Southside Construction Management Ltd. v. Plympton-Wyoming (Town), 2024 CanLII 89465

ISSUE DATE: September 13, 2024

CASE NO(S).: OLT-24-000360

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

Applicant and Appellant: Southside Construction Management Ltd.

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

Description: To permit a Zoning By-law Amendment for a proposed development consisting of 26 single detached dwellings.

Reference Number: Zoning By-law Amendment Application 3 of 2023

Property Address: 0 Hillsboro Road / Front Con Part Lot 51 RP:25R8162 Part 1

Municipality/UT: Plympton-Wyoming/Lambton

OLT Case No.: OLT-24-000360

OLT Lead Case No.: OLT-24-000360

OLT Case Name: Southside Construction Management Ltd. v. Plympton-Wyoming (Town)

Heard: September 4, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel/Agent*
Southside Construction Management Ltd.	Analee Baroudi
Town of Plympton-Wyoming	Kelly Nenniger
Debra Harrison Rumberger	Self-represented*

MEMORANDUM OF ORAL DECISION DELIVERED BY J. INNIS ON SEPTEMBER 4, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the second Case Management Conference (“CMC”) respecting an Appeal by Southside Construction Management Ltd. (“Applicant”) and arises following the refusal by the Town of Plympton-Wyoming (“Town”) to approve an Application for a Zoning-By-law Amendment (“ZBA”) to rezone the lands known municipally as 0 Hillsboro Road (“Subject Property”) from the existing R5 to a site-specific R7 zone. This Application would facilitate a proposed development for a plan of condominium consisting of 26 single detached dwellings.

PRELIMINARY MATTERS

2Ms. Harrison Rumberger provided the Tribunal with a request for a Motion to Dismiss Hearing just prior to this scheduled CMC. As such, during the CMC, the Tribunal heard brief oral submission by the Parties as to whether a Motion to Dismiss Hearing was warranted.

3While no statutory provisions were cited in Ms. Harrison Rumberger’s original request to the Tribunal, she was clearly able to articulate her concerns and belief that proper Notice to the public was not provided. It was her opinion that the Notice provided failed to include the special provisions of the Subject Property’s R5 zoning.

4Counsel for both the Applicant and the Town were of the position that proper Notice was provided that led to meaningful public participation and further that, there were no statutory provisions to support a Motion to Dismiss Hearing on the assumption by Ms. Harrison Rumberger that the zoning had been mischaracterized. It was the position of Counsel for the Applicant and the Town that a disagreement of interpretation of a zoning by-law does not constitute a failure to provide notice and thus there are not grounds for a motion to dismiss hearing.

5After hearing oral submissions on the validity of the Notice and upon reviewing the Affidavit of Service by Lisa Smeekens, dated April 2, 2024, it was determined by the Tribunal that the threshold for a Motion to Dismiss Hearing had not been met. The Tribunal concludes that a differing of opinion as to the determination of the Subject Property’s zoning and whether or not an explanatory note included sufficient details pertaining to a special provision within the ZBA, are not sufficient reasoning that would invalidate an appeal. The existing zoning and its impact on the proposed ZBA are a matter best addressed at a Hearing of the Merits.

SETTLEMENT AND HEARING

6The Tribunal was advised that the Applicant and Town have reached a settlement and have committed to providing Ms. Harrison Rumberger with the revised draft ZBA by Wednesday, September 11, 2024, for her information and consideration.

7The Parties agreed to the scheduling of a two-day Hearing of the Merits that may be converted to a one-day Settlement Hearing, should all Parties consent. The Parties are to advise the Tribunal by Wednesday, September 25, 2024, to request a conversion if resolution has been found achieved all Parties.

PROCEDURAL ORDER AND ISSUES LIST

8On consent of the Parties, it was determined that a Procedural Order was not necessary given that two of the Parties would be presenting a settlement and the length of the hearing would be two days or less. The Tribunal accepted this request and directed the Parties that at a minimum, they are to provide the Tribunal with a Hearing Plan by Monday, October 21, 2024.

9The Tribunal received and reviewed a draft Issues List from the Parties. The Tribunal finds it acceptable, and the proceedings shall be governed by it (see Attachment 1).

10The Parties have agreed to the exchange of their Witness List and the curriculum vitae’s of their expert witnesses by Wednesday, September 25, 2024. By Tuesday, October 7, 2024, Ms. Harrison Rumberger shall provide all documents to be relied upon for the Hearing of the Merits and Counsel for the Applicant and the Town are to submit their materials for the Hearing of the Merits and settlement by Monday, October 21, 2024.

HEARING

11Upon request of the parties, the Tribunal set a two-day Hearing of the Merits commencing on Wednesday, October 30, 2024, at 10 a.m. by Video Hearing. No further Notice is required.

12Parties 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:

GoTo Meeting: https://global.gotomeeting.com/join/638422541

Access code: 638-422-541

13Parties 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

14Persons 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.

15Individuals 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.

ORDER

16The Tribunal Orders that:

1. The date and particulars of the hearing are set out above; and
2. The Issues List appended as Attachment 1 shall govern the proceedings.

17The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

“J. Innis”

J. INNIS 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

ISSUES LIST

1. Is the application inconsistent with the Provincial Policy Statement (the preamble and section 1.1.3.2 a-g)?
2. Does the application conform to the County of Lambton Official Plan (section 3.2.4)?
3. Does the application conform to the Town of Plympton-Wyoming Official Plan (sections 5.2, 18.1, 18.c, 4.1.1.1, 4.1.1.4, 4.1.1.8, 4.1.1.9, & 4.1.1.13)?
4. What is the existing zoning on the property and what impact does the existing zoning have on the proposed zoning?