du territoire
Ontario Land Tribunal
Tribunal ontarien de l’aménagement
ISSUE DATE: December 16, 2024
CASE NO(S).: OLT-24-000203
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 927 Wellington Street Inc.
Subject: Minor Variance
Description: To permit a change to the legal non-conforming use of the existing commercial building.
Reference Number: D08-01-22/A-00227
Property Address: 927 Wellington Street West
Municipality/UT: Ottawa
OLT Case No.: OLT-24-000203
OLT Lead Case No.: OLT-24-000203
OLT Case Name: 927 Wellington Street Inc. v. Ottawa (City)
Heard: October 22, 2024
APPEARANCES:
| Parties | Counsel |
|---|---|
| 927 Wellington Street Inc. (“Applicant/Appellant”) | Crystal McConkey Michael Polowin |
| City of Ottawa (“City”) | Timothy Marc |
DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal convened a Hearing regarding an Appeal submitted by 927 Wellington Street Inc. (“Appellant”) resulting from the refusal by the Committee of Adjustment (“CoA”) of the City of Ottawa (“City”) on an Application for a Minor Variance, pursuant to s. 45 (12) of the Planning Act (“Act”).
2The Applicant owns the property at 927 Wellington Avenue (“Site/property”) and applied for permission to change the existing legally non-conforming use (“LNC”) from an automobile service station to retail of and leasing, rental, and sales of light construction equipment and contractor supply, repairs, and maintenance.
3Planning Staff for the City recommended the refusal of the Application on January 10, 2024, as did the CoA in their Decision dated January 26, 2024.
4The Applicant appealed the CoA Decision to the Tribunal.
ISSUES
5In order to determine whether the use is appropriate in this circumstance, the following must be considered:
i) Whether the legal non-conforming use has continued at the property.
ii) Whether the proposed use is appropriate and desirable for the area; and
iii) Whether the proposed use will result in any undue adverse impacts on the surrounding properties and neighbourhood.
SITE DETAILS AND BACKGROUND
6The Site is located in the Hintonburg-Mechanicsville neighbourhood, on the north-west corner of Wellington Street West and Bayview Station Road with an area of approximately 927 square metres, a frontage of approximately 31.2 metres along Wellington Street West, and a frontage of 41.8 metres along Bayview Station Road.
7The Site is in an area that contains a collection of non-conforming uses being primarily automobile service stations. 1 Spadina Avenue and 930 Wellington Avenue West contain non-conforming automobile service stations.
8The Tribunal was informed that 927 Wellington Avenue has been developed since at least 1928. In 1991, the Site was a commercial building, surface parking, and two gas pumps as an automobile service station (Pantuso Automotive) including three vehicle service bays. Since then, the fuel pumps have been removed.
9The Zoning By-law in effect in the early 1990s was the City of Ottawa Zoning By-law No. Z-2K (“By-law Z-2k”), which was adopted in March 1984. By-law Z-2K zoned the Site as Commercial 1, Exception 43 (C1c (2.0)[43]). A ‘public garage’ was a permitted use in the C1 zone in By-law Z-2K and Exception 43 did not contain any provisions that would remove ‘public garage’ as a permitted use. The ‘public garage’ was legally conforming to By-law Z-2K.
10On May 20, 1998, the City of Ottawa Zoning By-law No. 93-98 (“By-law 93-98”) replaced By-law Z-2K. The new zoning category for the Site was General Commercial Subzone 1, FSI maximum of 2.0 (CG1 F (2.0)). Bylaw 93-98 also changed the definition of an automobile repair shop from ‘public garage’ to ‘automobile service station’. The General Commercial Subzone 1 did not include an ‘automobile service station’ as a permitted use and the existing automobile repair shop became an LNC use.
11In 2008, the City of Ottawa Zoning By-law No. 2008-250 (“By-law 2008-250”) replaced By-law 93-98 and carried forward the previous zoning permissions which did not include ‘automobile service station’.
12A former tenant and operator of the automobile service station abandoned the property in July 2016 leaving the property owner listing the Site for lease the following month. A new lease was executed in February 2017.
13A Notice of Violation was issued to the owner (927 Wellington Street Inc.) on January 5, 2021, based on a registered complaint against the property. The existing business operating at 927 Wellington Street West is an equipment rental company that supplies equipment and reusable materials for construction and building maintenance projects in the urban area of the City of Ottawa. Its location in proximity to the central area of the city supports the construction industry for infill projects within the urban area of the City of Ottawa. As a result of the complaint, the owner retained Novatech to investigate the zoning and land use history of the property.
ORDER OF EVIDENCE AND WITNESSES
14It was agreed that the following Order of Evidence and Witnesses would govern the Hearing:
15For the Applicant:
Adam Thompson, Land Use Planner (Appellant);
McKenna Muldoon, (factual evidence), former Branch Manager, Cooper Equipment;
Jennifer Luong, Transportation Engineer;
John Licari, Applicant/Appellant, owner of 927 Wellington Inc. (Factual Evidence); and,
Murray Chown, Land Use Planner, NOVATECH.
16For the City:
- Margot Linker, Land Use Planner.
17All experts were duly qualified without objection.
AGREED STATEMENT OF FACTS
18Expert Witnesses Murray Chown, Adam Thompson, and Margot Linker have all agreed that under by-law Z2K the use of “public garage” was permitted and that the use continued and became a LNC use under By-law 93-98, which appears to have replaced the term “public garage” with “automobile service station”.
19The experts agree that the LNC use continued when the current By-law 2008-250 was enacted.
20It was agreed by Ms. Linker and Ms. Luong that there is no definition for “heavy equipment” in by-law 2008-250.
LEGISLATIVE TESTS
21An Appeal pursuant to s. 45 of the Act is a hearing de novo and the Appellant bears the onus of demonstrating that the requisite legislative tests have been met.
22S. 45(2)(a) of the Act permits the owner of a use, prohibited by the by-law but which legally existed on the day the by-law was passed, to apply for certain relief as LNC uses.
23LNC uses are eligible for two types of relief as described in ss. (i) and (ii) below:
45(2) Special
In addition to its powers under subsection (1), the committee, upon any such application,
(a) where any land, building or structure, on the day the by-law was passed, was lawfully used for a purpose prohibited by the by-law, may permit,
(i) the enlargement or extension of the building or structure, if the use that was made of the building or structure on the day the by-law was passed, or a use permitted under subclause (ii) continued until the date of the application to the committee, but no permission may be given to enlarge or extend the building or structure beyond the limits of the land owned and used in connection therewith on the day the by-law was passed, or
(ii) the use of such land, building or structure for a purpose that, in the opinion of the committee, is similar to the purpose for which it was used on the day the by-law was passed or is more compatible with the uses permitted by the by-law than the purpose for which it was used on the day the by-law was passed, if the use for a purpose prohibited by the by-law or another use for a purpose previously permitted by the committee continued until the date of the application to the committee; or
24The Tribunal must also have regard to the matters of Provincial Interest as set out in s. 2 of the Act, as well as for the decision of the CoA and the information considered while making its decision, as set out in s. 2.1(1) of the Act.
Applicant’s Position
25The evidence from Mr. Thompson, Ms. Muldoon, Ms. Luong, Mr. Licari, and Mr. Chown is that there is no essential difference between the service station use and the current use. Service took place before, in the service bays, and takes place today, in the same place.
26Mr. Thompson provided an overview of the area and noted the adjacent property at 935 Wellington Avenue was abandoned and directly across the street there was a parking lot filled with cars and storage units on another automotive service station property. He informed the Tribunal that when conducting his site visit Cooper Rentals was open for business. He noted no significant sounds, or odors being generated from the site. Taking the Tribunal to photographs of the site, he pointed to a paved area which acts as a buffer between the abutting building which houses an acupuncture clinic and residences.
27He stated the use permitted in the Lease (retail of and leasing, rental and sales of light construction equipment and contractor supply, repairs, and maintenance) reflects the actual activities taking place on the Property. He testified that those activities on the Property do not include activities related to Heavy Vehicle(s), as defined in the bylaw. Because Heavy Vehicles are not sold, rented, or serviced on the Property, he concluded, in terms of definitions in the current bylaw, that the Property is currently operated as an automobile service station and retail store. He further concluded that the definition of automobile service station, which permits the "sales of motor vehicles other than heavy vehicles in association with the automobile service station" covers the sale or leasing of the equipment. He opined that most definitions of sales would include short term rental as well.
28The Tribunal heard from McKenna Muldoon, former general manager of this Cooper Rentals location about their operations. It was Ms. Muldoon’s fact evidence that Cooper Rentals sells, leases, and services a variety of equipment used for material handling, building maintenance, and repair. The equipment that Cooper Rentals sells, leases, and services on site includes generators, light equipment, front end loaders, scissor lifts, bobcats, dehumidifiers, and air conditioners similar to what might be found at an automobile service station, many of these tools and equipment have motors similar to vehicles motors, which require similar types of servicing, such as oil changes. Servicing is done in the existing service bays. Ms. McKenna stated that any larger vehicle on-site such as flatbeds and trucks are used to transport items to and from job sites and are not sold, leased, or serviced at the property.
29It was Ms. Luong’s opinion that the items described by Ms. Muldoon as being sold, leased, and repaired at the property did not meet the definition of Heavy Equipment and Vehicle sales as outlined below:
Heavy vehicle means a commercial motor vehicle as defined in the Highway Traffic Act, as amended or re-enacted from time to time, and includes a bus and any other passenger motor vehicle with capacity for more than ten passengers, fire apparatus, road-building machine or farm vehicle as defined in that Act, and all other types of construction equipment, but excludes a motor vehicle.
30She stated that nothing of sufficient weight is being sold or rented on site that would be considered, according to the Highway Traffic Act, O. Reg. 419/05, a commercial motor vehicle.
"commercial motor vehicle" means, unless excluded by subsection (2), (a) a commercial motor vehicle, as defined in subsection 1(1) of the Act, a mobile equipment vehicle and a vehicle built on a truck chassis, if the vehicle has a gross weight or registered gross weight of more than 4,500 kilograms, (b) a bus, regardless of weight, and (c) a tow truck, as defined in section 1 of the Towing and Storage Safety and Enforcement Act, 2021, regardless of weight.
31Mr. Licari provided factual evidence stating that the company did two things after Pantuso Automotive vacated the site – they brought an action against Pantuso Automotive for breaking the lease and they listed the property for lease.
32He noted that he entered into discussions with Cooper Rentals in December 2016 and officially signed a letter of intent to lease the property to Cooper Rentals in January 2017. The Parties entered into a lease agreement in February 2017 and Cooper Rentals began leasing the property in May 2017.
33Mr. Chown in cross-examination, articulated that the Appellant was relying on s.45(2)(i) and not s. 45(2)(ii) of the Act.
34Mr. Chown opined that Cooper Rentals’ use of the property is similar to a “public garage” and “automobile service station” which resulted in the LNC use continuing without interruption.
35It was his testimony that intention is paramount in determining whether non-conforming rights survive. He testified that since Pantuso Automotive left without notice, (which resulted in an event outside of the owner’s control) there was never an intention to choose to change the use of the property resulting in no loss of the LNC. He stated that the owner, 927 Wellington Street Inc. did not intend for the site to be vacant, as evidenced by the action brought against Pantuso Automotive, and took steps to have the property listed for lease within a month.
36He further emphasized that a gap in tenancy is not sufficient to terminate a LNC right. Property owners have a right not only to continue a legally nonconforming use, but also to reasonable flexibility in that use, including evolution, intensification, or expansion so long as the change does not result in undue adverse impacts.
37The Tribunal heard that Cooper Rental’s use of the property is simply the evolution of a LNC use in the meaning of the Supreme Court of Canada.
City’s Position
38Ms. Linker submitted that staff opposed the Application because the Applicant is not eligible to change the use without providing evidence that the automobile service station effectively continued on the subject land until the date the Application was filed. The City suggested that the Cooper Rental use ended the acquired right therefore ineligible for permission under subclause 45(2) of the Act.
39Ms. Linker testified that based on her research on Cooper Rentals website, the day-to-day business of the Cooper Rentals operation relies on the use of heavy vehicles. On the two site visits in May 2024, she observed the presence of flatbed trucks and equipment on site, such as generators, dehumidifiers, scissor lifts, and air conditioners. She also noted the absence of heavy trucks for the automobile service use across the street. It was her opinion that the use on site today and since 2017, is not the use that was in place prior to 2017.
40She advised the Tribunal that in the past, pedestrians had access to walk across the property to the residential areas on their way from the Bayview LRT Station into Hintonburg/Mechanicsville. The access has now been eliminated and a large metal fence surrounds the property with warning signs restricting access without proper safety wear. This she eluded, indicated more of an industrial use of the property and along with it imposing a negative impact on the public realm.
41Ms. Linker testified that the use is not consistent with the existing residential area that has remained stable even with ongoing new development and has maintained its low scale, conventional residential neighbourhood design.
42Finally, she emphasized that the Act is explicit in requiring that the use for a purpose prohibited by the By-law or another use for a purpose previously permitted by the committee continued until the date of the Application to the committee.
43During cross-examination, she admitted that she was unaware of the abandoned property abutting one side of the Site prompting questions on how Cooper Rentals use is impacting an abandoned building. This she testified was not taken into consideration.
44When questioned on whether there is little difference in the use of 927 Wellington Ave. in comparison to the other service stations use of flat-beds and trucks to bring broken-down vehicles to their sites, she admitted that flat-beds and trucks were used in both cases.
45She stated she did not speak to or visit the mixed-use building housing residential and an acupuncture clinic to understand any negative impacts.
46When asked whether she heard sounds on her visits she replied that backup alerts and generator humming was evident but admitted that it did not exceed the City Noise By-law. As for the fencing having an impact, in cross-examination, she concluded that it did not enhance the public realm but did serve as a safety feature.
ANALYSIS AND FINDINGS
Whether the legal non-conforming use has continued at the property
47The Tribunal is satisfied that Cooper Tools moved onto the site and utilizes the property, building, and service bays in a manner that is consistent with the definition of “automobile service station” and that the property’s legal non-conforming use was not lost when Pantuso Automotive vacated the premises as the property owner intended to continue the use.
48The Tribunal maintains that the Ontario Municipal Board in Asgharzadeh, Re, 2010 CarswellOnt 4047 (OMB )(“Asgharzadeh”), recognized that Saint-Romuald establishes “the litmus test for assessing the continued use of an existing LNC use.”
49As recognized by the decision of the Supreme Court of Canada in Saint-Romuald (Ville) v. Olivier 2001, SCC 57, 2001 Carswell Que 2013 (“Saint-Romuald”), which provides that nonconforming rights may evolve and expand without losing their protection and that any evaluation must balance the interest of the landowner along with the public interest.
50The Supreme Court in Saint-Romuald confirmed that landowners have a right to the “normal evolution” of nonconforming rights, including the right to exercise that use more intensively, without vitiating the legal protection of those rights. In evaluating an Application for the evolution of nonconforming rights, the Court found that its objective is to maintain a fair balance between the individual landowner’s interest and the community’s interest. The law favours the evolution of acquired rights, and this property as seen, is precisely that.
51The Courts have also determined a right to evolution to non-conforming rights, in this circumstance that would include the period of time in which the property sat idle while the owner was advertising for a new lease provided it does not result in undue adverse impacts on the surrounding area and further that, in assessing such impacts, it is only the current use which is to be considered.
52The Tribunal therefore confirms that the legally non-conforming use has continued and has evolved to include the sale, leasing, and servicing of light construction and maintenance equipment used for a variety of purposes.
53The evidence that has been put before the Tribunal is that Cooper does not lease, rent, or service Heavy Equipment and Vehicles. The City did not present any evidence that simply having heavy vehicles or equipment at or near a property was sufficient to be considered a violation of the “automobile service station”.
Whether the proposed use is appropriate and desirable for the area
54The Tribunal finds that based on the evidence, the “retail of and leasing, rental and sales of light construction equipment and contractor supply, repairs and maintenance” is an appropriate use for the lands as the Tribunal heard no substantive evidence that the public interest is compromised with continuing the LNC use.
Whether the proposed use will result in any undue adverse impacts on the surrounding properties and neighbourhood.
55Adverse impacts are only undue if they are established by objective evidence and are sufficient to override the acquired rights. The evidence before the Tribunal demonstrated that the Application will not have any undue adverse impacts on the neighbourhood that can be demonstrated.
56The Tribunal finds that the City adduced no evidence on the specific impact of the current use and there was no evidence before the Tribunal that the current use will create undue adverse impacts on the neighbours or the City as a whole.
57The only evidence produced by Ms. Linker in her testimony was drawn on the conclusions of two visits which resulted in viewing heavy vehicles (trucks with flatbeds) near the property. This is insufficient to be considered undue adverse impacts on the surrounding properties and neighbourhood.
58The Tribunal is satisfied with the evidence provided by Mr. Thompson and Ms. Muldoon that sounds and odours that might occur on the property are consistent with the sounds and odours that are observed at the nearby automobile service stations.
Conclusion
59Following consideration of the oral evidence, the documentary record, and the submissions of counsel, the Tribunal finds the current nonconforming use is appropriately placed and aligns with, the existing context and planned function for this particular neighbourhood.
ORDER
THE TRIBUNAL ORDERS THAT the appeal is allowed, and the continuation of current non-conforming use is authorized under section 45(2) of the Planning Act.
"D. Chipman”
D. CHIPMAN
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.