Page 1 1 of 1 DOCUMENT Update Week 2004-38 Planning Case Name: Signum Corp. v. Peterborough (City) [Wal-Mart Canada Corp. Application] Wal-Mart Canada Corp has brought a motion before the Ontario Municipal Board under section 17(45) of the Planning Act, R.S.O. 1990, c. P.13, as amended, to dismiss the appeals without holding a full hearing OMB File Nos. O040056, R040064, R040065 [2004] O.M.B.D. No. 879 File Nos. PL040327, O040056, R040064, R040065 Ontario Municipal Board M. Hubbard, Chair and S.B. Campbell, Vice-Chair Oral decision: August 12, 2004. Filed: August 26, 2004. (19 paras.) COUNSEL: S.A. Zakem, for Wal-Mart Canada Corp. H.G. Elston, for Signum Corporation. J.W. Hart, for City of Peterborough.
Page 2 M.L. Flynn-Guglietti, for Portage Place Limited. DECISION OF M. HUBBARD AND S.B. CAMPBELL, DELIVERED ON A MOTION TO DISMISS AND ORDER OF THE BOARD:-- Motions: 1 Signum Corporation ("Signum") has appealed to the Ontario Municipal Board (the "Board") under subsection 17(24) of the Planning Act (the "Act") in regard to Official Plan Amendment No. 126 of the City of Peterborough ("OPA 126") and further, has appealed to the Board under subsection 34(19) of the Act in regard to Zoning By-Law Nos. 04-037 and 04-038 of the City of Peterborough ("the by-laws"). Wal-Mart Canada Corp. ("Wal-Mart") has brought a motion under subsections 17(45) and 34(25) of the Act to dismiss the appeals. 2 Wal-Mart seeks its costs incurred in bringing this motion on a substantial indemnity basis. Background: 3 Wal-Mart proposes to relocate and expand its existing store, which is currently located in the Portage Place Shopping Centre to a freestanding location in the vicinity of the shopping centre. The proposed store is to consist of 133,555 square feet, while the existing store consists of 96,500 square feet. 4 To accommodate this proposal, Wal-Mart applied to the City of Peterborough (the "City") for an amendment to its Official Plan and for two zoning by-law amendments. The Official Plan Amendment, OPA 126, allows for an adjustment in the boundaries of the Portage Node, one of four Shopping Nodes designated in the Official Plan. OPA 126 expands the Portage Node by including the site proposed for the new Wal-Mart store and redesignating the site to permit commercial uses. The zoning by-laws allow for the proposed commercial use of the site, implement appropriate performance standards and allow for the reorganization and remerchandising of the former Wal-Mart space by providing for flexibility in respect of unit sizes and total floor space permitted. 5 Wal-Mart's applications were filed with the City in July 2003 and were subsequently circulated. A number of reports, including a Market Justification and Impact Report, were submitted in support of the applications. A neighbourhood public meeting and the statutory public meeting were held in February 2004. A staff report was filed with City Council in February 2004 recommending approval of the Wal-Mart applications. OPA 126 and the by-laws were passed by Counsel at a meeting held on March 8, 2004. 6 In September 2001 Signum applied to the City to amend the Official Plan and Zoning By-law
Page 3 97-123 to permit development of a site located in the southern portion of the City. The development proposed for the site is a 250,000 square foot commercial retail facility, including a department store. In support of its applications Signum submitted the requisite reports, including a Retail Market Demand and Impact Study. No staff report has been presented to City Council on the Signum applications and no public meetings have been held. In November 2002 Signum appealed the City's refusal to make a decision on its applications to the Board. In addition, Signum appealed OPA 111, which introduced new commercial policies into the City's Official Plan, to the Board, for, inter alia, its failure to include Signum lands in a Major Shopping Node. Following several hearings, OPA 111 has been substantially approved by the Board except as it applies to the Signum lands. 7 In April 2004 Signum filed a Notice of Appeal of OPA 126 and the By-laws. The Notice of Appeal (Ex 1a, TAB U) sets out Signum's grounds of appeal. In summary, Signum takes the position that OPA 126 "violates the very foundation of the City of Peterborough's commercial structure"; the proposed expansion and relocation of Wal-Mart is "completely at odds with the City's Commercial Structure"; and Signum's proposed Gateway Centre would be "a much more appropriate location for the addition of further retail opportunities in the City of Peterborough". Wal-Mart's Motion to Dismiss: 8 Pursuant to subsections 17(45) and 34(25) of the Act, the Board may dismiss all or part of an appeal, without holding a hearing, if, (a) it is of the opinion that, (i) (ii) (iii) the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the plan or part of the plan that is the subject of the appeal could be approved or refused by the Board, the appeal is not made in good faith or is frivolous or vexatious, or the appeal is made only for the purpose of delay; (b) (c) (d) (e) the appellant did not make oral submissions at a public meeting or did not make written submissions to the council before the plan was adopted and, in the opinion of the Board, the appellant does not provide a reasonable explanation for having failed to make a submission; the appellant has not provided written reasons with respect to an appeal under subsection (24) or (36); the appellant has not paid the fee prescribed under the Ontario Municipal Board Act; or the appellant has not responded to a request by the Municipal Board for
Page 4 further information within the time specified by the Board. 9 Counsel for Wal-Mart, in both written and oral submissions argued that the Signum appeals should be dismissed as the reasons for appeal set out in the Notice of Appeal do not disclose any apparent land use planning grounds upon which the proposal that is the subject of the appeal could be refused by the Board; the appeal is made only for the purpose of delay; and the appellant did not make oral submissions at a public meeting or did not make written submissions to the council before the plan was adopted, and in the opinion of the Board, the appellant did not provide a reasonable explanation for having failed to make a submission. 10 Counsel for both Wal-Mart and Signum cited a number of decisions of the Board which have considered in some detail the "test" for dismissal without a hearing as set out in subsections 17(45) and 34(25) of the Act. Counsel for Wal-Mart focused on the principals enunciated in East Beach Community Association v. Toronto (City), [1996] O.M.B.D. No. 1890 and Orangeville (Town) Official Plan Amendment No. 86, Decision No. 1289, Dated July 30, 2004. In the East Beach case Mr. Lee, writing for the Board, found that in considering a motion to dismiss "the Board is entitled to examine the reasons stated to see whether they constitute genuine, legitimate and authentic planning reasons... the Board is to seek out whether there is authenticity in the reasons stated, whether there are issues that should affect a decision in a hearing and whether the issues are worthy of the adjudicative process"... 11 In the Orangeville OP A 86 case, Mr. Boxma, writing for the Board less than one month ago, cited the East Beach case and again found that when considering a motion to dismiss without a hearing, the Board will inquire into the authenticity of the reasons stated, whether there are issues that would affect a decision in a hearing and whether they constitute genuine, legitimate and authentic planning reasons. 12 Counsel for Signum cites, what this panel of the Board sees, as a different line of cases. In Simmonds v. Etobicoke (City), [1996] O.M.B.D. No. 206 Mr. Krushelnicki, writing for the Board found that to allow an appeal to continue the "Board must simply be satisfied that the grounds for upon which the appeal is made are within the realm of land use planning concerns". In Re. Town of Caledon Zoning By-law 97-76 (1998), 36 O.M.B.R. 206 Mrs. Eger, writing for the Board, said that the test on a motion for dismissal is whether there is a "triable issue". Based on this line of case, Counsel for Signum submits that the matter before this panel of the Board is straightforward; there are planning issues in the Wal-Mart matter like the redesignation of land from low-density residential to commercial, a change in the commercial inventory of lands in the City and a change in designation of land that would allow for the development of a new department store. As these are triable land use planning issues, the appeals should be permitted to go forward. 13 The Board disagrees. The Signum applications are under appeal before the Board. 14 Based on the affidavit evidence submitted by Wal-Mart the Board finds that OPA 126 and By-laws 04-37 and 04-38 are consistent with the City's policies. The Official Plan sets out a
Page 5 multi-nodal retail commercial structure (Attachment 1), which reflects the Wal-Mart site, adjacent to the designated Portage Node and the proposed Signum site in the southwest part sector of the City, which is independent of a Shopping Node designation. 15 The Board finds that the proposal before it represents an incremental expansion of the designated Portage Node and that it reinforces the City's planned commercial structure. 16 The Board finds that the addition of a new node as proposed by Signum would require a total review of the City's commercial policies separate and distinct from the proposal before it. 17 The Board having reviewed the motion materials, the affidavits and considered the argument of Counsel for the parties, grants the motion and dismisses the appeal under subsection 17(45)(a)(i) and (iii) and subsection 34(25)(a)(i)(iii) and ((a).1). 18 The motion for costs will be argued at the Board's Chambers, 655 Bay Street, Toronto at a future date. 19 So Orders the Board. M. HUBBARD, Chair S.B. CAMPBELL, Vice-Chair qp/e/qlcct