Solmar (Niagara 2) Inc. v. Niagara-on-the-Lake (Town), 2023 CanLII 69376

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 25, 2023

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

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

Subject: Application to amend the Zoning By-law – Refusal or neglect 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 section 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description: To permit the development of a residential subdivision
Reference Number: 26T-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: June 9, 2023 by video hearing

APPEARANCES:

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

DECISION DELIVERED BY DAVID BROWN AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened a second Case Management Conference (“CMC”) in respect of appeals filed by Solmar (Niagara 2) Inc. (“Appellant”) pursuant to s. 22(7), s. 34(11), and s. 51(34) of the Planning Act, R.S.O. c. P.13, as amended (the “Planning Act”) against the failure of the Town of Niagara-on-the-Lake (the “Town”) to make a decision in respect to an Application for an Official Plan Amendment, an Application for a Zoning By-law Amendment, and an Application for Approval of Draft Plan of Subdivision (collectively the “Planning Applications”) within the timeframes prescribed within the Planning Act.

2The lands that are the subject of the Applications are known municipally as 200 John Street East and 588 Charlotte Street (“Subject Lands”). The Subject Lands have been designated under the Ontario Heritage Act, R.S.O. c. O. 18 (the “Heritage Act”), by the Town and are known locally as the Rand Estate.

3The Planning Applications were filed with the Town to facilitate the redevelopment of the Subject Lands with a mix of single detached, semi-detached, and townhouse dwellings. The proposed redevelopment will include private roads, parks, open space, access to the Upper Canada Heritage Trail and opportunities to commemorate the cultural heritage landscape within the Subject Lands.

CASE MANAGEMENT CONFERENCE MATTERS

4The Tribunal considered a request for Participant Status from the Niagara Parks Commission (“NPC”). The NPC’s mandate is preserving and promoting the natural and cultural heritage along the Niagara River corridor and the NPC has an interest in the planning approvals being sought by the Appellant. On the consent of the Parties, the Tribunal granted Participant Status to the NPC.

5The Tribunal received a further request for Participant Status from Blair and Brenda McArthur (the “McArthurs”), the owners of the property located at 210 John Street East, immediately abutting the Subject Lands to the east on John Street East. The McArthurs have a direct interest in the proposed redevelopment of the Subject Lands as the increase in density will result in an impact on their property. On the consent of the Parties, the Tribunal granted Participant Status to the McArthurs.

6Mr. Flowers provided an update to the Tribunal with respect to applications filed by the Appellant under s. 33 and s. 34 of the Heritage Act, seeking approval from the Town to permit alterations to certain heritage attributes on the Subject Lands (s. 33) and the demolition or removal of certain other heritage attributes on the Subject Lands (s. 34) (the “Heritage Applications”). The Heritage Applications were filed in early October of 2022, with additional requested information provided in February of 2023. The Heritage Applications were deemed complete by the Town and the Heritage Applications were considered at the Town Heritage Committee meeting on April 12, 2023. The Heritage Committee referred the Heritage Applications to Town Council with a recommendation and Town Council considered the matter at its meeting on April 24, 2023 approving some recommendations and refusing others. The decision of the Town Council regarding the applications was issued on May 10, 2023, and the Appellant filed Notices of Appeal with the Tribunal and the Town on June 7, 2023.

7Mr. Flowers requested that, contingent upon the Tribunal’s receipt of the appeals filed concerning the Heritage Applications (the “Heritage Appeals”), the Tribunal order that the appeals of the Planning Applications (the “Planning Appeals”) currently before the Tribunal be heard together with the Heritage Appeals. Mr. Flowers advised that the Parties have consented to the request to hear the matters together and he noted that there is considerable overlap between the issues and the evidence that will be proffered before the Tribunal in respect of the Planning Appeals and the Heritage Appeals.

8Further, with respect to the requirements for the provision of notice as set out in s. 33(10) and s. 34.1(4) of the Heritage Act, Mr. Flowers contends that the Heritage Act provides the Tribunal with considerable discretion with respect to the determination of notice requirements. Mr. Flowers advised that the Parties are in agreement that no further notice is required in respect of the Heritage Appeals as any interested parties in these proceedings are currently involved in the Planning Appeals and are aware of the Heritage Applications and the pending Heritage Appeals which have now been filed.

9Ms. Smith confirmed that the Town is in agreement that the Heritage Appeals and the Planning Appeals should be heard together as there is significant overlap of the issues between the matters. The jurisdictions under which the Tribunal will consider the appeals are separate and that supports hearing the matters together. In response to the issue of giving of notice, Ms. Smith agreed that any interested parties in these proceedings have already been identified and are involved in the Planning Appeals. Ms. Smith advised that the Town concurs that no further notice is required.

10Ms. Lyons confirmed that her client, Save Our Rand Estate (“SORE”), supports hearing the Planning Appeals and the Heritage Appeals together as the issues are critically linked. There is significant local interest in these matters and Ms. Lyons noted that notice of these proceedings is also provided and updated on the Town’s website and through SORE’s communications with their members. Ms. Lyons indicated that SORE supports the request that no further notice be required.

11Mr. Duncan advised that the Niagara Peninsula Conservation Authority (“NPCA”) does not have an interest in the Heritage Appeals at this time, has no objection to the request that the matters be heard together, and further NPCA has no position in respect to the request relating to the notice requirements.

12In consideration of the submissions from the Parties, the Tribunal reviewed the Heritage Act and in particular s. 33(10) and s. 34.1(4) of the Heritage Act which state:

33(10) If a notice of appeal is given within the time period specified in subsection (9), the Tribunal shall hold a hearing and, before holding the hearing, shall give notice of the hearing to the owner of the property and to such other persons or bodies as the Tribunal may determine.

and

34.1(4) If a notice of appeal is given within the time period specified in subsection (2), the Tribunal shall hold a hearing and, before holding the hearing, shall give notice of the hearing to such persons or bodies and in such manner as the Tribunal may determine.

13Section 33(10) and s. 34.1(4) of the Heritage Act require that the Tribunal hold a hearing and that before holding such hearing, that notice be given. The Tribunal has discretion in determining to whom notice is to be provided and in what manner, however, the Tribunal shall hold a hearing and the Heritage Act requires that notice of that hearing shall be provided.

14The Tribunal reviewed s. 9(2) of the Ontario Land Tribunal Act (“OLT Act”), which states:

The Tribunal may include in an order conditions that it considers fair in the circumstances, including a condition that the order comes into force at a future fixed time or on the performance of terms imposed by the Tribunal.

and Rule 16 of the Tribunal’s Rules of Practice and Procedure (“Rules”), which provides the Tribunal directions for hearing matters together.

15A request for Party Status in respect to the Heritage Appeals was received by the Tribunal from SORE and Ms. Lyons advised that SORE has been involved in these matters since the submission of the Heritage Applications at the Town and has maintained its interest and involvement throughout this process. She explained that SORE is seeking Party status in the proceedings related to the Heritage Appeals contingent upon the Tribunal’s receipt of the Heritage Appeals.

16No objections from the Appellant or the Town were raised in response to the request for Party Status.

17The Tribunal, in consideration of the above requests, finds that the Tribunal must hold a hearing and provide notice of same as set out in the Heritage Act. The Tribunal finds that the subject CMC cannot be considered the hearing under the Heritage Act as no notice of the consideration of the Heritage Appeals has been provided. SORE has demonstrated that they have an interest in the Heritage Appeals that is intrinsically intertwined with the Planning Appeals; however, the Heritage Appeals must be properly before the Tribunal before it can formally grant Party status in those proceedings. This can be addressed at the next CMC for the Planning Appeals by having the first CMC for the Heritage Appeals scheduled at the same time as the next CMC for the Planning Appeals.

18The request to have the matters heard together must be dealt with once the Heritage Appeals are properly before the Tribunal. This can also be addressed at the next CMC for the Planning Appeals by having the first CMC for the Heritage Appeals scheduled at the same time.

19Ms. Smith advised the Tribunal that the Town has authorized her to initiate discussions with the Parties with respect to narrowing and scoping the issues in the Appeals and she has advised that such discussions have commenced. Mr. Duncan requested that the NPCA be involved as early as possible in these discussions to ensure that NPCA issues can be effectively addressed in the narrowing, scoping, and possible resolution of issues.

20The Parties provided a draft Procedural Order (“DPO”) and a draft Issues List (“IL”) that consolidates the issues raised by each Party and includes the issues related to the Heritage Appeals in anticipation of the matters being heard together. Mr. Flowers advised that the parties have agreed upon exchange dates included on the DPO. Ms. Smith advised the Tribunal that the Town will continue working with the Parties to scope the issues identified in the IL and she expects that further discussions will result in an evolution of the IL. Ms. Smith submitted that by the end of October, the Parties should be in a position to confirm the final issues for adjudication by the Tribunal at the merit hearing. This will assist in structuring the evidence to be proffered at the hearing and the creation of a hearing plan.

21The Parties agreed that a further CMC would be beneficial to confirm the final IL and address any procedural matters that may arise.

22The Tribunal directed that paragraph 5 of the DPO is to be revised to contemplate a revised final IL being filed at the next CMC. The Tribunal revised the draft IL to remove the Heritage Appeal issues at this time as the Heritage Appeals are not properly before the Tribunal. The Tribunal encourages the Parties to continue discussions to scope, narrow, and potentially resolve all issues, including the Heritage Appeal issues, for preparation and submission of the final IL at the next CMC.

23To make the most efficient use of the Tribunal resources, the Tribunal will make a request to its Registrar to schedule the first CMC event for the Heritage Appeals to be held at the next CMC for the Planning Appeals. In respect to notice considerations for the Heritage Appeal, the Tribunal directs that the circulation of the Heritage Appeals will follow the Tribunal’s practice for notification of such matters. The Tribunal notes that the notification list for the Planning Appeals includes those persons that would otherwise receive the notice of the Heritage Appeals and the Tribunal shall provide such notice.

24The Tribunal scheduled a further CMC for Friday, November 10, 2023, commencing at 10 a.m. by video to consider the procedural matters for the Heritage Appeals and confirm the final IL for the merit hearing and address any other procedural matters that may arise.

25Parties 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:

https://meet.goto.com/996288525

Access code: 996-288-525

26Parties 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

27Persons 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: +1 (647) 497-9391 or Toll Free 1-888-455-1389. The access code is 996-288-525.

28Individuals 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 FORMAT

29The final matter for the Tribunal’s consideration was a request by SORE to have the merit hearing, which is scheduled to commence on Monday, March 25, 2024, by video, to be held in person in Niagara-on-the-Lake.

30Ms. Lyons submitted that the use of the video hearing format for Tribunal hearings was introduced to address the issues arising from the COVID-19 pandemic. She proffered that the landscape has changed such that in-person hearings can be conducted safely and the Tribunal acknowledged that this landscape is evolving in its decision from the September 9, 2022 CMC, where in paragraph 23, the presiding panel noted that revisiting the issue of an in-person hearing rather than a video hearing may be considered at a subsequent CMC.

31Ms. Lyons submitted that the matters before the Tribunal have attracted significant public interest. Access and transparency in the land use planning process are important facets of this process and appeals before the Tribunal can be difficult for many people to negotiate. Ms. Lyons proffered that the addition of the video hearing process layered on top of an already imposing process results in additional impediments to access and transparency. Ms. Lyons submitted that to achieve and ensure the utmost transparency, an in-person hearing would be appropriate and warranted in this situation.

32Ms. Smith advised that the Town supports an in-person hearing of this matter in response to the public interest that has been generated by the Applications, the Planning Appeals, and, most recently, the Heritage Appeals. Ms. Smith acknowledged that costs associated with securing a venue to accommodate the anticipated number of interested individuals are eliminated by the video hearing process, however, the Town has committed to securing an appropriate venue to accommodate the Tribunal and the anticipated interest in the scheduled eight-week merit hearing in response to the significant public interest in these proceedings.

33Ms. Smith submitted that the request should be evaluated on more than just efficiency and acknowledged that the process has become more efficient. Ms. Smith contends that this proceeding is a matter of determining the interpretation and application of Town policy. Traditionally, the Tribunal has decided these matters in the community in which the policy applies and in front of the community that will be impacted by the Tribunal’s determination. Ms. Smith asserts that certain situations warrant the Tribunal to conduct a hearing in person. On balance, Ms. Smith contends that this is such a situation and Ms. Smith concluded that the Tribunal needs to be in Niagara-on-the-Lake to decide the matters in issue in these proceedings

34In response to the request from SORE, Mr. Flowers advised that his client opposes an in-person hearing. The Parties making the request have provided no justification or need to deviate from the current Tribunal practice of conducting video hearings. Mr. Flowers responded to the reasons proffered for an in-person hearing, being significant public interest and the need to ensure access and transparency, that the same reasons can be applied to holding the hearing by video. The public interest is well served by the video hearing as individuals wishing to attend and observe the proceedings can do so from any location and are not prevented from joining the hearing by issues of mobility or other obligations. He submitted that a video hearing is accessible to anyone that wishes to attend. Mr. Flowers proffered that other solutions can be provided to individuals that are unable to join the hearing for technical reasons and he suggested that the Town could coordinate a live stream to be viewed at the Town hall or other appropriate venue. There are other solutions available and Mr. Flowers submitted that these should be explored before an in-person event should be considered.

35Mr. Flowers referenced the OLT Act and the Rules and cited that the Tribunal shall consider matters that come before it in a fair, just, expeditious, and cost-effective manner. In consideration of fair and just, Mr. Flowers proffered that no Party will be unfairly prejudiced by the video hearing. The individuals that wish to observe the proceedings will be able to watch the proceedings on a video hearing and he noted that the observers are not witnesses testifying or making submissions before the Tribunal. In respect to expeditiousness, Mr. Flowers submitted that an in-person hearing will not make the proceedings any faster and proffered that a video hearing is in fact more efficient. He offered the example that electronic documents can be viewed by all persons at the same time through screen-sharing technology and this results in less confusion and ensures a certainty that all persons observing the proceedings are reviewing the correct documents being referenced. He observed that this has not always been the case in an in-person hearing. Mr. Flowers submitted that an in-person hearing will require counsel and witnesses to travel to Niagara-on-the-Lake and this will result in significant additional costs for all Parties. The video hearing enables all witnesses to participate for the entire duration of the eight-week hearing from any location resulting in a more cost-effective format.

36Ms. Lyons responded that there are a significant number of elderly residents in Niagara-on-the-Lake that have an interest in these proceedings and computer proficiency can be challenging for this segment of the population. The convenience of the video hearing, as proffered by Mr. Flowers, must be cautiously considered when applied to elderly individuals. Ms. Lyons submitted that an in-person hearing will not prevent the use of electronic documents and the efficiencies of the video hearing process described by Mr. Flowers and it should not overshadow the access that an in-person hearing can afford those that are not accustomed to or comfortable with the video hearing format.

37In consideration of the request, the Tribunal reviewed the OLT Act and the Rules starting at s.12(2) of the OLT Act which states:

The Tribunal shall, in respect of each proceeding, adopt any practices and procedures provided for in the rules or that are otherwise available to the Tribunal that, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings.

38Section 12(2) directs the Tribunal, through the use of the word “shall”, to adopt practices or procedures for its proceedings, the purpose of which is the resolution of the merits of the matter in the proceeding before the Tribunal. In consideration of such practices and procedures, the Tribunal must determine if the practices and procedures offer the best (emphasis added) opportunity for a fair, just, and expeditious resolution of the merits of the proceeding.

39Rule 20 is one such Rule that the Tribunal has adopted, and which addresses electronic hearings. Rule 20.1 states:

The Tribunal may hold a hearing event by electronic hearing, such as by teleconference or videoconference, for the determination of any issue in the proceeding. Where the Tribunal directs that a hearing event be held by electronic hearing, the Tribunal may direct a party to make the necessary arrangements and to give notice of those arrangements to the Tribunal and other parties.

40Rules 20.2, 20.3, and 20.4 provide a process for a Party to object to a hearing event being held as an electronic hearing. The Tribunal notes that SORE, a Party to these proceedings, has not filed an objection to the electronic hearing. SORE has, however, requested that the Tribunal consider conducting the merit hearing scheduled for this proceeding to be conducted in person. This is a distinction that the Tribunal notes as important as Rule 20.2 requires that the objecting party set out the reasons why the electronic hearing is likely to cause the objecting party significant prejudice.

41SORE did not suggest nor contend that the video hearing would cause significant prejudice. The rationale provided included that the proceedings have attracted significant public interest in a community that has a notably older population. This group is generally not as proficient with computer technology and as such, accessing the video hearing format creates an obstacle to accessing the Tribunal proceedings. The Town has acknowledged this situation and has committed to making a venue for an in-person hearing available to ensure any resident that wants to attend the hearing is able to do so.

42Section 14 of the OLT Act states:

The Tribunal may direct that a hearing or any other step in a proceeding, including a case management conference, any other pre-hearing conference or an alternative dispute resolution process, be conducted in person, electronically, in writing or by a combination of any of them, as the Tribunal considers appropriate.

43Section 14 provides the Tribunal with the authority to determine the format of a hearing. Building on s.12(2), the Tribunal may then apply any hearing format it determines offers the best opportunity for a fair, just, and expeditious resolution of the merits of the proceeding.

44Rule 1.3 directs that the Rules shall be liberally interpreted and includes the consideration of cost-effectiveness in the resolution of the merits of the proceedings. Rule 1.3 states:

These Rules shall be liberally interpreted to offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceedings.

45The Tribunal notes that the focus of OLT Act and the Rules is directed at the proceedings and the parties and participants to such proceedings. The OLT Act and the Rules provide that the Tribunal may grant status as a party or a participant and do not specifically address observers or interested persons that are not parties or participants.

46The request for the hearing to be held in person centres around those individuals that are not Counsel, not witnesses, and not participants as provided for in the OLT Act or the Rules. The request is to accommodate those individuals who wish to observe the proceedings. This distinction is critical to this Member’s consideration.

47The Tribunal recognizes that public participation in the land use planning process in Ontario is contemplated and provided for in the Planning Act through the requirements of both the public consultation processes set out in the Planning Act and the powers of the Tribunal to grant party and participant status in planning and planning related Appeals under the Planning Act, the OLT Act and the Tribunal’s Rules. The facilitation of such participation by individual members of the public and organized resident association reflects the Tribunal’s administrative function to consider not just the interests of the immediate parties to a planning application or appeal, but the public interest at large.

48Acknowledging that the Tribunal has historically convened its proceedings in the community in which the matter relates, the evolution of the practices of the Tribunal required in response to the COVID-19 Pandemic were determined to offer the best opportunity for a fair, just, expeditious, and cost-effective resolution of the merits of the proceedings at that time and are still in effect.

49The Tribunal was not provided with any evidence, nor was it suggested by SORE or the Town, that the video hearing format does not provide a fair, just, expeditious, and cost-effective resolution of the merits of a proceeding. The Tribunal is being requested to alter its current practice of the video hearing format to accommodate a group of concerned citizens that are experiencing challenges in accessing the Tribunal hearing process through the electronic medium.

50The Tribunal is therefore left to consider this request to change the hearing format in the context of Rule 1.3. Is the request to hold the hearing in-person, as opposed to a video hearing, in the opinion of the Tribunal, going to offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the appeal? This Member acknowledges that the Tribunal is afforded considerable latitude in the exercise of its powers and is mindful of the balance which must be struck to ensure the intent of the OLT Act and further in Rule 1.3 is achieved.

51The Tribunal has considerable experience in conducting video hearings and in-person hearings and has created Rules to ensure fair and just hearings that are impartial and without favouritism or discrimination. The format will not impact this consideration and the Tribunal finds that either format can achieve a fair and just hearing.

52The Tribunal notes that while each hearing format provides its unique benefits, the institution of the video hearing format and the requisite processes that have been put in place around the video hearing format have resulted in considerable efficiencies. The access to digital documents and the ability to produce and share this information almost instantaneously is one of many examples of the efficiencies realized. The Tribunal acknowledges that there are technical solutions and applications which can be incorporated into an in-person hearing to realize many of these same efficiencies.

53The cost-effective considerations of an in-person hearing in contrast to a video hearing in this instance are where the Tribunal finds the greatest difference in hearing formats and finds that the best opportunity for a cost-effective hearing will not be realized with an in-person event. Each party in the proceedings will have different cost impacts resulting from the in-person hearing format. The scheduled eight-week hearing event will require that many of the counsel and the witnesses will have to travel to and potentially stay overnight for multiple nights incurring costs for their clients. The Town will incur costs in securing a venue for an eight-week duration to host the proceedings. These costs are not applicable in a video hearing format. The Town has acknowledged that there will be additional costs incurred in its offer to secure an appropriate venue and has indicated that they are prepared to accept these costs.

54The Tribunal heard no compelling reason to change the format from a video hearing that would suggest one format is better than the other in consideration of Rule 1.3 and the Tribunal finds that, on balance, convening the merit hearing by video, in this instance, will represent the best opportunity to achieve a fair, just, expeditious, and cost-effective resolution of the merits of the proceedings on balance and denies the request for an in-person hearing.

55In arriving at this determination, the Tribunal does find that the video hearing process has created the greatest accessibility to the Tribunal hearing process for observers possibly since its inception as the former Ontario Municipal Board. The current technology has provided the flexibility to share the Tribunal proceedings in a manner that has not previously existed. The Town and SORE have technical options and solutions available to them, an example of which could be setting up a venue for live streaming the proceedings, to offer additional opportunities for community members to observe the proceedings in addition to the video hearing format which will be utilized by the Tribunal. The Tribunal notes that should the Town or SORE wish to pursue a form of live streaming or broadcast for the hearing event, that Rule 22 applies and a request should be made to the Tribunal in advance of the hearing to secure authorization from the Tribunal.

ORDER

56THE TRIBUNAL ORDERS THAT Niagara Parks Commission and Blair and Brenda McArthur are granted Participant status in the appeals under Tribunal Case Nos.: OLT-22-003603, OLT-22-003604, and OLT-22-003605.

57AND THAT a further Case Management Conference shall be held on Friday, November 10, 2023, commencing at 10 a.m. as set out in paragraphs 25 through 28 inclusive of this Order.

58AND THAT the Procedural Order attached as Schedule 1 to this Order shall govern the proceedings leading up to and including the hearing of the merits in respect to these proceedings.

“David Brown”

DAVID BROWN

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.

SCHEDULE 1

ONTARIO LAND TRIBUNAL

PROCEDURAL ORDER

ISSUE DATE: OLT LEAD CASE NO. OLT-22-003603

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

Subject: Application to amend the Zoning By-law – Refusal or neglect 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 section 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description: To permit the development of a residential subdivision
Reference Number: 26T-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

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on Monday, March 25, 2024 at 10:00 a.m. at https://global.gotomeeting.com/join/656004293.

3. The parties’ initial estimation for the length of the hearing is 8 weeks, concluding on Friday, May 17, 2024. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see the attachment for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it. However, the Issues List may be subject to refinement, scoping and/or consolidation in advance of the Case Management Conference on November 10, 2023.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website (https://olt/gov.on.ca/tribuanls/lpat/).

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before Friday, October 27, 2023, and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is proposed to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before Friday, November 24, 2023, and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meetings, and if agreement is reached, the parties must prepare and file a Statement of Agreed Facts and issues with the OLT case co-ordinator on or before Friday, December 8, 2023.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below.

13. On or before Thursday, December 21, 2023, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before Thursday, December 21, 2023, a participant shall provide copies of their written participant statement to the other parties and the OLT case co-ordinator in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before Friday, February 23, 2024, the parties shall provide copies of their visual evidence to all of the other parties and the OLT case co-ordinator in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before Friday, February 9, 2024, and in accordance with paragraph 22 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Monday, March 11, 2024.

18. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing pursuant to the directions provided by the OLT case co-ordinator.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the other parties and the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday, February 23, 2024, with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filing shall be electronic, and in hard copy to the Tribunal if requested. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

24. On or before Friday, February 16, 2024, the parties shall confirm with the Tribunal if all of the reserved hearing dates are still required.

This Member is not seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date: _________________________________________________

TRIBUNAL REGISTER

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorization from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.

ATTACHMENT 1

PARTIES AND PARTICIPANTS

Parties

1. Solmar (Niagara 2) Inc.

Mark R. Flowers
DAVIES HOWE LLP
425 Adelaide Street, West, 10th Floor
Toronto, Ontario M5V 3C1
Tel: 416-263-4513
Email: markf@davieshowe.com

Sara J. Premi

SULLIVAN MAHONEY LLP

40 Queen Street, P.O. Box 1360

St. Catharines, Ontario L2R 6Z2

Tel: 905-688-8039
Email: sjpremi@sullivan-mahoney.com

2. Town of Niagara-on-the-Lake

Nancy Smith and Jessica De Marinis
TURKSTRA MAZZA ASSOCIATES

15 Bold Street

Hamilton, Ontario L8P 1T3

Tel: 905-529-3476 Ext. 2780 / Ext. 2240
Email: nsmith@tmalaw.ca / jdemarinis@tmalaw.ca

3. Save Our Rand Estate Inc.

Catherine A. Lyons
70 Montclair Avenue

Suite 205

Toronto, Ontario

M5P 1P7

Tel: 416-356-2561

Email: CatherineLyons1@outlook.com

4. Niagara Peninsula Conservation Authority
   (Party to OLT Case Nos. OLT-22-003603, OLT-22-003604 and OLT-22-003605)

Tim Duncan
FOGLER, RUBINOFF LLP

77 King Street West

Suite 3000, P.O. Box 95

TD Centre North Tower

Toronto, ON M5K 1G8

Tel: 416-941-8817
Email: tduncan@foglers.com

Participants

1. The Regional Municipality of Niagara

Scott Crocco, Regional Municipality of Niagara – scott.crocco@niagararegion.ca

2. The Niagara Parks Commission
   Neil Smiley, Fasken Martineau DuMoulin LLP – nsmiley@fasken.com

Steve Barnhart, Niagara Parks Commission – sbarnhart@niagaraparks.com

3. The Niagara Foundation

Gabor Takach – gabe@takachlaw.com

4. Friends of One Mile Creek

Michael Fox – creek@friendsofonemilecreek.org

5. The Niagara-on-the-Lake Conservancy

Gracia Janes – gracia.janes@bellnet.ca

6. POST (Preserve Our Special Town)

C. Tintinalli – celizabetht@cogeco.ca

7. Duff Roman

duff.roman@sympatico.ca

8. Brian Waters

2bgh2os@gmail.com

9. Daniel Kelly

dkweatherstone@gmail.com

10. Robert Bader

bader.robert@gmail.com

11. Chrys Kaloudis

chryskaloudis@gmail.com

12. Blair McArthur and Brenda McArthur
    Andrea Skinner and Matthew Helfand, Aird & Berlis LLP – askinner@airdberlis.com / mhelfand@airdberlis.com

ATTACHMENT 2

ISSUES LIST

NOTE: The identification of an issue on this list does not mean that all parties agree that the issue, or the manner in which it is expressed, is appropriate for or relevant to the proper determination of the appeals. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the hearing.

Issues List of Town of Niagara-on-the-Lake

1. Does the Proposed Development Conserve the Designated CULTURAL HERITAGE Attributes?

1.1 Is the proposed development consistent with the Provincial Policy Statement (2020), in particular, but not limited to, the following sections:

Part IV, Paragraph 7

Section 1.7.1(e)

Sections 2.6.1, 2.6.3, 2.6.4 and definitions

1.2 Does the proposed development conform to the Growth Plan, in particular, but not limited to, the following sections:

Section 4.2

1.3 Does the proposed development conform to the Niagara Region Official Plan (2014), in particular, but not limited to, the following Sections:

Chapter 10: Objective 10.C.1.1 and Policies 10.C.1.5, 10.C.2.1.1 and 10.C.2.1.5

Chapter 15: Definitions

1.4 Does the proposed development conform to the Town of Niagara-on-the-Lake Official Plan (July 17, 2017) in particular, but not limited to, the following policies:

Part 2, Section 6: Subsection 6.13

Part 4, Section 18: Subsections 18.2(1), (2), (3), (5) and (7), 18.3(4), 18.4(2), (3), (4), (5), (8), (9), (10) and (11) and 18.5

1.5 Have protected buildings been appropriately conserved?

1.6 Has the protected landscape been appropriately conserved?

1.7 Will existing grades be met and matched at the limit of the tree protection hoarding in order to conserve heritage given the proposed grading and servicing plans?

1.8 Have hydrogeological impacts on site, boundary and adjacent property trees been properly assessed in order to conserve heritage?

1.9 Have trees intended to be retained, including the protection zones, been properly identified on the landscape, removals, servicing and grading plans in order to conserve heritage?

1.10 Has the landscape plan included sufficient trees and other plantings to conserve the cultural heritage value and ensure succession for the surviving elements of the Dunington-Grubb designed landscape and mature tree cover?

1.11 Have archaeological sites been properly assessed to confirm developable area?

2. Does the Proposed Development Protect the Significant NATURAL HERITAGE Features?

2.1. Is the proposed development consistent with the Provincial Policy Statement (2020), in particular, but not limited to, the following sections:

Part IV, paragraph 7

Sections 2.1.1-2.1.5, 2.1.7, 2.1.8 and definitions

2.2 Does the proposed development conform to the Niagara Region Official Plan (2014), in particular, but not limited to, the following policies:

Chapter 7.A: Objectives 7.1, 7.3 and 7.5 and Policies 7.A.2, 7.A.3, 7.A.1.2, 7.A.6.1, 7.A.6.4, 7.A.6.5

Chapter 7.B: Objectives 7.B.1 and 7.B.2 and Policies 7.B.1.7, 7.B.1.11, 7.B.1.18-7.B.1.20, 7.B.2.1, 7.B.2.5, 7.B.5.21, 7.B.1.22, 7.B.1.24, 7.B.2.1, 7.B.2.2, 7.B.2.3, 7.B.2.4

Schedule C

Chapter 15: Definitions

2.3 Does the proposed development conform to the Town of Niagara-on-the-Lake Official Plan (July 17, 2017) in particular, but not limited to, the following policies:

Part 2, Section 6: Subsections 6.15 and 6.33

Part 4, Section 16: Subsections 16.1, 16.2(1), (2), (7), (8), and (9), 16.3.1, 16.3.2, 16.4 (3), (6), (8) and (9)

2.4 Does the proposed development protect and enhance the Environmental Conservation Area (ECA) features at the southwest corner and along the Heritage Trail?

2.5 In relocating the wetland from 200 John Street to 144 John Street, does the proposed development maintain/enhance the function of the Greenbelt Plan NHS (linkage enhancement) or does the proposed development improperly fragment the NHS?

2.6 Are enhancements or compensation plantings appropriate?

2.7 Is the grading information sufficient to assess impacts to boundary trees and trees/vegetation on adjacent properties?

2.8 Does the proposed development achieve the goals and objectives of the One Mile Creek Watershed Strategy (Aquafor Beech and LURA Consulting 2005)?

2.9 Should the wetlands and other ECA features be protected due to their relationship to the Greenbelt NHS (linkage enhancement)?

2.10 Has the ECA feature along the western boundary been sufficiently investigated for species at risk?

2.11 Has the impact of the proposed relocated wetlands on the designated heritage attributes at 144 John been properly assessed?

3. Can the Proposed Development be provided with appropriate INFRASTRUCTURE (based on private services)?

3.1 Is the proposed development consistent with the Provincial Policy Statement (2020), in particular, but not limited to, the following sections:

Section 1.1 (g)

Section 1.6: Policies 1.6.1, 1.6.4, 1.6.6, 1.6.6.2, 1.6.7, 1.6.7.1 and definitions

3.2 Does the proposed development conform to the Niagara Region Official Plan (2014), in particular, but not limited to, the following policies:

Policies 2.2, 2.3, 3.1, 6.2 and 6.5?

3.3 Does the proposed development conform to the Town of Niagara-on-the-Lake Official Plan (July 17, 2017) in particular, but not limited to, the following policies:

Part 2, Section 6: Subsections 6.26, 6.28, 6.30, 6A, 7.3 and 7.4

Part 4, Section 20: Subsections 20.2(1), (4), (5) 20.2.3, 20.2.4 and 20.3(2), (3) (5).

Primary Access

3.4 Has the proposed access been designed to conserve protected heritage attributes?

3.5 Does the proposed access improperly impact designated heritage attributes on adjacent lands?

3.6 Does the proposed access adversely impact boundary trees and, if so, has the consent of the adjacent owner been obtained?

3.7 Does the Arborist Report properly assess the construction impacts of the purposed culvert and retaining wall on trees?

3.8 Does the removal and replacement of up to 20m of existing riparian vegetation downstream of the culvert affect heritage attributes on 176 John Street East and, if so, has a heritage impact assessment considered these impacts?

3.9 Does the intersection of the Primary Access to John Street provide appropriate sight distance for vehicular—pedestrian intersection at John Street given the existing opening dimension in the wall along the John Street frontage?

3.10 Is appropriate pedestrian passageway provided along the Primary Access at John Street given the existing opening dimension in the wall along the John Street frontage?

3.11 What is the appropriate amount of visitor parking to accommodate residents’ guests and those using the parkland and viewing the conserved heritage attributes?

3.12 Do the private streets accommodate sufficient visitor parking in light of their implied Fire Route designation?

3.13 Do the streets accommodate sufficient sidewalk width, street lighting and visitor parking?

3.14 Should lots 1-5 have one street frontage with a boulevard between the street curb and lot line?

3.15 Do the streets implement the appropriate geometric design standards?

3.16 Have appropriate design standards for private laneway design been adopted to ensure vehicular access and egress can occur safely and efficiently? Have appropriate setbacks from private laneway limits been considered for garage elements that would require access to/from the private laneways?

3.17 Have the appropriate speed limits of 25 km/hr (streets) and 15 km/hr (laneways) been provided?

3.18 Has an appropriate form of internal traffic control been provided at all internal private street junctions?

3.19 Should a direct pedestrian connection from John Street to the private streets be provided?

3.20 Have appropriate snow storage or snow removal considerations been made within the development given the narrow ROWs, lot dimensions and driveway locations proposed?

3.21 What form of refuse, recycling, and organic waste collection services would be arranged for the development? Have appropriate provisions for same been made?

3.22 Should there be a connection to the existing pedestrian facilities on the north side of John Street?

3.23 Have the required parkland dedication requirements been met?

3.24 Does the Arborist Report:

3.24.1 properly identify species at risk or regionally significant/endangered proposed for removal including the Kentucky Coffee-Trees?

3.24.2 use a proper methodology to determine the drip line of trees?

3.24.3 appropriately use protection zones and extent of the tree injury as described by the International Society of Arborists?

3.24.4 properly identify protection hoardings, tree drip lines and tree protection zones to assess whether the proposed trees to be retained are adequately protected?

3.24.5 improperly group trees for removal instead of identifying trees with DBH over 12.5 cm facilitating heritage permit applications and tree replacement calculations?

3.25 Do the building designs, lot sizes and street layouts proposed appropriately relate to existing streetscapes i.e. the Old Town?

3.26 Do the proposed building designs and street layouts respect the design intent and components of the original estate layout?

3.27 Do the proposed “heritage-inspired features” and “heritage park” properly reflect the appropriate cultural heritage analysis?

Stormwater Management

3.28 Is it appropriate to locate a stormwater management pond outlet on adjacent lands at 144 John Street?

3.29 Will emergency overflows from the proposed stormwater management pond impact adjacent private lots?

3.30 Is the existing ditch within Blocks 86 and 87 sized to accommodate 100 year flows?

3.31 Can rear yard drainage along the rail trail be accommodated with the existing stone wall?

3.32 How are external flows from Greenbelt lands in south in excess of the proposed pipe capacity being accommodated?

3.33 Has the impact of taking existing sheet drainage and changing to a bio-swale/piped drainage system been assessed downstream within One Mile Creek?

3.34 Will hydraulic conditions in the proposed storm sewers require sump pumps to protect basements?

3.35 Have the storm and sanitary sewers been designed to provide appropriate cover?

3.36 Has the impact of the sediment trap outlets to the adjacent Heritage Trail vegetation been properly assessed?

3.37 How are overflows exiting the sediment traps being addressed?

3.38 Will overflows exiting the ESC pond to the emergency spillway impact adjacent private lots?

Sanitary

3.39 Is it appropriate to require all Offers and Agreements of Purchase and Sale or Lease to contain a clause indicating that servicing allocations will not be assigned until the plan is registered?

Emergency Access

3.40 Is it appropriate to require a residential sprinkler system and at what scale?

3.41 Is the proposed emergency access appropriate?

3.42 Has the proposed emergency access been designed with the appropriate turning radius and to meet loading standards (pavement design) for large emergency vehicles at all points along its length?

3.43 Does the proposed emergency access provide access at all times as required?

3.44 Does the proposed emergency access appropriately accommodate the wall on Charlotte Street?

3.45 Does the proposed emergency access appropriately interface with the light standard, curb drop, mail box, proposed heritage park and trees (66A Persian Walnut, approximate age 40 years, 79 White Oak, approximate age 175 years, 80 White Oak, approximate age 250 years, 81 Horsechestnut, approximate age 50 years)?

3.46 Are the appropriate Fire Route dimensions along all required Fire Routes throughout the development being provided and are the minimum distances to all residential or any other habitable buildings throughout the development being provided?

Transportation

3.47 Have the conditions associated with the west bound thru and left turn movements at the Niagara Parkway/Queens Parade – John Street E/Ricardo Street intersections been properly evaluated including a safety analysis to review accidents with the appropriate consideration of pedestrians and cyclists? If so, have the results of the intersection control assessment been properly implemented?

3.48 Have any junction control modifications been considered to assess trade-offs of the impact associated with a roundabout?

4. What is the role of the Proposed Development in terms of GROWTH MANAGEMENT and the PROVISION OF HOUSING?

4.1 Is the proposed development consistent with the Provincial Policy Statement (2020), in particular, but not limited to, the following sections:

Policies in Section 1.1.1a), b), c) and g)

Sections 1.1.3, 1.1.3.1, 1.1.3.2a) and b), 1.1.3.3, 1.1.3.4, 1.1.3.5, 1.1.3.6 and definitions

Policies in Section 1.4: 1.4.3 c), d), f) and definitions

4.2 Does the proposed development conform to the Growth Plan, in particular, but not limited to, the following policies:

Subsections 2.2, 2.2.1.4, 2.2.6 and 2.2.6.2

4.3 Does the proposed development conform to the Niagara Region Official Plan (2014), in particular, but not limited to, the following policies:

Chapter 4: Objectives 4.A.1.1, 4.A.1.2 and Policies 4.A.1.12, 4.B.2.3, 4.C.2.1a), d), h), i), j), 4.C.4.1, 4.C.4.2, and Table 4-1,

Chapter 11: Policies 11.A.1 and 11.A.2

Chapter 14: 14.I.2.1, 14.I.3.1

Chapter 15: Definitions

Schedule A

4.4 Does the proposed development conform to the Town of Niagara-on-the-Lake Official Plan (July 17, 2017) in particular, but not limited to, the following policies:

Policies in Part 2, Section 6A: Subsections 1, 2.4, 2.5, 3.1, 3.2, 3.3, 3.4, 4.1, 4.2, 4.3, and 4.4

5. Does the Proposed Development conform with policies for Residential Development and Land Use Compatibility?

5.1 Does the proposed development conform to the Greenbelt Plan, in particular but not limited to, the following policies:

Figures 8 and 9, Subsections 3.4.3 and 3.1.2.5

5.2 Does the proposed development conform to the Town of Niagara-on-the-Lake Official Plan (July 17, 2017) in particular, but not limited to, the following policies:

Part 2, Section 6: Subsection 6.9, 6.11, 6.12, 6.16, 6.22, and 6.23

Part 2, Section 6A: Subsection 4.3 and 4.6

Part 3, Section 9: Subsections 9.1, 9.2(3), (7) and (8), 9.3.1(1), 9.3.2(1) and (3), 9.4(4)

6. Does the Proposed Development satisfy the appliable PLANNING ACT tests not specifically referenced in other issues?

6.1 Section 2 – Provincial Interest: subsections a, b, c, d, f, h, j, l, n, o, p, q, r, and s?

6.2 Section 51(24) – Subdivision Criteria: subsections a, c, e, f, g, h, and m?

6.3 What role, if any, does the Regional Official Plan dated November 4, 2022 (Policies 2.2, 2.3.1, 3.1, 5.1.3, 6.2.2, and 6.5.1) play in determining the proposed development?

Issues List of the Niagara Peninsula Conservation Authority (NPCA)

1. Do the proposed official plan amendment (the "OPA") the zoning by-law amendment (the "ZBA") and Draft Plan of Subdivision (the "Subdivision") have regard for matters of provincial interest contained in subsections 2 (a), (c) and (o) of the Planning Act, R.S.O. 1990, c. P.13 (the "Planning Act")?

2. Are the OPA, ZBA and Subdivision consistent with the Provincial Policy Statement, 2020, including policy 3.1?

3. Is the subject property regulated pursuant to Ontario Regulation 155/06 and will the proposed development require the permission of NPCA pursuant thereto?

4. Do the OPA, ZBA and Subdivision demonstrate adequate regard for NPCA's policies and objectives for the Administration of Ontario Regulation 155/06 and the Planning Act, including:

5. Policy 4.0 Flooding Hazards, including policies 4.2.2 and 4.2.7 pertaining to permitted uses within a flood hazard;

6. Policy 8.0 Wetlands including policies 8.1.3 and 8.1.4 pertaining to defining the limits of a wetland and the area of influence, and policies 8.2.2.1, 8.2.2.8 and 8.2.3.5 pertaining to development within and adjacent to wetlands and wetland reconfiguration; and

7. Policy 9.0 Watercourses including policies 9.1.2 pertaining to the need for an EIS to define limits of a watercourse and required buffers, and 9.2.3 pertaining to watercourse alterations and policy 9.2.5 pertaining to watercourse buffer composition.

Issues List of Save Our Rand Estate Inc. (SORE)

1. Does the proposed development and do the proposed applications (Official Plan Amendment, Zoning By-law Amendment and Draft Plan of Subdivision) have regard for matters of Provincial interest in subsections 2 (a), (b), (c), (d), (f), (h), (j), (l), (n), (o), (p), (q), (r), (s) of the Planning Act?

2. Is the proposed development and are the proposed applications consistent with the Provincial Policy Statement (2020) as it relates to section 2.1 Natural Heritage, section 2.3 Agriculture, and section 2.6 Cultural Heritage and Archaeology.

3. Is the proposed development and are the proposed applications in conformity with the Growth Plan for the Greater Golden Horseshoe (2020) as amended, as it relates to Growth, Cultural and Natural Heritage Conservation? (Policies 1.2.1, 2.2.1, 2.2.2.3, 2.2.6.1, 3.2.2.3, 3.2.7.2, 4.2.1, 4.2.7, 4.2.10, 5.2.5)

4. Is the proposed development and are the proposed applications in conformity with the Greenbelt Plan, particularly sections 1.2.1, 1.2.2, 2.4, 3.1.2, 3.2, 3.3, 3.4, 4.2, 4.3, 4.4, 5.3?

5. Is the proposed development and are the proposed applications in conformity with Niagara Region Official Plan’s goals, objectives and policies of section 2.2 Regional Structure, section 2.3 Housing, section 3.1 The Natural Environment System, section 6.2 Urban Design, and section 6.5 Cultural Heritage?

6. Does the proposed development and do the proposed applications implement the policies of s.6.4, 6.9, 6.11, 6.13, 6.17, 6.18, 6.21, 6.22, 6.28, 6.29, 6.30(4), found in the Town’s Official Plan?

7. Does the proposed development and do the proposed applications address the goals and objectives of residential policies of section 9, in the Town’s Official Plan?

8. Does the proposed development and do the proposed applications conform to the heritage conservation policies within section 18 of the Town’s Official Plan?

9. Has the natural heritage system including natural heritage features, hazards and associated buffers been sufficiently delineated and protected in accordance with Section 16 of the Town Official Plan? In particular do the siting of the buildings, associated road/laneways and park areas provide adequate setbacks from natural heritage features to mitigate negative adverse impacts including impacts from construction and long-term maintenance?

10. Are existing trees, including boundary trees, adequately preserved and protected?

11. Does the proposed development and do the proposed applications address water/wastewater servicing and stormwater management in accordance with Region and Town Official Plan requirements?

12. Does the proposed development, including site preparation and construction activities, protect and conserve the cultural heritage buildings, structures and landscapes?

13. Do the proposed access locations conserve the cultural heritage features and landscapes? Have alternative access locations been properly considered? Is an access at 144/176 John Street East, or elsewhere, more appropriate and less impactful to the conservation of cultural heritage features and landscapes?

14. Do the proposed access locations negatively impact adjacent properties in relation to cultural heritage features and landscapes, natural heritage features, trees (including boundary trees), grading, drainage, noise, and traffic?

15. Are the gates at the proposed accesses within the boundaries of the subject properties? Can the proposed accesses be implemented by the applicant?

16. Is the proposed internal road network and lotting pattern appropriate?

17. Is the proposed development an appropriate level of intensification for the subject properties and surrounding area? Is the proposed development compatible with the character of the area?

18. Is the proposed Zoning By-law appropriate in relation to housing type, lot areas and frontages, setbacks, heights, driveway locations, coverage, landscaped open space and parking?

19. Is the proposed development in the public interest and does it represent good planning?

20. What role, if any does the Regional Official Plan dated November 4, 2022, play in determining the proposed development?

Growth & Intensification Policies: 2.2, 2.2.1.1, 2.2.2.6, 2.2.210, Table 2-2

Cultural Heritage: 6.5.1

NHS: policy 3.1.1, 3.1.2, 3.1.3, 3.1.4, 3.1.9, 3.1.10

Urban Design: Policy 6.2.1

Storm Drainage: policy 5.2.5

Any associated Schedule

21. What role, if any does the Town’s Official Plan adopted October 22, 2019, play in determining the proposed development?

Community Vision: 2.1.1

Growth Strategy Objectives: policy 2.4.2, 2.4.3.2

Community Structure: policy 2.2.1, 2.2.4

Framework for Development: policy 4.2

Intensification Strategy: section 4.5

Community Design: policy 4.8.1, 4.8.2

Residential Areas: policy 4.10.3

Site Specific Policies: policy 4.18.1 S4-24

Cultural Heritage Resources: policy 7.1, 7.2.3, 7.2.3.8

Any related Schedules

22. Heritage Matters

(a) Have impacts to designated heritage attributes on the subject properties been appropriately assessed?

(b) Have impacts to adjacent heritage properties been appropriately assessed?

(c) Have the impacts of proposed grading and swales on heritage attributes (on subject and adjacent properties) been appropriately assessed?

(d) Do the applicant’s heritage reports reflect an appropriate level of understanding of heritage attributes, and an appropriate level of analysis of impacts on those attributes (including evaluation of alternatives and mitigation measures)?

(e) Have protected buildings and structures been appropriately conserved?

(f) Has the protected landscape been appropriately conserved?

(g) Should Conservation Plans be required for all work impacting heritage attributes on the subject properties prior to the approval of the applications?

(h) Should redevelopment of 144, 176 and 200 John Street East, and 588 Charlotte Street, be considered holistically to ensure efficient infrastructure and access, and minimum impact on heritage attributes?

(i) Should Heritage Easement Agreements be required prior to approval for any development impacting heritage attributes on the subject properties?

(j) Should restoration and reinstatement of trees and landscape removed by the applicant be required as a condition of development?

(k) Is the landscape plan sufficient to conserve the cultural heritage value of the protected landscape?

(l) Should a long-term landscape management plan be developed as part of any required approvals to ensure the long-term stewardship of heritage attributes on the subject properties?

23. Urban Design

(a) Does the proposed built form, lotting, street and open space pattern have appropriate regard for the character of the area, including the Rand Estate and adjacent properties and neighbourhoods?

(b) Does the proposed built form, lotting, street and open space pattern have appropriate regard for the identified cultural and natural heritage resources, including buildings and landscape?

(c) Is the proposed mix of housing diverse and appropriate?

(d) Does the proposed street design have sufficient access to and separation from heritage structures, buildings and landscapes?

(e) Does the proposed active transportation network integrate natural and cultural resources and proposed parkland, and provide adequate separation from vehicular networks?

24. Grading, Servicing and Stormwater Management (SWM)

(a) Has the ownership of the new roads and infrastructure been clearly delineated, i.e. public vs private?

(b) Is the municipal water network adequately protected from backflow and unmetered usages?

(c) Does the Landscape Concept of the right-of-way boulevards allow for all required utilities and services including service connections to each unit?

(d) Have the utility providers signed-off on the proposed right-of-way cross section, location of the Joint-Use-Trench and the servicing strategy for the development?

(e) Do the sanitary and water service connections from the municipal main to the property line meet Town standards?

(f) Does the downstream sanitary analysis identify mitigation measures for pipe surcharging in the 5-year wet weather event?

(g) Does the Water Supply Analysis include a review of the municipal supply network and the effects of the development on the Town’s water supply system?

(h) Is adequate maintenance access provided for the proposed water and sanitary services to Lots 30, 31, and 64-69, with frontage to the Whistle Stop Walk?

(i) Are adequate hydrants and emergency access provided to meet OBC and Town fire fighting requirements, including the lots with no road frontage (Lots 64-69 fronting the Whistle Stop Walk)?

(j) Have all required easements been identified and accounted for (storm drainage, bioswales, utilities)?

(k) Do the infiltration facilities respect OBC clearances with respect to building foundations?

(l) Has adequate topographic survey been carried out to properly design the site grading to match existing at the property perimeter and heritage features to remain?

(m) Have the impacts on the boundary wall of the rear yard drainage been properly assessed?

(n) Has the impact on vegetation and the boundary wall of the proposed sediment trap outlets adjacent to the Heritage Trail drainage feature been properly assessed?

(o) Are tree protection zones for trees to remain respected within the grading and servicing design?

(p) Has the proponent applied the most contemporary guidance from the Province, Town and Region in planning its SWM system?

(q) Are the proposed source controls (Low Impact Development practices) appropriate and will they be able to be properly maintained, particularly those in private control?

(r) Has the applicant conducted a system-based assessment of the hydrologic impacts of the development (as related to flooding, erosion and water balance), considering the varying levels of proposed drainage controls and external runoff timing effects?

(s) Has a consistent modelling platform been used for assessing the hydrologic impacts of the site development and the floodplain assessment for the One Mile Creek?

(t) Has the erosion impact assessment properly considered the input from the proponent’s stream morphologist and has it been done to a contemporary standard applying an appropriate hydrologic assessment?

(u) Has the parametrization for the hydrologic model appropriately considered the permeability of local soils and the potential for future hardscaping by area residents?

(v) Has the Hydraulic Gradeline (HGL) assessment properly considered the potential for backwater effects from the proposed SWM pond operating levels, and their impact to the functionality of the proposed sewers and foundation drainage?

(w) Does the proposed SWM Plan address the needs of the area’s natural features which are reliant on a sustainable water supply?

(x) Has the proposed major overland flow system been properly assessed and designed so as to not cause impacts to future private properties?

(y) Has the proposed culvert at the entrance road from John Street East considered the requirements for hydraulics, stream stability and terrestrial movement?

25. Transportation

(a) The road rights-of-way do not meet Town standards for new subdivisions. Do the reduced widths provide adequate clearance for waste and emergency vehicle turning moves, as well as all services and utilities?

(b) The right-of-way width for the proposed laneways includes the pavement and curbs only. Are shallow utilities intended to be installed in easements?

(c) Have adequate daylight triangles been provided at intersections with municipal roads?

(d) Have the alternative road access options and associated intersections been adequately considered from operations, safety, accessibility, and appropriate standards perspectives?

(e) Have adjacent road network intersections operations been adequately addressed by the Traffic Impact Study?

(f) Are the inputs to the Traffic Impact Study appropriate and representative including baseline existing traffic volume data that was collected during the COVID pandemic and used for analysis and the background development assumptions applied?

(g) Are the findings and recommendations in the TIS related to the John Street and Queen’s Parade/Niagara Parkway intersection operations and proposed improvements appropriate?

(h) Is the proposed road access intersection to the development with John Street appropriate with its proximity to the driveway to the east?

(i) Has on-street parking provision and prohibition been appropriately addressed for the roads and laneways within the proposed development?

(j) Is the proposed road access intersection to the development with John Street appropriate, including its proximity to the driveway to the east, sight lines, and vehicular/pedestrian safety perspective?

(k) Can Emergency Services adequately access the subject properties using the identified Emergency Accesses?

(l) Has Emergency Services been appropriately addressed with respect to accessibility on the private roads potential narrowing due to on-street parking, and minimum proximity to buildings, given the reduced rights of way and laneways within the proposed development?

26. Urban-Agricultural Edge (UAE)

(a) Does the proposed development minimize conflict with current or future agricultural uses including through such measures as visual screening, physical barriers, set backs, separation distances, dense filtering vegetation and signage along the UAE?

27. Natural Heritage

Trees

(a) Are there adequate setbacks from proposed development to ensure that the boundary or off-property trees, including their root zones, are not injured as a result of development and construction?

(b) Is the proposed removal of tree #147, a Kentucky Coffee-tree (Gymnocladus dioicus) considered Threatened under the Endangered Species Act (ESA 2007) and protected under this legislation, consistent with the requirements of the Ministry of Environment, and Parks (MECP)? Has the MECP provided confirmation that the removal of this tree is permitted under the ESA?

(c) Have adequate tree protection measures been prescribed in order to ensure that all trees currently proposed for retention, and their root zones, will not be injured as a result of development and construction? Specifically, have trees #72 and #75, White Oak (Quercus glabra) trees estimated to be 125 years of age, been afforded suitable tree protection measures to ensure they will not be critically injured during construction? Each of these trees have been prescribed for preservation, although they appear to be largely overlapped by proposed residential lots and grade changes have been proposed within proximity to these trees, as shown in the Engineering Drawing prepared by Schaeffers, dated March 2, 2022.

(d) What is the extent (numbers of trees, species, etc.) of tree removals proposed from the “Group 1” feature in the Arborist Report (2022) to facilitate the proposed development residential lots and pedestrian walkway. At this time, the 2022 Arborist Report only states that tree preservation within this feature will be “partial” and no further details are provided to characterize the extent of this impact.

(e) Will the final grading plan be designed to ensure that the trees currently identified for retention, including for example, the Oak trees existing along the western boundary of the subject properties (#72, #73, & #75), will in fact be retained.

Ecological Linkage

(f) Has the potential for the panhandle area to serve as an ecological linkage been considered, particularly in relation to the existing onsite wetland and cultural woodland, Paradise Grove ANSI and woodland to the south of the subject properties?

Wetlands

(g) Why has the entirety of the deciduous swamp wetland within the southeast of the property been proposed for removal, despite the fact that residential components of the proposed development concept only overlap approximately half of this feature? Has justification been provided as to why there is no reasonable alternative to the proposed removal of this NPCA-regulated wetland, which is also considered a Key Hydrological Feature under the Greenbelt Plan (2017)?

(h) Is the proposed removal of this wetland consistent with the requirements of the NPCA and their relevant policies, and has the NPCA confirmed this?

(i) Is the removal of this wetland, and the proposal to construct development components within proximity to this wetland, consistent with the requirements of the Greenbelt Plan (2017) and Growth Plan (2020), including the requirement to establish a 30m VPZ to Key Hydrological Features outside of settlement areas?

Bats

(j) Have buildings within the property been assessed for the potential to provide bat maternity habitat, as recommended within the EIS Addendum? If so, was this assessment consistent with the most current MECP requirements and completed by a qualified biologist with experience conducting this form of survey, as well as with experience in identifying bats and how to adequately survey for their presence?

(k) Has the MECP provided confirmation as to whether or not the deciduous swamp wetland and cultural woodland are considered regulated SAR habitat, based on the findings of the 2020 EIS which include the identification of multiple suitable bat habitat trees in these areas?

(l) Has the MECP confirmed that the restriction of tree removals throughout the entirety of the deciduous swamp wetland to outside of the bat maternity roosting period (April 1 to September 30) will sufficiently mitigate impacts to Species at Risk (SAR) bats and their habitat?

(m) Are tree removals proposed within the cultural woodland feature, in which multiple suitable bat habitat trees were identified in the EIS?

Watercourses

(n) Has the potential for wildlife movement in relation to the proposed culvert crossing of One Mile Creek near John Street East been considered in the culvert design?

(o) Vegetation growth in late May could be substantial enough to restrict adequate observation of headwater drainage features. Has justification been provided for the late second headwater site visit?

(p) Has the extent of the NPCA-regulated area, including the floodplain, been appropriately identified on either side of the H1-S3 reach and is the identified buffer area consistent with Niagara-on-the-Lake Official Plan Policy 16.4 (10) b and NPCA policies?

Issues List of Solmar (Niagara 2) Inc.

Planning Instruments

1. If the proposed development is to be approved, what is the appropriate form and content of the Official Plan Amendment and Zoning By-law Amendment?

2. If the draft plan of subdivision is to be approved, what are the appropriate conditions of draft plan approval?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Solmar (Niagara 2) Inc. (“Applicant/Appellant”)

2. Town of Niagara-on-the-Lake (“Town”)

3. Niagara Peninsula Conservation Authority (“NPCA”)

4. Save Our Rand Estate Inc. (“SORE”)

5. Reply by Solmar (Niagara 2) Inc.