Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 07, 2022
CASE NO(S).: OLT-22-002030 (Formerly, PL190414)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: City of Mississauga
Applicant: 957661 Ontario Ltd.
Subject: Minor Variance
Variance from By-law No.: 0225-2007
Property Address/Description: 595 Winston Churchill Blvd.
Municipality: City of Mississauga
Municipal File No.: A262/19
OLT Case No.: OLT-22-002030
Legacy Case No. PL190414
OLT Lead Case No.: OLT-22-002030
Legacy Lead Case No.: PL190414
OLT Case Name: City of Mississauga v. Mississauga (City)
Heard: February 8, 2022 by Video Hearing
APPEARANCES:
Parties
Counsel/Representative*
Liguori Investments Inc. ("Applicant")
Nicholas Dell
City of Mississauga ("City")
Lia Magi*
MEMORANDUM OF ORAL DECISION DELIVERED BY M. RUSSO ON FEBRUARY 8, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1On June 20, 2007, the City adopted By-law No. 0225-2007, as amended, (the "ZBL") being the Mississauga Zoning By-Law.
2The Applicant owns 595 Winston Churchill Boulevard in the City, a property zoned D – Development under the ZBL (the "Subject Property").
3The Applicant applied to the City’s Committee of Adjustment (the "C of A") to permit a minor variance to allow outdoor storage associated with an office use for small motor vehicles, whereas the ZBL does not permit outdoor storage associated with an office use in this instance.
4On August 22, 2019, the C of A approved the Minor Variance subject to terms and conditions for a temporary period of five years, lapsing on September 30, 2024 ("C of A Decision").
5On August 28, 2019, the City appealed the C of A’s Decision to the Local Planning Appeal Tribunal as it then was, (now the Ontario Land Tribunal (the "Tribunal")) on the grounds that the four tests of a minor variance pursuant to s. 45 of the Planning Act (the "Act") were not met.
6The Parties have agreed to settle the Appeal, on the terms provided to the Tribunal, and further, to be considered at this Settlement Hearing.
Site Context and Surrounding Area
7The Subject Property is located south of Royal Windsor Dr., west of Avonhead Rd., north of Lakeshore Road West, and east of Winston Churchill Blvd. This area is generally referred to as "Southdown" Employment Area in the City.
8The Subject Property is currently occupied by a one-storey building and a parking lot.
9The Subject Property has 99.92 metres ("m") of frontage on Winston Churchill Blvd. and a depth of approximately 264.15 m. The lot area of the Subject Property is 20,252.2 square metres ("m2"), as shown on the Site Plan (Exhibit "1").
10To the south of the Subject Property, there appears to be an outdoor storage for motor vehicles located at 555 Winston Churchill Blvd. To the north of the Subject Property, there is a single detached residential dwelling and further north, is a commercial property (Glenwood Tree Service Inc.) with a large surface parking lot. Immediately east appears to be active farmlands and woodlots. Further east, the properties located on Hazelhurst Road, appear to be used for outdoor storage for shipping containers, construction materials, and large motor vehicles such as trucks and school buses. Lands to the west of Winston Churchill Blvd. are under the jurisdiction of the Town of Oakville, and appear to be active farmlands, and further west are residential subdivisions.
Proposal Description
11The Applicant is seeking to maintain the existing one-storey building as an office use on the Subject Property and to construct a temporary parking lot around the existing building to store small motor vehicles (the "Proposal"), as shown on the Site Plan (Exhibit "1").
12The proposed temporary parking lot will have a total area of 3,135 m2, providing 86 temporary parking spaces in total and includes two accessible parking spaces.
STATUTORY TESTS REQUIRED
13Although a settlement has been reached by the Parties, the Tribunal is still tasked to determine if the relief of the ZBL sought and the variances before the Tribunal are consistent with the Provincial interests as set out in the Provincial Policy Statement, 2020 (the "PPS") and the four tests as set out in s. 45(1) of the Act.
14More specifically, the Tribunal must determine if:
the variance is consistent with the PPS 2020?
does the variance meet the intent and purpose of the City’s Official Plan ("OP") and Region of Peel OP (the "Regional OP")?
does the variance meet the intent and purpose of the ZBL?
Is the variance appropriate and desirable?
is the variance minor in nature?
LAND-USE PLANNING WITNESS
15On consent of the Parties, Mr. Theodore J. (TJ) Cieciura was the lone witness that appeared and provided viva voce testimony at this Hearing. Mr. Cieciura’s Curriculum Vitae (the "CV") and Acknowledgement of Expert Duty form were provided in Exhibit 1 for the Tribunal’s consideration.
16With no objection heard and upon review of Mr. Cieciura’s CV and Acknowledgement of Expert Duty form, the Tribunal duly swore and qualified the witness to provide opinion evidence in land-use planning at these proceedings.
THE HEARING
17Having been provided the following submissions on consent from Counsel and the Applicant’s representative, the Tribunal marked these submissions as follows:
i. The Affidavit of Theodore J. (TJ) Cieciura – Exhibit 1
ii. Draft Order- 595 Winston Churchill Blvd.– Exhibit 2
18Mr. Cieciura provided a brief overview of the chronology of the Proposal, as well as a description of the variances sought, and the conditions the Parties have settled on and are before the Tribunal.
19Mr. Cieciura provided the Tribunal his overall summary opinion on the Proposal viva voce and relied and adopted (as provided in Exhibit 1) his analysis in his affidavit for the Tribunal’s consideration.
20Mr. Cieciura summarized for the Tribunal, that, in his professional opinion, the proposed variance has regard for Provincial Interest, is consistent with the PPS and, subject to the City's conditions of approval, is appropriate and represents good planning in the public interest. He further opined that the Minor Variance sought:
meets the general intent and purpose of the City OP and also the Regional OP;
meets the general intent and purpose of the ZBL;
is desirable for the appropriate development of the land; and,
is minor in nature.
The PPS
21The PPS sets out high level goals for the planning of land use in Ontario. Generally, it promotes efficient development and land use patterns, long term economic prosperity, wise use and resources, and protecting public health and safety.
22It was the opinion of Mr. Cieciura that the Proposal, seeking permissions for temporary outdoor storage associated with an office use for small motor vehicles, where one one-storey office building and a parking lot currently exists, represents an efficient development and land use of the Subject Property and is consistent with the policies of the PPS. This he opined is further reinforced by the temporary permissions sought and the conditions agreed to by the Parties ensuring any continued use requiring further approvals and requiring a more rigorous analysis (requiring a rezoning application).
THE FOUR TESTS AND S. 45(1) OF THE ACT
Test One
23Test one of the four tests set out in s. 45(1) of the Act, requires the Proposal and the relief sought by the variance demonstrate that the intent and purpose of the OP is maintained.
24Mr. Cieciura advised the Tribunal that the Subject Property being a subject to an upper-tier system, is to conform to both the City and Regional OPs.
25The Subject Property land-use designation can be found on Schedule D of the Regional OP and is designated as "Urban System".
26Mr. Cieciura having reviewed the Policies and Schedules set out in the Regional OP, opined that the Proposal, seeking temporary outdoor storage associated with an office use for small motor vehicles, where a one-storey office building and a parking lot already exists within the "Urban System" will not conflict with the Regional OP policies.
27For the reason above and through his analysis of the Regional OP in its entirety, Mr. Cieciura opined that the Proposal conforms to the Regional OP and that the variance is in keeping with the general intent and purpose of the Regional OP.
28The City OP designation for the Subject Property is found on Schedule 1 of the City OP and is designated as "Employment Area" and a portion of the Subject Property at the rear is also designated "Green System". On Schedule 10 of the City OP, the Subject Property is further designated as "Business Employment" and a portion of the Subject Property at the rear is also designated "Greenlands" and "Natural Hazards".
29Having the "Greenlands" and "Natural Hazards" designation, the Subject Property is within the Credit Valley Conservation Area (the "CVCA") regulated area and will be subject to obtaining a permit from CVCA.
30Mr. Cieciura advised the Tribunal that a staff Report was issued by the CVCA, dated August 12, 2019, for the minor variance application. The staff report indicated that CVCA has no concerns with the proposed temporary outdoor storage use and indicated that the Proposal is subject to CVCA review.
31Policy 5.3.6.1 of the City’s OP states that the City will maintain an adequate supply of lands for a variety of employment uses to accommodate existing and future employment needs.
32Mr. Cieciura opined the Proposal will contribute to maintaining the existing supply of lands for employment uses to accommodate existing and future employment needs. He further referred to s. 5.3.6.1 of the City OP, that additional development within the Employment Area will be permitted, where the proposed development is compatible in built form and scale to surrounding development, enhances the existing or planned development and is consistent with the policies of this Plan. Mr. Cieciura opined that the surrounding uses and context (also found in Paragraphs 7 -10 of this Decision) are similar in use and character as proposed. He also highlighted that the Minor Variance being temporary recognizes the area may transition and evolve.
33Mr. Cieciura advised the Tribunal that s. 17.1 of the City’s OP identifies eight Employment Area Character Areas in the City, and the Subject Property is located within the "Southdown" Employment Area. Further, s. 17.8 of the City’s OP states that OP Policies for lands within the Southdown Employment Area are contained in the Southdown Local Area Plan ("Plan"). This Plan incorporates the policies of the Southdown District Policies of City Plan (2003), modified to conform with City OP (2010).
34In concluding his analysis of the Proposal, and in maintaining the intent of the City OP, Mr. Cieciura opined that the proposal conforms to the policies of the City OP and that the variance, being temporary in nature, meets the general intent and purpose of the OP.
Test Two
35Test two requires that the general intent and purpose of the City ZBL is maintained with the authorization of the variance.
36Mr. Cieciura had reviewed the permitted uses under the current zoning designation with the Tribunal. The Subject Property only allows for an existing legal use of a legally existing building or structure on the date of passing this By-law. Thus, any redevelopment or change of use of lands designated "Development (D)" will be subject to a minor variance application or a zoning by-law amendment. In this instance, the Proposal is subject to the Minor Variance as sought.
37Pertaining to the above, Mr. Cieciura opined that the Proposal will maintain the existing one-storey office building and the parking lot and provide temporary parking spaces surrounding the existing building, which meets the purpose and intent of the by-law to generally maintain the existing building or structure on the Subject Property. Further, he opined the constructing of temporary gravel parking spaces will not significantly alter the current site condition and will still allow for future redevelopment of the Subject Property, if and when considered.
38Mr. Cieciura also opined the general purpose of a Development "D" zone is to preserve vacant and underdeveloped lands within the City for future developments, as stated in s. 12.3 of the By-law. In his opinion, the Proposal is only seeking temporary permissions (being less than five years) and using existing structures will not limit any future development opportunities on the Subject Property, which can be redeveloped and/or rezoned in conformity with the City OP or as the area transitions and evolves.
39Concluding his analysis of test two, Mr. Cieciura opined that the Proposal and the associated variance being sought, meets the general purpose and intent of the ZBL.
Test Three
40Test three, requires the approval authority (in this case, the Tribunal) be satisfied that the Proposal and the relief sought by the variance is appropriate and desirable.
41Through his analysis, Mr. Cieciura’s opined that:
The proposed development will improve the existing condition of the Subject Property by providing additional new gravel parking spaces, and develop the site in accordance with an approved site plan, grading plan, tree inventory and preservation plan and landscape plan, attached in Exhibit 1.
Similar uses exist within the surrounding area, and these existing outdoor processing and storage areas forms a part of the character of the area. The current proposal will fit in with the existing land uses of the area.
42For the reasons above and with the totality of his evidence, Mr. Cieciura concluded, in his professional opinion, the Proposal and the variance sought is desirable and the appropriate development of the Subject Property for a temporary basis.
Test Four
43Test four, requires the Tribunal be satisfied that the Proposal and the relief sought by the variance is minor in nature.
44Through his analysis, Mr. Cieciura’s opined that:
There will be little to no impact on the adjacent properties and the surrounding areas other than what might be experienced if the land was developed in accordance with the as-of-right zoning, as the Proposal will maintain the existing one-storey building for office use and provide additional temporary parking spaces only where parking spaces already exist on the Subject Property.
From his review of the existing context of the area, he concluded that the variance and the proposed temporary outdoor storage use are consistent with the existing land uses in the surrounding area.
45For the reasons above and with the totality of his evidence, Mr. Cieciura concluded, in his professional opinion, the Proposal and the variance sought is indeed minor in nature.
ANALYSIS AND DISPOSITION
46The Tribunal is satisfied and accepts the uncontroverted evidence of Mr. Cieciura.
47The Tribunal finds that the Proposal and variance sought is consistent with relevant policies of the PPS.
48The Tribunal finds that the Proposal and variance sought satisfy the four tests set out in s. 45(1) of the Act.
49The evidence of Mr. Cieciura satisfied the Tribunal that no negative impacts are created, and the character of the area is maintained while allowing the Subject Property the ability to transition and evolve and not hinder or re-develop in a manner that is not in keeping with the long term goals of the City OP.
50Lastly, the conditions of approval proposed have been reviewed by the Tribunal. The Tribunal finds them to be appropriate and helpful in both reaching settlement between the Parties, but more importantly, conforming with policy and ensuring any impacts are mitigated and concerns be addressed, the existing trees or rear lot vegetation are dealt with in a prudent and reasonable manner.
51For the reasons cited above and with the settlement of issues by the Parties, the Tribunal issued an oral decision in which it found that the proposed variance satisfies the four tests in s. 45(1) of the Act and the relevant provincial policy requirements and thus, authorized the provisional approval of the minor variances subject to conditions.
ORDER
52THE TRIBUNAL ORDERS that the appeal is allowed in part and variance to By-law No. 0225-2007 is authorized subject to the conditions set out in Attachment "1" to this Order.
53THE TRIBUNAL ORDERS that the Minor Variance shall be constructed and maintained in substantial conformity to Schedules "A", "B", "C" and "D" as appended to this Order.
"M. Russo"
M. RUSSO
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.
ATTACHMENT 1
THE TRIBUNAL ORDERS that the appeal of the Minor Variance application be allowed, in part, subject to the following terms and conditions:
i. the Minor Variance is approved for a modified period of 42-months from February 8, 2022 and lapsing August 8, 2025;
ii. the following activities are not permitted on the property:
a. motor vehicle sales,
b. motor vehicle washing, and
c. mechanical servicing of vehicles;
iii. the Minor Variance shall be constructed and maintained in substantial conformity with the following plans attached hereto:
a. Site Grading Plan (Schedule "A"),
b. Stormwater Management Report (Schedule "B"),
c. Existing Tree Inventory and Preservation Plan (Schedule "C"), and
d. Landscape Plan (Schedule "D"); and
iv. The Owner will enter into an agreement with the City pursuant to section 45(9.1) of the Planning Act, if so required by the City, to secure the performance of condition (iii) and any related maintenance obligations, which may include a requirement for associated securities to be provided by the Owner.
SCHEDULE A
SCHEDULE B
SCHEDULE C
SCHEDULE D```