1834489 Ontario Inc. and Settler’s Landing Estates Ltd. v. Town of Niagara-on-the-Lake, 2022 CanLII 499

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 4, 2022

CASE NO.: PL210223

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

Applicant and Appellant: 1834489 Ontario Inc. and Settler’s Landing Estates Ltd.

Subject: Application to amend Zoning By-law No. 4316-09 – Refusal or neglect of the Town of Niagara-on-the-Lake to make a decision

Existing Zoning: Residential Development (RD) Zone

Proposed Zoning: Residential Site-Specific (R2-XX) Zone

Purpose: To permit the development of 53 residential lots and one block for parkland dedication

Property Address/Description: Part of Township Lot 118 Niagara designated as Parts 1, 2, and 3 on 30R15476; subject to an easement in gross over Part 3 on 30R15476 as in NR464799; Town of Niagara-on-the-Lake and Part of Township Lot 118 Niagara Part 3, 30R15270

Municipality: Town of Niagara-on-the-Lake

Municipality File No.: ZBA-16-2020

OLT Case No.: PL210223

OLT File No.: PL210223

OLT Case Name: Settler’s Landing Estates Ltd v. Niagara-on-the-Lake

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 1834489 Ontario Inc. and Settler’s Landing Estates Ltd.

Subject: Proposed Plan of Subdivision – Failure of the Town of Niagara-on-the-Lake to make a decision

Purpose: To permit the development of 53 residential lots and one block for parkland dedication

Property Address/Description: Part of Township Lot 118 Niagara designated as Parts 1, 2, and 3 on 30R15476; subject to an easement in gross over Part 3 on 30R15476 as in NR464799; Town of Niagara-on-the-Lake and Part of Township Lot 118 Niagara Part 3, 30R15270

Municipality: Town of Niagara-on-the-Lake

Municipality File No.: 26T-18-20-03

OLT Case No.: PL210223

OLT File No.: PL210224

BEFORE:

D. CHIPMAN MEMBER

Tuesday, the 4th day of January, 2022

THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment “A” to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence on Tuesday, March 29, 2022.

“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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT “A”

ONTARIO LAND TRIBUNAL LOCAL PLANNING APPEAL TRIBUNAL PROCEDURAL ORDER

ISSUE DATE: CASE NO.: PL210223

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

Applicant and Appellant: 1834489 Ontario Inc. and Settler’s Landing Estates Ltd.

Subject: Application to amend Zoning By-law No. 4316-09 – Refusal or neglect of the Town of Niagara-on-the-Lake to make a decision

Existing Zoning: Residential Development (RD) Zone

Proposed Zoning: Residential Site-Specific (R2-XX) Zone

Purpose: To permit the development of 53 residential lots and one block for parkland dedication

Property Address/Description: Part of Township Lot 118 Niagara designated as Parts 1, 2, and 3 on 30R15476; subject to an easement in gross over Part 3 on 30R15476 as in NR464799; Town of Niagara-on-the-Lake and Part of Township Lot 118 Niagara Part 3, 30R15270

Municipality: Town of Niagara-on-the-Lake

Municipality File No.: ZBA-16-2020

LPAT Case No.: PL210223

LPAT File No.: PL210223

LPAT Case Name: Settler’s Landing Estates Ltd. et al. v. Niagara-on-the-Lake

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 1834489 Ontario Inc. and Settler’s Landing Estates Ltd.

Subject: Proposed Plan of Subdivision – Failure of the Town of Niagara-on-the-Lake to make a decision

Purpose: To permit the development of 53 residential lots and one block for parkland dedication

Property Address/Description: Part of Township Lot 118 Niagara designated as Parts 1, 2, and 3 on 30R15476; subject to an easement in gross over Part 3 on 30R15476 as in NR464799; Town of Niagara-on-the-Lake and Part of Township Lot 118 Niagara Part 3, 30R15270

Municipality: Town of Niagara-on-the-Lake

Municipality File No.: 26T-18-20-03

LPAT Case No.: PL210223

LPAT File No.: PL210224

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 March 29, 2022 at 10:00 a.m. at Niagara-on-the-Lake, Ontario

3. The parties’ initial estimation for the length of the hearing is 4 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.

5. The issues are set out in the Issues List attached as Attachment 2. 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 February 3, 2022, being 55 days prior to the hearing date, 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 February 28, 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 March 14, 2022, being at least 15 days prior to the start of the hearing.

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 February 18, 2022, being a minimum of 38 days before the hearing date, 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 February 18, 2022, being a minimum of 38 days before the hearing date, 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 March 14, 2022 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 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 March 18, 2022, being no later than 10 days prior to the start of the hearing.

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 March 22, 2022.

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 a preliminary hearing plan with the Tribunal on or before March 8, 2022 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: Member D. Chipman

Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1

PARTIES AND PARTICIPANTS

Parties

1. 1834489 Ontario Inc. (“Appellant”)

2. Settler’s Landing Estates Ltd. (“Appellant”)

3. Town of Niagara-on-the-Lake (“Town”)

ATTACHMENT 2

ISSUES LIST

PLANNING ACT

1. Does the proposed plan of subdivision comply with Section 51(24) of the Planning Act?

PROVINCIAL POLICY STATEMENT (2020)

2. Does the proposed plan of subdivision and Zoning By-law comply with the Provincial Policy Statement?

A PLACE TO GROW: GROWTH PLAN FOR THE GREATER GOLDEN HORSESHOE (2020)

Do the applications conform with Growth Plan and the following specific policies of the August 2020 Office Consolidation of the Growth Plan:

3. Section 2 regarding managing growth?

4. Section 2.2.7 regarding growth in designated greenfield areas?

NIAGARA REGION OFFICIAL PLAN

Do the applications conform with the following policies of the Niagara Region Official Plan:

5. Section 4.C.6 regarding greenfield growth?

6. Section 4.C.7 regarding achieving the density target?

7. Policy 8.B.8 regarding servicing of new growth?

8. Policy 9.E.1 regarding Complete Streets?

TOWN OF NIAGARA-ON-THE-LAKE OFFICIAL PLAN

Do the applications conform with the following specific policies of the Town of Niagara-on-the-Lake:

9. Section 6A Policy 5.2 (c) regarding providing a mix of housing and density?

10. Section 6A Policy 5.2 (f) regarding the Greenfield density target of 50 people and jobs combined per gross hectare?

11. Section 6A Policy 5.2 (f) requiring a minimum net density of 19.76 units per hectare (8 units per hectare)?

12. Section 6A Policy 5.4 (e) regarding medium density development adjacent to parks?

13. Policies 6.30 (4) (a) and 6.30 (4) (e) regarding stormwater management?

14. Policy 20.2.4 (d) that design of access to Local roads will ensure safety and ease of entry and exit of traffic?

TOWN OF NIAGARA-ON-THE-LAKE ZONING BY-LAW

15. Does the proposed Zoning By-law implement the Provincial, Regional, and Town policies?

16. Does the proposed Zoning By-law achieve land use compatibility?

17. Does the proposed Zoning By-law implement a logical pattern of development?

OVERALL

18. Does the proposed development represent good planning?

19. What is an appropriate size for the development’s park?

20. Where should the development’s park be located?

21. What are appropriate conditions of draft plan of subdivision approval?

ATTACHMENT 3

ORDER OF EVIDENCE

1. 1834489 Ontario Inc. and Settler’s Landing Estates Ltd. (“Appellants”)

2. Town of Niagara-on-the-Lake (“Town”)

3. Reply by 1834489 Ontario Inc. and Settler’s Landing Estates Ltd.