Shore Developments Ltd. v. Norfolk (County), 2021 CanLII 80808

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 26, 2021

CASE NO(S).: PL210113

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

Applicant and Appellant: Shore Developments Ltd.

Subject: Request to amend the Official Plan - Failure of Norfolk County to adopt the requested amendment

Existing Designation: Urban Waterfront, Urban Residential, Lakeshore Special Policy Area, Lynn River/Black Creek Special Policy Area, Hazard Land

Proposed Designated: No Change Proposed

Purpose: To permit sole residential uses, apartments up to a maximum of eight storeys, and the continuation of existing uses on the Subject Lands

Property Address/Description: 225 & 230 Chapman St. E. and 2 Lynn St.

Municipality: Norfolk County

Approval Authority File No.: OPNPL2019014

OLT Case No.: PL210113

OLT File No.: PL210113

OLT Case Name: Shore Developments Ltd. vs. Norfolk (County)

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

Applicant and Appellant: Shore Developments Ltd.

Subject: Application to amend Zoning By-law No. (1-Z-2014) - Neglect of Norfolk County to make a decision

Existing Zoning: Marine Commercial (CM) and Hazard Land (HL) zone

Proposed Zoning: Urban Residential Type 6 (R6) Zone with special provisions, and Urban Residential Type 4 (R4) with special provisions

Purpose: To permit the development of townhouses, stacked townhouse and apartment dwellings on the subject lands

Property Address/Description: 225 & 230 Chapman St. E. and 2 Lynn St.

Municipality: Norfolk County

Municipality File No.: ZNPL202019

OLT Case No.: PL210113

OLT File No.: PL210114

Heard: July 30, 2021 by Video Hearing

APPEARANCES:

Parties

Counsel

Shore Developments Ltd.

Steven Ferri

County of Norfolk

Paula Boutis

Long Point Region Conservation Authority

Paula Boutis

MEMORANDUM OF ORAL DECISION DELIVERED BY R.G.M. MAKUCH ON JULY 30, 2021 AND ORDER OF THE TRIBUNAL

1This is the first Case Management Conference (“CMC”) with respect to appeals by Shore Developments Ltd. (“Shore” or “Applicant/Appellant”) against the refusal/neglect by Norfolk County (“County”) to make decisions on applications, for Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) applications, affecting the properties known municipally as 2 Lynn Street as well as 230 and 225 Chapman Street East, in Port Dover.

2The amendments, if approved, would permit the development of an apartment building up to eight storeys as well as a number of residential townhouse dwellings.

3The parties have been made aware of the availability of Tribunal assisted mediation.

4There were no requests for party status.

5The following individuals made requests in writing and have been granted participant status:

a. Brian Ogden

b. Margaret Creighton (on behalf of the Port Dover Waterfront Preservation Association)

c. Robert and Brenda Varey

d. Louis Brzozowski

6Counsel have requested that the hearing of this matter proceed in two phases.

7It is proposed that Phase I would address issues raised by the County and the Long Point Region Conservation Authority (Public Authorities) respecting the consistency with the Provincial Policy Statement (“PPS”), including Policies 3.1.1, 3.1.2, 3.1.6 and 3.1.7; and conformity to the County Official Plan for development in the floodway along Lynn River, more specifically the following:

i) Policy 7.3.2.1 of the County Official Plan states that development on lands designated as Hazard Lands, which would aggravate or contribute to the hazard shall not be permitted and contains policies respecting future development where hazard lands have been the subject of previous development activity;

ii) Policy 7.3.2.1 (Riverine Policies) of the County Official Plan addresses the regulatory flood standard for riverine floodplains. It speaks to the potential for a two-zone concept approach for development within the regulatory floodplain. A two-zone concept, if applied, would delineate the flood way and the flood fringe and potentially permit development within the flood fringe;

iii) Policy 7.3.2.2 (Shoreline Policies) of the County Official Plan also addresses hazards in shorelines and contemplates a comprehensive review of a particular hazard;

8There is a dispute between the Public Authorities and the Applicant/Appellant as to the appropriate interpretation of the aforementioned PPS or OPA policies and whether the proposed OPA and ZBA are consistent with same. The Applicant/Appellant takes the position that the policies do not apply or are met by the proposed OPA and ZBA. A decision respecting this matter may have implications for the matters to be addressed in the second phase of the hearing, and for that reason, the parties have requested that they be addressed in advance of the issues to be adjudicated in Phase II of the hearing.

9A second CMC by Telephone Conference Call (“TCC”) will be held on Monday, November 22, 2021, commencing at 9 a.m. in order to provide the Tribunal with an update as to the road closing procedure before County Council and to consider any further applications for participant status.

10Individuals are directed to call 416-212-8012 or (Toll Free) 1(866) 633-0848 on the assigned date at the correct time. When prompted, enter the code 4779874# to be connected to the call. If assistance is required at any time, press ‘0’ for the operator. It is the responsibility of the persons participating in the call to ensure that they are properly connected to the call and at the correct time. Questions prior to the call may be directed to Tribunal’s Case Coordinator.

11The hearing will be heard in two phases. The Phase I and Phase II hearings are scheduled to proceed by video as follows:

a. Phase I

Monday, January 26, 2022 at 10 a.m. (Three-day hearing) GoTo Meeting: https://global.gotomeeting.com/join/207959925 Access code: 207-959-925 Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1(888) 299-1889 Audio-only access code: 207-959-925

b. Phase II

Monday, June 6, 2022 at 10 a.m. (Seven-day hearing)

GoTo Meeting: https://global.gotomeeting.com/join/706706925 Access code: 706-706-925 Audio-only line: +1 (647) 497-9373 or (Toll-Free) 1(888) 299-1889 Audio-only access code: 706-706-925

12Parties 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.

13Parties 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

14Persons 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.

15Individuals 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 events may be directed to the Tribunal’s Case Coordinator having carriage of this case.

16The proceeding will be governed by Attachment 1 hereto.

17I am not seized but will continue with the case management, schedule permitting.

18There will not be any further notice.

19It is so ordered.

“R.G.M. Makuch”

R.G.M. MakucH

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.

ATTACHMENT 1

CASE NO(S).: PL210113

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

Applicant and Appellant: Shore Developments Ltd.

Subject: Request to amend the Official Plan - Failure of Norfolk County to adopt the requested amendment

Existing Designation: Urban Waterfront, Urban Residential, Lakeshore Special Policy Area, Lynn River/Black Creek Special Policy Area, Hazard Land

Proposed Designated: No Change Proposed

Purpose: To permit sole residential uses, apartments up to a maximum of eight storeys, and the continuation of existing uses on the Subject Lands.

Property Address/Description: 225 & 230 Chapman St. E. and 2 Lynn St.

Municipality: Norfolk County

Approval Authority File No.: OPNPL2019014

OLT Case No.: PL210113

OLT File No.: PL210113

OLT Case Name: Shore Developments Ltd. vs. Norfolk (County)

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

Applicant and Appellant: Shore Developments Ltd.

Subject: Application to amend Zoning By-law No. (1-Z-2014) - Neglect of Norfolk County to make a decision

Existing Zoning: Marine Commercial (CM) and Hazard Land (HL) zone

Proposed Zoning: Urban Residential Type 6 (R6) Zone with special provisions, and Urban Residential Type 4 (R4) with special provisions

Purpose: To permit the development of townhouses, stacked townhouse and apartment dwellings on the subject lands

Property Address/Description: 225 & 230 Chapman St. E. and 2 Lynn St.

Municipality: Norfolk County

Municipality File No.: ZNPL202019

OLT Case No.: PL210113

OLT File No.: PL210114

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. This matter shall proceed in a phased manner. The video hearing for phase 1 of the hearing will begin on Wednesday January 26, 2022 at 10 a.m. Video conference details are to be confirmed by the Tribunal.

The video hearing for phase 2 of the hearing will begin on Monday June 6, 2022 at 10 a.m. Video conference details are to be confirmed by the Tribunal.

3. The parties’ initial estimation for the length of phase 1 of the hearing is 3 days. The parties’ initial estimation for the length of phase 2 of the hearing is 7 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. A Second Case Management Conference will be held on Monday, November 22, 2021 at 9 a.m. via telephone call conference. Teleconference details are to be confirmed by the Tribunal.

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

6. The issues for phase 1 are set out in the Issues List attached as Attachment 2. There will be no changes to the phase 1 issues list unless the Tribunal permits, and a Party who asks for changes may have costs awarded against it.

7. The order of evidence shall be as set out in Attachment 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.

8. 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.

9. 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

10. On or before November 30, 2021, Norfolk County shall provide a written update to Shore Developments Ltd.’s request to close, convey, and replace a road allowance (i.e. part of Bridge Street and part of Lynn Street).

11. The parties shall cooperate to prepare a list of issues for phase 2 of the hearing on or before November 30, 2021 and provide same to the Tribunal. Revisions to the list of issues for phase 2 arising from (i) a decision issued respecting Phase 1 of the Hearing; (ii) a decision made by the County in respect of Shore Developments Ltd.’s request to close, convey, and replace a road allowance; and/or (iii) any amendments by the applicant to the proposed official plan amendment and/or zoning by-law amendment made after November 1, 2021, shall be provided to the OLT case co-ordinator and the other parties on or before Monday, March 28, 2022 (70 days prior to the start of hearing date). The final issues list shall be reproduced in Attachment 2.

12. 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 for phase 1 of the hearing on or before Monday, December 27, 2021 (30 days prior to the start of the hearing) and for phase 2 of the hearing on or before Thursday, April 7, 2022 (60 days prior to the start of the hearing). 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. In phase 2 of the hearing only, any challenges to the qualifications of a witness to give opinion evidence in the area of expertise proposed should be made by motion in accordance with the Tribunal’s Rules of Practice and Procedure, and notice of same must be served on the other Parties on or before Monday, April 18, 2022 (49 days prior to the start of the hearing) in which case a further Case Management Conference shall be scheduled as soon as possible after motion materials are filed or, if a date is not available, the matter shall be addressed at the commencement of the hearing.

13. For phase 2 of the hearing Expert witnesses in the same field shall have two meetings, the first being on or before Friday, February 25, 2022 (101 days prior to the start of the hearing) and the second being on or before Friday, May 6, 2022 (31 days prior to the start of the hearing) and use best efforts to try to resolve or reduce the phase 2 issues. 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 Friday, May 20, 2022 (17 days prior to the start of the hearing).

14. 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 16 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. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that he/she intends to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the other parties at the same as the delivery of expert witness statements, as in paragraph 16.

15. 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 17 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 166 below.

16. On or before Thursday, January 6, 2022 (20 days prior to the start of the hearing) for phase 1 of the hearing and on or before Friday, April 22, 2022 (45 days prior to the start of the hearing) for phase 2 of the hearing, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator.

17. On or before Thursday, January 6, 2022 (20 days prior to the start of the Phase 1 hearing), and on or before Thursday, April 7, 2022 (60 days prior to the start of the Phase 2 hearing), a participant shall provide copies of their written participant statement to the other parties. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

18. The parties shall provide copies of their visual evidence to all of the other parties on or before Monday, January 17, 2022 (9 days prior to the start of the hearing) for phase 1 of the hearing, and on or before Monday, May 23, 2022 (14 days prior to the start of the hearing) for phase 2 of the hearing. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

19. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received for phase 1 of the hearing and within twenty (20) days after the evidence is received for phase 2 of the hearing.

20. The parties shall cooperate to prepare a joint document book for phase 2 of the hearing which shall be shared with the OLT case co-ordinator on or before Friday, May 27, 2022 (10 days prior to the start of the hearing).

21. 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, and are encouraged to be provided on or before Tuesday, January 25, 2022 (1 day prior to the start of the Phase 1 hearing), and on or before Friday, June 3, 2022 (3 days prior to the start of the Phase 2 hearing).

22. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal unless such change is made with the consent of all parties.

23. 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.

24. The parties shall prepare and file a preliminary hearing plan for phase 1 and 2 of the hearing with the Tribunal on or before Friday, January 21, 2022 (5 days before the start of the Phase 1 hearing), and on or before Wednesday, June 1, 2022 (5 days before the start of the Phase 2 hearing), 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.

25. 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.

26. 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.

ATTACHMENT 1

LIST OF PARTIES / PARTICIPANTS

Parties

1. Shore Developments Limited

Loopstra Nixon LLP

135 Queens Plate Drive, Suite 600

Toronto, Ontario M9V 6V7

Steven Ferri / Mandy Ng

Email: sferri@loonix.com / mng@loonix.com

Tel: 416-748-4752 / 416-748-4136

2. Norfolk County

Norfolk County

50 Colborne Street South

Simcoe, Ontario N3Y 4H2

Paula Boutis

Email: paula.boutis@norfolkcounty.ca

Tel: 519-426-5870 ext. 1315

3. Long Point Region Conservation Authority

Norfolk County

50 Colborne Street South

Simcoe, Ontario N3Y 4H2

Paula Boutis

Email: paula.boutis@norfolkcounty.ca

Tel: 519-426-5870 ext. 1315

Participants

1. Brian Ogden

Email: brogden@rogers.com

Tel: 519-583-2293

2. Louis R. Brzozowski

Email: brzozowski@rogers.com

Tel: 613-850-4876

3. Port Dover Waterfront Preservation Association

Jim Dover

Email: jdover@kwic.com

Tel: 519-426-5677

4. Robert and Brenda Varey

Email: brendavarey@yahoo.ca

Tel: 519-583-3571

ATTACHMENT 2

ISSUES LIST

Phase 1

1. Are the proposed Official Plan Amendment and Zoning By-law Amendment consistent with Policy 3.1.1, including sub(b), 3.1.2, including sub(d), 3.1.6, and 3.1.7 of the Provincial Policy Statement?

2. Do the Official Plan Amendment and Zoning By-law Amendment conform to the following Policies of the Norfolk County Official Plan:

• 7.3.2;

• 7.3.2.1, including sub-clauses (a), (b), (c) and (e); and,

• 7.3.2.2, including sub-clauses (b)(ii), (c) and (g)

ATTACHMENT 3

ORDER OF EVIDENCE

1. Shore Developments Limited

2. Norfolk County

3. Long Point Region Conservation Authority

4. Shore Developments Ltd., in Reply