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Niagara Falls
Friday, June 14, 2024
Arch-i-text: Let’s stand and fight for this town
Brian Marshall analyzes the Butler's Garden Development and its compliance with the town's official plan, comparing it to another development that went before Fort Erie's municipal council. BUTLER'S GARDEN DEVELOPMENT

Every morning it is my wife’s habit to walk her dog along the streets of Old Town.

Recently, she found herself walking down Prideaux Street and, as she neared Gate Street, a couple approached her and asked if she was a “local.”

When my wife replied that she did indeed live in Niagara-on-the-Lake, one of the individuals shook her head and asked, “What is wrong with you people?”

She continued without a breath: “How could your town council have allowed something like that to be built?” she said, waving her hand in the direction of a relatively new infill house, “It ruins the flavour of the whole street.”

“You know, we’ve been coming here for nearly 40 years to enjoy the history and ambience of the town, but over the last couple of years, we’ve seen more and more of that kind of thing,” she said, pointing once again at the offending house.

“I’ll tell you, it has us questioning whether we should be looking for another historic town — one that respects and preserves its character — and just stop coming to Niagara-on-the-Lake.”

The unfortunate thing is that this was not an isolated incident. It’s something that both my wife and I have heard before.

There’s an old Aesop’s Fable that gave rise to the idiom “killing the goose that lays the golden eggs,” which seems applicable to the trend of the last few years in NOTL.

Moreover, not a month goes by that I don’t hear residents of 10, 15 or more years suggest the character of the town is being lost.

The reasons they chose this place to live are rapidly disappearing, as it seems to be morphing into just another piece of Ontario suburbia.

There are those who believe the town’s unique and special character has already been damaged past the point of recovery — some of whom have sold and moved on while others are seriously considering doing so.

I am not one of those people.

I will stand and fight to preserve a place and community of which I am a part.

Yes, we face difficult challenges: our current provincial government and its appointed lackeys are blatantly in bed with the interests of developers and actively sabotaging heritage preservation, while denying communities across this province the ability to protect their character.

However, these challenges are not insurmountable.

But, it takes the town’s council providing clear and unequivocal strategic direction to staff and day-to-day involvement of residents in communicating community priorities to councillors — not on an issue-by-issue basis (although there is a place for that), but rather, a continual presence, informing and, where appropriate, supporting policy direction.

So, let’s visit two outstanding letters to the editor published in the May 16 edition of The Lake Report, the first being Endre Mecs’ “A tale of two towns — and inconsistent rulings” and the second, Jim and Erika Alexander’s “Tribunal erred and town needs to appeal condo ruling.

In his letter, Mecs poses this question: “How can two recent tribunal decisions come up with two totally different approaches and decisions in what are quite similar situations?”

I have taken the time to carefully read and consider each of the two decisions rendered by the Ontario Land Tribunal on these separate appeals: for your edification, the former can be found by Googling “Ontario Land Tribunal 2024 OLT-23-000311” and the latter on the town’s website, NOTL.com, by searching “OLT-23-001106” and selecting the PDF document dated April 26, 2024.

Let us set aside that Fort Erie’s decision was rendered by Kurtis Smith, whose expertise is in urban planning, while Niagara-on-the-Lake’s was adjudicated by K.R. Andrews, a lawyer called to the bar in 2010 — the two presented arguments are remarkably different.

In Fort Erie’s case, it is clear from the get-go that the argument was built on the municipality’s official plan and each facet of the town’s position called on evidence that supported/reinforced the criteria established in that document.

The argument was logical, consistent and thoroughly supported by legislation.

Purely on conjecture, it could be imagined that Fort Erie’s planning department may have an established guiding strategic direction along the lines of reviewing each application first on the criteria established in the town’s official plan, then reviewing against current Planning Act provisions, and following, using its expertise to provide legally compliant recommendations in support of the official plan.

Nothing illegal therein, just good management practices.

Turning to Niagara-on-the-Lake, its case was conflicted from the beginning since staff, absent of any such direction to focus their research and recommendations underwritten by the town’s official plan, developed a report with findings predicated on the provincial Planning Act and associated recent legislation.

Thus, staff found the applicant’s submission acceptable within those criteria.

And, when town council failed to arrive at any decision on this application within the legally allowable timeframe, our town planner was put in the unenviable position of attempting to marginalize the original staff recommendations and argue that the Ontario Land Tribunal did not have the authority to set aside provisions of the town’s accepted official plan.

It is my experience, based on more than four decades of adjudicated negotiation, the fastest way to prejudice your case is suggest the judge lacks the authority to render a balanced decision — particularly when you are arguing against your own original recommendations.

To be clear, I do not feel the responsibility for loss in this case (and the recommendations of staff on other applications) rests with the town planner.

Rather, it is the failure of management — namely the town council and lord mayor — to establish, reinforce and support strategic guidelines that provide an ongoing staff direction to, first and foremost, work to preserve the integrity of the town’s official plan.

In the Alexanders’ letter, they write, “… the tribunal decision is an error in law and thus subject to appeal by the town.”

Contrary to the declaration in the town’s website that the tribunal’s decision is “final,” the Ontario Land Tribunal Act, 2021 – Part 3, Section 23 actually reads: “Unless another act specifies otherwise, an order or decision of the tribunal may be appealed to the divisional court, with leave of that court on motion in accordance with subsection (3), but only on a question of law.”

So, it is possible to appeal on a “question of law”: but does this decision meet that criteria?

To get an opinion, I reached out to a senior partner in a reputable Niagara law firm.

Based on a cursory examination, he suggested there appears to be an error in law in the King Street decision — certainly sufficient to justify a thorough study of the decision to establish a position for a possible appeal.

In this case, it seems to me that would be taxpayer dollars well spent. 

I recall a meeting that took place many years ago in a corporate boardroom.

The chair, after an hour of listening to objections voiced by the people around the table, stopped the conversation and said, “I think you’ve forgotten that we are responsible for protecting the best interests of the shareholders and stakeholders of this company.”

“Your job is not to find reasons why something can’t be done,” the chair continued. “It’s to figure out how it can be done in a way that delivers benefits to all.”

It’s time we stand and fight for our town.

It’s time that town council took an active role in the executive management of town hall, in the best interests of the taxpayers who have chosen to make this town their home.

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

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