Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
February 21, 2023
CASE NO(S).:
OLT-22-004300
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant/Applicant
1571145 Ontario Limited
Appellant
Jim Graham
Subject:
Proposed Official Plan Amendment
Description:
To permit the development of two 5-storey apartment buildings with a total of 152 units.
Reference Number:
39-MC-OPA46
Property Address:
22447 Komoka Road
Municipality/UT:
Middlesex Centre/Middlesex
OLT Case No:
OLT-22-004300
OLT Lead Case No:
OLT-22-004300
OLT Case Name:
1571145 Ontario limited v. Middlesex (County)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant/Applicant
1571145 Ontario Limited
Appellant
Jim Graham
Subject:
Zoning By-law
Description:
To permit the development of two 5-storey apartment buildings with a total of 152 units.
Reference Number:
ZBA-20-2019
Property Address:
22447 Komoka Road
Municipality/UT:
Middlesex Centre/Middlesex
OLT Case No:
OLT-22-004276
OLT Lead Case No:
OLT-22-004300
Heard:
January 12, 2023 by video hearing
APPEARANCES:
Parties
Counsel
1571145 Ontario Limited
Analee Baroudi
Jim Graham
Kim Mullin Kevin Pirak
Municipality of Middlesex Centre and County of Middlesex
Wayne Meagher
MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE ON JANUARY 12, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal convened a Case Management Conference (“CMC”) on appeals filed by 1571145 Ontario Limited and Jim Graham against the County of Middlesex (“County) Council’s decision to approve the Official Plan Amendment (“OPA”) No. 46 and the Municipality of Middlesex Centre (“Municipality”) Council’s decision to approve Zoning By-law Amendment (“ZBLA”) No. 2022-038 applications concerning 22447 Komoka Road (“Subject Lands”).
2The County is the approval authority for the OPA and was approved by the County on July 19, 2022.
3The Municipality is the approval authority for the ZBLA. The ZBLA was approved by the Municipality on April 20, 2022.
4The purpose of the OPA application is to amend the land use designation from ‘Parks and Recreation’ to ‘Medium Density Residential’. The purpose of the ZBLA application is to rezone the Subject Lands from the ‘Restricted Agricultural (A2)’ zone to the ‘Urban Residential Third Density (UR3)’ zone.
5These two applications would be to facilitate the development of two 5-storey apartment buildings with a total height of 17 metres (“m”) containing 152 units. Approximately 166 surface parking spaces are proposed and five (5) parking spaces for visitors.
6The Subject Lands are designated ‘Parks and Recreation’ in the Municipalities Official Plan (“OP”) and zoned ‘Restricted Agricultural (A2)’ in the Municipalities Comprehensive Zoning By-law (“ZBL”). A portion of the Subject Lands are regulated by the Upper Thames River Conservation Authority.
71571145 Ontario Limited appeals both the OPA and ZBLA which involves a privately owned pond on the Subject Lands which is not identified in the OP as a storm water management facility and was excluded from the proposed medium density designation and proposed Urban Residential Third Density (UR3). 1571145 Ontario Limited contends OPA 46 should apply to the entire 5.6-hectare Property.
8Jim Graham appeals both the OPA 46 and ZBLA on the basis that the enacted OPA and ZBLA are inconsistent with the Provincial Policy Statement (“PPS”) and do not conform with the County Official Plan (“COP”) and Municipality OP and do not represent good planning.
9The Notice of Affidavit was marked as Exhibit 1.
PARTICIPANT and PARTY STATUS REQUEST
10During the start of the hearing, there were no requests for either Party or Participant Status Request.
HEARING
11Analee Baroudi, Counsel for 1571145 Ontario Limited provided the background information concerning the applications including the Draft Procedural Order (“DPO”), and the Issues List which the Tribunal had received prior to the CMC.
12The Tribunal heard submissions from the Parties on whether to consolidate or have the proceedings heard together. Ms. Baroudi requested that the appeals be heard together based on the fact there were separate issues and two separate appeals from Mr. Graham and her client’s appeals.
13Counsel for the Municipality Wayne Meagher interprets as having two separate appeals with different issues and agreed that the appeals should be heard together and not consolidated in this case would be appropriate.
14Ms. Mullin Counsel for Mr. Graham submits that Mr. Graham is a statutory party to both appeals (“OPA and ZBLA”) as he provided both oral and written submissions to the Council of the Municipality. Ms. Mullins contends they are not separate appeals and can be consolidated. Ms. Mullins indicated the DPO already has separate Issues List for both Parties, however, overlap in some areas (density, height, drainage) and therefore these proceedings should be consolidated.
15The Tribunal finds that at this stage of the proceedings it is not necessary to consolidate the proceedings and not combine them but allow the proceedings to be heard together as per Rule 16.1 of the Ontario Land Tribunal Rules of Practice and Procedure. Both Parties have appealed the same decision of the County adoption of the OPA and Municipalities adopted ZBLA.
16The intent of the Parties is to request a (6) six-day hearing in the September 2023 time frame. This proposed timeframe will allow for further discussions amongst the Parties and planning experts and reports to be shared and to meet as described in the DPO.
MEDIATION
17The Tribunal advised the Parties of the opportunity for Tribunal-led mediation.
HEARING DATES
18The Tribunal conferred with the Ontario Land Tribunal scheduling coordinator, which had a conflict for (6) six-days therefore, the Tribunal directs that a five-day hearing will be held by Video Hearing, commencing on Monday, September 18, 2023, at 10 a.m.
19Parties and Participants are asked to log in to the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections:
https://meet.goto.com/558205565
Access code: 558-205-565
20Parties 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
21Persons 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: +1 (647) 497-9373 or Toll-free: 1 888-299-1889. The access code is: 558-205-565.
22Individuals 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 Video Hearing 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.
23No further notice will be given.
THE FINALIZATION OF A PROCEDURAL ORDER AND ISSUES LIST
24The Parties requested an additional two weeks to finalize the DPO including the Issues List with all dates to be included in the Draft Order.
25The Tribunal directs a DPO and Issues List on consent to be submitted to the Case Coordinator on or before Thursday, January 26, 2023.
26The Tribunal has since received the final draft of the PO including the Issues List. The Final PO as approved by the Tribunal is appended to this Order as Schedule 1.
27The Tribunal Member is not seized but may be spoken to for Case Management purposes, subject to the availability of the Tribunal’s calendar.
28The directions in this Decision are so Ordered.
“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
CASE NO(S).: OLT-22-004300
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: 1571145 Ontario Limited
Appellant: Jim Graham
Subject: Proposed Official Plan Amendment
Description: To permit the development of two 5-storey apartment buildings with a total of 152 units
Reference No.: 39-MC-OPA46
Property Address: 22447 Komoka Road
Municipality/UT: Middlesex Centre/Middlesex
OLT Case No.: OLT-22-004300
OLT Lead Case No. : OLT-22-004300
OLT Case Name: 1571145 Ontario Limited v. Middlesex (County)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c.P. 13, as amended
Applicant/Appellant: 1571145 Ontario Limited
Appellant: Jim Graham
Subject: Proposed Zoning By-law Amendment
Description: To permit the development of two 5-storey apartment buildings with a total of 152 units
Reference No.: ZBA-20-2019
Property Address: 22447 Komoka Road
Municipality/UT: Middlesex Centre/Middlesex
OLT Case No.: OLT-22-004276
OLT Lead Case No. : OLT-22-004300
OLT Case Name: 1571145 Ontario Limited v. Middlesex Centre
- 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
The video hearing will begin on September 18, 2023 at 10:00 a.m.
The parties’ initial estimation for the length of the hearing is 5 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 parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).
The issues are set out in the Issues List attached as Attachment 2. 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.
The order of evidence shall be as set out in Attachment 3 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 the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.
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.
Requirements Before the Hearing
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 June 20, 2023 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.
Expert witnesses in the same field shall have a meeting on or before July 5, 2023 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before July 15, 2023.
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. Copies of this must be provided as in paragraph 13 below. 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.
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 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.
On or before July 20, 2023, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.
On or before July 20, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before August 14, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before September 8, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
On or before August 19, 2023 the parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence d in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before September 8, 2023.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
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 7 days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before September 11, 2023 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.
All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.
A Summary of Filing Dates is set out in Attachment 4.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.
This Member is not seized.
So orders the Tribunal.
ATTACHMENT 1 – PARTIES
Party
Representative/Contact Information
1571145 Ontario Limited
Baroudi Law Professional Corporation 902 Thistleridge Crescent London, ON N6K 0B8 Analee Baroudi T: 519-200-3776 E: analee@baroudilaw.ca
Jim Graham
Wood Bull LLP 65 Queen Street West, Suite 1400 Toronto, ON M5H 2M5 Kim Mullin/Kevin Pirak T: 416-203-5655/416-203-5634 E: kmullin@woodbull.ca/kpirak@woodbull.ca
Municipality of Middlesex Centre
Middlesex County Barrister & Solicitor’s Office 399 Ridout Street North London, ON N6A 2P1 Wayne Meagher T: 519-434-7321 x 2283 E: wmeagher@middlesex.ca
County of Middlesex
Middlesex County Barrister & Solicitor’s Office 399 Ridout Street North London, ON N6A 2P1 Wayne Meagher T: 519-434-7321 x 2283 E: wmeagher@middlesex.ca
ATTACHMENT 2 – ISSUES LIST
Issues List for OPA/ZBA Appeals Filed by Jim Graham
Do the proposed official plan amendment and zoning by-law amendment have appropriate regard for all of the matters of provincial interest set out in section 2 of the Planning Act and, in particular, subsections 2(a), 2(h) and 2(o)?
Are the proposed official plan amendment and proposed zoning by-law amendment consistent with the Provincial Policy Statement, 2020, particularly policy 1.6.6.7 and 2.2.1?
Do the proposed official plan and amendment and zoning by-law amendment conform with the County of Middlesex Official Plan, particularly policy 2.3.7.3?
Does the proposed zoning by-law amendment conform with the Municipality of Middlesex Centre Official Plan, particularly policies 5.1.1, 5.1.4 and 5.7.11?
Does the proposed official plan amendment conform with the desired urban structure established by the Komoka-Kilworth Secondary Plan?
Is the proposed development compatible with neighboring properties?
Will the proposed development result in adverse drainage impacts on neighbouring properties?
Does the proposed development conform with the Middlesex Centre Settlement Area Stormwater Master Plan and Stormwater Management Policy Manual?
Does the proposed development represent good planning?
Issues List for OPA/ZBA Appeals Filed by 1571145 Ontario Limited
Land Area Subject to the OPA and ZBA
Is Council’s decision to exclude the pond area on the Subject Lands from the proposed medium density designation and from the proposed Urban Residential Third Density (UR3) zone consistent with sections 1.1.1, 1.1.2, 1.1.3.2, 1.1.3.6, 1.4.1, and 1.4.3 of the Provincial Policy Statement 2020?
Does Council’s decision to exclude the pond area on the Subject Lands from the proposed medium density designation and from the proposed Urban Residential Third Density (UR3) zone conform to the Middlesex Centre Official Plan?
Does Council’s decision to exclude the pond area on the Subject Lands from the proposed medium density designation and from the proposed Urban Residential Third Density (UR3) zone represent sound land use planning?
If the answer to questions 1, 2 and 3 are “yes”, should the exact area of land subject to the OPA and ZBA be specified in these instruments?
If the answer to question 4 is “yes”, what area of land should be subject to and specified the OPA and ZBA?
Special Provisions in the ZBA
Do the following special provisions in the ZBA represent sound land use planning?
Section 2(b), which establishes a minimum rear yard setback of 15m
Section 2(c), which establishes a maximum height of four storeys to a maximum of 15 metres
Section 2(d), which establishes a maximum density of 50 units per hectare
ATTACHMENT 3 – ORDER OF EVIDENCE
1571145 Ontario Limited (Applicant/Appellant)
Jim Graham
Municipality of Middlesex Centre and County of Middlesex (Experts Panel)
ATTACHMENT 4 – SUMMARY OF FILING DATES
Date
Event
June 20, 2023
Exchange of witness lists (names, disciplines and order to be called)
July 5, 2023
Expert meetings prior on or before this date
July 15, 2023
Agreed statement of expert witnesses (if any)
July 20, 2023
Exchange of witness statements and participant statements, summonsed witness outlines and participant statements
August 14, 2023
Parties to advise if all hearing days required
August 19, 2023
Exchange of reply witness statements
September 8, 2023
Exchange of visual evidence
September 8, 2023
Finalize joint document book
September 11, 2023
Hearing plan filed with Tribunal
September 18, 2023
Hearing commences