GSP Group Inc. v. Cambridge (City), 2023 CanLII 50955

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 05, 2023

CASE NO(S).: OLT-22-004798

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

Applicant/Appellant: GSP Group Inc.

Subject: Minor Variance

Description: To permit an increase to the maximum number of used motor vehicles per service bay

Reference Number: A56/22

Property Address: 110 Franklin Boulevard

Municipality/Upper Tier: Cambridge/Waterloo

OLT Case No.: OLT-22-004798

OLT Lead Case No.: OLT-22-004798

OLT Case Name: GSP Group Inc. v. Cambridge (City)

Heard: May 9, 2023 by video hearing

APPEARANCES:

Parties

Counsel

Special Interest Automobiles (Ali Ghaddar, Owner)

Eric Davis

City of Cambridge

Edmund Carlson, Planner (in absentia)

DECISION DELIVERED BY GREGORY J. INGRAM AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1The matter before the Tribunal is an appeal filed by GSP Group on behalf of Ahmad Liaqat (the “Applicant/Appellant”) against the decision of the City of Cambridge Committee of Adjustment’s (the “COA”) decision on October 5, 2022, in relation to the refusal of an application for a minor variance to the zoning provisions established by Zoning By-law No. 150 – 85 as amended (the “ZBL”) concerning 1100 Franklin Boulevard (the “Subject Property”).

2The Subject Property is located on the northwest corner of the Franklin Boulevard/Lindsay Road intersection, north of Can-Amera Parkway and is .6 hectares in area. The lands are designated Industrial in the City’s Official Plan and zoned M3 Businesses Industrial in the Zoning By-law.

3The property currently operates as a motor vehicle repair operation (Special Interest Automobiles) and no physical change to the site is proposed. The Zoning By-law permits used automobile sales at repair shops in industrial zones as an accessory use to the repair operation, provided no more than two vehicles per service bay are sold from the site.

4The proposal sought to permit the sale of five used motor vehicles per service bay (a maximum of sixty vehicles) whereas the by-law permits a maximum of two vehicle sales per services. It has been determined that there are twelve service bays which permits a total of twenty-four vehicles. The minor variance would facilitate the expansion of automobile sales by the existing motor vehicle repair business. The application initially also requested that sales be permitted as an equivalent use, but that clause was removed by the Applicant following discussions with City Staff.

BRIEF CHRONOLOGY OF THE APPLICATION

5On May 18, 2022, a Minor Variance application was submitted that requested the following:

• Relief from Zoning By-law regulation 3.4.1.3 c) i) to permit the sale of used motor vehicles at a rate of five vehicles per service bay (a maximum of sixty vehicles) whereas the by-law currently permits a maximum of two vehicle sales per service bay or twenty-four vehicles.

6The Planning Staff Report (“Staff Report”) of October 5, 2022, recommended refusal of the minor variance application in the report provided to the COA. They felt that it would not represent a “desirable or appropriate” change at the site or for the larger geographic area and felt that commercial uses in industrial areas do not fall within the general intent and purpose of the Official Plan (“OP”).

7The City Economic Development Staff indicated concern that if approved, the minor variance could produce a used car lot in an industrial zone and that this condition would not reflect a minor alteration of the by-law’s provisions.

8On October 5, 2022, the COA refused the minor variance request. Their rationale mirrored the objections raised in the staff report.

LEGISLATIVE FRAMEWORK

9An appeal pursuant to s. 45 of the Planning Act (“Act”) is a hearing de novo. In this case, the Applicant bears the onus of demonstrating that the four tests as set out in s. 45(1) of the Act have been met. These tests are summarized as follows:

• Does the request maintain the general intent and purpose of the Official Plan?
• Does the request maintain the general intent and purpose of the Zoning By-law?
• Is the request desirable for the appropriate development or use of the land, building or structure? and.
• Is the request minor in nature?

10Section 3(5) of the Act requires that decisions of the Tribunal affecting planning matters be consistent with the Provincial Policy Statement, 2020 (the “PPS”) and conform to the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019, as amended (the “GP”). The Tribunal is to also have regard to matters of provincial interest as set out in s. 2 of the Act as well as have regard for the decision of the Municipality and the information it considered in the course of making its decision in accordance with s. 2.1(1) of the Act.

HEARING

11Upon the commencement of the hearing, Party representation was confirmed. Mr. Davis, attended as Counsel for the Applicant/Appellant. There were no applications for Participant status.

12The Tribunal was informed by Mr. Davis that he had been informed by the City on April 20, 2023 that they would not be attending the hearing.

13The Tribunal received and marked the following documents as Exhibits to the Hearing:

• Exhibit 1: Expert Witness Statement of Brandon Flewwelling
• Exhibit 2: Municipal Submission, City of Cambridge

14Counsel for the Appellant asked that Brandon Flewwelling be qualified to provide opinion evidence. Mr. Flewwelling is a Registered Professional Planner and is a full member of both the Canadian Institute of Planners and the Ontario Professional Planners Institute. He provided a copy of his Curriculum Vitae and an executed Acknowledgement of Expert’s Duty. He also indicated that he has appeared before the Ontario Municipal Board, the Local Planning Appeal Tribunal and the Ontario Land Tribunal and has previously been qualified to provide expert opinion evidence in land use planning.

15After reviewing Mr. Flewwelling’s professional qualifications and confirmation of Acknowledgement of Expert Duties, the Tribunal, qualified Mr. Flewwelling to provide expert opinion evidence in the field of land use planning.

SUBJECT PROPERTY AND CONTEXT

16Mr. Flewwelling provided an overview of the property and its current uses. He noted that the Subject Property contains an existing building for vehicle repairs and office space and that parking is provided on three sides.

17Mr. Flewwelling opined that the definition of ‘accessory’ (ZBL No. 150 – 85 s.1.1.1.) is general in nature and is not specific to automobile repair services. He contended that using the ratio of staff members (service/sales), the number of transactions and destination of traffic to the site establishes that the sales portion of the business would remain an accessory to the primary business of service if the minor variance request were approved.

18Mr. Flewwelling indicated that eight staff members are employed in the service side versus two on the sales side of the business and that there are no plans for this to change. Further, he noted that the service and repair business serve between 3500 to 4000 vehicles per year and that the sales business sells between 300 and 360 vehicles per year.

DOES THE MINOR VARIANCE MAINTAIN THE INTENT OF THE OP?

19The Staff Report suggested that the application did not comply with the OP in that it infers that employment areas, inclusive of industrial areas such as the subject land, should encourage compact urban form, a high standard of urban design and a broad range of employment types. The report indicated that “while the variance could be seen as minor in nature”, Staff did not consider the intent of the application to be compatible with the OP as the increase in commercial use conflicts directly with the objectives of the employment area.

20Mr. Flewwelling opined that the minor variance maintains the intent of the OP in general and the Business Industrial designation specifically and referred to Section 8.5.3.4.2.

21It is Mr. Flewwelling’s position that the Section 8.5.3.4.2. permits the existing repair operation and allows for the accessory use of retail sales as it is listed as a permitted use ( 8.5.3.4.2. o)). He said it allows for accessory uses (8.5.3.4.2.t)) and specifically in 8.5.3.4.2. v., refers to limited retail sales and service in conjunction with permitted uses listed in this section.

22Mr. Flewwelling opined that the section that refers to other permitted uses provides permission for the current use and the minor variance application would merely increase the number of vehicles being sold and not change the use of the property.

23Mr. Flewwelling also noted that Section 8.5.3.4.2. also permits the sale of other motorized vehicles such as trucks and small equipment while also identifying retail sale and service as commercial accessory uses.

24The Tribunal accepts Mr. Flewwelling’s evidence that the proposed minor variance maintains the purpose and intent of the OP given that Section 8.5.3.4.2 recognizes and permits the co-existence of a wide variety of business opportunities within the Business Industrial designation related to services and sales. These include such things as conference and banquet facilities, commercial education facilities, fitness centres and recreation facilities, and courier and delivery services. Section 8.5.3.4.2. m) and o) identify automotive servicing and sales as permitted uses while other sections name small equipment and machine sales (q), lumber yard (r), and motorized recreational vehicles (s) as permitted uses.

DOES THE MINOR VARIANCE MAINTAIN THE GENERAL INTENT OF THE ZBL?

25The Staff Report indicated that that the ZBL treats motor vehicle sales as a commercial retail land use and Staff felt that such a use in an industrial zone would fall outside of the intent of the ZBL and would not be minor in nature. The Report also indicated that the ZBL does not provide a metric for determining accessory use but does define accessory as a “use which is incidental, subordinate and exclusively devoted to the principal uses of the land.” In referring to the metrics provided by the Applicant related to sales, Staff indicated that the increased ratio from 2:1 to 5:1 represents a 250% increase in sales volume which in their opinion makes the sales element similar in scale to the repair function of the business. Planning Staff indicated that the general intention of the provisions to allow used vehicle sales is in anticipation of smaller scale operations than exist on the Subject Property.

26Mr. Flewwelling is of the opinion that the current uses comply with the ZBL and specifically with uses outlined in the General Industrial Section 3.4.2.2 which include a motor repair shop. Further he noted that Section 3.4.1.3 c) specifically permits motor vehicle sales of two per bay and that sales remain an accessory to the repair function of the property.

27Mr. Flewwelling noted that the number of vehicles that may be sold is determined by the number of service bays and there is currently the equivalent of twelve service bays. Given that a ‘service bay’ is not defined in the ZBL, it was determined through discussions with City Staff that the number of ‘workstations’ would be equivalent to ‘service bays’. This approach permits twenty-four vehicles to be displayed for sale. He confirmed that there are no changes proposed to the existing building, Subject Property or the number of staff dedicated to each function. It was his opinion that there would be no other impact related to the regulations set out in the ZBL.

28The Tribunal finds that the minor variance application maintains the general intent of the ZBL and concurs with the rationale provided by Mr. Flewwelling. Firstly, the permitted uses of servicing and selling vehicles does not change with this minor variance request. Secondly, the method of determining the ‘number of bays’ occurred through a discussion between the Parties which suggests that flexibility already exists in determining the actual number of sales permitted. Finally, the Tribunal is not aware of any limit to the number of vehicles that may be serviced on the property and as a result lessens the significance of the ratio position put forward by the Planning Staff. The ratio of cars being serviced to sales is likely to continuously fluctuate as may the number of staff required to support each business function. Currently the upper limit of sales is based on the number of service bays, whereas the minor variance request sets a limit of sixty.

IS THE MINOR VARIANCE DESIRABLE FOR THE LANDS?

29In the Planning Report, Staff indicated that the Franklin Boulevard corridor is industrial in use and the expansion of retail uses is not seen as desirable in an area which is intended to remain industrial in nature.

30Mr. Flewwelling is of the opinion that the proposed variance is desirable for the subject property as there is no change in use, the property can accommodate the increased number of vehicles, the Business Industrial designation permits automotive sales, and the Franklin Boulevard corridor contains a mix of land uses that is heavily focused on automobiles and parking areas. It is his contention that given the high number of vehicles on the property now he opined that it is difficult to know what is for sale and what is in for servicing currently.

31The Tribunal accepts Mr. Flewwelling’s position as noted above. In addition, the proposed minor variance actually places a limit on the number of sales permitted on the property where the current situation is less restrictive given the only determination of number of sales is attached to the number of service bays.

IS THE APPLICATION MINOR?

32The City Staff Report indicated that the application could be deemed minor in nature, but Staff felt that the intent of the application was not “compatible with the OP insofar as the increase in commercial use conflicts directly with the objectives of the employment area” (Pg. 3 City of Cambridge Development Planning Section).

33It is Mr. Flewwelling’s opinion that the requested variance is minor in nature given that there will be no change to the existing use and does not increase the number of employees. He indicated that it would remain at eight working in the service area and two supporting the sales component. He estimated a maximum of 4000 vehicles could be serviced compared to a maximum of 360 car sales per year if the application is approved. In addition, he indicated that the Franklin Boulevard corridor contains a mix of land uses with many properties focused on automobiles and parking areas. Mr. Flewwelling opined that “The parking of automobiles for sales purposes…will not change the character of this area.”

34The Tribunal finds that the application is minor and accepts Mr. Flewwelling’s rationale that the service function will remain the primary use for the property and that sales would continue to be an accessory use. In addition, the Tribunal also accepts the position that the proposed minor variance will not have a negative impact on the general character of this area.

ANALYSIS AND DISPOSITION

35The Tribunal, in considering the Appeal/Application, reviewed the Municipal Record contained in the Tribunal’s file, including the Staff Report, the decision of the COA, and the draft minutes of the COA hearing.

36The Tribunal accepts the planning evidence and opinions of Mr. Flewwelling and finds that the requested variance satisfies the criteria established in s. 45(1) of the Act. It finds that the general intent and purpose of the OP and the ZBL is being appropriately maintained. The Tribunal finds that the variance is desirable for the appropriate use of the land, is minor in nature and does not result in the creation of unacceptable adverse impacts.

ORDER

37THE TRIBUNAL ORDERS that the appeal is allowed, and the requested variance is authorized.

“Gregory J. Ingram”

GREGORY J. INGRAM 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.