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The Town of Pelham won a victory in the Ontario Superior Court of Justice in Welland last week before the Honorable David L. Edwards, in its fight with a real estate developer and contractor over subdivision permits along of Webber Road in the southwest corner of the municipality. .

Developer Carlo Montemurro, of Niagara Falls, and Michael Bettiol, owner/builder of Mariman Homes in Hamilton, were listed as plaintiffs in the lawsuit and were represented by attorneys Chris Young and Charles Neuwald, respectively. Terrence Hill and Karen Shedden were counsel to the respondent, the Town of Pelham. Inexplicably, “Belinda Menard in her capacity as Chief Building Officer” was also on the list of respondents, despite the fact that the City had repeatedly informed plaintiffs’ counsel that Ms. Menard did not serve the City in that role. and had no direct connection with the lawsuit. Mike Zimmer is the chief of the city’s building department and it was he who refused the building permits in question.

The issue dates back to September 6, 2019, when Zimmer told Montemurro that he would not receive a building permit, explaining that it was not a bona fide land development, but rather a “currency.” testamentary”. Zimmer further told Montemurro that all lots required improved street frontage, which did not exist in his development and therefore did not meet the requirements of Pelham’s bylaw. Zoning By-law Number 1136 (1987) of the Town of Pelham is the current zoning by-law.

Montemurro, 88, owned a 37-lot residential development, known as Wendy Estates, in South Pelham, abutting River Road, Farr Street and Webber Road. He sold the lots to Bettiol and Mariman Homes for $4.2 million in the summer of 2019.

Layout of the houses proposed by the promoter. PROVIDED

Testamentary design had been an effective strategy employed by Montemurro decades earlier in Niagara. The loophole he exploited circumvented Ontario’s Planning Act, which prohibits any severance of land that is not considered a registered subdivision. Montemurro won in the Ontario Court of Appeal, although Associate Chief Justice John Morden said at the time that the scheme had “very unpleasant” features.

The bet involved the sale of parcels of land to terminally ill people, who then bequeathed small portions of that land to various people named as beneficiaries in wills provided to them by Montemurro. At the time, the law did not prohibit subdividing by will.

Montemurro’s attorney argued that the building lots were included in the will of Douglas Franklin Gross, a former attorney for the city of Welland. Gross signed his will on March 2, 1990 and died on April 18, 1990.

On July 26, 1990, the Ontario government closed the bequest loophole in the Planning Act.

In his February 28 ruling, Judge Edwards noted that Mr Montemurro had not in fact formally applied for planning permission. However, he received a letter from the town of Pelham advising him that he would not be receiving a building permit and accepted this as an early refusal to issue a building permit.

The Town of Pelham acknowledged that the lots were validly created by bequest and did not dispute that the lots met the definition of “lot” in the current by-law. The appellants concede that developed lots must comply with the applicable zoning by-law and must meet the definition of an “approved street”. If a lot does not front on such an improved street, Section 6.4(a) of the By-law prohibits the erection of a building or structure on such a lot.

Solicitors for Montemurro and Betiol asserted that the owners of the lots have a fractional interest in all other lots in the development, and therefore direct or indirect ownership of the site’s internal roadways. They argued that this meant that all lots faced an improved street due to this interest. Judge Edwards disagreed.

“It’s just impossible mental gymnastics,” he wrote. “The by-law clearly states that it is the lot which must front onto the improved street, and not any other land in which the owner of the lot has an interest. Such an interpretation would upset other aspects of the regulation.

It’s simply impossible mental gymnastics. Such an interpretation would upset other aspects of the regulation.

Judge Edwards ruled that the lots do not conform to Pelham’s building by-laws and therefore no structures can be built on said lots.

“Counsel for Mr. Bettiol argued that there was bad faith on the part of Pelham in his dealings with the appellants,” His Honor wrote. “I do not agree. The regulations are clear. The lots do not comply with them. Therefore, it was within the competence of the head of the building department to refuse to issue building permits.

Pelham CAO David Cribbs, himself a trained lawyer, was pleased with Judge Edward’s decision.

“Plaintiffs argued that the testimonial device was still in effect,” he said. “That was their fundamental raison d’etre. They kept insisting on that point, their interpretation of the rules. His Honor dismissed their arguments as nonsense.

A remaining problem is the recourse of those who have already purchased lots in the development, secured by large deposits. It’s unclear whether they should now take legal action against the lawyers who made the deals or against the sellers working for the builder who sold them the lots.

Cribbs recalled that the last time the town of Pelham went to court over a testimony issue, the so-called “Pedwell case”, it failed, costing the township $3 million in damages- interest, paid by the insurance company of the city of the day. . The silver lining, however, is that the province changed the law as a result of this loss.

Contacted by The Voice after Judge Edwards’ verdict, Montemurro said the matter was in Bettiol’s hands, as he now owns the lots. Montemurro also suggested that Bettiol plans to appeal the court’s decision.

“I can’t talk to you because this thing is still in court, it’s on appeal. I’ll talk to you after the final hearing,” said Montemurro, who indicated he was puzzled by the Town of Pelham’s posture.

“Why don’t they give building permits when there is such a shortage of land? All it does is increase the price. I don’t understand where they come from. I don’t want to discuss it now, but [Pelham’s] the argument is false. Niagara-on-the-Lake went to court for an order enforcing its building regulations, but that was before the appeals court ruled in 2003 that testamentary lots are not covered by the Land Use Planning Act. In my view, this should nullify Pelham’s case.

Asked about the lack of provision for sewage in the development, Montemurro replied: “The septic tank is the way to go…that’s what they do in Sweden and Norway, where they install septic systems in towns , because it’s better than throwing the waste water into a river or lake.

The Voice asked Mike Bettiol, owner/builder of Mariman Homes in Hamilton, if he intended to appeal the decision.

“We always had a plan A, a plan B and a plan C. That’s all [the information] you get from me,” he replied.