NOTL property developer says he plans to appeal decision
The Town of Niagara-on-the-Lake and council acted legally in instituting a 2018 development freeze and 2019 extension of the freeze, a Superior Court justice has found.
After two days of hearings last week, Justice James Ramsay ruled the town did nothing wrong and rejected a lawsuit by Hummel Properties Inc. Developer Rainer Hummel said he plans to appeal the decision.
The NOTL businessman alleged bad faith on behalf of the mayor and council in enacting a development freeze in Old Town by passing an interim control bylaw.
The judge disagreed. “On the whole of the evidence the case for bad faith strikes me as contrived,” Ramsay said in his ruling.
“I think that council wanted to preserve the Old Town’s heritage and that it considered the matter urgent. They wanted to fulfil the mandate that they thought they had been given by the public. They froze the status quo, considered studies and public input, amended the official plan and then repealed the interim control bylaw. That is essentially what they were supposed to do. I just do not see any bad faith.”
Ramsay dismissed the application in its entirety and said because there is no finding of bad faith, the town is not liable for any damages caused to Hummel Properites as a result of the interim control bylaw. He ordered both sides to submit documents regarding how costs should be apportioned.
Lawyers for the town and Hummel spent last Tuesday and Wednesday arguing their sides. Hummel claimed the development freeze was illegal and that the town violated the planning or municipal acts when implementing the interim control bylaw.
He also alleged the town acted in bad faith by violating its own procedural bylaws to plan a rushed and secretive meeting to plan and implement the bylaw.
The town passed the bylaw in a special meeting called at 8:30 a.m. — an unusual time for a meeting — just 37 hours after councillors had been sworn in after the 2018 election.
Hummel said the town also did not give notice of the meeting until the day before, despite knowing of the meeting plans almost two weeks in advance and despite town's procedural bylaw requiring notice of meetings the Thursday prior to the meeting.
The town argued it was procedurally allowed to call the special meeting, as it was an emergency and the town's bylaws are vague on what constitutes an emergency.
On the first day of arguments last week Ramsay called into question many of the developer's statements in his claim.
Ultimately, he ruled that none of them mattered.
Ramsay's written ruling said the town did not act in bad faith and it complied with municipal and provincial legislation when it enacted the bylaw for the development freeze.
“Niagara-on-the-Lake is a gem,” Ramsay wrote. “Our historic capital, its history of European settlement goes back to the Loyalists. Set on the shore of Lake Ontario, surrounded by vineyards, it is a hub of history, culture and tourism.”
“In the 2018 municipal election, development of the old town was much debated. A focus of the debate was one particular developer (not the applicant) who provoked discussion by cutting down old trees on his estate.”
He said despite short notice for the Dec. 5 meeting to enact the bylaw, “it was permitted for an emergency meeting.”
Ramsay said Hummel “attacks the validity” of the interim control bylaw and its extension it on three main points: That the Dec. 5, 2018, meeting of council did not meet the requirements of the Municipal Act, that the interim control bylaw did not meet the requirements of the Planning Act and that the bylaw was enacted and extended in bad faith.
“I consider the first two heads of complaint to be moot, because the bylaw has been repealed. The applicant submits that the first two heads of relief are not moot, because a finding of illegality would be a basis for liability for the torts (wrongful acts) that it alleges. I disagree,” Ramsay wrote.
He said Hummel's argument hinged on whether the town acted in bad faith.
He ruled that because the town held its meeting in public and the town's procedural bylaw allows the town to call a meeting with short notice in an emergency, then the town did not act in bad faith.
“(Lord Mayor Betty Disero) was entitled by the town’s procedural bylaws to call an emergency meeting for Dec. 5. Nothing in those bylaws precluded her from considering the subject matter to be an emergency, allowing shorter notice. Interim control is by its nature urgent,” Ramsay wrote.
He said also that despite a sworn affidavit by town planner Craig Larmour, in which Larmour said he didn't recommend an interim control bylaw, nor understand the true need for it, council is not beholden to act on the advice of staff, but also can take into account the wishes of the public.
“The director of planning was not aware of an emergency, but that does not matter. It is evident that the lord mayor considered the matters on the agenda to be urgent,” Ramsay ruled.
Hummel claimed that under the Planning Act, the town wasn't able to enact two interim control bylaws at one time. The town at the time of implementing the bylaw to freeze development had already had one interim control bylaw in place limiting cannabis production.
However, Ramsay said that portion of the act is not intended to mean the town can't enact two interim control bylaws on two different issues.
“Enacting two interim control bylaws for completely different purposes does not contravene the section,” he ruled.
Hummel claimed the town acted illegally by not directing a study directly related to the bylaw. However, Ramsay ruled the town's review of its official plan constituted a study.
Ramsay also disputed the accusations of bad faith, saying the town acted legally.
“The meeting complied with the procedural bylaw. Council made the bylaw in a public meeting and published the bylaw after it was passed. It is not fair to say that anything was hidden from the public. Given the extensive public participation engendered by council after the bylaw was passed, the notion that a hidden agenda existed is far-fetched, to say the least,” Ramsay wrote.
He said despite not all aspects of the bylaw being dealt with in public, “a newly elected official is entitled to move quickly with her agenda. Private and
other discussions always precede legislation. The interim control bylaw was enacted after being discussed in a public meeting.”
He also did not agree with Hummel's claim that the agenda of the Dec. 5 meeting was “cryptic.”
“The agenda was not cryptic. It set out the text of the proposed bylaw, substantially although not exactly in the same terms as the text that was adopted.”
Ramsay ruled the town did not act illegally in extending the interim control bylaw either, saying it “was justified by the delay before the amendment to the official plan would come into force.”