Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 01, 2023

CASE NO(S).: OLT-23-000013

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Teresa Warren

Subject: Official Plan Amendment

Description: To change specific land use policies within the Chatham Settlement Area Boundary

Property Address: Part of Lot 2, Concession 2, Except Parts 1-3, 24R-5251

Municipality/UT: Chatham-Kent

Municipal File No.: PL202200163

OLT Case No.: OLT-23-000013

OLT Lead Case No.: OLT-23-000013

OLT Case Name: Teresa Warren v. Chatham-Kent (Municipality)

Heard: June 27, 2023 by video hearing

APPEARANCES:

Parties

Counsel / Representative*

Teresa Warren

J. Buitenhuis*

Municipality of Chatham-Kent

J. Sinopoli

Mohawk Farm Limited

P. Lombardi

Link to Final Order

1Mohawk Farm Limited (“Moving Party”) has brought a Motion seeking an Order of the Tribunal dismissing the appeal by Teresa Warren (“Respondent”) against the decision of the Municipality of Chatham-Kent (“Municipality”) to approve Official Plan Amendment No. 72 (“OPA 72”). The Notice of Motion was served pursuant to s.17(45) of the Planning Act (“Act”) and s.19(1)(b) and (c) of the Ontario Land Tribunal Act, 2021 (“OLTA”).

2The grounds for the Motion are summarized as follows:

There are no legitimate and authentic land use planning grounds for the appeal, the Respondent is simply raising planning language;
The Respondent has provided no contrary expert evidence in support of any of the grounds for the appeal and does not intend to call any expert witnesses. The Merit Hearing would therefore be based on the uncontroverted evidence of the Moving Party and the Municipality in support of OPA 72;
The Respondent has not undertaken any studies nor provided the substantiated basis required to support the grounds for the appeal;
The Respondent has failed to demonstrate how the grounds for the appeal are capable of being supported by the evidence, as a mere apprehension or concern about a matter without any substantiation is not evidence;
The Respondent has failed to articulate any sustaining facts relied upon to identify the specific grounds of non-conformity with the Chatham-Kent Official Plan (“OP”);
The Respondent has failed to provide any explanation as to how OPA 72 is inconsistent, or fails to conform with, or conflicts with the Provincial Policy Statement 2020, or the OP; and
The grounds for the appeal have no substantive basis and have no reasonable prospect of success, and therefore the appeal is not worthy of the adjudicative process.

3The materials before the Tribunal on the Motion include:

Motion Record of the Moving Party, which included the Notice of Motion, the Affidavit of Tom Storey sworn on June 12, 2023 with Exhibits and a draft Order;
Book of Authorities of the Moving Party;
Affidavit of Service filed by the Moving Party for the service of the Motion material on June 12, 2023; and
Curriculum Vitae and Acknowledgement of Experts Duty of Tom Storey signed June 26, 2023.

4The Respondent did not file a response to the Motion.

5Ahead of the second CMC, the Municipality advised the Tribunal that it did not intend to file a response to the Motion but would attend the hearing and make verbal submissions in support of the Motion.

PRELIMINARY MATTERS

6As a matter of procedure, since only a Party can bring a Motion to a hearing, the Tribunal granted Party Status to the Moving Party as permitted pursuant to section 17(44.2) of the Act and as provided for in Rule 10 of the Tribunal’s Rules of Practice and Procedure.

7A draft Issues List (“IL”) was circulated to the Parties ahead of the first CMC and, at the first CMC, the Tribunal ordered the IL and a draft Procedural Order (“PO”) to be filed with the Tribunal no later than June 20, 2023.

8The Respondent filed the draft PO and a revised draft IL with the Tribunal and the Moving Party late in the evening on June 20, 2023. The issues on the revised draft IL are the same as on the draft IL except for additional information.

9At the second CMC, the Tribunal reviewed the draft PO and revised draft IL with the Parties. The Tribunal advised the Respondent that the draft PO was deficient in providing the required dates for the delivery of material ahead of the Merit Hearing scheduled for three days starting on October 2, 2023. In addition, both the draft IL and the revised draft IL omitted the first ground of the appeal as listed in paragraph [13], and added a new issue not captured in the appeal, related to the Traffic Impact Study submitted by the Moving Party. The Tribunal advised the Respondent that new issues, which did not form part of the grounds of the appeal, could not be added as an issue to the appeal.

10The issues are therefore scoped to the second and third grounds for the appeal as listed in paragraph [13].

BACKGROUND

11On November 28, 2022, the Municipality passed By-law No. 206-2022 enacting OPA 72 relating to lands known as Part of Lot 2, Concession 2, Except Parts 1-3, 24R-5251 (“Subject Lands”). The Subject Lands are situated partially within and partially outside the Chatham Urban Settlement Area (“Settlement Area”). The portion within the Settlement Area is designated ‘Low Density Residential’ in the OP and zoned ‘Deferred Development’, and the portion outside the Settlement Area is designated ‘Agricultural Area’ and zoned ‘Agricultural’.

12The purpose of OPA 72 is to:

“Permit row house dwellings (townhomes), and their resulting increase in density, as an additional form of housing” on the portion of the Subject Lands located “directly north of William K. Erickson Arena on the east side of Delaware Avenue”;
“Modify the planned Road Network by removing an approximately 135 metre segment of designated Collector Road west of Delaware Avenue”; and
Add a site-specific policy area on the lands located outside of the Settlement Area to “allow urban subdivision elements such as public parkland and infrastructure to be located in these areas. The intent of these policies is to promote logical and orderly growth of Chatham over time, with the objective of creating desirable parkland and greenspace networks, and using land for public infrastructure services in an efficient and cost-effective manner”.

13On December 19, 2022, Ms. Warren appealed OPA 72 on the grounds that it:

allowed urban subdivision elements such as public parkland and infrastructure to be located outside the Settlement Area, contrary to OP policies 2.4.9.2.1 and 4.7.2.10, which would “force the currently designated portion of the 96.6 acre property that is an Agricultural Area and zoned Agricultural (A1) lands to be re-zoned residential without due process (ex. Public meetings etc.)”;
permitted row house dwellings (townhomes) (“Townhouses”) as an additional form of housing resulting in an increase in density amounting to “32% high-density dwellings” contrary to OP policy 2.3.4.2.2 which encourages 10% high density, resulting in “a severe negative impact on the safety of Chatham Kent citizen[s]” as the “50 high-density townhomes will increase the vehicular congestion with an additional 100 vehicles”; and
modified the planned road network by removing a segment of a designated collector road west of Delaware Avenue resulting in “a negative impact on the safety of … residents by reducing the access points”, and increasing the traffic flow “to two (2) options together with traffic from the Erickson Arena (120 parking spaces) while Chatham Kent pedestrians and students walk on the street of existing Delaware Ave. as there are no city sidewalks”.

14In addition to the three grounds of the appeal, “Additional Comments” were added to the appeal form related to financial implications resulting from the recommendation to approve OPA 72. The Respondent noted in the comments that infrastructure for the area outside the Settlement Area is not adequate and the required infrastructure improvements could result in financial implications for the residents of the Municipality. The Respondent also commented that the incorporation of proposed sidewalks in the new development will result in additional financial implications to the residents of the Municipality for the installation of sidewalks on the existing portion of Delaware Avenue. It is noted that these additional comments did not form part of the listed “Reasons for appeal”.

15A Merit Hearing was scheduled at the first CMC to proceed on Monday, October 2, 2023.

THE MOTION

16The Motion requests:

a. An order wholly dismissing the appeal filed by Teresa Warren in its entirety;

b. An order abridging the time for serving and filing this motion, if necessary; and

c. Such further and other relief as counsel may advise and this Honourable Tribunal deems just and proper.

17It is noted that the Municipality supports the Motion in that the Motion is appropriate and the appeal has no reasonable chance of success. Counsel for the Municipality suggested that the issues raised are not set out with sufficient clarity to raise a land use planning issue.

Legislative Framework

18The Act and the OLTA establish criteria for the consideration of dismissing an appeal without a full hearing of the merits.

19The Moving Party brought the Motion pursuant to s. 17(45) of the Act:

Dismissal without hearing

(45) Despite the Statutory Powers Procedure Act and subsection (44), 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:

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 plan or part of the plan that is the subject of the appeal could be approved or refused by the Tribunal,

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.

The appellant has not provided written reasons with respect to an appeal under subsection (24) or (36).
The appellant intends to argue a matter mentioned in subsection (25.1) or (37.1) but has not provided the explanations required by that subsection.
The appellant has not paid the fee charged by the Tribunal.
The appellant has not responded to a request by the Tribunal for further information within the time specified by the Tribunal.

20The Moving Party also brought the Motion pursuant to s. 19(1)(b) and (c) of the OLTA:

Dismissal

19 (1) Subject to subsection (4), the Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing,

(a) if the party who brought the proceeding has not paid any fee required to be paid under this Act;

(b) if the party who brought the proceeding has not responded to a request by the Tribunal for further information within the time specified by the Tribunal;

(d) in any circumstance listed in subsection 4.6 (1) of the Statutory Powers Procedure Act; or

(e) in any circumstance provided for under any other Act.

21It is clear from the wording of s. 17(45) of the Act and s. 19(1) of the OLTA that the grounds in each section are disjunctive within and between the sections, and that the Moving Party need only establish one of the grounds to succeed on the Motion.

Moving Party Submissions

22The Moving Party filed a Book of Authorities on the Motion which included the following four decisions:

Tanwir v. Kitchener (City), 2022 CanLII 15821 (ON LT) (“Tanwir”)
Wenderly Park Community Association Inc. v. Toronto (City), 2022 CanLII 75895 (ON LT) (“Wenderly”)
East Beach Community Assn v. Toronto (City), 1996 CarswellOnt 5740 (“East Beach”)
MacLean v. Strathroy-Caradoc (Township), 2018 CanLII 5649 (ON LPAT) (“MacLean”)

23The East Beach decision is a frequently cited decision for motions to dismiss in which the former Ontario Municipal Board (“Board”) considered the application of s. 17(45) of the Act. The Moving Party drew the Tribunal’s attention to paragraphs 9 and 11 of the East Beach decision wherein the Board states:

9 With respect to the tests specifically stated in s-ss. 17(45)(a)(i) and in 34(25)(a)(i), it is our view that these provisions allow the Board to examine whether there has been disclosure of planning grounds that warrant a hearing. In the past, the Board has indicated in a line of decisions and pursuant to the "sufficiency" tests under the former provisions of the Act that they must be triable issues to enable the hearing to proceed. The words in these particular provisions, in the context of the Act, cannot be construed that the test set out is less onerous than the test in the former provisions. If they were to be given the plain and natural meaning, the Board should not treat it as if it is a test whether planning language had been deployed in a notice of appeal. The Board is entitled to examine the reasons stated 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. This does not allow the Board to make a hasty conclusion as to the merit of an issue. Nor does it mean that every appellant should draft the appeal with punctilious care and arm itself with ironclad reason for fear of being struck down. 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.

11 It is our conclusion that although in many instances, planning language is deployed and, in others, planning issues have been raised, the substance of these concerns individually and collectively are not such that the tests are met.

24In Davidson v McKellar (Township), 2021 CanLII 58456 (ON LT), the Tribunal summarized the East Beach decision:

37In East Beach, the OMB set out the manner in which the Tribunal should consider whether the grounds have been met and provided guidance on a Motion to Dismiss as follows:

(a) It is not sufficient that planning language has been deployed in the Notice of Appeal by the Appellant. The Tribunal is entitled to look beyond the wording to examine the reasons stated to see whether they constitute “genuine, legitimate and authentic planning reasons.”

(b) A cautionary but balanced approach is to be used. Care must be taken to ensure that the Tribunal does not take away the rights of Appeal whimsically, readily, and without serious consideration of the circumstances of each case and the Tribunal must not make hasty conclusions as to the merits of an issue. Neither should an appellant be required to “draft the appeal with punctilious care and arm itself with ironclad reason for fear of being struck down.”

(c) The Tribunal must seek out: (1) whether there is authenticity in the reasons stated; (2) whether there are issues that should affect a decision in a hearing; and (3) whether the issues are worthy of the adjudicative process.

(d) Raising apprehensions relating to land use planning grounds is insufficient and raising concerns about such matters in the hope that real substantive issues will emerge at the hearing is not indicative of an appeal that truly indicates land use planning grounds that could allow all or part of an appeal.

(e) The Tribunal may consider an identifiable issue that experts or decision makers may have “glossed over” if it is persuaded that the overlooked issue would make a difference upon impact to the community or raise a real planning concern.

25As the Board held in East Beach, raising apprehensions relating to land use planning grounds is not sufficient to allow an appeal to proceed. This point is also addressed in Tanwir, Wenderly and MacLean, where it is found that merely raising the apprehension or concern of possible planning grounds or deploying planning language is not sufficient to meet the test of requiring a hearing of the merits.

26In Wenderly, the Tribunal noted the importance of bringing expert witnesses to support an appeal as “while anyone can give evidence about what they have seen or know, that "opinion" evidence in land use planning matters comes from experts who have been so qualified by dint of academic background and training and professional qualifications and experience”. By contrast, without expert witnesses, the Tribunal noted that the “well meaning expressions of beliefs and concerns are not sufficient grounds to maintain an appeal (see: Silvestri v. City of Hamilton (unreported), Tribunal Case No. OLT 22-002235)”.

27In this vein, the imbalance of the Moving Party’s expert witnesses and the Municipality’s professional staff against the apprehensions of the Respondent, without the support of opposing expert witnesses, is enough to find that the appeal can be dismissed on the basis that the proceeding has no reasonable prospect of success as provided for in s. 19(1)(c) of the OLTA.

28Mr. Storey, a Registered Professional Planner, is the planner for the Moving Party and was qualified by the Tribunal as an expert in Land Use Planning.

29Mr. Storey stated that his company, Storey Samways Planning Ltd. (“SSPL”) submitted an Official Plan Amendment application (“Application”) for the Subject Lands on August 9, 2022 after pre-consultation with the Municipality.

30Through his submissions and as per his Affidavit, Mr. Storey advised that the Municipality prepared a positive staff report dated November 8, 2022 (“Staff Report”) recommending approval of OPA 72. On November 28, 2022, the Municipality held a public meeting, at which Ms. Warren made oral submissions based on her written submissions opposing the Application, following which the Municipality approved OPA 72. Subsequent to the approval of OPA 72, Ms. Warren filed the appeal on December 19, 2022.

31Mr. Storey’s Affidavit is dated June 12, 2023, and as such, his opinions on the issues set out by Ms. Warren are in relation to the draft IL (as stated above, the issues on the revised draft IL are the same as on the draft IL except for additional information). He opined that the issues on the draft IL are “too broadly scoped, general in their nature and cannot be supported absent any expert evidence from a registered land use planner or traffic engineer / planner”. He expressed the reasons for this opinion for each of the issues on the draft IL as follows:

Issue 1 on the Teresa Warren issues list raises a concern with the percentage of low-density compared to high-density dwellings. Chatham-Kent’s planning report has confirmed that “the proposed change to add row house dwellings as a permitted housing type is a desirable change to the land use plan at this location. This housing option is in high demand in Chatham and is not currently permitted by through [sic] existing land use policy [sic] at this location.” The Appellant is not proposing any expert evidence in support of their position that the percentage of low-density dwellings as compared to high density dwellings is inconsistent, fails to conform, or conflicts with any density policies in the Chatham-Kent Official Plan or other planning policies. Further, the Official Plan policy 2.3.4.2.2 percentages are densities that, as per the policy, the Municipality will encourage through the year 2031, and therefore should not and cannot be applied to a single plan of development or part of a development plan;
Issue 2 on the Teresa Warren issues list raises a concern with the Traffic Impact Study. The Appellant is not proposing any expert evidence in support of their position that the Traffic Impact Study is inappropriate for the area or otherwise flawed. This issue neglects to reference any basis for the Tribunal to hear an appeal based on the detailed Traffic Impact Study submitted by the Applicant and review by the Municipality;
Issue 3 on the Warren issues list appears to take issue with the proposed location of the townhouse dwellings. Similar to the comments on Issue 1 above, the Appellant is not bringing forward any expert evidence in support of the position taken on appeal as it relates to this issue;
Issue 4 on the Warren issues list indicates an issue with the proposed elimination of a connector road to Henry O’Way. The analysis of the Municipality confirms that “The portion of the Collector Road at issue through the application will not provide a connection to the standard of the Municipality, therefore its removal from the land use policy is supported.” The Appellant will not be providing any expert opinion evidence as to how the elimination of the connector road is inconsistent, fails to conform, or conflicts with any Chatham-Kent Official Plan or other planning policies.

32Mr. Storey noted that, with respect to Issue 1 above, the density targets specified in OP policy 2.3.4.2.2 are municipal-wide targets, rather than site-specific targets, which are ‘encouraged’ by the OP policy, rather than required. In this respect, it was his opinion that Issue 1 is not a valid planning issue for this appeal, as it is being applied by the Respondent on a site-specific basis. He added that for this development in particular, the Municipality encouraged medium-density development, i.e., the Townhouses.

33In his Affidavit, Mr. Storey stated that the entirety of the appeal submissions appears to allege a failure of proper land use planning analysis of the Application without providing any land use planning basis or expert traffic engineering or planning analysis to contradict these reports. He further submits that the Traffic Impact Study, and the Staff Report are uncontroverted and provide the basis on which the Municipality approved OPA 72.

34Mr. Storey submitted that the Respondent has “failed to identify the land use planning issues” on the draft IL and has “failed to provide any land use planning rationale through expert opinion analysis in support of the allegations being made with respect to the planning justification reports.”

35Further, Mr. Storey submitted that the issues raised by the Respondent:

fail to disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal, nor does the appeal have any reasonable prospect of success as no expert land use planning opinion or traffic analysis will be brought forward at the hearing to dispute the expert opinion of the Municipality and the Applicant.

36Finally, Mr. Storey advised that the “[a]pplication was supported by technical studies and following [sic] careful consideration by Municipal Staff and SSPL expert consultants, whereas neither the grounds for appeal nor the Issues List are accompanied by any supporting evidence or professional analysis”.

Respondent Submissions

37As noted above, the Respondent did not file a response to the Motion and therefore no evidence or submissions were made by the Respondent other than those limited to the reasons for not having filed a Response.

38It is noted that the Respondent clarified that she did not file the appeal for the purpose of delay but mainly out of concern for the safety and wellbeing of the residents and that she wanted to work with the developer to improve safety and traffic flow.

ANALYSIS AND FINDINGS

39The Tribunal has carefully considered the material before it as well as the submissions of the Parties and finds that the Motion should succeed for the reasons that follow.

40The Tribunal finds that it is significant and fatal to the appeal that the Respondent provided no Response to the Motion and confirmed that, if there were a hearing on the merits, she would not provide any expert evidence. The Tribunal would be then left with uncontroverted evidence from both the Moving Party’s experts and the Municipality, in support of OPA 72.

41Further, although it is not the opinion of the Tribunal that the appeal was made for the purpose of delay, without a response to the Motion and an opportunity for the Moving Party to reply, and without an intention of providing any expert evidence, it leaves the appeal overly broad and without apparent land use planning grounds to which the Moving Party or the Municipality could form a basis to respond. In this respect, the Tribunal is left without a clear indication of the seriousness of the Respondent in the pursuit of the appeal or how the Respondent envisioned to advance her position at a hearing of the merits.

42As found in Tanwir, Wenderly, East Beach and MacLean, merely raising the apprehension or concern of possible planning grounds or deploying planning language is not sufficient to meet the test of requiring a hearing of the merits. The approval of OPA 72 is supported by technical reports, including those prepared by professional planners and engineers, and submitted, reviewed and vetted by professional staff of the Municipality. Without the benefit of opposing professional views at a hearing of the merits, the Tribunal would be left with weighing professional opinions of the Moving Party’s and Municipality’s experts against the apprehensions of the Respondent.

43The Tribunal notes that with respect to the issue of the Townhouses, such dwelling forms are widely considered medium-density development rather than high-density and further, as noted by Mr. Storey, the density targets specified in OP policy 2.3.4.2.2 are municipal-wide targets, rather than site-specific targets, which are ‘encouraged’ by the OP policy, rather than required.

44With respect to the issues of the Traffic Impact Study, the proposed location of the Townhouses and the removal of a segment of a designated collector road west of Delaware Avenue and linking to Henry O’Way, the Tribunal finds that without expert evidence to the contrary, the apprehensions of the Respondent are without sufficient weight for these issues to be worthy of the adjudicative process. In addition, for the issue related to the removal of a segment of the collector road, the Municipality supports the removal and the reasons for the support are compelling.

45The Tribunal finds that the reasons set out in the Respondents’ Appeal Form, the draft IL, and the revised draft IL, do not disclose any apparent land use planning grounds upon which the Tribunal could allow all or part of the appeal and the proceedings have no reasonable prospect of success based on the findings above.

46The Tribunal therefore exercises its authority to dismiss the appeal. The Tribunal does so with due consideration of all submissions and aspects of the approval and subsequent appeal of OPA 72.

47An Order abridging the time for serving and filing the Motion is not necessary as the service time was met with the Motion having been served on June 12, 2023, being 15 days prior to the second CMC at which the Motion was heard.

ORDER

48THE TRIBUNAL ORDERS that the Motion is granted and the appeal by Teresa Warren is dismissed.

“C. I. Molinari”

C. I. MOLINARI

MEMBER