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Hummel, town back in court next week

R ainer Hummel, owner of the historic Phillips Estate, now for sale, is appealing the decision on his lawsuit against the town over the interim control bylaw which put a temporary hold on development in the Old Town in 2018.
Rainer Hummel, owner of the historic Phillips Estate, now for sale, is appealing the decision on his lawsuit against the town over the interim control bylaw which put a temporary hold on development in the Old Town in 2018. (File photo)

An appeal of a decision that was made a year ago by a provincial Superior Court justice will be heard in Toronto next Wednesday.

After hearing a lawsuit against the town by developer Rainer Hummel, Justice James Ramsay released his decision in April, 2021, saying there was no wrongdoing or bad faith when the current council passed two interim control bylaws in 2018, within days of taking office.

In his lawsuit against the town for damages and costs, Hummel said an interim control bylaw to temporarily put a hold on development was passed illegally and in bad faith, alleging it was not permitted under the planning act, and that there was no review of planning policies undertaken — a necessary component of the hold on development. His lawsuit also alleged that two interim control bylaws could not cover the same time period — council also passed one preventing cannabis operations as a land use. 

The timing of the bylaw approvals, at a special council meeting two days after council members were sworn in following the 2018 election, meant it was discussed improperly and did not follow the proper process,  Hummel alleged.

At a special council meeting called for Dec. 5, 2018, council resolved to commission a study of land use planning policies, Justice Ramsey explained in his decision.

Then council enacted the interim control bylaw, which  prohibited subdivision or condominium approval and zoning changes in the Old Town. Council later extended it, to continue protection against development until the Official Plan was approved and would take over the protection offered through the interim control bylaw, Ramsey said, finding no wrongdoing with the process.

Council’s freeze on cannabis-related land use at the same time, Ramsay said was for a different purpose, and did not contravene planning legislation. 

In the appeal to be held in provincial court before three judges next week, there will be no witnesses, and no new evidence heard, explains Justin Safayeni,  a Toronto lawyer with Stockwoods LLP, representing Hummel Properties.

What is new is the addition of the Ontario Home Builders’ Association and the Niagara Home Builders’ Association at the hearing, two organizations which asked to join the appeal on two questions of importance to the residential construction industry.

Those issues are whether two interim control bylaws can be consecutively applied to the same lands, despite the three-year cooling-off period set out in the planning act, and the scope of municipal powers regarding interim control bylaws, also as legislated under the planning act.

Appeal Court Judge J.A. Rouleau said the two organizations collectively represent more than 4,000 member companies which have built homes in over 500 communities across Ontario, with mandates to represent the position of home builders, developers, professional renovators, trade contractors.

In a March decision, Rouleau allowed them to join the appeal. The associations, the judge said, “regularly consult with the provincial government and with local governments, and appear before the Local Planning Appeal Tribunal to advance the interest of their members.”

In asking to join the appeal, the associations argued the decision on the interim bylaws “will have an impact well beyond the interest of the parties to the litigation.” They submit that “the decision could have significant consequences to the industry and those who work in it.”

Rouleau agreed the two issues the associations are addressing “transcend the interest of the parties,” and “can make a useful contribution to the appeal.”

The judge did not agree with the town’s opposition to the inclusion of the two associations, which was based on the assertion that “there is significant overlap” between the submissions the home builders associations want to make with that of Hummel Properties.

The judge also disagreed that allowing them to participate would result in significant additional time being spent on the appeal.

The decision that will result from next week’s appeal hearing will represent at least two of the three judges who will hear the case. 

In going forward with the appeal, Safayeni said, “I think it is fair to say that the appellant (Hummel) is deeply concerned about the consequences of the decision made by the Court below—both in terms of the broad powers it grants to municipalities to use the extraordinary power of interim control bylaws, and in terms of the standard it sets for acceptable municipal conduct when considering and passing interim control bylaws.”

The appeal of the lower court decision, he added, “provides an important chance to reconsider these issues. We are looking forward to that opportunity.”

In terms of the outcome, “the Court of Appeal could agree with the appellant [Hummel Properties] on all, some or none of the issues the appellant raises on the appeal,” he said.




About the Author: Penny Coles

Penny Coles is editor of Niagara-on-the-Lake Local
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