Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 30, 2022

CASE NO(S).: OLT-22-002393

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Sabena Islam

Applicant: Eamonn Flynn

Subject: Minor Variance

Description: To reduce the minimum setback from the floodplain to build a 92.9 square metres 2 storey single family dwelling on the vacant property

Reference Number: D13-009-2021

Property Address: 4336 Bath Road

Municipality/UT: Kingston/Frontenac

OLT Case No: OLT-22-002393

OLT Case Name: Islam v. Kingston (City)

Heard: June 10, 2022, by video hearing

APPEARANCES:

Parties	Counsel
Eamonn Flynn	Ursula Melinz, Crystal McConkey
Sabena Islam	Richard Taylor

DECISION DELIVERED BY ERIC S. CROWE AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened a Case Management Conference (the “CMC”) on an appeal filed by Sabena Islam (the “Appellant”) against the decision of the City of Kingston (the “City”), Committee of Adjustment’s (the “CoA”), in relation to a minor variance from Zoning By-law No. 76-26 (the “ZBL”) concerning 4336 Bath Road, Kingston (the “Subject Property”).

2Eamonn Flynn (the “Applicant”) is requesting a minor variance to reduce the minimum setback from the floodplain to build a 92.9 square metre (“m²”) two storey single family dwelling on the vacant property. The Staff Planning Report recommended approval with conditions and subsequently CoA approved the application on January 17, 2022.

3Prior to the CMC, a motion from the Appellant was previously approved by the Tribunal on May 25, 2022 on consent to change the June 10, 2022 one day Hearing into a CMC and to set aside a three (3) day hearing preferably in September 2022. Also, a direction to the Parties was to have a Draft Procedural Order (“PO”) prepared, complete with an Issues List.

4The Parties on consent proposed a three (3) day hearing in September 2022. It is anticipated that three experts from the Appellant and two experts for the Applicant will provide evidence. According to the Parties, this proposed timeframe would allow for full examination of the issues with respective oral closing submissions. Witness experts are to share their respective reports and time to narrow down any outstanding issues prior to the hearing.

5Mr. Taylor requested that the City be added as a Party to the proceedings as in his opinion it is customary in minor variance applications where the City is involved. The City did not request Party Status and informed the Tribunal it would not be participating in the upcoming Hearing. The Tribunal finds that since the City is not a Statutory Party to the proceedings due to the CoA making the decision, therefore, the Tribunal denied this request. The Tribunal advised it is not always customary for a City or Municipality to attend a minor variance hearing since they are not always a Statutory Party and in any event, the Tribunal finds it will be able to adjudicate effectively and completely on the issues without the City being added as a Party to the proceedings.

6Mr. Taylor also requested disclosure of the Septic System Plan from the Applicant which was referenced as part of the Building Plans by the CoA in their decision. Ms. Melinz advised that the Septic System Plan from this application has been approved in principle by the City since it had taken over responsibility since January 1, 2022. Ms. Melinz contends that the Building Plans as referenced in the CoA decision are in the Municipal record and that a specific disclosure request from the Appellant is without merit. The Tribunal finds the same, since the Experts at the Hearing will be able to ask questions of the Building Plans that were referenced in the Planning Staff Report and Municipal record.

THE FINALIZATION OF A PROCEDURAL ORDER AND ISSUES LIST

7Richard Taylor, Counsel for the Appellant, provided the Tribunal a brief background and the current status of the case. Ursula Melinz, Counsel for the Applicant, informed the Tribunal there were still outstanding revisions required for the Issues List. The Tribunal assisted in defining the Issues List.

8Subsequently, the Parties, on consent provided a draft Procedural Order (“PO”) to the Tribunal. The Parties requested an additional one week to finalize the PO including the Issues List with all dates to be included in the final Order.

9The Tribunal allowed the Parties to submit to the Tribunal the final draft of the PO including the Issues List by Friday, June 17, 2022. The Tribunal has since received the final draft of the PO and Issues List. The Final PO and Issues List as approved by the Tribunal is appended to this Order as Schedule 1.

Participant Request

10There was a request for Participant Status made by Richard Taylor on behalf of Joseph and Margarita O’Connor, Harold and Beverly Presley, Sohil Tahamtan and Rosita Safavi and Omar Islam. Mr. Taylor stated that all participants live on Bath Road close to the Subject Property.

11The Tribunal did not receive any formal Participant Status Request at the time of the CMC and did not grant Participant Status at this time. The Tribunal informed Mr. Taylor of the Participants statutory requirements to submit a Participant request with a written statement to the Tribunal 30 days from the start of the hearing as referenced in the PO.

Mediation

12The Tribunal inquired about the need for Tribunal-led mediation. In any event, since this is a minor variance, all Parties are committed to work together to define the scope and issues and to determine areas of consensus throughout the process.

Hearing

13The Tribunal directs a Draft Procedural Order and Issues List on consent to be submitted to the Case Coordinator on or before end of day Friday, June 17, 2022. Mr. Taylor as Appellant counsel will coordinate the Draft PO and Issues List.

14The Tribunal directs that a three (3) day Hearing will be held by video hearing commencing on Tuesday, September 13, 2022, at 10 a.m.

15Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

GoTo Meeting: https://global.gotomeeting.com/join/660145013

Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1(888) 299-1889

Access code: 660-145-013

16Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available at: https://app.gotomeeting.com/home.html

17Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line provided above.

18Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

19The Parties raised no further matters for the fair and expeditious resolution of this appeal.

ORDER

20The Tribunal orders that a three (3) day Hearing of the merits be held by video hearing commencing on Tuesday, September 13, 2022, at 10 a.m. with meeting coordinates as set out above.

21The Tribunal Member is not seized but may be spoken to for case management purposes subject to the availability of the Tribunal’s calendar.

22No further notice will be given

“Eric S. Crowe”

ERIC S. CROWE 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.

SCHEDULE 1