Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 13, 2022

CASE NO(S).: OLT-22-002511 (Formerly PL190402)

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

Appellant: Cosmopolitan Homes Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit a 163-unit residential development Reference Number: Z5-19 Property Address: 49-57 Folkard Lane Municipality/UT: Prince Edward County/Prince Edward County OLT Case No: OLT-22-002511 Legacy Case No: PL190402 OLT Lead Case No: OLT-22-002511 Legacy Lead Case No: PL190402 OLT Case Name: Cosmopolitan Homes v. Prince Edward (County.)

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

Subject: Site Plan Description: To permit a 163-unit residential development Reference Number: SP-01-19 Property Address: 49-57 Folkard Lane Municipality/UT: Prince Edward County/Prince Edward County OLT Case No: OLT-22-002512 Legacy Case No: PL190403 OLT Lead Case No: OLT-22-002511 Legacy Lead Case No: PL190402 Case Name: Cosmopolitan Homes v. Prince Edward (County.)

BEFORE:

STEVEN COOKE VICE-CHAIR

Wednesday, the 13th day of April, 2022

THE TRIBUNAL ORDERS that the Procedural Order, attached hereto as Appendix “1” is hereby amended and shall be in force and effect for the purpose of governing the required procedures leading up to and including the hearing scheduled to commence on Monday, January 16, 2023 at 10:00 a.m. by Videoconference at https://global.gotomeeting.com/join/812320397. The length of the hearing will be 7 days.

“Euken Lui”

EUKEN LUI ACTING REGISTRAR

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.

APPENDIX 1

ISSUE DATE: CASE NO(S).: PL190402

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

Applicant and Appellant: Cosmopolitan Homes Subject: Application to amend Zoning By-law 1816-2006 – Refusal or neglect of Prince Edward County to make a decision Existing Zoning: Residential Proposed Zoning: Urban Residential Purpose: To permit a 163-unit residential development Municipality: Prince Edward County OLT Case No.: PL190402 OLT File No.: PL190402 OLT Case Name: Cosmopolitan Homes v. Prince Edward County

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

Referred by: Cosmopolitan Homes Subject: Site Plan Property Address/Description: 49 & 57 Folkard Lane Municipality: Prince Edward County OLT Case No.: PL190402 OLT File No.: PL190403

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 January 16, 2023 at 10:00 a.m. at https://global.gotomeeting.com/join/812320397

3. The parties’ initial estimation for the length of the hearing is seven (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. 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).

5. The issues are set out in the Issues List attached as Attachment 2. The Parties may file an updated issues list on or before February 28, 2022, following which 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 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.

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 October 21, 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 November 18, 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 December 2, 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 December 9, 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 December 9, 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 January 6, 2023, 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. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within fourteen (14) days [December 23, 2022] after the evidence is received and in accordance with paragraph 22 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before January 6, 2023.

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 January 6, 2023.

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 an updated hearing plan with the Tribunal on or before January 6, 2023 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: Name of Member: Date:

TRIBUNAL REGISTRAR

SUMMARY OF DATES

DATE	EVENT
October 21, 2022	Exchange of witness lists (names, disciplines and order to be called)
November 18, 2022	Experts meeting prior to this date
December 2, 2022	Circulation of Agreed Statement of Facts (if any)
December 9, 2022	Exchange of witness statements, summonsed witness outlines, and expert reports
December 23, 2022	Exchange of reply witness statements (if any)
January 6, 2023	Exchange of visual evidence (if any)
January 6, 2023	Finalize Work Plan
January 6, 2023	Finalize Joint Document Book
January 16, 2023	Hearing commences

Attachment 1

LIST OF PARTIES AND PARTICIPANTS

A. PARTIES

Counsel

1. Cosmopolitan Homes (Applicant) Tony Fleming Cunningham, Swan, Carty, Little & Bonham LLP 27 Princess Street Kingston ON K7L 1A3 Email: tfleming@cswan.com Tel: 613-546-8096

2. County of Prince Edward (Municipality) Jennifer Savini Templeman LLP 205 Dundas St E, Suite 200, Box 234, Belleville ON K8N 5A2 Email: jsavini@tmlegal.ca Tel: 613-966-2620

B. PARTICIPANTS

1. Bruce Dickie
2. Tim and Shirley Tunstead
3. Michael Malone

Attachment 2

Issues List

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any party that the issue is either relevant or appropriate. The identification of an issue on this list by a party indicates that party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other parties the case they need to meet. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the Tribunal.

General Issues

1. Is the proposed zoning by-law amendment and site plan application premature given the lack of servicing at the subject property?

   1. See Picton Urban Secondary Plan issues.

2. What are the applicable boundaries of the subject property?

   1. How is Lot 110 to be dealt with given that it is currently a separate legally conveyable parcel of land?
   2. Does the lot coverage calculation include Lot 110?
   3. Does the lot coverage include Folkard Lane and the portion of land north of Folkard Lane?
   4. Have the boundaries of County Road 49 been considered as part of the property boundary?

3. What application does the new County Official Plan 2021 have on the proposed development?

Zoning Issues – s. 34(11)

4. Is the proposed amendment to Zoning By-law No. 1816-2006 (“the Zoning By-law Amendment”) consistent with the applicable policies of the Provincial Policy Statement (2020)?

   1. Is it consistent with policy 1.1.1(f) in terms of accessibility?
   2. Is it consistent with policy 1.1.1(g) as the extension of sanitary sewer and water services to the Subject Property has not been approved by Council?
   3. Is it consistent with policy 1.4.3(a) respecting the provision of affordable housing?
   4. Does the proposed development accommodate active transportation and future transit considerations consistent with policies 1.5.1(a) and 1.6.7?
   5. Will the condominium owners have access to the shoreline consistent with policy 1.5.1(c)?
   6. Has the proposed development addressed servicing and intensification of adjacent land uses consistent with policy 1.6.6.1(d)?
   7. Has stormwater management been adequately addressed consistent with policy 1.6.6.7?
   8. Does the development adequately address the Intake Protection Zone policies consistent with policy 2.2(e)?
   9. Regarding policy 2.6, has adequate consultation occurred with Indigenous communities? As an adequate archaeological assessment been completed?

5. Does the proposed Zoning By-law Amendment conform with the applicable policies of the County of Prince Edward Official Plan (2006), specifically:

   1. Part 1 i. Section 2.0 Interpretation
   2. Part 2 Vision for the County i. Section 2.3 Growth Pressures ii. Section 2.4 Settlement Patterns iii. Section 2.9 Social Needs iv. Section 2.10 Links
   3. Part 3 General Strategies i. Section 2.0 Transportation and Servicing ii. Section 4.0 Social and Community Development
   4. Part 4 land Use Designation Policies i. A) Growth and Settlement Strategy ii. Section 1.0 Urban Centres
   5. Part 5 The Division of Land
   6. Part 6 Implementation?

6. Does the proposed Zoning By-law Amendment conform with the applicable policies of the County of Prince Edward Official Plan (2021), specifically:

   1. Section 2.3.1 Vision Principles
   2. Section 2.4 Growth Management Strategies
   3. Section 3.0 Shaping the County
   4. Section 3.4 Infrastructure
   5. Section 3.5 Livable Community
   6. Section 4.1 Settlement Areas and 4.1.1 Objectives
   7. Section 4.1.2.1 Secondary Plans
   8. Section 5.0 Implementation Policies?

7. Does the Zoning By-law Amendment conform with the applicable policies of the Picton-Hallowell Urban Secondary Plan?

   1. Does the proposed development conform with Section 3.2 Servicing and Utilities Policies for Service Area 3 given that there is no existing municipal water or sanitary collection system?
   2. Does the proposed development conform with the Intake Protection Zone policies?
   3. Does the proposed development conform with the height and density policies found in section 5.1.1.4? i. What would be appropriate community benefits?
   4. Does the proposed development conform with the shadowing policies in section 4.1.1?
   5. Does the proposed development conform with the following policies: i. Preface - Vision for Picton-Hallowell ii. Section 1.5 Growth Scenarios iii. Section 2.4 Town Residential Area iv. Section 3.1 transportation and Circulation v. Section 3.2 Services and Utilities vi. Section 4.1 Town Design vii. Section 4.3 Housing viii. Section 4.5 Infill Development and Community Improvement ix. Section 4.6 Green Infrastructure x. Section 4.7 Environmental management xi. Section 4.8 Natural and Human-Made Hazards xii. Section 5.1 Plan Administration xiii. Section 5.3 Public Works and Financial Management?

8. Does the proposed Zoning by-Law amendment include appropriate setbacks to provide for sensitivity to the adjacent properties’ private amenity spaces?

9. Does the development comply with the parking requirements of section 5 of the Zoning By-Law?

Site Plan Issues – s. 41(12)

10. Is the proposed site plan consistent with the applicable policies of the Provincial Policy Statement (2020)?

    1. Is it consistent with policy 1.1.1(f) in terms of accessibility, in demonstrating alternatives to motorized vehicles to access the site?
    2. Does the proposed development accommodate active transportation and future transit considerations consistent with policies 1.5.1(a) and 1.6.7?

11. Does the storm water design conform with the policies of the County’s Source Water Protection Plan?

12. Does the proposed development meet the requirements of the County’s Site Plan Control By-Law?

13. Has the impact of development on County Road 49 been considered? Has the required road widening been addressed?

14. Do the site plan drawings meet the requirements of the Planning Act: a. Does the site plan appropriately address height and massing of the development? b. Are the height and mass of the proposed buildings sympathetic to the character of the area? c. Are the impacts of the proposed buildings on adjacent properties mitigated? d. Has the shadowing of the adjacent properties and buildings within the development been appropriately addressed? e. Does the site plan incorporate in adequate private amenity areas, including visibility, access and lighting? f. Have noise mitigation measures been appropriately implemented into the design and construction of the residential buildings adjacent to County Road 49? g. Does the site plan design include appropriate active transportation design, including bicycle lanes and sidewalks? h. Does the location of the parking area on the site plan adequately address visual screening from public view and mitigation of noise and odours? i. Does the building design respect the residential character of the area, including the garage entry design? j. Does the site plan design include adequate landscaping barriers and visual screening of rooftop appurtenances? k. Does the site plan design meet the County’s requirements for gateway design and material finishing, including entablature, window mouldings and quoins? l. Is the townhouse block sited to be compatible with the type and scale of adjacent residential properties, including the location of parking and orientation of the buildings? m. Does the stie plan design appropriately set out building and site layout including outdoor amenity space?

15. Have land dedications or easements been provided to accommodate public sanitary sewer, water and stormwater facilities?

16. Has the development addressed appropriate turning lanes and intersections on County Road 49?

17. Does the site plan design accommodate the extension of services to adjacent properties?

18. Has access to the subject property from County Road 49 been adequately addressed?

19. Does the stormwater management report adequately address high flood events without aggravating upstream conditions or impacts onto the County road infrastructure?

20. Does the proposed site plan development conform with the Official Plan policies (2006 and 2021) and the Picton Urban Secondary Plan policies listed in the zoning by-law amendment section above?

Attachment 3

Order of Evidence

1. Appellant
2. Municipality
3. Appellant reply, if necessary.

Attachment 4

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.