Burdett v. Niagara Falls (City), 2022 CanLII 56268

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

June 24, 2022

CASE NO(S).:

OLT-21-001009

PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant

1692695 Ontario Ltd.

Appellant

Joedy Burdett

Subject:

Zoning By-law

Description:

To permit transit supportive development within the Transit Station Secondary Plan Area

Reference Number:

ZBA 2021-40

Property Address:

City of Niagara Falls Transit Station Secondary Plan Area

Municipality/UT:

Niagara Falls/Niagara

OLT Case No:

OLT-21-001009

OLT Lead Case No:

OLT-21-001009

OLT Case Name:

Burdett v. Niagara Falls (City)

Heard:

June 7, 2022, by video hearing

APPEARANCES:

Parties

Counsel/Representative*

Joedy Burdett

Self-Represented*

1692695 Ontario Ltd. (owner)

Joe Mrkalj (owner)*

City of Niagara Falls

Tom Halinski, Naomi Mares, co-counsel

ORAL DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL

1The matter before the Tribunal is an appeal pursuant to section 34(19) of the Planning Act (the “Planning Act”) with respect to the passing of Zoning By-law Amendment (the “ZBA”) to Zoning By-law 79-200 by the City of Niagara Falls (the “City”). Two appeals were filed upon the approval of the ZBA: Appeal 1 by Joedy Burdett and Appeal 2 by 1692695 Ontario Ltd. Mr. Burdett (the “Appellant 1”) appealed the ZBA on the basis of his concerns regarding the effect the ZBA would have on the potential future plans on his property. 1692695 Ontario Ltd. (the “Appellant 2”) appealed the ZBA on the basis of its opposition to the removal of an existing municipal parking lot (and the resultant loss of parking).

2This was the first CMC scheduled to determine how this matter would move forward. The Tribunal marked the Affidavit of Service as Exhibit 1.

3The Tribunal heard two Motions in relation to the Appeal. The first Motion was brought by the City to dismiss the Appeals and the second Motion was brought by Appellant 1 as a motion to dismiss the motion brought by the City (collectively the “Motions”).

Motion presented by Appellant 1 is as follows:

4The relief requested through the Motion present by the Appellant 1 is as follows:

(a) The Tribunal summarily dismiss the Motion to dismiss appeals without a full hearing.

(b) The Tribunal summarily initiate Criminal Perjury Indictment Proceedings against Brian Dick (131(1) Perjury Criminal Code).

(c) The Tribunal adjourn the CMC (Rule 17.3 of the Rules of Practice and Procedure).

(d) The Tribunal exempt any time sensitive procedural requirements related to these Motions (Rule 1.6 and 2.1 of the Rules of Practice and procedure).

(e) The Tribunal permit costs against the City (Rule 23.9(d)(h) of the Rules of Practice and Procedure).

Motion presented by the City

5The relief requested through the Motion present by the City is as follows:

(a) An order of the Tribunal, pursuant to subsection 34(25) of the Planning Act, R.S.O. 1990, c. P.13 (the “Planning Act”) to dismiss the Appeals in their entirety without holding a full hearing;

(b) The City’s costs of this Motion; and

(c) Such other relief as counsel for the City may request and the Tribunal may permit.

THE GROUNDS FOR THE MOTION PRESENTED BY APPELLANT 1

6Appellant 1 owns a number of properties within the area subject to the ZBA, including 4478, 4480, 4502, and 4622 Bridge Street.

7The Tribunal heard twenty-two itemized grounds for the dismissal of the City’s Motion. Contained in all of the grounds in his request for dismissal, Appellant 1 refers to his personal opinion on the performance and qualifications of the City’s Manager of Planning, Brian Dick with accusation of providing false statements.

FINDINGS OF THE TRIBUNAL – APPELLANT 1 MOTION

8The Tribunal finds that the Motion of Appellant 1, as per section 10.3 of the Tribunal’s Rules of Practice and Procedure regarding the service of a notice of written motions, Appellant 1 failed to serve notice 15 days in advance of the hearing.

9The Tribunal finds the grounds for the Motion presented were based entirely on matters that are outside the jurisdiction of the Tribunal. The grounds brought forth in the Motion by Appellant 1, related to personal opinions on the performance and qualifications of a City employee.

10The Tribunal finds the request regarding the adjournment of the CMC is advanced only for the purpose of delay.

11The Tribunal finds that there are no costs warranted to Appellant 1 on consideration of the Motion to this matter.

THE GROUNDS FOR THE MOTION PRESENTED BY THE CITY

The Transit Station Secondary Plan

12The Tribunal heard that in 2018, the City adopted the Transit Station Secondary Plan (the “Secondary Plan”) through Official Plan Amendment No. 125, amending the Official Plan (the “OP”) for the City. The Secondary Plan was subsequently approved by the Regional Municipality of Niagara and is now in force.

13The Tribunal was informed that the Secondary Plan is intended to guide future transit-supportive development and redevelopment in the area around the transit station, integrating the existing VIA Rail Station, the Niagara Regional Transit Hub and the rest of the Downtown area to support all-day GO Transit service and the evolution of this area into an urban centre.

The Zoning By-law Amendment

14The Tribunal was informed that after adopting the Secondary Plan, the City initiated an amendment to the City of Niagara Falls Zoning By-law No. 79-200 (the “Zoning By-law”), pursuant to the direction in Part 5 Section 2, Policy 4.5 of the Official Plan (as amended by the Secondary Plan) to incorporate the land use and design policies of the Secondary Plan into the Zoning By-law.

15The Tribunal was taken through the timelines of the extensive public consultation process as part of the drafting of the Zoning By-law Amendment, which included providing a presentation online and conducting a survey of the public between November 3 to 23, 2020, circulating a draft amendment for public and agency review on January 22, 2021, and holding an Open House on February 16, 2021, and a Statutory Public Meeting on March 2, 2021.

16The Tribunal heard that Planning Staff recommended approval of the draft Zoning By-law Amendment in a report dated March 23, 2021 (“Report”). The report outlined in detail the results of the public and agency consultation, provided answers to significant themes and comments received throughout the consultative process, and highlighted how the draft Zoning By-law Amendment evolved in response. The Report concluded that Zoning By-law Amendment No. 2021-40 (the “ZBA”) is consistent with the Places to Grow: the Growth Plan for the Greater Golden Horseshoe (2019) (the “Growth Plan”), the Niagara Region Official Plan, and the Official Plan.

17The Tribunal notes that both Appellants are on record as providing input throughout the public process and received comments from staff directly relating to their concerns.

Legislative Framework

18Pursuant to subsections 34(25)(1)(i) - (iii) of the Planning Act, and subsection 19(1)(c) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c.4, Sched 6, the Appeals can be dismissed without a hearing for the following reasons:

(a) The Appeals do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the Appeals. The issues raised in the Appeals are not land use planning issues upon which the Tribunal could allow the appeal. Nor are the ostensible issues supported by any relevant or qualified evidence or analysis;

(b) The Appeals are frivolous and vexatious, as those terms have been considered by the Tribunal in other cases. The Appeals are not supported by any valid land use planning or technical reasons;

(c) The issues raised by these Appeals were expressly raised by the Appellants in their multiple communications with City Staff and City Council. They were explicitly considered, responded to, and addressed by City Staff before the ZBA was approved. The public interest is not served by devoting scarce public and private resources for a hearing that is unlikely to reveal anything that has not been already considered by City Council;

(d) The Appeals are made only for the purpose of frustrating and delaying the implementation of the ZBA; and

(e) The Appeals have no reasonable prospect of success.

APPELLANT 1 - APPEAL

19It is the findings of this Tribunal that this appeal has no reasonable prospect of success and should advance no further. The Tribunal heard that it is the contention of Counsel that Appellant 1 is using his Appeal to attempt to gain planning permissions to redevelop his properties.

20The Tribunal finds there was extensive consultation and analysis of the ZBA by City Staff which demonstrated not only that the ZBA conforms to the Provincial Policy Statement, the Growth Plan and the Official Plan, as well as all other necessary legislation and policies, but it also reflects the feedback from the community.

21The Tribunal finds that the ZBA accomplishes its intended purpose, which is to implement the recently-approved, in-force Secondary Plan for this area. There has been no planning evidence submitted in support of the Motion to support a case that the ZBA is not consistent with the Secondary Plan, which it is designed to implement.

22The Tribunal finds that the Application for the ZBA was tested against applicable provincial and municipal policies, and supporting reports were thoroughly reviewed. In making its decision, City Council had the benefit of the expert analysis offered by City Staff. This Appeal does little more than raise apprehensions based on Appellant 1’s personal concerns relating to speculative, potential plans to develop his properties, and his grievances against members of City Staff and City Council.

23The Tribunal finds that the concerns raised by Appellant 1 are substantiated only by his own opinion, and not by any independent or valid evidence. Appellant 1 has provided no indication that he intends to retain and/or rely on any expert evidence to substantiate the concerns raised by his appeal, or undermine the extensive analysis furnished by City Staff, and reviewed and accepted by City Council. Accordingly, there is no evidentiary basis upon which the Tribunal could, in a full hearing, conclude that the ZBA does not conform with the Official Plan, and/or is inconsistent with the Provincial Policy Statement.

24The Tribunal finds this is not the appropriate forum for the adjudication of any issues alleged by the Appellant 1.

25The Tribunal heard that prior to Council’s approval of the ZBA, Appellant 1 communicated numerous times with City Staff and City Council respecting the ZBA. In his correspondence, Appellant 1 expressed his concerns regarding purported contradictory and detrimental provisions in the ZBA, and alleged failure of City Staff to adequately understand the ZBA or to provide the required notice prior to recommending approval of the ZBA. Appellant 1 also made oral submissions to City Council on March 2, 2021.

26Through the testimony of Mr. Dick, the Tribunal was informed that City Staff have repeatedly provided detailed, specific responses to the Appellant 1’s concerns, explaining the rationale for the ZBA provisions in question. City Council also revised the ZBA to rezone all of Appellant 1’s properties as CB4, in order to address his concerns about his properties being subject to differing zoning categories.

27The Tribunal finds that Appellant 1 raises largely the same concerns which he previously expressed to the City, and which concerns were before City Council prior to its consideration of the ZBA. Appellant 1’s assertions that the public was not properly consulted or given notice are not bone out by the public record and testimony before the Tribunal.

28The Tribunal notes that the ZBA Application was subject to a rigorous public process, including a community consultation meeting and a statutory public meeting before the ZBA was adopted.

29Through the Motion presented to the Tribunal, it is apparent that Appellant 1 holds grievances against employees and elected representatives of the City, as well as the land use planning process, which go beyond any specific issues related to the By-law.

30The Tribunal notes that Appellant 1 must do more than simply raise apprehensions in his Appeal, or demand revisions to the ZBA to accommodate potential future development concepts. The Appellant must present land use planning issues as well as expert and objective evidence to substantiate those issues to demonstrate that such concerns have the potential to affect the outcome of the Tribunal’s proceeding. The Appellant cannot simply use planning language to advance unsupported concerns.

31The Tribunal finds there is no reason to hold a full hearing in order to satisfy an Appellant who refuses to accept conclusions and analysis from qualified land use planning experts and does not accept City Council’s approval decision or the evidence which supports that decision but offers no tangible promise of contrary evidence to support his Appeal.

32In the Tribunal’s view this proceeding has no reasonable prospect of success and should proceed no further.

APPELLANT 2 - APPEAL

33The Tribunal heard that Appellant 2 owns a number of commercial properties within the Downtown Node, however, the subject matter of its Appeal is a property in the ZBA area (4500 Park Street), in which Appellant 2 does not have an interest, but raises concerns with respect to the impact of removing the parking at 4500 Park Street from the Downtown Node.

34The property at 4500 Park Street was, until recently, a municipal surface parking lot. As part of the ZBA, 4500 Park Street has been rezoned from CB to CB4-1, which rezoning has the effect of adding an Apartment Dwelling to the range of uses permitted on the site.

35Appellant 2 stated that the removal of this amount of parking is “not good land use planning and not in the public interest” and is not in conformity with the Official Plan’s direction to conduct a Parking Demand Analysis when requesting a parking reduction.

36Contrary to the Appellant’s argument, the Tribunal was informed that the language in the Official Plan relating to the requirement for a Parking Demand Analysis arises when requesting an alternative parking requirement, reduced parking standard, shared parking arrangements, to accompany a development application. It does not speak to the cessation of a permitted use in favour of another.

37The Tribunal finds that the Appeal is misplaced because the subject lands were already zoned to permit a mixed-use building with dwelling units, among other uses, even before the passing of the ZBA of which there was never any guarantee that the parking lot use would continue in the future.

38The Tribunal was told that the City’s vision for intensification at 4500 Park Street was made clear with the adoption of the Secondary Plan in 2018. Under the Secondary Plan, the subject lands are designated Mixed Use 1 Downtown, which designation is intended to “provide opportunities for mixed use development in a high density format.” The Mixed Use 1 Downtown policies in the Secondary Plan also permit medium and high density apartments with a maximum height provision of 10 storeys for the subject lands and encourage a minimum net density of 50 units per hectare for residential development.

39It was noted that Appellant 2 did not appeal the Secondary Plan when it was adopted and further, raises no issues of inconsistency or non-conformity with the Provincial Policy Statement or the Growth Plan.

40Appellant 2 also asserts that the City’s justification for the reduction in parking spaces being addressed by the potential municipal parking lot to be located at Bridge Street is uncertain and not an adequate replacement for the parking spaces that have been lost at 4500 Park Street.

41The Tribunal finds that this Appeal does little more than raise apprehensions based on Appellant 2’s personal concerns relating to adequate parking for its own commercial properties as the Bridge Street municipal parking lot was tested against applicable provincial, and municipal polices, and supporting reports which were thoroughly reviewed.

42Having heard the evidence, the Tribunal finds the concerns raised by Appellant 2 are substantiated only by its principal’s own opinion, and not by any independent or valid evidence. In its correspondence, Appellant 2 expressed its concerns regarding the likelihood that 4500 Park Street would be redeveloped, thus removing the existing surface parking.

43Through this Appeal, Appellant 2 raises the same concerns which it previously expressed to the City, and which concerns were before City Council prior to its consideration of the ZBA. These concerns outlined the intended construction of a new municipal parking lot on Bridge Street. Appellant 2 contends the removal of the parking at the subject site inconveniences his clients.

44The Tribunal heard that since the filing of this Appeal, the City has attempted to address Appellant 2 on his parking concerns. The City informed the Tribunal that there are a substantial number of free parking spaces in the downtown area, and it has advanced the Bridge Street municipal parking lot. It was the City’s position that the subject property has always intended the redevelopment of the vacant land of which Appellant 2 has been aware of for some time.

45On the motion, the Tribunal must determine whether the reasons for appeal are genuine, legitimate and authentic land use planning grounds, capable of expert evidence in support.

46The Tribunal finds that Appellant 2 must do more than simply raise apprehensions in their Appeal. The Appellant must present land use planning issues and expert and objective evidence to substantiate their issues to demonstrate that such concerns have the potential to affect the outcome of the Tribunal’s proceeding.

47The Tribunal finds there is no reason to hold a full hearing in order to satisfy an Appellant who refuses to accept conclusions and analysis from qualified City Staff members and does not accept City Council’s approval decision or the evidence which supports that decision.

48The Tribunal finds the issues raised by Appeal 2 do not reveal any genuine land use planning ground and are made only for the purpose of delay. Based on the lack of evidence that Appeal 2 will bring to a hearing the Tribunal finds this proceeding has no reasonable prospect of success and should proceed no further.

ORDER

49The Tribunal Orders that the motion brought by Joedy Burdett is dismissed.

50The Tribunal Orders that the motion brought by the City of Niagara Falls is granted and that the Appeals are dismissed.

51The Tribunal Orders that no costs are warranted to the City in relation to this matter.

“D. Chipman”

D. CHIPMAN

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.