Toomas Karmo: DDO&P: Letter to Ontario's Ministry of Municipal Affairs, on OMB Reform

[For this blog upload of my 2016-11-25  papermail and e-mail to the Government of Ontario, I reproduce (since some readers may find this helpful) my graphic from a blog posting of 2016-08-01 or 2016-08-02. I also copy herewith the caption that I used on 2016-08-01 or 2016-08-02, making a couple of minor tweaks:] The DDO&P subdivision conception, showing the developer's proposed stormwater sump, lane, 14 street, and 520-plus homes. This plan comes ultimately from http://richmondhill.ca.  The southern (the longest) edge of the "DDO&P Trapezoid"  is of approximate length 1.5 km. The trapezoid encompasses an area of 72 hectares, of which around 32 hectares will be lost if the proposed subdivision  is constructed. The parts within the trapezoid coloured in green, and comprising around 40 hectares, are the greater part of the Town's envisaged rump park. To this must be added, however, the 5-hectare parallelogram (the "Panhandle Lands") abutting the trapezoid's southern boundary, and ultimately to be incorporated into the rump park, and shown on this plan in white rather than in green. The long sides of the parallelogram are aligned exactly north-south. -  I have modified the Town's cartography by adding an irregular orange-yellow curve, highlighting one particularly offensive part of the developer's conception - a clutch of putatively luxurious homes which it is proposed to erect in the immediate vicinity of the main telescope dome. It was this that I above all was hoping to suppress, impoverishing myself by spending heavily on casework - most of it in financing the courageous, yet fruitless, 2012, 2013, and 2014 legal actions of the Richmond Hill Naturalists  (http://www.rhnaturalists.ca), at the Ontario Municipal Board hearings and in Divisional Court. -  It is a  mystery, which I privately and subjectively hope will eventually attract the attention of Ontario's Attorney General, why the Richmond Hill Naturalists did not, with all their light-pollution testimony, persuade the Ontario Municipal Board to save at least the orange-bounded terrain. - Something like 70 percent or 80 percent of the trapezoid, from the western boundary to a roughly north-south straight line not far from its eastern boundary, is a Cultural Heritage Landscape (CHL) in the meaning of the Ontario Heritage Act. One  feature of the DDO&P casework is thus the developer's attempt to establish that houses, putatively including McMansions, can with impunity be built within a CHL. This feature gives the case a heightened legal interest, for all Ontario land-law analysts.

Revision history:

• 20161125T141100Z/version 2.0.0; Kmo corrected a very bad, although in bytecount terms minuscule, error: he had written "100,00 CAD" in reporting the costs awarded against the impecunious Richmond Hill Naturalists by the OMB, where in fact "100,000 CAD" was required. 
• 20161125T224500Z/version 1.1.0: Kmo corrected the Cilevitz legal-documents URL (incorrect in this upload, but fortunately correct in what he used when composing his submissions, both on paper and in e-mail, for the Government of Ontario). 
• 20161125T224500Z/version 1.0.1: Kmo improved the caption of the image, by making a couple of adjustments (one of these being very necessary: he had carelessly written "rectangle", where "parallelogram" was needed). 
• 20161125T224200Z/version 1.0.0: Kmo uploaded the text he had papermailed earlier in the afternoon to the Government of Ontario, and which he was about to e-mail to them (at one point, however, changing, for clarity, a "blogspot.ca" to a "blogspot.com". He accompanied the upload with an image not present in the papermail or in the anticipated e-mail. 

[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 is formatted in different ways on different client-side browsers, perhaps with some browsers not correctly reading in the entirety of the "Cascading Style Sheets" which on many Web servers control the browser placement of margins, sidebars, and the like. If you suspect "Cascading Style Sheets" 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. - 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.]

Coordinated Universal Time (= UTC = EST+5 = EDT+4): 20161125T192533Z


TO:

• OMBreview@ontario.ca
• Ontario Municipal Board Review, Ministry of Municipal Affairs, Provincial Planning Policy Branch, 777 Bay Street (13th floor), Toronto ON M5G 2E5 

FROM:

• Dr Toomas Karmo, 42 Gentry Crescent, Richmond Hill ON L4C 2G9 (647-267-9566; Toomas.Karmo@gmail.com; http://toomaskarmo.blogspot.com)

CC:

• premier@ontario.ca
• KZarzour@yrmg.com, newsroom@yrmg.com
• mcohn@thestar.ca
• [possible others (including possible delayed cc)]

1. Preamble

I write as a 2006-2008 staffer at Ontario's David Dunlap Observatory (DDO) and as a community activist.

My involvement in the case can be studied, if necessary, at four places on the Web:

• http://www.metascientia.com/PNNN____lit/QBNN____ddo_closure_discussion.html - my essay concerning the ongoing importance of DDO to Canadian science, and on the incorrectness of the 2008 University of Toronto decision to discontinue its astrophysical research at DDO
• http://www.karen-vs-toomas-blog.ca/ - my principal site for documenting the detailed record, in the David Dunlap Observatory and Park (DDO&P) conservation case, of a municipal politician, Ms Karen Cilevitz (conservationist until 2010 or 2011; from 2011 onward, a proponent of development on the envisaged 32-hectare, 14-street "Observatory Hill" subdivision at DDO&P; elected to Richmond Hill Town Council in 2014) 
• http://www.karen-vs-toomas-legaldocs.ca/ - background legal documentation for the Karen Cilevitz aspect of my casework (detailing Karen Cilevitz's legal attempt to suppress my Web  publication of her detailed record, and defining our out-of-court settlement: I refrain here from commenting on our settlement terms, and instead refer interested readers to my commentary-on-terms at http://www.karen-vs-toomas-legaldocs.ca/GNOC____20140505__settlement_schedule_c.pdf)
• http://toomaskarmo.blogspot.com/ - my general current blog, on scientific and theological-philosophical and political matters of interest to me;  I tend to post to this blog on the topic of DDO&P once a month or more; in fact I am posting this current letter on that current blog, as a service to the general OMB-interested Ontario public

2. The 2012-through-2014 OMB  Public-Policy Failure at DDO&P

The heritage conservation failure at the David Dunlap Observatory and Park (DDO&P; a case which triggered OMB hearings in Richmond Hill in 2012 and 2014) highlights the need for OMB abolition or reform.

DDO&P emerged from the 2007 University of Toronto announcement of an intended sale as Canada's weightiest heritage conservation case.  In a sequence of events from 2008 onward, this 77-hectare property was damaged, to a point at which it will be difficult or impossible to argue for its inclusion in the UNESCO World Heritage List.

Around 32 hectares was lost to a developer, who is now in process of building 14 streets, a lane, a stormwater sump, and around 520 or 530 units of housing. Of the original 77 hectares, only about 45 hectares are now envisaged as eventual public-use greenspace.

The developer's incursion is specially egregious in the vicinity of the dome which houses the largest telescope on Canadian soil.  Housing lots, of McMansion dimensions, in my opinion with light pollution impending, have been allowed to encroach to within even 150 metres of the dome.

The light-pollution threat was explained at OMB both in 2012 and 2014 by the Richmond Hill Naturalists, whom I financed as their principal donor. (I have lost the bulk of my life savings on DDO&P casework, expending 500,000 or 550,000 CAD for the benefit of the Richmond Hill Naturalists' cause, and am reduced to what now seems to be financial insecurity.)

(A) Any consideration of OMB in its heritage-conservation aspect must include an analysis of faults in the OMB decision writing in 2012 and 2014. These faults are so glaring as to call, in my respectfully submitted opinion, for a judicial enquiry:

• In 2012, the OMB's errors included the alteration of light-pollution expert Bolton's testimony, in a key passage, from the "cannot" in the court reporter's transcript to a "can". (Bolton had said on the witness stand, in language transcribed by the court reporter (Ms W.Ponka), that light pollution cannot be subtracted at the electronic camera of the telescope without degrading the astrophysical signal. It was this that OMB, in a decision-writing error, altered into a "can". The effect was to twist Prof. Bolton's words away from their intended sense into the opposite sense.  The error assisted the aspiring property developer.)
• In 2014, the OMB passed over, as somehow of negligible weight, the detailed arguments of light-pollution authorities Luginbuhl (brought to the witness stand from Arizona) and Shore (brought to the witness stand from Italy). If the OMB dissents from key testimony, it must either reason its case for dissent, to an appropriate number of sentences in its decision, or forfeit its intellectual legitimacy.

(B) Consideration must also be given to the relations between the OMB and the Conservation Review Board (CRB). An application for leave-to-appeal at Divisional Court was argued for the Richmond Hill Naturalists (I likewise financed this) by Dr Rory Gillis of Lenczner Slaght Royce Smith Griffin LLP in 2013.  The Court, being obliged to follow the law, found that CRB (which in 2009 had recommended the conservation of more at DDO&P than was ultimately conserved under the 2012 and 2014 OMB) was legally impotent to bind OMB, and therefore found itself obliged to deny our request for a Court appeal. The effect of this Divisional Court work is, in my own respectful submission qua legal amateur, to expose CRB, under present legislation, as toothless, and to even to show that a Cultural Heritage Landscape designation imposed by a municipality under CRB advice is toothless against OMB. 

The overarching question for Ontario is now the following: How can OMB be directed to give cultural-heritage cases an appropriate level of culturally literate analysis?

This broad question can be put into concrete terms as the following pair of questions with narrowed focus:

(a) What legal mechanisms can be constructed to ensure that future OMB heritage-relevant decisions attract judicial review when expert-witness testimony is in the opinion of competent observers mishandled?

(b) What legal mechanisms can be constructed to ensure that future OMB heritage-relevant cases are handled with a proper sensitivity to prior CRB decision-writing?

3. Conclusion

It may be that OMB reforms can be put in place to prevent another abuse such has been perpetrated, to the dismay of the community and to the detriment of community activists, at DDO&P.  - In using the strong term "abuse" here, I note not only the immense financial harm I have myself suffered, but additionally a ruinous award of costs, to the absurd sum of 100,000 CAD, by OMB against the Richmond Hill Naturalists in 2015.

It may, alternatively, be the case that OMB is now best abolished.

Sincerely,

Dr Toomas Karmo