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Jan. 19, 2022 | Wednesday
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Marotta not giving up on Randwood development
The Randwood Estate. (Dariya Baiguzhiyeva/Niagara Now)

Developer Benny Marotta may have given up on one of his legal battles with the Town of Niagara-on-the-Lake, but he hasn’t given up on plans to develop the historic Randwood Estate.

Marotta, who wants to build a multi-storey hotel and a residential subdivision on the old Randwood property, last week withdrew his zoning appeal to the Local Planning Appeal Tribunal.

However, a spokesperson for Marotta’s company, Solmar Development Corp. and its legal counsel, said Solmar will continue to care for the property as the withdrawal doesn’t change anything about the land’s ownership or development plans. The appeal’s applicant was Two Sisters Resorts Corporation which Marotta also owns.

“Mr. Marotta and his legal team determined that withdrawing the appeal was the most cost-efficient and fair process for resolving this case,” Gabrielle Totesau said in an email response to The Lake Report.

“In terms of next steps, Mr. Marotta and his legal team are focused on continuing their efforts to work with the town and SORE to find a solution that works for everyone.”

Marotta’s proposal was met with a strong opposition from some Niagara-on-the-Lake residents, many of whom belong to the Save Our Rand Estate group, which is advocating for preservation of the historic property on John Street East.

Lyle Hall, a spokesperson for SORE, said the group strongly believes Marotta wasn’t going to win the appeal as the developer’s proposal wasn’t consistent with the town’s official plan. He said the group wants to be compensated by Marotta for its legal costs.

“Even if he was to come back under a new process … we still think the project he’s planning is so outrageously opposite to what the official plan says the uses for that land are going to be, that we don’t understand how any logical process can determine otherwise.”

Hall suggested the town should send Marotta’s revised proposal back to the municipal heritage committee and to the urban development committee for review and comment. The town should also review the proposal for its completeness as SORE believes there are a number of “serious deficiencies” with the application, he said.

Now that the appeal is withdrawn, the Town of NOTL “may proceed to make a decision on the application,” lawyer Michael Melling, who represents Marotta’s companies, said in a letter to the tribunal.

Depending on the town’s legal counsel’s availability, the town will hold an in-camera meeting on Thursday, Aug. 1, to discuss its next steps in regard to the matter.

The town’s legal bill related to the Randwood development in 2018 was $57,985.87.

So far in 2019, the town has spent $188,371.87 on legal fees. With a total of $246,357.74, there are still outstanding invoices, town clerk Peter Todd said in an email response to The Lake Report.

Lord Mayor Betty Disero said she would have to get advice from the town’s lawyer before commenting on whether the town should seek to recoup its legal costs from Marotta.

“For me to comment before doing that (talking to legal counsel) would be irresponsible,” she told The Lake Report.

Coun. Allan Bisback said he couldn’t comment either. Because he lives on Park Court which is “on the edge” of John Street East, he said he declared a conflict of interest and wasn’t present during the previous meetings in regard to Randwood.

The town is in negotiations with Marotta and councillors want “something beneficial” for both the developer and the town, said Coun. Erwin Wiens.

Coun. Gary Burroughs said the town should add make reimbursement for legal costs part of the discussion with Marotta as “there’s been substantial cost filed to-date.” 

Under the new provincial Bill 108, More Homes, More Choices Act, there are a number of changes coming to the land use planning appeal process. 

The current name – Local Planning Appeal Tribunal – will remain, but some experts say the old OMB rules are expected to be brought back.

According to a May 2 statement from the Ontario Ministry of Municipal Affairs and Housing, some of the proposed changes include allowing the tribunal to hear fresh evidence, giving it more power to manage and decide cases to reduce delays and appointing additional adjudicators to address the backlog of cases.

When making a decision, the Ontario Municipal Board, which was an independent, quasi-judicial administrative tribunal, could hear evidence on provincial legislation, provincial plans and policy statements as well as municipal planning documents, environmental, social and economic issues and the best interests of a community.

The Local Planning Appeal Act, which was introduced by the provincial government in 2017 and became effective in April 2018, replaced the board with a more limited scope and power. The tribunal could make a decision based on whether the municipal authority’s decision conformed with the provincial policy statement, a provincial plan and an applicable official plan.

When council made a decision, the planning tribunal wasn’t supposed to second guess it as long as the council followed the proper processes, said Brock University’s professor emeritus of political science David Siegel.

Under the municipal board’s rules, hearings could be conducted “de novo,” meaning the board could make a decision regardless of the initial municipal council’s decision. Appealing under the OMB basically gave developers a second chance, Siegel explained, and the board had “considerably more power” than the tribunal.

“If we’re serious about the local democracy, I think council should have the final say as long as they have followed the appropriate processes,” Siegel said in a phone interview.

Because of the board’s de novo hearings, the development decisions are taken out of the hands of elected officials and put into the hands of a number of lawyers and let them make a decision, starting all over, said Hall, noting it doesn’t make sense to him.

“I think any process that puts us closer to the old OMB than the current LPAT is a problem for communities like this one where there will be no input from the local folks that are elected and put there specifically to make sure we’ve got a development regime we can live with,” Hall said.

Burroughs said he thinks Marotta will appeal under Ontario’s revised development rules, but he doubts it will make any difference as it is “just lawyers playing back and forth.”

NOTL developer Rainer Hummel disagreed that the board appeal favours developers, calling it a “myth.”

“The OMB favoured proper planning,” he said in a phone interview. “And every person will say planning is bad if it negatively affects them.”

Hummel said the myth of OMB favouring developers was created not because it did, but because town councils would vote against a proposal which should have been approved in the first place.

“Town councillors want to get re-elected. They will say no to things that they know should be approved, they know will be approved,” Hummel said. “They take the responsibility and give it to somebody else rather than making the hard decisions and voting on something, based on whether it is correct or not.”

The president of Niagara Home Builders Association, Tony Alfieri, said he wouldn’t comment on the issue as it is a matter between the town and the developer. But he added we need to put a stop to NIMBY-ism – the “Not In My Back Yard” approach to development – as there’s a housing shortage.

“NIMBY-ism is all over the place,” he told The Lake Report. “The longer it takes to put a project into the ground, the more it costs.”

In 2018, Marotta appealed then-council’s non-decision on his plans for Randwood and appealed to the tribunal for a decision on his zoning application for the proposal.

At a prehearing in May 2019, SORE was granted full party status in the appeal proceeding. All parties then were supposed to reconvene at a meeting on Monday, July 29, but it was officially cancelled once Marotta withdrew his appeal.

Weatherstone Court resident Laurie Drewitt, who lives close to Rand Estate, said Marotta’s withdrawn appeal is a temporary win for the residents and they don’t know what the developer is going to do next.

Colin Patey, another Weatherstone Court resident, said he was planning to attend Monday’s tribunal meeting and he also doesn’t know what is going to happen next. As for the difference between the tribunal and OMB appeals, he said the de novo hearings are a “very unfair process.”

“You can start off with the lawyers making zillions where citizens can’t afford it. Zillions on presenting the case, new and new again,” he told The Lake Report.

Zoli Miklossy, who also lives close to Randwood, said the town should “absolutely” seek to recoup its legal costs.

For one Charlotte Street resident, Ruedi Hofer, who said he isn’t affiliated with SORE, the best approach is for local councils to have a bigger say in dealing with zoning appeals.