Ontario Land Tribunal
Issue Date: April 14, 2023 Case No(s).: OLT-22-004868
Proceeding commenced under section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: BV Courtice Partners GP Ltd. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: Zoning By-law Amendment in order to permit a development on the Lands consisting of 80 residential dwellings Reference Number: ZBA2022-0008 Property Address: 3105, 3091, 3133, 3121 and 3147 Courtice Road (Courtice Road) Municipality: Municipality of Clarington OLT Case No: OLT-22-004868 OLT Lead Case No: OLT-22-004868 OLT Case Name: BV Courtice Partners GP Ltd. v. Clarington (Municipality)
Proceeding commenced under section 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision Description: Draft Plan of Subdivision in order to permit a development on the Lands consisting of 80 residential dwellings Reference Number: S-C-2022-0006 Property Address: 3105, 3091, 3122, 3133 and 3147 Courtice Road (Courtice Road) Municipality: Municipality of Clarington OLT Case No: OLT-22-004869 OLT Lead Case No: OLT-22-004868
Heard: April 5, 2023 by video hearing
Appearances
| Parties | Counsel*/Representative |
|---|---|
| BV Courtice Partners GP Ltd. | K. Sliwa M. Reedjik |
| Municipality of Clarington | R. MacIver |
| Nash Developments Limited | A. Frank J. Park, in absentia |
Memorandum of Oral Decision Delivered by Aaron J.R. Sauve and C. Hardy on April 5, 2023 and Order of the Tribunal
Introduction
1This was the first Case Management Conference ("CMC") held on April 5, 2023 concerning the Appeal by BV Courtice Partners GP Ltd. ("BV Courtice") from the failure by the Municipality of Clarington ("Clarington") to make a decision within statutory timeframes concerning BV Courtice's applications for a Zoning By-Law Amendment and Draft Plan of Subdivision.
2BV Courtice is the owner of the lands municipally known as 3105, 3091, 3121, 3133, and 3147 Courtice Road, located in Courtice community within the Municipality of Clarington (together referred to as "subject site"). The lands have a combined area of 7.45 hectares (18.4 acres) and are located on the east side of Courtice Road.
3The Applications propose 80 residential units consisting of freehold and condominium townhouses, a new public and private road, and future development, open space, and environmental protection blocks, with a net development area of 2 hectares and a proposed density of 40 units per net hectare.
4The Tribunal received the Affidavit of Service of Andrea Paterson dated March 6, 2023, confirming that Notice of this CMC was properly given, which has been marked as Exhibit 1.
Party/Participant Requests
5The Tribunal received a written request for Party status from Nash Developments Limited ("Nash"). Nash is the registered owner of the properties municipally known as 1828-1836 Nash Road, part of 1840 Nash Road, and 2910, 2936, 3056, 3090, 3112, 3124, 3136, 3142, 3150 and 3158 Hancock Road. These properties are in close proximity to the south and east of the subject site in this matter. Nash is in the process of redeveloping its properties in the area. As such, Nash has an interest in this matter relating to the coordination, funding and installation of services. Clarington declined to comment on the Party request. BV Courtice did not oppose Party status being granted but requested that the Tribunal direct that Nash limit its issues to those of servicing and infrastructure. The Tribunal granted Party status to Nash with the direction that the issues raised have a nexus to the servicing of the subject lands as set out in their Party status request form.
6The Tribunal received a written request for Participant status from Libby Racansky. Ms. Racansky is a resident of the area and is concerned about the environmental impact of the proposed development. In response to questions raised by Clarington, Ms. Racansky confirmed that she was not confused with another similar application in the area and would like to be granted Participant status in this appeal. On consent of the Parties, the Tribunal granted Ms. Racansky Participant status in these proceedings.
Mediation & Settlement
7The Tribunal raised the issue of opportunities for settlement with the Parties and was informed that discussions have been ongoing since 2018. BV Courtice is open to ongoing discussions and advised the Tribunal that some servicing and infrastructure issues are resolvable. The Parties are hopeful that issues can be resolved or scoped with continued discussions.
8The Tribunal reminded the Parties that Tribunal-led mediation is available if it could be of assistance and any requests can be made through the Case Coordinator.
Procedural Order/Issues List
9Although a draft Procedural Order ("PO") was provided in advance of the CMC, the Parties had not yet finalized an Issues List ("IL"). The Tribunal reviewed the draft PO with the Parties and directed revisions where necessary to ensure that the PO aligns with the Tribunal standard form. In particular, the Parties were directed to extend the timelines related to notifying the Tribunal whether all hearing days will be required, submission of a joint document book and submission of a Hearing plan. No IL was presented to the Tribunal at the CMC.
Hearing/Subsequent CMC
10The Parties did not agree on the next step for this matter. BV Courtice requested that a Hearing date be scheduled to ensure that this matter is resolved either by way of settlement or by way of a Hearing in a reasonable amount of time. Clarington requested another CMC as they have not been able to fully prepare for this appeal due to staffing issues and resource limitations that they have been experiencing.
11The Tribunal noted that its preference is to set Hearing dates only after the PO and IL are in final draft form and in this case, setting a Hearing date would be premature given the addition of a new Party at this CMC and the absence of an IL. The Tribunal does understand the delay concerns raised by BV Courtice and is cognizant of the need to keep this matter moving along and consequently established some timelines for the Parties.
12BV Courtice agreed that they will submit their comments on recently received agency comments to Clarington by Monday April 17, 2023. Clarington will bring the matter forward at an upcoming Council meeting in order to receive instructions from Council on issues to include on the IL. The Tribunal was advised that this matter could be included on the Council agenda for one of the upcoming meetings which are scheduled for April 24, 2023 and May 8, 2023. After Council provides instructions to Clarington, the Parties will confer on a revised PO and IL. BV Courtice agreed to be tasked with providing the revised PO and IL to the Tribunal on or before Monday June 12, 2023.
13The Tribunal stressed the importance of ensuring that the further CMC is productive and provided directions in that regard. The Parties are directed to submit a draft PO and IL by Monday June 12, 2023 and be prepared at the next CMC to discuss the anticipated format and length of Hearing such that a Hearing date may be scheduled.
14After considering the submissions of the Parties, the Tribunal determined that a further CMC would be appropriate to progress the matter in an efficient manner. The Tribunal scheduled a second CMC by video hearing on Thursday June 15, 2023 commencing at 9 a.m. The Tribunal agreed to begin the CMC at 9 a.m. in order to accommodate the schedules of Counsel.
15Parties 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
16Parties 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.
17Persons 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: 914-098-901.
18Individuals 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 CMC 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
19The Tribunal Orders that Nash Developments Limited is a Party in this proceeding.
20The Tribunal Orders that Libby Racansky is a Participant in this proceeding.
21The Tribunal directs BV Courtice to provide comments on the agency comments to Clarington by Monday April 17, 2023.
22The Tribunal directs the Parties to file a PO and IL by Monday June 12, 2023.
23The Tribunal orders that a further CMC will be held Thursday June 15, 2023 at 9 a.m. by way of video.
24There will be no further notice and this Panel is not seized but, schedule permitting, may be spoken to for case management purposes.
"Aaron J.R. Sauve"
Aaron J.R. Sauve Member
"C. Hardy"
C. Hardy 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.