Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
23 164321 S45 23 TLAB
Nicola Milner Nominee Inc. (Re), 2023 ONTLAB 149
DECISION AND ORDER
Issuance Date: October 27, 2023
PROCEEDING COMMENCED UNDER Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")
Appellant(s): NICOLA MILNER NOMINEE INC.
Applicant(s): DILLON CONSULTING LTD.
Property Address: 601 MILNER AVE
COA File No.: 23 127634 ESC 23 MV (A0081/23SC)
TLAB Case File No.: 22 164321 S45 23 TLAB
Hearing Date(s): October 18, 2023
Decision Delivered By: TLAB Panel Member R. Kanter
REGISTERED PARTIES AND PARTICIPANTS:
People Type First Initial. Last Name Representative
Applicant DILLON CONSULTING LIMITED bshinoda@dillon.ca
Appellant NICOLA MILNER NOMINEE INC. janderson@nicolawealth.com
Appellant's Legal Rep. OVERLAND LLP dartenosi@overlandllp.ca
Party (TLAB) N. STAVROPOULOS pastornick45@gmail.com
Expert Witness J. GUZZI jguzzi@dillon.ca
Expert Witness D. ANGELAKIS david.angelakis@rjburnside.com
INTRODUCTION AND CONTEXT
1On March 24, 2023, the Applicant applied for a minor variance to reduce the number of parking spaces required for a new industrial building from 350 to 219 spaces (the "Parking Variance") at 601-607 Milner Avenue (the "Site").
2On June 1, 2023, the Committee of Adjustment heard and refused the Parking Variance.
3On June 21, 2023, the Appellant appealed the refusal of the Parking Variance (the "Appeal") to the Toronto Local Appeal Body (the "TLAB").
4On October 18, 2023, I was the presiding member for an oral hearing of the Appeal before the TLAB.
THE LEGISLATIVE FRAMEWORK
5Provincial Interest – Section 2 of the Act
A decision of the TLAB must have regard to, among other matters, matters of provincial interest such as,
(f) the adequate provision of . . . transportation systems;
(k) the adequate provision of employment opportunities;
(n) the resolution of planning conflicts involving public and private interests;
(p) the appropriate location of growth and development.
6Provincial Policy – S. 3 of the Act
A decision of the Toronto Local Appeal Body (TLAB) must be consistent with the 2020 Provincial Policy Statement (PPS) and conform to the Growth Plan for the Greater Golden Horseshoe (Growth Plan) for the subject area.
7Variance – S. 45(1) of the Act
In considering the applications for variances from the Zoning By-laws, the TLAB Panel must be satisfied that the applications meet all of the four tests under s. 45(1) of the Act. The tests are whether the variances:
maintain the general intent and purpose of the Official Plan;
maintain the general intent and purpose of the Zoning By-laws;
are desirable for the appropriate development or use of the land; and
are minor.
SUMMARY OF EVIDENCE
8Counsel for the Appellant called Joseph Guzzi and asked that he be qualified as an expert witness. After reviewing his education and experience, I qualified Mr. Guzzi as an expert in the field of land use planning.
9Mr. Guzzi described the Site in his expert witness statement (Exhibit 1) and his oral evidence. The Site is located on the south side of Milner Ave. north of Highway 401 east of Progress Ave. and west of Neilson Road. The Site is large, consisting of approximately 8.35 hectares, with a frontage of approximately 414 metres along Milner.
10The Site previously contained an industrial building constructed in 1978 with an area of 40,864 m2. Approximately 67% of the previous building was used for office and flexible industrial space, and approximately 33% was used for warehouse space (the "Previous Use"). The Previous Use provided 622 parking spaces.
11The Rosewood Church of the Nazarene is a large place of worship located to the east of the Site (the "Church"). There is a natural heritage feature located to the west of the Site. There is a low density residential area north of the Site.
12The Site is well served by existing public transit services, including bus stops on Milner and Neilson, leading to connections to the TTC subway and GO transit.
13The Appellant seeks to construct an industrial use with a gross floor area of 32,663 m2 to be used primarily as a warehouse, with a small amount of ancillary office use (the "Proposed Development"). The Proposed Development will provide 219 parking spaces identified by the City of Toronto Zoning Examiner (Ex. 1 page 51), plus 60 truck bays for loading and 23 truck trailer parking spaces (Ex. 1 Attachment H).
14Mr. Guzzi provided his opinion that the Parking Variance required for the Proposed Building meets the tests under the Act and constitutes good planning.
15In his opinion, the Application has regard for: the provincial interest in the adequate provision of transportation systems; the adequate provision of employment opportunities; and is an appropriate location for industrial development. In his opinion, the Proposed Development has regard for the interests of the Church, since it will significantly increase the percentage of warehouse use but significantly decrease the relative percentage of more parking-intensive office use.
16Mr. Guzzi opined that the Proposed Development is consistent with S. 1 of the PPS 2020, since it is transit-supportive, freight-movement supportive (since the Site is located adjacent to Highway 401) and promotes economic investment. He also opined that the Proposed Development conforms to the Growth Plan, since it minimizes surface parking in support of transit, and reserves lands near major highways for warehousing and related industrial uses.
17Mr. Guzzi stated that the Parking Variance is minor, and will have no impact on the Church or surrounding streets. Technological advances and automation have resulted in reduced workforce and parking requirements for warehouses.
18Mr. Guzzi also stated that the Parking Variance is desirable for the appropriate development of the land, since it facilitates the protection and development of employment lands, by providing an industrial use which reflects the increasing needs of online retailers.
19Mr. Guzzi reviewed the zoning history of the Site. It continues to be zoned Industrial & Office Uses under (former City of) Scarborough Employment District Zoning By-law No. 24982, adopted circa 1997 (the "Scarborough ZBL)". The Scarborough ZBL required all industrial uses, including warehouses, to provide 1.07 spaces for 100m2 of gross floor area.
20However, the City-wide Zoning By-law 569-2013 (the "City ZBL") passed in 2013 but not applicable to the Site, initially required only 177 parking spaces. A recent amendment to the City ZBL eliminated minimum parking rates for warehouse uses, although it anticipates that responsible applicants will provide parking as required. Consequently, the Proposed Development meets the general intent and purpose of evolving zoning requirements for reduced parking for warehouse uses.
21Mr. Guzzi also noted that the Site is designated "General Employment" under the City's Official Plan. Warehousing is a permitted use under that designation. Policy 4.6 of the OP supports uses vital to the City's economic prospects. Policy 4.6.7 d) promotes utilization of existing public transportation, and Policy 4.6.7 f) requires the provision of adequate parking and loading on site. In Mr. Guzzi's opinion, the proposed parking supply of 219 spaces, 60 loading bays and 23 trailer parking spaces is sufficient to serve the Proposed Development, and thus maintains the general intent and purpose of the Official Plan.
22Mr. Guzzi also referred to a condition proposed by Urban Forestry regarding permits for tree injury or approval. He stated that permits had been issued, but the Appellant was not opposed to adding the proposed conditions if the Parking Variance is approved.
23Pastor Nick Stavropoulos, Senior Minister of the Church, questioned Mr. Guzzi to clarify the size, use and coverage of the Proposed Development compared to the Previous Use.
24Counsel for the Appellant then called David Angelakis, and asked that he also be qualified as an expert witness. After reviewing his education and experience, I qualified Mr. Angelakis as an expert in the field of traffic engineering and planning.
25Mr. Angelakis elaborated on parking requirements for warehouses in his expert witness statement (Ex. 2) based on a review of zoning requirements, parking generation studies, parking surveys of new warehouses in the Greater Toronto Area, and applications in the City of Toronto for warehouse use.
26Mr. Angelakis stated that parking demand for warehouse use has dropped consistently over the past 10-15 years. According to the Institute of Transportation Engineers, the parking demand for warehouse uses is now .36 spaces per 100m2. According to parking surveys conducted by R. J. Burnside Engineers, the average demand for new warehouses in the GTA is .27 spaces per 100m2. According to recent site plan applications in the City, the average rate is .55 spaces per 100m2.
27Mr. Angelakis opined that the proposed parking rate of .67 spaces per 100m2 for warehouse uses will meet or exceed future parking demand.
28Pastor Nick Stavropoulos, senior Minister of the Church, filed a witness statement which I entered as Ex. 3.
29According to Ex. 3, the Proposed Development is huge, and will require a lot of employees; most will likely drive to work; if there are not enough parking spaces on site, people will be inclined to park in the church parking lot, which is needed for funerals, weddings, regular Sunday services and other events; and the Proposed Development must provide additional spaces for trucks that break down.
30In his oral evidence, Pastor Stavropoulos stated that he had been a minister with the Church for 42 years, and that the Church has been located at 657 Milner Avenue, east of the Site, for the past 20 years.
31He stated that the Previous Use often resulted in overflow parking on the Church's parking lot. The church had negotiated with the owners of the previous use to allow use of the Church property for overflow parking.
32Pastor Stavropoulos expressed doubt that the 219 spaces for the Proposed Use would be sufficient.
33He also recognized that construction of the Proposed Development had commenced, and it might not be possible to require more parking since the building footprint was set.
34Pastor Stavropoulos concluded by expressing his hope that things worked out well between the Appellant and the Church.
35In response to a question from me, Pastor Stavropoulos stated that he preferred the Proposed Development to provide more parking, but he "acquiesced" with the number of spaces proposed.
ISSUES AND ANALYSIS
36I have reviewed Exhibits 1, 2, and 3, as well as the oral evidence of Mr. Guzzi, Mr. Angelakis and Pastor Stavropoulos.
37I accept Mr. Guzzi's uncontradicted planning evidence that the variances meet the tests in the Planning Act for a minor variance to be approved. I find that that parking requirements for warehouses have decreased due to automation and technical advances, and I accept his opinion that 219 parking spaces will be more than adequate for the warehouse use.
38I also accept Mr. Angelakis' uncontradicted transportation evidence that by providing .67 parking spaces per 100m2, the Proposed Development exceeds the parking to floor space ratio recommended by transportation engineers, and the ratio of spaces to gross floor area actually provided for new warehouses in the City of Toronto and in the Greater Toronto area.
39I understand that Pastor Stavropoulos gave his evidence based on his very lengthy period of leadership with the Church. It was intended to protect the interests of the Church, rather than any private interest.
40However, I find that the some of his concerns were based on an incomplete understanding of the Proposed Development. The Proposed Development is smaller, not larger than the Previous Use. It will contain much less office use - which requires more parking, and more warehouse use - which requires less parking.
41Other concerns expressed by Pastor Stavropoulos were speculative rather than certain to occur: "if (emphasis added) there are not enough parking spaces on site, drivers will be inclined (emphasis added) to park in our Church parking lot . . . or could be inclined (emphasis added) to park on Milner Avenue" (Ex. 3, Page 3, paragraphs (c) & (d)).
42On the basis of the expert opinion evidence which I heard, I find it very unlikely that the concerns expressed by the Pastor will occur.
CONCLUSION
43I will allow the appeal and approve the Parking Variance, subject to the conditions proposed by Urban Forestry with respect to tree protection.
DECISION AND ORDER
44That the appeal is allowed, and the Parking Variance is approved. The proposed minimum number of parking spaces to be provided is 219.
45The approval of the Parking Variance is subject to the following conditions:
(a) Submission of a complete application for a permit to injure or remove a City owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article II Trees on City Streets; and
(b) Submission of a complete application for a permit to injure or remove a privately owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article III Private Tree Protection
R. Kanter
Panel Member