Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
December 17, 2021
CASE NO(S).:
PL210233
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Syed Armugham Ishtiaq Ali and Kausar Farzana
Subject:
Minor Variance
Variance from By-law No.:
2006-50
Property Address/Description:
13605 Hurontario Street
Municipality:
Town of Caledon
Municipal File No.:
A 007-21
OLT Case No.:
PL210233
OLT File No.:
PL210233
OLT Case Name:
Ali V. Caledon (Town)
Heard:
October 18 and 19, 2021 by video hearing
APPEARANCES:
Parties
Counsel
Town of Caledon
Alana Vandervoort
Syed Armugham Ishtiaq Ali and Kausar Farzana
Ron Sleightholm
DECISION DELIVERED JATINDER BHULLAR AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This matter is an appeal from a refusal by the Town of Caledon (the “Town”) of an application for the authorization of a minor variance application to allow for a “transportation depot” as a permitted use so that the stretch limousine service operating out of the property known municipally as 13605 Hurontario Street (the “Subject Property”) could continue to operate. The appeal is filed by Syed Armugham Ishtiaq Ali and Kausar Farzana (“Applicant/Appellant”).
2The Applicant/Appellant was served with a Notice of Violation of Permitted Uses by the Town relating to their stretch limousine operations on the Subject Property. .
3For the reasons that follow, the Tribunal denies the Appeal.
WITNESSES
4The Applicant/Appellant called three witnesses at the hearing. Syed Armugham Ishtiaq Ali (Exhibit 1) presented evidence on his own behalf as an Applicant/Appellant. William Maria (Exhibit 12) a Professional Engineer was qualified by the Tribunal to provide expert opinion evidence in the area of traffic engineering. Andrew Walker (Exhibit 1 and 3) a Professional Planner, was qualified to provide expert opinion evidence in the area of land use planning.
5The Town called Rob Hughes (Exhibit 4), a professional Planner who was qualified by the Tribunal to provide expert opinion evidence in the area of land use planning.
ISSUES
6In order for the Tribunal to allow the Appeal, it must be satisfied that the four tests set out under s. 45(1) of the Planning Act are met. The tests are as follows;
They are
does it maintain the general intent and purpose of the official plan;
does it maintain the general intent and purpose of the zoning by-law;
is it desirable for the appropriate development or use of the land; and
is it minor.
OFFICIAL PLANS
7The application consideration requires assessment against the region of Peel Official Plan (the “POP”) and the Town Official Plan (“COP”).
8Mr. Ali testified that he has been operating the business since around 2013. He also stated that he has paid taxes related to commercial use for his business. He also presented evidence of good stewardship in carrying out his business giving examples of helping stranded motorists, providing camera footage for helping the police in carrying out their activities and general charitable and other work.
9Mr. Ali also testified that there are adjacent properties where commercial activities are taking place while these properties have the same zoning permissions as his property. He specifically cites a mechanics training business set up at a property on the relatively opposite side of Highway 10.
10He stated that their garage and the house are used primarily for residential purposes. Mr. Ali during cross-examination by counsel for the Town admitted that the inspection sheets for taking the limousines out or returning these as well as the keys to be picked up or returned are kept in the garage as well as some of the related paperwork. He also admitted that some of the activities that take place as part of the required inspections before the vehicles are taken out by the drivers include testing lights, sound horns, and other safety features.
11Mr. Maria reviewed the traffic in and out of the Subject Property. He opined that the limited amount of traffic and the business being more active during non-business days would not create any traffic issues with respect to the limousines leaving or returning to the Subject Property.
12Mr. Maria was asked about the need for a Ministry of Transportation (“MTO”) permit being required if there is a land use change. Mr. Maria responded that he was not able to provide opinion regarding this issue. He did suggest that any changes as per the proposed site plan which propose to have wider access to Highway 10 as well as possible other improvements at the entrance to the Subject Property would require MTO involvement or permit.
13Mr. Walker stated that the Subject Property is designated prime agricultural. He reviewed policies in s. 3.2 of the POP and opined that the proposed operation does not impact protection of prime agricultural areas. He stated that the vacant portion of the lot is too small to sustain agricultural operations. Under cross examination he admitted that parts could be used with other surrounding lands for agricultural purposes.
14Mr. Walker reviewed the POP and cited goals stated in policy 1.3.6.3 and opined that the proposed use would contribute towards Town’s vitality and competitiveness including through payment of proposed usage extra taxes.
15Mr. Walker continued with the POP review and stated that the proposed use is in line with the policy 3.2.2.8 which permits secondary uses.
16Mr. Walker referring to the COP stated that the Subject Property is located with easy access to major road network providing for efficient operation of the business use carried out by the Applicant/Appellant.
17He opined that the proposed minor variance thus meets the intent and purpose of the POP and the COP.
18Mr. Hughes reviewed the Region of Peel staff assessment that the business is not a permitted use as carried out at the Subject Property. Mr. Hughes stated that the garage is used for commercial purposes.
19Mr. Hughes testified that there are no serviced (MS) or un-serviced (MU) areas designated for commercial purposes south of Victoria street which is North of the Subject Property. Mr. Hughes opined that the requested “transportation depot” is only allowed in the designated commercial areas so situated in the general industrial area so designated. He further asserted that such uses are not established on primary roads but internal secondary roads.
20Mr. Hughes also addressed that the comparison with home occupations is not appropriate vis-a-vis the transportation depot use. He stated that whereas the home occupations would allow for certain number and types of vehicles to be parked as part of home occupation use, it does not allow for the capacities or classification of what a transportation depot would allow. Mr. Hughes opined that any comparison of the proposed use with home occupations is inappropriate.
21Mr. Hughes concluded in his review of the policies in the POP and COP and opined that the requested transportation depot does not maintain the intent and purpose of the POP or the COP and that such uses are only permitted in general industrial designated areas of the Town. He added that there are possibilities for the Applicant/Appellant to so situate his business functions in such appropriate area.
22Having considered the evidence on file and the evidence and submissions presented at the hearing, the Tribunal finds that the evidence presented by Mr. Hughes substantially demonstrates that the variance sought would virtually rezone the Subject Property through transportation depot as though it was general industrial.
23The Tribunal notes that whereas Mr. Ali implored that he has readjusted his fleet to smaller Mercedes Sprinter Vans versus the previous stretch limousines, the Tribunal must consider land use planning which survives property owners and must use this lens in reviewing the presented evidence. The Tribunal also notes that examples presented of possible others using similarly zones properties for commercial purposes whether officially permitted or not does not lead naturally to approval of a variance as sought. The Tribunal must heed the designated and permitted land uses as a basis for determination of possible neighbourhood character and appropriately weigh merits of a land use planning application.
24In due consideration thereof, the Tribunal finds that the proposed variance does not maintain the intent and purpose of the POP and the COP.
ZONING BY-LAW
25Mr. Walker in his review of the Town’s Zoning By-law No. 2006-50 (the “ZBL”) spent considerable time to liken the proposed transportation depot to “Home Occupations” as set out in the ZBL. Under cross-examination he admitted that neither the application before the Town nor the Appeal before the Tribunal seeks a variance to the “Home Occupations” provision in the ZBL.
26In spite of Mr. Walker’s response, the Applicant/Appellant submits that the application should be considered as a variance from Home Occupations provisions in the ZBL and the difference in the Applicant/Appellant’s request for transportation depot versus home occupation is only a matter of semantics. Further adding that the variance simply is for home occupation with accessory parking area.
27Mr. Hughes testified that the differences in a transportation depot like use and home occupations use is substantial. Mr. Hughes cited some differences in terms of location of a permitted use to a secondary road access versus primary road like Highway 10; the quantitative differences in numbers and types of vehicles based on their tonnage; the area coverage for home occupation versus the total lot size as Mr. Hughes opined that the garage is used for business.
28The Tribunal has to address what the application before the approval authority was and that continues in an appeal before this panel. The Tribunal finds that it cannot consider the matter as a variance from “Home Occupations” in the ZBL. This was not the application that the approval authority made a determination upon that led to this appeal.
29The Tribunal finds that the requested variance for transportation depot does not meet the intent and purpose of the ZBL.
DESIRABLE FOR APPROPRIATE DEVELOPMENT OR USE
30The Tribunal heard from Mr. Ali and Mr. Walker that the proposal supports the vitality and economic well being of the Town. Mr. Walker emphasised that desirability of easy access to major roadways was a positive.
31Mr. Hughes opined that the requested permitted use is actually a focus for different designated employment, industrial or commercial areas of the Town. He also added that such uses are directed towards secondary roads for operational reasons among others for prepping or testing of vehicles, testing of safety features, maintenance and other functions.
32The Tribunal finds that the Applicant/Appellant evidence does not establish that the proposed variance is desirable for the appropriate development or use of the Subject Property or lands.
MINOR
33Mr. Hughes opined that the requested permitted use of transportation depot does not exist in the prime agricultural area based A1 designation; as is the Subject Property.
34Whereas Mr. Walker likens the requested variance to “Home Occupations” there is substantial differences between what the two are defined as in terms of parameters of permitted uses. He stated that the transportation depot falls under employment and industrial functions and not under the ZBL “Home Occupation” provisions and designation. He opined and summarized that such a porting of a permitted use between these significantly different land use planning functions is not minor.
35The Tribunal having considered all the evidence before it finds that the requested variance is not minor.
ORDER
36The appeal is dismissed and the requested variance to Town of Caledon By-law No. 2006-50 is not authorized.
“Jatinder Bhullar”
JATINDER BHULLAR
MEMBER
Ontario Land Tribunal
Website: 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.