Law Times

Law Times • sepTember 17, 2018 Page 3 www.lawtimesnews.com Homeowner fighting condo development with challenge BY AIDAN MACNAB For Law Times A n Ottawa homeowner trying to prevent a condo development in his neighbourhood is challenging provisions in the Planning Act that allow devel- opers to turn single-story houses into three-storey apartment complexes as unconstitutional. Dr. Hadi Salmasian argues that the use of applications for minor variances to zoning by- laws is unconstitutional, violat- ing the doctrine of vagueness and his s. 15 Charter rights guar- anteeing equality under the law. These minor variances are being systematically abused and used as a "development tool," says Denis Rancourt, co- ordinator of the self-represented litigants working group at the Ontario Civil Liberties Asso- ciation. The OCLA is assisting Salmasian with legal research and litigation logistic support. In Salmasian's notice of con- stitutional question, he states the development is "at odds with the dominant character of the neighbourhood and of the city block, which consists of one- and two-storey, detached single- family dwellings." Salmasian was advised by the OCLA that he could challenge the minor variance provision on constitutional grounds. "This is how neighbourhoods get devastated by developers . . . through this minor variance abuse," Rancourt says. Rancourt says Ontario's mi- nor variance provisions don't define "minor," which allows the committee "free reign" to deter- mine what is minor. Rancourt says developers use the minor variance provision as a "planning tool" to make major changes to dwellings, which in turn impose major changes to the character of the neighbour- hood. The developer, 170 Preston LTD., applied to Ottawa's Com- mittee of Adjustments to demol- ish a one-storey home and build a three-storey, three-unit apart- ment. Salmasian filed a notice of constitutional question, which was heard June 6, and the com- mittee dismissed Salmasian's objections and refused to hear the constitutional question, au- thorizing the minor variance application. Salmasian appealed to the Local Planning Appeal Tribunal and is arguing that the tribunal lacks jurisdiction over the mat- ter. His case will be heard by the tribunal on Oct. 3. The variances sought by 170 Preston LTD. were to a bylaw meant to prevent properties from being used as rooming houses. 170 Preston LTD. is repre- sented by Emma Blanchard of Borden Ladner Gervais LLP. In a letter to the Local Planning Ap- peal Tribunal, Blanchard states that the constitutional issues are beyond the tribunal's jurisdic- tion and that at the committee stage, counsel for the City of Ot- tawa advised the same. "Our principle concern is that time not be lost," Blanchard wrote. "The Appellant, in his Notice of Appeal, focuses on constitutional, Charter and ju- risdictional arguments. There are no issues raised relating to the minor nature of the variance sought or to the general intent and purpose of the Zoning By- law and official plan. "We ask that the LPAT con- sider a direction that the hearing shall be restricted to the issue of appropriate development." Blanchard continues to request that constitutional appeals not be heard by the tribunal and be directed to the Superior Court. Blanchard did not respond to a request for comment. Laws that are vague are in- valid because they fail to provide citizens with fair notice and in- crease the state's discretionary power, wrote Marc Ribeiro in "The vagueness doctrine in Ca- nadian constitutional law: a bal- anced approach." "If you're going to start con- straining people's rights, then you have to spell out under what condition you can do that," says Rancourt. Michael Fenrick, a partner at Paliare Roland Rosenberg Roth- stein LLP, says the Constitution "does not protect a right not [to] have development in your back- yard." Fenrick says applications for minor variances are common. "Variances are frequently re- quested by homeowners and de- velopers. If an interested person, like a neighbour, is upset about an administrative decision, he or she has the option to go to court to have the decision reviewed by a judge who will apply accepted principles and make a determi- nation as to whether the request- ed variance satisfies the legal test for a minor variance," he says. "Lawyers and their clients should expect that neighbours and others may object to minor variance applications, and en- sure that any application they make falls within the accepted legal standard or risk expensive litigation through multiple ad- ministrative decision-makers and ultimately in the courts." Fenrick says that, in his opin- ion, the constitutional argu- ments in the case, as he reads them, may be "doomed to fail, quite apart from the jurisdic- tional issues." "The starting premise is that courts are quite rightly very re- luctant to recognize Charter rights based on property inter- ests," he says. "The crux of the argument appears to be that Dr. Salmasian is affected as a property owner in a neighbourhood where de- velopment is occurring. "I do not think if this matter comes before a court that a judge will look favourably on such a rights claim." LT — With files from Gabrielle Giroday NEWS Expanding capabilities to the Canadian legal market with Epiq acquires Crawford Class Action Services and Bruneau Group — offering unmatched expertise through major markets across Canada: • Class action settlements • Data breach response • Government and regulatory remediation matters • National and international legal notice programs Learn more at epiqglobal.com Business Process Solutions | Class Action & Mass Tort | Court Reporting | eDiscovery | Regulatory & Compliance | Restructuring & Bankruptcy People. Partnership. Performance. Untitled-6 1 2018-08-01 3:56 PM An Ottawa homeowner is trying to stop a condo development in his neighbourhood by challenging provisions contained in the Planning Act.

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