The Ontario Municipal Board (OMB) Hearing, which will decide whether historic Port Dalhousie's heritage and village feel will be protected, started on February 20, 2008 at Council Chambers, St. Catharines City Hall. Proceedings were typically four days per week from 9:30 am to 4 pm and open to the public. The Hearing was originally scheduled to last 10 weeks and this was extended to 15 weeks at the second OMB Pre-Hearing in November, 2007. The full Hearing, in fact, took portions of 21 weeks (71 Hearing Days) and ended in November, 2008. Monday, October 27th was the last day of testimony by witnesses. Final Arguments from each party were heard November 10 through 14 and November 17 to 19 and, November 19th was the final and 71st day of the Hearing. We now await the Board's decision which is expected in late January or early February.

Below are highlights from each of the 71 days based on reports from community volunteers attending the Hearing.

Day 1 - February 20

We learned that OMB Vice-Chair Susan Campbell, an experienced lawyer who has served on heritage organizations in Kitchener, will chair the Hearing. The initial session was mostly procedural and PROUD lawyer Jane Pepino asked for direction on whether PDVC could present evidence on two alternatives: one with Hogan's Alley and some public land and one without. Chair Campbell ruled they could but, she also confirmed that if the Board were to approve some form of a proposal that includes building on public land not owned by PDVC, the Board cannot direct the City to sell that land. PDVC would then have to apply for a heritage permit which could be appealed, if denied, and likely go through a public meeting process.

Ms. Campbell also set aside the evening of April 9th starting at 6:30 pm for members of the public who oppose the tower proposal to speak at City Hall. Anyone wishing to speak needs to email their name and address to the City Clerk's office or submit it in writing. Note: Members of the developer's lobby group and others supporting the tower can speak on April 8th.

Day 2 - February 21.

Jane Pepino delivered a detailed opening statement identifying numerous specific regulations the proposal contravenes and legal tests that it fails. Before her, City Solicitor Annette Poulin made some very powerful comments also. According to reports in the Standard: 'Poulin maintained the success or failure of the development ultimately rests on whether PDVC is granted the heritage permit it requires to make alterations to buildings it wants to redevelop. "The heritage component is the most important. Without a permit, this development cannot proceed." Poulin said she expects the city's witnesses to give evidence that will show the previous council erred in supporting the development proposal because it goes against planning policies protecting Port Dalhousie's heritage.

Day 3 - February 22

The third day was fully taken up with testimony by tower architect Michael Kirkland who was taken through his evidence in questioning by PDVC lawyer Mark Noskiewicz. The first part of the day was spent with Mr. Kirkland providing information about his architectural education and experience, and how he came to be involved in the proposal before the Board. Later on, Mr. Kirkland spent considerable time focusing on economic revitalization and whether this is good architecture, while ignoring the fact it violates all applicable regulations. He seems to believe that, as long as they are "revitalizing" the commercial core, the applicable regulations are irrelevant.

Day 4 - February 25

Mr. Kirkland continued to testify at a snail's pace, reading every portion of his written material word by word. He kept emphasizing his tower would be a sentinel for Port. Perhaps he has never seen our two historic lighthouses that already serve as sentinels. He also did not mention that there is nothing in the regulations calling for a new "sentinel" or "icon" for Port.

Day 5- February 26

Mr. Kirkland took up one more whole Hearing day reading virtually every word in his witness statement. He also tried to explain how Mr. Huck Berry (whose house will be directly across from the 4-8 storey wall of new construction proposed along Main St which leads to the tower) will have a better view.

He levelled very strong criticism both at illustrations used by PROUD and at some drawings submitted by architect Phil Goldsmith -a highly-reputable Heritage Architect who will be testifying on behalf of PROUD. Mr. Goldsmith's submissions were meant to show views Mr. Kirkland had not displayed in his testimony.

Day 6 - February 28

Finally, cross-examination of Mr. Kirkland by parties opposing the tower began. City Solicitor Annette Poulin established that almost every amenity shown on their drawings is on public land and to be paid for by taxpayers. She also took Kirkland through sections of the Official Plan, Secondary Plan and the Heritage Guidelines to show that "revitalization" is not listed anywhere as a priority. In his previous testimony, Mr. Kirkland always justified the proposal because it "revitalizes". In addition, both Ms. Poulin and Ms. Pepino established that Mr. Kirkland is not qualified as a Planner, Heritage Planner or Heritage Architect -only as an Architect and Urban Designer.

Day 7 - March 3.

This was a momentous day in Port Dalhousie's history. First, Jeff Loucks received a favourable ruling on his request to be both the agent for 20 appellants and although he won't be permitted to give opinion evidence, he will be able to provide factual evidence since he is also an appellant himself. Then appellant Hank Beekhuis conducted an excellent cross-examination of Mr. Kirkland. For someone who is not a lawyer, Hank did the community proud.

Most importantly, lawyer Jane Pepino brought out evidence demonstrating the intense pressure PROUD Port Dalhousie's Executive has been under since early in 2005. She produced lawyers' letters, and transcripts of phone messages from PDVC threatening legal action against both the Executive and all members of PROUD. She used this evidence to demonstrate why PROUD has had to use illustrations on all its materials, and not the developer's drawings, as our volunteers lived in constant fear of being sued. It is out there now and a great weight has been lifted off everyone's shoulders. Now the whole world knows about these threats and intimidation.

Day 8 - March 4.

Chair Campbell made it very clear she does not design buildings and her decision will be definitive. This is exactly what the community expects, a definitive decision that we hope will protect the integrity of the heritage district for this and future generations. No in-between, wishy-washy decisions.

Also, under cross-examination by Jane Pepino, Mr. Kirkland acknowledged that every facet of their proposal is contrary to the heritage district plan. He also stated he believed his tower would NOT set a precedent because other towers would necessitate an amendment to the Heritage Guidelines and other regulations. However, he then claimed the amendment needed to allow his proposed tower was, somehow, different.

Ms. Pepino concluded in the afternoon and Jeff Loucks started his cross-examination by asking Mr. Kirkland about the accuracy of his model and drawings. Mr. Kirkland acknowledged they were not completely accurate.

Day 9 - March 5

Jeff Loucks concluded his cross-examination of Mr. Kirkland and then PDVC's lawyer took up the rest of the day "replying" to all of the previous cross-examination and trying to lessen/defuse the key points Mr. Kirkland had conceded to. So far, the process has taken nearly 3 weeks for one witness.

The Chair also committed to a visit to the site on March 19th so she can see things as they are for herself. This will be very helpful.

In addition, PDVC's lawyer asked for a list of PROUD members -something lawyer Jane Pepino says is quite standard. However she also "...said she would prepare the list, but the names would have to be protected "because of threats" members have received (legal threats from PDVC) ....Campbell (Chair) instructed Pepino to prepare the list, but said its contents would not be made public."

Day 10 - March 6

The morning and early afternoon was taken up with testimony by PDVC witness Mark Brickell of Niagara Economic Development Corp. (NEDC). NEDC is a Regional Government corporation and you might recall that in the Fall of 06, with a strong push from former Mayor Rigby and Regional Councillor Timms, the Region rubber-stamped the previous City Council's approval. In fact, despite a very strong report from the Regional Planning department recommending rejection of the PDVC proposal, the Region is the ONLY party supporting PDVC at this Hearing.

In the morning, every opposing party, and particularly City Solicitor Annette Poulin, opposed Mr. Brickell being qualified as an "economic development" expert. Although the Chair allowed his testimony as an expert, it was clear he has no academic qualifications or formal training in economics or marketing. Mr. Brickell emphasized NEDC's support for the tower proposal and laid out the usual doom and gloom scenarios typically used by developers: other developers may not invest in Niagara unless the PDVC tower is approved. Does this mean the City should set aside its approved Official Plan, Zoning By-Law and HeritageGuidelines every time a development proposal is submitted?? Mr. Brickell also told us how he visited the site and found buildings in disrepair, a strong smell of urine and the historic Jail being used to store beer bottles. We wonder who could be the owner of those properties he visited? After he completed his testimony, the Board had to adjourn because their side had not previously provided copies of his CV or other reports he quoted from to the opposing parties in advance so they could prepare.

So far, the developer's lawyer has been painfully slow and methodical with his examination of witnesses and this of course means the community's and City's side has had to invest more time and money than anticipated. In fact, it looks very likely the Hearing will last even longer than 15 weeks.

The Hearing resumes March 17th after a March Break recess. At the current pace we don't anticipate witnesses opposing the development will be called before April at the earliest.

Day 11 - March 17: Cross-Examination of PDVC Witness Mark Brickell Continues

Testimony continued from PDVC's second witness, Mark Brickell of Niagara Economic Development Corp (NEDC). Mr. Brickell admitted he was invited by PDVC to look at the site but had not done any separate economic analysis to verify the benefits he had touted. At one time he said something like "The math is simple. 80 condos at $400,000 that is $32 million" to justify his position. Under cross-examination he also agreed that the PDVC proposal did not address any of the major weaknesses identified in the Region's Economic strategy.

Day 12 - March 18: Brickell Concludes, Mark Conway Starts

Mr. Brickell's cross-examination concluded in the morning. PDVC's third witness, Real Estate expert Mark Conway started his testimony in the afternoon. Mr. Conway's testimony started and concluded the same day which is record brevity thus far. There is a recurring theme in testimony thus far. Every witness admits there is no original research or studies of any kind to substantiate the purported economic benefits. In fact, under cross-examination, Mr. Brickell did not even seem to be thoroughly familiar with a brief and preliminary impact analysis done by Brock U. Prof. Soroka for the first tower proposal. Mr. Conway, an expert in real estate, admitted his is only a qualitative analysis and he has not done the kind of detailed quantitative analysis he is normally hired to do. His testimony concluded the proposed lakefront condos would be very saleable and for very high prices - SURPRISE!

Day 13 - March 19: OMB Site Tour and PDVC Witness Christopher Newton

The Chair did tour Port Dalhousie as planned despite driving rain and fog. She now has a better understanding of the low-rise nature of the historic village and is committed to coming back in July to see it in summer weather.

The Hearing resumed at 1:30 pm with PDVC's fourth witness, former Shaw Festival Artistic Director Christopher Newton. He told us that he has been involved since late 2003 (many residents remember his comment about the first tower proposal that now when he drives on the QEW the tower will tell him where Port Dalhousie is). Mr. Newton testified that it was he who recommended the proposed theatre's capacity be increased to 400 from 350 which he considered too low. When asked by PDVC's lawyer about theatre expert Janis Barlow's concern that a Market Needs Study had not been done, he replied that he thought that was premature and that one "just uses common sense". Needless to say, we would all welcome a successful theatre in Port Dalhousie. The question is will it be viable?

Day 14 - March 20: More Newton

Mr. Newton was quite revealing. He confirmed no market research or business plan existed for the theatre. He feels one "uses common sense" and it is premature to do research before "we know what we are getting". He also told us he never thought of the theatre as a commercial venture and assumed it would be operated by a not-for-profit corporation that would not be responsible for the capital costs of building it.

When asked about the list of "successful" theatres of similar sizes he provided for the Board, he admitted he had no knowledge of their financial position or success. By successful he meant they put on good productions and attracted good audiences. In addition, it turned out only one of the theatres he offered for comparison operated partly in the off season. The others were all summer or winter seasonal theatres. This is quite interesting since PDVC has always touted the theatre as necessary to make Port a year-round destination.

Day 15 - March 24: PDVC Witness Brian Arnott

Testimony from PDVC' s fifth witness, theatre consultant Brian Arnott started on Easter Monday. The recurring theme with Mr. Arnott was the same as we have heard from previous PDVC witnesses. In this case, the theatre will be a great fit and success, etc. However, when cross-examined, the witness admitted no feasibility studies or business plans had been developed to substantiate the claims -even though the witness himself has recommended these should be done. Of course, they then claim that such studies are not required by the City but, if they are claiming their project should be approved because it will revitalize Port Dalhousie, should they not have every possible study to back this up???

PROUD lawyer Jane Pepino took Mr. Arnott through theatre expert Janis Barlow's witness statement which he has claimed was biased against the project. Ms. Pepino went through each point Ms. Barlow had made supporting her statement and Mr. Arnott agreed with her in every case. So, where was the bias?

Day 16 - March 25: PDVC Witness Spencer Higgins

PDVC's sixth witness, heritage architect Spencer Higgins commences testimony. Mr. Higgins said he was sent ' “a huge box of stuff” and... he “spent a day or so going over the stuff.” He concluded he supported the development.' And, that was for the Diamond 33-storey height tower proposal!

Testimony was painfully slow as he was first "qualified" by PDVC's lawyer going over his CV in great detail. Since then he has been asked not only about his witness statement but, about his other heritage reports and, particularly the one he submitted in February 06 with the Kirkland second tower application. The lawyer keeps going back to sections in other reports and going through them in detail. Mr Higgins has submitted 3 reports in total: one each with the Diamond and Kirkland proposals and one with the Heritage Permit applications in August 07. They are all VERY similar.

Day 17 - March 26: More Higgins

Mr. Higgins finds little heritage value in properties owned by his client. "Meanwhile other commercial buildings in Port Dalhousie’s core are of significant historical value and should be saved, said Spencer Higgins, an urban design and masonry expert." Very interesting. Perhaps he needs to be reminded that all of Port Dalhousie's Commercial Core was designated as part of a Heritage Conservation District under the Heritage Act - not just properties not owned by his client.

He was highly critical of Mr. Donatelli's renovation of the Port Mansion ( “The thing is going to fall apart in 25 years. It’s not well-built.”),. Also, Mr. Higgins, like previous witnesses, argued for the project based on purported economic benefits. However, he admitted to PDVC's lawyer that he has seen no evidence or studies to support those benefits. His testimony continued at a snail's pace (as reported in the Standard, this is an insult to snails) and he read every section of the report he submitted with the second tower application as well as his Witness Statement.

Day 18 - March 27: Even More Higgins

Mr. Higgins continued his testimony at an excruciatingly slow pace. He literally has read just about all of his report submitted withe Kirkland second tower application AS WELL AS his report submitted with the Heritage Permit Applications in August 07. This despite the fact the information in both is almost identical.

He again criticized the "current use of a historic building like the Jail as inappropriate". The Jail, of course, is owned by his client who leases it out as a summer bar. He was also again very critical of Mr. Donatelli's renovations of the Port Mansion and insisted it should be demolished and reconstructed to look like it did in the early 20th century.

Day 19 - March 31: Higgins Cross-Examination Finally Begins

Mr. Higgins concluded his testimony with criticism of Prof. Herb Stovel's Witness Statement (PROUD witness) and of the Heritage Assessment report prepared for PROUD by Goldsmith and Borgals in 2006. Like Mr. Kirkland he stated some of Mr. Goldsmith's drawings were inaccurate.

In the afternoon, cross-examination of Mr. Higgins started. Jane Pepino went first because of scheduling (normally the City Solicitor starts the cross-examination). Ms. Pepino reviewed the various Charters and Guidelines commonly used for Heritage Conservation Strategies including the principle of Minimal Intervention. Then she asked Mr. Higgins about the statement in his 2006 report that the proposed development could not be considered Minimal Intervention. He then said he has "changed his opinion" even though he admitted the scheme has not changed since he wrote his report. Interestingly, the developer's lawyer has referred extensively to that report and Mr. Higgins read large parts of it into testimony.

Day 20 - April 2: More Higgins Cross-Examination

This promised to be a very interesting day at the Hearing as the cross-examination of Mr. Higgins continued yet, for the first time in 20 days, there was no reporter from the Standard covering. Mr. Higgins admitted that his mitigating factors such as the tower being at "the tip of the peninsula" and others did not by themselves justified putting a tower in a low-rise heritage district. Under cross-examination by Jane Pepino he then agreed he could not recommend the scheme from a heritage perspective in the absence of economic justifications. It was the "economic stimulus" provided by the tower proposal that tipped the scales for him yet, he has seen no pro-forma, budget or economic analysis.

When asked about the provisions of the Venice Charter regarding heritage conservation Mr. Higgins volunteered that the Canadian Association of Professional Heritage Consultants (CAPHC) expects its members (he is one) to adhere to the Charter. He then said he did not agree with this as the Charter was outdated and too restrictive plus CAPHC was considering changing its position on it. Mr. Higgins also was highly critical of the Port Dalhousie Heritage Guidelines and said there were too vague and provided no guidance at all regarding the commercial Core. Responding to some questions he said Ms. Pepino should ask Mr. Cuming who drafted the guidelines (on Monday he had told us he was not aware that Mr. David Cuming of Archeological Services Inc. was the main architect of those guidelines).

Day 21 - April 3: Even More Higgins Cross Examination

A reporter from the Standard returned to cover the Hearing. Jane Pepino completed her cross-examination of Mr. Higgins in the morning. She asked him whether, as a heritage expert, he would have recommended a high-rise tower in a low-rise heritage district had he been in charge of the project from the beginning (as opposed of trying to make Diamond's or Kirkland's tower proposals "fit"). He kept dodging the question by saying without the high-rise there would not be enough revenue or money to go ahead. Then Ms. Pepino asked him, if the money had been available, you would not have recommended a high-rise would you? He said "Probably not".

City Solicitor Annette Poulin, who has also been very strong, then started her cross-examination of Mr. Higgins. She questioned him on the lack of conformity with the very charters and rules he refers to in his reports. In the afternoon, Mr. Loucks started his cross-examination on behalf of a number of other appellants.

Day 22 - April 4: Higgins Cross-Examination Concludes

The cross-examination of Mr. Higgins, PDVC's sixth witness finally concluded with questions from community appellant Hank Beekhuis (it has taken 6 weeks to hear 6 witnesses). It was only half a day and a lot of the time was taken up by PDVC's lawyer's "Reply" reviewing the cross-examination and trying to mitigate some of the damage that had been done to the credibility of their heritage expert.

Day 23 - April 7: PDVC Witness Michael McClelland

This was the first day of testimony by PDVC's seventh witness, architect Michael McClelland, who did two peer reviews for the City (one rejecting the first tower and a second approving the second very similar proposal).

Mr. McClelland, of course, defended his reversal by arguing this tower is more pleasing, fits in, etc. It is interesting, however that "McClelland said he would also like to see more community consultation on the current design." -something the developer has always avoided.

Day 24 - April 8: McClelland' Cross-Examination and First Public Evening

In the morning, the cross-examination focussed on the Heritage Guidelines and why PDVC Witness Mr. McClelland feels they are not specific enough so that the latest tower proposal can be acceptable.

The Hearing recessed at 2:30 pm to provide a break before the evening public session at 6:30 pm for those speaking in support of the tower. The developer's supporters literally had just about everyone in the City who supports their tower signed up to speak. The Council Chambers were packed (although some were people in opposition). It was a planned, orchestrated show and two members of the "Niagara Citizens" lobby group actually had a list of names and would point to the next speaker and call them. One of the last ones actually read a letter that summarized all of their attacks on community organization PROUD Port Dalhousie.

Day 25 - April 9: More McClelland Cross and Second Public Evening

PROUD lawyer Jane Pepino concluded her very thorough cross-examination of Peer Reviewer Michael MCClelland who rejected the first tower then recommended the current one. Mr. McClelland is very skillful and hard to pin down. However, even though he has criticized the Heritage Guidelines for (he claims) providing little direction for the Commercial Core, he admitted he "Values the document (Guidelines) as it is. A very well executed document." He also, could not explain how he found appropriate direction in the Guidelines to reject the first tower but could then not find direction regarding the second, very similar tower proposal

The hearing concluded in early afternoon to provide a break before the evening public session for those opposing the tower. The gallery was filled to overflow and there were people standing along the sides who could not find a seat. Then, promptly at 6:30, it was the speakers' turn. Unlike the previous night's speakers who addressed mainly unproven economic benefits of taxes and jobs, these speakers focussed on planning and quality of life issues.

There were six speakers who emphasized the heritage value of Port Dalhousie and how the proposal will negatively affect it. Most came from out of town to speak and tell the OMB the Heritage Community is watching this Hearing closely and is extremely concerned about the precedent it could set for other heritage districts in Ontario and Canada.

There were many speakers from the community at large who spoke about planning issues and how Smart Growth principles do not justify the proposal. A number of speakers, spoke about Port's sense of community and what a great place it is to live in and enjoy now. While everyone supports appropriate development in the Commercial Core, Port is not the horrible place the developer makes it out to be. Others addressed how the proposal violates the city's approved Planning Regulations and Heritage Guidelines, why project would not be sustainable and the lack of parking. There were letters submitted from speakers who could not attend and time ran out before everyone who signed up got to speak.

Day 26 - April 10: McClelland Cross-Examination Concludes

The cross-examination of Peer reviewer Michael McClelland concluded and this was followed by a "Reply" from PDVC's lawyer. For each witness there is first an examination in "Chief "where their lawyer gets to try and bring out evidence to support the developer's proposal. This is followed by Cross-examination ("Cross") by our lawyer, the City Solicitor and other appellants. At the end of Cross there is then a "Reply" by the developer's lawyer where he tries to mitigate the evidence the witness gave under Cross which is damaging to their case. A similar process will be followed for our witnesses and lawyer Jane Pepino will first do the Chief and end with a Reply after the developer's lawyer's Cross.

In his Reply, the developer's lawyer emphasized again the argument that the renovations to the Port Mansion in the 1980's were so major that the building has none of its heritage value left and they should let the developer demolish it -something both of the City's Heritage Committees disagreed with.

Day 27 - April 14: PDVC Witness Chris Middlebro, Parking/Traffic

PDVC's Traffic and Parking witness Chris Middlebro first responded to questions by the developer's lawyer and told us how neither the first nor second proposal would be a problem. He was then cross-examined by City Solicitor Annette Poulin and also by Hank Beekhuis -an appellant from the community who has a particular interest in the anticipated traffic and parking problems the development could cause.

Middlebro claimed that "A major commercial and residential development proposed for Port Dalhousie would ease traffic and parking demands in the lakeside community..."

Day 28 - April 15: PDVC Witnesses Middlebro and Tom Smart

Volunteer Hank Beekhuis concluded his cross examination of Chris Middleboro of BA Group, the developer’s traffic expert. Hank worked from well-prepared notes and an organized set of documents to methodically probe BA’s methods, design sources and assumptions. It turned out BA’s reports list about a dozen off-site parking lots intended to make up for some of the average deficiency but their information on many of these was incorrect, and overflow from large events was not adequately provided for. Mr. Middlebro admitted that PVDC would have no control over the 438 slots allocated to businesses they did not own, and confirmed that there appears to be a final deficiency of about 130 parking slots.

Testimony by PDVC's planner Tom Smart then commenced in the afternoon (Mr. Smart was originally scheduled to be PDVC's first witness but his testimony was delayed due to health reasons). Mr. Smart started off by attacking the Heritage Guidelines - a consistent theme of PDVC witnesses. Other witnesses have questioned whether a 3-storey height limit is appropriate for the Commercial Core. Mr. Smart conveniently claims the height limit is only for the residential area.

Day 29 - April 17: Cross-Examination Of PDVC Witness Tom Smart

First, PDVC's lawyer concluded his examination in chief. They are now arguing that the new Council did not have proper information to withdraw support from the proposal: "Under questioning by PDVC lawyer Mark Noskiewicz, Smart said the Rigby council held seven days of public meetings on Port Place and received staff reports before supporting the project." Well...all of this same information and reports -plus an extensive report from Regional Planning- were in fact available to the new Council. Cross-examination by the City Solicitor and then PROUD lawyer Jane Pepino finally got started.

Day 30 - April 21: Witness Smart Finishes, Chapman Starts

First, volunteer Hank Beekhuis cross-examined PDVC Planner Tom Smart on traffic and parking issues. Hank was followed by Jane Pepino. Ms. Pepino got Mr. Smart to make some major admissions during cross-examination. He agreed that the proposal he supports does not really fit nor is it compatible with what is there. Also, that the City's Official Plan has its own Design Guidelines and he did not have to turn to those from the Region when he decided to go beyond the Heritage Guidelines. In the afternoon, examination in Chief of PDVC witness City Planning Director Paul Chapman started. Mr. Chapman wrote the now infamous secret report on the first tower -which we eventually learned rejected the proposal. He then did a full turnaround and recommended the second tower and its unproven economic benefits.

Day 31 - April 22: PDVC Witness Chapman Continues

Examination of City Planner Chapman by PDVC's lawyer settled into the usual snail's pace (our apologies to all those snails who are faster). Instead of cross-examination starting yesterday, Mr. Chapman slowly read many parts of his planning reports. He also brought Economics as opposed to Planning into it: "Chapman also said the tower is regarded by local business owners as essential to the economic sustainability of the area. " This despite the fact there are no studies, research or other support for the Economic benefits claimed.

Day 32 - April 23: City Planner Chapman in Cross-Examination

Under cross-examination by PROUD lawyer Jane Pepino, Mr. Chapman tried to explain why the did a U-turn and recommended the second tower proposal yet rejected the very similar first proposal. He admitted that the decision should be made on Planning -not Economic- issues: "....Chapman agreed with Pepino that economic considerations should not override good planning." Yet, he contradictorily stated: "One of the reasons (Paul Chapman) supports the Port Place development is the potential it offers for revitalizing Port Dalhousie’s commercial core."

Day 33 - April 24: Chapman Cross-Examination Continues

Lawyer Jane Pepino continued her cross-examination. She was extremely well-organized and thorough as always and was able to get Mr. Chapman to agree to a number of statements that weaken the value of his testimony for the developer. For example, he agreed that the Region's Urban Design "angular plane" test, which has been used extensively by Architect Mr. Kirkland to try and justify the tower, is not met from either the Main St. or the Park sides.

Day 34 and 35 - April 29 nd 30: Glover and PDVC Lobbyists

On Tuesday April 29th, City Solicitor Annette Poulin concluded her cross-examination of City Planner Paul Chapman who reversed his position on the second tower. Ms. Poulin has been excellent as she represents the City and our taxpayers against the developer.

Tuesday afternoon, PDVC witness Mr. Glover started his testimony in chief. Glover is an Urban Design expert just hired by PDVC in December. According to his witness statement, it is his expert opinion that the tower is both "sympathetic" to the existing buildings and "generally of the same height". Glover's testimony continued Wednesday afternoon April 30th. In the morning, some of those lobbying for the developer got to speak including Walter Sendzik of the Chamber and David Roberts and David Serafino of the "Niagara Citizens" lobby group. Sendzik focussed on the unsubstantiated economic benefits while the other two mostly attacked PROUD Port Dalhousie. After speaking they were each cross-examined by Jane Pepino. Don't you wish you could have been there?

Day 36 - May 1: Glover Ends-More PDVC Lobbyists Monday

Thursday May 1st was a short day at the Hearing and the cross-examination of PDVC's witness Mr. Glover by our City Solicitor concluded.

Day 37 - May 5: Another Momentous Day at OMB Hearing

Today marked another milestone as members of the "Niagara Citizens (NCSD)" lobby group were called to task for attacks on volunteer community organization PROUD Port Dalhousie. NCSD is the group whose sole purpose is to advocate for the PDVC proposal, holds its meetings at PDVC's offices, and whose newsletter (as reported in the Standard) PDVC paid to publish in the local papers yet, claims they are not associated with the developer. Below is a brief summary of what came out in cross-examination by Jane Pepino (an asterisk indicates the person is a member of the Niagara Citizens lobby group):

1. Mr. Pennachetti who used to own the restaurant that is now Treadwell's admitted he did not write his Participant Statement submitted to the OMB in January, did not know who did nor had he ever seen it. He also told us his hotel and condos in Jordan are all low-rise yet he supports a tower in Port's heritage district.
2. Ms. Alderson, Chair of the Port Business Association told us the motion for the association to support the PDVC proposal was moved by Mr. Raseta, then Vice-Chair of the Association's Board and a PDVC principal. When asked if the Association had rules on what constituted a conflict, Ms. Alderson said she did not know.
3. Mr. Kirwin* once again compared Port to Liverpool and the revival of that City's Heritage areas. When asked, he could not point out in his own visuals any high rises that were visible near Liverpool's heritage buildings.
4. Mr. Bedwell* tried to explain why he objected to PDVC having to submit heritage permits as this cost the developer time and money and gave PROUD 6 more months to fundraise. Why is he opposed to a community organization having time to fundraise? He also admitted PDVC had offered $250,000 to restore historic Dalhousie House -providing PROUD did not appeal. In addition, he admitted a Mr. Curt Harley* was a member of their group and then claimed not to know much about Mr. Harley's ongoing harassment of the Architectural Conservancy of Ontario (ACO) trying to stop fundraising by their St. Catharines branch. He then got into some attacks on PROUD and the Chair indicated her displeasure as she had told their group to avoid this following Mr. Serafino's personal attacks the previous week.
5. Mr. Deketele* started to attack and the Chair promptly gave him back his statement and said she would hear anything he wanted to say but did not want to hear more attacks.
6. Regional Councillor Bruce Timms* admitted he was a member of NCSD at the time of the 06 vote at Regional Council.
7. Mr. Petrowski*, was shown emails he had sent to the immediate superior of appellant Hank Beekhuis complaining that Hank's employer was supposed to support the business yet he was opposing the PDVC project that would bring construction jobs. Mr. Petrowski copied other members of Hank's employer in an attempt to get him in trouble. The Chair became visibly angry and upset.
   In addition, Mr. Petrowski was shown emails he sent to sponsors of last Fall's Run for Fitness and Heritage trying to get them to drop their sponsorship and thus undermine ACO-St. Catharines' fundraising attempts. At this time, the Chair stopped the cross-examination saying she had had enough, was too angry to proceed further and that we would stand down for the day. She looked at the NCSD group, told the Hearing she was very angry and did not care if the press quoted her, and said: "if you think you have helped the proponent, you haven't."

Day 38 - May 6: City Planner Blozowski Starts; Back to a Slower Pace

The City's case started today and could go most of May. The case by PROUD and other appellants may likely get started by the last week in May but, then there is a break starting June 5th and resumption can not be scheduled before early to mid October.

City Solicitor Annette Poulin started the City's case by calling planner Kevin Blozowski. Mr Blozowski is the planner who is a resource to both Heritage Committees. He also worked very closely with the community in obtaining the heritage designation for Port. He started out by relating how thorough and democratic the process had been for securing that designation and how it took a full five years. He then gave some of his expert opinions: "...city planner Kevin Blozowski, staff adviser to the St. Catharines and Port Dalhousie heritage committees, told the hearing the proposed project “fundamentally and irreversibly changes the character of the district,” contrary to the intent of area heritage guidelines".

Day 39 - May 7: City Planner Finished; Heritage Committees Start

The city's planner who is a resource to the Heritage Committees (he was not qualified as a Heritage Planner by the OMB) continued his testimony. Mr. Blozowski continued to state his opposition to the proposed tower and the treatment of the historic jail. Also, although he is not an expert in municipal law, he agreed with the developer's lawyer in cross-examination that he felt Council did not follow an appropriate process before withdrawing support for the tower proposal because: "the March 2007 decision to withdraw council support did not follow the same process, and was therefore inferior to the first decision-making process."

Mr. Blozowski also testified that there was a flood of applications to volunteer for the Port Dalhousie and St. Catharines Heritage Committees after the last election. Normally, there are VERY FEW applicants. Many of the applications were from members of the developer's lobby group who had never volunteered before.

Day 40 - May 8: "Raping and Pillaging" Our Heritage

Volunteer members of the St. Catharines Heritage Committee testified on the committee's report recommending the Heritage Permit Application by PDVC be denied. "Brian Narhi and Robin McPherson told the hearing Ontario heritage permits shouldn't be issued for the proposed 17-storey condominium tower, which would include 80 units, a 70-room hotel, a 415-seat theatre and a commercial centre."

Mr. Nahri was an excellent witness for the City and when asked by City Solicitor Annette Poulin if he had any personal opinions to add, he had a few comments: "As a personal opinion, Narhi said the proposal represented a "gutting of the commercial core" and a "raping and pillaging of our heritage." Needless to say, this got the developer's lawyer quite excited.

Day 41 - May 12: Port Dalhousie Heritage Committee

Committee member Deborah Kehler was called as a witness by St. Catharines City Solicitor Annette Poulin. Ms. Kehler testified about the history and composition of the Port Dalhousie Heritage District Advisory Committee and confirmed she was a member since the committee's inception in January 2004.

She also explained that it was not surprising that members of PROUD comprised the majority on the Committee since PROUD was the heritage organization that worked closely with the City to obtain heritage designation. They were the people involved, and they were the people that volunteered to be Committee members BEFORE anyone heard of a tower proposal.

Ms. Kehler went through a very detailed report from the committee that concluded PDVC's Heritage Permit Applications should be refused. The report addressed each individual building and proposed change in detail and was the result of extensive consultation and review by each member of the committee. “We took these tasks very seriously,” said Kehler. “We went through the materials in as thorough a fashion as we were capable".

Day 42 - May 13: Port Dalhousie Heritage Committee Continues

PDVC's lawyer continued his cross-examination of Port Dalhousie Heritage Advisory Committee member Deborah Kehler. He focussed on the fact that Ms.Kehler is both a member of PROUD and the Committee and she explained the two were totally separate organizations with the common goal of enhancing and preserving heritage. After the lunch break, a second volunteer from the Committee, Mr. David Webb, was called by the City Solicitor. Mr. Webb is a long-time employee of Parks Canada and has extensive experience in the application of Parks Canada Standards and Guidelines. As reported in the Standard, the City Solicitor did not try to qualify Mr. Webb as an expert witness like (PDVC architect) Spencer Higgins was. Nonetheless, he gave detailed evidence on how the Parks Canada Standards and Guidelines ought to have been applied.

Day 43 - May 14: PD Heritage Committee and Planner Martindale

Cross-examination of Heritage Committee volunteer David Webb concluded. PDVC's lawyer introduced a document from the City of Toronto regarding their application for UNESCO World Heritage Site status. Their argument was that you can see many towers around Fort York and therefore, a tower in Port Dalhousie should not preclude the latter from also potentially becoming a World Heritage Site. Mr. Webb disagreed and felt it was a matter of "context" as Fort York was within a large urban setting.

Mr. Bob Martindale, the Planner hired by the City to support its opposition at the OMB followed Mr. Webb. Mr. Martindale is a highly-experienced planner that was retained by the City for this case because Mr. Chapman had reversed positions on the second tower application. In his comprehensive testimony Mr. Martindale, who was qualified as a Land Use Planner and Heritage Planner, identified numerous sections from planning regulations, international charters and the Heritage Guidelines that he felt the tower proposal contravened:"...he concluded the proposed development violates the city's Official Plan, the Port Dalhousie secondary plan, the Ontario Heritage Act, the Ontario Planning Act, the Provincial Policy Statement, Niagara Region's policy plan and the Port Dalhousie Heritage District Guidelines for Conservation and Change".

Day 44 - May 15: Heritage Planner Martindale in Cross-Examination

The developer's lawyer made every effort to weaken the very strong planning arguments against the proposal that Mr. Martindale had made the previous day. He got Mr. Martindale to agree there were some good points in the design: "As a project itself, it's quite well designed. I just have a problem with its location." Later, Martindale added that the height of the proposed tower is a "fundamental issue." "It's the volume and scale".

Day 45 - May 20: Regional Planner Benson's Strong Testimony

Region of Niagara Planner Curt Benson was called to testify by City Solicitor Annette Poulin. Mr. Benson was the main author of the Region's Planning Report in 2006 that recommended rejection of the tower proposal. Despite this comprehensive report from their own planners, Regional Councillors, led by Councillors Timms and then Mayor Rigby, voted to approve the proposal in late 2006.

Mr. Benson covered the planning report in detail. One of his main points was that it is inappropriate for PDVC witness Higgins, peer reviewer McClelland, and others, to rely on the Region's Urban Design guidelines -and even the Heritage District Guidelines- to address whether the proposed design fits. His opinion is that Urban Design is used for mitigating/integrating design impacts and that the direction for what is allowed should come from Planning policies such as the Provincial Policy Statement, Official Plan and Secondary Plan: “The overall theme is they (other experts) have put emphasis and weight on the Region’s Model Urban Design Guidelines and the Port Dalhousie Guidelines for Conservation and Change, when the emphasis should be on the planning policy framework” . He felt it is quite clear in the Official Plan that new construction in a heritage district must not exceed current heights and must be compatible with existing buildings. Mr. Benson then defended his position under cross-examination by PDVC's lawyer.

Day 46 - May 21: Port Dalhousie's Parking Shortage Highlighted

Two witnesses were called by the City to testify about the potential impact of the proposed development on Port's already strained Parking and Traffic capacity. Traffic expert Phil Grubb agreed that the development will cause further parking problems: “There is very little extra parking in the core area of Port Dalhousie,” Grubb said. “During a typical weekend day, parking is almost all used. Adding another development proposal such as this, that relies on that parking, will cause demand to exceed the available parking supply.” Mr. Grubb was cross-examined by appellant Hank Beekhuis who once again did an excellent job. The city's Transportation Services Manager, Kris Jacobson, started his testimony in the afternoon.

Day 47 - May 22: City's Case Against Tower Concludes

Today's Hearing was only a half day and the City's Transportation Manager, Kris Jacobson, completed his testimony. He was questioned by appellant from the community Hank Beekhuis who again highlighted parking deficiencies. This completed the City's case against the proposal.

Day 48 - May 26: Theatre Likely a "Warehouse of Empty Seats"

Appellant Hank Beekhuis who once again did an excellent job. The city's Transportation Services Manager, Kris Jacobson, started his testimony in the afternoon. PROUD Port Dalhousie's case at the OMB finally started and got off to a very strong start as Patrick Harrington, a lawyer working with Jane Pepino, called PROUD's first witness, theatre expert Janis Barlow.

Mr. Harrington did an excellent job of bringing out key evidence about the proposed theatre that would be built underground as part of the tower proposal. Ms. Barlow used her extensive experience in theatre planning and management to demonstrate that the proposed theatre is extremely unlikely to work and would likely end up as a white elephant requiring heavy subsidies from the taxpayer. She also emphasized that there is no business plan or feasibility study and little or no work has been done to support the business case for the theatre: "It’s not likely to revitalize Port Dalhousie, not likely to be a catalyst for this development,” she said. Barlow also said she thought the development’s accompanying tower would prove to be “repellent to the cultural tourist.”

Ms. Barlow also told the Hearing that it is her understanding that the current small (88) seat theatre at the Port Mansion operates at only around 50% of capacity and has now changed to an amateur theatre because it could not make a go of it as a professional theatre. While everyone would like to see a successful theatre in Port, we certainly don't need empty new buildings that could turn into bars.

Day 49 - May 27: Guidelines' Author Rejects Tower Proposal

This was a most-revealing day at the OMB. PROUD lawyer Jane Pepino called Planner David Cuming as a witness. Mr. Cuming is not only a highly-experienced Heritage Planner, he has particularly relevant experience. He worked at the Ministry of Culture where he drafted the Guidelines that are followed by municipalities for the designation of heritage conservation districts (like Port Dalhousie). He has been the author of 13 heritage conservation district studies at the municipal level -including for the Queen Street and Port Dalhousie Districts in St. Catharines. He also drafted the Guidelines that Council approved and now guide development and change in the Port Dalhousie district. In his words: "Anything above a third floor will not fit in a Heritage Conservation District of Two and Three storeys".

Ms. Pepino asked Mr. Cuming to explain both the study he did for Port Dalhousie and his subsequent Guidelines that he believes would clearly be contravened by the tower proposal.

Day 50 - May 28: Guidelines' Author Supports Height Limit

Planner David Cuming, who as a consultant drafted the Guidelines that Council approved and now guide development and change in the Port Dalhousie district, continued his testimony. Lawyer Jane Pepino took him through his September 2007 report to the Port Dalhousie Heritage Committee which concluded: "I can categorically advise that it was a stated objective and intent of the Guidelines to ensure that any new residential and non-residential construction was not to exceed the existing building height". And, Cuming said the “bottom-up” nature of the process that led to the creation of the Port Dalhousie Heritage District in 2003 clearly demonstrates that the people of Port wanted to protect their community’s character. “My conclusion would be that this proposal is inappropriate in this district. It cannot be supported.”

Under cross-examination by PDVC's lawyer, Mr. Cuming then answered many questions about specific sections of the Guidelines that the lawyer argued were not clear or did not reflect his stated intent.

Day 51 - May 29: Heritage Planner Wayne Morgan

This was yet another important day of testimony as lawyer Jane Pepino called evidence from PROUD witness Wayne Morgan. Mr. Morgan, a highly-experienced Heritage Planner, testified that the PDVC proposal was contrary to multiple relevant heritage policies and charters including: the Provincial Policy Statement, International Charters, the City's Official Plan and the Heritage Guidelines. Even if there were no Guidelines (in other words if the District had not been designated under the Ontario Heritage Act) he felt it was clear the proposal does not fit with the heritage character and should not be approved. He also pointed out why intensification policies in the Places to Grow legislation do not apply nor justify the proposal.

Day 52 - June 2: Heritage Planner Wayne Morgan Continues

Lawyer Jane Pepino concluded calling evidence from PROUD witness Wayne Morgan and cross-examination started.

Mr. Morgan continued to testify that the PDVC proposal is contrary to multiple relevant heritage policies and charters. He also re-emphasized that, even if there were no Guidelines (in other words if the District had not been designated under the Ontario Heritage Act), he felt it was clear the proposal does not fit with the heritage character and should not be approved. He also pointed out why he feels approval of the proposal would set a precedent that will impact all heritage districts. The developer's lawyers and witnesses have argued approval will not set a precedent yet, yesterday's cross-examination of Mr. Morgan focussed on how Toronto's Distillery District "has towers on the edges and this precedent justifies their position that a tower is OK in Port Dalhousie."

Day 53 - June 3: Heritage Architect's Powerful Testimony

Lawyer Jane Pepino called testimony from Heritage Architect Phil Goldsmith. Ms. Pepino first reviewed Mr. Goldsmith's extensive heritage credentials in detail (he is recognized as one of Canada's top Heritage Architects). Mr. Goldsmith told the Hearing our lakeside community retains many “astonishingly” well-preserved characteristics of a 19th-century village. He said the village’s heritage character and qualities — something he repeatedly called “villageness” — would be overshadowed by the development: “That tower, no matter how it is treated, will alter that skyline permanently.”

Day 54 - June 4: Phil Goldsmith and Heritage Canada Foundation

The day started with PROUD lawyer Jane Pepino making a clear and logical legal argument... as to why a revised set of Views -and an animation of those views- prepared by Heritage Architect Phil Goldsmith, should be allowed into evidence. These are views Mr. Goldsmith feels show the dramatic adverse impact of the proposed massive tower yet, were not included in (PDVC architect) Mr. Kirkland's visual evidence. Chair Susan Campbell ruled the views would be allowed and they were eventually shown to all parties.

Mr. Goldsmith's testimony was temporarily halted to allow Natalie Bull, Executive Director of the Heritage Canada Foundation (HCF) to make a presentation. HCF is a Participant at the Hearing and Ms. Bull, who flew in from Ottawa to speak at the Hearing, delivered an excellent presentation highlighting why the Foundation opposes the tower proposal and their major concern about the negative precedent approval would set. She also pointed out Port Dalhousie continues to be on the Foundation's list of Most Endangered Heritage Places and is currently identified as a "Red Alert" case.

Mr. Goldsmith once again pointed out that so much of Port's 19th century heritage survives and that it is critical to preserve the village quality. His cross-examination started late in the day.

Day 55 - June 5: Goldsmith's Testimony Continues and OMB Break Starts

Today's Hearing was fully taken up with the cross-examination of Heritage Architect Phil Goldsmith. The opposing lawyer brought out multiple exhibits about Phil's previous work in Toronto to attempt to show that he believes towers and heritage buildings are compatible in Toronto and not in Port Dalhousie. The examples included the National Ballet School on Jarvis St. and a historic mansion on Sherbourne St. Mr. Goldsmith remained steadfast in his replies which emphasized a large urban setting where, towers already abound, is a totally different context from Port's village setting with no high rises ANYWHERE in sight. Also, that the Toronto examples included individual heritage buildings as opposed to a designated Heritage District like Port Dalhousie.

In the afternooon, PDVC's lawyer focused his cross examination on the different views of the proposed tower development that Mr. Goldsmith had introduced. He tried to get Mr. Goldsmith to attack the motives of PDVC's witnesses -like PDVC's Mr. Kirkland had done to him by suggesting he intended to mislead. Most appropriately, Mr. Goldsmith took the high road, as PROUD always has, and refused to attack his colleagues or speculate on their motivation. PDVC's lawyer was excruciatingly detailed and slow. So much so that cross-examination did not finish by 4 pm. This means Mr. Goldsmith now goes into the extended break during which he is not allowed to discuss the case.

The Hearing adjourned due to scheduling conflicts and will resume Wednesday October 8th.

Day 56 - October 8: Goldsmith Concludes/Stovel Begins

The Port Dalhousie OMB Tower hearing resumes after a four-month break.

PDVC's lawyer Mark Noskowiecz continued with the cross-examination of PROUD's Heritage Architect Phil Goldsmith (this was cut short when the Hearing adjourned in June). Mr. Noskowiecz showed photos taken by PDVC architect Michael Kirkland to argue that trees and building design features not shown in Mr. Goldsmith's massing model renderings will mitigate the visual impact of the proposed tower. Mr. Goldsmith responded that his was only a massing model (not intended to show that much detail) and that, while he agreed there will be some mitigation from some locations, this is only during the six months that leaves are on the trees. Regardless of any mitigation, Mr. Goldsmith still concluded the proposed tower is inappropriate and will sever the historical connection to a canal village.

In the afternoon, PROUD lawyer Jane Pepino started by qualifying Canadian and International heritage expert Herb Stovel as a witness. Ms. Pepino reviewed only highlights of the short version of Prof. Stovel's extensive CV including some of his ongoing work with Unesco World Heritage Sites. Prof. Stovel was qualified by the Chair as an expert witness in three categories: Conservation Architecture, Heritage Architecture and Heritage Policies and Processes. Prof. Stovel's testimony just got underway before the Hearing ended for the day and, under questioning by Ms. Pepino, he stated that: "It (the tower) marked a very dramatic rupture with something that evolved over time".

Day 57 - October 9: Powerful Testimony From Heritage Expert Prof. Herb Stovel

The OMB heard powerful testimony from leading Canadian and International Heritage expert Prof. Herb Stovel. Confirming previous testimony from other top heritage experts, including Wayne Morgan, David Cuming and Phil Goldsmith, Prof. Stovel testified that: “It (the tower proposal) doesn’t positively contribute to the character of the area. It replaces the character of the area with something alien to the area”

Prof. Stovel also concluded that the Heritage Assessment prepared for PDVC by Spencer Higgins was flawed -not only because it was selective in which heritage principles it applied but, because it attempted to substitute an evaluation by one expert (Higgins) for the evaluation of heritage values already done by the community through the lengthy and very public designation process. In fact, he testified that the Heritage Guidelines, developed by heritage expert David Cuming as part of the designation process, met all the requirements under the Ontario Heritage Act and were more detailed and specific than many others he is familiar with.

Day 58 - October 10: Prof. Stovel in Cross-Examination

PDVC's lawyer started cross-examining heritage expert Prof. Herb Stovel in the afternoon. The lawyer focussed on Prof. Stovel's concern expressed in his previous testimony that PDVC had not given the community alternative plans to consider in order to make an informed decision. Despite extensive discussion, Prof. Stovel was firm on his position that the proper process for achieving consensus had not been followed. He also reiterated his professional opinion that the tower proposal was incompatible with the heritage character of the commercial core as defined in the Council-approved heritage guidelines. The core, he has stated, is the "heart" of the heritage district and the proposal would place an alien structure right in the middle of this heart.

Day 59 - October 14: Prof. Stovel and Corwin Cambray - PROUD's Case Concludes

PDVC's lawyer's cross-examination of heritage expert Prof. Herb Stovel concluded during the morning session. Lawyer Noskowiecz's main line of questioning was on Prof. Stovel's criticism of Spencer Higgins' Heritage Assessment report prepared for PDVC. Prof. Stovel testified that Higgins' focussed (erroneously) on the heritage value of individual buildings as opposed to the heritage value of the designated district as a whole (the correct approach). Prof. Stovel reiterated this position several times and would not change it despite the lawyer's questions. He also emphasized again that the tower proposal overwhelms the heritage of the district.

In the afternoon, the Board heard testimony from highly-respected Planning expert Mr. Corwin Cambray. Mr. Cambray was Commissioner of Planning for the Region which issued a detailed report recommending refusal of the PDVC application. In strong testimony Mr. Cambray stated that the proposed development represents "a 180 degree turnaround in the direction of established Public Planning and Policy" and that it "undermines the Region's principles of Smart Growth" (PDVC's witnesses have been trying to use Smart growth as a justification for the tower). He was then cross-examined by PDVC's lawyer and by the Region's lawyer Mr. Kyne. Despite very aggressive questioning by Mr. Kyne, Mr. Cambray was very firm in sticking to his professional opinions.

This concluded PROUD's case.

Day 60 - October 15: Appellant Hank Beekhuis' Case - Traffic and Parking

Community appellant Hank Beekhuis started his case, which focussed on the tower proposal's traffic and parking deficiencies. He first called Port resident, and appellant, Mr. Jim Vanderburgh as a witness. Mr. Vanderburgh testified that he lives very close to the park and carousel and has a front row view of parking problems. He produced both a book of photos plus measurements of how many parking spots actually exist throughout Port right now. His measurements were intended to demonstrate that the City's parking consultant overestimated what exists now but, this evidence was not allowed because PDVC's lawyer argued he was not a parking expert. He did go through the photos which clearly demonstrated there is already a severe parking problem in busy afternoons WITHOUT the development.

In cross-examination PDVC's lawyer questioned the credibility of the witness by requesting evidence that he had a legal right of way to drive over the private lane that accesses his family's home. How relevant is this??? The lawyer also argued that the City's consultant claimed traffic and parking would not be as severe a problem as the witness claimed.

Mr. Beekhuis called two more witnesses: Mr. Phil Baranowski and Ms. Michelle Fisher who both provided further evidence that traffic and parking problems would be aggravated by the development. Once again, the cross-examination focussed on what the City's consultant had reported.

Day 61- October 17: Appellant Jeff Loucks' Case - Pat Waters and John Bacher

Community appellant Jeff Loucks, who is representing a number of other appellants, started his case. He first let the Board know that Prof. Ken Loucks would be unable to testify on the economic viability of the project (or lack thereof) due to illness. He then called Port resident Mrs. Pat Waters as a witness. Mrs. Waters gave a wonderful and detailed account of the development of the businesses in Port starting in 1977 and of her family's 94 year history in the area -including the dedication to preservation of the Welland Canal by her father Mr. Lou Cahill. She told the Board she supported development in the commercial core but the tower proposal was definitely inappropriate.

Mr. Loucks then called local historian Dr John Bacher. Dr. Bacher provided a most interesting and detailed historical perspective on the development and significance of Lakeside Park. He compared our case to the OMB case over King's Point in NOTL where some of the same developers proposed a taller-than-allowed high rise building. Dr. Bacher felt the two cases are very similar in that the historical vistas and views in Port should be maintained and respected as they were in NOTL.

Neither witness would change their stated positions under Cross-Examination but the Chair did not allow their more detailed witness statements in as exhibits due to objections from PDVC's lawyers on procedural grounds. Mr. Loucks himself intended to testify and his evidence was also not allowed on procedural objections so he declined to testify.

Day 62 - October 20: Mr. Loucks Concludes: George Darte and Sam Baio Testify

Appellant Jeff Loucks, who is representing a number of other appellants, first called Port resident and appellant Mr. George Darte, a highly-respected businessman and community leader as a witness. Replying to a question, Mr. Darte first listed the many charitable and community causes he is involved with. He has been intimately involved in raising close to $80 million for local charities and estimates 35-40% of his time is taken up with volunteer work. To this end, he told the Board he was very concerned that the efforts of so many volunteers who worked hard on Heritage Designation would be wasted if the proposal were approved. He also expressed his concern about Traffic and Parking and told the Board, the Chamber of Commerce (whose Executive Director appeared in support of the tower) does not speak for him and for many of his colleagues who are members.

Mr. Loucks' second witness was Port resident Mr. Sam Baio, currently CEO of West 49, a retail chain with 135 stores across the country. Mr. Baio was qualified as an expert in Retail based on his over 35 years of experience. Under questioning, Mr. Baio told the Board that "inside" retail such as that in the proposed courtyard does not work well and that having to access this retail from the parking lot via stairs would also be detrimental. In a Main Street type of setting retail stores need to face the street directly.

Mr. Baio also testified, using examples, that while some retail customers may come to the modern tower development once if built, customers will keep coming back to a development that is in keeping with the unique heritage. Customers prefer a village setting and ambiance.

Both businessmen prefaced their remarks by stating they were strongly pro-development but this was the wrong development. PDVC's lawyer did not have a lot of questions although he introduced photos of George Darte's home to argue his house (built before designation) was not a good fit for the heritage district yet he opposed the tower.

This concluded Mr. Loucks' case and was followed by Participant Jennifer Harte who told the Board why she opposed the proposal. Ms. Harte was the final speaker in the case against the tower and this concluded all testimony.

Day 63 - October 27: PDVC's Reply to Testimony Opposing the Tower

As the applicant, PDVC has the right to reply to previous testimony against the proposal by the City, PROUD and other appellants and participants. PDVC only recalled two of their witnesses: architect Michael Kirkland and planner Tom Smart.

Most of the testimony was by Mr. Kirkland and lawyer Jane Pepino cross examined him and questioned a number of his claims. She asked whether he had participated in a "seance" because Mr. Kirkland claimed to know with certainty that the builders of the Lakeside Hotel back in the 19th century intended to have other buildings constructed immediately adjacent to it (as in PDVC's proposal). A second far-fetched claim by Mr. Kirkland was that the only location from which you would see the 20-storey height tower (if built) was Mr. Huck Berry's house (at Lock and Main corner). City Solicitor Annette Poulin called him on this one and he had to admit that, what would be the tallest building in all of St. Catharines, would indeed be visible from other locations.

In the afternoon, PDVC planner Smart introduced photos and information about the recent historic discovery of Lock 1 of the first canal in Lakeside Park. All parties, and the Chair, reviewed this information and a number of questions were asked about the discovery. PDVC's lawyer introduced a sequence of Minutes from various Council meetings showing how Council had taken the initiative to find the lock buried in the park. Copies of a Power Point presentation delivered by Councillor Williamson at the October 20th Council meeting were also distributed. Councillor Williamson has long been the leading advocate of excavating the Lock and first canal and believes this discovery will lead to a major tourist attraction for the City, Region and Province.

PDVC's Reply concluded by 4 pm and now there is a recess until November 10th as all parties prepare their final arguments which will be delivered both in oral and written form.

Day 64 - November 10: Start of PDVC's Final Argument

The full day was taken up by PDVC's lawyer, Mr. Noskiewicz, as he told the Board how he believes their proposal is actually consistent with The Provincial Policy Statement, the City's Official Plan and the Heritage Guidelines. He kept mentioning how witnesses in opposition agreed with him on certain points and emphasizing that PDVC's witnesses took the Guidelines seriously and those from PROUD and the City did not.

Mr. Noskewiecz repeatedly emphasized the importance of the fact their proposal (they claim) would revitalize the Commercial Core yet, he also claimed that "there is no onus on PDVC to prove the proposal's economic viability". Also, despite his repeated attacks on the Ministry of Culture's lack of interest or relevance in the case, he read out an email from the Ministry's Dan Schneider which he claimed supported his position on the relative merits of designation before and after the latest revisions to the Heritage Act.

Day 65 - November 11: PDVC's Final Argument Continues

Once again, the full day was taken up by PDVC's lawyer, Mr. Noskiewicz, as he told the Board how he believes their proposal is actually consistent with applicable policies. Again, he told the Board that PDVC's witnesses took the Guidelines seriously and those from PROUD and the City did not: "The city’s paid heritage expert Michael McClelland supported the development after 'objective analysis,' Noskiewicz said, while the experts hired by the tower’s opponents offered only 'subjective opinion.'

He also criticized the City's Heritage Committees for their decision-making processes. He related how the St. Catharines Heritage Committee once agreed with PDVC's proposed reconstruction of the Port Mansion's facade. However, they disagreed with this in their final report and each time recommended against their proposed demolition of the heritage building. Regarding the Port Dalhousie Committee he claimed the committee "made up its mind about Erskine's Pharmacy based on an article written in the Port Reporter by a member of PROUD". Not only do committee members deny this, he neglected to tell the board the committee decided the Pharmacy building could be considered for demolition as PDVC are requesting.

Perhaps the most incredible claim was that: "Unlike other development proposals, which are often supported only by the developer, the PDVC plan enjoys wide community support". We encourage Mr. Noskiewicz to go out in the community and try to find this wide support.

Day 66 - November 12: PDVC Concludes, Followed by Region

Much of the day was again taken up by PDVC's lawyer, Mr. Noskiewicz, who finally concluded his argument at 1:15 pm. "Noskiewicz had harsh words for St. Catharines city council and its March 2007 decision to withdraw its support for the tower."

In fact, the developer's lawyer had harsh words for many of his opponents as he closed out his arguments. He attacked PROUD lawyer Jane Pepino for her position on Council's withdrawal of support for the tower proposal -a position he called "preposterous." He also criticized highly-respected heritage architect Phil Goldsmith and said his massing renderings designed to show views PDVC had not shown were “woefully inadequate and misleading.” "He also criticized Bob Martindale, the anti-tower planner hired by the City of St. Catharines for forming his opinion about the development 'based on (magazine) articles' written by PROUD members Deborah Kehler and Carlos Garcia." These were articles written for ACO's Acorn Magazine and Mr. Martindale, in fact, only said he formed a preliminary opinion based on them.

Not to be outdone, Niagara Region lawyer Michael Kyne delivered his closing arguments, in which he criticized Regional planners Corwin Cambray and Curt Benson for their anti-tower recommendation. "Kyne is appearing at the hearing to support regional council’s pro-tower decision, so his arguments Wednesday were intended to discredit the regional planners’ work." Referring to the Peer Review he said the planners: “Either they didn’t fully read it, or they read it and didn’t understand it, or they had a result in mind and Mr. McClelland’s analysis didn’t fit in with that result".

Day 67 - November 13: Powerful Final Argument by City Solicitor

The tone of the Hearing changed today as those opposing PDVC's tower proposal took centre stage. City Solicitor Annette Poulin delivered a thorough, logical, coherent and professional final argument on behalf of the City of St.Catharines. Her final conclusion was that "even if Port Dalhousie wasn’t a heritage district, the Port Place tower proposal should never have been approved."

Ms. Poulin reviewed the Port Dalhousie Heritage District Plan in detail and argued that the provisions of the Ontario Heritage Act must take precedence when considering development applications in the Heritage District. She then proceeded to methodically review the numerous applicable planning policies in the Provincial Policy Statement, the Planning Act, the Regional Policy Plan, the City's Official Plan and Port Dalhousie Secondary Plan, and the Smart Growth Plan, and how they guide development in Port Dalhousie. She concluded that even without the heritage designation, the proposal does not conform to applicable planning policies and should not be approved.

Day 68 - November 14: Jane Pepino: Heritage is the MAIN ISSUE

Lawyer Jane Pepino, representing PROUD Port Dalhousie and its over 600 volunteer members, started her final argument. In her opening overview, Ms. Pepino reviewed the background of the heritage designation and PROUD's extensive involvement, the history of the two PDVC tower applications and, the reasons for PROUD's steadfast opposition. She concluded that: "...this case is a test. It is a test of the protections that guard Port Dalhousie's cultural heritage. It is a test of the strength of the Ontario Heritage Act. It is a test of the heritage-related policies of the Regional and City Official Plans. It is a test of whether heritage value can be exchanged for promises of 'public benefits/economic revitalization'. Finally, it is a test to determine what role heritage planning truly plays in the stream of land use planning considerations".

As quoted in the Standard: "Pepino reminded the hearing chair that her ruling will be seen as a test case of local and provincial planning policies and protections put in place to guard against the loss of heritage elements." "It's a test of whether heritage values can be exchanged for public benefits (and) revitalization," she said.

Ms. Pepino reviewed the first (Diamond) proposal and details of its proposed justification and attendant reports and showed that little has changed in the second (Kirkland) proposal -only the direction of some reports. She then analyzed the applicability of the Ontario Heritage Act in detail -including case law. She concluded that: "...to give effect to the purpose of the Ontario Heritage Act, the Board must find conformity with relevant heritage protection policies prior to issuing an approval for any heritage permit and prior to assessing the land use merits of the proposal under the Planning Act. To do otherwise constitutes a significant error of law that would be reviewable by the courts of Ontario". City Solicitor Annette Poulin also concluded Heritage must take precedence in her argument the previous day.

Day 69 -November 17: Pepino: Proposal Would Destroy Villageness

Yet another historic day in the defence of Port Dalhousie's heritage, as lawyer Jane Pepino continued her final argument. Ms. Pepino reviewed applicable heritage policies in detail including: the Ontario Heritage Act, the District's Guidelines, the role of the Heritage committees, the International Charters and other policies. She highlighted the recent discovery of Lock 1 of the First Canal and stated it "could serve as the basis for seeking federal heritage recognition for Port Dalhousie and will certainly bolster the Region's application for the Canal Corridor". "However, if this 'villageness' is negatively impacted or destroyed by the approval of the PDVC proposal, PROUD submits that any hopes for a federal designation may be destroyed as well".

Ms. Pepino gave particular emphasis to the testimony of Heritage expert Mr. David Cuming as author of both the District Designation Study and the Guidelines: "The best evidence as to interpretation of the texts is Mr. Cuming's and his opinions are thus entitled to greater weight than those of a reader of the documents. Mr. Cuming's evidence is of significant, powerful help to the Board". On the role of the City's Heritage Committtes, both of which strongly recommended refusal of the proposal: "Pepino said the volunteer members of the heritage committees are required by law to offer advice on heritage proposals, and their views should trump the opinions of outside experts and even the city’s non-heritage planners".

Day 70 -November 18: Beekhuis' and Pepino's Final Arguments

At the risk of sounding repetitive, we must report that this was again another historic day in the defence of Port Dalhousie's heritage. Mr. Hank Beekhuis, one of the over 20 St. Catharines residents who appealed the previous Council's approval of the tower proposal, spoke eloquently and spoke from the heart. He started by telling the Board how difficult it is for ordinary citizens to properly participate in an OMB process that requires extensive legal and other expertise to have a chance to be successful. He then detailed what the community has been up against (quote from Standard): "This community has borne the brunt of a well-organized military-style assault by the developer, complete with a battalion of lawyers and paid experts, special forces of lobbyists and well-orchestrated community organizations, T-shirts, billboards, and even a psychological warfare of dirty tricks, pressure tactics and sordid politics, which has led to a complete lack of trust in this development".

Mr. Beekhuis, who is not a lawyer, also presented a very coherent and logical argument on why the parking and traffic problems will be made much worse if the proposal were approved: "He said the parking shortage and traffic congestion will be exacerbated by the development and this will mean that citizens will be denied access to the city's best beach".

In the afternoon, Ms. Pepino concluded her final argument on behalf of PROUD. She reviewed in detail applicable provisions of the City's Official Plan and the Port Dalhousie Secondary Plan that clearly would be contravened by the tower proposal. Like the City Solicitor before her, she made it quite clear that the proposal should be rejected even if this were not in a designated heritage district. Being in such a district makes it precedent-setting as the Board's decision will have a major impact on every other district in the Province and, particularly, the over 70 which were designated before the latest revisions to the Heritage Act.

Day 71 -November 19: TOWER HEARING FINALLY OVER

After 71 days over 21 weeks and 10 months, the OMB Hearing on PDVC's proposal for a massive development, including a 20-storey high condo tower, in Port Dalhousie's low-rise heritage district finally concluded.

First, community appellant Jeff Loucks, representing a number of other community appellants, delivered his final argument. Mr. Loucks delivered a professional argument that addressed key issues such as the developer's claim that the proposal should be approved because of the (totally unproven) economic benefits it will provide. Referring to the community, Mr. Loucks stated: "...the group I represent has never been filled with more pride about its community. The fundraisers and fraternity have been a wonderful side effect and I am glad to have been involved with so many outstanding individuals. The solidarity this community has in standing up for the principles by which it wants to develop will stay with us for decades to come."

Mr. Loucks was followed in mid-morning by the developer's lawyer who took the rest of the day in an effort to try and blunt the excellent legal arguments that have been made by those in opposition (as the applicant, they always get the final word).

The Hearing was finally over at approximately 4 pm and Chair Susan Campbell told us not to expect her decision before late January.