Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 15, 2023
CASE NO(S).: OLT-22-002806 (Formerly PL170547)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Helen Kszan
Subject: Minor Variance
Variance from By-law No.: 79-14
Property Address/Description: Concession 3, Lot 16 & 17 (4827 Vaughan Rd)
Municipality: Township of West Lincoln
Municipal File No.: A5/2017WL
OLT Case No.: OLT-22-002806 Legacy Case No.: PL170547
OLT Lead Case No.: OLT-22-002806
OLT Case Name: Kszan v. West Lincoln (Township)
Heard: February 10, 2023 by video hearing
APPEARANCES:
Parties Counsel
Helen Kszan ("Appellant/Applicant") Arkadi Bouchelev
Township of West Lincoln ("Township") Thomas A. Richardson
MEMORANUDM OF ORAL DECISION DELIVERED K.R. ANDREWS ON FEBRUARY 10, 2023, AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The present hearing was scheduled as a two-day merit hearing concerning a minor variance application appeal. The Appellant is seeking relief from the prescribed Minimum Distance Separation (“MDS”) setbacks from a neighbouring livestock facility/facilities, in order to build a residential dwelling on a vacant lot. In the alternative, the Applicant is seeking a declaration from the Tribunal that a minor variance is not required.
Conversion of the hearing to a Case Management Conference
2The hearing commenced as scheduled, but it was soon revealed that the Applicant had based her case on an out-of-date version of the Zoning By-law that she believed was in effect at the time when she initially made her minor variance application. This was eventually remedied upon delivery of the correct version of the Zoning By-law from the Township. However, the Applicant’s planning witness was put in the position of changing his prepared testimony ‘on the fly’ based on the updated ZBL.
3Subsequent to this, the Tribunal found that the issues between the parties were not clearly established or understood between them. This was remedied by ordering the parties to immediately draft a proposed Issues List and deliver it to the Tribunal. This was not completed until the commencement of the second day of the hearing, and it soon became clear that the hearing would not finish by the end of the final scheduled day of the hearing.
4Midway through the second day of the hearing, and after some evidence had been led by the Applicant, Counsel for the Applicant notified the Tribunal and the Township that they had discovered a perceived error in the amount of the reduction of MDS setback that they are seeking pursuant to the proposed minor variance. This discovery is problematic insofar as it fundamentally changes the relief being sought by the Applicant, and it prejudices the Township insofar as its counsel and witnesses had prepared based on a different degree of relief being sought.
5Given these numerous and material problems and misunderstandings which arose, the Tribunal finds that the hearing cannot continue without giving both parties additional time to restructure their cases. In order to make use of the time remaining on the present day of the hearing, the Tribunal converted the remainder of the hearing into a de facto Case Management Conference as a means to better organize the proceedings and allow the parties to be better prepared to reconvene at a later date. The below order reflects the procedural steps that the Tribunal consequently orders the parties to follow.
Requests for Status
6The Tribunal notes that no one attended the hearing seeking either party or participant status.
HEARING
7Upon request of the parties, the Tribunal rescheduled the two (2)-day merit hearing to commence on Wednesday, May 10, 2023 at 10 a.m. by VH. No further Notice is required for the hearing.
8The hearings are scheduled to proceed by video as follows:
Wednesday, May 10, 2023 at 10 a.m.
GoTo Meeting: https://global.gotomeeting.com/join/656004293
Access code: 656-004-293
Audio-only telephone line: +1 (647) 497-9391 or Toll Free 1-888-455-1389
Audio-only access code: 656-004-293
9Parties 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.
10Parties 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
11Persons 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.
12Individuals 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.
ORDER
13The Tribunal Orders that:
The date and particulars of the rescheduled hearing are set out above;
The Applicant shall provide a sketch to the Township, no later than Monday, February 27, 2023, illustrating a proposed ‘building envelope’ applicable to a future residential dwelling to be built on the Applicant’s lot;
The parties’ experts will meet on Friday, March 3, 2023, and attempt to resolve issues between them, especially as it relates to the correct application of MDS 1 formulae;
Revised witness statements of the parties’ experts shall be served and filed with the Tribunal as follows:
a. The Applicant’s expert witness statement is due to be served and filed by Friday, March 24, 2023; and
b. The Township’s expert witness statements are due to be served and filed by Friday, April 14, 2023.
- As part of the above referenced expert’s witness statements, the parties shall include sketches showing the subject property and neighboring livestock facilities, including:
a. Clear indication of the Applicant’s lot boundaries;
b. Clear indication of the Applicant’s proposed building envelope;
c. Clear indication of the footprints of the relevant livestock facilities, including, at minimum, the closest existing livestock facility/facilities and that of the barn that recently burned down;
d. Clear reference to the MDS 1 starting point(s) associated with the relevant livestock facilities (including the barn that recently burned down);
e. Measurement(s) between the starting point(s) associated with the relevant livestock facilities (including the barn that recently burned down) and:
i. the closest point of Applicant’s lot; and
ii. the closest point of the Applicant’s proposed building envelope.
f. Drawing 1 showing the MDS 1 radius projecting from the starting point(s) using the 2006 MDS Guidelines formulae;
g. Drawing 2 showing the MDS 1 radius projecting from the starting point(s) using the 2017 MDS Guidelines formulae;
14If the parties agree on the particulars of the above drawings, they may submit the above drawings jointly. If they do not agree, then each party may submit their own version; however, the Tribunal directs the parties to submit drawings that are substantially similar in terms of layout and format for ease or comparison.
15The Member is seized for the purpose of continuing the hearing.
“K.R. Andrews”
K.R. ANDREWS
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.