Picton Heights Ltd. v. Prince Edward (County), 2023 CanLII 80580

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 01, 2023

CASE NO(S).: OLT-22-003909

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

Appellant: Picton Heights Ltd.

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

Reference Number: Z59-20

Property Address: 4-74 Nery 27-81 Inkerman Avenue

Municipality/UT: Prince Edward

OLT Case No.: OLT-22-003909

OLT Lead Case No.: OLT-22-003909

OLT Case Name: Picton Heights Ltd. v. Prince Edward (County)

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

Appellant: Picton Heights Ltd.

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

Property Address: 4-74 Nery 27-81 Inkerman Avenue

Municipality/UT: Prince Edward

OLT Case No.: OLT-22-003910

OLT Lead Case No.: OLT-22-003909

Heard: June 5, 2023 by video hearing

APPEARANCES:

Parties	Counsel/Representative
Picton Heights Ltd.	M. Helfand, Q. Hartwig, E. Costello
Prince Edward County	J. Savini
PEC Community Partners Inc. (“PEC”)	K. Stitt, S. Kagan, P. DeMelo

MEMORANDUM OF DECISION DELIVERED BY A. Sauve and Eric S. Crowe AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the second Case Management Conference (“CMC”) held concerning the Appeals filed by Picton Heights Ltd. (“Appellant”), owner of the subject lands located at 4-74 Nery Avenue and 27-81 Inkerman Avenue, in the Municipality of Prince Edward. The legal description of the lands are Part of Lots 1 and 22, Concession Southeast of Carrying Place, Township of Hallowell (“subject lands”). The Appellant is appealing a non decision of the County of Prince Edward (“County”), pursuant to sections 34(11) and 51(34) of the Planning Act (“Planning Act”), to amend the Zoning By-Law as well as for approval of the draft Plan of Subdivision. The Appellant wishes to develop a residential community comprised of 560 units along with other related amenities.

2This matter had been scheduled for a 12-day Hearing beginning May 23, 2023 and completing June 9, 2023. The Hearing dates were not consecutive. The Parties informed the Tribunal that they had reached a settlement regarding the Zoning By-Law Amendment (“ZBA”) application however, not for the draft Plan of Subdivision application.

3The Parties advised the Tribunal prior to the Hearing date that a settlement regarding the draft Plan of Subdivision application may still be forthcoming, and negotiations were still taking place. The Hearing was converted to a Settlement Hearing concerning the ZBA appeal and a CMC for the draft Plan of Subdivision appeal. The ZBA is outlined in Attachment 1 of this Order.

DRAFT PROCEDURAL ORDER AND ISSUES LIST

4The Parties were Ordered to submit a draft Procedural Order (“PO”) and Issues List (“IL”) to the Tribunal by June 19, 2023. However, after the conclusion of this CMC the Parties have advised the Tribunal that they have been unable to come to an agreement regarding the wording of one of the issues. A Telephone Conference Call (“TCC”) was conducted on August 2, 2023 between the Parties.

5During the TCC, Paul DeMelo, counsel for Prince Edward County Community Partners Inc. (“PEC”) advised that their only initial issue as part of the IL was broadly worded. The issue stated:

What is the impact that the proposed development will have on the future development of Prince Edward County Community Partners Inc. lands respecting:

a. Servicing capacity; and

b. Transportation capacity

6Since this time a Minutes of Settlement (“MOS”) on the ZBA was completed along with mediation, the Parties now request with the additional information, to refine the wording of the issue to:

Is there sufficient infrastructure, including water and wastewater, as well as within the transportation network to support the allocation of servicing to the proposed development? Should cost sharing be a condition of draft plan approval in order to address infrastructure improvements that may required to support development within the County? If cost sharing is appropriate, how should the cost sharing condition be worded and what infrastructure is to be cost shared with others.

7Matthew Helfand, counsel for the Appellant, objected for the new wording stating the issue was from PEC and late in the proceedings and would be prejudicial to the Appellant to bring a change now. In addition, during the ZBA MOS discussions, there was no objections from the Party, nor did they bring forward the issue of cost sharing.

8Jennifer Savini, counsel for the County, advised the County had no position on this issue.

9The Tribunal panel reviewed the draft PO and IL and noted several issues from the County that referenced lack of servicing at the subject lands and whether it was premature in servicing creating risks to the financial well-being of the Municipality over the long term in regard to the draft Plan of Subdivision. Also issues around water servicing strategy that may present the need for an unjustified and/or uneconomical expansion. The Tribunal also noted that although there were eight main issues from the County there are 96 sub issues.

10The Tribunal considered the oral submissions of the Parties and directed that the original issue submitted by PEC would remain and even though PEC felt it was broadly worded, the Tribunal is satisfied that the cost sharing issue may be disclosed throughout the hearing through all of the County’s issues specifically relating to servicing strategy, financial well being of the Municipality and/or through the uneconomical expansion issues. The Tribunal is satisfied the Tribunal Member chairing the draft Plan Subdivision hearing may have more information available during the hearing to rule further on the issue of cost sharing if it is still relevant or not resolved.

11The Tribunal has since received the Final draft of the PO including the IL. The Final Procedural Order as approved by the Tribunal is appended to this Order as Attachment 2.

CMC – DRAFT PLAN OF SUBDIVISION

12A five (5) day Hearing has been scheduled by video for the draft Plan of Subdivision appeal on Monday, November 6, 2023, to Friday, November 10, 2023, beginning at 10:00 am. The Parties were advised that if a settlement is reached, these Hearing dates could be converted to a Settlement Hearing if requested.

13Parties 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/278736685

Access Code: 278-736-685

15Persons 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 1-888-455-1389 or +1 (647) 497-9391. The Access Code is as indicated above.

16Parties 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

17Individuals 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.

SETTLEMENT HEARING – ZBA

18Our next matter of business was the Settlement Hearing concerning the ZBA. The draft Minutes of Settlement were marked as Exhibit 2 and the Affidavit of Planner Kelly Graham, was marked as Exhibit 3. Exhibit 1, Affidavit of Service, had been previously marked as an exhibit at the first CMC.

19The Appellant is proposing to amend Zoning By-Law No.1816-2006. Currently the subject lands are covered by a patch work of zoning regulations and the Appellant is proposing a single R2-4-H which will permit the development of single and semi-detached dwellings. The holding (H) provision states that only existing uses, buildings, or structures, as well as a temporary sales office or model homes, are permitted on the lands until the (H) is removed.

20The Appellant called Ms. Graham as it’s witness in this Settlement Hearing. Ms. Graham was qualified as an expert by the Tribunal in Land Use Planning.

21The evidence of Ms. Graham was uncontested, thorough and persuasive. The details of which can be found in her Affidavit, which was marked as Exhibit 3. Briefly, Ms. Graham gave evidence that the subject lands are approximately 12.54 hectares (31 acres) in area, with approximately 19.63 meters of public frontage on Inkerman Avenue. The site currently consists of a large central open space and two places of worship, a ring road, and approximately 38 existing single and semi-detached residential dwellings.

22In brief, the evidence of Ms. Graham in regards to the Planning Act is that the ZBA has regard for the applicable matters of provincial interest, in particular, the orderly development of safe and healthy communities (2(h)); the adequate provision of a full range of housing (2(j)); the appropriate location of growth and development (2(p)); the promotion of development that is designed to be sustainable and pedestrian-oriented (2(q)); and the promotion of built form that is well-designed and encourages a sense of place (2(r)). Section 37 of the Planning Act provides municipalities with the authority to impose community benefits charges to pay for the capital costs of development. Though a community benefits by-law has not been enacted by the County, the proposal meets the intent of Section 37 by providing community contributions in the form of publicly accessible open spaces, a pedestrian connection to the Macaulay Mountain Conservation Area, and a financial contribution to the provision of affordable housing subsidies in the County.

23Ms. Graham also explained to the Tribunal that the ZBA is consistent with the Provincial Policy Statement (“PPS”) because the proposed development is located within the settlement area and introduces more efficient land uses on a currently underutilized site. She also gave evidence that the ZBA conforms to the County of Prince Edward Official Plan (2006) (“OP”). The OP recognizes that the County is expected to experience an increased rate of growth over the period of the plan and directs for the majority of this growth to be accommodated in the County’s settlement areas. Three settlement area designations are established by the OP, including Urban Centre, Village and Hamlet. Policy II.2.4.1 identifies that Picton will continue to be the “hub” of the County, acting as the primary urban center of commerce, government and other institutions. The subject lands are located within the Picton Urban Centre Settlement Area.

24The Tribunal is persuaded by the evidence that the proposal promotes good land use planning and is in the public interest and is satisfied that the application conforms to the OP and is consistent with the PPS.

ORDER

25In relation to the draft Plan of Subdivision, the Tribunal orders that:

i. The Procedural Order and Issues List attached as Attachment 2 to this Decision shall govern the draft Plan of Subdivision proceedings;

ii. The date and particulars of the draft Plan of Subdivision Hearing are set out above.

26In relation to the Zoning By-law Amendment appeal, the Tribunal orders that:

i. the appeal is allowed and Zoning By-law No.1816-2006 of the County of Prince Edward is hereby amended as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the County of Prince Edward to assign a number to this By-law for record keeping purposes.

27There will be no further Notice and the Members are not seized but may be spoken to through the Case Coordinator if any issues arise.

“A. Sauve”

A. SAUVE MEMBER

“Eric S. Crowe”

ERIC S. CROWE 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

ATTACHMENT 2