OLT closes oral testimony on Tomlinson's proposed asphalt plant for Napanee

The public portion of the Ontario Land Tribunal hearing regarding a disputed use of property in Napanee came to a close Friday, Aug. 25, 2023, with final arguments to be submitted in written form.

The matter before the tribunal is R. W. Tomlinson Ltd.’s appeal of the Town of Greater Napanee’s decision to refuse an application to amend a Zoning Bylaw (“ZBLA”) for the property municipally known as 8205 County Road 2 so that Tomlinson can install a permanent asphalt plant there.

Tribunal member Dale Chipman heard arguments and testimony from lay and expert witnesses for the last two weeks, in what was often a combative show of lawyerly swagger.

Lawyers for R.W. Tomlinson Ltd., the Town of Greater Napanee, and a group of concerned citizens known as Keep Napanee Great (KNG) could be described as feisty, constantly raising objections during witness testimony and referring to their opposing counterparts as “my friend,” yet with very little friendliness of tone.

Chipman was patient but firm in her responses, likely stemming from her over 20 years’ experience in municipal and provincial administration. She is experienced in dispute resolution, having served as Chair of the Committee of Adjustments for several municipalities across Durham Region and Northumberland County.

She also provided some humour at Thursday’s hearing: when the Tomlinson team asked to have one of its witnesses rescheduled for Friday due to a conflict, Chipman checked her schedule and joked, “Oh, well that leaves us all day for closings, and then we don’t have to have the 50- or 40-page [written submissions].”

Tomlinson’s lawyer, Michael S. Polowin, seemed to miss the joke, jumping in quickly to say, “Uh, we’ve already planned on the written submissions.”

Chipman laughed and said, “Certainly — I just thought there would be some levity in seeing the expression on all of your faces.”

A typical fiery exchange came on Thursday, Aug. 24, 2023, when Chipman heard the testimony of Mark Dorfman, president of Mark L. Dorfman, Planner Inc. in Waterloo, who appeared on behalf of the Town of Napanee. As a professional planning consultant with close to 50 years in the private and public sectors, Dorfman specializes in the field of land use planning and environmental policies.

Dorfman testified that, given the information before him and having visited the roads surrounding the site, “I have come to the conclusion that this site is within the urban settlement area of Greater Napanee. Reading the Official Plan and the various policies, I have concluded… new aggregate operations, a new concrete batching plant, and new asphalt plant are not intended for location within the urban settlement area of the Official Plan.”

He went on, “I appreciate that the site is zoned for aggregate, and certainly… the uses that are permitted in that particular zone are continuing or may proceed. However, my opinion is that the proposed zoning bylaw amendment does not conform with… the urban settlement area policies… Therefore, an amendment to the Official Plan to allow for a concrete batching plant and a permanent asphalt plant in this aggregate’s official designation is required, and then the zoning bylaw may be considered under those policies, under that designation.”

On cross-examination, Polowin tried to poke holes in the planner’s testimony, saying that while Dorfman had visited the roads around the site, “You’ll agree with me that you couldn’t even see the site from where you were?”

Dorfman agreed that the site is not visible from the road. It is also marked by ‘No Trespassing’ signs.

“Now you went on Palace Road: you’ll agree with me that there is a major grade separation from the residences on Palace Road up to the lands owned by Tomlinson, correct?” asked Polowin.

Dorfman said there was a grade, but that he was unaware of the degree of that grade. Polowin cut him off, saying, “I didn’t ask that.”

This prompted Jacqueline Wilson, lawyer for KNG, to say to Polowin, “Please don’t cut off his answers.”

Polowin replied that he would not have to cut off Dorfman’s answers if he answered the questions asked of him. Polowin then asked Dorfman again if there was a “signficant grade separation” from Palace Road.

“I wouldn’t say significant because I don’t know the answer to that question,” Dorfman replied.

Cross examination continued much the same way, with starts and stops based on objections.

At the end of oral testimony, Chipman stated, “The directions have been issued in regards to the closing submissions coming forward on the specific dates that we’ve all agreed to, [with] books of authority to be included.”

“I have had a lot of information provided over the past two weeks to go over, and many, many reports to look through, to cross-check my notes to. This matter being set for a written closing will obviously not come in a decision form anytime over the next little while, because of… the extended dates for the closing,” she said.

Chipman thanked all the witnesses who had devoted personal time to speaking to the tribunal. Since the lawyers had no further questions or statements, she concluded, “I’ve been left with a lot to consider, and I look forward to your closing submissions. And I wish you all a great weekend.”

This is an ongoing story; Kingstonist will provide updated coverage as the tribunal process continues.