10-20 Fincham Inc. v. Markham (City), 2021 CanLII 102666

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 14, 2021

CASE NO(S).: PL210330

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 10-20 Fincham Inc.

Subject: Request to amend the Official Plan - Failure of the City of Markham to adopt the requested amendment

Existing Designation: Mixed Use Low Rise

Proposed Designation: Residential Low Rise

Purpose: To demolish the existing commercial plaza and redevelop the site with residential uses to consist of 7 townhouse dwelling units fronting onto 16th Avenue and 8 semi-detached dwelling units that will abut the existing residential dwellings to the south to be served by a private driveway with access on Fincham Avenue and 16th Avenue, as well as 2 freehold semi-detached dwelling units to front onto Fincham Avenue with independent driveways

Property Address/Description: 10 & 20 Fincham Avenue

Municipality: City of Markham

Approval Authority File No.: OP/ZA 18 108216

OLT Case No.: PL210330

OLT File No.: PL210330

OLT Case Name: 10-20 Fincham Inc. v. Markham (City)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 10-20 Fincham Inc.

Subject: Application to amend Zoning By-law No. 163-78, as amended - Neglect of the City of Markham to make a decision

Existing Zoning: “Local Commercial (LC)”, in accordance with Zoning By-law No. 163-78, as amended

Proposed Zoning: “Residential Two (R2)”, in accordance with Zoning By-law No. 177-96, as amended

Property Address/Description: 10 & 20 Fincham Avenue

Municipality: City of Markham

Municipality File No.: OP/ZA 18 108216

OLT Case No.: PL210330

OLT File No.: PL210331

Heard: October 6, 2021 by video hearing (“VH”)

APPEARANCES:

Parties

Counsel

10-20 Fincham Inc. (“Appellant”)

Adrian Frank

City of Markham (“City”)

Victoria Chai

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON OCTOBER 6, 2021 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (“CMC”) respecting an appeal by 10-20 Fincham Inc. following the City of Markham’s neglect/failure to render a decision regarding an application for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) to permit the development of the property at 10-20 Fincham Avenue. Currently, the subject site features a commercial/retail plaza consisting of two 1-storey buildings and associated surface parking. The Appellant’s plan involves the removal of the existing structures and development of seven townhouses and eight semi-detached houses at the subject site.

2The Appellant’s applications were the subject of a positive staff report and a staff recommendation for approval at the City of Markham's Development Services Committee on February 22, 2021.

SERVICE OF NOTICE OF CMC

3There was no issue with service of the Notice of this CMC, and so no further notice is required. The Tribunal was in receipt of the Affidavit of Service, which was marked as Exhibit 1.

Requests for Status

4No one attend the CMC seeking either party or participant status. However, counsel for the parties advised the Tribunal that Marie Anne Belby and Chris Rogge had communicated with them about their intention to obtain participant status. The parties both concurred that they believed that it would benefit the Tribunal to grant these two individuals participant status.

5The Tribunal was persuaded by the parties to grant these individuals participant status despite their lack of attendance at the hearing. The Tribunal stated, for the record, that it remains the responsibility of the participants to submit their participant statements in an acceptable form and on time so as to not prejudice the parties or delay the proceedings.

MEDIATION AND SETTLEMENT

6At the outset of the CMC, the parties advised the Tribunal that they have resolved the matter and are seeking a settlement hearing.

SETTLEMENT HEARING

7Upon request of the parties, the Tribunal set a one-day settlement hearing commencing on Tuesday, November 2, 2021 at 10 a.m. by VH. No further notice is required for the hearing.

8Parties and participants are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/225048581

Access Code: 225-048-581

9Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.

10Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: Toll-Free 1-888-455-1389 or +1 (647) 497-9391. The Access Code is as 225-048-581.

11Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the VH to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

12The Tribunal Orders that:

The date and particulars of the settlement hearing are set out above;
At least one week prior to the settlement hearing, the parties shall jointly file the following with the Tribunal:

a. Written Affidavit(s) of evidence to support the proposed settlement, complete with exhibits (if any);

b. Word version of the body of the same Affidavit(s);

c. Draft versions of the proposed OPA and ZBA in separate documents; and

d. Proposed draft order to give effect to the proposed settlement, in Word format.

It will be the responsibility of the Appellant to deliver the above to the Tribunal.
Marie Anne Belby and Chris Rogge are granted Participant status; and
The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

“K.R. Andrews”

K.R. ANDREWS

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.