THE  DEMOCRATIC  REPORTER


• Home • Table of Contents • General News •


YouTube  site
where my videos are posted


Pages  of  Special  Interest;

In Defence of Canadians Rights & Democracy


* Hazel McCallion - Mayor of Mississauga *
- 2009 -
* Conflict of Interest & Judicial Inquiry *


* Public Question Period Index *
!! A Mississauga Democratic Tradition Lost !!


• Defense Fund for Donald Barber •

• Sound Clip Gallery • Video Clip Gallery •

• Byron Osmond Pleas for Mercy • Peel police Wrong Doings •

• Hazel McCallion - Mayor of Mississauga - her Misdeeds • The Culham Brief •

• Order of Canada & its Corruption •

• End of Suburbia & Continuous Communities as the Solution - JOBS FOR LIFE •


Other  Table  of  Contents;
• Events • Archive of Links •
• Media - News Articles & Letters to Media • Literature & News Letters •

• Elections Results in Mississauga • Political History of Mississauga • Political, Democratic & Legal Issues •

• Political Methods • The Meaning of Words & Phrases • Political Satire & Parody •
• City Mississauga Committees • City Mississauga By-Laws & Policies •
• Security Insanity • Police Issues, Complaints & News Articles •
• FOI - Freedom of Information Results & Issues •
• Legal Issues • Unions Issues •

• Political Players & Persons of Interest • Ratepayers Groups & their Issues in Mississauga •



Scanned, recopied or Internet copy, if there are errors, please e-mail me with corrections:


Opening comments:  More at the end.

    The more I read about how the Queen of Sprawl & her Council went to lengths so people could live under landing jets and more I am reminded that it was hanky panky in the planning and development approval process that got Councillor Glyes in trouble.  That also involved Mr. Willis.  Here we find the
Ontario Municipal Board (OMB), making a finding that the City of Mississauga involved in questionable activities to approve residence  in noise zones that will make life painful and the OMB makes a point of saying not only was the City wrong BUT the way it does business is too!

A TOXIC SOUP OF NOISE and the Queen of Sprawl wants families to live in such places, all to make a buck for the City.  As the City tried to this more than once we have to ask, does this an "
extensive East Indian community", play a role in City Council decision making process?  People have questioned the Queen of Sprawl bias's in the past.

"Roy Willis, ... referred to living in Malton as akin to "noise toxic soup"."

"In commenting on this unique situation of the City, bypassing its own planning regime, the Board observed it was akin to the "last horse out of the barn".   In final argument, Mr. Stein submitted that it was more a case of finding "a chink in (GTAA)'s) armour" and represented strange conduct for a municipality, perhaps even an improper use of its powers."

"that allowing new residential units within the 36 NEF contour is not in the larger public interest and is not good planning."


OMB - Decision/Order NO: 1138     For PL021191     Issue Date: Aug. 27, 2003

Ontario Municipal Board

Greater Toronto Airports Authority has appealed to the Ontario Municipal Board under subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended, against Zoning Bylaw 0470-2002 of the City of Mississauga O.M.B. File No. R020298

APPEARANCES:

Parties                                                                         Counsel*/Agent

City of Mississauga (City)                                             Kenneth Beaman*

Greater Toronto Airports Authority (GTAA)                   Stanley Stein*

                                                                                      Michael Bowman*

Sunita Rani and Salram Kumar (Rani)                           Zaheer Beg
 

DECISION DELIVERED BY RONALD J. EMO AND ORDER OF THE BOARD

    The issue in this case is NOISE, primarily generated by aircrafts approaching or departing from Lester B. Pearson International Airport (LBPIA), but also from the newly expanded Airport Road (now 6 lanes) and the main rail line of the Canadian National Railways (CN).  Indeed, Roy Willis, a former, 27 year resident of Malton, who still has a ''financial interest in No. 5 Beverley Street, referred to living in Malton as akin to "noise toxic soup".

    For the past nine years, Ms Rani and husband Balram Kumar (Rani), through Mr. Beg, their architectural consultant and agent, have been diligently seeking approval for a mixed-use development of their property (the site) at the northwest comer of Beverley Street and Airport Road in the City's Malton community.  According to Mr. Beg's submissions, the project has always included ground floor retail, with originally 8, later 10, and now 9 residential units on the second storey.

- 2 -

    In a special Council meeting convened on November 6, 2002, the City enacted Zoning By-law 0470-2002 (the By-law) to rezone the site from R4 to H-DC-2613 with 'H' referring to a holding category and 'DC' being District Commercial.  A special provision allows for 9 residential units on the second floor.  The need for a special Council meeting was triggered by the impending date of November 13th at which time Amendment 125 (OPA 125) to the City's Official Plan (Cityplan) would come in to force.  OPA 125 prohibits new residential units within the Airport Operating Area (AOA) and even though there are some 'exceptions', none of these would allow new residential units above the 35 NEF contour.  With the site being located around the 36 NEF contour, OPA 125 would thus completely rule out any new residential units, however with the By-law having been enacted prior to OPA 125 coming in to force, 9 new residential units would be permitted on the site.  In commenting on this unique situation of the City, bypassing its own planning regime, the Board observed it was akin to the "last horse out of the barn".   In final argument, Mr. Stein submitted that it was more a case of finding "a chink in (GTAA)'s) armour" and represented strange conduct for a municipality, perhaps even an improper use of its powers.

    Although CN and the Region of Peel (Peel), after reviewing John Coulter's supportive acoustical report (Exhibit 9), eventually 'signed off' with regard to impact on the site from noise generated by the rail line and Airport Road (Peel), GTAA has appealed the residential aspect of the By-law as contravening the Provincial Policy Statements (PPS), the Regional Official Plan (ROP) and Cityplan.

    The site was at one time the location of a service station but has been vacant for several years.  Although only introduced by peripheral references in Mr. Beg's submissions and photo panels (Tab A, Exhibit 2), the Board takes notice that the site is located within Malton's extensive East Indian community.  This community includes a Temple (Photo 15, Exhibit 2) further north on Airport Road together with several (perhaps 30 to 40 years old) strip plazas extending southerly along the west side Airport Road from Beverley to the CN overpass.  The photo panels depict the strip plazas as retail on the ground floor, with residential units above.  In final submissions, Mr. Beg inadvertently gave evidence that a number of these units are residences for the business people, who operate the stores on the ground floor.  One exception to this stretch of plazas is the one storey store named "Golden Grocery", immediately across Beverley from the site.  To the west along Beverley are several single detached homes,

- 3 -

with No, 5, in which Mr. Willis has "a financial interest", being separated from the site by a 'closed' 3.66 m (12 ft) lane allowance.  To the north of the homes along Beverley is a City Park, with a Separate School (Our Lady of the Airways) located at the end of the street North of the site, along the west side of Airport Road, are two or three detached homes, an apartment building and the Temple.  Under construction, immediately north of the Temple is the new "Punjabi" Industrial Park.  The east side of Airport Road, from the site northerly, is marked by a solid fence, erected to mitigate the adjoining residential neighbourhood from noise from the heavily traveled road.

    Much of the nine years that have elapsed, since November 10, 1994 when Mr. Beg made the original application, were consumed by a lengthy design and environmental approval process, which preceded Peel's widening and reconstruction of Airport Road.  The Board understood that this environmental approval resulted in a substantial shift (to the east) of the centerline of Airport Road, thus greatly reducing the amount of land that Peel had to acquire from the site.  In addition because in 1994, the site carried a "Residential, Multiple-Family" designation in the (then) Malton Secondary Plan (circa 1966), a redesignation of the site to permit commercial development was also required.

    Although Mr. Beg's Original application (Tab 1, Exhibit 2) sought amendments to both the OP and the Zoning By-law, it appears that the OP amendment came about through the longer process of being part of the City's regular update of its planning documents rather than as a 'free-standing' amendment.  In any event, on February 11, 1999, Cityplan's policies for the Malton District Plan (MDP) were approved by Peel, unopposed by GTAA, and included a redesignation of the site to "M" (mixed commercial).  Ingrid Sulz-McDowell, a City Planning Manager who has dealt with the Rani application for most of its nine years, told the Board that within the "M" (mixed commercial) designation, Section 5.7.2.6 of Cityplan permits retail, service and office commercial uses, together with minor institutional and residential uses.  Scott Bums, a land use planner under retainer to GTAA, reminded the Board that all pages of the MDP carry a notation that specific policies must be read in conjunction with all of the policies of Cityplan.

- 4 -

    For the past nine years however, the site has carried, as it does today, an R-4 (residential) zoning, permitting single detached homes on 15 metre frontages.  Thus it was only on May 2, 2001, with Air Port Road issues now resolved, the site now designated as "M" ('mixed-commercial') in the MDP, half of the adjoining (closed) lane allowance having been acquired and the site plan modified to accord with urban design guidelines (moving the building close to Airport Road), that a new application for a rezoning was submitted to the City.  The Board understands that as a result of these changes as well as the time lag (from 1994), that the City had requested a new application, even though it used the original (1994) file.  Exhibit 16, filed by the City, is an application, dated May 2, 2001, for a zoning change for the site to permit 9 retail stores with 10 apartments on the second floor.

    As noted, in November of 1994, Mr. Beg had submitted the original application (Exhibit 14) seeking permission to develop the site as a 'mixed-use' project comprised of 8 residential units and 638 m2 of commercial space.

    The City filed two sets of photos (Exhibit 14) depicting the mandatory site signs, which are part of the public notification advising of an application for a change in land use.  Interestingly. the first signs, which carry the date of November 1, 1994, describe a "Proposed 2 Storey Mixed Residential-Commercial Building".  A second set of signs, which carry the date of November 25, 1994, describe a "Proposed Retail/Commercial Building".  Responding to Mr. Beg's query and trying to explain the sign change, Ms Sulz-McDowell told the Board that the only site plan, prior to 2001, in the City's file is one dated May 25, 1995 (Exhibit 15), depicting an 8 unit commercial building of 600 m2, called "Goldmine Plaza".  In contrast, Mr. Beg's document book (part of Tab 2 of Exhibit 2) is a site plan, dated November 1994, for a "2 storey mixed residential and commercial building".

    I don't know that anything turns on the forgoing sequence of events other than to lend some credibility to Mr. Beg's submission that the application 'date' is November of 1994.  Unfortunately, none of the 1994/95 site plans, submitted as exhibits, carry revision dates.  Thus with Exhibit 15, filed by the City, as the only plan (pre-2001) in its files, describing the one storey "GoIdmine Plaza" together with the notation on the second set of signs, the Board finds that the1994 application, as accepted by the City, was only for a commercial building.

- 5 -

    The application 'date' is crucial to this appeal as following a long line of Board cases, starting with Clergy Properties. Ltd. v Mississauga (City) [1996] O.M.B.D. No. 1840 (Clergy), as upheld by the Divisional Court, it is accepted jurisprudence that the 'date' dictates the planning regime under which the merits of the application are to be "tested".

    In addition to evidence of Ms Sulz-McDowell and Mr. Bums, the Board also had the benefit of testimony by land use planners: Dana Anderson, on behalf of Rani and Nancy Mott-Allen, a Region of Peel planner who appeared under a GTAA summons.  Although Mr. Beg sought the Board's acceptance of 1994 as the 'date', his submission was in marked contrast to the evidence of Ms Anderson, who along with the other three planners, all agreed that the 'date' is May 2, 2001.

    Despite Mr. Beg's claim that the 'date' should be 1994, the Board accepts the shared expert opinions of four land use planners and find that the effective 'date' of the Rani application for the zoning change, under appeal, is May 2, 2001.

    Unfortunately for Rani, during the same nine year period in which they were waiting for changes to the City's planning documents and finalization of the design of Airport Road, airport noise, particularly in regard to new residential development, moved up the scale as a public concern to the extent that in 1997, the Province amended the PPS by regulation OlC97 -102, quoted herewith:

To protect airports from incompatible development:

1. New residential development and other sensitive land uses will not be permitted in areas near airports above 30 NEF/NEP, as set out on maps (revised from time to time) approved by Transport Canada; but

2. Redevelopment of existing residential uses and other sensitive land uses or infilling of residential and other sensitive land uses may be considered above 30 NEF/NEP if it has been demonstrated that there will be no negative impacts on the long term function of the airport. (italics relate to defined terms in the PPS, underlining denotes Board emphasis)

    The phrase "infilling of residential" spawned differing expert opinions, with planners, Anderson and Sulz-McDowell expressing the view that these words should be

- 6 -

interpreted as written.  While acknowledging that the phrase is not a defined term within the PPS, Ms Mott-Allan and Mr. Burns take the position that it is analogous to "residential infilling", which is defined in the PPS, albeit more in relation to a rural than an urban setting.  In the absence of an applicable PPS definition, Ms Sulz-McDowell directed the Board to definitions in Cityplan as being more appropriate to the site and its setting.  The Board notes that with the exception of the "Golden Grocery" building to the south, there are residential uses north and south of the site as well as westerly along Beverley.  Preferring the opinions of planners, Anderson and Sulz-McDowell, the Board makes the finding that in the context of this case, the residential aspect of the By-law accords with the phrase "infilling of residential above 30 NEF", in the PPS and thus a residential use may be considered, subject to the second caveat therein.

    For the record, the Board notes that NEF (noise exposure forecast) contours reflect a combination of actual noise levels together with the estimated amount of complaints to be anticipated from residents living under the runway approaches. The (Rani) site is within the AOA, with Mr. Coulter's evidence being that it is located in the 36 NEF contour (see Exhibit 27).

    The second caveat to the 'infilling of residential' permitted by the PPS is that the proposal must demonstrate that there will be "no negative impact on the long-term function of the airport".  This is more of a challenge to the City and Rani as GTAA holds that no matter how miniscule the proposal, any residential development will have a cumulative impact and eventually undermine the operation of the LBPIA.  Indeed the Board understood that the passage of OPA 125, and Amendment 5 to the ROP (ROPA 5), a similar worded document, were sparked by differing interpretations by City and Peel staff as to what constituted negative impact on the airport and a direction by Regional Council for the City, Brampton and Peel to have a common and dear planning policy on this topic.

    Nowhere in Ontario has aircraft noise been more of an issue than at LBPIA.  From its creation in 1996, armed with a long-term lease and mandate to develop and expand the airport, GTAA moved quickly to protect LBPIA from additional conflict arising from new residential development under its runway approaches.  There was no disagreement in this hearing that LBPIA is a major engine of economic growth for the Greater Toronto Area (GTA) and much of southern Ontario.

- 7 -

    Although Cityplan, as enacted in 1997, parroted OIC97-102 and, following Peel's lead, introduced the concept of an Airport Operating Area (AOA), being the translation of the 30 NEF contour into a system of lines on planning maps based on streets and other recognizable physical features, GTAA and several major landowners had appealed the AOA from differing perspectives.  The GTAA sought a larger AOA while the landowners sought exemptions.  In 1998, following a lengthy hearing, the Board (member Krushelnicki) issued Decision/Order No. 1650, approving Policy 4.2.3.8 (c), which parrots the PPS, and 'fine tuning' the AOA.

    With Cityplan as well as the ROP and the PPS all containing planning policy directed to protecting the LBPIA from new land uses, primarily residential uses that would increase conflict, GTAA has been increasingly vigilant in challenging any planning changes (zoning, variances, etc.) that it perceives could impact on LBPIA.

    Recognizing the difficult noise environment, the applicants, led by John Coulter, an experienced acoustical engineer, presented the only expert evidence on this topic.  Mr. Coulter's evidence was that notwithstanding the very high noise levels, thicker glazing of sealed windows combined with air conditioning, the absence of any outdoor amenity areas and the introduction of "Warning Clauses", will produce in an acceptable living environment for future residents of the 9 apartments, and thus there should be no impact (complaints) on the operation of LBPIA.

    GTAA's position through its two planning witnesses and submissions by its counsel is that this is simply not good enough, Mr. Stein quoted the Board's comment (member Krushelnicki) in Gloucester (City) v Ottawa-Carleton (Regional Municipality) [1997] O.M.B.D. No. 1596, as set out herewith:

Like the Authority, I take no comfort from the fact that residents will be informed of the discomfort before they must endure it. Nor is it good planning or a proper rationale to allow residential development that must incorporate extraordinary design and construction methods simply to make it reasonably habitable to a typical Canadian family.

    In considering the merits of a free-standing zoning by-law, the Board traditionally applies the "tests" of Official Plan conformity, prematurity and "good planning".  In the case at hand, the Board finds that with the proposed sound mitigation measures, the

- 8 -

By-law is in technical compliance with PPS, ROP (prior to ROPA 5) and Cityplan (prior to OPA 125).  After nine years, it would be difficult to find "prematurity" was an issue.  The key issue is whether allowing 9 new residential units in the 36 NEF contour, even with appropriate noise mitigation measures, is good planning.  While acknowledging Mr. Beaman's submission as to the passage of nine years and Council's supportive action, the Board prefers the evidence of planners Mott-Allen and Bums as well as accepting Mr. Stein's submissions and finds that allowing new residential units within the 36 NEF contour is not in the larger public interest and is not good planning.

    Both Mr. Stein and Mr. Bums reminded the Board that the site will not be sterilized as the GTAA is not opposed to the commercial aspect of the By-law.  Indeed, the Board notes Mr. Beg's photos and submissions as to the recent enhancement of Airport Road's streetscape are reflective of the unique character of this commercial area.

    Having found that residential usage will not be permitted on the site, the Board will allow the appeal, in part.
The Board orders all reference to residential use be deleted from the By-law 047-2002.

The Board so Orders.    RONALD J. EMO - MEMBER


[COMMENTS BY DON B. -  ]



Your Financial Donations are Greatly Appreciated
and Very Much Needed to Ensure the Survival of
THE  DEMOCRATIC  REPORTER


The
Donald Barber Defense Fund
Needs help right now
&
Now Accepting Pay Pal.


• Home Page • Main Table of Contents •

Back to Top

• About This Web-Site & Contact Info •