Court decision on townhouse development favours town, developer

HARRISTON – An Ontario Superior Court ruling in a dispute between Harriston residents Rolf and Kerri Schuettel and the Town of Minto and its chief building official Terry Kuipers came down largely in favour of the municipality.

Kenilworth-based Quality Developments is also a party to the case with intervenor status.

Justice Catrina D. Braid issued the ruling on July 9, after initially reserving judgement following the presentation of evidence and arguments on March 12 and April 1.

The definition of a “storey” as contained in a Minto zoning bylaw was central to arguments during hearings from a virtual courtroom, presided over by the Kitchener-based judge.

In 2016 the town amended the zoning, from open space to residential exception zone, on a portion of the former Harriston Senior School property to facilitate the development of townhouses.

The town had bought the property for $60,000 from the Upper Grand District School Board in 2012, and later sold the lands for development.

The amendment included relief from required rear yard and interior side yard setbacks, and also from minimum distance between buildings.

The Schuettels appealed the move to the Ontario Municipal Board over a variety of concerns ranging from public notice issues and parking, to storm water management impacts on neighbouring properties.

However, the parties came to an agreement before the matter reached the hearing stage.

OMB minutes of settlement approved on Feb. 3, 2017 indicate the town agreed to an amended version of the original zoning bylaw amendment that allowed for the side and rear yard setback reductions, but required all development to be constructed within provisions of the town’s bylaw regarding “parking, amenity space, garbage facilities and other matters” in a suitable manner.

The settlement also mandates a one-storey height limitation for all developments on the subject lands.

However, as development proceeded on the site, which had changed hands from local developers Jeremy and Jeff Metzger to Kenilworth-based Quality Homes, the Schuettels questioned whether the agreement was being adhered to and eventually filed the case.

In a 20-page written ruling, Justice Braid noted Quality Developments Inc. purchased the property and obtained building permits for townhouse units that have living space on the upper level and the Schuettels subsequently brought an application seeking a declaration that the building permits do not comply with the zoning bylaw, and an order prohibiting the chief building official from issuing any further permits that do not comply with the bylaw.

“The key issue in this case is the interpretation of the zoning bylaw and whether the upper living space in the units is a second storey or a mezzanine,” noted Braid.

She also noted the applicants:

  • state that one of the townhouse units does not comply with the setback requirements;
  • seek a declaration and order restricting the use of a small piece of municipally-owned land beside the development; and
  • requested a stay of construction until the case was decided, and to amend their pleadings in order to request an appeal of the building permits.

In her ruling, Braid indicates she considered the following issues:

  • what was the proper procedure for the applicants to have taken in order to contest the decision of the chief building official?;
  • should the court grant leave to amend the application from a Rule 14 application to a building code appeal?;
  • should the court grant a stay of construction?;
  • should the building permits comply with the zoning by-law?; and
  • should an order be made with respect to the municipal lands?

The ruling states the court grants an order directing the town to prevent the developer from using the municipally-owned land, but the motion and application “are otherwise dismissed.”

The ruling notes the much of application was filed improperly under the Ontario’s Building Code Act (BCA) and outside the 20-day appeal timeframe.

“The applicants are experienced landowners who have previously dealt with the municipality,” Braid wrote in her decision. “At all times, they have been represented by experienced counsel and have also received advice from a qualified land use planner. However, there has been no reasonable explanation for the failure to commence an appeal of the CBO’s decision in accordance with the clear statutory mandate.”

Braid continued, “The relief sought by the applicants would have a significant negative impact on third-party purchasers. Units that do not comply with zoning bylaws may be unmarketable. If a stay had been granted … Quality could have avoided entering into agreements with buyers, lenders and contractors, and could have averted the serious financial consequences that may occur at this late stage of construction.

“This type of situation is what is sought to be avoided by the short limitation period set out in the comprehensive BCA. Since there was no appeal, Quality was well within their rights to honour their contractual obligations to continue with construction and to comply with their obligations to construction lenders.”

The ruling notes the bylaw definition of a storey is ambiguous and could be interpreted in different ways, including, as the town and Kuipers contended, as a “mezzanine.”

“I find that Mr. Kuipers’ decisions fall within the range of reasonable outcomes. His decisions are entitled to deference. Though such deference does not mean that the applicants’ appeal would automatically be futile, they have not satisfied me that there are reasonable grounds for the appeal,” Braid wrote.

Having found the application “was not properly constituted” and that leave should not be granted to amend the Rule 14 application to add an appeal under the BCA, Braid declined to address the question of whether the building permits comply with zoning bylaws.

On the subject of the municipal land adjoining the development, the court ordered it be “only used for emergency turnaround purposes” and not used for parking, storage, snow piling or other purposes associated with the development property. The court also ordered the Town of Minto to erect a gate, as approved by the town’s fire chief, between the development property and the municipal land.

“All other relief sought in the motion and application are dismissed,” the decision states.

Noting the respondents and the intervenor have been successful “on the majority of the issues,” Braid indicated they are entitled to costs. The justice directed the parties to come to an agreement on costs or provide submissions to the court on the issue.

Minto Mayor George Bridge said he was “quite pleased” with the decision, particularly the confirmation of decisions made by Kuipers on behalf of the town.

“I think that the judge came through and said that basically, the way I read the decision, Terry had the knowledge and the capacity to make the decisions that he did and they were the right decisions,” Bridge stated. “I guess that’s the part that I feel good about, because Terry took a lot of heat on that.”

Bridge said the town would have no problem complying with the judge’s direction regarding the municipal land parcel next to the development.

“During construction it was hard to keep that clear, but we’ll fix that the way we were always going to. I have no problem complying with any of that,” he stated, adding he is glad to see the matter resolved in a way that allows the town to move forward.

“Nobody ever wants to go to this length, but at the end of the day we had to defend our decisions. It’s very important that the building inspector’s decisions are respected, because otherwise it’s chaos,” Bridge stated.

“When we bought that land years and years ago the whole idea was to try to get some housing in there. We got the semis, in there, we got the row housing, those are all the types of housing we need to try and keep the costs (of housing) down.”

The Schuettels expressed disappointment with the ruling in a July 12  email statement to the Advertiser. They also note a separate building code appeal on two of the buildings in the development is ongoing.

“In our opinion, it is ironic that it took two years and an awarding of costs against us to get a court order forcing the Town of Minto to do what they already committed to do in 2016 – c’est la vie. This sadly speaks to the nature of the legal system in Ontario,” the couple states.

“During that time, we have had our calls and emails attempting to resolve ignored by council members and staff, we have been threatened with lawsuits by the developer, we have been called out on social media by community members merely for fighting for accountability, fairness and transparency,” the statement continues.

“It goes without saying that we are disappointed at what we have had to endure as taxpayers and community members at the cost of development.  We sincerely hope that there are process improvements undertaken to prevent other taxpayers from the same fate as development continues at a rapid pace in Minto.

“In her ruling, Justice Braid declined to address our concerns that the building permits did not comply with the zoning bylaw to meet the single storey development condition and we cannot comment further on it as there is a properly constituted building permit appeal that was filed in the 20-day limitation period with the court on two of the buildings in the development.”