Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 09, 2023

CASE NO(S).: OLT-22-004455

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant: ESC Land Development Corporation

Appellant: Mark Brown

Subject: Zoning By-law

Description: To develop four 5-storey apartment buildings and 28 multiple attached townhouses.

Reference Number: A-8-22-Z.OP

Property Address: 204 South Market Street

Municipality: City of Sault Ste. Marie

OLT Case No.: OLT-22-004455

OLT Lead Case No.: OLT-22-004455

OLT Case Name: Brown v. Sault Ste. Marie (City)

Heard: February 22, 2023 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Mark Brown	Self-Represented
City of Sault Ste. Marie	Jeffery King*

MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE AND KURTIS SMITH ON FEBRUARY 22, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened a Hearing on an appeal filed by Mark Brown (“Appellant”) against the City of Sault Ste. Marie (“City”) Council’s approval to a Zoning By-law Amendment (“ZBLA”) application concerning 1204 South Market Street (“Subject Lands”).

2The Applicant proposes to rezone the Subject Lands to facilitate the construction of four 5-storey apartment buildings totaling approximately 348 dwelling units within the western portion of the property, 28 multiple attached (townhouse) dwelling units within the eastern portion of the property and a 3,600 square metres (“m2”) personal storage facility upon the northern portion of the property.

BRIEF CHRONOLOGY OF THE APPLICATION

3The Applicant sought Official Plan Amendments (“OPA”) and ZBLA to;

1. Amend the Official Plan (“OP”) by way of the following notwithstanding clauses:

• Notwithstanding the Residential Policies of the Official Plan, to permit a personal storage (self-storage) facility, in addition to the uses permitted within the Residential Land Use Designation.

• Notwithstanding Housing Policy HO.6, to waive the requirement that in all urban residential developments greater than 50 units, at least 30% of those units shall be affordable.

2. Rezone the subject property from Low Density Residential Zone (R3) and Medium Density Residential Zone (R4) to Medium Density Residential (R4), subject to the following special exceptions:

3. To permit a personal storage (self-storage) facility in addition to the uses permitted in the R4 Zone.

4. To permit a 1.8m fence, in association with the proposed accessory use daycare facility, to be located within a front yard.

4The proposed amending By-law to the OP to remove the 30% affordability requirement in the OP for this development was presented to Council on August 29, 2022 and was supported unanimously by Council as a whole.’

5The Appellant filed his appeal to the ZBLA on September 22, 2022. No appeal was filed for the OPA.

THE MOTION HEARING

6In the lead up to the hearing, the City (Moving Party) had filed a Motion requesting the following relief to dismiss the outstanding issues being appealed by the Appellant, namely;

a. the issue of the City of Sault Ste. Marie’s Official Plan Amendment removing the requirement for the project to have 30% of all units to be geared-to-income units; and such further and other relief as counsel may advise the Tribunal may permit.

7Mark Brown, the Appellant requested relief from the Tribunal under s. 9(4) of the Ontario Land Tribunal Act, (“OLTA”) for his appeal to move forward under 17(24) of the Planning Act (“Act”) as it relates to the City Council’s passing of By-law No. 2022-154 on August 29, 2022.

8The Tribunal received and marked the following documents as Exhibits to the Motion:

Exhibit 1: Affidavit of Peter Tonazzo

Exhibit 2: Notice of Appeal

EVIDENCE

City Submission

9Jeffery King, Council for the City submits there are mainly three main grounds to dismiss the appeal. The OPA was approved by Council on August 29, 2022 and that no appeal of the OPA was filed by the prescribed legislative time on September 22, 2022 making the Council decision final. Therefore, according to the Moving Party the Appellant’s ground have no merit and must be dismissed as the amendment is of full force and effect and is not a decision within the scope of the appeal. The second ground raised by Mr. King was that there is no planning evidence or reasons set out in the Notice of Appeal. The final and third ground Mr. King submits, that the appeal has no reasonable prospect of success.

10Mr. King advised the City amended its OP for the purpose of the proposed development at the Subject Lands, being the amendment, which was site specific to the Subject Lands and took effect after the appeal period closed, being September 23, 2022.

11The Moving Party highlighted subsection 17(24) of the Act, which sets out:

(24) If the plan is exempt from approval, any of the following may, not later than 20 days after the day that the giving of notice under subsection (23) is completed, appeal all or part of the decision of council to adopt all or part of the plan to the Tribunal by filing a notice of appeal with the clerk of the municipality:

1. A person or public body who, before the plan was adopted, made oral submissions at a public meeting or written submissions to the council.

2. The Minister.

3. The appropriate approval authority.

4. In the case of a request to amend the plan, the person or public body that made the request.

12The Moving Party contends the Appellant, nor any other person, public body, or Ministry, having a right to appeal this application has filed an appeal of the OPA that passed during a meeting of City Council on August 29, 2022.

[12]

[12][13] The Moving Party highlighted the Act further sets out at subsection 17(27) that:

(27) If one or more persons or public bodies have a right of appeal under subsection (24) in respect of all or part of the decision of council, but no notice of appeal is filed under that subsection and the time for filing appeals has expired,

(a) the decision of council or the part of the decision that is not the subject of an appeal is final; and

(b) the plan or part of the plan that was adopted and that is not the subject of an appeal comes into effect as an official plan or part of an official plan on the day after the last day for filing a notice of appeal.

13The Moving Party submits as no appeal was filed under subsection 17(24) of the Act prior to the 20 days allotted for filling, the decision of Council for the City is now final.

14The Appellant’s Appeal Form notes non-conformity with the City’s current OP as it pertains to policy HO.6; however, the applicable OP as amended does not have this requirement given the now final decision of City Council.

15The Moving Party submits that the Appellant’s ground have no merit and must be dismissed as the amendment is of full force and effect and is not a decision within the scope of the appeal as filed by the Appellant.

16Furthermore, the Moving Party submits to dismiss the Appellants appeal pursuant to section 34(25)(1)(i) of the Act as 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.

17Additionally, Moving Party submits to dismiss the Appellant’s appeal pursuant to section 34(25)(2) and (3) of the Act as the reasons set out in the notice of appeal do not contain reasons and explanations as is required by the Act. Mr. King notes section 3A of the appeal form set out facts of the sought amendment and outcome, but do not set out the “why” or “how” this represents inconsistent planning with the Provincial Policy Statement (“PPS”) or does not conform with the OP. The Appeal Form merely states that in the mind of the Appellant this is not good enough reason and that it does not conform, lacking an explanation as to how it does not conform and why.

18Mr. King further elaborates that section A of 3A in the Appeal Form, the Appellant notes that: “I will be happy to bring to light if given the opportunity to so at an OLT Hearing on this matter”. The Appeal Form clearly indicates to explain your reasons. The Appellant has provided facts with neither an explanation nor reason in this regard. The Appeal Form does not go beyond a surface argument to explain “how” the facts stated are inconsistent with the OP and why.

19Finally, Mr. King concludes the Tribunal should further dismiss the Appellant’s appeal pursuant to subsection 9 (1) and/or 19 (1)(c) of the OLTA.

Appellants Submission

20Mr. Brown acknowledges that a procedural error has occurred on his part by appealing section 34 (19) ZBLA. However, insist that the Tribunal can provide relief to allow the appeal to move forward under section 17(24) of the OPA.

21In regard to reasons and land use planning evidence in his Notice of Appeal, Mr. Brown acknowledges that his response to the motion was in reference to the OPA provision requirement for the project to have 30% of all units to be geared-to-income units however, he submits he provided statement evidence from Council members and Planning staff (video/audio recordings of public meetings) which in his opinion, was land use planning evidence and satisfied the Notice of Appeal requirements under section 25 1.i. of the Act.

22The Appellant further argues that the City should have filed the Motion earlier when they realized there was a procedural error.

LEGISLATIVE REGIME

23The Act and the OLTA establish criteria for the consideration of dismissing an appeal without a full hearing on the merits. The relevant sections are set out below.

24Section 17(45) of the Act provides the following:

Despite the Statutory Powers Procedure Act and subsection (44), 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 any of the following apply:

1. The Tribunal 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 plan or part of the plan that is the subject of the appeal could be approved or refused by the Tribunal…

2. The appellant has not provided written reasons with respect to an appeal under subsection (24) or (36).

3. The appellant intends to argue a matter mentioned in subsection (25.1) or (37.1) but has not provided the explanations required by that subsection.

25Section 34(25) of the Act provides the following:

Despite the Statutory Powers Procedure Act and subsection (24), 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 any of the following apply:

1. The Tribunal 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 of part of the appeal…

2. The appellant has not provided written reasons for the appeal.

3. The appellant intends to argue a matter mentioned in subsection (19.0.1) but has not provided the explanations required by that subsection.

26Section 34(19.0.1) of the Act provides the following:

If the appellant intends to argue that the by-law is inconsistent with a policy statement issued under subsection 3(1), fails to conform with or conflicts with a provincial plan or fails to conform with an applicable official plan, the notice of appeal must also explain how the decision is inconsistent with, fails to conform with or conflicts with the other document.

27Section 19(1) of the OLTA states:

Subject to subsection (4), the Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing, …

(c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success.

ANALYSIS AND FINDINGS

28The Tribunal finds that the Motion to Dismiss should be granted. The Tribunal finds that the reasons set out in the Appellants’ Appeal Form does not disclose any apparent land use planning grounds upon which the Tribunal could allow all or part of the appeals.

29The Tribunal heard evidence from the City that Notice of Appeal Form does not contain reasons and explanations as is required by the Act and is therefore invalid. The secondary argument of the City is that the Notice of Appeal Form does not disclose apparent land use planning grounds upon which the appeal could be granted pursuant to the Act and that the appeal has no reasonable prospect of success pursuant to s. 19(1)(c) of the OLTA.

30The Tribunal heard evidence from the City in which the Appellant acknowledged the OPA was approved by Council on August 29, 2022 and that no appeal of the OPA was filed by the prescribed legislative time on September 22, 2022 making the Council decision final.

31The Appellant acknowledged that he filed an appeal under section 34 (19) a ZBLA and not section 17 (24) OPA in which his evidence was in regard to Policy H0.6 the 30% affordability requirement in the OP. Therefore, s. 35 (24) (1) (i) is not complied with “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 of part of the appeal…”.

32The Tribunal considers s. 9(4) of the OLTA which the Appellant seeks relief which states:

Relief: - Unless another Act specifies otherwise, the Tribunal may, as it considers to be appropriate,

(a) make an order granting all or part of the relief applied for; or

(b) make an order granting relief that is additional to or different from the relief applied for.

33In regard to relief requested by the Appellant in this case, Mr. King referenced an Ontario Land Tribunal case OLT-22-003859 - Orchard v. London, 2022 Canlii 88416. In this case the Member found the Notice of Appeal form filed by the Appellant was deficient. In this case the Appellant did not reference additional facts or specific policies in the Notice of Appeal Form and did not check the appropriate boxes for the PPS or the OP or provide reasons as required.

34The Member outlined “the grounds for dismissing an appeal are disjunctive. In other words, only one of the several grounds set out in the Act and the OLTA must be satisfied to warrant dismissing an appeal.”

35Additionally, the Member stated “Once the test was set out in the Patry case, the OMB went on to find that the Board does not have the authority to allow an appellant to amend the Notice of Appeal Form to make valid what is invalid. The OMB at paragraph 71 found that

…although self-represented litigants may be granted some degree of accommodation or latitude for their circumstances, this will never excuse a litigant from compliance with the law and statutory requirements which shall be equally applied to all litigants and parties…The Tribunal may have some degree of flexibility in the application of its own Rules. No such flexibility exists in relation to the mandatory requirements of the Act.

36The Tribunal finds similar facts to this case whereby, the Appellant filed the Notice of Appeal under section 34 (19) ZBLA. However, since City Council passed the OPA on August 29 , 2022 which amended the OP provision to remove the 30% affordability requirement in the OP and the appeal period lapsed and as acknowledged by the Appellant, this was a procedural error and the appeal should have been filed under section 17(24) of the Act.

37As the Member noted in Orchard v. London (para 47);

The language in the Act is mandatory – the notice must (emphasis added) explain how the decision or the ZBA is inconsistent with the PPS or fails to conform with the City OP. The Tribunal has no discretion in this regard and the Motion to Dismiss must be allowed on this ground alone.

38In regard to relief under section 9 (4) of the OLTA requested by the Appellant, the Tribunal notes the Member in Orchard v. London (para 49) in which he states;

The Tribunal does not have the jurisdiction to excuse parties from compliance with statutory requirements set out in the Act. To allow the appeal to proceed would in effect be permitting the Appellant to amend the Notice of Appeal Form outside of the statutory timeframe within which the appeal must be filed. Statutory requirements and rules must be consistently applied and adhered to in order to ensure the appeal process is fair and just.

39Therefore, the Tribunal cannot consider relief in this case since it is outside the jurisdiction of the Tribunal to provide relief from a statutory requirement set out in the Act.

40The Tribunal finds that since only one of the several grounds set out in the Act and the OLTA must be satisfied to warrant dismissing an appeal. Therefore, the Tribunal does not find it necessary to comment on the following remaining grounds submitted by the Moving Party.

ORDER

41UPON APPEAL to this Tribunal by Mark Brown from a decision of the City Council of Sault. Ste Marie; against By-law No. 2022-154 of the City of Sault Ste. Marie;

42AND UPON Motion to this Tribunal for an Order dismissing the appeal without holding a public hearing under subsection 34 (25) (1) (i) of the Planning Act, and the Tribunal having provided the appellant(s) with the opportunity to provide the information requested in accordance with subsection 19(2) of the Act, and the Tribunal having considered the response by the Appellant;

43THE TRIBUNAL ORDERS that the Motion is granted and appeal by Mark Brown is dismissed.

“Eric S. Crowe”

ERIC S. CROWE

MEMBER

“Kurtis Smith”

KURTIS SMITH

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.