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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
 

    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.

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    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,

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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.

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    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.

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    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:

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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.

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    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:

    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.

The Board so Orders.    RONALD J. EMO - MEMBER