Presentation to theCity of Hamilton Public Hearing into Zoning Planning changes. March 31, 2015
Good afternoon Ladies and Gentlemen:
My name is Gregg Wilson, and I am here for two reasons. The first is to register the companies I work for with the City in order to retain their right of appeal to the OMB. The companies are Waterdown Garden Supplies Ltd and LBM Trucking & Leasing of Troy Ontario. An email was sent to Ida Bedioui of the City of Hamilton with the address and phone numbers of the businesses. Both companies have concerns about the impact of the Plan on the property values of the inhabitants of the area. They also have concerns that the Municipality is acting beyond its authority. The second reason is as a private citizen of Hamilton I am concerned that such overstepping by the Municipality could result in costly litigation.
As many of the Planning Department Staff know I have been asking a lot of questions for the past year about the limits of your authority over Private Property. The Municipal Act States in Sections 10 and 11 Subsection 2 sub 4 that a Municipality has the power to make bylaws respecting:
“4. Public assets of the municipality acquired for the purpose of exercising its authority under this or any other Act” (Municipal Act, 2001)
A Public Asset means an asset that is a "municipal property asset" means an asset of the municipality that is land, equipment or other goods. O. Reg. 599/06, s. 14 (2).
Nowhere in the Municipal Act does it state that these bylaws affect private property.
Since the Municipality has the powers of a Natural Person under Section 9 of the Municipal Act
9. A municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act. 2006, c 32, Sched. A, s. 8. (Municipal Act, 2001)
In addition there is the Planning Act that has Section 25 in it that has the ability of a Municipality to acquire land to develop any feature of the Plan. This would include having the land Zoned.
25. (1) If there is an official plan in effect in a municipality that includes provisions relating to the acquisition of land, which provisions have come into effect after the 28th day of June, 1974, the council may, in accordance with such provisions, acquire and hold land within the municipality for the purpose of developing any feature of the official plan, and any land so acquired or held may be sold, leased or otherwise disposed of when no longer required. R.S.O. 1990, c. P.13, s. 25 (1); 1994, c. 23, s. 17; 1996, c. 4, s. 15. Planning Act R.S.O. 1990,
Your Urban Tree Cutting Bylaw has the definition of “Owner” in its definitions. This definition is:
“owner” means a person having any right, title, interest, or equity in land including right, title, interest, or equity to the trees standing on the land;
The bylaw mentions 10.2.5, the economic, social and environmental interest of the Municipality, but ignores the public assets section directly above it.
What Right Title and Interest does the City have in dealing with something another person owns? Where and how did they gain a right title or interest? My Employer had to pay to buy the property they own. That gives them the Right Title and Interest to it. Where is there compensation to lose some of the rights they have to the land as your bylaw would do.
This was settled 20 years ago in the 1994 case of Attorney General of Ontario Vs Roundtree Beach Association. The private property was deemed to include the beach, despite the wishes of the Municipality to claim the beaches were able to be zoned as public beaches.
The decision stated “Her Majesty the Queen in right of Ontario has no right, title or interest in and to the lands described..” (paragraph 123) (http://caselaw.canada.globe24h.com/0/0/ontario/superior-court-of-justice/1994/03/11/ontario-attorney-general-v-rowntree-beach-assn-1994-7228-on-sc.shtml)
Other examples of Court decisions include Georgian Bluff Township vs Moyer 2012, Saker Vs Middlesex Centre 2001. The Township had to pay fifty-thousand dollars after they tried to enforce a bylaw on private property. In the Saker case it was shown that a piece of Provincial Legislation, let alone a Municipal bylaw did not apply to private property.
The Planning Staff have made their position quite clear to me over the past year. They do not agree with what they refer to as my interpretation of the Municipal Act, nor do they acknowledge the court cases previously mentioned. Under Section 14.1 and 14.2 of the Municipal Act a bylaw (which could be a zoning bylaw), is without effect if:
Conflict between by-law and statutes, etc.
14. (1) A by-law is without effect to the extent of any conflict with,
(a) a provincial or federal Act or a regulation made under such an Act; or
(b) an instrument of a legislative nature, including an order, licence or approval, made or issued under a provincial or federal Act or regulation. 2001, c. 25, s. 14.
(2) Without restricting the generality of subsection (1), there is a conflict between a by-law of a municipality and an Act, regulation or instrument described in that subsection if the by-law frustrates the purpose of the Act, regulation or instrument. 2006, c. 32, Sched. A, s. 10.
My question is: What Acts, regulations, and instruments, licenses, and approvals does the Municipality recognize as having the authority and power to make a bylaw to be without effect? Are there any Instruments that they do not recognize and if so, why not?
The risk for the Municipality and the Councillors and Staff is quite high. There are over half a million laws in Ontario (http://news.nationalpost.com/full-comment/randy-hillier-ontario-being-strangled-by-too-many-laws/) and if your bylaw interferes with any of them, it can be made without effect. A provincial Act could override the bylaw, or a judge could quash it as being ultra vires, that is beyond the powers of the municipality. That is from the Municipal Councillors guide page 30.
I have handed a document entitled “The Municipal Councillor’s Guide: Making Ontario a Better Place to Grow Supplement to 2014, 2015” into the public record. This was done to satisfy the requirements of The Municipal Act Section 448.2.
There will be a speaker in the evening session. His family bought land in Flamborough in 1875. They lived, farmed and ran a business on that land for the last 140 years. Since the 1940’s they have run a repair and fabrication shop on the site. They had all the permits, even getting demolition and construction permits in 2001. The city has no record of this. The Flamborough records are incomplete, and I have spoken to several staff about missing and incomplete records.
Despite this, and despite having the 2001 permit showing, the City initially notified him that he was Agricultural only. After arguing and showing his information, they may give him Legal Non-conforming.
His family has used the land for 140 years, and run a business on it for 70, yet only a few years after Amalgamation the City came out with their Plan for him. Why should he, or anyone conform to the City’s plan? The City has not paid for the property, nor the improvements thereon, yet they come in with a plan, ignoring everything he has done, and the resulting paperwork may end up preventing the landowner from selling his business to another party. It could costs him hundreds of thousands of dollars. Given the broadened definition of injurious affection under the Antrim decision concerns me as a taxpayer. A business may well be able to sue for damages if the decisions of the Municipality costs them money.
Please consider the information and court cases I have entered into the record today. As a citizen of Hamilton I am concerned that overstepping its authority could cost the City, and myself as a taxpayer a lot of money.
Thank you for your time and attention.