Judge dismisses Hummel lawsuit against town, appeal in the works

A provincial Superior Court judge has found no wrong-doing or bad faith in the current council’s passing of an interim control bylaw within days of taking office.

Developer Rainer Hummel of Hummel Properties was unsuccessful in his attempt to sue the Town of Niagara-on-the-Lake for $500,000, plus costs, for a bylaw that put a temporary stop to development. His application to the court said the bylaw was enacted illegally, and in bad faith. His lawsuit alleged the bylaw was not permitted under the planning act, that there was no review of planning policies undertaken — a necessary component of the hold on development — and that the timing of the bylaw approval, at a special council meeting two days after council members were sworn in after the 2018 election, meant it was discussed improperly and did not follow the proper process.

In his decision, Judge James Ramsay says most of the councillors elected in the fall of 2018 were new, and had campaigned against uncontrolled development of the Old Town, and in favour of updating the Official Plan. 

On Nov. 22, 2018, which was after the election but before the official swearing in of council on Dec. 3, Betty Disero asked staff to draft an interim control bylaw. After  the new council was sworn in, its inaugural meeting was adjourned to the next regular meeting of Dec. 17, “or to a special meeting at the call of the Lord Mayor,” the judge wrote in his decision.

 On Dec. 4, Disero, at the request of a majority of councillors, called a special meeting for Dec. 5. “Under the procedural bylaw,

that was short notice, but it was permitted for an emergency meeting,” Ramsay’s judgment says. 

At the meeting of Dec. 5, council resolved to commission a study of land use planning policies. Then it enacted the interim control bylaw, which  prohibited subdivision or condominium approval and zoning changes in the Old Town, Ramsay said in his judgement.

To the issue of the land use review, necessary to justify an interim control bylaw, Ramsay points to

public meetings and consultations that followed, along with the commissioning of a study of some of the City of Markham’s policies, and a report on them, all of which delayed the adopting of the Official Plan update, which was intended to be completed by April 1, 2019.

The summary of public submissions and the staff review of planning uses was discussed by council at its August 2019 meeting, the judgement says, and a draft Official Plan was approved. A revision was enacted by council in October, 2019, but would would not take effect until appeals were exhausted. During this time the interim control bylaw was freezing Old Town development, but was to expire on Dec. 5, 2019, and was extended until Nov. 11, 2020. The interim control bylaw was repealed before that, in June, 2020, after the Official Plan amendment went into effect.

Ramsay writes that because the bylaw was repealed, Hummel’s assertions that the Dec. 5 meeting of council and the interim control bylaw did not meet the requirements of the planning act are moot, and that the municipality is free from any liability because it did not act in bad faith. However he went on to address the issues of illegality, finding none, and bad faith, again finding no evidence of that.

The lord mayor was permitted to call the emergency council meeting, he says, and it was held in public, as required under the planning act. Although mention was made of the director of planning not being aware of any emergency, “that does not matter,” and “interim control is by its nature urgent,” Ramsay says. 

He goes on to explain the planning act allows for a bylaw to freeze development for a year, to protect the public interest in suitable zoning of the area being protected, and refers to the Hummel’s argument as “essentially that the town did not comply with a number of imaginary conditions related to enacting an interim control bylaw,” and that, further, his job is “not to burden the town with conditions that are not required by the statute” that regulates such a bylaw.

Issues in the application against the town include that there were two interim control bylaws at the same time, referring to one freezing cannabis-related land use, which Ramsay says was for a different purpose, and does not contravene legislation; and that the extension was illegal once the Official Plan amendment had been approved, which he also says is not restricted by the planning act.

He lists five different charges by Hummel that the town acted in bad faith — that the bylaw was driven by the lord mayor outside of the proper council process and not completed in public; that council failed to comply with its procedural bylaw regarding the announcement of the Dec. 5 meeting; that the meeting agenda was cryptic and misleading; that the bylaw was not supported by staff; and that the extension of the bylaw as enacted was without any basis and contrary to a staff recommendation.

Ramsay dismisses each of those allegations, and says, “on the whole of the evidence the case for bad faith strikes me as contrived.” He says that council wanted to preserve the Old Town’s heritage and considered the matter urgent, freezing the status quo, considering studies and public input, amending the Official Plan and then repealing the interim control bylaw. “That is essentially what they were supposed to do.”

Hummel and the town are to make written submissions to deal with costs.

Neither Hummel nor Lord Mayor Betty Disero would comment on the decision. Disero said Monday she and others at the town have been asked not to speak publicly until they have met with their lawyers. Hummel said, “pending the appeal, we are not able to comment at this time.”