Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
May 23, 2023
CASE NO(S).:
OLT-22-004674
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
Valrose Paris Limited
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
Zoning By-law amendment to facilitate the development of a subdivision
Reference Number:
ZBA35-22-SL
Property Address:
848 Watt’s Pond Road
Municipality:
County of Brant
OLT Case No.:
OLT-22-004674
OLT Lead Case No.:
OLT-22-004674
OLT Case Name:
Valrose Paris Limited v. Brant (County
Heard:
May 5, 2023 by video hearing
APPEARANCES:
Parties
Counsel
Valrose Paris Limited
Russell D. Cheeseman
County of Brant
Jyoti V. Zuidema
Rochelle Welshman
Cheryl Glassford
MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON MAY 5, 2023, AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is the first Case Management Conference (“CMC”) with respect to an appeal under section 34(11) of the Planning Act by Valrose Paris Limited (“Applicant”) from the failure of the County of Brant (“County”) to make a decision on an application for a Zoning By-Law Amendment (“Application”) with respect to lands municipally known as 848 Watt’s Pond Road in the County (“Subject Property”). The purpose of the Application is to facilitate the development of a subdivision.
2This matter has a somewhat long history. Previously, the Applicant had submitted a ZBA Appeal and a Draft Plan of Subdivision (“PoS”) pertaining to the Subject Property. The County and the Applicant reached a settlement on a proposed ZBA, draft PofS, and conditions of draft plan approval. The settlement was presented to the Tribunal, known as LPAT at the time, and was approved by Member Bryan W. Tuckey, as detailed and Ordered in his Decision dated November 12, 2020, which approved the ZBA, Draft PofS, and Conditions of draft plan approval. The Tribunal file number for that matter was PL171016.
3Since Member Tuckey’s Decision, the Applicant has been working to clear the Conditions of Final Approval for the PoS. During this process and the related red-line revision to the Plan of Subdivision, it was determined that the proposed development would require an additional Zoning By-law Amendment to reduce the minimum exterior side-yard setback requirement from 4.5 metres (“m”) to 3.0 m; and to increase the maximum permitted height from 10.5 m to 11.0 m within any portion of the Subject Property zoned R1-54. Hence, the Applicant filed the subject appeal with the Tribunal.
4At the CMC, the Tribunal canvassed Counsel who confirmed that there was no issue with the service of the Notice of CMC. The Tribunal is in receipt of the Affidavit of Service of Darlene Hornsby, sworn March 22, 2023, which was marked as Exhibit 1. As such, no further notice is required.
PARTY/PARTICIPANT STATUS REQUESTS
5The Tribunal was tasked with adjudicating a number of requests for Status.
6A Party Status Request was received from Angie Crichton, who raised concerns about the negative impact of the development on the environment, such as the Blue Heron population. Ms. Crichton was not represented and the Tribunal provided her with a fulsome explanation of the difference between Party status and Participant status. Ms. Crichton then asked to change her Party status request to a Participant status request instead. After a review of her request, and with no objection from the Parties, the Tribunal granted Participant status to Ms. Crichton.
7Prior to and at the CMC, the Tribunal received Participant Status requests from the following:
Fernanda Albert
Susan Buck
Mary Taylor
Michael Reilly
8The above-noted raised concerns about the effect of the development on the environment, as well as the impact of the proposed built form on their homes (such as with respect to sunlight and privacy). The Tribunal found that the individuals who had requested Participant Status had an interest in the matter and would assist the Tribunal in understanding the potential impacts of the Application on the local community. Moreover, the Parties did not object to any of the requests. As such, the Tribunal granted Participant Status to those listed above.
DRAFT PROCEDURAL ORDER AND ISSUES LIST
9The Parties provided a draft Procedural Order (“PO”) and Issues List (“IL”) prior to the CMC. However, they advised that the issues listed remained in draft form and the Parties intended to continue their discussions prior to finalizing this IL. Moreover, the Parties advised that they may be able to resolve some of the issues and wanted to have further discussions in that regard.
10It was determined that a second CMC would be beneficial, prior to which the Parties could engage in discussions regarding the issues, scoping them or attempting to resolve some or all of them. As a result, a second CMC was scheduled. If the Parties are able to resolve all of the issues in dispute, the second CMC will proceed as a Settlement Hearing. If not, the second CMC will provide an opportunity to finalize the PO and IL.
11Some minimal discussion took place with respect to the issues currently listed on the draft IL. Specifically, the Tribunal directed that the Parties word the issues in such a way to clarify that they pertained to the applicable legislative tests and were within the Tribunal’s jurisdiction. The Parties indicated that they would clarify the wording of the issues, as well as their applicability.
12The Applicant undertook to revise and re-submit, on or before November 13, 2023, for the Tribunal’s approval, a revised PO and IL in accordance with the Tribunal’s directions and any agreements made amongst the Parties.
MEDIATION AND SETTLEMENT
13The Tribunal raised the issue of opportunities for settlement discussions, including the use of Tribunal-assisted mediation. The Parties advised that both were open and amenable to settlement discussions and intended to engage in such discussions amongst themselves.
14The Parties are directed to advise the Tribunal in writing should they reach a settlement with respect to some or all of the issues prior to the hearing and, should they wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator for those services.
SECOND CMC
15The Parties indicated that they intended to further scope and discuss the nature of the issues pertaining to this matter, as well as attempt to resolve some of them. As such, a second CMC has been scheduled, wherein the IL can be finalized. In the alternative, if the Parties are able to reach a settlement in this matter, a Settlement Hearing can take place on this date.
16The Tribunal scheduled a Second CMC to take place on Tuesday, November 21, 2023 at 10:00 a.m. Parties 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.
17The event is scheduled to proceed by video as follows:
https://global.gotomeeting.com/join/692665589
Access Code: 692-665-589
18Persons 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 as indicated above.
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
20Individuals 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.
HEARING DATE
21The Parties requested that, based on the draft PO and IL that was submitted, a Hearing for this matter be scheduled, to allow them to have a timeline with respect to the additional work required on this matter, such as the completion of an Environmental Impacts Assessment (“EIS”). Based on the nature of what remained to be done, it was found that a one-year timeline in advance of the Hearing was prudent, to allow the EIS to take the multiple seasons of the year into consideration. With respect to the duration of the Hearing, given the number of potential issues and witnesses, the Tribunal agreed that a ten (10) day hearing was sufficient.
22Accordingly, a video hearing was scheduled to commence at 10:00 a.m. on Monday, April 15, 2024 until Friday, April 26, 2024 for ten (10) days. The Tribunal directed the Parties to advise the Tribunal at the second CMC on November 21, 2023 as to whether all the dates scheduled for the Hearing were still needed, or if some could be released from the calendar.
23On Monday April 15, 2024, Parties 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.
24The Hearing is scheduled to proceed by video as follows:
https://global.gotomeeting.com/join/344779885
Access Code: 344-779-885
25Persons 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 as indicated above.
26Parties 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
27Individuals 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
28THE TRIBUNAL ORDERS as follows:
a. The following are now Participants in this proceeding:
i. Angie Crichton
ii. Fernanda Albert
iii. Susan Buck
iv. Mary Taylor
v. Michael Reilly
b. A Second CMC is scheduled to take place virtually on Tuesday, November 21, 2023, at 10:00 a.m., and one (1) day has been set aside. The Applicant is to provide a draft Procedural Order and Issues List by November 13, 2023.
c. If the Parties settle this matter, the scheduled date of November 21, 2023 will proceed as a Settlement Hearing.
d. The hearing in this matter will commence on Monday, April 15, 2024 at 10:00 a.m., by video conference, and ten (10) days have been set aside.
29There will be no further notice.
30The Member is not seized but may be contacted through the Case Coordinator should procedural issues arise.
“Bita M. Rajaee”
BITA M. RAJAEE
MEMBER
Ontario Land Tribunal
Website: www.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.