Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 05, 2024

CASE NO(S).: OLT-23-001119

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Lucchetta Builders Inc.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit the development of a 3-Storey Condominium with 24 Residential Units

Reference Number: PB-2023-22

Property Address: 368 Aqueduct Street and 155 Gadsby Avenue

Municipality/UT: Welland/Niagara

OLT Case No.: OLT-23-001119

OLT Lead Case No.: OLT-23-001119

OLT Case Name: Lucchetta Builders Inc. v. Welland (City)

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

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

Reference Number: PB-2023-22

Property Address: 368 Aqueduct Street and 155 Gadsby Avenue

Municipality/UT: Welland/Niagara

OLT Case No.: OLT-23-001118

OLT Lead Case No.: OLT-23-001119

BEFORE:

K.R. ANDREWS MEMBER

Wednesday, the 5th, day of June, 2024

THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment “A” to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence on November 12, 2024.

“Euken Lui”

EUKEN LUI REGISTRAR (A)

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 A

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 05, 2024

CASE NO(S).: OLT-23-001119

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Lucchetta Builders Inc.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit the development of a 3-Storey Condominium with 24 Residential Units

Reference Number: PB-2023-22

Property Address: 368 Aqueduct Street and 155 Gadsby Avenue

Municipality/UT: Welland/Niagara

OLT Case No.: OLT-23-001119

OLT Lead Case No.: OLT-23-001119

OLT Case Name: Lucchetta Builders Inc. v. Welland (City)

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

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

Reference Number: PB-2023-22

Property Address: 368 Aqueduct Street and 155 Gadsby Avenue

Municipality/UT: Welland/Niagara

OLT Case No.: OLT-23-001118

OLT Lead Case No.: OLT-23-001119

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on November 12, 2024 at 10 a.m. through the following video link:

https://global.gotomeeting.com/join/344779885

Access code: 344-779-885

Parties 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 https://global.gotomeeting.com/install or a web application is available: https://app.gotomeeting.com/home.html

Persons who experience technical difficulties accessing the GoToMeeting application, or who only wish to listen to the event, can connect to the event by calling in to an audio-only telephone line: +1 (647) 497-9373 or Toll-Free 1-888-299-1889. The access code is 344-779-885

3. The parties’ initial estimation for the length of the hearing is 7 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. A summary of the applicable procedural dates, as outlined at paragraphs 10-24 of this Order, is set out in Attachment 4.

8. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

9. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

10. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before August 14, 2024 and in accordance with paragraph 23 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

11. Expert witnesses in the same field shall have a meeting on or before August 29, 2024, and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT Case Coordinator on or before September 13, 2024.

12. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 14 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

13. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 14 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 14 below.

14. On or before September 30, 2024, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT Case Coordinator and in accordance with paragraph 23 below.

15. On or before September 30, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

16. Parties may provide to all other parties and the OLT Case Coordinator a written response to any written evidence no later than October 15, 2024, and in accordance with paragraph 22 below.

17. On or before November 4, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

18. On or before October 28, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT Case Coordinator on or before October 28, 2024.

20. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

21. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before November 4, 2024 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing

23. All filings shall be submitted electronically. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7.

24. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1

LIST OF PARTIES AND PARTICIPANTS

A. PARTIES

1. Luchetta Builders Inc.

Brian Duxbury Duxbury Law Professional Corporation 1 King Street West, Suite 500 Hamilton, ON L8P 1A4 Email: brian@duxburylaw.ca

2. Robert Parent

Tom Richardson Sullivan Mahoney PPL 40 Queen Street, P.O. Box 1360 St. Catharines, ON L2R 6Z2 Email: tarichardson@sullivan-mahoney.com

3. City of Welland

Callum Shedden Daniel & Partners LLP 300B Fourth Avenue St. Catharines, ON L2S 0E6 Email: sheddenc@niagaralaw.ca

B. PATICIPANTS

1. Scott Sutton

Email: the_hockey_scout@yahoo.com

2. Susan Sommerville

Email: Susan.sommerville@gmail.com

3. Amie Lynn Clapp-Valle

Email: amiesugar@hotmail.com

ATTACHMENT 2

ISSUES LIST

NOTE: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing. The parties shall an opportunity to revise and further scope the Issues List following Tribunal-led mediation, which is anticipated to take place in the Fall of 2023.

POLICY ISSUES

PROVINCIAL POLICY STATEMENT (2020)

1. Are the applications consistent with the following specific policies of the 2020 Provincial Policy Statement:

a. Policy 1.1.1 that directs healthy and livable communities to be sustained by efficient development patterns, a mix and range of housing types, avoidance of environmental impacts, promotion of transit supportive development and intensification, and promoting development that conserves biodiversity?

b. Policy 1.1.2 that requires land be made available to accommodate projected growth through intensification and redevelopment, including within designated growth areas?

c. Policy 1.1.3.1 that states that settlement areas shall be the focus of growth and development?

d. Policy 1.1.3.2 that requires land use patterns within settlement areas to be based on densities and a mix of land uses, which efficiently use land and resources, use existing infrastructure, support active transportation, and are transit supportive?

e. Policy 1.1.3.3 that requires planning authorities to identify appropriate locations for transit supportive development, and accommodating significant supply and range of housing options through intensification and redevelopment?

f. Policy 1.1.3.5 that requires planning authorities to establish and implement minimum targets for intensification and redevelopment within built-up areas?

g. Policy 1.4.1 that requires an appropriate mix and range of housing options and densities required to meet projected need?

h. Policy 1.6.6.2 that requires municipal sewage and water services as the preferred form of servicing for settlement areas?

i. Policy 2.1.1 that requires natural features and areas to be protected for the long term?

j. Policy 2.1.8 that prohibits development and site alteration of adjacent lands to natural heritage features, unless the ecological function of the adjacent lands has been evaluated and no negative impact will occur?

k. Policy 4.6 that indicates that the Official Plan is the important vehicle for the implementation of the Provincial Policy Statement?

GROWTH PLAN FOR THE GREATER GOLDEN HORSESHOE (2020)

2. Do the applications conform with the following specific policies of the 2020 Growth Plan for the Greater Golden Horseshoe:

a. Policy 2.2.1.2 that directs the vast majority of development to the settlement areas that have a delineated built-up area, existing or planned municipal water and wastewater systems, and can support the achievement of complete communities?

b. Policy 2.2.1.2 c) that requires that growth within settlement areas will be focused in delineated built up areas, strategic growth areas, locations with exsting or planned transit and areas with existing or planned public service facilities?

c. Policy 2.2.2.1 that requires 50% of development within the Region of Niagara occur within the delineated built-up area?

d. Policy 2.2.2.3 that requires municipalities to develop strategies to achieve minimum residential intensification targets throughout the delineated built-up area

NIAGARA REGION OFFICIAL PLAN

3. Do the applications conform with the following specific policies of the Niagara Region Official Plan:

a. Objective 4.A.1.1 that directs the majority of growth to Niagara’s existing urban areas?

b. Objective 4.A.1.2 that directs a significant portion of Niagara’s future growth to the Built-up area through intensification?

c. Policy 4 C.1 General Intensification-Intensification includes all forms of development that occur within the Built-up Area as identified on Schedule A of this Plan.

d. Policy 4.C.2.1 that directs how municipalities are to accommodate intensification through identified intensification areas?

e. Policy 4.C.4.2 which identifies that the annual residential intensification target of 40% be achieved by the City of Welland?

f. Policies 7.A.2 & 7.A.3 regarding Healthy Landscapes?

g. Policy 7.B.1.3 that outlines the components of Environmental Protection Areas?

h. Policy 7.B.1.7 that addresses the delineation of natural heritage feature boundaries?

i. Policy 11.A.1 The Region encourages the provision of a variety of housing types within the urban communities and neighbourhoods to serve a variety of people as they age through the life cycle. (Policy 11.A.1)

CITY OF WELLAND OFFICIAL PLAN (2011)

4. Do the applications conform with the following specific policies of the City of Welland Official Plan:

a. Section 2.3 that contains the Complete Community objectives of the City?

b. Section 2.5 that contains the Sustainable City objectives of the City?

c. Policy 3.4.4.1 C which outlines the intensification strategy for the City of Welland?

d. Section 4.2.2.3 that outlines Medium Density Residential development requirements?

e. Policy 4.2.3.6 that outlines the City’s policy direction on infill and intensification?

f. Policy 6.1.1.1 which contains the objectives for the natural environment?

g. Policy 6.1.2.3 C that prohibits development within Environmental Protection Areas, and permits development adjacent to Environmental Protection Areas, subject to the completion of an environmental Impact Study?

Land Use Compatibility and The Character of the Neighbourhood

5. Does the proposed development reinforce and improve upon the character defined by the existing built form and landscaping according to Section 4.2.3.1 of the Welland Official Plan?

6. Does the Proposed Development consider land use compatibility and neighbourhood character according to the Infill and Intensification Development Policies in Section 4.2.3.6 of the Welland Official Plan?

7. The Proposed Apartment Development will be located visually in the backyards of six existing single detached dwellings and the building will potentially cast shadows into those back yards. Have the applicants/appellants furnished an adequate shadow study according to Section 7.11.20 of the Welland Official Plan?

8. Does the proposed Apartment Development on Aqueduct Street conform with the Medium Density Residential policies in Section 4.2.2.3 of the Welland Official Plan?

9. Does the proposed Residential Development Site on Gadsby Avenue conform with the Low Density Residential policies in Section 4.2.2.2 of the Welland Official Plan?

10. Does the proposed Apartment Development and the Residential Development conform with the Residential Zone provisions in Section 7 of Welland Zoning By-law 2017-117?

11. Do the proposed amendments conform with Sections 6.1.2.1, 6.1.2.2, and 6.1.2.3 in the Environment designation and Section 6.2 in the Parks, Open Space and Environment designation on Schedule B of the Welland Official Plan?

12. Do the applications to amend the Welland Official Plan and Welland Zoning By-law 2017-117 have regard to the matters of provincial interest in section 2 of the Planning Act? Particularly subsections (a), (f), (j), (n), (p), (r)?

13. Are the proposed amendments appropriate for this location, do they represent good land use planning and are they in the public interest?

Natural Heritage Planning Issues

14. Has applicant/appellant provided a new or updated environmental impact study since it updated the proposed development as it is required to in accordance with 2014 Regional Plan Section 7.B.1.11 and section 6.1.2.3.C of the City of Welland Official Plan?

15. Has the applicant/appellant provided a tree-saving plan in accordance with Section 6.1.2.3.H of the City of Welland Official Plan?

Protection of Natural Heritage

i) Ecological issues

16. Are the environmental constraints, significant woodland, significant wild life habitat and/or habitat for threatened or endangered species applicable to the subject property?

17. Have those environmental constraints been adequately addressed in the Environmental Impact Study (EIS) provided by the applicant?

18. Does the proposed development in the current application consider the environmental constraints identified in the original EIS report?

19. Does the EIS characterize the natural areas in accordance with the MNR protocol for Ecological Land Classifications (ELC), as required by the Regional Municipality of Niagara under its EIS guidelines?

20. Why do the ELC polygons contained in the EIS change in the EIS addenda reports?

21. Were the subject lands screened for Significant Wildlife Habitat?

22. Did the EIS undertake the appropriate surveys to assess candidate significant wildlife habitat pursuant to the Ministry of Natural Resources document dated January 2015 entitled “Significant Wildlife Habitat Criteria Schedules for Ecoregion 7E”?

23. Has the EIS demonstrated that the proposal is in compliance with all applicable natural heritage policies at the Provincial, Regional and Municipal levels?

ii) Woodland

24. Does significant woodland habitat exist on the subject lands, satisfying the criteria of Regional Official Plan Policy 7.B.1.5?

25. Have the ecological functions been identified and has the extent of the significant woodland been delineated?

26. Is there significant wildlife habitat within the woodland feature?

iii) Vernal Pool

27. Does a vernal pool exist on the subject lands?

28. Have the ecological functions of the vernal pool been identified (i.e. breeding habitat, foraging habitat)?

29. Does the vernal pool provide significant wildlife habitat?

30. Has the full extent of the vernal pool been accurately delineated?

31. Was the survey of the vernal pool undertaken at the appropriate times and locations?

iv) Impact

32. The EIS completed in 2021 supported an application for 8 townhouses and a single detached dwelling. Have the impacts associated with the revised site plan, including a three-storey, 24-unit apartment building together with a 24-space parking area and single detached dwelling, been assessed?

33. Have all impacts to the significant woodland been identified (i.e. direct, indirect and cumulative impacts, including but not limited to impacts to tree root zones, and breeding and foraging habitat) in accordance with Step 4 of the Niagara Region EIS Guidelines (January 2018) ?

34. Have all impacts to the vernal pool been identified (i.e. direct, indirect and cumulative impacts, including but not limited to impacts to water holding capacity, breeding and foraging habitat) in accordance with Step 4 of the Niagara Region EIS Guidelines (January 2018)?

35. Has appropriate mitigation been proposed to offset impacts to the significant woodland, resulting in no negative impact to the significant woodland and demonstrating conformity with Regional Policy 7.B.1.11?

36. Has appropriate mitigation been proposed to offset impacts to the vernal pool, resulting in no negative impact to the vernal pool and associated habitat to demonstrate conformity with Regional Policy 7.B.1.11?

37. How will excess water from the reduced vernal pool area be managed to prevent seasonal flooding of neighbouring residential lands?

38. Does the proposed plan for a 24-unit, 3-storey apartment building have appropriate regard for environmental impact to the significant woodland and to the vernal pool, in accordance with the Regional Official Plan (2014) policies 7.B.1.11, 7.1.B.18 and Municipal policy section 6.1.2.3.?

39. Does the approval of the applications constitute good planning in the greater public interest and the interest of the significant woodland and its features including the vernal pool?

40. Was sufficient planning justification and ecological justification provided to support a change in the current application rather than requiring new OPA and ZBA applications?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Luccehtta Builders Inc.
2. Robert Parent
3. City of Welland
4. Luccehtta Builders Inc. (Reply)

ATTACHMENT 4

SUMMARY OF PROCEDURAL DATES

EVENT	DATE
Witness List	August 14, 2024
Meeting of Experts	August 29, 2024
Agreed Statement of Facts/Opinions	September 13, 2024
Witness/Expert Witness/Participant Statements	September 30, 2024
Reply Witness/Expert Witness Statements	October 15, 2024
Visual Evidence	October 28, 2024
Joint Document Book	October 28, 2024
Confirmation of Hearing Dates	November 4, 2024
Preliminary Hearing Plan	November 4, 2024
Hearing	November 12, 2024

Attachment to Procedural Order

Meaning of terms used in the Procedural Order

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;

• direct examination by any party of similar interest, in the manner determined by the Tribunal;

• cross-examination by parties of opposite interest;

• re-examination by the party presenting the witness; or

• another order of examination mutually agreed among the parties or directed by the Tribunal.