Following a loud public outcry, Niagara-on-the-Lake council has voted to reverse a decision granting Solmar Development Corp. a right-of-way easement over the Upper Canada Heritage Trail to use as access for its proposed development of the Rand Estate.
After meeting in private for more than 2.5 hours on Friday afternoon, councillors emerged to publicly cancel their Dec. 15 decision to offer the access to Solmar, a company owned by developer Benny Marotta.
When the marathon closed session ended just before 5 p.m. Friday, councillors took less than three minutes to pass a decision rendering the earlier vote moot.
There was no public debate or discussion of the matter.
The reversal came simply via a motion to “withdraw consent” for access to town-owned land that would have let Solmar build a road over part of the heritage trail and into its planned housing subdivision in the John and Charlotte street neighbourhood.
That original Dec. 15 vote came before Solmar had made any formal request for such access. It’s not known if any informal talks led to the original council decision.
Last week, on Jan. 8, Solmar did formally ask to be able to build access via Charlotte Street, over the heritage trail.
The vote just before Christmas sparked numerous letters to the editor and online criticism of council.
On Friday, both the private council meeting and the open session were chaired by Deputy Lord Mayor Erwin Wiens after Lord Mayor Gary Zalepa declared a conflict of interest because he lives near the development.
He left the meeting and did not take part in discussions or the vote.
Zalepa noted he first declared a conflict regarding the project last April.
The vote on withdrawing permission was unanimous. Coun. Gary Burroughs, who participated in the closed meeting, was not on hand when the vote was taken publicly.
The decision passed by council will be followed up with a public statement on Wednesday, Jan. 17, councillors agreed.
No further details were revealed nor was any explanation offered for the five-day wait until a statement is released.
On Friday, prior to council’s reversal of the December decision, The Lake Report submitted a detailed list of questions to the mayor and members of council seeking information about how council came to decide to offer Solmar access to the heritage trail.
Those questions still stand.
The Lake Report plans to publish councillors’ responses in next week’s edition.
* Developing story — check back for updates and see the Thursday Jan. 18 edition of The Lake Report for more information.
‘We’re in the dark’: Mum’s the word on Rand Estate, heritage trail secret talks
Niagara-on-the-Lake’s leaders are staying mum on why a decision affecting the future of the Rand Estate wasn’t made in the public eye.
Council decided the town would grant an easement, or right to use, on land at Charlotte Street near the Upper Canada Heritage Trail if Solmar Development Corp. requires it to build a new road into the estate, where it plans to build a subdivision.
The decision was made in closed session Dec. 15 and rubber-stamped in public afterward, but town leaders are silent on why they came out of the meeting willing to permit access from Charlotte Street.
Lord Mayor Gary Zalepa did not participate in the closed meeting.
He declared a conflict of interest at the start of the session, noting his home is close to the Rand Estate.
Zalepa lives at the corner of the Promenade and Charlotte streets, not far from the estate.
The Ontario Municipal Act permits in camera meetings of council in certain circumstances, such as discussing real estate or legal issues, but encourages elected officials to debate and discuss public business in open sessions.
Representatives of Solmar, owned by Benny Marotta, have insisted previously that the best entrance to the subdivision would be via 200 John St. E.
The town and resident advocacy group Save Our Rand Estate prefer access be through an opening between 144 and 176 John St. E.
However, lawyers representing Solmar formally requested the easement on “lands adjacent to Charlotte Street” in a letter dated Jan. 8, three weeks after council made its decision.
The Solmar letter was published on SORE’s website on Jan. 9.
The advocacy group said it does not endorse access through the Upper Canada Heritage Trail, which crosses Charlotte Street.
“We intend to take that fight to the Ontario Land Tribunal assuming that council does not change its mind,” the group said in a statement.
Coun. Wendy Cheropita, who sits on the heritage trail committee, said the committee was not consulted ahead of the town’s decision to offer an easement, but the town was not obligated to include the subcommittee in discussions with its legal team.
“We’re in the dark,” said Tony Chisholm, who sits on the heritage trail committee.
The Ontario Land Tribunal, a quasi-legal body that makes decisions on land disputes in Ontario, is scheduled to hold a hearing on the subdivision application from Solmar in March.
Town spokesperson Marah Minor said the design of the access at 588 Charlotte St., if requested, would go through a public consultation process.
Minor offered no further comment, saying the subdivision proposal is subject to litigation before the tribunal.
The Dec. 15 meeting determined the legal stance the town would take on the development of the Rand Estate at the tribunal hearing in March.
Coun. Gary Burroughs, who has supported efforts to preserve the estate’s heritage in the past, said he could not comment on what happened during the closed session on Dec. 15.
“I’m allowed to say that the decision was a definite majority but not unanimous,” he said.
The veteran councillor would not disclose where he landed on any votes.
“We’ve got to stop doing this stuff behind closed doors. There’s no reason in my mind,” Burroughs said.
Burroughs said he did not know why the meeting was called just before the holidays, when many residents take vacations.
He speculated former chief administrator Marnie Cluckie wanted to wrap up her work on the Rand Estate before leaving for her position in Hamilton this month.
Cheropita would not say what happened during the private discussion, but said, “Nothing was being held back intentionally.”
“I don’t want to break the law by saying anything that could put me into a situation where I might be breaking the code of conduct,” she said.
Coun. Sandra O’Connor also would not talk about the details of the private meeting.
All she would say is she has always been an advocate of the town’s heritage.
She said it was the right call to hold the meeting in private but that there could have been some public discussion and a public vote separate from the legal discussions.
“That could have been done and maybe will. I don’t know,” she said.
Going into the meeting, she said she knew nothing about what was being presented to council, other than it concerned the Rand Estate.
Chisholm brought up the decision for the Charlotte Street easement at a meeting of the heritage trail subcommittee on Dec. 20.
But Kevin Turcotte, manager of parks and recreation, warned the committee to “not speak any further” on the issue, citing the same legal concerns.
“We’ve put a lot of man-hours into this over the last six or seven years and we want to make sure the trail isn’t compromised in any way,” Chisholm said.
Former council member Al Bisback, who represented the previous council on the heritage trail subcommittee, said it was “very disconcerting” that it was not consulted as part of this process.
“The town manages that asset on behalf of the public,” Bisback said.
But the town has not spent any of its own money on the trail. All the money put toward it came from donations, he said.
Bisback said the announcement that followed the closed session meeting raised many questions about what happens to the heritage trail.
“Why would you do that unless it’s a negotiation tactic?” the ex-councillor asked.
Bisback said in his term on council closed meetings were used mostly to discuss matters subject to litigation or to receive legal advice.
Coun. Erwin Wiens said the issue of access, wherever it is built, had been at the forefront of talks on the Rand Estate dispute since the beginning.
He would not say what his preferred point of access is.
“Where I believe the access should go is what’s best for the entire town,” he said.
He added the town was negotiating with both Solmar and SORE on a solution to the access problem.
The town’s lawyers shared an update on negotiations with SORE and Solmar with councillor at the meeting in December, Wiens said.
Like his fellow councillors, Wiens did not disclose what the updates were, or how an easement on the heritage trail made it into the conversation.
“Our lawyer brought together — brought before us — the negotiations between the town, SORE and Solmar,” Wiens said, so all parties had the same information.
“There’s nothing sneaky going on.”
Letter writers whose opinions on the trail access decision were published in the Jan. 4 edition of The Lake Report “are uninformed,” Wiens said.
The tribunal will have the final say on Solmar’s subdivision application, including its proposed access point, at the hearing in March.