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Aug. 8, 2020 | Saturday
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Marotta ‘likely’ to appeal court decision on Randwood
Developer Benny Marotta says the town is acting out of malice to stop his development of the Rand Estate. (Richard Harley/Niagara Now)

The town and SORE were victorious in court last week, but developer Benny Marotta says it’s “likely” his companies will appeal the judge’s decision.

Superior Court Justice Linda Walters ruled to dismiss an application by Solmar Development Corp. and Two Sisters Resorts to quash the Town of Niagara-on-the-Lake’s notice of intention to designate all four Rand Estate properties under the Ontario Heritage Act.

“We have to make a decision in the next few days on whether we move forward with an appeal or let it go,” Marotta said in an interview. “We are very passionate about this project, so appealing the decision is a very real possibility.”

Walters gave the parties 30 days to determine the legal costs and Solmar/Two Sisters is expected to cover the winners’ legal fees, said Lyle Hall, a member of SORE (Save Our Rand Estate).

“The principal in civil litigation is that ‘costs follow the cause.’  That means that the loser pays the winner’s costs,” Hall said in a statement to The Lake Report. “In this case, that means Two Sisters pays the costs of both the town and SORE.”

Walters heard two days of arguments from both sides.

In her written judgment, Walters outlined four issues to determine: If the town’s application was premature, if the town failed to comply with the Ontario Heritage Act, are the notices vague and uncertain, and did the notice of intention comply with the town’s official plan.

Walters declined to rule on prematurity, but said the application would still be dismissed based on the other three arguments.

On whether the town complied with the heritage act, Walters also declined to make a ruling. She wrote that decisions about the appropriateness of the notice should be determined by the Conservation Review Board.

To the vagueness issue, Walters argued she didn’t see how Solmar and Two Sisters could not understand their obligations under the heritage act. She said further disagreements on the issue should also be addressed by the review board.

To whether or not the town complied with its own official plan, she wrote that she cannot find a contravention of the planning act.

Hall said he’s not surprised the court ruled in favour of the town.

“We’re clearly thrilled that the outcome of the decision was the way it was,” he said. “We never thought the application of the Marotta companies had any merit, so we’re happy but we’re not surprised the town won.”

He said SORE will continue to fight for “the responsible development of the Rand property.”

“We don’t expect that this one legal decision is going to resolve anything or everything,” said Hall. “We haven’t won anything except one battle, so we continue on. We continue to be watchful.”

The battle is still far from over, Hall said. For now, SORE is trying to respond to all of the legal matters it can.

“SORE isn’t in a position where we can be proactive with any of this,” he said. “There’s a number of things that are happening at the same time and SORE is reacting to them. We’re waiting for the (Conservation Review Board) to continue its process. We’re waiting for the prosecution of the Two Sisters company to continue and then we’re waiting to see where Two Sisters re-application to LPAT takes them — and we will respond accordingly in each of those cases.”

Hall said SORE will be keeping an eye on the upcoming Conservation Review Board pre-settlement conference, which will determine whether the town’s intention to designate the properties is warranted.

“We hope that the town will continue its effort to prosecute Two Sisters for the destruction they caused on the site with the clear-cutting last November,” Hall said.

“I think SORE believes that we’re doing the right thing. So far we have been validated, both in getting standing on these various judicial procedures, as well as the ones where there’s been an outcome, we have been successful all along. We continue to put ourselves in a position where we believe we can continue win and continue to fight for the responsible development of the property.”

Marotta said he feels the town’s decision to combine all four properties in its designation application is an attempt to stall progress by his company.

“The town combined the property behind with Rand Estate and designated everything as heritage,” said Marotta. “The two properties are separate. We do not have any applications on that property. The decision to designate it all as heritage was designed to stop us from moving forward.”

He said right now his companies are “looking at the whole situation” to decide what the next steps will be.

Should Marotta and his legal team choose to appeal, he said he would like the case to be decided in Toronto instead of a local court.

He said he believes the town is acting out of malice toward him as a developer and believes only two of the properties, those of the actual hotel, have heritage value. He said he agrees with the town and stands by the decision to designate Rand Estate and the Dunnington-Grubb features, which are in front of the Rand house, as heritage. 

“This was always the plan. The 2011 bylaw designated the Rand Estate as heritage and we agreed. It wasn’t until we applied for the siteline was the motion passed to have the lands in the back of the property (toward John Street) designated. As of today, it’s unclear which structures or land should be designated. The onus has been put upon us to prove that the properties are not heritage instead of the reverse.”

“These tactics only buy time to fulfill an election promise made to a small, vocal group of people, vowing to stop us from completing the property,” Marotta added.

Marotta said he wants to build a hotel “that adds value to the community.”

“As a resident of NOTL and a company, we feel badly about the cost of these legal proceedings to taxpayers,” he said. “At the end of the day, if the town goes through with all of the court cases they have — and not all of them are with Solmar — they are going to be spending about three to five million dollars of taxpayer money.”

Lord Mayor Betty Disero issued a statement saying council  is “pleased” with the ruling and “is waiting to hear from (the town’s) legal team on appropriate next steps.

“Our legal team will report back to council once they have had an opportunity to fully review the decision,” Disero said.

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