Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 27, 2023 CASE NO(S).: OLT-23-000728

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Referred by: Biscayne Building Corporation Subject: Site Plan Description: To amend the two (2) agreements for site plan approval for the purpose of legalizing two (2) existing parking gate arms and a moveable concrete traffic barrier, which control public access to and from the existing surface parking lot located on the subject property Reference Number: SP-23-0016 Property Address: 260 East Beaver Creek Road Municipality/UT: City of Richmond Hill OLT Case No.: OLT-23-000728 OLT Lead Case No.: OLT-23-000728 OLT Case Name: Biscayne Building Corp. v. Richmond Hill (City)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Biscayne Building Corporation Request for: Request for Directions

Heard: September 27, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Biscayne Building Corporation ("Applicant"/"Appellant")	M. Foderick, D. Angelucci
City of Richmond Hill ("City")	C. Thorne

DECISION DELIVERED BY S. TOUSAW AND ORDER OF THE TRIBUNAL

Introduction

1At issue in this Motion Hearing are planning laws related to parking.

2The Applicant seeks a site plan amendment to its existing Site Plan Approval (“SPA”) to permit ingress and egress parking gates and concrete barriers to prevent the public use of its tenant’s staff parking area. The Applicant’s Motion, which was somewhat modified in oral submissions, asks the Tribunal to find that the City’s proposed SPA condition that “the gates remain open during non-business hours” is ultra vires.

3For clarity, this Decision addresses only the issue of whether shared parking can be enforced through this SPA; it is not a Final Decision on the SPA itself.

4Documents filed at the Motion Hearing were acknowledged but not marked as Exhibits (“Ex.”), which is now done here for ease of reference. Page numbers referenced herein are the pdf page number, not the “printed” page number.

5The Applicant filed its Motion Record, including case law (Ex. 1) and one other case (Ex. 5); the City filed its Responding Motion (Ex. 2) and case law (Ex. 4); and the Applicant filed its Reply Motion (Ex. 3); all without procedural issues raised by either Party. Those Exhibits, now registered in the Tribunal’s case file, were thoroughly reviewed along with the oral submissions in arriving at this Decision.

6As set out below, the Tribunal grants the Motion, having found that the City, and in its place, the Tribunal, has no legislative authority to force the Applicant, through a SPA condition, to open its property for public use. While the clear intention of both the original developer and the City in the design of the East Beaver Creek Business Park (“Business Park”) was to make office parking lots available during evenings and weekends for the high-capacity theatres, such an arrangement was neither implemented through zoning provisions (if such were possible) nor registered on title for this separated lot.

Physical and Legal Setting

7The undisputed facts in this case are as follows.

8The “site” is a 0.9 hectare corner lot at 260 East Beaver Creek Road, at its intersection with Highway 7. The site is leased to a national bank and contains a five-storey office building and surface parking lot. Unobstructed customer parking is provided in front of the building, and gated staff parking consumes the balance of the site, mostly behind the building. The parking gates and barriers have been in place for 30 years, preventing public access to much of the site’s parking lot. The Applicant purchased this developed site in 2001.

9The site marks the southerly portion of the Business Park that developed following Official Plan Amendment 40 (“OPA 40”) and the associated Zoning By-law 295-85 (“ZBL”). Those amendments included: permission for a theatre complex with up to 1,700 seats; office buildings served by retail, restaurant and service uses; and special provisions for the calculation of required parking spaces using a “Shared Parking Formula.” The OPA 40 and ZBL apply to the entire Business Park area, including this site, as displayed on the respective schedules in those documents.

10At issue in this Motion are ZBL s. 13.4.4 b) and c) (Ex. 2, p. 262):

b) Shared Parking Formula

In a development on a LOT containing multiple uses, the minimum number of PARKING SPACES required shall be calculated as follows:

i. The parking requirement for each use is calculated using the standards outlined in Subsection a) above and then applied to each line in Subsection c) below at the percentages indicated.

ii. The numbers are then totalled in each of the “morning”, “noon”, “afternoon” and “evening” columns; the highest total represents the minimum number of PARKING SPACES required.

c) Table for Calculating the Number of PARKING SPACES Based on Shared Parking Formula

Use	Morning	Noon	Afternoon	Evening
OFFICES	100	90	95	10
RETAIL STORES	70	100	100	100
RESTAURANTS	20	50	50	100
THEATRES	0	0	0	100

11“LOT” is defined in the associated ZBL 150-80 as (Ex. 2, p. 219):

3.43 “LOT” shall mean a parcel of land, fronting on a STREET whether or not occupied by a BUILDING or STRUCTURE,

(a) which may be described by metes and bounds in a registered deed; or

(b) which is shown in a registered plan of subdivision including any of its parts which are subject to a registered right-of-way or easement.

12The site is a separate lot owned by the Applicant and located within the Business Park.

13The site received SPA in 1988 for a site plan that displayed no barriers to the parking areas.

14More recently, the Applicant was granted a building permit for a minor alteration to the building, sought by its tenant, on the agreed condition that the Applicant would apply for SPA for the parking gates and barrier.

15The site is an independent, separate lot with a “metes and bounds” registered deed. Title to the site contains no easements or private agreements mandating public use of the parking area. No similar non-registered agreement is known to exist for this site, nor any agreement enabling this site to utilize the parking areas of other nearby private properties.

16The 1988 SPA agreement is registered on title, including a site map that contains a sidebar utilizing the ZBL parking requirements to calculate the number of required on-site parking spaces (Ex. 2, p. 314).

Jurisdiction

17Upon appeal to the Tribunal under s. 41(12) of the Planning Act (“Act”), s. 41(12.1) instructs that:

The Tribunal shall hear and determine the matter in issue and determine the details of the plans or drawings and determine the requirements, including the provisions of any agreement required.

18The permitted conditions to the SPA in s. 41(7) of the Act include:

(a) provide to the satisfaction of and at no expense to the municipality any or all of the following: …

3. Off-street vehicular loading and parking facilities …

(c) enter into one or more agreements with the municipality dealing with and ensuring the provision of any or all of the facilities, works or matters mentioned in clause (a) or (d) and the maintenance thereof as mentioned in clause (b) or with the provision and approval of the plans and drawings referred to in subsection (4);

19From the cases cited by the Parties, the Tribunal finds the following excerpts particularly relevant to this Motion (emphasis added):

High Meadow Ltd. v. City of Cambridge (City), [1999] 38 O.M.B.R. 251 (ONMB):

6 […] the Act does not confer to the City the jurisdiction to impose a condition which requires the inter-connection and access, over private lands which in reality establishes a de facto right-of-way between private properties, unless there is agreement from the property owner. …

8 […] there is nothing contemplated within the confines of section 41(7) of the Planning Act that specifically requires the free giving of a right-of-way to adjoining properties that are privately owned.

588227 Ontario Ltd. v. Guelph (City), [2001] 42 O.M.B.R 66 (ONMB) as cited in Melrose Investments Inc. v. Oakville (Town), [2021] PL200584 (ONLT):

19. […] site planning is a means of organizing the site so that proper use can be made of it. Access to the buildings and uses is one of the things that may be properly guaranteed through the site plan. It is not another means of gaining an unrestricted public thoroughfare across the site. The appropriate mechanism for this would be a conveyance or easement either voluntarily or under the authority of the Expropriation Act.

Melrose Investments Inc. v. Oakville (Town), [2021] PL200584 (ONLT):

50[…] while the Wyecroft Extension may make good sense from a planning and traffic perspective, in this instance the Tribunal finds acceptance of the Region’s interpretation of s. 41(8) would unfairly impact the Appellant’s property rights and effectively permit, as argued by the Appellant, expropriation without compensation.

Polla v. Toronto (City) Chief Building Official [2000] O.J. No. 4399 (“Polla”):

12 Any authority of the City to impose conditions on site plan approval can only flow from the express provisions of s. 41 of the Act. That provision has been held by this Court and by the OMB to be restrictive, rather than discretionary, and to be concerned with conditions relating to the internal arrangements of buildings and facilities and provision of services and access to the specific development under consideration …

16 […] the mere fact that protecting the natural state of the ravine is consistent with the Official Plan does not create jurisdiction in the City to protect the ravine through the site plan approval process. There must be explicit legal authority (through statute or by-laws) creating a right in the City to restrict the Landowner's use of its property in the manner it has.

Staples v. Huntsville (Town) Chief Building Official, [2017] O.J. No. 6458:

38 The site plan agreement process is distinct from the other planning processes above in that it is private, between the municipality and the applicant. There is no notice to the public nor public meetings, and no appeal rights other than of the applicant. Public concerns are addressed previously through the other planning processes reviewed above. Site plan agreements have to conform with, not get around, the zoning and minor variances that result from the public processes.

Burger King Restaurants of Canada Inc. v. Markham (Town), [2000] OMBD No.428 (“Burger King”):

8 The Board also finds that all the matters enumerated in Section 41(7)(a) are couched in a language as precise as any good draftmanship can deploy. They are designed to deal with ever-complex and ever-changing conditions all over the province of Ontario. If anything else, it is my view that a liberal interpretation of these wordings in the provision should be adopted instead of a strict reading. Otherwise, the full force and intent of these provisions cannot be given effect. …

12 I cannot but help to observe that the situation at hand is vastly different from one where a municipality attempts to exact from a developer financial contribution for facilities off site or for payment of facilities that hardly benefit the subject site.

T-York 7 Holding Ltd. v. Richmond Hill (Town), 2020 CanLII 37202 (ON LPAT) (“T-York”):

108The evidence was undisputed that the most recent assessment of current parking demand by the Town, using the rates in the 1985 Zoning By-law, indicates that there is a deficiency of 21 parking spaces on the Business Park as a whole. …

119Given the Tribunal’s finding that the entirety of the Business Park ought to be considered in applying the rates contained in the Zoning By-law, the Tribunal accepts the evidence of Mr. Tracksdorf that there is sufficient parking available at the Business Park to accommodate the proposed development.

Positions

20In support of the Motion, the Applicant argues that the City’s proposed “arrangement” for keeping the gates open during non-business hours amounts to an “agreement,” both of which are ultra vires. Neither a ZBL nor a SPA is entitled to impose external rights for other properties onto this site. The Applicant submits that, even if the Applicant chose to remove the parking gates, such resulting access does not permit the adjacent owners or the public to park on this site. Signs could be posted and a company could be retained to monitor the site and remove offending vehicles.

21No parking agreements were registered when this site was separated from the theatre property as an independent lot. No parking agreements exist to mandate the Applicant to share its parking lot with other area properties or to enable the Applicant to use other private lands for its parking.

22The Applicant emphasizes that the SPA agreement registered in 1988 continues to apply today. As noted in para. 33 of the agreement, the ZBL parking requirements apply to this site only, referred to as “the lands” and parking as required by “the eventual uses of the lands” (emphasis added):

33. The Owner acknowledges that the zoning by-law affecting the lands prescribes different parking requirements for different uses of land and that sufficient parking must be provided on the lands to satisfy the parking requirements set forth in the zoning by-law respecting the eventual uses of the lands. The Owner further acknowledges that a use shall not be permitted on the lands unless the appropriate parking requirements for that use are met.

23The Applicant submits that the “lands” in the SPA agreement align with a “LOT” in the parent ZBL 150-80, with both documents focused on providing parking based on the uses of the site, and not requiring shared parking for other properties. The Applicant requests the Tribunal to allow the Motion and find that mandating the public use of parking on this site through a SPA condition is ultra vires s. 41(7) of the Act.

24In opposing the Motion, the City submits that the entire Business Park was designed and intended to share parking after hours to accommodate the theatres’ parking demands. The City seeks to achieve compliance with the ZBL, across the full Business Park as a single, planned entity, so that collectively, the uses achieve compliance with the parking requirements. The City is not asking for third party agreements with neighbouring lots to this site, or for easements or agreements with the City, arguing that the purpose of the Motion is moot. The City simply requires that the gates remain open during non-business hours to enable parking during those times.

25The City argues that the T-York Decision is highly relevant and persuasive here, having thoroughly considered the parking needs of the entire Business Park comprising six separate properties. The City submits that “the shared parking geography is the entire Business Park.” The City argues that the question is ZBL compliance, and to achieve such, the gates should remain open during evenings and weekends. The City requests the Tribunal to dismiss the Motion.

Findings

26The Tribunal finds in favour of the Applicant’s Motion.

27There is little dispute over the fact that, as noted by the City’s planning affidavit (Ex. 2, p. 32):

… the East Beaver Creek Business Park was planned to function as a cohesive grouping of offices, restaurants and the theatre building and that access to the development was to be adequately provided.

28OPA 40 requires that (Ex. 2, p. 175):

… the design of development on [the Business Park] shall:

i) take the form of a cohesive grouping of offices, restaurants and the theatre buildings; …

ii) ensure that access to the development shall be adequate to accommodate the projected density of the development.

29For this Motion Hearing, the City Planner opines, and the Tribunal accepts, that OPA 40’s reference to “access to the development” includes the provision of adequate parking for the theatre and office uses. Much of the “access” is via private vehicles, which result in the need for parking lots.

30City staff had explained in its 1985 report (Ex. 2, p. 178) that the Business Park Applicant seeks to permit, among other uses: theatres not exceeding 1,700 seats maximum designed capacity; restaurants; and retail stores subject to a floor area limit within office buildings.

31Specifically, City staff in 1985 noted the Business Park proposal would (emphasis added):

2. Amend By-law 150-80 as follows:

a) revise the parking standards and establish a shared parking formula for the proposed mixed use development. … (Ex. 2, p. 179)

City staff went on to opine that:

The theatre use, while not normally included under an industrial designation or zoning, in this case is felt to be suitable for reasons of accessibility – (the site being located near highways 404 and #7); availability of parking (the theatre use being able to use the parking accommodation provided for the office uses which do not operate during the same hours) … (Ex. 2, p. 182).

32The City staff’s view was further reiterated in the 1985 report when explaining the “Shared Parking Formula” (Ex. 2, p. 183):

In order to apply the preceding standards so that various uses may share parking facilities, the parking requirement for each use is calculated and then applied to each line in the table below at the percentage indicated. …

33It is clear to the Tribunal that the intent of OPA 40 and the ZBL was to facilitate shared parking throughout the Business Park for cars accessing the offices during the weekdays and the theatres during the evenings and weekends. The question here is: Did the City achieve its intention? The Tribunal finds that it did not.

34The definition of “LOT” in ZBL 150-80 includes two possible legal descriptions, separated by “or”. The City submits that it may choose which LOT description to use, and prefers (b) with reference to the original legal description of the entire Business Park, being Block 2 on a registered plan of subdivision. The City also relies heavily on the T-York Decision, which it argues upholds the shared parking intention across the full Business Park.

35The Tribunal disagrees. ZBL 150-80 defines “LOT” as “a parcel of land, fronting on a STREET” and then goes on to refer to the two methods of registration: by “metes and bounds” (often confirmed by a survey) or within a subdivision (e.g., a lot or block). Only one registration test is required to be met. This site satisfies the “metes and bounds” requirement. This site is a “LOT” as defined by ZBL 150-80. The Tribunal finds that the oft-cited legal test is satisfied: a reasonable person reading ZBL 150-80 would arrive at the same conclusion found here.

36The Tribunal acknowledges that the T-York Decision thoroughly considers the possible effects on the shared parking requirements, having accepted them as a necessary consideration raised in evidence. However, that case did not involve the fine-grained analysis raised through this Motion on whether the ZBL can impose, through a SPA condition, the public’s use of a private property. The T-York Decision examined whether sufficient parking would be available for an additional restaurant on one of six properties comprising the Business Park. Of some assistance from the T-York Decision is the consistent understanding with submissions in the present case that some properties have private agreements with other properties for shared parking (albeit not proven in evidence) while other properties within the Business Park have no such agreements (including this site as agreed by the Parties).

37While the Tribunal is not bound by the T-York Decision, the Tribunal emphasizes that the purpose, facts and evidence in that case were quite different than in this Motion.

38The City correctly emphasizes that the T-York Decision concludes that the entire Business Park ought to be considered in applying the rates contained in the ZBL. Again, that finding was based on the witnesses’ calculations related to a ZBL amendment, whereas here, a SPA condition must take its direction from the ZBL as written.

39To the ZBL parking provisions, the Tribunal finds that, despite the subtitle “Shared Parking Formula,” the requirements apply to “a LOT containing multiple uses” and “the parking requirement for each use is calculated using the standards” (in the ZBL) “and then applied … at the percentages indicated.”

40On this site, the office building and retail/restaurant uses (if any) result in a mandatory number of parking spaces. There is no theatre on this lot (0 theatres X 1 space/6 seats X 100% = 0 required parking spaces). While no detailed explanation was filed on the parking calculation shown on the 1988 site plan (Ex. 2, p. 314), the Tribunal observes that the “Parking Requirements” reference “0 Theatre” and “0 #Spaces.” The Tribunal finds that the existing SPA agreement’s utilization of the ZBL parking formula calculates the required number of parking spaces for this site but does not mandate or authorize the public use of this site.

41In accordance with the above-noted cases, the Tribunal finds that the ZBL cannot mandate private entities to allow public access to private lands. A registered agreement is necessary, such as through a condition of consent (severance) or between agreeable lot owners.

42Of note in the Burger King case, the Ontario Municipal Board found that a liberal interpretation of s. 41(7) of the Act was warranted but went on to qualify in para. 12 that exacting a financial contribution for facilities off-site would be vastly different. The Tribunal finds that the City’s intent to enforce public parking is akin to exacting a financial contribution onto the Applicant.

43The City references para. 30 in the earlier 1986 SPA agreement to argue that the Applicant knew and agreed to shared parking. To the contrary, the Tribunal reads no reference to shared parking in para. 30 and concludes that, while additional parking spaces could be requested by the City, ZBL 295-85 will be used to establish minimum standards. Similarly, the 1988 SPA agreement states that “a use shall not be permitted on the lands unless the appropriate parking requirements for that use are met” (emphasis added). The City raised no issues during this Motion Hearing with the number of parking spaces on this site, only the issue of who may use them.

44The Tribunal places no weight on the 30 years’ existence of the parking gates and barrier on this site. If such facilities were alleged as contrary to the ZBL or SPA agreement, each new day could possibly be considered a new contravention, should someone wish to challenge their legality. The implication of the Tribunal’s finding on this Motion is that the gates are not prohibited by the ZBL.

Conclusion

45While OPA 40 intends for shared parking throughout the Business Park, its implementing ZBL failed to achieve such result. It may well have ensured sufficient parking for all uses when the Business Park was a single registered entity, however, suitable measures were not implemented when the Business Park was divided over time into multiple lots, including this site. The ZBL must be read on its face to understand the required parking for a separated lot, and, despite the ineffectual “Shared Parking Formula” subtitle, is found to neither calculate nor achieve that result.

46In accordance with the Polla court case, among others cited earlier, the Tribunal finds that the City’s request that “the gates remain open during non-business hours” is ultra vires s. 41(7) of the Act. This section of the Act is to be read as “restrictive, rather than discretionary” (Polla, para. 12). The Tribunal finds that requiring the gates to remain open would create a visible invitation to the public to utilize the site for parking, which amounts to an expropriated easement by another name. While parking facilities may be regulated through SPA, no provision in s. 41(7) of the Act enables the imposition of a public use on a privately-owned site via a condition, registered agreement or otherwise. The City’s desire to enable the public use of this private site must be pursued some other way.

47The Parties did not raise issues related to matters of provincial interest under s. 2 of the Act, being consistent with the Provincial Policy Statement, 2020 and conforming with A Place to Grow: Growth Plan for the Greater Golden Horseshoe. As such, the Tribunal finds that its Decision on this Motion satisfies those requirements of the Act.

48Following this Motion Decision, the Parties may proceed to a Hearing on the Merits, or a Settlement Hearing should they arrive at a consensus.

Order

49The Tribunal Orders that the Motion is allowed, in part, and the City’s proposed Site Plan Approval condition to the effect that “the parking gates remain open during non-business hours” is ultra vires.

“S. Tousaw”

S. tousaw

VICE-CHAIR

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.