The Ontario Land Tribunal has approved a controversial condo planned at the end of King Street.

The 17-unit, three-storey project originally proposed by Josh Bice of Butler’s Garden Development Inc., has been greenlit by Ontario’s arbitrator of land disputes after the owner appealed the project for a non-decision late October 2023.

In his decision report dated April 26, tribunal member Kurtis Andrews ordered that the town grant Bice’s appeal to rezone the land on the condition that a stormwater management plan be prepared to the town’s satisfaction.

The property will be rezoned to permit the jump in density, to exempt it from rear and front yard setback standards, and to remove requirements for a children’s play area. 

While Niagara-on-the-Lake staff recommended the build be permitted subject to a stormwater management plan, council refused Bice’s requests in January.

Andrews characterized the town’s objections as “generally concentrated on compatibility concerns,” like height, built form, density and character.

“The town argues that the proposed development, being a three-storey, 17-unit apartment building, does not ‘fit’ within the surrounding established low-density neighbourhood,” he said.

Consultants from Niagara Planning Group, which is handling Bice’s application, have argued the project supports provincial policy goals to build more housing.

All parties agreed the build would help provide a range of housing options in Niagara-on-the-Lake, Andrews said.

And so the whole matter came down to whether it was “sufficiently compatible with the surrounding neighbourhood,” he said.

The town hired planner Mark Dorfman to defend its position at the hearings in February.

He argued the proposed condominium was incompatible with the mostly lowrise neighbourhood.

In his decision report, Andrews said the tribunal rejected his argument, siding with NPG planner Aaron Butler who testified the building, while different from its surroundings, was still compatible.

Town planner Aimee Alderman argued the same and both called Dorfman’s definition of compatible too narrow, Andrews said in his report.

The building is only made possible because the town committee of adjustment allowed Bice to consolidate the land from three lots into one at a meeting in October 2022.

“They (the town) suggested that the pieced-together lot was amalgamated by the applicant covertly and deliberately without disclosing its eventual planned purpose,” Andrews said.

“The tribunal finds that the applicant clearly went through the proper processes,” he added.

Andrews said the history of the lot formation was irrelevant and the tribunal was not in a place to retroactively adjudicate on the merits of the boundary adjustment.

Residents Patrick Gedge, Endre Mecs and Jason Quesnelle, who live near the lot on King Street, all attempted to submit evidence but it was rejected as Bice’s lawyers argued they were not given time to cross-examine the evidence.

Andrews also said participants like the three residents could not give evidence and asked they condense their comments to a five-page submission.

He said he considered the residents’ statements but he made no further reference to them in his decision.

Bottom line: His report concluded that the proposed condo was sufficiently compatible with the surrounding neighbourhood.