Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 07, 2022

CASE NO(S).: OLT-22-003603

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Solmar (Niagara 2) Inc.

Subject: Request to amend the Official Plan – Failure of the Town of Niagara-on-the-Lake to adopt the requested amendment

Description: To permit the development of a residential subdivision

Reference Number: OPA-02-2020

Property Address: 200 John Street E. and 588 Charlotte Street

Municipality/UT: Niagara-on-the-Lake/Niagara

OLT Case No.: OLT-22-003603

OLT Lead Case No.: OLT-22-003603

OLT Case Name: Solmar (Niagara 2) Inc. v. Niagara-on-the-Lake (Town)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Solmar (Niagara 2) Inc.

Subject: Application to amend the Zoning By-law – Refusal or neglect of the Town of Niagara-on-the-Lake to make a decision

Description: To permit the development of a residential subdivision

Reference Number: ZBA-11-2020

Property Address: 200 John Street E. and 588 Charlotte Street

Municipality/UT: Niagara-on-the-Lake/Niagara

OLT Case No.: OLT-22-003604

OLT Lead Case No.: OLT-22-003603

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Solmar (Niagara 2) Inc.

Subject: Proposed Plan of Subdivision – Failure of the Approval Authority to make a decision

Description: To permit the development of a residential subdivision

Reference Number: 26-T-18-20-01

Property Address: 200 John Street E. and 588 Charlotte Street

Municipality/UT: Niagara-on-the-Lake/Niagara

OLT Case No.: OLT-22-003605

OLT Lead Case No.: OLT-22-003603

Heard: September 9, 2022 by Video Hearing

APPEARANCES:

Parties	Counsel
Solmar (Niagara 2) Inc.	Mark Flowers Sara Premi Patrick Maloney
Town of Niagara-on-the-Lake	Nancy Smith
Save Our Rand Estate (“SORE”)	Catherine Lyons
Niagara Peninsula Conservation Authority (“NPCA”)	Tim Duncan

DECISION DELIVERED BY BITA M. RAJAEE AND S. TOUSAW AND ORDER OF THE TRIBUNAL

INTRODUCTION

1On September 9, 2022, the first Case Management Conference (“CMC”) was heard in relation to an appeal brought under s. 34(11) of the Planning Act by Solmar (Niagara 2) Inc. (“Applicant/Appellant”) against the Town of Niagara-on-the-Lake (“Town”) for failure to make decisions within the statutory timeframes on applications for an Official Plan Amendment (“OPA”), Zoning By-law Amendment (“ZBLA”), and Draft Plan for Subdivision approval (jointly referred to as the “Applications”) in relation to properties known municipally as 200 John Street East and 588 Charlotte Street in the Town (“Subject Lands”), and also known as the Rand Estate.

2The purpose of the Applications is to facilitate a proposal by the Applicant/Appellant to develop a 172-unit subdivision, including 39 detached, 26 semi-detached, and 107 townhouse dwelling units (“Proposal”). The current Proposal before the Tribunal was revised from an earlier version as a result of a public meeting and contains: a reduced number of units (from 191 to 172); an increased amount of open space, including a heritage park and a Whistle Stop trail head parkette; and integrates spaces to commemorate the site’s cultural heritage landscape with improved access to the heritage area as well as the Upper Canada Heritage Trail. The revised Proposal has not been acknowledged by the Town, and no decision has been made by the Town on the Applications.

3The Tribunal marked as Exhibit 1 the Affidavit of Service of Suzanne Martin, confirming that Notice of this CMC was properly given.

REQUESTS FOR STATUS

4The statutory Parties to this appeal are the Applicant/Appellant and the Town.

5The Tribunal was tasked with adjudicating a number of Party and Participant Status Requests.

6A Party Status Request was received from Save Our Rand Estate Inc. (“SORE”), an incorporated body whose purpose is to promote the responsible use of the Rand Estate. SORE raised concerns regarding heritage and conservation issues with respect to the Subject Lands. The Tribunal, on consent of the Parties, granted Party Status to SORE.

7A Party Status Request was received from Niagara Peninsula Conservation Authority (“NPCA”), who has regulatory authority under Ontario Regulation 155/06 made under the Conservation Authorities Act. NPCA indicated that a permit is required from it prior to development activity within the regulated area (generally, floodplains, shorelines, wetlands, natural hazards). NPCA further stated that the Subject Lands contain several features regulated by the NPCA and the Applicant/Appellant requires permits from it for any works within this area. The Tribunal, on consent of the Parties, granted Party Status to NPCA.

8Participant Status requests were received from the following persons and incorporated bodies:

1. Regional Municipality of Niagara (“Region”)
2. Niagara Foundation
3. Friends of One Mile Creek
4. The Niagara-on-the-Lake Conservancy
5. C. Tintinalli, being a member of the unincorporated resident group POST (Preserve our Special Town)
6. Duff Roman
7. Brian Waters
8. Daniel Kelly
9. Robert Bader
10. Chrys Kaloudis

9The Region has consulted with the Applicant/Appellant on standard conditions to development. The other Participants raised various issues including concerns with: the density of the Proposal, traffic issues, heritage matters, the Applicant/Appellant’s compliance with heritage designations, Site Plan revisions, conservation questions, natural hazard issues, consistency and conformity complaints, environmental worries, and effects of the Proposal on tourism and the Town as a whole. The Tribunal found that the groups and individuals who had requested Participant Status had an interest in the matter and will assist the Tribunal in understanding the potential impacts of the Proposal on the local community. The Tribunal, on consent of the Parties, granted Participant Status to all those listed above.

10In response to the Notice, the Tribunal received no other requests for status (Party or Participant).

MEDIATION AND SETTLEMENT

11The Tribunal raised the issue of opportunities for settlement discussions, including the use of Tribunal-assisted mediation. The Parties may be amenable to undertaking mediation, but they are not in a position at this stage to engage in such discussions.

12The Parties are directed to advise the Tribunal in writing should they reach a settlement with respect to some or all of the issues prior to the hearing and, should they wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator for those services.

PROCEDURAL ORDER AND ISSUES LIST

13The Parties produced a draft Procedural Order (“PO”) prior to the CMC. However, no Issues List (“IL”) was provided. The Parties advised that the IL was in progress and would be provided to the Tribunal for the next CMC. The Applicant/Appellant requested, on consent, to schedule a second CMC to allow for a discussion of the IL and to finalize the PO. This request was granted, as discussed below.

14The Parties are directed by the Tribunal to provide a final draft PO, including a joint IL, to the Tribunal on or before Tuesday, February 7, 2023.

SECOND CMC DATE

15The second CMC is scheduled on Tuesday, February 14, 2023, at 10 a.m. by video hearing. No further notice will be given.

16Parties and Participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

Tuesday, February 14, 2023 at 10 a.m. (One day hearing) GoTo Meeting: https://global.gotomeeting.com/join/909787981 Access code: 909-787-981 Audio-only telephone line: 1-888-455-1389 or +1 (647) 497-9391 Audio-only access code: 909-787-981

17Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.

18Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line.

19Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

HEARING DATE

20The Tribunal was asked by the Applicant/Appellant, and on consent of the Parties, to schedule an eight (8) week hearing in the spring of 2024. The Parties advised that this hearing timeline of more than a year and a half in advance, as well as the fact that more CMC(s) are scheduled to allow the Parties to update the Tribunal, provides ample time for consideration, if necessary, of additional Tribunal and/or court proceedings regarding heritage matters, which may relate to these appeals. The Tribunal agrees to schedule an eight (8) week hearing at this time. If certain issues are resolved by or before subsequent CMC dates, the length of the hearing may be adjusted.

21For the reasons provided above, the Tribunal’s deviation here from its common practice of requiring a complete IL before scheduling a lengthy hearing underscores the Parties’ obligation to provide a completed PO and IL for the next CMC. Failure to do so could result in a reconsideration of the scheduled hearing on the Tribunal’s calendar.

22Given the number of Parties, potential witnesses, and the scope of issues, the Tribunal agrees to schedule an eight (8) week hearing. Accordingly, a video hearing will commence on Monday, March 25, 2024, at 10 a.m. and ending on or before Friday, May 17, 2024 (eight (8) weeks).

23The Town and SORE requested that the hearing be scheduled in person rather than by video hearing. The Tribunal advised that, at this time, the directive is to schedule hearings by video. However, in light of the lengthy timeline before the hearing, this position may be reassessed at a subsequent CMC.

24Parties and Participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

Monday, March 25, 2024 at 10 a.m. (eight week hearing) GoTo Meeting: https://global.gotomeeting.com/join/656004293 Access code: 656-004-293 Audio-only telephone line: 1-888-299-1889 or +1 (647) 497-9373 Audio-only access code: 656-004-293

25The same instructions apply to the hearing as indicated at paragraphs [17] through [19] of this Decision.

OTHER MATTERS

26The Tribunal inquired as to whether there were any other matters to be addressed, which might assist in the fair, just and expeditious resolution of this matter. The Parties indicated there were none.

ORDER

27The Tribunal Orders that:

a. Save Our Rand Estate Inc. is a Party in this proceeding.

b. Niagara Peninsula Conservation Authority is a Party in this proceeding.

c. The following are Participants in this proceeding:

i. Regional Municipality of Niagara ii. Niagara Foundation iii. Friends of One Mile Creek iv. The Niagara-on-the-Lake Conservancy v. C. Tintinalli, on behalf of POST (Preserve our Special Town) vi. Duff Roman vii. Brian Waters viii. Daniel Kelly ix. Robert Bader x. Chrys Kaloudis

d. A second CMC is scheduled to take place on Tuesday, February 14, 2023 at 10 a.m.

e. The Parties are to provide an Issues List, anticipated to be on consent, and a completed Procedural Order to the Tribunal on or before Tuesday, February 7, 2023.

f. The hearing in this matter will commence on Monday, March 25, 2024 at 10 a.m., and eight (8) weeks have been set aside.

g. There will be no further notice.

28The Panel Members are not seized, but may be contacted through the Case Coordinator should procedural issues arise.

“Bita M. Rajaee”

BITA M. RAJAEE MEMBER

“S. Tousaw”

S. TOUSAW MEMBER

Ontario Land Tribunal Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.