Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 10, 2024 CASE NO(S).: OLT-24-000053

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

Applicant and Appellant: Derry Green Lands Limited Partnership Subject: Minor Variance Description: To permit a reduced minimum office component Reference Number: A23-112/M Property Address: 905 & 955 James Snow Parkway Municipality/UT: Milton/Halton OLT Case No.: OLT-24-000053 OLT Lead Case No.: OLT-24-000053 OLT Case Name: Derry Green Lands Limited Partnership v. Milton (Town)

Heard: April 16, 2024 by Video Hearing

APPEARANCES:

Parties Derry Green Lands Limited Partnership

Counsel Andrew Jeanrie Jordan Oliva (Student-at-Law)

Parties Town of Milton

Counsel Konstantine Stavrakos Maria Guirguis (Student-at-Law)

DECISION delivered BY STEVEN T. MASTORAS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is a Hearing relating to an Appeal pursuant to s. 45(12) of the Planning Act (“Act”) from a decision by the Committee of Adjustment (“COA”) in the Town of Milton (“Town”) refusing to permit a Minor Variance Application (“Variance”) seeking a reduced minimum office component. The Appeal has been filed by Derry Green Lands Limited Partnership (“Applicant” / “Appellant”) regarding the properties municipally known as 905 & 955 James Snow Parkway Milton (“Subject Site”).

2The Subject Site was previously part of a larger application process on the lands identified as 6390-6400 and 6548 Fifth Line (“Subdivision Lands”), which included an Official Plan Amendment (“OPA”), Zoning By-law Amendment (“ZBA”), Draft Plan of Subdivision (“DPS”), 6 Site Plan Applications (“SPAs”), minor variances and a consent.

THE VARIANCE

3The precise Variance under this Appeal requests the following:

To permit a minimum Office component of five percent (5%) of Gross Floor Area (“GFA”) for an Industrial Use, Warehouse/Distribution Centre and Wholesale Operation where the total building GFA is greater than 6,967 square metres (“m²”), whereas the current Town Zoning By-law No. 016-2014 (“ZBL”) requires a minimum Office component of ten (10) percent (“%”) of the GFA (or 696 m² ) designated as Office component, whichever is greater.

4Notice of this Hearing was given by the Tribunal on February 12, 2024, and there were no other requests for Party or Participant status.

5The following were marked as Exhibits for the purposes of the Hearing:

• Exhibit 1 – Final Document Book (“FDB”)
• Exhibit 2 – Applicant Photo Book
• Exhibit 3 – Witness Statement of Natalie Stopar
• Exhibit 4 – Witness Statement of Gerry Tchisler
• Exhibit 5 – Derry Green Corporate Business Park Secondary Plan (“DGSP”) – Urban Design Guidelines
• Exhibit 6 – Site Plan Overlay
• Exhibit 7 – Zoning Map

SITE CHARACTERISTICS

6The Subject Site is located on the east side of James Snow Parkway, south of Derry Road, and forms part of the James Snow Business Park (“JSBP”) comprised of eleven prestige development blocks, consisting of a 3.3 million-square-foot industrial development that is set to feature 14 buildings across 180 acres, and is designated as an Urban and Employment Area. The development is substantially complete relating to the first of two primary phases, and the two buildings that are the subject of the Variance, are within this Phase 1 component, registered through a Draft Plan of Subdivision (“DPS”) in April 2023.

7The Variance specifically applies to buildings E1 and E2, which are directly adjacent to each other with an identical GFA of 7022.2 square metres (“m²”), and frontage along James Snow Parkway, on Block 9 in Phase 1. The approved Site Plan Application (“SPA”) SP-16-21, consists of a combined 208 parking spaces, including 12 barrier-free spaces, 13 EV ready spaces, and bicycle ready spaces, with 23 designated loading bays at each building, respectively.

LEGISLATIVE FRAMEWORK

8This matter is a Hearing de novo, pursuant to s. 45(1) of the Planning Act, which establishes the ‘Four Tests’. In other words, to authorize the Variance, the Tribunal, in an Appeal, must be satisfied that the Variance:

A. Maintains the general intent and purpose of the Town Official Plan (“TOP”); B. Maintains the general intent and purpose of the Town ZBL; C. Is desirable for the appropriate development or use of the land, building or structure; and, D. Is minor in nature.

9In addition, s. 3(5) of the Act requires the Tribunal’s Decision to be: consistent with the Provincial Policy Statement 2020 (“PPS”); conforms with a Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”); and conform with the Region of Halton Official Plan (“ROP”).

10The Tribunal must also have regard to the matters of Provincial interest set out in s. 2 of the Act, as well as the decision of the COA and the information considered in the course of making its Decision, as set out in s. 2.1(1) of the Act.

HEARING EVIDENCE AND SUBMISSIONS

11The Tribunal qualified two witnesses for the purposes of the Hearing following a careful review of their respective Affidavits and Acknowledgements of Experts’ Duty as follows:

• Gerry Tchisler appeared as a Registered Professional Planner from MacNaughton Hermsen Britton Clarkson Planning Limited (“MHBC”) and was qualified to provide opinion evidence in areas of land use planning on behalf of the Applicant. MHBC has had direct carriage of the Application dating back to 2017, and more recently related to this Variance Appeal.
• Natalie Stopar also appeared as a Senior Planner, Development Review (Acting), and was qualified to provide opinion evidence in areas of land use planning on behalf of the Town.

LAND USE PLANNING EVIDENCE

Section 2 of the Act, the PPS, GP and ROP (Uncontested)

12At the outset of the Hearing, Counsel for both Parties confirmed that both land use planning witnesses are aligned with their opinions that: the Variance as proposed, has appropriate regard for s. 2 of the Act; is consistent with the PPS; conforms with the GP; and conforms with the ROP.

13With this alignment and concurrence from the Parties, the Tribunal proceeded to turn its attention to the statutory ‘Four Tests’ below to determine if the Variance:

A. Maintains the General Intent and Purpose of the TOP

14Mr. Tchisler commenced his testimony with some background information regarding the Subject Site, within the context of the history of the Subdivision Lands and opined at the outset that this Variance must be considered within the context of its general intent and purpose, and not one of strict conformity with the DGSP. He asserted that buildings E1 and E2 represent a high-quality design, with three significant glazed office nodes along the façade of each building, that would not be impacted by this Variance request in its recently completed built form.

15Mr. Tchisler also outlined the relevance of the DGSP’s lack of reference to a definition of the term “significant office component” and asserted that the DGSP should allow for greater market condition-driven flexibility in the Subject Site’s office GFA. He opined that with a reduced baseline of 5%, this would also allow for an upward increase in the actual office component GFA based on the future needs of a prospective lessee.

16Ms. Stopar testified that the Business Park Area policies found in s. 3.8 of the TOP states that the main permitted uses shall be light industrial and office uses. Additional uses such as accessory service and retail uses, research and development uses, cannabis production and processing facilities, and restaurants are also permitted, subject to criteria of the Official Plan.

17Ms. Stopar asserted that s. C.9.5.1.2 of the DGSP (FDB, pg.125) also clearly states that in the Street Oriented Site overlay designation, the only permitted uses shall be:

a) Offices; b) Light industrial uses which include a significant office component; c) Research and development uses excluding uses which produce biomedical waste; d) Restaurants and service commercial uses where such uses form part of a light industrial, or office or mixed use building, including an industrial mall; e) Commercial recreation uses and public indoor recreation facilities; and, f) Parks.

18Ms. Stopar further stated that the reduction in office space in both buildings would total 702.22 m² in GFA, which in her opinion would leave a component of office use that is insignificant, and would not “conform” with the TOP.

19Mr. Tchisler opined to the contrary, in that the purpose of this reduction more appropriately meets the general intent and purpose of the TOP, as opposed to referencing “conformity” with the TOP. He further referenced that permitted uses: e) above states “commercial recreation uses and public indoor recreation facilities,” which may in fact require even less demand for an office component, and supports his assertion that leaseholder market conditions do have an impact. He believes this should ultimately be contemplated with the viability/versatility of E1 and E2 built forms. He further stated that despite the fact that the approvals to the Subject Site occurred as recently as 2021, the impact of market challenges resulting from COVID-19 should have been considered more seriously in the COA’s analysis.

20Finally, Mr. Tchisler also emphasized that the Variance meets the following objectives in the DGSP:

C.9.3.2 OBJECTIVES C.9.3.2.1 To create a Corporate Business Park that capitalizes on Milton’s competitive advantage in the Greater Toronto Area market and its location adjacent to the Highway 401 corridor by establishing a development framework within the Derry Green Corporate Business Park Secondary Plan (“DGSP”) that: a) streamlines approvals; b) is flexible in dealing with various types and forms of land uses and buildings while directing prestige uses to key locations; and, c) promotes a program of urban design that is attractive and financially responsible.

B. Maintains the General Intent and Purpose of the Town ZBL

21Mr. Tchisler stated that the Variance maintains the general intent and purpose test of the ZBL, and referenced his witness statement (Exhibit 4, paras. 35-36, and 91-92) which shows that the current Site-Specific ZBL, as approved in June 2021 appropriately modified the Town ZBL after consultations between the Town and the Applicant. However, despite best efforts by the Applicant that have proven unsuccessful primarily caused by the current office provision exceeding prospective tenant requirements, and compounded by ongoing serious challenges in office market conditions, both buildings remain vacant.

22Mr. Tchisler referenced a number of neighbouring competitive sites that have seen variances reduce office component requirements in recent months which have exacerbated the Applicant’s present-day challenges. He suggested that neighbouring sites have benefitted from this apparent competitive advantage, each with differing applicable site overlay policies, and characteristics (Exhibit 4, paras. 41-45).

23Ms. Stopar opined that the intent of the ZBL is to ensure that a significant office component exists within light industrial uses, and that an assortment of overlay designations apply on different sites. She insisted that specific to this Subject Site, “the minimum of 10% office space should be required for these buildings to be consistent with the policies of the TOP” (Exhibit 3, para. 32).

24Ms. Stopar asserted that no economic analysis used as evidence by the Applicant in this regard has been provided to the Town, and that notwithstanding these claims, and the Town’s understanding regarding this issue, the more appropriate avenue for the Applicant is the OPA/ZBA application process. She, therefore, rejects the position that the Variance maintains the general intent and purpose of the ZBL.

C. Is Desirable for the Appropriate Development or Use of the Land, Building or Structure

25Mr. Tchisler opined that allowing for added flexibility in the office element of the buildings, will meet any potential changes required by light industrial users, ensuring the long-term success of the JSBP, ultimately achieving employment targets. He also stated that any potential end user could utilize additional office space because of the flexibility provided by the completed built-form. He therefore concluded that the Variance is desirable for the appropriate development or use of the land.

26Ms. Stopar asserted that based on the Applicant’s Site Plan submission with the 5% reduced office component, it will represent a significant portion of the office component, and will not resultingly implement the objectives of the TOP. She therefore concluded that the Variance is not desirable for the appropriate development of the land and building.

D. Is Minor in Nature

27Mr. Tchisler opined that the Variance will not result in any adverse impacts to the Subject Site or the surrounding area. The reduction will also allow future leaseholders to use the interior GFA for added light industrial capability, which is essential to the building’s principal use, achieving its economic development potential.

28Additionally, the Variance will establish this as the minimum requirement, which would allow the leaseholder to modify the use up to 10% if deemed necessary without triggering a ZBA, and emphasized that built-form design will not change from its current form.

29Finally, Mr. Tchisler asserted that while a 5% reduction may be an agreed upon significant office component reduction, it is equally appropriate to consider that the Variance meets all of the statutory tests as set out in the Act, including that it is minor in nature.

30Ms. Stopar, remained unconvinced, and concluded that the reduction cutting the office component in half, represented a 702.22 m² total across both buildings which have a total GFA of 14,044 m² of space, resulting in a reduction which is not minor in nature, and insisted that an OPA/ZBA application is a more appropriate avenue to attempt to achieve such a reduction.

CLOSING SUBMISSIONS

31Counsel for the Town submitted that “the Appellant is asking this Tribunal to find two contradictory things are true: that a 5% minimum office floor area is “significant” and that a reduction in the minimum office area by the same 5% is minor. There is no getting around it: for the Tribunal to find for the appellant it must find both those things are true, that the variance is both significant and minor. It makes no sense.” He further suggests that although economic conditions have change, “we can’t make policy changes willy nilly.” The Town, therefore, is firmly of the view that an OPA/ZBA application would be a more appropriate method to achieve the 5% office component reduction.

32Counsel for the Applicant submitted that there are distinct differences between the terms “significant” and “minor” but that both can be relevant to this matter, as acknowledged by both witnesses relating to 5% office component as being “significant.” Furthermore, he emphasized that Ms. Stopar acknowledged her repeated reference to the use of “conformity” and “consistency” with the TOP in her witness statement, as opposed to the more appropriate and required statutory test that the Variance must “maintain the general intent and purpose” of the TOP.

33Referencing Mr. Tchisler’s witness statement, Counsel for the Applicant also submitted the following in closing that:

…perhaps best set out in the PPS policies 1.3.1 and 1.7.1, which, among other things, emphasize the need to maintain a range of sites “for employment uses” that “take into account the needs of existing and future businesses” (1.3.1(b)), and 1.3.1(c). Clearly, this is a policy around ensuring that planning accounts for changes in the market environment – changes that both witnesses, and our own experience of the world since COVID, acknowledge have occurred.

34Counsel for the Applicant concluded by reiterating that a Variance application is an appropriate avenue seeking relief by the Applicant, and that an OPA/ZBA application process would be unnecessarily more costly and lengthier.

ANALYSIS AND FINDINGS

35Firstly, it should be noted by the Tribunal that the investment and completion of the Phase 1 component of the Subdivision Lands is very impressive. It is clearly a significant undertaking by the Applicant and appears to have achieved the general objectives of this component of the redevelopment with a very impressive urban design, and built-form, worthy of a “prestige” business park reference for its marketing purposes.

36The Tribunal has initially determined that with the alignment and concurrence of both land use planning witnesses above (para. 12), the Variance as proposed: has appropriate regard for s. 2 of the Act; is consistent with the PPS; conforms with the GP; and conforms with the ROP.

37Furthermore, regarding the ‘Four Tests,’ and following careful consideration and review of the evidence, the Tribunal finds that despite best efforts from the Town, it is persuaded by the evidence of the Applicant in this matter.

38The Applicant’s position that economic conditions should be given appropriate weight in light of current office leasing competitiveness, as an economic reality, is shared by the Tribunal. Additionally, it is important to acknowledge that evidence outlining how the existing DGSP defined permitted uses, provides for alternative-use options that may, on the one hand limit employment prospects, but on the other hand, could also allow for increased employment depending on the ultimate commercial/industrial leaseholder operating requirements. Furthermore, the baseline of 5% office component in each of these two buildings, does not confine or cap the potential for an increase in office component, and a lessee that may in fact require additional office floor space is feasible.

39Witness evidence provided the Tribunal with a thorough analysis of the related DGSP requirements and planning objectives, and highlighted the detailed process in the lead up to the Town’s final approval of the OPA, ZBA, DPS, SPA and the eventual removal of the Holding provision associated with the Subject Site, in May 2022. Their respective efforts are to be commended as the Town and the Applicant have clearly worked diligently to achieve these results during challenging economic conditions. The Tribunal has determined that the Variance requested does not conflict with these approvals which were the result of a robust land-use planning analysis and process.

40Therefore, the Tribunal concludes that the Variance: maintains the general intent and purpose of the TOP; maintains the general intent and purpose of the Town ZBL; is desirable for the appropriate development or use of the land, building or structure; and is minor in nature.

ORDER

41THE TRIBUNAL ORDERS that the Appeal filed by Derry Green Lands Limited Partnership is allowed, and the Variance to By-law No. 016-2014 is authorized.

“Steven T. Mastoras”

STEVEN T. MASTORAS 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.