Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 22, 2021

CASE NO(S).: OLT-21-001064

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 70 Taunton Storage GP Corporation

Subject: Z-11-20 (BL 7741-21)

Municipality: Town of Whitby

OLT Case No.: OLT-21-001064

OLT File No.: OLT-21-001065

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 70 Taunton Storage GP Corporation

Subject: DEV-16-20 (OPA 121)

Municipality: Town of Whitby

OLT Case No.: OLT-21-001064

OLT File No.: OLT-21-001064

OLT Case Name: 70 Taunton Storage GP Corporation v. Town of Whitby (Town)

Heard: November 18, 2021 by video hearing

APPEARANCES:

Parties

Counsel

70 Taunton Storage GP Corporation

Aaron Platt Alex Lusty

Calloway REIT (Whitby NE) Inc.

David Bronskill

Town of Whitby

Andrew Biggart

DECISION DELIVERED T.F. NG AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Calloway REIT (Whitby NE) Inc. ("Applicant/Calloway"), owns lands municipally known as 20 Taunton Road East, in the Town of Whitby ("subject lands/site"). The site is located on the north side of Taunton Road East and east of Baldwin Street South.

2The Town Council passed By-law No. 7741-21 on April 26, 2021 to adopt Official Plan Amendment No. 121 to the Town Official Plan and By-law No. 7742-21 to amend By-law No. 1784. Notice of the adoption of Official Plan Amendment No. 121 (OPA 121) was given on May 6, 2021.

3The purpose and effect of OPA121 and ZBA is to add a site specific policy exception to the Major Commercial land use designation, to permit the additional use of a commercial self-storage facility on the subject lands.

470 Taunton Storage GP Corporation ("Appellant/TSC") which owns the property known municipally as 70 Taunton Road East abutting the subject lands' eastern property line, filed appeals against the OPA and ZBA with this Tribunal.

CASE MANAGEMENT

5The matter was fixed for Case Management Conference ("CMC") and the Affidavit of Service was marked as Exhibit A.

6The Applicant had issued a Motion to Dismiss the appeals, returnable on November 15, 2021 and sought party status, at the CMC, which was granted without objections from the Appellant or the Town. The Motion was then heard by the Tribunal.

MOTION BY APPLICANT

7Calloway brought a Motion for an Order to dismiss without a hearing the appeals filed by TSC pursuant to s. 17(45) and 34(25) of the Planning Act (Act).

8The Motion materials before the Tribunal are as follows:

a) Notice of Motion dated November 3, 2021.

b) Affidavit of Mike Dror sworn November 3, 2021;

c) Motion Record of Applicant dated November 3, 2021.

d) Appellant's Response to Motion dated November 11, 2021.

e) Affidavit of Andrew Ferancik sworn November 11, 2021.

f) Motion Record of Appellant dated November 11, 2021.

g) Registered Site Plan Agreement of TSC and Town dated April 27, 2021

Grounds for the Motion

9Calloway argues that the Appeals should be dismissed without a hearing pursuant to s. 17(45)(1)(i)-(iii) and 34(25)(1)(i)-(iii) of the Act for the following reasons:

The Appeals do not disclose any apparent land use planning grounds upon which the Tribunal could allow all or part of the appeals.
The Appeals are frivolous and vexatious and made only for the purpose of delay.
Calloway also asked for substantial costs on an indemnity basis.

TSC APPEALS

10The Appeals generally raised the following:

That the applications do not conform with the Region of Durham's Official Plan in particular:

a. do not provide for appropriate corridor development e.g. the proposal does not contribute to, or allow for, the future consolidation of access points or help reduce reliance on individual access points along Taunton Road between contiguous development sites;

b. do not rely on an access meeting the requirements for a Type A arterial road and do not contribute to lesser reliance than non-conforming access.

That the applications do not conform with the Town's Official Plan, in particular:

a. do not contribute to, or even protect for, the integration of vehicular and pedestrian circulation systems to minimize access on to arterial roads;

b. do not contribute to the establishment of an efficient, safe and accessible circulation system that minimizes pedestrian and vehicular conflict;

c. do not advance efforts to integrate site circulation and connectivity, particularly in relation to 70 Taunton;

d. do not contribute to or even protect for the consolidation of access points or the reduction of reliance on an arterial road for trips between contiguous developments.

That the applications do not conform to the Brock/Taunton Central Area Secondary Plan as they:

a. would allow new development to block the existing easement to and from the subject lands to 70 Taunton;

b. do not provide or even protect for safe and convenient pedestrian circulation from the subject lands to neighbouring commercial lands;

c. would effectively terminate, through severe interruption, the existing east-west side walk running through the site surrounding the subject lands.

11In the Notice In Response to motion, the Appellant requested orders to deny Calloway's Motion to Dismiss the appeals; an order denying Calloway's Motion to Dismiss their appeals as frivolous vexatious or brought only for the purpose of delay; and an order for costs on substantial basis.

12The grounds raised are essentially that Calloway has failed to discharge its burden of showing that: the appeals do not contain legitimate land use planning grounds; or that the appeals or conduct of TSC are frivolous vexatious or only for the purpose of delay. Further that, Calloway has fundamentally misconstrued the appeals and Calloway has made unsupportable allegations about TSC's conduct.

13The Appellant supported the grounds stated in the Response to Motion, by referring to the affidavit of Mr. Ferancik and taking exceptions to the Affidavit of Mr. Dror. The contention is that Mr. Dror has taken a 180 degree turn from his original opinion in the matter PL200190 where Calloway was the Appellant and TSC was the Applicant.

PL200190

14PL200190 was a matter where Calloway appealed TSC's Zoning By-law Amendment (ZBA) to permit a commercial self storage facility on the Appellant's lands. In that matter, Calloway claimed that it was important to ensure intersite connectivity between Calloway's lands and TSC's lands and to keep a mutuality of access between the respective parties' properties. In that matter, Calloway contended that the Town may consider the extension of the easement from Calloway's lands to TSC's lands.

15TSC successfully brought a Motion to Dismiss without a hearing and argued that any matter of easement is not a matter that was proper at the ZBA stage. In TSC's submission, "the matter of the easement was more appropriately dealt with at a Site Plan phase, just as it was for Calloway's development. TSC contended it was willing to convey an easement to the Town if requested, and its Site Plan, which has been submitted to the Town was not before the Tribunal, accounted for this contingency". Additionally, in PL200190, TSC alleged that Calloway's appeal was frivolous, vexatious, and made only for the purpose of delay. TSC also noted that Calloway's own self storage facility proposal will effectively plug the easement, hence Calloway's interest in prompting a decision about the future of the easement.

16TSC argued that the matter of easement, access and intersite connectivity is to be decided by the Town at the Site Plan stage and not at the ZBA. The Tribunal in PL200190, agreed with TSC's contentions, and Calloway's appeal in that matter, was dismissed without a hearing.

17The Tribunal there found, based on a thorough review of all motion materials and submissions made during the hearing, that Calloway's appeal raised no apparent land use planning ground upon which the Tribunal could allow all or part of the appeal. Calloway's appeal merely raised questions and apprehensions about the future of the easement, and not with the ZBA it has appealed to the Tribunal. Accordingly, the Tribunal dismissed Calloway's appeal in a decision issued on November 30, 2020 (LPAT: Calloway REIT (Whitby NE) Inc. v Whitby (Town) PL200190).

CONTEXT

18To put the matter in context, both the Applicant and the Appellant have engaged in a dispute of similar facts. Their properties are adjacent to each other, they are both developing self-storage commercial facilities on their respective properties. They were both claiming the right to access points and easements on the opponent's property and they were both applying for planning instruments under the OPA and ZBA categories. With that, it is clear that these similarities do not escape the Tribunal.

19It is noteworthy that in any decision of the Tribunal, the aim is to achieve consistency. More so in this particular instance, where the parties are the same, the properties are the same and adjacent to each other, the developments are the same (self-storage facilities), and the allegations of easements and access to the opposing parties' properties are the same.

20The status of a future easement over the other party's property has been decided between them in the PL200190 matter. Although it is acknowledged that, in that case, it was about Calloway's contention that an easement should extend from Calloway's property and joined to an easement on the TSC's property. The Tribunal there opined, that the easement issue may appropriately be decided at the Site Plan Application stage and not at the ZBA stage stating "The Tribunal has no ability, in considering the ZBA, to force the Town to decide whether to retain the Calloway easement and extend it over the TSC property. Given that Calloway's newest development application is before the Town, and as Mr. Mar advised, should have a decision next spring, Calloway may soon know the Town's position regarding the easement. Similarly, the Town has TSC's Site Plan application before it, and has indicated that it will consider access issues through that process" (last sentence of paragraph 23 and paragraph 24 of PL200190).

Submissions

Calloway

21The Applicant argues that the appeals do not disclose any authentic land use planning grounds upon which the Tribunal could grant all or part of the Appeals, and that furthermore, these are frivolous, vexatious, and are made only for the purpose of delay.

22It is argued that TSC has foreclosed connectivity issues itself. The question is, in this matter, whether connectivity can be implemented by OPA or ZBA. According to counsel, the answer is, it cannot. The decision in PL200190 is the basis for saying that it cannot. The decision in PL200190 in TSC's favour, decided that at the ZBA stage, intersite connectivity cannot be implemented.

23Similar issues were raised in that appeal as in the present case. The matter of access and easement is a matter for the Town and it is the Town's jurisdiction to do so. The Tribunal does not have the jurisdiction to interfere in that decision with respect to an access or easement on the property, the Applicant argues.

24According to counsel, intersite connectivity can be instituted physically on the land or through an easement right over land onto the other party's land. In that case, an agreement between parties will be entered into, and the Tribunal will have no jurisdiction in that matter.

25The Applicant reiterates that it is for the Town at the Site Plan Approval stage, and not for the Tribunal, at this time, to decide on the access or easement. The Applicant submitted that the Appellant had previously argued that same point and it is now arguing differently, to suit its case in the instant matter. The Appellant is using planning jargon to buttress an invalid appeal in the instant case. The Appellant had won its argument that it is at the Site Plan approval stage that an easement can be secured in its matter in PL200190.

26The Applicant stated that if the Town decides to secure an easement, there is ample room to do so at the Site Plan approval stage in the Applicant's applications.

27In PL200190, the Applicant argued intersite connectivity but lost, and as such the Applicant has accepted the Tribunal's finding that the intersite connectivity will be determined at the Site Plan Approval stage. That matter has been decided in favour of the Appellant in its applications.

28The Applicant explained that its applications allow for connectivity, if the Town desires such connectivity. The 14.5 metres setback to the south allows that to happen. Also, if connectivity is desired, the fencing and hedge could be taken off or the waste storage on the Calloway's property could be removed. All these matters could be dealt with at the Site Plan approval stage.

29Nevertheless, the Tribunal's attention was directed to the fact that the Appellant did obtain a Site Plan agreement with the Town in its application which did not provide for an easement to connect to Calloway's lands. There is no provision of the easement on the Appellant's land.

TSC

30The Appellant has argued that Mr. Dror has made a 180 degree turn (from supporting an easement from Calloway's lands to TSC's lands, intersite connectivity and shared access, to currently opining that "no access is proposed to the east", or that an easement is not required) from his original statements in his Affidavit filed in the PL200190 matter. (The Applicant has explained that Mr. Dror is entitled to his current views because, the Tribunal has in PL200190, decided contrary to Mr. Dror's opinion then, and now, Mr. Dror would have to accept that fact).

31The Appellant argued strenuously that it is not precluded from making its point on the intersite connectivity (easement), as TSC has shifted the self-storage facility building to the east side of its land in order to accommodate for the access connectivity. It alleged that this was on account of Calloway's appeal in PL200190. The Appellant argued that the policies require such a provision for connectivity between their adjacent lands. According to the Appellant, on the west side boundary, it was a simple matter of punching through the west boundary trees fence etc. to gain connectivity between the properties, if necessary (despite not providing for such connectivity on its own lands).

32The Appellant went through alleged grounds and reasons for the appeals as supported by Mr. Ferancik in his Affidavit.

Town’s Position

33The Town did not take any position with respect to the Motion, and according to Mr. Biggart, will be ready to case manage upon the Tribunal's direction.

ANALYSIS AND FINDINGS

34The Tribunal has considered the evidence and submissions of counsel for the Applicant and the Appellant and finds that the Motion should succeed for the reasons that follow.

35The Tribunal is satisfied based on submissions and the Affidavit opinion of the Applicant's Planner, Mr. Dror, that these appeals fail to raise genuine, legitimate and authentic land use planning grounds that warrant adjudication at a full hearing.

36Calloway's Applications were approved by Town Council following an extensive public process, wherein the Town considered the Applications at an open house/statutory public meeting open to the public. The Applicant's applications were fully supported by the necessary and required studies and reports.

37The Appellant has merely raised apprehensions of future intersite connectivity after it has foreclosed such connectivity on its own property to the Applicant. It has already concluded a Site Plan Agreement with the Town. The Site Plan does not accommodate any easement or intersite connectivity between Calloway's and TSC's lands. On the matter of any easement on the Appellant's lands, the Tribunal's view is that this is disingenuous of the Appellant.

38In Toronto (City) v. East Beach Community Association [1996] CarswellOnt 5740, [1996] O.M.B.D. No. 1890, 42 O.M.B.R. 505, the Ontario Municipal Board ("OMB") stated that it is not good enough for an Appellant to simply raise apprehensions in an appeal. The Tribunal is entitled to go behind the stated reasons for the Appeal to see whether they constitute genuine, legitimate and authentic planning reasons and the Appellant must present serious planning issues and evidence to substantiate the issues in the face of a Motion to Dismiss.

39The principles established in the Tribunal's jurisprudence when considering a Motion to Dismiss are summarized: the authenticity of the reasons stated; whether there are issues that would affect a decision in a hearing; and whether the issues raised in the appeal are worthy of the adjudicative process (Todero v. Wasaga Beach (Town) 2019 CarswellOnt 4551 (L.P.A.T)).

40The Appellant asserts that the proposed development will affect the connectivity between its property and the adjacent Applicant's property. Meanwhile, the Appellant's development progressed on the basis that the intersite connectivity or easement is a matter for the Town at the Site Plan stage. In other words, at the stage of OPA and ZBA, the Appellant need not be concerned with the matter of an easement, since the Town, in its discretion, could decide to implement or secure an easement, if it deems fit at the Site Plan approval.

41The Tribunal's view is that, the Appellant's appeals are focused on the intersite connectivity of a future easement and the employment of planning policy language is an adornment of the easement issue. For the Tribunal, guidance in the manner of future connectivity (if any) between these two adjacent sites have been provided in PL200190. The adopted process in such a case is to leave the future easement issue to the Site Plan Approval stage. That is the clear direction that this Tribunal will give in this matter. It is incongruous for the Appellant to contend otherwise. Its Site Plan agreement demonstrates that no easement to the Calloway lands has been established.

42The Tribunal finds that Mr. Dror is justified in holding a different view in this instant case from the other appeal PL200190. The fact is that the Tribunal there, had determined that the question of an easement and intersite connectivity between these two parties' lands are to be left to the Site Plan application stage. Accordingly, Mr. Dror had to accept this fact and reality. His November 3, 2021 Affidavit is accepted by this Tribunal on that basis. He is merely expressing his planning opinion in accordance with the decision by a different Tribunal panel as it relates to the current matter. This Tribunal acknowledges that matters raised in the Appeals were extensively studied and analyzed by qualified experts in connection with the Applications. These reports were reviewed and accepted by the Town. In contrast, there is no indication that any studies or other analyses have been conducted to substantiate the concerns referenced in the Appeals. The Appeals do not disclose any basis for concluding that the Applications are not consistent with the provincial policies or plans or do not represent good planning.

43The Applicant has submitted that, should the Town decide to implement an easement, Calloway's applications have ample room to accommodate that requirement at the Site Plan approval stage. The Tribunal concurs and finds that in the event the Town requires an easement or access connectivity between these two properties, at the Site Plan approval stage, the waste storage area could be a suitable portion to create the connection. Furthermore, counsel for the Appellant did confidently state that any intersite connectivity between the properties could be a simple "punch through" at the Appellant's western common boundary with the Applicant's lands.

44The Tribunal finds that while the Appellant is earnest in its desire to protect a future intersite connectivity through an easement on the Applicant's property, this intersite connectivity or easement is a matter that is not for the Appellant or the Tribunal to decide upon at this stage. There is no easement issue for adjudication for two reasons. First, a differently constituted panel, has found that an easement matter is to be determined at the Site Plan application stage. Second, the easement issue is for the Town's determination within its jurisdiction. As the grounds for the Appeals are based on access points, an easement and intersite connectivity, they are not genuine land use planning grounds and are not worthy of the adjudicative process. Allowing these appeals to proceed is wasteful of the Applicant's and Municipality's resources and would result in an unnecessary delay in the planning process.

45The Appeals fail to raise any apparent land use planning grounds upon which the Tribunal could allow all or part of the appeals.

46Proceeding to a full hearing will neither uncover any extra information on the matters of intersite connectivity or easements on the subject lands nor on the Appellants' property. The proposed self-storage facility use of the Applicant has already gone through a fulsome planning approval process conducted by the Town.

47The Tribunal finds that the appeals are to be dismissed on the above ground and as such is not required to rule on the other grounds of whether the appeals are: not in good faith; "frivolous or vexatious" or for the purpose of delay.

48With respect to the applications for costs, neither party had furnished any cogent evidence for their claims for costs. There is no misconduct that rises to the level requiring an evaluation of a costs award, which award is, at the Tribunal's discretion. The Tribunal rules that no costs are payable on the Notice of Motion nor on the Response to Motion.

ORDER

49The Tribunal orders that:

the Motion to Dismiss is granted and the Appeals by 70 Taunton Storage GP Corporation are hereby dismissed without holding a full hearing.
The Response to Motion is denied.
There are no orders as to costs for the Motion to Dismiss or for the Response to Motion.

"T.F. Ng"

T.F. NG

MEMBER