Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 14, 2023
CASE NO(S).: OLT-22-004281
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: AnnaMaria Valastro
Applicant: Al Faez Real Estate Corp. c/o Westdell Development Corp.
Subject: Zoning By-law Amendment Z.-1-223040
Description: To permit the development of an eight (8) storey, 57-unit mixed-use building
Reference Number: Z.-1-223040, Z-9367
Property Address: 599-601 Richmond Street
Municipality: City of London
OLT Case No.: OLT-22-004281
OLT Lead Case No.: OLT-22-004281
OLT Case Name: Valastro v. London (City)
PROCEEDING COMMENCED UNDER subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: City of London
Request by: Al Faez Real Estate C/O Westdell Development Corp.
Request for: Request for Dismissal of Appeal
Heard: February 15, 2023 by video hearing
APPEARANCES:
| Parties | Counsel* |
|---|---|
| Al Faez Real Estate Corp. c/o Westdell Development Corp. | Analee Baroudi* |
| City of London | Aynsley Hovius* |
| AnnaMarie Valastro | Self-represented |
MEMORANDUM OF ORAL DECISION DELIVERED BY M.A. SILLS ON FEBRUARY 15, 2023 AND ORDER OF THE TRIBUNAL
1The Corporation of the City of London (“City”) together with Al Faez Real Estate Corp. c/o Westdell Developemet Corp. (“Moving Parties”), have jointly brought a motion seeking an Order of the Tribunal dismissing the appeal by AnnaMaria Valastro (“Respondent”) pursuant to s. 34(25)(1)(i), 34(19.5) of the Planning Act and s. 19(1)(c) of the Ontario Land Tribunal Act; their costs of the motion; and such further and other relief as counsel may request and the Tribunal deems just.
2The materials before the Tribunal on the motion included:
Affidavit of Service of the Motion (Exhibit 1); Joint Motion Record of the Moving Parties Books 1 and 2 (Exhibits 2 and 3, respectively), which among other documentary materials contains the Affidavit, Curriculum Vitae, and Acknowledgement of Expert’s Duty of Maneesh Poddar sworn January 27, 2023; the Affidavit, Curriculum Vitae, and Acknowledgement of Expert’s Duty of Alanna Riley sworn January 27, 2023; Legal Submissions and Joint Book of Authorities of the City of London and Al Faez Real Estate Corp. c/o Westdell Development Corp. (Exhibit 4).
Response to the Motion by the Respondent (Exhibit 5).
Preliminary Matter
3The Tribunal requires a party, or their legal counsel/representative, to appear on-camera during a video hearing. When instructed by the Tribunal to turn on her camera, the Respondent stated that hers was an older model computer and did not have a camera. She also indicated that she would have to go to the local library and use one of the computers there if it is going to be necessary for her to appear on camera.
4There being no objection by the Parties opposite, the Tribunal proceeded to hear arguments on the motion, but cautioned the Appellant that for any future video hearing she will be required to appear on camera.
Background to the Motion
5Al Faez Real Estate Corp. c/o Westdell Development Corp., (“Westdell”) owns the lands municipally known as 599-601 Richmond Street in the City of London (“subject lands”). The subject lands are located within the Primary Transit Area, the Built Boundary, and a Protected Major Transit Station Area (“PMTSA”).
6Westdell applied for a Zoning By-law Amendment (“ZBA”) to permit the development of an eight-storey, 57 unit residential building with ground floor commercial space for a total maximum density of 519 units per hectare (“UPH”) on the subject lands.
7The City approved the application as a “bonus zone” in accordance with former s. 37 of the Planning Act. In exchange for increased height and density above the permitted maximum, the services, facilities and matters to be provided by Westdell include: a high standard of design, four affordable housing units, and special provisions to “lock in” the design and site layout.
8Ms. Valastro, the “Appellant”, appealed the passing of the ZBA. Ms. Valastro lives approximately 450 metres from the subject lands.
Submissions by the Moving Party
9The Moving Party submits that the Respondent appealed the ZBA on a series of general and vague claims that the proposed development is not appropriate for the area. The Respondent has also confirmed through correspondence that she will not be calling a land use planner to give evidence at a future hearing.
10The Moving Party submits that there are no land use planning grounds being raised by the Appellant upon which the Tribunal could allow the appeal.
11A series of legal principles have evolved out of Tribunal case law for motions to dismiss, including that:
a. It is not enough to simply deploy planning language or raise planning issues;
b. It is not enough to raise apprehensions;
c. The onus is on the appellant to demonstrate sufficient and legitimate planning grounds and prospect of evidence that could sustain their appeals at the hearing;
d. The existence of fears, concerns or beliefs is not sufficient to sustain an appeal; and
e. Parties are expected to begin preparations and be ready to proceed at any time once an appeal is launched;
12The Moving Party maintains the appeal raises only apprehensions, couched in planning language without reference to specific policy. The onus of an appellant has not been met, and no issues have been identified that warrant a hearing.
13Moreover, appeals over parts of a By-law that establish uses, densities, and height within PMTSAs are prohibited in order to allow the municipality to strategically plan its investment regarding higher order transit and focus intensity in critical areas.
14Section 34(19.5) of the Planning Act prohibits appeals with respect to the parts of a by-law that establish use, maximum density, and maximum height for lands that are located in a PMTSA. The By-law establishes density and height in exchange for a package of bonusable items, including the provision of affordable housing units.
15Alternatively, the Moving Party submits that the Appellant has not identified any grounds upon which the Tribunal could allow the appeal in whole or in part, and in accordance with s. 19(1)(c) of OLTA, there is no reasonable prospect of success.
16Furthermore, given that the appeal seeks to challenge the height, use and density of the proposed development, and the Tribunal has no jurisdiction over height, use and density because the subject lands are located within a PMTSA, the appeal should be dismissed on the basis that there is no reasonable probability that it will be successful.
Response to the Motion
17The Respondent acknowledged that many of her concerns with the intended development are not land use planning issues. However, it is her opinion that the voices of the local residents aren’t being heard.
18Ms. Valastro does acknowledge that the proposal, as an infill development, is very desirable. In fact, she asserted that the North Talbot Community is supportive of infill development; however, it is opposed to infill development that stretches the rules so far that it perceives the infill development as being erroneous to the basic principles or intent of the 1989 Official Plan and the London Plan. In this case, the overarching and neighbourhood specific policy is being ignored in favour of higher densities. The proposed zoning amendment is perceived as extreme, and ignores important requirements that better integrate it into the community.
19Overall, Ms. Valastro takes the position that the development proposal is too dense for the lot and cannot comply with neighbourhood policies or the Provincial Policy Statement directive for environmental health.
Disposition
20The Tribunal’s jurisdiction to dismiss an appeal without a hearing is established in s. 34(25) of the Planning Act, as follows:
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:
- 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,
ii. The appeal is not made in good faith or is frivolous or vexatious,
iii. The appeal is made only for the purpose of delay,
iv.The appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.
The appellant has not provided written submissions for the appeal under subsection (24) or (36),
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,
The appellant has not paid the fee charged by the Tribunal,
The appellant has not responded to a request by the Tribunal for further information within the time specified by the Tribunal.
21The Tribunal need only find that one of these criteria are not met as grounds to dismiss the appeal.
22In addition, s. 19(1) of the Ontario Land Tribunal Act (“OLTA”) provides the authority for the Tribunal to dismiss an appeal without a hearing if it is of the opinion that the proceeding has “no reasonable prospect of success”.
23The Tribunal understands that the Respondent is not an expert in land use planning and is relatively inexperienced in land use planning matters and the Tribunal’s appeal processes. Although Ms. Valastro may see herself as the representative of other residents of the community, she in fact is the sole Appellant and represents only herself in this appeal.
24In bringing an appeal before the Tribunal it is necessary for an Appellant to put forward a legitimate evidentiary case to support the appeal. Ms. Valastro is self-represented and apparently does not intend to call any independent expert evidence to support the appeal. Although she did express the view that it would be appropriate to call a particular employee of the City’s forestry department and/or the City employee that oversees minor variance applications as witnesses, she has not sought summonses for either of these individuals. In any event, it is not clear what evidence these individuals can offer to assist the Tribunal in its deliberations.
25The Tribunal is mindful that by allowing an appeal to proceed to a full hearing whereas there is no likelihood that the appeal will be upheld is patently unfair to the Applicant and the municipality, both from the perspective of delaying the project and the incurring of additional costs. In the circumstances, the Tribunal has not been satisfied there is a reasonable probability that the appeal will meet with success, and therefore, the holding of a hearing on the merits is not justifiable.
26The Tribunal orders that the appeal is dismissed.
27The Parties shall bear their own costs of the motion.
“M.A. Sills”
M.A. SILLS VICE-CHAIR
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.