Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 02, 2026 CASE NO(S).: OLT-25-000293

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended Applicant and Appellant: JBrine 6179 Lundy's Lane GP Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit redevelopment of the subject property to a 10-storey mixed-use building with at-grade commercial uses and 144 residential units above grade Reference Number: AM-2023-032 Property Address: 6179 Lundy's Lane Municipality/UT: Niagara Falls/Niagara OLT Case No.: OLT-25-000293 OLT Lead Case No.: OLT-25-000293 OLT Case Name: JBrine 6179 Lundy’s Land GP Inc. v. Niagara Falls (City)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended Applicant and Appellant: JBrine 6179 Lundy's Lane GP Inc. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Reference Number: AM-2023-032 Property Address: 6179 Lundy's Lane Municipality/UT: Niagara Falls/Niagara OLT Case No.: OLT-25-000294 OLT Lead Case No.: OLT-25-000293

Heard: April 14, 2026 by video hearing

APPEARANCES:

Parties	Counsel
JBrine 6179 Lundy's Lane GP Inc.	Alex Ciccone
City of Niagara Falls	Paul DeMelo

MEMORANDUM OF DECISION DELIVERED BY GREGORY J. INGRAM AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1These appeal proceedings were launched by JBrine 6179 Lundy’s Lane GP Inc. (“Applicant/Appellant”) pursuant to sections 22(7) and 34(11) of the Planning Act (together “the Appeals”) against the City of Niagara Falls’ (“City”) failure to make a decision within the applicable statutory timeline regarding a redevelopment application for the property municipally known as 6179 Lundy’s Lane, Niagara Falls (“Subject Property”).

2The Subject Property is approximately .315 hectares (“ha”) in size with approximate frontage of 38.3 metres (“m”) and located near the intersection of Lundy’s Lane and Drummond Road. It currently has a two-storey motel and above ground paved parking.

3The original redevelopment applications sought approval of a 9-storey building with 131 units. The Applicant/Appellant, after receiving comments from city staff and a draft Heritage Impact Assessment Report dated April 2024 (“DHIA”), submitted a final application to redevelop the Subject Property with a 10-storey mixed use building, including at-grade commercial uses and 144 residential units above-grade with 147 residential parking spaces (1.02 per unit) located below ground and 12 spaces at grade (1 space per 25 m²) to support the commercial uses (“Proposed Development”).

4To facilitate the Proposed Development, the Applicant/Appellant seeks to amend the City’s Official Plan (“COP”) by modifying its current designation of “Tourist Commercial” with site specific provisions that permit a proposed height of 10 storeys when four are permitted and a maximum density of 453 units per ha where a maximum of 100 units per ha is permitted.

5Concurrently, it was requested that the City modify the “General Commercial (GC)” zoning designation in Zoning By-law 79-200 (“ZBL”) with the following site-specific changes for the Subject Property:

• To permit a minimum residential parking ratio of 1.02 spaces per unit while 1.4 spaces per unit is required;
• To permit the floor area of the dwelling units above grade to exceed 66% of the total floor area of the building; and
• To permit a maximum building height of greater than 12 metres.

6The area around the Subject Property includes Coronation Park to the north along with single, detached dwellings. To the South there is a church and cemetery, single detached dwellings and a service station. Immediately to the east is the Battleground Hotel Museum/Fralick’s Tavern (“Battleground Museum” or “6137 Lundy’s Lane” or “Heritage Property”), open public space known as Lundy’s Lane Battlefield Park and additional single detached dwellings. A single storey retail plaza is located to the west and fronts onto Drummond Road.

7The Battlefield Museum site is recognized as a National Historic Site by Parks Canada and provincially through an easement that conserves the “archaeological, aesthetic and scenic character and condition of the Property” held by the Ontario Heritage Trust (“OHT”) under Part II of the Ontario Heritage Act (“Heritage Act”). It is municipally designated under Part IV of the Ontario Heritage Act through Designation By-law 2014-97.

8The Applicant/Appellant submitted a final Heritage Impact Assessment Report (“HIA”) dated November 4, 2024, with the redevelopment application package. The City provides a Guide to Preparing Heritage Impact Assessments to assist with this requirement. In summary, the HIA identified three potential impacts that could occur during the construction phase, one potential traffic related impact and a fifth indicating that the Proposed Development “will detract from the visual context of the adjacent heritage property.”

9The HIA recommended mitigation measures including retaining a structural engineer to address any potential construction related impacts, preparing a Temporary Protection Plan during the Site Plan approval process and the completion of a Vibration Study and ongoing vibration impact monitoring during construction. The HIA indicated that visual effects could be minimized through landscape screening/buffering and through existing tall trees on the property line. It was also recommended that “concrete planters, fencing, wall…[be included] in the landscape plan to mitigate accidental vehicular impacts during and after demolition and [the] construction phase.” The DHIA identified a concern with the height of the Proposed Development based on the initial application requesting permission to construct a 9-storey building.

10The City issued a letter of complete application to the Applicant/Appellant on November 26, 2024.

11A Case Management Conference (“CMC”) was held regarding these appeals in September 2025 and the two Parties continued discussions and agreed to reduce the originally scheduled 5-day hearing to 4 days. An Affidavit of Service was marked as an exhibit at the CMC which provides satisfactory evidence that proper notice was provided.

PRIMARY ISSUE

12Does the Proposed Development’s size (height, scale, mass, density), design and location meet the pertinent provincial, regional and city land use planning and heritage polices while being compatible with the character of the area in general and with the significant heritage features directly adjacent to the property.

PARTY POSITIONS

13The Applicant/Appellant submits that the Proposed Development is appropriate in height, mass and scale for the Subject Property given the large lot size while also meeting the applicable planning and heritage tests. Further, it is argued that the Proposed Development is for tourist commercial which is compatible with existing permitted uses and the height requested is appropriate given that the City’s current height strategy is 26 years old and it will not impact the adjacent and nearby “heritage attributes.” It is also argued that transit already exists and could easily be increased to meet the demand from the increased density. Overall, it is the position of the Applicant/Appellant that this area would benefit from a project like this to support the intensification goals of the City and get development started in an area that has been stagnant for many years.

14The City, in contrast, submits that the Proposed Development is not appropriate due to its height, mass and scale and represents an “overbuild” of the Subject Property. The City contends that building height for the area has been contemplated by the applicable planning statutes, and the permitted four storey height allows for increased density while still being compatible and co-existing with the “low density, low-rise character”, open space and heritage character of the area. The City argues that the requested 10 storey height is a significant overbuild to achieve increased density that is not supported by planning or heritage policies and the relevant guidelines that support them. The City argues that the Proposed Development is not compatible with the area and therefore, does not represent good planning.

15The Tribunal has considered the oral and documented evidence provided, the submissions from counsel, and has had regard for the materials provided by the Applicant/Appellant and the City. The Tribunal denies the appeals for the reasons set out in the Decision below.

HEARING PROCEEDINGS

WITNESSES

16Four witnesses provided testimony under oath, and ten exhibits were entered into evidence.

17Counsel for the Applicant/Appellant called the following witnesses:

• Michael Barton, a Registered Professional Planner and member of the Ontario Planning Institute, was qualified by the Tribunal to provide opinion evidence in land use planning and urban design.
• Kayla Jonas-Galvin, a member of the Canadian Association of Heritage Professionals and a Registered Professional Planner, was qualified by the Tribunal to provide opinion evidence in the field of heritage planning.

18Counsel for the City called the following witnesses:

• Chris Roome, a Registered Professional Planner, was qualified by the Tribunal to provide opinion evidence in land use planning.
• Leah Wallace, a member of the Canadian Association of Heritage Professionals and a Registered Professional Planner, was qualified by the Tribunal to provide opinion evidence in the field of heritage planning.

EXHIBITS

19The following exhibits were relied upon as evidence in these proceedings:

• Exhibit 1: Joint Document Book
• Exhibit 2: Witness Statement – Michael Barton
• Exhibit 3: Reply Witness Statement – Michael Barton
• Exhibit 4: Acknowledgement of Expert Duty – Michael Barton
• Exhibit 5: Visual Evidence Book – Applicant/Appellant
• Exhibit 6: Witness Statement – Kayla Jonas-Galvin
• Exhibit 7: Witness Statement – Leah Wallace
• Exhibit 8: Witness Statement – Chris Roome
• Exhibit 9: Aerial Photo- Google- Lundy’s Lane Area
• Exhibit 10: Subject Property Identification Consolidation

LEGISLATION

20When adjudicating an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) appeals, the Tribunal must determine whether the proposed amendments:

a) are consistent with the Provincial Planning Statement, 2024 (“PPS”); b) represent good planning and in the public interest.

21For a ZBA appeal, the Tribunal must also determine whether the proposed amendment conforms with the ROP (City managed/administered) and the COP.

22Further, the Tribunal must have regard to the matters of provincial interest set out in section 2 of the Planning Act and have regard to the information and materials that City Council received in relation to the matters under section 2.1(2) of the Planning Act. Although these appeals relate to a non-decision of the City, the City does not support the Appeals before the Tribunal.

EVIDENCE/ANALYSIS/FINDINGS

23The following visual evidence was referred during these proceedings and provides an aerial view of the subject property within the broader area context:

Schedule A.2 (b) to the Official Plan – Drummunville Node (red dot area)– Height Strategy

• Schedule A.2 (b) to the Official Plan – Drummondville Node (red dot area)– Height Strategy
• Subject Property located at upper left side within blue circle

DESIGN AND HERITAGE

Exhibit 1, pg. 413: Proposed Development next to Fralick’s Tavern/Battlefield Museum

24Planner Barton, opined that the Proposed Development design is compatible with the surrounding area. He said that design changes from the original application increase compatibility and conformity with planning and heritage policies and guidelines by placing the building footprint in a similar location to the existing motel, adding step backs and by providing underground parking and a limited number of at level parking located to the eastern part of the property which also creates a transition/buffer area to the adjacent heritage property.

25Planner Barton, in describing the building itself, identified its “step down in height” design and 45-degree angular plane as measures to lessen the height impact for the area. He indicated that of the 144 units, 49% will be studio units and 65 will be one bedroom. He described these options as the “most affordable [units] in the proposal.” He indicated that he could not confirm whether the units would be rentals, for sale or the anticipated ownership/rental cost for each.

26There were several additional studies completed as part of the application process for the Proposed Development. Counsel for the City indicated that it took no issue with the shadow study, arborist report and indicated no concerns related to servicing or traffic reports. As a result, Planner Barton did not focus his oral comments on these reports.

27Planner Barton opined that the Applications are consistent with the urban design objectives of both the ROP and the COP. Specifically, sections 6.2.1.8 and 6.2.3 of the ROP and sections 3.14, 3.14.3, 3.14.1 and Part 2 – section 4.2.31.

28Planner Barton said that his urban design analysis deals with character, conformity and heritage. He opined that the Proposed Development is consistent with the various Official Plan policies, objectives, and guidelines related to Streetscape Character, Building Siting and Orientation, Transition and Buffering, Architectural Design, Preservation and Protection of Heritage Character, Parking and Access, Microclimatic Impact, Loading and Maintenance Amenity Areas

29Planner Barton proffers that the following building design aspects are key in conforming with the policies noted above:

• Building orientation toward Lundy’s Lane is consistent with the location of the existing building on the subject property while consisting of a varied roof line with incorporated balconies.
• Entrances are readily accessible to pedestrians from sidewalks on Lundy’s Lane while incorporating various colours and materials in the design with windows that help to animate the building facades.
• Hard and soft landscaping (street and trees) along the front of the property to provide a transition between private and public areas while also providing bicycle parking and street furniture between the building and the street.
• Spatial separation and buffering are provided between the building and the heritage property and a HIA has been completed which provides recommendations on how to complete the development and preserve and protect the heritage property.
• Step backs located at the southeast corner of the building reduce the height and massing adjacent to the Battlefield Museum from the 10-storey height.
• The proposed 10-storey height represents a transition down from the maximum 30 storey permitted in the core areas of the Tourist Commercial District
• Promotes the use of transit and active living through the proposed reduction in parking.
• Ground floor retail contributes to mixed-use character of Lundy’s Lane.

30Planner Barton indicated that there is not a specific definition for the concept of compatibility in the PPS or in the Official Plans. Barton proffers that PPS Policy 3.5 Land Use Compatibility while specifically focused on compatibility between major facilities and sensitive land uses, is helpful in this instance. This policy requires planning that will “minimize and mitigate any adverse effects” such as noise and odour to minimize risk to the public while ensuring the “long-term operational and economic viability of major facilities.” Planner Barton indicated that Section 3.5.2 also refers to minimizing and mitigating potential impacts.

31Planner Barton proffers that given the direction found in PPS Policy 3.5, assessing compatibility in the Official Plans is addressed through Land Use Compatibility Studies that measure the potential impacts such as noise, odour, vibration, traffic and “undesirable visual impacts” and in this case there are no lasting impacts.

32Planner Barton opines that “compatibility” does not mean “same as”, even if an adjacent building has “significantly greater height, massing and scale…if the design and site characteristics appropriately mitigate the potential for impacts generally regarded as being as associated with incompatibility.” Planner Barton said that the various studies required with the application confirm that the impacts referred to here related to compatibility are not a factor and that the measures identified in the HIA and orally identified by Heritage Planner Jonas-Galvin can be addressed during the construction phase of the Proposed Development.

33Planner Barton’s urban planning opinion is that the “site has been designed to provide an appropriate level of urban design within the existing and planned context, including mitigation of undesirable visual impacts.”

Design and Heritage

34The Heritage Planners’ testimony added insight into the Proposed Development’s design and its consistency/conformity with provincial, regional and municipal policies and guidelines given its proximity to the Battlefield Museum property and its attributes.

35Heritage Planner Jonas-Galvin provided a “senior review” of the HIA report and gave oral and written expert testimony based on its recommendations. Heritage Planner Wallace reviewed and provided expert testimony on the content of the HIA and analysis of the Proposed Development design in relation to the adjacent historic property. The Tribunal was also provided with a document authored by the Ontario Heritage Trust pertaining to the Appeals.

36Jonas-Galvin indicated that the HIA was informed by InfoSheet #5: Heritage Impact Assessments and Conservation Plans (MCM 2006) and A Guide to Preparing Heritage Impact Assessments in the City of Niagara Falls (City of Niagara Falls 2014). (beginning at pg. 1497, Exhibit 1). Jonas-Galvin explained that the “heritage designation applies to the entire property…[and that]…heritage attributes are the actual things that create value.”

37The Heritage Attributes of the Battlefield Museum property as identified by the Ontario Heritage Trust are related to its association with the victory of the War of 1812 and the Battle of Lundy’s Lane (1814), exterior and interior features that contribute to the architectural value, registered as a archaeological site with high “potential to reveal more information about the battle…” and other specific characteristics that contribute to the contextual value.

38Exterior features include a classic revival style façade with Greek temple appearance, one and a half storey gable roof with symmetrical one-storey wings, classical revival type gable and eave returns, open verandah adopted from the Regency period and two Greek Doric columns, wooden sash windows and shutters, clap boarding and trim, rubble stone whitewashed foundation, exterior wooden doors, cedar and lead coated copper roof.

39The Archaeological features include it being registered as an archaeological site with high historic potential to reveal more information about the battle. The characteristics that contribute to the contextual value include the ruins and footprints of former buildings, proximity to the battlefield cemetery and the site of the battle itself. It is a “park like” setting with a picket fence and gardens while there remains a “large downslope which provided shelter for British soldiers.” Proximity to the Coronation Park and a visual connection to the Drummond Hill Presbyterian Church and cemetery are also identified as giving contextual value to the property.

40In an Agreed Statement of Facts (Heritage), signed by Heritage Planners Kayla Jonas-Galvin and Leah Wallace, there is general agreement with the recommended mitigation measures identified in the HIA to reduce impact on the heritage property and that “there will not be any destruction of the significant heritage attributes listed in the designation bylaw.”

41Regarding design considerations, Heritage Planner Jonas-Galvin acknowledged that some planning modifications helped to reduce but not eliminate the visual impacts. Jonas-Galvin identified the step-back design, the plain unfluted Doric columns, the addition of red brick cladding and the recessed entryway as design features that help to reduce the visual impact.

42Heritage Planner Jonas-Galvin opined that the Proposed Development will not have a ‘direct’ impact on the Heritage Attributes and at the same time proffers that it will “detract from the visual context of the adjacent heritage property…and is incompatible in scale, massing and height.” Jonas-Galvin opined that the COP subsection 4.19, “shall be designed to not adversely impact on the character, quality or amenity associated with the heritage resource” is relevant here.

43Jonas-Galvin told the Tribunal that concerns with the height of the Proposed Development and its impact on the adjacent heritage attributes were expressed in the initial feedback to the Applicant/Appellant prior to final submission. Instead, the final proposed design reflected an increase in height instead of reducing the height as recommended. Heritage Planner Jonas-Galvin, under cross examination, said that “height, scale and massing create the problem with the proposal and the only way to address the impact on the heritage site is to make the building smaller.”

Heritage and Drummondville Node Policies

44The Drummondville Node Policies are pertinent to the analysis of the design of the Proposed Development and heritage property. Heritage Planner Jonas-Galvin said that subsection 3.14.3 provides direction related to massing, scale and height of development next to adjacent heritage properties. Section 3.14.3 states:

Development adjacent to and surrounding any significant heritage properties shall be designed so as not to adversely impact on the character, quality or amenity associated with the heritage resource. New development shall be of original design which reflects the character of the heritage buildings through consideration of massing, scale and, to a lesser degree, elements and details. Particularly in infill situations, new development, should respect the height, street wall setback and massing of adjacent heritage buildings and/or reintegrate those aspects of heritage design which have been lost in a particular street segment. (emphasis added)

45Jonas-Galvin said that the Proposed Development design does not comply with this policy. While she acknowledged that it represents original design it fails to conform with the requirement that new development “shall …not…adversely impact on the character, quality or amenity associated with the heritage resource [and] shall…[reflect] the character of the heritage buildings through consideration of massing, scale and, to a lesser degree, elements and details.” (emphasis added)

46Regarding infill situations, Jonas-Galvin proffers that the new development does not conform with the “should” requirement with “respect to height, street wall setback and massing of adjacent heritage buildings and/or reintegrate those aspects of heritage design which have been lost in a particular street segment.”

47Heritage Planner Wallace generally concurs with Heritage Planner Jonas-Galvin that the Drummondville Node policies are important in determining conformity of the proposed planning policy amendments with the COP but argues that the HIA does not provide enough analysis on how the Proposed Development design does not conform with these policies.

48Heritage Planner Wallace opines that the Proposed Development design does not conform with COP Urban Design policy 3.14.1 which requires new development to respect the existing built form of 2 to 3 storey buildings located at the sidewalk with little or no side yard and

all new buildings and developments shall be designed not to overwhelm… buildings listed on the Municipal Register of Heritage Properties…and open spaces….shall be designed…not to impede the views and vistas of natural or cultural heritage landscapes.

49Heritage Planner Wallace said that the HIA referred to this policy but did not address impacts on the adjacent heritage property’s cultural landscape of Battlefield Park which is “protected by an OHT easement and is therefore by definition a protected heritage property”.

Findings

50The Tribunal finds that the Proposed Development design does not conform with the City’s design related policies or have regard for design guidelines as directed by the COP.

51Design and the importance of compatibility is fulsomely contemplated by the City in its policies and guidelines and especially with respect to development adjacent to heritage sites. The Tribunal concurs with the analysis provided by the Heritage Planners that the overall size of the Proposed Development simply “overwhelms” the directly adjacent heritage building and site and does not conform with the intent of Policy 3.14.1.

52The Tribunal finds the OHT definition of Cultural Heritage Landscape helpful as it identifies a geographic area as one including “features such as buildings, structures, spaces, views, archaeological sites or natural elements that are valued together for their interrelationship, meaning or association.” The Tribunal concurs with Heritage Planner Wallace’s opinion that the consideration of impact on the building and the entire heritage site is appropriate as evidenced by its name “Battlefield Museum.” Policy 3.14 contemplates this when it says that new buildings and developments “shall be designed…not to impede the views and vistas of natural and cultural heritage landscapes.” The Proposed Development both “overwhelms” and “impedes” the Battlefield Museum property and therefore does not conform with the policy intent.

53The Tribunal recognizes that conformity doesn’t mean “same as” but given that the Proposed Development is directly adjacent to heritage attributes, the Tribunal prefers the opinions of the heritage experts who are consistent in their positions that the lack of compatibility results in non-conformity with building design policy requirements that reference height, scale and massing.

54The Tribunal finds that the Proposed Development does not conform with the design direction found in COP Policy 3.14.3. While the Applicant/Appellant attempts to adopt some of the heritage features of the Battlefield Museum by adding step backs, maintaining and adding vegetation, providing underground parking and locating the building’s footprint away from the adjacent heritage property, Fralick’s Tavern is made out of wood, its height is less than 2 storeys and as Heritage Planner Wallace said “the massing, height and street wall set back, do not work” and do not comply.”

LAND USE PLANNING

Planning Act, Section 2

55The Land Use Planning witnesses, Barton and Roome differ in their analysis regarding matters of Provincial Interest under Section 2 of the Planning Act pertaining to the OPA and ZBA. Both Planners provided analysis of subsections (d) “conservation of…features of significant architectural, cultural, historical, archaeological” (h) “orderly development of safe and healthy communities”, (j) “full range of housing, including affordable” and (r) “built form” which were identified on the issues list. Planner Roome also provided testimony related to subsections (l) “financial and economic well-being”, (m) “coordination of planning activities”, (n) ”resolution of planning conflicts”, (p) “appropriate location of growth and development” and (q) “sustainable,…support[s] public transit and…oriented to pedestrians.”

56Planner Barton opines that the Proposed Development has regard for Section 2:

• The built form of the building and site design mitigate any adverse visual impacts on the heritage property, does not impact “viability and appearance of existing trees” and the shadow study shows that there is no greater impact than if there was a four-storey building which is currently permitted.
• It is an appropriate location for intensification as transit service and pedestrian infrastructure exist, efficiently uses an underutilized property in an area that has seen “limited investment and redevelopment’, traffic and parking can be managed and there is no adverse noise or wind impacts.
• Provides a mix of housing types ranging from smaller (more affordable) to family sized units which increases the number and range of dwelling types in the Built-Up Area that area affordable “relative to existing conditions.”
• The property’s location in an intensification node that envisions “medium and high-rise development of up to 30 storeys” supports the Proposed Development plan for 10 storeys. It is compatible with the adjacent heritage property as a result of the high quality of design features.

57Planner Roome opines that the Proposed Development does not have regard for Section 2:

• The built form does not “adequately satisfy” the provisions of conservation as outlined in subsection (d). His opinion is informed by the Heritage Impact Assessment (“HIA”) which states that it is incompatible in height, scale and massing. While not opposed to an increase in height for this property, he said that the Proposed Development represents an overbuild in comparison to the character of the area and specifically being adjacent to a cultural heritage resource and open spaces.
• There is no former commitment to a full range of housing as no formal commitment to “affordable housing” options has been made through a Housing Impact Statement. The existence of smaller units does not automatically represent “affordable housing.”
• The built form (height and scale) does not provide an appropriate transition from public open space and cultural heritage site to the east of the Subject Property.

Heritage

58There is general agreement between the Heritage professionals with respect to the five impacts identified in the HIA related to the Heritage attributes of 6137 Lundy’s Lane. They differ in their analysis and opinions related to the fifth identified impact:

“The proposed development will detract from the visual context of the adjacent heritage property of 6137 Lundy’s Lane and it is incompatible in scale, massing and height relative to the adjacent designated property…”

59Heritage Planner Jonas-Galvin calls this impact “indirect” as there is no impact on the physical attributes and said that some design modifications were adopted in response to the HIA which “helped to reduce but not eliminate the impacts to the visual context.” Heritage Planner Jonas-Galvin opines that the completion of the HIA report which concludes that there is no direct impact on heritage attributes or features, demonstrates regard for section 2 of the Planning Act.

60Heritage Planner Wallace proffers that the Proposed Development does not have regard for the conservation of archaeological interest and does not provide a built form that is well-designed and encourages a sense of place as required by subsections (d) and (r) of Section 2 of the Act.

61Heritage Planner Wallace opines that without a Stage 2 Archaeological Survey; the archaeological interest is incomplete. Wallace also said that the height, mass and scale of the Proposed Development “do not conserve the attributes of the Fralick’s Tavern or the Battlefield Park” as stated in the HIA Impact evaluation on page 424 of Exhibit 1:

The proposed development will detract from the visual context of the adjacent heritage property of 6137 Lundy’s Lane, and it is incompatible in scale, massing and height relative to the adjacent designated property at 6137 Lundy’s Lane

62Heritage Planner Wallace also refers to the assessment completed by the OHT in forming their opinion with respect to Section 2 of the Act. The OHT letter indicates that there is “archaeological potential” on the Subject Property given its “involvement…in the Battle of Lundy’s Lane” and proximity to the officially recognized battlefield site which emphasizes, in their opinion, the need for a thorough investigation and monitoring during any redevelopment.

63The OHT concurs with the analysis in the HIA related to built form and states that “the proposed height would create an extremely abrupt transition from the Tavern and would loom over Fralick’s Tavern and the Lundy’s Lane National Historic Site.” The OHT further recommends that the Proposed Development, if approved, be located further to the west on the property and be restricted to the four storeys’ which are already permitted as 10 storey’s “makes it viscerally incompatible in scale with adjacent 1.5 storey heritage resource.”

Findings

64The Tribunal finds that the Proposed Development does not have regard for Section 2 of the Act. Specifically, the Tribunal concurs with the analysis that height, mass and scale of the Proposed Development significantly impact the architectural, cultural, historical and archaeological features of the Battlefield Museum property given its proximity to the Subject Property.

65The Tribunal finds the analysis of Heritage Planners Jonas-Galvin, Wallace and the statement from the OHT compelling with respect to significance of the visual impact on the open space itself along with the low-rise building as they are equally significant from a heritage perspective. Together, they complete the experience of someone visiting the site where such a significant battle in Canadian history occurred. The importance of the entire area is further suggested by the requirement that a Stage 2 Archeological assessment for the Subject Property itself be conducted as it also has “archeological potential.”.

PROVINCIAL PLANNING STATEMENT

66Planner Barton opines that the Proposed Development is consistent with chapter 2 Policies of the PPS listed in the Procedural Order (“PO”) along with Policy 3.5 Land Use Compatibility and 4.6 Cultural Heritage and Archaeology policies.

67Planner Barton opines that the policy amendments requested are consistent with these policies for the following reasons:

• Support complete communities by providing a range (size and cost) and mix of housing and transportation options while adding commercial uses to support and benefit future residents.
• Represents intensification on an underutilized property within an Intensification Node by adding a 10-storey building which plans for 30 storey buildings. The building can be compatible with the adjacent private and public realm.
• Supports growth in a Strategic Growth Area through redevelopment and is supported frequent transit which can be easily increased in frequency and along a major road.
• Compatible with adjacent properties by avoiding, mitigating or minimizing issues related to odour, noise, risks to public health.
• Consistent with Cultural Heritage and Archaeology policies as the Proposed Development conserves the existing structure, trees and outdoor amenity areas on the adjacent heritage property and there is no adverse impact associated with shadow, wind, noise, traffic or parking. Construction impacts can be mitigated appropriately.

68Planner Roome generally concurs with Planner Barton with respect to the Proposed Developments consistency with settlement and growth-related PPS policies, but their position differs with respect to the policies related to range of housing, compatibility, culture and heritage.

69Planner Roome proffers that the Proposed Development does not address the range of housing as it only confirms planned sizes of units and not their affordability.

70Planner Room also takes issue with the potential impact of the Proposed Development on the Battlefield Museum and opines that it is not consistent with PPS policy 4.6 Cultural Heritage and Archaeology. Planner Roome is largely reliant on the Heritage Planner’s testimony in adopting this position. It is his recommendation that a holding provision be applied to the Proposed Development until such time as the Stage 2 Archeological Assessment process is completed.

Finding

71The Tribunal finds that the testimony of both Planners related to consistency with the PPS is informative and relevant and confirm that the official plan policies related to develop and heritage provide the specificity required in determining this matter.

REGION OF NIAGARA OFFICIAL PLAN (managed by the City)

72Planner Barton opines that the Proposed Development conforms with the Section 2 (Growing Region) and Section 4 (Competitive Region) policies of the ROP as listed in the PO.

73Planner Barton argues that Section 2 conformity is achieved as the Proposed Development:

• Represents compact, compatible intensification in a locally identified intensification node (Drummondville Node) that supports transit and active modes of transportation.
• Includes a mix of uses (residential and non-residential) and a range of housing options which are supported by existing transit and services and compatible with adjacent properties, including heritage and the public realm.
• Conforms with policy 2.3 housing policies as it includes a mix of studio (70), 1- bedroom + den (65) and 2-bedroom+den (9) apartments which increases the number of affordable units in conjunction with larger units that are more family oriented.

74Planner Roome opines that the Proposed Development does not conform with the intent of the policies in Section 2 of the ROP.

75Planner Roome argues that the requirements of section 2.2.2.10 (b) are not met as it requires “intensification [that] provides an appropriate type and scale of development and ensures transition of built form to adjacent areas.” He proffers that construction of a 10-storey building does not provide meaningful transition to the 2 to 3 storey height of the Battlefield Museum and property.

76Planner Roome also contests the suggestion that the Proposed Development represents a mix of housing when “94%” of the proposed units are studio or one bedroom which does not represent a “diverse range of housing.” Planner Roome indicated that this policy refers to the need to follow local policies which he indicates encourage more family sized units and therefore this development does not represent the appropriate form of intensification envisioned by the ROP.

77Planner Roome also argues that the high percentage of small units encourages a “monoculture” that may exclude certain demographics instead of encouraging a balanced and inclusive community. Planner Roome contends that by not specifying the anticipated occupancy costs, the Proposed Development fails to confirm whether it will address the requirements for affordable or attainable housing.

78Planner Roome proffers that the Proposed Development does not conform with the land use compatibility required under section 4.2.4.2 as he says that the “10-storey scale is fundamentally out of character with the low-rise heritage context of the Drummondville Node.” Further, he contends that the lack of a graduated transition or compatible built form “effectively undermines the long-term character and economic function of this heritage-based node.”

Findings

79The Tribunal finds the Proposed Development does not conform with the ROP and prefers the position of Planner Roome with respect to the need for compatibility and the need for greater clarity to confirm that the Proposed Development is indeed accessible and inclusive.

80The Tribunal finds that the policies referred to here require greater specificity and attention to compatibility and accessibility than provided. Section 2.3.1.1 specifies that “affordable and attainable housing” will be planned for, yet the Applicant/Appellant did not satisfactorily confirm that this requirement will be met.

CITY OF NIAGARA OFFICIAL PLAN

81Planner Barton opines that the OPA requested is appropriate as a height strategy is not provided by the City, the height and density requested is compatible with the adjacent properties, public realm and surrounding area and therefore should be considered on its “individual and site-specific merits as directed by section 3.3” of the COP:

The extent of the Intensification Nodes and Corridors as shown on Schedule A-2 and the limits of the height strategies of Schedules A-2(a), A-2(b), A-2(c) and A-2(d) are not intended to be scaled but a guide whereby building heights shall be considered on each individual basis with regards to the character of surrounding development.

82Planner Barton explained that the COP does not “explicitly” identify Strategic Growth Areas but uses nodes and corridors to identify specific intensification areas. Planner Barton also contends that the policies and definition for Strategic Growth Areas from the PPS must be considered in concert with the COP.

83Planner Barton opines that COP policy support for the Proposed Development is clear in section 3.10 which “promotes and encourages residential intensification” in intensification nodes where the “potential for medium and high residential intensification” are supported with medium height being 9-12 storeys as per section 4.4.3 of the COP.

84Planner Barton argues that section 3.10 provides the policy direction for Intensification Nodes, and the Proposed Development conforms as it:

• “revitalizes and enhances” the quality of built form in the Drummondville Node and the Lundy’s Lane Tourism District and the 10-storey height represents a medium-rise development in an area that permits high-rise development up to 30 storeys.
• Provides an efficient use of land through added height while maintaining the Tourist Commercial designation
• Represents a gradation in height as planned for the Drummondville Node; 10 storeys to 30 storeys gradation
• Will not have shadow, traffic, parking, noise or wind impacts on adjacent properties or surrounding neighbourhood.

85Planner Barton opines that the Proposed development conforms with Section 3.14 as it will revitalize and improve the area of the Drummondville Node while conserving the existing heritage features and be compatible.

86Section 4.0 provides direction for Housing which Planner Barton proffers is supported by the Proposed Development. He contends that it will provide a variety of types and sizes of housing not currently available in this Node while being compatible with the surrounding built form character and in line with heights planned for in other areas of the Node.

87Planner Roome, in contrast, argues that the proposed amendments do not conform with the COP and specifically with policies related to height and transitions, density and the overall character in proximity to the Proposed Development. The Planner adopts the Heritage Trust statement that the “proposal’s 10 storey height makes it viscerally incompatible in scale with the adjacent 1.5 storey heritage resource, other proximate heritage resources, and the surrounding neighbourhood in general” and argues that the planning policies support this statement.

88Planner Roome acknowledges that the Intensification Nodes and Corridors shown in Schedule A of the COP provide a framework or “guide” for building height, but it is his position that section 3.3 clarifies that the intention is to “facilitate a context-sensitive approach rather than a rigid scale for maximum height.” In this case, the 10-storey building is a significant departure in height from the “low-to-mid rise fabric of the Drummondville Node…[and] is not justified [as an] “individual basis” exception, but rather an over-development that disregards the physical and cultural context of the site.”

89Planner Roome argues that the purpose of section 3.10 is to “provide long-term compatibility and co-existence of residential and non-residential uses.” Boosting the existing commercial and adding residential could be achieved in a “scaled back” built form that is compatible with the character of the area and meet the intent of this policy. Otherwise, the proposed height, mass and density are not compatible as expressed by the Heritage Planners and supported by the intent of this policy.

90Planner Roome opines that the specific criteria in sections 3.10 is helpful in assessing conformity of the Proposed Development. This section requires that height and density parameters be consistent with density parameters of the node yet in this case, 10 storeys are requested in an area where 4 storeys is the envisioned baseline (Section 3.13).

91Respecting the scale and massing of the surrounding area related to built form is a requirement outlined in section 3.13 and it is Planner Roome’s opinion that a “visual clash” exists between the large 10 storey building that fails to maintain the area’s unique sense of place as described by Heritage Planner Wallace.

92Planner Roome proffers that the Proposed Development does not conform with housing direction of Part 1, Section 4 of the COP. He argues that the inability of the Applicant/Appellant to demonstrate how the Proposed Development will provide a “full spectrum of housing options”, (i.e: affordable) indicates a lack of conformity with the intent of this policy. Goals 1 and 2 require a project to demonstrate how it will diversify the City’s housing supply and the references to unit size is not adequate to meet this requirement. While the Applicant/Appellant has provided a Housing Impact Statement, Planner Roome argues that it lacks the financial data to support the claim that the Proposed Development provides a range of housing options.

93Planner Roome opines that the Proposed Development does not conform with the future development policies of the Tourist Commercial area found in Section 4 of the COP as they require future development to “respect the built and natural heritage of the Tourist Area” and complement existing attractions. Planner Roome referred to the HIA report which indicated that the scale and modern materials of the Proposed Development do not compliment the historic character of the Drummondville Node but instead create a contrast that “erodes the area’s sense of place.”

94Planner Roome acknowledges that the Proposed Development functionally algins with the intent of Section 4.2.27 by providing a mixed-use development but does not conform with Section 3.9 in Part 1 of the Policy which states that tourist commercial redevelopment “may take the form…that capitalizes on and expands upon the existing tourism infrastructure” which it does not.

95Section 4.2.31 provides direction around residential development within the intensification corridor Satellite Districts which Planner Roome says the Proposed Development does not conform with. Specifically, it does not “provide the architectural step-down needed to integrate a high-density form into a historically sensitive community-serving node.”

FINDINGS

96The Tribunal finds that the Proposed Development does not conform with the intent of the COP and prefers the analysis of Planner Roome in this regard.

97The Tribunal finds that while tangible impacts are important in considering the impact of development on an adjacent property or area (noise, shadows, traffic, etc.) as identified in the Design Guidelines, they are just one component. The COP provides broader guidance regarding compatibility through more area specific policies such as in Intensification Nodes section 3.10 where phrases such as “consistent with”, “arranged in gradation”, “designed to be compatible”, and “ensure privacy and overall pleasant living environment” are found.

98The Tribunal finds section 3.13 also informative with its balanced guidance both in support of the development of “multiple use” buildings but not at the expense of the existing built form of adjacent properties. This section says that development “shall respect the existing built form of 4 storeys” and that “additional building height may be allocated with Schedule A-2(b).”

99The Tribunal finds that the height strategy provided by Schedule A-2(b) demonstrates that the City intentionally planned for gradually increasing heights across the Drummondville Node area with the greatest heights located well away from the Subject Property. The Proposed Development would insert a building that is twice the height planned for in this area and completely reset the policy supported planned growth for this area

100The Tribunal recognizes that section 3.13 indicates that increases in height may be contemplated through a ZBA for this area but finds the further direction in this section significant. The added provisions require “sufficient lot area and frontage”, “setbacks and separation distances….in character with adjacent properties to reduce impact,” and most significantly in this case that “the scale and massing…respects the surrounding built form.”

SUMMARY STATEMENT

101There is no dispute among the Parties that the Development Proposal in this case is located next to a significant property in Canadian history. It is also undisputed that new development is a good option for the Subject Property. Where the Parties differ is in their assessment of what is appropriate development firstly for this specific area of the City and secondly, appropriate development next to a nationally, provincially and locally recognized heritage site that is also supported by land use planning and heritage resources policy.

102In balancing the oral and written evidence along with counsel submissions the Tribunal finds that the Proposed Development, in its overall height, mass, density, and scale, does not conform with the planning policies as outlined in the findings for each section above. While it was suggested during the proceedings that the Proposed Development will address the planning objectives related to housing through increased intensification and employment opportunities, the polices and guidelines are clear that this cannot be achieved at any cost. The Proposed Development’s height alone would result in redefining the gradation of building heights contemplated by policy and does not conform with the general intent of the COP it seeks to amend. The COP, through its various policies, provides clarity related to development and impact and in this case, there is too much of each. The height, scale, mass and density of the Proposed Development is not consistent with the surrounding area of open spaces and low-rise buildings. At the same time, it is not compatible with the heritage site and would not preserve the “experience” of walking on an open space battlefield. It is not just the building that requires preservation as expressed by the Heritage experts, it is also the site of the battlefield itself and the open space experience it provides.

103The Tribunal finds that the OPA and ZBA do not have regard for s. 2 of the Act, are not consistent with the PPS, and do not represent good planning in the public interest. Moreover, the ZBA does not conform to the ROP and the COP.

ORDER

104THE TRIBUNAL ORDERS THAT

1. The appeal is dismissed and the requested amendment to the Official Plan for the City of Niagara Falls is refused; and,
2. The appeal is dismissed and the requested amendment to By-law 79-200 is refused.

“Gregory J. Ingram”

GREGORY J. INGRAM 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.