Split vote at council means Palgrave variance stands
By Bill Rea

It seemed for a while recently that Caledon councillors were going to ask the Ontario Municipal Board (OMB) to take another look at its ruling approving a controversial minor variance in Palgrave.

But almost at the last minute, the tide of the debate changed, and a motion to call for the review was settled with a tied vote. That means it was defeated.

John Barbaro, of Barbaro Investments Inc., was one of the few happy people in the room after the vote was taken.

"Thank you very much," he called out as he strolled from the council chambers. "Have a nice day."

Barbaro had been turned down by Caledon's Committee of Adjustment last summer for a variance that would allow the expansion of its auto body shop on Highway 50 in the hamlet.

The applicants appealed to OMB, which heard the issue a couple of weeks ago.

Town legal staff reported to council in January on the issue, but did not mention there had been several petitions and letters (representing both sides of the matter) that had been filed with the committee. The legal report suggested the Town be represented at the hearing to ask the board to impose certain conditions if the variance was to be granted. They included calling upon Barbaro to submit a site plan to the Town that would address things like screening, noise, fencing, landscaping, parking, lighting, etc., which the town would have to approve, and the two sides would enter into a site plan agreement. As well, all unoperational vehicles would have to be removed from the parts of the property that are not zoned for a body shop. Other conditions were requested at the hearing. One of them stated that there be no more than one single-vehicle paint booth and no more than six spaces for repairing cars.

The latest legal report that went to council stated that condition was added to ensure the scale of the business is no greater than it already is.

The board approved the variance, with the conditions requested by the Town, in an oral decision.

There was plenty of support in the council chambers for getting the variance stopped.

Former councillor Nancy Stewart stressed the importance of defending the adjustment committee decision.

Stewart commented that councillors had not been fully briefed on the situation before hearing, when they agree to settle with Barbaro. She also said this recognition of a legal nonconforming use of a rural residential property "has snowballed into a defacto rezoning, with no public input or consideration by council."

Stewart also said she had talked to Town Solicitor David Ostler about the possibility of the matter going to OMB. "David assured me that the Town would defend the Committee of Adjustment's decision and he was confident that the decision was defendable," she stated.

Palgrave resident John Milligan told council neighbours in the area have signed two petitions apposing the Barbaro applications.

He also asked council to consider the four tests an adjustment committee is expected to put an application to.

One of the tests is whether the variance maintains the general intent and purpose of the municipality's Official Plan. He pointed out Caledon's Official Plan intends that a legal non-conforming use like this one should stop in the long-run, and Milligan argued the variance would have the opposite effect.

A second test is whether the general intent of the zoning bylaw is maintained, and he argued this will see an addition to an industrial building in a residential area on the Oak Ridges Moraine.

As for the test of whether the proposal is appropriate or desirable development, Milligan again pointed to an industrial use being expanded in a residential area, right across the road from a school.

He also argued the variance isn't minor, since he said it would more than double the size of the industrial building.

"In our view, this application fails every test," he declared.

Milligan also wondered if matters like the local water supply or sewage had been adequately considered, along with the emissions coming from an automotive facility so close to a school.

Barbaro told council they have been trying to get some expansion in place there for years. He admitted they didn't start off well on these efforts, but have since been learning how the system works. He said he's worked hard with planners and an architect to make this all work, with a lot of "redoing and redoing" to get everything prepared.

"I'm trying to better the community," he declared. "No one really understands me."

Barbaro told Councillor Doug Beffort there have been efforts to appease the neighbours, such as not operating weekends or evenings, although he would like to.

"I understand I have a surrounding I need to take care of," he said.

He also told Beffort they have another property, in the area of Mayfield Road and Coleraine Drive, but he said he's not been allowed to set up a body shop operation there.

Mary Hall, director of planning and development for the Town, told Councillor Annette Groves that until the conditions requested by council have been satisfied, the OMB order won't take effect.

Nadia Koltun, director of legal services for the Town, added the board will keep the file open until they have been complied with.

Councillor Richard Whitehead said he had seen a couple of hopeful looking lines of attack to get the board to review the decision. He said OMB should be expected to consider evidence that was not available at the time of the hearing.

He commented that he didn't see much evidence that groundwater issues were dealt with, and he thought that was crucial, observing most of the hamlet is on septic systems. He also thought air pollution issues could be raised.

He also pointed out Barbaro went to the committee, rather than to council, and the adjustment committee members told him the magnitude of his application was more than they should be dealing with.

Legal staff had suggested that if OMB agreed to look into the matter, the Town should retain outside legal counsel and a planner, and that a contingency fund of $40,000 be set up for that.

Councillor Richard Paterak said he was ready to ask for the review, but he wanted to be cautious when it came to committing $40,000, especially if the effort might not be successful.

Beffort argued in favour of waiting, believing Barbaro would be willing to consider alternatives. "If that happened, we would all feel better," he remarked.

He added he would like to think some people would be able to sit down and look for a place in Caledon where and operation like this could be set up.

Koltun pointed out there was a deadline in which the Town had to decide if it wanted the review.

"We want to pass this motion today in order to get ourselves involved in the process," Whitehead commented.

He added Barbaro couldn't just relocate easily. He wondered who he would be able to sell his Palgrave site to.

In the end, Whitehead and Mayor Marolyn Morrison supported seeking the review, along with Paterak and councillor Nick DeBoer. Groves, Beffort and Councillors Allan Thompson and Jason Payne were opposed. Councillor Gord McClure was not at the meeting.

Payne commented later that the board had already made its decision. He added groundwater issues can be addressed at the site plan stage.

"The safeguards are built in," he declared.

"I felt that it already went to the Ontario Municipal Board," Groves remarked, adding the only new information that had come up concerned the petitions. But she pointed out they had come up at the hearing, and the hearing officer wasn't interested.

Stewart wasn't pleased with the final decision, commenting she was "really disappointed" that "they didn't defend the original decision of the committee of adjustment."

"They should have defended it," she added. "We're doing window dressing and covering up a bad decision."

"I think the people were disappointed and I was disappointed," Whitehead commented later, adding he had hoped to get the issue on the table and to OMB so it could be discussed.

Thompson later expressed regret over the way things went. "I didn't listen to the people of Palgrave today, and I should have," he commented later.

Thompson did defend the way he voted, however, pointing out Barbaro is already heavily regulated, and said it wasn't a vote he wished he could have back.

"When you make a decision, you stick by it," he said.