Sunset Lakes Development Ltd. was the only OPA 150 appellant to explicitly appeal the prohibition of future country lot subdivisions (a.k.a. CLEs) to the Ontario Municipal Board. Following an April 2015 pre-hearing on the OPA 150 appeals, the Board ordered a consolidated hearing of Sunset Lakes’ appeals, including outstanding items related to pending applications for expansion of the Village of Greely. This hearing took place on Oct. 19-23, 2015.
We met with the President of Sunset Lakes and with their solicitor, and prepared a pro bono expert witness to help defend Council’s decision on CLEs. However, on September 29, Sunset Lakes announced that it would withdraw its appeal of the CLE prohibition. We therefore did not participate in the hearing but observed it and tweeted a daily summary of the proceedings. The applications primarily turn on water and wastewater issues, Greely being the only “large” village that does not have piped services.
Sunset’s withdrawal leaves the door open for the three parties that appealed “everything” to yet argue against the prohibition of future country lot subdivisions.
On June 17, 2016, Member Conti issued his 36-page Decision. It reaches two conclusions:
(1) The Board has jurisdiction to alter Greely’s village boundaries even though Council had decided against any changes;
(2) Expansion of Greely’s boundaries cannot be justified at this time.
The second conclusion rests on extensive review of the evidence. The Decision also rejects all the precedents cited by the appellant as irrelevant. Based on the evidence, it finds that there is sufficient supply of land and that a 0.4 ha lot size provides better protection for water resources than the 0.2 ha size the appellants wanted. Consequently, the Board approved of the following changes in OPA 150:
+ section 2.2.2, policy 26 (to be moved to section 3.7.1), stating that each of the three large villages (Manotick, Richmond and Greely) should have a jobs-per-household ratio of at least 0.65;
+ section 2.2.1, policies 7 and 9 to 16, stating that at least 50% of the growth in rural areas should be in villages and that most of that will be in the large or medium-sized villages; and various policies related to village boundaries;
+ section 3.7.1, policy 10, stating that for village residential development on private services the minimum lot size will be 0.4 ha.
Still, this is an interim Decision which will officially come into force after the LEAR and Employment Lands studies have been completed and the Parties inform the Board that they have no impact on the conclusions in this Decision; if they do, the hearing will be re-opened and further evidence heard.
While this part of the Decision will be a disappointment to Sunset Lakes Development and its principal, Daniel Anderson, it is the first conclusion, on jurisdiction, that should be of great concern to all of Ottawa and indeed any Ontario municipality.
The jurisdiction issue turns on the interpretation of the words “dealt with” in section 17(50.1) of the Planning Act. That section states that the OMB does not have jurisdiction to approve or modify any part of an Official Plan that (a) is in effect, and (b) “was not dealt with in the decision of council” that approved the OPA.
A 2013 Superior Court decision had concluded that “dealt with” meant that the Board could only approve or modify the parts of the Plan that were changed through the decision of Council. Mr. Conti disagrees, ruling that the wording of the section “allows some flexibility for the Board to modify parts of an official plan in cases where it is clear that those parts were ‘dealt with’ in the decision of Council, even if those parts were not changed.” During the final debate on OPA 150 a motion was put forward to expand Greely’s village boundary but the motion was defeated. Another motion stated that there is no need to amend Village boundaries for any purpose. Concludes Mr. Conti: “There can be no doubt from these clauses that the matter of expansion of the settlement area boundary of Greely was dealt with in Council’s decision.”
Comment: This Decision’s conclusion on the meaning of “dealt with” provides an opening for any matter considered by Council to come within the scope of OMB adjudication, even if the consideration led to a rejection of whatever it was that was proposed. This interpretation is sure to be invoked by OPA 150 appellants to make Mr. Makuch (in whose hands the OPA 150 appeals rest) entertain arguments about, among other things, expansion of the urban boundary. Unless the City appeals this part of the Decision to Divisional Court, the Decision sets the stage for a further ceding of the land use planning agenda to the development industry (refer to Taggart/Walton’s recent win and the October 2015 settlement on Development Charges).
Future arguments may be about just what has to have happened for Council to be considered to have “dealt with” it: An option discussed in a staff report that was or was not recommended but was not adopted? An idea put forward by a public delegation? A motion at Planning Committee that was defeated? Or, as in this case, a motion considered and voted down by Council?
This is not good news for democratic control at the municipal level.
Erwin Dreessen
30 June 2016
