Solmar (Niagara 2) Inc. v. Niagara-on-the-Lake (Town), 2024 CanLII 7604

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 02, 2024

CASE NO(S).: OLT-22-003603 OLT-23-000494

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 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

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 subsection 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

PROCEEDING COMMENCED UNDER subsection 34.1(1) of the Ontario Heritage Act, R.S.O. 1990, c. O. 18

Applicant/Appellant: Solmar (Niagara 2) Inc.

Subject: Appeal of the Decision of Council on an application to demolish or remove a building or structure

Description: To demolish, remove and alter the property to facilitate the development of the proposed residential subdivision

Reference Number: HER-015-2022

Property Address: 200 John Street E.

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

OLT Case No.: OLT-23-000494

OLT Lead Case No.: OLT-23-000494

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

PROCEEDING COMMENCED UNDER subsection 33(9) of the Ontario Heritage Act, R.S.O. 1990, c. O. 18.

Applicant/Appellant: Solmar (Niagara 2) Inc.

Subject: Appeal of the Decision of Council on an application for the alteration of a designated property

Description: To demolish, remove and alter the property to facilitate the development of the proposed residential subdivision

Reference Number: HER-015-2022

Property Address: 200 John Street E.

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

OLT Case No.: OLT-23-000495

OLT Lead Case No.: OLT-23-000494

PROCEEDING COMMENCED UNDER subsection 33(9) of the Ontario Heritage Act, R.S.O. 1990, c.O. 18.

Applicant/Appellant: Solmar (Niagara 2) Inc.

Subject: Appeal of the Decision of Council on an application for the alteration of a designated property

Description: To demolish, remove and alter the property to facilitate the development of the proposed residential subdivision

Reference Number: HER-016-2022

Property Address: 588 Charlotte Street

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

OLT Case No.: OLT-23-000496

OLT Lead Case No.: OLT-23-000494

PROCEEDING COMMENCED UNDER subsection 34.1(1) of the Ontario Heritage Act, R.S.O. 1990, c.O. 18.

Applicant/Appellant: Solmar (Niagara 2) Inc.

Subject: Appeal of the Decision of Council on an application to demolish or remove a building or structure

Description: To demolish, remove and alter the property to facilitate the development of the proposed residential subdivision

Reference Number: HER-016-2022

Property Address: 588 Charlotte Street

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

OLT Case No.: OLT-23-000497

OLT Lead Case No.: OLT-23-000494

Heard: January 24, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

Solmar (Niagara 2) Inc.

Mark Flowers

Sara Premi

Town of Niagara-on-the-Lake

Nancy Smith

Jessica De Marinis

Save Our Rand Estate

Catherine Lyons

Niagara Peninsula Conservation Authority

Tim Duncan

MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID BROWN ON January 24, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is the fourth Case Management Conference (“CMC”) with respect to appeals filed by Solmar (Niagara 2) Inc. (“Appellant”) against the Town of Niagara-on-the-Lake (the “Town”).

2Three Appeals (the “Planning Appeals”) are filed 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 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 a Draft Plan of Subdivision (collectively, the “Planning Applications”) within the timeframes prescribed within the Planning Act.

3The remaining four Appeals (the “Heritage Appeals”) are filed pursuant to s. 33(10) and s. 34.1(4) of the Ontario Heritage Act, R.S.O. c. O. 18 (the “Heritage Act”) against decisions of the Town with respect to applications filed requesting approval to permit alterations to certain heritage attributes on the property and the demolition or removal of certain other heritage attributes on the lands owned by the Appellant (the “Heritage Applications”).

4The lands that are the subject of the Appeals are known municipally as 200 John Street East and 588 Charlotte Street (together, the “Subject Lands”). The Subject Lands were once part of a larger holding known locally as the Rand Estate and have been designated under the Heritage Act as properties with cultural heritage value or interest.

5The 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 recognize the cultural heritage landscape within the Subject Lands. The Heritage Applications were filed to address the heritage attributes on the Subject Lands as part of the proposed redevelopment.

6This CMC is being convened to update the Tribunal on the status of the Appeals after a meeting of the Town Council scheduled in December 2023 and to finalize procedural matters related to the merit hearing scheduled to commence on March 25, 2024.

CASE MANAGEMENT

7Mr. Flowers confirmed that the Town Council held a Special Council Meeting on December 15, 2023, to discuss the proposed development and the pending Tribunal hearing of the Appeals. The meeting was held in-camera and after the meeting, the Town released a Resolution that was adopted at the Special Council meeting. The Resolution outlined the provisional support for a redevelopment of the Subject Lands including addressing the cultural heritage conservation, stormwater management, servicing, wetlands protection, boundary tree preservation/protection, restricting the number of residential units to a maximum of 135 units, provision of a public park at the Charlotte Street access, and satisfactory conditions of Draft Plan of Subdivision Approval. Mr. Flowers further advised that the Resolution also included an offer from the Town to grant an easement over public lands to facilitate an access to Charlotte Street if requested by the Appellant.

8Mr. Flowers advised that the Appellant responded to the offer from the Town with a letter dated January 8, 2024, requesting a permanent easement over a portion of the Town-owned lands adjacent to Charlotte Street to facilitate an access for the proposed development.

9The Town Council held a further Special Council Meeting on January 12, 2024, at which time Council adopted a motion withdrawing their offer to grant an easement over Town-owned lands to facilitate an access to Charlotte Street.

10A revised concept plan was reviewed detailing the access to John Street East over what has been referred to as the “panhandle”, a mix of lot sizes and dwelling types providing for a range from 158 units to potentially 202 units. The concept maintains an emergency access out to Charlotte Street and identifies future parkland, open space, and wetlands.

11The Parties discussed the timing of filing the revised draft plan of subdivision, the revised draft Official Plan Amendment and the revised draft Zoning By-law Amendment. It was also determined that an updated or revised Functional Servicing Report should be submitted. The Tribunal directed the Appellant to provide the revised documents including a revised Functional Servicing Report to the Parties, the Participants, and the Tribunal on or before Friday, February 2, 2024.

12The Tribunal encouraged the Appellant to review the other supporting documents and materials being filed in support of their Planning Applications and Heritage Applications to determine if any substantive revisions are required as a result of the revised proposal. The Tribunal advised that it would be appropriate to revise and circulate those reports as soon as possible to ensure that the Town and Save Our Rand Estate (“SORE”) have an opportunity to review and respond facilitating an efficient hearing of the matters.

13The Tribunal was requested to change the status of Blair and Brenda McArthur (the “McArthurs”) from Participant to Party. A Party Status Request Form was received and marked as Exhibit 1. Tom Halinski attended on behalf of the McArthurs and advised that the McArthurs have a direct interest in the Appeals as their property is directly abutting the Subject Lands on the south-east side. Mr. Halinski explained that revisions to the concept plan for the proposed plan of subdivision show the elimination of a walkway and an increase in the number of lots and potential dwellings abutting the McArthurs’ property. Further, the confirmation that the John Street “panhandle” will be the only vehicular and servicing access to the Subject Lands creates a significant impact on the McArthurs property and the boundary trees along the panhandle. These changes have resulted in the McArthurs reconsidering their status before the Tribunal concerned that their interests might be better addressed as a Party to the proceedings.

14Mr. Halinski acknowledged that the Procedural Order (“PO”) has been issued and that certain dates have passed. He explained that the McArthurs will shelter under the issues raised by the Town and SORE, however, the McArthurs may wish to call a witness to address their specific concerns once they have had discussions with the other Parties.

15No objections to the request were raised by the Town and SORE and Niagara Peninsula Conservation Authority (the “NPCA”) took no position with the request.

16Mr. Flowers responded that while there is no dispute that the McArthurs have a direct interest in the matter, he questioned why they waited until the fourth CMC to request a change in their status. The concerns raised by the McArthurs in their request for Participant Status that was considered at the second CMC do not appear to have changed. The impact of the proposed development has not changed substantially with the revisions from the original proposal and the panhandle has been proposed as an access for the proposed redevelopment since the original submission. Mr. Flowers submitted that the PO has commenced and witness lists have been submitted and other dates described in the PO are imminent. The McArthurs request to call further witnesses will lengthen an already lengthy proceeding.

17The Tribunal considered the submissions from the McArthurs and the Appellant and granted Party Status to the McArthurs.

18Rule 8.2 of the Tribunal’s Rules of Practice and Procedure permits the Tribunal to add a party to a proceeding when that person satisfies any applicable legislative tests necessary to be a party provided their presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding.

19The Tribunal finds that the McArthurs meet the statutory tests and their presence is necessary to effectively and completely adjudicate on the issues in these proceedings.

20The Tribunal directs the McArthur’s to provide the name of any expert witness they intend to call on or before Wednesday, January 31, 2024. Further, the McArthurs shall include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is proposed to be qualified. In all other respects the PO for these proceedings, as revised and attached to the Order arising from these proceedings, shall apply.

21The Tribunal, in consideration of the timing of the request for status from the McArthurs and the date for the submission of Witness Lists, as required by paragraph 9 of the PO, directs that the McArthurs may not raise or introduce a new issue in the proceeding. As a non-appellant party as described in Tribunal Rule 8.3, the McArthurs may only participate in these appeals by sheltering under an existing issue and may participate fully in the proceeding to the extent that the issue remains in dispute.

22The McArthurs are further directed to confine their issues to those issues identified in their request for the change in status relating to: the change in the lotting pattern of the proposed development along the McArthurs rear property boundary, the access at John Street East, and the proposed road and servicing located within the “panhandle” portion of the Subject Property in the context of the road alignment, servicing location, and impact on boundary trees.

23The Tribunal noted that there was an inference that a Participant in a proceeding before the Tribunal may not be afforded the same fulsome consideration as would a Party. The Tribunal assured the Parties and the Participants in this proceeding that all Participant Statements are reviewed and considered by the Tribunal in its determination of the real questions in issue. Further, the Tribunal expects that any witnesses appearing before the Tribunal have appropriate regard and consideration of the issues raised by Participants.

24A revised PO was submitted for the Tribunal’s consideration in light of the Town Council meeting timing and the revised concept plan that was provided to the Parties. The Parties advised that they have agreed to push back certain dates to allow for sufficient review and response to materials being filed. Further, the Parties requested that the first week of the hearing be released and the merit hearing would then commence on Tuesday, April 2, 2024, for seven weeks.

25The Tribunal consented to the request to release the first week of the hearing and confirms that the hearing will commence on Tuesday, April 2, 2024, at 10 a.m. for seven weeks. By way of confirmation, the details of the meeting are set out in the following paragraphs.

26Parties 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:

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

27Parties 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

28Persons 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.

29Individuals 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.

30The Tribunal attached the revised PO as Schedule 1 to this Order. The PO shall govern the proceedings leading up to and including the hearing. The PO found at Schedule 1 of the Order shall replace all previously issued POs.

31The Member is not seized but may be spoken to, through the Case Coordinator, should any procedural issues arise.

“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

PROCEDURAL ORDER

OLT CASE NO(S).: OLT-22-003603 OLT-23-000494

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 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

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 subsection 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

PROCEEDING COMMENCED UNDER subsection 34.1(1) of the Ontario Heritage Act, R.S.O. 1990, c.O. 18

Applicant/Appellant: Solmar (Niagara 2) Inc.

Subject: Appeal of the Decision of Council on an application to demolish or remove a building or structure

Description: To demolish, remove and alter the property to facilitate the development of the proposed residential subdivision

Reference Number: HER-015-2022

Property Address: 200 John Street E.

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

OLT Case No.: OLT-23-000494

OLT Lead Case No.: OLT-23-000494

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

PROCEEDING COMMENCED UNDER subsection 33(9) of the Ontario Heritage Act, R.S.O. 1990, c.O. 18

Applicant/Appellant: Solmar (Niagara 2) Inc.

Subject: Appeal of the Decision of Council on an application for the alteration of a designated property

Description: To demolish, remove and alter the property to facilitate the development of the proposed residential subdivision

Reference Number: HER-015-2022

Property Address: 200 John Street E.

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

OLT Case No.: OLT-23-000495

OLT Lead Case No.: OLT-23-000494

PROCEEDING COMMENCED UNDER subsection 33(9) of the Ontario Heritage Act, R.S.O. 1990, c.O. 18

Applicant/Appellant: Solmar (Niagara 2) Inc.

Subject: Appeal of the Decision of Council on an application for the alteration of a designated property

Description: To demolish, remove and alter the property to facilitate the development of the proposed residential subdivision

Reference Number: HER-016-2022

Property Address: 588 Charlotte Street

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

OLT Case No.: OLT-23-000496

OLT Lead Case No.: OLT-23-000494

PROCEEDING COMMENCED UNDER subsection 34.1(1) of the Ontario Heritage Act, R.S.O. 1990, c.O. 18

Applicant/Appellant: Solmar (Niagara 2) Inc.

Subject: Appeal of the Decision of Council on an application to demolish or remove a building or structure

Description: To demolish, remove and alter the property to facilitate the development of the proposed residential subdivision

Reference Number: HER-016-2022

Property Address: 588 Charlotte Street

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

OLT Case No.: OLT-23-000497

OLT Lead Case No.: OLT-23-000494

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 Tuesday, April 2, 2024 at 10 a.m. at https://global.gotomeeting.com/join/656004293.

3. The parties’ initial estimation for the length of the hearing is 7 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 scoping if issues are resolved in advance of the hearing.

6. The order of evidence shall be as set out in Attachment 3 to this Order. However, parties in opposition may collectively choose to group witnesses by discipline. 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 Tuesday, December 19, 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, February 9, 2024 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, February 16, 2024.

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 Friday, February 23, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties, participants, and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before Friday, March 1, 2024, 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 Monday, March 25, 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 Monday, March 18, 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 25, 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 Tuesday, March 26, 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 Monday, February 26, 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.

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 authorisation 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 and Andrea M. Mannell

SULLIVAN MAHONEY LLP

40 Queen Street, P.O. Box 1360

St. Catharines, Ontario L2R 6Z2

Tel: 905-688-8039 / 905-688-9410 Email: sjpremi@sullivan-mahoney.com / amannell@sullivanmahoney.com

2. Town of Niagara-on-the-Lake

Nancy Smith and Jessica De Marinis and Anna Toumanians TMA LAW

25 Main Street West, Suite 2010

Hamilton, Ontario L8P 1H1

Tel: 905-529-3524 / 905-529-3476 Email: nsmith@tmalaw.ca / jdemarinis@tmalaw.ca / atoumanians@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

5. Blair McArthur and Brenda McArthur

Tom Halinski and David Neligan and Matthew Helfand AIRD & BERLIS LLP

Brookfield Place, 181 Bay Street, Suite 1800

Toronto, ON M5J 2T9

Tel: 416-865-7767 / 416-865-7751 / 416-865-4624 Email: thalinski@airdberlis.com / dneligan@airdberlis.com / mhelfand@airdberlis.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

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 adversely 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 (on-street) 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:

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

b. 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

c. 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. Should the development be comprehensively planned with respect to the future development and use of 144, 176, and 200 John Street East and 588 Charlotte Street as it relates to access, connectivity, cultural heritage, natural heritage, transportation and infrastructure?

12. 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?

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

14. 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?

15. 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?

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

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

18. 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?

19. 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?

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

21. 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

22. 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

23. 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?

24. 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?

25. 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?

26. 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?

27. 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, setbacks, separation distances, dense filtering vegetation and signage along the UAE?

28. 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?

Heritage Permit Application Appeal – 588 Charlotte Street

3. Does the Main Residence (former stables) have:

a. cultural heritage value or interest for its design or physical value;

b. cultural heritage value or interest for its historical or associative value; or

c. cultural heritage value or interest for its contextual value?

4. Do the two small sheds have:

a. cultural heritage value or interest for their design or physical value;

b. cultural heritage value or interest for their historical or associative value; or

c. cultural heritage value or interest for their contextual value?

5. Should the following portions of the Heritage Permit Application for 588 Charlotte Street that were refused by the Town be approved?

Specifically, should the Tribunal order that the Town consent to the following:

1. The proposed demolition of the Main Residence (former stables)?

2. The proposed demolition of the two small sheds?

3. The proposal to remove a portion of and widen the boundary wall opening and deconstruct and reconstruct the brick pillars at the entrance to 588 Charlotte?

4. If the proposed alterations/demolitions/removals in Issue 3 above are to be approved, what terms and conditions, if any, should be imposed by the Tribunal?

5. Did the Town have the authority to require the owner to undertake certain activities, or prohibit the owner from undertaking certain activities, under items 1.2.2 and 1.2.5 of its decision in respect of the Heritage Permit Application for 588 Charlotte Street, dated April 24, 2023, independent of any approved alteration, demolition or removal? If so, are such requirements or prohibitions appropriate?

Heritage Permit Application Appeal – 200 John Street East

8. Does the Calvin Rand Summer Home have:

a. cultural heritage value or interest for its design or physical value;

b. cultural heritage value or interest for its historical or associative value; or

c. cultural heritage value or interest for its contextual value?

9. Does the Carriage House have:

a. cultural heritage value or interest for its design or physical value;

b. cultural heritage value or interest for its historical or associative value; or

c. cultural heritage value or interest for its contextual value?

10. Are the following landscape features part of the “surviving elements of the Dunington-Grubb landscape” and, if not, is consent required under the Ontario Heritage Act to alter and/or remove such landscape features:

11. The trees and plantings within the panhandle on 200 John Street East?

12. The trees along the boundary wall on 200 John Street East?

13. The Axial Walkway?

14. The circular Mound Garden?

15. The trees adjacent to the Bath Pavilion?

16. The trees within the naturalized area surrounding the Whistle Stop?

17. Should the following portions of the Heritage Permit Application for 200 John Street that were refused by the Town be approved?

Specifically, should the Tribunal order that the Town consent to the following:

a. The proposal to remove trees and plantings and construct a road and pedestrian pathway through the panhandle on 200 John Street East?

b. The proposal to remove the two trees along the boundary wall on 200 John Street East?

c. The proposal to remove a portion of and widen the boundary wall opening and deconstruct and reconstruct the brick pillars at the entrance to 200 John Street East?

d. The proposal to construct a new Axial Walkway on 200 John Street East with a new alignment and the proposed commemoration plans for sunken gardens?

e. The proposal to remove the remains of the mound and construct a new mound garden in a new location?

f. The proposal to remove portions of the Swimming Pool Garden?

g. The proposed use of Corten Steel plaques and their locations as proposed in the Commemoration Plan for the Swimming Pool Garden?

h. The proposed removal of the concrete swimming pool structure?

i. The proposed removal of the footings from the original pergola in the Swimming Pool Garden?

j. The proposed construction of a contemporary pergola design?

k. The proposal to relocate the Bath Pavilion on 200 John Street East?

l. The proposed removal of trees adjacent to the Bath Pavilion?

m. The proposed removal of trees within the naturalized area surrounding the Whistle Stop?

n. The proposed demolition of the Calvin Rand Summer House?

o. The proposed demolition of the Carriage House?

p. The proposed removal and transplanting of the Rose of Sharon hedge and Oriental Cedar hedge northeast of the Carriage House?

12. If the proposed alterations/demolitions/removals in Issue 9 above are to be approved, what terms and conditions, if any, should be imposed by the Tribunal?

13. Did the Town have the authority to require the owner to undertake certain activities, or prohibit the owner from undertaking certain activities, under items 1.1.6, 1.1.8, 1.1.18 and 1.1.25 of its decision in respect of the Heritage Permit Application for 200 John Street East, dated April 24, 2023, independent of any approved alteration, demolition or removal? If so, are such requirements or prohibitions appropriate?

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. Blair and Brenda McArthur (“McArthur”)

6. Reply by Solmar (Niagara 2) Inc.