Tuesday, October 18th marks the beginning of the Ontario Land Tribunal (OLT) hearing regarding the proposed 5 storey application at 133-137 Main Street East (Grout-Nelles house). The Tribunal has put aside 14 days to hear arguments brought by the appellant, Burgess Heritage Group/DeSantis Homes, and the Town of Grimsby. It is unlikely however to last that long due to settlements and agreements reached between the two parties ahead of this event.
Traffic impact, adequate parking and the technical feasibility of the proposal were issues in the applicant’s proposal which have since been settled between the Parties and removed from the dispute. A few other big hurdles were also removed through a settlement with the Town’s Council, making this case a rather “light one” for the developer.
Those who have followed our articles may remember that in September last year the developer filed a heritage application with the Town. His requests were to allow alteration of the heritage house for commercial purposes, to demolish the brick coach house at 137 Main Street East and permit a condominium building on the designated site at 133 Main Street East.
The heritage application, first debated and conditionally approved at Historic Grimsby Advisory Committee (HGAC) in December 2021, followed its due course to the Committee of the Whole (COTW) in January 2022. There, expressing displeasure with the outcome from the HGAC, the developer asked Council to uphold his request to maintain views of the heritage house only from the Nelles intersection. This would make his approval of the new condominium in the proposed shape and position easier to achieve.
This dispute item was particularly problematic as it was not properly addressed in the proponent’s HIA or their conservation management plan. Even the proponent’s own revised HIA (September 2021) recognized that:
”[…] the heritage attributes of 133 Main Street East will be physically impacted by the proposed condominium apartment development”
”[…] views of the house will be blocked from Main Street East looking to the west when the condominium apartment is constructed.”
After much debate and fight from Councillors Bothwell and Vardy to minimize the negative impacts of the developer’s request on the Town’s case, COTW approved the heritage permit with the amended conditions 16 & 17 listed below, allowing a minimum setback from the street in the now usual 5 to 4 vote.
16) That any construction be designed and positioned on the lot to be preserve the integrity of the home, and maintain sightlines to the heritage resource; and
17) That the commercial setback be taken into consideration at the south eastern portion of the lot during the urban design review panel to ensure the viability of the use and to promote accessibility to the general public.
The decision was given final approval at the Council meeting on February 7th, after Councillor Bothwell’s request to lift the matter for reconsideration was denied by Councillors Dunstall, Kadwell, Sharpe, Ritchie and Vaine (“G5”).
We covered this story in two articles:
The requested Heritage permit was issued by the Town on February 8th. On March 10th, the developer appealed Council’s decision respecting the permit’s Conditions 16 and 17 at the OLT, citing that Town’s Council failed to give notice of its decision on the Heritage Applications within 90 days of the completed application being served.
Among the reasons for the heritage appeal, the applicant stated that:
"Conditions 16 and 17 are unduly broad and/or vague and inconsistent with the professional advice provided in the Heritage Applications including SBA’s plans and recommendations, which were not challenged by Town staff."
and
"Conditions 16 and 17 as worded are an improper attempt to frustrate the proposed redevelopment of the Property notwithstanding that the proposed redevelopment constitutes good planning in general as well as good heritage planning."
We note that SBA stands for Stevens Burgess Architects Ltd., which is the consulting company that prepared the Conservation Master Plan for the James Willison Grout Nelles House on behalf of the developer.
At the Case Management Conference for the main appeal held in April, the Tribunal agreed that a motion to consider the merits of the heritage appeal be heard in July. Town’s legal counsel never had a chance to dispute this motion as Council conceded these points in closed session on May 2nd.
Consequentially, a settlement hearing was held on July 8th, in the midst of the OLT hearing for the 7 storey application at 141-149 Main Street East (Coles Florist property). This settlement for 133-137 Main Street East was mentioned by the Losani’s counsel during the Coles Florist property hearing.
From the OLT Decision on the heritage matter at 133-137 Main Street East published on October 7th, we learned that:
"Through the spring of 2022, the Applicant and Town staff have continued to have productive discussions related to the Subject Site heritage matters that ultimately led to the Town Council giving staff settlement instructions on May 22, 2022 to revise conditions 16 and 17 to state:
16) That new construction be designed and positioned on the lot as proposed within the plan entitled Preliminary Site Plan for Zoning Amendment – Submitted by IBI Group - Revision #3, dated 2021-09-15.
17) That the barrier around the “ramp down to underground parking” consist of materials that minimize the visual impact on the heritage features from the public realm."
Emphasis are ours
This settlement was discussed and decided at Council in Closed Session, away from public scrutiny. Digging through the Town’s Meeting Minutes and meeting video from May 2nd, it became clear that the decision to concede to the developer was voted in the usual manner 5-4:
Yes: Councillors Dunstal, Kadwell, Sharpe, Richie and Vaine
No: Councillors Bothwell, Freake, Vardy and Mayor Jordan
The size and position of the condo’s footprint are set now to surround the heritage house, impacting its views and disregarding the Official Plan requirements of large setbacks on Main Street.
Tuesday’s hearing still has issues to be resolved. The case will focus on things like the large amount of intensification created at this site on Main Street, compatibility and fit with the surrounding character, and the limited commercial space provided with the application. Given the recent decision at 141-149 Main Street East, it will be interesting to watch this hearing unfold.
According to the Town’s Planning Witness Statement, a new version of the application will serve as the base for the hearing. This was circulated by the applicant on August 3rd and then discussed in Closed Session at Council. The application of 148 units and 5 storeys now features a reduction to the commercial/retail floor space and a reduction in the amount of parking provided from 210 to 189.
The heritage designated beech tree that fell during a July 2021 storm and was removed, has a limited chance of replacement in kind, let alone restoring of the “wooded character” of Main Street, as required in the Official Plan. The Town’s Urban Design Witness argues in her statement that:
”[…] I disagree that replacement trees will be provided in a “similar fashion” as these trees will not provide appropriate shade and do not relate to the Nelles House in a way that compensates for all the mature trees being removed on the site. In particular, there are no large shade trees being proposed surrounding the Nelles House where the existing trees are proposed to be removed”.
You can watch the Tribunal Proceedings online starting Tuesday, October 18th at 10am by following this link: https://global.gotomeeting.com/join/415268829
Heritage settlement:
Hearing - Tuesday, October 18th:
Town's witness statements:
Applicant’s witness statements:
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