2839890 Ontario Inc. (Barco Materials Handling Limited) v. Cambridge (City), 2024 CanLII 120529

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 26, 2024

CASE NO(S).: OLT-24-000889

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

Applicant and Appellant: 2839890 Ontario Inc. (Barco Materials Handling Limited)

Subject: Minor Variance

Description: To permit an increase in outdoor storage area

Reference Number: A23/24

Property Address: 1367 Industrial Road

Municipality/UT: Cambridge/Waterloo

OLT Case No.: OLT-24-000889

OLT Lead Case No.: OLT-24-000889

OLT Case Name: 2839890 Ontario Inc. (Barco Materials Handling Limited) v. Cambridge (City)

Heard: October 29, 2024 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
2839890 Ontario Inc. (Barco Materials Handling Limited)	Calvin Lantz, David Falletta*
City of Cambridge	Did not appear

MEMORANDUM OF ORAL DECISION DELIVERED BY JENNIFER CAMPBELL ON OCTOBER 29, 2024 AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Decision arises from a hearing (the “Hearing”) brought before the Ontario Land Tribunal (the “Tribunal”) regarding the appeal by 2839890 Ontario Inc. (Barco Materials Handling Limited) (the “Appellant”) concerning a notice of decision dated July 10, 2024 (the “Notice of Decision”) issued by the Committee of Adjustment (the “Committee”) for the Corporation of the City of Cambridge (the “Respondent”) approving a minor variance to permit increased outdoor storage at the property located at 1367 Industrial Road, Cambridge, Ontario (the “Property”).

2Pursuant to email correspondence from Angelica Rabe dated September 10, 2024, the Respondent confirmed that it would not be attending the Hearing.

BACKGROUND

3The Property is located on the northeast corner of Industrial Road and Bishop Street North within a business industrial area in the City of Cambridge. The Property is currently occupied by a large warehouse building comprised of three businesses including that of the Applicant. A chain link fence runs along the property line across the entire Bishop Street North frontage and approximately 90 metres north along the Industrial Road flankage of the Property.

4The Applicant operates as a manufacturer of wooden pallets, skids and crates. It acquired the Property in the summer of 2022 and uses the existing fenced-in area to store its product materials outdoors. Outdoor storage is a critical component of the Applicant’s business as the crates cannot be stored indoors due to mold and other fire safety factors.

APPLICABLE LEGISLATION

5The Property is zoned as General Industrial Uses (M3) within the City of Cambridge Zoning By-law No.150-85, as amended (the “By-Law”). The provisions of the By-Law which are relevant to outdoor storage in the M-class zones are set forth in regulation 3.4.1.4 thereof, which states:

“(a) subject to clause (b), no outdoor storage of equipment, goods and materials shall be provided in any M-class zone:

(i) between the street line and regulatory building line and, if provided between the regulatory building line and established building line, shall be screened from view along the regulatory building line.

(ii) within the minimum exterior side yard required by this by-law and, if provided in any part of an exterior side yard which is greater than the minimum required by this by-law, shall be screened from view along the line of the exterior side yard required by this by-law.”

6In addition, the applicable parking provisions are found in regulation 2.2.1.4 (g) of the By-Law which requires “an area equivalent to 20% of the lot area shall be provided as a parking lot and shall be provided in addition to any parking spaces or parking lot used or reserved for the purpose of storing heavy vehicles, equipment, machinery, stock or the fleet vehicles of a courier or delivery service”.

7On January 31, 2024, a Minor Variance Application for the Property was filed on behalf of the Applicant (the “Original Application”) to permit an increase of outdoor storage on the Property and to respond to a Notice of Contravention of the By-Law that had been previously received by the Applicant regarding the location and screening of its outdoor storage. In essence, the Applicant was seeking the ability to expand the outdoor storage between the regulatory and established building lines of the Property and within the minimum exterior side yard, each in the absence of the screening required by the By-Law.

8On March 13, 2024, a Committee hearing was held and based upon the discussions at such hearing, the Original Application was revised to include conditions limiting the height of the proposed outdoor storage area and requiring a mesh material to cover the existing chain link fence along Industrial Road and Bishop Street North to provide screening (the “Revised Application”).

9The Revised Application was heard by the Committee on July 10, 2024, and proposed the following variances to the By-Law (collectively, the “Minor Variances”):

a. Section 3.4.1.4 a) i) of Zoning By-law 150-86, as amended.

i. Outdoor storage of equipment, goods and materials to be located between the regulatory building line and the established line, without being screened from view along the regulatory building line.

b. Section 3.4.1.4 a) ii) of Zoning By-law 150-86, as amended.

i. Outdoor storage of equipment, goods and materials to be located within the minimum exterior side yard without being screened from view along the line of the exterior side yard.

c. Section 2.2.1 of Zoning By-law 150-86, as amended.

i. Required parking facilities for all other industrial uses shall be provided at-grade, at an area of equivalent to 19% of the lot area shall be provided in addition to any parking spaces or parking lot used or reserved for the purpose of storing heaving vehicles, equipment, machinery, stock or the fleet vehicles of a courier or delivery service.

10Following the hearing, the Committee issued the Notice of Decision which approved the Minor Variances, subject to the following conditions (collectively, the “Original Conditions”):

(i) That all outdoor storage shall be located behind the regulatory building line;

(ii) That all outdoor storage in front and exterior yards shall be screened from view by a solid fence or wall; and

(iii) That the storage area shall not exceed the height of the solid fence or wall providing visual screening.

11The Applicant has appealed the Notice of Decision on the basis that the Original Conditions are unacceptable, and submits to the Tribunal that the Minor Variances should be approved subject only to the revised condition that all outdoor storage in front and exterior yards shall be screened with a chain link fence with mesh material with a minimum height of 2 metres above finished grade (the “Revised Proposal”).

Submissions

12The Applicant called David Falletta to provide expert testimony regarding several of the matters at issue in this Hearing. Mr. Falletta’s curriculum vitae indicated extensive experience in planning matters, including over 19 years of land use planning experience, a related university degree and college diploma, and memberships with each of the Canadian Institute of Planning and the Ontario Professional Planning Institute. Accordingly, the Tribunal was satisfied that Mr. Falletta held the necessary qualifications to provide opinion evidence in the matters under review in this Hearing, and duly qualified Mr. Falletta as an expert. The testimony of Mr. Falletta was uncontradicted and the Tribunal found it to be well-reasoned and compelling.

13Mr. Falletta testified that the majority of the surrounding industrial uses along Industrial Road between Bishop Street North and Eagle Street North have a large portion of outdoor storage on their properties, and that most of the surrounding industrial uses along Industrial Road have outdoor storage located in the front and exterior yards. Accordingly, in his opinion, there is a pattern of development in the neighbourhood that includes outdoor storage in the front and exterior side yard, similar to that proposed in the Revised Proposal.

14Mr. Falletta further testified that in his opinion, the Committee’s decision to grant the Minor Variances was reasonable as they are technical in nature and do not change the development standards for the existing building on the Property. Further, Mr. Falletta was of the view that the Revised Proposal met the four tests set forth in Section 45(1) of the Planning Act (the “Act”) which provides that a minor variance must: (i) maintain the general intent and purpose of the official plan; (ii) maintain the general intent and purpose of the by-law; (iii) be minor in nature; and (iv) be desirable for the appropriate development and use of the lands (collectively, the “Minor Variance Tests”).

15Mr. Falletta then reviewed the Original Conditions and noted as follows:

(i) the first Original Condition that all outdoor storage must be located behind the regulatory building line is redundant as it repeats the language of the Minor Variance which already stipulates that storage must be located between the regulatory building line and the established building line;

(ii) the second Original Condition which provides that outdoor storage must be screened from view by a solid fence or wall is unreasonable, as adequate screening could be achieved in a number of equally effective ways and there is no need to specify the exact method of screening; and

(iii) the third Original Condition requiring that the storage area not exceed the height of the solid fence or wall providing visual screening is imprecise, reaches beyond the applicable policy rationale and is overly restrictive.

ANALYSIS

16This appeal is a hearing de novo of the Revised Proposal. The Tribunal is required to hear the evidence presented and decide whether to grant the Revised Proposal based on the submissions and the applicable legal tests. The Tribunal must have regard to the decision of the Committee but is not bound by it.

17In making its decision with regard to the Revised Proposal, the Tribunal is required to assess the minor variances using the Minor Variance Tests set out in Section 45(1) of the Act. The Tribunal heard the following planning evidence regarding each of these tests:

(i) Does the Revised Proposal maintain the general intent and purpose of the Region of Waterloo Official Plan (the “ROP”) and the City of Cambridge Official Plan (the “OP”)?

18The ROP was amended in August 2022 to establish the planning framework for accommodating Waterloo Region’s forecasted population and employment growth to 2051. The Revised Proposal maintains the general intent and purpose of the ROP in this regard as it will facilitate an employment use with 70 jobs in a Provincially Significant Employment Zone, where such uses and job growth is planned and directed.

19With regard to the OP, Policy 8.5.3.4.3 expressly designates areas for business industrial uses, including uses that rely on outdoor storage and related screening. In this regard, the Revised Proposal will facilitate the existing permitted use by facilitating the development of a wooden pallet, skid and crate manufacturer on lands designated for such a use, and by expanding the permitted outdoor storage area in a form and pattern that is similar and consistent with other sites within the Business Industrial designation where outdoor storage uses are permitted (particularly given the condition that will require the visual screening of the outdoor storage area from the public view).

20In addition, Policy 10.11.2 of the OP states that a reduction or exemption in required parking facilities may be considered where, in the opinion of the City, “adequate alternative parking facilities are or will be made available”. In this regard, such alternative parking facilities are available at the Property as the existing uses of the Property are currently operating with the slight reduction in parking already in existence today and without any overflow issues.

(ii) Does the Revised Proposal maintain the general intent and purpose of the By-Law?

21The Revised Proposal maintains the general intent and purpose of the By-law as the Property is located in the M3 (General Industrial Uses) zone, which permits a wide range of general industrial uses, including those which require outdoor storage. The purpose and intent of these provisions relating to outdoor storage are to regulate the location and screening of such storage in order to provide an appropriate visual aesthetic from the public streetscape. In this regard, the Revised Proposal will not create an undesirable development pattern as the Property is located within M3 zoned lands which are intended to accommodate employment uses that require outdoor storage, and the outdoor storage will be appropriately screened from view. In addition, the purpose and intent of the applicable parking provisions of the By-Law are to ensure sufficient parking is provided on site for employment uses and to prevent overflow parking onto public streets and abutting lands. Accordingly, the reduction in parking proposed by the Revised Proposal from 20% to 19% maintains the intent of the By-Law in this regard as it is intended to legalize an existing situation where there is already sufficient parking on site to accommodate the existing uses.

(iii) Are the minor variances proposed by the Revised Proposal minor in nature?

22The test for whether the variance is minor relates to whether it causes an undue adverse impact. The planning evidence established that the minor variances set forth in the Revised Proposal will not result in any inappropriate impact or create any adverse impact on nearby properties. Further, any visual impacts to the abutting streetscapes are adequately limited, and the proposed outdoor storage will only exist within a fenced area and will not change any structure on the site.

(iv) Is the Revised Proposal desirable for the appropriate development and use of the lands?

23The planning evidence established that the Revised Proposal will be desirable for the appropriate development and use of the lands as (I) the Property accommodates 70 full-time jobs for the Region and is located in the Business Industrial designation where such uses are directed and exist; (II) the requested variances would facilitate the development of an outdoor storage area at a location that has been historically used for outdoor storage; and (III) the proposed mesh screening on the existing chain link fence will adequately address concerns regarding streetscape aesthetics.

24Based on the planning evidence, the Tribunal finds that the Revised Proposal meets the Minor Variance Tests under Section 45(1) of the Act.

ORDER OF THE TRIBUNAL

25The Tribunal having been asked to consider the Revised Proposal which has been amended from the Revised Application, and the Tribunal having determined as provided for in subsection 45(18.1.1) of the Act that no further notice is required;

26The Tribunal ordered that:

1. The appeal is allowed.

2. The variances to City of Cambridge Zoning By-law No.150-85, as amended, to permit:

   1. Outdoor storage of equipment, goods and materials be provided between the regulatory building line and the established building line, without being screened from view along the regulatory line [S.3.4.1.4 (a) (i)];
   2. Outdoor storage of equipment, goods and materials may be provided within the minimum exterior side yard without being screened from view along the line of the exterior side yard [S.3.4.1.4 (a) (ii)]; and
   3. Required parking facilities for all other industrial uses shall be provided at-grade, at an area of equivalent to 19% of the lot area shall be provided in addition to any parking spaces or parking lot used or reserved for the purpose of storing heaving vehicles, equipment, machinery, stock or the fleet vehicles of a courier or delivery service [S.2.2.1], are approved, subject to the following condition:

That all outdoor storage in front and exterior yards shall be screened with a chain link fence with mesh material with a minimum height of 2 metres above finished grade.

“Jennifer Campbell”

JENNIFER CAMPBELL 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.