Cider Park Limited Partnership v. Brant (County), 2023 CanLII 69402

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 24, 2023

CASE NO(S).: OLT-22-004569

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

Applicant and Appellant: Cider Park Limited Partnership

Subject: Application to amend the Zoning By-law – Neglect to make a decision

Description: To permit the development of 77 townhouses

Reference Number: ZBA3-22-RC

Property Address: 23 Beverly Street East, St. George

Municipality/UT: County of Brant

OLT Case No.: OLT-22-004569

OLT Lead Case No.: OLT-22-004569

OLT Case Name: Cider Park Limited Partnership v. Brant (County)

Heard: June 6, 2023 by video hearing (“VH”)

APPEARANCES:

Parties

Counsel

Cider Park Limited Partnership

Jessica De Marinis Jennifer Meader (in absentia)

County of Brant

Jyoti Zuidema Cheryl Glassford (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY ASTRID J. CLOS ON JUNE 6, 2023 AND ORDER OF THE TRIBUNAL

1This was a Case Management Conference (“CMC”) for an appeal brought pursuant to s. 34(11) of the Planning Act, due to the failure of council to make a decision within the statutory timeframe for a Zoning By-law Amendment (“ZBL”) related to the property municipally addressed as 23 Beverley Street East (St. George) (‘Subject Property”) located in the County of Brant (“County”).

2The purpose of the ZBL is to permit 77 townhouse units, with a private access road, visitor parking and landscape areas. The proposal includes a Holding Zone conditional on capacity being available in the municipal wastewater treatment plant.

3There is an existing industrial building located on the property which is proposed to be demolished. The Subject Property has approximately 27.5 metres of frontage on Beverly Street East and an area of approximately 1.9 hectares.

4The Affidavit of Service sworn on May 17, 2023, was entered as Exhibit 1.

5In response to the notice, two requests for Participant status were received from Ralph M. Paling and Virga Baltrusiunas. The Tribunal found that these requests were based on an established interest in the appeal and raised genuine land use issues. On consent of the Parties, the Tribunal granted Participant status to Ralph M. Paling and Virga Baltrusiunas

6The Parties submitted a draft Procedural Order (“PO”) and Issues List prior to the CMC. A further updated draft PO was submitted with the consent of the Parties on June 30, 2023. (Attachment 1). The Tribunal has reviewed the draft PO and finds it satisfactory.

7The Parties jointly requested a Merit Hearing for this matter which they estimated would require five (5) days. The Tribunal scheduled a five-day hearing commencing on Monday, December 11, 2023, at 10 a.m. as a VH.

8Parties 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

9Parties 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

10Persons 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.

11Individuals 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.

12The Parties advised that they are in settlement discussions which, if successful, would lead them to request that the first day of the Merit Hearing be converted to a Settlement Hearing. The Tribunal requested that the Parties advise the Case Coordinator as soon as it is known that a settlement has been reached to allow the unneeded hearing dates to be released from the Tribunal calendar. Hearing dates are a scarce resource that must be used effectively by the Tribunal.

13The Parties were reminded of the availability of Tribunal-led mediation and that they may schedule this at their convenience through the Case Coordinator.

ORDER

14THE TRIBUNAL ORDERS that,

a. Participant status is granted to Ralph M. Paling and Virga Baltrusiunas,

b. the Procedural Order appended as Attachment 1 is approved,

c. a five-day hearing is scheduled commencing on Monday, December 11, 2023 at 10 a.m. as a VH.

15This Member is not seized.

16No further notice will be provided.

“Astrid J. Clos”

ASTRID J. CLOS

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.

ATTACHMENT 1

CASE NO(S).: OLT-22-004569

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

Applicant and Appellant: Cider Park Limited Partnership

Subject: Application to amend the Zoning By-law – Neglect to make a decision

Description: To permit the development of 77 townhouses

Reference Number: ZBA3-22-RC

Property Address: 23 Beverly Street East, St. George

Municipality/UT: County of Brant

OLT Case No.: OLT-22-004569

OLT Lead Case No.: OLT-22-004569

OLT Case Name: Cider Park Limited Partnership v. Brant (County)

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 Monday, December 11, 2023 at 10:00 a.m. through video link https://global.gotomeeting.com/join/914098901 When prompted, enter the code 914-098-901

3. The parties’ initial estimation for the length of the hearing is 5 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 2. 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 3 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 September 29, 2023 and in accordance with paragraph 22 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.

10. Expert witnesses in the same field shall have a meeting on or before October 13, 2023 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 October 20, 2023.

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 October 27, 2023 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 22 below.

14. On or before October 27, 2023 a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 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 November 6, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before November 24, 2023 the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. On or before November 17, 2023, the parties shall provide copies of their reply witness statements and expert’s reply witness statements to the other parties and to the Tribunal case co-ordinator in accordance with paragraph 22 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 December 1, 2023.

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 December 1, 2023 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. 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.

23. 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.

This Member is [not] seized.

So orders the Tribunal.

ATTACHMENT 1

PARTIES

1. Cider Park Limited Partnership Turkstra Mazza Associates 15 Bold Street Hamilton, ON L8P 1T3 Jennifer Meader Tel: 905.529.3476 Email: jmeader@tmalaw.ca

Jessica De Marinis Tel: 905.529.3476 Email: jdemarinis@tmalaw.ca

2. County of Brant 26 Park Avenue Burdford, ON N0E 1A0 Jyoti Zuidema Tel: 519.449.2451 Email: jyoti.zuidema@brant.ca

Cheryl Glassford Tel: 519.449.2451 Email: cheryl.glassford@brant.ca

PARTICIPANTS

1. Ralph M. Paling Tel: 519.732.7256 Email: rmpaling56@gmail.com

2. Virga Baltrusiunas Tel: 905.979.8985 Email: vbaltrusiunas@sympatico.ca

ATTACHMENT 2

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the OLT or any Party that such issue, or the manner in which the issue is expressed, is either appropriate or relevant to the determination of the OLT at the hearing. The extent to which these issues are appropriate or relevant to the determination of the OLT at the hearing will be a matter of evidence and argument at the hearing. 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 OLT having jurisdiction over such matters in each circumstance. Accordingly, no Party shall advance an issue not identified on the Issues List without leave of the OLT. Issues may be scoped, refined or removed through negotiation and/or resolution; however, additional new Issues cannot be added without leave of the Tribunal.

ISSUES LIST

1. Are the applications consistent with the PPS 2020? Specifically in regard to the following policies:

   1. 1.1.1(b), 1.1.1(c), 1.1.1(d), 1.1.1(e), 1.1.1(f) 1.1.1(g)
   2. 1.1.3.1
   3. 1.1.3.2(a), 1.1.3.2(b), 1.1.3.2(e)
   4. 1.1.3.4
   5. 1.1.3.7
   6. 1.4.3(b) & 1.4.3(c)
   7. 1.5.1(a), 1.5.1(b)
   8. 1.6.1(b)
   9. 1.6.6.2
   10. 1.6.6.6
   11. 1.6.6.7(a) – 1.6.6.7(f)

2. Do the applications conform to the Growth Plan for the Greater Golden Horseshoe (2020)? Specifically in regard to the following policies:

   1. 2.2.1.2(a), 2.2.1.2(c), 2.2.1.2(d)
   2. 2.2.1.4(a) – 2.2.1.4(g)
   3. 2.2.2.1(a)
   4. 2.2.2.3 (a) – 2.2.2.3.(f)
   5. 3.2.6.2(a) & 3.2.6.2(b)
   6. 3.2.7.2(a) – 3.2.7.2(d)

3. Do the applications conform to the County of Brant Official Plan (2012)? Specifically in regards to the following policies:

   1. 1.11.2.2.2(a), 1.11.2.2.2(c), 1.11.2.2.2(e),1.11.2.2.2(f), 1.11.2.2.2(g) & 1.11.2.2.2(i)
   2. 1.11.2.4.2(a), 1.11.2.4.2(c), 1.11.2.4.2(d) - 1.11.2.4.2(f)
   3. 1.11.2.5.2(a), 1.11.2.5.2(c), 1.11.2.5.2(d), 1.11.2.5.2(f) – 1.11.2.5.2(h)
   4. 2.2.3.1.1(c), 2.2.3.1.1(d), 2.2.3.1.1(g), 2.2.3.1.1(h), 2.2.3.1.1(i), 2.2.3.1.1(j), 2.2.3.1.1(k)
   5. 2.2.5.1(d)
   6. 2.2.5.2(a) – 2.2.5.2(i)
   7. 2.4.3(a), 2.4.3(e), 2.4.3(g)
   8. 2.7.4.2(a)
   9. 3.4.2(a) – 3.4.2(e)
   10. 3.4.3(a)
   11. 3.4.5(a) – 3.4.5(e)
   12. 5.2.1(a), 5.2.1(d), 5.2.1(e)
   13. 5.2.2(a), 5.2.2(c), 5.2.2(e) & 5.2.2(h)
   14. 5.2.3.1(a) & 5.2.3.1(b)
   15. 5.2.3.2(a), 5.2.3.2(c) - 5.2.3.2(h)

4. Do the applications satisfy the technical requirements such that the OLT can be confident that the proposal represents development which is in the public interest and represents good and proper planning?

5. Have the criteria under Section 34(10) of the Planning Act been properly addressed?

6. Have the recommendations of all technical studies, reports and drawings been implemented?

7. Will the County of Brant have servicing capacity for the subject lands once the St. George Water Pollution Control Plant is complete?

8. Is this development satisfying the servicing hierarchy once capacity is available?

9. Are the site-specific zoning provision appropriate?

10. Is sufficient visitor parking being provided?

11. Is sufficient parking being provided for each unit?

12. Is appropriate screening/ buffering being provided for the surrounding uses?

13. Is the rezoning application pre-mature?

14. Has the record of site condition been accepted?

15. Is the proposed sanitary flow of 1.77 L/s appropriate?

16. Is the use of a holding provision for the subject lands appropriate?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Cider Park Limited Partnership
2. County of Brant
3. Cider Park Limited Partnership in Reply

ATTACHMENT 4

SUMMARY OF KEY DATES