Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 03, 2023
CASE NO(S).: OLT-23-000192
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Barbara Wasiewicz
Subject: Zoning By-law Amendment
Description: To permit two-storey apartment building consisting of 10 residential units and an office and community room
Property Address: 1525 & 1533 Goth Avenue
Municipality/UT: Ottawa
Municipal File No.: D-02-02-22-0059
OLT Case No.: OLT-23-000192
OLT Lead Case No.: OLT-23-000192
OLT Case Name: Wasiewicz v. Ottawa (City)
PROCEEDING COMMENCED UNDER subsection 34(25) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Request by: Interval House of Ottawa (Applicant)
Request for: Request for Dismissal Without a Hearing
Heard: In writing
APPEARANCES:
Parties
Counsel/Representative*
Barbara Wasiewicz ("Appellant")
Z. Wasiewicz*
City of Ottawa ("City")
T. Marc
Interval House of Ottawa ("Applicant")
J. Polowin A. Mihailescu
DECISION DELIVERED BY D. ARNOLD AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1The Appellant filed a Notice of Appeal of Zoning By-law No. 2023-39 ("Notice of Appeal" or "Appeal") that was passed by the City to amend the City’s Zoning By-law 2008-250 ("ZBA") as it pertains to 1525 and 1533 Goth Avenue in the City of Ottawa ("Subject Property"). The ZBA would permit the development of a low-rise two-storey apartment building containing 10 dwelling units and an office and multi-purpose room in the basement ("Proposed Development") as well as include site-specific provisions that, among other things, would reduce certain minimum required setbacks and parking space requirements both with respect to the Proposed Development and an existing group home.
2The Subject Property is approximately 0.4 hectares in area and has frontage of approximately 44 metres on Goth Avenue. Each of 1525 and 1533 Goth Avenue has an existing two-storey detached dwelling.
3Since 2011 the Applicant, a non-profit entity, has operated a group home called Interval House within the two-storey dwelling located at 1533 Goth Avenue that provides various services, including shelter and supports, to women who are survivors of violence, their children and pets. In 2020, the Applicant purchased the adjacent property, 1525 Goth Avenue, and proposes to demolish the existing detached dwelling on this latter property and construct the Proposed Development in order to provide transitional housing for women, children and pets who have left the emergency housing system and are seeking permanent housing.
4A two-day hearing on the merits of the Appeal has been scheduled by the Tribunal to commence on August 28, 2023.
5In advance of this hearing, the Applicant requested a Motion to seek an Order of the Tribunal dismissing the Appeal without a hearing pursuant to subsection 34(25) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act"). The Tribunal issued Directions dated May 17, 2023 directing the Motion to be heard by written submissions.
6The Tribunal received and marked as Exhibits in Evidence in respect of the Motion the following documents:
Exhibit 1: The Record of Appeal including the Notice of Appeal filed with the Tribunal by the City of Ottawa dated March 17, 2023
Exhibit 2: The Applicant’s Motion Record containing a Notice of Motion together with the Affidavit of Nadia De Santi, MCIP, RPP sworn June 1, 2023 (the "De Santi Affidavit") and the Affidavit of Service of Jara Hughes affirmed June 5, 2023
Exhibit 3: The Applicant’s Book of Authorities
Exhibit 4: The City’s Response to Motion including the Affidavit of Tracey Scaramozzino, MCIP, RPP sworn June 7, 2023 (the "Scaramozzino Affidavit")
Exhibit 5: The Appellant’s Response to Motion dated June 11, 2023
Exhibit 6: The Applicant’s Reply and Supplemental Book of Authorities
THE ZONING BY-LAW AMENDMENT UNDER APPEAL
7The ZBA would make the following changes to the City’s Zoning By-law No. 2008-250 in respect of the Subject Property such that the group home would continue to operate, and a two-storey 10-unit apartment building would be constructed, subject to certain modified setbacks, parking and restriction of uses as set out below:
a. Rezone the Subject Property from Residential Second Density Zone, Subzone N (R2N) to Residential Fourth Density Zone, Subzone X, Urban Exception [2847], (R4X[2847]); and Residential Fourth Density Zone, Subzone X, Urban Exception [2848] (R4X[2848]);
b. Establish a new Urban Exception [2847] that would apply to 1525 Goth Avenue to include the following provisions:
i. Prohibit: Stacked dwelling; retirement home; rooming house; and townhouse dwelling;
ii. Reduced minimum front yard setback: 5.0 m
iii. Reduced minimum interior side yard setback: 3.0 m
iv. Reduce parking spaces for a low-rise apartment dwelling to 0.7 spaces per dwelling unit;
v. Maximum building height: 2 storeys and 8.5 m;
vi. Minimum setback for the rear wall of a residential use building to a private way: 0.6m; and
c. Establish a new Urban Exception [2848] that would apply to 1533 Goth Avenue to include the following provisions:
i. Prohibit: Stacked dwelling; retirement home; rooming house; townhouse dwelling; and low-rise apartment building;
ii. Reduce parking space requirements for a group home to 0.6 spaces per dwelling unit;
iii. Maximum building height: 2 storeys and 8.5 m; and
iv. The minimum setback for the front wall of a residential use building to a private way is 0.6 metres.
The NOTICE OF APPEAL
8The Notice of Appeal sets out five grounds of appeal under the following headings:
a. Insufficient Public Consultation
b. Insufficient Available Services
c. Health and Safety Impact
d. Noncompliance with the City’s Site Plan Control By-law No. 2014-256; and
e. Noncompliance with the City’s Zoning By-law No. 2008-250
9In the Notice of Appeal, the Appellant provides elaboration of these grounds including:
- Insufficient Public Consultation – The Notice of Appeal states: "Insufficient and unreasonable public consultation was carried out on the project and no sufficient and clear information was provided to the public contrary to the requirements of subsection 34(12) of the Planning Act. Furthermore, the process was entirely devoid of any meaningful consultation with residents." With respect to this Ground, the Notice of Appeal identifies 3 elements:
(a) "The sign posted in front of the two affected properties has no references whatsoever to the issue that the 1525 and 1533 Goth were to be rezoned from R2 to R4 and that there is a rezoning proposal in front of the Council. Instead, the sign refers to 10 units apartment building on 1525 Goth and regularizing the 1533 Goth property, creating misleading perception to residents that the 10 units apartment was already permitted development on 1525 Goth Avenue."
(b) "Only 10 residents were present at the public meeting as the proponent notified only limited number of neighbors as opposed to notify all residents on Goth Avenue as all residents will be impacted."
(c) "The proponent never provided a clarity to the residents as of what is physically proposed. Two different site plans were made available to the residents, one on City web site and the other greatly differing and in a fuzzy, unclear electronic format provided by Council and copied to residents. The residents would not know which one is the most recent one."
Insufficient Available Services – The Notice of Appeal states: "The proponent has not provided evidence of adequacy of existing sanitary sewer to support the development" in "violation of Articles 2(f) and 34(4) of the Planning Act."
Health and Safety Impact – The Notice of Appeal cites the requirement to have regard for "Article 2(o) of the Planning Act", being "the protection of public health and safety" and states: "Residents fear for safety of their children and potential harm associated with constant presence of visiting vehicles and visiting individuals that park along the curbs, wait for, or stalk the Clients of Interval House in their idling cars, blocking driveways and blocking street and preventing children playing in their front yards. Considerable issue of traffic congestions, impact on traffic, access to properties, blockages of the street by the delivery trucks, excessively large delivery trucks to 1533 Goth and sanitary vehicles attending to 1533 Goth are destroying the pavement on the street and potentially creating safety hazard to the children…the proposed development will harm me by reducing value of my property and by reducing its attractiveness to potential future buyers. The proposed development will harm me as it will negatively alter my family lifestyle and privacy."
Noncompliance with the City’s Site Plan Control By-law – The Notice of Appeal states: "…[The] City of Ottawa did not invoke legally sanctioned Site Plan control process that is required for this development Section 4(1)(b)(III) of Site Plan Control By-law 2014-256, which specifically imposes a Site Plan Control on a Planned Unit Development and acted in a manner harmful and discriminatory to ratepayers. It is being asked that a formal and by-law mandated statutory site Plan Control process is imposed by [the Ontario] Land Tribunal on this development as sanctioned by City of Ottawa by-law 2104-256 [sic]."
Noncompliance with the City’s Zoning By-law 2008-250 – The Notice of Appeal states that the Proposed Development constitutes a "shelter" within the meaning of the City’s Zoning By-law and a shelter is not a permitted use in the R4 zone which will apply to the Subject Property pursuant to the ZBA. Further, the Notice of Appeal states that the group home operated by the Applicant at 1533 Goth "has normal and observed occupancy well in excess of 10 residents which is in excess of maximum permitted for a group home." The Notice of Appeal also raises the "legality of Planned Unit Development" requirements as defined under the City’s Zoning By-law as it relates to the Subject Property and the ZBA.
THE APPLICANT’S MOTION TO DISMISS THE APPEAL WITHOUT A HEARING
10The Applicant seeks an Order dismissing the Appellant’s Appeal without a hearing pursuant to subsection 34(25) of the Act. The Applicant submits that the Notice of Appeal "fails to raise any apparent land use planning grounds upon which the Tribunal could allow the Appeal."
11The Applicant submits that "[f]undamentally, the Appellant objects to the very presence of Interval House in her neighbourhood" and that the Notice of Appeal "raises concerns that relate to the nature of Interval House’s clients and mission" which is "an attempt to enforce ‘people zoning’ rather than land use. Moreover, the Applicant submits that the grounds of appeal pertaining to "infrastructure adequacy, the sufficiency of public consultation, and health and safety issues [are] irrelevant to an appeal under s. 34(19) [of the Act] and/or are unsupported by any evidence." On this latter point, the Applicant submits that the Appellant "has confirmed that she will not be calling any witnesses", referring to the evidence set forth in para. 24 and Ex. 13 of the De Santi Affidavit.
12With regard to the five grounds of appeal, the Applicant’s submissions include:
Public notice and consultation – The Applicant submits that public notice given on January 20, 2023 in local newspapers and through signage on the Subject Property and the subsequent public meeting held on January 31, 2023 in connection with the ZBA fulfilled the notice and public meeting requirements prescribed by subsection 34(12) of the Act and same were confirmed to be undertaken in accordance with the City’s approved policies. The Applicant submits that 10 members of the public, including the Appellant, provided comments for consideration at this public meeting. Further, additional notice and consultation occurred well in advance of the statutory public meeting through a "virtual community meeting" on February 23, 2022 hosted by a former Ward Councillor and the Applicant and attended by 12 members of the public, notice of which was provided through flyers hand-delivered to neighbours on Goth Avenue by the Applicant (See the De Santi Affidavit, paras. 29 to 35 and the Scaramozzino Affidavit, paras. 7 and 8 and Exs. C and D).
Insufficient Available Services – The Applicant submits that the Applicant provided to the City the Adequacy of Public Services and General Plan of Services Study prepared by McIntosh Perry Consulting Engineers Ltd. (a copy of which is found at Ex. 15 to the De Santi Affidavit) and that this Study demonstrated servicing adequacy through detailed calculations in accordance with the guidelines of the City, the Rideau Valley Conservation Authority and the Ministry of Environment, Conservation and Parks and recommended to the City that there is adequate access to water, sanitary and storm servicing for the Proposed Development. Moreover, the Applicant submits the City’s engineering staff had no comments (from which it may be inferred that they have no concerns) with regard to this Study (See the De Santi Affidavit, para. 39).
Health and Safety Impact – The Applicant submits that the City did not identify the need for a Traffic Impact Assessment in relation to the Application for the ZBA and in response to the traffic safety concern raised by a member of the public, the City stated: "The City has reviewed the proposal against current and proposed traffic conditions and is not concerned with the increase in traffic along Goth Avenue and the surrounding streets, as it is considered to be nominal." (see Ex. 6 of the De Santi Affidavit) Moreover, the Applicant submits that the other non-traffic related health and safety concerns set out in the Notice of Appeal, to the extent that they are land use planning matters and not "people zoning" concerns, are "unsubstantiated" and "mere apprehensions incapable of supporting an appeal."
Non-compliance with the City’s Site Plan Control By-law – The Applicant submits that there is no appeal of any site plan approval application before the Tribunal in these proceedings. Moreover, in any case, the site plan approval provisions of the Act do not apply in relation to a residential development comprised of 10 or fewer residential units and the Applicant refers to subsection 41(1.2) of the Act in this regard. The Applicant also notes that only an owner of the lands to which the site plan application or approval pertains, has a statutory right of appeal in relation to site plan approval pursuant to section 41 of the Act. The Applicant concludes that all grounds of appeal related to site plan control are therefore "wholly irrelevant to this appeal and are insufficient to sustain it."
Noncompliance with the City’s Zoning By-law 2008-250 – The Applicant submits that the Proposed Development is not a shelter within the meaning of the City’s Zoning By-law. A "shelter" is defined under the Zoning By-law to be "an establishment providing temporary accommodation to individuals who are in immediate need of emergency accommodation and food, and may include ancillary health care, counselling and social support services." The Applicant submits that neither the existing group home nor the Proposed Development is a "shelter" as "the nature of their use is not temporary." The Proposed Development would be a low-rise apartment building comprised of 10 self-contained apartment units that will be intended as transitional housing or ‘second-stage housing’ for individuals who have left the emergency housing system. (see para. 57 of the De Santi Affidavit) With regard to the "Planned Unit Development" issue in the Notice of Appeal, the Applicant submits that ownership of 1525 Goth Avenue and 1533 Goth Avenue has merged such that it now constitutes one "Lot" as defined in the Zoning By-law, i.e. "contiguous land under one ownership" and, as such, development of the Subject Property will be considered a Planned Unit Development as there will be two residential use buildings on the same Lot (see the De Santi Affidavit, paras. 51-57). The Applicant submits that there is no "purpose" of a Planned Unit Development set out in the City’s Zoning By-law and therefore the ground set out in the Notice of Appeal that a Planned Unit Development "was created for condos, townhomes and associated uses, and not for group home/shelter combination developments" should be given no weight.
13In summary, the Applicant submits that the Appeal should be dismissed without a hearing as it does not disclose any apparent land use planning ground on which the Tribunal could grant the relief sought by the Appellant. In this regard, the Applicant referred to caselaw, including: Davidson v. McKellar (Township), 2021 CarswellOnt 9824, Whiteley, Re, 2012 CarswellOnt 6471 and Zellers Inc. v. Leamington (Town), 1999 CarswellOnt 4270, Toronto (City) v. East Beach Community Assn., 1996 CarswellOnt 5740, Loblaw Properties Ltd. v. Orangeville (Town), 2004 CarswellOnt 5779, Hansen v. Mississauga (City), 2000 CarswellOnt 5723, Hempel, Re, 2010 CarswellOnt 1587, Rodaro v. Vaughan (City), 2018 CarswellOnt 1759 and Waterloo (City) By-law No. 2013-057, Re, 2014 CarswellOnt 1354.
14The Applicant further requests the opportunity to file costs submissions pending the disposition of the Motion.
THE CITY’S RESPONSE TO THE MOTION
15In its Response to the Motion, the City adopts the grounds set out in the Applicant’s Notice of Motion and concurs with the relief sought by the Applicant’s Motion, except that the City does not seek costs against the Appellant.
THE APPELLANT’S RESPONSE TO THE MOTION
16In the Appellant’s Response to Motion, the Appellant submits that the Applicant’s Motion should be denied as the Applicant "did not provide any further relevant information regarding the principal issues which were part of the appeal of the [Proposed Development] to the Land Tribunal, and these issues remain fully and truly unresolved" including whether:
(a) the Proposed Development is an apartment building or a shelter;
(b) the "development of 1525/1533 Goth Avenue, as a whole, [is] subject to a Site Plan Control"; and
(c) inadequate and unreasonably limited public consultation was carried out "in light of unusual, atypical, and extreme precedent-setting nature" of the Proposed Development as well as concerns with the wording of the public notice signage and utilization of the prescribed distance under the Act for the purpose of providing notice to proximate property owners.
17With respect to the issues of public consultation and site plan control, the Appellant states: "The required and law sanctioned Site Plan Control process that must be enforced by the Land Tribunal will permit broader, appropriate, and reasonable public consultation that is required for this impactful and precedent-setting proposed development. For the stated issues related to public consultation, this Motion to Dismiss must be rejected and the case carried to a full hearing."
18The Appellant submits that it provided "all required and supporting evidence in the law that Tribunal is designed to interpret and adjudicate upon, and there is no need for the Appellant to retain witnesses." Moreover, the Appellant submits that sanitary sewer adequacy is the responsibility of the City and, as such, "The Appellant will not hire Engineers to assess the sewer; it is the City’s responsibility as an approver…"
19The Appellant submits that the appeal is solely based on land use planning grounds, stating:
The issues of health, safety, and sufficiency of public consultation, while important to the Appellant as a resident, are comparatively minor when compared with the issues of whether the shelter is built, whether the Bill 23 applies to 1525 Goth development, whether a [Planned Unit Development] was created, and the need for a formal Law-sanctioned Site Plan Control process….The notion of personal opposition is unfounded, is pure speculation, and should have no place in this motion. The Appellant has cohabitated very nicely for the last 10 years or so since the Applicant’s facility is present on Goth Avenue directly across from the Appellant’s residence.
ANALYSIS AND FINDINGS
20The Tribunal has considered the submissions including affidavit evidence served and filed by the Parties in connection with the Motion.
21Subsection 34(25) of the Act states:
Despite the Statutory Powers Procedure Act and subsection (24), 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:
1.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 Tribunal could allow all or part of the appeal,
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, or
iv. the appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.
[...] [emphasis added]
22The criteria set out in subsection 34(25) are disjunctive such that the Tribunal may dismiss an appeal if any one of the criteria is satisfied in the opinion of the Tribunal.
23The Tribunal finds instructive the general principles to be considered on a motion to dismiss set out in Toronto (City) v. East Beach Community Assn. [supra]:
...The Board is entitled to examine the reasons stated [for the appeal] to see whether they constitute genuine, legitimate and authentic planning reasons. This is not to say that the Board should take away the rights of appeal whimsically, readily and without serious consideration of the circumstances of each case...What these particular provisions allow the Board to do is seek out whether there is authenticity in the reasons stated, whether there are issues that should affect a decision in a hearing and whether the issues are worthy of the adjudicative process...[I]t is not good enough [for an appellant] to simply raise apprehension... [emphasis added]
24Moreover, in Hempel, Re [supra], the Board stated:
For the Board to find that the appeal discloses apparent land use planning grounds upon which the Board could allow an appeal in whole or in part, the Board must be satisfied that the appeal holds the promise that sustainable evidence will be put before the Board to support the assertion. Doubts, questions, concern and apprehensions — however well stated — do not rise to the standard of sustainable evidence. [emphasis added]
25In Whiteley, Re [supra], the Tribunal’s predecessor Ontario Municipal Board stated:
There is a line of cases decided by the Board which speak to the obligations of Appellants. Specifically, it is incumbent upon persons launching an appeal to be prepared to have genuine, legitimate and authentic planning reasons and to have evidence to support those reasons.
26Further, it has been established in a number of decisions of the Tribunal’s predecessor Ontario Municipal Board that on a motion to dismiss an appeal without holding a hearing, "the onus is on the appellant to substantiate the appeal and to provide the Board an indication of the presence of a legitimate planning issue that could be adjudicated in a hearing." (See Rodaro [supra])
27The Appellant did not refute the Applicant’s contention that the Appellant does not intend to call any expert witnesses at a hearing. Indeed, in her Response to Motion, the Appellant adamantly denied that she needed to tender any such evidence.
28With respect to the statutory notice requirements of the Act, the Appellant does not dispute that notice of the proposed zoning by-law amendment and the public meeting was provided in accordance with the Act by way of notice to every owner of land within the prescribed distance of the Subject Property, signage on the Subject Property and the newspaper notice. Instead, the Appellant takes issue with the particular wording on the signage, and the appropriateness of the prescribed distance set out in the Act within which property owners were provided notice given the "considerable frontage" of the adjacent properties in the opinion of the Appellant. The Appellant did not dispute the evidence of the Applicant that ten residents provided comments on the Proposed Development and did not provide evidence of the existence of any persons, including the Appellant, who were prejudiced by the perceived shortcomings of the notice alleged by the Appellant. The Tribunal finds that the notice satisfied the prescribed requirements of the Act.
29The Appellant does not dispute that a public meeting in accordance with the statutory requirements of the Act was conducted by the City on January 31, 2023 (see the De Santi Affidavit, para. 34 and the Scaramozzino Affidavit, paras. 8 and 11). The Appellant expressed the view that consultation regarding the Proposed Development was "inadequate and unreasonably limited" because in the Appellant’s opinion the Proposed Development is "unusual, atypical, and extreme precedent-setting" but provided no statutory or factual evidentiary basis for adjudication of this issue in the Notice of Appeal or the Response to Motion. The Tribunal finds that the City complied with the public meeting requirements of the Act and, although not required by the Act, engaged in additional public consultation, including the virtual community meeting attended by twelve community members on February 23, 2022 (see the De Santi Affidavit, para. 32).
30In summary, the Tribunal finds that the City complied with the public notice and meeting requirements of the Act and accordingly the reasons set out in the Notice of Appeal pertaining to same do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the Appeal.
31In the Notice of Appeal, the Appellant raises the issue regarding the "adequacy of existing sanitary sewer." The Appellant does not dispute that a report prepared by McIntosh Perry Consulting Engineers Ltd., signed and stamped by a Licensed Professional Engineer, entitled "The Assessment of Adequacy of Public Services 1525 Goth Avenue dated June 22, 2022 (See the De Santi Affidavit, Ex. 15) was submitted to, and approved by, the City’s engineering staff. The Appellant expressed personal opinion on the findings of the Report and the approval by the City but provided no professional expert evidence to substantiate this opinion and, moreover, stated that the Appellant intended to call no witnesses in this regard if this matter proceeds to a hearing on the merits. In view of the foregoing, the Tribunal finds that this reason set out in the Notice of Appeal does not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal. As stated in Hempel, Re [supra], "Doubts, questions, concern and apprehensions — however well stated — do not rise to the standard of sustainable evidence."
32Similarly, the Notice of Appeal raises a number of public health and safety concerns including apprehensions of traffic safety hazards to children as detailed earlier in this Decision but the Appellant provided only personal opinion and apprehensions about these matters and no submissions that would support the finding on this Motion that there will be sustainable evidence on legitimate land use planning grounds to support the Appellant’s opinion and apprehensions if a hearing on the merits is held.
33The Notice of Appeal raises "non-compliance" with the City’s Site Plan Control By-law with regard to the Proposed Development and seeks an order of the Tribunal imposing "mandated statutory site Plan Control process on [the Proposed Development]." In the Response to Motion, the Appellant does not dispute that there is not a site plan approval appeal before the Tribunal nor does the Appellant provide any statutory basis for the Tribunal’s jurisdiction to order a municipality to undertake a site plan control application process. Given the foregoing fundamental circumstances, the Tribunal finds that this reason set out in the Notice of Appeal does not disclose an apparent land use planning ground upon which the Tribunal could allow all or part of the Appeal.
34Finally, the Notice of Appeal raises "non-compliance" with the City’s Zoning By-law with regard to the Proposed Development. In the Response to Motion, the Appellant does not dispute the evidence in the Applicant’s Motion Record (see the De Santi Affidavit, paras. 54, 56 and 57) that the R4 zoning of the ZBA permits "a wide mix of residential building forms ranging from detached to low rise apartment dwellings…" and that the Proposed Development will consist of a two-storey building containing ten self-contained apartment units. Despite the foregoing, the Appellant contends that the Proposed Development is a "shelter" and hence not permitted in a R4 Zone. In the Response to Motion, the Appellant provides submissions including about parking, as well as speculation about the rental rates and the term of tenancies but notably no sustainable evidentiary basis to support the contention that the Proposed Development constitutes a "shelter" within the meaning of the City’s Zoning By-law and, as such, the Tribunal finds that the Appellant has not met her onus "to substantiate the appeal and to provide the [Tribunal] an indication of the presence of a legitimate planning issue that could be adjudicated in a hearing" as enunciated in Rodaro [supra].
35Similarly, the Notice of Appeal raises the issue of "the legality of Planned Unit Development". The Applicant submits that, once developed, the Subject Property will be considered a Planned Unit Development ("PUD"). The Appellant contends that "the concept of a PUD" under the City’s Zoning By-law was not created to allow a development such as the Proposed Development but cites no legislative or evidentiary basis for this contention. In any case, the "legality" of the PUD under the City’s Zoning By-law is reflected by the ZBA to permit the Proposed Development, as stated aptly by Planner De Santi: "A Zoning By-law Amendment, by definition, reflects a form of development that is not permitted under the current zoning of the Subject Property. Noncompliance with the Zoning By-law is inherent to the application type, [and] is not a valid ground of appeal." (See the De Santi Affidavit, para. 52) In light of the foregoing, the Tribunal finds that this reason for the Appeal does not disclose an apparent land use planning ground upon which the Tribunal could allow all or part of the Appeal.
36After careful review of the Appellant’s Notice of Appeal and Response to Motion, the Tribunal finds that the Appellant raises concerns and apprehensions about the ZBA and the Proposed Development but does not fulfill the onus of an appellant to provide a substantiating basis to support the finding that these concerns and apprehensions constitute genuine, legitimate and authentic land use planning grounds for the Appeal and, moreover, the Appellant has expressly stated that she does not intend to call any expert evidence to substantiate these concerns and apprehensions should the Tribunal hold a hearing on the merits of the Appeal.
37Accordingly, after consideration of the Notice of Appeal, the Motion Record and Reply, and the Responses to Motion of the Appellant and the City, the Tribunal is of the opinion that the reasons set out in the Notice of Appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the Appeal.
COSTS SUBMISSIONS
38In its Notice of Motion, the Applicant sought the opportunity to file costs submissions pending the disposition of the Motion. The Applicant may proceed to serve upon the Appellant and file with the Tribunal documentation seeking costs in accordance with Rule 23 of the Tribunal Rules of Practice and Procedure.
ORDER
39UPON APPEAL to this Tribunal by Barbara Wasiewicz of the City of Ottawa’s Zoning By-law Amendment No. 2023-39;
40AND UPON MOTION to this Tribunal by Interval House of Ottawa for an Order dismissing the Appeal under subsection 34(25) of the Planning Act, and after hearing of the Motion;
41THE TRIBUNAL ORDERS that the Motion is granted and the Appeal by Barbara Wasiewicz is dismissed.
"D. Arnold"
D. ARNOLD
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.