Tribunal Week Three: Rand experts questioned on infrastructure, traffic, historic garden and other issues

The Ontario Land Tribunal appeal regarding the proposed Rand Estates subdivision in Niagara-on-the-Lake wrapped up the third week of the hearing Thursday, after four days of evidence about drainage and underground infrastructure, traffic, impacts on local agriculture, and landscaping issues that include the renowned  Dunnington-Grubb gardens on the property.

A stormwater management pond and other measures relating to drainage at the Solmar Development site have been a concern since the early days of dealing with a proposal for 196 homes, or possibly more, on the historic property bordered by John Street East and Charlotte Street.

Nearby roads and the Upper Canada Heritage Trail, which borders some of the property, were also discussed.

One of Solmar’s expert witnesses was cross-examined by Catherine Lyons, lawyer for Save Our Rand Estate (SORE), a grassroots organization that has been  fighting the planned development since it was proposed. She asked about the software used by Solmar’s experts to determine levels of surface water and where it’s coming from, as well as other drainage-related issues, including ponding on the McArthur Estate at 210 John St. E. He agreed a new culvert would need to be built to service the subdivision, and when asked about whether the Solmar study relied on out-of-date data, was told nothing of significance has changed in the area since the study was done.

Earlier in the week, the tribunal was told by another Solmar expert that a pumping station near John Street would become part of the design and allow the homes to be serviced, and that a detailed design of the pumping station would be part of future work.   

Stewart Elkins, a transportation planning expert, delivered evidence on how nearby roads and the Upper Canada Heritage Trail have been factored into plans. He told the hearing the area’s intersections, as well as the nearby trail, have been properly analyzed through the most recent study, but also noted an additional study will be needed for Queen’s Parade and Niagara River Parkway.  

Earlier in the week, impacts of a nearby winery and vineyard were part of the discussion.

Two Sisters Vineyards borders the planned development pitched by Solmar, both companies owned by developer Benny Marotta.   

Agrologist Sean Colville, one of several witnesses brought forward by Solmar since deliberations began, said bird bangers are a “contentious” issue in rural farming communities such as Niagara-on-the-Lake, but noted Two Sisters does not use them.   

Farming machines are not used in the late hours and are only operated in the vineyards between 7 a.m. and 5 p.m., he said. "This should result in less nuisance complaints,” said Colville.   

Odours shouldn’t be an issue either, he told the tribunal, as Two Sisters “typically does not use” agricultural source materials such as manure, although a mushroom compost was used when a new vineyard was planted at the site, he said.   

Colville told the tribunal that lighting from the winery won’t cause concerns because Two Sisters is only open from 7:00 a.m. to 5:00 p.m.   

Chemicals used on crops are applied with a “special type of sprayer” that contains the distance it would travel in the wind and “minimizes the potential for drift,” he said.   

Colville also doubts the winemaking property being visible from the subdivision is an issue. “Most people want to see the vineyards,” he noted, claiming the wine industry welcomes the development as it could boost sales.   

Catherine Jay, a witness on behalf of Solmar, delivered opinion evidence on urban design on Tuesday.   

One topic she touched on was the public realm of the proposal.  

She said even though the development may involve private roads, there are amenities that “could easily be enjoyed by the public.”  These include a pedestrian walkway near the panhandle, as well as a parkette, and whistlestop walk — that was an issue raised earlier in the proceedings. 

Cross-examination of Jay began late in Tuesday’s deliberations, starting with Lyons, on behalf of SORE.  

Lyons inquired about an urban design brief lacking anything about heritage, even though the town had already filed notices of intention to designate pieces within the lands as heritage attributes. “I see not one single mention of heritage,” said Lyons.   

A commemoration plan is being worked on by a consultant retained by the developer, and Lyons asked Jay if she was involved in that process. Jay said she and the consultant “were working back and forth in a community design perspective and urban design perspective.”   

Last week began with discussions about the significant Dunnington-Grubb landscape. Tim McCormick, a landscape architect and Solmar witness who has been involved with plans for the proposal for a number of years, told the tribunal the panhandle, where the developer is proposing an access to its subdivision, a nearby mound, a walkway and whistlestop are not part of the historic landscape.

“There is no evidence to prove they are designed by Dunnington-Grubb,” said McCormick.  

A spot known as the “sunken garden” at 176 John St., he said, is part of the work by the famous landscapers.  

“There’s no debate” about it being part of the Dunnington-Grubb landscape, said McCormick, adding that is “definitely clear.”  

There are 23 trees near the panhandle the developer plans to remove, but “there are trees being maintained in that area,” said McCormick. “That’s important to note.”

And new trees can be planted, he added. “There will be room to plant new trees and build this area with new species again.” 

McCormick said that any access to the subdivision will have heritage impacts in some way, but that the one pitched for the panhandle is the “only viable, legal” proposal. One to the west at 176 John St. is his “preferred alternative,” he said, noting the importance of a tree management plan.  

Lyons cross-examined McCormick Monday and raised a question about the site’s bath pavilion and a hedge leading up to it, which McCormick opined was not the work of Dunnington-Grubb.

She also asked about a statement in his evidence that the town did not have information it could be confident about when it comes to what can be attributed to the Dunnington-Grubb work and what has survived. Asked by Lyons if he has evidence to support that, he replied he did not.

Town lawyer Nancy Smith also asked McCormick about elements he said were not part of the Dunnington-Grubb landscape, and pointed out that the “town says they are.”

She then asked McCormick if he believes they are “still part of the “cultural heritage landscape” of the property, and he agreed they are.  

It was discussed last week that the hearing, initially planned to run until May 17, could conclude as late as mid-August.  

The panel is suggesting five additional days, and has recommended five different weeks in which those extra days could be held, the latest being the week of Aug. 12 to 16. The schedule is expected to be sorted out this week.