Marsville Estates Inc. v. East Garafraxa (Township), 2023 CanLII 21681

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 16, 2023

CASE NO(S).: OLT-22-004307

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

Applicant/Appellant: Marsville Estates Inc.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the development of a 59-unit residential subdivision

Reference Number: Z5-20

Property Address: 63076 County Road 3

Municipality/UT: East Garafraxa/Dufferin

OLT Case No.: OLT-22-004307

OLT Lead Case No.: OLT-22-004307

OLT Case Name: Marsville Estates Inc. v. East Garafraxa (Township)

PROCEEDING COMMENCED UNDER section 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Marsville Estates Inc.

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: To permit the development of a 59-unit residential subdivision

Reference Number: S1-20

Property Address: 63076 County Road 3

Municipality/UT: East Garafraxa/Dufferin

OLT Case No.: OLT-22-004308

OLT Lead Case No.: OLT-22-004307

Heard: February 17, 2023 by Telephone Conference Call

APPEARANCES:

Parties

Counsel

Marsville Estates Inc.

Andrew Jeanrie Stephanie Brazzell

Township of East Garafraxa

Stan Floras Jeffrey Wilker (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON FEBRUARY 17, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was a Telephone Conference Call (“TCC”) before the Ontario Land Tribunal, with respect to appeals under subsections 34(11) and 51(34) of the Planning Act, by Marsville Estates Inc. (“Appellant/Applicant”) from the failure of the Township of East Garafraxa (“Township”) to make a decision within the statutory timeframes on applications for a Zoning By-law Amendment and a Plan of Subdivision Application (“Applications”) with respect to lands municipally known as 63076 County Road 3, in the Township (“Subject Property”). The purpose of the Applications is to facilitate a proposal by the Appellant/Applicant to permit a 59-unit residential subdivision.

2The Applications originally contemplated the development of an 80-unit residential subdivision and would have redesignated part of the Subject Property from employment uses (“Employment Lands”) to residential. An Official Plan Amendment application was submitted, which is now on hold pending Dufferin County's Municipal Comprehensive Review (“MCR”) Lands Need Assessment, which would impact redesignation. That portion of the Subject Property, namely the Employment Lands, is now to be included in Phase 2 of a phased approach to development (“Phase 2 Plan”). The Applications were amended in February 2021, where the number of units was reduced to 78, and then again, in May 2022, to its current form.

3A first Case Management Conference (“First CMC”) took place on this matter on November 28, 2022. At the First CMC, a second CMC was scheduled to take place on Friday, May 26, 2023, at 10 a.m. (“Second CMC”) to address any procedural matters, such as motions, that are required to be addressed. The Parties are to update the Tribunal regarding the Phase 2 Plan and Dufferin County’s position on the Employment Lands and the MCR. The Parties are to take utmost care to avoid duplication of issues or duplicate hearings arising out of these Applications and the Phase 2 Plan.

DRAFT PROCEDURAL ORDER AND ISSUES LIST

4At the First CMC, the Parties were directed to produce a draft Procedural Order (“PO”) and Issues List (“IL”) by February 1, 2023, for the Tribunal’s review and approval.

5Upon submission of the PO and IL, the Tribunal was advised that the Parties had encountered a disagreement regarding the inclusion of Paragraph 22 in the PO by the Applicant, which read:

If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other parties on or before ________, (date - ninety (90) days before Expert Witness Statements as stated in paragraph 13). The applicant acknowledges that any revisions to the proposal after that date without the consent of the parties may be grounds for a request to adjourn the hearing.

6A Telephone Conference Call (“TCC”) took place before the Tribunal on February 17, 2023, to address this disagreement.

7At the TCC, the Applicant indicated that the addition of this paragraph would prove beneficial to all Parties in the efficient hearing of the matter before the Tribunal. Moreover, the Applicant submitted that it is the right of the Applicant to amend Applications throughout a proceeding, and Paragraph 22 simply protected that right and put some limitations with respect to the timing of it. The Applicant raised the concern that, if Paragraph 22 was not included and the Applicant attempted to make revisions, the City may take the positions that the revisions proposed are too late for consideration and a motion may be required. Along with making the proceeding more efficient, Paragraph 22 would create a level of certainty for the Parties. This would be in line with Rule 1.3 of the Ontario Land Tribunal’s Rules of Practice and Procedure (“Rules”), allowing for a fair, just, expeditious, and cost-effective resolution of the merits of the proceedings.

8The Township disagreed, indicating that Paragraph 22 was unnecessary. The Township preferred to adopt the Tribunal’s sample PO, in accordance with Rule 19.2 of the Rules. The Township submitted that, contrary to the Applicant’s claims, Paragraph 22 would add more uncertainty to the process as it would create a moving target for the Township to have to respond to. In considering these Applications, the Township is balancing them with other development proposals. The deadline imposed in Paragraph 22 would prevent the Township from being able to take various moving parts into consideration and act accordingly. With respect to the Applicant’s right to revise its proposal, the Township indicated that it is more complicated than what is outlined in Paragraph 22. A revised proposal would have to be adequately evaluated, and the timelines imposed by Paragraph 22 limit the Township’s ability to do that.

9In the process of hearing submissions from both Parties, it became apparent that the crux of the issue was the Township’s ability to request an adjournment based on a revised proposal that the Applicant may submit. By way of Paragraph 22, the Applicant appeared to want to limit that right to a certain timeline, namely only after the date indicated in Paragraph 22. The Township did not agree to that right being limited.

10The Tribunal indicated to the Parties that, at this juncture, the Township’s ability to seek an adjournment could not be limited as, depending on how the proposal was revised, an adjournment may be warranted even before the limit in Paragraph 22 was reached. The Township stated that it may be agreeable to Paragraph 22 if it was revised such that its right to seek an adjournment was not limited to a certain timeline. The Applicant was open to such a potential revision.

11Prior to any rulings from the Tribunal regarding Paragraph 22 of the PO, the Parties advised that they would like to engage in settlement discussions regarding the wording of that paragraph. The Tribunal directed that they do so, and advise the Tribunal by March 3, 2023 whether they had reached an agreement.

12On March 3, 2023, the Parties provided an agreed-upon PO, which included a revised Paragraph 22 as follows:

If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other parties on or before Friday, June 16, 2023 (date – ninety-one (91) days before Expert Witness Statements as stated in paragraph 13). The applicant acknowledges that any revisions to the proposal before or after that date without the consent of the parties may be grounds for a request to adjourn the hearing.

13The Tribunal finds this revision acceptable and approves same.

14With respect to the IL, a draft IL was provided to the Tribunal. Prior to the TCC, the Applicant had indicated to the Case Coordinator that it had some concerns with many of the issues raised by the Township, though the proposed language at the start of the IL may address those concerns. In response, the Township advised the Case Coordinator that a dispute, if any, regarding the inclusion of specific issues should be resolved at the Second CMC. The Applicant agreed.

15As such, at the TCC, the Tribunal did not address, review, or approve the IL. The Tribunal benefitted from the IL only insofar as it allowed it to schedule a Hearing for this matter for an appropriate length of time. The Tribunal will consider the draft IL at the Second CMC. If the IL is revised before the Second CMC, the Parties are directed to provide same to the Tribunal by May 19, 2023, prior to the Second CMC. If the Parties are unable to provide an agreed-upon IL, any unresolved issues can be addressed at the second CMC or, in the alternative, by way of a motion if required.

HEARING DETAILS

16The Parties advised that, based on the proposed IL and the number of witnesses that are contemplated, a hearing length of thirteen (13) days would be appropriate. The Tribunal enquired as to the Phase 2 Plan, and whether that would need to be considered when scheduling the Hearing to avoid duplication of issues and duplicate hearings. The Applicant indicated that the Phase 2 Plan was separate and stagnant at this stage. As such, this Hearing could be scheduled without having to wait for that one.

17Accordingly, a video hearing will commence at 10 a.m. on Wednesday, November 29, 2023 until Friday, December 15, 2023 for thirteen (13) days.

18Parties 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:

GoTo Meeting: https://meet.goto.com/348282861

Access code: 348-282-861

19Parties 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

20Persons 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 348-282-861.

21Individuals 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

22The Tribunal Orders as follows:

a. The Procedural Order, attached as Schedule A, shall govern these proceedings.

b. The Issues List, currently in draft form, and included in Schedule A, will be considered by the Tribunal at the Second CMC.

c. If the Issues List is revised, it is to be provided for the Tribunal’s review by Friday, May 19, 2023, prior to the Second CMC.

d. The Hearing in this matter will be held by video hearing starting on Wednesday, November 29, 2023, commencing at 10 a.m., and thirteen (13) days have been set aside.

23There will be no further notice.

24The Member is not seized, but may be contacted through the Case Coordinator should procedural issues arise with respect to implementing this Order.

“Bita M. Rajaee”

BITA M. RAJAEE 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.

ISSUE DATE: March 16, 2023 CASE NO(S).: OLT-22-004307

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

Applicant(s)/Appellant(s): Marsville Estates Inc.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the development of a 59-unit residential subdivision

Reference Number: Z5-20

Property Address: 63076 County Road 3

Municipality/UT: East Garafraxa/Dufferin

OLT Case No.: OLT-22-004307

OLT Lead Case No.: OLT-22-004307

OLT Case Name: Marsville Estates Inc. v. East Garafraxa (Township)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended:

Applicant(s)/Appellant(s): Marsville Estates Inc.

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: To permit the development of a 59-unit residential subdivision

Reference Number: S1-20

Property Address: 63076 County Road 3

Municipality/UT: East Garafraxa/Dufferin

OLT Case No.: OLT-22-004308

OLT Lead Case No.: OLT-22-004307

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 video hearing will begin on Wednesday, November 29, 2023 until Friday, December 15, 2023 at 10:00 a.m. virtually at Parties 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:

GoTo Meeting: https://meet.goto.com/348282861

Access code: 348-282-861

3. The parties’ initial estimation for the length of the hearing is thirteen (13) 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. The parties and participants identified at the case management conference are set out in Attachment 2.

5. The issues are set out in the Issues List attached as Attachment 3. 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.

6. The order of evidence shall be as 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 the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. 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.

8. 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

9. 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 Tuesday, August 1, 2023 (date – at least 120 days prior to the start of the hearing) and in accordance with paragraph 23 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. Any challenges to the witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed shall be made by motion in accordance with the Tribunal’s Rules and notice of same must be served on the other parties on or before Monday, August 7, 2023 (date - 114 days before the hearing is scheduled to commence).

10. Expert witnesses in the same field shall have a meeting on or before Wednesday, August 23, 2023 (date – at least 23 days prior to the date for Expert Witness Statements as stated in paragraph 13) 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 Thursday, August 31, 2023 (date – at least 15 days prior to the date for Expert Witness Statements as stated in paragraph 13).

11. 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.

12. 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.

13. On or before Friday, September 15, 2023 (date – at least 75 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 23 below.

14. On or before Monday, August 21, 2023 (date – at least 100 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 23 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 Friday, October 20, 2023 (date – at least 40 days prior to the start of the hearing) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before Friday, October 30, 2023 (date), the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within thirty-one (31) days after the evidence is received and in accordance with paragraph 23 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Thursday, November 9, 2023 (date – at least 20 days prior to the start of the hearing).

19. 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.

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 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday, October 30, 2023 (date – at least 30 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.

22. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other parties on or before Friday, June 16, 2023 (date – ninety-one (91) days before Expert Witness Statements as stated in paragraph 13). The applicant acknowledges that any revisions to the proposal before or after that date without the consent of the parties may be grounds for a request to adjourn the hearing.

23. 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.

24. 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.

25. 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

June 16, 2023 (91 days before Witness Statement Date)

Last date to provide copies of revised proposal, including all revised plans and drawings (if any)

August 1, 2023 (120 days prior to hearing)

Exchange of witness lists (names, disciplines and order to be called)

August 7, 2023 (114 days prior to hearing)

Last date to challenge identification of expert witness

August 21, 2023 (100 days prior to hearing)

Exchange of Participant Statements

August 23, 2023 (23 days before Witness Statement Date)

Experts meeting prior to this date

August 31, 2023 (15 days prior to Exchange of Witness Statements)

Agreed Statement of Facts

September 15, 2023 (75 days prior to hearing)

Exchange of Witness Statements, summoned witness outlines, and Expert Reports

October 16, 2023 (31 days after evidence is received)

Exchange of Reply Witness Statements (if any)

October 20, 2023 (40 days prior to hearing)

Parties to Advise Tribunal if any hearing dates are to be released from the hearing calendar (if any)

October 30, 2023 (30 days prior to hearing)

Exchange of visual evidence (if any)

October 30, 2023 (30 days prior to hearing)

File Preliminary Hearing Plan

November 9, 2023 (20 days prior to hearing)

Finalize Joint Document Book

November 29, 2023

Hearing commences

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

A. PARTIES

Counsel

Township of East Garafraxa

Jeffrey Wilker Stan Floras Thomson Rogers Law 390 Bay Street, Suite 3100 Toronto ON M5H 1W2 E-mail: jwilker@thomsonrogers.com Tel: 416-868-3118 Fax: 416-868-3134 E-mail: sfloras@thomsonrogers.com Tel: 416-868-3150 Fax: 416-868-3134

Appellant: Marsville Estates Inc.

Andrew Jeanrie Stephanie Brazzell Bennett Jones LLP 3400 One First Canadian Place PO Box 130 Toronto ON M5X 1A4 E-mail: jeanriea@bennettjones.com Tel.: 416-777-4814 E-mail: brazzells@bennettjones.com Tel: 416-777-7819

ATTACHMENT 3

DRAFT 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, appropriate, or that a given issue correctly states the applicable law or test to be applied to the matter before the Tribunal. 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 or that any party has retained all of its right to make arguments or bring evidence as to whether an issue itself is appropriate, represents the applicable law or the test to be applied, and/or is good planning. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the Tribunal.

In addition, parties have reserved their right to adopt any issues submitted by the appellants and parties to the proceeding.

Marsville Estates Inc.

1. Is the proposed Zoning By-Law Amendment good planning and in the public interest?

2. Is the proposed Plan of Subdivision good planning and in the public interest?

B. Township of East Garafraxa

Planning Policy

1. Do the applications for plan of subdivision and rezoning have regard for matters of provincial interest identified in the Planning Act, including, but not limited to, sections 2(a), (f), (h), (i). (k), (o) and (r)?

2. Are the applications for plan of subdivision and rezoning consistent with the Provincial Policy Statement, 2020, including, but not limited to, policies 1.1.1 a), b), c), e), g) and h); 1.1.2; 1.1.3.2 in particular a), and b); 1.1.3.6; 1.1.4.1 in particular a), c), e), f) and h); 1.1.4.2; 1.1.4.3; 1.5.1 a) and b); 1.6.1;1.6.4; 1.6.6; 1.6.7.1; 2.1;2.2; 3.1.2 and 4.0?

3. Do the applications for plan of subdivision and rezoning conform to A Place to Grow, Growth Plan for the Greater Golden Horseshoe including, but not limited to, policies 1.2.1, in particular bullet points 1, 3, 4, 5, 6, and 7; 2.2.9.1; 2.2.9.2; 2.2.9.6; 3.2.1.1; 3.2.3.4; 3.2.6.1; 3.2.6.2; 3.2.7.2; 4.2.2.6; and 4.2.5.2?

4. Do the applications for plan of subdivision and rezoning conform to the applicable goals, objectives and policies of the County of Dufferin Official Plan, Office Consolidation, July 2017, including, but not limited to, policies 1.1.5, in particular a), b), e), f), i), k), n) and o);1.2.1; 3.1, in particular a), b), c), d), f) and, g); 3.2; 3.3, in particular 3.3.1 and 3.3.3; 3.7.1; 3.7.2. in particular b) and i); 3.7.4; 3.8.2 in particular a), b), d), e), f), and i); 3.9.1; 3.10.2; 5.1, in particular a), b), d) and f); 5.2; 5.3; 5.3.2; 5.3.4; 5.3.5; 5.3.9;5.3.10, 5.3.11;5.4.1; 5.4.2;6.3.5, in particular a), b, c) and d); 7.1, in particular a), b), c), d), e), g) and k); 7.2; 7.2.1 in particular b), c), d), h) and i); 7.2.2; 7.2.3; 7.3; 8.6 in particular 8.6.1, 8.6.2, 8.6.3 and 8.6.6; 8.8 and Official Plan Schedules in particular, A, B, E, E1, G, H, and Appendix 2.

5. Do the applications for plan of subdivision and rezoning conform to the applicable goals, objectives and policies of the Township of East Garafraxa Official Plan (Township Official Plan, Office Consolidation 2023, including but not limited to, policies 3.0; 4.0; 5.4, in particular 5.4.2.1, 5.4.3, 5.4.5 and 5.4.6; 5.5; 5.7; 5.8; 5.10; 6; 7.3; 7.4; 7.6 -7.12; 7.15-7.19; 7.22-7.26;8.1;8.4-8.6; 9.1;9.6 and 10.0.

Employment Lands

6. Is it appropriate and good planning to consider approval of a plan of subdivision and rezoning for the lands designated “Community Residential” and “Environmental Protection” in the Township Official Plan on Schedule “A-1”, absent any certainty as to the use, development plans and related technical evaluation of proposed development for the lands designated “Employment” in the Township Official Plan?

7. Has there been sufficient study of the Employment Lands to ensure the applications for plan of subdivision and rezoning are compatible with employment uses as may be authorized under the “Employment” designation in the Township Official Plan?

8. Will the development of the employment lands generate nitrate levels in the groundwater that exceeds Ministry of the Environment, Conservation and Parks requirements?

9. How will access to the Employment Lands be provided - directly from County Road 24? – via a service road? – some other alternative? Will the traffic generated by the employment lands be compatible with the traffic generated by the residential area if the access off County Road 3 is the only access to the subdivision?

Have the traffic impacts related to development of Block 66 as employment lands been adequately considered and mitigated?

11. Does the road geometry/configuration properly accommodate Block 66 as employment lands?

12. Will the development of Block 66 as employment lands have noise compatibility with the adjacent residential lands?

13. Have appropriate landscape berms been provided between the employment uses within and external to the plan of subdivision and the proposed residential use to minimize noise and visual nuisances arising from the employment area per Section 5.5.7 of the Official Plan?

Subsection 51(24) of Planning Act

14. Does the draft plan of subdivision satisfactorily address all criteria set out in Subsection 51(24) of the Planning Act?

Proposed Lot Fabric

15. Have sight triangles been provided as required by Section 6.1 b) of the Township’s Official Plan or the County of Dufferin’s Entrance Policy (Policy Number 5-3-17 no. 6 c) and County of Dufferin’s Official Plan 7.2.2

16. Are there sufficient 0.3m reserves to protect entrance locations on the roadways?

17. Is a park required in the proposed subdivision, or is it more appropriate for cash-in-lieu of parkland to be provided to allow for establishment of a park of a more appropriate size in an alternative more central location in the settlement area? If a park is required in the proposed subdivision, does the size, configuration, and location of the park meet the requirements of the Township and good practice, and is it located as required in Section 5.8.4 a) and f) of the Township Official Plan?

18. Are pedestrian/active transportation (i.e. walkway and trails) connections located in accordance with good practice and proper engineering standards?

19. Are appropriate pedestrian/active transportation connections being provided to the East Garafraxa Public School?

20. Is appropriate road connectivity being provided to the lands located west of the subdivision?

21. Is the proposed subdivision satisfactorily served with one entrance to County Road 3, or is an additional entrance required for emergency access including for fire department vehicles?

22. Does the road geometry/configuration discourage opportunities for traffic to by-pass the intersection of County Road 24 and County Road 3 through the subdivision if more than one entrance to the subdivision is required?

23. Has the plan been designed with road connectivity as required by Section 6.6 a) x) of the Township Official Plan.

24. Does the road geometry/configuration provide for internal road access to the employment lands?

25. Have the temporary turning circles been sized to accommodate the fire department vehicles, snow removal equipment and similar vehicles?

26. Have appropriate arrangements been made for temporary turning circles at all dead-end streets?

27. Have appropriate arrangements been made for fencing?

28. Have appropriate arrangements been made for fire break lots?

29. Should the external property located to the southeast be labelled as “residential” or “employment”?

30. Have adequate provisions been made for connectivity of roads and services to the external property location to the southeast?

31. Are adequate amenity spaces provided on each lot when considering the consumption of lot area by septic systems, noise berms, the potential for secondary units in accessory buildings, swimming pools etc.?

Noise

32. Will the proposed residential development lands have noise compatibility with County Roads 3 and 24?

33. Have appropriate landscape berms or other buffering been provided between the residential use and County Roads 3 and 24 to minimize noise and visual nuisances per Section 5.5.7 of the Official Plan?

34. Does the grading plan make provisions to accommodate the construction of the noise berms or other buffering.

Road Cross Section

35. Has the proposed rural cross section been demonstrated to be functional, and does it have regard for criteria established by Council in section 5.4.5 of the Official Plan or should an urban cross section be utilized?

Drainage

36. Have adequate provisions been made to convey upstream drainage through the subdivision lands.

Groundwater

37. Has proper consideration been given to the high groundwater table to ensure ditches will not be consistently wet and can be maintained if the subdivision is designed with a rural cross section?

38. Has proper consideration been given to high groundwater table and whether it will affect the design elements of the residential dwellings as required in Section 5.4.5 c) of the Township Official Plan in order that the built form and building materials are reflective of the Communities character?

Stormwater Management

39. Is the stormwater management block appropriately sized to accommodate the residential subdivision considering the higher imperviousness of employment lands as required in Section 7.17 of the Township’s Official Plan.

Water

40. Have satisfactory arrangements been made to upgrade and connect to the Marsville Water System?

41. Do the supporting hydrogeological and servicing reports adequately demonstrate that the Township’s water supply system can be upgraded and expanded to service the proposed development?

42. Is draft plan approval premature given the status of the Class EA for the expansion of the Township’s water system?

43. Have satisfactory arrangements been made for water supply for fire protection?

44. Has the plan of subdivision provided for easements or blocks necessary to loop the watermain?

45. How will the Source Water Protection obligations of the Township be met when the new well(s) is added to the Marsville Water System to service this development proposal?

Environmental Site Assessment

46. Have the lands been adequately tested for soil or groundwater contamination including, but not limited to, the completion of a Phase 2 Environmental Site Assessment?

Traffic

47. Are adequate sight lines provided for the proposed entrance location(s) onto existing roads?

Landscaping

48. Have satisfactory arrangements been made for tree planting and landscaping?

49. Are the rear yards adequately buffered where they back onto County Road or employment lands?

50. Does the proposed subdivision design, including streetscape and landscape elements, maintain the small-town character of Marsville as required by Section 5.4.5 of the Township’s official plan.?

51. Do the applications for plan of subdivision and zoning by-law adequately address visual impacts to maintain the small-town character of Marsville?

Ecological

52. Has the development proposal properly considered the significant forest as required by the Provincial Policy Statement, Growth Plan, County Plan and Section 7.9 of the Township’s Official Plan, including an appropriate buffer?

53. Has the development proposal properly considered habitat of rare and vulnerable species considered significant wildlife habitat such as the Special Concern Eastern Wood Peewee and its habitat as required by Provincial Policy Statement, Growth Plan, County Plan and Section 7.10 of the Township Official Plan?

54. Has the development proposal properly considered species at risk bats and its habitat as required by Provincial Policy Statement, Growth Plan, County Plan and Section 7.10 of the Township Official Plan?

55. Has it been demonstrated that the proposed draft plan and rezoning will not cause any negative impacts on the natural environment, including ground or surface water features, or the woodlot?

Draft Zoning By-Law (Planning input)

56. Do the proposed zoning regulations appropriately implement the proposed plan of subdivision and are the proposed regulations consistent with the Provincial Policy Statement, and in conformity with the Growth Plan, County Official Plan and Township Official Plan including the proposed minimum lot area; parking; and lot coverage regulations?

Draft Plan Conditions

57. What draft plan conditions are appropriate to address the criteria in subsection 51(24) and (25) of the Planning Act, should the Tribunal approve the proposal?

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.

1. Marsville Estates Inc.
2. Township of East Garafraxa
3. (Reply if any) Marsville Estates Inc.

ATTACHMENT 5

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.