Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 03, 2023
CASE NO(S).: OLT-23-000311
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Crystal Bay Cottages Inc.
Subject: Zoning By-law Amendment Application – refused
Description: To permit development of eight new residential units
Reference Number: 350309-0550
Property Address: 4409 Erie Road
Municipality/Upper Tier: Fort Erie/Niagara
OLT Case No.: OLT-23-000311
OLT Lead Case No.: OLT-23-000311
OLT Case Name: Crystal Bay Cottages Inc. v. Fort Erie (Town)
Heard: September 12, 2023 by video hearing
APPEARANCES:
| Parties | Counsel*/Representative |
|---|---|
| Crystal Bay Cottages Inc. | Paul DeMelo* |
| Town of Fort Erie | Alex Herlovitch |
| 4407 Erie Road Holding LLC | Brian Duxbury* |
MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE ON september 12, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was the first Case Management Conference (“CMC”) with respect to an appeal filed by Crystal Bay Cottages Inc. (“Applicant/Appellant”) regarding the Town of Fort Erie (“Town”), Council’s refusal of a Zoning By-law Amendment (“ZBLA”) under s. 34(11) of the Planning Act (“Act”) for the property municipally addressed as 4409 Erie Road (“Subject Property”).
2The application proposes to demolish the existing one-storey single detached dwelling, retain the existing two-storey single detached dwelling, and rezone the Subject Property to a site-specific Residential Multiple 1 (RM1) Zone to facilitate the development of eight new residential dwelling units consisting of a maximum of single detached and attached dwellings which, together with the existing retained lakefront dwelling, would result in a nine-unit development.
3The Town Council refused the ZBLA on the grounds that the proposed development was not consistent with the character of the surrounding established residential neighbourhood. The Subject Property was not envisioned for infilling and intensification. The proposed development was not located within convenient walking distance from the elements of a traditional neighbourhood and the proposed development did not provide for adequate open space on-site.
4The Sworn Affidavit of Service dated August 11, 2023, related to the Notice was marked as Exhibit 1.
Case Management Conference (“CMC”)
5Alex Herlovitch, Director of Planning and Development Services for the Town, advised that Dawne Jubb, counsel for the Town, recently left her position on September 8, 2023, and the Town is in the final stages to obtain counsel regarding this file. In this regard, Mr. Herlovitch suggested adjourning the matter or, in the alternative, he would represent the Town since he has authored reports on this file and is familiar with the issues.
6Paul DeMelo, counsel for the Applicant/Appellant, provided a brief update on the current status of the Application. He advised that, as recently as two weeks ago, he sent correspondence to Ms. Jubb. Mr. DeMelo requested that the CMC proceed as scheduled since Mr. Herlovitch is well acquainted with this matter and can forward any information from this CMC to the respective Town representative or counsel.
7Brian Duxbury suggested adjourning the matter since the Town has no counsel present and to try and obtain the next available date to reconvene.
8The Tribunal considered all the submissions of the Parties. The Tribunal pointed out that once Ms. Jubb left her position for the Town, an email or any other notification should have been provided to the Tribunal through the Case Coordinator. This may have allowed time to consider an adjournment and to notify all Parties and Participants. Since this was not done, the fact all Parties and most of the Participants were present, the Tribunal considered procedural fairness issues to the Applicant/Appellant and directed that the CMC would proceed with Mr. Herlovitch, a credible representative of the Town. The Tribunal relied on the Ontario Land Tribunal Act, s. 12(2) for a fair, just and expeditious resolution.
PARTY STATUS REQUEST
9In response to the Notice, the Tribunal did receive one Party Status request. Mr. Duxbury, counsel for 4407 Erie Road Holding LLC, advised that his client is an immediate neighbour of the Subject Property and has been involved in these proceeding’s from the beginning attending the Statutory Public Meeting. His client has an interest in these proceedings and has been working with the Applicant/Appellant’s counsel in defining the Issues List (“IL”). Therefore, on consent of all the Parties, the Tribunal finds it has an interest in these proceedings and grants Party Status to 4407 Erie Holding LLC.
PARTICIPANT STATUS REQUEST
10The Tribunal did receive five Participant Status requests. After review of the Participant statements and consent of the Parties, the following were granted Participant status:
- Stella Lane, LLC (Douglas Heussler)
- Ellie Kerr
- John and Beth Moloney
- Kathryn Moloney
- Margaret Gartner
11All Parties suggested a three-to-five-day hearing, in the spring of 2024, would be reasonable considering the narrowing of Issues and the number of possible witnesses. The Parties also submitted that this would allow time for the Town to retain counsel.
DRAFT PROCEDURAL ORDER AND ISSUES LIST ( “IL”)
12The Tribunal canvassed the Parties regarding the time needed to draft a Procedural Order (“PO”) and IL. Mr. Herlovitch advised that setting a date a month from now was reasonable for the Town to define its issues. Therefore, on consent, the Tribunal directed that a complete draft PO be provided to the Case Co-ordinator no later than Monday, October 16, 2023. Counsel for the Applicant/Appellant will co-ordinate and provide the draft PO to the Tribunal by the appointed date.
MEDIATION
13The Parties were advised that Tribunal-led mediation was available and that they are aware that they may request this mediation at their convenience.
MERIT HEARING DATE
14The Tribunal finds a five-day hearing is reasonable considering the complex issues and the number of proposed witnesses. Therefore, the Tribunal directs that a five-day hearing will be held by video commencing on Monday, March 18, 2024, at 10 a.m.
15Parties 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://meet.goto.com/680885805
Access code: 680-885-805
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
17Persons 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.
18Individuals 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.
19No further notice will be given.
20The Member is not seized of the matter, but subject to scheduling availability, may be spoken in regard to case management.
21The directions in this Decision are so ordered.
“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.