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Niagara Falls
Tuesday, May 28, 2024
Letter: A tale of two towns — and inconsistent tribunal rulings
Letter to the editor. File

Dear editor:

The Ontario Land Tribunal renders decisions that greatly affect communities and has the power to greenlight a project rejected by a municipal council.

The tribunal has the authority to determine all questions of fact and law for matters within its jurisdiction.

How can two recent tribunal decisions come up with two totally different approaches and decisions in what are quite similar situations?

Fort Erie and Niagara-on-the-Lake have striking similarities. Both have a proud place in Canadian history and both cherish their traditions and culture.

Both are development-oriented and ready to meet the new building unit goals. Both towns’ councils are aware of the need for new housing units in the province.

Both have official plans and comprehensive zoning bylaws setting the vision for present and future development.

Fort Erie has a lakefront area designated in the official plan as a “special provision residential zone.”

In NOTL, the official plan recognizes Old Town as unique, a special area where “a desire to preserve the existing character of the area has resulted in the plan not proposing major expansions for growth.” NOTL has intensification areas but the proposed development is not in these areas.

NOTL is implementing a plan for hundreds of new apartment units in the Glendale area. It will provide a community setting for the new residents.

On April 26, the tribunal allowed the appeal in the Butler’s Garden Development condo proposal and consequently, the NOTL project can proceed in Old Town.

On April 29, the tribunal dismissed the appeal over the Crystal Bay Cottages Inc. development, meaning the Fort Erie project cannot go ahead.

Like the two towns, the cases have much in common — except the end result.

In Fort Erie, the developer wanted to build five single-detached homes and three townhouses. The area is almost exclusively a waterfront-related residential zone, mainly seasonal cottages or secondary holiday homes.

The proposal had a net density of 16 units per hectare, lower than the allowable density in that area.

The only amendment requested by the developer was a zoning change. There were no requests to amend either the official plan or the zoning bylaw.

In NOTL, the developer asked to build a three-storey, 17-unit apartment building in a one- or two-storey single-family residential zone and sought four amendments to the official plan and four to the zoning bylaw.

Notwithstanding NOTL council’s rejection of the project, the tribunal approved it.

The rejection of the Fort Erie project can be summed up in this passage from the decision: “The proposed form of development is not reflective, does not complement, and ultimately does not conform to the town official plan or the Crystal Beach secondary plan.”

The tribunal said the NOTL case “rests on whether the proposed development is sufficiently compatible with the surrounding neighbourhood.” There is no law that mentions, let alone defines, “sufficiently compatible.”

Nevertheless, the tribunal ruled the proposal is “sufficiently consistent” with provincial and municipal policies and constitutes “good planning.”

The NOTL decision acknowledges the Planning Act says no bylaw “shall be approved by the tribunal that does not conform with an applicable municipal official plan.”

However, notwithstanding this prohibition, the decision orders the amendment to four specific requirements of the NOTL official plan, including almost doubling the allowable density.

The decision accepted the opinion of the developer’s expert who said the density “is appropriate as there are no anticipated adverse impacts to cultural heritage resources.”

What about adverse impacts on nearby residents due to an apartment building that will more than double the population on the block?

How does this decision conform with the official plan? And how is the protection provided to NOTL’s Old Town in its official plan any different from the protection provided by the Fort Erie official plan to its waterfront?

Is an eight-unit project in Fort Erie less “sufficiently compatible” in a waterfront environment than a 17-unit apartment building in a neighbourhood of single-family homes?

The fate of a neighbourhood should not depend on whether one tribunal gives effect to the wording and spirit of the official plan and another sets aside the official plan and makes its decision solely on the flexible criteria of “sufficiently compatible” and “sufficiently consistent” — and totally disregards the town’s official plan.

Fort Erie’s official plan is alive and well and respected, while NOTL’s is, for all intents and purposes, unofficially dead.

Endre Mecs 

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