Ontario Land Tribunal
Issue Date: June 02, 2022 Case No(s).: OLT-22-002041
Proceeding Commenced Under subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Stefan Huzan Applicant: Cathy Desando and Vince Desando Subject: Minor Variance Description: To permit the reduction of the minimum required lot frontage Reference Number: A-66-2021 Property Address: 464 Belton Street Municipality/UT: Thunder Bay/Thunder Bay OLT Case No.: OLT-22-002041 OLT Lead Case No.: OLT-22-002041 OLT Case Name: Huzan v. Thunder Bay (City)
Proceeding Commenced Under subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: City of Thunder Bay Request for: Request for Dismissal Without a Hearing
Heard: April 13, 2022 by video hearing
Appearances
| Parties | Counsel*/Representative |
|---|---|
| Stefan Huzan | Self-represented |
| City of Thunder Bay | Michael Grimaldi* |
| Vince and Cathy Desando | Vince Desando |
Decision Delivered by Hugh S. Wilkins and Order of the Tribunal
Introduction
1Vince and Cathy Desando ("Applicants") planned to sever their property located at 464 Belton Road ("subject property") into two lots. Their plans were hampered by the fact that each proposed lot would not have the minimum frontage of 60 metres ("m") required under the City of Thunder Bay's ("City") Official Plan and Zoning By-law No. 100-2018 ("Zoning By-law"). To address this, the Applicants first sought an official plan amendment and then a variance to the Zoning By-law.
2First, the Applicants filed their application for a site-specific official plan amendment to allow for the requested frontage. It was filed before the City's 2018 Official Plan came into force. The application was approved by City Council ("OPA No. 69") in 2019. The Amendment was appealed by a neighbour and went to a hearing before the Tribunal. On July 26, 2021, the appeal was dismissed by the Tribunal and OPA No. 69 was approved (see Larizza v Thunder Bay (City), 2021 CanLII 69341 (ON LT)).
3With the approval of OPA No. 69, the Applicants filed applications for a variance to the Zoning By-law and for a Consent to sever. The proposed variance was approved by the City's Committee of Adjustment on December 15, 2021. The Consent application was approved on the same day.
4On January 3, 2022, Stefan Huzan filed a Notice of Appeal regarding the variance. The Consent was not appealed.
5On March 28, 2022, the City filed a motion challenging Mr. Huzan's standing and seeking an Order dismissing the appeal without a hearing.
6The City's motion hearing was held by video hearing on April 13, 2022.
Issue
7The issue to be addressed is whether under s. 4.6(1) of the Statutory Powers Procedure Act ("SPPA") some aspect of the statutory requirements for bringing the proceeding has not been met and, specifically, whether or not the statutory requirement that an appellant be an "interested person" within the meaning of s. 45(12) of the Planning Act has been met.
Submissions
The City's and Applicants' Submissions
8The City submits that Mr. Huzan is not an "interested person" under s. 45(12) of the Planning Act. It submits that Mr. Huzan lives over 14 kilometers away from the subject property in an area outside the City and would not be impacted by the proposed variance. It submits that there are physical barriers, including waterbodies, between the area in which Mr. Huzan resides and the subject property and there are no direct roads connecting the two areas.
9The City submits that an "interested person" under s. 45(12) of the Planning Act must be a person who lives in geographic proximity to the property in question or has a special interest in the matter. It argues that the Legislature intended to restrict the eligibility for appellant standing in variance appeals. It submits that standing on variance appeals is intended to be restricted given the limited impacts of variances. Comparing the Planning Act's provisions for standing in variance proceedings to those for zoning by-law amendment proceedings, the City submits that the zoning by-law amendment provisions allow for a wider range of appellants as zoning changes can impact a larger area and number of people.
10The Applicants support the City's position.
Mr. Huzan's Submissions
11Mr. Huzan submits that although he does not live in close proximity to the subject property, he has special knowledge that should allow him to have standing. He submits that he is a land use planner who is familiar with the subject property and has a special interest to ensure that the proposed variance is properly addressed. Mr. Huzan submits that geographic proximity is a consideration, but not a requirement for standing. He argues that a person with special knowledge, different from the knowledge and interests of the general public, can have an interest and have standing as an appellant in a variance proceeding.
12Mr. Huzan submits that OPA No. 69 amended only the City's 2002 Official Plan and not the 2018 Official Plan. He argues that the City's 2002 Official Plan along with OPA No. 69 were repealed and the requirements in the City's 2018 Official Plan apply to the proposed variance. He submits that the proposed variance does not conform with the City's 2018 Official Plan policies requiring that within Rural and Rural Settlement Area designations, such as the subject property, lot additions may not be used to create new developable lots. He submits that this prohibition was not considered by the Committee of Adjustment when approving the proposed variance. He submits that as an interested person with special knowledge, he should have standing to address this issue.
Analysis and Findings
13Section 19(1) of the Ontario Land Tribunal Act, 2021 sets out the Tribunal's general powers to dismiss an appeal. It states:
19(1) Subject to subsection (4), the Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing,
(a) if the party who brought the proceeding has not paid any fee required to be paid under this Act;
(b) if the party who brought the proceeding has not responded to a request by the Tribunal for further information within the time specified by the Tribunal;
(c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success;
(d) in any circumstance listed in subsection 4.6(1) of the Statutory Powers Procedure Act; or
(e) in any circumstance provided for under any other Act.
14Of note is s. 19(1)(d), which states that the Tribunal may dismiss an appeal in any circumstance listed in s. 4.6(1) of the SPPA. Section 4.6(1) of the SPPA states:
4.6(1) Subject to subsections (5) and (6), a tribunal may dismiss a proceeding without a hearing if,
(a) the proceeding is frivolous, vexatious or is commenced in bad faith;
(b) the proceeding relates to matters that are outside the jurisdiction of the tribunal; or
(c) some aspect of the statutory requirements for bringing the proceeding has not been met.
15Subsection 4.6(1)(c) relates to a situation where a statutory requirement for bringing a proceeding has not been met. The City argues that Mr. Huzan has not met the statutory requirement that he be an "interested person" under s. 45(12) of the Planning Act and the appeal should be dismissed.
16Section 45(12) of the Planning Act states:
45(12) The applicant, the Minister or any other person or public body who has an interest in the matter may within 20 days of the making of the decision appeal to the Tribunal against the decision of the committee by filing with the secretary-treasurer of the committee a notice of appeal setting out the objection to the decision and the reasons in support of the objection accompanied by payment to the secretary-treasurer of the fee charged by the Tribunal as payable on an appeal from a committee of adjustment to the Tribunal.
17The language in s. 45(12) refers to "the Minister or any other person or public body who has an interest in the matter". The Planning Act does not define the word "interest". The Divisional Court in Victoria Wood Development Corp. v. Jan Davies Ltd. 1979 CarswellOnt 900 (Ont. Div. Ct.), at para 4, found that there are no set criteria for standing in variance appeals, but certain considerations, including geographic proximity may be taken into account. It suggested that the requirements in the Planning Act for notice of variance hearings require that notice be given to people in the immediate area of the property in question and thus those people generally should be considered for appellant standing.
18The Tribunal's predecessors have also identified considerations that can be taken into account. In Campbell v. Town of Collingwood Committee of Adjustment 1995 CarswellOnt 5300 (O.M.B.), at paras. 6-7, the Ontario Municipal Board found that as official plan and zoning by-law amendment proceedings affect people over a wider area than variance proceedings, the standing requirements for such proceedings are less restrictive than those for variances. It also found that the demonstration of a special interest is a consideration that may be taken into account when considering standing for a variance proceeding.
19The above-noted considerations do not constitute an exhaustive list of considerations that the Tribunal may take into account. The language in s. 45(12) does not restrict standing to specific situations. The test is simply whether the Minister, other person, or public body has an interest in the matter. The considerations of geographic proximity and accessibility are applicable provided that the impacts of the variance are local in nature. If a variance is approved that has impacts or significance that extends beyond the local area, then, in those exceptional circumstances, other considerations may also be taken into account. These could include the nature of the impacts outside of the local area, the direct impacts on the proposed appellant, or the effects on matters of public interest.
20The Tribunal finds that Mr. Huzan has not demonstrated that the proposed variance would have impacts outside of the local area, would directly impact him, or would affect matters of public interest. He submits that he has a special interest in the matter given his expertise in land use planning and his knowledge of the subject property. His expertise and knowledge could be the bases for him to provide evidence on an issue, but the fact that he has planning expertise and knowledge of the subject property does not mean that he has an interest in the matter. In this regard, he submits that the proposed variance does not conform with the City's 2018 Official Plan, which he states prohibits the creation of a new parcel of land in the area of the subject property. However, the proposed variance before the Tribunal only relates to the frontage of the subject property. Lot creation is not the subject of the proposed variance. The Tribunal finds that this issue could be relevant to an appeal of the Consent that was approved for the subject property, but the Consent was not appealed and is not before the Tribunal. The Tribunal also notes that OPA No. 69 permits the frontage sought by the Applicants through the proposed variance. The Tribunal's decision approving OPA No. 69 had regard for the City's 2018 Official Plan and it was not appealed.
21The Tribunal finds that Mr. Huzan does not have an interest in the matter before it and therefore the statutory requirement in s. 45(12) of the Planning Act for bringing a proceeding has not been met. The Tribunal finds that Mr. Huzan does not have standing.
Order
22The Tribunal grants the City's motion and orders that the appeal is dismissed.
"Hugh S. Wilkins"
HUGH S. WILKINS 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.