Michael Saul Polowin

The Ontario Land Tribunal held a Case Management Conference regarding appeals by Clublink Corporation ULC against the City of Ottawa's adoption of Official Plan Amendment 266 and Zoning By-law No. 2021-328.

The appellant requested a partial withdrawal of its appeals concerning the parcel at 6301 Campeau Drive, as the proposed development on that parcel would not drain stormwater onto the appellant's lands.

On consent of the parties, the Tribunal allowed the partial withdrawal, bringing the OPA and ZBA into full force and effect for that parcel.

The appeals remain active for the parcel at 6475 Campeau Drive, and the Tribunal scheduled a further CMC and a four-day hearing.

The Ontario Land Tribunal held a Case Management Conference regarding appeals of the City of Toronto's Central Waterfront Secondary Plan and Port Lands Official Plan Modification.

The City advised that settlements had been reached with several parties and requested a settlement hearing.

The Tribunal scheduled a one-day settlement hearing for May 19, 2022, and a two-week merits hearing commencing July 4, 2022.

The City of Ottawa and Shepherds of Good Hope brought motions to dismiss an appeal of a zoning by-law amendment that permitted an eight-storey supportive housing development.

The Tribunal allowed the City's motion, finding the appellant failed to properly serve the notice of appeal as required by s. 34(19) of the Planning Act.

The Tribunal also allowed the applicant's motion to dismiss the appeal without a hearing under s. 34(25), concluding the notice of appeal failed to explain how the by-law was inconsistent with applicable policies and failed to disclose any apparent land use planning grounds.

The appellant appealed the adoption of a zoning by-law concerning environmental zoning and wetland designation on his property.

The parties reached a settlement to amend the by-law to allow the municipality to alter the boundary of the EP-LSW zone without further amendment, provided a qualified professional demonstrates the appropriate location.

The Tribunal accepted expert planning evidence that the amendment is consistent with the Provincial Policy Statement and conforms to the Official Plan, allowing the appeal in part to implement the settlement.

Multiple appellants appealed the City of Ottawa's enactment of a site-specific zoning by-law amendment permitting a nine-storey, 62-unit residential apartment building.

The appellants raised concerns regarding shadow impacts, traffic safety, tree preservation, and conformity with provincial and municipal planning policies.

The Tribunal preferred the evidence of the applicant's and City's experts, finding that the proposed development would not create undue adverse impacts on traffic or forestry.

The Tribunal concluded that the amendment has regard for provincial interests, is consistent with the Provincial Policy Statement, conforms to the Official Plan, and represents good land use planning.

The appeals were dismissed.

The applicants sought to sever their property and obtained provisional consent and minor variances from the Committee of Adjustment.

The City subsequently amended its Zoning By-law, rendering the variances unnecessary.

The Committee then changed a condition of the consent to reflect compliance with the amended by-law, deeming the change minor.

The appellant appealed both the minor variance and the change of condition.

The applicants brought a motion to dismiss the appeals.

The Tribunal found the Change of Condition Appeal invalid because the Planning Act does not provide an appeal right for changes deemed minor.

The Tribunal also dismissed the Minor Variance Appeal as moot and lacking any land use planning grounds, since the variances were no longer required.

The City of Kingston brought a motion to dismiss appeals by the appellant regarding an Official Plan Amendment and Zoning By-law Amendments pertaining to additional residential units (ARUs).

The City argued the appeals were barred by sections 17(24.1) and 34(19.1) of the Planning Act, which prohibit appeals of policies and by-laws authorizing ARUs.

The appellant argued the amendments imposed requirements that effectively prohibited ARUs, rendering them ultra vires and raising a triable issue.

The Tribunal allowed the motion in part, dismissing most of the appeals as barred by statute because they related to reasonable requirements or standards.

However, the Tribunal allowed the appeal regarding the height restriction on detached accessory buildings to proceed to a hearing, finding it raised a potentially triable issue of prohibition.

The Ontario Land Tribunal held a third Case Management Conference regarding multiple appeals against the City of Ottawa's Development Charges By-laws.

The Tribunal noted the withdrawal of two appeals, that six matters remained under active discussion, and that one matter (Chapman Mills) required a hearing.

The Tribunal scheduled a five-day hearing for the Chapman Mills appeal and set a fourth Case Management Conference for the remaining matters.

The appellant appealed the City of Ottawa's refusal to enact zoning by-law amendments to permit a 17-storey hotel at 116 York Street, located near the ByWard Market Heritage Conservation District.

The Tribunal determined that a heritage permit was not required because the heritage district had not been upgraded to a Plan under the Ontario Heritage Act.

However, the Tribunal dismissed the appeal, finding that while the architectural design attempted to respect nearby heritage structures, the proposed height and lack of adequate setbacks constituted overbuilding for the small site and failed to meet urban design guidelines.

The applicant appealed the Committee of Adjustment's refusal of an application to sever a residential property into two lots.

The City opposed the severance, arguing that the reduced lot frontages would destabilize the neighbourhood and did not conform to the Official Plan.

The Tribunal preferred the evidence of the applicant's planner, finding that the proposed lots were compatible with the eclectic lot fabric of the surrounding area, which included several narrow lots.

The Tribunal allowed the appeal and granted provisional consent subject to conditions.

The applicant sought minor variances to demolish an existing dwelling and construct a new one-and-a-half storey dwelling on an undersized waterfront lot.

The Committee of Adjustment approved the variances, which were subsequently appealed by a neighbour.

Prior to the hearing, the parties reached a settlement that slightly amended the variances and included conditions.

The Tribunal accepted expert planning evidence that the amended variances met the four tests under the Planning Act and authorized the variances subject to the agreed-upon conditions.

This was a Case Management Conference regarding appeals by the appellant against the municipality's approval of an Official Plan Amendment and Zoning By-law Amendment for a proposed distribution warehouse.

The Tribunal reviewed the draft issues list, approved the Procedural Order, and scheduled a seven-day video hearing to commence in November 2021.

This was a Case Management Conference regarding appeals against the City of Ottawa's Zoning By-Law No. 2019-353, which introduced new zoning provisions for high-rise buildings.

The Tribunal scheduled a 10-day video hearing to commence on July 11, 2022, and issued a procedural order governing the proceedings, including the finalization of the issues list and the order of evidence.

The applicants, developers in the City of Kingston, challenged the validity of the City's Impost By-law, which imposed fees for the capital costs of water and sewer infrastructure.

The applicants argued that the City was required to impose such fees under the Development Charges Act, 1997, and that the Impost By-law conflicted with that Act, was ultra vires the Municipal Act, 2001, and was discriminatory.

The court dismissed the application, finding that the legislative framework allowed the City to enact the Impost By-law under the Municipal Act, 2001, that there was no conflict with the Development Charges Act, 1997, and that the by-law was neither ultra vires nor discriminatory.

The applicant appealed the City's failure to make a decision on a site plan application for a 1,900-unit residential development.

The sole issue was parkland dedication.

The applicant argued the City was bound by a 2005 Site Plan Agreement (SPA) that required only 2% cash-in-lieu of parkland.

The City sought a 10% dedication based on its current by-law, arguing the 2005 SPA contemplated only commercial/industrial uses.

The Tribunal dismissed the appeal, finding that the 2005 SPA was predicated on commercial uses, and under s. 42(7)(b) of the Planning Act, the City had the authority to demand additional parkland conveyance because the lands were now proposed for residential development.

Following an unsuccessful motion for leave to appeal, the responding parties sought costs.

Tweed Farms Inc. sought partial indemnity costs of $36,701.06, arguing the moving party's unreasonable positions and the expedited nature of the proceeding increased costs.

The moving party argued the amounts were excessive.

The court awarded Tweed Farms Inc. $25,875 and 2470689 Ontario Inc. $5,940, finding these amounts reasonable and proportionate.

This endorsement addresses the costs arising from an unsuccessful motion for leave to appeal brought by The Corporation of the Town of Niagara-on-the-Lake (NOTL).

The responding parties, Tweed Farms Inc. and 2470689 Ontario Inc., sought costs.

Tweed Farms claimed increased costs due to NOTL's abandoned positions, the expedited nature of the motion, and challenges related to virtual hearings during COVID-19.

NOTL argued the claimed amounts were excessive.

The court applied principles of proportionality and reasonable expectations, adjusting counsel rates and acknowledging the impact of NOTL's litigation conduct.

The court awarded Tweed Farms Inc. $25,875 and 2470689 Ontario Inc. $5,940, both on a partial indemnity basis.

The Town of Niagara-on-the-Lake sought leave to appeal an interlocutory procedural order of the Local Planning Appeal Tribunal (LPAT) regarding appeals of an interim control by-law restricting cannabis-related land uses.

The Divisional Court dismissed the motion for leave to appeal as premature.

The court held that there were no exceptional or extraordinary circumstances to justify departing from the general rule against fragmenting administrative tribunal proceedings by hearing appeals from interlocutory decisions.

The applicants and respondent sought a last-minute consent adjournment of a full-day application hearing scheduled for February 21, 2020, citing ongoing settlement discussions that required City Council approval.

The court expressed frustration with the late notice, noting it resulted in wasted judicial and courtroom resources.

The court adjourned the matter to be spoken to at a future motions court, recommending that any new hearing date be made peremptory to both sides.

The appellants sought to operate a commercial paintball facility in an area zoned as a 'Private Park'.

The motion judge determined that the facility fell under the definition of a 'Place of Recreation' rather than a 'Public Park' or 'Private Park', and thus required a zoning by-law amendment as a new commercial use.

The Court of Appeal found no error in the motion judge's sensible conclusion and dismissed the appeal.