Off the top, allow me to congratulate SORE (Save Our Rand Estate), the McArthurs and the town on the impressive list of results contained within the Ontario Land Tribunal’s recent decision relative to the Rand Estate.

In short, the Ontario Land Tribunal found Solmar’s proposed plan of subdivision unacceptable and that “its effects on the Rand Estate’s cultural heritage value or interest do not represent good planning in the public interest.”

Moreover, should Solmar elect to undertake the necessary studies and revisions to its development plan — the company has two months to make this decision — it is the tribunal’s expectation that this would result in “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.”

Of particular note, the tribunal decision requires Solmar, in the event of choosing to move forward with a revised plan of subdivision, to do so in consultation with SORE, the McArthurs and the town.

Finally, if Solmar fails to undertake the studies and revisions as specified by the decision, the tribunal will entirely dismiss the company’s appeals related to the property.

I don’t know about you, dear readers, but in my book, this tribunal decision must count as a “win” and flies in the face of an often-repeated suggestion voiced by certain members of the town council that costs associated with going before the tribunal are a waste of money because we’re going to lose.

Now, there is no question that the Ontario Land Tribunal’s record of decisions clearly indicates that it finds in favour of developer appeals at an inordinate level — 96.6 per cent of the time — which begs the question, “Why is this case different?”

In my opinion, the answer to that question lies fundamentally in the quality of the cases put together by SORE, et. al., and the town, which were clear, concise, well-articulated and supported by an outstanding list of expert testimonies.

Furthermore, both the town and SORE advanced alternative concepts for the subdivision, illustrating their cases were not based on knee-jerk “not-in-my-backyard” objections, but rather, the intent to ensure any development of the Rand Estate properties would respect all facets of the public interest — including, but not limited to, infrastructure, natural heritage (trees, wetlands, etc.), built heritage and the cultural heritage context.

And, perhaps of equivalent importance — vis-à-vis robbing the developer of leverage points in their argument — the cases were remarkably free of any significant dissenting recommendations from the town staff, their consultants or SORE’s experts.

This stands in stark contrast to NOTL’s typical application processing practice wherein planning staff might disregard many of the important criteria cited in this Ontario Land Tribunal decision (and the town’s official plan) and revert to the general criteria defined in the overarching provincial Planning Act.

I’d suggest one of the most lethal arrows in the heart delivered to any contesting presentation before the tribunal was inconsistencies in how the original application was processed.

Perhaps the most common example of introducing an inconsistency occurs when municipal staff produce recommendations that the application be “accepted” and subsequently a committee or council refuse that recommendation by voting against the application.

This establishes a clear and unequivocal conflict between the opinions of staff and elected (or appointed) officials in any future argument presented before the tribunal and, since staff recommendations, once presented, exist in the public domain, this conflict is invariably leveraged by the applicant appealing before the tribunal.  

And why would the applicant not do so?

After all, a municipal staff recommendation contains all of the background and justifications drawn from various legislative acts — which may include the municipality’s official plan — that underwrite their recommendation.

In addition, leveraging this type of conflict (within the municipal processes related to the application) during an appeal before the Ontario Land Tribunal places the municipality’s representative(s) in the unenviable position of attempting to discredit the original staff recommendation and/or bringing forward additional information, in an effort to underwrite the subsequent decision by council or committee to vote against the application.

The municipality’s case is not only fundamentally flawed but their arguments come from a position of weakness — to quote an old saying, it’s like closing the barn door after the horse has bolted.

I have often wondered whether planning applications, upon being received by the town, go through an upfront vetting to assess the merits of each against a standardized, published set of criteria — say, a list of planning criteria that directly relate to the town’s vision statement as expressed in the strategic plan: “Enriching and protecting our heritage, agriculture and natural beauty while creating a resilient, vibrant and welcoming community for all.”

That is, prior to being assigned to a member of the planning staff, a determination is made whether it conforms to the criteria or not.

If not, what does the applicant have to do to modify the application per the criteria and thereby allow it to move forward through the process?

I know of many organizations that hold weekly meetings to assess new projects.

In this meeting, by project, they conduct an analysis against a standard set of criteria, establish the general approach, define associated timelines and identify benchmarks to evaluate both progress and adherence to the established approach as the project moves forward. 

It seems to me if this “assessment committee” model — or similar — were in use, it would maximize the likelihood that each application would be dealt with on a seamless basis from beginning to end and distinctly reduce the risk of introducing inconsistencies at any point in the process.

And, the model would have the additional benefit of generating higher levels of comfort and security for staff members, particularly when their recommendation on an application is to deny.

On another topic, it was recently pointed out to me that the statement I made identifying the fact there are “many inaccuracies” in the records drawn upon by town staff in my Sept. 18 column (“Once upon a time, NOTL respected heritage”) could be misconstrued as an intimation that town staff was responsible for those inaccuracies.

Allow me to state categorically that town staff had nothing to do with the inaccuracies I was referring to: That fault lies at the feet of the Ontario government.

This is not a reality unique to the town of Niagara-on-the-Lake when it comes to land registry records, but rather a challenge across this province.

During the process of digitizing land registry records across Ontario (1980 to 2010), a significant number of errors, exceptions and decisions were made that rendered the validity of the complete central database (records), which all municipalities draw on, very questionable.

For example, it was common practice, particularly during the early years of the digitizing undertaking, to report the build date of a particular address with a “change of use.”

To illustrate this, if a residential building was constructed in, let us say, 1885, and in 1930, it was converted to commercial/retail — then, the digitized records may well reflect the year 1930 as the build date.

Several buildings in St. Davids are subject to this particular cloud. 

In fact, one contributor to the cost of any professional heritage study on a property is the requirement that they must assign hours (read “many”) for a complete analysis of the original handwritten archival records (which also may or may not be complete … in the latter case resulting in additional research billing hours to flesh out the information from other sources).

As those familiar with me know, I am never hesitant to call out incompetence, but I also believe in clearly assigning the blame where it belongs and in this case, that’s the province.  

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