Addison Automotive Inc. v. Mississauga (City), 2023 CanLII 100152

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 24, 2023

CASE NO(S).: OLT-21-001859

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Addison Automotive Inc.

Appellant: Prombank Investment Limited

Applicant: MGR Group Inc.

Subject: Minor Variance

Description: Requesting minor variances to allow outdoor storage on the subject property

Reference Number: A316.21

Property Address: 1191 and 1213 Eglinton Avenue East

Municipality/UT: Mississauga/Peel

OLT Case No: OLT-21-001859

OLT Lead Case No.: OLT-21-001859

OLT Case Name: Addison Automotive Inc. v. Mississauga (City)

Heard: September 20, 2022 by Video Hearing (“VH”)

APPEARANCES:

Parties

Counsel

Addison Automotive Inc. (“Addison Automotive”)

Sylvain Rouleau

Prombank Investment Limited (“Prombank”)

Sylvain Rouleau

MGR Group Inc. (“Applicant”)

David Bronskill

MEMORANDUM OF ORAL DECISION DELIVERED BY S. MANN ON SEPTEMBER 20, 2022 AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This is a Settlement Hearing concerning an appeal by Addison Automotive and Prombank (together, the “Appellants”). The Applicant is seeking approval of minor variances from Zoning By-law No. 0225-2007 (“ZBL”) to allow outdoor storage at 1191 and 1213 Eglinton Avenue East (“subject property”).

2The subject property is located in the City of Mississauga (“City”), north-west of Dixie Road and Eglinton Avenue East intersection. It contains a one-storey warehouse with an attached two-storey office building as well as a small storm water management pond and no vegetation. The subject property is one of the largest in the area with a frontage onto Eglinton Avenue East of approximately 266.35 metres (“m”) and a total land area of approximately 68,935 square metres (“m2”). The surrounding area consists of low rise industrial buildings with a mix of industrial and commercial uses, and sparse vegetation.

3The subject property is zoned E2-19 – Employment on the north half and C3-1 – Commercial on the south half, and is located within the Northeast Employment Area of the City. Pursuant to the City of Mississauga Official Plan (“OP”), the north half of the subject property is designated Business Employment and the south half if designated Mixed Use.

4The subject property is the last remaining empty parcel in the area. The Applicant’s original intention for the subject property was to fully develop it with the goal of building a hotel or convention centre on the southern portion of the subject property. Due to inadequate storm sewer infrastructure on Eglinton Avenue East, only the north half of the subject property can be serviced. The north half of the subject property contains a warehouse that the Applicant has leased. The Applicant was approached by its tenant in regards to the southern portion of the subject property for the purpose of outdoor storage, citing an increase in demand for logistic warehouse space.

BACKGROUND

5The application requested four minor variances to the ZBL as follows:

1. Outdoor storage, up to 31% of the lot area, whereas By-law No. 0225-2007, as amended, permits a maximum area for outdoor storage of the lesser of 5% of the lot area and 10% of the Gross Floor Area (“GFA”) of the building, in this instance;

2. Outdoor storage closer to the street line than any portion of the building or structure whereas By-law No. 0225-2007, as amended, does not permit outdoor storage closer to the street line than any portion of the building or structure, in this instance;

3. Outdoor storage in a front yard, whereas By-law No. 0225-2007, as amended, does not permit outdoor storage in a front yard, in this instance; and,

4. A minimum (existing) fence height of 1.8 m (approx. 5.9 feet (“ft”)) for an outdoor storage area, whereas By-law No. 0225-2007, as amended, requires a minimum fence height of 2.4 m (approx. 7.78 ft) around the perimeter of the area used for outdoor storage, in this instance.

6City planning staff prepared a report providing the opinion that the proposed minor variances failed to meet the requirements for a minor variance as outlined in s. 45(1) of the Planning Act (“Act”). On November 25, 2021, the City’s Committee of Adjustment (“COA”) executed its decision approving the application for minor variances on the grounds that the application met the requirements for minor variance. The application was approved for a temporary period of three years (lapsing December 31, 2024) subject to the following conditions:

1. The Applicant shall submit a site plan application to the City’s Planning and Building Department, together with such supporting documentation as may be requested, and provide to the Secretary-Treasurer confirmation from the City’s Planning and Building Department (“Department”) that the Department is satisfied with the plans and drawings submitted by the Applicant with the site plan application, relating to matters including but not limited to the satisfactory grading and drainage for the site.

2. The Applicant shall construct the outdoor storage area in accordance with the site plan approved by the Department in condition 1.

3. The Applicant shall enter into an agreement pursuant to s. 45(9.1) of the Act to provide for the performance of condition 2, together with any required securities.

4. Construction related to this variance shall be in general conformance with the site plan presented before the Committee.

5. An impervious barrier shall be erected at the perimeter of the trailer parking lot along Eglinton Avenue East to provide screening for the trailers.

7Addison Automotive is the owner of 1220 Eglinton Avenue East and Prombank is the owner of 1250-1300 Eglinton Avenue East, both properties are located in close proximity to the subject property. The Appellants individually appeal the decision of the COA on the grounds that the proposed variances do not meet the statutory tests for a minor variance.

SETTLEMENT HEARING

8The City did not attend or participate in the Settlement Hearing.

9Prior to the Settlement Hearing, Parties submitted Minutes of Settlement (“MOS”) and notified the Tribunal of their intention to settle the matter.

10Evidence in support of the current settlement was provided by the Applicant’s planner, Joseph Plutino. Mr. Plutino is a Registered Professional Planner in the Province of Ontario, a Member of the Canadian Institute of Planners and has been practicing as a professional planner for 34 years. He was duly qualified on consent as an expert in land use planning.

11In support of the Settlement Hearing, the Applicant brought forward the following Exhibits:

• Exhibit 1 – Witness Statement of Joseph Plutino

• Exhibit 2 – Minutes of Settlement

12The Tribunal reviewed the evidence provided and taking into consideration the testimony of Mr. Plutino, the COA decision and the MOS found that the proposed variances met the statutory requirements for a minor variance.

EVIDENCE AND ANALYSIS

13The testimony of Mr. Plutino considered the following issues in reaching its conclusions:

1. Is the proposed variance minor?

2. Is the proposed variance desirable for the appropriate development or use of land?

3. Does the proposed variance maintain the general intent and purpose of the Official Plan?

4. Does the proposed variance maintain the general intent and purpose of the zoning by-law?

5. Does the proposed variance ‘have regard to’ matters of provincial interest pursuant to s. 2 of the Act?

6. With respect to matters of provincial interest, pursuant to s. 3 of the Act, is the proposed variance consistent with the Provincial Policy Statement (2020) (“PPS”)?

7. With respect to matters of provincial interest pursuant to s. 3 of the Act, will the proposed variance conform to A Place to Grow – Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”)?

1. Is the proposed variance minor?

14Mr. Plutino testified that the proposed variances are minor in nature. The witness opined that the area intended for outdoor storage is currently underused due to a lack of storm sewer infrastructure. The temporary use of outdoor storage will not negatively impact the surrounding area long-term and the subject property’s southern portion can be preserved for future development.

15Further supporting the minor nature of the proposed variances, the witness provided examples of four other properties in close proximity to the subject property currently operating with outdoor storage covering anywhere from 36%-57% of those properties’ lot areas.

2. Is the proposed variance desirable for the appropriate development or use of land?

16The witness testified the desirable nature of the proposed variances for the Applicant, the City and the ratepayers.

17The proposed variances are desirable to the Applicant as well as their tenant. The proposed variances are desirable to the Applicant as the success of its tenant’s business is fundamental to maintain the subject property and to fulfill its financial responsibility to investors and the City as ratepayers. The outdoor storage use is desirable to the Applicant’s tenant as they require additional outdoor storage to accommodate the increase in demand for storage from its customers, which include grocers, warehouses and delivery services.

18The witness further testified that the proposed variances are desirable to the City and its ratepayers as it is the City’s policy to support existing businesses that require more outdoor storage to remain competitive and aid in the creation of thriving employment areas to create jobs and increase tax revenue that can be used to maintain community services.

3. Does the proposed variance maintain the general intent and purpose of the Official Plan?

19As previously stated, the OP designates the subject property as Business Employment and Mixed Use. The witness directed the Tribunal to policy 17.7.1.1 of the OP which supports “…existing industrial operations which have extensive outdoor [processing or] storage areas will be permitted to continue and expand…”.

20Mr. Plutino further opined on policy 19.9.1 in the OP which permits the City to pass by-laws to authorize the temporary use of land for a purpose that is otherwise prohibited. In this case, the proposed use is prohibited by the ZBL as the amount of space requested for outdoor storage exceeds that permitted and the proposed location of the storage in the front yard near the street line is also not permitted. The Applicant has nonetheless made the request for the storage to be in the proposed location due to the warehouse location to the rear of the property. The OP permits such temporary use despite the prohibition by the ZBL through the relief of a temporary use by-law.

21The OP provides permission for temporary use by-laws, subject to certain conditions. The conditions are as follows:

a) The temporary use of land is requested for three years.

b) No permanent structures are proposed.

c) The temporary use is permitted by the By-law on this property and the proposal is compatible with the adjacent employment lands as they are similarly zoned.

d) The proposal will ensure sufficient trailer parking is provided onsite and there will be no impact on traffic infrastructure.

e) There will be no impact on community infrastructure.

f) There will be no adverse impact on the assessment base.

g) The proposal will not jeopardize the eventual planned land use.

h) The variances required to support the proposal are identified to assure conformity with the Zoning by-law.

22The Applicant’s proposal is in line with the conditions of the OP. The variances are proposed for three years, no permanent structures will be erected, the Applicant has sought the proposed use through minor variance, the subject property is located in close proximity to similar uses and the temporary nature of the use will preserve future use of the land.

23Further, in order to maintain the intent of the OP, the conditions imposed by the COA in combination with the further conditions set out in the MOS aid in the prevention of adverse impacts from the temporary use by-law.

4. Does the proposed variance maintain the general intent and purpose of the Zoning By-law?

24As previously stated, the northern portion of the subject property is zoned E2-19, Employment and the southern portion of the subject property is zoned C3-1, Commercial.

25The E2-19 Employment zoning permits warehouse and distribution facility use, as the northern portion of the subject property currently operates. The Applicant seeks its proposed variances in connection with the expansion of the permitted use to the north. The E2-19 Employment zone further permits outdoor storage expansion.

26The key issue in relation to the ZBL relates to the C3-1 Commercial zoning of the southern portion of the subject property being different than the northern portion zoning. Mr. Plutino opined that due to the intention of the ZBL, in relation to E2-19 Employment zoning as well the policies of the OP relating to temporary use by-laws, the proposed variances are able to maintain the general intent and purpose of the ZBL.

5. Does the proposed variance ‘have regard to’ matters of provincial interest pursuant to [s. 2](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)?

27Mr. Plutino opined that the proposed variances have sufficient regard to matters of provincial interest. The in-force ZBL and OP were comprehensively approved having taken into consideration s. 2 of the Act.

28Further, the creation of outdoor storage at the subject property will provide for the adequate provision of employment opportunities and protects the financial and economic well-being of the City.

6. With respect to matters of provincial interest pursuant to [s. 3](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html), is the proposed variance consistent with the Provincial Policy Statement (2020) (“PPS”)?

29Mr. Plutino testified that the proposed variances are consistent with the PPS. The witness opined that the proposed outdoor storage promotes employment lands in the built up urban area of the City.

30The PPS directs lands in the built up urban area be developed to the best of their potential. Mr. Plutino opined that the proposed outdoor storage would allow the subject property to maximize its use while preserving the future development of the lands.

7. With respect to matters of provincial interest pursuant to [s. 3](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html), will the proposed variance conform to A Place to Grow – Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”)?

31The Growth Plan was prepared under the Places to Grow Act. It is a policy that promotes the preservation of existing employment areas within built up urban areas for employment uses and urban expansion into the undesignated greenfield areas outside of urban boundaries.

CONDITIONS AND MINUTES OF SETTLEMENT (“MOS”)

32To further support the proposed variances, the Applicant reviewed both the conditions imposed by the COA and the additional conditions agreed to between the Parties in the MOS.

33As a result of the COA conditions, the creation of the outdoor storage space will require site plan approval. This condition will impose a further set of requirements before the proposed outdoor storage can begin operation. Examples of such issues to be resolved include drainage and grading. City staff has proposed a setback of 46.5 m from the street front, a setback that although contradicts the ZBL requirement appears adequate to the City.

34The further conditions imposed by the MOS expand upon the conditions of the COA as well as address further concerns of the Appellant. The Parties have agreed to the installation of a non permanent barrier along the 46.5 m setback in order to prevent trailer access into the setback area. The Applicant has also committed to mitigation of dust in accordance with the ZBL and the use of environmentally safe dust suppression spray. The Applicant has also agreed to a timeline of two months from approval of the minor variances to submit its site plan application. The Applicant further agreed to remove third party signs located at the southeast corner of the subject property and the hydroseeding of a berm on the subject property.

Summary and Conclusion

35The Tribunal finds that the proposed minor variances have appropriate regard for matters of Provincial interest under s. 2 of the Act, are consistent with the policies and directives of the PPS, conform to the policies of the GP and meet the requirements of the four tests for minor variance under s. 45(1) of the Act. The OP provides guidance on the allowance of temporary by-laws for such cases, of which the Applicant has demonstrated compliance. The temporary nature of the proposed use will preserve the developability of the subject property in the future and the conditions imposed through the decision of the COA and the MOS lead the Tribunal to the conclusion that the application should be permitted.

ORDER

36THE TRIBUNAL ORDERS that:

1. the appeal is allowed in part, and the variances to Zoning By-Law No. 0225-2007 are authorized subject to the conditions set out in Attachment 1 and 2 to this Order.

37No further notice is required.

“S. Mann”

S. MANN

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.

ATTACHMENT 1 – CONDITIONS

1. The applicant shall submit a site plan application to the City’s Planning & Building Department, together with such supporting documentation as may be requested, and provide to the Secretary-Treasurer confirmation from the City’s Planning & Building Department that the Department is satisfied with the plans and drawings submitted by the applicant with the site plan application, relating to matters including but not limited to satisfactory grading and drainage for the site.

2. The applicant shall construct the outdoor storage area in accordance with the site plan approved by the City’s Planning & Building Department in condition 1.

3. The applicant shall enter into an agreement pursuant to Section 45(9.1) of the Planning Act to provide for the performance of condition 2, together with any required securities.

4. Construction related to this variance shall be in general conformance with the site plan presented before the Committee.

5. An impervious barrier shall be erected at the perimeter of the trailer parking lot along Eglinton Avenue East to provide screening for the trailers.

ATTACHMENT 2

Minutes of Settlement