Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 04, 2023 CASE NO(S).: OLT-22-004444

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

Applicant/Appellant: Upper Keele Inc. Subject: Minor Variance Description: To facilitate the development of a one-storey industrial addition and to permit the expansion of a banquet hall Reference Number: A195/22 Property Address: 21, 25 Doney Crescent, 7400, & 7500 Keele Street Municipality: City of Vaughan OLT Case No.: OLT-22-004444 OLT Lead Case No.: OLT-22-004444 OLT Case Name: Upper Keele Inc. v. Vaughan (City)

Heard: February 3, 2023 by Video Hearing

APPEARANCES:

Parties Upper Keele Inc. City of Vaughan

Counsel B. Teichman, J. Reyes (co-counsel) Z. Al-waadh

MEMORANDUM OF ORAL DECISION DELIVERED BY P. TOMILIN ON FEBRUARY 3, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was a Hearing in the matter of the Appeal filed by Upper Keele Inc. (“Applicant” / “Appellant”) arising from the decision of the City of Vaughan Committee of Adjustment (“COA”) to deny an application for Minor Variances (“MV”) from Zoning By-law No. 1-88 (“ZBL 1-88”) and Zoning By-law No. 001-2021 (“ZBL 001-2021”), concerning 21 Doney Street, 25 Doney Street, 7400 Keele Street and 7500 Keele Street (“subject property” / “subject site”).

STATUS REQUEST

2Prior to the Hearing, the Tribunal received a Party status request from Concord West Ratepayers Association (“CWRA”), represented by Cathy Ferlisi. Prior to the Hearing, Counsel to the Appellant had requested a copy of the articles of incorporation of the CWRA, since only the incorporated ratepayer associations can have the status to be a party to proceedings before the Tribunal. In the response email, Ms. Ferlisi stated that the CWRA wishes to withdraw its Party status request.

PRELIMINARY MATTERS – CONDITIONS OF THE APPROVAL AND AMENDMENT OF APPLICATION

3At the onset of the Hearing, City’s’ Counsel stated that the City of Vaughan (“City”) is not opposed to the proposed development, and the City did not tender any planning evidence at the Hearing. However, if the Tribunal sees fit to authorize the MV application, the City wants the Appellant to sign a Letter of Understanding (“LOU”) outlining the City’s conditions for the work involved in Site Development Application DA.16.031, to the satisfaction of the Development Planning Department, and to submit a $50,000 security deposit. The Tribunal notes that in the event that the condition would not be completed, the Tribunal would not be able to make a determination whether the Appellant is liable for whole or part of the security deposit. While the Tribunal can impose certain conditions, the agreement itself is not enforceable by the Tribunal. The Tribunal suggested to the Parties that they could sign the LOU privately among each other. Counsel to the Appellant stated on record that his client is willing to sign the requested LOU with the City.

4At the Hearing, the Counsel for the Applicant had requested a minor amendment to its MV application.

5Pursuant to s. 45 (18.1) and (18.1.1) of the Planning Act (“Act”), the Tribunal has the discretion to allow amendments to a MV application without the requirement for further public notice if it is of the opinion that such amendments are minor by virtue of s. 45(18.1) and (18.1.1) of the Act.

LOCATION AND SURROUNDING CONTEXT

6The subject site is located in the south-east part of the City, within the Concord community. The subject property is a corner lot, located at the southwest corner of Keele Street and Doney Crescent and abuts the Highway No. 407 (“Hwy 407”) westbound on-ramp along the east and south sides.

7The subject site is identified within the city’s urban structure as an Employment Area and is zoned as EM1 Prestige Employment. The nearest residential area is located on the opposite side of Keele Street, approximately 200 metres (“m”) to the northeast.

8The subject property is surrounded by lands that are occupied by employment uses. The employment area consists of a variety of medium and large sized buildings, as well as open air uses. Most of the properties contain buildings, have perimeter parking and have varying landscape features located along the street line. The area contains a wide range of employment uses, such as warehouse, office, storage, transportation, hospitality, and retail commercial.

SUBJECT SITE

9The subject site is a trapezoid-shaped lot. The wider portion abuts Doney Crescent. The narrow portion, to the southwest, follows the Hwy 407 on-ramp alignment. The subject property has a lot frontage of 130.87 m on the south side of Doney Crescent, a lot depth of 308.5 m and a lot area of 32,720 square metres (“m2”) (3.27 hectares).

10The subject site is developed with two centrally located buildings with a total floor area of 11,434.59 m2 and has 207 parking spaces. The subject property is accessed from Doney Crescent. The driveway circles around the subject site, providing access to surface parking and loading.

11The landscaping is adjacent to the existing buildings along Doney Crescent, Keele Street and Hwy 407 and runs along the perimeter of the subject property. The landscape strip abutting Doney Crescent is approximately 10.83 m in width. The landscape strip abutting Keele Street is 28.89 m near to Doney Crescent, tapering down to 5.29 m, and 0.14 m adjacent to the parking aisle next to the Hwy 407 on-ramp. As the property line follows the highway on-ramp, the landscape strip widens from 3.05 m to over 56.0 m.

12The northern building on the subject site is a single storey building, with a floor area of 4,761.36 m2. It contains a warehouse, storage and office and is municipally known as 21 Doney Crescent and 7500 Keele Street.

13The southern building on the subject property is a one-storey building. It has 6,673.23 m2 of floor area, including 1,082.56 m2 for a banquet hall (“BH”). It contains a warehouse, storage, manufacturing, office, and the BH and is municipally known as 25 Doney Crescent and 7400 Keele Street.

THE DEVELOPMENT PROPOSAL

14The Applicant is proposing to construct a one-storey industrial building addition, and to recognize the existing size and location of the BH facility. The proposed addition will be 8.5 m in height, will have a floor area of 1,433.02 m2, will connect two existing buildings and will contain a warehouse and storage uses.

15The BH is located within the northeast portion of the southerly building. It is known as the Fontana Gardens Banquet Halls. It has been operating since the early 1980s and predates both ZBL 1-88 and ZBL 001-2021. The City’s site plan control and zoning review processes have identified variances to both of the City’s comprehensive ZBLs. The variances relate to the parking, loading space and landscape strip.

16The Appellant submitted a MV application requesting:

Zoning By-law 001-2021

		Variance requested
1	The banquet hall shall be constructed in the area labelled as “Banquet Hall” on Figure E-35. [ Exception 14.186]	To permit a banquet hall outside of the area labelled as “Banquet Hall” on Figure E-351.
2	The banquet hall shall have a maximum gross floor area of 557.0 m2. [Exception 14.186]	To permit a banquet hall with a maximum gross floor area of 1082.56 m2.
3	A minimum of 234 parking spaces are required on the subject lands.	To permit a minimum of 215 parking spaces on the subject lands.
4	One Type B loading space is required for the proposed addition. [Tables 6-16 and 6‐18]	To permit zero (0) Type B loading spaces for the proposed addition.
5	A landscape strip width of 3 m is required abutting a street line. [Table 11-3]	To permit a minimum landscape strip width of 0.14 m in width abutting a street line. (abutting Keele Street).

Zoning By-law 1-88

		Variance requested
6	One banquet hall, not exceeding five hundred & fifty- seven (557) square metres in Gross Floor Area may be established and maintained on that portion of the lands shown as "Banquet Hall" on Schedule E-351 [Exception 9(336)].	To permit a banquet hall with a maximum gross floor area of 1082.56 m2.
7	A minimum of 306 parking spaces are required on the subject lands.	To permit a minimum of 215 parking spaces on the subject lands.
8	A strip of land not less than 9.0 metres in width along a lot line abutting a provincial highway or arterial road and shall be used for no other purpose than landscaping (abutting Keele Street) [6.1.6 b].	To permit a minimum landscape strip width of 0.14 m in width along a lot line abutting a provincial highway or arterial road, to be used for no other purpose than landscaping (abutting Keele Street).

17City’s Planning Staff reviewed the application and recommended that it be approved, but the COA denied the application. The decision of the COA was subsequently appealed to the Tribunal.

LEGISLATIVE FRAMEWORK

18An appeal pursuant to s. 45(12) of the Act is a hearing de novo and the Applicants bear the onus to demonstrate to the Tribunal that the criteria established in s. 45(1) has been satisfied:

1. the intent and purpose of the official plan is being maintained;
2. the intent and purpose of the zoning by-law is being maintained;
3. the variance(s) is desirable for the appropriate development or use of the land, building or structure; and,
4. the variance(s) is minor in nature.

19In addition to the four tests, the Tribunal must have regard to the matters of the provincial interests, as set out in s. 2 of the Act, and to the decision of the approval authority under s. 2.1 of the Act.

HEARING

20The amended variance is related to MV 6 above. In addition to what is requested, the Applicant is seeking authorization for “to permit a banquet hall with a maximum gross floor area of 1082.56 m2 to be located outside of the area labelled as “Banquet Hall” on Schedule E-351 to ZBL 1-88.”

21Franco Romano is a Registered Professional Planner who appeared on behalf of the Appellant. After review of Mr. Romano’s professional qualifications, his Curriculum Vitae and confirmation of his Acknowledgment of Expert’s Duty, the Tribunal qualified Mr. Romano to provide expert opinion testimony in the area of land use planning.

22Mr. Romano brought to the Tribunal’s attention that the City’s planning Report recommended the approval of the development proposal. Mr. Romano clarified that the existing BH predates both ZBL 1-88 and ZBL 001-2021. The proposed development is not seeking to enlarge the BH, but to legalize its size and location. The additional facility that the Applicant is seeking to build will be primarily used for storage and manufacturing. This will lead to reduction of need to store materials out in the open yard. The reduction of required parking spaces was supported by the Parking Justification Study performed by Lea Consulting on behalf of the Applicant. Since the existing buildings already contain loading docks, the proposed addition will not require a loading dock.

23Mr. Romano explained that at the time of the application, the 2010 York Region Official Plan was in effect. The subject site is located within the Urban Area designation on Regional Structure Map 1. The employment uses are permitted, and the official plan recognizes within its Urbanizing Region Section 5.2, Sustainable Cities, Sustainable Communities that employment uses are important to create high quality communities.

24The 2022 York Region Official Plan (“YROP”) was approved in November of 2022. Mr. Romano explained:

Employment Areas policies in Section 4.3 state that these are areas for employment uses for clusters of business and economic activities, including manufacturing, warehousing, industrial, offices, and associated retail and ancillary facilities. Employment Areas are to be protected from encroachment of sensitive uses, and are to be protected, maintained, and enhanced from a long-term supply and viability perspective. The Highway 400 and 407 Employment Area Zones provides for a density target of 70 jobs per hectare of developable area.

25Mr. Romano opined that the proposed development conforms to the YROP and will assist in enhancing and maintaining the existing economic activity on the subject property and will regularize the existing BH.

26Mr. Romano stated that the Vaughan Official Plan 2010 (“OP”) was largely approved, including all policies related to the MV applications. The subject site is located within the Urban Boundary, categorized as Employment Areas. Mr. Romano reviewed applicable sections, more specifically s. 2.2.1, 2.2.4, 5.1.1, 5.1.2.3, 9.1.2.10, 9.2 and concluded that the development proposal maintains the general intent and purpose of the OP.

27In his testimony, Mr. Romano noted that the subject property is zoned as EM1 Prestige Employment. ZBL 001-2021 provides for an EM1 zoning (Prestige Employment Zone), subject to Exception 14.186. Variety of uses are permitted under the ZBL 001-2021, including warehousing, processing, manufacturing, service commercial, transportation, office, and accessory uses. Exception 14.186 permits a BH as an accessory use. Mr. Romano testified that Figure E-351 provides a general, non-dimensioned location of the BH at the northeast corner of the south building on the subject site. And he brought the Tribunal’s attention to the fact that the existing BH is located at the northeast corner of the south building on the subject property. The existing BH is larger than the area depicted on Figure E-351.

28Mr. Romano explained that ZBL No. 1-88 zones subject property EM1 (Prestige Employment Area), subject to Exception 9(339). Exception 9(339) states:

Notwithstanding the provisions of Subsection 6.2.1 regarding uses permitted in the EM1 Prestige Employment Area Zone, one banquet hall, not exceeding five hundred & fifty-seven (557) square metres in Gross Floor Area may be established and maintained on that portion of the lands shown as "Banquet Hall" on Schedule E-351 attached hereto.

29Mr. Romano clarified that the Schedule E-351 provides a general location of the BH at the northeast corner of the south building on the subject property and that Schedule E-351 does not contain any dimensions. Under the ZBL 1-88, the existing BH is located at the northeast corner of the south building on the subject property. The existing BH is larger than the area depicted on Schedule E-351.

30In Mr. Romano’s planning opinion, the proposed development maintains the overall general intent and purpose of both ZBL 001-2021 and ZBL 1-88, individually and cumulatively.

31Mr. Romano opined that the development proposal has been designed to fit appropriately and sensitively onto the subject site and its surroundings. The proposed building addition connects the two existing buildings, while maintaining appropriate and satisfactory servicing and landscaping features. The proposal minimizes site disturbances and creates no unacceptable adverse impacts. Thus, in Mr. Romano’s opinion, the variances are minor.

32Mr. Romano stated that with respect to s. 2 of the Act, all aspects are appropriately satisfied.

33In Mr. Romano’s professional planning opinion, the proposed development:

represents an appropriate, incremental form of development which minimizes impacts on the property and surroundings. The proposal retains the existing economic functions of the subject property, while incorporating an employment expansion which will maintain the cohesiveness and stability of the employment property and area. The proposal will improve the indoor storage capacity for the existing employment uses. This will decrease the need for outdoor storage of materials. The proposal will contribute to the employment function in a manner that is within the planning and public interest. The proposal is desirable for the appropriate development or use of the land, building or structure. The proposal satisfies this minor variance test.

ANALYSIS AND FINDINGS

34The Tribunal is satisfied that the application meets the criteria of the tests set out at s. 45(1) of the Act. The MV can be implemented without any adverse impact on the neighbouring properties and the surrounding community.

CONCLUSION

35In making its Decision, the Tribunal has taken into consideration the Municipal records, the staff Planning Report, and has accepted the uncontested land use planning opinion evidence of Mr. Romano. Based on the planning evidence presented by Mr. Romano, the Tribunal finds that the variances are desirable for the appropriate development of the subject property, are minor in nature, will not have undue impacts on the surrounding properties and meet all four of the tests under s. 45(1) of the Act.

ORDER

36THE TRIBUNAL, having been asked to consider an application which has been amended from the original application and having determined that no further notice is required in accordance with s. 45(18.1.1) of the Planning Act.

37THE TRIBUNAL ORDERS that the appeal is allowed and the variances to Zoning By-law No. 1-88 and Zoning By-law No. 001-2021 are authorized.

38THE TRIBUNAL FURTHER ORDERS to permit a banquet hall with a maximum gross floor area of 1082.56 m2 to be located outside of the area labelled as “Banquet Hall” on Schedule E-351 to By-law No. 1-88.

“P. Tomilin”

P. TOMILIN 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.