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Pl120151 Pl130040 in the Matter ISSUE DATE: October 30, 2013 PL120151 PL130040 Ontario Municipal Board Commission des affaires municipales de l’Ontario IN THE MATTER OF subsection 17(40) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: 1388688 Ontario Limited Appellant: 805062 Ontario Limited Appellant: 857529 Ontario Inc. Appellant: Brampton Areas 52,53 Landowners Group Inc.; and others Subject: Failure of The Clerk (Peel) to announce a decision respecting Proposed Official Plan Amendment No. 2006-043 Municipality: City of Brampton OMB Case No.: PL120151 OMB File No.: PL120151 IN THE MATTER OF subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: 1212949 Ontario Inc. Appellant: 1388688 Ontario Limited Appellant: Ivy Manor Estates Inc. Appellant: Lorwood Holdings Inc. Subject: Proposed Official Plan Amendment No. 2006-074 Municipality: City of Brampton OMB Case No.: PL130040 OMB File No.: PL130040 APPEARANCES: Parties Counsel City of Brampton B. Kussner Region of Peel S. Garrod 857529 Ontario Inc. and 805062 C. Facciolo Ontario Limited Lorwood Holdings Inc., Ivy Manor J. Park - 2 - PL120151 PL130040 Estates Inc. and 1212949 Ontario Inc. Osmington Inc. and A. Platt Heathwood Homes (Brampton) Inc. Wal-Mart Canada Corporation and R. Houser (in absentia) Costco Wholesale Canada Limited Northwest Brampton Landowners S. Snider Group Inc. Morguard Investments Ltd. D. Wood Brampton Areas 52, 53 M. Winch Landowners Group Inc. 1388688 Ontario Limited J. Farber (Shoppers World) Brampton Brick Limited R. Webb (in absentia) MEMORANDUM OF ORAL DECISION DELIVERED BY JAMES R. McKENZIE ON JULY 26, 2013 AND ORDER OF THE BOARD [1] The City of Brampton (“City”) has filed a motion seeking: 1. An order partially approving Official Plan Amendment No. 2006-043 (“OPA 43”) to its 2006 Official Plan and 2. An order “affirming that Official Plan Amendment No. 2006-074 (“OPA 74”) to the 2006 Official Plan is in full force and effect as originally adopted by City Council....” [2] OPA 43 implements the results of the City’s exercise to bring its 2006 Official Plan into conformity with the Growth Plan. OPA 74 supplements OPA 43. Since the last prehearing conference on February 27, 2013, the parties have worked to scope and refine the issues remaining in dispute and under appeal. A Consolidated Issues List was filed and marked as Exhibit 7. - 3 - PL120151 PL130040 [3] The motion was not contested. It was supported by an affidavit sworn by Janice Given, a professional planner and the City’s Manager of Growth Management and Special Policy. OPA 74 [4] OPA 74 was appealed under s. 17(24) of the Planning Act. Ms. Given’s affidavit states that, “as a result of the scoping exercise...there are no longer any outstanding issues or concerns raised by any of the four appellants. Accordingly, in my opinion there should be no impediment to the Board confirming that OPA 74 is in full force and effect.” Mr. Kussner confirmed that neither the City nor any of the appellants to OPA 74 would be leading substantive evidence in connection with the appeals. In other words, the unknown-to-the-Board resolution of the appeals worked out by the City and the appellants would not change the form or content of OPA 74 from that in and with which it was adopted. Implicit in the motion, therefore, was an aspiration to have the appeals simply dismissed. [5] As a matter of legislative operation, an appeal is normally addressed through evidence or is withdrawn. In the case of the former, the Board will typically issue an order deciding the appeal. In the case of the latter, the Planning Act provides for a planning instrument’s being in full force and effect upon receipt of a withdrawal. [6] In this case, the Board indicated that evidence would be required if it was the parties’ shared intent to have the appeals dismissed. Following a short break allowing counsel to confer, Mr. Kussner reported that the appeals to OPA 74 would be withdrawn, thus rendering OPA 74 in full force and affect as an operation of law pursuant to s. 17(30) of the Planning Act. OPA 43 [7] OPA 43 was appealed under s. 17(40) of the Planning Act. Given the open-ended nature of the appeal process under s. 17(40), the City submitted that a “partial approval order represents a reasonable and appropriate balance between protecting and promoting the public interest in good and orderly - 4 - PL120151 PL130040 planning, on the one hand, and the private interests of the appellants and other parties in respect of the policies and Schedules that remain under appeal, on the other.” [8] A consolidation of OPA 43 was filed and marked as Exhibit 6. It identifies those elements of OPA 43 remaining under appeal following the scoping exercise as well as those elements not under appeal. The City’s motion seeks an order approving those elements not under appeal. Those policies remaining under appeal will be addressed in future proceedings. [9] Given that the motion was heard on consent, with no responding records filed, the Board accepts and relies on the evidence and professional opinions set out in Ms. Given’s affidavit to find that the elements of OPA 43 included in a partial approval will not prejudice continuing appeals, and finds that those same elements, as reflected in Exhibit 6, are consistent with the Provincial Policy Statement, conform to the Growth Plan for the Greater Golden Horseshoe, conform to the Region of Peel Official Plan, represent sound land use planning, and are in the public interest. ORDER [10] The motion, as it relates to OPA 43, is granted. In all other respects, the motion is dismissed. The Board orders that in accordance with the provisions of s. 17(50) of the Planning Act, OPA 43 is approved in part, subject to the following modifications and exceptions, all as set out in Exhibit 6 which is appended to this decision as Attachment 1: a) those modifications which were endorsed by City Council in December 2012 following the Board’s approval of Regional Official Plan Amendment No. 24, as set out in Appendices 1, 2 and 11 to the City Staff Report dated November 21, 2012; b) further modifications by way of housekeeping changes and corrections to spelling and typographical errors; and c) the exceptions in respect of those policies and land use schedules which are at issue in the outstanding appeals respecting OPA 43, - 5 - PL120151 PL130040 which policies and schedules shall remain under appeal and unapproved on a City-wide basis or (where noted) on a site- specific or area-specific basis, all as indicated by the notation “Appealed to the OMB” on OPA 43 (as modified and partially approved) as indicated in Attachment 1, pending a hearing or other disposition by the Board. [11] Furthermore, the Board orders that the partial approval of OPA 43, as modified, shall be strictly without prejudice to, and shall not have the effect of limiting, (a) the rights of a party to seek to modify, delete or add to the unapproved policies and schedules in OPA 43 or in the 2006 Official Plan, or (b) the jurisdiction of the Board to consider issues in respect of, and to approve modifications, deletions or additions to, the unapproved policies and schedules in OPA 43 and in the 2006 Official Plan on a general, area-specific, or site-specific basis as the case may be. Notwithstanding the foregoing, the Board retains jurisdiction to consider and approve additions to any approved portions of OPA 43 pursuant to this Order, as they may relate to issues which are then properly before the Board. However, parties shall be bound by the commitments made by them to scope their issues to a site-specific or area-specific basis, such that appellants with site-specific or area-specific appeals shall not seek any modifications to the appealed policies or schedules that would be of general application and shall instead be limited to seeking modifications or exceptions that would apply to the specific sites or areas at issue in those appeals. [12] Finally, the Board orders that the remaining appeals filed in respect of OPA 43 shall be determined through the hearing process or as otherwise consented to by the parties and approved by the Board. For that purpose, the Consolidated Issues List marked as Exhibit 7, forms part of this Order and is appended as Attachment 2 to this decision. It will serve as the issues governing the remaining appeals, subject to any need for further clarification or particularization of issues as part of any Procedural Order governing the hearing of an appeal, and subject to the proviso that the inclusion of an issue on Appendix ‘B’ shall not foreclose a party from taking the position that it is not a relevant or legitimate issue for a hearing before this Board. - 6 - PL120151 PL130040 [13] The Board may be spoken to in the event some matter should arise in connection with the implementation of this Order. LOOKING FORWARD [14] A further prehearing conference is scheduled for Tuesday, March 11, 2014, 10 a.m., at: Court Room B7 Provincial Offences Office 5 Ray Lawson Blvd., 2nd Floor Brampton, ON L6Y 5L7 [15] With respect to hearing dates for matters remaining under appeal, the Board directs counsel to confer with a view to identifying suitable dates no earlier than July 2014. “James R. McKenzie” JAMES R. MCKENZIE VICE CHAIR - 7 - PL120151 PL130040 ATTACHMENT 1 City of Brampton Official Plan Amendment No. 2006-043 (“OPA 43”) as Partially Approved by the Ontario Municipal Board July 2013 To Adopt Amendment Number OP 2006-043 to the Official Plan of the City of Brampton Planning Area The Council of The Corporation of the City of Brampton, in accordance with the provisions of the Planning Act, R.S.O.
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