Harper Dell & Associates Inc. (Re), 2024 ONTLAB 223

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2024-05-07

23 228422 S45 21 TLAB

Harper Dell & Associates Inc. (Re), 2024 ONTLAB 223

DECISION AND ORDER

Issuance Date:

May 7, 2024

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):

HARPER DELL & ASSOCIATES INC

Applicant(s):

NICHOLAS DELL

Property Address:

47 CROCKFORD BLVD

COA File No.:

23 203792 ESC 21 MV (A0209/23SC)

TLAB Case File No.:

23 228422 S45 21 TLAB

Hearing Date(s):

April 16, 2024

Deadline Date for Closing Submissions/Undertakings:

April 23, 2024

Decision Delivered By:

TLAB Chair D. Lombardi

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Owner

1149790 ONTARIO LTD

Stephanie Fleming

Appellant

HARPER DELL & ASSOCIATES INC

Expert Witness

DESIGN PLAN SERVICES INC.

David Igelman

INTRODUCTION AND CONTEXT

1This Hearing arises from an Appeal of the decision of the Scarborough Panel of the City of Toronto (City) Committee of Adjustment (COA), by Harper Dell & Associates Inc. (Appellant), filed on behalf of 1149790 Ontario Ltd. (Owner), to permit a marihuana production facility at 47 Crockford Boulevard (subject property).

2The Applicant sought approval for a single variance to allow the proposed marihuana production facility to be located on a lot with a 0 m separation distance from a lot in an Open Space Zone category, whereas the facility is required to have a separation distance of at least 70 m.

3The subject property is located on the east side of Crockford Boulevard, south of Lawrence Avenue East and east of Warden Avenue, in a predominantly industrial subdivision within the ‘Wexford/Maryvale’ neighbourhood in the former municipality of Scarborough.

4It is designated ‘Core Employment Areas’ in the City Official Plan (OP) and zoned ‘E 1.0’ Employment Industrial under the City-wide Zoning By-law 569-2013, which permits a marihuana production facility and a Floor Space Index (FSI) of up to 1.0 times the area of the lot.

5The application was heard and refused by the COA on November 15, 2023. Harper Dell & Associates Inc. subsequently appealed the COA’s decision to the Toronto Local Appeal Body (TLAB) and the TLAB set a Hearing date of April 16, 2024, to hear the Appeal.

6The Applicant is seeking a single variance from Zoning By-law 569-2013 as follows:

REQUESTED VARIANCE(S) TO THE ZONING BY-LAW:

1. Chapter 150.60.40.1.(1) (A) (vii), By-law No. 569-2013

A lot with a marihuana production facility must be at least 70 m from a lot in a

Open Space Zone category.

The proposed marihuana production facility is located in a lot with 0.0 m from a lot

in an Open Space Zone category.

7The only Party in the Appeal matter before the TLAB is 1149790 Ontario Ltd., the owner of the subject property. The Owner was represented at the TLAB Hearing by their legal counsel, Stephanie Fleming, and expert planning witness David Igelman.

8The only evidence before the TLAB was provided by Mr. Igelman.

THE LEGISLATIVE AND POLICY FRAMEWORK

9Provincial Interest - S. 2

A decision of the Toronto Local Appeal Body (TLAB) shall have regard to, among other matters, matters of provincial interest, enumerated as (a) – (s) in the Planning Act.

10Provincial Policy – S. 3

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.

11Variance – S. 45(1)

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

12I heard from David Igelman, Design Plan Services Inc., whom I qualified as an expert witness able to give opinion evidence in the area of land use planning. Mr. Igelman was retained by the owner of the subject property after the COA refused the application on November 15th.

13He confirmed for the presiding Panel Member that upon circulation of the application by the COA, no City Department or External Agency indicated any concerns or objectives to the proposal including the Ravine and Natural Feature Protection division of the City’s Urban Forestry Department and the Toronto and Region Conservation Authority.

14In addition, there were no members of the public who indicated any concerns with the application, either through a written submission or directly to the COA at the hearing on November 15, 2023. The COA received only one piece of correspondence in support of the application from the owner of the neighbouring property at 49 Crockford Boulevard.

15Mr. Igelman identified a neighbourhood study area which he characterized as consisting of a variety of industrial and commercial low-rise buildings standing from one (1) to two (2) storeys in height, within which varying lot configurations and site layouts exist.

16The land uses immediately to the north, west, east and south of the subject property include industrial buildings along Crockford Boulevard and Underwriters Road. The rear lot line of the subject property abuts Massey Creek, a naturalized creek/ravine.

17In reviewing the proposal, he advised that the Owner proposes to convert a two-storey portion at the rear of the existing building, which is currently vacant, into a ‘micro grow’ marihuana facility. The remainder of the building, which includes the majority of the building, would continue to be used as a vehicle repair business.

18Mr. Igelman confirmed that some minor interior and exterior renovations would be required to the building to facilitate the proposed marihuana production facility; however, he substantiated that there will be no new external additions or changes in the location of exterior walls of the existing industrial building.

19Proposed renovations are required to obtain a ‘cannabis licence’¹ and would include filters on the heating, ventilation, and air conditioning systems, as well as a range of physical security features on all entrances to the proposed production facility, to comply with Federal Health Canada regulations.

20The two-storey portion of the building that will house the marihuana production facility will occupy the entire second floor and include a small portion of the ground floor, which accommodates a loading area and permits exterior access.

21The total gross floor area (GFA) of the proposed facility equals 343.6 m2 or 32% of the total GFA of the existing building.

22No internal access to the remaining part of the existing building from the production facility is proposed, again, to satisfy Federal Health Canada regulations.

23In describing the Application and the variance sought, Mr. Igelman noted that the requirement for a 70 m separation distance for a lot with a marihuana production facility from a lot in an Open Space category is derived from the Provincial D-6 Guidelines for a Class 2 industry use as set out in Community Planning Staff’s report that accompanied By-law 403-2014 (Exhibit 2, Tab 4-7).

24Within the D-6 Guidelines, distinctions are made between Class 1 and Class 2 industrial uses, and he asserted that the proposed marihuana production facility more closely resembles a Class 1 than a Class II facility since it will have no outside storage, little to no odour/noise/dust, or vibration emissions, and will have infrequent shipping of goods.

25This guideline and other policies² were issued in July 1995 under the authority of the Environmental Protection Act, the Environmental Assessment Act as well as section 2 of the Planning Act. They are still in effect but are not Provincial policy statements with which this decision must be consistent since the preamble to D-6 do not reference section 3(1) of the Planning Act.

26Accordingly, the primary legislative basis for the Guideline is section 14(1) of the Environmental Protection Act.

27Mr. Igelman submitted that since the Zoning By-law does not allow consideration of the potential range of marihuana product facilities, a Class 1 industry use is required to comply with a 20 m separation distance as per the D-6 guidelines.

28Referring to the Site Plan drawings, he noted that the building setback is not measured perpendicularly from the rear of the building due to the angled rear lot line and that the depth of the subject property is approximately 95.5 m on average³. He argued that the 70 m separation distance required by the Zoning By-law is not based on the actual distance from the unit containing the marihuana production facility but, instead, is measured from lot line to lot line.

29In this regard, he asserted that there is a 14.37 m setback from the rear of the existing building to the rear lot line, although this is measured from a portion of the building that will not house the production facility.

30As a result, he argued that the production facility use will actually be set back farther than 14.37 metres from the rear lot line which abuts the Open Space Zone and more than the 20 m minimum setback to any useable area in an Open Space Zone as set out in the D-6 guidelines.

31Mr. Igelman provided a COA Decision Table in which he included 27 decisions within his study area. Of those decisions, he highlighted two recent decisions in which the COA approved similar separation distance variances for marihuana production facilities⁴ which he asserted illustrate examples of facilities that co-exist appropriately within this area.

32He submitted that the proposed separation distances meet or exceed the 20 m and are consistent with the D-6 guidelines and should be preferred to the more onerous requirement of 70 m separation distance in the Zoning By-law. Therefore, the TLAB should approve the variance sought by the Applicant and allow the appeal.

ISSUES AND ANALYSIS

33This is a straightforward decision given that the Official Plan and Zoning By-law explicitly permit this land use. The only question relates to the separation distance since the City’s Employment policies require that Employment lands be reserved for Employment uses and protected from the intrusion of sensitive land uses.

34I accept Mr. Igelman’s evidence that the 70 m separation distances have origins in the D-6 policies, which suggest a 20 m separation distance between sensitive land uses and Class I Industrial facilities but 70 m separation distance for Class II.

35Classes I and II correspond to light and medium industries, and I agree with Mr. Igelman that the proposed production facility more closely resembles a Class I facility and therefore, it should be required to comply with the 20 m separation distance as per the D-6 guidelines.

36The need for the variance results from the interpretation that separation distance is measured lot line to lot line, not unit boundary to lot line and, in this instance, I find it would be unreasonable to insist on the lot line to lot line measurement.

37As noted by Mr. Igelman in his evidence, while the separation distance between the building and the rear lot line is 14.37 m, the distance is actually greater given that the rear lot line is angled, and the separation distance measurement is taken from a portion of the existing building that does not include the marihuana production facility.

38In fact, the separation distance varies depending on which portion of the building is used to measure the building setback from the rear lot line. For example, if measured from the rear portion of the building containing the unit proposed to include the production facility, the separation distance is 17.03 m.

39Furthermore, that separation distance increases to 28.76 m when calculated from the southwest corner of the rear building wall.

40I agree with Mr. Igelman’s planning opinion and find that the Official Plan and higher-level policies test were met, specifically as they relate to sections 1.2, 1.2.6, and 1.3 of the Provincial Policy Statement and section 1.2.1 of the Growth plan.

41Additionally, the proposed marihuana production facility appropriately implements the language in the Official Plan to intensify the existing physical form of the employment use on the subject property by making more efficient use of currently vacant space and providing more functionality within the industrial building.

42Based on the record of previous approvals submitted by Mr. Igelman and the photo evidence he provided, I am satisfied that the area is beginning to experience modest regeneration and transition as it pertains to marihuana production facilities and that the proposal reflects the continuing evolution of this transition within this cluster of employment lands.

43Mr. Igelman’s evidence was that the general intent and purpose of the Zoning By-law is to regulate the use and physical characteristics of a building on a site and to ensure that the built form does not result in any unacceptable adverse impacts on adjacent properties.

44In the case at hand, the Zoning By-law expressly permits the marihuana production facility; the requested variance relates to the separation distance of the facility from a lot in an Open Space Zone category.

45Mr. Igelman’s evidence suggests that the separation distance should be less than the 70 m required, and I agree that the standard should be 20 m as set in the D-6 guidelines. Given that the separation distance is greater than 20 m at the southwest corner of the section of the building in which the facility is to be located and that the existing open space zone that abuts the subject property at the rear is more of a naturalized area and not intended for general recreation or congregation, I am satisfied that the variance maintains the general intent and purpose of the Zoning By-law.

46I also agree with Mr. Igelman and find that the proposed minor alterations to the existing industrial building will improve the existing condition on the subject property and introduce an additional use that represents a more desirable development of the land.

47I accept that there will be no adverse or unacceptable impacts of a planning nature on the adjacent properties as the proposal includes mitigation measures such as appropriate setbacks, the fence enclosure at the rear of the property, and buffering to both the Open Space Zone as well as the street.

48The subject property is located more than 70 m from any Residential Zone, and I agree with Mr. Igelman that the approval of this variance will not create any noticeable difference from what might be experienced if the land was developed in accordance with the as-of-right zoning.

49The proposed use itself, being a marihuana micro-production facility, is small in scale and is not a large-scale operation. The facility will occupy a proportionally small section at the rear of the existing building and the Applicant is required to comply with all Provincial guidelines for this type of production facility.

50I find that the proposed reduction in the separation distance is minor and will have little to no impact even if the Zoning By-law standard requires a 70 m standard.

51I am satisfied that the proposal is an example of where a proposed new use in the existing industrial building fits with the immediate and surrounding context and will add to the functionality of the property for the owner, business operation and employees.

CONCLUSION

52I am satisfied that the general intent of the Official Plan is maintained, and the other tests set out in section 45(1) of the Planning Act are met.

DECISION AND ORDER

53The appeal is allowed. The variance listed in Appendix A, below, is authorized, subject to the condition(s) contained in Appendix B, therein.

D. Lombardi

Panel Chair

APPENDIX A

List of Requested Variance(s)

1. Chapter 150.60.40.1.(1) (A) (vii), By-law No. 569-2013

A lot with a marihuana production facility must be at least 70 m from a lot in a

Open Space Zone category.

The proposed marihuana production facility is located in a lot with 0.0 m from a lot

in an Open Space Zone category.

APPENDIX B

CONDITION(S) OF APPROVAL

1. The Marihuana Product Facility at 47 Crockford Boulevard is limited to the location in the unit at the rear of the existing industrial building on the subject property as shown on the Site Plan (Drawing A1.0) and Elevations (Drawing A3.0), dated June 24, 2023, and prepared by Soscia Professional Engineers Inc., attached as Appendix C to this decision. Any other variance or variances that may appear as required on these plans but that are not listed in the written Decision and Order are NOT authorized.

APPENDIX C

Footnotes

1. 1The ffederal cannabis licensing process is required for classes Micro Cultivation and Micro Processing under the Cannabis Act (S.C. 2018, c. 16) and Cannabis Regulations (SOR/2018-144).
2. 2Mr. Igelman provided Guidelines D-1” Land Use Compatibility”, and Procedures D-1-1” Implementation, D-1-3, "Land Use Compatibility: Definitions" and D-6 “Compatibility Between Industrial Facilities and Sensitive Land Uses”. D-1-3 defines Class I Industrial Facility A place of business for a small scale, self-contained plant or building which produces/stores a product which is contained in a package and has low probability of fugitive emissions. Outputs are infrequent and could be point source or fugitive emissions for any of the following: noise, odour, dust and/or vibration. There are daytime operations only, with infrequent movement of products and/or heavy trucks and no outside storage.
3. 3The rear lot line of 47 Crockford Blvd. that abuts Massey Creek is angled so the depth varies along that lot line.
4. 4The COA approved a 0 m separation distance for a marihuana production facility at 123 Crockford Blvd., and the TLAB, on appeal, approved reduced separation distances for a marihuana production facility at 1160 Birchmount Rd.