Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 28, 2025
CASE NO(S).: OLT-24-001054
PROCEEDING COMMENCED UNDER subsection 51(39) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 1736106 Ontario Inc.
Subject: Proposed Plan of Subdivision – Appealing conditions 10, 12, 40, and 41 imposed by the Approval Authority
Description: To permit the development of 7 blocks of 29 townhouses and a block for emergency access.
Reference Number: SUB-02-2024
Property Address: 0-14166 Hendershot Drive
Municipality/UT: Fort Erie/Niagara
OLT Case No.: OLT-24-001054
OLT Lead Case No.: OLT-24-001054
OLT Case Name: 1736106 Ontario Inc. v. Fort Erie (Town)
Heard: May 6, 2025 by video hearing
APPEARANCES:
Parties
Counsel/Representative*
1736106 Ontario Inc.
Andrew Ferri*
Town of Fort Erie
Sylvain Rouleua
Denise Baker (in absentia)
DECISION DELIVERED BY Kurtis Smith AND ORDER OF THE TRIBUNAL
Link to the Order
INTRODUCTION
11736106 Ontario Inc. (“Appellant”) appealed the conditions of Draft Plan of Subdivision (“DPS”) imposed by the Council of the Town of Fort Erie (“Town”) under s. 51 (39) of the Planning Act (“Act”) relating to the lands municipally known as 0-14166 Hendershot Drive (“Property”)
2More specially the Appellant challenged the following conditions:
I. Condition 10: A Transportation Impact Study be prepared and certified by a Professional Transportation Engineering Consultant, for review and approval, to the satisfaction of the Director, Infrastructure Services, and any recommendations noted, be implemented as part of the development of the Plan of Subdivision.
II. Condition 12: That a 1.50 metre (“m”) wide sidewalk shall be constructed, at 1 m off the street property line, along the south boulevard of Hendershot Drive, and toward the east to the extent of the existing sidewalk on Hendershot Drive.
III. Condition 41: That the Owner provide an addendum to the "Stage 1 and 2 Archaeological Assessment of 0-14166 Hendershot Drive Part of Lots 74, 75, 77, Registered Plan 75 Town of Fort Erie, Part of Lot 11, Concession 11 Niagara River, Geographic Township of Bertie, Regional Municipality of Niagara" Report prepared by Earthworks Archaeological Services Inc (dated July 20, 2022) evaluating the emergency access route (Block 8) in its totality anticipated to experience disturbance as a result of the proposed development.
IV. Condition 42: That the Owner receive acceptance from the Ministry of Citizenship and Multiculturalism (“MCM”) for the requested addendum to address the emergency access route corridor space. If the Ministry requires further archaeological work to be completed prior to acknowledging this report, these report(s) must also be submitted to and acknowledged by the Ministry, to the satisfaction of Niagara Region, prior to clearance of this condition. No demolition, grading, or other soil disturbances shall take place on the subject property prior to issuance of a letter from the MCM through Niagara Region, confirming that all archaeological resource concerns have met licensing and resource conservation requirements.
3Leading up to the hearing of the merits the Parties reached an agreement and executed minutes of settlement (“MOS”), Exhibit D1, D2. The MOS outlines that condition 10 be removed and the Appellant withdraws the appeal against condition 12, 41, and 42.
4The proposed DPS will create seven blocks for the creation of twenty-nine street townhouse dwellings. Two additional blocks are proposed for (1) 0.3 m reserve for the future extension of Hendershot Drive and (2) emergency access route to East Main Street.
5The Tribunal, based on Joesph M. Tomaino’s Curriculum Vitae and Acknowledgement of Experts Duty, qualified Mr. Tomaino to provide opinion evidence in the area of land use planning.
EVIDENCE
6Mr. Tomaino provided the tribunal with clear condensed oral and written evidence (Exhibit E) to conclude that except for condition 10 the conditions are reasonable and should be approved.
7Regarding Condition 10 he communicated that the Town did not require a Traffic Impact Study (“TIS”) as outlined in the pre-consultation agreement (Exhibit C) and furthermore the proposed DPS will generate less than 23 peak hour trips per day on Hendershot Drive. Therefore, concluding that a TIS is not required.
FINDINGS
8On the uncontested evidence of Mr. Tomaino, the Tribunal is satisfied that the DPS has regard for the criteria of s. 51 (24) of the Act and that the revised conditions are reasonable.
ORDER
9THE TRIBUNAL ORDERS THAT the appeal is allowed in part and the draft plan as set out in Attachment 1 is approved subject to the fulfillment of the conditions set out in Attachment 2 to this Order;
10AND THE TRIBUNAL ORDERS THAT pursuant to subsection 51(56.1) of the Planning Act (“Act”), the Town of Fort Erie shall have the authority to clear the conditions of draft plan approval and to administer final approval of the plan of subdivision for the purposes of subsection 51(58) of the Act. In the event that there are any difficulties implementing any of the conditions of draft plan approval, or if any changes are required to be made to the draft plan, the Tribunal may be spoken to.
“Kurtis Smith”
Kurtis Smith
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.
Attachment 1
Attachment 2