YEAR IN REVIEW: Residents' rally gathering steam, but too late in process, town says

YEAR IN REVIEW: As we begin a new year, The NOTL Local is looking back at some stories published throughout 2024. This story was originally published on July 30, 2024, one of many about residents' anger over the Parliament Oak Hotel, and council's support of it.

This evening, July 30, a large group of residents is expected to rally at the town hall, hoping to change the minds of councillors who have approved the Parliament Oak hotel and conference centre.

A widely-spread petition by those who are lobbying to reopen the discussion, representing a large group of people who are passionate in their opposition to the commercial development in a residential neighbourhood, says council's actions “contravene the official town plan, which was designed and strategized by hard-working and dedicated professionals to ensure the town's preservation and growth align with the best interests of its residents. It's critically important for the councillors to recognize the significance of these strategic plans and prioritize their execution over taking arbitrary decisions that can potentially hamper the town's future.”

“The comments (in the petition) “are an obvious error in understanding,” Lord Mayor Gary Zalepa told The Local. “The town Official Plan and the council Strategic Plan  are separate documents. Although they are connected through action items they are separate,” he said, and the conclusion drawn “is misleading or inaccurate."

The town’s professional planners “made the case for the amendments to the OP and bylaw via the approved staff report,” he said.

But it’s not the only development residents have opposed that has been approved by council, and there are others still in the process, leaving locals questioning why their opposition to what they consider inappropriate development is ignored.

The Local sat down recently with Zalepa and town planning director Kirsten McCauley before the rally was organized and the petition circulated, to ask that question about the wide gap between what residents often want and council approves. The answer is not one that is likely to change their minds or appease them, said Zalepa. It is, however, an explanation of how the planning process works, as dictated by provincial legislation, which in the planning hierarchy takes precedent over both regional and municipal planning documents.

Zalepa explains one of the major issues residents might not be aware of is that Niagara-on-the-Lake planning documents — the comprehensive zoning bylaw and the Official Plan approved by town council during the former term — are outdated. They have not been approved by the region or province, and won’t be until they’re updated again.

A further problem with relying on the OP for guidance is that “there were flaws in it when it was approved,” Zalepa added.

In 2019 an updated Official Plan was approved by council, and the region accepted it but didn’t approve it, explained Zalepa. “The region was in the process of creating its own update. Our OP is on pause, while a number of changes are being made at the provincial level as well. The province has changed a lot since 2018, changes we need to update in our plan to meet regional and provincial policies. It’s in our work plan to update and complete it.”

It would have been more helpful for the last council, if there were concerns about developments such as the Parliament Oak site, “to have asked for an OP that speaks to those concerns. That’s what policy development should do.” And in that case, it could have changed its land use policy to preserve the property for institutional use, he added.

“The OP provides land use designation, and the zoning bylaw provides the details,” explained McCauley.

“A lot of people have their opinions about planning, but they don’t have clarity about planning policies,” said Zalepa.

For example, he explains, they might find sections of the Official Plan that seem to apply to a specific issue they’re addressing, but it might just be one small part of the plan. “Some residents have a good grip on it, some don’t,” he said, and sometimes, even if they do understand it, “human nature is they’re not happy about it.”

To be approved by the region and thus meet provincial planning guidelines, the town needs to update its documents, with Zalepa repeating the commitment he made leading up to the last election, that those necessary changes will be completed during this term of council.

McCauley concurs the Official Plan update should be finished this term, but cautions there are other time crunches town staff face. This year’s budget includes the hiring of a senior planner, which is in the works, and should alleviate some of the pressure, but staff have to deal with developers’ requests for amendments within provincially-dictated deadlines, which makes the comprehensive zoning bylaw review timeline difficult to guarantee, McCauley said.

And while the Parliament Oak property development is one she agreed has been controversial, “there are several applications that have a lot of interest from the public.”

Provincial legislation allows for developers to ask for amendments to local Official Plans and zoning bylaws, McCauley stressed, and that won’t change when updates to Niagara-on-the-Lake planning documents are approved. As is the case now, though, and will continue to be, approval or rejection of requested amendments must be based on a wide range of policy guidelines, local and provincial, considering the needs of current residents, as well as looking toward the future. “We have to look at the surrounding area as well,” she said, “to ensure we’re providing opportunities for residents and jobs.”

But, as the planning director suggests, there is a long list of planning steps to go through before the developer and town staff get to the point where the public has an opportunity to weigh in, and elected representatives are then tasked with making their decisions based on the recommendations of town staff, who as professional planners are obligated to follow provincial legislation.

That list of steps begins with a pre-consultation meeting with the applicant, explained McCauley, followed by a planning application being submitted to the town. While residents question why some applications are allowed to go forward, they must be accepted and processed, whether they conform to current policies or not, she said.

“We can’t just tell them to go away. We can’t do that,” Zalepa said.

The application is then circulated for review to town staff, other agencies and the public, with comments sent back to the planning department, after which a public meeting is held to gather more feedback.

Potential changes may be made by the applicant as a result of the review and feedback, and only then is a staff report with recommendations provided to the planning committee, she explained. For example, McCauley said, when there was concern about sufficient parking for the Parliament Oak development, “staff had discussions with the applicant, and worked with the applicant to provide additional parking.”

When it’s time to make recommendations to council, she said, all planning professionals, including those on town staff, must make their recommendations based on provincial policy, “which are then sent on to council, to be approved, refused or modified.”

And all town decisions, whether at the staff level or made by council, must be consistent with all provincial documents and policies, and with the region as well, McCauley told the Local. That includes the provincial growth policy plan, and greenbelt and escarpment plans, which have to be included in municipal planning documents, she added.

“We do look at the Official Plan for many of its policies, but we do have to be in conformity” with upper levels, she stressed.

The municipality has to “be in alignment with the body over top of it, or the province won’t approve it,” Zalepa said.

Councillors are expected to do their homework before meetings to discuss a development “and understand the entire context of the report, or ask staff about what might or might not be in the report,” including getting answers to the questions they hear from residents.

On some of the more difficult decisions, councillors will consult with a town lawyer in a closed session — often several sessions — to look at whether a sound planning argument can be made for going against staff recommendations, and talk about the likelihood of winning an appeal if they go that route, which means hiring independent planners, he explained. Based on that information, councillors then have a decision to make, and Zalepa says he doesn’t support going through the appeal process when there is little or no chance of a successful outcome.

“Personally, I will not support an appeal when the legal case is weak. It’s not a good idea going to court when your case is terrible.”

Once council makes a decision, the application is subject to an appeal period before the decision is final, and as Zalepa pointed out when first hearing about Tuesday’s rally to protest the Parliament Oak property decision, the time for an appeal has passed.

In a news release last week, the town issued a a statement about planning applications, acknowledging community engagement and interest in development, and also explaining where three of the most controversial developments stand now.

“Our team of professional planners thoroughly reviews all plans and prepares comprehensive reports for council,” the town statement said. “Council members, elected to represent the community at large, exercise due diligence in reviewing all applications in alignment with existing policies and other relevant applications.”

Council and town staff have received several inquiries regarding three developments, it stated.

The first is the King Street apartments, with the town having requested the decision of the Ontario Land Tribunal be reviewed. At the time the statement was issued no response had been received, but one was sent soon after. They heard last week that the review has been refused and the project can move forward.

The Rand Estate hearing was put on hold, restarted Monday July 29, and is not expected to end until mid-August.

And about the Parliament Oak decision, the statement said, the notice of decision was circulated, and the appeal period ended on July 17, and “No appeals were received.”