Arnprior Bay Property Limited v. Arnprior (Town), 2024 CanLII 94871

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 24, 2024

CASE NO(S).: OLT-23-001029

PROCEEDING COMMENCED UNDER subsection 22(1) of the Development Charges Act, 1997, S.O. 1997, c.30, as amended

Applicant/Appellant: Arnprior Bay Property Limited

Subject: Industrial Building Expansion

Description: Determination of the development charges

Reference Number: DC By-law 7369-23

Property Address: 124 Fourth Avenue

Municipality/UT: Town of Arnprior / County of Renfrew

OLT Case No.: OLT-23-001029

OLT Lead Case No.: OLT-23-001029

OLT Case Name: Arnprior Bay Property Limited v. Arnprior (Town)

Heard: June 13 - 14, 2024, by Video Hearing (“VH”) July 8, 2024, in writing

APPEARANCES:

Parties

Counsel

Arnprior Bay Property Limited (“Appellant”)

Phillip Osterhout

Town of Arnprior (“Respondent”)

Laura Robinson M. Mitchell (Student-at-Law)

DECISION DELIVERED BY ROBERT G. ACKERMAN AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision determines the Appeal by Arnprior Bay Property Limited (“Appellant”) from the Decision of the Council for the Town of Arnprior (the “Town”) dismissing the Complaint filed by the Appellant pursuant to subsection 22(1) of the Development Charges Act, 1997, S.O. 1997, c.30, as amended (the “DC Act”). The Complaint was regarding the calculation of development charges (“DC Charges”) payable in connection with the proposed development of a self-storage facility at the property municipally known as 124 Fourth Avenue in Arnprior (the “Subject Property”). The Subject Property was improved with an existing building. Town Staff calculated that development charges in the sum of $207,608.75 were payable, while the Appellant stated in the Complaint that no development charges were payable because the development proposal fell under an exception for the enlargement of the Gross Floor Area (“GFA”) of an existing industrial building, as set out in Section 3.10 of the Town’s Development Charges By-law No. 6805-18 (“DC By-law”).

2At the conclusion of the evidentiary portion of the Hearing, the Tribunal directed Counsel to file Written Submissions. Counsel for the Appellant, Mr. Osterhout, filed his client’s Written Submissions along with a document entitled Agreed Statement of Facts & Issues (“ASF”). As the ASF did not contain a statement that the Parties agree with its contents and was not signed by either Counsel, the Tribunal sought and received confirmation from Counsel for the Town, Ms. Robinson, that her client agreed with the contents of the ASF.

THE HEARING

3A total of three witnesses were called by Counsel for the Parties, all three testifying as expert witnesses:

For the Appellant

1. Greg Winters, Professional Planner;

For the Town

1. Jaimie Batchelor, Professional Planner;

2. Byron Joseph Tan, Professional land Economist.

4The following documents were entered as Exhibits:

1. Exhibit 1 – Joint Document Book;

2. Exhibit 2 – Witness Statement of Greg Winters;

3. Exhibit 3 -- Reply Witness Statement of Greg Winters;

4. Exhibit 4 – Town’s Brief of Expert Reports

AGREED STATEMENT OF FACTS & ISSUES

5The ASF provides as follows:

1. This Appeal arises from development charges imposed with respect to the construction of a self-storage facility at 124 Fourth Avenue, in the Town of Arnprior.

2. 124 Fourth Avenue is a 3.97-hectare parcel, located within an Employment Area as designated by Schedule “A” of the Town’s Official Plan. The designation applies to the traditional industrial areas in the Town, and aims to provide for an appropriate range and mix of employment uses to meet long-term needs. The property is zoned Employment EMPL(H4), subject to a site- specific holding provision that permits all uses in Section 8.4 of the Town’s Zoning By-law except “Cannabis Related Facility”. The stated purpose of the Employment Zone is to implement the policies of the Employment Area designation in the Town’s Official Plan. Permitted uses include a Brewery, Business Office, Car Wash, Commercial Self Storage Use, Industrial Use, Light Equipment Sales and Rental Use, Motor Vehicle Body Shop, Motor Vehicle Repair Garage, Motor Vehicle Sales and Rental Establishment, Outdoor Storage Use, Repair Shop, Transport Terminal, and Warehouse, among others.

Joint Book of Documents, Tab 3, p. 10, Site Plan

Joint Book of Documents, Tab 18, p. 451-452, Official Plan Extracts

Joint Book of Documents, Tab 19, p. 475-482, Zoning By-law Extracts

3. Prior to the development at issue, 124 Fourth Avenue contained an existing building that was originally constructed in the 1950’s (the “Original Building”). Prior to the development at issue, the Original Building was occupied by three tenants:

a. Pacific Safety Productions, which manufactures Canadian-made bullet resistant body armour solutions made for police services;

b. A Pillar5 Pharma, which manufactures and provides sterile ophthalmic solutions; and

c. Premium Vehicle Storage, a company that provides storage for vehicles including cars, boats, RV’s, travel trailers, motorcycles, snowmobiles, jet-skis, all terrain vehicles, and other recreational vehicles.

Ex. 2, Witness Statement of Gregory Winters, p. 2, paras. 6-7

4. The Original Building had an existing gross floor area of 89,340 square feet.

Joint Book of Documents, Tab 3, p. 10, Site Plan

5. On August 12, 2021, Arnprior Bay Property Limited filed an application for site plan approval to construct a self storage facility on the property (the “New Storage Space”).

6. The New Storage Space has a total gross floor area of 24,875 square feet. The gross floor area of the New Storage Space is less than 50% of the gross floor area of the Original Building.

Joint Book of Documents, Tab 3, p. 10, Site Plan

7. A building permit for the New Storage Space was issued on July 14, 2023.

Joint Book of Documents, Tab 6, p. 26, Building Permit

8. Development Charges were calculated by Town staff in the total amount of $207,608.75, consisting of $189,433.20 of development charges at a rate of $7.62/square foot, plus $18,175.55 of interest pursuant to s. 26.2(3) of the Development Charges Act, 1997, S.O. 1997, c. 27. Town staff relied on an estimate of the gross floor area of the New Storage Space totaling 24,860 square feet.

Joint Book of Documents, Tab 6, p. 26, Building Permit

Joint Book of Documents, Tab 11, p. 45, Town Staff Report

9. Development charges were calculated by Mr. Tan for the purposes of this Appeal in the total amount of $207,832.07, consisting of $189,547.50 of development charges at a rate of:

$7.62/square foot, plus $18,284.57 of interest pursuant to s. 26.2(3) of the Development Charges Act, 1997, S.O. 1997, c. 27. Mr. Tan relied on the specific gross floor area of the New Storage Space totaling 24,875 square feet.

Ex. 4, Town’s Brief of Expert Reports, Tab 2, Witness Statement of Byron Tan, p. 87-89

10. The development is subject to the Town of Arnprior’s Development Charge By-law 6805-18 (the “2018 DC By-law”) based on the date of site plan application, pursuant to s. 26.2(1)(a) of the Development Charges Act.

Joint Book of Documents, Tab 14, DC By-law 6805-18

11. If development charges are payable, the amount as calculated is not in dispute:

$207,832.07, as calculated by Mr. Tan. The only questions for the Tribunal to determine are:

a. Whether the development is subject to the exemption for the enlargement of the gross floor area of an existing industrial building under section 4 of the Development Charges Act, 1997, S.O. 1997. C. 27; and

b. Whether the development is subject to the exemption for an enlargement of the gross floor area of an existing industrial or commercial building under section 3.10 of the 2018 DC By-law.

Joint Book of Documents, Tab 14, DC By-law 6805-18, p. 67

ISSUES

6As stated in paragraph 11 of the ASF, the Parties agree that the issues to be determined by the Tribunal are:

a. Whether the Appellant’s development is subject to the exemption under Section 4 of the DC Act for the enlargement of the gross floor area (“GFA”) of an existing industrial building; and

b. Whether the Appellant’s development is subject to the exemption in Section 3.10 of the 2018 DC By-law for an enlargement of the GFA of an existing industrial or commercial building.

Whether the existing building is an “existing industrial building” within the meaning of [Section 4](https://www.canlii.org/en/on/laws/stat/so-1997-c-27/latest/so-1997-c-27.html) of the [Development Charges Act, 1997](https://www.canlii.org/en/on/laws/stat/so-1997-c-27/latest/so-1997-c-27.html) and [O. Reg.82/98](https://www.canlii.org/en/on/laws/regu/o-reg-82-98/latest/o-reg-82-98.html)

7The definition of “existing industrial building” is provided by O. Reg. 82/98 under the DC Act. Section 1(1) of O. Reg. 82/98 provides as follows:

existing industrial building” means a building used for or in connection with,

(a) manufacturing, producing, processing, storing or distributing something,

(b) research or development in connection with manufacturing, producing or processing something,

(c) retail sales by a manufacturer, producer or processor of something they manufactured, produced or processed, if the retail sales are at the site where the manufacturing, production or processing takes place,

(d) office or administrative purposes, if they are,

(i) carried out with respect to manufacturing, producing, processing, storage or distributing of something, and

(ii) in or attached to the building or structure used for that manufacturing, producing, processing, storage or distribution.

8At the time that the Appellant filed its site plan application (“SPA”) the existing building had three tenants, two of which were engaged in manufacturing goods. The Town’s witness, Mr. Tan, conceded that part of the existing building was used in connection with manufacturing. In the Tribunal’s view, this is sufficient to establish that the building is an existing industrial building within the meaning of Section 4 of the DC Act.

Whether the development is an enlargement of the existing industrial building

9Section 4 of the DC Act describes the criteria for the exemption of industrial developments from DC Charges:

Exemption for industrial development

4 (1) If a development includes the enlargement of the gross floor area of an existing industrial building, the amount of the development charge that is payable in respect of the enlargement is determined in accordance with this section. 1997, c. 27, s. 4 (1).

Enlargement 50 per cent or less

(2) If the gross floor area is enlarged by 50 per cent or less, the amount of the development charge in respect of the enlargement is zero. 1997, c. 27, s. 4 (2).

10The enlargement of an “existing industrial building” is measured based upon the GFA. Pursuant to Section 1(1) of the DC Reg., the definition of GFA for purposes of the DC Act is:

the total floor area, measured between the outside of exterior walls or between the outside of exterior walls and the centre line of party walls dividing the building from another building, of all floors above the average level of finished ground adjoining the building at its exterior walls

11The exemption under Section 4(2) of the DC Act requires that the “development includes the enlargement of the gross floor area of an existing industrial building”. The enlargement must not exceed 50% of the GFA of the original industrial building.

12Mr. Batchelor’s report was produced as Tab 1 to Exhibit 4. The Appellant’s engineering drawings filed with the Appellant’s SPA were produced as Exhibit “C” thereto. The site plan itself is titled drawing No. A1-1 and is dated April 27, 2023. It shows the Existing Building, labeled as such, and shows the location of four proposed buildings, labeled as “Proposed Self-Storage Building A, B, C and D”. All the proposed buildings are shown as separate stand-alone buildings. Building B is indicated to be the closest to the Existing Building at a separation distance of 22.24 metres.

13The position of the Appellant is that, despite the physical separation of the Existing Building, the four Proposed Self Storage Buildings are an enlargement of the GFA of the Existing Industrial Building as the proposed buildings are connected thereto by means of a buried concrete link or conduit for the provision of electrical and heating services.

14Mr. Tan testified, and it is the position of the Town that, the Appellant’s development cannot be considered an enlargement of an existing industrial building under the DC Act because the definition of GFA under the DC Act requires that measurements be taken “between the outside of exterior walls or between the outside of exterior and the centre line of party walls dividing the building from another building”. It was Mr. Tan’s opinion that while the new storage buildings are connected through an “underground cement link” for servicing, the definition of the GFA under the DC Act excludes any floor area that is not “above the average level of finished ground adjoining the building at its exterior walls”. Therefore, the buried connection cannot be considered as part of the enlargement of the GFA of the Existing Industrial Building.

15It was Mr. Tan’s opinion, and the Town’s position, that the development is not an enlargement of the existing industrial building within the meaning of Section 4 of the DC Act. The Tribunal agrees and so finds.

Whether the existing building is an “existing industrial or commercial building” within the meaning of Section 3.10 of DC By-law

16The exemption in the DC By-law is limited to an existing industrial or commercial building. Section 3.12 of the DC By-law directs the reader to the definition of existing industrial building in the DC Act, which in turn refers to the definition contained in the DC Reg. It was Mr. Tan’s opinion that the existing building is an “existing industrial or commercial building as two of its tenants were engaged in the manufacture of a product while the third tenant operated a vehicle storage business, which was a commercial venture. The Tribunal therefore finds that the existing building is an “existing industrial or commercial building” within the meaning of Section 3.10 of the DC By-law.

Whether the development is an enlargement of the existing industrial or commercial building

17Sections 3.10, 3.11 and 3.12, of the DC By-law provide:

3.10 Notwithstanding any other provision of this By-Law, no Development Charge is payable with respect to an enlargement of the gross floor area of an existing industrial or commercial building, where the gross floor area is enlarged by 50 percent or less.

3.11 If the gross floor area of an existing industrial or commercial building is enlarged by greater than 50 percent, the amount of the Development Charge payable in respect of the enlargement is the amount of the Development Charge that would otherwise be payable multiplied by the fraction as determined as follows:

1. determine the amount by which the enlargement exceeds 50 percent of the gross floor area before the enlargement;

2. divide the amount determined under Subsection (1) by the amount of the enlargement.

3.12 For the purpose of Section 3.10 herein, "existing industrial building" is used as defined in the Regulations made pursuant to the Act.

18The enlargement of an existing industrial building is measured based on the GFA, as defined in Section 1.1 of the DC Bylaw:

“Gross Floor Area” means:

2. in the case of a non-residential building or structure, or in the case of a mixed- use building or structure in respect of the non-residential portion thereof, the total areas of all building floors above or below grade, measured between the outside surfaces of the exterior walls, or between the outside surfaces of exterior walls and the centre line of party walls dividing a non-residential use, except for;

(a) room or enclosed area within the building or structure above or below that is used exclusively for the accommodation of heating, cooling, ventilating, electrical, mechanical or telecommunications equipment that service the building;

(b) loading facilities above or below grade; and

(c) a part of the building or structure below grade that is used for the

parking of motor vehicles or for storage or other accessory use;

19The criteria for the industrial and commercial enlargement exemption under Sections 3.10 and 3.11 of the DC By-law requires that the development is “an enlargement of the gross floor area of an existing industrial or commercial building, where the gross floor area is enlarged by 50 percent or less”.

20The site plan drawing for the Appellant’s SPA, shows four individual buildings that are separate from the existing building. Mr. Tan testified that, as the definition of GFA under the DC By-law requires that the calculation of GFA must be “measured between the outside surfaces of the exterior walls, or between the outside surfaces of exterior walls and the centre line of party walls dividing a non-residential use”, the Appellant’s development does not represent an enlargement under Section 3.10 of the Town’s DC By-law.

21As described above, Mr. Tan testified that, the new storage buildings are connected to the existing building through an “underground cement link” for servicing. The Appellant contends that as the new storage buildings are physically connected to the existing building by the buried servicing conduit, the new buildings represent an enlargement of the GFA of the existing building within the meaning of Section. 3.10 of the DC By-law. Mr. Tan testified that the definition of GFA under the DC By-law excludes any floor area that is “a room or enclosed area within the building or structure above or below grade that is used exclusively for the accommodation of heating, cooling, ventilating, electrical, mechanical or telecommunications equipment that service the building”. Therefore, Mr. Tan opined, the servicing connection cannot be considered as part of the enlargement of the GFA of the existing building, and neither can the new storage buildings be considered as an enlargement of the GFA of the existing building.

22Mr. Tan testified that he therefore concluded that the development is also not an enlargement of the existing industrial or commercial building within the meaning of Section 3.10 of the DC By-law. The Tribunal agrees, and so finds.

Summary

23The Tribunal finds that the existing building is an existing industrial building within the meaning of Section 4 of the DC Act.

24The Tribunal finds that the development is not an enlargement of the existing industrial building within the meaning of Section 4 of the DC Act.

25The Tribunal finds that the existing building is an “existing industrial or commercial building” within the meaning of Section 3.10 of the DC By-law.

26The Tribunal finds that the development is not an enlargement of the existing industrial or commercial building within the meaning of Section 3.10 of DC By-law.

27The amount not being in dispute, the Tribunal finds that DC Charges in the amount of $207,832.07, are payable by the Appellant to the Town in respect of the development at the Subject Property.

ORDER

28THE TRIBUNAL ORDERS:

a. That the within Appeal, brought pursuant to subsection 22(1) of the Development Charges Act, 1997, S.O. 1997, c.30, as amended, be and the same is hereby dismissed.

“Robert G. Ackerman”

ROBERT G. ACKERMAN

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.