The Town of Niagara-on-the-Lake has withdrawn its appeal of a court’s decision to stay charges against two of developer Benny Marotta’s companies.

After an update from legal advisers, “council made the decision to not support the appeal,” Lord Mayor Gary Zalepa told The Lake Report. 

He refused to go into much detail since it’s still a legal matter. 

The town issued a news release Tuesday afternoon saying it was “mindful of the high legal costs” and believed its “financial resources are better used in the interests of the public.”

In a statement Wednesday, Judy McLeod, a representative of Save Our Rand Estate (SORE), noted there were two council votes on the matter.

The first on Friday, Feb. 10, was 5-2 in favour of abandoning the prosecution, she said.

“However, the matter was revoted on on Feb. 14 due to a technical error/misunderstanding on the original vote,” McLeod said.

A motion to reopen the Feb. 10 vote was supported by a 5-4 majority of council, but not the two-thirds majority required to reopen the matter, she said.

“That council could not find a way to do the right thing on a matter of such public importance is frankly bewildering,” the SORE statement said.

The town originally laid charges alleging that Marotta’s companies violated the Heritage Act by clear-cutting trees on the Rand Estate property in 2018.

On Oct. 5, 2022, a justice of the peace stayed the claim against Two Sisters Resort Corp. and Solmar (Niagara) 2 Inc., accepting an argument that the case violated their Charter rights to a timely trial. 

A stay puts a legal proceeding on hold and can be temporary or permanent. 

The town decided to appeal the stay but the newly elected council withdrew its appeal with this week’s vote.

“As a result, Benny Marotta’s companies have been allowed to escape without a trial on the merits and without consequences for the deliberate and outrageous clear-cutting of a designed heritage landscape at one of the most important cultural heritage properties in NOTL and Niagara Region,” SORE’s statement said.

“A successful prosecution could have resulted in the reinstatement, at the Marotta companies’ expense, of the destroyed landscape,” said McLeod.

The case was scheduled to go before Justice Donald Wolfe on Feb. 22 in St. Catharines.

“No further work or expenditures other than the court attendance were required to have the appeal heard,” McLeod noted.

“SORE, based on advice from specialist counsel, believes there were good grounds to set aside the stay and have the charges heard on their merits and that Justice Wolfe would have ruled accordingly.”

In its media statement, the town said it wanted to assure the public it will continue to “value the conservation of heritage resources and will make the most of opportunities through Heritage Act and Planning Act applications.”

With files from Evan Loree.