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Commercial Development

  1. Heritage Grove Centre Inc. and Villarboit Development Corporation v. City of Owen Sound

    Location:

    Grey/Bruce


    Subject:

    Commercial Development, Official Plan Amendments, Shopping Centre Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    In March 2012, Heritage Grove Centre Inc. and Villarboit Development Corporation applied for an amendment to the City’s Zoning By-law 2010-78. The intent was to increase the permitted Gross Floor Area and to relax or eliminate the Gross Floor Area and unit size restrictions, so as to facilitate a new retail development. However, City Council refused the application, with concerns about potential market impact. The Applicants appealed to the Board. However, after a series of pre-hearing conferences, the Applicants and the City agreed on modifications to the application as well as a draft Zoning By-law.


    Held:

    Appeal allowed


    Reasons:

    The parties were able to agree on a new draft Zoning By-law, which formed part of their settlement. The Board also considered the opinion of expert planner Wendy Nott, who stated, “the settlement is appropriate, in conformance with applicable policy, and represents good land-use planning in the public interest.” The Board found no reason to disagree.


    Document(s):



  2. Town of Bracebridge v. Bakema (Little Europe Resort)

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Commercial Development, Residential Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    The Town of Bracebridge passed a comprehensive Zoning By-law No. 2006-120, for which there was a site-specific appeal filed by the Little Europe Resort. The Board authorized a zoning change to CT-9H subject to the provision that a site plan agreement be entered into. The Town in its motion to the Board is requesting that the Board issue its final Order without a site plan agreement.


    Held:

    Motion allowed, final Order issued


    Reasons:

    Roelf Bakema was agreeable to the change and none of the other original appellants appeared at the hearing. The Board grants the motion by the Town of Bracebridge based upon the uncontested affidavit evidence of Matthew Holmes and the Board will issue its final Order with respect to By-law No. 2006-120.


    Document(s):



  3. Simcoe (County) v. Innisfil (Town)

    Location:

    Greater Golden Horseshoe


    Subject:

    Agricultural, Commercial Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    The Applicants own and operate Lake Simcoe Marina and currently operate a year round commercial boat storage business on the subject lands that is related to their Lake Simcoe Marina business. By-law 106-12 seeks to regularize commercial boat storage on the subject lands. The By-law applies to a portion of the lands within the Agriculture designation. The By-law does not permit commercial boat storage on any lands designated Natural Environment. The Town adopted the By-law to permit commercial boat storage on the lands currently designated and zoned Agricultural. The County appealed the matter to the Board. The principal issue before the Board is whether the commercial boat storage is a secondary agricultural use, as set out in the Town’s Official Plan.


    Held:

    Appeal allowed and by-law is repealed


    Reasons:

    The Board finds that the Official Plan clearly requires the use to be both secondary and agricultural. Regardless of whether one considers the commercial boat storage to be secondary to the livestock operation, no amount of skilful interpretation results in the conclusion that commercial boat storage is an agricultural use. The commercial boat storage is unrelated to an agricultural use on the subject lands. The evidence before the Board is clear that the commercial boat storage is related to the marina business owned by the Applicants and operated several kilometres away from the subject lands. The Board concludes that Town of Innisfil By-law No. 106-12 which permits commercial boat storage on the subject lands does not conform to the Town Official Plan and, as such, does not conform to the County Official Plan, does not conform to the Growth Plan for the Greater Golden Horseshoe and is not consistent with the Provincial Policy Statement.


    Document(s):



  4. Still’s Bay Landing Corporation v. Township of Muskoka Lakes

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Commercial Development, Recreational Development, Shoreline Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    Still’s Bay Landing Corporation applied to amend the Township of Muskoka Lakes Zoning By-law 87-87 in order to increase the size of the marina from 38 to 50 slips. The council of the Township of Muskoka Lakes denied the request. Still’s Bay Landing Corporation appealed its denial to the Board. The subject lands are designated “Waterfront” in both the Regional Municipality of Muskoka Official Plan and the Township Official Plan. The property in question is zoned Waterfront Commercial (WC2) in the Township of Muskoka Lakes Zoning By-law 87-87. The By-law limits the dock length to 80 feet and the width to 25% of the lot frontage. The Appellant/Applicant originally applied for a dock length of 150 feet and width of 75.6% and a side lot setback of two feet where the By-law requires 30 feet.


    Held:

    Appeal allowed in part


    Reasons:

    The Board accepts that there are problems with the existing use of the marina. It also accepts that marina operations such as this are necessary to the development of recreational tourism and cottage development. The Provincial Policy Statement, and both Official Plans provide for recreational and cottage development that is a major component of the local economy. The Board finds that the zoning amendment presented before the board is consistent with the Provincial Policy Statement, conforms to the Official Plans and represents good planning.


    Document(s):



  5. 1066517 Ontario Inc. v. Township of Grey Highlands

    Location:

    Grey/Bruce


    Subject:

    Commercial Development, Official Plan Amendments, Severances, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    The first Pre-hearing Conference to consider procedural matters for the hearing which will deal with appeals filed by 1066517 Ontario Inc. on Council’s refusal to approve its application for Official Plan Amendment, rezoning and consent, seeking to permit a commercial enterprise and other commercial uses at a 1.4 ha parcel.


    Held:

    Hearing is scheduled for future date


    Reasons:


    Document(s):



  6. Town of Bracebridge By-law No. 2006-120 (Re)

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Commercial Development, Recreational Development, Shoreline Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    The matter before the Board is the only remaining appeal against the Comprehensive Zoning By-law 2006-120 of the Town of Bracebridge. The remaining appeals of N. Montanaro, J.R. Ward, L. Power are site specific appeals dealing with the zoning proposed for the subject property known as Little Europe Resort. The Resort property is an established tourist camp of 56.33 acres with extensive frontage on the Muskoka River. A Superior Court of Justice Decision respecting the Resort site ordered that; The use as a tourist camp of the lands is a legal non-conforming use within the meaning of Section 34(9)(2) of the Planning Act. The lands are subject to the By-laws of the Town of Bracebridge. The appellants articulated their concerns effectively. Their concerns include impediment to the enjoyment of their properties, trespassing, smoke, continuous expansion, public safety with respect to use of boats and the boat ramp, defined swimming area and environmental issues as they relate to septic systems.


    Held:

    Board orders that Zoning Amendment come into full force and effect.


    Reasons:

    The Board accepts the testimony of the Town Planner and finds that the proposed zoning provisions are in the public interest, set standards of operations, regulations and permitted uses and zone provisions respecting the naturalized buffer areas, and provide for a scale of development that is appropriate for the Resort site.


    Document(s):



  7. Menkes Lakeshore Ltd. v. Kraft Canada Inc.

    Location:

    City of Toronto


    Subject:

    Commercial Development, Costs, Residential Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    A motion for costs arising from a hearing of the merits that lasted for some 50 hearing days. The central issue in the hearing was whether a mixed use designation, permitting commercial and residential uses, should be placed on any or all of the lands bounded by Park Lawn Road, Lakeshore Road West, Mimico Creek, and CNR lands. The Board held in favour of permitting mixed commercial and residential uses. Kraft’s application for leave to appeal was denied, with costs. Menkes has pursued its motion for costs, but only against Kraft, not the City.


    Held:

    Motion for costs is denied


    Reasons:

    The Board finds insufficient support in the affidavit evidence for the Board to make a finding of bad faith on the part of Kraft; they disagree that Kraft had ignored the Board’s directions and orders; they do not agree that noise and odour were not proper issues; and finds that it has insufficient evidence to make an award of costs against Kraft for failure to retain experts, submit reports, call evidence to challenge Menkes experts or advance an argument in support of issues of design, density and height.


    Document(s):



  8. Komeilinejad v. City of Toronto

    Location:

    City of Toronto


    Subject:

    Commercial Development, Minor Variances


    Court:

    Ontario Municipal Board


    Application/issue:

    An appeal to the Committee of Adjustment of the City of Toronto for a minor variance to create six parking spaces at the rear of her property, however, Zoning By-law 7625 requires eight parking spaces of a specified size and with specified turning circles and aisles for the uses proposed. The appeal is under subsection 41(12) of the Planning Act.


    Held:

    Appeal allowed


    Reasons:

    The Board concludes that the proposal will comply with and conform to the land use documents and represents appropriate planning. The Board allows the appeal and the site plan approval requested be authorized subject to the conditions set out at the hearing.


    Document(s):



  9. Signum Corporation v. City of Peterborough and Wal-Mart Canada Corp.

    Location:

    Greater Golden Horseshoe


    Subject:

    Commercial Development, Motion to Dismiss, Official Plan Amendments, Shopping Centre Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    Signum Corporation has appealed to the Ontario Municipal Board under subsection 17(24) of the Planning Act in regard to Official Plan Amendment No. 126 of the City of Peterborough and further, has appealed to the Board under subsection 34(19) of the Act in regard to Zoning By-law Nos. 04-037 and 04-038 of the City of Peterborough. Wal-Mart Canada Corp. has brought a motion under subsections 17(45) and 34(25) of the Act to dismiss the appeals. Wal-Mart seeks its costs incurred in bringing this motion on a substantial indemnity basis.


    Held:

    Motion granted


    Reasons:

    Based on the affidavit evidence submitted by Wal-Mart the Board finds that OPA 126 and By-laws 04-37 and 04-38 are consistent with the City’s policies. The Official Plan sets out a multi-nodal retail commercial structure, which reflects the Wal-Mart site, adjacent to the designated Portage Node and the proposed Signum site in the southwest part sector of the City, which is independent of a Shopping Node designation. The Board finds that the proposal before it represents an incremental expansion of the designated Portage Node and that it reinforces the City’s planned commercial structure.


    Document(s):



  10. 1358872 Ontario Ltd. v. Neebing (Municipality)

    Location:

    Northern Ontario


    Subject:

    Commercial Development, Official Plan Amendments, Recreational Development, Shoreline Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    The appeals related to a proposal to construct a Seasonal Trailer Park adjacent to the river-bank of the Cloud River at Cloud Bay, in the Municipality of Neebing. The proposed trailer park is located on a narrow band of land owned by Eagle Mountain Resort. Amendments to the Municipality’s Official Plan and Zoning By-law are required to implement the proposal. Official Plan Amendment No. 10 would redesignate one-third of the subject lands as “Recreational” with the balance redesignated as “Environmental Protection.” The Zoning By-law amendment would rezone the lands to Tourist Park Commercial Exception One Zone and various Use Limitation Exception One Zones.


    Held:

    Appeals dismissed


    Reasons:

    While the Board took into consideration that fact that the Official Plan Amendment and Zoning By-law Amendment and the Development Agreement could be edited and corrected to be more in line with the Municipality’s documents, they did not find this argument persuasive enough. They did, however, find more persuasive the fact that the proposal was not compatible with what was acknowledged as a pristine environment. An environment that is unique on the north shores of Lake Superior, which must be protected from harm rather than be put at risk.


    Document(s):



  11. 300 John Street v. Markham (Town)

    Location:

    Greater Golden Horseshoe


    Subject:

    Commercial Development, Official Plan Amendments, Shopping Centre Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    This proceeding deals with the proposal for the partial demolition of the existing commercial mall in order to make room for a large format store for home improvement merchandise. The Town rejected the application for the Official Plan and zoning by-law amendments that would enable the proposal to come into being. The owner launched the requisite appeals to the Board relating to the three planning instruments that are set out in the title of proceedings.


    Held:

    Appeals dismissed


    Reasons:

    The Boards decision lies on the overall poor planning and design of the proposed building. The pedestrian conductivity, the lack of an elevator, the two tier parking formats, the outdoor display of goods and wares and a large amount of outdoor space devoted to a garden centre all contribute to our sense of unease even though the Board is aware that some tinkering may be of some help. The Board is of the view that a different planning exercise dealing with the implication of such a shift must be done prior to an approval.


    Document(s):



  12. 1462478 Ontario Inc. and George H. Fleming and Associates Limited v. Town of the Blue Mountains

    Location:

    Grey/Bruce


    Subject:

    Commercial Development, Development Charges, Plan of Subdivision, Residential Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    This case is regarding future developments for a subdivision in the Town of the Blue Mountains. The Board is dealing with the following matters: an appeal of conditions No. 5 and 6 of the conditions of draft plan approval, imposed by the County of Grey; an appeal of the Town’s refusal or neglect to make a decision within 90 days of the application to rezone the eight lots and the hazard area abutting the eight lots; an appeal of the site plan for a temporary on-site sales centre; and appeal of the Town’s refusal or neglect to rezone Block 10; and an appeal of the Town’s failure to approve the site plan for the Block 10 lands.


    Held:

    Appeals allowed in part


    Reasons:

    The Board finds that the subject lands do not constitute development that benefits from the reconstructed road and it is unreasonable for the Town to impose the local service component charge on the subject lands. The Board orders that the owner shall satisfy all the requirements, financial and otherwise, of the Town of the Blue Mountains concerning the provisions of services and drainage for the site. The Board shall allow the two appeals filed by 1462478 Ontario Inc. to determine and settle the details of the site plan for the development of Block 10 and the sales pavilion. However, the Board will withhold its order amending Zoning By-law 83-40 and approving the site plans pending the receipt of revised documentation.


    Document(s):



  13. City of Peterborough Downtown BIA Mason Homes Ltd., Mutak Holdings Ltd. and AON inc. v. Searun Estates Inc.

    Location:

    Greater Golden Horseshoe


    Subject:

    Commercial Development, Downtown BIA/CIP, Official Plan Amendments, Shopping Centre Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    Mason Homes Ltd., Mutak Holdings ltd., City of Peterborough Downtown BIA and others have appealed to the Ontario Municipal Board under subsection 17(24), 34(19) of the Planning Act and section 43 of the Ontario Municipal Board Act, from a decision to the City of Peterborough to approve of Proposed Amendment No. 104 to the Official Plan for the City. The applications would permit the redevelopment of a site outside of the Commercial Business District (CBD) for use as a large Chapters/Starbucks.


    Held:

    Appeals dismissed, Decision subsequently amended


    Reasons:

    While it may be desirable for Chapters to locate in the CBD, they are not prohibited from locating elsewhere. The applications are consistent with the policy framework.
    The Board having considered the written submissions of the parties on the requests of AON Inc. and Mason Homes Limited to amend the Board’s decision of August 20, 1999, Decision/Order No. 1558, and especially the letter of October 4, 1999 from the City of Peterborough, hereby amends its decision and order by deleting “4.4.5.1” from the first line on page 16 and substituting “4.4.9.1.”


    Document(s):



  14. Paper Fibres Inc., Meridian Cooperative Homes Inc., James Drake and others v. City of Hamilton and Wesley Urban Ministries

    Location:

    Greater Golden Horseshoe


    Subject:

    Commercial Development, Residential Development, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    City Council for the City of Hamilton passed Zoning By-law Amendment 97-147 to the City’s Zoning By-law No. 6593, as amended by Zoning By-laws 92-197 and 93-117. This amendment was to permit on the first and second floor of the existing building a “Drop-in Centre” for the homeless, the destitute, and the ex-psychiatric patients needing temporary shelter and social services. Appeals against the Zoning By-law were launched various appellants.


    Held:

    Appeals allowed in part


    Reasons:

    The appeals of the Appellants are allowed, in part, to permit the Drop-in Centre, but to change the Zoning By-law Amendments in keeping with the limitations expressed in this Decision, including an application for the amendment to the Site Plan and approval given. It would also mean redrafting of the Zoning By-law Amendment definition of Drop-in Centre to limit the Drop-in Centre use to the particular location in the residential complex at the subject property. That would also require locational and size limitations being set out in the amendment.


    Document(s):