca, and also in a private e-mail transmission), in what I hope is a correctly irenic spirit:
Dear Ian,
You will recall that I founded the (now somewhat misleadingly named) DDO Defenders late in 2007, as an informal community grouping; that Karen Cilevitz took control of it in the spring of 2008, and incorporated it in 2011 to make possible her, your, and your community colleagues' participation in an Ontario Municipal Board closed-doors mediation process; and that you became head of this incorporation upon Karen's getting elected, on 2014-10-27, to Town Council.
You will recall that when (a) Karen asserted at https://www.facebook.com/karencilevitz/, in perhaps 2014, my exclusion from the DDO Defenders, (b.a) I in 2014 or 2015 explicitly gave you public opportunity to confirm Karen's assertion publicly, whereupon (b.b) you had the kindness to refrain. I therefore continue to assume, subject to written correction from you, that I remain a DDO Defenders member.
Your Town of Richmond Hill podium remarks of 2017-06-07 are significant. For the first time since 2011, the DDO Defenders are, and now under your leadership, explicitly criticizing Corsica Development Inc. The criticism remains significant even once it is admitted that you criticize Corsica only on some details, continuing to maintain a broad diplomatic silence in your mission statement at http://www.ddod.ca/ - at any rate as I inspect it at or within a couple of minutes of UTC=20170612T185119Z:
This material of UTC=20170612T185119Z is still, I think, the wording your organization introduced in 2012 or so, I suspect from its various stylistic features as a composition from Karen. Your organization introduced it as an unfortunate revision of your pre-2012 mission statement, which - laudably and correctly, in my own (pro-forest) judgement and the judgement of my (pro-forest) friends in the Richmond Hill Naturalists - urged conserving the full (77-hectare) DDO&P terrain. In particular, I believe (subject to written correction from you) that your podium words of 2017-06-07 mark the first time the formally incorporated, i.e., the post-2011, DDO Defenders have publicly raised questions of light pollution in a manner critical of Corsica.
Your protest cannot in strict fairness be called forceful. The envisaged "secondary units" of housing, whose stairway lightbulbs are the substantive topic of your light-pollution protest, lie hundreds of metres away from the housing units that most matter, namely the Hillsview-near-Donalda McMansion lots (or, in the more courteous language of urban planing, the Hillsview-near-Donalda "R6" lots). It is these Hillsview-near-Donalda R6 lots, not the outlying lots you addressed at the podium, that conservationists would be specially hopeful in protecting through such actions as my (ultimately futile) financing of the 2012 and 2014 Ontario Municipal Board cases fought by my friends from the Richmond Hill Naturalists.
But public advocacy for a right cause, however limited, remains public advocacy.
In now directly opposing Corsica in the public forum, you provide an opening for talks between you and me. Could you and I now meet, say over tea or coffee at my new place of residence (406 Centre Street East, near Bayview), to clarify our respective positions, in terms that I can in the interest of civic transparency later publish at http://toomaskarmo.blogspot.ca?
I have composed this present open letter quite carefully, and (as I remark in the earliest of this week's three http://toomaskarmo.blogspot.ca postings, headed "Remarks in lieu...") with some soul-searching,. I therefore hope that I have been fully civic-minded and fully accurate. If I have strayed into impropriety in anything I am putting into this present open letter, do please advise me in writing, in terms suitable for reporting by me (for example, by some combination of paraphrase and direct quotation) at http://toomaskarmo.blogspot.ca. Should you wish to write me not privately but by way of a world-readable http://toomaskarmo.blogspot.ca comment, do please do so, checking my blog-posting rules of 2016-04-14, and noting that those rules guarantee your freedom from censorship,. You can find my rules at http://toomaskarmo.blogspot.ca/2016/04/background-faq-regarding-purpose-and.html, under the heading "Background FAQ, regarding purpose and conduct of this blog".
Sincerely,
hoping that this letter does not bring you undue angst,
but instead helps both of us work in the civic interest,
Tom
[This is the end of the current blog posting.]
It is important that we have an audit trail, since a story is going round (I had it this morning, on the telephone, one might say from another analyst of civic procedure) that notice was given only around 8:00 am on the day of the meeting - in other words, in contravention of the Procedure By-Law.
Your team may later this week want to advise me how we establish a rigorous audit trail, ideally in the SMTP/RFC-4021 framework, or alternatively advise that no easy audit trail exists and that I therefore should seek an opinion from Amberley Gavel (who might, for all I know at the moment, eventually rule that the Mayor was in breach, by calling a meeting with inadequate prior notice).
It is of course already worrisome that the meeting was called for a night early in the week: can adequate notice have been given easily, if the meeting was on a Tuesday as opposed to (for instance) a Thursday or a Friday? The Procedure By-Law, awkwardly, requires "at least one clear day" of advance notification.
I am concerned to cross every legal t and dot every legal i because the Special Meeting performed something large. It in effect redrew the boundaries of a Cultural Heritage Landscape, giving DDO either the exact same narrowed CHL DDO had been offered in 2009 by the Town, or something very close to that same narrowed CHL. That narrowed CHL was itself defeated at the Conservation Review Board in 2009, with the Town eventually, in 2010, trying to respect CRB by adding a "buffer". It was that buffer-enriched CHL that the 2017-06-06 meeting trimmed back (the buffer is gone now), in effect taking the Town back to the CHL concept it had unsuccessfully attempted to defend at the 2009 CRB. I may eventually have to argue publicly - you can see now how the stormy legal seas begin to rise - that the Mayor, by calling a swift and poorly publicized meeting, has undercut the Ontario Heritage Act and the CRB, and has therefore helped weaken the rule of law in Ontario.
If, of course, we can rigorously establish, with or without the technical assistance of Amberley Gavel, that the Mayor acted in full conformity with the Procedure By-Law, my worries do go away.
Anxiously,
wondering what we shall find out as our week progresses,
Tom Karmo
I still await Clerks' response.
Public criticism - or, I could even without exaggeration say, public condemnation - of the 2017-06-06 development has been impressively swift and clear. On 2017-06-07, the Town received a condemnatory petition from residents, carrying 94 signatures as of 19:00 EDT (and with my own signature added, as entry 95, just before the petition got submitted, around 19:30 EDT).
One of the residents active in this petition initiative expressed to me, privately, the opinion that a real public movement was only now beginning. I do piously hope, without myself seeing a juridical way forward, that this well-intentioned, and optimistic, resident proves right.
(B) On the following night, on 2017-06-07 (WED), came a Council "public meeting" - a meeting of a category designed not for the taking of municipal decisions but for the hearing of public views. Input was sought on a Zoning By-law Amendment (ZBA) application, under which the aspiring DDO&P developer, Corsica Development Inc., would be allowed "secondary suites" above various garages in the 32-hectare subdivision its bulldozers have been carving out of the 77-hectare legacy DDO&P. The subdivision was, according to the much-criticized, and yet supposedly determinative, 2011 Ontario Municpal Board (OMB) Minutes of Settlement (upheld, in the teeth of conservationist counterargument, at 2012 and 2014 OMB hearings), to comprise 533 or so units of housing, In the ZBA application, an addition of potentially 74 secondary suites was envisaged, with the total potential number of housing units therefore rising to 607 (the sum of 533 and 74).
My submission to the Town, as a written accompaniment to my podium remarks on 2017-06-07, is largely self-explanatory. I do regret an "of of" typo, and my misspelling of "Garry Hunter" as "Gary Hunter", and my misquoting the staff report SRPRS 17.101 as "recommendation that all comments be referred back to staff for discussion" when what is in fact written in SRPRS 17.101 is "recommendation that all comments be referred back to staff for consideration". Further, the municipal staffer (Senior Planner) Ms Mary Filipetto, whom I politely mention in the letter as owing me a communication, did just some minutes after I transmitted my letter return my phone call, confirming my belief (expressed in my letter) that stormwater-sump ownership and management would in a normal case in due course pass from developer to municipality:
[Letter from Toomas Karmo, 406 Centre Street East, Richmond Hill for circulation in advance of the public Town Council meeting of 2017-06-07 (WED), and for inclusion in the post-meeting public record.]
0. Preamble
Thank you, Mr Mayor and Council, for this opportunity to communicate with you on what has over the past decade emerged as Canada's weightiest heritage-conservation case.
In discussing the case tonight, I follow with modifications the language of the 1932 Deed of Indenture between Jessie Donalda Dunlap and the University of Toronto. This Deed prescribes the name "David Dunlap Observatory and Park" for Mrs Dunlap's land donation. I shorten the term to "DDO&P". Further, I apply the terms "David Dunlap Observatory and Park" and "DDO&P" not strictly to the 1932 72-hectare donation, but rather to its 1950s enlargement, to a total of 77 hectares. (The enlargement was a consequence of a 1950s 5-hectare donation or bequest from the Observatory's founding director, Prof. Clarence Augustus Chant).
The original 72 hectares, from 1932, are commonly known as the "Trapezoid". The 5 additional hectares, from the 1950s, are commonly known as the "Panhandle".
To help not only the general public but also the pertinent officers at Queen's Park (notably in the Ministry of Environment) orient themselves, I add a bare-bones history of the pertinent land transfers:
(A) In 2008, the University of Toronto sold all 77 hectares (i.e., both Trapezoid and Panhandle) to Corsica Development Inc. - a subsidiary of an entity then known as Metrus, and since 2014 April known as "DG Group". DG Group is privately held. The directors of Corsica were, when I checked a couple of years ago, from the DeGasperis and Muzzo families.
(B) The 2008 sale was contrary to Mrs Dunlap's 1932 Deed of Indenture, which provided for a reversion to the Dunlap family in the event that the University of Toronto ever in future terminated its observatory operations. In selling, the University proceeded on the legal theory - not, however, ultimately tested in a court trial - that the sale-blocking language in the 1932 Deed of Indenture was now not legally binding.
(C) Some years after 2008, Corsica sold the 5-hectare "Panhandle" portion of DDO&P to the Town.
(D) On 2017-03-21, Corsica conveyed approximately 40 hectares (the western half, or so, of the "Trapezoid") from DDO&P to the Town, for use as parkland. The Town envisaged that the 5-hectare Panhandle, and the 40-hectare Trapezoid remnant, would together comprise an entity to be called the "David Dunlap Observatory Park". Corsica envisaged that the eastern half, or so, of the "Trapezoid" would become a subdivision. The subdivision was to comprise a lane, 14 streets, 520 or 530 homes, and - this is central in what I have to communicate to Town Council tonight - a stormwater sump, under the name "Observatory Hill". (A little confusingly, there is or has been a separate entity, called the Observatory Hill Homeowners' Association, representing the interests of residents immediately south of DDO&P, notably on Fern Avenue.)
1. SRPRS 17.101 and Question of Oak Ridges Moraine Aquifer Breach
Your discussions tonight turn in large part on the staff report SRPRS 17.101. A key passage in the report reads as follows (under the heading "Town Department and External Agency Comments):
The TRCA /.../ has requested the applicant [sc Corsica Development Inc.] to demonstrate that the pond [sc the "stormwater management pond", namely the sump for receiving precipitation runoff] has adequate capacity to provide excess storage. At the time of the writing of this report, a response has not been received from the applicant in response to the TRCA's comments.
The TRCA's question is one facet of a wider question: has the developer breached the Oak Ridges Moraine Aquifer cap?
If the cap were to be breached, the question of of stormwater-sump capacity would take on extra significance. With water flowing in from below, estimates of pond capacity based on the calculated volume of surface runoff would be misleading.
Further, a question of sump-floor erosion would arise in this hypothetical scenario. With inflow from below, might it be (I ask) that the sump floor would eventually degrade, with a small breach becoming eventually larger, and with the volume of inflow therefore eventually increasing?
The question of an aquifer breach was raised by my friends the Richmond Hill Naturalists at the Ontario Municipal Board DDO&P hearings of 2012 and 2014, by the hydrogeologist Gary Hunter, in the course of my friends' at-that-time unsuccessful efforts to conserve the full 77-hectare DDO&P. I would recommend all parties to now revisit my friends' OMB casework and to make correct public citation of it.
The wide question of an aquifer breach in turn raises a still wider question, regarding legal liability. I believe - though I have not so far had this morning's call returned by Mr Mary Filipetto (Senior Planner, Subdivisions, Town of Richmond Hill) that in the long term - over the coming decades, as opposed to the coming months - it is the Town that is legally responsible for sump maintenance, and who can be sued by property-injured residents in the envisaged Observatory Hill subdivision, or by property-injured residents on the existing streets (most notably on Fern Avenue) adjoining the envisaged subdivision.
2. Aquifer-Breach Question as on 2017-04-15 (Ministry of Environment)
On 2017-04-15, I wrote the Ontario Ministry of Environment about the breach-of-aquifer question, thereby continuing a line of inquiry that I had pursued with the Province of Ontario in two 2016 letters (with, in 2016, a papermail response letter to me from the Minister for Municipal Affairs, the Hon. Bill Mauro). Particulars on my 2017-04-15 communication, and on the earlier 2016 communications from and to me, and on pertinent press coverage at http://www.yorkregion.com/news-story/6957885-richmond-hill-neighbours-furious-with-david-dunlap-land-developer-s-mountain-/ (Richmond Hill Liberal, 2016-11-16, under headline "Richmond Hill neighbours furious with David Dunlap land developer's 'mountain'") are in my blog posting of 2017-04-15, in an entry viewable by scrolling downward on the page http://toomaskarmo.blogspot.ca/2017/04/.
I am today communicating again with the Ministry, to remind them of this 2017-04-15 material from my desk.
As I documented the 2017-04-15 casework at http://toomaskarmo.blogspot.ca, so I also am proposing, perhaps a few days from now, to somehow document tonight's casework at http://toomaskarmo.blogspot.ca.
3. Aquifer-Breach Question as on 2017-06-07 (Perimeter Inspection)
On the evening of 2017-06-06 (TUE), I carried out a 45-minute perimeter inspection of the DDOP&P site, walking along Bayview from Hillsview Drive to Fern, and walking along a small part of Fern, and walking on the grass of the vacant lot at Bayview and Fern, and walking Hillsview Drive from its Bayview termination to its railway-crossing termination. This gave me a full view of the DDO&P eastern and northern edges.
Two points relevant to the question of aquifer breach arise from my inspection. The points render the question of aquifer breach still more pressing than it was when I communicated with the Ministry of Environment on 2017-04-15:
(1) A firm active in the management of construction-site water, AquaTech, had as of 2017-06-06 parked various pieces of equipment, including a tank for diesel (possibly used in running a generator), piping, and a pump, by the kerb on Fern Avenue. Rather prominent in this equipment, as I viewed and photographed it, was an auger, which I estimated to be capable of boring soil to a width of 10 cm or 20 cm, to a depth of 5 m or 6 m. This equipment was not present in the DDO&P vicinity when I prepared my 2017-04-15 letter to the Ministry. It was, on the other hand, present within DDO&P itself (and plainly visible from Bayview, and I think photographed by me hastily from a bus window) some days prior to 2017-06-06.
What, I now ask, has induced the developer - who was already running other equipment, in my belief for pumping, but not marked with the AquaTech logo, at or near the sump bank around 2017-04-15, and over some weeks prior to that date - to resort to AquaTech? Has there, I now ask, been some kind of aquifer-breach emergency?
(2) The colour of the sump water, as I viewed and photographed it against a late-evening, partly cloudy, sky on 2017-06-06, was blue rather than brown. Is the blue colour (quite unlike the muddy brown of mere surface runoff), I now ask, possibly an indication of aquifer breach?
4. Recommendation: No Approvals until Aquifer-Breach Question Answered
It is helpful that SRPRS 17.101 concludes not with a recommendation for the passing of a zoning by-law amendment, but merely with (I quote) the recommendation that all comments be referred back to staff for discussion. I applaud this recommendation. Concern for the Town's conceivable legal liability - a problem to which I referred under my heading "1." above - requires that until the question of aquifer breach has been answered, both to the satisfaction of the Town and to the satisfaction of the Ministry of Environment, a zoning by-law amendment would be premature.
5. Concluding Remark: Subdivision Is Contrary to Public Interest
I reiterate my overall, guiding, consideration: any subdivision development at all on the 77-hectare DDO&P undercuts a potential UNESCO World Heritage List conservation case, and therefore runs contrary to the provincial and national public interest. Now, as at all previous points in this casework, I consider the public interest to be best served by Corsica's abandoning its "Observatory Hill" project, and thereupon allowing others (for instance, ordinary tree-planting citizens, among whom I recruited around 2012) to embark on reforestation along Hillsview Drive and Bayview Avenue.
On proceeding home from the meeting, and reflecting on an adverse experience that night in the Chamber, I felt it advisable to send Mayor, Council, the Toronto and Region Conservation Authority (TRCA), the community newspaper, and some conservationist or private community figures a follow-on e-mail, which again is largely self-explanatory:
Coordinated Universal Time (= UTC = EST+5 = EDT+4): 20170608T020319
Dear Mayor Barrow and TRCA (info@trca.on.ca, planning&permits@trca.on.ca),
with cc to the rest of Town Council,
and also with cc to community paper (KZarzour@yrmg.com, newsroom@yrmg.com),
with possible subsequent forwards to other
conservation-interested parties:
Thank you again, Mr Mayor, for the opportunity (a) to address Council tonight, and (b) to submit to Council the letter which I attach, once again, under filename
tmp_20170607T1519Z____kmo_to_town_council__aquifer_breach_etc.pdf.
I am now safely back at my desk from the Council chamber, having obtained a lift from a fellow voter for all but the last 3 kilometres of my journey, and having greatly enjoyed the summer air in those final 3 kilometres.
You will recall interrupting me at the podium tonight. On pondering your actions during my 3-kilometre stroll, it seems to me that you were not driven by malice, in other words that you were not heckling. You were, as I appraise your action, genuinely concerned for the good of Council, and were genuinely worried that I was not addressing the specific business before us.
At this instant, being safely back at my desk, I spell things out a little more explicitly than I perhaps succeeded in doing at the podium. I do this partly for your benefit, Mr Mayor, and partly to ensure also that the full DDO situation, with its potential problems of municipal legal liability, is grasped at TRCA.
(A) Central to tonight's deliberations, on the proposed Zoning By-Law Amendment at DDO, was staff report SRPRS 17.101.
(B) Central to SRPRS 17.101 are questions of infrastructure capacity, in the context of the proposed DDO "Observatory Hill" subdivision under the proposed zoning by-law amendment.
(C) One of the central themes in SRPRS 17.101 is the question of stormwater management pond capacity. (Admittedly, there are other central themes too, among them the theme of sewer capacity. But pond capacity, I respectfully insist, is **ONE** of the central themes.)
(D) SRPRS 17.101 correctly notes that TRCA has queried stormwater-management-pond capacity, with TRCA seeking an assurance from the developer. (As I reported from the podium, I have just learned that TRCA has received a response from the developer, and is at this instant analyzing it to see whether it is adequate.) This TRCA query, I would respectfully submit, duly documented in SRPRS 17.101, was **ONE** of the central points in tonight's business.
(E) In my tabled letter under filename
tmp_srprs__re_new_designating_bylaw.pdf,
I noted the possibility of aquifer-cap breach. Water can enter a stormwater management pond not in one way but in two - from above (as when stormwater runs along the ground or along shallow storm-management piping into the pond) and from below (in case an aquifer cap is punctured, with water under pressure now free to rise). If, speaking hypothetically, the stormwater pond were to have a breach in its floor, accidentally connecting it with the aquifer pressure, the capacity figures so far available to TRCA - assuming, as they do, that the only source of incoming water is from above - will prove unreliable.
In view of these five points, I continue to insist, politely but firmly, that I was not deviating from the topic of our meeting, but was on the contrary selecting one of several issues central to it.
Do please, Mr Mayor and TRCA, write me if any of my reasoning in this present letter needs amplification, or if I can in any other way help diminish the Town's risk of legal liability, or indeed if I can in any other ways assist.
Sincerely,
Toomas Karmo
406 Centre Street East, Richmond Hill
PS: I would like to thank two of my cc'd parties, Councillors Chan and Muench, for clearly communicating, in their own Chamber remarks, their correct grasp of the municipal legal-liability problem that would be posed if the stormwater pond floor were to breach the aquifer cap.
PPS: I underscore the rights of citizens in municipal deliberations by herewith attaching not only my own letter under filename
tmp_srprs__re_new_designating_bylaw.pdf,
but also the celebrated Norman Rockwell painting of municipal deliberations, under filename
tmp_norman_rockwell__painting_celebrating_free_municipal_speech.jpg.
Coordinated Universal Time (= UTC = EST+5 = EDT+4): 20170608T020319
Dear Mayor Barrow and TRCA (info@trca.on.ca, planning&permits@trca.on.ca),
with cc to the rest of Town Council,
and also with cc to community paper (KZarzour@yrmg.com, newsroom@yrmg.com),
with possible subsequent forwards to other
conservation-interested parties:
Thank you again, Mr Mayor, for the opportunity (a) to address Council tonight, and (b) to submit to Council the letter which I attach, once again, under filename
tmp_20170607T1519Z____kmo_to_town_council__aquifer_breach_etc.pdf.
I am now safely back at my desk from the Council chamber, having obtained a lift from a fellow voter for all but the last 3 kilometres of my journey, and having greatly enjoyed the summer air in those final 3 kilometres.
You will recall interrupting me at the podium tonight. On pondering your actions during my 3-kilometre stroll, it seems to me that you were not driven by malice, in other words that you were not heckling. You were, as I appraise your action, genuinely concerned for the good of Council, and were genuinely worried that I was not addressing the specific business before us.
At this instant, being safely back at my desk, I spell things out a little more explicitly than I perhaps succeeded in doing at the podium. I do this partly for your benefit, Mr Mayor, and partly to ensure also that the full DDO situation, with its potential problems of municipal legal liability, is grasped at TRCA.
(A) Central to tonight's deliberations, on the proposed Zoning By-Law Amendment at DDO, was staff report SRPRS 17.101.
(B) Central to SRPRS 17.101 are questions of infrastructure capacity, in the context of the proposed DDO "Observatory Hill" subdivision under the proposed zoning by-law amendment.
(C) One of the central themes in SRPRS 17.101 is the question of stormwater management pond capacity. (Admittedly, there are other central themes too, among them the theme of sewer capacity. But pond capacity, I respectfully insist, is **ONE** of the central themes.)
(D) SRPRS 17.101 correctly notes that TRCA has queried stormwater-management-pond capacity, with TRCA seeking an assurance from the developer. (As I reported from the podium, I have just learned that TRCA has received a response from the developer, and is at this instant analyzing it to see whether it is adequate.) This TRCA query, I would respectfully submit, duly documented in SRPRS 17.101, was **ONE** of the central points in tonight's business.
(E) In my tabled letter under filename
tmp_srprs__re_new_designating_bylaw.pdf,
I noted the possibility of aquifer-cap breach. Water can enter a stormwater management pond not in one way but in two - from above (as when stormwater runs along the ground or along shallow storm-management piping into the pond) and from below (in case an aquifer cap is punctured, with water under pressure now free to rise). If, speaking hypothetically, the stormwater pond were to have a breach in its floor, accidentally connecting it with the aquifer pressure, the capacity figures so far available to TRCA - assuming, as they do, that the only source of incoming water is from above - will prove unreliable.
In view of these five points, I continue to insist, politely but firmly, that I was not deviating from the topic of our meeting, but was on the contrary selecting one of several issues central to it.
Do please, Mr Mayor and TRCA, write me if any of my reasoning in this present letter needs amplification, or if I can in any other way help diminish the Town's risk of legal liability, or indeed if I can in any other ways assist.
Sincerely,
Toomas Karmo
406 Centre Street East, Richmond Hill
PS: I would like to thank two of my cc'd parties, Councillors Chan and Muench, for clearly communicating, in their own Chamber remarks, their correct grasp of the municipal legal-liability problem that would be posed if the stormwater pond floor were to breach the aquifer cap.
PPS: I underscore the rights of citizens in municipal deliberations by herewith attaching not only my own letter under filename
tmp_srprs__re_new_designating_bylaw.pdf,
but also the celebrated Norman Rockwell painting of municipal deliberations, under filename
tmp_norman_rockwell__painting_celebrating_free_municipal_speech.jpg.
I was only one of several DDO&P discussants at the 2017-06-07 podium. From the now-somewhat-misleadingly named "DDO Defenders" there spoke Ms Gloria Boxen and Dr Ian Shelton. Both criticized aspects of the envisaged ZBA. Dr Shelton kindly greeted me upon taking his seat in the Chamber, surprising me with a small, friendly hand gesture invisible to all but the vigilant. In the wake of his remarks, and of his unexpected gesture, I find it advisable to now compose an open letter to the "Defenders", admittedly with some degree of unease and apprehension. In composing my open letter, I proceed in the light of this weeks already-posted "remarks in lieu of analytical philosophy": how (I ask myself) would those good-humoured Cistercians, or the Pluscarden Benedictines, or Pope Saint John XXIII, or Pope Francis, or the author (with her or his heavenly audience!) of the 2017-06-12 Laudes Matitutinae prayer, or the shades of Aemilius Papinianus and the other pagan Roman jurists, play my ever-so-sticky wicket? Clearly I must accentuate the positive, while also paying a due sympathetic regard to Dr Shelton's past human weaknesses. The weaknesses need not be dissected here, since I have dealt with them (I like to think, definitively, finally, once and for all) at http://www.karen-vs-toomas-blog.ca/20140218T035440Z____blogpost/NNNN____20140218T035440Z____blogpost__main.html. Within that perhaps-definitive Web page, it suffices to start from the passage /../ I privately checked with Dr Shelton /.../ . What has been done there need not, I stress, be repeated here.
I do, however, remark for the possible convenience of the more inquisitive among my various readers that the red-marked parts of the cited Web page are what I had to change in the wake of legal action brought by Mrs Karen Cilevitz in 2014 March (since the municipal election of 2014-10-27, alas, Town Councillor Karen Cilevitz). The inquisitive, should there be any, can check the text as I originally worded it, before the red-letters revisions, at http://www.karen-vs-toomas-legaldocs.ca/GNOA____20140505__settlement_schedule_a.pdf.
Mindful of the upliftingly comedic Cistercians, of the Pluscarden Benedictines, of Good Pope John, and the like, I seek herewith to avoid what it would this week as a matter of political practicalities be possible to pull off, namely the imposing of a large fresh humiliation on the much-buffeted Dr Shelton. I accordingly offer Dr Shelton simply the following (here at http://toomaskarmo.blogspot.ca, and also in a private e-mail transmission), in what I hope is a correctly irenic spirit:
Dear Ian,
You will recall that I founded the (now somewhat misleadingly named) DDO Defenders late in 2007, as an informal community grouping; that Karen Cilevitz took control of it in the spring of 2008, and incorporated it in 2011 to make possible her, your, and your community colleagues' participation in an Ontario Municipal Board closed-doors mediation process; and that you became head of this incorporation upon Karen's getting elected, on 2014-10-27, to Town Council.
You will recall that when (a) Karen asserted at https://www.facebook.com/karencilevitz/, in perhaps 2014, my exclusion from the DDO Defenders, (b.a) I in 2014 or 2015 explicitly gave you public opportunity to confirm Karen's assertion publicly, whereupon (b.b) you had the kindness to refrain. I therefore continue to assume, subject to written correction from you, that I remain a DDO Defenders member.
****
Your Town of Richmond Hill podium remarks of 2017-06-07 are significant. For the first time since 2011, the DDO Defenders are, and now under your leadership, explicitly criticizing Corsica Development Inc. The criticism remains significant even once it is admitted that you criticize Corsica only on some details, continuing to maintain a broad diplomatic silence in your mission statement at http://www.ddod.ca/ - at any rate as I inspect it at or within a couple of minutes of UTC=20170612T185119Z:
The DDO Defenders are deeply committed to preserving
the David Dunlap Observatory, surrounding Lands and
the Dunlap Legacy. Our mandate is to ensure that the
campus continues to operate as a world-class
astronomical and astrophysical research facility and a
centre of excellence in public Outreach, Education
and Experiential Learning regarding all aspects of
Science and the Natural World.
This material of UTC=20170612T185119Z is still, I think, the wording your organization introduced in 2012 or so, I suspect from its various stylistic features as a composition from Karen. Your organization introduced it as an unfortunate revision of your pre-2012 mission statement, which - laudably and correctly, in my own (pro-forest) judgement and the judgement of my (pro-forest) friends in the Richmond Hill Naturalists - urged conserving the full (77-hectare) DDO&P terrain. In particular, I believe (subject to written correction from you) that your podium words of 2017-06-07 mark the first time the formally incorporated, i.e., the post-2011, DDO Defenders have publicly raised questions of light pollution in a manner critical of Corsica.
Your protest cannot in strict fairness be called forceful. The envisaged "secondary units" of housing, whose stairway lightbulbs are the substantive topic of your light-pollution protest, lie hundreds of metres away from the housing units that most matter, namely the Hillsview-near-Donalda McMansion lots (or, in the more courteous language of urban planing, the Hillsview-near-Donalda "R6" lots). It is these Hillsview-near-Donalda R6 lots, not the outlying lots you addressed at the podium, that conservationists would be specially hopeful in protecting through such actions as my (ultimately futile) financing of the 2012 and 2014 Ontario Municipal Board cases fought by my friends from the Richmond Hill Naturalists.
But public advocacy for a right cause, however limited, remains public advocacy.
****
In now directly opposing Corsica in the public forum, you provide an opening for talks between you and me. Could you and I now meet, say over tea or coffee at my new place of residence (406 Centre Street East, near Bayview), to clarify our respective positions, in terms that I can in the interest of civic transparency later publish at http://toomaskarmo.blogspot.ca?
****
I have composed this present open letter quite carefully, and (as I remark in the earliest of this week's three http://toomaskarmo.blogspot.ca postings, headed "Remarks in lieu...") with some soul-searching,. I therefore hope that I have been fully civic-minded and fully accurate. If I have strayed into impropriety in anything I am putting into this present open letter, do please advise me in writing, in terms suitable for reporting by me (for example, by some combination of paraphrase and direct quotation) at http://toomaskarmo.blogspot.ca. Should you wish to write me not privately but by way of a world-readable http://toomaskarmo.blogspot.ca comment, do please do so, checking my blog-posting rules of 2016-04-14, and noting that those rules guarantee your freedom from censorship,. You can find my rules at http://toomaskarmo.blogspot.ca/2016/04/background-faq-regarding-purpose-and.html, under the heading "Background FAQ, regarding purpose and conduct of this blog".
Sincerely,
hoping that this letter does not bring you undue angst,
but instead helps both of us work in the civic interest,
Tom
[This is the end of the current blog posting.]
