Niagara-on-the-Lake is on a losing streak at the Ontario Land Tribunal and some councillors are less than shocked.
Coun. Erwin Wiens says he was “not surprised” to see the town return from the tribunal empty-handed after trying to recover $246,000 in legal fees from development companies Solmar Inc. and Two Sisters Resorts Corp on June 19.
The heritage advocacy group Save Our Rand Estate (SORE) joined the town in its case and was attempting to recover $365,000 from Benny Marotta’s companies.
Wiens said he can’t remember the town “ever winning a single (case)” at the tribunal.
“For the last five years I’ve always been saying I would rather communicate than litigate,” the deputy lord mayor said.
Wiens argued that the Ontario Land Tribunal has a tendency to rule in favour of developers, and towns should do their best to resolve land development disputes on the municipal level.
Lord Mayor Gary Zalepa shared the same view.
“It’s always disappointing when that kind of decision goes against what the town was hoping to do,” Zalepa said.
Like Wiens, Zalepa stressed the need to work together with community members.
He said before the new council took office, “no communication avenues” were open between Solmar and the town.
Coun. Sandra O’Connor said from her perspective, Solmar was not treated any differently from other developers but stressed she was not privy to the day-to-day contact between town staff and the developer.
Zalepa acknowledged though that not all parties in a dispute will play by the same rules or co-operate with each other.
“Sometimes you’re not able to bring 100 per cent of people on board,” he said.
“And, at the end of the day, councils need to make decisions that are tough,” he added.
The decision to designate properties on the Rand Estate as heritage assets was made in 2018 under the former council.
It was a controversial decision and led to a barrage of legal fees, the subject of much criticism during the 2022 election.
As of April 2023, NOTL chief administrator Marnie Cluckie estimates the town has spent $1.6 million in legal fees fighting Solmar.
The town spent $25,000 to register the back half of the Rand Estate under the Heritage Act.
Solmar objected to the town’s move and took the dispute to the tribunal for settling.
After almost three years of preparing for the hearing, the developer dropped the case in 2021, five weeks before the date of the hearing.
Tribunal vice-chair David Lanthier rejected the town’s argument that this move amounted to an abuse of process, calling it “reasonable, legitimate and not an abuse of process” in his decision.
Cluckie pointed out that the tribunal sets a high bar for people looking to recover legal fees in land disputes.
“The town thought that in the circumstances of this case, the case met the threshold. The Ontario Land Tribunal disagreed,” she said.
She called the loss “unfortunate” but added it “wipes the slate clean” for staff, which can now focus on the goals of the current council.
O’Connor, who also sat on the previous council, said she was in favour of the town’s decision for the historical designation of the old structures on the back half of the Rand Estate.
“They’re worthy of being preserved,” O’Connor said.
“If we do not stand up for our heritage here we will lose the character of the town,” she added.
The future of the buildings on the back half of the Rand Estate hinges on another hearing at the tribunal scheduled for March 2024.