An application to the court to quash the Town’s heritage designation process of four properties, three on John Street and one on Charlotte Street, has been rejected by the judge who heard the case last week.
After a two-day hearing before the Ontario Superior Court, Madame Justice Linda M. Walters wrote in her decision that she was asked to rule on four points, and set out the reasons for ruling against the Marotta group of Two Sisters Resort and Solmar Development Corp., who sought to stop the designation process initiated by the Town, on each of the four points.
The first issue she dealt with was that the application to stop the process was premature, as stated by the Town and SORE (Save Our Rand Estate), a group against a hotel development proposal, and supporting designation to preserve the properties from inappropriate development. SORE also had status at the hearing.
In dismissing the application, Judge Walters said she agreed stopping the process of designation is premature. The developer has also appealed the Town’s intention to designate his property to the Conservation Review Board, a tribunal that deals exclusively with disputes relating to the protection of heritage property. The CRB makes recommendations that council is obliged to consider, but has no authority to make a decision or order on the matter, and council has no obligation to accept the CRB recommendations.
Justice Walters said that once the CRB has presented its recommendations and council has made a decision, if the Marotta group is still unhappy, it can again appeal to the court.
Although she dismissed the application, she went on to discuss the reasons behind the request to stop the process of designation — that the Town failed to comply with the requirements of the Ontario Heritage Act when council approved its intention to designate and the associated bylaw; that the Town’s notice of its intention to designate the properties was vague in details; and that the Town was not conforming to its Official Plan.
To the question of whether the Town had met the requirements of the Ontario Heritage Act, she said, the Town followed the process as required.
To the issue of vagueness, Justice Walters says, “it is important to remember the applicants purchased a historical property for development purposes which they were aware would be subject to the protection of the OHA.”
Four expert heritage witnesses involved in the matter could not identify or agree on what is or is not covered, she said, but they did agree that although their opinions differ, “these are reasonable debates of professional opinions.” If the Marotta group wanted details of what it could do on the properties, it could have asked the Town, but didn’t, she said.
Further, the only vagueness specified by the developer refers to two of the heritage attributes, the mature trees and plantings, and any disagreement or debate can be put before the CRB, she said.
She also sided with the Town on the issue of the Official Plan, which has been amended to say the Randwood property should be designated at the site plan approval stage. The development application is still before Local Planning Appeal Tribunal and the designation bylaw has not been passed, so there has been no contravention of the Planning Act, said Justice Walters.
She left the issue of costs up to the three parties to discuss and said if there is no resolution, the parties are to provide her with written submissions, attaching any offers to settle, within 30 days.
In its online update, SORE says it’s “thrilled to report that the court application by the Marotta companies to overturn your elected council’s decision to proceed with designation of the Rand Estate under the Ontario Heritage Act has been completely rejected.”
A statement from Lord Mayor Betty Disero issued Monday said council is pleased with the decision and is waiting to hear from the Town’s legal team on appropriate next steps.
“Our legal team will report back to council once they have had an opportunity to fully review the decision,” said Disero.
Developer Benny Marotta referred questions to Gabrielle Totesau of the Community Agency communications company, who said Marotta and his legal team are discussing their options for moving forward, including the issue of legal costs.
Lyle Hall, spokesperson for SORE, said the Conservation Review Board has set a preparing date for early February.
SORE wants to “heartily thank our town council for sticking to their guns and defending the heritage of NOTL,” he said, “not just by allocating the budget necessary to fight inappropriate development in court, but also their work leading to adoption of our new Official Plan.”
Niagara-on-the-Lake has “something worth protecting, and this council is doing a good job of protecting it,” he said.