Plans for a 172-unit subdivision on the Rand Estate have to be re-evaluated, says the Ontario Land Tribunal.
The ruling, issued last Friday, comes after a months-long hearing pitting the developer against the Town of Niagara-on-the-Lake, resident group Save Our Rand Estate and neighbours to the development, Blair and Brenda McArthur.
The developer, Solmar (Niagara 2) Inc., was seeking approval of alteration and demolition permits to make way for its plan for a subdivision on two properties that comprise the Rand Estate, 200 John St. E. and 588 Charlotte St.
The tribunal sided mainly with the town and SORE on what it called a long and complex case that “addresses multiple, highly technical and inter-connected issues.”
The ruling concludes that “in its present form, Solmar’s proposed draft subdivision and its effects on the Rand Estate’s cultural heritage value or interest do not represent good planning in the public interest.”
Solmar 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, SORE and the McArthurs.
The decision contains a final order and an interim order:
In the final order, the tribunal approved Solmar’s request for an official plan amendment that corrects the location of the urban boundary in conformity with the region’s official plan and the Greenbelt Plan.
In its interim decision, the tribunal ordered a number of revisions and further studies, and will require Solmar, which is owned by prominent developer Benny Marotta, to retain, repair and protect several heritage features of the properties and prevent the removal of trees from several areas.
The ruling covers several inter-connected issues, in which the tribunal largely opted in favour of built heritage preservation, or felt either more options or further study were needed for impacts on cultural heritage, environment and infrastructure.
“At a high level, this decision sends Solmar ‘back to the drawing board,’” the decision delivered by vice-chair Scott Tousaw and appointee W. Daniel Best says.
The decision asks Solmar for “substantial revisions to the design of the proposed subdivision related to the tribunal’s findings on cultural heritage, vehicular access, tree protection and natural heritage.”
The tribunal said it will “keep this file alive” as the town, Solmar and SORE work together to meet the directions of the order.
Heritage and planning
In its 55-page ruling, the tribunal took issue with the current heritage impact assessments for the properties. It found they were “not prepared to assess the impacts of the required stormwater management outlet and the proposed replacement wetland on the Ontario Heritage Act designated property at 144 (John St.)”
It also found there was a “relative absence” of meaningful heritage impact assessments to evaluate the effects on the neighbouring heritage properties that comprise the other half of the Rand Estate — where the developer also plans to build a hotel.
Dunington-Grubb
The Rand Estate’s lavish gardens were famously designed by renowned landscape architects Howard and Lorrie Dunington-Grubb in 1928.
Solmar asked the tribunal to find that certain landscape features are not “surviving elements of the Dunington-Grubb landscape” and that consent is not required for their alteration or removal, including trees and plantings in several key areas of the estate.
The tribunal found there was a “likelihood of Dunington-Grubb involvement with many of the landscape elements on this site,” even if it couldn’t be proven.
“With the tribunal’s findings on the relevance of cultural heritage landscapes, it will refuse Solmar’s request that certain features are not surviving elements of the Dunington-Grubb landscape, or in the alternative, that certain trees and plantings are permitted for removal.”
Pool Garden
Solmar has been instructed to repair and retain the 1928 Pool Garden attribute, comprising a tea pavilion, pool area and gazebo.
“This substantial heritage feature exemplifies all of the heritage attributes articulated by the numerous heritage experts,” the ruling reads.
It concluded the pool garden is a key element of the Rand Estate, is a destination outdoor room, designed by Dunington-Grubb, and is connected by paths and views to the Bath Pavilion, Mound, and Axial Walkway; and largely intact.
“Its retention and rehabilitation will include substantial repair, rebuilding and replanting to reflect the Dunington-Grubb design, while commemorating the pool by suitable means,” the ruling says.
Bath Pavillion & Mound Garden
The tribunal says the bath pavilion on the property should be retained and conserved in its original place.
The tribunal agreed with Solmar’s plan to retain the mound garden and refurbish it with “suitable planting, pathways and possible seating,” noting the garden should reflect its original diameter.
Whistle Stop and Axial Walkway
The tribunal denied Solmar’s plans to re-align a walkway that was connected to the old railway which is now the Upper Canada Heritage Trail. It argues both the Axial Walkway and Whistle Stop are connected heritage elements, designed to welcome guests when they arrived by train to the property.
Wall and Pillars
The tribunal refused Solmar’s request for a wider wall opening at 200 John St., and said the developer must retain and protect the existing wall and pillars.
Carriage House
The tribunal directs that the Carriage House be retained in place, “given its heritage qualities and strong potential for adaptive reuse.”
It also directed the house be “accommodated by a suitable lot design for access, views, and commemorative tree/shrub plantings.”
Summer House
The tribunal said it will eventually direct the town to allow Solmar to remove the Calvin Rand Summer House, subject to plans for commemoration of the structure. The tribunal said it recognizes the heritage value of the structure, but acknowledges that a large expansion was completed in 1970, the presence of groundwater is problematic and has deteriorated the floor structure and that it suffered a fire in the late 1990s resulting in alterations. It also acknowledges the structure isn’t a landmark since it isn’t visible to the public.
Barn/Stables
The tribunal found the barn/stable may be demolished due to several factors including deteriorating condition, additions that aren’t heritage, groundwater in the basement and “its odd ‘zig-zag’ shape unrelated to its original purpose for housing farm animals.”
Access
The tribunal said primary vehicle access to John street is a “fundamental issue in this case.”
It directs Solmar to find alternative vehicle access to the subdivision, instead of through what is referred to as the “panhandle” that abuts the neighbouring McArthur Estate and is found to be too narrow for a proper entrance — referred to several times as being about the size of a lane driveway.
It found the plan to be unsafe for “present and future inhabitants” and ordered Solmar to revise its plan and explore more “comprehensive planning” for alternate access.
Trees and Heritage
The tribunal ruled that, in several instances, trees, sometimes over 100 years old, contribute to the cultural heritage landscape of the property and may not be removed, even for the construction of new roads and paths throughout the estate.
“The tribunal finds that the site’s remaining mature trees help define the Rand Estate as a cultural landmark in NOTL and will enhance the landscape and views for the site’s future residents. Impacts to those trees, and the cultural heritage outdoor rooms they create or contribute to, should be minimized, including through the assessment of a potential shared access through (the other two properties of the estate).”
The tribunal requires Solmar to implement a tree protection plan to address several areas of the property and ensure the trees are protected.
Wetland
“Wetlands do not follow property boundaries,” the ruling says, citing an argument from Erin Bannon, an environmental expert who was a witness for SORE during the hearings.
“The tribunal accepts the opposition parties’ evidence that it is highly likely that the wetland removal will negatively affect or alter the remaining wetland on 210 John St. E and in the Greenbelt and the associated survival of trees. The studies have not fully evaluated drainage basin contributions and proposed withdrawals, groundwater connections, the extent and effects on 210, and tree impacts.
Edge of property
Tribunal disagreed with SORE that a trail and fence is necessary to separate the vineyard portion of the property from the back of the residential lots, because such a scenario is common in NOTL.
It found in favour of Solmar’s suggesting of a visually permeable fence along the rear lot line.
Density
The tribunal found that the revised plan should include a mix of housing options, as long as more than 50 per cent is low density.
“The tribunal finds considerable flexibility in the town official plan policies to enable a desirable mix of single, semi-detached and townhouse dwellings on this site. The tribunal anticipates approving the revised density, when known, provided that, in accordance with Solmar’s intentions, low density uses comprise more than half of all units.”
“This site ‘should optimize, not maximize’ the efficient use of land by balancing housing with cultural and natural heritage.”
Infrastructure
The tribunal found there were a range of stormwater management infrastructure issues that warrant further study.
“While it is common and accepted to address final plans through subdivision conditions, the complications of this site warrant more assurance that the inter-connected issues are resolved through the subdivision design. Those issues include heritage conservation, tree protection, stormwater catchment area, wetland retention, water balance, run-off reduction efforts, grading, drainage and receiving stream capacity.”
Solmar and the town are to advise the tribunal on progress within 12 months of the issuance of the order.
