Ontario Land Tribunal

Tribunal ontarien de l’aménagement

du territoire

ISSUE DATE:

April 8, 2026

CASE NO.:

OLT-24-000450

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O.

1990, c. P.13, as amended

Applicant/Appellant:

Kevin and Sarah Dilts

Subject:

Application to amend the Zoning By-law – Refusal

Description:

To construct a new detached dwelling

Reference Number:

AM-2022-017

Property Address:

0 Montrose Road

Municipality/UT:

Niagara Falls/Niagara

OLT Case No.:

OLT-24-000450

OLT Case Name:

Dilts v. Niagara Falls (City)

BEFORE:

F. Lavoie ) Tuesday, the 17th

MEMBER )

) day of October, 2025

THIS MATTER, in respect of the lands at 0 Montrose Road (“Subject Property”) in the City of Niagara Falls (the “City”), having come for a public hearing on July 30, 2024 before the Ontario Land Tribunal (the “Tribunal”) and the Tribunal having issued a Decision on July 31, 2024; and

THE TRIBUNAL, having been advised by the Parties that a full uncontested settlement had been reached and minutes of settlement executed on October 14, 2025, on consent;

AND THE TRIBUNAL, having conducted a settlement hearing in writing;

AND THE TRIBUNAL, having read the materials filed, on consent of the Parties, including the affidavits of Michael Sullivan, MCIP, RPP, and Anne McDonald, BSc., EP, each hereby qualified by the Tribunal to give expert opinion evidence in land use planning and ecology, respectively, and the draft version of the Zoning By-Law Amendment attached as Attachment 1 to this Interim Order;

AND THE TRIBUNAL, having reviewed and accepted the uncontradicted land use planning opinion evidence of Mr. Sullivan, supported by Ms. McDonald’s opinion evidence in ecology where applicable, finds that:

(i) the settlement proposal facilitates the rezoning of a small portion of the Subject Property, identified through an Environmental Impact Study (“EIS”) prepared by LCA Environmental Consultants, as contemplated in policy

11.2.25 of the City Official Plan, to permit the construction of a new detached dwelling with associated private servicing by means of a cistern and septic sewage disposal system;

(ii) the settlement proposal is consistent with Provincial Planning Statement (“PPS”) policies 2.3.1.1, 4.1.5, 4.2, and 5.2.2, represents minor incremental growth outside a settlement area, with no negative impacts on the natural features or their ecological functions to the significant woodlands and significant wildlife habitat, with a tertiary septic system minimizing its impact and footprint, and located outside the floodplain associated with Tea Creek, respectively;

(iii) with respect to the Regional Official Plan, the single detached dwelling is a permitted use within an Agricultural zone and does not impact agricultural resources given the Subject Property’s current zoning of Open Space Private and Public Zone. The noted features above also conform with policies 7.6 and 11 of the City Official Plan, as well as policy 13.37.1.1 of same by the Applicant’s merger of two former testamentary devise lots;

AND THE TRIBUNAL having found on the basis of the foregoing, that the Zoning By-Law Amendment has regard for matters of Provincial Interest set out in s. 2 of the Planning Act, is consistent with the Provincial Planning Statement, 2024, conforms with the Niagara Regional Official Plan (2014), the City of Niagara Falls Official Plan (1993), such that it is good planning in the public interest;

NOW THEREFORE THE TRIBUNAL ORDERS THAT

1. The appeal is allowed in part, on an interim basis, contingent upon confirmation from the Parties that pre-requisite matter identified below in paragraph 2, and the Zoning By-Law Amendment set out in Attachment 1 to this Interim Order is hereby approved in principle.

2. The Tribunal will withhold the issuance of its Final Order until such time as the Tribunal has been advised by the Parties that:

a. The Parties have entered into a development agreement requiring the Applicants to comply with the mitigation plan, set out in Attachment 2.

3. The Panel Member will remain seized for the purpose of reviewing and approving the final drafts of the Zoning By-Law Amendment and the issuance of the Final Order.

4. If the Parties do not submit the final draft of the Zoning By-Law Amendment and provide confirmation that the contingent pre-requisite matter to the issuance of the Final Order set out in paragraph 2 above has been satisfied, and do not request the issuance of the Final Order by October 1, 2026, the Parties shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the draft Zoning By-Law Amendment and issuance of the Final Order by the Tribunal.

“Matthew D.J. Bryan”

MATTHEW D.J. BRYAN REGISTRAR

Ontario Land Tribunal

Website: 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

CITY OF NIAGARA FALLS

By-law No. 2025-115

A by-law to amend By-law No. 79-200, as amended by By-law No. 2025-102, to permit the construction of a detached dwelling on the Lands (AM-2022-017).

WHEREAS on March 19th, 2024, the Council of the City of Niagara Falls received and considered Report No. PBD-2024-10 and refused the application to amend the Zoning By-law to permit the construction of a detached dwelling on the Lands;

AND WHEREAS the Applicant appealed the decision of the Council of the City of Niagara Falls to the Ontario Land Tribunal on April 16th, 2024;

AND WHEREAS the Applicant and the City have reached an agreement to resolve the Appeal, and wish to reflect their agreement in Minutes of Settlement;

AND WHEREAS this by-law to amend By-law No. 79-200 forms part of the Minutes of Settlement;

AND WHEREAS all issues relating to the Appeal have been resolved and the Ontario Land Tribunal desires to amend By-law No. 79-200 accordingly.

NOW THEREFORE, AND PURSUANT TO THE PROVISIONS OF SECTION 34 OF THE PLANNING ACT, R.S.O. 1990, c.P.13, THE ONTARIO LAND TRIBUNAL ENACTS AS FOLLOWS:

1. The Lands that are the subject of and affected by the provisions of this by-law are described in Schedule 1 of this by-law and shall be referred to in this by-law as the “Lands”. Schedule 1 is a part of this by-law.

2. The Lands shall be identified as two parcels, known as Parcels A2-1303 and OSPP- 1.

3. The purpose of this by-law is to amend the provisions of By-law No. 79-200, to permit the use of the Lands in a manner that would otherwise be prohibited by that by-law. In the case of any conflict between a specific provision of this by-law and any existing provision of By-law No. 79-200, the provisions of this by-law are to prevail.

4. Notwithstanding any provision of By-law No. 79-200 to the contrary, the following uses and regulations shall be the permitted uses and regulations governing the permitted uses on and of the Lands.

5. The permitted uses shall be:

(a) For Parcel A2-1303, the uses permitted in the A2 zone; and

(b) For Parcel OSPP-1, the uses permitted in the OSPP-1 zone.

6. For Parcel A2-1303, the regulations governing the permitted uses shall be:

(a) Minimum lot area 1 hectare

(b) Minimum front yard depth

(c) Minimum side yard width

(d) Minimum ground floor area

8.3 metres

1.6 metres none

(e) The balance of the regulations specified for an A2 use.

7. For Parcel OSPP-1, the regulations governing the permitted uses shall be the regulations specified for an OSPP-1 use.

8. All other applicable regulations set out in By-law No. 79-200 shall continue to apply to govern the permitted uses on the Lands, with all necessary changes in detail.

9. No person shall use the Lands for a use that is not a permitted use.

10. No person shall use the Lands in a manner that is contrary to the regulations.

11. The provisions of this by-law shall be shown on Sheet B11 of Schedule “A” of By- law No. 79-200, as amended by By-law No. 2025-102, by redesignating the Lands from OSPP-1 to A2 and numbered 1303, in part, and OSPP-1, in part.

12. Section 19 of By-law No. 79-200 is amended by adding thereto: 19.1.1303 Refer to By-law No. 2025-115.

Enacted and passed this day of , 2025.

OLT Case No. OLT-24-000450

ATTACHMENT 2

Montrose Road Mitigation Plan

This mitigation plan has been prepared for the proposed development and associated construction activities on Montrose Road in the City of Niagara Falls. The proposed development plan is shown in Figure 1, below.

Figure 2: Proposed development footprint

1 Site Characterization

The subject property contains natural areas, and no existing development. The natural area consists of a wetland community in the north portion of the property, associated with the riparian habitat along Tea Creek. The wetland was described as a silky dogwood deciduous thicket swamp with a small cattail meadow marsh inclusion near the road crossing. The southern half of the property, where the proposed building is located, is characterized as a Fresh-Moist Oak – Sugar Maple Deciduous forest. The canopy was dominated by Shagbark Hickory and Sugar Maple, and Oak trees.

2 Site Preparation

Prior to tree removal or grading of the site, the following mitigation measures should be implemented to ensure no negative impact to wildlife using the area.

Prior to any Ecologist present at time of installation of silt fencing.

Wildlife sweep prior to any brush clearing to support the installation of silt fencing

2.1 Tree Preservation Plan

As recommended in the EIS, and in accordance with policy 14.2.10 of the City of Niagara Falls Official Plan (1993), a Tree Preservation Plan should be prepared, prior to any tree removal on the subject property. The TPP should be prepared by an ISA certified arborist. The TPP should include an inventory and assessment of the trees on the subject property, identify the trees which will be impacted by the proposed development, and recommend specific measures to protect trees which can reasonably be preserved without affecting the safety to the future dwelling on the property.

All recommendations of the TPP should be implemented as appropriate prior to any tree removal, including installation of tree protection fencing and signage. The arborist should review and confirm that tree protection measures have been properly installed.

In accordance with the City of Niagara Falls Tree By-Law, two (2) replacement trees shall be planted for every tree removed to accommodate the development. Replacement trees should be planted on the subject property, where possible. If it is not possible to plant all replacement trees on the property, a cash-in-lieu payment can be made to the City, as determined by their current fee schedule.

2.2 Exclusion Fencing

Wildlife exclusion fencing shall be installed around the perimeter of the work area prior to tree removal of site grading. The wildlife exclusion fencing will also provide sediment and erosion control protection for the adjacent wetland and watercourse.

Installation of the wildlife exclusion fencing should incorporate the following recommendations:

• Exclusion fencing should be installed along the limit of work, as shown in the attached Figure 2 prior to any tree removal or site grading.

• The limit of work is generally defined by the wetland setback on the north side of the proposed development and the property boundary to the south. Exclusion fencing should extend to Montrose Road.

• Heavy duty silt fencing shall be installed per OPSD 219.130 to serve as wildlife exclusion fencing.

• An ecologist must be present during the installation of exclusion fencing to ensure that any brush removal required to accommodate installation does not harm or interfere with wildlife.

• The ecologist shall review the conditions of the exclusion fencing following installation to confirm that it has been properly installed.

• Photographic record of sediment fencing should be taken.

The exclusion fencing shall remain installed until construction is completed and vegetation is reinstated.

2.2 Wildlife Sweeps

Wildlife sweeps by a qualified ecologist should be completed following installation of the wildlife exclusion fencing, before tree removal, and periodically through the duration of construction.

The following recommendations are provided regarding wildlife sweeps:

• Wildlife sweeps should be completed by a qualified ecologist to relocate any wildlife species from within the construction area.

• The ecologist must apply for and obtain a Wildlife Scientific Collector’s Authorization (WSCA) obtained from the Ministry of Natural Resources (MNR) prior to any wildlife sweeps. The WSCA authorizes the individual to capture, temporarily possess, and/or release wildlife for educational or scientific purposes.

• Wildlife sweeps should take place during good weather, and when the ground is clear of snow.

• Any wildlife seen within the construction area should be safely collected and relocated to suitable habitat on the subject property, away from the construction, and outside of the exclusion fencing.

• At a minimum, wildlife sweeps should be completed:

o Immediately following installation of the exclusion fencing;

o Prior to tree removal activities (within 48 hours);

o Prior to site grading (within 48 hours); and

o Any time construction has stopped for longer than two weeks and prior to work starting again.

• The City of Niagara Falls should be notified prior to all wildlife sweeps, and a record of each sweep shall be provided to the City upon completion, noting any species identified actions taken. Records of all wildlife sweeps should be maintained and submitted to the MNR as necessary.

3 Construction

The ecologist should be on call during all construction activities, should any unintended interactions with wildlife occur.

3.1 Tree Removal

Tree removal should only occur between November 30 and April 1 to avoid the breeding period for migratory birds and the active period for Species at Risk (SAR) bats. Tree removal should be completed per the recommendations of the TPP and be overseen by an arborist.

4 Re-naturalization

It is anticipated that, following construction of the proposed dwelling and associated septic system, the area which had been cleared for construction will be graded and seeded to establish a yard that will be maintained as manicured grass. However, native plantings are recommended along the development limits to enhance and protect the newly exposed woodland edges.

4.1 Woodland Edge Planting

For the woodland edges, species have been selected to provide a range in size and flowering times for sustained resources for wildlife through the spring and summer. Shrubs include Wild Red Raspberry, Purple Flowering Raspberry, Chokeberry, Maple-leaved Viburnum, Grey Dogwood, and Spicebush.

A total of 76 shrubs and 7 deciduous trees are proposed for the woodland edge enhancement plantings. Table 1 provides a list of species to be used in the restoration of the woodland edge.

Table 1: Species proposed for restoration and enhancement.

COMMON NAME

LATIN NAME

QUANTITY

TREES

Sugar Maple

Acer saccharum

4

Shagbark Hickory

Carya ovata

3

TOTAL

7

SHRUBS

Grey Dogwood

Cornus racemosa

20

Chokeberry

Aronia melanocarpa

15

Spicebush

Lindera benzoin

15

Maple-leaved Viburnum

Viburnum acerifolium

6

Wild Red Raspberry

Rubus idaeus

10

Purple-flowering Raspberry

Rubus odoratus

10

TOTAL

76

Salvage of native plant material from the property should also be considered as a source of plant material for the edge restoration plantings. Subject to availability of suitable storage space, it is recommended that the landscaping contractor visit the site prior to vegetation removal and grading to identify and salvage healthy plant material to be stored until restoration plantings are

installed. All other plant material should be locally sourced from native plant suppliers to ensure they are suitably adapted to the region. The Niagara Peninsula Conservation Authority (NPCA) can provide a list of native plant suppliers that are local to the Niagara Region. Species and stock material may be substituted, subject to the review and approval of the ecologist.

However, where available, plant material will be sourced as follows:

• Deciduous Trees: 3- or 5-gallon pots

• Deciduous Shrubs: 1-gallon pots or power plugs

In addition to native trees and shrubs, a native woodland edge seed mix will be applied to the edge of the woodland. The application rate for the woodland edge mixture is 10lb per acre and the total area to be restored post-construction is approximately 0.1 acres.

On-site seed collection will be completed in the fall to augment the woodland seed mix with seeds sourced from the subject property. Seed will be cleaned and stored in a cool, dry place until restoration planting.

Proposed species composition of the woodland edge seed mix is provided in Table 2. The exact composition may vary between plant suppliers, and an ecologist should confirm that all species in the seed mix used for the restoration are native to the area.

Table 2: Species composition of proposed seed mixture to be used in the restoration planting.

Woodland Edge Seed Mixture

Botanical Name Common Name

Elymus hystrix Bottlebrush Grass

Elymus virginicus Virginia Wild Rye

Elymus canadensis Canada Wild Rye

Doellingeria umbellata Flat-topped White Aster

Symphyotrichum cordifolium Heart-leaved Aster

Eupatorium fistulosum Joe Pye Weed

Aster ericoides Heath Aster

Anemone virginiana Thimbleweed

Eupatorium rugosum White Snakeroot

Solidago flexicaulis Zig-zag Goldenrod

Solidago caesia Blue-stemmed Goldenrod

Details regarding warranty of plant material shall be provided by the contractor, including coverage, exclusions, and the landowners’ responsibilities.

4.2 Wildlife Enhancements

Bird boxes and bat houses may be installed to provide additional habitat features for wildlife known to occur in the area.

Three different bird nesting boxes are described below and construction plans downloaded from NestWatch.org (Cornell Lab of Ornithology) are attached The boxes will support nesting of different groups of species that are known to occur in the area.

Tufted Titmouse

Tufted Titmouse is a forest-dwelling bird that prefers deciduous or mixed forests. It is a common visitor of backyard bird feeders and will often nest in boxes. Tufted Titmice have large territories, so a single nest box location has been identified along the woodland edge.

Installation

• Attach the nest box to a pole between 5ft and 15ft above the ground.

• Position the nest box so the opening is facing away from the prevailing winds.

Other tips

• Bird feeders with sunflower seeds, peanuts, or suet will attract Tufted Titmouse year- round.

Northern Flicker

Northern Flicker typically nests in grasslands and open woodlands, where it forages on the ground for insects. They are cavity nesters that often reuse cavities from previous years and are often found in suburban areas.

Recommended location for the nest box for the Northern Flicker is in the southwest corner of the property, near the adjacent fallow fields and neighbouring rear yards.

Installation

• Attach the nest box to a pole, post, or tree between 6ft and 12ft above the ground.

• Position the nest box so the opening is facing south or east.

• Pack the box to the top with White Pine wood chips and replace them every year before April 1.

Other tips

• Create a nestling “ladder’ by adding ¼” deep parallel notches every ½” from floor to nest opening.

• Angle the box slightly forward to help nestlings climb out.

• Avoid treating lawns with chemicals.

Great Horned Owl

With a wide-ranging habitat, including forests, wetlands, grasslands, and urban areas, the Great Horned Owl is common in North America. Because their territory has a radius of 1.5miles, recommendation for one nest site in the forest, west of the dwelling has been identified.

Installation

• Place nests in a live hardwood tree between 15 and 45 feet above the ground.

• The trunk of the nest tree should have a minimum diameter of 12 inches.

• Install nest cones in the fall so owls can locate them by January.

Bat Houses

To offset impacts to loss of trees within bat habitat, it is recommended that a minimum of two bat houses be installed on the subject property. Construction plans for a four-chamber nursery bat house (batwatch.ca) are included in Appendix B. Alternatively, fully constructed bat houses can be purchased from a variety of retailers.

Nursery chambers provide a location for bats to roost during the day, and proper placement is important for temperature regulation. Bat houses should be placed in a south- or east-facing location where it receives 6-8 hours of sunlight. However, to avoid overheating during extreme temperatures, placing two bat houses back-to-back on the same structure allows bats to move between the roosts as necessary to regulate their body temperature (batwatch.ca).

Tips for success

• Install bat houses at least 3m above ground, attached to a pole or a building, away from tree branches that will create shade.

• Caulk the bat house to keep it dry and paint the outside black or dark brown with a water-based paint. Use untreated wood to avoid chemical exposure.

• If not used after two years, move the house to a new location.

4.3 Invasive Species Management

European Buckthorn (Rhamnus cathartica) was observed on the subject property, primarily concentrated along Tea Creek. It is identified as a noxious weed under the Weed Control Act (1990). Landowners are required by the Weed Control Act to remove noxious weeds from their property.

However, since the Buckthorn is located within a sensitive natural area (provincially significant wetland), additional damage to native plants must be avoided.

Following construction, the landowner will be educated on the identification of European Buckthorn and suitable options to manage Buckthorn in the long-term to avoid negative impacts to the native species. In general, the following management recommendations will be provided and/or demonstrated:

• Hand pulling or digging Buckthorn saplings can occur through most of the year, with optimal timing in the spring (April/May) or fall (October/November).

• Plant material cannot be composted or sent to a landfill. Berries should be removed and solarized in a black garbage bag for 1-3 weeks, then disposed of at the landfill.

• Branches without berries can be dried and burned.

To support the landowners’ efforts to manage Buckthorn, priority individuals can be identified and flagged or marked in the field.

5 Monitoring Plan

The planted vegetation should be monitored for a minimum period of three years to ensure establishment and adaptation to growing conditions on the site. It is recommended that trees and shrubs be planted in the fall, following construction and seed mixtures be applied the following spring after the last frost.

The monitoring plan outlined below shall be carried out by a qualified ecologist. Photographic records and documentation of any corrective actions will be recorded during each site inspection an annual monitoring report will be submitted to the City of Niagara Falls by November 30 of each monitoring year.

Year One Monitoring

1. Plantings should be inspected monthly during the growing season (May – October), and all potentially dead or damaged material should be noted and reported to the contractor responsible for installation.

2. Any replacement of plant material protected under warranty with the contractor should be completed in the fall, following the first growing season. If warranties will not cover replacement for any reason, the landowner may be required to replace material at additional costs.

Year Two Monitoring

1. At the beginning of the second growing season (April/May) seed mixtures should be augmented where bare soil persists.

2. Any invasive species present within the planted areas should be documented and removed immediately in accordance with best management practices.

3. At the end of the second growing season (fall) any tree support devices will be removed, including: T-posts, rodent guards, and other tree supports.

4. Plantings should be inspected once at the end of the second growing season to document survivability.

Year Three Monitoring

1. Plantings should be inspected once during the third growing season to document survivability.

2. Any invasive species present within the planted areas should continue to be managed as needed.

3. If plantings have not met survivability targets of at least 80%, adaptive management may be required. Adaptive management approach may include recommendations to plant different species, or soil testing and amendment as needed. Further monitoring may be recommended.

If you have any questions regarding the above information, please do not hesitate to contact the undersigned.

Sincerely,

Anne McDonald, B.Sc.

Ecological & Environmental Solutions

Appendix A

SWH and Mitigation Plan Mapping

.•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•.•.•.•..•..•..•..•..•..•..•..•..•..•..•..•..•..•..•..•..•..•..•..•..•..•..•..•..•..•..•..•..•..•..•..•..I

0 Montrose Road

SIGNIFICANT WILDLIFE HABITAT

Legend

D Property Parcels

.•.•.•.•.•.•.•.•.•.•.•.•.•.•.•.•.•.•.•.•.••.•.•.•.•.•.•.•.•.•.•.•..t

(Niagara Falls)

..I .•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•...•..

D Subject Property

fS1 Verified Provincially Significant Wetland (PSW)

[_=-J PSW 30m Setback

• Vernal Pools Amphibian Breeding SWH (VP + 230m)

Candidate and Confirmed SWH

• Sept 12, 2025

• ■ UTM NAD83 17T

• Scale: 1:3500

I..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• ..• .•

• •••• I

0 50 100 150 m

Notes:

Aerial Imagery: Google Satellite Hybrid Imagery, 2023.

Wetland: NPCA Open Data portal (Regulation_Wetlands_NPCA).

Vernal pools delineated through air

Amphibian Breeding SWH assumed present based on presence pf vernal pools.

LOCATION

/ 1□

20 30 40 m

Aerial Imagery: Google Satellite Hybrid Imagery, 2023.

Wetland: NPCA Open Data portal (Regulation_Wetlands_NPCA).

Legend

•roperty Parcels (Niagara Falls)

D ubject Property

fS1 erified Provincially Significant Wetland (PSW)

D Proposed Building

D Proposed Septic Deciduous Shrubs

@ Deciduous Trees

I

20 30 40 m

Aerial Imagery: Google Satellite Hybrid Imagery, 2023.

Wetland: NPCA Open Data portal (Regulation_Wetlands_NPCA).