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1. 1566 Stagecoach Ontario
Municipal Board Decision Leave to Appeal To Divisional Court 1566,
Stagecoach : décision de la commission des affaires municipales de
l’Ontario autorisation d’en appeler auprès de la cour divisionnaire |
That Council:
1.
Direct
the City Clerk and Solicitor to immediately deliver a Notice of Abandonment of
the Motion for Leave to Appeal the decision of the Ontario Municipal Board
issued March 28, 2011 on Board File PL101449.
2.
Direct
the City Clerk and Solicitor to request that the Ontario Municipal Board amend
and approve as amended, the Menu of Conditions for Draft Plan Approval, amended
as follows:
a. Delete
condition 88, as ordered by the Board;
b. Delete
conditions 71 and 72 and replace them with the following: The Owner will
provide a drainage easement to the municipality over the lands owned by 7657315
Canada Corporation to the point of connection with Tributaries 1 and 2 at the
southern boundary of the property. The Owner will file a petition for a
municipal drain under the Drainage Act over Tributaries 1 and 2 from the point
of connection aforesaid to the Grey's Creek Municipal Drain
3.
Direct
staff to:
a. forthwith
confirm approval of the applicants' servicing plan, sign the application for
Certificate of Approval and deliver same to the Ministry of the Environment.
b. forthwith
provide a draft zoning by-law to the Ontario Municipal Board;
c. forthwith
consent to a hearing of the Board, if it requires it, at the earliest possible
date to finalize draft plan approval and re-zoning
d. take
all steps necessary to clear the conditions and proceed expeditiously to
registration of the subdivision.
Motion WAS REFERRED TO CITY COUNCIL
That pursuant to the Drainage Act, clause 4(1)(c), the City
initiate a petition for drainage works for the benefit of Old Prescott Road in
the vicinity of the eastern portion of 1566 Stagecoach Road and that staff be
directed to send out the notices pursuant to the Drainage Act, clause 5(1)(b); and that a report be submitted to the
next meeting of Agricultural and Rural Affairs Committee to provide for the
appointment of an engineer, including a requirement that a preliminary report
pursuant to the Drainage Act, section
10 be submitted.
RecommandationS MODIFIÉES DU Comité
Que le Conseil :
1. Demande que le greffier municipal et chef du contentieux émette
immédiatement un avis de désistement de motion visant
l’autorisation d’en appeler de la décision de la Commission des affaires
municipales de l’Ontario émise le 28 mars 2011
(dossier no PL101449).
2. Demande que le greffier municipal et chef du
contentieux demande à la Commission des affaires municipales
de l’Ontario de modifier, et d’approuver tel que modifié, le menu des conditions d’approbation du plan provisoire de
la manière suivante :
a.
Supprimer la condition 88, tel
qu’exigé par la Commission;
b. Supprimer
les conditions 71 et 72 et les remplacer par la mention suivante : Le
propriétaire accordera à la municipalité une servitude de drainage sur les
terrains appartenant à 7657315 Canada Corporation, au point de jonction avec
les affluents 1 et 2 situé à la limite sud de la propriété. Le propriétaire
présentera, en vertu de la Loi sur le
drainage, une demande de drain municipal sur les affluents 1 et 2, entre le
point de jonction susmentionné et le drain municipal du ruisseau Grey.
3. Demande que le
personnel :
a.
confirme sans délai
l’approbation du plan de viabilisation du requérant, signe la demande de
certificat d’autorisation et la transmette au ministère de l’Environnement.
b.
fournisse sans
délai à la Commission
des affaires municipales de l’Ontario un règlement de zonage provisoire;
c.
consente sans délai
à une audience de la Commission, si elle le demande et le plus rapidement
possible, afin de finaliser l’approbation de plan provisoire et la modification
de zonage;
d. prenne toutes les mesures nécessaires pour satisfaire aux conditions et
procède promptement à l’enregistrement du lotissement.
LA MOTION A ÉTÉ
SOUMISE AU CONSEIL MUNICIPAL
Il
est par conséquent résolu que, conformément à la Loi sur le drainage, clause 4(1)(c), la Ville lancera une pétition
concernant les travaux de drainage pour le chemin Old Prescott près de la
partie est du 1556, chemin Stagecoach, et que le personnel sera chargé
d’envoyer des avis conformément à la Loi
sur le drainage, clause 5(1)(b);
Il est en outre
résolu qu’un rapport sera soumis à la prochaine réunion du Comité de
l’agriculture et des affaires rurales en vue de la nomination d’un ingénieur, y
compris la soumission d’un rapport préliminaire en vertu de la Loi sur le drainage, article 10.
Documentation
2. Extract of
Draft Minutes, Agriculture and Rural Affairs Committee meeting of 10 May 2012.
613-580-2424 ext 21897 Matthieu.Charron@ottawa.ca
SUBJECT:
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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 |
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).
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.
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.
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.
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
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.
This legal implications are described within
this report.
There are no risk 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.
N/A
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.
There are no technology implications associated with this
report.
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
Document 1 - Board Case No.
PL101449, Ontario
Municipal Board Decision issued March 28, 2012
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.
1566 STAGECOACH ONTARIO MUNICIPAL BOARD DECISION LEAVE TO APPEAL TO DIVISIONAL COURT
1566, STAGECOACH : DÉCISION DE LA COMMISSION
DES AFFAIRES MUNICIPALES DE L’ONTARIO
AUTORISATION D’EN APPELER AUPRÈS DE LA COUR
DIVISIONNAIRE
ACS2012-CMR-LEG-0006 OSGOODE (20)
REPORT RECOMMENDATION:
That the Agriculture and Rural Affairs
Committee recommend that Council adopt the Engineer’s Report dated February
2012 for a drainge project under Subsection 78 (1.1) with respect to the
existing drainage works known as the South Cyrville Municipal Drain and give
1st and 2nd reading to the By-law attached as Document 2 to this report in
accordance with Sections 42 and 45 of the Drainage
Act of Ontario.
Vice-Chair Blais assumed the Chair as Chair Thompson wished to speak to this item.
Tim Marc, Senior Legal Counsel, Corporate Development and Environmental Law Branch, asked the Committee to support the recommendation as presented as he was concerned that if the Ontario Municipal Board decision in favour of the applicant was not appealed to Divisional Court it could create a bad precedence for the City of Ottawa and other municipalities in the Province of Ontario.
The following delegation spoke in opposition to
the report recommendation:
·
Mr. Paul Webber, Solicitor at Bell Baker for
the applicant
Councillor D. Thompson commented that this applicant has been before the
Ontario Municipal Board 16 times and has been successful versus the City in all
cases. He feels that the report
recommendation is foolish and a waste of money.
He presented the following motions.
MOTION No. ARA 21/1
Moved by: Councillor D. Thompson
That the City Clerk and Solicitor immediately deliver a Notice of
Abandonment of the Motion for Leave to Appeal the decision of the Ontario
Municipal Board issued March 28, 2011 on Board File PL101449.
YEAS (3): Councillors S. Blais, S. Moffatt, D. Thompson
NAYS (1): Councillor E. El-Chantiry
MOTION No. ARA 21/2
Moved by: Councillor D. Thompson
That the City Clerk and Solicitor request the Ontario Municipal Board
to amend, and approve as amended, the Menu of Conditions for Draft Plan
Approval, amended as follows:
a. Delete condition 88, as
ordered by the Board;
b. Delete
conditions 71 and 72 and replace them with the following: The Owner will
provide a drainage easement to the municipality over the lands owned by 7657315
Canada Corporation to the point of connection with Tributaries 1 and 2 at the
southern boundary of the property. The Owner will file a petition for a
municipal drain under the Drainage Act over Tributaries 1 and 2 from the point
of connection aforesaid to the Grey's Creek Municipal Drain.
YEAS (3): Councillors S. Blais, S. Moffatt, D. Thompson
NAYS (1): Councillor E. El-Chantiry
MOTION No. ARA 21/3
Moved by: Councillor D. Thompson
That staff shall:
a. forthwith
confirm approval of the applicants' servicing plan, sign the application for
Certificate of Approval and deliver same to the Ministry of the Environment.
b. forthwith provide a
draft zoning by-law to the Ontario Municipal Board;
c.
forthwith consent to a hearing of the Board, if it requires it, at the earliest
possible date to finalize draft plan approval and re-zoning
d. take
all steps necessary to clear the conditions and proceed expeditiously to
registration of the subdivision.
CARRIED
MOTION No. ARA 21/4
Moved by: Councillor D. Thompson
Be It Resolved that pursuant to the Drainage Act, clause 4(1)(c), the
City initiate a petition for drainage works for the benefit of Old Prescott
Road in the vicinity of the eastern portion of 1566 Stagecoach Road and that
staff be directed to send out the notices pursuant to the Drainage Act, clause
5(1)(b)
Be It Further Resolved that a report be submitted to the next meeting
of Agricultural and Rural Affairs Committee to provide for the appointment of
an engineer, including a requirement that a preliminary report pursuant to the
Drainage Act, section 10 be submitted.
REFERRED TO CITY COUNCIL
Moved by: Councillor S. Moffat
That Councillor D. Thompson’s motion No. ARA 21/4 be referred to
Council when this item is presented.
CARRIED
That the Agriculture and Rural Affairs Committee recommend to Council:
1.
That the City Clerk and Solicitor
immediately deliver a Notice of Abandonment of the Motion for Leave to Appeal
the decision of the Ontario Municipal Board issued March 28, 2011 on Board File
PL101449.
2.
That the City
Clerk and Solicitor request the Ontario Municipal Board to amend, and approve
as amended, the Menu of Conditions for Draft Plan Approval, amended as follows:
3.
Delete condition
88, as ordered by the Board;
4.
Delete
conditions 71 and 72 and replace them with the following: The Owner will
provide a drainage easement to the municipality over the lands owned by 7657315
Canada Corporation to the point of connection with Tributaries 1 and 2 at the
southern boundary of the property. The Owner will file a petition for a
municipal drain under the Drainage Act over Tributaries 1 and 2 from the point
of connection aforesaid to the Grey's Creek Municipal Drain
5.
That staff
shall:
a. forthwith confirm approval of the
applicants' servicing plan, sign the application for Certificate of Approval
and deliver same to the Ministry of the Environment.
b. forthwith provide a draft zoning
by-law to the Ontario Municipal Board;
c. forthwith consent to a hearing of
the Board, if it requires it, at the earliest possible date to finalize draft
plan approval and re-zoning
d. take all steps necessary to clear the
conditions and proceed expeditiously to registration of the subdivision.
CARRIED as amended
That pursuant to the Drainage
Act, clause 4(1)(c), the City initiate a petition for drainage works for the
benefit of Old Prescott Road in the vicinity of the eastern portion of 1566
Stagecoach Road and that staff be directed to send out the notices pursuant to
the Drainage Act, clause 5(1)(b); and that a report be submitted to the next
meeting of Agricultural and Rural Affairs Committee to provide for the
appointment of an engineer, including a requirement that a preliminary report
pursuant to the Drainage Act, section 10 be submitted.
REFERRED TO CITY COUNCIL