After two days of hearing extensive legal arguments in a St. Catharines courtroom, a judge will now decide if the Town of Niagara-on-the-Lake acted properly when it announced plans for historical designation of the Rand Estate.
The legal case over the historic designation of the property kicked off in full force Monday and Tuesday in Superior Court, with the Town of NOTL and Save Our Rand Estate (SORE) on one side and Two Sisters Resorts and Solmar Development Corp. on the other.
Justice Linda Walters has reserved her decision in the case.
The legal battle stems from a contentious plan to develop the four properties of the Rand Estate, a five-hectare site located behind a stone wall on John and Charlotte streets.
Two Sisters and Solmar want to build a conference centre/hotel and a subdivision on the combined properties.
Solmar, owned by developer Benny Marotta, is challenging the town’s decision to declare a notice of intention to designate all four properties as historically significant.
The development plans are also opposed by resident activist group SORE, which previously was granted party status in the case.
The courtroom was packed with Niagara-on-the-Lake residents as Two Sisters lawyer Michael Melling urged Walters to order the town’s designation notice be dropped.
His multi-part argument included allegations that: the town didn’t follow proper guidelines of the Ontario Heritage Act, the outline of heritage features on the properties is unconstitutionally vague and therefore it’s impossible for the developer to know what work is legal, the town could not properly identify heritage aspects in its notice of intention to designate and planned to change those aspects later in the process and that the notice violates the town’s official plan.
Town lawyer Scott Snider asked the court to dismiss Solmar’s claim entirely, arguing the case doesn’t actually belong in the Superior Court, but that instead the developer should take any requests to alter the land to the Conservation Review Board in the interim, where it would be reviewed by experts on heritage issues.
He argued Solmar must first seek administrative remedies before taking the matter to court and that the court should refuse to make the decision without “expert advice” from the Conservation Review Board.
“There are no exceptional aspects here to support the court’s interference,” Snider said.
Solmar has submitted appeals to the Conservation Review Board, Melling said, and is involved in an ongoing pre-hearing settlement conference.
Snider said there’s “no reason to believe” town council would ignore the conservation board’s findings.
However, Melling pointed out council ignored the advice of its own heritage committee and staff.
The Ontario Heritage Act is not supposed to disregard a property owner’s rights, he told the court.
He said he concedes the act exists to support heritage, but that’s only “half the story.” The property owner’s rights must also be balanced, he said.
Melling argued there are “little grounds to designate” all four Rand Estate properties and that the town did so illegally according to the heritage act.
There was “no effort” in staff reports to explain how the heritage aspects meet the act’s criteria, he said, adding his client and the public weren’t properly informed about the plan to designate.
The description of heritage aspects was only given after the fact and the town only did its research after the notice was in place, from July 2018 to March 2019, he said.
“If the town has not identified heritage aspects, how can a (notice) meet the criteria?” he said. “This, your honour, is the public record of the decision-making process.”
Snider argued that whether the property meets the standard is a matter for the heritage bylaw, not the notice to designate, and that since there is no bylaw yet, the heritage act requirements don’t apply.
He said it’s also not relevant that the town ignored advice from its own staff.
“If there was a lawsuit every time council didn’t follow staff’s advice, we’d be knee-deep in bylaw legality,” he said.
With regards to developer’s rights, he said protections lie in the ability for the developer to challenge decisions and apply for modifications from the Conservation Review Board.
Melling said that’s not effective, because the final decision still goes back to town council.
“Council has no obligation to take the advice of the (review board),” he said, noting council added attributes to the notice to designate contrary to staff suggestions.
The town charged Solmar with illegally cutting down trees, after nearly 200 trees were cut down on one of the estate properties, sparking a public outcry.
Melling said his client never received any information that the trees removed were considered heritage aspects of the Rand Estate, and that there was no map from the town that properly outlined which parts of the estate were considered heritage attributes.
“To this date, there is no way to tell what are and are not surviving elements of the Dunnington-Grubb landscape,” Melling said.
“Does this mean all mature trees and plantings are heritage aspects?”
Melling argued the terms in the notice to designate, such as “mature trees and planting” were not specific enough, and that even the town can’t specifically define the heritage aspects.
The landscape elements “either are Dunnington-Grubb or not … either are surviving or not,” he argued.
“The character of mature vegetation is important,” Snider said, adding that the “language of heritage conservation” is often not understood by people.
“The point is, these aren’t easy questions,” he said.
SORE lawyer Richard Stephenson challenged the idea that Solmar doesn’t know the heritage aspects, citing a report from August 2019 by Solmar’s heritage consultant Leah Wallace, which outlined specific heritage aspects.
He said Wallace found that the landscape is part of the heritage value of the property and there’s just a disagreement on which parts need protecting.
Solmar kept the document to itself for months before disclosing it to the town, court heard, after the town requested the report be done.
If the heritage attributes include the Dunnington-Grubb landscape, and Solmar isn’t clear about what is and is not legal, the company should refrain from doing work or apply to the municipality for projects it wishes to complete, Snider said.
Certain aspects of the property have existed for 100 years, Snider said, and Solmar only purchased the lands two years ago.
“In the lifespan of those properties, that’s just yesterday,” he said. “And yet, after declaring intention to designate, (Solmar) significantly altered the landscape … so what was the urgency in cutting the trees down?” he asked. “The applicant bought lands that it knew had heritage features.”
Solmar had a permit from the Niagara Peninsula Conservation Authority (NPCA) to cut the trees, Melling said, though the town claims it was expired. He said the town should adopt a comprehensive tree bylaw, as is common across the country.
Snider pointed out the NPCA has no authority over the heritage act.
He said that when the trees were cut, Solmar had only provided one day’s notice. But Melling argued that no notice was actually required at all, and that one day is sufficient time for the town to send an email if it wanted Solmar to stop. No message was sent, he said.
On top of that, there are widely used methods to protect trees that simply were not implemented here, he said.
“The point is they didn’t say, ‘Stop doing that,’ ” Melling said.
He likened the charges against Solmar to that of a person receiving a speeding ticket without ever knowing what the speed limit was, saying there’s no ground for criminality if there’s no understanding of the crime.
“There can be no legal debate. In order for that debate to happen, the town and SORE needed to tell my client what the illegal acts are,” he said.
Solmar agreed it would designate the property at the site plan approval stage, which Melling said means only after it’s approved. It’s now in the design phase and therefore the designation is premature, he argued, and costing his client the ability to be able to work on the property.
Snider said the wording “approval stage” needs a “broad interpretation.”
He said Melling’s interpretation is “far too narrow, that one line would prevent a municipality from interim protection of heritage lands from being destroyed.”
“Not everything in life can be regulated like a numeric speed limit,” Snider said.
Melling also said the notice of intention is premature and is negatively affecting his client.
The town and SORE are now telling his client no work can be done, he said, even though so far the town doesn’t have the ability or knowledge to advise Solmar about the heritage attributes, nor does Solmar know what the heritage aspects are, and it’s too early to know if the notice of intention is valid for much of the property.
Melling also pointed out the town has no map of the heritage aspects and that the heritage aspects identified in the notice of intention are subject to change.
All of those factors combined constitute non-compliance with the heritage act designation procedure, he said.