ISSUE DATE: January 12, 2023
CASE NO(S).: OLT 22-004350
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant William Grass
Subject: Request to amend the Official Plan – Refusal of request
Description: To permit a trailer sales and storage use on the subject property
Reference Number: D01-2020-009
Property Address: 689 Cottingham Road
Municipality/UT: Kawartha Lakes/Kawartha Lakes
OLT Case No: OLT-22-004350
OLT Lead Case No: OLT-22-004350
OLT Case Name: Grass v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant William Grass
Subject: Application to amend the Zoning By-law – Refusal of application
Reference Number: D06-2020-028
Property Address: 689 Cottingham Road
Municipality/UT: Kawartha Lakes/Kawartha Lakes
OLT Case No: OLT-22-004351
OLT Lead Case No: OLT-22-004350
Heard: December 9, 2022, via Video Hearing
APPEARANCES:
Parties Counsel
William Grass John Ewart
City of Kawartha Lakes Jennifer Biggar
Darlene and William Callan M. Kathleen Kinch and Jenna Khoury-Hanna
MEMORANDUM OF ORAL DECISION DELIVERED BY SHARYN VINCENT AND ORDER OF THE TRIBUNAL
1William Grass has appealed against the refusal by Council of the requests to amend the Official Plan and Zoning By-law in order to permit a portion of the lands known as 689 Cottingham Road near the Village of Omemee to be used for a trailer sales and storage operation, characterized by the proponent as an on-farm diversified use.
2The lands are designated Rural in the City of Kawartha Lakes Official Plan (“Official Plan”) and zoned A1, Agricultural in the Township of Emily Zoning By-law 1996-30 (“Zoning By-law”).
3The amendments are required as neither the Official Plan nor Zoning By-law list a trailer sales establishment as a permitted use.
4The Tribunal is in receipt of 11 requests for Participant status, the majority of which cite concerns with road and pedestrian safety premised upon the prospect of the subject lands attracting non-farm-related and greater volumes of traffic to the proposed use. Each of the 11 requestors, set out in Attachment 1 of this decision, was granted Participant status.
5A request for Party status was received from Darlene and William Callan, who have retained a solicitor and a land use planner in support of their concerns and request. Party status was granted.
6The Parties confirmed that either five or six witnesses would be called: four land use planners, including the author of the recommendation report put before Council, and potentially two transportation planners/engineers. The Issues List was finalized and filed with the Tribunal on or before December 22, 2022.
8Accordingly, a Video Hearing has been scheduled for 5 days and is scheduled to proceed at 10 a.m., Monday, May 1, 2023.
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:
https://global.gotomeeting.com/join/914098901
Access code: 914-098-901
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 wish only to listen to the event, can connect to the event by calling in to an audio-only telephone line: 1-888-299-1889 (Toll Free) or +1 (647) 497-9373. The access code is 914-098-901.
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.
13No further notice is required, and the member is not seized but may assist in Case Management should the need arise in the implementation of this Order.
ORDER
14Darlene and William Callan are granted Party status.
15Participant status is conferred to the interested individuals set out in Attachment 1 hereto.
16The appeal will be determined at a Hearing commencing May 1, 2023, as set out above in this decision.
“Sharyn Vincent”
SHARYN VINCENT
VICE-CHAIR
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
CASE NO(S).: OLT-22-004350
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c.P.13, as amended:
Applicant(s)/Appellant: William Grass
Subject: Request to amend the Official Plan – Refusal of request
Description: To permit a trailer sales and storage use on the subject property
Reference Number: D01-2020-009
Property Address/Description: 689 Cottingham Road
Municipality/UT: Kawartha Lakes/Kawartha Lakes
OLT Case No.: OLT-22-004350
OLT Lead Case No.: OLT-22-004350
OLT Case Name: Grass v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c.P.13, as amended:
Applicant(s)/Appellant: William Grass
Subject: Application to amend Zoning By-law – Refusal of Application
Reference Number: D06-2020-028
Property Address/Description: 689 Cottingham Road
Municipality/UT: Kawartha Lakes/Kawartha Lakes
OLT Case No.: OLT-22-004351
OLT Lead Case No.: OLT-22-004350
OLT Case Name: Grass v. Kawartha Lakes (City)
PROCEDURAL ORDER
- 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 May 1, 2023 at 10:00 am using GoToMeeting at:
https://global.gotomeeting.com/join/914098901 Access code: 914-098-901
If you are having difficulty connecting to a video event, please connect using the audio-line as shown below.
You can connect to the call by dialling 1-888-299-1889 (Toll Free) or
+1 (647) 497-9373. The access code is 914-098-901.
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 March 7, 2023 (date – at least 55 days prior to the start of the hearing) 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 April 7, 2023 (date) 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 April 14, 2023 (date – at least 15 days prior to the start of the hearing).
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 March 17, 2023 (date – at least 45 days prior to the start of the hearing), 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 March 17, 2023 (date – at least 45 days prior to the start of the hearing), 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 March 24, 2023 (date – at least 35 days prior to the start of the hearing) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before April 20, 2023 (date), 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received and 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 April 20, 2023 (date – at least 10 days prior to the start of the hearing).
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 April 20, 2023 (date – at least 7 days prior to the start of the hearing) 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.
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.
Meaning of terms used in the Procedural Order:
A 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. An unincorporated group cannot be a party and 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 authorisation 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 (CMC), must ask the Tribunal to permit this.
A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.
A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.
Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant 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 or participant intends to present as evidence at the hearing.
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 he or she will discuss; and a list of reports or materials that the witness will rely on at the hearing.
An expert witness statement should include his or her (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 supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.
A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.
Additional Information
A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.
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.
Attachment 1
Parties and Participants
Status
Name
Counsel
Appellant
William Grass
Ewart O'Dwyer John Ewart Tel: 705-874-0404 jewart@ewartodwyer.com
Party
City of Kawartha Lakes
Russell, Christie, LLP Jennifer E. Biggar Tel: 705-325-1326 ext. 224 jbiggar@russellchristie.com
Party
Darlene & William Callan
Kinch Eddie Litigation Professional Corporation M. Kathleen Kinch Tel: 705-653-4023 kat@kinchlitigation.com
Jenna Khoury-Hanna Tel: 705-653-4023 jenna@kinchlitigation.com
Participant
John Hope johnhope@remaxeastern.ca
Participant
Bruce Hoyle Bruce.hoyle@hotmail.com
Participant
Nancy Evans Nancyep25@gmail.com
Participant
Stefan McDonald Smcdonald3007@gmail.com
Participant
Donna McDonald ptbomuga@gmail.com
Participant
David Windrem Tel: 705-799-6674
Nancy Paish Tel: 705-799-6598 nbpaish@gmail.com
Participant
Bridget Kelley briezey9@gmail.com
Participant
Becky Fife Fertilityplus@hotmail.com
Participant
Trisha West Mymissymoo1999@hotmail.com
Participant
Douglas Howden Dhowden60@gmail.com
Participant
Nancy Paish Tel: 705-799-6598 nbpaish@gmail.com
ATTACHMENT 2
ISSUES LIST
- Should an official plan amendment and a zoning by-law amendment to allow the proposed use be granted based on the applicable planning tests? Parties are anticipated to address following factors:
- Is the proposed use an “on-farm diversified use”, based on section 2.3.3.1 of the Provincial Policy Statement, the existing designation/zoning of the subject property, and the local planning policies?
- If “on-farm diversified use” is involved in assessing this application:
i. What are the applicable criteria and guidelines to assess this application?
ii. Does this proposed use meet the policy requirements for an on-farm diversified use?
iii. Is the scale and intensity of the proposed use appropriate as an on-farm diversified use?
iv. Do the proposed Official Plan Amendment and Zoning By-law Amendment appropriately limit the scale and intensity of the use to ensure (1) consistency with the Provincial Policy Statement, (2) compatibility with the neighbouring land uses, and (3) compatibility with the character of the surrounding land area?
v. Does the application adequately address potential soil contamination or hazardous waste storage arising from the proposed repair service of vehicles?
1. Is the intersection of the site entrance with Cottingham Road adequate to ensure the orderly development of safe communities and to sustain the proposed use?
2. Is the existing road adequate to service the proposed development as well as the utilization of the road and adjacent area by agricultural property owners/farmers and users of the Trans-Canada Trail?
ATTACHMENT 3
ORDER OF EVIDENCE
William Grass
City of Kawartha Lakes
William and Darlene Callan
William Grass, in Reply