A motion to repeal the two zoning by-laws granting the Salvation Army the ability to build its contentious shelter project at 333 Montreal Rd. will go before full City Council this Wednesday.

The City’s top lawyer says council does have the authority to revisit a matter passed by a previous council, so Coun. Mathieu Fleury’s motion, calling on the City to repeal the by-laws, will be tabled and can be approved or rejected by a majority of councillors as normal.

But Rick O’Connor says repealing the zoning is not risk-free.

“If passed, this motion will have implications for the ongoing litigation in respect of these two by-laws, which is present before the Local Planning Appeals Tribunal (LPAT),” O’Connor says in a memo sent to councillors Friday morning. “That said, case law has established that a municipal council has the jurisdiction to repeal a by-law that is being considered by the LPAT. In this particular matter, repealing the by-laws will result in a non-decision scenario for the applications by the Salvation Army.”

O’Connor says the Salvation Army would be able to further appeal to the LPAT should the by-laws be struck down. He also says the Salvation Army could sue.

Fleury’s motion, which he first brought to City Council June 12, is predicated upon the fact that the Salvation Army does not actually own the property on which it intends to build. Fleury had suggested the Salvation Army misled the previous council, of which he was a member, about its ownership of the land. The Salvation Army maintains it has been clear that it did not own the property, but had a conditional offer on it.

O’Connor says the Planning Act does not require the applicant be the registered owner of the property it is seeking to rezone, so the question of ownership is moot. He also disagrees with the suggestion council was misled in 2017, when they approved the rezoning application.

“There appears to be a misconception as to when members of council learned that the Salvation Army’s ownership interest was pursuant to an agreement of purchase and sale,” O’Connor says. He points out that the issue was raised at the LPAT in January but the City’s legal team took the position that council knew the Salvation Army did not own the land when the zoning application was approved.

“The City took the position that Council was aware of that information at the time it made its decision and in this regard relied on the Council Report (page 75, Document 4) which contains both the comment (Comment 64) that the owner is incorrectly listed as the Salvation Army and the staff response to this concern clarifying that the Governing Council of the Salvation Army of Canada has indicated they are the site owner through a conditional purchase and sale agreement,” O’Connor says.

He further says Coun. Fleury asked a Salvation Army representative directly whether they owned the property at the Nov. 14, 2017 Planning Committee meeting, reproducing the question and answer as follows:

Councillor M. Fleury: Mr. Barrett, one last question – can you confirm that the Salvation Army does not currently own the site and that it actually depends on the zoning going through for the purchase to go through?

 Jeff Barrett: I confirm that we do not own the site but we do have a firm conditional offer in place.

 Councillor M. Fleury: Thank you.

You can listen to the exchange here.

O’Connor also points out a motion by Fleury that was carried by Council Nov. 22, 2017 that calls on the City to repeal the zoning application for the property if the Salvation Army ceases to operate the proposed facility.

“It can be inferred from this Motion that, if Council determined the approval was specific to the plans put forward by the Governing Council of the Salvation Army of Canada, then the zoning by-law permitting the shelter use would be repealed should another operator take possession of the property,” he says. “In other words, if the purchase and sale agreement is not completed and the Salvation Army therefore never takes possession of the property in question, then the shelter use would not be permitted and the zoning by-law repealed at that time.”