An Ontario Land Tribunal hearing got underway this week over the proposed Rand Estates subdivision in Niagara-on-the-Lake.  

Anticipated to last 29 days, all involved parties, appearing virtually, sorted out procedural matters and housekeeping items before lawyers for all sides delivered opening statements.  

With status in the merit hearing are the Town of Niagara-on-the-Lake, Solmar Development, residents Blair and Brenda McArthur, and Save Our Rand Estate (SORE), a grassroots organization opposed to what Solmar, the developer, is proposing.  

Late last year, council voted to offer builder Benny Marotta and his company Solmar a portion of the Upper Canada Heritage Trail, to use it as access from Charlotte Street to his Rand subdivision, a project with plans to build more than 170 units.  

Solmar lawyers said they would take the town up on the town’s suggestion. But shortly after, council decided to withdraw consent for access over town-owned property, shutting down that possibility.

Although Solmar has also proposed the 200 John Street panhandle, the town has opposed that option. Mark Flowers, co-counsel for the development company said during Tuesday’s proceedings that an alternative access is possible, but the developer is still banking on its original plans to use the panhandle, and Solmar’s legal team will continue to pitch for the panhandle access. “We will provide evidence to demonstrate that access is appropriate,” he said.

Flowers listed about 20 people who will participate as expert witnesses on behalf of Solmar in the month-long procedure.  

Nancy Smith, lawyer for the town, argued in her opening statement that heritage buildings on the site, including homes, two sheds, and a pavilion, don’t need to be compromised for the residential development to go ahead. They can “all be conserved and all be protected,” she said.  

Smith anticipates the town and SORE will be providing “very different narratives” than what Solmar will be arguing, and that they will attempt to loosen “the tension between heritage conservation and optimizing intensification.”  

Catherine Lyons, representing SORE, agreed the development doesn’t have to be at the expense of natural heritage. 

Lyons, like Smith, noted that property owned by Two Sisters Resort, adjacent to the property to be developed, is owned by Benny Marotta. She said it’s “fiction” that Two Sisters is a company independent of Solmar.  

“Boundaries dissolve when it suits the applicant,” she said, opining that Two Sisters property could also provide access to the subdivision.

Lyons said SORE will aim show the importance in “conserving natural heritage and remaining mature trees.”  

Tom Halinski, lawyer for the McArthurs, who own 210 John St., said the point they hope to convey is the impact the proposed subdivision will have on them. 

Following opening statements, Paul Lowes from SGL Planning and Design was the first witness called by Solmar, and went over plans for the proposed subdivision, closing out the opening day.

Witnesses are expected to be heard for the next several weeks.  

The first witness called to give an expert opinion on the second day of the hearing was Noel Boucher, an ecologist with GEI Consulting, retained by developer Solmar Development in 2018 and the lead ecologist on plans since then and headed an environmental impact study.

“I’ve been in all aspects of the life of this file,” he explained. The focus of his evidence was related to natural heritage features such as wetlands, and one piece that “does not meet any criteria to be a component of the region’s natural heritage system.” It does, however, have some hydrological function, such as it being used by wildlife, and has the ability to retain surface water after precipitation events.  

Later in the day, taking questions from the tribunal vice-chair Scott Tousaw, Boucher said it would be his preference that a portion of wetland that sits within the Greenbelt on the property be retained.  

Cross-examination started Thursday in the hearing involved Boucher taking questions from the opposing parties.

SORE’s lawyer, Catherline Lyons, asked about a site visit that involved an analysis of aquatic features on the property, noting it was conducted in September. She asked if that time of year brings the best results of such work. He responded it could be completed any time of year, although it’s better when water is in a frozen state or snow covered.  

Lyons said some trees were removed from the development property before Boucher was retained by the developer in 2018, but he said he didn’t know about the tree removal.

Lyons also pointed to a legal battle in 2018 at 588 Charlotte St., which involved the developer removing trees without the local government’s consent.  

The lawyer for SORE referred to an addendum to an environmental impact study in 2022 that states trees were removed in 2018, ones that possibly contained habitats of endangered bat species.  

“They could have potentially been used by endangered bat species,” responded Boucher. “That was never confirmed through our work,” he added.  

David Nelegan, the lawyer representing the McArthurs, asked Boucher about the difference between natural heritage features and natural features, and whether he feels both terms have the same definition.

“I’ve interpreted it to be the same,” replied Boucher.  

Steve Davies, a geoscientist, was another Solmar witness who provided evidence and was cross-examined by other parties in the virtual hearing.  

Bill Buchanan, a master arborist brought to the hearing by Solmar, also provided his opinion about the trees. 

Called to testify on Friday, he and tree experts retained by opposing parties agreed a tree management plan, a condition of draft plan approval, must be completed.

“This is an enormous undertaking,” he said about the tree plan, especially that currently design approvals for the project have yet to be provided. 

There are Kentucky coffee trees in various states of health, which are considered a species at risk elsewhere in Ontario, but not in Niagara. “This was a concern for everybody,” he said.  

These trees, along with others on boundaries of the proposed development, will need to be assessed further when a tree management plan gets underway, he said.  

The coffee trees are not naturally occurring, and were planted there, he said, which is a “double whammy” in that they are not governed under the endangered species act locally.

The discussion of tree management continued throughout the day, with questions from opposing lawyers until the hearing ended for the week at 4:30 p.m.

Eleni Girma Beyene, an engineer, as well as planner Leah Wallace are expected to be called when the hearing resumes Monday at 10 a.m. and can be viewed on the OLT’s YouTube channel.  

The hearing is expected to occur over the course of 29 days.  

READ OUR PREVIOUS COVERAGE OF THE RAND SUBDIVISION TRIBUNAL HEARING

 Rand subdivision tribunal hearing underway

Solmar calls ecologist on second day of Rand subdivision planning tribunal hearing

Day four of Rand land tribunal hearing focuses on trees