Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 1, 2023
CASE NO(S).: OLT-22-004216
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: CSG Limited Partnership
Subject: Application to amend the Zoning By-law – neglect to make a decision
Description: To permit the development of two large industrial buildings comprising warehouse space and ancillary offices
Reference Number: ZBA1-22-KD
Property Address: 282A County Highway No. 5 Hwy
Municipality/UT: Brant/Brant
OLT Case No.: OLT-22-004216
OLT Lead Case No.: OLT-22-004216
OLT Case Name: CSG Limited Partnership v. Brant (County)
PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: CSG Limited Partnership
Subject: Site Plan
Reference Number: SP3-22-DN
Property Address: 282A County Highway No. 5 Hwy
Municipality/UT: Brant/Brant
OLT Case No.: OLT-22-004217
OLT Lead Case No.: OLT-22-004216
Heard: January 17, 2023 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| CSG Limited Partnership (“Appellant”) | N. Smith |
| County of Brant | J. Zuidema |
| Stremma (St. George) GP Inc. | M. Flowers (note: departed 10:10am due to illness) |
MEMORANDUM OF ORAL DECISION DELIVERED D. ARNOLD ON JANUARY 17, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This first Case Management Conference (“CMC”) was held to prepare for a hearing on the merits of the Appellant’s appeals to the Tribunal of the County of Brant’s failure to make a decision within the statutory time period on (a) an application for a Zoning By-law Amendment to the County of Brant’s Zoning By-law to permit the development of the lands municipally known as 282A County Highway No. 5, St. George, County of Brant (the “Subject Property”) with two industrial buildings comprised of warehouse space and ancillary offices (the “Proposed Development”); and (b) site plan approval pursuant to Section 41 of the Planning Act in respect of the Proposed Development (collectively, the “Subject Appeals”).
2The Tribunal entered into evidence in these proceedings two Affidavits of Service of Diane Kathleen McKelvey dated December 14, 2022 and December 16, 2022 respectively as Exhibits 1 and 2 and is satisfied that same demonstrates proper notice in these proceedings.
3The Tribunal heard submissions regarding whether an order that the Subject Appeals should be consolidated or heard together is appropriate. As these two Appeals both pertain to the Subject Property and the Proposed Development, and on no opposition by the Parties, the Tribunal ordered that the Subject Appeals shall be heard together pursuant to Rule 16 of the Tribunal Rules.
PARTY AND PARTICIPANT STATUS
4One person, Stremma (St. George) GP Inc. (“Stremma”), sought Party status in the subject proceedings and, in this regard, submitted a written request for Party status prior to the CMC and was represented by counsel at the CMC. Stremma is the owner of lands municipally known as 269 German School Road (“Stremma’s lands”) which are located in the southern vicinity of the Subject Property. Counsel for Stremma advised that the Stremma Lands are subject to applications for official plan and zoning by-law amendments, and draft plan of subdivision approval (the “Stremma Applications”) which are the subject of appeals to the Tribunal based on the County of Brant’s failure to make a decision on the Stremma Applications within the prescribed time period and have been assigned OLT Lead Case No. OLT-22-004258. In its written request for Party status, Stremma identified issues relating to land use and compatibility, and transportation issues with respect to the Subject Appeals which may affect the Stremma Lands and the Stremma Applications. The Tribunal is satisfied that Stremma is raising genuine land use planning issues regarding the Subject Appeals and, with no opposition by the other Parties, the Tribunal grants Party status to Stremma.
5It is noted that the written request for Party status submitted by Stremma referred only to the Zoning By-law Amendment Appeal (OLT-22-004216) and, unfortunately, counsel for Stremma fell ill and departed the CMC at the outset of the CMC before submissions could be obtained from Stremma’s counsel regarding whether Stremma sought Party status with respect to the ZBA Appeal only or with respect to both the ZBA Appeal and the Site Plan Appeal. This issue will be clarified upon submissions of counsel for the Parties, including Stremma, being considered at the second CMC that has been scheduled in respect of the Subject Appeals (see below).
6Counsel for two persons, Cider Park Limited Partnership and Riverview Highlands Holdings, attended the CMC. Counsel on behalf of these persons indicated that they were not seeking Party or Participant status at this time but wished to observe with a view to potentially seeking Party status depending upon whether a motion or other proceeding is scheduled to occur with respect to the scheduling of the hearing dates for the Appeals.
7There were no written or in-person requests for Participant status in the subject proceedings.
HEARING DATES
8There were considerable submissions by counsel for the Appellant and the County of Brant concerning whether it is appropriate to set hearing dates for the Appeals. In this regard, counsel for the County of Brant provided submissions regarding an interim control by-law passed by the County of Brant on July 26, 2022 which affects lands comprising the area of the County of Brant known as St. George and including the Subject Property (the “ICBL”). Counsel for the County submitted that no hearing dates should be set at this time and submitted that the proceedings should be adjourned to a second CMC on a date subsequent to July 26, 2023 (the date on which the ICBL expires if not extended by by-law of the County of Brant). Counsel for the Appellant submitted that hearing dates should be set at today’s CMC and, in this regard, submitted that the ICBL does not “halt’ the Tribunal’s proceedings with regard to the Subject Appeals. Moreover, counsel for the Appellant submitted that if the County of Brant wishes to contend that no hearing dates should be set pending the outcome of the ICBL then a motion should be brought for adjudication by the Tribunal in this regard.
9Regardless of the ICBL issue, it is noted that no draft Issues List was provided to the Tribunal at the CMC. There were submissions regarding the estimated duration of a hearing of the Appeals but, in the absence of a draft Issues List, it is difficult to develop such an estimate at this time. Indeed, upon submissions by counsel for the County of Brant regarding the general categories of issues, there appeared to be significant uncertainty regarding these issues and, consequently, the type and estimate of expert evidence that would be put forward by the parties in a hearing of the Subject Appeals. Moreover, there is a new Party to the proceedings (Stremma) who will be given opportunity to participate in the development of the draft Procedural Order including the draft Issues List to be submitted to the Tribunal for its consideration. In view of the foregoing, a second CMC is ordered as detailed below.
10In the event that the County for Brant wishes to bring a motion for a determination on the issue of whether hearing dates should be set for the adjudication of the Subject Appeals while the ICBL is in force and effect, then such motion shall be served and filed in accordance with the Rules for consideration at the second CMC as detailed below. In this regard, the County of Brant is directed to provide a copy of the motion materials to the respective counsel for Riverview Highlands Holdings (Courtney Boyd) and Cider Park Limited Partnership (Jennifer Meader) and if those persons wish to participate in such a motion then they are directed to serve and file written requests for Party status as soon as reasonably practicable following receipt of such motion materials and in advance of the second CMC.
11The second CMC will take place by video on Friday March 24, 2023 at 10:00 a.m.
12Parties 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.
13The CMC is scheduled to proceed by video as follows:
https://global.gotomeeting.com/join/348282861
Access Code: 348-282-861
14Persons 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.
15Parties 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
16Individuals 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
17At the CMC the Tribunal ordered as follows:
(a) Stremma (St. George) GP Inc. is granted Party status with respect to the Zoning By-law Appeal (OLT-22-004216) and Stremma may seek Party status with respect to the Site Plan Approval Appeal (OLT-22-004217) at the second CMC (as this latter issue was not clarified prior to the early departure of Stremma’s counsel from the first CMC due to illness);
(b) The Parties will submit a draft Procedural Order including Issues List to the Tribunal on or before Friday March 17, 2023.
(c) Any motions, including a motion that may be brought by the County of Brant regarding the setting of hearing dates, shall be served and filed in accordance with the Rules, with a copy of such motion materials to be provided to counsel for Riverview Highlands Holdings (Courtney Boyd) and Cider Park Limited Partnership (Jennifer Meader) in accordance with the same timelines of the Rules;
(d) In the event that either or both of Riverview Highlands Holdings and Cider Park Limited Partnership wish(es) to seek Party status in the Subject Appeals in order to respond to any motion referred to in (c) above, then such person shall serve and file a written request for Party status as soon as reasonably practicable following receipt of motion materials and provide responding materials to the Parties within the timeline prescribed by the Rules as though Party status had been granted. These responding materials may be considered by the Tribunal if, after the Tribunal first considers the request(s) for party status and submissions by the Parties, the Tribunal grants Party status to such person(s);
(e) The second CMC will take place by video on Friday March 24, 2023 at 10:00 a.m.
18The Member is not seized in this matter but may be available for case management purposes, subject to scheduling availability.
19No further notice will be given.
“D. Arnold”
D. ARNOLD
MEMBER
Ontario Land Tribunal
Website: 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.