Last week, I promised to delve further into the urban design issue — and we will — but first, allow me to address a couple of other notable items which have occurred in town.

First, a happy thing …

For the first time since the pandemic lockdown, on the evening of April 23, the town of Niagara-on-the-Lake held an event entitled “Celebrating Niagara-on-the-Lake’s Heritage” — an affair to recognize and celebrate the owners of properties significant to the history and character of NOTL that had received heritage designation during the past few years.

Prior to 2021, this was an annual event, and its return, championed and organized by heritage planner Sumra Zia with the able assistance of several other members of town staff, was a resounding success.

I always love to give credit where credit is due, and in this case, it is certainly due. Well done, Ms. Zia!

Now, a more disturbing item related to the Rand Estate.

According to an article released by SORE on May 3, “Marotta continues Rand litigation against town and promises new lawsuit against council” — which included a copy of an email communique from one of Mr. Marotta’s solicitors — in the event the town of Niagara-on-the-Lake did not agree to providing the developer an access to the property via the panhandle or Charlotte Street, he would cease any revisions to the original proposed development (as ordered by the Ontario Land Tribunal) and ask that this file be closed.

Further, the solicitor indicated if this should come to pass (it has), her client “has advised” that it would be directing its litigation lawyers to launch a legal suit against the town and would name all members of council as defendants.

In reading this, I found it odd, since my impression was that Ontario legislation specifically protected elected officials against this type of action.

Not being a lawyer, I sought out a legal opinion.

As it turns out, in Section 448(1) of the Municipal Elections Act, legislation provides protection for councillors. It states: “No proceeding for damages or otherwise shall be commenced against a member of council or an officer, employee or agent of a municipality or a person acting under the instructions of the officer, employee or agent for any act done in good faith in the performance or intended performance of a duty or authority under this act or a bylaw passed under it or for any alleged neglect or default in the performance in good faith of the duty or authority.”

In the same act, sections 279 and 283 provide that the municipality has the right and implied obligation to cover the legal costs incurred to have such a proceeding (as threatened in the solicitor’s communique) dismissed in court.

Arguably, since it appears that Mr. Marotta’s company(s) have continued to have the Ontario Land Tribunal’s ruling undergo a judicial review, in an attempt to have the Ontario Land Tribunal decision overturned by the Divisional Court, this is simply one more option that the developer might exercise to further bleed the town’s taxpayers.

If you haven’t done so yet, I encourage you to read SORE’s release and the media archive on their website relative to this developer — it is quite enlightening.

Finally, as you may be aware, during a council meeting, the majority of our elected officials voted to disband the urban design committee and directed staff to proceed with the process of developing new terms of reference for a proposed urban design review panel.

Apparently, the writing of these terms of reference is proceeding at breakneck speed since it is staff’s communicated intent to present some during this month’s council meeting.

May I suggest this is putting the cart before the horse?

After all, in the recommendation to council (CAO-25-013) on page three, the report states that an “informal search” had been performed relative to identifying municipalities using the urban design review panel model — although further down that page is written: “Staff have researched the concept of an urban design review panel, as well as reviewed multiple terms of reference from other municipalities that have successfully created an urban design review panel.”

One must wonder how an “informal search” could yield sufficient and reliable reference data to write terms of reference for NOTL?

Furthermore, since the town does not employ an urban design professional (see last week’s Arch-i-text column, “Arch-i-text: Why urban design and urban planning are not interchangeable“), how can any terms of reference developed by the town’s urban planning staff (a different professional discipline) correctly reflect the necessary parameters?

Sort of like asking a dental surgeon to develop terms of reference for a cardiac surgeon — hey, they both do surgery, right?

Finally, there are pros and cons to what appears to be the central argument for an urban design review panel … that “expert” members may be drawn from outside Niagara-on-the-Lake.

Sure, despite the fact that this town has a greater depth of local, provincial, national and international expertise in multiple fields than any other municipality I’ve ever been exposed to, there is always value to including a member who currently works in broader markets.

That said, any review panel composed of members from outside the municipality will lack “skin in the game” and a personal understanding of the history, built character and design vision necessary to ensure their recommendations are not simply an academic expression unaligned with the wishes and desires of the established community.

Finally, without design guidelines and architectural controls (like Brampton’s), no matter where the membership is sourced from, an urban design committee or panel (if we’re having fun with words) is destined to fail.

Brian Marshall is a NOTL realtor, author and expert consultant on architectural design, restoration and heritage.