A controversial plan to build a three-storey, 17-unit condominium in Old Town has gotten the rubber stamp of approval from the Ontario Land Tribunal after almost a year of public outcry.

The project proposed for land on King Street by developer Butler’s Gardens Development Inc. and its owner, Josh Bice, was sent to the Ontario Land Tribunal in January after the town council decided not to approve it. 

Niagara-on-the-Lake resident Endre Mecs told The Lake Report he hopes the town will appeal this decision made by Ontario’s arbitrator of land disputes.

The tribunal’s rulings can be appealed to a higher court, but only on matters of law, according to the tribunal website’s frequently asked questions page.

Mecs said he was not too surprised by the tribunal’s decision, but took issue with its reasoning.

He said the project violates the town’s official plan, a point Mecs and other residents have made throughout the application process. 

“I think it’s wrong frankly, both in law and in fact,” he said of the decision.

The Planning Act bans bylaw changes that contravene an approved official plan, which means the tribunal erred, Mecs said.

However, the Bice application does comply with provincial policies to boost the housing supply in Ontario: tribunal member Kurtis Andrews said there was no disagreement on this point in his decision report.

When separate pieces of planning legislation — whether at the provincial or municipal level — give competing instructions, the tribunal will do a “balancing exercise” to determine which is more important, Andrews said in his report. 

This decision came down to whether the build was “sufficiently compatible.”

“Is it compatible or not compatible?” Mecs said.

“How can you possibly have the future of your neighbourhood determined by such imprecise criteria?” he added. 

Mecs said he would not “tilt at windmills,” but would remain a vocal opponent of the development so long as it is being built.

He’d prefer to see something that conforms with the town’s existing laws, he said, suggested four townhouses would fit the neighbourhood better than Bice’s proposal.

It was “obvious,” Andrews said in his decision, that “competing interests exist” between policies promoting more housing supply and those that support compatibility with the surrounding neighbourhood.

Regarding the town’s need for more apartments and condos, like those Bice proposed, Mecs said there are some higher-density projects planned in Glendale that would help meet the need for alternatives to single-family units.

Town councillors raised similar points in January when they voted to fight the project at the tribunal.

Lord Mayor Gary Zalepa was in favour of approving the project when town staff recommended its approval.

“I am not going to tell residents that I’m going to go fight the fight when I know the fight can’t be won,” he told The Lake Report.

The information available at the time suggested to him the town would not win, Zalepa said.

He was in the minority, though.

“I’m only one vote. And I respect the fact that other members of council have their decisions to make.”

“That’s democracy,” he added.

Residents and town staff disagree that the project is compatible with the surrounding neighbourhood, but Zalepa said he also listens to professional town planners.

“That’s the opinion that I weigh the most,” he said.

Part of what makes the project possible is that the town’s committee of adjustment allowed Bice to turn the land into a single lot, when once it was three separate parcels.

The committee allowed it on the condition that future buildings only cover 15 per cent of the land.

Town staff have previously said the condition was only applicable to the previous zoning on the land and does not constrain development under the new zoning granted by the tribunal.

Andrews said the town and planning consultant Mark Dorfman “suggested that the pieced-together lot was amalgamated by the applicant covertly and deliberately without disclosing its eventual planned purpose.”

The applicant “clearly went through the proper processes” and the formation of the land was “irrelevant,” he added.