Urros Investments Inc v. Bergler Development Corp, 2023 ONTLAB 46

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2023-03-15

22 217984 S45 05 TLAB

Urros Investments Inc v. Bergler Development Corp, 2023 ONTLAB 46

DECISION AND ORDER

Issuance Date:

March 15, 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):

Urros Investments Inc.

Applicant(s):

Epic Designs Inc.

Property Address:

110 Industry St.

COA File No.:

21 248186 WET 05 MV (A0645/21EYK)

TLAB Case File No.:

2021 217984 S45 05 TLAB

Hearing Date(s):

February 14 and 22, 2023

Decision Delivered By:

TLAB Panel Member G. Swinkin

REGISTERED PARTIES AND PARTICIPANTS:

People Type

Name

Representative

Owner/Appellant

Urros Investments Inc.

J. Cole And M. Foderick

Applicant

Epic Designs Inc.

Expert Witness

M. Rendl

Expert Witness

D. Riley

Party

Bergler Development Corp.

D. Neligan And N. Mares

Party

Goldrich Printpak Inc.

INTRODUCTION AND CONTEXT

1. Urros Investments Inc. (the “Appellant”) is the owner of 110 Industry Street (the “Property”) and has brought this appeal before the Toronto Local Appeal Body (the “Tribunal”) by reason of the decision of the Committee of Adjustment (the “Committee”) to refuse its application for variance relief from former City of York Zoning By-law 1-83 (the “Zoning By-law”).

2. The Property is located in what is referred to as the Black Creek Business Area.

3. The Property is used in its entirety as an outdoor storage area, primarily for construction material but not exclusively so.

4. The Appellant was represented by counsel and called evidence through two professional witnesses, David Riley, a professional land use planning consultant, and Brian Sulley, a professional engineer with expertise in air emissions and odour.

5. Abutting the Property to the east is the property municipally known as 100 Industry Street (the “100 Lands”), which is owned by Bergler Development Corp. and tenanted by Goldrich Printpak Inc. Leslie Goldberg is the 50% owner of the 100 Lands and the President of Goldrich Printpak. The 100 Lands are improved with a building which accommodates the operations of Goldrich Printpak, which manufactures packaging material for the food industry.

6. Counsel for the owner and tenant of the 100 Lands called Mr. Goldberg as a witness in the proceeding as well as Martin Rendl, a professional land use planning consultant.

THE LEGISLATIVE AND POLICY FRAMEWORK

Section 45 (1) of the Planning Act

7. “The committee of adjustment, upon the application of the owner of any land, building or structure affected by any by-law that is passed under section 34 or 38, or a predecessor of such sections, or any person authorized in writing by the owner, may, despite any other Act, authorize such minor variance from the provisions of the by-law, in respect of the land, building or structure or the use thereof, as in its opinion is desirable for the appropriate development or use of the land, building or structure, if in the opinion of the committee the general intent and purpose of the by-law and of the official plan, if any, are maintained.”

SUMMARY OF EVIDENCE

8. The application to the Committee sought the following relief: 1. Section 13.5.4, By-law 1-83 - No outdoor storage is permitted. The proposal is for outdoor storage of building materials. 2. Section 13.1.2, By-law 1-83 - All permitted uses within Employment Zones, with the exception of the display, parking, storage and fuelling of motor vehicles, shall be conducted within totally enclosed buildings or structures unless otherwise provided for in this By-law. The proposal is for outdoor storage of building materials.

9. Mr. Riley was retained by the Appellant after the Notice of Appeal was filed. He was retained for the purpose of giving testimony at this hearing.

10. Mr. Riley reviewed the background material and conducted a site investigation prior to preparing his Witness Statement.

11. Mr. Riley advised that the Property is designated as Core Employment on the Land Use Map within the City of Toronto Official Plan (the “OP”).

12. Mr. Riley brought to the attention of the Tribunal Policy 4.6.7 (l) of the OP, which states “that where zoning by-law(s) are to permit open storage and/or outdoor processing of goods and materials as accessory/ancillary uses, the open storage and/or processing is: i) limited in extent; ii) generally located on an area of the property where potential adverse effects on sensitive land uses, including residential uses, are mitigated; iii) well screened by fencing and landscaping where viewed from adjacent streets, highways, parks and neighbouring land uses; and iv) in terms of noise, vibration and emissions, not adversely effecting sensitive land uses, including residential uses, outside of Employment Areas where permitted or existing within the influence area of the proposed open storage and/or outdoor processing use”.

13. Although Mr. Riley took the position that this policy did not apply to this proposal since the use as an outdoor storage area was the principal use in this instance and not an accessory use, he nonetheless was of the view that the guidance in it was appropriate.

14. Mr. Riley advised that the Zoning By-law provides for four Employment zones. Those zone categories are Business Employment (BE), Strategic Industrial (SI), Prestige Employment (PE) and Commercial Employment (CE).

15. The BE and SI zones permit outdoor storage as an accessory use subject to regulations. The PE and CE zones do not permit outdoor storage at all.

16. The Property is within a PE zone.

17. There is no building on the Property.

18. Therefore, outdoor storage is not permitted on the Property at all.

19. With respect to the criterion in the Policy which refers to the outdoor storage as being limited in extent, Mr. Riley suggested that this need not be read with a territorial reference but could rather be understood as a temporal reference, that is, that the limitation of extent could relate to duration, which tied into the Appellant’s positiion that they were only seeking approval for a five year period.

20. The Property is apparently tenanted out to third parties with delineated areas where they are entitled to store material. Neither of the Appellant’s witnesses was able to advise whether the tenancy arrangement involves any terms or restrictions on the nature of the material which may be stored on the Property.

21. The photographic evidence revealed that large waste bins are stored on the Property as well as various characters of construction material, construction equipment and automobiles. This material is stored on the bare ground as the site is not paved.

22. The OP, in Policy 4.6.7, which applies to all Employment Areas, states that “development will contribute to the creation of competitive, attractive and highly functional Employment Areas…”

23. In response to a direct question by the Tribunal, Mr. Riley conceded that in its present state, the Property is not attractive. He followed that statement by suggesting that with the benefit of the proposed tree planting along the front and easterly lot lines, that it could be made so.

24. Mr. Riley attempted to persuade the Tribunal that the existing open storage use was in character with the area in the sense that various other parcels of land in the business park had open storage activity on their sites, although this was primarily of an accessory use character. Certain employment zone categories under this Zoning By-law and the City Zoning By-law 569-2013 (which applies to certain lands in this business park) do explicitly authorize open storage as a limited ancillary use. Therefore, it is not extraordinary to find evidence of open storage in the area.

25. Mr. Riley also assembled photos of other properties zoned PE where open storage was being conducted but none of these properties appeared to be used for open storage as the principal/only use, and there was no evidence provided as to the time of establishment of these uses or as to their duration or lawfulness.

26. Neither of the Appellant’s witnesses knew when the open storage use was established. It was through the testimony of Mr. Goldberg that the Tribunal learned that it began some time in 2019, apparently under a prior owner.

27. Neither of the Appellant’s witnesses was able to advise whether the current owner of the Property undertook any due diligence as to whether the open storage use was permitted under the Zoning By-law.

28. Through the cross-examination of Mr. Goldberg and the direct examination of Mr. Rendl, the Tribunal was presented with aerial images of the Property from Google Earth. The images taken in 2017 and 2018 show the Property with a uniform green vegetative cover which did not look particularly unkempt. There was no evidence of outdoor storage on the Property in these images. The 2019 image shows some clearance of the land in the vicinity of the driveway and in the northwest corner of the site. By 2020, the image shows the green cover gone and material stored in the open throughout the site.

29. The Tribunal learned through Mr. Goldberg that Goldrich manufactures packaging for the food, cosmetics, pharmaceutical and consumer goods sectors. The Tribunal was advised that the manufacture of this packaging requires a clean environment inside and outside to meet quality control requirements of the packaging industry and Goldrich’s customers. The Tribunal was advised that the production standards Goldrich must follow as well as the expectations of its customers about the quality and cleanliness of the packaging which Goldrich manufactures, makes any risk of contamination unacceptable and puts its operating credentials at risk. As Mr. Goldberg described it, Goldrich holds a number of industry and business certifications that relate to quality of product, including: ISO 9001:2015, ISO 14001:2014, GFSI FSSC 22000 V5.1, GMI, FSC, NUT FREE MANUFACTURING FACILITY. These certifications must be maintained by Goldrich because they are key to Goldrich continuing to be able to meet the product and production quality standards required by its customers.

30. Mr. Goldberg informed the Tribunal that since the establishment of the open storage use next door, his property has experienced rodent and pest infestation, which had not been the case previously, and a photo was produced of a coyote on his property, which frightens his employees (as it was roaming in the parking area) and had also not occurred in the past. In addition to these intrusions, Mr. Goldberg spoke of the presence of diesel exhaust from the vehicles which frequent the site.

31. On the basis of these experiences and the potentially highly damaging consequences of their continuation, Mr, Goldberg made submissions at the Committee in opposition to the application and appeared before the Tribunal to persist in that opposition.

32. Mr. Foderick vigorously challenged Mr. Goldberg in cross-examination on these various impacts and his ability to clearly demonstrate their origin from the Property. In their final submissions, counsel for the Appellant casts aspersions on this evidence and encourages the Tribunal to disregard it. It was clear to this panel that Mr. Goldberg was not setting himself up as a scientific expert. He was merely recounting his experience, as he has lived it, since the establishment of the outdoor storage next door. The panel took his evidence to be delivered in good faith and a reflection of what he has perceived and experienced.

33. As will be disclosed below, the disposition of this appeal will not turn on the issue of impacts but rather on basic planning law.

34. Mr. Rendl also canvassed the Employment land policies of the OP and focussed on Policy 4.6.7 (l).

35. His view is that the proposed use of the Property for outdoor open storage maintains none of the general intent and purpose of the OP’s Employment Areas policies, specifically: - i. The proposed outdoor open storage is not permitted by the Zoning By-law (Policy 4.6.7 (l)); - ii. The proposed outdoor open storage is not an accessory/ancillary use (Policy 4.6.7 (l); - iii. The proposed outdoor open storage is not limited in its extent, as it is proposed the storage areas and internal access driveways together occupy 100% of the Property (Policy 4.6.7 (l)(i)); - iv. The proposed outdoor open storage, by occupying the entirety of the Property is not located where its potential adverse impacts on nearby land uses are mitigated (Policy 4.6.7 (l)(ii); and - v. By merely proposing to extend the row of cedars for 10 metres along the shared lot line between the Property and the site at 100 Industry Street, the outdoor open storage on the Property would not be well screened (Policy 4.6.7(iii)). The last observation was premised on what was shown on a landscape mitigation plan filed by the Appellant, which was subsequently altered by the Appellant to an offer to extend the planting along the entire length of the boundary line.

36. This leads Mr. Rendl to conclude that the proposal does not maintain the general intent and purpose of the OP.

37. With respect to whether the proposal will be in keeping with the general intent and purpose of the Zoning By-law, Mr. Rendl advised that the Property is regulated by the Zoning By-law and is zoned PE Prestige Employment, the highest order employment area zoning category in the Zoning By-law. Outdoor storage is expressly not a permitted use on the Property under the Zoning By-law.

38. In his view, outdoor storage is the antithesis of the general purpose and intent of the Zoning By-law. The Zoning By-law’s purpose for lands zoned Prestige Employment is very clear and unambiguous in terms of activity which is to take place within enclosed buildings.

39. He further goes on to say that it is his opinion that the introduction of this prohibited use, by virtue of its characteristics and activities, will create adverse impacts for the uses adjacent to the Property as well as other uses located in the Employment Area.

40. In this regard, Mr. Rendl says that outdoor storage, over time, has become less of an acceptable use and the least desirable of uses in Employnent areas. He further went on to say that uses not permitted by the Zoning By-law should be considered the wrong uses for the area.

41. His conclusion is that the requested variances will not be in keeping with the general intent and purpose of the Zoning By-law.

Temporary Use

42. Mr. Riley indicated that the Appellant was only seeking a temporary authorization of use, the temporary period to be of five years’ duration. A memo from the City Planning Department was produced which suggested that they would not object to the use on a temporary basis provided that there was the implementation of tree planting along the Industry Street frontage and that the permission was for no more than three years.

43. The Tribunal inquired of Mr. Riley why City staff had suggested the temporary period of three years and he indicated that he thought that this was the City policy with respect to temporary use by-laws.

44. In fact, the Planning Act authorizes a council to enact temporary use permissions under the authority of Section 39 of the Act. Those provisions read as follows:

“Temporary use provisions

39 (1) The council of a local municipality may, in a by-law passed under section 34, authorize the temporary use of land, buildings or structures for any purpose set out therein that is otherwise prohibited by the by-law. R.S.O. 1990, c. P.13, s. 39 (1).

Area and time in effect

(2) A by-law authorizing a temporary use under subsection (1) shall define the area to which it applies and specify the period of time for which the authorization shall be in effect, which shall not exceed three years from the day of the passing of the by-law. 2002, c. 17, Sched. B, s. 11 (2).”

45. It is therefore within the authority of Council, under its zoning authority, to grant temporary permissions for the use of land but such permissions are to be limited to three years in the initial instance.

46. The Appellant is essentially requesting that this Tribunal exercise a zoning authority and to do so for a period in excess of that which is statutorily permitted.

ISSUES AND ANALYSIS

47. In their written final submissions, Appellants’ counsel says that Mr. Rendl spent a significant amount of time dealing with Policy 4.6.7(l) – which explicitly deals with where open/outdoor storage is permitted as an ancillary/accessory use and that Mr. Rendl suggests that this policy is to be read such that open/outdoor storage shall only be permitted as a use in the Official Plan where it is permitted in the applicable zoning by-law. Counsel then goes on to accuse Mr. Rendl of fundamentally misunderstanding the planning hierarchy in Ontario – saying zoning by-laws must conform to official plans, not vice versa.

48. However, what Mr. Rendl said on that point is precisely what the OP says, that Council will use its authority through the zoning by-law to determine where open storage will be allowed. The OP does not give a carte blanche to open storage throughout the planning area. It is to be controlled through the zoning by-law.

49. Appellants’ counsel here is confounding the testimony of Mr. Rendl as well as the text of the OP.

50. It is clear to the Tribunal that what the Appellant is seeking is the authorization of a use which is quite simply not permitted. In fact, the Zoning By-law declares without qualification that outdoor storage is a not a permitted use on lands zoned PE.

51. To fulfill the Appellant’s request through this application would not be to effect a minor variance to the by-law but would be tantamount to amending the by-law, which is outside the jurisdiction of the Committee and this Tribunal on appeal.

52. As the authority in Section 45(1) of the Planning Act is to grant minor variances from the Zoning By-law, it is implicit that the departure from the strict terms of the Zoning By-law must nonetheless cleave to the foundational provisions of the Zoning By-law.

53. Introducing a use which is not permitted by the terms of the by-law does not represent a variance. It constitutes an amendment to the by-law. And if it goes beyond characterization as a variance, it cannot therefore be considered minor.

54. The limitation on the granting of this extent of relief is set forth very clearly in the 1982 decision of Mr. Justice Carruthers of the Ontario High Court of Justice in Convenience Services Ltd.v. Barrie Committee of Adjustment, [1982] 14 O.M.B.R. 12 (Ont. H. C. J.); 1982 CanLII 3161 (ON SC).

55. The relevant text on the point is set forth in paragraph 17 of the decision: “I cannot think of circumstances where to permit the right to a use which is not permitted under a zoning by-law can be considered a "minor variance" of that zoning by-law. That is the effect of the Committee's decision here. The Committee was not asked to vary a use which may be made of the land and premises, the subject of the application, by such a degree, either as an extension or otherwise, that can be considered "minor". To determine if a variance of a permitted use is minor or not, the description or definition of the permitted use as contained in the zoning by-law must be first considered. The extent to which it is sought to be varied must then be measured in the light cast by the description or definition, and the relevant portions of the by-law and official plan, as reflected against the background of the Committee's opinion required by s. 49(1) [ed. note, now s.45(1)]. Here, in effect, the Committee was asked to permit a part of the shopping centre to be used as a "retail store", a use not permitted in the zoning area in which the shopping centre is located. The Committee was not asked to vary, by any degree, a permitted use.”

56. Counsel for the Appellant acknowledges that this decision remains good law but tries to distinguish it on the basis of subsequent decisions such as Fred Doucette Holdings Ltd. v. Waterloo (City), 1997 CarswellOnt 2765 (Div.Crt.) leave to appeal to Ont. C.A. refused, 1997 CarswellOnt 4579, and various other decisions of the former Ontario Municipal Board, and Re Kogan, 2020 CarswellOnt 17464 (TLAB), of this Tribunal.

57. Those other decisions are entirely distinguishable as their facts disclose some relationship between what is being sought to what the zoning by-law permits. This panel reads Re Kogan as having been a mischaracterization by the zoning examiners of the proposed use as a restaurant since on a breakdown of its particulars, the proposed use lacked fundamental aspects of what would commonly characterize a restaurant. In that decision, Chair Lord says, “I find that the opinions expressed that would confine the scope of the variance power to the definition used for a 'restaurant' in the applicable zoning bylaw is to ask the approving authority to turn a blind eye to relevant considerations. Namely, the actual use proposed, the real use, the use possessing an individuality of its own: is it a 'restaurant', or something different? I am of the view that an establishment that does not have a kitchen, that does not prepare and cook meals and that does not serve in-house prepared food to tables is something different than a 'restaurant'; it is perhaps not something more depending on scale but it certainly can be something appreciably less, as advanced here”.

58. Therefore, on a close analysis of the proposal, it could clearly be differentiated from the use that was not permitted, and it was found to be acceptable.

59. What is happening in this case on the Property hasn’t been mischaracterized at all, it is plain and simple open storage as a stand alone use on the entirety of the Property, and that is not permitted by the Zoning By-law.

60. And simply to address an assertion made by Appellant’s counsel in its submissions that Mr. Goldberg’s testimony should be discounted with respect to his failure to recollect whether there was prior use of the Property for open storage, to the panel the absence of open storage prior to 2019 was abundantly clear from the aerial photos which were introduced in evidence for the years 2017 and 2018, so that counsel’s attack in this regard is baseless and will bear no weight.

61. This appeal is on all fours with Toronto (City) v. Truprop Ltd., 1995 CarswellOnt 5278, 32 O.M.B.R. 490 (O.M.B.).

62. In Truprop, the applicant sought relief from the Committee so as to establish a commercial parking lot on its downtown site. The Committee refused the application and the matter went on appeal to the Ontario Municipal Board. Member Mills very astutely asked the question “How can the variance applied for possibly be consistent with the intent and purpose of By-law 438-86 when that by-law specifically prohibits commercial parking lots in this area of the city? It cannot. And therefore failing that test the application fails.”

63. As noted above, the use under consideration in this appeal is unadorned open storage, and the Zoning By-law very clearly does not permit that use in this PE zone category. To authorize such a use as a minor variance, by any respectable approach to the question, cannot be treated as being consistent with the intent and purpose of the Zoning by-law.

64. Appellant’s counsel tries to deprecate the Truprop decision due to its age and the fact that it was rendered prior to Fred Doucette. There is absolutely no substance to that assertion as the fact situations were entirely distinct and Fred Doucette does not in any way derogate from the analysis in Truprop.

CONCLUSION

65. The Tribunal has difficulty with many aspects of the opinion evidence of Mr. Riley and is not persuaded by it. By contrast, the Tribunal perceives the opinion evidence of Mr. Rendl to be anchored in the actual facts regarding use of the site and the proper application of the OP policy applicable to these Employment lands.

66. The Tribunal accepts Mr. Rendl’s opinion that this application fails to meet all four tests under s.45(1) of the Planning Act.

DECISION AND ORDER

67. The Tribunal ORDERS that the appeal is dismissed.

G. Swinkin

Panel Member