Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 10, 2021
CASE NO(S).: OLT21-001084
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Remo Discano (RNLD Holdings Inc.)
Subject: Minor Variance
Property Address/Description: 1166 London Road
Variance from By-law: Sign By-law 55 of 2016 – Sections 5.7 and 7.1(b)
Municipality: City of Sarnia
Municipal File No.: A35/2021
OLT Case No.: OLT-21-001084
OLT File No.: OLT-21-001084
OLT Case Name: RNLD Holdings Inc. v. Sarnia (City)
Heard: December 1, 2021 by video hearing
APPEARANCES:
Parties
Counsel*/Representative
Remo Discano
Guy Langevin
City of Sarnia
Olivia Nisbet*
DECISION DELIVERED BY C. HARDY AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Remo Discano (“Appellant”) owns the property known municipally as 1166 London Road (“Subject Property”). The Subject Property is zoned Commercial Centre 1-12 (CC1-12) in Zoning By-law No. 85 of 2002 and designated Commercial Centre in the City of Sarnia’s (“City”) Official Plan (“OP”).
2The Appellant proposes to place an electronic freestanding sign with an animated display (“Proposed Sign”) at the front of the Subject Property. In support of this proposal, the Appellant applied to the City Committee of Adjustment (“COA”) for a minor variance (“Application”) from the regulations of the City’s Sign By-law No. 55 of 2016 (“By-law”) to request relief from: (a) s. 5.7 prohibiting electronic signs within 100 metres (“m”) of a residential area; and (b) s. 7.1(b) prohibiting animated signs (“Variances”)
3The City’s Staff Report (“Staff Report”) provided a detailed report to the COA to support the recommendation that the Application be approved, subject to the following conditions:
The electronic message board feature be turned off between 11 p.m. and 6 a.m.;
The sign has a minimum display time of 30 seconds between changes in copy;
The sign be equipped with automatic dimming technology which adjusts its brightness in direct correlation to ambient light conditions, to the satisfaction of the Chief Building Official; and
The sign be located outside of the 2.13 m proposed road allowance widening whereby no part of the sign shall extend beyond or overhang this limit.
4At the COA meeting of May 11, 2021, the COA gave the following reasons for refusing the Application:
It was the decision of the Committee of Adjustment that the Minor Variance Application is REFUSED as the proposed animated / electronic messaging sign does not meet the intent of the sign by-law and is not minor in nature as animated signs are specifically prohibited by the sign by-law, and electronic messaging signs are to be located at least 100 m outside of a residential area.
5The Appellant appealed to this Tribunal pursuant to s. 45(12) of the Planning Act (“Act”).
HEARING
6The Appellant was represented by Guy Langevin. Mr. Langevin provided submissions to the Tribunal and called the Appellant as a witness.
7The City was represented by Olivia Nisbet. Ms. Nisbet provided brief submissions to the Tribunal and did not call any witnesses.
8The Tribunal received one request for Party Status (“Request”) from Debbie DiBrita two days in advance of the hearing. Ms. DiBrita indicated in the Request that she has lived to the north of the Subject Property on Ryan Street for 41 years and is concerned about the light from the Proposed Sign impacting her property. Ms. Dibrita’s name appears on the City’s Notice List and her submission of correspondence is recorded in the Minutes of the COA meeting. None of the Parties objected to the Request and the Tribunal granted Party status to Ms. DiBrita. Ms. Dibrita’s Request was entered as Exhibit 1.
9Ms. DiBrita acted on her own behalf. She provided submissions to the Tribunal and did not call any witnesses.
10None of the Parties called any expert witnesses to provide land use planning opinion in aid of their respective positions.
APPELLANT’S POSITION
11The Appellant submitted that the fabrication of the Proposed Sign meets the By-law requirements in all respects. The relief requested is necessary as the By-law does not permit electronic signs within 100 m of residential areas nor does it permit animated signs.
12The Appellant advised the Tribunal that they are relying on their submissions in their Application. The Application is contained in the Municipal Record which was entered as Exhibit 2. The Staff Report supported the Application and found that the test for a minor variance had been met.
13Mr. Langevin submitted that light pollution already exists in the area and that the conditions imposed by the City in the Staff Report will reduce any additional light impacts from the Proposed Sign.
CITY’S POSITION
14The City did not provide detailed oral submissions to the Tribunal. Ms. Nisbet maintains the City’s position in the Staff Report which supports the approval of the Variances. Ms. Nisbet did note that the conditions imposed by the City in the Staff Report mitigate potential light pollution and that the Proposed Sign conforms with the general intent of the By-law.
PARTY’S POSITION
15Ms. DiBrita submitted that the Variances should be denied as the placement of the Proposed Sign is within 100 m of a residential area which is not permitted pursuant to the By-law. Ms. DiBrita also submitted concerns regarding light pollution caused by the Proposed Sign impacting the residential neighbourhood to the north of the Subject Property.
16Ms. DiBrita’s view is that the COA denied the Application and that decision should stand. She is concerned that permitting the Proposed Sign will open the door for other commercial properties on London Road to erect signs which will contribute to the light pollution that already exists in the area.
17The Tribunal relied on the Municipal Record and the Parties’ oral submissions in adjudicating this matter.
ISSUES AND ANALYSIS
18In order to permit the placement of an electronic freestanding sign at the Subject Property, the Appellant requires relief from both s. 5.7 and s. 7.1(b) of the By-law. Section 5.7 of the By-law prohibits electronic signs within 100 m of residential areas. The rear of the Subject Property is within 100 m of a residential area. Section 7.1(b) prohibits animated signs which the Appellant is proposing to place at the front of the Subject Property.
19The Tribunal recognizes the fact that the City Staff Report has recommended approval with conditions and that the COA denied the Application. The Tribunal further recognizes that there is no contradictory evidence to the Municipal Record, or the documents contained therein. Although not qualified as expert evidence, this includes the planning overview and opinions and recommendations of City Staff which is of assistance in considering the four tests.
20Pursuant to s. 45(1) of the Planning Act, four tests must be considered when evaluating a minor variance application. The four tests are as follows:
Do the Variances meet the general intent and purpose of the Official Plan;
Do the Variances meet the general intent and purpose of the Zoning By-law;
Are the requested Variances minor in nature; and
Are the requested Variances desirable for the appropriate development or use of the land, building or structure.
Do the Variances meet the general intent and purpose of the OP?
21The Subject Property is designated Commercial Centre in the OP. In accordance with s. 4.6.3.1 of the OP, retail commercial is recognized as the primary use within the Commercial Centre designation. The Staff Report stated that the existing use is permitted within the Commercial Centre 1-12 zone.
Do the Variances meet the general intent and purpose of the ZBL?
22With respect to s. 5.7 of the By-law, the Staff Report noted that the residential area within 100 m of the Proposed Sign is located at the rear of the Subject Property and fronts onto Ryan Street. There is a 2-storey commercial building located between the Proposed Sign and the residential area to the rear. The By-law prohibits electronic messaging displays within 100 m of residential areas (emphasis added). The potential light pollution from a non-electronic backlit sign (which is permitted) would affect the residential properties to the rear in a similar manner as would an electronic sign, which is being proposed.
23With respect to the prohibition of animated signs pursuant to s. 7.1(b) of the By-law, the Staff Report noted that animated signs have been approved in similar predominately commercial areas throughout the City with conditions limiting frequency of transitions and brightness.
24The Staff Report stated that, in their opinion, the proposed conditions mitigate potential impacts of the Proposed Sign and as such, it conforms with the general intent of the By-law.
25Ms. Nisbet inquired whether the Appellant would consider a longer window than that recommended in the Staff Report as set out in paragraph 3 above. Ms. Nisbet suggested that turning off the Proposed Sign for a longer period during the night may address some of Ms. DiBrita’s light pollution concerns. The Appellant agreed that the Proposed Sign could be shut down daily from 10 p.m. – 7 a.m. Ms. DiBrita inquired whether the Proposed Sign would be turned off completely during this window. Mr. Langevin replied that the electronic function of the sign would be turned off during the hours of 10 p.m. – 7 a.m. He noted that the Proposed Sign would continue to be backlit similar to other commercial signs and this is permitted in the By-law.
Are the Variances minor?
26The Staff Report stated that in their opinion, the proposed conditions set out in paragraph 3 above place restrictions on the Sign which make its impact similar to standard backlit signs which are common on London Road.
Are the Variances desirable for the appropriate use or development of the land?
27The Staff Report stated that the proposed location and size of the Proposed Sign is similar to other commercial signs on London Road. It was further noted that the proposed conditions noted in paragraph 3 above would mitigate impacts that the Proposed Sign may have on motorists or nearby residents.
CONCLUSION
28Based upon a thorough review of the Municipal Record, inclusive of the Planning Staff Report, and the oral submissions of the Appellant, the City and Ms. DiBrita, the Tribunal finds that the proposed Variances meet the general intent of the OP, meet the general intent of the By-law, are minor in nature and are desirable for the appropriate development or use of the land.
29The Tribunal discussed the 4 proposed conditions contained in the Staff Report with the Parties. It was agreed that the conditions were appropriate, and it was further agreed that the electronic message feature of the Proposed Sign will be turned off between the hours of 10 p.m. – 7 a.m.
30The Tribunal will impose the conditions that were proposed in the Staff Report with the extension of the window of time that the electronic messaging feature of the Proposed Sign will be turned off.
ORDER
31The Tribunal orders that the appeal is allowed in part and the Variances to Sign By-law No. 55 of 2016 are authorized, subject to the following conditions:
The electronic message board feature be turned off between 10 p.m. to 7 a.m.;
The sign has a minimum display time of 30 seconds between changes in copy;
The sign be equipped with automatic dimming technology which adjusts its brightness in direct correlation to ambient light conditions, to the satisfaction of the Chief Building Official; and
The sign be located outside of the 2.13 metres proposed road allowance widening whereby no part of the sign shall extend beyond or overhang this limit.
“C. Hardy”
C. hardy
MEMBER
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.