Dunpar Developments Inc. v. Mississauga (City), 2024 CanLII 11554

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 14, 2024

CASE NO(S).: OLT-23-000139

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended.

Appellant: Dunpar Developments Inc.

Subject: By-law No. 0008-2023

Description: to amend Mississauga Zoning By-law

Reference Number: BL.09-CIT, Zoning By-law No. 0008-2023

Property Address: City-wide

Municipality/UT: City of Mississauga

OLT Case No.: OLT-23-000139

OLT Lead Case No.: OLT-23-000139

OLT Case Name: Dunpar Developments Inc. v. Mississauga (City)

Heard: January 12, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

City of Mississauga

Peter Pickfield Alex Ciccone (in absentia)

Dunpar Developments Inc.

Michael Nemanic Giouzelin Mutlu

Fountain Hill Construction and Consulting Ltd.

Michael Nemanic

DECISION DELIVERED BY W. DANIEL BEST AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal concerns an appeal filed by Dunpar Developments Inc. (“Applicant”) against the enactment of Zoning By-law Amendment No. 0008-2023 (“ZBA”) by the City of Mississauga (“City”) of its existing Zoning By-law No. 0225-2007 (“ZBL”). The appeal of the City-wide ZBA brought forward by the Applicant, was pursuant to s. 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended.

2Fountain Hill Construction and Consulting Ltd. was granted Party status under Rule 8.3 of the Ontario Land Tribunal’s Rules of Practice and Procedure.

3The purpose and effect of the ZBA was to implement the following changes:

SECTION NUMBER

PROPOSED REVISION

COMMENT/EXPLANATION

Section 1.2 Definitions

Gross Floor Area (“GFA”) – Infill Residential

Replace “the area of void in a floor” with “any void areas”

This will clarify that areas that are open to below do not need to be considered a gap in the floor, but can be considered a void area, in accordance with the new definition to be introduced

Motor Vehicle Wash Facility - Commercial Motor Vehicle

Amend the definition to include interior cleaning of vehicles.

The amended definition will clarify that interior detailing is permitted as a stand-alone use in zones where a motor vehicle wash facility – commercial motor vehicle is permitted.

Motor Vehicle Wash Facility - Restricted

Amend the definition to include interior cleaning of vehicles.

The amended definition will clarify that interior detailing is permitted as a stand-alone use in zones where a motor vehicle wash facility – restricted is permitted.

Pressure Container

Add a new definition that a pressure container is located outdoors in a fixed location, and would hold pressurized liquids or gases, but does not include ones that are otherwise regulated by the By-law.

Create a definition to clarify what constitutes a pressure container. This definition will exclude specific use pressure containers if they are regulated elsewhere in the by-law, for example propane cylinders and propane storage tanks.

Void Area

Add a new definition that includes any conditioned space that has the potential to add additional gross floor area without altering the external dimensions of the dwelling.

The new definition will provide clarity to the interpretation of what can be included in the calculation of gross floor area – infill residential, in accordance with the original intent of the revised/new regulations in By-law No. 0208-2022.

Part 2: General Provisions

Table 2.1.2.2.5 – Pressure Container

Add new table with regulations for pressure containers to: a)Prohibit pressurized containers from lands abutting Residential, Downtown Core or C4 (Mainstreet Commercial) zones, b) Prohibit pressure containers in front yards, interior side yards or exterior side yards c)Exempt hospitals from a. and b. above d)Provide 10 m (32.8 ft.) minimum setback criteria for pressure containers located in Institutional zones

Create regulations that ensure pressure containers have appropriate safety considerations for sensitive land uses

2.1.3.1 Frontage on a Street

Amend the regulation to include a CEC – Road or a Private Road.

CEC – Roads and Private Roads were inadvertently omitted in the original regulation.

8 and 9

Schedules 2.1.14(1) and 2.1.14(2) Designated Right-of-Way Widths

Update the outdated schedules.

Amendments have been made to the corresponding Official Plan Schedule which the Zoning By-law must match

Table 2.1.9.10 transit Terminal and Transit Corridor

Add retail store, take-out restaurant, financial institution, service establishment, medical office, and office as permitted accessory uses.

Add a new regulation to cap permitted accessory uses at 30% of the total GFA-non-residential.

Amend the transit terminal and/or transit corridor regulations to include accessory uses and associated non-residential gross floor area maximums. The amendment also stipulates that the proposed accessory uses must be located wholly within the transit terminal, with no direct external access. This ensures the accessory uses are truly accessory to the transit terminal as they will be subject to the hours of operation of the transit terminal in which they are located.

Part 4.10: RM4 Zone (Townhouses)

Table 4.10.1 - RM4 Permitted Uses and Zone Regulations

Amend Line 7.1 to remove the phrase "/or".

Insert lot line setbacks for accessory buildings or structures as follows: a)front and exterior side lot lines: 4.5 m (14.8 ft.) b)interior side lot lines: 2.5 m (8.2 ft.)

The removal of this phrase "/or" is required to clarify that the lot line setback would apply to the each of the front, side and rear wall of a townhouse.

The accessory buildings and structures provisions state that the exterior and interior side yard regulations of the applicable zone shall apply. However, the current base RM4 (Townhouse) zone does not contain those provisions but rather contains setback provisions. The proposed setbacks align with the intent of the accessory structure provisions that the exterior and interior side lot line regulations of the applicable zone shall apply. A setback of 4.5 m (14.8 ft.) is proposed as condominium townhouse developments are generally large and the buildings are not configured in a standard format such as low density lots.

Part 4.14.1 RM9 and RM10 Zone (Back To Back And Stacked Townhouses)

Table 4.14.1 – RM9 and RM10 Permitted Uses and Zone Regulations

Add Line 14.5 to clarify the criteria for minimum sidewalk widths adjacent to a street, condominium road, private road or CEC – road

The addition of Line 14.5 will ensure sidewalk widths comply with Mississauga’s Engineering drawing standards for condominium private roads.

Part 4.14A RM11 Zone (Back To Back Townhouses On A CEC - Road)

Table 4.14.A.1 – RM11 Permitted Uses and Zone Regulations

Amend Lines 9.3 and 9.4: Remove the words “lot with any” and replaced with “building to a”. Add Line 12.8 to clarify the criteria for minimum sidewalk widths adjacent to a street, condominium road, private road or CEC – road

Setback regulations require both a “to” and a “from” to ensure appropriate measurement. Such points of reference were omitted from the original regulation. The addition of Line 12.8 will ensure sidewalk widths comply with Mississauga’s Engineering drawing standards for condominium private roads.

4On September 28, 2023, counsel for the City, on consent of the Parties, requested an Order from the Tribunal that a portion of the ZBA be approved as it was not appealed by the Applicant. On October 19, 2023, The Tribunal issued an Order confirming that Sections 2, 4, 6, 8 10, and 14 of the ZBA are deemed to have come into force on the day the ZBA was passed, being January 18, 2023.

5In advance of the Hearing, the Tribunal was advised that the Applicant and the City had resolved all of the outstanding Issues under dispute as follows:

Adding a new definition for “Void Area”;
Amending the definitions of “Gross Floor Area” – Infill Residential;
Amending the General Provisions regulation regarding frontage on a street to also include a Common Element Condominium (“CEC”) road;
Adding accessory building or structure setback regulations to the RM4 (Townhouse) Base Zone;
A technical amendment to clarify the minimum lot line setback for the RM4 (Townhouse) zone, from a townhouse to a street line including the front, side and rear wall of a townhouse;
Providing technical amendments to the RM11 Base Zone to be setback from a building rather than a lot;
The addition of a provision that two properties owned by Dunpar (2155 Leanne Blvd located in Ward 2 and zoned O1-12 (Office) and 2620 Chalkwell Close, also located in Ward 2 and zoned R2 (Residential)) be exempt from the provisions of the ZBA which remain under appeal (Sections No.1, 5, 7, 11 and 13) and instead be subject to the existing zone regulations of the ZBL; And
The removal of Section 12, and the amendment of section 13, which would have added a 2.0 meter minimum sidewalk requirement for RM9, RM10, and RM11 zones, respectively.

6City Council considered the proposed settlement (“Settlement”) on December 13, 2023, and resolved to approve Settlement of the appeal.

CONTEXT

7The following material was identified as an Exhibit and marked as follows:

Exhibit 1 – Settlement Affidavit of Trista James sworn on Tuesday, January 2, 2024.

8The Tribunal only heard from one witness, Trista James who was qualified on consent as an expert witness in land-use planning by the Tribunal.

ISSUES BEFORE THE TRIBUNAL

9The issue before the Tribunal is to determine whether the Settlement meets all applicable Provincial, Regional and local planning tests, represents good planning and is in the public interest.

ANALYSIS

10For the reasons that follow, the Tribunal orders that the appeal is allowed, in part.

11Ms. James provided the Tribunal with an affidavit which sets out the planning policy and regulatory context including matters of provincial interest; the Settlement between the Parties; the proposed ZBA; and outlines her opinion and recommendations to the Tribunal.

12It is through Ms. James uncontroverted evidence and opinion that the Settlement to be implemented through the proposed ZBA, is consistent with the Provincial Policy Statement, 2020 (“PPS”), conforms to A Place to Grow: Growth Plan for the Greater Golden Horseshoe, as amended, 2020 (“Growth Plan”), is in conformity with the Region of Peel Official Plan (“ROP”), the City of Mississauga Official Plan (“OP”), represents good planning and is in the public interest.

13The Tribunal accepts both Ms. James’ evidence and opinion that the minor nature of the modifications in the Settlement, and the fact that the exempted properties will be required to comply with the in-force ZBL prior to the approval of the Settlement modifications, ensures continuous preservation of the intent of the ZBL.

14Given that the amendments are not related to growth and are minor in nature, the Settlement is consistent with the PPS and conforms with the Growth Plan and ROP.

15The Settlement conforms with the OP by reinforcing the character of existing and planned neighbourhoods, fostering compact and efficient land uses that are community supportive, and allowing for more comprehensive definitions and regulations in the ZBL which supports the changing needs of businesses and residents in the City.

16The Tribunal is satisfied that the Settlement to be implemented through the proposed ZBA, is consistent with the PPS, conforms to the Growth Plan, ROP, OP, represents good planning and is in the public interest.

INTERIM ORDER

17THE TRIBUNAL ORDERS THAT the appeal is allowed, in part, on an interim basis contingent upon confirmation, satisfaction or receipt of the pre-requisite matter identified in paragraph [18] below, and the Zoning By-law Amendment set out in Attachment 1 to this Interim Order, is hereby approved in principle.

18The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the City Solicitor, on consent of the Parties, the following pre-requisite matter:

The Tribunal has received and approved the Zoning By-law Amendment submitted in a final form.

19The City Solicitor will deliver the Zoning By-law Amendment in its final form by Friday, March 1, 2024. If the Parties do not submit the Zoning By-law Amendment in its final form and provide confirmation to the Tribunal that the contingent pre-requisite set out in paragraph [18] has been satisfied, the Parties shall provide the Tribunal with a written status report.

20The Member will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-law Amendment, and the issuance of the Final Order.

21The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timeline and deadline for the submission of the final form of the instrument, the satisfaction of the contingent pre-requisites and the issuance of the Final Order.

“W. Daniel Best”

DANIEL BEST

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

DRAFT City-Wide Zoning By-law Amendment Settlement

THE CORPORATION OF THE CITY OF MISSISSAUGA BY-LAW NUMBER XXXX-2023

A by-law to amend By-law Number 0225-2007, as amended.

WHEREAS pursuant to section 34 of the Planning Act, R.S.O. 1990, c.P.13, as amended, the council of a local municipality may pass a zoning by-law;

NOW THEREFORE the Council of The Corporation of the City of Mississauga ENACTS as follows:

By-law Number 0225-2007, as amended, being a City of Mississauga Zoning By-law, is amended by deleting the words "the area of void in a floor" from the definition of "Gross Floor Area (GFA) - Infill Residential" and substituting with the words "any void areas" in Section 1.2 as follows:

Gross Floor Area (GFA) - Infill Residential

means the sum of the areas of each storey of a building, including ~~the area of void in a floor~~ any void areas, above average grade, measured from the exterior of outside walls, including an attached garage and any part of the building, above and below grade, used for motor vehicle parking. (0174-2017), (0208-2022)

By-law Number 0225-2007, as amended, is further amended by adding the following Definition to Section 1.2:
By-law Number 0225-2007, as amended, is further amended by adding the words "or CEC - road" to Article 2.1.3.1 contained in Subsection 2.1.3 as follows:

2.1.3.1 All lots shall have frontage on a street or CEC - road.

By-law Number 0225-2007, as amended, is further amended by deleting the word "/or" from Cell A7.1 and adding Lines 7.9 and 7.9.1 to Table 4.10.1 contained in Subsection 4.10.1 as follows:

Column A

Line 1.0

ZONES

RM4

7.0

MINIMUM LOT LINE SETBACKS

7.1

From the front, side and~~/or~~ rear wall of a townhouse inclusive of stairs to a street line of a designated right-of-way 20.0 m or greater identified in Subsection 2.1.14 of this By-law

7.5 m ⁽¹⁾

7.9

Notwithstanding the provisions contained in Table 4.1.2.2 of this By-law, minimum setback of an accessory building or structure to a streetline

4.5 m

7.9.1

Notwithstanding the provisions contained in Table 4.1.2.2 of this By-law, minimum setback of an accessory building or structure to an interior side lot line

2.5 m

By-law Number 0225-2007, as amended, is further amended by deleting the words "lot with any" and adding the words "building to a" to Cells A9.3 and A9.4 contained in Subsection 4.14A.1 as follows:

Column A

Line 1.0

ZONES

RM11

9.0

ENCROACHMENTS, PROJECTIONS AND INTERNAL SETBACKS

9.3

Minimum setback from a ~~lot with any~~ building to a side lot line abutting a CEC - road

4.5 m

9.4

Minimum setback from a ~~lot with any~~ building to a side lot line abutting a CEC - sidewalk

1.5 m

Sections 1-5 of this By-law shall not apply two the following two properties: 2155 Leanne Blvd and 2620 Chalkwell Close.
The greyed-out text, identified in Sections 1, and 3 to 5 of this By-law, is for information purposes only and does not form part of the amendments contained in this By-law.

ENACTED and PASSED this day of January , 2024.

MAYOR

CLERK

APPENDIX "A" TO BY-LAW NUMBER

Explanation of the Purpose and Effect of the By-law

The purpose of this By-law is to amend Mississauga Zoning By-law 0225-2007, as amended, by:

Adding a new definition for "Void Area"
Amending the definitions of "Gross Floor Area - Infill Residential
Amending the General Provisions regulation regarding frontage on a street to also include a CEC - road
Adding accessory building or structure setback regulation to the RM4 (Townhouse) Base Zone
A technical amendment to clarify the minimum lot line setback for the RM4 (Townhouse) zone, from a townhouse to a street line includes the front, side and rear wall of a townhouse
Providing technical amendments to the RM11 Base Zone to be setback from a building rather than a lot.

Amendments include revisions to the following parts of the Zoning By-law:

Definitions
General Provisions
RM4 Permitted Uses and Zone Regulations
RM11 Permitted Uses and Zone Regulations

Location of Lands Affected

All lands in the City of Mississauga.

Further information regarding this By-law may be obtained from Trista James of the City Planning and Building Department at 905-615-3200 ext. 5609.

http://teamsites.mississauga.ca/sites/18/bylaws/bl.09-cit no. 16.by-law.rv.tj.jmcc.docx.