Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 10, 2022

CASE NO(S).: OLT-22-002010 (Formerly) PL030216

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

Applicant and Appellant: Tamera Limited

Subject: Application to amend Zoning By-law No. 83-49 Refusal or neglect of the Town of the Blue Mountains to make a decision

Existing Zoning: Development (D) and Hazard (H)

Proposed Zoning: Residential Third Density (R3), Residential Third Density Exception (R3-*), Public Open Space (OS1), Private Open Space Exception (OS2-**) and Hazard (H)

Purpose: To permit of a residential subdivision

Property Address/Description: Part of Lots 23 and 24, Concession 4

Municipality: Town of The Blue Mountains

OLT Case No.: OLT-22-002010

Legacy Lead Case No.: (Formerly) PL030216

OLT File No.: Z050136

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Tabera Limited

Subject: Request to amend the Official Plan - Failure of the Council to adopt the requested amendment

Existing Designation: Escarpment, Recreational Ski, Hazard Lands and Rural

Proposed Designated: Recreational Residential, Hazard Lands and Escarpment tpermit residential development O.M.B. File N

Purpose: To permit residential development

Property Address/Description: Lots 23 and 24, Concession 4,

Municipality: Town of The Blue Mountains

OLT Case No.: OLT-22-002010

Legacy Lead Case No.: (Formerly) PL030216

OLT File No.: 0030037

OLT Case Name: Tabera Limited v. The Blue Mountains (Town)

PROCEEDING COMMENCED UNDER subsection 51(39) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Tabera Limited

Subject: Failure of the Town of The Blue Mountains to make a decision respecting a proposed plan of subdivision

Property Address/ Description: Part of Lots 23 and 24, Concession 4

Municipality: Town of The Blue Mountains

OLT Case No.: OLT-22-002010

Legacy Lead Case No.: (Formerly) PL030216

OLT File No.: S050055

PROCEEDING COMMENCED UNDER subsection 51(39) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Tabera Limited

Subject: Failure of the Town of The Blue Mountains to make a decision respecting two proposed plan of condominiums

Property Address/ Description: Part of Lots 23 and 24, Concession 4

Municipality: Town of The Blue Mountains

OLT Case No.: OLT-22-002010

Legacy Lead Case No.: (Formerly) PL030216

OLT File No.: S050056 and S050057

Heard: January 24, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Tabera Limited	M. Cara
County of Grey	E. Treslan
Town of The Blue Mountains	M. Hodgson
Niagara Escarpment Commission	K. Hare

MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN COOKE ON JANUARY 24, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is a Case Management Conference (“CMC”) for the proposed development of Tabera Limited (“Applicant”) for the lands composed of Part of Lots 23 and 24, Concession 4 in the Town of The Blue Mountains.

2The Applicant is appealing the failure to make decisions on applications for Official Plan amendment, Zoning By-law Amendment, draft plan of subdivision, and draft plan of condominium.

STATUS UPDATE

3Mr. Cara, counsel for the Applicant, informed the Tribunal that the Parties are requesting an additional CMC date with the possibility of converting the CMC into a Settlement Hearing at the later part of April 2022 and requested that 10-days of the Tribunals calendar be set aside for a Hearing of the Merits.

4Mr. Cara stated that the Parties have been having productive discussions in mediation that is still occurring. At the request of the Town the Applicant had conducted a community consultation meeting in October 2021.

5A review of the draft Procedural Order (“PO”) was conducted by the Parties. Mr. Cara took the Tribunal through the agreed upon key dates. With the correct dates include, the PO that has been included with this decision as Attachment 1 has been approved.

FURTURE HEARING DATES

6The Tribunal has scheduled the next CMC to proceed by video on Friday, April 29, 2022 at 10 a.m. The Parties are expected to have an update for the Tribunal regarding the mediation process and in the event of a settlement can be converted to a Settlement Hearing should discussion continue to be successful.

7Should there be a requirement to conduct a Hearing of the Merits the Tribunal has scheduled nine (9)-days to proceed by video starting on Monday, December 5, 2022 at 10 a.m.

Friday, April 29, 2022 at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/914098901 Access code: 914-098-901 Audio-only telephone line: +1 (647) 497-9373 or Toll Free 1-888-299-1889 Audio-only access code: 914-098-901

Monday, December 5, 2022 at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/692665589 Access code: 692-665-589 Audio-only line: +1 (647) 497-9373 or Toll Free 1-888-299-1889 Audio-only access code: 692-665-589

8Parties and participants 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.

9Parties 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: https://app.gotomeeting.com/home.html

10Persons 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.

11Individuals 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.

12There will be no further notice provided.

13This Member is not seized of this matter.

14This is the Order of the Tribunal.

“Steven Cooke”

STEVEN COOKE 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.

ATTACHMENT 1

Ontario Land Tribunal

Procedural Order

ISSUE DATE: February 10, 2022 CASE NO.: PL030216

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

Applicant and Appellant: Tabera Limited Subject: Application to amend Zoning By-law No. 83-49 Existing Zoning: Development (D) and Hazard (H) Proposed Zoning: Residential Third Density (R3), Residential Third Density Exceptioon (Re-*), Public Open Space (OS1), Private Open Space Exception (OS2-**) and Hazard (H) Purpose: To permit a residential subdivision Property Address/Description: Part of Lots 23 and 24, Concession 4 Municipality: Town of Blue Mountains OLT Case No.: PL030216 OLT File No.: Z050136

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Tabera Limited Subject: Application to amend Official Plan Existing Designation: Escarpment, Recreational Ski, Hazard Lands and Rural Recreational Residential, Hazard Lands and Escarpment Proposed Designation: Recreational Residential, Hazard Lands and Escarpment Purpose: To permit residential development Property Address/Description: Part of Lots 23 and 24, Concession 4 Municipality: Town of Blue Mountains OLT Case No.: PL030216 OLT File No.: 0030037

PROCEEDING COMMENCED UNDER subsection 51(39) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Tabera Limited Subject: Application for Draft Plan of Subdivision Property Address/Description: Part of Lots 23 and 24, Concession 4 Municipality: Town of Blue Mountains OLT Case No.: PL030216 OLT File No.: S050055

PROCEEDING COMMENCED UNDER subsection 51(39) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Tabera Limited Subject: Draft Plan of Condominium Applications Property Address/Description: Part of Lots 23 and 24, Concession 4 Municipality: Town of Blue Mountains OLT Case No.: PL030216 OLT File No.: S050056 and S050057

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 hearing will begin on Monday December 5, 2022 at 10:00 a.m. by video conference.

3. The length of the hearing will be 9 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. The procedural order deadlines are generally found in Attachment 1.

4. A final case management conference shall take place by video conference on Friday April 29, 2022 at 10:00 a.m. for a status update for the hearing.

5. The Parties and Participants identified at the Case Management Conference are listed in Attachment 2 to this Order.

6. The Issues are set out in the Issues List attached as Attachment 3 to this Order. Except for the elimination or modification of issues on consent of the Parties, through mediation or pursuant to a settlement between any of the parties, 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.

7. The order of evidence is set out in Attachment 4 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 consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

8. Any person intending to participate in the hearing shall provide a mailing address, email address and a telephone number to the Tribunal. Any such person who retains a representative must advise the other Parties and the Tribunal of the representative’s name, address, email address and the phone number.

9. If the hearing is to proceed electronically, 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. (https://olt.gov.on.ca/tribunals/lpat/).

Requirements Before the Hearing

10. 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 Friday July 8, 2022. For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed to be qualified and is to provide a copy of their curriculum vitae.

11. Expert witnesses in the same discipline(s) shall have at least one meeting on or before Tuesday September 6, 2022 to try to resolve or reduce the issues for the hearing. Following the experts’ meeting(s) the experts shall prepare a list of any agreed facts and the remaining issues to be addressed at the hearing, and provide this list to the Parties and the Tribunal on or before Wednesday September 21, 2022

12. 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, the acknowledgement of expert's duty and curriculum vitae. Copies of this must be provided as in paragraph 15 of this Procedural Order. 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.

13. 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 15 of this procedural order.

14. On or before Monday November 7, 2022, a Participant shall provide copies of their written participant statement to the other Parties and to the Tribunal in accordance with paragraph 21 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 Monday November 7, 2022, the Parties shall provide copies of their witness and expert witness statements to the other Parties and to the OLT case coordinator and in accordance with paragraph 21 below.

16. On or before Monday November 21, 2022, the Parties shall provide copies of their written response(s) to any written evidence to the other Parties and to the Tribunal in accordance with paragraph 21 below.

17. On or before Friday November 25, 2022, the Parties shall file with the Tribunal a detailed Work Plan that identifies the following, at a minimum: the Parties participating in the hearing, preliminary matters to be addressed (if any), the date a witness is intended to attend the Tribunal, the identified witness name/expertise, and the approximate time allotted for examination in chief, cross-examination and any re-examination (if any) (the “Work Plan”). The Work Plan should be adhered to guide the Hearing Event to the best ability of all the Parties, and any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal. The Tribunal may, at its discretion, change or alter the Work Plan throughout the Hearing Event. In the event of a disagreement between the Parties about the Work Plan, the Tribunal may be spoken to.

18. The Parties shall cooperate in preparing a Joint Document Book which will be filed with the Tribunal in electronic format on or before Friday November 25, 2022 All Parties must be served with the Joint Document Book in electronic format in accordance with paragraph 21 below.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal in accordance with Rule 10 of the Tribunal’s Rules.

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 seven (7) days prior to the hearing date that the written evidence is not part of their record.

21. All filing shall be electronic and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7 of the Tribunal’s Rules.

22. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. Rule 17 of the Tribunal’s Rules shall apply to such requests.

23. The Tribunal may conduct mediation on consent of all Parties, on consent of those Parties who wish to participate in mediation, or if the Tribunal sees fit.

24. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 5.

This Member is [not] seized.

So orders the Tribunal.

BEFORE:

Name of Member ) Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
Friday July 8, 2022 (150 days prior to hearing)	Exchange of Witness Lists
Tuesday September 6, 2022 (90 days prior to hearing)	Experts meeting(s) prior to this date
Wednesday September 21, 2022 (75 days prior to hearing)	Filing of Agreed Statement of Facts
Monday November 7, 2022 (28 days prior to hearing)	Exchange of Witness Statements and Experts Reports, Participant Statements (if any), and summoned witness outlines (if any)
Monday November 21, 2022 (14 days prior to hearing)	Exchange of Reply Witness Statements (if any)
Friday November 25, 2022 (10 days prior to hearing)	Filing of Hearing Work Plan and Joint Document Book
Monday December 5, 2022 – Thursday December 15, 2022	OLT Hearing

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

A. PARTIES

*Counsel/Agent

1. Tabera Limited (Applicant/Appellant) Daniel Artenosi / Michael Cara Overland LLP Yonge Norton Centre 5255 Yonge Street, Suite 1101 Toronto, ON M2N 6P4 Email: dartenosi@overlandllp.ca / mcara@overlandllp.ca Tel: 416.730.0320 / 416.730.8844

2. Town of Blue Mountains Matthew Hodgson Barriston Law One First Street, Suite 224 Collingwood, ON L9Y 1A1 Email: mhodgson@barrisonlaw.com Tel: 705.792.9200 x625

3. County of Grey Errol Treslan The Alliance Lawyers 142 10th Street West, P.O. Box 730 Owen Sound, ON N4K 5W9 Email: etreslan@owensoundlawyers.com Tel: 519.376.7450

4. Niagara Escarpment Commission Ken Hare, Counsel Ministry of the Attorney General Legal Services Branch – Northern Development, Mines, Natural Resources and Forestry 99 Wellesley Street West, Room 3420, Whitney Block Toronto, ON M7A 1W3 Email: ken.hare2@ontario.ca Tel: 647.205.6468

B. PARTICIPANTS

1. Jason Santomero 223 Hidden Lake Road Town of Blue Mountains, L9Y 0T6 jason.santomero@rogers.com

2. Genevieve Graveline 224 Hidden Lake Road Town of Blue Mountains, L9Y 0T6 ikonstan@rogers.com

3. Deborah Menecola 219 Hidden Lake Road Town of Blue Mountains, L9Y 0T6 deborah@menecola.net

4. Sue Alexander Ash 165 Alta Road Town of Blue Mountains, L9Y 0T2 suealexabderash@gmail.com

ATTACHMENT 3

ISSUES LIST

Note: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any Party that the issue is either relevant or appropriate. The identification of an issue on this list by a Party indicates that Party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other Parties the case they need to meet and shall not be construed as the Tribunal have jurisdiction over such matters in each circumstance. Accordingly, no Party shall advance an issue not identified on the Issues List without leave of the Tribunal.

A. Town of Blue Mountains and County of Grey

I. General Matters

1. What planning policies is the proposed development being tested against? Will it be the policies in effect in 2005, or will it be the current planning documents?

2. What application(s) is currently before the Tribunal? Is it: (a) a Zoning By-law Amendment (“ZBA”), Plan of Subdivision and two plans of condominium from 2005; or (b) a single Plan of Subdivision and ZBA?

3. Have neighbours, agencies, and indigenous peoples been adequately informed of the proposed development and been given the opportunity to engage on the proposal?

4. Has the Niagara Escarpment Commission been satisfied that the proposed development conforms to the Niagara Escarpment Plan and the former OMB settlement?

5. Have the Grey Sauble Conservation Authority comments, dated December 17, 2021 been adequately addressed?

II. Proposed ZBA and Proposed Draft Plan of Subdivision (“DPS”)

6. Does the proposed development have appropriate regard for sections 34 and 51(24) of the Planning Act?

7. Is the proposed development consistent with the Provincial Policy Statement, 2020, including without limitation policies 1.4, 1.5, 1.6, 2.1, 2.6, and 3.1?

8. Does the proposed development conform to the County of Grey Official Plan (“County OP”), including without limitation sections; 3.8, 7, 8.2(j), 8.9.1, 8.9.2, and 9.13?

9. Does the proposed development conform to the Town of The Blue Mountains Official Plan (“Town OP”), including without limitation sections and Schedules; B3.7, B3.14, B5.4, B5.5, C5, C6, C9, D1, D2, D3, D4, D5, D6, D8, Schedule “A-4”, Schedule “B-1”, and Constraint Mapping Appendix 1 related to Karst, ANSI and Significant Woodlands?

10. Does the proposed ZBA conform to the general intent of the Town’s Zoning By-law and Part 4.0 General Provisions and Part 5.0 Parking and Loading Standards?

11. Is it appropriate and in the public interest to rezone lands currently zoned “Development (D)” to permit residential uses under the “Residential Exception (R1-1) Zone” and will the lots proposed to be R1-1 conform to the minimum lot area and lot frontage provisions of the Town Zoning By-law?

12. Are the proposed zone boundaries of the R1-1 Zone, the H zone and the OS-1 Zone appropriate?

13. Should the proposed OS-1 Zone be changed to be the OS zone as there is no OS-1 Zone classification in the Town’s Zoning By-law?

14. Is it appropriate and in the public interest to reduce the required minimum lot frontage and maximum height provision as provided in the R1-1-a Zone and the maximum height provision of the R1-1-b Zone?

15. Should a Holding Six “-h6” symbol be implemented for those portions to be zoned “Residential Exception (R1-1-X) Zone” as per Part 10.0 Holding Provisions of the Town Zoning By-law?

16. Does the proposed ZBA constitute good land use planning?

17. Is the proposed DPS consistent with the Town’s Community Design Guidelines?

18. Does the proposed DPS provide adequate points of emergency access?

19. Does the proposed DPS provide adequate functional servicing with respect to wastewater management and the capacity of the Craigleith Sewage Pumping Station and local sanitary sewers to accommodate the proposed development?

20. Does the proposed DPS provide adequate functional servicing with respect to water capacity, specifically, drinking water and fire suppression?

21. Does the proposed stormwater management facility satisfy the applicable stormwater quantity, quality and erosion control criteria?

22. Does the proposed DPS provide appropriate grading and drainage?

23. Does the proposed watercourse outflow present any adverse impact on downstream properties?

24. Do the proposed sediment and erosion controls prevent and control sediment from migrating into downstream sales, ditches and watercourses?

25. Is the proposed swale at rear yards from proposed lots 56-59 located within the DPS?

26. Will the proposed DPS adversely impact groundwater recharge within the area of development?

27. Do the subject lands provide a sufficiently stable slope to permit development as proposed in the DPS?

28. Do seeps within the Nippising Ridge feature adversely impact slope stability?

29. Does the proposed stormwater management block fall within the Grey Sauble Conservation Authority slope hazard?

30. Does the proposed DPS account for a 6-metre erosion access allowance from the Nippising Ridge stable slope?

31. What are the appropriate draft plan conditions to impose upon any approval of the proposed DPS, including any conditions and clearances required?

32. Does the proposed DPS represent good land use planning and is it in the public interest?

ATTACHMENT 4

ORDER OF EVIDENCE

NOTE: Where Parties of like interest have issues in common, they shall make reasonable efforts to coordinate their examinations-in-chief and cross-examinations so as to minimize any duplication or overlap of evidence. The Order of Evidence will be described in greater detail in the Work Plan that is filed with the Tribunal.

Tabera Limited (Applicant/Appellant) Parties in Support of Tabera Limited Parties in Opposition of Tabera Limited Reply by Tabera Limited (if necessary)

ATTACHMENT 5

Purpose of the Procedural Order and Meaning of Terms

Party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. If an unincorporated group wishes to become a party, it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer, and may have an agent speak for them. The agent must have written authorization from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the Case Management Conference, must ask the Tribunal to permit this.

Participant is an individual, group or corporation, whether represented by a lawyer or not, who may attend only part of the proceeding but who makes a written statement to the Tribunal on all or some of the issues in the hearing in accordance with Rule 7.7 of the Tribunal’s Rules of Practice and Procedure.

NOTE that such persons will likely not receive notice of a mediation or conference calls on procedural issues. They also cannot ask for costs, or review of a decision as parties can.

Written and Visual Evidence: Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party intends to present as evidence at the hearing.

Witness Statements: A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which the witness will discuss and the witness’ opinions on those issues; and a list of reports that the witness will rely on at the hearing.

An expert witness statement should include the expert’s (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons for the opinions and (5) a list of reports that the witness will rely on at the hearing.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a list of the issues which the participant will address and a short outline of the evidence on those issues; and a list of reports, relied upon, if any, which the participant will provide to the Tribunal for consideration of the written statement at the hearing.

Additional Information:

Summons: A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the parties (see Rule 13 on the summons procedure). If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

The order of examination of witnesses: is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.