Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 11, 2025
CASE NO(S).: OLT-24-000956
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Southside Construction Management Ltd.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the use of a proposed drive-thru restaurant on the subject lands
Reference Number: ZBA9-2024
Property Address: 22226 Adelaide Street
Municipality/UT: Strathroy-Caradoc/Middlesex County
OLT Case No.: OLT-24-000956
OLT Case Name: Southside Construction Management Ltd. v. Municipality of Strathroy-Caradoc
Heard: June 9, 2025 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Southside Construction Management Ltd. (Appellant / Applicant) | Analee Baroudi |
| Municipality of Strathroy-Caradoc | Alex Ciccone |
MEMORANDUM OF ORAL DECISION DELIVERED BY J. INNIS ON June 9, 2025, AND ORDER OF THE TRIBUNAL
Link to the Order
INTRODUCTION
1This appeal by Southside Construction Management Ltd. arises following a refusal by the Municipality of Strathroy-Caradoc (“Municipality”) of an application for a Zoning By-law Amendment (“ZBA”) affecting the lands known municipally as 22226 Adelaide Street, Mount Brydges (“Subject Property”). The application seeks to rezone the lands to a Highway Commercial zone to permit a proposed drive-thru restaurant, and site-specific exceptions to the performance standards in the zoning By-law related to lot frontage, front yard setback, exterior side yard setbacks, landscape buffer, stacking in a drive through, and parking.
2The Subject Property is located on the north side of Adelaide Road, south of Allen Road and east of Parkhouse Drive. It is approximately 4,105 metres Square (“m2”) with frontage of 92.3 metres (“m”) along Adelaide Road. The Subject Property is predominantly vacant, with a small gravel area at the west corner, formerly used as a driveway and parking area. The Subject Property is designated Commercial on Schedule F of the Strathroy-Caradoc Official Plan and zoned as Future Development (“FD”) under Zoning By-law 43-08.
PROCEDURAL MATTER
3At the outset of the hearing, the Tribunal addressed a request for adjournment, brought forward by Julie McDonald, who had been granted Participant status during the first Case Management Conference (“CMC”) held on January 29, 2025. Ms. McDonald advised the Tribunal that she was seeking an adjournment in order to bring a motion requesting a change to her status from Participant to Party, citing principles of fairness and transparency.
4Ms. McDonald was given time to speak to her request, following which the Parties were provided an opportunity to respond. In her submission, Ms. McDonald stated that she had originally sought Party status but after speaking with counsel for the Municipality in advance of the first CMC, she changed her request to Participant status upon understanding the implications of each designation. She submitted that she had only recently received notice of the settlement and therefore, sought additional time to bring a motion for the Tribunal to reconsider her status.
5Counsel for the Applicant opposed the request, submitting that the Tribunal had already ruled on the matter and that Ms. McDonald had herself elected to change her request during the CMC. Counsel emphasized that the possibility of resolution is inherent in the hearing process and encouraged by the Tribunal. It was further noted, that while Ms. McDonald had filed a detailed Party statement, the statutory criteria for party status under s. 36 (19) of the Planning Act (“Act”) had not been met. Specifically, Ms. McDonald did not make oral or written submissions to Council before it rendered its decision on the application, which is a requirement under the Act.
6Counsel for the Municipality confirmed that Ms. McDonald was advised of the distinction between Party and Participant status prior to the CMC, but that no direction or recommendation was given. The Municipality took no position on the request for adjournment, other than to confirm it would continue to support the settlement, which reflects a decision of Council. Concerns were also raised with respect to the statutory prerequisites for Party status.
7The Tribunal confirmed with Ms. McDonald that she had not made any oral or written submissions in relation to the application prior to Council's decision. As such, the Tribunal finds that the statutory requirement for Party status has not been met. The Tribunal further notes that no basis in fact or law has been provided to justify revisiting a procedural determination previously made by the Tribunal. It is not within the Tribunal’s discretion to waive the requirements set out under the Act. Additionally, the Tribunal finds that adjourning the hearing to hear a motion to reconsider the status of Ms. McDonald at this late stage, on the day of the settlement hearing, would be procedurally unfair and prejudicial to the Parties, who have prepared and reached a resolution in accordance with the Tribunal’s rules and procedures. Accordingly, the Tribunal denied the request to adjourn to reconsider the status of Ms. McDonald.
SUBMISSION
8The Applicant submitted ZBA to rezone the Subject Property on May 17, 2024, to the Municipality, from the Future Development (“FD”) zone to a site-specific Highway Commercial (“C2-_”) zone with the purpose of permitting a drive-thru, in addition to the following provisions:
i. A lot frontage of 8.4m post road widening dedication, whereas the standard required minimum lot frontage is 15m;
ii. A front yard setback of 32.1m, whereas the standard required maximum is 6m;
iii. An exterior side yard setback of 6.94m post road widening dedication, whereas the standard required maximum is 6m;
iv. iv. An exterior side yard setback of 7.2m post road widening dedication, whereas the standard required maximum is 6m;
v. A total of 26 parking spaces, whereas the standard required minimum amount of parking spaces is 35 spaces. vi. A landscape strip width adjacent the drive through lane of 1.0m, whereas 2.0m is required.
9The municipal staff report provided at the Public Meeting hosted by the Municipality on August 6, 2024, outlined outstanding matters needing to be addressed. They were as follows:
i. The servicing brief indicates that the proposal relies on accessing the Parkhouse storm sewers as an outlet, however this storm sewer has not yet been constructed. Engineering will need an understanding of timing of the proposal to determine if a temporary stormwater plan is required or a hold in zoning is required.
ii. The submission requires additional information about this proposal’s impacts on the waste water treatment facility as there is currently no information provided in the servicing report to determine this (no flow numbers).
iii. The applicant is proposing a 1.31 m road widening along Allen Road. The existing total width of the right of way is 14.5 m. Given the request for the right of way conveyance was 10 m from the centreline of the road, staff require additional information to determine if the road widening is sufficient.
iv. The proposal requests a number of site-specific deviations from the zoning bylaw given its unique shape, however, there are also a number of the deviations that are related to by-law requirements that are designed to address adverse impact on adjacent properties as well as the public realm. By way of example:
a. The zoning by-law requires six spaces behind the menu board for drive-thru restaurants. The proposal appears to provide only three spaces behind the menu board position. This deviation is of concern as it could result in cars queuing before the menu board on Allen Road as there is limited space on the site to accommodate queuing.
b. The setback / landscape strip between the adjacent residential lands is proposed 1.3 m without a fence. While the buffer material can be addressed at site plan control stage, the reduction in width from 3.0 m to 1.3 m is a concern.
10During the Municipal Public Meeting, Council approved a motion to refuse the application for the following reasons:
i. It being a high traffic business on a convoluted corner with two exits;
ii. Insufficient space on the parcel to allow an adequate number of cars to queue before the menu board, leading to additional traffic backing up into and blocking the regular flow of traffic on Allen Road;
iii. The reduced number of parking spaces from the minimum requirement is inadequate; and,
iv. A danger of parking overflowing onto surrounding margins of roads near this difficult intersection causing sight line problems at the intersection.
11The Tribunal heard evidence from the Applicant’s expert witness who confirmed that following the appeal to the Tribunal, additional technical materials were submitted to address outstanding concerns. These included a Functional Servicing Report, which responded to servicing-related matters, and a Traffic Impact Study, which addressed traffic concerns previously raised. In collaboration with municipal staff, the Applicant also undertook a review of the proposed site plan and zoning provisions to determine whether any modifications could be made to resolve remaining issues and improve the overall application.
12As a result of this process, a revised ZBA was brought forward. In recognition of the Subject Property’s irregular, pie-shaped configuration and the need to accommodate a functional building envelope, the revised proposal included special provisions to address front and side yard setbacks, as well as to incorporate a minimum set back from the centre line of Adelaide Road, an element that had been omitted in the original submission. Additional improvements were also made to the design of the drive-through facilities, parking, and landscaping treatments to enhance the Subject Property’s functionality and compatibility. Key revisions included:
a) Permitted Uses: all uses permitted in the C2 Zone as per Section 11.2.
b) Special Provisions:
i) Maximum Front Yard Setback 30 m
ii) Maximum Exterior Side Yard Setback (Adelaide Road) 8 m
iii) Maximum Exterior Side Yard Setback (Allen Road) 12 m
iv) Minimum Setback from Centreline of Adelaide Road 22 m
c) Drive Through Facilities:
i) Permit the Drive-Through Lane between the building, and the front and exterior lot lines
d) Parking:
i) Notwithstanding provision 4.23 (63) permit a minimum of 26 parking spaces
f) Landscaping, Planting:
i) Notwithstanding provision 4.15 (2) permit a minimum landscape strip width of 2m adjacent a Residential zone
ii) Notwithstanding provision 4.5 (a) permit a minimum landscape strip of 1m between the Drive-Through Lane, and street line.
13Disposition of the matter has come before the Tribunal as a settlement hearing. The Tribunal confirms that it has received, reviewed and considered the following materials and submissions:
i. the Municipal Record of the Municipality of Strathroy-Caradoc (the “Municipality”) dated September 19, 2024;
ii. the uncontested opinion evidence of Casey Kulchycki, a Registered Professional Planner, contained in his comprehensive affidavit sworn May 29, 2025 (marked as Exhibit 1);
iii. a Participant Statement filed with the Tribunal in the name of Julie McDonald;
iv. the Parties’ oral/written submissions in support of the settlement; and
v. the minutes of settlement between Southside Construction Management Ltd. And the Municipality of Strathroy-Caradoc dated May 26, 2025.
Decision
14The Tribunal understands that the aforementioned sworn affidavit evidence of Mr. Kulchycki reflects revisions to the application before the Tribunal that were reached through the cooperative efforts of the Parties.
15The Tribunal has carefully considered the concerns raised by the Participant, particularly regarding traffic safety, queuing, noise, and odour. The Expert Witness’s review, supported by the Traffic Impact Study, confirmed that the proposal will not create safety risks or undue impacts on the surrounding neighborhood. Outstanding noise issues will be addressed through a Noise Study required as part of the site plan approval process, which would be subject to municipal planning staff satisfaction. Odour concerns will also be managed through the site plan process to ensure appropriate mitigation measures. The Tribunal is satisfied that these matters have been adequately addressed through the revised submission and will continue to be managed through ongoing municipal review.
16The Tribunal accepts the opinion evidence of Mr. Kulchycki as presented in his affidavit and similarly finds that the subject application, as revised, has regard to those applicable matters of provincial interest found in section 2 of the Planning Act, is consistent with the Provincial Planning Statement, 2024, conforms to the County of Middlesex Official Plan and the Municipality of Strathroy-Caradoc Official Plan, and otherwise reflects principles of good land use planning.
ORDER
17THE TRIBUNAL ORDERS THAT the appeal is allowed, in part, and By-law 43-08 is hereby amended as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the Municipality of Strathroy-Caradoc to assign a number to this bylaw for record-keeping purposes.
“J. Innis”
j. inniS
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.