Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 02, 2023

CASE NO(S).: OLT-23-000042

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 15 Market Street Corp.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To incorporate the applicable woodlands policies to the lands for future development

Property Address: Plan 296 Park PT Lot 13 & 15

Municipality/UT: Town of Saugeen Shores/County of Bruce

Reference Number: L-2020-009

OLT Case No.: OLT-23-000042

OLT Lead Case No.: OLT-23-000042

OLT Case Name: 15 Market Street Corp. v. Saugeen Shores (Town)

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

Applicant and Appellant: 15 Market Street Corp.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To rezone the property to facilitate development of a Plan of Subdivision on the lands

Property Address: Plan 296 Park PT Lot 13 & 15

Municipality/UT: Town of Saugeen Shores/County of Bruce

Reference Number: Z-2020-014

OLT Case No.: OLT-23-000043

OLT Lead Case No.: OLT-23-000042

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 15 Market Street Corp.

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: To permit development of 12 detached dwelling blocks and two apartment blocks

Property Address: Plan 296 Park PT Lot 13 & 15

Municipality/UT: Town of Saugeen Shores/County of Bruce

Reference Number: S-2020-001

OLT Case No.: OLT-23-000044

OLT Lead Case No.: OLT-23-000042

Heard: July 26, 2023 by Video Hearing (“VH”)

APPEARANCES:

Parties	Counsel*/Representative
15 Market Street Corp.	Scott Galajda*
Town of Saugeen Shores	Tammy Grove*, Monica Poremba*
County of Bruce	Jack Van Dorp

MEMORANDUM OF ORAL DECISION DELIVERED BY S. BOBKA ON JULY 26, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the second Case Management Conference (“CMC”) regarding appeals pursuant to sections 22(7), 34(11) and 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”) by 15 Market Street Corp. (“Applicant”) against the refusal or neglect of the Town of Saugeen Shores (“Town”) to make a decision on applications for an Official Plan Amendment (“OPA”), a Zoning By-law Amendment (“ZBA”) and a Draft Plan of Subdivision (“Draft Plan”) in relation to the property located at Plan 296 Park PT Lot 13 & 15 (“Subject Property”).

2At the first CMC, the Tribunal confirmed that Notice of the proceedings had been properly given and granted Participant status to Pat Surman. The Tribunal also scheduled a nine (9)-day Hearing of the Merits to begin Tuesday, November 14, 2023 at 10 a.m. by Video Hearing.

OVERVIEW

3The proposed amendment to the Town’s Official Plan (“OP”) is seeking to apply the woodlands policies of Section 2.6.8.2 a), known as Special Policy Area #4, to the lands. If approved, the effect of the OPA would permit development on portions of the land subject to certain criteria, including implementation of the recommendations of the Environmental Impact Study and Tree Retention Plan, preserving at least 30 percent of the tree cover.

4The proposed amendment to the Town’s Zoning By-law (“ZBL”) is seeking to rezone the lands from Residential First Density (R1) and Planned Development (PD) to Residential Second Density (R2), Open Space (OS) and Environmental Protection (EP), Residential Fourth Density (R4) and Residential Fourth Density Special (R4-X). A special provision is proposed on Block 15 to permit a frontage of 13.48 metres (“m”), whereas the R4 zone requires 30 m.

5The application is for a Draft Plan comprised of 12 detached dwelling lots, two apartment blocks (containing 150 units in four buildings) and one block for stormwater management, trails and conservation purposes.

Update

6Counsel for the Parties provided an update that while settlement discussions had been on-going, a settlement had not been reached. Ms. Grove also highlighted that there had been a change in representation and that the Tribunal had been properly notified of the cessation of representation as she and Ms. Poremba no longer act for the County of Bruce (“County”). Mr. Van Dorp, the Manager of Land Use Planning for the County, was in attendance and confirmed this change.

7The Tribunal reminded the Parties of the availability of Tribunal-led mediation and advised that, should they wish to pursue this option, they were to contact the Case Coordinator to begin the process.

DRAFT PROCEDURAL ORDER

8In advance of the CMC, the Tribunal received the draft Procedural Order (including Issues List) on consent from the Parties for its review. Counsel for the Town provided a revised version, agreed to by all Parties, which indicated the change in representation. Subject to two additional minor corrections, the Tribunal approved the Procedural Order (including Issues List) and ordered that it will govern the proceedings.

9The Tribunal questioned whether the Parties’ estimate of the required number of hearing dates had changed now that the Issues List had been finalized. Counsel for the Applicant and the Town both indicated that the full nine days were still required at this point, but anticipated that following the experts’ meeting, the required time might be reduced. All Parties agreed to notify the Tribunal at the earliest opportunity if all the hearing days were not required.

ORDER

10The Tribunal Orders that the Procedural Order (including Issues List), included as Schedule 1 shall govern the proceedings.

“S. Bobka”

S. BOBKA 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.

SCHEDULE 1

CASE NO(S).: OLT-23-000042

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 15 Market Street Corp.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To incorporate the applicable woodlands policies to the lands for future development

Property Address: Plan 296 Park PT Lot 13 & 15

Municipality/UT: Town of Saugeen Shores/County of Bruce

Reference Number: L-2020-009

OLT Case No.: OLT-23-000042

OLT Lead Case No.: OLT-23-000042

OLT Case Name: 15 Market Street Corp. v. Saugeen Shores (Town)

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

Applicant and Appellant: 15 Market Street Corp.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To rezone the property to facilitate development of a Plan of Subdivision on the lands

Property Address: Plan 296 Park PT Lot 13 & 15

Municipality/UT: Town of Saugeen Shores/County of Bruce

Reference Number: Z-2020-014

OLT Case No.: OLT-23-000043

OLT Lead Case No.: OLT-23-000042

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 15 Market Street Corp.

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: To permit development of 12 detached dwelling blocks and two apartment blocks

Property Address: Plan 296 Park PT Lot 13 & 15

Municipality/UT: Town of Saugeen Shores/County of Bruce

Reference Number: S-2020-001

OLT Case No.: OLT-23-000044

OLT Lead Case No.: OLT-23-000042

PROCEDURAL ORDER

The Tribunal Orders that:

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 Tuesday, November 14, 2023 (date) at 10 a.m. and end on Friday, November 24, 2023 by Video Conference Software, GoToMeeting. The Video Conference details are as follows:

Tuesday, November 14, 2023 at 10 a.m. (nine-day hearing)

GoTo Meeting: https://meet.goto.com/278736685

Access code: 278-736-685

Audio-only line: Toll-Free 1-888-455-1389 or +1 (647) 497-9391

Audio-only access code: 278-736-685

3. The parties’ initial estimation for the length of the hearing is 9 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 Attachment 4 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. 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

8. 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 Wednesday, August 2, 2023 (104 days prior to the start of the hearing ) 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.

9. Expert witnesses in the same field shall have a meeting on or before Tuesday, August 22, 2023 (84 days prior to the hearing date) 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 Tuesday, September 5, 2023 (70 days prior to the start of the hearing).

10. 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 12 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.

11. 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 12 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 12 below.

12. On or before Tuesday, October 3, 2023 (42 days prior to the start of the hearing), 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 21 below.

13. On or before Tuesday, October 3, 2023 (42 days prior to the start of the hearing), a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 21 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

14. On or before Tuesday, October 10, 2023 (35 days prior to the start of the hearing) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

15. On or before Tuesday, October 24, 2023 (21 days prior to the start of the hearing), the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 21 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 21 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, November 3, 2023 (11 days prior to the start of the hearing).

18. 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.

19. 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.

20. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday, November 3, 2023 (11 days prior to the start of the hearing) with 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.

21. 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.

22. 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.

Summary of Key Dates

Date	Event
August 2, 2023	Exchange witness list
August 22, 2023	Meeting of like experts
September 5, 2023	Exchange Agreed Statement of Facts
October 3, 2023	Exchange of expert witness statements
October 3, 2023	Participant statements due
October 10, 2023	Advise the Tribunal if all hearing dates required
October 17, 2023	Exchange of reply expert witness statements, if any
October 24, 2023	File visual evidence document book
November 3, 2023	File document book, hearing plan, and witness statement brief
November 7, 2023	Notify the Tribunal if a witness is not to provide oral evidence
November 14, 2023	Hearing start date

ATTACHMENT 1

Parties

15 Market Street Corp., Applicant/Appellant Scott Galajda Scott Galajda Professional Corporation 205-10 Research Lane Guelph, ON N1G 4T2 Phone: 519-767-1177 Email: sgalajda@galajdalaw.com

Counsel for the County of Bruce, Respondent Jack Van Dorp Manager of Land Use Planning County of Bruce 30 Park Street Walkerton, ON N0G 2V0 Phone: 519-534-2092 Email: jvandorp@brucecounty.on.ca

Counsel for the Town of Saugeen Shores, Respondent Tammy Grove / Monica Poremba The Ross Firm Professional Corporation 11 Durham Street East Box 880 Walkerton, ON N0G 2V0 Phone: 519-524-5532 Email: tgrove@rossfirm.com / mporemba@rossfirm.com

Participants

Pat Surman psurman@nexicom.net

ATTACHMENT 2

Issues List

Note: The identification of an issue does not mean that all Parties agree that such issue, or manner in which the issue is expressed, is appropriate or relevant to the determination of the Ontario Land Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Ontario Land Tribunal at the hearing will be a matter of evidence and argument at the hearing.

Appellant Issues

Town of Saugeen Shores Issues

See Schedule “A”

ATTACHMENT 3

Order of Evidence

1. Opening Statements
2. Respondent, Town of Saugeen Shores – Overview only
3. Appellant/Applicant, 15 Market Street Corp.
4. Respondent, Town of Saugeen Shores
5. Respondent, County of Bruce
6. Appellant/Applicant, 15 Market Street Corp. (Reply)
7. Closing Arguments

Attachment 4: Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so).

Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.

SCHEDULE “A”

OLT-23-000042

Draft Issues List

Town of Saugeen Shores

(2023-07-11)

The identification of an issue on this Issues List does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant will be a matter of evidence and argument at the hearing.

1. Does the development proposal consisting of proposed Official Plan and Zoning By-law Amendments and a draft plan of subdivision for the subject lands (collectively the “development proposal”) have appropriate regard for the relevant matters of provincial interest enumerated in section 2 of the Planning Act, including the matters set out in sections 2(a), 2(h), 2(n), 2(p) and 2(r) therein?

2. Is the development proposal consistent with the relevant policies of the Provincial Policy Statement (2020) (the “PPS”), in particular, but not limited to, the following policy sections:

• 1.1.1, 1.1.3.2, 1.1.3.3 and 1.1.3.4 (Managing and Directing Land Use);
• 2.1.5, 2.1.7 and 2.1.8 (Natural Heritage); and
• 4.6 (Implementation)?

3. Does the development proposal conform with the policies in the County of Bruce Official Plan, in particular, but not limited to, the following policy sections:

• 3.4.1.3 (County Goals);
• 4.3.1, 4.3.2.6, 4.3.2.7 and 4.3.2.10 (The Environment);
• 4.4.1, 4.4.4.1.1 v), 4.4.4.1.2, and 4.4.4.1.3 (Population and Housing); and
• 6.5.1 (Subdivision and Condominium Approvals)?

4. Does the development proposal conform with the policies in the Town of Saugeen Shores Official Plan, in particular, but not limited to, the following policy sections:

• 1.2.4.1, 1.2.4.2, 1.2.6.2, 1.2.9.1 and 1.2.9.2 (Goals and Objectives);
• 2.6.3, 2.6.4, 2.6.8, and 2.6.11 (Environmental Features);
• 2.9.1 and 2.9.4 (Land Use Compatibility);
• 2.11.1 and 2.11.3 (Subdivision of Land);
• 3.2.5, 3.2.6, 3.2.8 and 3.2.13 (Settlement Areas);
• 3.3.5.2, (Intensification);
• 3.4.1.2, 3.4.3.2 and 3.4.3.3, (General Residential Development);
• 3.6.2.2 (Residential Designation); and
• 3.19.1, 3.19.2, 3.19.3 and 3.19.4 (Parks and Open Space)?

5. Does the development proposal fit within the character of adjacent and surrounding lands?

6. Does the development proposal have any adverse impacts on the surrounding existing development with respect to overlook, privacy, and buffering between neighbouring land uses and if so, have those impacts been appropriately mitigated?

7. Is the proposed Zoning By-law Amendment appropriate, including with respect to whether it sufficiently regulates matters of built form including, height, density, massing, scale and setbacks having regard for the subject lands, adjacent property and the surrounding lands?

8. Does the development proposal represent an overdevelopment of the site?

9. Does the proposed plan of subdivision have regard for the subdivision criteria of Section 51(24) of the Planning Act?

10. In the event that the Tribunal approves the proposed draft plan of subdivision what are the appropriate conditions of draft plan approval?

11. In the event that the Tribunal approves the proposed Official Plan and Zoning By-law Amendments, in principle, should a holding provision apply to the zoning by-law amendment? If so, what conditions should apply to the holding provision?

12. In the event that the Tribunal approves the proposed Official Plan and Zoning By-law Amendments, in principle, should the final order(s) respecting the Official Plan Amendment and Zoning By-law Amendment applications be withheld until such time as the Town advises the Tribunal that the Official Plan Amendment and Zoning By-law Amendment has been finalized to the satisfaction of the Town of Saugeen Shores?

13. Does the development proposal represent good land use planning and is it in the public interest?