In an ongoing legal battle between Hummel Properties Ltd. and the Town of Niagara-on-the-Lake, the municipality says it acted legally when itĀ implemented a bylaw to freezeĀ all development in Old Town.
Hummel, a prominent Niagara developer, is suing to quash the bylaw for illegality under Ontario'sĀ municipal and planning acts.
He allegesĀ that in planning the bylaw āĀ which involved a special council meetingĀ just days afterĀ new councillors were sworn-in inĀ December 2018 āĀ Lord Mayor Betty Disero and āat least oneā other councillor-elect acted in bad faith to target one developer and conspired to plan the bylawĀ before councillors had taken their oaths.
Among a long list of allegations, Hummel claimsĀ Disero andĀ now-resigned councillor Stuart McCormackĀ started work on the bylaw Nov. 22, 2018, almost two weeks before council was sworn in, withĀ all of council being guided to approve it on Dec. 5.
Hummel is also suing for damages associated with the development freeze.
In response to a factum filed in courtĀ by Hummel's lawyers, the town says council had every rightĀ to call the special meeting and pass the bylaw, and that no rules were broken by the mayor or council-elect in planning the statuteĀ before councillors had taken their oaths.
The town claims it isĀ āan integral component of good and efficient government that informal discussions and collaboration occur between councillors regarding constituent issues and proposed solutions.ā
It is asking the court to dismiss the application in its entirety and award the municipality “substantial” costs, town lawyer Terrence Hill says in the document.
The townās response, filed March 10,Ā says despite the timing of the meetings, councilĀ acted in good faith and “denies any non-compliance with procedural or statutory requirements.ā
The town disputes Hummel's arguments one by one and saysĀ protecting NOTL's heritage resources has been a ālongstanding objectiveā and that it needed to implement the development freeze while it addressed ādeficienciesā in the townās 1994 official plan ā which hadnāt been updated since 2005.
Prior to instituting the development freeze, āevents had occurred in the town which had sparked a renewed public call for strengthened policies to protect heritage resources and to put a freeze on development in the Old Town until new policies could be studied, reviewed and adopted,ā the town says.
While the town's response did not identify those events, it laterĀ acknowledgesĀ it was “widely known that the townās constituents had expressed concerns surrounding the Randwood development.”
Hummel alleges the town targeted the companies ofĀ Benny Marotta, another prominent developer, who planned to build a hotel and subdivision on the Rand Estate properties āĀ land that had already been zoned for Marottaās intended use. However, a vocal backlash from a resident group called Save Our Rand Estate made the contentious development a major issueĀ during the 2018 election period.
The townās response did not address Hummel's allegations of itsĀ failure to include the interim control bylaw on the meeting's agenda, but said the town is not required to give public notice of an interim control bylaw.
In response to Hummel's claim that the town didn't undertake a study in relation to the development freeze ā a requirement under the Planning Act ā the town says there is no stipulationĀ that the study needs to be directly related to the interim control bylaw, only that a study be undertaken.
āThe Planning Act prescribes only one statutory condition for the enactment of interim control bylaws: the requirement that the municipality direct that a review or study be undertaken,ā the responseĀ says.
The town argues its review of the official plan constitutes a study, as council was trying to address land use policies.
On Nov. 11, 2019, council extended the development freeze for a second year. Hummel also claims the extension of the bylaw, which council later repealedĀ in June 2020, was not justified by any study.
The town argues its review of the official plan continued through 2019Ā and that it extended the freezeĀ in case of an appeal to the amendment of the town's official plan āĀ which had been amended, but was subject to an appeal period of 20 days.Ā
āAccordingly, there was concern by council that should the (bylaw) be repealedĀ and the (amendment) be appealed, the town would be left without the compatibility policy amendment required to protect development of Old Town.ā
āSubsequently, councilās concerns materialized, and the official plan amendment was appealed, preventing the lifting of the (bylaw),ā the townĀ says.
Regarding accusations ofĀ illegality under procedural bylaws, the town says there are ādifferent standards of reviewā depending on the āextent to which the illegality in question involves a question of law and the extent to which it affects the democratic legitimacy of its decision.ā
In response to bad faith allegations that councillors held meetings in secret before being sworn in, the town argues the Municipal Act definesĀ a āmeetingā as any meeting of council in which āa quorum of members is present and members discuss or otherwise deal with any matter in a way that materially advances the business or decision-making of the council, local board or committee.ā
The town's position is thatĀ councillors didn't have meetings, but rather informalĀ ādiscussionsāĀ between individual councillors andĀ therefore it wasn't in contravention of any laws.
Hummel argues those discussions did materially advance the townās decision-making, in that Disero requested council to prepare the draft bylaw Nov. 22, and that McCormack had emailed planning director CraigĀ Larmour about the draft bylaw prior to being sworn in. He alleges the efforts were co-ordinated in advance by the council-elect at the time.
In response to Hummel's argument that the town did notĀ live up toĀ its own procedural laws by only giving one day's notice before calling the meeting to implement the bylaw, the town claims it technically didnāt need to give notice of the special meeting in advance.
The townĀ says its own procedural bylaw was āambiguous regarding the procedure in calling special or emergency meetings.ā
TheĀ procedural bylaw says a special meeting must be announced āno later than the Thursday prior to the meeting except in the case of an emergency.ā
TheĀ procedural bylaw doesn't “define or place limitations on what constitutes an emergencyā and the town saysĀ the mayor and council can decide if circumstances warrant an emergency meeting.
Hummel alleges when the town did file notice on Dec. 4Ā the agenda was purposely cryptic and meant to hide councilās intention to pass the development freeze bylaw.
The town argues that, again, āthereās no legislative provisionā that requires it to describe agenda items in any āspecific manner.ā
And, even if Hummelās accusations of breaching procedural bylaw are found to be true, the town says the court doesnāt need to quash the bylaw, since it is not ultra vires, or beyond the authority of the town.
āWhile the town denies Hummelās allegations that a breach of a procedural requirement occurred … the courtās power to quash a bylaw that is not ultra vires is entirely discretionary.ā
The town argues the courtās consideration should not be based on whether it broke the law, but rather āthe spirit and with the object of ascertaining whether there has been a substantial compliance with all other requirements of the statute, and not of finding some slight or trivial departure on which to hinge a decision adverse to the validity of the bylaw.ā
The town also says no advance notice or hearing is required before passing an interim control bylaw.
āAccordingly, a reasonable inference can be made that the spirit and object of the legislation supports a finding that a departure from a procedure bylaw amounts to a mere technical breach and is not sufficient grounds to quash the bylaw.ā
Hummel claims the townās justification of an official plan review ā which he said was to do with the Rand Estate and a problem with the height of the proposedĀ hotel,Ā not the zoning ā did not constitute a land use study.
The town argues āland useā is notĀ defined in the Planning ActĀ and that a ābroad and purposive approachā should be used to interpret the meaning of land use.
The town didnāt mention McCormack in its filing, but saidĀ Larmour and former manager of planning Eric Withers prepared the draft bylaw for council to approve.
Hummelās argument citesĀ a case against the City of St. Catharines, in which itĀ was found not to have legitimate planning grounds for an interim control bylaw, but was a āpolitical measure intended to appease certain ratepayers.ā
The town argues the situation is not the same in NOTL and that the people opposed to the St. Catharines development were more concerned about the ācategory of peopleā the housing would attract.
In response to claims of bad faith in targetingĀ Marotta, the town saysĀ āit was widely known that the townās constituents had expressed concerns surrounding the Randwood development.ā
It argues, however, that council members are ānot prohibited from considering the views of their constituents in enacting policy decisions.ā
The town relies on another judgment which found that āa court should not be quick to find bad faith because members of a municipal council, influenced by their constituents, express strong views against a project.ā
It also cites theĀ case ofĀ a āteen discoā projectĀ in Ottawa where theĀ city passedĀ an interim control bylawĀ to review its zoning.
“(The judge) accepted that the teen disco project was the catalyst behind the enactment of the interim control bylaw but found that while council had the intention of stopping the project ā in response to public reaction ā they did so in order that the study might develop a zoning policy that would be in the public interest of that area, which was unobjectionable.ā
The town saysĀ āconstituentsā expressed concerns of rapid development occurring in Old Town, regardless of a specific catalyst, reflects a good faith exercise of democratic governance.ā
Unless theĀ court upholds theĀ bad faith claim against the town, the town argues Hummel is not able to sue for any damages associated with the bylaw.