Quincy Developments v. Central Elgin (Municipality), 2024 CanLII 55794

ISSUE DATE:

June 13, 2024

CASE NO(S).:

OLT-23-000241

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

Applicant and Appellant:

Quincy Developments

Subject:

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

Description:

To facilitate the development of a 177 unit high density residential building

Reference Number:

By-law 2767 – OPA

Property Address:

410 Sunset Drive

Municipality/UT:

Municipality of Central Elgin

OLT Case No.:

OLT-23-000241

OLT Lead Case No.:

OLT-23-000241

OLT Case Name:

Quincy Developments v. Central Elgin (Municipality)

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

Applicant and Appellant:

Quincy Developments

Subject:

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

Description:

To permit an apartment building and medical/dental office uses to maximum height of 6 storeys

Reference Number:

By-law 2768 ZBA

Property Address:

410 Sunset Drive

Municipality/UT:

Municipality of Central Elgin

OLT Case No.:

OLT-23-000242

OLT Lead Case No.:

OLT-23-000241

Heard:

May 21, 2024 by Video Hearing

Parties

Counsel

Quincy Developments

Alex Ciccone

(“Applicant/Appellant”)

Municipality of Central Elgin

Analee Baroudi

(“Municipality”)

County of Elgin

Nicholas Loeb

(“County”)

MEMORANDUM OF ORAl DECISION DELIVERED BY D. CHIPMAN and michael menezes on may 21, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Applicant/Appellant seeks to develop the site at 410 Sunset Drive, St. Thomas (“Subject Lands”), in the Municipality of Central Elgin (“Municipality”). Appeals are brought pursuant to s. 22(7) and s. 34(11) of the Planning Act regarding the refusal of the Municipality on applications for Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”).

2The Applicant/Appellant had filed for an amendment to the Official Plan (“OP”) seeking to redesignate the Subject Property from Tier 1 Settlement Area, in the County of Elgin (“County”) OP, and Office Professional in the Municipality’s OP to Residential with site-specific policies to permit 177-unit high-density apartment dwellings and medical/dental uses in the form of maximum height building of six storeys as well as an amendment to the ZBA that would rezone the Subject Property to Residential Zone 1 to permit site specific regulations.

3On July 18, 2023, the Tribunal held its first Case Management Conference (“CMC”) to organize the Appeal, address status requests and establish next steps in this proceeding. Before proceeding with a merit hearing, the Parties requested a ruling by the Tribunal to determine a single threshold issue: “Should the Subject Lands be re-designated and re-zoned for residential uses where there is already an oversupply of residential lands in the Municipality?”

4Based on the presentation of evidence and for the reasons outlined in its Decision of January 19, 2024, the Tribunal directed that the Appeals move to a merit hearing on the OPA and ZBA applications.

5The Tribunal had received an Affidavit of Service dated April 17, 2024, confirming that Notice of this CMC was properly given and is therefore marked as Exhibit 1.

STATUS REQUESTS

6The Tribunal received one further Participant Status Request dated November 14, 2023, from Jamie Kovacs. Having raised similar concerns to the requests for Participant status granted to 15 other Participants at the CMC on July 18, 2023, Mr. Kovacs’ request will be forwarded to the Parties for their information and Participant status is conferred. This matter was not brought before the Parties at this CMC but is being added as a note to this Decision. If the Parties have concern with the granting of Participant status to Jamie Kovacs, they are to bring their concerns to the attention of the Member presiding at the merit hearing prior to opening remarks to discuss further.

MEDIATION

7The Counsel for the Parties confirmed that they are in discussions to resolve some or all of the issues. The Tribunal noted that Tribunal-led mediation information can be obtained through the Case Coordinator. The Parties further confirmed that they will keep the Tribunal apprised of any developments with their resolution efforts, which the Tribunal finds satisfactory.

HEARING

8The Tribunal having received the attached Procedural Order (“PO”), including the Issues List (“IL”), and upon reviewing the content, approves the PO and IL as the in force and effect document to govern the upcoming merit hearing on Tuesday, October 22, 2024. Any request to change the PO and IL will have to be made in writing and approved by the Tribunal. The Hearing Plan is expected to be filed 10 days prior to the commencement of the merit hearing.

9At the request of the Parties and based on the number of potential witnesses expected to appear, the Tribunal has scheduled a four-day merit hearing commencing on Tuesday, October 22, 2024 at 10 a.m. to be held via video hearing.

10Parties and Participants are asked to log in to 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/687587165

Access Code: 687-587-165

11Parties 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

12Persons 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: Toll-Free 1(888) 299-1889 or +1 (647) 497-9373. The Access Code is indicated above.

13Individuals 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 Video Hearing 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.

14The Tribunal inquired as to whether there were any other matters to be addressed, which might assist in the fair, just and expeditious resolution of this matter. The Parties indicated that there were none.

ORDER

15THE TRIBUNAL ORDERS that:

1. the date and particulars of the merit hearing are set out above;

2. the Tribunal confers Participant status to Jamie Kovacs;

3. this Panel is not seized but will continue to manage this file; and,

4. this Panel remains available through the Case Coordinator should the need arise.

16No further notice is required.

“D. Chipman”

D. CHIPMAN

MEMBER

“Michael Menezes”

MICHAEL MENEZES

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.

CASE NO(S).: OLT-23-000241

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

Applicant and Appellant: Quincy Developments

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

Description: To facilitate the development of a 177 unit high density residential building

Reference Number: By-law 2767-OPA

Property Address: 410 Sunset Drive

Municipality: Municipality of Central Elgin

OLT Case No.: OLT-23-000241

OLT Lead Case No.: OLT-23-000241

OLT Case Name: Quincy Developments v. Central Elgin (Municipality)

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

Applicant and Appellant: Quincy Developments

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

Description: To permit an apartment building and medical/dental office uses to maximum height of 6 storeys

Reference Number: By-law 2768 ZBA

Property Address: 410 Sunset Drive

Municipality: Municipality of Central Elgin

OLT Case No.: OLT-23-000242

OLT Lead Case No.: OLT-23-000241

OLT Case Name: Quincy Developments v. Central Elgin (Municipality)

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 to determine two threshold issues will begin on Tuesday, October 22, 2024 at 10 a.m. at https://global.gotomeeting.com/join/687587165,

Access Code: 687-587-165.

3. The parties’ initial estimation for the length of the hearing is 4 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 (see the sample procedural order for the meaning of these terms).

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. 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.

8. 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

9. 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 13, 2024 and in accordance with paragraph 22 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.

10. Expert witnesses in the same field shall have a meeting on or before August 27, 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 co-ordinator on or before September 3, 2024.

11. 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 13 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.

12. 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 13 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 13 below.

13. On or before September 27, 2024 the parties shall provide copies of their witness and/or expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before September 27, 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.

15. On or before September 27, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before October 11, 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.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before October 4, 2024 in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before October 11, 2024.

19. 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.

20. 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.

21. All filings shall be submitted electronically and in hard copy. 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 the Rule 7.

22. 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.

23. A summary of the various filing dates is contained in Attachment 4.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1

PARTIES AND PARTICIPANTS

PARTIES

1. Quincy Developments (Applicant/Appellant)

2. Municipality of Central Elgin

3. County of Elgin

PARTICIPANTS

1. Howie Clark

2. Linda Cline

3. Lauren and Greg Cross

4. Tim and Ann Edmonds

5. Elliot Fryer

6. Carol and Dan Gagen

7. Steve and Marianne House

8. George and Rebecca Kapogiannis

9. Ken MacLellan

10. Wendy Nixon

11. Glenn and Leona Norman

12. Rex and Rae Marie Robinson

13. Herman and Tina Rohowsky

14. Don and Theresa Toth

15. Nick and Julie Vissher

16. Jamie Kovacs

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 it is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which an issue is appropriate or relevant to the determination of the hearing will be a matter of evidence and argument at the hearing.

County of Elgin Issues

1. Does the proposed development, as it relates to high density residential land use, appropriately address anticipated traffic impacts on Sunset Road, particularly with regard to the intersection of Sunset Road and Karen Street?

2. Does the proposed development, as it relates to high density residential land use, have proper traffic ingress and egress to the subject lands?

3. Does the proposed development appropriately direct drainage to a legal drainage outlet?

Municipality of Central Elgin Issues

1. Does the approval of the Official Plan and Zoning By-law Amendment applications as it relates to the proposed high density residential development have regard to matters of provincial interests in Section 2 of the Planning Act, including the matters set out in subsections 2(h), 2(k) and 2(p) therein?

2. Does the approval of the Official Plan and Zoning By-law Amendment applications as it relates to the proposed high density residential development have regard to goals, objectives, and policies of the upper-tier and lower-tier Official Plans that were recently approved or adopted as per subsections 16(1), 16(2) and Section 26 of the Planning Act?

3. Are the proposed Official Plan and Zoning By-law Amendment applications as it relates to the proposed high density residential proposal consistent with the Provincial Policy Statement, 2020? In particular, but not limited to the following policy sections:

a. Policy Sections 1.1.1 (a) and (b), and 1.1.2 (Managing and Directing Land Use)

b. Policy Sections 1.1.3.2, 1.1.3.3, and 1.1.3.6 (Settlement Areas)

c. Policy Sections 1.2.1 (a) and (c) (Coordination)

d. Policy Sections 1.4.1, 1.4.2, and 1.4.3 (Housing)

e. Policy Sections 1.6.1, and 1.6.6.1 (Infrastructure)

4. Does the proposed Official Plan and Zoning By-law Amendment applications as it relates to the proposed high density residential development conform with the County of Elgin Official Plan (2013)? In particular but not limited to the following policy sections:

a. Policy Section B2.5 (Hierarchy of Settlement Areas)

b. Policy Sections C1.1.1 and C1.1.2 (Settlement Areas)

c. Policy Sections C1.3.1 and C1.3.2 (Housing)

d. Policy Sections E4 and E4.1 (Sanitary Sewers and Water)

e. Policy Section F3 (Local Official Plans)

5. To what extent should the proposed Official Plan and Zoning By-law Amendment applications as they relate to the proposed high density residential development have regard for the County of Elgin Official Plan (2024 – Adopted May 14, 2024)? In particular but not limited to the following policy sections:

a. Policy Sections 2.0, Table 1, 2.1, 2.3, 2.4, 2.5 and 2.13 (Growth Management)

b. Policy Section 4.2 (Housing)

c. Policy Sections 6.0, 6.2, 6.3, 6.6, 6.7, 6.8 and 6.9 (Settlement Areas)

d. Policy Sections 8.16, 8.17, 8.18, 8.19, 8.24, 8.29, 8.30 and 8.31 (Transportation and Infrastructure Systems)

e. Policy Sections C1.4 (Land Supply)

f. Policy Sections E4 and E4.1 (Sanitary Sewers and Water)

g. Policy Section F3 (Local Official Plans)

6. Does the proposed Official Plan and Zoning By-law Amendment applications as it relates to the proposed high density residential development conform with the Municipality of Central Elgin Official Plan? In particular but not limited to the following policy sections:

a. Policy Section 2.1.1 (Urban Settlement Areas)

b. Policy Section 2.2 (Growth Projections & Targets)

c. Policy Sections 2.3, 2.3.2, 2.3.2.1 (Housing)

d. Policy Sections 2.8, 2.8.1, 2.8.1.1, 2.8.3, 2.8.3.1, 2.8.5, 2.8.5.1.1 and 2.8.5.5.1 (Infrastructure)

e. Policy Sections 2.10 and 2.10.1 (Long-Term Economic Prosperity)

f. Policy Sections 2.10.3 and 2.10.3.1 (Community Design)

g. Policy Section 2.11.1 (Coordination of Planning Activities)

h. Policy Section 3.6.2 (Air Quality and Climate Change)

i. Policy Sections 3.9.1 and 3.9.2 (Land Use Compatibility)

j. Policy Sections 4.7.4 and 4.7.4.1 (Community of Norman-Lyndale)

k. Policy Sections 5.1.2.1, 5.1.3, and 5.1.3.1 (Implementation and Monitoring of the Plan)

7. Does the Official Plan and Zoning By-law Amendment applications as they relate to high density residential use provide justification for the removal of commercial land from the Municipality’s land supply where Municipality’s are to provide for an appropriate range and mix of land uses, including commercial, to meet its long-term needs?

8. Does the proposed development as it relates to high density residential land use provide appropriate access and egress to and from the property?

9. Does the proposed development as it relates to high density residential land use appropriately address anticipate traffic impacts on the Municipal and County roads?

10. Does the Zoning By-law Amendment as it relates to the proposed high density residential blocks authorize an appropriate level of height, density and intensification for the subject lands having regard for the site, adjacent properties, and the character of the surrounding lands?

11. Does the proposed development as it relates to the proposed high density residential blocks provide for an appropriate streetscape?

12. Does the proposed development as it relates to the proposed high density residential blocks provide for an appropriate amount of amenity area?

13. Is the proposed reduction from the parking standards for high density residential use justified?

14. Does the proposed high density residential use have sufficient servicing capacity from the City of St. Thomas?

15. Does the proposed development as it relates to the proposed high density residential development represent good land use planning and is it in the public interest?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Quincy Developments (Applicant/Appellant)

2. Municipality of Central Elgin

3. County of Elgin

Attachment 4

Summary of Filing Dates

Event

Date

1st CMC

July 18, 2023

Threshold Hearing

November 14, 2023

2nd CMC

May 21, 2024

Parties to exchange Witness Lists

August 13, 2024

Deadline for Experts’ Meeting

August 27, 2024

Parties to submit Agreed Statement of Facts and Issues

September 3, 2024

Parties to notify Tribunal whether the reserved hearing dates are still required

September 17, 2024

Parties to exchange Witness and Expert Witness Statements

Participants to provide Participant Statements

September 27, 2024

Parties to exchange Reply Witness Statements

October 4, 2024

Parties to file Joint Document Book and Visual Evidence

October 11, 2024