Moriarity v. Sarnia (City)

Moriarity v. Sarnia (City) Collection Decisions of the Court of Appeal Date 1998-10-08 Docket numbers C26666 Judges McKinlay, Hilda Margaret; Austin, Allan McNiece; O’Connor, Dennis Subject Civil Decision Content DATE: 1998108 DOCKET: C26666 COURT OF APPEAL FOR ONTARIO MCKINLAY, AUSTIN AND O'CONNOR JJ.A. BETWEEN: ) ) KEVIN MORIARITY, MARGARET WHEAT ) Joseph J. Hoffer and DAVID COHEN ) for the applicants/ Applicants/ ) appellants Appellants ) and ) ) THE CORPORATION OF THE CITY OF ) Scott A. Rosen SARNIA, 959634 ONTARIO ) for 959634 Ontario Inc. INC. and 1109650 ONTARIO INC. ) and 1109650 Ontario Inc. ) respondents Respondents/ ) Respondents in ) Valerie M'Garry Appeal ) for the Corporation of the ) City of Sarnia ) respondent ) ) Heard: September 23, 1998 AUSTIN J. A.: OVERVIEW [1] This is an appeal by ratepayers from the dismissal by Desotti J., on January 24, 1997, of their application for interpretation of the Sarnia zoning bylaw with respect to the parking requirements of the business premises of the respondent numbered companies. [2] There are two basic issues: (a) Is the use of the premises properly classified for zoning bylaw purposes as a "commercial sports or recreation establishment"? (b) When calculating the parking spaces required how does one deal with multiple uses? FACTS [3] The premises in question are a one storey building shaped like a cake box. The total floor area is approximately 15,000 square feet. It is occupied by billiard tables, a dance floor or floors, a dining area or areas, bars, washroom facilities and a kitchen. [4] The washroom and kitchen facilities comprise approximately 2,050 feet. The square footage taken up by other uses varies from time to time. At one point, the restaurant aspect occupied about 3,980 square feet and the recreational facilities about 8,542 square feet. [5] The findings of the court below with respect to proportions were 2,700 square feet for dining and 10,250 square feet for sports and recreation. The maximum occupancy load for purposes of the liquor licence is 500 persons. Part of the premises is described as "Club Hollywood" and another part "Shooters 9 Ball". All parts are accessible from all entrances. [6] According to the affidavit of Margaret Wheat, one of the applicants, Club Hollywood has been marketed primarily as a night club with accessory billiard facilities. It is open from Wednesday through Saturday and features a large dance floor, music provided by a disc jockey and on occasion by live bands, stand-up bar facilities and alcohol-related promotional activities. [7] The premises are in an area zoned C3 where general commercial uses are permitted. These uses expressly include a commercial sports or recreation establishment, a restaurant, a tavern or public house and a public hall, all terms defined by the zoning by-law. [8] The premises are on the edge of a residential area. The applicants live in that area and are persuaded that there is insufficient parking to accommodate the operation of the premises, with a resultant overflow of traffic into that area. Discussions with local authorities did not produce the desired results so these proceedings were brought. [9] The applicants advance two arguments: (a) The premises are wrongly classified as a commercial sports or recreation establishment. They should be classified as either a tavern or public house, a restaurant or a public hall, all of which have more stringent parking requirements; or, in the alternative (b) assuming a commercial sports or residential establishment is the correct classification, only part of the premises should be so classified for parking purposes. The balance should be classified as a restaurant for the calculation of parking requirements. [10] My conclusion is that the second of these arguments must succeed, but, because of the inadequacy of the zoning by-law, the first must fail. THE BYLAW The uses in issue are defined by the bylaw as follows: Commercial Sports or means a privately-owned sports or Recreation Establishment recreation facility operated for profit and used by private members or the general public Tavern or Public House means a tavern or public house as defined in the Liquor Licence Act, R.S.O., 1980, Chapter 244 but does not include a hotel or restaurant Restaurant shall mean a building or part thereof used for the preparation and sale of food and beverages to the public for consumption within said building, in a parked motor vehicle or elsewhere and includes such uses as a cafe, ice cream parlour, tea or lunch room, coffee shop, donut shop or sandwich shop Public Hall means a labour union hall or other building or part thereof where members of the public gather together for the purpose of any meeting or entertainment and, except for labour union halls, at which an admission fee is charged, or where, after admission, a charge is made or a fee collected, or where such building or part thereof is rented or leased by any person or organization for any such function, and may include cloak rooms, washrooms, kitchens and other service rooms used in connection therewith but does not include a theatre, school, church, or lodge when used for lodge purposes only; and for the purposes of this definition, "entertainment" means any dance, exhibition, concert, show, variety program, motion picture showing, public luncheon or dinner, game or sporting contest [11] The parking facilities prescribed by the bylaw at the relevant time for each of these uses is as follows: Commercial Sports or 1 parking space for each 20 Recreation Establishment square metres of gross floor area Tavern or Public House 1 parking space for each 4 seats of maximum seating capacity Restaurant 1 parking space for each 6 square metres of gross floor area Public Hall 1 parking space for each 10 square metres of gross floor area [12] It is obvious from these numbers that the parking requirements of an enterprise will vary widely depending upon the classification of its use. The ratio of 1 space for 6 square metres for restaurants was in effect at the time the respondent companies began dealing with the City. Shortly after that, the requirement was increased to 1 space for each 4.5 square metres. [13] Also relevant are the bylaw definition of "Accessory Use" and a provision respecting multiple uses. The former is in section 6, "Definitions", and reads as follows: "Accessory Use" means a use that is clearly incidental, subordinate and exclusively devoted to a permitted use performed on the same site. [emphasis added] The latter is in Part II of the bylaw which is headed "Regulations" and in section 8 which is entitled "General Provisions for All Zones" and is itself entitled "One or More Permitted Uses". It reads as follows: s.8(15) Where one or more uses are permitted in any zone, land may be used and buildings may be erected and used thereon for one or more of the uses so permitted, provided the requirements of this By-law are satisfied for each such use. [emphasis added] POSITIONS OF THE PARTIES [14] The position of the respondents, including the City, is that although the use being carried on is manifestly that of a night club, it cannot be so classified because there is no such classification in the by-law. This despite the fact that the zoning by-law law dates back at least as far as 1984. [15] A similar enterprise had been established in Sarnia in 1990, although on a much smaller scale, and, for lack of any better- fitting classification, it was treated as a commercial sports or recreation establishment. In order to be consistent, the development now in issue must also treated as commercial sports or recreation establishment. [16] Classification as a tavern or a public house is out of the question, according to the City, because the zoning bylaw definition of this use simply refers to the Liquor Licence Act, R.S.O. 1980. The definitions were not actually in that Act but in the regulations made under it and those regulations were repealed sometime in the 1990s. [17] In any event, that classification would not be appropriate because by the definition in the bylaw, a tavern or public house could not include a restaurant and this facility does have a restaurant. [18] The ratepayers' second choice, so to speak, is to have the premises, or a portion of them, classified as a restaurant. The respondents' position is that it is not a restaurant. At this point, the first question, classification of the use, merges with the second question, namely how does one deal with multiple uses. [19] Here the City, with the support of the other respondents, relies on consistency. In the case of the 1990 enterprise, it classified it as a community sports or recreation establishment and treated the dining aspect of it as an accessory use. Dealing with the instant situation in this manner, 100% of the respondents' business is to be regarded as a commercial sports or recreation establishment for the purposes of calculating the parking requirements. ANALYSIS [20] The judge of first instance accepted this argument. He found that it made more sense than what he called the "layered or additional use approach" of the applicants. His view was that the restaurant use was "simply an accessory use for patrons who are already there using the commercial sports or recreation establishment". [21] In reaching this conclusion he relied on the decision in Re 1121472 Ontario Inc. and The Corporation of the City of Toronto (1995) 26 O.R. (3d) 25 (G.D.). In that case, an existing restaurant wished to add entertainment to its operation. "Restaurant" and "entertainment facility" were both defined uses in the zoning bylaw. The former was a permitted use in the area in question. "Entertainment facility" was not. The application judge held that the primary use of the property was as a restaurant while the entertainment aspect was just an accessory use and therefore not prohibited. [22] In the instance case, Desotti J. adopted this primary purpose test as the logical and preferred interpretive approach. [23] Re 1121472 Ontario Inc., however was reversed on appeal. See: (1998) 176 D.L.R. (4th) 83 (C.A.). Robins J.A. speaking for the court said at pp.88 and 89: [15] I am respectfully unable to accept that the determination of whether an establishment is a "restaurant" or an "entertainment facility" depends simply on which use constitutes the primary function of the business. Where a by-law creates a separate category of use specifically covering a proposed use, the proposed use must be subject to the restrictions imposed on that category. Put another way, if the by-law contains a provision governing establishments providing a particular kind or class of entertainment in conjunction with the sale of food, the use of the premises for the specified entertainment puts what may otherwise be a restaurant in the defined entertainment category. In the absence of any provision in the definition of the entertainment category permitting a use accessory to the entertainment use, this is so regardless of whether the entertainment use is primary to the dining use or visa versa. [16] In the present case, we have a by-law that defines "entertainment facility". This relatively new category was not in existence when any of the cases referred to in the court below were decided. It was enacted to deal with the problems created by large combined dining and entertainment facilities. As this category is defined, an establishment that provides entertainment including any of the types of entertainment specified therein, as for instance, a dance floor, a discotheque or a supper club, in conjunction with the sale of food, is an "entertainment facility". It is the combination of these uses that brings an establishment into this category. Unlike the definition of restaurant, no provision is made in the definition of "entertainment facility" for accessory or secondary uses. [17] The entertainment area here has a standing capacity of 195 people and includes a stage and dance floor. The presentation of entertainment featuring international singers, dancers and bands with a dance floor for patrons, can hardly be treated as something "naturally and normally" incidental or subordinate to the preparation and sale of food. The main attraction may well be the entertainment rather than the food. However, even if the entertainment can be said to be an accessory use, the establishment would nonetheless be an "entertainment facility". The provision of a "dance floor" and the proposed entertainment in combination with the sale of food, by definition, renders the premises such a facility, as would a discotheque, a night club, a supper club or any other of the forms of entertainment enumerated in the definition. The respondent's proposed use of the premises is the kind of use intended to be covered by the definition and to which the zoning restrictions are directed. [18] In reaching this conclusion, I would not wish to be taken as agreeing with the view apparently expressed by certain municipal officials to the effect that any live entertainment of any kind in any restaurant of whatever size necessarily converts the restaurant into an entertainment facility. The by-law must be applied in a common sense way on a case by case basis and regard must be had to the reasons underlying the introduction of the "entertainment facility" category and the zoning restrictions pertinent thereto. [24] In my view, that decision is of limited assistance in resolving the instant case because the decision was concerned not with the calculation of parking requirements but whether a particular use could be carried on in a particular area. In the instant case, both uses in issue are permitted. [25] The decision does, however, disapprove of the primary purpose test, although in a different context. The statement from paragraph 15 that "where a bylaw creates a separate category of use specifically covering a proposed use, the proposed use must be subject to the restrictions imposed on that category" is directly applicable in the instant circumstances. [26] I take it to mean that the parking requirements for the restaurant part of the business must be calculated on the basis of what the bylaw specifies for the use of premises as a restaurant. This I also take to be the intention of s. 8(15) of the bylaw in issue here. [27] I take paragraph 18 of the reasons of Robins J.A. to mean that any interpretation must begin with common sense and that if a restaurant, for instance, were to add a piano player, that would not necessarily convert it to an "entertainment facility". That relatively insignificant type of change was not what was contemplated in Re 1121472 Ontario Inc.; nor is it what is happening in the case now before the court, where a substantial percentage of the gross floor area is devoted to dining. [28] I do not agree that the approach set out by Robins J.A. would lead to an absurd result. With respect, this interpretation attempts to give effect to what is the obvious intention of the Sarnia zoning bylaw and specifically, of s. 8(15). [29] According to the material filed, the operators of the business were themselves concerned with the impact of their operation on the area and in particular with the traffic it would generate, if it became popular, as it apparently has. [30] With this mind, a calculation was done by the City on a split-use basis, that is calculating the requirements on two bases, restaurant and commercial sports and recreation establishment. This produced a combined parking requirement of 101 spaces, a number in excess of what is now provided that can be counted under the by-law. [31] In my respectful view, this is the correct approach. The area should be divided into restaurant and commercial sports and recreation establishment, the two calculations made and then added together. Today's total may be different than 101, depending upon the current split between that part of the premises devoted to eating and that part given over to commercial sports or recreation. [32] One of the disadvantages of this approach is that if the split changes, the parking requirements may change as well. In my view, this does not strike me as an insurmountable difficulty, nor one inconsistent with the object of the by-law. [33] Although no argument was directed to the details of the split, I would expect that the kitchen facilities would be included in the eating area and the washrooms would be divided proportionately. [34] An additional reason for not resorting to the "accessory use" clause is that, as I understand the facts, the eating facilities are not "exclusively devoted" to the use of the premises as a commercial sports or recreation establishment as required by the definition of "accessory use". In other words, one could go in and dine without using or having any intention to use the other facilities. [35] Returning to the first question, namely how should the use of these premises be classified, the answer to me seems to be a "Hobson's choice" - none of the alternatives is satisfactory. This is not the fault of either the applicants or the two numbered company respondents. [36] From the description of what happens on the premises, a tavern or public house seems the closest fit - but that choice must be discarded because by the definition in s. 6(91) it cannot include a restaurant. [37] Nor is it a public hall for the simple reason that it is private, not public. [38] The applicants' third choice is "restaurant" and it is common ground that it is in part, at least, something else. In the result therefore I would not disagree with the judge below or with the Director of Planning who both said that it is a "commercial sports or recreation establishment", however unsatisfactory that may be. [39] Counsel for the City urged that classification on the court for reasons of consistency. While there is much to be said for that virtue, particularly in the context of zoning, I agree with Justice John Marshall Harlan of the United States Supreme Court who said: "Let it be said that I am right, rather than consistent." [40] In the result, I would allow the appeal, set aside the order below and in its place substitute the following: 1. This Court Orders And Adjudges that this application be and the same is hereby allowed. 2. This Court Orders And Adjudges that the parking requirements of the operations of 959634 Ontario Inc. and 1109650 Ontario Inc. be calculated pursuant to the City of Sarnia Zoning Bylaw 8506, by dividing the area of the property into its two uses, namely restaurant and commercial sports and recreation establishment and applying to the gross floor area devoted to each the parking requirement factor specified by section 10 of the said bylaw. 3. This Court Orders And Adjudges that 959634 Ontario Inc. or 1109650 Ontario Inc. provide the parking spaces required in accordance with the said bylaw calculated as set out above. 4. This Court Orders And Adjudges that the respondents 959634 Ontario Inc. and 1109650 Ontario Inc. do pay to the applicants/appellants their costs of this application forthwith. [41] I would also order the numbered company respondents to pay to the appellants their costs of this appeal. As the inadequacy of the municipal by-law is the reason for the proceedings, I would not make any award of costs in the City's favour. Released: October 8, 1998