A “complete success” — that’s how Nancy Smith, a lawyer hired by the Town of Niagara-on-the-Lake, summarizes the Ontario Land Tribunal’s ruling on development plans for Rand Estate.
During Tuesday evening’s committee of the whole meeting, NOTL councillors received an update on the tribunal’s decision, delivered Oct. 11, to order the developer behind plans for a 172-unit subdivision on the estate property to re-evaluate its proposal.
Solmar, the developer, has two months to decide if it intends to pursue the studies and revisions to its plan.
If Solmar decides not to proceed as directed, the tribunal said it would dismiss the company’s appeals completely.
If Solmar does move forward with the subdivision, it must do so in consultation with the town, resident group Save Our Rand Estate and Blair and Brenda McArthur, neighbours to the development.
Smith, in a presentation to council and staff, said the town’s position on the matter was fully endorsed by tribunal members.
The decision confirmed several principles advanced by the town, including that the Rand Estate contributes to NOTL’s sense of place, physically and culturally, and that demolition is a last resort.
The most significant finding from a legal perspective is that trees on the property will be conserved, Smith said.
“That is huge,” she said during her presentation.
Coun. Erwin Wiens was hesitant to agree that the hearing was a “complete victory.”
“I’m always concerned when people say a complete victory. A complete victory would mean the bleeding would stop,” he said.
When the bleeding stops is when council stops paying to take development proposals such as these to court, Wiens told The Lake Report.
However, as noted in an email from SORE Wednesday, “Solmar triggered the hearing by taking his application to the Ontario Land Tribunal in the first place.”
“Solmar could have settled with the Town (and SORE) by acquiescing to council’s position last December. Solmar is the one who chose to fight. By endorsing the council position, the OLT has found that the town (and SORE) were correct, and (Solmar) did not have an approvable subdivision application.”
The entire legal proceedings have cost the town over $3 million, said interim CAO Bruce Zvaniga, though added he does not have “a solid number.”
“We’re $3.5 million deep into this gift that keeps on giving,” Wiens said in an interview.
The funding for the case came out of infrastructure spending, Wiens said.
“We save some trees, we save some heritage and we’re back to the drawing board for the best,” he said.
Smith, in her presentation, said achieved all the legal directions council gave her in December and January.
The legal findings she was instructed to obtain generally deal with cultural heritage conservation, Smith said.
The full list is available on the town website.
“I call that a victory,” Smith said.
Coun. Sandra O’Connor agrees with Smith’s positive outlook.
“They were able to achieve everything that council asked them to do — from my perspective, that’s a wonderful thing,” she told The Lake Report.
The original proposed subdivision was simply not suitable in that form, O’Connor said.
One thing she is not happy with is how long the entire process has taken, but O’Connor considers the case to be worth what council has invested in it, she said.
Wiens said that the town’s position does not necessarily have to align with SORE’s position.
“The town is a municipal entity under the Municipal Act and SORE is a resident group incorporated to put forward an interest,” Smith said.
Therefore, the town does not have to communicate with the group as a team, Wiens said.
Wiens said his intention has always been to communicate and not litigate.
“The town should have taken a position that they were going to communicate with the applicant (Solmar) from the start, rather than taking the position that they were going to litigate,” he said.
The town’s interests, as outlined in December and January, for the outcome of the tribunal hearing were not completely aligned with SORE’s interests, Smith said.
“They were, coincidentally, completely aligned with the McArthurs,” she said in the presentation.
Regardless of whether or not Solmar, SORE and the town come to an agreement on the future of the Rand Estate, the issue will have to go back to the tribunal, Smith said.
“The tribunal is seized, they need to make a final order. They will either make one in two months if they don’t resubmit, or they’ll make one after a resubmission and we will go back hand-in-hand,” Smith said.
