Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 24, 2023
CASE NO(S).: OLT-22-004321 OLT-22-004723
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 2593033 Ontario Limited Subject: Application to amend the Zoning By-law – Appeal failure to make a decision Description: To permit the redevelopment of the property as a landscape material and garden centre after amending the Rural Specialized (RU3) Exception Zone and the Restricted Industrial (M1) Exception Zone Reference Number: Z-2021-03 Property Address: 7195 Highway 9 (Part Lot 35, Concession 10) Municipality/UT: Township of King City/Regional Municipality of York OLT Case No.: OLT-22-004321 OLT Lead Case No.: OLT-22-004723 OLT Case Name: 2593033 Ontario Limited v. King (Township)
PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 2593033 Ontario Limited Subject: Site Plan Description: To support the Zoning By-law which permits the redevelopment of the property as a landscape material and garden centre Reference Number: SPD-21-04 Property Address: 7195 Highway 9 (Part Lot 35, Concession 10) Municipality/UT: Township of King City/Regional Municipality of York OLT Case No.: OLT-22-004322 OLT Lead Case No.: OLT-22-004321
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant(s): See Schedule 1 Subject: By-law No. 2022-053 Description: Rural Countryside Zoning By-Law Reference Number: Z-2020-03 Property Address: Town Wide Municipality/UT: Township of King/Regional Municipality of York OLT Case No.: OLT-22-004723 OLT Lead Case No.: OLT-22-004321
Heard: October 6, 2023 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 2593033 Ontario Limited o/a Weston Garden Centre | Alex Lusty |
| Township of King | Tom Halinski |
MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON OCTOBER 6, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was the second Case Management Conference (“Second CMC”) concerning an appeal by 2593033 Ontario Limited o/a Weston Garden Centre (“Applicant”). The appeal follows a non-decision by the Township of King (“Township”) with respect to applications for a Zoning By-law Amendment (“ZBA”) and Site Plan Approval for a property known municipally as 7195 Highway 9 in the Township (“Subject Property”). The purpose of the ZBA and Site Plan Approval is to permit the redevelopment of the Subject Property as a landscape material and garden centre.
2The first CMC took place on December 12, 2022 (“First CMC”), wherein it was confirmed that notice had been properly served, and no further notice was required. Also at the First CMC, the following were granted Participant status: Neil Irwin and Rajbir Randhawa.
CONSOLIDATION OF APPEALS
3Along with the ZBA and Site Plan Approval appeals (“Appeal 1”), the Applicant is involved in another appeal before the Tribunal, which is Case No. OLT-22-004723 (“Township ZBL Case”). The Township ZBL Case involves the Township’s recently passed new Comprehensive Zoning By-law No. 2022-053, which has been appealed by numerous appellants including the Applicant. In the Township ZBL Case, the Applicant has submitted a site-specific appeal of the Township’s new Comprehensive Zoning By-law (“Appeal 2”). Three CMCs have taken place in the Township ZBL Case, on: March 14, 2023; June 9, 2023; and October 5, 2023.
4At the First CMC for the Applicant’s Appeal 1, it was contemplated that, due to the overlapping issues with the Applicant’s Appeal 2, the two files would be consolidated. However, this could only be done after the first CMC took place in the Township ZBL Case.
5At the Township ZBL Case’s first CMC on March 14, 2023, the Township and the Applicant raised the issue of consolidating the Applicant’s Appeal 1 and Appeal 2, and requested that the two appeals be consolidated in keeping with Rule 16 of the Tribunal’s Rules of Practice and Procedure (“Rules”). This request was granted and the two appeals were consolidated at the CMC on March 14, 2023.
6However, as the consolidation had been confirmed in the Township ZBL Case, it had the effect of bringing the Applicant’s Appeal 1 into the Township ZBL Case. As a result, all Parties involved in the Township ZBL Case became involved in the Applicant’s Appeal 1, by virtue of the consolidation of the two appeals.
7The problematic nature of this consolidation quickly became apparent. At the Township ZBL Case’s second CMC on June 9, 2023, the Applicant’s and the Township’s Counsels explained that the consolidation had occurred in reverse. Namely, the Applicant’s Appeal 1 was added to the Township ZBL Case instead of the other way around. Both Counsel requested that the consolidation be inverted, with the Applicant’s Appeal 1 being removed from the Township ZBL Case. The Parties further explained that Appeal 1 is to be the lead case with Appeal 2 being the child case. At the CMC on June 9, 2023, as confirmed in the Decision dated August 10, 2023, the Tribunal agreed that the Applicant’s issues raised in Appeal 2 were tied to those raised in Appeal 1, rather than the other way around, and that Appeal 1 should be the main file to be addressed in a future Hearing, with the issues raised in Appeal 2 being a part of that Hearing. Most importantly, the other appellants in the Township ZBL Case were not involved in or a Party to the Applicant’s two appeals. In short, it was confirmed by the Tribunal on June 9, 2023 that the Applicant’s Appeal 1 (OLT-22-004321 and OLT-22-004322) would no longer be adjudicated as part of the broader Township ZBL Case (OLT-22-004723).
8Since the Participants were not before the Tribunal at the Township ZBL Case’s CMC on June 9, 2023, and since again the inversion of the consolidation had been confirmed in the Township ZBL Case and not in the subject appeal, at this Second CMC on October 6, 2023, the issue of the consolidation of Appeal 1 and Appeal 2 was confirmed. At the Second CMC, all three files (OLT-22-00432, OLT-22-004322, and OLT-22-004723) were properly before the Tribunal, and the consolidation of same was confirmed in accordance with Rule 16 of the Rules.
STATUS UPDATE
9The Parties did not file a Procedural Order or Issues List prior to the Second CMC. Rather, in advance of the Second CMC, the Applicant’s Counsel provided the following update to the Tribunal:
…The Parties did not file a draft procedural order and issues list because discussions between the Parties, which show promise, have taken place.
Our client, 2593033 Ontario Limited, continues work on a new proposal for use of the existing building that would bring the Site into compliance with the definition of “Light Manufacturing” were Exception 37 in Zoning By-law 2022-053 (the Zoning By-law for the Countryside) to come into force.
Description of the New Proposal
A proposed floor plan for the existing building is attached. As can be seen, the proposal no longer has Greenhouses, Retail, or a Cannabis Use. The new proposal consists of:
A Kitchen manufacturing / pre-assembly use inside the existing building labelled as the “Rented Carpentry Workshop”. This use has been ongoing on the Site and will be expanded in accordance with the sketch.
A landscape feature manufacturing / pre-assembly use inside the existing building. Items manufactured and assembled would include water fountains, architectural columns, stone benches, stone steps, and custom stone features.
Accessory office space related to the production of landscape features.
Accessory showroom related to the production of the landscape features.
There are a few things that might be helpful to confirm considering the new proposal:
Continual progress was made in removing items stored outside from the Site and outside storage is not proposed as part of the new proposal.
The cannabis use will be eliminated by November 30, 2023. This time is needed for the current lessor to complete their cultivation cycles, of which there are four in different states. It is expected that from now until November 30, 2023, as crops finish, space dedicated to the cannabis use will be dissembled.
Loading will occur at the southern end of the existing building, which is the area historically used for loading / unloading. No large tandem trucks or dump trucks or stone flatbeds would be required for the operations.
All aspects of the light manufacturing uses will take place indoors.
Next Steps
At this stage, the Township has not endorsed the new proposal. The Parties still require time to refine the new proposal and will work diligently to do so. The Parties will contact the Tribunal to schedule any necessary hearing events once the nature of any such hearing event is known.
10At the Second CMC, the Parties reiterated the request that they be provided with time to discuss updates to the new proposal put forth by the Applicant. They requested that no further steps be scheduled on this matter until the Tribunal is contacted by the Parties.
11The Tribunal enquired as to whether it would be appropriate to impose a timeline for a status update, but the Parties indicated that none was necessary as the Parties intended to work together diligently to resolve these appeals. The Tribunal agreed and no further steps have been scheduled at this time.
12The Parties were directed to reach out to the Tribunal at their earliest convenience to provide an update regarding the disposition of Appeal 1 and Appeal 2.
13Lastly, the Tribunal raised the issue of mediation and reminded the Parties that, should they wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator for those services.
ORDER
14The Tribunal Orders that Tribunal file numbers OLT-22-004321, OLT-22-004322, and OLT-22-004723 are consolidated in keeping with Rule 16 of the Tribunal’s Rules of Practice and Procedure – Consolidation.
15The Member is not seized, but may be contacted through the Case Coordinator should procedural issues arise.
“Bita M. Rajaee”
BITA M. RAJAEE 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.
SCHEDULE 1
| Appellant | Counsel/Representative*: | |
|---|---|---|
| 1. | Vito Pacifico | Milovan Prelevic |
| 2. | Robert Scheinberg B & D Love Inc. | Steven Ferri Alexandra Whyte Brendan Ruddick |
| 3. | 2731961 Ontario Inc. | Michael Cara Justine Reyes |
| 4. | 1186675 Ontario Ltd. | Steven Ferri Alexandra Whyte Brendan Ruddick |
| 5. | Heste Corporation | Steven Ferri Alexandra Whyte Brendan Ruddick |
| 6. | Deborah and David Solomon Weis | Steven Ferri Alexandra Whyte Brendan Ruddick |
| 7. | Len Payne, Rideau Leasing Corp. | David White |
| 8. | Zao Wang, 84 Charing Cross International Inc. | Amber Stewart Barry Horosko |
| 9. | Lloydtown Farms Ltd. | Steven Ferri Alexandra Whyte Brendan Ruddick |
| 10. | 611428 Ontario Limited | Steven Ferri Alexandra Whyte Brendan Ruddick |
| 11. | Leading Edge Property Developments Inc. | David White |
| 12. | Intentionally left blank | David White |
| 13. | Shawn Peebles, Northern Wide Plank Flooring Inc. | David White |
| 14. | Tony Nicoletti | Self-represented* |
| 15. | 2593033 Ontario Limited (c/o Weston Garden Centre) | Alex Lusty |
| 16. | Penwest Holdings Limited | Michael Cara Justine Reyes |
| 17. | Bill and William Bowles Harris | Steven Ferri Alexandra Whyte Brendan Ruddick |