Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
March 01, 2022
CASE NO(S).:
OLT-21-001520
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Rukhsana Tanwir
Subject:
Proposed Official Plan Amendment No. 13
Municipality:
City of Kitchener
OLT Lead Case No.:
OLT-21-001520
OLT Case No.:
OLT-21-001520
OLT Case Name:
Tanwir v. Kitchener (City)
PROCEEDING COMMENCED UNDER subsection 17(45) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Motion Request by:
Eden Oak Apartments Kitchener 2021 Ltd.
(Applicant)
Purpose of Motion:
Request for an Order dismissing the appeal
Appellant:
Rukhsana Tanwir
Subject:
Proposed Official Plan Amendment No. 13
Municipality:
City of Kitchener
OLT Lead Case No.:
OLT-21-001520
OLT Case No.:
OLT-21-001520
Heard:
February 9, 2022, by video hearing (“VH”)
APPEARANCES:
Parties
Counsel
Eden Oak Apartments Kitchener
A. Baroudi
2021 Ltd. (“Applicant”)
City of Kitchener (“City”)
K. Hughes
Region of Waterloo (“Region”)
F. McCrae
Ruksana Tanwir (“Appellant”)
Self-represented
DECISION DELIVERED BY BLAIR s. TAYLOR AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is a Motion to Dismiss the appeal of the Appellant without a hearing pursuant to s. 17(45)(1)(i) and (3) of the Planning Act (“PA”) and s. 19(1)(c) of the Ontario Land Tribunal Act, 2021 (“OLTA”). While both the City and the Region were represented by counsel at the hearing, neither the City nor the Region took a position on the Motion.
2City Council had adopted both an Official Plan Amendment 13 (“OPA 13”) and an implementing Zoning By-law Amendment (“ZBA”) with regard to the lands legally known as Block 214 on Plan 58M-597 (“Block 214”). The Appellant only appealed against OPA 13, and it is the subject of the Motion. OPA 13 redesignated Block 214 to Medium Density Residential.
DECISION
3For the reason set out below, the Tribunal will allow the Motion and hereby dismisses the appeal of the Appellant.
STATUTORY REGIME
4Section 17(45) of the PA provides the following:
Despite the Statutory Powers Procedure Act and subsection (44), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:
- The Tribunal is of the opinion that,
i The reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the plan or part of the plan that is the subject of the appeal could be approved or refused by the Tribunal,…
and subsection 45(3) states:
The appellant intends to argue a matter mentioned in subsection (25.1) or (37.1) but has not provided the explanations required by that subsection.
5Sections 17(25.1) and 45(37.1) both provide that if an appellant intends to argue that the appealed decision is inconsistent with the Provincial Policy Statement (“PPS”) or fails to conform with a provincial plan (such as A Place to Grow: the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”)), or that a lower tier official plan fails to conform to an upper tier official plan, the notice of appeal must explain how the decision is inconsistent with or fails to conform.
6The OLTA in s. 19(1) states:
Subject to subsection (4), the Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing,
(c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success.
THE MOTION HEARING
7The Applicant’s Motion to Dismiss included as required by the Tribunal’s Rules of Practice and Procedure (“Rules”) a comprehensive affidavit by Jennifer Gaudet, a land use planner in support of the Motion to Dismiss, which affidavit included the following materials:
The Planning Justification Report for the development proposal;
The IBI Traffic Impact Study for the Grand River Flats subdivision;
The Noise Study for OPA 13;
City Planning Staff Report of May 10, 2021;
City Planning Staff Report of June 14, 2021;
The Regional Staff Report of September 21, 2021; and
The 2016 Minor Variance Notice of Approval for Block 214.
8The Appellant’s Response contained an extensive affidavit by the Appellant herself including a number of exhibits of reports and documents already found in Ms. Gaudet’s affidavit, but also inter alia: a 10-page law firm article on Negligent Misrepresentation, a 3-page law firm article on Fraud By Omission; and the entire PPS.
9At the Motion hearing, the Tribunal heard the viva voce evidence of Ms. Gaudet, in which she summarized the materials in her affidavit wherein she had reviewed each and every one of the grounds advanced by the Appellant and that it was her professional land use planning opinion that no valid land use planning issues had been raised upon which the appeal could be granted, and neither did the appeal have a reasonable chance of success. She opined that the Appellant’s principal concerns relate to a 2016 minor variance that became null and void when it lapsed due to a condition of approval not being met.
10Next, the Tribunal heard the viva voce evidence of the Appellant who sought to take the Tribunal through the entirety of her Response. After a number of directions to the Appellant to present the essence of her evidence and not simply refer to each of the exhibits she filed in her Response, the Tribunal took the lunch break and directed the Appellant to use her lunch break to distill her evidence, as the Tribunal would limit her further viva voce evidence to one half hour.
11After the conclusion of the viva voce evidence, the Tribunal heard the submissions of the parties and reserved its decision.
LAND USE PLANNING
12The PA in s. 1 sets out as two of its purposes that land use planning in Ontario is to be policy-led, and to recognize the decision-making authority and accountability of municipal councils in planning.
13Section 2 of the PA provides a number of Provincial Interests that City Council and this Tribunal must have regard for in making any land use planning decision. Those interests include:
(i) The orderly development of safe and healthy communities (h);
(ii) The adequate provision of a full range of housing including affordable housing (j);
(iii) The resolution of planning conflicts between public and private interests (n); and
(iv) The appropriate location of growth and development (p).
14Section 2.1 of the PA requires that when the Tribunal makes a decision on a land use planning matter, it shall have regard to both the decision made by City Council and the information and material that City Council considered in making its decision.
15Finally, from s. 3(5) of the PA, the Tribunal (and the City Council before it) is mandated when making a land use planning decision that such a decision shall be consistent with the PPS and shall conform to provincial plans that are in effect such as the Growth Plan.
JURISPRUDENCE
16The leading case with regard to a motion to dismiss is East Beach Community Assn. v Toronto (City), [1996] O.M.B.D. No. 1890 (“East Beach”). There the Ontario Municipal Board (a Tribunal predecessor) provided this guidance:
…The Board is entitled to examine the reasons stated to see whether they constitute genuine, legitimate and authentic planning reasons. This is not to say that the Board should take away the rights of appeal whimsically, readily, and without serious consideration of the circumstances of each case. This does not allow the Board to make a hasty conclusion as to the merit of an issue. Nor does it mean that every appellant should draft the appeal with punctilious care and arm itself with iron-clad reason for fear of being struck down. What these particular provisions allow the Board to do is seek out whether there is authenticity in the reasons stated, whether there are issues that should affect a decision in a hearing and whether the issues are worthy of the adjudicative process.
And later with regard to a specific issue, the decision carries on saying:
…With respect to the questions of traffic impact or parking sufficiency, it is our finding that it is not good enough to simply raise apprehension. It would not constitute apparent planning ground by saying that further study is required in the hope that once a hearing is convened, more real issues can come forth. Such an approach will never lead to any finality, no matter how careful and sound an opinion is founded.
BACKGROUND AND CONTEXT
17Block 214 is within the Grand River Flats subdivision, and geographically located at the eastern edge of the City, just west of the Grand River, and also west of the Region of Waterloo International Airport.
18The Grand River Flats subdivision was once licensed for a gravel pit. In or about 2012, draft plan approval was granted for a five stage residential subdivision with a low density residential designation. Much of the subdivision has been developed, but not Block 214, which is vacant.
19Block 214 is located with frontage onto Fairway Road North, a major four lane Regional road, which at this location is divided by a raised median. Block 214 has over 300 metres (“m”) of frontage on Fairway Road North and a depth of about 68 m. To the north is existing low density residential; townhouses to the west; a stormwater pond to the east; and Fairway Road North to the south.
20Block 214 was the subject of a previous (failed) site specific development application: a minor variance in 2016 to permit stacked townhouses that was approved by the Committee of Adjustment, but this approval lapsed.
21In 2020, the subject application for Block 214 came forward to facilitate four proposed 5 storey buildings with townhouses on the ground level front façade facing the Fairway Road frontage, and 352 units. OPA 13 was requested for a medium density designation, that would enable greater height, and a greater floor space index (“FSI”). The development application included a Planning Justification Report, a Heritage Assessment Report, a Functional Servicing Report, an Urban Design Brief, an Environmental Noise Study, and a Parking Review and Justification Study.
22As a result of public consultation, the development proposal was revised to have the westerly and easterly buildings reduced in height from 5 storeys to 4 storeys, the number of units reduced from 352 to 276, only 1 primary vehicle access to Fairway Road North, and with a 28 m setback to the property line of the development to the rear.
23The revised development proposal was recommended for approval by the City Planning staff, was ultimately adopted by City Council which enacted the impugned OPA 13 (and the ZBA), and for which the Region recommended approval.
THE APPEAL
24The stated grounds for the appeal are:
OPA 13 Decision is not correct/valid;
2016 minor variance not valid: approval is not valid as site plans for subject property stage 3 (239 Eden Oak Trail), are/were never submitted;
Access to Information Act 1980-81-82-83, c. 111, Sch, 1“1” (2019, c. 18, s, 36) is violated;
Proposed condos plan does not comply with OP section 6, 6.C.1, 6.C.1.1, 6.C.1.2. a, c, e, f, Public Health and Safety;
The proposed condos will not provide a clean and healthy environment for residents;
Inappropriate location for increasing density.
25In support of these grounds, the Appellant explained her reasons as set out on Attachment 1 appended to this Decision.
COMMENTARY AND ANALYSIS
26The Tribunal would firstly note that the Appellant has provided no contrary expert evidence in support of any of her grounds of appeal, and she confirmed in her evidence that if there were a hearing on the merits, she would not be calling any expert evidence in land use planning, traffic, municipal servicing or noise.
27The Appellant argues in her Appeal Grounds 1 and 2 that OPA 13 and the ZBA are based on/connected to the 2016 minor variance approval. Ms. Gaudet disagreed, and she testified that the Committee of Adjustment did approve a minor variance in 2016 and that the variance lapsed, due to a condition of approval not met. Ms. Gaudet observed that while the 2016 minor variance had lapsed, it was part of the development history of the Subject Lands and that while the City staff reports mention the 2016 minor variance, the development proposal and OPA 13 were judged on their own merits.
28The Tribunal has reviewed the documentary evidence including the Appellant’s YouTube video of the staff presentation to City Council, which included reference to the 2016 minor variance as being in force, but with no mention that it lapsed. That notwithstanding OPA 13 and the ZBA are based on a current application with supporting expert reports that were duly circulated to appropriate commenting agencies and departments, reviewed and the subject of staff comments to the planning department. The 2016 minor variance (which is prior to both the current PPS and the current Growth Plan) is part of the development history of Block 214 and from that perspective relevant. However, it would have been helpful if the staff presentation had reported that the 2016 minor variance had been approved but had also lapsed. The Tribunal having considered the oral submissions, the City Planning Staff reports and that of the Region, is satisfied that the development proposal and OPA 13 in particular were considered on their own merits with regard to the PPS, the Growth Plan and the Region’s and the City’s Official Plans.
29Appeal Ground 3 is a complaint that the Appellant has not received the Noise Study or the Traffic Study and they are invalid, as no new Traffic Study was done. Ms. Gaudet’s affidavit provides the Noise Study at Tab L (and a missing appendix to the Noise Study at Tab Y), and the IBI Traffic Impact Study for the Grand River Flats Subdivision at Tab X. Ms. Gaudet testified that a new Traffic Study was not required by the Region and this is corroborated in the Regional Report of September 21, 2021 where it states: “…A transportation impact study was not required by the Region as part of these current Planning Act applications as the net increase in traffic (for Block 214) as a result of the additional units did not trigger the need for a transportation impact study under the Region’s guideline for transportation impact studies.” The Tribunal notes that at the original draft plan of subdivision for the Grand River Flats Subdivision, a traffic plan was done for the entire subdivision of which Block 214 is but a small portion.
30Appeal Ground 4 raises concerns that the proposed development will create a high level of congestion and a safety hazard. Ms. Gaudet testified that OPA 13 was supported by a Functional Servicing Report, a Geotechnical Report, a Noise Study, and a Parking Study, all of which in one aspect or another deal with public health and safety and that a Health Impact Assessment was not required as part of the development application, and while the Appellant has cited some specific policies in her appeal, there is no planning basis to support her apprehensions.
31The Tribunal finds that mere apprehension or concern about a matter without any substantiation is not evidence. Here the development proposal with all its supporting technical reports has been reviewed and vetted by both the City and the Region, each having staff with professional qualifications who on a daily basis provide their recommendations concerning such development applications.
32Appeal Ground 5 contends that the proposed condominiums will not provide a clean and healthy environment due to noise and pollution, and this is contrary to the PPS and the City’s Official Plan. This ground of appeal appears to reference small balconies that allegedly do not meet the noise and pollution standards. Ms. Gaudet’s Affidavit provides that the balconies are of a typical size (less than 4 m) and are exempt from traffic noise assessment, and that the Noise Study considered noise from both Fairway Road North and the airport and found that the noise levels will exceed the Ministry of the Environment, Conservation and Parks’ Guidelines but will be subject to noise mitigation measures including central air conditioning, building components such as windows, doors, walls, and roofs constructed to achieve the required indoor sound criteria. With regard to consistency with the PPS and conformity with the City’s Official Plan, both were assessed in the City Planning Staff report which has recommended approval and the Regional report which also recommended approval.
33The Tribunal notes that the PPS specifically encourages the redevelopment of brown fields, encourages intensification within settlement areas, encourages development standards which will facilitate intensification, encourages an appropriate range and mix of housing options, and this development proposal is supported by an Environmental Noise Study which has been reviewed and vetted by City and Region staff. This ground of appeal is based solely on apprehension.
34Appeal Ground 6 submits that this is an inappropriate location for increasing density due to scarce servicing capacity which will “…add threat to resident’s life”. The City and the Region in their respective staff reviews and reports indicate (to the contrary) that this is an appropriate location for increased density.
35The affidavit evidence of Ms. Gaudet states that this is an appropriate location to increase density as it is within a settlement area with full municipal services. It is already designated and zoned for residential development and has been so since 2012. The Subject Lands are vacant, located with frontage onto a major Regional road where there is a transit stop about 250 m from the Subject Lands.
36The Tribunal prefers the evidence of Ms. Gaudet as corroborated by the City and the Region reports. Block 214 is a vacant parcel of land within a larger plan of subdivision, and Block 214 fronts onto a major four lane road with full municipal services and readily accessible to public transit. Higher densities along major roads enhances among other things opportunities for public transit, walking, cycling, and reduces traffic infiltration to lower density areas.
DECISION
37The Tribunal has reviewed all of the Appellant’s grounds of appeal and considered her submissions and those of the Applicant’s counsel.
38The Tribunal finds that the Appellant’s grounds of appeal have no substantive basis and appear to focus on an assertion that the City’s Planning Staff reports and the Applicant’s Planning Justification Report should not have even referenced the fact that in 2016 the Committee of Adjustment did approve a minor variance for Block 214 (which subsequently lapsed). To the Tribunal, it appears that the Appellant is strongly of the view that it was inappropriate and wrong for the Applicant and City Planning staff to reference that 2016 minor variance at all and as a result City Council was somehow misled.
39The Tribunal does not agree.
40Section 3(5) of the PA clearly requires the City Council and this Tribunal to make land use planning decisions that are consistent with the PPS, and conform to the Growth Plan, and not to a 2016 Committee of Adjustment decision that lapsed. The reference to the 2016 minor variance was part of the development history of Block 214 and relevant. Both the City Planning Staff report and the Regional report considered the development proposal on it own merits and evaluated it against the PPS, the Growth Plan and the City and Regional Official Plans. And City Council made its own decision to approve OPA 13.
41In conclusion, the Tribunal prefers the uncontradicted expert opinion evidence of Ms. Gaudet as corroborated by the City Planning Staff reports and the Region of Waterloo’s Planning report.
42The Tribunal finds that the Appellant’s notice of appeal does not disclose any apparent land use planning grounds of appeal upon which OPA 13 or part of OPA 13 could be refused by the Tribunal, that the appeal has no reasonable prospect of success, and that the appeal is not worthy of the adjudicative process.
43Accordingly, the Tribunal allows the Motion and dismisses the appeal.
44This is the Order of the Tribunal.
OBITER DICTA
45The Tribunal was frankly concerned to find the following response by the Appellant as part of the public record.
Answer to Paragraph 54
This appeal is not an attempt to litigate 2016 Minor Variance, but this appeal is about identifying the misappropriations and misconduct going on in Govt Agencies and raise the need for accountability to have proper check on agencies, as water is over the head and actions need to be taken to stop misappropriations. Level of misappropriation is so high that agencies think that no one can touch them and they are at large to help developers to make tons of wealth on residents of Kitchener’s expense, and hurt residents financially, as they know that no one have time or energy to fight against corruption, which will end up in vain due to misstatements and alerting the truth. This appeal is to identify misappropriations occurred during development of Subdivision 30T-10202, since 2011 to date, and reverse the decision which are made on wrong information provided by City of Kitchener to Councillors, and decisions made by councillors are based on misinformation provided by City Staff and GSP consultants.
46Firstly, it is apparent that the Appellant does not understand the statutory jurisdiction of the Tribunal. The Tribunal only has jurisdiction to deal with the matters properly before it: i.e., the Motion to Dismiss. The Tribunal has no jurisdiction to deal with the past events that have taken place since 2011.
47Secondly, City staff and Regional staff are professionals hired to provide their professional opinions and recommendations to City Council, with the knowledge that their opinions and recommendations may be tested not only at City Council, but also subsequently in matters brought to this Tribunal. In giving expert opinion evidence before this Tribunal, such experts acknowledge a duty to the Tribunal that their expert opinion evidence is to be fair, objective and non-partisan.
48Finally, City Councillors are democratically elected and given statutory authority to make (in this case land use planning) decisions, and in so doing they exercise their own independent decision-making authority, based on submissions they hear from all the participants in the public approval process.
49The PA sets out rights of appeal whereby parties may seek to challenge a decision that has been made, but such challenges in order to be substantiated must be based on evidence and not expressions of belief or concern.
“Blair S. Taylor”
blair s. taylor
MEMBER
Ontario Land Tribunal
Website: www.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.
OLT-21-001520 – Attachment 1