Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 06, 2022

CASE NO(S).: OLT 22-002395

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

Appellant: Cindy Irwin Appellant: David Francis Appellant: Patricia Nie Applicant: The Highmark Group Inc. Subject: Minor Variance Description: To permit a maximum area of 36.0 m² for a platform more than 1.2 metres in height above finished ground level; a maximum building height of 9.5 metres; and a maximum lot coverage of 36%. Reference Number: A40/21 Property Address: 951 Pickering Beach Road Municipality/UT: Ajax/Durham OLT Case No: OLT-22-002395 OLT Lead Case No: OLT-22-002395 OLT Case Name: Francis v. Ajax (Town)

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

Subject: Minor Variance Reference Number: A41/21 Property Address: 951 Pickering Beach Road Municipality/UT: Ajax/Durham OLT Case No: OLT-22-002396 OLT Lead Case No: OLT-22-002395

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

Subject: Minor Variance Reference Number: A42/21 Property Address: 951 Pickering Beach Road Municipality/UT: Ajax/Durham OLT Case No: OLT-22-002397 OLT Lead Case No: OLT-22-002395

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

Subject: Minor Variance Reference Number: A43/21 Property Address: 951 Pickering Beach Road (951 Pickering Beach Road) Municipality/UT: Ajax/Durham OLT Case No: OLT-22-002398 OLT Lead Case No: OLT-22-002395

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

Subject: Minor Variance Reference Number: A44/21 Property Address: 951 Pickering Beach Road 951 Pickering Beach Road Municipality/UT: Ajax/Durham OLT Case No: OLT-22-002399 OLT Lead Case No: OLT-22-002395

Heard: June 7, 2022 by video hearing

APPEARANCES:

Parties	Counsel*/Representative
David Francis	Self-Represented
Cindy Irwin	Self-Represented
Patricia Nie	Self-Represented
The Highmark Group Inc.	Matthew Helfand*

DECISION DELIVERED BY M. ARPINO AND S. TOUSAW AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision arises from a Motion requesting the Tribunal to dismiss the appeals to three minor variances granted for each of five lots by the Committee of Adjustment for the Town of Ajax.

BACKGROUND FACTS

2The Highmark Group Inc. (“Applicant”) is the owner of lands municipally known as 951 Pickering Beach Road in the Town of Ajax (“Property”). The Applicant seeks to construct five detached dwellings on the Property.

3On September 16, 2021, the Applicants applied to the Region of Durham Land Division Committee (“Region”) for consent to sever the Property to create a total of five residential lots (“Consents”). On November 1, 2021, the Consents were granted.

4As a condition to the Consents, the Applicant is required to submit detailed engineering drawings which illustrate the functional lot grading design and servicing in conformity with the Town of Ajax (“Town”) Engineering Design Criteria and Standards.

5The decision to grant the Consents was not appealed.

6In December 2021, the Applicant applied to the Town of Ajax Committee of Adjustment (“Committee”), seeking the following variances for each of the five lots (“Variances”):

i. a maximum area of 36.0 square metres (“m²”) for a platform more than 1.2 metres (“m”) in height above finished ground level, whereas the Zoning By-law permits a maximum area of 30.0 m²;

ii. a maximum building height of 9.5 m whereas the Zoning By-law permits a maximum building height of 9.14 m; and

iii. a maximum lot coverage of 36% whereas the Zoning By-law permits a maximum lot coverage of 25%.

7The Region of Durham Planning Staff and the Town Planning Staff both recommended the Variances be approved.

8On January 26, 2022, the Committee granted the Variances with conditions, including the following condition:

2. That the Owner/Applicant submit a Pickering Beach Site Plan Application to the Town and obtain approval of such application for each proposed parcel, or this decision shall become null and void.

9David Francis, Cindy Irwin, and Patricia Nie (“Appellants”) appealed the decision of the Committee (“Appeals”).

GROUNDS FOR APPEAL

10The Appellants are homeowners and residents in the vicinity of the Property. Their grounds for the Appeals are:

a) the increased lot coverage and building heights will exacerbate existing challenges regarding drainage and surface water runoff. They asserted that there are insufficient services to meet additional demand. Further the appellants submitted that the proposed retaining wall is poorly designed and uncommon in the neighbourhood; and

b) the increased building heights, lot overage and platform sizes are not compatible with the neighbourhood, will negatively impact the environment and privacy of neighbours and will increase shadows on adjacent land.

SUBMISSIONS

11The following materials are before the Tribunal on this Motion:

Applicant’s Motion Record,

Appellants’ Response to Motion,

Applicant’s Reply Record,

Applicant’s Affidavit of Service of Motion Record and Reply,

Matthew Helfand Written Argument and Brief of Authorities, and

Cindy Irwin’s presentation material.

12The Appellants each made submissions and variously referenced the grounds of the Appeals with emphasis on the grounds listed in [10] a.

13Mr. Francis is a Professional Engineer, with experience in both the public and private sectors, including matters of drainage. He made submissions regarding the existing drainage conditions and provided suggestions to ameliorate the situation. Mr. Francis’ suggestions were studied and considered. The Tribunal recommends that he share them with the Town.

14The Appellants also made submissions regarding the grounds of Appeal in [10] b with reference to statistics and photographs which they had compiled.

15The Appellants do not intend to retain land use planning or independent engineering professionals to provide evidence at the hearing of the merits of the Appeals.

16The Tribunal has the uncontested Affidavit evidence of Mark Golakovich P. Eng. who specializes in subdivision and site plan design, including lot grading and stormwater management. Mr. Golakovich opined that the assertion made by the Appellants that the Variances will exacerbate existing drainage and flooding challenges, are erroneous.

17In support of this Motion the Applicant submitted the Affidavit evidence of Mike Pettigrew, a land use planner who has previously been qualified to provide expert planning evidence to the Tribunal. Mr. Pettigrew submitted that site grading and drainage are Site Plan matters, and not appropriately addressed through a minor variance appeal.

18It was his sworn evidence that surface water management and the sufficiency of drainage, municipal services and the proposed retaining wall are not land use planning issues related to the Variances . He opines that these matters will be addressed through the lot grading and drainage condition of the Consents and further by the required Site Plan prior to issuance of building permits for the dwellings.

19It was Mr. Pettigrew’s uncontested evidence that the Variances satisfy all four tests of a minor variance as specified in s. 45(1) of the Planning Act (“Act”) and represent good planning.

20The Town did not make submissions regarding the Applicant’s Motion.

21The Applicant seeks dismissal of the Appeals without a full hearing on the merits pursuant to s. 45(17) of the Act and s. 19(1)(c) of The Ontario Land Tribunal Act (“OLTA”).

Legislative Context

22Section 45(17)(a) of the Act provides:

Dismissal without hearing

(17) Despite the Statutory Powers Procedure Act and subsection (16), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if,

(a) it is of the opinion that,

(i) the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal,

(ii) the appeal is not made in good faith or is frivolous or vexatious,

(iii) the appeal is made only for the purpose of delay, or

(iv) the appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process;

23Section 19(1)(c) of the OLTA provides that “… the Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing … if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success.”

24With reference to the Court and Tribunal Decisions provided by the Applicant, the Tribunal accepts as follows.

25The grounds for dismissing an appeal are disjunctive: only one of the several grounds set out in the Act and OLTA must be satisfied to warrant dismissing an appeal (Zellers Ltd. v. Royal Cobourg Centres Ltd. [2001] O.J. No. 3792 (Div. Ct), para. 8).

26The Appellant must respond to a Motion to Dismiss by establishing that there are “genuine, legitimate and authentic planning reasons” warranting a hearing on the merits (Toronto (City) v. East Beach Community Association [1996] OMBD No. 1890, 42 OMBR 505, para. 9).

27In response to the Applicant’s Motion to Dismiss, the Appellant must meet the threshold test regarding the evidence it proposes to bring to the hearing of the Appeal.

Simply put, the Appellant has a responsibility to demonstrate at the motion hearing that there are sufficient and legitimate planning grounds that underlie the appeal, and to show the prospect of evidence that could sustain their appeal at a hearing (Todaro v. Wasaga Beach (Town), 2019 CarswellOnt 4551 (LPAT), para. 31).

28Summarily, these provisions require the Appellant to establish a legitimate planning matter at issue, supported by a reasonable prospect of evidence to be called at a hearing.

ANALYSIS and FINDINGS

29The key issue in this Motion for dismissal is whether the Appeals are grounded in authentic land use planning issues of relevance to the Variances.

30The Appellants submitted that the Variances would exacerbate existing drainage and flooding challenges. The Applicant urged the Tribunal to accept Mr. Golakovich’s opinion that the assertion made by the Appellants, that the Variances will exacerbate existing drainage and flooding challenges, is erroneous and misplaced.

31The Applicant asserted that the concerns regarding drainage are not legitimate land use planning grounds of the Appeal because water runoff, drainage and flooding are adequately addressed as conditions of the Consents, and by related condition through the Variances.

32The Tribunal accepts the uncontested Affidavit evidence of Mr. Pettigrew that these lots have already been granted Consent, that any development on these lots, irrespective of the Variances, will result in necessary site grading and drainage, and that such details will be addressed through the mandated Site Plan, as normally required by the Town. While stormwater management is itself a planning issue, the Tribunal finds that, in this case, it is not a legitimate planning issue resulting from the sought Variances.

33On the evidence of both Mr. Golakovich and Mr. Pettigrew, the Tribunal finds that: runoff and drainage are unaffected by building height or balcony size; and importantly here, while an increased lot coverage may increase runoff, this development will reduce the potential for ponding in the southeast corner of the Property by diverting stormwater to the north and east.

34The Appellant Mr. Francis provided suggestions on how to further reduce potential ponding by directing all eavestrough outlets towards the street, and altering the proposed grading of Lot 5 which might reduce or eliminate the proposed retaining wall. Mr. Francis is encouraged to provide his recommendations to the Town for its consideration during Site Plan approval.

35Regarding the remaining grounds for the Appeals, the Tribunal accepts that the Appellants are genuinely concerned about the development of the Property and its fit within the surrounding neighbourhood. However, the Tribunal finds that the Appellants failed to provide any substantive rationale or prospective professional evidence to such matters as neighbourhood character, sun shading, or overlook related to these Variances for lot coverage, building height or platform size. The Tribunal finds that these issues constitute apprehensions that do not result in genuine land use planning issues

36The Applicant submitted that the Appeals are frivolous and vexatious and as such should be dismissed pursuant to s. 45(17)(a)(ii) of the Act.

37The Appellants variously attended the public meetings and made written submissions to the Committee. The Tribunal recognizes that the Appellants have expended considerable time and effort and finds that the Appeals are neither frivolous nor vexatious. While the Tribunal appreciates that neighbours should express their concerns to development proposals in the pursuit of good neighbourhood planning, those concerns must be relevant to the case at hand and supported by the prospect of professional evidence to warrant a full hearing on the merits.

38Given the above findings under the Act, the Tribunal need not assess the merits of the Motion for Dismissal pursuant to s. 19(1)(c) of the OLTA. However, in keeping with the above findings, the Tribunal finds that these Appeals have no reasonable prospect of success at a full hearing on the merits.

In arriving at this Decision, the Tribunal has considered the Appeals and the Parties’ submissions and has had regard for the decisions of the Town and Region and the information they considered related to this case.

ORDER

39THE TRIBUNAL ORDERS that the Motion is granted, the appeals by David Francis, Cindy Irwin, and Patricia Nie are dismissed, and the decision of the Town of Ajax Committee of Adjustment is confirmed in effect.

“M. Arpino”

M. ARPINO MEMBER

“S. Tousaw”

S. TOUSAW 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.