Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 1, 2023
CASE NO(S).: OLT-22-004258
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Stremma (St. George) GP Inc.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To redevelop the subject lands from a golf course to a 306 unit residential subdivision
Reference Number: PS2-OPA1-ZBA14-22-RC
Property Address: 269 German School Road
Municipality/UT: Brant/Brant
OLT Case No.: OLT-22-004258
OLT Lead Case No.: OLT-22-004258
OLT Case Name: Stremma (St. George) GP Inc. v. Brant (County)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Stremma (St. George) GP Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To redevelop the subject lands from a golf course to a 306 unit residential subdivision
Reference Number: PS2-OPA1-ZBA14-22-RC
Property Address: 269 German School Road
Municipality/UT: Brant/Brant
OLT Case No.: OLT-22-004259
OLT Lead Case No.: OLT-22-004258
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Stremma (St. George) GP Inc.
Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description: To redevelop the subject lands from a golf course to a 306 unit residential subdivision
Reference Number: PS2-OPA1-ZBA14-22-RC
Property Address: 269 German School Road
Municipality/UT: Brant/Brant
OLT Case No.: OLT-22-004260
OLT Lead Case No.: OLT-22-004258
Heard: February 15, 2023 By Video Hearing
APPEARANCES:
Parties
Counsel
Stremma (St. George) GP Inc.
M. Flowers
County of Brant
J. Zuidema and R. Welchman
Losani Homes (1998) Ltd.
R. Kehar
CSG Limited Partnership
J. Meader (N. Smith in absentia)
Empire Communities (St. George) Ltd.
P. De Melo
Riverview Highlands (St. George) Holdings Ltd.
C. Boyd
MEMORANDUM OF ORAL DECISION DELIVERED BY S. BRAUN ON FEBRUARY 15, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matters before the Tribunal are appeals by Stremma (St. George) GP Inc. (“Appellant”/”Stremma”) pursuant to sections 22(7), 34(11) and 51(34) of the Planning Act (“Act”) against the failure of the County of Brant (“County”) to make a decision on applications for an Official Plan Amendment (“OPA”), Zoning By-law Amendment (“ZBA”) and Plan of Subdivision (“POS”) in relation to the property located at 269 German School Road (“subject property”) in St. George.
2The Appellant proposes to redevelop the subject property, currently used as a golf course, into a 306-unit residential subdivision. The County provided a Notice of Complete Application to the Appellant dated April 27, 2022.
3For context, it is important to note that on July 26, 2022, the County passed an interim control by-law (“ICBL”) which affects lands comprising the area within the County known as St. George, including the subject property. The ICBL, directs county staff to:
…undertake a review and study in respect of the County’s land use planning policies, including but not limited to, its Official Plan and Zoning By-law, in relation to any required changes to the County’s land use planning policies, mapping and regulatory framework as a result of:
a. the ongoing Class Environmental Assessment for water and wastewater servicing capacity restraints in St. George…
4The Tribunal received an Affidavit of Service dated January 25, 2023, confirming that Notice of this Case Management Conference (“CMC”) was properly given, which has been marked as Exhibit 1. No further notice is required.
STATUS REQUESTS
5Written requests Party Status were received in advance of the CMC from: CSG Limited Partnership (“CSG”); Empire Communities (St. George) Ltd. (“Empire”); and Losani Homes (1998) Ltd. (“Losani”). In addition, although a request form was not received in advance of the CMC, Riverview Highlands (St. George) Holdings (“Riverview”) appeared seeking to be added as a Party.
CSG
6CSG’s lands are located in St. George at 282A Highway No. 5, approximately 100 metres (“m”) away from the subject property. CSG applied for a zoning by-law amendment and site plan approval for those lands in order to give effect to a proposal which contemplates the development of warehouse and logistics uses. CSG appealed against the County’s failure to make a decision on same (Tribunal File No. OLT-22-004216) and Stremma was granted Party Status in that appeal.
7CSG requests Party Status in this matter, raising issues with respect to the potential for land use compatibility impacts, given the sensitive residential use proposed by Stremma on the subject property and the industrial uses proposed by CSG on its lands.
8The Appellant consented to the addition of CSG as a Party and the County took no position on the request. The Tribunal, being satisfied that CSG has a direct interest in the present appeal, granted its request for Party Status.
Losani, Empire and Riverview
9Counsel for Losani, Empire and Riverview all provided separate submissions on behalf of their respective clients’ requests for status. However, given that the prospective parties were aligned in their reasons for requesting status and made similar submissions, the Tribunal summarizes them collectively as follows:
10Losani’s lands are located in St. George on the west side of Main Street South between Highway 5 and German School Road and are within the immediate vicinity of, and within the same block as, the subject property. Empire’s lands are also in the vicinity of the subject property and have frontage on Highway 5. Both the Losani lands and the Empire lands have received development approvals permitting residential subdivisions subject to a holding provision (“H”). The H is intended to ensure there is sufficient servicing capacity in the area prior to the building of the residential units.
11The Riverview lands are located between those owned by Empire and Losani. Unlike Empire and Losani, Riverview does not yet have approval for its residential development proposal but rather, has an active appeal before the Tribunal based upon the County’s failure to make a decision on its development applications, similar to Stremma.
12All three prospective parties raised concerns with respect to prematurity of the development proposed by Stremma and the availability of servicing to accommodate same. It was submitted that, if approved, the proposed development could potentially “leapfrog” over the development of other sites and impact the servicing thereof, including the already approved Losani and Empire developments. It was further submitted that development and issues of servicing should be coordinated to take into account the needs and capacity not only of the Stremma lands, but the entire St. George area including the lands of the three prospective parties.
13Based on the foregoing, it was argued that Losani, Empire and Riverview all have a direct interest in the present appeal and can assist the Tribunal in adjudicating effectively on the issues at a hearing. Counsel for the prospective parties agreed to coordinate so as to avoid repetition of issues and evidence and ensure an efficient hearing and as such, it was submitted that granting the requests would not result in the need to add a significant amount of time to the hearing.
14Counsel for the Appellant objected to Losani, Empire and Riverview being granted Party Status. It was submitted that, unlike CSG, the lands of the three prospective parties are approximately 1 kilometre (“km”) or more away from the subject property and, as such, unlike the CSG lands there are no issues with respect to the coordination of road networks or land use compatibility. Stremma took issue with the assertion that its development proposal might somehow “leapfrog” over the developments of the prospective parties because Stremma’s lands are located within a designated intensification area whereas the lands of the three prospective parties are designated as greenfield and because in the case of Losani and Empire, their developments, albeit with conditions, have already been approved.
15It was further submitted that preliminary lists of issues provided to the Appellant by Losani and Empire include overly broad issues such as “does the proposed development conform to the County of Brant Official Plan” and, as such, the Appellant would not be able to appropriately respond to same at a hearing. In addition, the lists of Losani and Empire focus primarily upon servicing issues which overlap with broad categories as identified by the County. As such, it was suggested that the prospective parties would not add much to the hearing beyond issues and evidence already raised by the County and it might be more appropriate for the Tribunal to consider granting them Participant Status.
16While the County took no position on these requests for Party Status, it was noted that the concerns raised by the prospective parties are understandable, in light of the need to ensure that all development proceeds in an orderly fashion with a coordinated servicing strategy that makes sense for the entire St. George area.
17The Tribunal was persuaded that Losani, Empire and Riverview each have a direct interest in the matter, insofar as servicing plans for the Stremma proposal may have an impact upon their ability to develop their lands. While it is acknowledged that the interests of the County may overlap to some degree with those of the prospective parties, the Tribunal considered it fair to provide Losani, Empire and Riverview with an opportunity to address their own unique interests at the hearing. As there is the potential for the issues and evidence of the added Parties to overlap with those of the County, those Parties are encouraged to work together to avoid repetition and ensure the hearing proceeds efficiently.
Participants
18The following individuals submitted requests for Participant Status in advance of the CMC: Andrea Bazzard; Jim Hedges; Steve Sickle; Gerald and Barbara Wiersma, Clay Warner and Linda Howell. On consent, the Tribunal granted their requests. The Participants are reminded that they are required to submit their written statements to the Tribunal (copying all other Parties) by a deadline to be specified in a future Procedural Order governing the proceedings, unless they wish for the Tribunal to consider the detail provided in their Participant Request form as their written statement for the purposes of the hearing.
HEARING DATES
19Counsel for the Appellant requested the Tribunal set the matter down for a three to four week hearing in late 2023, noting that CSG, Losani and Empire had already provided him with a list of their issues for the hearing.
20Counsel for the County objected to the setting of hearing dates, submitting that it would be inappropriate to do so given the in-force ICBL. She urged the Tribunal to instead schedule a second CMC after July 26, 2023, which is the date the ICBL is set to expire.
21She also drew the Tribunal’s attention to the fact that the County raised the same issue with setting hearing dates at the first CMC in CSG’s appeal (OLT-22-004216) held on January 17, 2023, before a Panel differently constituted. The Panel scheduled a second CMC in that matter for March 24, 2023 in order to allow the Parties to develop an issues list. The Panel also invited the County to bring a motion if it wished to do so with respect to its position on setting hearing dates to be heard at that second CMC. It was submitted that the County intends to argue the motion at the CSG CMC and as such, scheduling hearing dates at this time in the present appeal could prejudice the County.
22In relation to the present matter, the Tribunal also declined to set hearing dates and ordered a second CMC, primarily due to the addition of CSG, Empire, Losani and Riverview as Parties to the proceeding and the need to provide all Parties time to collaborate on a detailed and specific list of issues to be argued at the hearing.
23Further, in recognition of the concern raised by the County with respect to the potential for the setting of hearing dates in this matter to prejudice the County’s anticipated motion in OLT-22-004216, it was considered appropriate to order a second CMC out of an abundance of caution to ensure fairness and consistency in decision making. In light of this concern, the Tribunal suggested scheduling the next CMC 60-65 days after the March 24, 2023 CSG CMC to allow sufficient time for a decision to be rendered on the County’s anticipated motion.
24However, counsel for the Appellant suggested the Tribunal consider an alternative date for the scheduling of the second CMC, in an effort to address concerns of efficiency and consistency in decision making as well as a timely resolution to the matter of whether it is appropriate to set hearing dates in light of the in-force ICBL. It was suggested that the second CMC be scheduled to be heard together with the CSG CMC (OLT-22-004216) and possible motion on March 24, 2023 and to similarly invite the County to bring a motion if it wishes to do so to argue its position on setting hearing dates in this matter on the same date. Counsel for the County objected, noting that she would have to seek instructions to bring a second motion, and in order to do so would need to prepare a brief and have the matter added to the agenda for an upcoming Council meeting.
25The Tribunal agrees that the approach suggested by counsel for Stremma addresses the concerns of the County with respect to prejudice and is an efficient way to proceed. Despite the protestations of counsel for the County, the Tribunal is of the view that there is ample time for her to obtain instructions prior to the next CMC, which is to be heard together with OLT-22-004216 on Friday, March 24, 2023 at 10 a.m. by video hearing.
26If the County wishes to bring a motion with respect to the issue of whether hearing dates should be scheduled for the present appeal while the ICBL is in force and effect, the motion shall be heard at the next CMC and the County shall serve and file materials in accordance with the Tribunal’s Rules of Practice and Procedure.
27For clarity, the next hearing event in this matter is to be heard together with OLT-22-004216 only for the sake of efficiency and fairness, considering the potential for there to be overlapping issues and argument on motions which may be brought by the County at that time. The matters remain separate and are not to be joined for further hearing events unless otherwise ordered by the Tribunal.
28The hearing is scheduled to proceed by video on Friday, March 24, 2023 at 10 a.m.
29Parties 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://meet.goto.com/348282861 Access Code: 348-282-861
30Parties 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.
31Persons 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: (Toll Free): 1 888 299 1889 or +1 (647) 497-9373. The access code is 348-282-861.
32Individuals 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.
PROCEDURAL ORDER/ISSUES LIST
33A draft Procedural Order (“PO”) and Issues List which included the issues of CSG was submitted in advance of the CMC. Revisions to the draft Issues List are required, in light of the granting of Party Status to Losani, Empire and Riverview, the concerns raised by the Appellant’s counsel with respect to some overly broad issues advanced by Losani/Empire and the broad categories of issues advanced by the County. All Parties are expected to collaborate on a detailed and specific list of issues to be argued at the hearing which avoids repetition.
34The Parties are directed to submit the revised draft PO and detailed Issues List no later than March 17, 2023 and, regardless of the County’s position on setting hearing dates and the possibility of the County bringing a motion for directions on same, all Parties are expected to come to the next CMC prepared to schedule hearing dates should the Tribunal find it appropriate to do so at that time.
OTHER MATTERS
35Recognizing that it is somewhat early in the process and that new Parties have been added, the Tribunal canvassed opportunities for settlement, including the use of Tribunal-assisted mediation. The Parties advised that the matter is not at a stage where settlement discussions can take place but noted they are aware of the availability of Tribunal-assisted mediation.
36The Tribunal inquired as to whether there were any other matters to be addressed which might assist in the fair, just and expeditious resolution of this matter. The Parties indicated there were none.
ORDER
37The Tribunal orders that:
a) CSG Limited Partnership; Losani Homes (1998) Ltd.; Empire Communities (St. George) Ltd.; and Riverview Highlands (St. George) Holdings Ltd. are Parties to the proceeding;
b) the following individuals are Participants to the proceeding: Andrea Bazzard; Jim Hedges; Steve Sickle; Gerald and Barbara Wiersma; Clay Warner; and Linda Howell;
c) a second Case Management Conference will take place by video hearing on Friday, March 24, 2023, at 10 a.m.
d) should the County of Brant wish to bring a motion for directions with respect to whether it is appropriate to set hearing dates in light of the in-force interim control by-law, the motion shall be heard on March 24, 2023 and materials must be served and filed in accordance with the Tribunal’s Rules of Practice and Procedure;
e) the Parties shall submit a draft Procedural Order including a detailed Issues List to the Tribunal on or before March 17, 2023;
f) there will be no further notice and this Member is not seized.
“S. Braun”
S. Braun
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.