1299148 Ontario Inc. c/o Jdass Developments v Mississauga (City), 2024 CanLII 40891

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 29, 2024

CASE NO(S).: OLT-24-000057

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

Applicant/Appellant: 1299148 Ontario Inc. c/o Jdass Developments

Subject: Minor Variance

Description: To permit a temporary motor vehicle sales, lease, and/or rental facility

Reference Number: A31.23

Property Address: 7114 Hurontario Street

Municipality/UT: Mississauga/Peel

OLT Case No.: OLT-24-000057

OLT Lead Case No.: OLT-24-000057

OLT Case Name: 1299148 Ontario Inc. c/o Jdass Developments v Mississauga (City)

Heard: April 15, 2024 by video hearing (“VH”)

APPEARANCES:

Parties

Counsel

1299148 Ontario Inc.

Meaghan McDermid

City of Mississauga

(Did not appear)

DECISION DELIVERED BY A. MASON AND ORDER OF THE TRIBUNAL

Link to Order

BACKGROUND

11299148 Ontario Inc. (“Appellant”) applied to the City of Mississauga (“City”) Committee of Adjustment (“CoA”) for minor variances from Zoning By-Law 0225-2007 (“ZBL”) to allow a temporary change of use for five years for the property located at 7114 Hurontario Street (“Subject Property”) to permit a “Motor Vehicle Sales, Leasing and/or Rental Facility” and three associated variances to facilitate the use of the Subject Property for that purpose (“Variances”).

2The Subject Property is a vacant gravel lot with no structures or buildings and is located on the west side of Hurontario Street, north of Derry Road West/East. The surrounding area is currently in transition with vacant fields, truck staging areas and low-density commercial uses. To the south and adjacent to the Subject Property is a construction staging area for the new Light Rail Transit (“LRT”) line and Derry Station, with trucks and construction material on a gravel covered site. LRT construction also occupies the right of way in front of the Subject Property on Hurontario Street. Directly to the west of the Subject Property is the parking lot for the Mississauga Convention Centre. Across Hurontario Street to the east are low-density commercial uses with surrounding commercial parking and storage.

3The Subject Property is designated “Office” in the Mississauga Official Plan (“MOP”) and Corporate Centre Character Area under Schedule 9 of the MOP. The Subject Property is zoned as “O2 – Major Office” in the ZBL (“Office Zone”), which permits the uses of Medical Office, Office, Broadcasting Facility, Science and Technology Facility, Banquet Hall/Conference Centre/Convention Centre, Overnight Accommodation and University/College.

VARIANCES REQUESTED and decision of the COA

4The Appellant’s proposed Variances are necessary to permit the Subject Property to be used for a “Motor Vehicle Sales, Leasing and/or Rental Facility – Commercial Motor Vehicles” (“Proposed Use”), and are as follows:

1. A variance to the use of the Subject Property to permit the Proposed Use that is not allowed under the Office Zone on the property.
2. A rear yard set back of 0 metres (“m”) on the west property line adjacent to the Metro Toronto Convention Centre parking lot, whereas the Office Zone requires a rear yard setback of 4.5 m;
3. To permit there to be no building on the Subject Property, whereas the ZBL requires uses in the Office Zone to be wholly within a building, structure, or part thereof; and
4. A parking area comprised of gravel, whereas the Office Zone requires all parking areas, driveways and loading areas to be comprised of a stable surface, such as asphalt, concrete, pervious materials, or other hard surfaced materials.

5The CoA considered the Appellant’s proposal on March 30, 2023 and May 3, 2023, where a decision was deferred to evaluate additional materials being prepared by the Appellant and ongoing discussions with City staff. The CoA considered the proposal again on November 30, 2023, and a staff report (“Staff Report”) was prepared that recommended the Variances be refused on the grounds that the MOP set out policies to discourage the Proposed Use along this stretch of Hurontario Street and that the three other Variances were only required to facilitate the Proposed Use. The CoA followed the recommendation in the Staff Report and refused the Variances. The Appellant appealed that decision of the CoA to the Tribunal on December 14, 2023.

Appellant’s position and Section 45(1) of the Planning Act

6When considering a proposed variance, the Tribunal must consider each of the four elements set out in s. 45(1) of the Planning Act (“Act”), to determine if each requested variance satisfies the four tests below:

1. Maintains the general intent and purpose of the official plan;
2. Maintains the general intent and purpose of the zoning by-law;
3. Is desirable for the appropriate development or use of the land; and
4. Is minor in nature.

7The proposed Variances must also be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020, as amended (“Growth Plan”). When making its decision, the Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Act, and it must have regard to the decision of the CoA and the information considered by it, as required under s. 2.1(1) of the Act, though the Tribunal is not bound by it.

8Counsel for the Appellant presented Graig Uens, a Registered Professional Planner, to provide evidence with respect to the proposal. The Tribunal qualified him to provide land use planning opinion evidence on the matter at hand. The City did not attend the Hearing and informed the Tribunal in advance that it took no position on the matter. The Tribunal relied on the Staff Report and other correspondence from the City that were provided in the Appellant’s Document Book and through the municipal record to understand the City’s perspective.

9Mr. Uens provided evidence that the Appellant has been using the Subject Property for the Proposed Use and is storing 15-20 commercial semi-trucks and freight trucks for potential purchasers to view while conducting sales transactions at another location. As a result, the Appellant received an Order to Comply in November 2022 from the City for contravention of the ZBL. At that time, the Appellant entered discussions with the City to resolve the infraction and bring the Proposed Use into compliance with City policies for use of the Subject Property. City staff directed that an application for minor variance under s. 45 of the Act was the preferred route to pursue the Proposed Use.

10Mr. Uens testified that the Appellant submitted a site plan control application in February 2023 to the City for a proposed eight-storey hotel on the Subject Property (“Hotel Application”). Mr. Uens explained that the Variances are intended to be temporary and for a limited period of five years while the Hotel Application moves forward through the approval process with the City. During the Hearing, Counsel for the Appellant provided a revised request that the Tribunal grant the Variances for a period of three years to reflect the time the Appellant believes is remaining until completion of the Hotel Application approvals.

11Mr. Uens provided written and oral testimony to the Tribunal that each of the Variances satisfied the tests under s. 45(1), are consistent with the PPS, conform to the Growth Plan, and have regard for matters of provincial interest as set out below:

Variance 1 – Permitted Use

12Mr. Uens testified that the Proposed Use is consistent with the general intent of the MOP policies that permit alternative land uses to support comprehensive redevelopment and provide time for lands to redevelop in accordance with the planning vision for the area. Further, Mr. Uens testified that the Proposed Use will ensure the Subject Property remains active and maintained during the time the Hotel Application is being processed by the City. Mr. Uens also provided evidence that permitted uses in the Office Zone reasonably require accessory parking and loading/storage areas that are analogous to the Proposed Use. For these reasons, Mr. Uens opined that the Proposed Use is consistent with the intent and purpose of the MOP when applied for a temporary period of time.

13Mr. Uens provided evidence that the purpose of delineating specific uses in the ZBL is to ensure compatibility of uses in an area from the perspective of impact, frequency of traffic and deliveries, and to group complementary land uses in the same geographic area. Mr. Uens also provided visual evidence of the current state of the surrounding area, demonstrating that there are significant commercial truck storage and construction staging areas, as well as the active LRT construction on Hurontario Street directly in front of the Subject Property. Mr. Uens testified that the accessory vehicle parking and commercial vehicle loading areas allowed in the Office Zone and the ongoing construction staging areas are similar from a traffic and visual perspective to the Proposed Use and it is not in conflict with the ZBL.

14Mr. Uens opined that the Proposed Use is minor in nature and will not result in adverse impacts since it is for a limited period of time. Mr. Uens also opined that the Proposed Use is appropriate and desirable since the Subject Property will remain active and maintained during the Hotel Application process.

Variance 2 – Rear Yard Setback

15Mr. Uens opined that rear year setbacks are typically required to ensure space between structures, to limit overlook and privacy issues, enable access to sites, and a buffer between uses. Mr. Uens provided evidence that the parking field for the Mississauga Convention Centre, also owned by the Appellant, is the adjacent condition to the west, and its parking field abuts the Subject Property without setback from the property line.

16Mr. Uens opined that the proposed Variance to reduce the rear yard setback from the required 4.5 m to 0 m was not incompatible with the adjacent parking use, particularly since it is requested for only three years, and is consistent with the general intent and purpose of the MOP to provide distance between conflicting uses. Since the parking and the Proposed Use are effectively the same, Mr. Uens opined that the rear yard setback Variance maintains the general purpose and intent of the ZBL. Mr. Uens also opined that since there is no building proposed on the Subject Property for the temporary Proposed Use, there is no conflict between structures and that it is a minor change, without impact to adjacent uses.

Variance 3 – Use Within a Building

17The ZBL, at s. 5.1.1.1, requires that a use in the Office Zone must be wholly located within a building, structure or part thereof, but a parking area is not required to be within a building. Mr. Uens informed the Tribunal that the Appellant intends to store commercial vehicles that are for sale on the site, and not transact operations from a building on the Subject Property. As a result, Mr. Uens opined that since there are not structures currently on the Subject Property, and there are none planned for the Proposed Use, it would be counter to the MOP’s general sustainability objectives in Chapter 6 to require a building to be constructed to satisfy this provision of the ZBL, particularly for a temporary period of time. Mr. Uens opined that the requested variance to not locate any part of the Proposed Use within a new structure is, therefore, consistent with the overall general and intent of the MOP and the ZBL. Mr. Uens also opined that constructing a building in order to comply with s. 5.1.1.1 of the ZBL would be more wasteful and impactful on adjacent landowners than not doing so.

Variance 4 – Paving Material

18Mr. Uens testified that the ZBL, at s. 3.1.1.7.1, requires that all parking areas, driveways and loading areas be comprised of a stable surface, such as asphalt, concrete, pervious materials, or other hard-surfaced materials. The Appellant proposes that the Subject Property be surfaced with gravel as opposed to asphalt. Mr. Uens opined that gravel is not permitted for parking areas in the Office Zone since it does not facilitate marked parking stalls, is not as durable as a hard surface, and can lead to mud and debris being tracked onto municipal streets. Mr. Uens explained that the marking of parking stalls is not necessary for the Proposed Use and that durability is not a concern due to the temporary nature of the requested Variances.

19Mud tracking off the Subject Property was noted as a concern in the Staff Report. Mr. Uens explained that the Appellant presented a proposed site layout (“Site Layout”) to City staff that provided for a narrower driveway entrance to the Subject Property, an asphalt driveway apron, and a mud mat in accordance with the City’s standard construction detail. The Site Layout also indicates the Appellant will adhere to other requirements, such as fencing the Subject Property and providing a sod boulevard or soft landscape condition around the site. The Staff Report comments from the Transportation and Works department state that, if the Variances are granted, a paved driveway entrance and a gravel mud mat in accordance with the Site Layout should be required by the Appellant.

20Mr. Uens opined to the Tribunal that a gravel surface, along with a paved driveway entrance and gravel mud-mat to address the City staff concerns about mud, would provide a durable, permeable surface to assist in managing on-site stormwater until such time as the Subject Property is developed with a use that implements the City’s long-term policy objectives, as exemplified by the Hotel Application. Further, Mr. Uens opined that the proposed Site Layout is consistent with the general intent and purpose of the MOP and the ZBL by meeting objectives of minimizing waste, providing a structurally stable surface appropriate to the temporary Proposed Use, and will not be in conflict with the adjacent parking and construction staging uses.

PPS and Growth Plan

21Mr. Uens testified that the Variances are consistent with the PPS since they advance policy directives, such as promoting cost effect and efficient land use patters (Policy 1.1.1 (a) (e)), and providing economic development and investment (Policy 1.1.3.2) by enabling the Appellant to temporarily use the Subject Property for the Proposed Use during the Hotel Application planning process. Mr. Uens also opined that the Variances conform to the Growth Plan by making more efficient use of existing employment areas and vacant and underutilized employment lands on a temporary basis (Policy 2.2.5).

ANALYSIS AND FINDINGS

22In considering the written and oral opinion evidence presented by Mr. Uens, the Tribunal was struck by the visual evidence showing the current state of the surrounding properties and the significant LRT infrastructure construction on Hurontario Street. Photographs of the adjacent property to the south being used as a construction staging ground for the LRT construction lends weight to Mr. Uens opinion that the requested Variances, if granted for a temporary period of time, do not pose a hardship or inconvenience to adjacent landowners, and meet the tests under s. 45(1) of the Act. The City’s long term planning vision, as set out in the MOP, is in the process of being realized though investment in infrastructure, but that vision will continue to take some years to achieve. For the near future, this Subject Property is surrounded by infrastructure construction, staging areas for the LRT construction, and commercial vehicle parking and storage to the extent that the Variances do not strike the Tribunal as offensive or out of character for the area, if granted on a temporary basis.

23The Tribunal accepts Mr. Uens evidence that the Variances each meet the required tests in s. 45(1) of the Act, but only temporarily, and in the context of the current state of the surrounding area. The Tribunal is of the opinion that the requested Variances are minor in nature and represent a desirable use of the Subject Property in the current moment in time while the surrounding area is under active transition to achieve the City’s long term planning goals. Nevertheless, the Tribunal took into consideration the context that the Appellant has been operating the Subject Property in contravention of the ZBL and under an Order to Comply since late 2022. While the Tribunal is content that the Appellant is actively pursuing the Hotel Application, the request to grant the Variances for a further three years, combined with the almost two years that has already elapsed, is extensive and pushes the definition of “temporary” in this instance. As such, the Tribunal grants the Variances for a period of two years, subject to conditions respecting implementation of the Site Layout, as set out in detail below.

ORDER

24THE TRIBUNAL ORDERS that the appeal is allowed and the Variances to Zoning By-law No 0225-2007 of the City of Mississauga are authorized subject to the conditions set out below.

a. The Variances are authorized for a period of two (2) years from the date of this Decision;

b. The use of the site for “Motor Vehicle Sales, Leasing and/or Rental Facility – Commercial Motor Vehicles” shall be substantially in accordance with the Site Layout, attached hereto as Attachment 1;

c. The portion of the site entrance on the municipal boulevard shall be paved with asphalt, in accordance with any applicable City standards and requirements;

d. A gravel mud-mat shall be installed at the entrance to the site, as shown on the site plan, in accordance with the City’s Construction Entrance Detail Standard #2970.010;

e. The owner shall obtain an Access Modification Permit from the City of Mississauga which reflects the entrance modifications and details shown on the site plan, to the satisfaction of the City;

f. The use of the site as authorized by the Variances shall be subject to any other permits or approvals as may be required by the City.

“a. Mason”

A. mASON

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.

ATTACHMENT 1