Report to/Rapport au :

 

Agriculture and Rural Affairs Committee

Comité de l'agriculture et des affaires rurales

 

and Council / et au Conseil

 

May 3, 2012

3 mai 2012

 

Submitted by/Soumis par :

 

Contact Person / Personne ressource:  Matthieu Charron, Legal Counsel 2 City Clerk & Solicitor Dept  

613-580-2424 ext 21897 Matthieu.Charron@ottawa.ca

 

CITY WIDE / À L’ÉCHELLE DE LA VILLE

Ref N°:  :ACS2012-CMR-LEG-0006 

 

SUBJECT:

 

1566 Stagecoach Ontario Municipal Board Decision

Leave to Appeal To Divisional Court

 

OBJET :

 

1566, Stagecoach : décision de la commission des affaires municipales de l’Ontario

autorisation d’en appeler auprès de la cour divisionnaire

 

 

REPORT RECOMMENDATION

That Committee recommend that City Clerk and Solicitor confirm the filing of the Notice of Motion for Leave to Appeal to the Divisional Court of the decision of the Ontario Municipal Board issued March 28, 2012, in Board Case No. PL101449.

 

 

Recommandation du rapport

Que le Comité recommande au greffier municipal et chef du contentieux de confirmer le dépôt de l’avis de motion visant l’autorisation d’en appeler auprès de la Cour divisionnaire de la décision de la Commission des affaires municipales de l’Ontario émise le 28 mars 2012 (dossier no PL101449).

 

 

Background

This appeal relates to a proposed development at 1566 Stagecoach Road.  The Proponent is 6980848 Canada Corporation.  The Proponent applied for a Plan of Subdivision to allow for the development of 40 lots in the western portion of the property as Phase 1 of the proposed development. 

The Proponent has submitted a further Application for a Plan of Subdivision along with applications for a Zoning By-law Amendment and an Official Plan Amendment.

 

These would allow for a further 20 lots on the eastern portion of the property for a total of 60 lots, and for a block of land outside the Greely Village Boundary to be used for nitrate dilution.  This is the proposed Phase 2 of the development.  The proposed plan also includes 122 lots outside the village boundary which would be Phases 3 to 6.

 

The subject property is approximately 18.2 hectares, and the proposed 0.2 hectare lots are to be serviced by individual wells and septic systems. The Proponent appealed to the Ontario Municipal Board against the failure of the City to make a decision with respect to the original Application for Plan of Subdivision.  Subsequent to the filing of the Appeal, on June 10, 2011, Agriculture and Rural Affairs Committee passed a resolution to limit the number of lots on the entire property at 1566 Stagecoach Road to 40.  The proponent also appealed from the City’s refusal or neglect to amend the zoning of 1566 Stagecoach to Village Mixed Use Rural Exceptions (VM1(617r)) from Developmental Reserve 1 (DR-1).

 

Before the commencement of the hearing of the Appeal before the Board, the proponent brought a motion for direction seeking the consolidation of the Appeals.  The City’s position on the Motion was that the Application for Plan of Subdivision with respect to Phase 2 was incomplete as proper pre-consultation had not taken place. The City also held the position that because an Official Plan Amendment would be required to expand the village boundary, and that a comprehensive review of the Official Plan was not yet complete, consideration of lands outside the Village Boundary was premature.  The Board ruled that the pre-consultation for both phases 1 and 2 were complete, but that it would not hear evidence with respect to land outside the Village Boundary except as it may relate to nitrate dilution. 

 

The main issue at the hearing before the Board was whether the development of 40 lots on the property at 1566 Stagecoach Road is appropriate, and whether more than 40 lots could be supported. If more than 40 lots can be supported, then the question to be addressed is whether it is appropriate to use a stormwater facility outside the village boundary for nitrate dilution. The Board confirmed that there would be a second phase to the hearing which would determine whether land outside the village boundary could be used for nitrate dilution.  A date has yet to be fixed for this second hearing.

 

The Board highlighted that both parties agreed that 40 lots was appropriate for the property at 1566 Stagecoach Road.  The question of whether more than 40 lots is appropriate was put off to the second phase of the hearing.  In so finding, the Board indicated that further evidence was required with respect to the nitrate dilution calculations.  The decision of the board places the onus on the City to establish that the hydrogeological evidence clearly demonstrates that nitrate levels would exceed Ministry of the Environment Guideline D-5-4 if more than forty lots were developed, and that providing an area outside the village boundary for nitrate dilution would be clearly inappropriate. The Board’s decision at p. 11 states:

 

In order for the Board to support the City’s position and conclude that the property can accommodate no more than 40 lots there must be a clear finding with regard to at least one of the following two issues:

 

1. The hydrogeological evidence must clearly demonstrate that nitrate levels would exceed the provincial guidelines if more than forty lots were developed,

 

2. It must be clear that providing an area outside of the village boundary for nitrate dilution would be inappropriate.

 

Pursuant to the City Clerk and Solicitor’s delegated authority a Notice of Motion for Leave to Appeal was served on April 11, 2012 then filed with the Divisional Court.  A hearing of the Motion has been scheduled for June 28, 2012.  This report is to seek confirmation of Committee and Council of the seeking of leave to appeal in this matter.

 

 

DISCUSSION

The decision of the Board to require the City to clearly demonstrate its position runs contrary to the traditional requirement that the appellant or moving party clearly demonstrate the planning grounds upon which the appeal is based, as well as to clearly demonstrate compliance with any and all required policies, guidelines and legislation.  If the proponent is unable to prove its case, then the Board should dismiss the Appeal. 

 

It is the opinion of Legal Services, that this is a case where the City should seek leave to appeal.  While the principle of legal precedent does not strictly apply to decisions of the Ontario Municipal Board, past decisions of the Board are often cited in current cases.  Left unchallenged, this decision may be utilized in the future to advance the position that the onus of proof in Ontario Municipal Board cases falls not upon the appellant but rather the municipality.  The reversal of the onus on the Proponent to prove their case will create an untenable situation wherein the City may be required to clearly demonstrate to the Board that a proposal cannot be supported, when in fact, the Proponent should be required, both in development applications to the City, and upon appeal, to the Ontario Municipal Board, to clearly demonstrate that a proposal is safe, appropriate and in conformity with policies, guidelines and legislation. 

 

 

RURAL IMPLICATIONS

 

As this case concerns a rural subdivision and zoning, it is clearly of relevance to the rural area.  However, the effect of the onus of proof being reversed could have an impact across the City, and indeed the Province of Ontario, including urban areas.

 

 

CONSULTATION

Due to the fundamental dispute over the number of lots, no public meeting was held with respect to this subdivision.  Members of the public were entitled to appear before the Ontario Municipal Board and seek party or participant status

 

 

Comments by the Ward Councillor(s)

The applicant has filed professional engineering evidence with the City that is consistent with the Board’s decision.  In my view, the City should not be seeking leave to appeal the Board’s decision.

 

 

LEGAL IMPLICATIONS

This legal implications are described within this report.

 

 

RISK MANAGEMENT IMPLICATIONS

There are no risk implications.

 

 

FINANCIAL IMPLICATIONS

Final financial implications are unknown at this time.  If the City is successful in its appeal, it would normally be awarded a portion of its legal costs.  If unsuccessful then the potential financial cost to the City is estimated at approximately $65K.

 

 

ACCESSIBILITY IMPACTS

N/A

 

 

Environmental Implications

 

The significant concern with respect to this case is ensuring the long term viability and safety of the rural water supply.  The result of the Board’s decision, if upheld, is the responsibility of the municipality to prove that a proposed development creates a risk to health and safety rather than the onus falling upon the developer to show that it does not.

 

 

Technology Implications

There are no technology implications associated with this report.

 

 

TERm of council priorities

If the onus of proof is placed upon the City, such could lead to an increase in the level of effort required of the City to ensure that development results in healthy and safe places, an aspect of Council’s priority of ensuring Healthy and Caring Communities

 

 

SUPPORTING DOCUMENTATION

Document 1 - Board Case No. PL101449, Ontario Municipal Board Decision issued March 28, 2012

 

 

DISPOSITION

The City Solicitor and Clerk’s Department will present the case for leave to appeal to Divisional Court and, if leave is granted, than present the appeal.