Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 05, 2021

CASE NO(S).: PL210281

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

Applicant and Appellant: Brotto Investments Inc.

Subject: Application to amend Zoning By-law No. 1-2014 – Refusal of Application by the Town of Kingsville

Existing Zoning: Residential Zone 1 Urban, R1.1

Proposed Zoning: Site Specific Residential Zone 4 Urban R4.1-6

Purpose: To permit the development of a 22 unit, 3 storey apartment building

Property Address/Description: 183 Main St E

Municipality: Town of Kingsville

Municipality File No.: ZBA/18/19

OLT Case No.: PL210281

OLT File No.: PL210281

OLT Case Name: Brotto Investments Inc. v. Kingsville (Town)

Heard: October 28, 2021 by video hearing

APPEARANCES:

Parties

Counsel

Brotto Investments Inc. (“Brotto”)

A. Baroudi

Town of Kingsville (“Town”)

S. Handler

MEMORANDUM OF ORAL DECISION DELIVERED BY S. JACOBS ON OCTOBER 28, 2021 AND ORDER OF THE TRIBUNAL

1Brotto intends to redevelop 183 Main Street East in Kingsville with a three-storey, 22-unit apartment building. To facilitate its proposal, Brotto applied to the Town for a Zoning By-law Amendment (the “ZBA”) and was refused, prompting Brotto to appeal to the Tribunal. The Tribunal, differently constituted, convened a case management conference (“CMC”) for that appeal on September 2, 2021.

2During that CMC, the Tribunal provided direction regarding two of Brotto’s related appeals that the parties requested be heard together with the ZBA appeal: (1) an appeal of the Town’s refusal to give provisional consent to sever the property; and (2) an appeal of the Town’s failure to make a decision on Brotto’s site plan application within the 30 days required by the Planning Act. Because the site plan appeal had not arrived at the Tribunal by the time of the first CMC, Member Taylor scheduled this second CMC for the three appeals. He also directed the parties to provide a Procedural Order (“PO”) before the second CMC and instructed them to include all three appeals in the PO. They did so on consent prior to this CMC.

3Now that all of Brotto’s appeals have arrived at the Tribunal, the Tribunal granted the parties’ joint request for the consent and site plan appeals (OLT file numbers 21-001154 and 21-001289, respectively) to be heard together with the ZBA appeal.

4The parties advised the Tribunal that, at the hearing of the appeals, they each intend to call experts in land use planning, heritage, traffic, and servicing. Brotto also intends to call, under summons, a Town planner who authored a report in support of the proposal. Having reviewed the issues list and the parties’ advice on their intended witnesses, the Tribunal agreed with the parties’ estimate that eight hearing days will be required.

5The Tribunal noted that there is a separate Ontario Heritage Act matter related to the subject property that is scheduled to be heard in late January 2022. This matter relates to the single detached dwelling on the property, which the Town wishes to designate under the Ontario Heritage Act. Brotto objected to the potential designation, and that is the subject of an ongoing proceeding brought to the Conservation Review Board prior to its amalgamation with the Tribunal. The parties agree that a hearing of Brotto’s ZBA, consent, and site plan appeals during the summer of 2022 will allow enough time for them to complete the heritage matter and consider any related implications in these appeals. As reflected in its consent application, Brotto proposes to retain the dwelling and sever it from the balance of the property it intends to redevelop.

6Based on the discussions during the CMC, the Tribunal scheduled the hearing for eight days starting at 10.a.m. on Monday, July 18, 2022.

7Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/975201077

Access code: 975-201-077

8Parties 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

9Persons 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: (647) 497-9373 to Toll Free 1-888-299-1889. The access code is 975-201-077.

10Individuals 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 hearing by video 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.

11No further notice of the hearing will be given.

12The PO appended here as Attachment 1 is in full force and effect and shall govern this proceeding leading up to and including the scheduled hearing.

13This Member is not seized.

14This is the Order of the Tribunal.

“S. Jacobs”

S. JACOBS

VICE-CHAIR

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.

attachment 1

PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Brotto Investments Inc.

Subject: Consent

Description: To sever a residential lot

Municipal Reference Number: B/11/21

Property Address: 183 Main Street East

Municipality: Town of Kingsville

OLT Lead Case No.: OLT-21-001154

OLT Case No.: OLT-21-001154

OLT Case Name: Brotto Investments Inc. v. Kingsville (Town)

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

Applicant and Appellant: Brotto Investments Inc.

Subject: Application to amend Zoning By-law No. 1-2014 – Refusal of Application by the Town of Kingsville

Existing Zoning: Residential Zone 1 Urban, R1.1

Proposed Zoning: Site Specific Residential Zone 4 Urban R4.1-6

Purpose: To permit the development of a 22 unit, 3 storey apartment building

Property Address/Description: 183 Main St E

Municipality: Town of Kingsville

Municipality File No.: ZBA/18/19

OLT Case No.: PL210281

OLT File No.: PL210281

OLT Case Name: Brotto Investments Inc. v. Kingsville (Town)

PROCEEDING COMMENCED UNDER section 41(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Brotto Investments Inc.

Subject: Consent

Description: Referral of a site plan application

Municipal Reference Number: SPA/24/21

Property Address: 183 Main Street East

Municipality: Town of Kingsville

OLT Lead Case No.: OLT-21-001154

OLT Case No.: OLT-21-001289

OLT Case Name: Brotto Investments Inc. v. Kingsville (Town)

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on July 18, 2022 at 10:00am.

3. The parties’ initial estimation for the length of the hearing is 8 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Schedule 1 (see the sample procedural order for the meaning of these terms).

5. The issues are set out in the Issues List attached as Schedule 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Schedule 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before May 10, 2022 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before June 3, 2022 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before July 3, 2022.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before June 10, 2022, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before June 10, 2022, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before June 17, 2022, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. On or before June 24, 2022 the Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence or visual evidence.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before July 8, 2022

18. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before July 15, 2022.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before May 14, 2022 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is not seized.

So orders the Tribunal.

BEFORE:

Vice-Chair S. Jacobs

Date:

TRIBUNAL REGISTRAR

SCHEDULE 1

PARTIES AND PARTICIPANTS

Brotto Investments Inc. – Party (Applicant/Appellant)

Town of Kingsville – Party (Municipality)

Anne Marie Lemire – Participant

SCHEDULE 2

ISSUES LIST

1. Is the proposed development consistent with the Provincial Policy Statement including, but not limited to the following sections:

1.1.1, healthy liveable safe communities

1.1.3.1, settlement areas 1.1.3.2, 1.1.3.3,

1.1.3.4 appropriate development standards, 1.1.3.5, targets 1.1.3.6, adjacent to built up areas

1.4.1, 1.4.3 range and mix of housing, housing options

1.6.7.1 safe transportation systems

1.7.1e) well designed built form

2.6.1 and 2.6.3. Heritage

2. Does the proposed development have appropriate regard for matters of provincial interest as set out in section 2 of the Planning Act, including 2(d) heritage and 2(r) well designed?

3. Does the proposed development conform to the County of Essex Official Plan including, but not limited to sections 2.7 Cultural heritage, 3.2.2 Settlement Area Goals, 3.2.4.1 Settlement Area Policies, and 3.2.7 intensification and Redevelopment.

4. Does the proposed development conform to the Town of Kingsville Official Plan including, but not limited to:

1.4 (b) safe and attractive; 1.4 (f) transportation; and 1.4 (i) Heritage resources

2.1.1 Land Use Principles;

2.8 Criteria for new development

2.9 Visual Amenity

Residential Policies : 3.6.1(d); 3.6.1 (e) creation of new lots; 3.6.1 (f) high standard of amenity; 3.6.1 (h)(ii) and (iv); 3.6.1 (i) development standards and items the Town shall have regard to; and 3.6.1 (j) Site Plan Control

4.1.1 Cultural and Built Heritage Resources

6.1.2 Arterial Roads

6.3.6 Storm Drainage

7.3 Consents

8.15 Site Plan Control

5. Do the following development standards in the proposed Zoning By-law Amendment appropriately regulate the proposed form of development on the property:

i. Permit an apartment building with a maximum of 22 dwelling units

ii. Reduce the required rear yard from 12.2 m to 7.5 m.

iii. Reduce the required lot frontage from 25 m to 16 m

iv. Increase the building height form 11 m to 12.2 m.

6. Will the proposed development create unacceptable adverse impacts with respect to traffic?

7. Is the proposed development compatible with the surrounding area?

8. Will the heritage attributes of the adjacent designated heritage property be conserved?

9. Will the proposed development conserve the heritage attributes of the dwelling located on the Subject Lands, which is proposed for designation under the Ontario Heritage Act?

10. Does the proposed consent fulfill the criteria of Section 51(24) of the Planning Act.

11. Does the proposed site plan fulfill the requirements for site plan approval in accordance with the Town of Kingsville site plan control by-law and the development standards of the Town of Kingsville.

12. Was the site plan submitted prematurely, and ought it to be remitted back to the Town of Kingsville?

13. Is the proposed development appropriate for the development of the lands subject to the applications?

14. Does the proposed development represent sound land use planning?

SCHEDULE 3

ORDER OF EVIDENCE

1. Brotto Investments Inc. – Party (Applicant/Appellant)

2. Town of Kingsville – Party (Municipality)

Attachment to Sample Procedural Order

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;

• direct examination by any party of similar interest, in the manner determined by the Tribunal;

• cross-examination by parties of opposite interest;

• re-examination by the party presenting the witness; or

• another order of examination mutually agreed among the parties or directed by the Tribunal.