SORE is pleased to report on a decision last week of the Ontario Superior Court of Justice of relevance to both the Rand Estate and to heritage protection in NOTL.
Hummell Properties, owned by a well- known local developer, had brought an application to quash an interim control by-law enacted by your elected Council in December of 2018, at its first meeting following the most recent municipal election. Hummel claimed bad faith and illegality by the Town in enacting the by-law. The application was heard over two days in St. Catherines last week.
The decision was issued the very next day by Mr. Justice Ramsay, who was clearly unimpressed by application. He made quick work of the allegation of illegality, dismissing it in one paragraph and then characterized the applicant’s evidence on bad faith as “contrived”. His Honour held as follows with respect to the bad faith argument:
I think that council wanted to preserve the old town’s heritage and that it considered the matter urgent. They wanted to fulfil the mandate that they thought they had been given by the public. They froze the status quo, considered studies and public input, amended the Official Plan and then repealed the interim control by-law. That is essentially what they were supposed to do.Mr. Justice Ramsay
Justice Ramsay accordingly dismissed the application, with costs payable to the Town.
This is the second case in a year where a developer has alleged illegality by the Town in passing a by-law. The first involved the Rand Estate and the victory was reported on SORE’s website. In both cases, the Superior Court made quick work of the applications and dismissed them on all grounds.
Of particular note with respect to the Rand Estate, the evidence in front of the court in the Hummell case was that Council’s motivation for passing the interim control by-law was the outrageous clear cutting of a good portion of the Rand Estate in November of 2018, following the last municipal election and prior to the installation of our current Council. Our supporters will recall that the Marotta companies are being prosecuted for this clear cutting by the Town under the Ontario Heritage Act. Mr. Justice Ramsay commented on Council’s motivation for the interim control by-law that was attacked by Hummell as follows:
Niagara-on-the-Lake is a gem. Our historic capital, its history of European settlement goes back to the Loyalists. Set on the shore of Lake Ontario, surrounded by vineyards, it is a hub of history, culture and tourism. In the 2018 municipal election, development of the old town was very much debated. A focus of the debate was one particular developer (not the Applicant) who provoked discussion by cutting down old trees on his estate.Mr. Justice Ramsay
That developer of course was Benny Marotta and his companies – Solmar and Two Sisters.
SORE is extremely pleased with the result in this case. It affirms the right of our elected Council to take action to protect the treasured cultural heritage assets of the Town. SORE is also very pleased with the Court’s comments recognizing and affirming the unique character and history of NOTL. We congratulate our Council on their continued efforts and good work and hope that we have seen the last of these bullying developer lawsuits for a long while.